TANZIL-UR-RAHMAN, C.J.--- I had the advantage of going through the judgment proposed to be delivered by my learned brother, Mr. Justice Ibadat Yar Khan, J. In so far as the result of the appeals/suo motu notices is concerned, I am in full agreement with him, but I would like to state my own reasons for the same.
2. The case of the prosecution is that on 3rd/4th of Ramazan, corresponding to 24th/25th of May, 1985, the deceased Shadi Khan, a taxi-driver by profession, was present at the Old Taxi Stand, in Quetta. As usual, his vehicle i.e. Datsun (Art.P/13-A), bearing Registration No.181-939-82-Karachi-83, was with him for being hired. As it happened, all the three convict-appellants contacted the said deceased and engaged him for taking them to Gulistan Town, via Ghaza Band. At the time, two other tax-drivers, namely, Amanullah (P.W.31 and Muhammad Wazir (P.W.4) were also sitting with the deceased Shadi Khan. So in their presence the three appellants engaged Shadi Khan and left in his vehicle, towards Gulistan.
3. Later on, the same day, one Muhammad Zaman (P.W.2) had seen Shadi Khan, while the three appellants were sitting in his vehicle, at the Customs Barrier, where the vehicles coming from either side, normally stop. As the witness knew Shadi Khan, the two exchanged usual pleasantries and had some talk ---Shadi Khan told the witness that he was taking his passengers to Gulistan, via Ghaza Band.
4. On the night of 24-5-1985, when Mr. Saifullah Khan, Naib-Tehsildar (P.W.6) and Sh. Ghulam Sadiq, Reader to the Assistant Commissioner, Lower Zhob (P.W.8), and some others were on patrol, on Quetta-Zhob Road, some 300/350 miles away from Quetta, following complaints of highway robberies and of waylaying, noticed a vehicle approaching from Quetta side, on an unusual speed.
It ignored their signal to stop and this roused the suspicion of the patrol party, as to the bona fides of the said vehicle, which was duly pursued and soon overtaken. The three convict-appellants were found to be the occupants of the vehicle. They were asked a few simple questions as to wherefrom had they come and where were they heading to, but they only gave prevaricative answers and as such, they were detained. The next day (25-5-1985) they were made over to the S.H.O. Police Station Zhob (Muhammad Sabir P.W.131, alongwith the vehicle. The S.H.O. Has explained that the three convict-appellants were arrested by him, on reasonable suspicion of their being concerned in a cognizable offence and that the vehicle in their possession was seized, as being suspected to be stolen one, (under section 54, Cr.P.C. And section 550, Cr.P.C. Respectively). He prepared seizure memo. In respect of the said vehicle, which is Exh.P.13-B and the vehicle is Art.P/13-A. Personal search of the said suspects was also carried out and from possession of Haji Khan, besides his own identity card, the Registration Book in respect of the vehicle in question (Art.P/13-B), the deceased Shadi Khan's cheque book (Art.P-13-C) and his driving licence (Art.P/13-E) were recovered.
5. It was on 1-6-1985, that one Muhammad Akram (P.W.5) reported at the Levies Thana, Qila Abdullah that a deadbody in burnt condition was lying in a Nullah, in the jungle, by the side of Ghaza Band Road. The deadbody was subsequently identified by one Zakum (P.W.1), to be that of his deceased brother, Shadi Khan, who had been missing with his vehicle.
6. The appellants were put on trial before the learned Additional Sessions Judge-1, Quetta, on the charge,, which specifically mentioned that all the three accused-appellants had `committed murder of driver of pick-up namely Shadi Khan and thereafter took away his pick-up' and thus, they committed the offence of Harabah, i.e. Highway robbery coupled with murder.
7. At the trial, while the prosecution examined 15 witnesses, accused Din Muhammad alone, produced a solitary defence witness namely, Muhammad Jan, and the said witness just made mention of good character of the accused.
8. All the three appellants made their statements on oath, in terms of section 340(2), Cr.P.C. It is noteworthy that according to their own assertion, accused Haji Khan and Gul Muhammad were together proceeding to Zhob, but they were arrested five miles short of their destination. Similarly, accused Din Muhammad's own plea is that while he was proceeding to Peshawar, via Zhob, he had been arrested in Zhob.
9. The trial resulted in the conviction of all the three accused-appellants for offence of Harabah liable to Tazir, under section 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, and each of them was sentenced to life imprisonment with fine of Rs.5,000 and in default to undergo further imprisonment of one year's R.I., each vide judgment dated 21-5-1990, impugned before us in the appeals. Nevertheless, this Court issued notice to the appellants to show cause, as to why the sentence awarded to them by the trial Court, may not be enhanced. This notice was served on each appellant, in the Central Jail, Machh, on 1-5-1991, and it is in this context too that merits of the case are to be considered and determined.
10. First of all the evidence requires examination so as to connect the convict-appellants with the offence of Harabah coupled with murder. But before doing it let me quote the relevant verse of the Holy Qur'an on which the provision of law is based. It is stated in the Holy Qur'an: -- The punishment of those Who were war against God And His Apostle, and strive With might and main For mischief through the land Is: execution, or crucifixion Or the cutting of hands And feet from opposite sides, Or exile from the land; That is their disgrace A heavy punishment is theirs (Sura Ma---ida --- V: 36)
11. For the double crime of treason against the State, combined with treason against God, as shown by overt crimes, four alternative punishments are mentioned, any one of which is to be applied according to circumstances, viz., execution (cutting of head), crucifixion, maiming, or exile. These were features of the Criminal Law then and for centuries afterwards, except that tortures such as `hanging, drawing, and quartering' in English Law, and piercing of eyes and leaving the unfortunate victim exposed to a tropical sun, which was practised in Arabia, and all such tortures were abolished. (738, A. Yusuf Ali Vo1.I).
12. I would now like " to quote some extracts from the commentary of the above Verse 36 of Sura Al- Ma'ida from `Qur'an -- The Fundamental Law of Human Life', by Syed Anwer Ali, published by Hamdard Foundation Press, Pakistan (Vol.5, pages 317-24):-- "According to Verse 36, the punishment of those who were war against Allah and His Messenger, and strive to make mischief in the land, is that they should be killed or hanged on gallows, crucified or their hands and feet should be cut of on opposite sides or they should be driven to exile from the land. This is the disgrace in this World and in the Hereafter they would have to suffer more grievous punishment:"
"The words i.e. Those who were war against Allah and His Messenger and strive to make mischief in the land, have been interpreted by the learned commentators to mean and include not only those opponents of Islam who waged wars against the Muslims, and made mischief in the land, and forcibly took lives and properties of innocent Muslims, but in their general application they also include all dacoits and murderers who create terror and disturb peace and order in the society.
According to the learned jurists of Islam, the word includes (i) those who attack the people with guns, swords and other arms, (2) those who commit dacoity and murder inside or outside the city, and (3) those who attack and commit dacoity and murder openly. For all these persons four types of punishments have been prescribed in Verse 36 i.e. (1) they should be killed, (2) they should be crucified (hanged), (3) their hands and feet be cut of on opposite sides or (4) they should be exiled from the land.
13. The learned jurists are of the view that the punishment should be according to the gravity of the offence and in the first three punishments the use of superlative degree itself implies severity of the punishment. Further, since these punishments have been specifically provided, there is no option for the legal heirs of the deceased to forgive the culprit by accepting any ransom or without ransom. Further, if the offence has been committed by a group of persons, and even if the offence is proved only against anyone or some of them, the entire group should be punished. According to Saeed Bin Mussayyab, Ata, Dawood, Hassan Basri, Zahaak, Nakh'ee, Mujtahid, and Imam Maalik, the word meaning `or', used in Verse 36,:gives the discretion to the Judge to punish the culprits with all or any of these four punishments according to the gravity, of the offence committed by them.
Imam Abu Hanifa, Shaafa'ee, Ahmad Bin Hambal and many companions of the Holy Prophet (p.b.u.h.) and Ta'been are, however, of the view that the word meaning `or' has been used for division of the verse, and according to them the different punishments are relative to different circumstances of the offences committed by the culprits. This is also supported by a Tradition of the Holy Prophet Muhammad (peace be upon him), on the authority of Hazrat Ibne Abbas, in which it is said that the Holy Prophet (p.b.u.h.) made an agreement with Abu Darda Aslami, but the latter committed breach of agreement and attacked some persons who were coming to Madina to embrace Islam. It was on that occasion that the Angel Gabrael brought the command of Allah in which it was said that one who has committed the murder and also the robbery, should be hanged, and the one who has simply committed the murder, but not the robbery, should be killed, and the one who has committed robbery, but not murder, his hand and foot on the opposite side should be cut of; and the one who has not done any deed of offence, but simply terrorised the people, he should be exiled from the land, and of the people who have murdered any Muslim or non-Muslim of the resident of Darul Islam, but not robbed, all of them should be killed; and if they have also committed robbery, then they should be crucified, and if they have only committed robbery, then their hands and feet should be cut of from the opposite sides, and if they have not committed either of the offences, but simply co-operated with them, they should be exiled from the land which also implies imprisonment. If the offence committed also involves killing of women or abduction, then death can be inflicted for any of these offences including the offences of rape or adultery. If there is only causing of wound, then in that case the punishment of retaliation may be enforced (Tafseer-e-Mazhari).
14. Lastly, this Verse says that this punishment is, in fact, a disgrace for the culprits in this world and in the Hereafter they shall hive grievous punishment
15. As Abdul Majid Daryabadi writes: Lest some of these penalties may appear `Barbarous' to -some hypersensitive Western reader, let him cast a glance on `drawing and quartering----a penalty of the English Criminal Code, maintained as late as the 18th century, inflicted on those found guilty of high treason touching the king's person or Government---the person committed was usually drawn on a sledge to the place of execution; there he was hung by the neck from a scaffold, being cut down and disembowelled while still alive; his head then was cut from his body and his corpse divided into four quarters. Many were the Catholics of England and Ireland----since the profession of their faith was declared high treason by law---who suffered this death. `In the reign of Henry III and Edward I there is abundant evidence that death was the common punishment for felony; and this continued to be the law of the land as to treason and as to all felonies, except petty larceny, down to the year 1826'
(Stepehen's History of the Criminal Law of England, Vol. I p.458). In contemporary English Law, robbery is larceny with violence; and the guilty is liable to final acritude for life; and in addition, if a male, to be once privately whipped. The elements of the offence are essentially the same under American Law (Encyclopaedia Britannica, Vol. XIX, p.346) Majid, ibid, 339).
16. It now seems advantageous to refer to the next Verse 37 of Surah V, Al-- Ma'idahm, which states about the principle of repentance by dacoits and robbers before they are caught hold of. The verse reads:--- (Except those who repent before you overpower them.
So know that Allah is Forgiving, Merciful).
There is, however, an exception in respect of those persons who repent before they are caught. This exception is, however, in respect of punishment provided by the Shariah, but this will not exempt the culprits from the law of the land. The'' exemption granted by Qur'an is, however, in order to provide a chance to the culprits to mend their ways and repent before they are caught in connection with any of these offences. It is said that one Ali Asadi with a group of persons used to commit dacoity of the caravans passing by Madina. One day he heard a reciter of the Holy Qur'an reciting the verse. Hearing it, he went to the reciter and requested him to repeat it, and it was accordingly repeated. He then put his sword in the sheath, gave up dacoity, and went to Madina.
Hazrat Abu Harairah took him to the Governor of Madina and recited the above-mentioned verse of the Holy Qur'an and said now you cannot punish him'. Similarly in the days of Hazrat Ali one Harisa Bin Babr rebelled against Muslims and started dacoity but thereafter he repented and presented himself to Hazrat Ali and he was not punished. It may, however, be noted that by mere granting of exemption from the punishment of Shariah, the rights and obligations of the fellow- beings violated are not forgiven. Thus, in respect of murder, blood-wit shall have to be paid, and in case of theft the things stolen or their cost thereof should be paid to the owner of it. (Ma'ariful Qur'an Vol. 111, p.120-124; Also see Roohul Ma'anni as quoted by Ziaul Qur'an, ibid, 73) (as quoted by Syed Anwar Ali ibid, 323-24).
17. The subject of highway robbery and its punishment has been discussed elaborately by me in my book `Islami Qawaneen Hudood, Qisas, Diyat and Ta'zirat' published by Qanuni Kutub Khana, Lahore, II Edition, the rely extracts from pages 74 -- 81 are as under:--
18. Now reverting to the examination or assessment of the evidence on record it appears that:-- , (i)The two fellow-drivers sitting in the taxi, of the deceased Shadi Khan, i.e. P.W.3, Amanullah and P.W.4, Muhammad Wazir, in whose presence, the three convicts had engaged Shadi Khan, for taking them to Gulistan, via Ghaza Band, are both natural witnesses and their testimony is confidence inspiring. The evidence of these two witnesses has remained altogether unrebutted.
These two witnesses duly identified each convict at the identification test parade held during investigation, and also in Court, during the trial.
(ii)the three convicts were seen, sometime after, on the way, at the Customs Barrier, few miles away from Quetta, by a wayfarer, Muhammad Zaman (P.W.2), who knew Shadi Khan, and had some talk with him. This witness had seen the three convicts in the vehicle of Shadi Khan, at that time and there is every reason to believe him as to the identity of the convicts who were taking Shadi Khan towards Ghaza Band.
(i.e)All the three convicts were found without any loss of time in joint --possession of the deceased Shadi Khan's vehicle, on 24-5-1985, some 300/350 miles away from Quetta near Zhob. Their failure to give a satisfactory account of themselves, had led to their arrest by the Naib---Tehsildar, Mr. Saifullah Khan (P.W.6) and Sh. Ghulam Sadiq, Reader to Assistant Commissioner, Lower Zhob (P.W.8). The testimony of these two natural witnesses also has remained unrebutted.
(iv)The next day (25-5-1985), the three convicts and the vehicle in their possession, were handed over to S.H.O. Police Station Zhob. He, too, is a most natural witness as he had no option but to take over the custody of the three men and the vehicle, which was with them. He did, in fact, prepare the seizure memos. In respect of the stolen vehicle and other incriminating articles anti did the excellent job by giving were publicity as to the suspects and the vehicle, suspected to be stolen property.
(v)The convicts have not denied the factum of their arrest as asserted by the prosecution. Their explanation rather supports the prosecution. Haji Khan and Gul Muhammad say that they were going to Zhob when they were arrested near Zhob. Din Muhammad says that his destination was Peshawar, when on his way there he was taken into custody in Zhob.
What is material and most important is that none of them has claimed that he was arrested on a different date than that of the other(s). Thus the assertion of the prosecution that all the three convicts were arrested when they were found in the stolen vehicle is true and has been rightly believed by the learned trial Judge and so is believed by me.
(vi)In the circumstances of the case, onus heavily lay on the convicts to explain, how far had they and the deceased remained together; when and where did they leave him. There are two particulars on which the convicts must have cleared their position, firstly, as to why they did not go to Gulistan which was the destination they had mentioned to Shadi Khan, and secondly how and why they retained possession of his vehicle while separating from him. Their failure to give satisfactory account of themselves in this behalf, burdens them with responsibility for the commission of the highway robbery coupled with murder.
(vii) In- the facts and- circumstances of the case, Article 129 of Qanun-e-Shahadat Order, 1984, read with illustration (a) is fully attracted. Considering the common course of natural events which clearly show that the hired vehicle was found in possession of the three putative passengers, without its driver, far beyond the appointed destination, leads me to an irresistible conclusion that the vehicle was robbed and its f possession was acquired forcibly, only after rendering its driver helpless, possibly, by doing him to death. This conclusion or to use a mild expression, i.e. Strong presumption can be displaced only if the convicts/appellants satisfactorily account for their possession of the vehicle. Here, they have absolutely no explanation to offer. The three convicts, mere denial of the charge or bald statements of the convicts themselves, would not stand them in good stead, without any evidence in support. But no such defence evidence has been produced at all.
(viii) An innocent person feels no difficulty in proving his innocence and, in any event, can create reasonable doubt invariably, as to the correctness of the charge against him. In this case, the act of the convicts was so ghastly and their conduct so barbaric, that despite time-lag of over four years of their arrest and eventual pronouncement of judicial verdict against all the three, no relative, friend or sympathiser came forward to put in a word as to the innocence or false involvement, of any of them.
19. Clearly, it is also of murder for the purpose of depriving Shadi Khan, of his vehicle, in furtherance of common intention of all the three convicts. They had contacted Shadi Khan at the Old Taxi Stand in Quetta, together and had engaged him for taking them to Gulistan, not by the ordinary route, but via Ghaza Band, where, there is stated to situate a jungle near the road. At such desolate place, it was not difficult for the three convicts to overpower Shadi Khan and put him to death and to dispose of his deadbody, so that it goes without being noticed or detected. I am convinced that, the appellants killed Shadi Khan and burnt his deadbody with the intention of rendering it unidentifiable, so that they could take away the vehicle for good, (but subsequent events foiled their scheme) when the convicts, the very second day (25-5-1985) were arrested near Zhob, the said vehicle was found in their joint possession and soon after, the deadbody was recovered and identified by his brother.
20. It may be stated that the existence of formation of a common intention, within the meaning of section 34, P.P.C. As also applicable to the said Ordinance is generally not susceptible to direct proof and has to be inferred from the attending circumstances of each case. Reference in this behalf, may be made to the following case-law, as relied on by the learned Advocate-General, Baluchistan:--
(1) Shamsher and another v. The State 1973 SCMR 69
(2) Khushi Muhammad v. The State 1969 SCMR 599.
(3) Mst. Hamida Bano v. Ashiq Hussain PLD 1003 SC 109
(4) Bahar v. The Crown PLD 1954 FC 77
21. In the first cited case Shamsher and another v. The State 1973.8 C M R 69 on the point of common intention it was observed that:-- "The existence of formation of a common intention within the meaning of section 34 of the Pakistan Penal Code is not generally susceptible to direct proof, and has to be inferred from the attending circumstances of the case."
22. In the second cited case Khushi Muhammad v. The State 1969 SCMR 599 under sections 34 and 302, it was observed that "intention is mental condition and has often to be gathered from the facts and the surrounding circumstances of the case. One cannot always expect direct evidence to be forthcoming on a matter of this nature".
23. In the third cited case, Mst. Hamida Bano v. Ashiq Hussain PLD 1963 SC 109 it was inter alia observed that it (joint action) may be performed on the spur of the moment, it would fall more correctly within the rule of constructive liability under section 34, P.P.C.
24. In the fourth cited case, Bahar v. The Crown PLD 1954 FC 77 it was observed that:-- "In order to determine the intention of a person, it is very seldom that one can expect to find positive affirmative evidence; generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances---"
It was thus held that:-- "On the facts and circumstances set out above, we are of the opinion that the appellant participated in the intention of Muhammad Umar of committing murder in the course of the dacoity, if needed, and that consequently section 34 of the Penal Code has been rightly applied to the case of the appellant. We see no reason to interfere with the decision of the Courts below. The appeal is according dismissed."
25. From the foregoing, it will be seen that the three convicts had common intention, and it was in furtherance of their common intention that the crime was committed. Adequate convincing ocular evidence exists on record that, before, and after, the death of Shadi Khan, the three convicts were seen sitting in his vehicle. When they left Quetta, Shadi Khan himself was driving his vehicle and the convicts were sitting with him as his passengers, and had engaged him for being taken to Gulistan.
Shortly thereafter, when the convicts were arrested, with the vehicle in question, Shadi Khan was not with them. In such a situation, they only, could explain as to the whereabouts of Shadi Khan. As Shadi Khan was found murdered and his dead body badly burnt in a short span of time alter he had left Quetta with the convicts they could possibly escape culpability for the grisly crime, by clearing their position through a plausible explanation as to how they acquired possession of Shadi Khan's vehicle contrary to the terms of agreement under which they had engaged him. No such explanation having been offered, heavy penal liability would squarely rest on all the three convicts.
In this connection, the following decisions of the Hon'ble Supreme Court seem to be relevant, as referred to by the learned Advocate-General Baluchistan:-- (1)Allah Ditta v. The Crown 1969 SCMR 558.
(2)Abdus Samad v. The State PLD 1964 SC 167.
(3)Bilhnoria alias Muhammad Hussain v. The State PLD 1958 SC (Pak.) 313.
(4)Allahditto v. The State 1968 SCMR 378.
(5)The State v. Mansur PLD 1966 SC 664.
(6)Rehmat v. The State PLD 1977 SC 515.
26.In the first cited case, Allah Ditta v. The Crown 1969 SC M R558 the deceased was last seen alive in the company, of accused Allah Ditta. Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company, was held sufficient to sustain the findings of the Courts below. The conviction under section 302, P.P.C. Was thus upheld and the appeal was dismissed.
27. In the second cited case, Abdus Samad v. The State PLD 1964 SC 167 it was observed that:-- " accepting the fact that the remains were found from a very lonely place where no person would ordinarily go to such far clues to the child missing from the town for miles away a reason has to be found why the police went to that place at all, and no other reason is offered than that the accused himself led them to that place. It is impossible to trace this result to the alleged intrigue on the part of Ghulam Mustafawhich itself is far from being established by the mere allegation of the accused regarding his liaison or by the unsigned and unapproved letters which he produced. It is also clear that the two Police Officers and the Mushir Muhammad Hussain who appeared and gave evidence before the trial Court were believed by the trial Judge and the assessors. That opinion is entitled to great weight."
It was further observed that:-- there can be no doubt that the child was last seen alive in the company of the accused, on the morning of the 9th August, in Hyderabad City, and that he had exclusive knowledge of the place where its remains were eventually found. He gave no explanation as to how the child met its death.
The fact that the discovery of the crime was delayed has led to the disappearance of a good deal of evidence which might have been available if the disappearance of the child had been reported immediately. One result is that the manner of child's death is a mystery. If the child did not die while being raped but was strangled through death, for no season whatsoever, because might perhaps be found in some psychopathic irresponsibility in the accused, for he bore no grudge towards anyone connected with the child, and the child herself could have done him no injury.
However, that may be, the two circumstances mentioned above were, in my opinion, sufficient to establish the charges of kidnapping and murder against the accused, being sufficient to exclude all possibility of his being innocent of the death of the child. I would, therefore, hold that he was rightly convicted, and would dismiss this appeal."
28. In the third cited case Billmoria alias Muhammad Hussain v. The State PLD 1958 SC (Pak.) 313 it was observed that:-- "Thus, practically everything which was robbed from the murdered man was recovered from Billmoria's possession on the fourth day following the discovery of the crime. This is a very strong circumstance favouring the belief that he was the person who removed these things, following the murder, and the natural inference is that he was directly concerned in the murder when it is also found that he had concealed, alongwith some of the deceased's goods, a weapon of the exact type with which the murder was in all probability committed, the inference becomes almost irresistible on the basis of a complete chain of circumstances, that he himself committed the crime."
It was further observed that:-- "The chain of circumstances in this case is so strong that in order to create a reasonable doubt regarding the natural conclusion that the murder was committed by Billmoria, it was necessary for him to establish exculpatory circumstances of a concrete kind, and in the absence of either proof or suggestion by him that he received the goods from another, in a manner unconnected with the murder, it is difficult to conceive of any circumstance which might have the effect of creating such a doubt, except perhaps an allegation supported by reliable proof that at the time when the murder was committed, Billmoria was in some other place. There is no such allegation, and as has been seen, Billmoria led no evidence in his defence at the trial."
29. In the fourth cited case Allahditto v. The State 1968 SCMR 378, there was no direct evidence for murder. The charge, nevertheless, was held established on circumstantial evidence that, (I) the deceased was last seen with accused; (11) and recovery of articles of the deceased was made at the instance of the accused and the clothes secured from person of the accused were stained with blood. The appeal was thus dismissed. In the instant case the vehicle alongwith articles of the deceased were recovered from possession of the three convicts with whom the deceased Shadi Khan was last seen.
30. In the fifth cited case, The State v. Manzur Ahmad and Muhammad Ismail Khan v. Manzur Ahmad and The State PLD 1966 SC 664 it was observed that:-- "It is no doubt true that in case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that the `processes of inference and deduction is essentially involved -- frequently of a delicate and perplexing character ---liable to numerous causes of fallacy'. Mere suspicion will not be sufficient to justify conviction.
Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and `incapable of explanation upon any other reasonable hypothesis than that of his guilt'. It is also equally well-settled that the circumstances sought to be relied upon must have been established beyond all doubt, but this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured upon by pre-conceived notions. But once the circumstances have been found to be so established they may well-furnish a better basis for decision than any other kind of evidence. As Hewart, I., C.J.
Observed in the case of Percival Leonard Taylor, James Weaver and George Thomas Donovan (1) `it is no derogation of evidence to say that it is circumstantial."
31. In. The last cited case Rehmat v. The State PLD 1977 SC 515 on the point of last seen evidence it was observed that:-- "On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder.
Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."
It is apparent on the face of evidence that the three convicts were together with the deceased and last seen by the witnesses, P.Ws.3 and 4 at the time of hiring taxi and P.W.2 at the check post. The three accused were found in possession of the said taxi the same night with a number of personal articles belonging to the deceased. They could offer no plausible explanation.
32. It may, therefore, be stated that once it is found that the three convicts had common intention to commit the crime, it is immaterial as to what part was played by whom. Section 34, P.P.C. Clearly lays down that when a crime is committed in furtherance of common intention of several persons, each one of such persons would be liable for the offence, as if he alone, had perpetrated it. The very purpose of his provision of law is to create joint liability for those who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain, the exact part of each one of several convicts/appellants acting with common intention and object. In such cases, the moral culpability of each is clear and identical and once a criminal act is done with common intention by several persons, each one of them would be criminally liable as if he alone, had done the act. If it were otherwise, and Courts were required to apportion each man's liability according to his overt act, conviction in almost every case of organized crime would become most difficult and, perhaps, an impossibility and criminal minded elements in society would feel greatly encouraged to join hands in the concerted criminal acts. Therefore, the law as to vicarious liability is that those who stand together must fall together. None of those who make commission of crime, a common cause, can be allowed to raise plea that he was merely present at the place of crime or that the part assigned to him was insignificant. The under-mentioned decisions of the Hon'ble Supreme Court will, perhaps, be sufficient to illustrate the point:--
(1) Haji and others v. The State 1976 SCMR 20.
(2) Wali Muhammad and another v. The State PLD 1982 SC 55.
(3) Ghulam Qadir v The State PLD 1960 SC (Pak.) 254.
33. In the first case 1976 SCMR 20 it was observed that an overt act, beyond accused's physical presence with relevant knowledge, is not essential for the purpose of conviction for vicarious criminal liability,
34. In the second case PLD 1982 SC 55 it was observed that the question whether particular accused shared the common intention with his co-accused will depend upon the facts of each case and in the given set of circumstances, may by his mere presence, help in the commission of such acts.
35. In the third case PLD 1960 SC (Pak.) 254, in a case of abduction and murder of a girl it was observed that when it is found that an act of abduction by force was actually accompanished by two of the three men who went inside the courtyard to do it, while the third man stood outside the courtyard to give such assistance as might be necessary for accomplishing the abduction, even though he had no intention of joining in any crime more serious than abduction, the question before the High Court really was--do these facts constitute Muqarrab Shah a participant in the act of abduction? We entertain no doubt that the act was a joint act intended to be accomplished by the three men in cooperation with each other, and we equally feel no hesitation in saying that even though Muqarrab Shah merely stood by the outer wall, from where he watched everything and did only as much as was required from him up to the time the first knife blow was struck, he was a person engaged in the performance of the act of abduction, within the meaning of section 34, P.P.C.
36. In_ the instant case the convicts, with motive to rob the vehicle, played deception on Shadi Khan, by pretending to be his passengers, for going to Gulistan via Ghaza Band. Soon thereafter, they killed him at the jungle on the roadside and burnt his deadbody. The learned trial Court has carefully considered the prosecution evidence. It has correctly come to a finding of guilt against all the three appellants. However, the learned trial Court omitted to record sentence for the offence of murder of Shadi Khan, committed in furtherance of common intention of all the three convicts.
However, this Court, in terms of section 20 read with proviso to section 24 of the Ordinance is fully competent to consider this aspect of the case as notice for enhancement of sentence has already been served on the convicts in this behalf. ""-
37. The facts and circumstances of the case leave no manner of doubt that the appellants are arch culprits. Their barbaric instinct is amply demonstrated by the fact that in committing Harabah in respect of Shadi Khan and his vehicle, they not only brutally killed him but also burnt his deadbody so that it may create difficulties in recognizing the dead body and they may have sufficient time to escape with the .Aid vehicle to their territory, perhaps, the tribal areas or Afghanistan as they are stated to be Afghan. Muhajirin. Fortunately, his deadbody was soon detected and recognized by his brother. There seems to be sufficient evidence to connect the appellants with the offence of murder of Shadi Khan.
38. To sum up, the appellants have committed two offences; (i) Harabah viz. Taking away the taxi forcibly from the possession of its owner/driver, Shadi Khan, I which by itself is liable to Hadd punishment i.e. The cutting of right hand and left foot, and (ii) murdering the said owner/driver, Shadi Khan, while committing the offence of Harabah, as aforesaid. They, therefore, would, have been liable to two punishments viz. Cutting of right hand and left foot for Harabah and death punishment for murdering Shadi Khan in the course of Harabah, if proved according to Shariah as also laid down in section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979. But the Legislature by section 17(4) of the said Ordinance deemed it proper to provide the maximum capital punishment for both the offences, if murder is also committed alongwith robbery. Undoubtedly, there is no eye-witness of the incident. The entire case rests on circumstantial evidence but, as it is proverbial, a man may tell lie but circumstances do not. The chain of circumstances, in this case, is so well-knit that the offence against the appellants has been proved to the hilt. There is, therefore, circumstantial evidence which may be considered as sufficient for awarding Tazir, but not the Hadd punishment in a Harabah case, because of the saying of the Holy Prophet (P.B.U.H) that avoid Hadd punishment in case of doubt. However, if the Court feels satisfied about the commission of the offence on the basis of circumstantial evidence, it will be just and proper to award Tazir punishment to the accused. In the instant case, as would appear from the evidence, due to the non-fulfilment of the conditions laid down under section 7 of the said Ordinance, the appellants have been awarded life imprisonment by way of Tazir which seems to be just and proper in the circumstances of the case. It may, however, be observed that the learned Sessions Judge could have convicted the accused for the offences of robbery and murder separately under Pakistan Penal Code but it appears that in view of the provisions of section 17(4) of the Ordinance which prescribes only one punishment, that is, death, the learned Sessions Judge resorted to award life imprisonment, whereby the accused have visited the maximum sentence of imprisonment, as Tazir under Pakistan Penal Code read with section 20 of the Ordinance.
39. In result, the conviction and sentences passed by the learned trial Judge are, therefore, maintained and both the appeals stand dismissed. The vehicle robbed by the three convicts is to be restored to the deceased's brother, if not done so far.
40. In the circumstance, the suo motu notices issued for enhancement of sentence are discharged. .
IBADAT YAR KHAN, J:-- The three appellants were charged by the learned Additional Sessions Judge-I, Quetta, for the offence of Harabah punishable under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), on the allegation that they murdered one Shadi Khan and after burning the dead body took away the Datsun pick-up of the deceased on 24-5-19$5. As the punishment for Harabah is comprehensive no separate charge for murder was separately framed. Section 17(4) of the Ordinance runs as under:-- "Whoever, being an adult, is guilty of Harabah in course of which he commits murder shall be punished with death imposed as Hadd."
After recording evidence of the prosecution witnesses and the statements of the accused the learned Judge came to the conclusion that the requirements to prove Harabah as enunciated in section 7 of the Ordinance were not fulfilled and the appellants could not be awarded Hadd punishment. While awarding the sentence the learned Judge observed that:-- "In the present case essential ingredients of section 7 are missing. There is no direct ocular evidence; but circumstantial evidence discussed above do connect the accused facing trial with the commission of the crime. Therefore, the accused facing trial are convicted for offence of Harabah liable to Tazir and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000 each or in default of payment of fine to undergo further imprisonment for one year."
Against this conviction all the three accused have filed these appeals.
2. Peculiar feature of this case is that there is no continuity of events in this case. The story is spread in three phases:-- The first,when on 24-5-1985 the accused hired Datsun No.181-939 (82--Karachi-83) in Quetta for a return journey to Gulistan from where they had to bring fruits and Shadi Khan deceased driver had agreed to take them in his Datsun on payment of Rs.325. Nothing was heard of him thereafter and his brother and friends started a search.
The second stage is that a mutilated human body in an advanced stage of decomposition was found lying in a ditch m Ghaza Band. It was buried. Some articles like cap, key chain etc, which were found near the dead body indicated that the body was of the driver Shadi Khan.
The third stage is that during the night of 26th May, 1985 when a patrol party led by Naib-Tehsildar and others was on Gusht duty they found all the three accused driving in a pick-up which belonged to Shadi Khan. Having suspicion the Gusht party detained the three accused under section 55/109, Cr.P.C. And took into possession the vehicle under section 550, Cr.P.C. Wireless message was sent out to different police stations to probe whether the suspicious strangers were wanted in any offence.
When we join these three parts a picture emerges and the role of the appellants as offenders involved in this crime of murder and theft of the pick-up is brought out.
3. On the first part of the story P.W.1 Zakoom, the brother of deceased Shadi Khan, has been examined and he has stated that his brother Shadi Khan was a pick-up driver. He used to park his vehicle for hire at old Adda Quetta. In the month of Ramazan the three appellants came to the Adda and engaged the pick-up of Shadi Khan to take them to Gulistan via Ghaza Band from where they would pick-up rice stam ` SHALI' before proceeding to Gulistan. From Gulistan they would bring apricots crates. Thus they had engaged the pick-up and nothing was heard of Shadi Khan thereafter. As Shadi Khan did not return to the house Zakoom went out in search of Shadi Khan alongwith three other persons. When they reached Lohra Nadi they met two persons who disclosed that although they had not seen any Datsun pick-up they knew that Risaldar of Levies had found a burnt deadbody and had buried it. On this lead provided to Zakoom, he went to Qilla Abdullah to meet the Risaldar. Risaldar confirmed the information but declined to exhume the dead body without obtaining permission from Assistant Commissioner, Pishin. The party then went to Assistant Commissioner Pishin and after obtaining his permission they proceeded to the place of burial with a doctor, a Patwari and other members of the staff. The grave was opened by the levy and the body was exhumed. Shadi Khan had met with an accident earlier in life and there was a fracture in his arm, which due to the mistake of the Orthopaedic Surgeon was not properly managed. This was an important sign to connect the body with Shadi Khan. The doctor confirmed that there was a mismanaged fracture in the body. A key chain, which was prepared for the deceased by his mother and a cap, which Shadi Khan used to wear was also recovered. As the body was badly mutilated, the hands and feet having been cut of already, the bones were packed in a bag, which was handed over to this witness for burial in their own graveyard. After the burial was over an information was received from Qilla Abdullah that police had seized a white colour Datsun from Zhob. Zakoom with his four companions went to Zhob and there they met the S.H.O. The S.H.O.
Showed the party the identity card of deceased Shadi Khan, photostat copy of his driving licence and a deposit slip of the Bank. These articles were recovered from the Datsun. The Datsun itself was also identified and on the back side of the vehicle bloodstains were detected. The accused were in the lock-up and Zakoom was allowed to meet them. It is alleged that during this meeting the accused made a confession, apologised and repented for the wrong they had done. With this background a police report (Exh.P/1-A) was lodged at Qilla Abdullah Levies Police Station and the investigation started.
4. P.W.2 Muhammad Zaman son of Muhammad Aslam, caste Achakzai, has stated that it was 2nd or 3rd' of Ramazan when he was coming to Quetta from his village Piralizai he met Shadi Khan with the three appellants sitting in the Datsun of Shadi Khan. Two were sitting on the front seat and the third was occupying back seat. They stopped and for 5/10 minutes Shadi Khan and Muhammad Zaman continued talking with each other. During this period Muhammad Zaman had full opportunity to see the passengers accompanying Shadi Khan to Gulistan. In cross-examination this witness has admitted that Shadi Khan was also resident of Piralizai and he was also Achakzai and a cousin. He also mentioned that he had accompanied Zakoom to Zhob after hearing about recovery of the Datsun. In this trip Nazar Muhammad, Muhammad Hashim, Rehmatullah and Mirajan had also gone with him.
5. P.W.3 is Amanullah son of Haji Khair Muhammad. This witness is also Achakzai and a co-villager of Shadi Khan. He has stated that on the 2nd or 3rd day of Ramazan he had come to Quetta from his village. At about 2/3 p.m. He went to the Adda and wanted to have a lift in the Datsun of Shadi Khan. Shadi Khan had informed him that he was going to Gulistan with three passengers, who were also present. In his presence bargaining for the fare was done. Shadi Khan demanded Rs.350 but the accused were offering less. Finally the fare was settled at Rs.325. When P.W. Amanullah showed anxiety to take a lift to his village Shadi Khan refused to oblige him because he was not going straightaway to Gulistan but had to make a diversion to Ghaza Band from where the passengers would be collecting `SHALI'. After 5/6 days of this incident he had heard about the disappearance of Shadi Khan. This witness identified the three accused in the identification parade held in November, 1985. He has also identified them unmistakenably in Court.
6. P.W.4 is Muhammad Wazir son of Haji Gul Baran. He is also a driver and owner of a pick-up. On the day of occurrence he happened to be present alongwith other drivers at the Adda when the three appellants at about 3-00 p.m. Had arrived at the Adda and showed their intention to engage a vehicle for going to Gulistan. Talks between these three appellants and Shadi Khan started. The bargain was settled at Rs.325. The passengers had requested that they would go to Gulistan for bringing fruit crates from there but they would go via Ghaza Band. Thus, he had seen the appellants and Shadi Khan starting their Journey from the Adda. As Shadi Khan did not return for 3/4 days they were all disturbed. Thereafter Zakoom passed on an information that a burnt deadbody had been recovered by the Levy: Out of anxiety Wazir Khan accompanied Zakoom and his younger brother. They all went in the vehicle of this witness. On reaching the place of occurrence they saw that a deadbody badly burnt and mutilated was lying in a ditch. They identified that it was the deadbody of Shadi Khan. On looking to the teeth projecting out of two jaws and fracture on the hand and presence of articles belonging to Shadi Khan led them to believe that body was of Shadi Khan. Among the articles was a key chain, prepared by the mother of the deceased, one cap, a burnt knife and a piece of shirt. Next day the body was exhumed in his presence and bones were collected which were brought to the village and buried. He also took part in the identification parade held on 25-11-1985 and he correctly identified the three appellants in the identification parade in presence of a Magistrate.
7. P.W.5 is Muhammad Akram son of Abdul Jalal. He is the witness on the second part of the case and has stated that one Abdul Razzaq had informed him that a burnt deadbody was lying there in the ditch. Muhammad Akram, went to Faizullah Khan who advised them to go to the police station and lodge a report. He went to Police Station Qilla Abdullah to lodge a report. As there was dark in the night the police could not do anything. Next day they again went to the police station and accompanied by Inspector went to the place of occurrence. A doctor and other members of the levies staff were also with them. The Inspector buried the deadbody in his presence.
8. On the third phase of the story P.W.6 Saifullah Khan, who was a Naib---Tehsildar has been examined. He has stated that at about 8-00 p.m. He was on his usual patrol duty alongwith members of Malitia Force, one Ghulam Sadiq, a Reader of Assistant Commissioner and other members of the staff of the levy were patrolling in two cars. They noticed a white Datsun and asked the driver to stop. Instead of stopping the Datsun the driver tried to escape from the scene. The Datsun was given a chase and was brought to a halt. The three appellants in the Datsun were found in a suspicious condition. The suspicion about their involvement in some criminal activities deepened as a result of questioning. They were taken to Assistant Commissioner, Zhob, who ordered that they should be handed over to the Levies. The number of the Datsun, which was also seized alongwith these accused was 181-939/82-Karachi-83.
9. P.W.8 Sh. Ghulam Sadiq was the Reader of Assistant Commissioner, Zhob in those days. He corroborated P.W.6 in Court. He made a statement that due to the disturbed conditions in the area during those days the Assistant Commissioner had directed him and Saifullah to intensify the Malitia patrolling on the Quetta Road. On 24-5-1985 during their patrol at about 12-00 mid-night they saw a Datsun rushing towards Zhob. The patrol party got suspicious and wanted to check the Datsun but the Datsun tried to speed away. The Datsun was overtaken and the three accused persons in Court were brought down and checked. For further questioning and-probe they were detained and handed over to the Malitia. When asked to identify the accused in Court the witness replied that `I can recognise accused (Gut Muhammad) who was then of lessor age. As regards the other accused I cannot identify them exactly as considerable period has since elapsed'.
10. P.W.13 Muhammad Sabir was the Inspector and S.1-I.O. Of Police Station Zhob. He has made a statement in Court that on 26-5-1985 in the morning time Tehsildar Zhob brought three persons and a Datsun pick-up. The names of the persons were disclosed as Din Muhammad, Haji Khan and Gul Muhammad. These men were sent to him under orders of Assistant Commissioner for questioning. He detained them in his Thana under section 54, Cr.P.C. And also took into possession the Datsun under section 550, Cr.P.C. He then sent a wireless messages to all the S.H.Os. Requesting them to inform him if the three men and a Datsun detained by him were wanted in any case. He also obtained three days remand. After some time Zakoom, the brother of deceased approached this Police Officer and narrated the whole story to him. Zakoom was shown the Datsun and he identified it to be the same as Shadi Khan had driven. In the meantime he received an information from Assistant Commissioner Pishin that these accused and the Datsun were required by the Levies of Pishin. Consequently he handed over the accused and the vehicle to the Levies of Pishin, who were already investigating the case. This Police Officer identified the three accused persons to be the same who were handed over to him in the early hours of the morning of 26-5-1955 and had remained with him in the police. Station after the remand. Alongwith the vehicle he also handed over to the Levies other articles like photostat of the identify card of Shadi Khan, his cheque book and the documents relating to the Datsun which were recovered with the Datsun when the accused were apprehended by the Naib-Tehsildar. He identified these articles in Court. The Datsun was also shown to him and he identified it as Art.P/13-A alongwith its Registration Book (Art.P/13-B), Cheque Book of deceased Shadi Khan (Art.P/13-C), the identity card (Art.P/13-D), driving licence (Art.P/13-E).
11. P.W.7 Alam Khan was Assistant Superintendent Jail, Zhob, in 1985. He made a statement in Court.
He identified the three accused in Court. He said that one of them was looking very youngish and he had, therefore, been confined separately in the children ward. During their detention one day he had called two of them in his office to question them about their detention and two of them had confessed having committed the offence. They had told him that they had hired a Datsun from Old Bus Stand, Quetta, for going to Gulistan to bring fruits and had murdered Shadi Khan. The two had stated that the third of them Din Muhammad had fired with pistol at the deceased and after killing him they had burnt the deadbody by setting fire to straws. The pistol was also buried afterwards.
They had also confessed that after killing Shadi Khan they had proceeded towards Zhob where a Malitia Force had arrested them on suspicion. According. To this witness he had kept the accused in judicial custody for about 2/3 months and then they were sent to District Pishin for challan.
12. P.W.9 Abdul Rauf, P.W.10 Dr. Said Akhtar Muhammad and P.W.11 Raz Muhammad are other witnesses connected with the second part of the story of recovery of the deadbody from the jungle.
13. P.W.9 Abdul Rauf has stated that on 30-5-1985 he was posted at Levies Thana Gulistan.
Muhammad Akram reported to him that a corpse was lying in a water canal. He informed Risaldar.
Major Habibullah Khan. Thereafter he accompanied a party led by Risaldar Major Habibullah Khan.
It included a Patwari P.W.11 Raz Muhammad and Dr. Said Akhtar Muhammad (P.W.10). When the party reached the place of occurrence they saw a corpse, which was burnt with straw and was lying there in a mutilated condition. One cap; a bunch of keys, one knife, one coin, one piece of tetron cloth and empty cartridge of .32 bore were also found near the corpse. Recovery memo.
Exh.P./9-A was prepared which was attested by this witness. The articles keys P.1, cap P.2, knife P.3, coin P.4, tetron cloth P.5 and empty cartridge P.6 were taken into possession and have been produced in Court during the hearing.
14. P.W.10 is Dr. Said Akhtar Muhammad. He has made a statement that on 30-5-1985 when he was serving as Incharge of the Rural Health Centre, Maizai h, was informed by Risaldar. Major that he would have to go to Killi Sahaghi, Tehsil Gulistan to examine a deadbody. Consequently this doctor accompanied the police party and reached the spot where the deadbody was lying. Giving details of the condition of the dead body he stated that both the forearms and legs we e chopped of. The abdominal muscles and parts of lower limbs were eaten up by wild animals. The remaining body was in decomposed condition, which was full of maggots. According to him, the death had occurred not more than five days before. Two days later on 2nd June, 1985, he again accompanied the party when the body was exhumed in presence of relations of Shadi Khan and it was confirmed that there was a healed fracture on the lower end of left humerous of the deceased. A medical certificate Exh.P./10-A was issued by this doctor.
15. P.W.11 Raz Muhammad son of Alam Khan was the Patwari of that circle in Pishin. He has stated that on 24-5-1985 he was posted in Gulistan. On the instructions of Naib-Tehsildar he went to a place about ten miles away from Gulistan and prepared a site plan of .The place of occurrence. He identified this plan in Court and it was marked as Exh.P./11-A.
16. The broad facts of the case and the evidence on the three important parts of the prosecution story have been discussed above.
17. It may be mentioned here that on 25-11-1985 an identification parade was held in the City Police Station Quetta, which was supervised by P.W.12 Mr. Abdul Khaliq Kansi, who was a Magistrate First Class posted at Quetta in those days. After taking all precautions and mixing up the three appellants with others he called the two witnesses namely P.W.3 Amanullah and P.W.4 Muhammad Wazir one by one. According to this Magistrate both the witnesses correctly identified all the three accused/appellants in the identification parade. He prepared the report Exhs.P./11-A and P/11-B. It may be recalled that Amanullah and Muhammad Wazir have been produced as P.W.3 and P.W.4 respectively and both have stated that they, had correctly identified the three appellants in the identification parade while they were mixed in a collection of 17 or 18 people. It may be stated that each of these witnesses was called not once or twice but three times each when the appellants were presented to them in different dresses and were allowed to change their position. Yet they made no mistake in identifying them. These two witnesses had seen the three appellants on the first day at the time when they had come to Adda to engage the Datsun. They had seen the three accused bargaining about the fare with deceased Shadi Khan and going with Shadi Khan in the Datsun.
18. P.W.14 Yar Muhammad Khan was posted as Inspector/S.H.O. In the Crime Branch Police Station.
Appellant Haji Khan offered to point out the place where the appellants had committed the crime.
This witness and Inspector Fazal Dad Jadoon (P.W.15) accompanied appellant Haji Khan and who led them to the place where the three appellants had set the body at ablaze after murder and had tried to conceal the corpse with straw.
19. P.W.15 Fazal Dad Jadoon was Inspector Incharge of the Crime Branch. . He has made a statement that originally the case was registered with the Levies of Qilla Abdullah and they had investigated the case. Later the investigation was entrusted to this witness by the S.P. Crimes. He recorded the statements of the witnesses -in Zhob and witnesses from the Levies and Malitia: He has corroborated the statement of P.W.14 on the point that Haji Khan had led them to the place of crime and he had prepared the memos. Exh.P/14-A and Exh.P/14-B. He had also arranged the identification parade conducted in the police station, which was supervised by a Magistrate First Class. He has recorded statements of the P.Ws. Under section 161, Cr.P.C. And challaned the case for trial before the Court.
20. After recording of the prosecution evidence the appellants were examined by the Court first under section 342, Cr.P.C. And later under section 340(2), Cr.P.C.
21. The appellants have denied everything when they were examined by the learned Judge under section 342, Cr.P.C. They have denied having engaged the Datsun on 24-5-1985. They have denied that they had killed Shadi Khan. They have denied their arrest by the Naib-Tehsildar alongwith the stolen Datsun. They have denied that they were identified. They have denied everything else. After denying any involvement and pleading total ignorance from the facts of this case they have made statements under section 340(2), Cr.P.C. Also.
22. Appellants Haji Khan. And Gul Muhammad have, taken their own defence. According to them they were going to Zhob in a red colour Datsun pick--up. The pick-up dropped them at a place five miles away from Zhob. Both of them were thus standing on the road waiting for another transport to take them to their destination. In the meantime a jeep of the Levies arrived and picked them up.
They were then handed over to the police and falsely involved in the dacoity and murder. The defence of appellant Din Muhammad as put up in his statement under section 340(2), Cr.P.C: is that he wanted to go to Peshawar from Quetta via Zhob. He got down at Zhob to offer prayers. A police party approached him and questioned him. He replied that he was an Afghan Refugee. The police then asked for identity card, which he could not produce. The police then arrested him for nothing. So far as identification is concerned, he has stated that though the witnesses had identified him but he was already shown to the witnesses before the identification parade.
23. On the basis of the evidence and after examining the pleas of the defence, the learned Judge has come to the conclusion that the offence is proved against the three appellants to the hilt. He has very carefully analysed the facts of the case and appraised evidential value of the statements of the witnesses on each part of the case.
24. So far as confession of Haji Khan and Gul Muhammad, appellants, is concerned; the learned Judge has observed that this confession was made to the. Assistant Superintendent Jail, Alam Khan (P.W.7) while the two appellants were remanded to judicial custody. The learned Judge on the authority of a case reported in 1987 P Cr. L J 2484 excluded this evidence because of the technicality of law. This confession was a joint confession made by the two accused. The principle laid down in the case is `a joint confession made by the accused is of no legal value at all'. We also do not propose to disturb this finding in this case and would exclude the confession from consideration.
25. The other piece of evidence against appellant Haji Khan was a pointation of the place of occurrence. This piece of evidence has also been discarded by the learned Judge for the reason that the place of occurrence was already known to the Police Officers and it cannot be said that it was something new. As is well---known the police had already collected corpse from the place and had gone to the place several times it cannot therefore; be a place to be treated as discovery on the pointation of the accused. The learned Judge for rejecting this piece of evidence has relied on PLD 1976 SC 404. We also do not propose to disturb this finding.
26. Turning to the main features of the case we have before us a set of reliable witnesses, who have seen the deceased and the killers together on 24-5-1985. This evidence falls under the category of `last seen together'. There is no rebuttal to the positive assertion that the three appellants had come to engage a transport, that they settled with Shadi Khan a fare at Rs.325 for his Datsun to take them for a return journey to Gulistan via Ghaza Band. Actually Ghaza Band the place of occurrence was mentioned in the conversation. This was the reason why late Shadi Khan had not given a lift to P.W.3 Amanullah who also wanted to go alongwith him to his house. P.W.3 had seen the three appellants talking to deceased. Shadi Khan at the time of hiring of the Datsun. This conversation he had seen thoroughly in the broad daylight; not casually but carefully. There could be no possibility of making any mistake.
27. The other strong piece of evidence, which alone is sufficient for their conviction, is the recovery of Datsun from their possession on the night of 26-5-1985. Admittedly This Datsun was owned by deceased Shadi Khan and how it fell into the possession of the three appellants, was a heavy burden on them to discharge, which they have miserably failed to discharge. The identity card of Shadi Khan, the registration papers and other articles recovered from this Datsun at the time when it was taken into possession by the Naib-Tehsildar unmistakenably shows that they are the three who had killed Shadi Khan under a common design to rob him of the Datsun. To fulfil this ambition they had gone to the extent of even killing the owner:"
28. Nobody has seen them in action of killing Shadi Khan. There is no eye-witness of the burning of the body. Shadi Khan is silent for ever but as the maxim goes The murder was not seen by human eye but the crime left its traces behind. The fact remains that the murderers were last seen with their victim together after which the man was never seen or heard of. This is coupled with the fact that on the same night the property namely the Datsun with the personal articles belonging to deceased owner was found in possession of the three murderers during the Gusht of the Naib- Tehsildar in Zhob. These two events put together form a very clean and clear picture of the event and leave no doubt in the culpability of the three appellants in the crime.
29. In the end the question of their sentence remains to be considered. Section 17(4) of the Ordinance is comprehensive prescribing a death penalty if the Harabah is also accompanied with murder. But as is well-known the Hadd punishments prescribed in Sharia in certain offences looking very harsh on the surface are equally difficult to prove. Standard of proof for awarding Hadd punishment is so high that no system of jurisprudence and no law had demanded such foolproof evidence to prove the crime. It is here that concept of Tazir is introduced in the penal system of the Sharia. To prove an offence for Hadd punishment under section 17(4) of the Ordinance the standard of proof prescribed is given in section 7 of the Ordinance, which is reproduced below-- "The proof of theft liable to Hadd shall be in one of the following forms, namely:--
(a) the accused pleads guilty of the commission of theft liable to Hadd; and at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of Tazkiya Al-Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence."
30. Obviously the present case is not covered by either of the two mandatory requirements of section 7 of the Ordinance. As such the Hadd punishment could not be awarded in this case. The learned Judge himself examined this position and has rightly come to the conclusion that the crime must be punished with Tazir. He awarded life imprisonment to each accused and also fined each one of them in the sum of Rs.5,000. We may additionally add that even if the three appellants were tried separately for murder of Shadi Khan still it would remain debatable which one of the three has inflicted the fatal blow or fatal shot from the revolver.. There is no direct evidence on this part of the case. As such no death penalty can be imposed on anyone of the three appellants.
31. In the circumstances we would confirm their conviction and sentence awarded by the learned Additional Sessions Judge-I, Quetta. Both the appeals are consequently dismissed.