' MAULANA MUHAMMAD TAQI USMANI, J.---The appellant and his co-accused Shafique were tried by the learned Additional Sessions Judge, Chiniot under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under section 302 read with section 34 of the Pakistan Penal Code. Both of them were, however, sentenced with 3 years' rigorous imprisonment under section 379 of P.P.C. The appellant Muhammad Ashiq was also convicted under section 302, P.P.C. And was sentenced to death and a fine of Rs,10,000; half of which was to be paid to the heirs of the deceased. He was further ordered to pay compensation amounting to Rs,10,000 to the heirs of the deceased; failure to pay fine or compensation would carry another punishment of rigorous imprisonment for six months.
2. The appellant Muhammad Ashiq preferred an appeal before the Federal Shairat Court where his sentence under section 379 was upheld. However, the sentence of death under section 302 was altered to life imprisonment. Now he has directed this appeal through Jail authorities against the said judgment of the Federal Shairat Court.
3. The allegation against the appellant and his co-accused Muhammad Shafique is that in the evening of 4-11-1986 they entered the Shop of Rang Zeb, the nephew of Massan, the complainant P.W.3 after parking their motorcycle in front of the shop. Muhammad Ashiq, the appellant had .12 bore gun in his hand while Shafique was empty-handed. They demanded Rang Zeb to hand over all the money he had at that time and Shafique took out the currency notes from the pocket of Rang Zeb; whereupon he grappled with Shafique and during this grapple the currency notes were torn into pieces and fell down on the ground. While grappling with each other, Rang Zeb and Shafique came out of the shop and Shafique called the appellant Muhammad Ashiq to save him from Rang Zeb, whereupon the appellant fired on Rang Zeb on the left side of his chest. Rang Zeb fell down and died at the spot. After committing the offence, both the accused persons ran away on their motor-cycle.
4. In order to establish this charge against the appellant, the prosecution has examined 11 witnesses in all, however, the ocular testimony is given by Massan, the complainant P.W.3 and Taj, P.W.4.
5. Massan, P.W.3 is the uncle of Rang Zeb, the deceased. He deposed that he was sitting at the shop of his nephew in the eventful evening and had seen the occurrence. Taj, P.W.4 is a Bus-driver.
According to him his Bus was standing before the shop of Rang Zeb at the time of occurrence and he was setting internal lights of his Bus. He saw that both the accused persons came on a motor- cycle. One of them went inside the shop and the other one having a gun in his hand stood at the door of the shop. The man who was inside the shop demanded money from the victim and put his hand into the pocket of Rang Zeb, who grappled with him and came out of the shop fighting. The man having a gun raised a Lalkara that whosoever came to intervene would be shot dead. He has further deposed that Shafique raised a Lalkara that the victim has overpowered him. At this Ashiq fired at the victim, Rang Zeb who died at the spot. He also testified that while the accused persons were running on the motor-cycle he has noted the number of Motor-Cycle as LEP-2819.
6. The appellant in his statement under section 342, Cr.P.C. Denied the charges against him and claimed that the case was made up against him due to suspicion and police pressure. He did not like to give a statement under section 340(2) of Cr.P.C. Not did he lead any defence evidence, however, he tendered in evidence Exh. D.B. Which is an F.I.R. Lodged by one Muhammad Jamil on 15-11-1986 and has no bearing on the present case.
7. We have heard Mr. Muhammad Ibrahim Satti, the learned counsel for the appellant who has taken us through the record. He vehemently contended that the case of the prosecution is full of doubts and the commission of the offence cannot be attributed to the appellant without making surmises and conjectures. He pointed out to the contents of the F.I.R. Where the names of the culprits are given as Muhammad Yousaf and Muhammad Nawaz instead of Muhammad Ashiq and Muhammad Shafique. In fact, the appellant and his co-accused Muhammad Shafique were arrested by the Police of Faisalabad in relation to another case, then the D.S.P. Of Faisalabad informed the Investigation Officer of the present case that during his investigation it was discovered that these two persons are also responsible for the offence committed in the Shop of Rang Zeb. The counsel for the appellant submitted that the confession of the appellant was never brought on the record nor the D.S.P. Informing about the involvement of these persons was examined in the Court and there is no evidence whatsoever to the effect that Muhammad Ashiq and Muhammad Shafique were actually the persons who were named in the F.I.R. As Muhammad Yousaf and Muhammad Nawaz.
8. We paid due attention to the submission of the learned counsel. It is true that the culprits have been named in the F.I.R. As Muhammad Yousaf and Muhammad Nawaz but the P.Ws have identified them with certainty and have disclosed in their statements that at the time of occurrence they were calling each other with fake names of Nawaz and Yousaf while actually their real names were Ashiq and Shafique.
9. The learned counsel has also challenged the identification of the appellant in this case. He insisted on the fact that it was a dark night and the P.Ws could not identify the offenders. We are not much impressed by this contention of the learned counsel because both the P.Ws. Have deposed that it was an evening time and the light of lantern and gas was on; therefore, it was not difficult to remember the features of the offenders.
10. The learned counsel has also assailed the identification parade conducted in this case. He pointed out to the statement of Massan, P.W.3 where he has admitted that the Police had shown him the accused persons in the police station before identification parade. It is true that Massan has admitted this fact in his statement but the other witness i,e. Taj, P.W.4 has expressly denied the suggestion that he had seen the accused persons in the police station.
11. Taj, P.W.4 is a quite independent and natural witness who has no grudge or ill-will against the appellant nor has he any relation with the complainant. His presence at the place of occurrence is established; he has correctly picked up the accused persons during the identification parade and there is no reason on the record whatsoever to discard his testimony. He has been correctly relied upon by the two Courts below.
12. The testimony of Taj, P.W.4 is further corroborated by the evidence of Muhammad Sarwar, P.W.10 who arrested the accused persons and recovered from them the motor-cycle bearing the same number as noted by Taj at the time of occurrence.
13. After hearing the learned counsel at length, we are of the view that there is no ground for this Court to interfere with the findings of the Federal Shariat Court. The appeal is also time-barred and no ground for condonation is forthcoming. Consequently, this appeal is dismissed.