' NAZIR AHMAD BHATTI, J.--- Zulfiqar Ali, resident of Bungalow No,49, Chaklala Scheme No,IL Rawalpindi was asleep in a room of his house on the night between 24th and 25th December, 1988.
His uncle Faiz Ali alias Nadeem, resident of Lahore, who had come as a guest, was also lying in the same room. At about 1-30 a.m. In the night Faiz Ali went out of the Bungalow and came back after about 15/20 minutes. On query by the complainant he disclosed that he was not feeling well and had gone out in the open air. In the meantime the complainant heard noise from the bedroom of his parents and he rushed towards their bedroom where he saw three persons with muffled faces, out of whom one was long statured, second was short stature and was having a dagger in his hand and the third was also long statured having .12 bore shotgun in hand. All the three assailants were threatening his mother to get keys and valuables from her and were talking in 'Punjabi'. His parents were in return raising alarm of 'thief-thief. Simultaneously the short statured muffled person pushed his mother and she fell down. Thereupon his father Anzar Ali went ahead but the same assailant attacked him and gave him a dagger blow on the left side chest. His father Anzar Ali started grappling with the assailant and both fell down and in the process the mask from the face of the assailant fell down and he turned out to be Ahmad Ali resident of Lahore and happened to be his uncle. Thereafter Mst. Badrun-Nisa, the mother of the complainant, went ahead shrieking but she was confronted by the long statured man having .12 bore gun who started beating her with the 'Butt' of the gun. In this struggle his mask was also put off and he turned out to be Aamir Nazir resident of Lahore. The third long statured assailant gave a dagger blow on the face of the complainant which hit him on the nose and thereafter both started grappling with each other and his mask also went off and he turned out to be Muhammad Fayyaz Hashmi of Lahore. In the meantime, Anzar Ali, the father of the complainant, got up but accused Muhammad Fayyaz gave him a dagger blow and he again fell down. The complainant and his mother were also lying on the ground. The assailants tied the complainant and his parents by string and closed their mouths with tape. Thereafter the assailants carried out the search of the house and robbed them of many valuable golden ornaments approximately of the value of Rs,1,50,000. The assailants also deprived the complainant party of money consisting of one Pakistan currency note of Rs,500, 4 currency notes of Rs,100, 86 Saudi Riyals and three American Dollars. The assailants also took away one black National tape-recorder of two speakers, one small tape-recorder, one film Camera and other valuables worth Rs,50,000. The assailants fled away on the car of the father of the complainant.
After some time the complainant succeeded in untying himself and then he untied his mother and father but the latter had already succumbed to his injuries. He informed the police through the neighbours. Sub-Inspector Muhammad Abbas of Police Station Civil Lines, Rawalpindi reached the place of occurrence where he recorded the report of the complainant and sent the same to the police station where F.I.R. No,692 was recorded on the same day. The said police officer also prepared the injury sheet of both the injured, report of the deceased and sent the injured to the hospital for medical examination and dead body for post-mortem examination. The Sub-Inspector also started the investigation of the case. It transpired that all the four assailants were caught at the bridge of River Jhelum near Jhelum city when they were found travelling in a wagon. They were arrested by P.W.11 Khadim Hussain A.S.I. Who was on duty at the Bridge. He had received information on wireless at about 6-30 a.m. On 25-12-1988. He started checking the vehicles passing through the Bridge and at about 9-15 a.m. He arrested all the four accused from a wagon. He also took into possession their bags and carried out search thereof. He recovered the stolen articles from each of the appellants which they had distributed among themselves and had concealed them in their bags.
2. After investigation all the four accused were sent up for trial before the Additional Sessions Judge, Rawalpindi where they were charged under section 460, 302/34, 307/34, P.P.C. And section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. All the accused pleaded not guilty and claimed trial.
3. The State produced 18 witnsses in proof of the prosecution case. All the four accused made statements under section 342, Cr.P.C. They also examined three defence witnesses. Accused Muhammad Fayyaz and Faiz Ali alias Nadeem also made depositions on oath under subsection 2 of section 340, Cr.P.C. After the conclusion of the trial the learned trial Judge convicted accused Ahmad Ali under section 302, P.P.C. And sentenced him to death, and a fine of Rs,20,000 or in default to suffer rigorous imprisonment for 4 years. He was also ordered to pay compensation of Rs,30,000 to the legal heirs of the deceased. Accused Muhammad Fayyaz Hashmi was convicted under section 324, P.P.C. And sentenced to undergo rigorous imprisonment for three years, and fine of Rs,3,000 or in default to further suffer rigorous imprisonment for 6 months. Accused Amir Nazir was convicted under section 323, P.P.C. And sentenced to undergo rigorous imprisonment for one year and fine of Rs,1,000 or in default to suffer rigorous imprisonment for two months. The learned trial Judge also convicted all the four accused under section 394/397, P.P.C. And sentenced each of them to undergo life imprisonment and to pay Rs,25,000 as a fine or in default to further undergo rigorous imprisonment for five years. The learned trial Judge also convicted all the four accused under section 460, P.P.C. And sentenced each of them to undergo life imprisonment and a fine of Rs,10,000 or in default to further undergo rigorous imprisonment for two years. Half of the fine imposed under sections 397/397 and 460, P.P.C. On recovery, was to be paid as compensation to the legal heirs of the deceased.
4. Aggrieved by the aforesaid judgment of the learned Sessions Judge, convicts Ahmad Ali and Faiz All alias Nadeem filed Criminal Appeal No,69/I of 1992, Convicts Muhammad Fayyaz and Amir Nazir filed Criminal Appeal No,74/I of 1992. The complainant Zulfiqar All also presented Criminal Revision No,30/I of 1992 for setting aside the acquittal of respondents Nos.2 to 4 under section 302/34, P.P.C.
And to convict them for the said offence. The learned Sessions Judge has also sent a murder reference bearing No,144/I of 1992. Since both the appeals and criminal revision and murder reference have arisen from the same matter, judgment in Appeal No,69/I of 1992 will also dispose of both the appeals, criminal revision and murder reference.
5. We have heard learned counsel for the parties at length and have also perused entire record of the case.
6. The prosecution evidence against all the four appellants consists; Firstly, of eye-witness account of two injured witnesses, P.W.16 Zulfiqar Ali and P.W.17 Mst. Badrun-Nisa; Secondly, recovery of stolen articles from each of the appellants; and thirdly, the medical testimony.
7. It is interesting to note that appellants Faiz Ali alias Nadeem and Ahmad All are real brothers and they are uncles of the complainant Zulfiqar Ali, being cousins of his deceased father.
8. In so far as eye-witness account is concerned, that was furnished by the complainant P.W.16 Zulfiqar Ali. He narrated the occurrence word by word as he had narrated in the report which he had made to Sub-Inspector Mian Muhammad Abbas who subsequently died and his handwriting was proved by P.W.18 Allah Yar who had worked under him. The complainant had stated that he and appellant Faiz All alias Nadeem were sleeping in the same room on the night of occurrence, that at about 1-30 a.m. Appellant Faiz All alias Nadeem got him from the bed and went outside and came back after 15/20 minutes, that on query he informed the complainant that he was not feeling well and had gone out for taking fresh air, that he heard noise from the room of his parents, that he went there running and saw three persons with muffled faces threatening his parents, that one assailant with small height was having dagger in his hand and a revolver in the other, that the other assailant with tall height was having a dagger and a revolver in both hands and the third one who was also tall, was having .12 bore shot gun, the nosal of which was half cut, that they were threatening his parents and demanding valuables from them, that the assailants grappled with him and his parents as a result of which their masks fell down and they were recognized by him and his mother. This witness also narrated the circumstances of the occurrence whereby appellant Ahmad All had first injured his father Anzar All by a dagger and then murdered him and appellant Aamir. Nazir injured his mother whereas he was injured by the appellant Muhammad Fayyaz. He also stated that after some time he found his father dead.. He informed the police of the occurrence. P.W.17 Mst. Badrun-Nisa corroborated the testimony of her son P.W.16 Zulfiqar All complainant in toto. She was injured by appellant Aamir Nazir. She also charged appellant Ahmad All for injuring her husband Anzar All as a result of which he died. She also charged appellant Muhammad Fayyaz for causing injuries to her son P.W.16 Zulfiqar Ali. Both the eye-witnesses also saw the appellants taking away the golden ornaments and other valuables from the house of the complainant Zulfiqar Ali.
9. Both the aforesaid eye-witnesses were injured in the occurrence. They are natural residents of the house where the appellants had committed robbery, murdered Anzar Ali and also caused injuries to both of them. They are mother and son and their presence at that time in the house cannot be ruled out by any strech of imagination.
10. The learned counsel for the appellants contended that identification of the culprits by the eye- witnesses at the time of occurrence has not been satisfactorily established, as according to him, there were reasons to doubt that the masks were in fact removed. We have very seriously considered this contention of the learned counsel. The complainant had clearly stated that all the family had grappled with the assailants and during that grappling the masks of the appellants were removed. Out of three assailants, two were near relatives of the complainant party being cousins of the deceased and the question of misidentification did not arise. In fact one of them was already guest in the house and there was no question of his misidentification. It is a natural phenomena that during the grappling mask could have been removed from the faces of the assailants. There is nothing unusual in this aspect of the matter. We have, after carefully going through the evidence in this respect, arrived at the conclusion that there was nothing wrong about the identification 13 of the assailants at the time of occurrence and there could be no doubt about this circumstance.
11. In so far as the question of recovery is concerned, it is very interesting to note that the occurrence had been broadcast at wireless by the police and P.W.11 Khadim Hussain A.S.I. Who was on duty at the Bridge of Jhelum river near Jhelum city received the wireless message at 6-15 hours on the same morning and immediately thereafter he started checking the vehicle or traffic. At 9-15 hours he not only caught all the four appellants but also recovered the stolen property from each of them which they had distributed among themselves. The ornaments and the other valuables which were recovered from the appellants were duly identified by the eye-witnesses of the occurrecne. The learned counsel for the appellants contended that it was next to impossible to apprehend the appellants so early and that it was also improbable that all the four appellants were travelling together in one wagon. But the learned counsel could not allege any other alternate. It was not the case of any of the appellants that he was arrested at any different time and at a different place. It was, therefore, possible that they might have all travelled together. No material was brought on the record to contradict the prosecution evidence produced in this respect. P.W.9 Muhammad Akram 'had stated that he had only put his thumb-impression on a blank paper and he had not seen any article recovered from the appellants. But the testimony of this witness would not make much difference and the defence could not gain any point from this circumstance. The simple reason is that all the four appellants were arrested within a few hours of the occurrence when they were travelling in the wagon driven by this witness and naturally they would also be in possession of the looted property. They did not have any time to keep the looted property anywhere else. Morevoer, the recovered property was so much valuable that it could not have been substituted by the prosecution. The fact is that the arrest of all the four appellants within a few hours of the occurrence was proved which could not be disproved by the defence.
12. In so far as medical evidence is concerned, it is a fact that P.W.16 Zulfiqar All complainant and P.W.17 Mst. Badrun-Nisa were injured during the occurrence at the hands of appellants Muhammad Fayyaz Hashmi and Aamir Nazir respectively. It is also a fact that Anzar Ali father of the complainant and husband of Mst. Badrun-Nisa was also injured and done to death during the occurrence at the hands of appellant Ahmad Ali. Medico-legal report of both the injured and the post-mortem report of the deceased were proved by the witnesses who knew the handwriting of the doctor because the latter was not available as he had gone out of the country. However, the fact was established beyond any doubt whatsoever that Zulfiqar Ali and Mst. Badrun-Nisa were injured during the occurrence and deceased Anzar All was also done to death there and then.
P.W.8 Dr. Baddar-ud-Din Athar Naeem had examined complainant Zulfiqar All on 25-12-1988 at about 4-00 a.m. And found the following injuries on his person:--
(1) A muscle deep incised wound about one inch in length below left eye and over the nose.
(2) Right eye contused outer aspect.
(3) Left eye contused inner aspect.
(4) An incised wound about half inch in length in right fourth intercostal space, about two inches from the mid line.
(5) Tenderness on right side of jaw.
' According to the opinion of the doctor all the injuries were simple in nature. Injuries Nos.1 to 4 were caused by a sharp-edged weapon. Injuries Nos.2, 3 and 5 were caused by blunt weapon. The duration of the injuries was about 8-10 hours.
13. During the trial it had also come on the record that appellant Ahmad Ali had some differences with the complainant party on account of some marriage in the family or some matrimonial dispute in the family and he had expressed his intention to take revenge from the complainant party. Even otherwise it is improbable that such close relatives could be charged if they had not committed any offence. Although appellant Faiz Ali alias Nadeem did not directly take any part in this commission of the offence of causing injuries to parents of the complainant but he was charged for taking out keys from the pocket of mother of the complainant and then bringing out ornaments and other valuables from the boxes etc. As such there is no possibility of the appellants being charged falsely.
14. The appellants in their statements under section 342, Cr.P.C. Only denied the commission of the offence and stated that they had been implicated falsely due to enmity. Appellant Muhammad Fayyaz Hashmi had stated that he had been implicated falsely on account of friendship with appellant Ahmad Ali and his brother Faiz Ali. However this appellant deposed on oath that he was arrested from Rawalpindi from the house of his sister Mst. Asmat where he had gone to meet her.
The latter appeared as a defence witness and stated that on 20-12-1988, her brother Fayyaz Hashmi had come to her house in Rawalpindi and returned back on 25-12-1988 in the morning. This piece of evidence would at least show one thing that appellant Fayyaz Hashmi was Present Rawalpindi on the night of occurrence and the possibility cannot be ruled out that he participated in the commission of the offence and was arrested alongwith the other appellants at Jhelum Bridge on the said day in the morning. Appellant Ahmad Ali and Faiz All alias Nadeem had stated that he was a patient of blood cancer and had come to Rawalpindi on the invitation of the complainant party who had called him there for his treatment and that he had not taken any part in the commission of the offence. He also made deposition on oath wherein he repeated the same statement and asserted that he had not taken any part in the commission of the offence.
Appellant Aamir Nazir further stated that he had been implicated in the crime due to his friendship with Ahmad Ali and Faiz All alias Nadeem. It shall thus be seen that appellants Ahmad All and Faiz All alias Nadeem had admitted the factum of previous enmity between the parties. The other two appellants did not make any deposition on oath.
15. The net result of the above discussion is that the presence of all the four appellants in the house of the complainant party in the night between 24th and 25th December, 1988 was not only proved but was also admitted by the appellants who were in fact present in Rawalpindi on the said night.
They also committed the offences of robbery, caused injuries to two prosecution witnesses and also committed the murder of Anzar Ali. Appellant Faiz All alias Nadeem was charged for going out at about mid-night and coming back to the room after 15 minutes and allegedly opening the outer door of the house in order to facilitate entry of other assailants in the house. He was also charged for bringing out the valuables from the boxes etc. Stolen property was also recovered from his possession when his luggage was searched at Jhelum Bridge. Thus he was also guilty of the offence of robbery and murder alongwith the other appellants in furtherance of their common intention but offence committed by him was of a lesser degree.
16. It shall, therefore, be seen that the offence of committing robbery from the house of the complainant was proved against all the four appellants Ahmad Ali, Muhammad Fayyaz Hashmi, Aamir Nazir and Faiz All alias Nadeem, that the offence of committing the murder of Anzar All was proved against appellant Ahmad Ali, that the offence of causing injury to complainant Zulfiqar All was proved against appellant Muhammad Fayyaz Hashmi and that the offence of causing injury to P.W.17 Mst. Badrun-Nisa was proved against appellant Aamir Nazir and that the offence of committing robbery with murder was proved against all the 4 appellants in furtherance of their common intention. All the 4 appellants were, therefore, appropriately convicted for the offences mentioned above. We uphold the conviction and sentences of all the appellants and dismiss their appeals. The murder reference in respect of appellant Ahmad All is also answered in the positive.
17. The learned counsel for the complainant made statement at the Bar that complainant does not want to prosecute the revision petition and he withdraws the same. The revision petition is, therefore, dismissed as withdrawn.