1. SARDAR MUHAMMAD DOGAR, J---Muhammad Aslam 22, Muhammad Azam 26 and Faqqar Hussain alias Faqri were tried by Additional Sessions Judge, Khanewal under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for having committed Harabah by dacoying Suzuki Car No,MNL 4194 belonging to Shahzad Ahmad, under section 302/34, P.P.C. for having murdered him Shahzad Ahmad and under section 412/34, P.P.C.
2. Learned trial Judge vide judgment dated 6-6-1991 convicted Muhammad Aslam and Muhammad Azam under section 302/34, P.P.0 and under section 394, P.P.0 and awarded sentences as follows:-- Under section 302/34, P.P.0 Death to each plus to pay a fine of Rs,10,000 in default whereof to further undergo R.I. for two years each. Under section 394, P.P.0 Each was sentenced to undergo imprisonment for life plus to pay a fine of Rs,5,000 in default whereof to suffer R.I for one year.
3. Faqqar Hussain alias Faqri was acquitted vide same judgment.
4. 2.Muhammad Aslam filed Criminal Appeal No, 71/I of 1994, while Muhammad Azam filed Criminal Appeal No,283/L of 1994 from jail. The reference filed by the learned trial Court for conformation of death sentences is also before us. As all the matters have arisen from the same judgment they are being disposed of together.
5. Before proceeding further we would like to mention here that the convicts had filed firstly appeal before the Lahore High Court, Bench at Multan. The same was ordered to be transferred alongwith murder reference to this Court by a D.B of the said Bench on 27-2-1994.
3. The facts of the prosecution case are as follows: Irshad Ahmad (P.W.7) lodged a report at Police Station Jahanian District Khanewal on 10-10-1989 at 3-45 p.m. Mushtaq Ahmad S.I. recorded the report in the daily diary Register which was exhibited as Exh.PH. Irshad Ahmad stated therein, that his brother Shahzad Ahmad used to ply Suzuki Car No,4194/MNL Model 1987, as Taxi, that on 7-10-1989 Rana Muhamamd Azam Ex-constable, Muhammad Aslam and Fakkri came to Garha More Taxi stand and hired the taxi car of his brother for Multan in his presence and in the presence of Ahmad Yar alias Lal Khan son of Jan Muhammad, caste Pathan resident of Zaheerabad Shaheed. He stated that since Shahzad did not return in the eventing he got worried and went out in'search of Shahzad Ahmad. He added that on 10-10-1989 he along with Ihsan Ahmad Khan his brother Abdul Hamid and Muhammad Shafi during search reached bridge of canal Rahim Shah and saw dead body of his brother in nude condition floating in the canal. He added that his companions also identified the dead body. He further stated that when his brother had left Garha Morr he was wearing a Seiko watch with his name inscribed on the back side.
4. Mushtaq Ahmad S.I. after recording the report in the daily diary register proceeded to the spot for taking proceedings under section 174, Cr.P.C. After preparing inquest report Exh. PE and injury statement Exh. PF, he despatched dead body for post-mortem examination. He received the report of the post-mortem on the same day. On receipt of report he formally registered case F.I.R. No, 258 of 1989 under section 302/34, P.P.0 at 5-15 p.m. on the same day and recorded the statements of Ihsan, Abdul Hamid and Muhammad Shafi P.Ws. On 11-10-1989 he was informed by Irshad Ahmad complainant that he had received information from Police Station Mitru that the accused have been arrested by the Peshawar police. On the same day under the orders of the D.S.P. he added section 17 of the Hudood Ordinance and recorded statement of Ahmad Nawaz Khan son of Jan Muhammad P.W. He proceeded to Peshawar on 14-10-1989 for obtaining the custody of the accused. At Peshawar he was told by Muhammad Rafique Inspector (P.W.11) that he alongwith Hassan Khan and Farman Ali, ASI were present at Bara Check Post on 9-10-1989 at 4-15 p.m. They stopped Suzuki Motor Car No,4194/MNL. in which two persons were travelling. On interrogation the person who was driving gave his name as Muhammad Azam while his companion gave his name as Muhammad Aslam, as they failed to produce registration of the car in their names and any valid licence and also failed to justify their presence at that place, he took them into custody alongwith the car. On personal search of Muhammad Azam following articles were recovered from his possession:-- ' A purse of black colour made of recseen in which a photograph of Muhammad Azam in Police uniform was lying, one photograph which was told to be of Tanveer Ahmad, one photo told to be of Irshad Hussain alias Papu Shah, one photo of Muhammad Azam in plain clothes. A small diary of pocket size in which addresses of various people were written, two visiting cards one that of Rana Bakhtiar Ahmad and the other of Abdus Samad Sial, one photostat National Identity card of Rana Azam and one photostat authority letter regarding the recruitment in police department of district police Multan and a receipt of Rs,2 regarding Toll Tax of Khattak Bridge.
6. He informed Mushtaq that he had taken into possession those articles vide a memo. (said memo. was registered during trial as Exh.PS). He further informed him that following articles were recovered from Muhammad Aslam on search:-- One Passport of Muhammad Aslam No,E779009, original National Identity Card and photostat of the same, one cheque book of Habib Bank Limited Branch Makhdoom-Rashid, Multan in the name of Ghulam Nabi, 'a purse containing small diary, two chits on one of which Aslam and on the other Kashif Electric Store was written, a photo of unknown person, visiting cards of London New Barra Market, Niaz Muhammad and Asghar were also recovered. He had taken those articles vide memo.
7. (the said memo was exhibited at the trial as P-AA).
8. He further informed him (Mushtaq Ahmad S.I.) that on search of motor-car he had found insurance certificate in the name of Mst. Saira Parveen, one driving licence No,657658 dated 11-10-1980, in the name of Shahzad Ahmad son of Allah Dad Khan, which, also he took into possession vide a memo.
9. He had also noted the chasses No,161478 and Engine No,346967 of that car (this memo was registered at the trial as Exh. PN). All these memos. had been attested by Hassan Khan and Farman Ali, A.S.I. Mushtaq Ahmad, S.I. took over all these articles and the memos. prepared by Muhammad Rafique, Inspector as well as the car. Muhammad Rafique Inspector told Mushtaq Ahmad, S.I. that he had taken the abovenoted articles into possession under section 523/550, Cr.P.C. and after inquiry had arrested Muhammad Aslam and Muhammad Azam under section 54, Cr.P.C. and had sent them to judicial lock-up after producing them before the Ilaqa Magistrate, Peshawar. He told him that there after he had informed Punjab Police through wireless.
10. Mushtaq Ahmad after having taken into possession the articles and the car and the papers, moved the relevant authorities at Peshawar and obtained the physical remand of Muhammad Azam and Muhammad Aslam and got them transferred to Punjab for investigation. On return, during investigation Muhammad Azam and Muhammad Aslam after making disclosure, on 30-10-1989 led him to the place of occurrence and pointed out the same. On the pointation of Muhammad Azam he prepared site plan Exh.P-DD while on the pointation of Muhammad Aslam he prepared site plan Exh.P-EE. On the same day he took into possession revolver P-3 got recovered by Muhammad Azam from a distance of six karams from the eastern side of the place of occurrence with five live cartridges and one empty in the chamber vide recovery memo. Exh. PJ Muhammad Aslam after making disclosure on 31-10-1989 got recovered shirt P-1 and shalwar P-2 of the deceased from near the place of occurrence, which the Sub-Inspector took into possession vide memo. Exh. PG. He arrested Faqqar Hussain on 19-11-1989.
11. Revolver recorded at the instance of Muhammad Azam and the empty was sent to the office of Forensic Science Laboratory. Report received from the office of the Forensic Science Laboratory about the empty having been fired from the same pistol was tendered in evidence as Exh. P-FF.
12. After completion of necessary investigation challan was submitted to Court.
13. 5.Statements of 12 P. Ws were recorded at the trial.
14. Dr. Abdul Khaliq who had performed autopsy on the dead body of Shahzad Ahmad on 10-10-1989 at 4.00 p.m., appeared as P.W.4, He had noted following injuries on the body of the deceased:-- Injuries: "1. A fire arm wound 1/5 x .5 cm going deep on the right side of the mid front of the chest 3.5 cm away from the nipple in the kid clavicular line. This is the entering wound.
2. A fire arm wound 2.5 cm x 0.5 cm coming out from the chest. This was the exist wound on the right lower back of the chest.
15. On dissection: Injury No,1 was piercing the lower part of the right lung and upper lower of the liver through the 5th and 6th ribs and abdominal cavity was stained with blood."
16. He had noted injury on the lower part of the lung and found the liver pierce. According to his opinion the injuries were anti-mortem. Injury No,1 was opined to be sufficient to cause death in ordinary course of nature. Time between injuries and death was opinioned to be about 5 to 10 minutes while duration between death and post-mortem was opined to be about 74 hours. During cross-examination he admitted that date of death in the relevant column of the report was noted, on the basis of the information supplied by the police. He admitted that the dead body had blackened due to remaining under the water. He stated that possibility could not be ruled out that the deceased died on 6-10-1989 or 8-10-1989.
6. Irshad Ahmad while appearing as P.W.7 re-narrated the facts stated by him in report Exh.PH, on the basis of which formal F.I.R. Exh. PH/1 was registered. During cross-examination he stated that Ahmad Nawaz Khan P.W. was only, from his brotherhood. He stated that Ahmad Nawaz had met him at the taxi stand and on his inquiry had told him that he had come to make some purchases.
17. He gave out that rent of the taxi for going to Multan was fixed as Rs,250. He stated that they had reached Pull Rahim Shah at 2.30/3 P.M. He gave the distance of Jahanian from the pull Rahim Shah as 5/7 kilometres. He denied the suggestion that the dead body was rotten and unidentifiable. He denied the suggestion that the accused had not hired the taxi car and that there was a possibility that the deceased was washing his car at canal bank after removing his clothes that somebody killed him and took away the car. The suggestion that a constable had come to them and informed that a dead body was lying in the canal and that they had gone there and thereafter, dead body was taken for post-mortem examination and he had lodged the report after preliminary investigation was also denied by him. The suggestion that the dead body had been recovered on, 9-10-1989, was also denied by him. He stated that his brother had purchased this car about 2-1/2 months before the occurrence. The suggestion that Muhammad Aslam was present at Police Station Jahanian on 10-10-1989 and he was taken to Peshawar from there by the police was also denied by him. The suggestion that the car had not been hired by the accused was also denied by him. He stated that Muhammad Azam was known to him since 3/4 years (the sentence typed "Muhammad Azam accused was not known to me "had not been correctly typed as according to urdu record witness had stated that he knew Muhammad Azam accused). He denied the suggestion that he had enmity with Abdul Ghaffar. The suggestion that due to hostility with Abdul Ghaffar they had involved Azam in this case as he was related to him was also denied by him.
7. Ahmad Nawaz son of Jan Muhammad while appearing as P.W-8 corroborated the statement made by P.W-7, about the accused having hired taxi car of Shahzad Ahmad from Taxi Stand Gharha More and about the accused having taken him alongwith them. He also claimed to have witnessed the recovery of Shirt P-1 and Shalwar P-2 of the deceased at the instance of Muhammad Aslam on 31-10-1989 and of having attested recovery memo. Exh.PG. During cross-examination he stated that the complainant was not related to him. He stated that the place of recovery was in a jungle and there was no abadi near about. He explained that clothes were not stained with blood.
18. He stated that taxi stand neither was owned by anybody nor was managed by anybody. He claimed that he knew the accused since 1988. He denied the suggestion that the accused had not booked the taxi in his presence. He stated that the rent of the taxi was fixed as Rs,250. He denied the suggestion that Shahzad Ahmad had illicit relations with the mother of Tanvir Ahmad and so he had murdered him. The suggestion that the complainant was hostile --- to Ghaffar and due to that hostility Azam had been involved in this case was also denied by him. The suggestion that he had made a false statement due to friendship with the complainant was also denied by him.
8. Ihsan Ahmad Khan, brother of the complainant and deceased, while appearing as P.W-6 corroborated the statement made by complainant about having searched Shahzad Ahmad deceased and of having seen his dead body floating in the canal near Bridge Rahim Shah on 10- 10-1989, alongwith Muhammad Shafi and Abdul Hamid. He also claimed of having witnessed the recovery of Shirt P-1 and Shalwar P-2 of the deceased at the instance of Muhammad Aslam and of having attested recovery memo. Exh.PGG. He disclosed that Irshad Ahmad Khan had told him the story about the accused having hired the taxi of Shahzad Ahmad on 7-10-1989. During cross- examination he denied the suggestion that there used to be a Stand Manager at Garha Morr Taxi Stand, who used to enter the time of departure of taxies from the stand. He explained that the practice had been started after the occurrence of this case. He admitted that he had also searched for his brother Shahzad Ahmad.
19. According to him his brother, Irshad had told him about the hiring of the taxi on the same evening.
20. He disclosed that a constable of Police Station Mitru had come to them on 10-10-1989 at 11.00 a.m. and had informed them of the car having been taken into possession by the police at Peshawar.
21. He stated that he also learnt that his brother had been murdered. H denied the suggestion that the dead body had been found on 9-10-1989 and that Aslam was hauled up on the same day and was taken to Peshawar and his arrest was effected by the Peshawar police at Peshawar in connivance with them. He admitted that the clothes were recovered from an open place where there were sand dumes and bushes. He denied the suggestion that they had enmity with Ghaffar and that Azam had been involved in this case due to that. The suggestion that he had made a false statement was denied by him.
9. Abdul Hamid aged 75 years, father-in-law of the deceased appeared as P.W-9 and stated that he was told by Irshad Ahmad that the accused had taken away Shahzad Ahmad with them after hiring his taxi car on 7-10-1989 and that as he had not returned, they had started searching for him.
22. He stated that they had seen the dead body in the canal on 10-10-1989 and had identified the same. He explained that they had stayed at the spot and sent Irshad Ahmad for lodging a complaint. He claimed that Azam and Aslam had pointed out the place of murder to the police in his presence. He also claimed that Azam had got recovered revolver P-3 in his presence. During cross-examination he stated that the dead body of the deceased was recovered from a distance of 15/20 miles from his house. He denied the suggestion that one Tanvir had been arrested in this case by the police and that he had got recovered pistol from Multan. The suggestion that he had made incorrect statement was denied by him.
10. Muhammad Rafique Inspector who had arrested Muhammad Azam and Muhammad Alam on 9-10-1989 at Barra Check Post while travelling in Car No,4194/MNL, had taken the car into possession as well as the articles recovered from the persons of the accused and the articles recovered from the car (details of which are mentioned in earlier part of the judgment) and had informed about that to the concerned police station in Punjab, appeared as P.W.11 and gave the details of the manner of arrest and recovery of articles from the accused. During cross- examination he stated that he had informed the Local Emergency Unit who had informed Multan Emergency Unit and the said emergency had told the local police. He stated that he had noted in the Roznamcha that Farooq Ahmed from C.I.A. Staff Multan informed him on telephone that these two accused were wanted by Jahania Police, hence they be not released. He explained that he had recorded the report in the daily diary Register at serial No,49 on 11-10-1989. He denied the suggestion that he had arrested Tanveer and Abdul Rauf Khan with said stolen car and that the police of Jahanian had brought Azam and Aslam accused to Peshawar where Tanvir and Rauf were released and Azam and Aslam were shown to have been arrested alongwith the stolen car and the articles mentioned in Exhs.PN, PS and P-EE.
23. He further denied the suggestion that he had fabricated the documents in connivance with the Investigating Officer of Police Station, Jahanian.
24. Farman Ali, A.S.I. who was accompanying Rafiq Ahmed Khan and had witnessed recovery of various articles from each of them while appearing as P.W.10, corroborated the testimony of Muhammad Rafiq. The suggestions put during cross-examination to Muhammad Rafique were also put to him which he denied like Muhammad Rafique. The suggestion that either Aslam nor Azam was arrested at Peshawar nor anything had been recovered from any of them was also denied by him.
25. 11.Mushtaq Ahmed, S.I., P.W.12, who gave details about registration of the case, effecting the arrest of the appellants from Peshawar, taking into possession the articles which Muhammad Rafique had recovered from the appellants, (including the car and the memos. of. articles recovered at the instance of the appellants), recorded statements of the P.Ws. and effecting the arrest of acquitted accused. During cross-examination that the complainant had told him about the message received by Mitru Police from Peshawar Police. He denied the suggestion that he had also received a message from Peshawar Police, but he had destroyed that intentionally. He admitted that Garha Morr falls within the jurisdiction of Police Station Mitru. He stated that he had not arrested any body known as Tanvir or Rauf. The suggestion that the revolver had been recovered at the instance of Tanvir was denied by him. He also denied the suggestion that he had firstly arrested Tanvir and Rauf, but then released them and arrested the appellants. The suggestion that he had fabricated evidence to falsely implicate the accused in this case was denied by him.
26. 12.The appellants as well as the acquitted accused during statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.
27. Muhammad Aslam appellant stated as follows in answer to the question 'Do the articles belong to you?
28. "No, Only the Passport and my National Identity Card alognwith the purse and also the cheque book of Habib Bank in the name of Ghulam Nabi belong to me but the same were recovered from my house when I was arrested."
29. Muhammad Azam appellant stated as follows in answer to the question 'why this case against you?
30. "Because of enmity. The complainant has enmity with one Rana Ghaffar r/o Garha Morr who is my maternal cousin and due to that enmity I have been falsely involved in this case although I was arrested from Sargodha from my house. From my body search only one purse was recovered by the police which contained two visiting cards, one photostat copy of my national identity card and an authority letter regarding recruitment nothing else as mentioned by Muhammad Rafique Inspector in his statement was kept in may purse. The police brought me to Jahanian and from there it took me to Peshawar by a Flying Coach and brought back from there by the same vehicle."
31. Both of them declined to make statements on oath under section 340(2), Cr.P.C.
32. 13.Dildar Ahmad examined in defence as D.W.1, by Muhammad Azam, only stated, that he knew Muhammad Azam and he was a man of good character. He stated that he did not know anything else beyond that. During cross-examination he stated that he had never joined the investigation of this case nor had given any defence of the accused.
33. Muhammad Anwar Awan, Advocate, and Taj Ali D.S.P., were examined in defence at the instance of acquitted accused.
34. 14.Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended that the arrest and recoveries at Peshawar appears to be concoction, that the evidence of last seen was not worthy of reliance as the same has not only been deposed by the interested witnesses but also chance witnesses.
35. Learned counsel submitted that instead of producing Ahmad Yar who was mentioned in the F.I.R. as a witness to have allegedly seen the accused taking away deceased alongwith him, the prosecution examined one Ahmad Nawaz whose name does not find mention in the F.I.R.
36. Learned counsel demanded that his statement should be discarded out right.
37. Learned counsel also challenged the evidence of the pointing out of the place of occurrence by the appellants and the recovery of pistol at the instance of Azam and clothes of the deceased at the instance of Aslam.
38. Lastly learned counsel prayed for lesser sentences on the ground that the appellants are in condemned cell for the last about six years.
39. 15.The deceased was taken away by the accused on 7-10-1989, alognwith his taxi on the pretext of hiring the taxi for Multan. The brother of the deceased who had seen them taking away, the deceased, the other P.Ws., who had seen that, as well as the other relatives of the deceased did not known, where he was and what had happened to him. He was not seen alive thereafter.
40. 16.The appellants were arrested in the Province of N.-W.F.P. near Bara police Check Post Peshawar by Muhammad Rafique Inspector with the assistance of other police officials on 9-10-1989. By that time neither any case had been registered against them nor the Peshawar Police knew that these persons were wanted by any authority in any criminal case. They had stopped the Car bearing No,4194/MNL being driven by Azam with Aslam sitting with him. The Police Inspector had come to know about their names, identification and addresses, not only during interrogation but also from the documents recovered from each of them. The fact that they did not own the car, came to the knowledge of Peshawar Police from the documents lying in the car. It was in these circumstances that Muhammad Rafique Inspector had arrested them under section 54, Cr.P.C. and taken into possession car under sections 523 and 500, Cr.P.C. Except the fact that he informed the Punjab Police through wireless, he did not take any further action against them. He got them sent to judicial lock-up after producing before the Magistrate.
17. The information was received at Police Station Mitru on 10-10-1989, the reason why the police of Peshawar had sent the message to Police Station Mitru appears to be, the fact, that Garha Morr from where the appellants had hired the taxi and taken away the deceased fell within the area of Police Station Mitru (this fact is on record). In the circumstances the argument of the learned counsel for the appellants as to why the police of Peshawar, chose, Mitru Police Station for sending information instead of Jahanian Police Station stands explained.
41. The suggestion put during cross-examination and the argument advanced before us that actually one Tanvir and Rauf were found driving the car by Peshawar Police and about their arrest Mitru Police was informed but Jahanian Police after taking the appellants into custody, took them to Peshawar and exchanged them with Tanvir and Rauf so that the appellants be involved in this case, was not only without any substance but a leap in wilderness also.
42. We wonder how and why this idea was putforth?. For doing such a thing, there had to be conspiracy between the complainant party, the police of Punjab, Police of N.-W.F.P., Ilaqa Magistrate of Peshawar and the jail authorities of Peshawar. What for, all the Agencies of N.-W.F.P. would have joined in such a conspiracy, was neither explained at the trial nor to this Court. In fact there is nothing on the record to consider as to why the complainant or Punjab Police would have done that, because there is nothing in evidence to hold that the complainant party or the police of Jahanian had any direct animosity or hatred against any of the appellants. The suggestion put during cross-examination that Azam was involved in this case because one Ghaffar a relative of Azam was on unhappy terms with the complainant party was without any substance, firstly for the reason that nothing was on record about any sort of differences between the complainant party and Ghaffar and secondly why Azam was specifically chosen for that? The most important fact, in this regards, is, that even if the complainant had any animosity with Ghaffar (which was categorically denied during cross-examination). Why should they not have involved Ghaffar directly instead of choosing any of his relative?
43. 18.For the aforesaid reasons we are convinced that the prosecution evidence about the arrest of the appellants at Peshawar, recovery of the articles from their possession which fully established their identity and the recovery of the car of the deceased from their arrest, the ownership of which they never claimed, is convincing and reliable and can be safely acted upon.
44. 19.We have examined the contention of the learned counsel for the appellants that the evidence of last seen was deposed to by interested and chance witnesses and so same should be discarded and that the statement of Ahmed Nawaz P.W.8 should be discarded also, for the reason that his name does not find mention in the F.I.R.
45. The contention that name of Ahmed Nawaz is not mentioned in the F.I.R. and Ahmad Yar who was mentioned in the F.I.R. was not produced and instead Ahmed Nawaz was put in the dak as a P.W. is misplaced.
46. Irshad Ahmed Khan complainant while lodging report had mentioned the name of Ahmed Yar alias Lal Khan son of Jan Muhammad Khan caste Pathan resident of Zaheer Abad Shaheed to have seen the accused hiring that taxi car of the deceased and taking him alognwith them. The witness who appeared as P.W.8 gave his name as Ahmed son of Jan Muhammad Caste Pathan, Cultivator r/o, Zaheer Abad Shaheed, Ahmad Nawaz had joined investigation after the arrest of the appellants and had witnessed the recovery of clothes of the deceased at the instance of Muhammad Aslam and attested the recovery memo. Exh.PG in that regard. In Exh.PG his name and address are recorded as follows:-- "Ahmed Nawaz Khan alias Lal Khan son of Jan Muhammad Khan, Caste Pathan, Resident of Zaheer Abad Shaheed."
47. The alias name given in Exh.PG and other particulars co-inside with the particulars of the witness mentioned in report Exh.PH, lodged by Irshad Ahmed Khan. Had alias name of Lal Khan been not mentioned in Exh.PH, and had the alias name been not mentioned in Exh.PG, it could have been reasonably argued that even though Ahmad Nawaz was son of Jan Muhammad could have another son also with the name as Ahmed Yar. But it cannot be argued that two sons of Jan Muhammad could have same alias name.
48. After giving a careful thought we are convinced that at some stage some one committed mistake in writing the name of Ahmad Yar as Ahmed Nawaz or the name of Ahmad Nawaz as Ahmad Yar.
49. The most important factor in this regard is that the appellants who knew the witness prior to this occurrence as they belonged to the same area, did not challenge at the trial that a wrong person was being produced as a witness? Neither any objection was raised when his statement was not recorded nor any objection was taken during cross-examination. In fact this argument was not even raised during arguments before the trial Judge.
50. The contention the Irshad Ahmad Khan P.W. was a chance witness also does not hold ground as it was almost usual practice with Irshad Ahmad Khan to go to Garha Morr in connection with the plying of taxi by his brother from the taxi stand situated there. The argument that since he (complainant) was related to the deceased and so his statement should not be relied upon has not impressed us because when he lodged the report he had not made allegation that his brother had been murdered by appellants. He just stated, the fact, that the accused had hired the taxi of his brother and had taken him alongwith them. Moreover, his testimony cannot be discarded merely for being brother of the deceased. He had no animosity or differences with the appellants and so no motive can be assigned to him of false implication of the appellants. The evidence of the last seen, thus, in our view is not only believable but reliable also.
51. 20.The prosecution evidence that the appellants had pointed out the place of occurrence individually cannot be acted upon as the same is not admissible for the reason that nothing was recovered as a result of the pointing by the appellants. The relevant provisions of Qanun-e- Shahadat are very clear on this point. The same, therefore, stands discarded.
52. Although learned counsel questioned the recovery of clothes of the deceased at the pointing out of Aslam appellant but having gone through the statements of the witnesses who had witnessed the recovery of the clothes we are convinced that their testimony can be safely relied upon for the reason that the witnesses who deposed about the recovery were not in any way inimical to the appellants.
53. The contention that since clothes were not stained with blood, so, the evidence of recovery should have no bearing on the case, have not impressed us, for the reason that the deceased was found dead in nude condition. Had the dead body been found clothed this argument could have been effectively raised as in that case clothes should have been blood-stained.
54. 21.The argument of the learned counsel for, Azam, that the recovery of pistol at his instance even if believed does not connect him with the crime as the empty which was found to have been fired from the pistol by Foransic Science Laboratory Expert was not recovered from the place of occurrence, although at the face of it appears to be attractive but on close scrutiny we feel that it does possess corroboratory value for the reason that the pistol was recovered at his instance from the place near the place of occurrence and the empty which was found wedded with the pistol was in the chamber of the pistol. The pistol was found loaded with five live cartridges and one empty. The deceased was found to have suffered only one fire shot. (Although doctor had noted two injuries but one of them was an exist wound).
55. 22.As a result of the above enunciation of evidence and discussion, we are fully convinced that the prosecution has been able to prove the case against the appellants beyond any reasonable shadows of doubt. There convictions under section 302/34 and under section 394, P.P.C. are, therefore, maintained.
56. 23.Notwithstanding the fact that we have maintained the conviction of the appellants under sections 302/34 and 394, P.P.C., we are not inclined to confirm the sentences of death. Firstly, for the reason that there is no evidence on record as to which of the two appellants had actually fired the fatal shot and secondly, for the reasons that they are in condemned cell for the last six years. The sentences of death to both of them are, therefore, altered to imprisonment for life to each. The sentences of fine to both of them are maintained.
57. The sentences of imprisonment for life to each of them under section 394, P.P.C. are reduced to R.I. for ten years each. The sentences of fine are, however, maintained. Whole fine on recovery on both counts shall be paid as compensation to the heirs of the deceased. Sentences of imprisonment shall run concurrently. Benefit of section 382-B, Cr.P.C. shall be given.
58. 24.Suzuki Car No,4194/MNL shall be handed over to the wife of the deceased.