' KH. MUHAMMAD SHARIF, J.---Through this judgment we would like- to dispose of Criminal Appeal No,2 of 1994 filed by Atta Muhammad alias Bagri, appellant, Criminal Appeal No,I of 1994 filed by Shah Baig alias Garwa, appellant and Criminal Appeal No,3 of 1994 filed by Ali Ganwar, appellant.
They were convicted, and sentenced by Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on 20-1-1975 for the double murder of Dr. Shabbir-ul- Hassan and Bakht All deceased persons. They were sentenced as under:--
(I) Atta Muhammad alias Bagri, appellant was convicted and sentenced under section 302/34, P.P.C. To undergo death sentence on two counts, with a fine of Rs,10,00,000 (Ten lacs), in default 10 years R.I. He was further directed to pay Rs,3,00,000 (three lacs) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. He was also convicted and sentenced under section 394/34, P.P.C. Undergo 10 years R.I., with a fine of Rs,1,00,000 (one lac), in default two years R.I. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant, if the death sentence is not confirmed by the Hon'ble High Court.
(2) Shah Baig alias Garwa, appellant and Ali Ganwar, appellant were convicted and sentenced under section 302/34, P.P.C. To undergo life imprisonment on two counts, with a fine of Rs,4,00.000 (four lacs) each, in default eight years R.I. Fine if recovered Rs,100,000 (one lac) was ordered to pay as compensating to the legal heirs of both the deceased each. They were further' convicted and sentenced under section 394/34, P.P.C. To undergo five years R.I. Each, with a tine of Rs,50,000 each, in default one year R.I. Each. Both the sentences of both the appellants were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also granted to the appellants.
2. The occurrence in this case took place on 9-2-1989 at 7.30 p.m. In the area of Monza Mustafa Abad, 10-1/2 K.Ms. Away from the Police Station, Abad Pur, District Rahim Yar Khan while the matter was reported by Mehmood-ul-Hassan P.W.11 to Ch. Zafar Ullah I/S.H.O. P.W.19 at 9.30 p,m. Vide complaint' Exh.PA at bridge Garri Minor within the area of Chak No,51/NP and the formal F.I.R., Exh.PA/1 was recorded in the above said Police Station, by Muhammad Athar Khalid A.S.I.
3. Briefly stated the facts of the prosecution case as stated by Haji Mahmoodul-Hassan are that he lived in Mauza Kurmann Singh and is a Zamindar by profession. On 9-2-1989, he along with his one relation, namely, Haji Abdul Kareem was on one motor-cycle while his real brother Dr. Shabbir ul Hassan alongwith Bakht All were on other motor-cycle bearing No,2042/RND were returning hack to their house from Rahim Yar Khan. When they reached in the area of Mauza Murtaza Abad near Burji No,57/58 of Greey Minor, they saw Ghulam Murtaza S/o Ellahi Bakhsh resident of their village, who had already reached there on motor-cycle was stopped by three persons, two of them were of long height armed with "Sotas" and a person with a small height armed with rifle were trying to snatch his motor-cycle. Chuiam Murtaza was crying for help, on which Dr. Shabbir-ul-Hassan brother of the complainant stopped his motor-cycle but kept the same in starting position and its light was also on. Dr. Shabbir-ul-Hassan and Bakht Ali from eastern side "of the minor came in order to save Ghulam Murtaza but the accused, who was armed with rifle fired first shot on Dr. Shabbir-ul-Hassan, which hit on his head, second fire was shot by same accused on Bakht Ali, which hit on his neck, both after receiving the injuries fell on the ground and died at the spot. It is further stated that the same accused pointed his rifle towards the complainant and Haji Abdul Kareem but they saved their lives by refuging behind the trees. The accused left Ghulam Murtaza and after threatening the complainant and Haji Abdul Kareem took away the motorcycle of Dr. Shabbir-ul-Hassan bearing No,2042/RND, CD-70 along with a bag, his driving licence, National Identity Card Registration Book of the said motor cycle, after sitting on the said motor-cycle.
Thereafter, Ghulam Murtaza told the P.Ws. That the accused persons had also taken his driving licence, National Identity Card and Rs,150 after snatching the same from him. Complainant in F.I.R.
Stated that they can recognize the accused persons if they show to them. On the hue and cry, many persons from the village came at the spot. While leaving the dead bodies of Dr. Shabbir- ulHassan and Bakht Ali in the company of Haji Abdul Kareem and Ghulam Murtaza P.Ws.
Complainant started to Police Station for the Registration of case.
4. The Investigating Officer after the Registration of F.I.R., came at the spot, prepared the inquest report and send the dead bodies of the deceased for postmortem. He also collected blood-stained earth from near the dead bodies of Dr. Shabbir-ul-Hassan, deceased and Bakht Ali deceased and took the same into possession vide recovery memos. Exh.PD and Exh.PE. He also took into possession five empty cartridges P.6/1-5 vide recovery memo. Exh.PF Shah Baig and Ali Ganwar appellants were arrested on 14-4-1989 while Atta Muhammad appellant was arrested on 28-7- 1989. At the time of personal search of Ali Ganwar appellant, Registration book of motor-cycle No,2042/RND Exh.P.15 was taken into 'possession vide recovery memo Exh.PM. On the pointation of Shah Baig appellant motorcycle No,2042/RND Exh.P.3 was taken into possession from his house vide recovery memo.Exh.PN. On 15-4-1989, both Shah Baig and Ali Ganwar appellants were sent to judicial lock-up, after obtaining their judicial remand for holding their identification parade. Their identification parade was held under the supervision of Abdul Majeed, Naib-Tehsildar on 18-4-1989, thereafter, their physical remand was obtained by the Investigating Officer but the investigation of the case was transferred from Ch. Zafar Ullah 1/S.H.O. To Irshad Akhtar Gulab Inspector/S.H.O., Police Station, Bhong P.W .20. Irshad Akhtar Gulab, Inspector/S.H.O. Inspected the spot in the presence of Shah Baig and Ali Ganwar appellants. On 26-4-1989 Ali Ganwar appellant produced before him leather purse Exh.P.4, containing N.I.C. Exh.P.5 of Dr. Shabbir-ul-Hassan deceased along with two medical bills Exhs.P.1 and 2 in the presence of Jam Faiz Ahmad and Jam Nazir, the same were taken into possession vide recovery memo. Exh.PO.
5. On 27-8 1989, when Irshad Akhtar Gulab, Inspector/S.H.O. Was on "Patrol, on Duty", he received an information from an informer, on which he along with "Mukhber", members of police party, Rahim Baklisli and Abdul Majid P.Ws. Reached in Bagh Meran, where Atta Muhammad alias Bagri appellant after seeing the police party started firing, they raised lalkara and also fired in their self- defence, thereafter, appellant Atta Muhammad had surrendered himself and after unloading his fire arm three the same on the ground and was arrested. The Investigating Officer took into possession Klashinkov P.16, rifle P. 17, two bullets of Klashinkov P.19/1-2 along with 28 empties of Klashinkov P.18/1-28 vide recovery memo. Exh.PP it presence of Rahim Bukhsh and Abdu' Majid P.Ws.
Two separate cases one under section 307, P.P.C. And other under section 13/20/65 Arms Ordinance were registered in Police Station, Bhong against Atta Muhammad appellant. Atta Muhammad appellant was also asked by the Investigating Officer to cover his face because he had to be put in identification parade. Investigating Officer submitted an application to the Assistant Commissioner for deputing Jam Abdul Majid, Naib-Tehsildar for holding the identification parade but appellant Atta Muhammad refused to join the identification parade under the supervision of NaibTehsildar: Thereafter, he again moved an application on 5-8-1989, which is Exh.PC for getting fresh orders. The Assistant Commissioner, marked the application to Mr. Mushtaq Anjum, M.I.C. P.W., who conducted the identification parade on 7-8-1989 and Atta Muhammad appellant was identified by the P.Ws.
6. Prosecution, in order to prove its case, produced 20 witnesses in all. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C. And under section 340 (2), Cr.P.C.
7. Learned counsel for.The appellants have read before us, the prosecution evidence, statements of the appellants recorded ulidei section 342, Cr.P.C. And under section 340 (2), Cr.P.C. After doing this exercise, he submits that it was an un witnessed occurrence, that complainant is a real brother of one of the deceased, that the occurrence took place in dark hours of night, that no description of the appellants was given in the that witnesses produced by the prosecution are interested and inimical one, that identification parade is also a bogus one, that according to the prosecution story, only two shots were fired but five empty cartridges were recovered from the spot, that, the occurrence took place on 9-2-1989 but the crime empties recovered from the spot were sent to Fire-arm Expert on 3-4-1989, that the occurrence took place in dark hours of night and there was no source of light except the light of motor-cycle which was not sufficient for the identification of the appellants, that the recoveries from all the appellants are planted one and doubtful, that there was no necessity for the appellants to have kept with them, the National Identity Card, Registration Book and Medical bills, that Haji Mehmoodul-Hassan, P.W. Is not mentioned in the site plan prepared by Investigating Officer and by the "Patwari", that the occurrence had taken place in the slope and the distance between place of occurrence and the eye-witnesses was of such a nature, that the P.Ws. Were not able to identify the assailants, that identification parade of Shah Baig and Ali Ganwar appellants was joint one and was not admissible in the eyes of law and the same took place after six months of the occurrence, that the injuries on Ghulam Murtaza with "Soti" is not mentioned in the F.I.R., that the appellants have been falsely implicated in this case due to their enmity with Landlord of the area.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that appellants had over-powered Ghulam Murtaza P.W. And there was no earthly reason to disbelieve Ghulam Murtaza P.W. As regard the role stated by him, which the appellants played during the occurrence, that there was no reason to falsely implicate the appellants, that Ghulam Murtaza and Mehmood-ul-Hassan, P.Ws. Had not any enmity with the appellants. He has also relied upon PLD 1996 SC 97, that non-mentioning of one of the P.W. In the site plan is not fatal to the prosecution case as according to the Article 22 of the "Qanun-e-Shahadat", Ordinance, and this is not a substantive piece of evidence,. That crime empties recovered from the spot matched with Klashinkov of Atta Muhammad alias Bagri, appellant, that prosecution has proved its case against the appellants beyond any shadow of doubt. Lastly, he submits that he does not support the evidence regarding the recoveries of Registration Book, National Identity Card and Medical Bills from the appellants but he submits that Ghulam Murtaza is an injured P.W. And his evidence cannot be brushed aside.
9. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case, if the local Landlord had any motive to falsely implicate the appellants and specially Atta Muhammad alias Bagri appellant, then he could have asked the complainant and the police to name them in the F.I.R. Both the eye-witnesses produced by the prosecution, namely, Haji Mahmoodul-Hassarr and Ghulam Murtaza have got no enmity or grudge against the appellants and there is no question of false implication of them in the instant case. There is evidence on record, coming from the mouth of Ghulam Murtaza P.W.12 that he was over powered by the appellants, so the contention of learned defence counsel, that they saw the assailants from such a distance who had fired at the deceased, that it was impossible for them to identify the assailants has no legs to stand. The P.Ws. Had identified the appellant Atta Muhammad in the identification parade held by Mr. Mushtaq Ahmad Anjum, M.I.C. On 7-8-1989. The identification parade of Ali Ganwar and Shah Baig appellants was held on 18-4-1989, in District Jail, Rahim Yar Khan by Abdul Majeed, Naib-Tehsildar, Ali Pur, District Rahim Yar Khan. Both Haji Mahmood-ul-Hassan, Ghulam Murtaza and Abdul Kareem P.Ws. Identified both the appellants. The identification parade was held in accordance with law. Learned counsel for the appellants has cited PLD 1991 SC 141, regarding the identification parade, which had no bearing on the facts of the present case. Occurrence in this case took place on 9-2-1989 and the crime empties were sent to fire-arm expert on 3-4-1989 while the recovery of Klashinkov from Atta Muhammad appellant was effected on 28-7-1989 much after sending of crime empties and the said crime empties matched with the Klashinkov got recovered by Atta Muhammad, according to the report of Firearm Expert Exh.P.WW on the record. Medical evidence as given by P. W.15, namely Dr. Muhammad Azhar lqbal M.O., who conducted the post-mortem examination on the dead bodies of both the deceased found fire-arm injuries on the persons of both the deceased which also corroborates the prosecution version. The minor discrepancies in the prosecution case can be ignored in view of the evidence of P.Ws. Namely, Ghulam Murtaza and Mehmood-ul-Hassan, which has come from an unimpeachable source. In our view, ocular account is corroborated by identification parade, medical evidence and recovery of Klashnikov. From Atta. Muhammad alias Bagri appellant.
10. The upshot of the above discussion is that conviction and sentence awarded to Atta Muhammad alias Bagri, appellant by the learned trial Court is maintained and upheld in toto and his appeal is dismissed and his death sentence is confirmed. Murder reference is answered in affirmative.
11. As far as, Ali Ganwar and Shah Baig appellants are concerned, they were not armed with any fire-arm. They did cause any injury to both the deceased and no weapon was recovered from them, therefore, the sentences awarded to them under section 302/34, P.P.C. Is set aside. However, the sentence awarded to them under section 394/34, P.P.C. Is maintained with the benefit of section 382-B, Cr.P.C. With the above said modification, all the appeals filed by the appellants are disposed of.