' SARDAR MUHAMMAD DOGAR, J.--- Irfan Masih 24, Boota Masih 20 and Tariq Masih 27, were tried by Sessions Judge. Sheikhupura under section 302/34, P.P.C., and under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Learned Trial Judge vide judgment, dated 21-3- 1995 convicted all of them under section 302/34, P. P . C. And under section 17 of the said Ordinance and awarded sentences as follows:--- Under section 302/34, P.P.C.Death to each and to pay a fine of Rs.10,000 each, in default whereof to suffer R.I. for three years each plus to pay Rs.20,000 each to the legal heirs of the deceased as compensation.
Under section 17 of the said Ordinance.Each sentenced to death.
' Irfan Masih filed Criminal Appeal No,71/L of 1995 before this Court. Boota Masih and Tariq Masih filed Criminal Appeal No,135 of 1995 before Lahore High Court. Learned trial Judge also made reference for confirmation of sentence of death to the convicts to the Lahore High Court. On a move by counsel for Irfan Masih, Honourable Chief Justice of Lahore High Court transferred, Reference No,97/95 made by trial Judge and Criminal Appeal No,83/L of 1997 filed by Boota Masih and Tariq Masih to this Court as the jurisdiction to hear this appeal lay with this Court. The appeal filed by Boota Masih and Tariq Masih received from Lahore High Court was registered by the office as Criminal Appeal No,83/L of 1997 and the reference made by learned trial Judge was registered as Murder Reference No,2/L of 1997. As all the matters have arisen from the same judgment they are being disposed of together.
2. F.I.R., Exh.P.B./1 was registered at Police Station, Saddar Nankana Sahib, by Javed Iqbal, H.C. P.W.3 on 7-11-1991 at 2-55 p.m. On receipt of statement Exh.P.B. Of Ghulam Rasool P.W.5 recorded on the same day by Muhammad Zafarullah, S.H.O. P.W.11 at 2-00 p.m. At Pull Samenala at Shahkot Road.
' According to F.I.R., the complainant was serving as Fitter-Mechanic in Engine Shed, Railway Station, Lahore. His brother Muhammad Siddique (deceased) used to ply Taxi Car No,5227/LHP from Taxi Stand, Railway Station, Lahore. On 6-11-1991 complainant was present at Taxi Stand, Railway Station alongwith Muhammad Maqsood and Ejaz Gul, Taxi Drivers. His brother Muhammad Siddique was already there. At 2-00 p.m. Boota Masih, resident of Martenpur, Tariq Masih, resident of Karachi and Irfan Masih, resident of Sheikhupura, who were known to the complainant came there. They used to come earlier also for hiring taxi from the same taxi stand. They booked taxi of Muhammad Siddique for Manawala at a rent of Rs,600. In his presence and presence of his companions, Siddique drove taxi with the abovenamed three persons. As Siddique did not return till the following day, he (complainant) went in search of him alongwith Muhammad Maqsood and Ejaz Gul to Manawala.
There they learnt, that some unknown culprits had murdered a taxi driver at the service road of Samenala and after throwing the dead body they had taken away the taxi car. The complainant went to the spot alongwith Maqsood and Ejaz Gul. They found dead body of Muhammad Siddique lying there besmeared with blood. Leaving Maqsood and Ejaz Gul at the spot the complainant proceeded to lodge the F.I.R. He came across Zafarullah, Inspector at Pull Semenala, Shahkot Road, who recorded his statement Exh.P.B. The complainant alleged in the F.I.R. That Tariq and Boota after murdering his brother had taken away the taxi car.
' Zafarullah, S.H.O., after despatching statement Exh.P.B. To the Police Station, Nankana Sahib for registration of case reached the spot. After preparing injury statement Exh.P.G. And inquest report Exh.P.L., he entrusted the dead body to Abdul Wahid and Niaz Ahmad, Constables for post-mortem.
Thereafter he inspected the spot and collected blood-stained earth vide memo. Exh.P.D. Parna P.4 and pair of shoes P.5/1-2 (belonging to the deceased) lying at the spot were taken into possession by him vide memo. Exh.P.E. He prepared rough sketch plan Exh.P.2 and recorded the statements of P.Ws. On receiving information that Boota, Tariq and Irfan were under arrest in some other case with Police Station, Lagsian, District Sargodha, he went there and took them into custody on 14-12- 1991. After obtaining their remand on 15-2-1991 from the Magistrate he interrogated them. During interrogation on 21-12-1991 after disclosure Boota, Tariq and Irfan individually pointed out the place where they had committed the murder of Siddique. The S.H.O. Prepared memos Exhs.P.N., P.O. And P.P. Respectively at the pointing out of the accused. On the same day Boot led to the recovery of blood-stained Chhuri Exh.P.6 from near the place of occurrence which was taken into possession vide memo. Exh.P.F. After completion of necessary investigation challan was submitted to Court.
3. Statements of 11 P.Ws. Were recorded at the trial. Positive reports Exhs.P.Q. And P.R. From the Office of Chemical Examiner and Exhs.P.S. And P.T. From the office of the Serologist were also tendered in evidence.
4. Dr. Muhammad Afzal who had performed autopsy on the dead body of Siddique on 8-12-1991 at 11-00 a.m. Appeared as P.W.B. He had noted an incised wound 15 x 6 c.m. x bone deep on the front of neck and upper part with cutting of blood vessels, trachea, larynx.
' Larynx and trachea were injured under the injury. Rest of the organs was healthy. Stomach contained 4 oz of semi-digested material.
' The injury which was opined to be ante-mortem and caused by a sharp-edged weapon was declared grievous and dangerous. Death was opined to have resulted due to shock and haemorrhage from the said injury.
' Time between injury and death was immediate, while duration between death and post-mortem was opined to be 38/39 hours. During cross-examination he denied the suggestion that he had prepared a fictitious report under instructions of the complainant side to advance their case.
Ghulam Rasool, complainant while appearing as P.W.5 reiterated the facts made by him in the F.I.R.
Exh.P.B./1. He also claimed to have identified the dead body of his brother at the time of post- mortem and of having attested recovery memo. Exh.P.A. Vide which the Investigating Officer had taken into possession the last-worn clothes of the deceased after post-mortem. He also claimed that the Investigating Officer in his presence had taken into possession Jogger P.5 and Purna P.4 (of the deceased). During cross-examination he stated that his duty hours were from 4-00 p.m, to 12 in the night during the days of occurrence. He explained that duty hours changed on every Friday. He stated that he had not joint business with his deceased brother. According to him deceased was driving taxi for the last 24 years. He explained that Taxi Car No,5227/LHP was owned by Amjad and was driven by deceased at daily rental basis. He stated that he knew Ejaz Gul and Maqsood P.Ws., as they were taxi drivers and used to park their taxis where his deceased brother used to park. He explained that deceased always used to return at night and that it was for the first time that he had not come till late and so he was worried. He admitted that he had no direct link with the accused and that he knew them only through deceased as they used to come to the taxi stand earlier also. He stated that when they went to the spot, there was nobody near the dead body and it was lying at a distance of 60/70 yards from a thoroughfare at a deserted place. He explained that he used to take lunch with his brother during the days of occurrence. He denied the suggestion that he had named the accused at the instance of Amjad and Zafarullah, S.H.O or that they had pursuaded him to name them, otherwise the murder of his brother will go invain. He denied that there was no litigation between Irfan Masih and one Barkat Ali, a police tout. He denied the suggestion that Barkat Ali forced Amjad Ali and police to involve Irfan accused. Ejaz Gul, P.W.4, by and large made statement in line with the statement made by Ghulam Rasool P.W.5, while naming the accused the used the word 'probably' for Irfan Masih, however, he correctly pointed out each of the accused. He claimed that he had seen all the accused going in the taxi with Muhammad Siddique deceased. During cross-examination he stated that he knew Ghulam Rasool and Maqsood for the last one and 1-1/4 years. He denied that he had any joint business with them.
He stated that although he knew the deceased like other taxi drivers but they were not on visiting terms with each other. He stated that he had seen the accused with the deceased fifteen days prior to the occurrence also. On that day accused hired the taxi of deceased and had returned within half an hour. He stated that on the day of incident Ghulam Rasool was present at the taxi stand before the accused came there. According to him Ghulam Rasool used to come earlier also to meet and inquire about Muhammad Siddique. He denied the suggestion that he had made statement due to friendship with the deceased. The suggestion that he had named the accused at the instance of Amjad, Zafarullah, Inspector and Muhammad Iqbal, S.I. Was denied by him.
5. Ghulam Abbas, Constable P.W.7 stated that he had deposited the parcel containing blood- stained earth in the Office of Chemical Examiner at Lahore on 13-11-1991, which had been entrusted to him on the same day by M.H.C. Of the police station for that purpose.
' He also claimed to have witnessed recovery of blood-stained Chhuri P.6 at the pointing out of Boota Masih on 21-12-1991 while being in the custody of police from near Jhund of Kikar trees, near place of occurrence and of having attested recovery memo. Exh.P.F. Vide which the Investigating Officer had taken Chhuri into possession. During cross-examination he stated that there was no Abadi near the place of occurrence and so nobody was joined from the public. He denied the suggestion that no recovery had taken place and that he had made a false statement.
' Naimat Ullah, A.S.-I. P.W.9, stated that he was posted at Police Station, Lagsian, District Sargodha on 3-12-1991. He added that on that day at 8-30 p.m. He was present at barrier Sial Morr alongwith Muhammad Iqbal, S.I., Rab Nawaz, A.S.-I. And three Constables in connection with Nakabandi. Car No,5227/LHP of yellow colour came there at 8-30 p.m. The car was stopped. The driver of the car gave him name as Tariq Masih. The person sitting on the front seat gave his name as Boota Masih and person sitting on the rear seat gave his name as Irfan Masih. Boota Masih stated that he was posted at CIA, Lahore and that Tariq was his personal driver and while Irfan was his personal employee (stating so he pointed out the accused). He further stated that on inquiry they came to know that they were fictitious persons, therefore, they were taken into custody, car was taken into possession and the uniform worn by Boota Masih was also taken into possession, he added that registration of the car and route permit had also been taken into possession but they had been returned to the owner. During cross-examination he stated that in the case registered against three accused no person from the public was cited as a witness. He stated that Zafarullah, S.-I.
(Investigating Officer of this case) had joined him in the investigation of this case once. He denied the suggestion that antecedents of the accused were available to him and Muhammad Iqbal, S.I.
On 7-11-1991. He also denied that the proceedings done by them were fake and had been done at the instance of Zafarullah, S.H.O., Nankana to strengthen the murder case registered at Nankana.
6. Muhammad Iqbal, S.I., stated that while being posted at Legsian he had set up at picket Sial Morr alongwith Rab Nawaz, A.S.-I., Niamatullah, A.S.-I. And constables on 3-12-1991. At 8-30 p.m. Car No,5227/LHP came from Lahore side. The car was stopped by them, one person was sitting with the driver in the front seat. The person wearing uniform stated that he was serving at CIA, Lahore as S.I., the driver was Tariq Masih and Irfan Masih is personal employee (he correctly identified the accused before the Court). He stated that on checking it was found that the car was in the name of Muhammad Amjad. Due to suspicion he interrogated Boota Masih separately whereupon he disclosed that they had hired a car from Lahore and on way had murdered the driver namely Muhammad Siddique in the area of Nankana Sahib and drove car with a plan to go to Ilaqa Ghair.
He added that he arrested the accused, took into possession uniform worn by Boota as well as the car alongwith the accused and registered the case against them at the police station. During cross-examination he disclosed that as a result of disclosure made by the accused he had informed Nankana Police through wireless message about the arrest of the accused. He stated that he had not produced accused before any Magistrate for recording their statements. He declared that he had never met the owner of the car prior to 4-12-1991. He stated that he had come to know about the registration of the murder case from Amjad, owner of the car who had come to him. He added that he handed over the car on Superdari to Amjad on the order of the Magistrate.
He denied the suggestion that the owner of the car had made a complaint to DIG that he had kept car for personal use. He was asked certain questions regarding the dates written on the application of Superdari of car which he explained. He stated that he had obtained judicial remand of the accused on 4-12-1991. He explained that the accused had made disclosure before him in the presence of Rab Nawaz and Niamatullah P.Ws.
7. Zafarullah, S.H.O., Nankana who had recorded statement Exh.P.B. Of the complainant, sent the dead body for post-mortem after preparing necessary papers, taken into possession the articles lying on the spot as well as bloodstained earth, obtained the custody of the appellants from Sargodha Police on receiving information that they were under arrest in a case registered against them at Lagsian Police Station under sections 170, 171 and 411, P.P.C., and had taken into possession blood-stained Chhuri P.6 got recovered by Boota Masih on 21-12-1991 and had also prepared memos. Exhs.P.N., P.O. And P.P. Regarding pointed out of the place of occurrence by each of the accused separately appeared as P.W.11 and after deposing those facts gave the details of the investigation done by him. During cross-examination he stated that it had not been brought to his knowledge by any one that a dead body was laying since 6-12-1991. He admitted that no one appeared before him to state that deceased was seen alive in Manawala on 6-11-1991. He stated that he had investigated about the relationship of the accused inter se and he had come to know that they were only friends. He stated that the accused were in police lock-up in Sargodha and that they had been arrested, in, only, one case. According to him he had gone to Sargodha on 14-12-1991 and 22-12-1991 in connection with investigation of this case. He added that he had come to know that Muhammad lqbal, while investigating the case learnt that this taxi was used in the main murder case:. He stated that he had received extracts of Sargodha Police in Case No,76 (under sections 170, 171 and 411, P.P.C.) and admitted that he neither knew, from-where the car was taken into possession, nor he visited the taxi stand from , where the car had been hired. He denied the suggestion that Muhammad Amjad, owner of the taxi car was related to him. The suggestion that the car was never stolen and a false case was registered against the accused was denied by him.
He denied the suggestion that Irfan Masih was pursuing the case of his uncle regarding some land against Barkat Ali who was affiliated with him. The suggestion that the names of the accused were inserted in the F.I.R. At his in states with the connivance of Muhammad Amjad was also denied by him. He denied-the suggestion that no Chhuri had been recovered and he had planted a false case against accused.
8. The statements of remaining witnesses are more or less of a formal nature.
9. Appellants during their statements under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. Irfan Masih stated as follows in answer to the question "why this case against you and why the P.Ws. Have deposed against you": ' is a case of blind murder. Probably the P.Ws. Have been given an Oppression that if they would not name the accused proposed by the podlice in the case, the murder of their relative or friend will go invain and culprits may go scot-free. Under the pressure of the police they have involved me in this case."
' In answer to the question "have you anything else to say" he stated as follows:--- "The local police has joined hands with Barkat Ali against whom my uncle has civil litigation. I was pursuing the case of my uncle as he is an old man of 60 years of age with weak physique. Barkat Ali is a police tout. He has joined hands with Zafarullah, Investigating Officer, who is also resident of Shiekhupura and also belongs to this District. Zafarullah, Investigating Officer has transported my name to Sargodha Police and had manaeouvred a fake recovery case of a taxi car there. My name was actually given to the police by Barkat Ali, just the same day this unfortunate incident took place. Later on firstly I was illegally detained by Sheikhupura Police and then, sent to Sargodha only to fill in the blank, that is why my features given by Sargodha Police do not tally with those given by Sheikhupura Police. As it appears from the record Zafarullah, Investigating Officer has used only the name of taxi car just to connect the accused with the case but the recovery is fake and proved on record to be fictitious. Owner of the car allegedly used in incident. Amjad, Barkat and police have joined hands only to succeed the case against the accused persons at the behest of police. Barkat has not come forward, but friendly played role. I do not know the accused I have no motive against the deceased who is not known to me. I am innocent and have been falsely involved in this case."
' He produced in defence certified copy of application of Superdari for car as D.1 alongwith order of the Magistrate on the same as D.2, report of the Investigating Officer as Exh.D.3, photostat copy of judgment of civil suit titled Mukhtar v. Barkat Ali Mark-A and photostat copy of remand order of case F.I.R. No, 50 at Police Station, Lagsian obtained by Rab Nawaz, A.S.-I. Mark-B.
' Boota and Tariq Masih in answer to the same questions took up the plea that they were innocent and had been falsely involved by the police.
10. Learned counsel for the appellants after having taken us through the evidence, contended that there was no ocular account of the occurrence of murder that the evidence of last seen deposed to by P.Ws. 4 and 5 apart from being interested was even otherwise not worth reliance as both of them made contradictory statements, that the evidence of the recovery of taxi car of the deceased from the appellants was not confidence inspiring as the same appears to have been fabricated in connivance with Zafarullah, S.H.O./Investigating Officer of the murder case. In that connection learned counsel referred to the overwriting of dates, beneath the signature of the Investigating Officer and Illaqa Magistrate on the application for Superdari by Amjad owner of the car. Learned counsel argued that the overwriting of the dates, show that actually the appellants were already in the custody of Sargodha Police and the story of the prosecution that they were found in the taxi car on 3-12-1991, was not correct. Learned counsel argued that the evidence of recovery of Chhuri at the instance of Boota was deposed to only by police officials and so it would not be safe to rely upon their statements. Learned counsel strenuously argued that in a case of circumstantial evidence if any link is broken or any piece of evidence is found unreliable, the judgment of conviction should not be maintained. Lastly learned counsel submitted that even if the Couri comes to the conclusion that the conviction was maintainable the sentences of death both awarded to the appellants on both counts should not be confirmed as it was not a case of extreme penalty of sentences of death.
11. Learned counsel for the State defended the judgment of the trial Court and argued that the prosecution evidence in this case has been deposed to by independent witnesses and there was nothing on record to hold that any of the witnesses had any animosity or differences even, with any of the appellants. Learned counsel submitted that the appellants had committed a very heinous crime and they do not deserve any leniency.
12. We have considered the criticism of the learned counsel for the appellants about the evidence of last seen deposed to by Ghulam Rasool, P.W.5, brother of the deceased and Ijaz Gul, P.W.4, a co- taxi driver of the deceased.
Ghulam Rasool was serving in the Railway Department in the Railway Shed at Lahore Station. It was usual with him to visit taxi stand. He not only used to visit the taxi stand to meet and inquire about welfare of his deceased brother but it was also his practice to have lunch with him at about 12-00 noon, his presence, therefore, at the taxi stand was neither unusual nor by chance.
' Ijaz Gul, P.W.4, also used to ply taxi. He used to park his taxi, also, at Railway Station Taxi Stand. He knew the deceased as a co-taxi driver and since Ghulam Rasool was a casual visitor, he knew him also as a brother of the deceased. His presence at the taxi stand, also, was neither unusual nor by chance. Both of them stated that they knew and could identify the appellants as they used to come to the taxi stand for hiring taxi. The statements made by both of them, corroborate each other that the appellants had come to the taxi stand in their presence and had booked the taxi of the deceased for going to Manawala on a rent of Rs,600 and the deceased had driven them away in their presence. At the trial none of them made any exaggerated claim of any ocular knowledge about the commission of murder of Muhammad Siddique. They only deposed what had taken place in their presence at the Lahore Railway Station. The inter se relationship between both the P.Ws. Was not more than of being acquaintances. They were neither related nor had intimate relationship of visiting each other's house. They had no enmity or against any of the appellants. In fact this was never alleged by any of the appellants either during investigation or at the trial. In the circumstances we neither find any reason nor justification to discard the testimony of any of them.
The contention of the learned counsel for the appellants therefore, stand repelled.
13. The appellants had been found travelling in the Taxi Car No,5227/LHP, by Muhammad Iqbal, S.H.O., Police Station Legsian, District Sargodha, alongwith Niamat Ullah, A.S.I. And other police officials at the barrier at Sial Morr. Tariq Masih was driving the car, Boota Masih was sitting on the front seat, clad in police uniform, while Irfan Masih was sitting in the rear seat. Boota Masih had posed that he was serving in C.I.A., Lahore as SubInsepctor and that Tariq Masih was his personal driver while Irfan Masih was his personal employee. Neither any of them was in possession of driving licence nor they had the registration book of the car with them. The police officials due to suspicion interrogated them and found that they had told lies, consequently they were arrested, car was taken into possession, registration book and route permit found in the car was also taken into possession, (registration book was in the name of one Malik Amjad). A case under sections 170, 171 and 411, P.P.C. Was registered against them. The uniform worn by Boota Masih was also taken into possession. On the basis of the further disclosures, made by the appellants, the S.H.O., Legsian had sent the information to the Nankana Police through wireless message. It was on the basis of information through wireless message that Zafarullah, S.H.O., Nankana had gone to Legsian Police Station on 14-12-1991 and obtained their custody. The statements made by Niamat Ullah, A.S.-I., P.W.9 and Muhammad Iqbal, S.H.O., P.W.10, about the appellants having been found in possession of Car No,5227/LHP, which was being plied by the deceased as a taxi and which they had hired from Siddique deceased and on which they had left Taxi Stand Lahore for Mananwala alongwith the deceased are not only sound but confidence inspiring also.
' The argument of the learned counsel for the appellants that actually appellants had not been found---travelling in the taxi of the deceased by Sargodha Police on 3-12-1991, as alleged by the prosecution and that they had been sent to Sargodha Police by Zafarullah in connivance with one Barkat Ali who was inimical to Irfan Masih has not impressed us at all. The contention appeared to be a far flung idea, not supported by the evidence. There was no connection between the police officials of Legsian Police Station and police officials of Nankana Police Station. The two police stations were not only situated in different Districts but were also in different Divisions. There is no evidence that they were even known to each other. It is impossible to believe that so many police officials including S.H.O., serving at Legsian Police Station would have become a party to fabricate, not only the evidence of the appellants being in possession of the car of the deceased but also that one of them was impersonating as a Sub-Inspector of the Police. The reference made by the learned counsel for the appellants to the overwriting of the dates on the application of Superdari submitted by Amjad owner of the car to the Magistrate has been examined by us minutely. We do not think that the overwriting of the date of report by the Investigating Officer, and overwriting date beneath the order by Magistrate can be considered as a sound base to grant the argument of the learned counsel for the appellants, that they had been deported by Zafar Ullah, S.H.O., Nankana to Sargodha for arrest alongwith the car from a place in District, Sargodha. The whole idea and theory propounded by the appellants appeared to us to be a tale of bull and cock. The stance of the appellants that Zafar Ullah, had done all that, under the influence of some body known as Barkat Ali has not impressed us for the reason that no connection was shown between said Barkat Ali and the complainant or the deceased. After all why should the complainant had gone by the will of Barkat Ali to involve any body falsely in the case of murder of his brother? The Sargodha Police had no apparent interest in the prosecution of the appellants in the case of murder of Siddique. They were neither charged with responsibility of prosecuting them nor they had any connection with the deceased or his brother.
14. A every important link between the statements made by P.W.4 and P.W.5 and the evidence given by P.W.9 and P.W.10 i,e,, Niamat Ullah, A.S.I. And Muhammad Iqbal, S.H.O., is, the fact that Boota Masih appellant was wearing uniform of police. Ijaz Gul P.W.4 disclosed during cross-examination that when Boota Masih had hired the taxi and taken the deceased alongwith him from the taxi stand alongwith his companions (co-appellants) he was in police uniform. The Sargodha Police i,e,, P.W.9 and P.W.10 alongwith other police officials had also found Boota clad in police uniform. It is not a case of verbal statement made by P.W.9 and P.W.10, but it is a case which finds support from the registration of case at Legsian Police Station under sections 170, 171 and 411, P.P.C. On 3-12-1991.
In the circumstances, evidence of the, appellants having been in possession of the car of the deceased finds corroboration from the circumstance noted above. There are quite important and convincing links between the evidence of last seen and the evidence of possession of the car by the appellants.
' We find no hesitation to observe that the evidence deposed to by P.W.4, P.W.5, P.W.9 and P.W.10 is not only inter-linked but connects the appellants squarely with the commission of crime, that they were charged with.
15. Boota Masih appellant during investigation had got recovered bloodstained Chhuri from a place near the place of occurrence. The Chhuri was found stained with human blood. This fact is born out by the reports from the Offices of the Chemical Examiner and Serologist.
' Although no public witness had been examined at the trial to prove recovery of Chhuri but we have it on record that the recovery was effected from a place where there was no Abadi around. In the circumstances only that person could have witnessed the recovery who had accompanied the Investigating Officer, when Boota Masih had led the S.H.O., to effect the recovery of Chhuri. The evidence of recovery of blood-stained Chhuri, therefore, also lends corroboration to the evidence of last seen and the evidence of the appellants having been found in possession of Car No,5227/LHP which was in possession of the deceased.
16. There is yet another important aspect, in this case and that is, that the appellants not only belonged to different places but different areas also. Irfan Masih was resident of a village within the area of Police Station Saddar Sheikhupura, Boota Masih was resident of a village falling in the area of Police Station Saddar, Nankana in Tehsil Nankana Sahib, while Tariq Masih was resident of a colony in Karachi. Had they not been seen by P.W.4 and P.W.5 at Taxi Stand Railway Station Lahore and had they not been found together sitting/ travelling, in Car No,5227/LHP at a place of Sargodha, by P.W.9 and P.W.10, how could have anybody including P.Ws. 4, 5, 9, 10 and 11 i,e,, Ijaz Gul, Ghulam Rasool, Niamat Ullah, Muhammad Iqbal and Zafarullah have thought of naming or arresting them together in this case? In fact we had confronted their counsel with this proposition and he had not been able to say anything what to say of advancing any sound and convincing argument.
17. Zafarullah, S.H.O., had stated at the trial that all the appellants individually had pointed out the spot where the murder was committed and that he had prepared separate memos. In that regard.
We discarded the piece of evidence as the same was not admissible on account of the fact that as a result of the pointing out neither anything was taken into possession therefrom nor was anything recovered.
18. We also consciously avoided taking into count the statement made by Muhammad Iqbal, S.H.O., about disclosures said to have been made by the appellants before him during interrogation, after they were taken into custody on being caught with taxi car in their possession, about the commission of murder of Muhammad Siddique as in our view the said disclosure being statements before police were not admissible in evidence.
18- A. Having carefully applied our mind and having considered all evidence on record and the arguments advanced by the learned counsel for the appellants and the pleas taken by the appellants during the trial, we are fully convinced that the prosecution has been able to prove the case against the appellants beyond any reasonable shadows of doubt. The conviction of the appellants under section 302/34, P.P.C. And section 17 of the said Ordinance are maintained. In this case the Trial Judge had not followed the procedure for Tazkiya-AlShuhood, before recording statements of the P.Ws. Sentence of the death awarded to the appellants for having committed offence under section 17 of the said Ordinance appears to have been passed as Hadd punishment.
Punishment of Hadd cannot be awarded without resorting to Tazkiya-Al-Shahood before recording statements of the P.Ws. The sentences of Death by way of Hadd is, therefore, not confirmed.
19. Subsection (3) of section 11 of the said Ordinance reads as follows:--- "In a case mentioned in clause (b), or clause (c) or clause (d), of subsection (1), the Court may award Tazir on the basis of the evidence on record."
Ta'zir has been defined as follows in clause (g) of section 2 of the said Ordinance:--- ' Ta'zir' means any punishment other than Hadd' Considering the legal position each of the appellants are sentenced by way of Tazir to undergo imprisonment for life."
20. During post-mortem examination, the deceased was found to have suffered only one incised injury. The doctor who had performed autopsy had opined that death had resulted due to that injury. Boota Masih appellant had led to the recovery of blood-stained Chhuri. Chhuri can cause an incised wound. Although we have no doubt that all the appellants had common intention to commit the murder of the deceased and we have upheld their convictions under section 302/34, P.P.C., but since a safe inference can be drawn from the facts noted in the preceding lines that the injury which had proved fatal would have been caused by Boota Masih. We are not inclined to confirm the sentences of death awarded to Wan Masih and Tariq Masih. The sentences of death awarded to both of them are, therefore, altered to imprisonment for life to each. The sentence of death awarded to Boota Masih is confirmed. Since after the promulgation of Qisas and Diyat Ordinance sentence of fine for conviction under section 302, P.P.C. Has not been provided, the sentence of fine of Rs,10,000 to each of the appellants for conviction under section 302/34, P.P.C., is, therefore, set aside. However, the sentence to each of the appellants to pay a sum of Rs,20,000 to the legal heirs of the deceased is maintained. Fine shall be recovered as arrears of land revenue.
Benefit of section 382-B, Cr.P.C. Shall be extended.