1. ' BASHIR A. MUJAHID, J.--- Basaam Laeeq son of Muhammad Laeeq and Usman Ali son of Khawaja Tariq have challenged judgment dated 7-7-1999 passed by learned Judge, Special Court under Anti-Terrorism Act, 1997, Lahore, whereby Basaam Laeeq was convicted under section 302(b)134, P.P.C. For commission of murder of Saqib Mehmood and sentenced to -death and ordered to. Pay rupees one lac as compensation to the legal heirs of the deceased under section 544-A,, Cr.P.C., in default thereof to undergo one- year simple imprisonment while Usman Ali was convicted under section 302(b)/34 read with section 308(1), P.P.C. And sentenced to 10 years' rigorous imprisonment and was ordered to pay Diyat of Rs,2,02,158. They were also convicted under section 392/34, P.P.C.
2. And sentenced to 10 years' rigorous imprisonment each and a fine of Rs,50,000 each, in default of payment of the same to undergo six months' simple imprisonment. They were further convicted under section 449/34, P.P.C. And sentenced to 10 years rigorous imprisonment and fine of Rs,50,000 each in default thereof to suffer simple imprisonment for six months each.
3. ' The brief facts of the 'prosecution case are that F.I.R. No,286 of 1997 (Exh.P.B/1) was registered at Police Station Faisal Town, Lahore at 9-25 p.m. On the basis of statement Exh.P.B of Kashif Mehmood P.W.2 recorded by Muhammad Jaffar, S.I P.W.12 on 4-9-1997 at 9-15 p.m. At 290-C Block Faisal Town, Lahore wherein it was stated that the complainant was resident of 281-A/C Faisal Town, Lahore and had agency of Servis Tyres and Tubes. On the day of occurrence at 10-00 a.m., he went to his office at Bank Square Mall Road, Lahore. His younger brother Saqib Mehmood student of B.Com. And his wife Mst. Farah Rehman were at home. His wife Mst. Farah Rehman P.W.7 along with her brother Saif-ur-Rehman P.W.11 went to the house of her parents at 120-J, Model Town, Lahore at 3-30 p.m.
4. The complainant left his office and arrived at his house in Faisal Town after taking his wife from his in-laws and found the gate of the house closed. He opened the door with his keys and saw Saqib Mehmood sitting on a sofa and when checked he found Saqib Mehmood had received pistol shot on his left side under armpit and had died by firing of unknown assailants. The household articles were also found scattered.
5. ' Muhammad Jaffar, S.I. P.W.12 after recording the statement Exh.P.B. Sent the same to the police station for registration of formal F.I.R. Through Shoaib-ul-Hassan, F.0 and he himself arrived at the place of occurrence and prepared the inquest report Exh.P.M. Of the dead body of Saqib Mehmood and despatched the same for post-mortem examination and he took three pieces of cigarettes Marbrow P.82/1-3, one empty P.76, one cushion P.81, one envelop P.78, two pieces of papers P.80/1-2 and a pair of gloves P.77/1-2 into possession through memo. Exh.P.G. The memos. Were attested by Hanif-ur-Rehman and Tayyab Mehmood, P.W.10. He recorded the statements of the P. Ws. Under section 161, Cr.P.C. Wherein the appellants were nominated as assailants. On 4-9-1997 he received an application Exh.P.0 from the complainant relating to the stolen articles. On 5-9-1997, he took into possession the last worn clothes of the deceased through memo. Exh.P.D. He got prepared the site plan through Hameed-ud-Din Chishti, Draftsman/P.W.6. He raided the house of the accused but they could not be arrested. On 20-9-1997, the investigation of the case was transferred to Harnid Mehmood, A.S.I. P.W.13, who, on 20-9-1997, arrested accused Basaam Laeeq who while in police custody led to the recovery of articles P.1 to P.9 which were taken into possession through memo.
6. Exh.P.J. He also led to the recovery of pistol 30-bore P.82 and five live cartridges P.83/1-5 which were taken into possession through memo. Exh.P.H. The car No,KW-7227 was also taken into possession from the garage of Basaam Laeeq through Exh.P.L. On the same day, Usrnan Ali accused led to the recovery of cordless phone P.72 and a stabilizer P.73 and a telephone set P.74 which were taken into possession through memo. Exh.P.K. Those memos. Were signed by Muhammad Naeem and Tayyab Mehmood, P.W.10. The articles taken into possession were identified by the complainant at the police station. On the same day. After completion of the investigation, challan of the case was submitted by Muhammad Ashraf, Inspector/S.H.O. D.W.1.
7. ' The trial Court framed the charge which was denied by the accused and they claimed trial.
8. ' During the trial, the prosecution examined as many as 13 witnesses to prove the guilt of the accused.
9. ' The medical evidence was furnished by Dr. Muhammad Nawaz Tahir, P.W.9, who, on 5-9-1997, at 3-15 p.m. Conducted the post-mortem examination on the dead body of Saqib Mehmood and found the following injury on his person:- " An oval lacerated wound 1.5 x 1 c.m. With inverted margin with collar of abrasion present on the front of left chest almost on the interior fold of left axilla, 9 c.m. Below the left shoulder and 13 c.m.
10. From the mid line."
11. ' The ocular account was furnished by Talha, P.W.1, who stated that on the day of occurrence i,e, 4- 9-1997 at about 6-15 p.m. He alongwith Meer Saleem had come to the house of complainant and saw both the accused/appellants coming out of the house of the complainant in Car No,7227 and VCR, Bundle of clothes, speakers of deck and other household articles were on the rear seat of the car. There was no response to the call-bell and the doors of the house of the complainant were locked from inside. They went away and thereafter he came back at 9-30 p.m. And found that the instant occurrence had taken place. Kashif Mehmood, complainant was examined as P.W.2. He supported the version of the F.I.R. And the statement Exh.P.B recorded by him. He also identified the golden ornaments and the house hold articles looted from his house, at the police station. Mst.
12. Farah Rehman, wife of Kashif Mehmood complainant was examined as P.W.7, who stated that on 4- 9-1997 at 3-30 p.m., she left the house along with her brother Saif-ur-Rehman, P.W.11 for the house of her parents in J-Block, Model Town and at that time she saw Basaam Laeeq and Usman Ali accused/appellants talking with Saqib Mehmood younger brother of her husband in front of gate of her house. She came back at 8.30 p.m. Along with her husband Kashif Mehmood, P.W.2 and found Saqib Mehmood dead sitting on a sofa with an injury on the left side of his chest. Her husband left for the police station for registration of criminal case. Later on, they found that household articles i,e, jewelry, deck, VCR, clothes and perfumes were missing and the list was prepared Nand handed over to the police. Saif-ur-Rehman, brother of Mst. Farah Rehman was examined as P.W.11, who supported the story as narrated by his sister Mst. Farah Rehman by stating that when he took his sister for his house, he saw both the accused/appellants busy taking with Saqib Mehmood. Tayyab Mehmood, P.W.10 had attested the recovery memos. Of the articles taken into possession on 4-91997 from the spot and on 5-9-1997 he identified the dead body after post- mortem on 20-9-1997, he joined the investigation and attested the recovery memos. Through which the accused/ appellants got recovered looted -articles. Munawar Hussain, A..S.I/P.W.3 had recorded the formal F.I.R. Exh.P.B/1. Liaqat Ali, H.C. P.W.4 kept the sealed parcel in safe custody in Maalkhana. Muhammad lqbal , F.0 . P. W.5 had produced the last worn clothes of the deceased before the Investigating Officer_ and attested the recovery memo, Exh.P.T. Hameed-ud-Din Chishti, Draftsman/P.W.6 had prepared the site plan. The prosecution evidence was closed after tendering in evidence report of Chemical Examiner Exh.P.S. And that of Serologist Exh.P.Q. And Forensic Science Laboratory Exh.P.R.
13. ' The statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations 'and claimed their innocence and false involvement. To the question as to why the case against him, Basaam Laeeq accused replied as under:-- "I am absolutely innocent and have been falsely involved in this case. I cannot dare to commit such a serious crime. I am a minor boy aged 15 years and a student of 10th Class. I produce attested copy of my birth Entry EXh.D.E, and my school Certificate Exh.D.F. I was also got medically examined by my father after moving application to the Magistrate on 8-10-1997 when I was confined in District Jail, Lahore. I produce my statement in writing Exh.D.G. In addition to my this statement."
14. ' And to the same question, reply of Usman Ali accused was as under:- " The accused of this case were unknown. Police interrogated the friends and other persons who were known to the deceased. During investigation they were made to pay heavy amount and were lel off. I used to play cricket with Saqib Mehmood deceased off and on and for this reason police joined me in the investigation and subjected me to excessive torture. The Investigating Officer demanded Rupees one lac as illegal gratification which my parents were unable to pay. Since I was innocent, my father held out threats to the police that if I was not allowed to go he would file suit for damages. For this reason the police involved me in this case falsely. I am innocent. I have no concern with Basaam Laeeq iny co-accused. I am seventeen years and three months old."
15. ' The accused examined Moeen Ashraf, Inspector as D.W.1 in defence who stated that he had submitted the formal challan before the Court against the accused. Liaqat Ali, D.W.2 had produced the register of Police Station to show that application made by Muhammad Laeeq were received at the Police Station. Dr. Muhammad Ashraf Tanveer, D.W.3 had medically examined the accused Basaam Laeeq on 30-9-1997 under the orders of the Magistrate. Muhammad Sadiq D.W.4 had produced the record of Municipal Corporation to show the birth entry of Basaam Laeeq accused.
16. Dr. Akmal Shaheen, D.W.5 proved the report of the Medical Board whereby Basaam Laeeq was medically examined about the alleged torture by the police. Maqbool Ahmad D.W.6 brought the record of entry register of dead bodies. Irfan Qadir, MIC D.W.7 had passed the 'order on the application moved for medical examination of Basaam Laeeq. Hamid Raza, Inspector D.W.8 brought the record from Licensing Authority/Department to show that Saif-urRehman was not issued any Driving License. Muhamad Iqbal Khan, Principal High School/D.W.9 brought record of Basaam Laeeq as he was born on 28-12-1982. Asif Ali, D.W.10 was the Dry Cleaner. He proved that the coats allegedly recovered from the possession of Basaam Laeeq belong to him., Suhail Hafeez, D.W.11 was the Property Dealer and he stated that on 4-9-1997 at about 3-30/4-00 p.m., he reached near the house 281-A/C Faisal Town and overheard the noise of a lady and two person.
17. Muhammad Latif, D.W.12 was News Reporter and he produced the clipping of newspaper Exh.D.C.
18. Dr. Hamid Bashir Haider, D.W.13 examined Usrnan Ali appellant and found his age as 17 years and three months. Dr. Syed Sohail Hassan Naqvi, D.W.14 was Radiologist and he examined Usman Ali and according to the opinion he was aged 17/18 years. Javed Mehmood D.W.15' produced the record of UCH showing that as son was born to one Tariq on 10-8-1976. Dr. Hamid Bashir Haider was examined as C.W.1, who medically examined Basaam Laeeq. Zaheer Ahmad, D.W.16 was also Dry Cleaner and stated that he had received an amount of Rs,200 from Basaam Laeeq. Sheikh Muhammad Laeeq, father of Basaam Laeeq appeared as D.W.17. He stated that his son Basaam Laeeq was , born on 28-12-1982. Dr. Syed Sohail Hassan Naqvi, C,W.2 also determined the age of Basaam Laeeq accused and ,according to his opinion, he was aged 22 years and 3 months.
19. ' The trial culminated into conviction of the appellant as mentioned above. Basaam Laeeq had filed Criminal Appeal No,734 of 1999 while Usman Ali has filed Criminal Appeal No,784 of 1999 against their' conviction and sentence. The complainant has filed Criminal Revision No,693 of 1999 for enhancement of sentence of Usman Ali. The trial Court has sent up Murder Reference No,330-T of 1999 for confirmation of death sentence of Basaam Laeeq under section 374, Cr.P.C. All the matters are being decided by this single judgment.
20. ' Learned counsel for Basaam Laeeq appellant has argued that the case of the , prosecution is based on circumstantial evidence and very material links are missing in the evidence brought on record; that the arrival of Talha, P.W.1 .At the house of the complainant at 6-30 p.m. Is not believable. Likewise the evidence of last seen by Mst. Farah Rehman P.W.7 and Saif-ur-Rehman P.W.11 is 'self-contradictory; that the recovery of stolen property has also been planted. It appears that the pistol was' taken into possession from the spot which wedded with the crime empty and its recovery was falsely shown against Basaam Laeeq; that the list of the stolen articles was prepared, admittedly, by the father-in-law of the complainant but he has not appeared to prove the said list; that the appellants were arrested in some other case and the recovery of the stolen articles was also shown under section 550, Cr.P.C. And subsequently they have been implicated in the instant case.
21. ' Learned counsel for Usman Ali appellant has argued that the articles allegedly recovered from his possession were of common nature and were easily available in the market and case against him is doubtful and the recovery has been effecked in violation of section 103, Cr.P.C. And he has served out his substantial sentence. In alternate it has been prayed that as the appellant has served out his substantial sentence and is being detained for non-payment of Diyat, he prays that he be allowed to pay the Diyat amount in easy instalments.
22. ' Conversely, the appeals have been opposed by the learned counsel for the complainant and for the State. Learned counsel for the complainant has supplemented his contentions by placing reliance on 2001 SCM R 536 and has argued that merely on the basis of technicalities the conviction cannot be set aside and the relationship of the P.Ws. With the deceased or the complainant is no ground to discard their testimony. They have no previous enmity for false implication of the appellants. 'He has prayed for enhancement of sentence of Usman Ali.
23. ' Heard. Record perused.
24. The case of the prosecution is based on circumstantial evidence. Talha P.W.1 is witness of `Wajtakar' who stated that he alongwith Meer Saleem had seen both the appellants in the car just outside the.
25. House of complainant at 6-30 p.m. On the day of occurrence. He was friend of Kashif Mehmood complainant and had come to see him in connection of delivery of pipes. His presence at the spot has been sufficiently explained and is believable. Likewise, the evidence of "last seen" of the deceased in the company of the appellants as stated by Mst. Farah Rehman, P.W.7 and her brother Saif-ur-Rehman, P.W.11 is confidence inspiring. They are natural and truthful witnesses. The relations/ friendship of the appellants with the deceased has not been denied. They were of the same age group and residents of the same locality, therefore, the presence of the appellants with the deceased at the house of complainant was neither unnatural nor unusual. The appellants were known to these witnesses being friends of the deceased. Kashif Mehmood or the other prosecution witnesses namely, Talha P.W.1, Mst. Farah Rehman P.W.7 and Sail-ur-Rehman, P.W.11 have no enmity with the appellants for their false implication by letting off real culprits. They stood the test of lengthy cross-examination but nothing has been brought on record to discard their testimony. It was stated by the complainant in the F.I.R. That he had found the household articles scattered in the house and thereafter a list of the stolen articles was provided to the Investigating Officer . Had the complainant to plant the articles then why he had chosen to produce valuable golden ornaments or other expensive articles? Even cheaper things could have served the purpose.. In defence the accused had taken different pleas. Firstly, they tried to show that Saqib Mehmood was done to death by Saif-urRehman due to his making certain accesses to Mst. Farah Rehman which is on the face of it incorrect and scandalous. Secondly, it was suggested that the pistol might have went off accidentally when the deceased was sitting with his friends but no such plea was substantiated by producing convincing evidence. In the circumstantial evidence of wajtakar narrated by Talha, P.W.1 and of last seen of deceased in the company of the appellants as stated by Mst. Farah Rehman, P.W.7 and Saif-ur-Rehman, P.W.11 has been supported by the recovery of the stolen articles and the recovery of pistol. The empty recovered from the spot by the Investigating Officer wedded with the pistol got recovered by Basaam Laeeq accused. It has been further corroborated by medical evidence, therefore, keeping in v:ew all the circumstances of the case, we are convinced that both the appellants are real culprits and their involvement in the commission of crime has been proved by the prosecution beyond any shadow- of doubt and we do not find any link missing in the chain of prosecution evidence to connect the appellant/accused with the commission of crime or ground to interfere in the conviction recorded against them.
26. ' As far as sentence is concerned, it is not clear as to who out of the two appellants caused the fatal injury as the deceased was found dead in a sitting position on a sofa and it is not known as to what transpired between the deceased and the appellants at the spot, and in what manner the occurrence took place. The fire shot was not repeated by the accused, The accused are in their prime- youth, ' therefore, while maintaining the conviction, we alter the sentence of Basaam Laeeq from death to imprisonment for life which will meet the ends of justice. The remaining sentences against him. Are maintained. However, in lieu of payment of compensation he will undergo six months' simple imprisonment. Benefit Off section 382-B, Cr.P.C. Will also be available to him.
27. ' The sentence of Usman Ali appellant is maintained. The case-law referred by the learned counsel for the complainant is not applicable to the instant case. Usman Ali accused was found less than 18 years of age at the time of occurrence which took place after promulgation of Criminal Law (Second Amendment) Ordinance, 1990 whereby adult has been defined as who has attained age of 18 years, therefore, we do not find any force in the arguments of the learned counsel for the complainant to enhance the sentence of Usman. Learned counsel for Usman appellant has stated that he has served out his entire sentence of imprisonment and is only detained for non-1 payment of `Diyat' and he be allowed to pay the same in installments, therefore, we order that if he has served out his substantial sentence, he be released from jail subject to his furnishing surety bonds against the amount of `diyat' to the satisfaction of the learned Sessions Judge, Lahore, and he is allowed to pay the Diyat amount within a period of two years in six monthly four instalments.
28. Criminal Appeals Nos.734 and 784 of 1999 are dismissed with 'the above modification. The Criminal Revision No,693 of 1999 is also dismissed having no force. The death sentence of Basaam Laeeq is not confirmed.
29. ' Murder Reference is answered in negative. accordingly.