' ABDUL WAHEED, J.-- Waqar Zaheer and Muhammad Arshad, both aged 24 years, were tried under section 302/34, P.P.C. For the murder and Tanvir Azhar alias Kaku, aged 25 years, under section 302/109, P.P.C. For abetting the murder of Col. (Retd.) Ghulam Murtaza Khan, aged 60 years, by the Punjab Special Court for Speedy Trials at Faisalabad which by its judgment, dated 16th of March, 1988 acquitted Tanvir Azhar alias Kaku giving him the benefit of doubt but convicted the other two under section 302/34, P.P.C. And while Waqar Zaheer was sentenced to death, Muhammad Arshad was awarded the sentence of imprisonment for life. Both of them were further sentenced to pay a fine of Rs,20,000 each or in default each to suffer R.I. For a further period of four years. It was directed that half of the fine, on realization, be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. However, they were denied the benefit of the provisions of section 382- B, Cr.P.C. Both the convicts have filed an appeal against their conviction and sentence.
2. A revision petition has also been filed by the complainant namely Ghulam Bari for setting aside the acquittal of Tanvir Azhar, for enhancing the sentence awarded to Muhammad Arshad appellant and for awarding compensation to the heirs of the deceased in addition to the fine imposed on the appellants. This revision petition was admitted to the extent of enhancement of the sentence of fine and for awarding compensation to the heirs of the deceased.
3. This judgment shall dispose of the appeal as well as the revision petition.
4. The occurrence took place on 24th of December, 1986 at about 8-00 p.m. Outside the house of the deceased situate in D-Block, Peoples Colony, Faisalabad, 2-1/2 kilometres away from Police Station Peoples Colony, Faisalabad. It was reported at the police station on the same date at 10-00 p.m. By Ghulam Bari P.W.13, brother of the deceased, vide F.I.R. Exh.P.I. Which was recorded by Inspector Muhammad Masood Tariq P.W.14, the then S.H.O. Of the police station.
5. According to the Ghulam Bari P.W.13 in the F.I.R. Exh.P.I., he on 2412-1986 at 8-00 p.m. Was going to the house of the deceased, his brother, situate in D-Block, Peoples Colony, Faisalabad. When he reached near the house of Mr. Javid Niaz Manj, an Advocate, on the way, the deceased passed by him in his car. The deceased stopped his car in front of his house and as soon as he got down from his car, a shot was fired. From in front of the house of the deceased two unknown persons whom he could identify fled away on a motor-cycle. The deceased fell down unconscious on account of fire- arm injury on the back. Imran Murtaza, a son of the deceased and Abdul Khaliq, another relative came out of the house of the deceased. They took the deceased in an injured condition in a car to the hospital where he succumbed to the injury. It was further mentioned that the deceased had no enmity with anyone.
6. After recording the above F.I.R., Inspector Muhammad Masood Tariq P.W.14, proceeded to the District Headquarters Hospital and on reaching there prepared injury statement Exh.P.A. And inquest report Exh.PA./1 in respect of the deceased and despatched his dead body to the mortuary for post-mortem examination. On 25th of December, 1986, he inspected the place of occurrence and recovered from there, a crime empty P.10 and made it into a sealed parcel vide memo. Exh.P.K.
And a Chaddar P.9 vide memo. Exh.p.J. On the same day F.C. Khadim Hussain P.W.5 after the autopsy on the dead body of the deceased produced his last worn clothes P.1 to P.3 which he took into possession vide memo. Exh.P.E. And a sealed phial containing a bullet which he took into possession vide memo. Exh.P.F.
7. Dining the investigation of another criminal case, the Inspector arrested both the appellants on 1st of January, 1987 from D-Ground Peoples Colony, Faisalabad. At the time of the arrest, he recovered from Waqar Zaheer appellant pistol P.7 alongwith three cartridges P.8/1 to 3 vide memo.
Exh.P.H. And made the pistol into a sealed parcel and from Muhammaa Arshad appellant .7 mm rifle P.4 alongwith fifteen cartridges P.5/1 to 15 and a bandolier P.6 and took them into possession vide memo. Exh.P.G. Both the appellants were sent to the judicial lock-up on 2nd of January, 1987.
On 3rd of January, 1987, he applied to the District Magistrate vide Exh.P.C. For the identification parade of the appellants. In the parade which was held in the jail on 12th of January, 1987 under the supervision of Mr. Salahuddin Sumbal, Magistrate 1st Class, P.W.2, Ghulam Bar P.W.13, the complainant, identified both the appellants.
8. The crime empty P.10 recovered from the spot and the pistol P.7 recovered from Waqar Zaheer appellant were sent to the Forensic Science Laboratory which found vide report Exh.P.M. That the crime empty had been fired from the pistol.
9. Malik Mansha Khan P.W.10 and Saood Ahmad P.W.11 had appeared before Inspector Muhammad Masood Tariq on 26th of December, 1986 and 27th of December, 1986 respectively and stated that on the night of occurrence at about 8-00 p.m. When they were present in a Chowk in Peoples- Colony, they heard a firesbot and soon after saw both the appellants on a motor-cycle without a number coming from the side of the spot and speeding away.
10. As regards Tanvir Azhar, he was produced before the Inspector on 2nd of February, 1987 by All Haider Pasha P.W.12 according to whbm, Tanvir Azhar had confessed before him on 17th of January, 1987 that he had instigated the appellants to rob the deceased, his neighbour, who used to keep with him forty to fifty thousand rupees in the evening, instead of indulging in minor robberies.
11.`The site plan Exh.P.D. And its duplicate Exh.P.D./1 of the place of occurrence was got prepared from Aurangzeb, draftsman, P.W.3 on 25th of December, 1986.
12. On the completion of the investigation as above, the appellants and Tanvir Azhar were challaned; the appellants under section 302/34, P.P.C. And Tanvir Azhar under section 302/109, P.P.C.
13. Dr. Muhammad Ajmal, P.W.1, conducted autopsy on the dead body of the deceased on 25th of December, 1986 at 10-00 a.m. And observed the following injury:- (i)
A fire-arm wound 1 c.m. x 1 c.m. Circular with inverted margins, chest deep, situated on the back upper most part of right side of chest over scapular region directed almost horizontally from back to front, rupturing the chest wall, right scapula, right pleura just below the level of right first rib, right lung at its upper most part and big blood 'vessels at the right root of neck from where a bullet was recovered (inlet).
14. In the opinion of the Medical Officer, the death of the deceased had occurred due to shock and haemorrhage as a result of the above injury which was by fire-arm and anti-mortem and sufficient to cause death in the ordinary course of nature. The probable interval between injury and the death was within about, half an hour and between the death and the post-mortem examination about 13/14 hours. Exh.P.B. Is the post-mortem examination report and Exh.P.B./1 is the pictorial diagram showing the locale of the injury. According to the Medical Officer, after the autopsy he had handed over the last worn clothes of the deceased and a sealed phial containing a bullet to F.C.
Khadim Hussain.
15. The prosecution in support of its case examined fourteen witnesses including Ghulam Bari P.W.13, who lodged the F.I.R. And identified the appellants in the identification parade supervised by Mr. Salahuddin Sumbal, Magistrate 1st Class P.W.2, Malik Mansha Khan P.W.10 and Saood Ahmad P.W.11 who appeared as Wajtakar witnesses, Arshad Javed P.W.9 on whose pointation, the appellants were arrested and who attested the recovery memoranda Exhs.P.G. And P.H. In respect of the fire-arms recovered from them. Dr. Muhammad Ajmal P.W.1 who conducted the autopsy and Inspector Muhammad Masood Tariq P.W.14 who investigated the case.
16. The appellants pleaded not guilty to the charge framed against them under section 302/34, P.P.C. When examined under section 342, Cr.P.C. They denied the prosecution case and the recovery of fire-arms from them. They admitted that Ghulam Bari P.W.13 identified them in the identification parade but according to them, they had been shown to him by the police from 28th of December, 1986 to 31st of December, 1986 at the police station. Waqar Zaheer pleaded as under:- "I was involved falsely in the case. In fact I alongwith my co-accused Muhammad Arshad and one Sabir All had quarrelled with Muhammad Arshad Javed P.W. At Hurrianwala Chowk on 27-12-1986 and we had given him beating and he threatened us with dire consequences and we went to Our houses. At about 11-30 p.m. Masood Tariq Inspector alongwith Arshad Javed P.W. Raided my house and arrested me in the presence of Malik Abdul Hamid, Farooq, Prof. Amjad and Naveed Ashraf my neighbourers and on their enquiry the Inspector told them that I was involved in an accident case."
' The plea of Muhammad Arshad was identical. Tanvir Azhar had pleaded not guilty to the charge framed against him under section 302/109, P.P.C., and denied the prosecution case in his statement under section 342, Cr.P.C. The appellants examined themselves on oath under section 340, Cr.P.C.
They deposed to their innocence. Waqar Zaheer, appellant admitted in his cross-examination that in addition to the case of robbery registered against him and Muhammad Arshad at the instance of Arshad Javed P.W., they were involved in two other robbery cases. He further stated that he did not know any of the P.Ws. And had no enmity with them. Similar statement was made by Muhammad Arshad appellant.
17. In their defence, they examined Prof. Muhammad Amjad as D.W.1 according to whom, he was a neighbour of the father of Waqar Zaheer, appellant and that Waqar Zaheer was arrested from his house on 27th of December, 1986 at 11-15 p.m. Muhammad Ikram Sethi D.W.2 made a statement in respect of the arrest of Tanvir Azhar. He did not say anything about the appellants. Safdar Bokhari and Mehtabuddin Nishat were examined as D.W.3 and D.W.4 respectively. They are journalists and had no personal knowledge about the occurrence or the arrest of the appellants.
18. The learned trial Court after appraising the evidence found the appellants guilty of the murder of the deceased in furtherance of the common intention of them both. However, the prosecution case against Tanvir Azhar, their co-accused, was held dubious. Consequently, while Tanvir Azhar was acquitted, the appellants were convicted and sentenced as above.
19. Learned counsel for the appellants has assailed the conviction of the appellants on the grounds that the evidence adduced against them by the prosecution is not only insufficient but also unbelievable, the presence of the complainant near the spot at the time of occurrence was doubtful, the identification parade suffers from legal infirmities, the Wajtakar evidence does not exclude reasonable hypothesis of the innocence of the appellants and the recoveries effected in this case were contrived. Learned counsel for the complainant as well as State counsel have supported the conviction of the appellants arguing that the evidence against them not only is natural but also rings true and inspires confidence.
20. The foundations of the prosecution case were laid by Ghulam Bari who lodged the F.I.R. Exh.P.I.
And deposed to it as P.W.13. The contents of the F.I.R. Have been given in the ensuing part of this judgment. Learned counsel for the appellants has argued that this witness was grafted in the case subsequently for if he had seen the deceased hit by a bullet, he would not have described the locale of the injury erroneously. He had mentioned in the F.I.R. That the deceased had received the fire-arm injury on the back of left shoulder while, according to the medical evidence injury was 'on the back upper most part of right side of chest'. In the injury statement Exh.PA. And the inquest report Exh.PA./1 also, the Investigating Officer had originally written the seat of the injury as the left back side. It appears that the Inspector while recording the F.I.R. And preparing the injury statement and the inquest, report fumbled with the words and and committed the mistake most probably on account of poor vocabulary. Both the appellants stated in their statements recorded under section 340, Cr.P.C.
That no enmity existed between them and Ghulam Bari P.W. And in fart they did not even know him.
In these circusmtances, Ghulam Bari P.W. Had no motive to allow himself to be grafted in this case.
He had subsequently identified the appellants in the identification parade. If he had any motive against them, he would not have refrained from implicating them in the F.I.R. Therefore, the fact that he did not name the appellants in the F.I.R. Vouchsafes for his veracity rather than negating it.
21. The appellants were put to identification. In the identification parade held inside the jail on 12th of January, 1987 under the supervision of Mr. Salahuddin Sumbal, Magistrate 1st Class, P.W.2, Ghulam Bari P.W.13 identified them as those who murdered the deceased. The first objection to the identification parade raised by learned counsel for the appellants is that the appellants were shown to him by the police at the police station. In this connection much emphasis has been placed on the statement of Prof. Muhammad Amjad D.W.1 according to whom Waqar Zaheer, appellant was arrested from the house of his father on 27th of December, 1986 at about 11-15 p.m.
On the plea that he was required in an accident case. On the other hand, Inspector Muhammad Masood Tariq P.W.14 deposed that he arrested the appellants on 1st of January, 1987 from D- Ground of the Peoples Colony on the pointation of Arshad Javed P.W. At whose instance, a case of robbery had been registered against them on 28th of Decenkber, 1986 vide F.I.R. No, 655. Arshad Javed P.W.9 corroborated the Inspector. He stated that on 27th of December, 1986 at about 10-15 p.m. When he was closing his shop in Peoples Colony, three persons armed with fire-arms came there and they forcibly took away Rs,1,700 from his cash box and a golden ring and a wrist watch from his hand. He lodged an F.I.R. Of this occurrence at the police station on the same night. On 1st of January, 1987 when he was proceeding towards the police station in order to enquire about the progress of his case, he saw the same three culprits sitting in the ground behind the Radio Station, Faisalabad. Inspector Masood Tariq, Investigating Officer and Shah Muhammad, another Inspector met him at Chowk Kohinoor Mills and he informed them of the presence of the culprits. The Inspectors accompanied him to the ground and arrested all the three on his pointation. They included the appellants. Muhammad Arshad was having a .7 mm rifle P.4 alongwith 15 'cartridges P.5/1-15 and a bandolier P.6 and Waqar Zaheer was having a pistol P.7. Alongwith three cartridges P.8/1-3. Inspector Muhammad Masood Tariq took these articles into possession and made the pistol into a sealed parcel vide memo. Exh.P.G. And Exh.P.H. Which were signed by him. According to the appellants, on 27th of December, 1986 they alongwith one Sabir All had quarrelled with Arshad Javed P.W. And given him a beating and he had threatened them with dire consequences. They did not explain as to what was the bone of contention which led them to beat Arshad Javed P.W.
22. Besides, two Wajtakar witnesses namely Malik Mansha Khan P.W.10 and Saood Ahmad P.W.11 had already appeared before the Investigating Officer on 26th of December, 1986 and 27th of December, 1986 respectively and stated before him that at the time of occurrence immediately after the fire shot they had seen the appellants speeding away from the spot on a motor-cycle. In view of this evidence and the unsavory reputation of the appellants on account of their implication in other robbery cases as admitted by them in their cross-examination, the police could have arrested them in this case on 27th of December, 1986 instead of postponing their formal arrest till 1st of January, 1987. The Wajtakar witnesses are quite independent. They had absolutely no interest in the deceased nor any animus against the appellants. In these circumstances, the arrest of the appellants on 1st of January, 1987 appears to be more probable and reliable.
23. In these circumstances, the testimony of Arshad Javed P.W.9 and Inspector Muhammad Masood Tariq P.W.14 sounds more plausible than that of Prof. Muhammad Amjad D.W. 1 and falsifies the plea of the appellants that they were arrested on 27th of December, 1986 and shown to Ghulam Bari P.W. At the police station from 28th December, 1986 to 31st December, 1986, which merely smacks of an exasperated afterthought.
24. The other objections taken by learned counsel for the appellants in this behalf are that the appellants were not separately put to identification, the ratio of under-trials intermingled with the appellants was less than that laid down in the judgments of the superior Courts, the part played by the appellants in the commission of the offence was not described at the time of the identification and Ghulam Bari P.W. Had only a fleeting glimpse of the assailants and he was not in a position to identify them. He has cited Shabir Ahmad and 4 others v. The State 1972 P Cr. L J 310, Lal Pasand v.
The State PLD 1981 SC 142, Alim v. The State PLD 1967 SC 307, Khadim Hussain v. The State 1985 SCMR 721, Ghulam Rasul and 3 others v. The State 1988 SCMR 557 and Muhammad Aslam alias Auchhu and 5 others v. The State 1973 P Cr. L J 263.
25. Mr. Salahuddin Sumbal, Magistrate 1st Class, P.W.2 deposed that Ghulam Bari P.W. Correctly identified both the appellants stating that they were the persons who had murdered the deceased.
The same fact is mentioned in the identification report Exh.P.C./4 prepared by the Magistrate. It is true that the appellants were not put to identification parade separately and the number of under- trials mixed with them was fourteen. According to the Magistrate in his cross-examination, the appellants got joined fourteen under-trial prisoners of their own choice in the identification parade, There is no indication from the evidence that any prejudice was caused to the appellants by the joint identification and association of only fourteen under-trials. Moreover, Ghulam Bari P.W. Was not put any question in his cross-examination to test his ability to identify or show his fallibility in identifying the appellants except that they were shown to him at the police station from 28th to 31st of December, 1986. Therefore, we feel inclined to believe the identification.
26. Ghulam Bari P.W.13 and Arshad Javed P.W.9 corroborated Inspector Muhammad Masood Tariq P.W.14 as regards the recovery of crime empty P.10 from the spot on 25th December, 1986 and pistol P.7 from Waqar Zaheer appellant on 1st of January, 1987. There is nothing on record to doubt these recoveries. According to the report Exh.P.M, of the Forensic Science Laboratory the crime empty P.10 matched with the pistol P.7. Learned counsel for the appellants has argued that the report Exh.P.M.
Cannot be pressed into service for invoking the conviction of the appellants as the crime empty was sent to the Laboratory on 4th of January, 1987 after the recovery of the pistol on 1st of January, 1987. A positive report of the Forensic Science Laboratory in respect of the matching of a crime empty with a fire-arm is sometimes approached with suspicion when the empty is sent to the Laboratory after the recovery of the firearm. In this case, however, there is no justification for any such suspicion as no suggestion whatever was put to the Investigating Officer that he fabricated the crime empty nor there is any feature in the evidence to show the planting of the crime empty or the pistol.
27. Learned counsel for the appellants has also drawn our attention to the statements of the two journalists namely Safdar Bokhari D.W.3 and Mehtabuddin Nishat D.W.4. Their statements are merely hearsay and do not, therefore, carry any evidentiary value.
28. In view of the above discussion, we hold that the appellants were rightly convicted under section 302/34, P.P.C. For the murder of the deceased. We, therefore, maintain their conviction.
29. As regards the sentence, there is no cogent reason for enhancing the sentence of fine or directing the appellants to pay compensation to the heirs of the deceased in addition to the fine imposed on them. Therefore, the sentence is also maintained.
30. In the result, both the appeal as well as the criminal revision petition are dismissed.