1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed -against the judgment of the Peshawar High Court, in Criminal Appeal No. 141 of 1971 (Murder Reference No. 41 of 1971), dated the 3rd November 1971. By this judgment, the appeal was dismissed and the death sentence of the appellant was confirmed.
2. The appellant was tried, along with Mohammad Razaq alias Rangila .And Rustam Khan, under section 302/34, P. P. C. For the murder of Muhammad Shuaib, and under section 323/34, P. P. C. For causing injuries with blunt weapon to Alamzeb P. W., by the learned Sessions Judge, Hazara They were convicted by judgment dated the 15th July 1971. The appellant-- was sentenced to death and Muhammad Razaq alias Rangila and Rustam, Khan were sentenced to transportation for life. The three accused were acquitted of the charge under section 323/34, P. P. C.
3. The appellant and his co-accused Muhammad Razaq and Rustam Khan challenged their conviction in Criminal Appeal No 141 of 1971 (Murder Reference No. 41 of 1971) and a Division Bench of the Peshawar High Court, by judgment dated the 3rd November 1971, dismissed the appeal of the appellant and confirmed his death sentence. Muhammad Razaq alias Rangila and Rustam Khan were acquitted of the charge of murder. Their conviction and sentence of transportation for life was set aside. Muhammad. Razaq alias Rangila was convicted under section 323/34, P. P. C. And sentenced to one year's R. I. Rustam Khan accused was acquitted of the-- offence under section 323/34, P. P. C. The appellant challenged his con--viction in Petition for Special Leave to Appeal No. 86 of 1971 and leave was, granted on the 17th April 1972.
4. The appellant is a resident of village Pandak which is at the outskirts of Haripur. He was employed as an assembly worker in the Telephone Factory Haripur. The prosecution case is that on the 30th October 1970, at about. 9-30 p.m. Haider Zaman, his brother Muhammad Shuaib, Wazir Muhammad and Mian Saeed Haroon, came to Blue Moon Cinema, Haripur to see the picture in the last show which was to commence at 9-30 p.m. Ibrar appel--lant, Muhammad Razaq alias Rangila and Rustam Khan had also come to the said Cinema to see the second show. Muhammad Shuaib stood in queue for purchasing tickets outside the second class booking office window. P. W.
5. Alamzeb was also standing in the same queue behind Muhammad Shuaib. It appears that Muhammad Razaq alias Rangila who was clad in malashia clothes, also came to the booking office and instead of standing in the queue over reached Alamzeb. An altercation started between Alamzeb-- and Rangila. Muhammad Shuaib intervened to effect separation. Rangila, with the help of Ibrar and Rustam Khan, caught hold of Muhammad Shuaib, and took him out of the queue. Ibrar appellant drew out his pistol.. Alamzeb, out of fear, ran away. Muhammad Shuaib also ran away.
6. Muhammad Shuaib ran for life towards Darwesh Road. Ibrar, Rangila-- and Rustam Khan chased Muhammad Shuaib. P. Ws. Haider Zaman, Saeed Haroon and Wazir Muhammad also followed them. During the chase, Ibrar fired two shots in quick succession at Muhammad Shuaib who., fell down on the ground. The three accused then pressed his neck --Muhammad Shuaib deceased was lying prone. The three accused fled away when the above witnesses reached on the spot.
7. Muhammad Shuaib expired: on the spot.
8. Wazir Muhammad was left with the dead body. Haider Zaman and' Mian Saeed Haroon returned to the Blue Moon Cinema while going to the--police station for reporting the matter. They saw S. 1.
9. Akhtar A.I Khan near the Cinema. Haider Zanian lodged the report, Exh. P. A./1, at 10-10 p.m. With S. I.
10. Akhtar A.I Khan, which was recorded in the office of' the Blue Moon Cinema. The report, Exh. P. A./I, was sent to the Police Station, Haripur. P. W. Lai Khan, A. S. I., registered the formal F. I. R.. Exh. P. A. At 10-30 p.m.
11. The dead body of the deceased was lying at a distance of 50/60 pacesr from the Cinema. It was brought by the S. I. To the Cinema.. The prepared the injury sheet and inquest report of the deceased. Thereafter, the dead-body was sent to the mortuary. The S. I. Visited the spot again and picked up blood-stained earth, Exh. P. S., and sealed it into a parcel, vide Memo., Exh. P. B., in the presence of P. W. Ghulam Rabbani, Manager of the Cinema and Muhammad Miskeen. The S. I. Then took down the statements of Wazir Muhammad and Mian Saeed Haroon.
12. The searched the Cinema Hall and arrested Rustam Khan and Muhammad Razaq alias Rangila accused from there.' The appellant was not available at his house during the night. The S. I. Visited the spot on the 31st October 1970, at about 9 a.m. And recovered a missed round of '32 bore, Exh. P.
13. 4, vide Memo. Exh. P. F. In the presence of Ghulam Rabbani. The appellant was arrested in the presence of Farid Khan A. S. I., at about 6-16 p.m. From Sabzi Mandi, Haripur. His shalwar had stains of blood. It was taken into possession and sealed into a parcel vide Memo. Exh. P. E., in the presence of P. W. Miandad A. S. I. Ibrar appellant also had some injuries on his person. His injury-sheet, Exh. P.
14. W./4/E, was prepared by the S. I., Akhtar A.I Khan. He was sent for medical examination.
15. P. W. Alamzeb also had some injuries. The S. I., prepared his injury sheet, Exh. P. H., and sent him for medical examination.
16. The remand of the three accused was taken on the Ist November 1970, from the Court of Illaqa Magistrate. P. Ws. Haider Zaman and Mian Saeed Haroon and Wazir Muhammad had gone to Swat with the dead body for burial. They returned on the 4th November 1970. The S. I. Then submitted an application, Exh. P. K./A., for holding the identification parade of the three accused. P. W. Aftab Abmad Lodhi, Naib Tehsildar, Magistrate 3 Class, Haripur, held the identification parade in the Central Jail, Haripur on the 4th November 1970, vide Memo. Exh. P. K. During the identifica--petition parade, the three accused were mixed up with 15 under trial prisoners in Jail. The witnesses were kept out of jail premises at the time of identi--fication parade. They were called one by one for identification of the accused. The statement of the Magistrate shows that each time, the position ofrd the accused in the parade was changed. P. Ws. Haider Zaman, Saeed Haroon and Alamzeb and Wazir Muhammad correctly picked up the three accused in the parade as assailants of the deceased.
17. The S. I. Sent the parcel No. I containing clothes of the deceased parcel No. 2 containing shirt and shalwar of Rangila accused, parcel No. 3 containing shalwar of the appellant and parcel No. 4 containing the blood--stained earth to the Chemical Examiner. The report of the Chemical Examiner shows that all the exhibits in the parcels were stained with blood. The Serologist's report, Exh. P. Z., shows that all the exhibits were stained with human blood.
18. Post-mortem examination of the dead body of Muhammad Shuaib was, performed by Dr. Iftikhar A.I Khalji, on the 31st October 1970, at 9-30 a.m.
19. The following injuries were found on the person :-
(1) An entry wound on the back below the scapula, left side, --x --(firearm).
(2) An entry wound on the back two inches below injury No. 1, measuringx -- (firearm).
(3) An exit wound,-- ' x -- ' on the left side neck (firearm).
(4) An exit wound two inches below injury No- 3 (firearm).
(5) There was swelling and multiple on the neck front and side.
20. On internal examination, the doctor found thoracic walls and left side pleura injured and so were left lung, pericardium and heart and blood vessels were also injured. Stomach contained semi- digested food. Death, in the opinion of the doctor, was due to injury to left lung, heart and great vessels causing severe shock and hemorrhage, caused by fire-arm. He opined injuries Nos. 1 and 2 on the dead body of the deceased were two separate entrance wounds and were individually and collectively sufficient to cause death in the ordinary course of nature. The appellant was also examined by the doctor and the following injuries were found on his person:
(1) A linear abrasion on the bicep muscle of right arm 1 --X 1/8'.
(2) A linear abrasion on the left side of chest, 1 --x I /8'.
21. The injuries were simple in nature, caused by blunt weapon within 40 hours of his examination.
22. The prosecution case is supported by P. Ws. Haider Zaman, brother of deceased Muhammad Shuaib and Mian Haroon Steed. Wazir Muhammad, the other alleged eye-witness was not produced at the trial. P. W. Alamzeb deposed about the first incident at the booking office of the Cinema. He also deposed that Haider Zaman and his brother originally belonged to Bhai Killi (Swat), and Mian Saeed Haroon belonged to Darwesh Khel, District Swat. The deceased and the three accused were employees of Swat Textile Mills, Haripur. The eye-witnesses deposed that they had come to see the second show in the Blue Moon Cinema, Haripur. The second show was to commence at 9-30 p.m. They stated that Muhammad Shuaib was standing in queue outside the second class window for purchasing tickets for himself and his other companions. In the same queue Alamzeb was also standing on the front side. It appears that Muhammad Razaq alias Rangila clad in malishia clothes, over reached Alamzeb for purchasing tickets. Rangila and Alamzeb altercated over this. Muhammad Shuaib, who was standing near Alamzeb, intervened to separate Rangila and Alamzeb. Thereupon, Rangila and other accused, namely, Ibrar and Rustam caught hold of Muhammad Shuaib and took him out of the queue. The appellant drew out his pistol. The deceased ran towards Darwesh Road. He was chased by the appellant and two other acquitted accused persons. P. Ws. Haider Zaman and Saeed Haroon and Wazir Muhammad followed the accused. The appellant fired two shots in quick succession. Muhammad Shuaib was hit and he fell down injured. The appellant and the other acquitted accused then pressed the neck of Muhammad Shuaib injured who was lying on the ground. The appellant, along with his companions, then ran away and the deceased Muhammad Shuaib died on the spot.
23. The appellant in his examination under section 342, Cr. P. C. Has denied the charges in respect of the injuries on his person. He stated that he sustained them in the course of ordinary zamindara work. He admitted that the shalwar, Exh. P. 3, belongs to him and the blood of his own body besmeared it. As regards the identification parade held by the Magistrate on the 4th November 1970, at the Central Jail, Haripur, he said that it was a fake identification as he was shown to the prosecution witnesses at the police station and elsewhere long before the identification parade was held.
24. Dr. Abdur Rahim, learned counsel for the appellant has contended that almost all the prosecution witnesses are highly interested persons. They being the co-villagers and colleagues of the deceased in the Swat Textile Mills, Haripur, the conviction of the appellant on such evidence is not - warranted by law. He further contended that non-production of Wazir Muhammad who was mentioned in the F. I. R. Raises presumption that he was not present at the scene of occurrence. The contention of the learned counsel has not impressed us. There is no enmity between the appellant and the eye-witnesses. In the present case, one of the eye-witnesses Mian Steed Haroon is not related to the deceased. It is true that they are co- 14 villagers and co-workers in the Textile Mills.
25. That does not mean that they would falsely implicate the appellant. In my opinion, the High Court has, rightly relied on the ocular evidence and has rightly come to the conclusion that the appellant drew out the pistol and shot at the deceased.
26. The learned counsel for the appellant has also contended that the High Court has ignored the fact that the identification parade conducted on the 4th November 1970, after 4 days of occurrence, was a fake one particularly in the circumstances when the two co-accused of the appellant are alleged to have been arrested from the Cinema Hall on the same night of the occurrence where according to the prosecution own story, the witnesses were present. In this connection, the learned counsel has referred to the state--ment of P. W. 2 Ghulam Rabbani, the Manager of the Blue Moon Cinema.
27. This witness stated that "the accused were also amongst those 10/12 persona whom the S. I. Had taken to the police station in the company of the com--plainant party." Even if this statement is accepted as correct it would affect the identification parade of Muhammad Razaq and Rustam Khan. These two persons have been acquitted. The appellant was arrested on the next day and he was not amongst those persons who were taken to the police station in the company of the complainant party. Therefore, there was no occasion for the eye-witnesses to see the appellant before the identification parade took place. The appellant was seen only at the time of occurrence and was picked out in the identification parade by all the eye-witnesses. The statement of P. W. 1 Aftab Ahmad Lodhi, Magistrate 3rd Class, leaves no doubt in my mind that the identification parade was proper and no exception can be taken to it. The appellant and the other accused persons did not protest at the time of the identification parade that they have been shown to the witnesses. I have gone through, with the aid of the learned counsel for the appellant, the record of the identification parade. In my opinion, the identification parade was not fake. It was held properly and the appellant ,vas picked up by the three witnesses.
28. It was next urged that the appellant was entitled to the lesser penalty and the sentence should be reduced from death to transportation. The learned counsel for the appellant contended that the appellant was a young man and there must have been something which excited him. According to him, Muhammad Shuaib was killed as a result of sudden first and there was no enmity between the parties. The contention of the learned, counsel has not impressed me. It is proved beyond doubt that the appellant Ibrar had drawn his pistol out and shot the deceased with two shots which proved fatal. The killing of the deceased was deliberate and there are no extenuating circumstances. I am, therefore, satisfied that the death sentence in the present case was proper and legal and no interference should be made with it.
29. It was however, contended by the learned counsel for the appellant that there was a general amnesty and the President of Pakistan had commuted all the death sentences awarded by the ordinary criminal Courts to transpor--tation for life. In this connection, he has referred to a letter of the Secretary to Government of N. W: F. P., Home, Tribal Areas and Local Government Department No. S. O. Judi/(HD)19-168/71, dated the 23rd December 1971. According to the learned counsel, its benefit could not be reaped by the appellant as his appeal was pending in this Court. From the above letter, it is apparent that the President of Pakistan has commuted all the death sentences awarded by the ordinary criminal Courts to transportation for life. The contention of the learned counsel that the appellant could not reap the benefit of this concession is well founded. It is clear that if the appellant had not filed the appeal he would have got the benefit of the general amnesty.
30. In my opinion, this is a good ground to commute the death sentence of the appellant to transportation for life. Accordingly, I will commute his death sentence to transportation for life.
31. MUHAMMAD YAQUB ALI, J.-I agree.
32. SALAHUDDIN AHMAD, J. -I agree.