1. MUHAMMAD AFZAL ZULLAH, C.J.---This order be read in continuance of order for grant of leave to appeal in Criminal Appeal No.114 of 1990. The order reads as follows:-- "In this case of gruesome dacoity in which a murder rook place leave to appeal is sought by one of the two accused ultimately convicted and sentenced to life imprisonment. The petitioner, one of the two convicts whose appeal has been dismissed by the High Court, has challenged his conviction and sentence.
2. "The prosecution case as summarized in the memorandum submitted with the petition for leave to appeal is as follows:-- `The prosecution version at disclosed in the statement of Muhammad Ajmal Khan complainant (P W.15) which was recorded by Raja Abdul Aziz. S.I. The then S.H_n. P.S. City, Attock (P.W:18) is that on the night between 2nd and 3rd March, 1981 the complainant along with his wife Mst. Shamshad Ajmal and children were asleep in a room of his house. In the adjoining room his sister Mst. Mahar Tai 13ibi (P.W.17) and Mst. Haleema Bibi were sleeping. In the 3rd room his father Shams Khan (P.W.16), his brother Niaz Muhammad (deceased) and his cousin Muhammad Amin were asleep. At about 12.30 mid-night, his sister Mehar Taj Bibi (P.W.17) woke rip to ease herself and she came to his room for going to the latrine as there was no other passage for her to go there. The electric bulb in the courtyard of the house was on. When Mst. Mchar Ta_j Bibi (P.W.17) opened the door of his room she saw about ten persons in the courtyard. She tried to bolt the door from inside but she could not shut the planks of the door, and all the persons came inside the room. Mst. Mehar Taj Bib; (P.W.17) put on the light of the: room. In the electric tight the complainant saw that one of the persons was holding a pistol in his hand, and the other a shot gun and the rest were holding lathis and iron- bars. All the dacoits threatened them to hand over the belongings including ornaments, cash and other articles to them otherwise they would kill them. The complainant caught hold of one of the dacoits from his legs, ~ grappled with him whereupon the dacoits started beating him with lathis and iron-bars. The complainant started raising noise and the dacoit called his companions for help whereupon all of them started beating him with their respective weapons and also gave him injuries with fist and kick blows. The dacoits brought the complainant in his room. In the meantime his mother Mst. Haleema Bibi, wife Mst. Shamshad Ajmal, sister Mst. Mehar Taj Bibi, brother Niaz Muhammad (deceased) father Shams Khan and cousin Muhammad Amin came to his rescue. The dacoit who was holding gun fired on the head of Shams Khan (P.W.16) and the remaining dacoits started beating him with lathis and iron-bars. Niaz Muhammad (deceased) attempted to save the complainant and his father whereupon the decoit who was armed with revolver fired at him which hit him on his left flank. Niaz Muhammad fell down and the dacoits started belabouring him with lathis and iron-bars. One of the dacoits gave an iron blow to the sister of the complainant on her head. Mst. Shamshad Ajmal and Mst. Haleema Bibi remained silent out of threats of the dacoits.
3. They forcibly removed the golden bangles of his wife from her arm and ear-rings from Mst. Mehar Taj Bibi. They also took away Rs. 4,000 from the purse and also the licensed gun of Shams Khan (P.W.16), licensed revolver of the complainant, two tape-recorders, one transistor, Seiko wrist watch and purse containing identity card of the complainant, driving licence, two attache-cases containing household wearing and also other articles. It has further been stated by the complainant that the dacoits had not muffled their faces. He and other P.Ws identified them in the electric light. The complainant also stated that the dacoit who was holding pistol was of tall stature, strong built, wheatish colour of about 30/35 years. The other dacoit who was holding the gun was of wheatish colour, wearing shirt and shalwar of almond colour and was about 20/21 years. Three of them were of 30 to 35 years of age while the rest were about 19 to 22 years'. `After hearing the leaned counsel for the petitioner; firstly, on the question of limitation as this petition is barred by 26 days; and secondly, on merits we feel that while the question of the guilt of the convict/petitioner might also require examination, it would be necessary to examine the case, vas-a-vas, two additional aspects thereof.
4. One, whether there was enough justification for awarding lesser penalty under section 396, P.P.C., to the petitioner and his co-convict; and secondly, whether, there was enough justification for acquitting the majority of the accused persons. Accordingly, while keeping the question of.Limitation open and while granting leave to appeal to the petitioner, we consider necessary to direct the State to file leave to appeal petition/s regarding the sentence awarded to the petitioner and his co-convict as also regarding acquittal of the majority of the accused persons, in accordance with law. The question of delay in filing these additional petitions would be examined on the submission of application for condonation of delay,"
5. Today two time-barred Criminal Petitions Nos.25 and 26 of 1991 have been pressed for acceptance by the learned Assistant Advocate-General on various grounds urged therein. The State has filed these petitions in pursuance of the observations made in the aforcquoted order for grant of leave to appeal to one of the co-accused of the accused/ respondents in the criminal petitions. The appeal of the said accused; namely, Bashir Ahmad is also before us for hearing.
6. The leave grant order was passed in March, 1990. In July 1990 the A.O.R. For Bashir Ahmad filed an application stating therein that the appellant was not interested in the prosecution of his appeal. 11 appears that Bashir Ahmad must have been advised to seek withdrawal of his appeal and then he gave the instructions to his A.O.R. As noted above-obviously to save certain consequences which might ensue on account of the then possibility of the State filing criminal petitions as already noted.
7. Today the two criminal petitions came up for hearing in the first instance. The objection raised by the learned counsel for the accused/respondents therein regarding limitation was overruled on the basis of the principles applicable to administration of criminal justice. See Qazi Salahuddin v. The State PLD 1986 Supreme Court 548.
8. After hearing both the learned counsel on merits we consider it fit amongst other grounds urged in these petitions to grant leave to appeal therein, inter alia, for the examination of the justification for lesser sentence awarded to the two convicts in this case. Accordingly. Criminal Petition No.25 of 1991 for enhancement of the sentence is allowed. The respondents therein shall not be released from jail even if they have served the sentence earlier ,awarded to them. It may be mentioned that Muhammad Ali respondent's appeal is not before us. If he has not challenged iris conviction and sentence, he will be at liberty to file a petition for leave to appeal now. We have orally indicated to the learned counsel for the respondents that the delay, in the circumstances of this case, would be: condoned in that case also if Muhammad Ali files a petition for leave to appeal.
9. Regarding the petition for leave to appeal against acquittal of three. Respondents in Criminal Petition No.26 of 1991, suffices it to observe that certain principles relating to the identification of unknown accused persons prima facie .It seems were not kept in view when acquitting the respondents. Two of the five accused (5 others out of 10, it is stated, are still absconding) were not only identified in Court but also the said identification was found to have material support from other circumstances. Thus, the eye-witnesses' credibility got confirmed in so far as the two convicted accused are concerned. Once this happened, the witnesses gained added credibility.
10. That being so, their identification in Court of the other three accused regarding whom there were no independent supporting circumstances, it needs to be examined,, could or could not be allowed any credit on account of lack of technical corroboration of. The eye-witnesses. In other words the corroboration and credibility gained by the witnesses regarding two of the accused persons regarding the same occurrence, it needs to be examined, could or could not be treated as sufficient certification of the credibility of the witnesses concerned. Other points regarding identification would also come up for examination. Leave to appeal, accordingly, is also granted against the acquitted accused in Criminal Petition No.26 of 1991. Non-bailable warrants shall issue against the said respondents for appearance in this Court.
11. On the announcement of the orders granting leave to appeal in Criminal Petitions Nos.25 and 26 of 1991, as was expected, learned counsel for the appellant in Criminal Appeal No.114 of 1991 withdrew the application for withdrawal of the appeal earlier noted. This oral request was allowed. The application for withdrawal of the appeal of Bashir Ahmad stands rejected. The said appeal shall be deemed to be pending for hearing with the other two appeals arising out of Criminal Petitions Nos.25 and 26 of 1991.