JUDGMENT MIAN MUHAMMAD AJMAL, J.- The appellants herein have challenged the judgment of the learned Sessions Judge Mansehra in case FIR No. 104, dated 12-5- 1988, Police Station Batagram, who vide his judgment dated 15-9-1991 convicted both the appellants under section 302 PPC and sentenced them to life imprisonment with a fine of Rs. 40,000/- each, or in default of payment of fine to undergo further three years' R.I.
The fine on recovery was to be paid to the widow of the deceased. They were also convicted under section 394 PPC and sentenced to ten years' R1 each and a fine of Rs. 20,000/- each or in default to undergo further two years' R.1. Mst. Nijaz Bibi complainant has also filed Criminal Revision petition No. 3/92 for enhancement of sentence to death under section 302 PPC, confiscation of immovable property, compensation under section 544-A Cr.P.C, and also for recalling the benefit of section 382-B, Cr.P.C.
2. As per F.I.R. No. 104, dated 12-5-1988, Mst. Nijaz Bibi complainant lodged a report in Civil Hospital Batagram that at 'khuffan wela' she was present in her house alongwith Mst. Parveen Akhtar her sister-in-law, while here husband Mahbub-ur-Rehman Range Officer, had gone to Ravelian for bringing wheat from the godowns; that in absence of here husband two armed persons entered their room and asked for the keys of Safe, she told them that the keys were with her husband; the culprits tried to carry away the Safe and in the meantime her husband Mahbub-ur- Rehman arrived; the culprits started grappling her husband, in the meanwhile one of the culprits fired at her husband and injured him who was taken to the hospital where he succumbed to his injuries. She gave description of the accused who were pashto' speaking and that she could identify them.
3. After completion of investigating the case was sent for trial where the accused pleaded not guilty and claimed trial. The prosecution produced 25 witnesses. Statements of accused under section 342 Cr.P.C, were recorded who produced Wali Muhammad Khan as DW1. The learned trial Court on appreciation of the evidence produced in Court Convicted and sentenced the accused- appellants as mentioned above, Khalilur Rehman the third accused was, however, acquitted of the charge as the prosecution could not successfully prove the case against him.
4. Dr. Gul Muhammad Khan Medical Officer DHO Oghi (PW 4) on 13-5- 1988 at 7 AM conducted the post-mortem on the dead body of Mahbub-ur-Rehman and found the following: External Examination (1). A fire-arm entrance wound in left exilla 1 "x 1" size with charring marks.
(2) . Exit fire-arm would of injury No. 1 on the back at left side shoulder 2" x 2" size.
(3) . A fire-arm grazed wound on the left lower arm below the elbow joint 2" x I" muscle deep.
(4) . A fire-arm entry would on the back of left lumber area 1/2" x 1/2" size.
5. Exit fire-arm wound of injury No. 4 on the front of left abdomen 2" x 2" size.
Internal Examination Thoracice walls Thoracic cavity full of blood on left side. Plurae. Left lung, pericardiam of heart, blood vessels, abdominal walls, peritoneum were found injured. Stomach intact containing slight watery contents and some food particles. Small intestines and large intestines were found injured.
Spleen and left kindney were also found injured.
According to doctor the death has been occurred by fire-arm injuries on left side chest and left part of abdomen damaging the left lung and abdominal viscora resulting in profused bleeding leading to shock and death. Probable time between injury and death was instantaneous and between death and post-mortem examination 8 to 10 hours
5. Muhammad Azam IHC (PW 20) deposed that on receipt of murasila (Ex. PA/1) he incorporated the same into F.I.R. (Ex.PA). He is also marginal witness of recovery memo. (EXSPK) vide which sample slips of Zahir Shah, Rehmdad and PWs Mst. Nijaz Bibi and Mst. Parvin Akhtar were prepared.
He is also marginal witness of recovery memo. (Ex. PM) vide which receipt (Ex. PW 7/1) pertaining to the ornaments was produced by Fazalur Rehman father of deceased. He is also marginal witness of recovery memo. (Ex. Px) vide which the service book of the accused was taken into possession.
Syed Arif Hussan Shah D.S.P(PW 21) stated that on 15-5- 1988 he at the pointation of PW Muhammad Yaqub added point No. 9 in the site plan. He arrested accused Zahir Shah and Rehmdad on 23-5-1988 and on the next day he produced them before EAC Batagram for identification parade. He also recorded the supplementary statements of PWs Mst. Nijaz Bibi and Mst. Pervin Akhtar. Sajid Khan SHO(PW 22) stated that he searched the house of the deceased and took into possession time piece (Ex P 17), tape-recorder (Ex.P 18) bearing finger prints vide recovery memo. (Ex. PJ). Muhammad Akram Khan SHO (PW 23) partly investigated the case. He took into possession a receipt Ex. PW 7/1 pertaining to the purchase of golden ornaments vide recovery memo. Ex.PM. He moved an application for identification test of the golden ornaments before SDM Batagram which was marked to Tehsildar Batagram for the purpose. Gohar Rehman Khan SHO(PW 24) reduced the report of Mst. Nijaz Bibi into writing in shape of murasila (Ex. PA/1) and sent the same to Police Station Batagram for registration of the case. He prepared injury sheet (Ex. PO), inquest report (Ex. PP) in respect of deceased Mahbub-ur-Rehman and sent the dead body to mortuary for post-mortem examination. He proceeded to the spot, prepared the site plan (Ex.PB).
He took into possession diary(Ex. PI) alongwith some documents vide recovery memo. (Ex.PC). He also recovered vide Ex.PD empty shell of 7 mm(Ex.P 4) which was giving smell of fresh discharge. He also took into possession a piece of blood-stained curtain bearing cut marks of bullet (Ex. P 5), earth (Ex. P. 5-A). On 13-5-1988 he took into possession a sum of Rs. 45593/- of different currency notes having different denomination lying in Iron Safe (Ex. P 7). Vide recovery nremo. (Ex. PE) he also recovered a pair of ear-ring (Ex. P 8). Golden neckless (Ex. P 10) and a revolver (Ex. P 9) belonging to the deceased. Vide recovery memo. (Ex. PF) he took into possession a led bullet (Ex. PI 1) Electric bulbs (Ex. P 12). Vide recovery memo. (Ex. PG) he took into possession shirt (Ex. P. 15). Banyan (Ex. P I6) belonging to the deceased. On 27-5-1988 he arrested accused Khalilur Rehman. He also took into possession Rifle produced by Rehmat Shah father of accused Zahir Shah alongwith licence (Ex. p 20) vide recovery memo. (Ex. PL). On 5- 6-1988 while in nandcuffs Rehmdad led the police party to A1 Fakhr Hotel and after breaking the lock of a shop/godown he brought out an envelop containing ornaments from under the gunny bags, consisting of two golden finger rings (Ex. P 24) two golden bangles (Ex. P 25) and an ear-ring (Ex. P 26). All the articles were taken into possession vide memo. (Ex. PY). He obtained the fihger prints of Zahir Shah, Rehmdad, Mst. Nijaz Bibi, Mst: Parvin Akhtar and sent the same to Finger Prints Expert and the result of the same is (Ex. PT). He submitted complete challan in Court. Qazi Ghulam Mohy-ud-Din MIC Oghi (PW 25) deposed that he is conversant with the handwriting of late Sarfaraz Khan MIC Batagram who recorded the confessional statement of accused Zahir Shah. Muhammad Yaqub (PW 17) was driver of Water Shed Department at Batagram and used to drive PICK UP Datsun No. MA 3188. He stated that he had taken Mahbub-ur-Rehman deceased in pickup from Batagram to Ravelian for fetching wheat from there. After loading the wheat in trucks they started for Batagram and reached at 8.30 pm.
When they reached the house of the deceased and the deceased wanted to enter his house two persons namely, Zahir Shah and Rehmdad (both forest guards), were coming out from the house.
They both were armed with fire-arms i.e 7 mm rifles. The accused and the deceased grappled with each other and in the meantime Zahir Shah accused fired a shot at the deceased which hit him but as the deceased did not loose his grip, Zahir Shah, fired another shot with which the deceased fell down on the ground. The accused ran away towards the jungle. He stated that there was a grudge between the deceased and, the accused on calling explanation of the accused.
6. We have heard the learned counsel for the parties and have perused the record of the case.
7. The ocular account in this case has been provided by Mst. Nijaz Bibi (PW 15) widow of the deceased, Mst. Perveen Akhtarf (PW I6) sister of the deceased and Muhammad Yaqub (PW 17) department's driver who brought back the deceased after doing the official duty in pickup No. MA 3188. The first two witnesses (PWs 15 and I6) though related to the deceased, yet are natural witnesses, who have given a straightforward and direct version of the incident. The testimony of PW 17 is worthy of credence as he is disinterested and independent witness and the defence failed to bring on record that he was either inimical towards the appellants or had any ulterior motive to falsely implicate them. We have gone through the gruesome, strenuous and lengthy cross examination which runs into tens of pages on every witness and who deprecate this practice, but do not find any where anything that the witnesses had any reason to falsely involve the appellants in the case. Similarly we do not find anything on the record that the witnesses had any animus against the appellants to rope them unfoundedly, in absence thereof the intrinsic worth of their testimony is confidence inspiring and reliable. The defence contention that independent witnesses were not examined both at the investigation stage and the trial has no force, for normally non- concerned people usually avoid to become eye-witnesses in the murder cases to avoid wrath of the accused party. The defence by extra lengthy and irrelevant cross- examination has itself filled in the lacunas left by the prosecution. The contention that the PWs improved upon their earlier version has also no bearing as the defence in its cross-examination got those alleged improvements explained by the prosecution witnesses.
8. Mst. Nijaz Bibi (PW 15) was married to the deceased 5/6 months prior to the incident, she alongwith Mst. Parveen Akhtar (PW I6) were brought to Batagram from their village a month before the occurrence. The accused after entering the room where both the ladies were sitting remained there for about thirty minutes demanding/searching the keys of the Safe and after failing to find out the keys, they attempted to take away the Safe but did not succeed due to its heaviness. In the meanwhile husband of PW 15 arrived who caught hold of Rahmdad accused, hereupon Zahir Shah accused fired and in struggling they went out of the house, where two more shots were fired resulting into the death of Mahboob-ur-Rehman. Soon after the incidence, widow of the deceased (PW 15) lodged. The report in a simple straight forward manner charging two armed persons for house trespass, attempt to take away the Safe and the murder of her husband. Following morning both the ladies left for their village where they remained for some days. On their return identification parade was held on 24-5-1988 by Sarfaraz Khan MIC Batagram wherein both the ladies correctly identified the appellants thrice expressing their condemnation to them. The objection of the defence that the accused were shown to the witnesses before arranging the identification parade has no substance at all as nothing was brought on the record to substantiate the same by any evidence, thus its evidentiary value and validity is unquestionable.
9. The contention that Mst. Nijaz Bibi (PW 15) charged the accused for the theft of ornaments and other articles on 24-5-1988 in her supplementary statement and not in the FIR could not impress us, as at the time of incidence she has lost her life partner to whom she got married only 5/6 months back, and in such a shocking situation her foremost priority was her husband about whose murder she promptly lodged the report and it appears that she did not attach any importance to the theft of her ornaments at that time. After composition she recorded her supplementary statement in which the detail of the theft property was given which was reiterated in her Court statement and which could not be impaired in lengthy cross examination. The stolen ornaments were duly proved to be her belongings through the testimony of PW 7, which on correct identification were handed over to her.
10. Learned defence counsel attempted to make a point that the medical evidence is not in line with the ocular account, hence the benefit of discrepancies and doubt be given to the appellants.
We do not find any efficacy in these arguments. All the eye-witnesses have consistently stated that the deceased on arrival to his house caught hold of the accused Rehm Dad while Zahir Shah accused fired upon him to rescue his companion and during the scuffle they went out of the house wl?Ere two more shots were fired at him. The medical evidence show three entry wounds which furnishes complete support to the ocular evidence leading to an inference that the eyewitnesses have given truthful and faithful depositions.
11. About confession, learned counsel for the appellants stated that the learned trial Judge found it legally defective, hence it was kept out of consideration. We too. Concur with the finding of the learned trial Court on this item. Nonetheless there is sufficient evidence as discussed above to prove the guilt of the appellants for which they are facing prosecution.
12. Lastly it was argued that the appellants were charged under section 17(4)' of the Offence Against Property (Enforcement of Hadood) Ordinance, 1979 but have been convicted and sentenced under sections 394 and 302 PPC which is illegal and uncurable. We do not find any substance in this contention as well. Section 17(4) of the Ordinance ibid reads as under :-
17. Punishment for Haraabah.
(1).........
(2).........
(3).........
(4) Whoever, being an adult, is guilty of haraabah in the course of which he commits murder shall be punished with death imposed as hadd."
The punishment provided above can only be awarded when the offence of Haraabah is proved by the evidence as required under section 7 of the Ordinance, and when no such evidence is available then under section 20 of the Ordinance, the offenders shall be awarded punishment provided in the Pakistan Penal Code for the offence of dacoity, robbery or extertion, as the case may be. The appellants have committed two independent offences in continuity i.e. Robbery and murder, therefore they have been properly convicted and sentenced under both the sections. The appellants in order to commit theft/robbery entered the house of the deceased where the inhabitants PWs 15 and I6 were kept under constant fear of death, hurt and wrongful constraint and thereby they committed an offence Under section 394 PPC. During the course of robbery, the house master arrived at the. Spot who caught hold of the accused Rehm Dad and during grappling accused Zahir Shah fired at him and in the process they went out where two more shots were fired at him. Since murder was not committed during robbery but was committed later though in continuity to the earlier offence, in order to mark a way to escape, therefore, it is a qatl-e-and within the meaning of section 300 PPC punishable under section 302 PPC, hence we do not find any illegality in the conviction of the appellants. Even if there is any error, omission or irregularity in mentioning the appropriate sections of law while framing the charge, yet the appellants have had fairly a fair trial with full knowledge that they were facing prosecution for theft/robbery and murder and for their defence they had engaged competent advocates, who cross examined the prosecution witnesses at considerably length, thus no prejudice has been caused to them in any manner and irregularity if any, was curable under section 537 Cr.P.C.
13. We may point out an anomaly in law with which we came across in this case, that subsection (1) of Section 17 of Offences Against Property (Enforcement of Hadood) Ordinance, 1979 provide that when in the course of haraabah neither murder is committed nor property is taken away, the offender shall be punishable with whipping not exceeding thirty stripes and with rigorous imprisonment not less than three years subsection (2) of the said section provide that when no property is taken away but hurt is caused, the offender shall be punished for causing such hurt in accordance with such other law as may for the time being be applicable besides the punishment of haraabah provided under sub-section (1), subsection (3) of same section provide that when only property valuing or exceeding the niasb' is taken away, the offender shall be punished with amputation of his right hand from the wrist and of his left foot from the ankle and sub-section (4) provide that if murder is committed in the course of haraabah, the offender shall be punished with death imposed as hadd. Unfortunately, the proof as required under section I6 read with 7 of the Ordinance is generally not available, then under section 20 of the. Ordinance, the offence for haraabah becomes liable to tazir and the offender can be punished for the offences of dacoity, robbery or extortion as provided in Pakistan Penal Code.
The comparative reading of section 17 of the Offences Against Property (Enforcement of Hadood)
Ordinance, 1979 and that of sections 384 to 389 regarding extortion , 392 to 397 regarding regarding robbery and dacoity, would show that the punishment as provided in the later sections of Pakistan Penal Code do not correspond to the punishments as provided in the former section of the Ordinance for similar offences. In the present case the appellants were charged under section 17(4) of the Ordinance but since the required evidence as prescribed under section 7 was not available hence they were liable to punishment under tazir, and since the punishments for the dacoity robbery or extortion only provide punishments for the v said offences and do not include the punishment for the offence of murder therefore, they have been rightly convicted and sentenced for the offences of robbery and murder under sections 394 and 302, Pakistan Penal Code. Section 17(4) of the Ordinance do not either equate or correspond' to the offences punishable under sections 384 to 389, and 392 to 397* therefore, Section 20 of the Ordinance needs to be suitably amended in the manner that when hurt or death is caused in the course of aforesaid offences, the offender besides the punishment for the offences of dacoity. Robbery as the case may be, shall be punished for causing hurt or death as the ease may be, under the relevant provisions of the Pakistan Penal Code.
14. To sum up, the overall prosecution evidence totally prove the commission of the crime by the appellants beyond any shadow of doubt, therefore their appeal being devoid of any merits is dismissed.
15. In the facts and circumstances of the case, we do not tend to enhance the sentence, consequently. Criminal Revision No.3/1992 also stand dismissed.