' MUHAMMAD KHIYAR KHAN, J.--- Zia Ullah alias Jajj, aged 36 years, son of Habib Ullah, resident of Chak No,438/JB, Tehsil Gojra, District Toba Tek Singh and two others namely, Muhammad Ahsan and Imtiaz Ali were tried in the Court of learned Additional Sessions Judge, Toba Tek Singh, in case F.I.R. No,2 of 1994, dated 6-1-1994, Police Station City, Toba Tek Singh for the offences punishable under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred as the Ordinance) and section 302/34, P.P.C. Learned Additional Sessions Judge, vide judgment, dated 8-9-1997 acquitted Muhammad Ahsan and Imtiaz Ali and convicted Zia Ullah under section 17(4) of the Ordinance read with section 302(a), P.P.C. And sentenced him to death and to pay a fine of Rs,20,000 in default whereof to undergo six months' R.I. The convict was also ordered to pay an amount of Rs,20,000 to the legal heirs of the deceased Zafar Abbas, in default whereof to undergo six months' R.I. Death sentence was awarded subject to the confirmation by the Federal Shariat Court. Zia Ullah convict has challenged his conviction and sentence by filing this appeal from jail. Learned Additional Sessions Judge, Toba Tek Singh has sent murder reference for confirmation of death sentence. These two matters are being disposed of by this single judgment.
2. F.I.R. Exh.P.D./1 was registered at Police Station. City Toba Tek Singh on 6-1-1994 at 8-25 p.m. About the occurrence which had taken place on the same day at 7-30 p.m. On the complaint Exh.P.D. Of Iqbal Hussain, complainant, (P.W.10) submitted to Muhammad Aslam S.H.O. (P.W.13). The complaint made was that on 6.1-1994 at about 7.30 p.m. Lqbal Hussain along with Muhammad Zulfiqar, Zawar Hussain and deceased Zafar Abbas were sitting in the shop situated in Mohallah Gulberg Imam Bargha Road, Toba Tek Singh. Electric light was on. Meanwhile two motorcycles arrived and stopped in front of the shop. Six persons in all, got down from the motorcycles. Three persons were of middle height and three of big height. All were armed. Three of them climbed over the Thara of the shcip. One of those three ordered the complainant and his companions to stand up and hand over whatever they possessed. Zafar Abbas inquired as to who they were. On this one person whitish color of middle height fired at Zafar Abbas hitting him on left side of his chest. The injured rushed outside the shop and was fired at by a person with long height which missed. After that accused persons riding motorcycles decamped from the spot towards the western side. The complainant added that he and his companions Muhammad Zulfiqar and Zawar Hussain could identify the culprits if shown to them. Zafar Abbas was taken to the hospital where he succumbed to the injury. The complainant leaving Muhammad Zulfiqar and Zawar Hussain with the dead body of Zafar Abbas deceased came back and submitted complaint to Muhammad Aslam S.H.O. The complaint was sent to police station city for registration of the case and Shaukat Hayat H.C. (P.W.3) recorded formal F.I.R. Exh.P.D./1, Muhammad Aslam S.H.O. (P.W.13) visited the hospital where he prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the deceased and entrusted the dead body to Maqsood Ahmad (P.W.4) so as to get post-mortem examination conducted. He himself proceeded to the spot where he secured blood-stained earth from inside the shop and sealed it into parcel vide memo. Exh.P.M. Two empty cartridges .30 bore P.6, P.7,' were taken into possession vide recovery memo. Exh.P.N. Site plan Exh.P.O. Was prepared. He recorded the statements of P.Ws. Under section 161, Cr.P.C. On 7-1-1994 Maqsood Ahmad, Constable, produced last-,worn clothes of deceased Rs, Shalwar P.1, Shirt P.2 and jacket P.3 which the Investigating Officer took into possession vide memo. Exh.P.E. Post-mortem report, sealed phial were also produced to him. He recorded the statement of Maqsood Ahmad on 8-1-1994. Statement of Dr. Khalid Mehmood was also recorded and site plan Exh.P.P. Of the shop of Dr. Khalid Mehmood was prepared. Another site plan Exh.P.F. Was got prepared from draftsman Muhammad Ashraf (P.W.5) on 9-1-1994. Thereafter, investigation was conducted by other senior officers and Muhammad Aslam remained associated with them.
3. On 23-2-1994 Yousaf Ali, A.S.-I. Police Station Saddar (P.W.9) and Muhammad Hanif, Inspector/S.H.O. (P.W.15) were present near Bridge Solairian that at about 5-30 p.m. Zia Ullah, Imtiaz alias Teddi and Zahid were seen coming from the direction of Janiwala Railway Station riding a motorcycle. They were apprehended and motorcycle with fictitious number plate was taken into possession vide recovery memo. Exh.P.K. As they failed to show the document of ownership of the motorcycle. Pistol .30 bore P.6 and Magazine having six bullets P.6/1-6 were recovered from Zia Ullah. Besides that a purse black colour, an identity card and cash amount of Rs,350 were also recovered from his possession. Recovery memo. Exh.P.L. Was prepared to that effect. Articles recovered from Zahid and Imtiaz pertained to another case registered against them. Muhammad Siddiqui (P.W.14) formally arrested the accused and sent them to judicial lock-up Toba Tek Singh.
He submitted application on 27-2-1994 for conducting identification parade, which was held on 1- 3-1994 under the supervision of Ch. Abdul Sattar, Judicial Magistrate (P.W.8). Muhammad Iqbal complainant, Zulfiqar, Zawar Hussain and Dr. Khalid Mehmood, P.Ws. Identified the accused. Ch. Abdul Sattar, Judicial Magistrate prepared report Exh.P.J. Muhammad Siddique, A.S.-I. (P.W.14) recorded the statements of recovery witnesses and after completing the investigation challaned the accused to Court.
4. At the trial, the accused did not plead guilty to the charge. To prove the charge against the accused, prosecution produced 15 P.Ws. Zamir Hussain Khan (P.W.1) identified the dead body of Zafar Abbas deceased at the time of postmortem examination. Dr. Muhammad Mansha District Headquarters Hospital (P.W.2) conducted the post-mortem examination on the dead body of Zafar Abbas on 7-1-1994 at 10-00 a.m. And observed as under:- "It was a dead body of a healthy man of about 35 years age eye and mouth closed, clad in Shalwar, Qameez, jacket, Bunion with one wound on the chest and one wound on the right back chest. I have found following injuries on the dead body.
(1) A wound 0.5 c.m. Diameter with inverted edges on the form of left chest 6 c.m. From left nipple that was wound of entrance.
(2) A wound of exit 0.6 c.m. In diameter with inverted edges on the back of right chest. 16 c.m. From the vertible column and 24 c.m. From the top of right shoulder.
' Scalp, skull and vertebral were intact and healthy membranes, brains and spinal cord were also intact and healthy.
' On opening the thorax there was wound on the left side of chest and right back chest the ribs and cartrilages were healthy and intact. Pleuras were ruptured by the bullet from the entrance to exit wound. Right lung was congested and was torn at the root of the bullet. Left lung was also congested and torn at the root of the bullet. Ascending aorta ruptured mainly and blood vessel were also ruptured. Rest of the organs were healthy and intact. There was a hole in the trachea.
' On opening the abdomen stomach contained semi digested material. Rest of the organs were healthy and intact. Bladder contained about 150 c.m. Of urine. Organs of generation fully developed and healthy and intact.
' In the opinion of the doctor death was caused due to hemorrhage and shock which was caused by rupture of ascending aorta mainly and other blood vessels. The injuries were caused by fire- arm and were ante-mortem. The injury was sufficient to cause death in the ordinary course of nature.
' The witness proved carbon copy of his post-mortem report Exh.P.A. He handed over the last-worn clothes of the deceased and police papers to Maqsood Ahmad, Head Constable. He also signed the injury statement Exh.P.B. And inquest report Exh.P.C." Shaukat Hayat (P.W.3) recorded the formal F.I.R. Exh.P.D./1. On 7-1-1994 he was entrusted with two sealed parcels containing blood-stained earth/clothes and empty cartridges which he kept in the Malkhana. He handed over the sealed parcel containing blood-stained earth/clothes to Maqsood Ahmad, Constable (P.W.4) on 15-1-1994 for onward transmission to the office of Chemical Examiner and sealed parcel containing empty cartridges to the office of Forensic Science Laboratory, Lahore. On 7-3-1994 he was also handed over two sealed parcels one containing pistol .30 bore and other containing .32 bore which he kept in the Malkhana intact. On 19-3-1994 he handed over these parcels to Muhammad Sarwar, Constable (P.W.7) for onward transmission to the office of Forensic Science Laboratory, Lahore.
Maqsood Ahmad (P. W.4) got the postmortem examination of the deceased and after the post- mortem examination was conducted brought relevant papers and last-worn clothes of the deceased and handed over the same to the Investigating Officer. He had taken the sealed parcel containing blood-stained earth to the office of Chemical Examiner and sealed parcel containing empties to the office of Forensic Science Laboratory, Lahore. He brought the Reports of Chemical Examiner and produced the same before the Moharrir. Muhammad Ashraf, Draftsman (P.W.5) prepared the site plan Exh.P.F. And its duplicate Exh.P.F./1. Taj Muhammad (P.W.6) proved the recovery of revolver .38 bore, wrist watch at the instance of Muhammad Ahsan accused.
Muhammad Sarwar (P.W.7) was handed over two sealed parcels containing .30 bore pistol and .32 bore revolver on 19-3-1994 for onward transmission to the office of Forensic Science Laboratory, Lahore which he deposited intact. Ch. Abdul Sattar, Magistrate 1st Class (P.W.8) proved the identification report Exh.P.J. Yousaf Ali, A.S.-I. (P.W.9), Muhammad Aslam, S.H.O. (P.W.13), Muhammad Siddique, S.-I. (P.W.14) and Muhammad Hanif, Inspector (P.W.15) deposed about the investigation conducted by them. Iqbal Hussain complainant (P.W.10) stated that on 6-1-1994 he alongwith Muhammad Zulfiqar, Zawar Hussain, P.Ws. Were sitting in the shop of Zafar Abbas deceased that persons driving two motorcycles came there.. Three persons entered the shop of the deceased, one of them armed with pistol challenged Zafar Abbas deceased that he should hand over what he had. Zafar Abbas resisted and challenged who he was. Zia Ullah accused fired at Zafar Abbas deceased with the pistol hitting him on the left side of chest. They raised alarm. The deceased in injured condition stepped outside the shop. Imtiaz accused armed with pistol fired, whicla missed the target. Zia Ullah, Imtiaz and Ahsan accused ran away from the spot. The deceased fell down in the shop. He was br6ught out in injured condition and was taken to Civil Hospital, Toba Tek Singh where he succumbed to the injuries before receiving any medical aid. Zulfiqar and Zawar Hussain P.Ws. Were left with the dead body of the deceased and he proceeded to lodge the report but on the way Thanedar met him to whom he submitted application Exh.P.D. Which was read over to him and it was signed by him. The complainant stated that he mentioned the description and stature of accused in his application and stated that electric light was on where the occurrence had taken place. He identified the accused in the identification parade as well as in the Court. During cross- examination Iqbal Hussain admitted that P.Ws. Zulfiqar and Zawar Hussain were closely related to him. He also admitted that deceased was his real brother. He admitted that his Munshi who had left the service wrote the application Exh.P.D. He denied the suggestion that application was managed by the police. He admitted that identification parade was held in judicial lock-up after about two months of the occurrence. He denied that the accused were shown to him prior to identification parade. He denied the suggestion that the assailants had fired from outside the shop.
Muhammad Zulfiqar (P.W.11). Corroborated the statement of Muhammad Iqbal. He identified the accused in Court. He had joined the investigation and had witnessed the recovery of empties from the spot. He had also identified the accused in the identification parade. The witness admitted that deceased was his cousin and that he resided 100 yards away from the place of occurrence. He denied the suggestion that he was not present at the time of occurrence. He stated that he had seen three accused riding motorcycle. During cross-examination he stated that empty cartridges were lying outside the shop and not inside the shop. He denied the suggestion that accused were shown to him before the identification parade was held and that he was not present at the time of occurrence. He denied the suggestion that due to relationship he was deposing against the accused. Dr. Khalid Mehmood (P.W.12) stated that on 6-1-1994 at about 7-00 p.m. He was sitting inside M.S. Medical Store of his cousin Mehmood Shafi. Mehmood Shafi had gone .To his house and in his absence three accused present in Court came there on a motorcycle. Zia Ullah on pistol point asked him to stand up and --- to part with whatever he had with him. The other two accused kept standing near the motorcycle. He told Zia Ullah accused that he did not know what was there inside the shop. One of the two persons standing near motorcycle fired. Zia Ullah opened the counter and told him that he had removed the cash amount. He got back and the other two accused stepped forward and searched his person. They took some change from his pocket and- snatched his wrist Seiko watch. Thereafter, all the three accused ran away towards Talab Bazar.
After half an hour, his cousin came back and informed him that a shopkeeper was murdered. He identified all the accused in the identification parade held in judicial lock-up. During the cross- examination the witness was confronted with his statement under section 161, Cr.P.C. To show that he made improvements. He denied the suggestion that he dishonestly improved his statement in order to involve all the accused in this case. Muhammad Ilyas Akhtar, D.D.A. Tendered in evidence Chemical Examiner's Report Exh.P.Q. Serologist Report, Exh.P.R. And Report of Forensic Science Laboratory Exh.P.S. And the prosecution case.
5. Zia Ullah accused when examined under section 342, Cr.P.C. Denied all the incriminating circumstances appearing in evidence against him. He denied that any pistol was recovered from his possession. About the identification parade he stated that he was shown to the P.Ws. Prior to the identification parade. When asked as to why the P.Ws. Deposed against him he stated that he was falsely roped in by the police just to make their "Karguzari" and that the P.Ws. Deposed falsely at the instance of the police. He ,_professed innocence and produced no defiance, He also declined to appear as witness on oath.
6. The trial Court did not believe the oral testimony of Iqbal Hussain (P.W.10) and Zulfiqar (P.W.11) as against Imtiaz Ali and Muhammad Ahsan being contradictory and not corroborated by independent evidence. The identification evidence was also disbelieved and they were acquitted.
Oral testimony of Iqbal Hussain and Zulfiqar P.Ws. Was, however, believed as against accused Zia Ullah because Forensic Science Laboratory ReportExh.P.S. Provided independent corroboration to their testimony. He was, therefore, convicted and sentenced as stated above.
7. Muhammad Shoaib Abbasi, Advocate, for the appellant, contended that trial Court committed illegality in awarding the sentence under section 17(4) read with section 302(a) of the P.P.C. For, neither any Tazkiya-tush Shahood was done nor evidence required for awarding Hadd sentence was available on record. He contended that evidence not believed against the co-accused Imtiaz Ali and Muhammad Ahsan could not be relied upon for conviction of accused Zia Ullah. P.Ws. Iqbal Hussain and Zulfiqar are chance witnesses, they have failed to give specific role to the accused, and have made improvements, as in the F.I.R. Six persons were charged whereas in the Court P.Ws.
Deposed that they were three in number. Contradictions in the statement of ,Iqbal Hussain (P.W.10) and Zulfiqar (P.W.11), one saying that accused came inside the shop and fired from a distance of 2/3 feet and other saying that they appeared in front of counter of the shop, and fired from a distance of 9/10 feet, make them untrustworthy. Learned counsel for the appellant argued that recoveries are fake as nobody from the public was associated in the proceedings and challenged the Report of Forensic Science Laboratory as not reliable.
8. Ch. Muhammad Ibrahim, Advocate, learned counsel for the State
8. Ch. Muhammad Ibrahim, Advocate, learned counsel for the State conceded that conviction of the appellant under section 17(4) read with section 302(a), P.P.C. Was illegal. He submitted that this Court has the power to alter the sentence of Hadd to that under Tazir.
9. We have heard the learned counsel for the parties at some length and with their assistance have carefully gone through the evidence on record. The occurrence which took place at 7-30 p.m. On 6-1-1994 was promptly reported to the police at 8-25 p.m. Iqbal H-ussain complainant (P.W.10) gave the detail of the occurrence that on 6-1-1994 when he alongwith Zulfiqar Ali and Zawar Hussain P.Ws. We're sitting with Zafar Abbas in shop of the deceased, two motorcycles with six persons, three on each motorcycle, came to the shop. He identified three accused facing trial in the Court as the persons who entered the shop. He stated that Zia Ullah accused was armed with pistol and challenged Zafar Abbas deceased that he should part with anything he had. Zafar Abbas resisted and was fired at by Zia Ullah hitting the deceased on the left chest. They raised alarm. The deceased in injured condition stepped outside the shop. Imtiaz accused then fired at the deceased which missed the target. Three accused present in Court and other three ran away from the spot.
The injured was removed to the hospital where he succumbed to the injuries. Leaving Zulfiqar and Zawar Hussain with the deceased he proceeded to lodge the report and on the way met the S.H.O.
To whom complaint Exh.P.D. Was made. Iqbal Hussain complainant (P.W.10) stated that he identified the accused in the identification parade. The witness was cross-examined at length but nothing useful could be obtained from him. Merely because that he is related to the deceased does not mean that he is not deposing the truth. His presence at the time of occurrence an not be doubted. His shop is at a distance of 30/40 yards from the shop of the deceased. He must be sitting at the shop of the deceased at the time of occurrence, and had witnessed the occurrence.
Zulfiqar (P.W.11) gave similar account of the occurrence as given by P.W.10. He had also witnessed the recoveries of blood-stained earth, empty cartridges of .30 bore pistol from the spot and correctly identified the accused in identification parade and also in the Court. He is, no doubt, related to the deceased but that alone does not make him a false witness. He was residing at a distance of 100 yards from the place of occurrence and it was not unusual for him to have come to the shop of the deceased and being present at the time of occurrence. Contradictions in the statements of P.W.10 and P.W.11 about the distance and place of firing as pointed out by the learned counsel for the appellant are not so material as to have adversely affected the prosecution case.
Their testimony finds corroboration from the medical evidence. Both the P.Ws. Stated that deceased was hit on left side of his chest. According to post-mortem report Exh.P.A. Proved by doctor Muhammad Munsha (P.W.2) there was a wound 0.5 c.m. Diameter with inverted edges on the front of left chest 6 c.m. From left nipple. Recovery of two empties from the spot also prove that two fire-shots were made, first --- by Zia Ullah which hit the deceased and second by Imtiaz (acquitted - accused) which missed the target. About the number of accused as mentioned-in the F.I.R. And that stated by the P.Ws. In Court suffice it to say that the P.Ws. Gave effective role to accused Zia Ullah and identified him in the identification parade albeit held belatedly but no genuine reason to ignore it as no irregularities were committed still the P.Ws. Had identified'the accused during trial in Court and gave effective role to Zia Ullah. How Zia Ullah who was not named in the F.I.R. Came into picture is .a different story narrated by Muhammad Hanif, Inspector (P.W.15).
On 23-2-1994 Muhammad Hanif, Inspector was on duty patrolling the area of Chak No,387/JB Mouza Allar that the accused came riding on motorcycle and when asked to produce any proof of ownership of motorcycle, they failed to do so. They were apprehended and motorcycles were taken into possession under section 550, Cr.P.C. On personal search of Zia Ullah pistol P.6, .30 bore loaded with six bullets, a magazine P.6/7 were taken into possession vide memo. Exh.P.L. Recovery memo. Was signed by Munir Ahmad, A.S.-I. (given up) and Yousaf Ali, A.S.-I. (P.W.9). Earlier Muhammad Aslam, S.H.O. (P.W.13) to whom application, Exh.P.D. Was submitted by Iqbal Hussain after sending him to the police station for registration of the case proceeded to the hospital where he prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the deceased and after entrusting the dead body to Maqsood Ahmad, Constable for getting post-mortem examination he proceeded to the spot where he secured blood-stained earth from inside the shop and took into possession two empty cartridges of .30 bore pistol from near the place of occurrence vide recovery memo. Exh.P.M. The bloodstained earth and the empties were sealed into parcels. These sealed parcels were handed over to Shaukat Hayat (P.W.3) on 7-1-1994 who kept the parcels in the Malkhana and on 15-1-1994 handed over - the parcels to Maqsood Ahmad (P.W.4) for onward transmission to the office of Chemical Examiner and Forensic ScienCe Laboratory, Lahore. Maqsood Ahmad brought back the articles with their reports on 20-1-1994. The report Exh.P.Q. Of Chemical Examiner is that articles were stained with blood. Serologist Report Exh.P.R. Is that earth were stained with human blood. The Report of Forensic Science Laboratory, Lahore is that crime-empties of .30 bore was fired from pistol of .32 bore. The recovery of .30 bore pistol from Zia Ullah accused and its use by him at the time of occurrence is proved beyond doubt. Dr. Khalid Mehmood (P.W.12) deposed about the incident which occurred on the same day at 7-00 p.m. He was present in the M.S. Medical Store of his cousin Mehmood Shifi, that three accused came there on motorcyCle. He identified Zia Ullah accused in Court and stated that he came near to him in front of the counter and pointed out the pistol towards him to hand over to him whatever he had with him. He identified acquitted accused in Court who were standing near the motorcycle. He stated that he told Zia Ullah that he had no knowledge what was there inside the shop and Zia Ullah opened the counter and told him that he had removed the cash amount. He also took Seiko watch from his possession.
After half an hour his cousin, Mehmood Shafi came back to his shop and informed him that a shopkeeper had been murdered: Dr. Khalid Mehmood identified the accused in the identification parade. The witness was confronted with the statement recorded under section 161, Cr.P.C. To show that he made improvements. He could not give minutest details in his statement recorded under section 161, Cr.P.C. From the evidence on record we are fully convinced That Zia 'Ullah accused has committed the murder of Zafar AbbSs deceased. However, his conviction under section 17(4) read with section 302(a), P.P.C. Was uncalled for, because punishment of death as Hadd under section 17(4) of the Ordinance can be awarded to a person only when proof as required by law Rs, section 7 of the Ordinance is available. Section 7 of the Ordinance provides for the proof of theft liable to Hadd in the form namely:--
(a) the accused pleads guilty of the commission of theft liable to Hadd; and
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to tlfe requirements of Tazkiya-Al-Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence; ' Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim; ' Provided further that the statement of the victim of the theft or the person authorized by them shall be recorded before the statements of the eye-witnesses are recorded.
' Explanation. In this section. Tazkiya-Al-Shuhood' means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness."
In the present case accused made .No confession. Trial Court nowhere adopted the procedure of Tazkiya-Al-Shuhood. It has not been made clear as to which mode of enquiry was adopted by the Court to satisfy itself about the credibility of the witnesses. Likewise section 302(a), P.P.C. Providing punishment of death as Qisas for "Qatl-e-Amd" was, not attracted to this case. Section 17 subsection (2) of Qanun-e-Shahadat Order provides that for Hadd punishment proof should be the same as required by section 7 of the Ordinance. This being the position death sentence awarded to Zia Ullah appellant as Hadd under section 17(4) of the Ordinance read with section 302(a), P.P.C. Is altered to that under section 302(b), P.P.C. As Tazir. Sentence of fine and order for payment of compensation is maintained. Appeal fails and is dismissed. Death sentence is confirmed. Murder Reference is answered in the affirmative.