' CH. EJAZ YOUSAF, J.--- This appeal is directed against the judgment, dated 9-1-1999 passed by Additional Sessions Judge, Sibi whereby the appellant has been convicted under section 302, P.P.C.
And sentenced to death.
2. Briefly stated, the prosecution case as gathered from the record is that on 4-12-1995 the appellant, who belongs to Marri tribe, alongwith two other persons came to the taxi stand situated at Chakar Road Sibi and hired Datsun pick-up of the deceased Khuda Bakhsh for the place known as Tharathani. However, when the deceased despite the laps of considerable period, i,e, about two days did not return to his house then a few persons including P. Ws. Lakhmir, Ayyaz and Shakar Khan went in search of him towards Tharathani. In the way, they saw tyre marks of the pick-up which went off the main road. The said tyre marks were accordingly followed which disappeared at a particular place. Therefrom, they followed the foot tracks of 3 or 4 persons which led them to a cave/ditch, entrance whereof was closed by huge stones and the deceased was confined therein.
It was alleged that initially P.W.11 Yar Muhammad, by listening cries/shouting of the deceased, was attracted and thereafter, the other person were called by him. They all tried to remove the stones from the entrance but were unsuccessful because it were too heavy, to be removed, as such, they sent for some more persons from a nearby situated village namely Talli. In the meantime, they however, talked with the deceased, who told them that "the persons who had hired his Datsun pick- up for Tharathani had put/confined him in the cave. After 2/3 hours Muhammad Murad and Abdul Samad who were sent to Talli to bring help, brought 50/60 persons but unfortunately, by the time the stones could be removed, Khuda Bakhsh breathed his last. A written complaint i,e, Exh.P.1-A was lodged on 6-12-1995 by P.W.5 Wazir Khan on the basis whereof investigation was carried out by P.W.7 Sahibzada Usman Shah, Naib-Tehsildar. On the completion of investigation the present appellant Pirak who, in the meantime, was arrested by Sibi Police at the instance and pointation of P.W. Muhammad Ayaz, was challaned to the Court for trial.
3. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial.
4. At the trial, the prosecution initially, in order to prove the charge, examined 7 witnesses whereafter statement of the accused under section 342, Cr.P.C. Was recorded. In his statement he denied the charge and pleaded innocence. He, however, declined to produce any evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C. He was convicted and sentenced to death by the learned trial Court vide judgment, dated 11-6-1996. He preferred an appeal in the High Court of Balochistan, which vide order, dated 6-8-1996 was kept pending and the trial Court was directed to also record statement of P.W. Shakir Khan. Accordingly, statement of Shakir Khan was recorded as P.W.8 and thereafter, the said appeal was heard and decided on 29- 5-1997. It was inter alia held by the Honourable High Court that the appeal was not maintainable and was, therefore, dismissed with the direction that the murder reference be sent to the Federal Shariat Court for further action as may be deemed fit and proper and the appeal, if desired may also be filed before the Federal Shariat Court. Consequently, Criminal Appeal No,48/Q of 1997 was preferred, which was taken up by this Court alongwith Criminal Miscellaneous Reference 1/Q of 1997. It was found that though in compliance of the direction made by the High Court of Balochistan statement of P.W.8 Shakir Khan was recorded on 25-8-1996, by the trial Court yet, before final decision of the matter, the appellant was neither examined under section 342, Cr.P.C.
Again, nor he was confronted with the circumstances brought on record against him, by the prosecution through the statement of P.W.B. Resultantly, the judgment, dated 11-6-1996 was set aside and the case was remanded to the trial Court, vide judgment, dated 14-7-1998, for proceeding from the stage of P.W.8 onward with the direction that fresh statement of the accused/appellant under section 342, Cr.P.C. Be recorded and if he prefers, be also examined under section 340(2), Cr.P.C., with further opportunity to produce evidence in his defence. It was also directed that the parties shall feel at liberty to produce any evidence in their favour.
5. On remand, four witnesses were examined by the prosecution whereas, a witness was produced by the appellant in his defence besides getting recorded his own statements under sections 342 as well as 340(2), Cr.P.C.
6. P.W.1 Wazir Khan is the complainant. He deposed that he on 6-12-1995, in consequence of information conveyed by one Muhammad Murad driver, reached the place where the deceased was confined and by removing the stones lying on the entrance of the cave, took out dead body of the deceased. He produced in Court report lodged by him as Exh.P.1-A. P.W.2 Dr. Mohin Dass had on 6-12-1995, examined dead body of the deceased in the Civil Hospital, Sibi and found following injuries on the person of the deceased:-- "(1) Bruised and multiple lacerated wounds and swelling present on the right side of shoulder upto the elbow joint and right side of whole chest.
(2) Multiple laceration present on the right hypo chonrium. Right illiac fessa bruised and swollen.
(3) Bruises and swelling present on the left illiac fossa and hypochondraime.
(4) Abrasion present on the left thigh (later side).
(5) No froth and no any discharge from mouth, nostril, ear and urethre and anus."
' He was of the opinion that the death of the deceased was caused due to internal haemorrhage.
He produced medico-legal certificate as Exh.P./2-A. P.W.3 Lakhmir deposed that the appellant, in his presence, had hired datsun pick-up of the deceased for Tharathani and had left Chakar Road, Sibi for the said place, whereafter, he himself had gone to Jaccobabad, to transport a passenger there. When he came back on 6th day of the said month, children of the deceased came to him and inquired about the whereabouts of the deceased he, therefore, in the company of some other persons, including the P.Ws., went in search of Khuda Bakhsh towards Tharathani. When they reached a place situated in between Karmu Wadh and Tharathani they saw the tyre marks of a pick-up which went off the main road on the right side. By following the tyre marks as well as the foot tracks, they reached the place, where, the deceased was confined in a cave. Mouth of the cave was covered with big stones which were not possible to be lifted. The deceased, however, at the relevant time was alive and was crying for help. They as such sent for some other persons from a nearby village. In the meantime, they talked with the deceased who disclosed that it was the appellant Pirak (Wadera), who had done so with him. P.W.3 was subjected to lengthy cross- examination but nothing favourable to the defence and damaging to the prosecution was elicited from him. In the course of his cross-examination he, however, admitted the suggestion as correct that his first statement under section 161, Cr.P.C. Was recorded on 10-12-1995 and that in the entire period from 6-12-1995 to 21-1-1996, when his second statement was recorded by the police, he did not give the name of appellant Pirak to any authority. He, however, refuted the suggestion as incorrect that on the day when the deceased Khuda Bakhsh was engaged/taken away by the persons belonging to Marri tribe, he was not present on the spot. P.W.4 Muhammad Ayyaz, at the trial, corroborated the statement of P.W.3 in all material particulars and deposed that in his presence, the accused present in Court alongwith two other persons had hired datsun pick-up of the deceased for Tharathani and that thereafter, when, he returned to Sibi from Quetta after transporting some passengers, came to know that the deceased had not reached back. Therefore, he went in search of him in the company of others, and reached the place where he was confined.
He too, deposed that the deceased had disclosed to him that the same persons, who had engaged his taxi for Tharathani, had put him in the cave. In the course of his cross-examination he refuted the suggestion as incorrect that in his statement, dated 10-12-1995, he had not stated that the deceased had not disclosed to him that the persons who had hired his tax, had kidnapped him.
P.W.5 Ghulam Hussain brother of the deceased is a formal witness of shifting the dead body of the deceased to the Civil Hospital, Sibi. P.W.6 Rehmatullah, NaibTehsildar, Sibi had, on receiving information regarding murder of the deceased, gone to Civil Hospital, Sibi and had initially recorded statement of the witnesses under section 161, Cr.P.C. But later on, having found that the place of occurrence fell outside his jurisdiction, had handed over the relevant papers to Naib- Tehsildar, Kahan, on 10-12-1995. P.W.7 Sahibzada Usman Shah, Naib-Tehsildar, Kahan is the Investigating Officer. He produced in Court the F.I.R. Exh.P.1-A, medico-legal certificate Exh.P./2-A, Sketch of the place of occurrence Exh.P./7-A and incomplete challan Exh.P./7-B. In the course of his cross-examination he admitted the suggestion as correct that P.W.7 Shakir had stated before him that on coming forward he would be in a position to identify at least one of the culprits, who had engaged the datsun pick-up of the deceased Khuda Bakhsh. He, however, admitted that the appellant after his arrest was not put to the identification test. P.W.8 Shakar Khan is another witness who deposed regarding hiring of the pick-up by some persons belonging to Marri tribe. He also corroborated the statement of P.Ws.3 and 4 regarding hiring of the vehicle, the search and recovery of the dead body of the deceased. He further, disclosed that he too, had talked with the deceased, who was furious on account of the delay in their reaching the place of his confinement.
P.W.8, however, confirmed that the deceased in his presence had disclosed that; the same persons, who had hired taxi of the deceased had put him in the cave. In the course of his cross-examination he however, stated that he did not know the appellant prior to his arrest and that the person belonging to Marri tribe, who talked with the deceased in his presence was not the appellant. P.W.9 Muhammad Murad also corroborated the statement of other witnesses regarding search and recovery of the dead body of the deceased from the cave. He too, confirmed that the deceased had disclosed to him that he was thrown in the cave by the persons belonging to the Marri tribe.
However, according to P.W.9 their names were not disclosed by the deceased. P.W.10 Allah Bakhsh too, corroborated the statement of other P.Ws. Regarding search of the deceased and recovery of his dead body. He further, confirmed that as per disclosure made to him by the deceased, four persons had thrown him in the cave, one out of whom was known to P.W. Lakhmir because a few days ago goats were transported by him and Lakhmir to Talli and that the said person was bodyguard of the owner of the goats. P.W.11 Yar Muhammad too, corroborated the statement of other P.Ws. Regarding search of the deceased, recovery of his dead body and the disclosure made by him to the witnesses including P.W.11. He confirmed that he was the person, who reached the cave ahead of the others. He, however, refuted the suggestion as incorrect that he in his statement recorded by the Tehsildar, had not disclosed that the appellant alongwith three other persons had taken the deceased and that; his i,e, the appellant's name was not disclosed to him by the deceased. P.W.12 Abdul Samad too, corroborated the statement of other P. Ws. As stated above, on the conclusion of the prosecution evidence the appellant was examined under sections 342 as well as 340(2), Cr.P.C. Wherein, he denied the charge and pleaded innocence. He produced one witness namely Nasiban son of Shahoo in his defence who deposed that in the year, 1995 the appellant in order to purchase cattle had visited him at Kahan and that in the meantime, a relative of the appellant namely Dihingan fell ill and expired after twenty days. The appellant remained there for about two months whereafter, they took the cattle to Sibi, sold the same there and went to Quetta.
He further, deposed that after staying at Quetta for a few days, they came back to Sibi where, the appellant was arrested.
7. After hearing arguments of the learned Counsel for the parties the learned trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
8. We have heard Mr. Muhammad Aslam Uns, Advocate, learned Counsel for the appellant, Qari Abdul Rashid, Advocate, for the State and have also perused the entire record with their help.
9. Mr. Muhammad Aslam Uns, Advocate, learned Counsel for the appellant has contended that no evidence ocular pr circumstantial, worth consideration, was brought on record to connect the appellant with the commission of the offence. He maintained that the instant case, rests mainly upon the circumstantial evidence which at all was not, trustworthy. The dying declaration/statement allegedly made by the deceased before the P.Ws. Was also not confidence inspiring. He further submitted that in the case in hand, the prosecution has not only failed to arrest and challan the other culprits but has also failed to recover and produce in Court the allegedly robbed vehicle, therefore, prosecution version of the incident was not believable. It is further his grievance that since the appellant, after his arrest, was not put to the identification test, therefore, prosecution version was not plausible, particularly in view of the fact that name of the appellant did not appear in the F.I.R., which was got registered on 6-12-1995 soon after the occurrence. In order to supplement his contention he submitted that had name of the appellant been disclosed to the witnesses by the deceased, then in all probabilities, it should have appeared in the F.I.R. In nutshell he stated that the case in hand was of no evidence. In the end however, he submitted that as mentioned in ground "D" of the grounds of appeal, in the facts and circumstances of the case, the extreme penalty of death was not warranted.
10. Qari Abdul Rashid, Advocate, on behalf of the State while controverting the contentions raised by the learned Counsel for the appellant submitted; that guilt of the appellant, at the trial, was materially and substantially brought home by the prosecution through independent and reliable evidence. It was proved to the hilt that on 4-12-1995 pick-up of the deceased was hired by the appellant and his companions and they all left Sibi for Tharathani. Normally, the deceased was supposed to come back to Sibi, in the evening, on the same day or at the most on the next day, yet since he did not return to his house, therefore, he was searched and was found to be confined in the cave, enterance whereof was closed with heavy stones. Since the stones were not possible to be lifted, therefore, help was sought for. In the meantime deceased made conversation with the P.Ws. And disclosed that he was abducted and confined in the cave by the same persons who had hired his Datsun pick-up. Unfortunately, before he could be rescued, he was dead. Learned Counsel for the State vehemently contended that the evidence produced on the record by the prosecution clearly proves that the present appellant was amongst the culprits and he in furtherance of the common intention as well as object of the others, had taken away the deceased, confined him in the cave which ultimately caused his death. Learned Counsel for the State pleaded that neither there was enmity between the parties nor any of the prosecution witnesses have had any motive to falsely implicate the appellant nor there was any possibility of substitution of the real offender, therefore, the appellant was rightly found guilty by the trial Court. He, however, candidly conceded that neither the appellant after his arrest was put to the identification test nor the datsun pick-up allegedly snatched away from the appellant was possible to be recovered nor his companions were traced out/apprehended by the police.
11. We have minutely gone through the record of the case. Admittedly in the case in hand there is no eye-witness of the crime. As per prosecution version the appellant in connivance with his companions had hired the pickup of the deceased, in order to, snatch away the same. Having accomplished the task, they put/confined the deceased in a cave and blocked entrance thereof with big stones so that he could not escape away. Though nobody has deposed as to what happened to the deceased after his leaving Sibi, yet, the disclosure made by him to P.Ws.3, 4, 8, 9 and 11 before his death, clearly indicates that the persons responsible for his confinement were the same who had hired the taxi. It would be pertinent to mention here that statements of these P.Ws.
Regarding the disclosure made by the deceased to them, have not been categorically challenged at the trial and a mere question of general nature that they were not telling the truth, was put to them at the end of their statements, therefore, these portions of their statements cannot be doubted. The dying declaration of the deceased provides sufficient details about the culprits regarding hiring of the taxi as well as his confinement in the cave wherefrom he was ultimately taken out, dead. We are not convinced by this argument of the learned Counsel for the appellant that since name of the appellant was disclosed to the P.Ws. By the deceased, therefore, in all probabilities, it should have appeared in the F.I.R. A perusal of the depositions made by the P.Ws.
Particularly P.W.3 Lakhmir, P.W.4 Muhammad Ayyaz, P.W.8 Shakir Khan P.W.9 Muhammad Murad P.W.10 Allah Bakhsh and P.W.11 Yar Muhammad indicate that before his death though the deceased had disclosed to them that he i,e, the deceased, was abducted and confined in the cave by the same persons who had hired his taxi from Sibi for Tharathani yet except P.W.3 Lakhmir, none of these P.Ws. Has claimed that the deceased had also mentioned name of the appellant. P.W.
Lakhmir too, has stated that the deceased had mentioned that Wadera (Pirak) was also amongst the culprits. But he too, does not appear to have conveyed the information to anybody else because in the course of his cross-examination he has admitted the suggestion as correct that between the period 16-12-1995 to 21-1-1996 when his second statement was recorded, he had not given the name of the appellant to the authorities. Further P.W.9 Muhammad Murad in the last sentence of his examination-in-chief has categorically stated that at the time of removing stones, the deceased had disclosed to him that he i,e, the deceased was thrown in the cave by the persons belonging to Marri tribe but he had not disclosed their names. Additionally it has been stated by P.W.10 that he i,e, the P.W.10 was told by the deceased that Lakhmir P.W. Knew about one of the culprits because he i,e, the culprit was bodyguard of the owner of the goats which were transported by the both, a few days ago. It appears that the deceased himself was not aware of the name of the appellant and he, perhaps knew him by face or by the name of Wadera as has been mentioned by some of the witnesses. It would also be pertinent to mention here that appellant's arrest was made at the disclosure and pointation of P.W. Muhammad Ayyaz. As per prosecution version, the appellant contacted him on 21st of the month and intended to hire his taxi for the transportation of a klashnikov and at that juncture, he was identified by P.W. Ayyaz to be one of the culprits of the instant case. He, therefore, immediately informed 'relatives of the deceased as well as the police at Sibi whereafter, the appellant was arrested. The above stated facts lead to the inference that the P.Ws. Were not aware of the name of the appellant and he was only known to them by face. Thus, non-appearance of his name in the F.I.R. Is not fatal towards the prosecution case. The contention, therefore, has no force.
12. So for as involvement of the present appellant in the commission of the offence is concerned, all the P.Ws. Except P.W.8 have categorically stated that it was he i,e, the present appellant, who came to the taxi stand Sibi on 4-12-1995, hired datsun pick-up of the deceased and they all left for Tharathani. P.W.8 Shakir Khan too, has confirmed that the persons belonging to Marri tribe had hired taxi of the deceased. Though in the end of his cross-examination he has stated that the person who was talking with the deceased, in his presence, was not the appellant yet, the fact remains that his statement, fully corroborates the statements of the other P.Ws., on all other material points. The fact cannot be lost sight of that statement of P.W.8 Shakir Khan was recorded on 25-8-1996 and on the same day an application was submitted by the District Attorney in the trial Court, to the effect that since P. W.8 Shakir Khan was threatened by the accused party and he was not willing to give evidence in support of his statement recorded under section 161, Cr.P.C.
Therefore, he i,e, P.W.8 may be permitted to be dropped. It appears that since statement of P.W.8 was to be recorded in pursuance of the order made by the High Court of Balochistan, therefore, his statement was recorded but it appears that he was reluctant to name anybody. Thus, in the circumstances, the concession made by him in favour of the appellant, appears to be obliging one, otherwise his statement in pith and substance fully corroborates the statements of other prosecution witnesses on all other material points. Though in cross-examination it has been suggested by the defence to the P.Ws. That in their statements recorded on 10-12-1995, they had not disclosed about the fact that the appellant on 4-12-1995 had visited the taxi stand at Sibi and talked with the deceased and in the statements of some P.Ws., it was not found so recorded yet, suggestion so made in this regard by the defence was categorically denied by P.W.4 Muhammad Ayyaz in the following words:-- "I had stated before Tehsildar that we asked the deceased Khuda Bakhsh as to who kidnapped him and he replied that the Marri persons had kidnapped him. I had mentioned in my statement before the Tehsildar, dated 10-12-1995 in the early morning at about 6-00 a.m. I in my datsun pick-up came from my house to pick-up taxi stand Chakar Road, Sibi and was sitting alongwith P.W.
Lakhmir, Kashmir and Babu Allah Bakhsh when the accused present in the Court alongwith two other persons came over there and asked the deceased Khuda Bakhsh for going to Tharathani, on which Khuda Bakhsh took them in his Datsun pick-up and went."
' Though learned Counsel appearing for the appellant had tried to cavass that the word "not so recorded" appearing in the end of next sentence also covers the above portion of P.W.4's statement yet, to our mind the sentence appearing subsequently in his statement, and starting from the word "thereafter" is a separate sentence. In the circumstances, we see no reason as to why deposition made by P.W.4 in this regard may be doubted. It would be worth while to mention here that P.W.4 is an independent witness, as per record neither he is related to the deceased nor has any motive to falsely implicate the appellant.
13. As regards the next contention raised by the learned Counsel for the appellant that in the absence of identification parade/test of the appellant his identification in Court, and statements of the prosecution witnesses to that effect, were of no avail. It may be pointed out here, that though as per rule of prudence the Courts have always searched for corroboration through other sources including the identification test etc., and have insisted that in certain cases holding of identification parade is essential yet, it is restricted to those cases only, in which, a witness merely gets a momentary glimpse of the accused and claims that he would be able to identify him. However, in the cases, in which the accused is known to the witness previously or has met the accused several time, identification parade of the accused can be dispensed with, because in such cases, the witness can identify the accused, even in the Court. In this view we are fortified by the observations of the Honourable Supreme Court of Pakistan made in the case of State v. Farman Hussain and others reported as PLD 1995 SC 1. There is no rule that in the absence of the identification parade testimony of the prosecution witnesses cannot be relied upon. In certain cases, in the absence of the identification parade or even defective identification proceedings the conviction was recorded/maintained by the Superior Courts. Reference with convenience, in this regard, may be made in the case of Muhammad Bashir v. State reported as PLD 1958 SC 1. In the above case Honourable Supreme Court of Pakistan while reversing the acquittal, convicted the accused persons on the basis of direct evidence though identification test was found defective. It is also well-settled that if identity of the accused is proved by other convincing evidence direct or circumstantial, then absence of the identification test would be immaterial. Reliance in this regard may be placed upon the observations of the Honourable Supreme Court of Pakistan made in the case of Muhammad Afzal and another v. State reported as 1982 SCM R 129. Reverting back to the instant case, it may be mentioned here that it is not case of the prosecution that the P.Ws. Had seen the appellant for the first time on 4-12-1995. Record reveals.That most of them knew the appellant well, though by face and with a different name of Wadera, with whom, he appears to have been commonly known. In the circumstances we see no reason as to why in the instant case, the statements of the prosecution witnesses may be discarded. The contention, therefore, must fail.
14. A careful perusal of the evidence reveals that presence of the accused/appellant at the Taxi Stand, Sibi on 4-12-1995 alongwith other culprits and his participation in the crime has been proved through the statements of P.Ws. 3, 4, 8, 9 and 11. Dying declaration of the deceased with regard to the identity of the appellant and his participation in the crime lends further corroboration to the prosecution version. He has been correctly identified by the eye-witnesses in Court, to be one of the culprits. Specific role was attributed to him by the P.Ws. Which stands proved at the trial. It is well- settled that if there is'harmony between the dying declaration and other evidence then due weight has to be attached to the truth of dying declaration irrespective of the fact that, dying declaration was not made in immediate apprehension of death. Needless to point out that last incriminating statement made by the deceased can be treated as dying declaration. In this view too, we are fortified by the observations of the Honourable Supreme Court of Pakistan made in the case of Shamim Akhtar v. Faiz Akhtar and 2 others reported as PLD 1992 SC 211. Though some of the prosecution witnesses appear to have improved their statements at the trial, but while reading the evidence as a whole, we are of the opinion that the prosecution has been successful in establishing its case against the appellant, therefore, we are inclined to maintain the conviction recorded against him by the trial Court. However, since it has not come on record as to why the appellant was confined in the cave; as to whether intention of the culprits was to actually kill him or that they just wanted to gain some time, so that in the meanwhile, the robbed property i,e, datsun pick-up may be disposed off or was there some other reasons, therefore, we feel that the extreme penalty of death, in the circumstances of the case, is not warranted and the ends of justice would be met with if the appellant is sentenced to life imprisonment. Accordingly conviction of the appellant Pirak alias Wadera son of Behleel is maintained, however, his sentence is altered from death to life imprisonment under section 302-B, P.P.C. The benefit of section 382-B, Cr.P.C. Is extended to him.
' Criminal Murder Reference No, 1/I of 1999 is not confirmed and answered in the negative.