' CH. EJAZ YOUSAF, J.--- This judgment will dispose of Criminal Appeal No,40/I of 2001 filed by Bashir Ullah son of Mehtab Khan and Nasrullah son of Raji Gul, Criminal Murder Reference No,2/I of 2001 filed by The State and Criminal Revision No,9/I of 2001 filed by Muhammad Shaukat son of Muhammad Hayat (complainant) against the aforenamed appellants for grant of compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. As all the matters arise out of the same judgment, dated 14-12-1999 passed by learned Sessions Judge, Dera Ismail Khan whereby both the appellants have been convicted under section 302(b)/34, P.P.C. And sentenced to death.
2. Briefly stated, the prosecution case as gathered from the record is that on 15-6-1998 at about 17- 50 hours, report Exh.P.A./1 was lodged by one Muhammad Shaukat with Muhammad Yousaf, Incharge Reporting Center, Civil Hospital, Dera Ismail Khan wherein it was alleged that the complainant was working as a Cleaner with Datsun Pick-up No,DNB7057 whereas, Imam Din deceased was the driver of the said vehicle. On the day of occurrence, both, the complainant as well as the driver, were present at Tank Adda when two young persons reached there and asked Imam Din to carry 16 bags of chaff, from the vicinity, to the said Adda. Imam Din accepted the proposal and agreed to transport the chaff, in consideration of a sum of Rs,150. They all thus proceeded to the place where, the chaff, according to the aforesaid persons, was lying. Both the aforesaid persons, who were talking in Pushto, occupied the front seat alongwith the driver whereas, the complainant climbed at the roof of the Datsun and sat there. At about 17-00 hours, when they reached at the place known as Hikmat Abad, both the aforementioned persons asked the driver to turn the Datsun back as, according to them, they had travelled ahead of the place where the bags of chaff were lying. No sooner the driver turned the vehicle back then one of the aforenamed persons alighted from the Datsun and tried to snatch the vehicle from Imam Din. The other resorted to firing whereupon Imam Din asked the complainant to bring some help, as according to him, the culprits were trying to kill him. Having been frightened, the complainant jumped of the vehicle and ran towards a nearby situated house. However, since no male member of the family was available in the said house, therefore, he immediately returned to the place of occurrence. On reaching there the complainant saw that Imam Din was lying dead and Datsun was also taken away, by the culprits. The complainant, therefore, rushed to the Adda and informed the persons, present there, regarding the occurrence. Thereafter, a Datsun Pick-up was arranged and dead body was carried to hospital. It was claimed in the report that, on seeing again, the complainant would be in a position to identify the culprits. Complaint/ Murasila Exh.P.A. Was accordingly written and sent to the police station for formal registration of the case, on the basis whereof, F.I.R. Bearing No, 89 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 302/34, P.P.C. Was registered. Investigation was carried out and on completion thereof the accused persons were challaned to the Court for trial. It would be pertinent to mention here that, as per prosecution version, simultaneously with lodging of the report, a wireless message regarding the occurrence was also flashed whereupon, the S.H.O. Police Station Gomal University immediately made Nakabandi of the area and proceeded towards the place of occurrence alongwith a contingent. In the meantime, he i,e, the said S.H.O. Received information that the Datsun Pick-up was abandoned and the culprits were heading towards village Sikandar. He, therefore, rushed towards the said village and on reaching there saw that the culprits were being chased by the people. After resorting to aerial firing he apprehended the culprits and also recovered from their possession arms as well as the ammunition. He then proceeded to the place of occurrence where Ashraf A.S.-I. Produced before him two buttons of a shirt allegedly belonging to one of the culprits. He also recovered from the place of occurrence empties of .30 bore pistol from two different points. Since, as per prosecution version, both the accused persons, on their arrest showed willingness to confess their guilt, therefore, they immediately, on the next morning, were produced before a Magistrate for the purpose of recording of their confessional statements. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
4: At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellants produced 19 witnesses, in all P.W.1 Sardar Bakhsh S.H.O., Police Station University, D.I. Khan had on the completion of investigation submitted the complete challan in the Court. P.W.2 Amanullah a relative of the deceased had, at the time of post-mortem examination, identified dead body of the deceased. P.W.3 Umar Khitab is a marginal witness of the recovery memo. Exh.P.C. Vide which the blood-stained shirt of the deceased was taken into possession.
P.W.4 Manzoor Ahmad is a marginal witness of the recovery memo. Exh.P.C./1 vide which the allegedly robbed Datsun Pick-up i,e, Article P.2 was taken into possession by the police. P.W.5 Karam Elahi is a marginal witness of the recovery memo. Exh.P.C./2 vide which shirt of accused Bashirullah i,e, Article P.3, two buttons of which were missing, was taken into possession. He is also a marginal witness of recovery memo. Exh.P.C. Vide which the blood-stained shirt of the deceased was taken into possession by the police. In the course of his cross-examination he stated that he was told by the Investigating Officer that two missing buttons recovered from the place of occurrence matched with the shirt of accused Bashirullah. He, however, denied the suggestion as incorrect that the aforementioned buttons were taken from the shirt of the accused, by the police, so as to beef up the prosecution case. P.W.6 Haq Nawaz, NaibTehsildar had supervised the identification parade. He deposed that in his presence Shaukat P.W. Had correctly identified both the appellants thrice each, turn by turn, to be the culprits. He produced in Court the identification parade memo. As Exh.P.W.6/1. P.W.7 Gulsher Khan, A.S,-I. Was a member of the police party, which in pursuance of the report had chased the culprits. He deposed that as they reached near village Sikandar, they spotted two persons who were running in the fields and they were being followed by the people. After resorting to ariel firing, they apprehended the culprits and recovered from their possession the arms as well as the ammunition. He is also a marginal witness of recovery memo.
Exh.P.C./3 vide which the aforementioned articles were recovered. In the course of his cross- examination he stated that nobody from the public was taken to witness the recovery as none was available. P.W.8 Ghulam Bashir is a marginal witness of the recovery memo. Exh.P.C./1 vide which the allegedly robbed Datsun Pick-up parked near the brick kiln of Abdul Aziz, situated in village Chehkan, was taken into possession by the police. In the course of his cross-examination the witness stated that driver of a Datsun, who was coming from Tank side, had informed him regarding the robbed vehicle P.W.9 Dr. Tahir Manan had on 15-6-1998 performed post-mortem examination of deceased Imam Din and found as under:-- External examination
(1) A fire-arm entry wound measuring 1/8" x 1/8" at the right upper and lateral neck.
(2) Exit of wound No,1 measuring 1-1/2 x 1", 2" apart from wound No,1 and was at right lateral and mid neck with everted margins.
(3) Fire-arm entry wound measuring 1/2" x 1/2" at the right anterior and mid forearm with compound fracture of right radious and ulna.
(4) Exit wound of wound No,3 measuring 2" x 2" at right medial and mid arm.
(5) A fire-arm entry wound measuring 1/4" x 1/4" at the left medial and upper arm.
(6) Exit of wound No,5 measuring 2" x 2" at left axilla.
(7) Fire-arm re-entry wound of wound No,6 deep in chest cavity measuring 2-1/4" x 2-1/4" on upper side of left chest wall.
(8) Re-exit fire-arm wound of No,7 measuring 2-1/2" x 2-1/2" on right upper lateral chest.
(9) Superficial graze wound measuring 1/4" x 1" at left anterior and middle arm.
Internal examination ' Stomach was healthy with semi solid food, walls, ribs and cartilages of thorax, pleura, right lung, left lung, pericardium and heart and the corresponding blood vessels were injured.
' Radius and ulna (2) left lateral and upper ribs were fractured."
' In his opinion, the cause of death was due to fire-arm injuries leading to the destruction of vital organs i,e, lungs, heart and major blood vessels causing blood loss, hypovolumic shock and death.
He opined that direction of the bullet was from left lateral to right medial and from above downwards. As per his opinion probable time between injuries and death was instantaneous and probable time between death and post-mortem, within two hours. He produced in Court, the post- mortem examination report as Exh.P.W.9/1. P.W.10 Muhammad Ashraf F.C. Is a marginal witness of recovery memo. Exh.P.W.10./1 vide which bloodstained earth, two empties of .30 bore pistol P.13 from one place, and two empties Exh.P.14 from another place, were taken into possession by the police from the place of occurrence. Vide the above memo an identity card in the name of Nasrullah i,e, Article P.15 was also taken into possession by the police from the place of occurrence, P.W.11 Amanullah deposed that on the day of occurrence he was present in his house, situated in village Chehkan. On hearing announcement on the loudspeaker of the village mosque whereby people were informed about the occurrence, he alongwith Abdul Latif P.W. Went in search of the culprits, on a motorcycle. On coming out of the village, they saw a police vehicle which was running, in pursuit of the accused persons, in high speed, therefore, they also followed them. On reaching within the limits of village Drabri they came across another police contingent. The accused persons were running at some distance. Police in presence of the witness, arrested both of them. In the course of his cross-examination he stated that at the relevant time the accused persons were running at a distance of about one field. P.W.12 Shahbaz deposed that, on the day of occurrence, he was coming on a cycle to bring clay from the brick kiln. He saw that Datsun Pick-up belonging to his village was going in high speed towards Tank. After covering some distance, the Datsun stopped. On reaching near the Datsun, he saw the two persons came out of the vehicle and started running towards the jungle situated on southern side of the road. He returned to the village and then informed Muhammad Hussain P.W. Brother of Imam Din, regarding the vehicle, whereafter announcement on loudspeaker of the village mosque was made. P.W.13 Shaukat is the complainant. He, at the trial, while reiterating the version contained in the F.I.R. Confirmed that accused persons, present in the Court, were the same who had hired the Datsun Pick-up and then robbed the same away and in the course of occurrence also killed Imam Din driver of the vehicle. In the course of his cross-examination he stated that at the time when the pick-up was hired no one else except the witness and the driver was present at the Adda. He further stated that one of the culprits who had long hairs alighted from the vehicle and dragged the driver away, the witness also jumped down from the vehicle, however, none of the culprits chased him. He stated that the deceased Imam Din was his maternal-uncle. In the course of his cross-examination he denied the suggestion as incorrect that he was a student and was not working as a cleaner. P.W.14 Hafizullah is another eye-witness of the occurrence.
' He deposed that at about 4-30 p.m. On the day of occurrence, he was present at Tank Adda and was standing near the vehicle of Imam Din when two persons who were speaking in Pushto booked the vehicle in question for Rs,150 to bring chaff from the village area. The deceased Imam Din asked the witness to accompany him and also promised to drop him at his house after taking the chaff. He boarded the pick-up and sat in the body of the vehicle whereas, Shaukat P.W. Climbed at the roof of the Datsun. The two persons, who had hired the Datsun, occupied the front seat, alongwith the driver. When they reached near "Ara", the vehicle was turned back. There was a scuffle in the front seat and one of the accused tried to drag Imam Din away thereafter, they fired at the deceased and threw him out of the Datsun. The vehicle was then taken away. In the course of his cross-examination he stated that Imam Din deceased was the son of his paternal-aunt and Shaukat complainant was his nephew. He further stated that initially, firing was made inside the Datsun, and the deceased was then thrown out in injured condition. He further stated that a single shot was fired inside the vehicle, whereas, rest of the shots were fired outside the vehicle. He, however, showed his inability to disclose as to how many shots were fired outside the Datsun Pick- up as according to him, in the meantime, Imam Din had asked him as well as the complainant to go and solicit help. P.W.15 Zafrullah Khan, Judicial Magistrate, D.I. Khan had on 16-6-1998 recorded confessional statements of both the appellants. He produced the same in the Court as Exhs.P.W.15/2 and P.W.15/5. In the course of his cross-examination he refuted the suggestion as incorrect that he did not put the questions to the-accused regarding any inducement, torture or the reason which prevailed upon them to make the confessions. He also refuted the suggestion as incorrect that the accused persons had complained to him of extensive torture. P.W.16 Muhammad Yousaf, H.C. Police Station Cantt. D.I. Khan, deposed that, at the time of occurrence, he was posted in Police Station Cantt. And was performing his duties in the Reporting Centre, D.H.Q. Hospital, D.I.
Khan. He on the complaint lodged by Shaukat P.W. Had written the report/Murasila i,e, Exh.P.A./1, on the basis whereof subsequently, formal F.I.R. Was registered. He had also prepated injuries sheet of deceased Imam Din as Exh.P.D. And inquest report as Exh.P.D./1. P.W.17 Irshad Khan, S.H.O. Had, on receiving information regarding the occurrence, chased the culprits and recovered from their possession arms as well as ammunition vide recovery memo. Exh.P.C.3. He stated that at the time of recovery, both the crime weapons i,e, pistols were giving smell of fresh discharge. He had also partly investigated the case and in course thereof made certain recoveries besides, producing the accused persons before the Magistrate for the purpose of recording of their confessional statements. In the course of his cross-examination he refuted the suggestion as incorrect that accused persons had actually not confessed their guilt and that the police statements of the accused persons were attributed as their confessions. P.W.18 Ghulam Bashir had prepared site plan of the place wherefrom the Datsun Pick-up was allegedly recovered. He produced the same as Exh.
P. W . 18/1. P. W . 19 Muhammad A shraf, A. S. -I. Had also partly investigated the case. In the course of investigation, he had recovered blood-stained earth, empties of .30 bore pistol, four in number, an identity card belonging to appellant Nasrullah and two buttons of shirt vide recovery memo.
Exh.P.W.10/1. He had also recorded supplementary statement of the complainant and statement, under section 161, Cr.P.C. Of Hafizullah. He had also placed on file the Reports of Fire-arms Expert i,e, Exh.P.K. And Chemical Examiner's Report as Exh.P.K./1, respectively. In the course of his cross- examination he stated that since the place of occurrence was a deserted place, therefore, he did not summon any elder or notable of the area to witness the recoveries.
5. On the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. In answer to the question as to why he was charged? Appellant Bashirullah stated that he was innocent and was falsely implicated. Most poor persons, like him, shift to agricultural lands, when the harvesting season is about to start. He too, came down from the hills in April and remained busy in harvesting the crop, in a traditional manner. After harvesting the wheat crop, it took about a month or two to encash the shares. On the fateful day, there was hue and cry and lot of persons were running around. He also joined them and came to know that they were trying to find the murderers. In the meantime, police also came at the spot and since he was new to the area and was not amongst the local residents, therefore, he was considered as old man out. He was taken to the Mahsuds, whose fields he had been harvesting and thereafter the police took him to the police station. Later on, he learnt that he was involved in the case. He added that since suchlike cases attract sharp criticism from the public and the authorities are normally under pressure, therefore, the police always tried to hush up the matter by making somebody the scapegoat. Almost, similar stand, in pith and substance, was taken by appellant Nasrullah. In answer to the question as to why he was charged? He added that he on the fateful day was sitting in the Barriak of Pir Hikmat Shah, in his field. Police party came there. They wanted from him to verify identity of a man who was accompanying them. The police party also wanted to verify from him regarding his own identity and he produced his N.I.C. He was told that since he i,e, the appellant was a Mahsud and the apprehended person was also a Mahsud, therefore, he should either give statement against him or else would be considered as an accomplice. He was taken to the police station where he came to know that he was involved in the case. The appellants, however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr. P. C.
6. After hearing the arguments of the learned counsel for the parties learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.
Record reveals that initially an appeal i,e, Criminal Appeal No,87 of 1999 alongwith Murder Reference No,9 of 1999 and Criminal Revision No,1 of 2000 were filed in the Peshawar High Court against the above judgment which was dismissed vide order, dated 25-10-2000. Appellants then approached the Honourable Supreme Court of Pakistan by way of Criminal Appeal No,55 of 2001 (out of) Cr. P. No,238/I of 2001 which was allowed and the case vide judgment, dated 8-2-2001 was remanded to this Court for decision afresh, in accordance with law, as it was found that an appeal against order of conviction passed under provisions of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was not competent before the Peshawar High Court.
7. We have heard Mr. Abdul Karim Kundi, Advocate, learned counsel for the appellants, Mr. Muhammad Sharif Junjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
8. Mr. Abdul Karim Khan Kundi, Advocate, learned counsel for the appellants has raised the following contentions:--
(i) That since confessional statements of the appellants were extracted from them by applying third degree methods, therefore, the same were inadmissible.
(ii) That since the report, in pursuance whereof the F.I.R. Was registered, was recorded in the hospital, therefore, the possibility that the investigation was dishonest, cannot be ruled out.
(iii) That delay in holding the identification test and non-description, by appearance of the appellants, by the complainant, had greatly marred it's evidentially value.
(iv) Alternatively it was argued that since the appellants had no intention to kill the deceased, therefore, imposition of death sentence was not justified.
9. Mr. Muhammad Sharif Janjua, Advocate appearing for the State on the other hand, while controverting the contentions raised by the learned counsel for the appellants has submitted that; F.I.R in the instant case was registered promptly, the accused persons were apprehended immediately after the occurrence from the vicinity and crime weapons were recovered from their possession then and there. Report of the Chemical Examiner has confirmed that empties, recovered from the place of occurrence, were fired from the weapons recovered from the possession of the appellant. Medical evidence lends further support to the prosecution version. The deceased was a poor taxi driver, therefore, the possibility that the investigation was influenced by his relatives has to be ruled out. Further substitution of an accused is rear phenomenon, therefore, the appellants were rightly convicted for the offence.
10. In furtherance of his first contention that since confessional statements of the appellants were extracted from them, therefore, it were inadmissible, the learned counsel for the appellants has vehemently contended that since confessional statements i,e, Exh.P.W.15/1 and Exh.P.W.15/4 were extracted from the appellants by applying third degree methods, therefore, it being inadmissible, could not have been taken as incriminating pieces of evidence in recording conviction against the appellant.
' In order to ascertain as to whether or not there is substance in the contention, we have ourselves carefully gone through the record of the case. It is an admitted fact that the occurrence, in the instant case, took place on 15-6-1997 at 17-00 hours, report whereof was immediately, lodged and in pursuance, the appellants were arrested on the same day in the evening. On 16-6-1998, i,e, the next morning both, for the purpose of recording of their confessional statements, were produced before P.W.15 Mr. Zafarullah Khan, Judicial Magistrate. Thus there was hardly any delay. Factually the appellants remained with the police just for a few hours of the night, for which remand was even taken, therefore, the likelihood that the confessional statements were extracted from them, has to be ruled out. It would be pertinent to mention her that, at the trial, with regard to the confessional statements, various different stands which apparently are inconsistent with each other, were taken by the appellants. Initially it was suggested to P.W.15 that neither he had recorded the confessions nor such confessions were voluntarily made to him. Later on, it was suggested that after consulting the police statement of the accused persons he i,e, P.W.15 in consultation with the Inspector/S.H.O. Had written the statements, himself. Subsequently, it was suggested to the Magistrate that though the accused persons had complained to him regarding extensive torture yet, no specific question with regard thereto was recorded by him. All the suggestions were denied, by the witness. In their statements, recorded under section 342, Cr.P.C., the accused persons yet, took another somersault and while giving up the stance, taken earlier, straightaway denied the factum of their getting record the confessional statements, in question. In this regard it would be advantageous to reproduce hereinbelow Question No,8 and answer thereto, from the statement of appellant Bashirullah, which reads as follows:-- "Question. It is also in evidence that on 1-6-1998, you made a confessional statement Exh.P.W.15/4 voluntarily, before P.W. Zafar Ullah Khan, Magistrate. Is it correct?
' Ans. I was not produced before any Magistrate and there could be no question of making any confessional statement particularly when I committed no offence. If any such confession is attributed to me it would be police over doing."
' And to a similar question also bearing No,8, appellant Nasirullah also denied that any confession was made by him. Relevant question and answer thereto is also reproduced hereinbelow for ready reference.
"Question. Did you on 16-6-1998 make voluntarily confessional statement Exh.P.15/1 before P.W.
Zafar Ullah, M.I.C.?
' Ans. I neither made any confession nor was taken anywhere from the police lock-up till my transfer to Judicial Lock-up from police custody."
' Admittedly the facts proved on record belie the stand taken by the appellants. A bare perusal of Exh.P.W.15/1, and Exh.P.W.15/4 , the confessional statements in question, would show that before recording the same a number of questions were asked from the appellants by the Magistrate.
These questions were not only duly answered but all the answers were properly authenticated by the appellants, by putting their thumb-impressions thereon. Besides, at two other places i,e, at the feet of the confessional statements as well as on the certificates issued by the Magistrate, thumb- impressions of the appellants appear, therefore, the only inference possible to be drawn is that the plea that no confessional statement was got recorded by the appellants, was a mere afterthought, and therefore, the confessions cannot be struck down as inadmissible. In this view we are fortified by the observations of the Honourable Supreme Court of Pakistan, made in the case of Naqeebullah and others v. The State reported as PLD 1978 SC 21 wherein, it was unequivocally laid down that where an accused, on one hand, denies to have confessed his guilt before any Magistrate and on the other, fails to support the plea by producing any evidence or omits to cross- examine the prosecution witnesses to show that confession was obtained by torture, than such confession cannot be struck down as irrelevant. Relevant discussion reads as follows:-- "In this connection the two accused in their respective statements recorded by the Committing Magistrate denied having confessed their guilt before any Magistrate. On the other hand Wasal accused in his statement recorded by the Sessions Judge stated that he was arrested by the police on 21-7-1974 and was given beating and was asked to make the confessional statement before the Magistrate. It was on account of the torture and duress of the police that he was forcibly made to give a statement on which his thumb-impression was obtained. Similarly, Naqibullah accused stated that he did not voluntarily make any such confessional statement (Exh.P.Y.) and that it was obtained from him on account of police torture and duress. Apart from this inconsistent stand taken by them in the two Courts, they did not adduce any evidence in defence. Moreover, the prosecution examined the two Investigating Officers namely Fazal Rabbi Khan, A.S.-I. (P.W.9) and Mahboob Ali Khan, S.D.P.O. (P.W.2) but not even a suggestion was put to them in their cross- examination to show that the two confessions were procured from the accused by torture and were involuntary. Even from the cross-examination of Syed Akram Shah, Magistrate (P.W.6) it does not appear that the two confessions were caused by any inducement, threat or promise. They cannot, therefore, be struck down as irrelevant under section 24 of the Evidence Act, 1872."
' It would not be out of place to mention here that Irshad Khan, S.H.O. Who had arrested and produced the appellants before the Magistrate was examined by the prosecution as P.W.17. Though in the course of his cross-examination it was suggested to him that confessions were not actually made and statements of the accused persons recorded by the police were reproduced in the shape of confessional statements yet, not a single question was put to him that the confessional statements in question were obtained by applying coercive methods or were the result of torture, inducement, promise or threat etc. And it is well-settled that if evidence given by a witness on certain point, in examination-in-chief is not challenged and authenticity of the fact is not questioned in cross-examination, the legal presumption would be that said fact has been admitted by the party against whom the same has been brought on record. This view receives support from the following reported judgments:--
(1) Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCM R 2300, (2) Qamar-ud-Din through his legal heirs v. Hakim Mahmood Khan 1988 SCM R 819, (3)
Muhammad and others v. State 1993 PCr.LJ 1632, (4) Kaleem Ahmad and others v. The State PLD 1993 Kar. 13, (5) Amjad Pervez v. State 1992 ALD 269(2), (6) Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465, (7) Karim-ud-Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545, (8) Muhammad Ibrahim v. Haji Raza Hussain 1987 M LD 515, (9) Muhammad Mujeeb-ur-Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537, (10) Fida Hussain v. Mst. Anwari Khatoon 1985 M LD 110 and (11)
Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah.
1138.
' In the circumstances we are unable to subscribe to the contention of the learned counsel for the appellant that the confessional statements in question, being inadmissible, could not have formed basis for appellant's conviction.
11. In furtherance' of his next contention that since F.I.R. Was not registered at the police station, therefore, the possibility that the investigation was dishonest, the learned counsel for the appellants submitted that as per complaint, deceased Imam Din died instantly. As per prosecution version his dead body was straightaway taken by to the hospital where, statement of the complainant was reduced into writing in the shape of Murasila i,e, Exh.P.A./1 on the basis whereof formal F.I.R. Was registered. Learned counsel for the appellants vehemently urged that since the dead body at first instance was not taken to the police station, therefore, the possibility that the entire episode was arranged purposely, so as to gain time and ensure that F.I.R. Is registered after the completion of investigation, cannot be ruled out. We are afraid, the objection raised by the learned counsel for the appellants cannot prevail for the reasons firstly, because nowhere on record either it appears or has been proved that registration of the F.I.R. Was intentionally delayed so as to enable, the Investigating Officer to complete the investigation and secondly, not a single suggestion either to the complainant or the Investigating Officer was put that they had done so, deliberately to gain time. On the contrary, investigation in the instant case, appears to have been made in normal and fair manner. Rather action taken by the police was prompt and it was necessary as well. Facts and circumstances of the case suggests that subsequent to the occurrence priority of the police was to apprehend the accused persons. Record reveals that report in the instant case was lodged at 17-50 hours on the basis whereof F.I.R. Was registered at 19-30 hours. It has come on record that no sooner Irshad Khan, the then S.H.O. Police Station University, received information regarding the occurrence then he arranged for Nakabandi of the area and himself alongwith a contingent rushed towards the place of occurrence. In the meantime,- he received information that the culprits, having abandoned the vehicle, were trying to flee and they were being chased by inhabitants of the area. Therefore, he immediately proceeded to the place wherefrom the appellants were allegedly arrested. It has come on record through the statement of P.W.17 that after apprehending the appellants the witness had also recovered from their possession the crime weapons alongwith ammunition and sealed the same on the spot thus he remained busy there for considerable time. In the course of events as they took place, now it has to be seen as to whether the police had, had opportunity, time or cause to at first, menevour transportation of the corpse, to the hospital arrange for recording of the report, complete the investigation and then register the F.I.R. Subsequently. In this regard it may be mentioned here that as stated above, the report i,e, Exh.P.A./1 was recorded at 17-50 hours just after 50 minutes of the occurrence. It has come on record through the statement of P.W.10 Muhammad Ashraf that Hikmatabad, the place where the occurrence took place, is situated at a distance of 11 to 12 miles from the police station and if not more, the hospital, which is situated in the city, would be at the same distance from the place of occurrence. Obviously transportation of the dead body to the hospital would have taken some time and it cannot be less than 50 minutes. Therefore, hardly any time was left for Muhammad Yousaf H.C. P.W.16 who, as per prosecution version, was available in the Reporting Centre of D.H.Q. Hospital at the relevant time, to prepare the report after consulting the S.H.O. Or any other officer. It is an admitted fact that the F.I.R. Is a verbatim copy of the report/Murasila and no improvement therein was made. Therefore, in the absence of any suggestion to P.W.10 that Exh.P.A./1 was not recorded by him at the given time, we do not see force in the contention that recording of the F.I.R. Was intentionally delayed by the police, to gain time.
Learned counsel for the appellant has also tried to canvas that in the normal course of events dead body instead of hospital should have been taken to the police station. To our mind, this objection too, has no substance because generally it is observed That in all cases of offences effecting the human body, the victim as a part of routine is taken to the hospital. In cases of deadly assaults even, the victims, are seen taken to the hospitals in the hope that there may be a last breath. Otherwise dead body is not removed from the place of occurrence and people normally wait there for arrival of the police. However, it is seldom that the corpse is taken to the police station. We, therefore, do not find any force in this contention of the learned counsel as well.
12. In furtherance of his next contention that the delay in holding the identification test and non- description, by appearance, of the appellants by the witness had greatly marred evidentiary value of the test, the learned counsel for the appellants has urged that the appellants were arrested on 15-6-1998, whereas identification test was arranged on 20-6-1998, therefore, the delay of five days which otherwise remained unexplained at the trial, had considerably diminished value of the test.
He has further contended that non-description, by appearance, of the appellants in the F.I.R. As well as in the course of identification test by P.W. Shaukat had also effected its worth, therefore, the learned trial Judge was not justified to take the same into consideration.
Before entering into the proposition we may, mention here that identification test is neither a legal requirement nor is a substantive piece of evidence and is only corroborative of the evidence given by ,a witness at the trial. Its use too, is limited to those cases only, in which, the accused was unknown to the witness and he had merely a fleeting and transitory glimpse of the accused otherwise, it can be safely dispensed with because, if the accused was previously known to the witness or he had met the accused several times, then the witness can identify him even in the Court. In this view we are fortified by the following reported judgments:--
(i) Muhammad Fazal and another v. The State 1982 SCM R 129,
(ii) Ali Muhammad and another v. The State 1985 SCM R 1834 and (iii) State through Advocate- General, Sindh v. Farman Hussain and others PLD 1995 SC 1.
' It would also be worthwhile to mention here, that the delay in holding the identification test parade is always not fatal towards the prosecution case and it depends upon a host of circumstance, foremost whereof would be the question of opportunity to identify the accused at the spot and capability of the witness to identify him at a latter stage, either at the identification test or in Court.
Non-description by appearance of the culprits in the report/F.I.R., or failure of the eyewitnesses to utter some words at the time of pointing out a culprit at the parade too, would assume significance only if it is reasonably apprehended that a particular witness by mistake had nominated or charged an innocent person instead of the real culprit. Needless to point out that testimony of a witness, if found discrepant or unreliable can otherwise be discarded, what to speak of seeking corroboration from the identification test.
No doubt, in the instant case, the appellants were arrested on 15-6-1998 and their identification test was arranged on 20-6-1998, on the fifth day of their arrest, yet, the delay in arranging the identification test, in the circumstances of the case, in our view, was not fatal because mere delay or long interval in holding the identification test by itself is no ground to discard testimony as regards identification of the accused, if it is not challenged at the trial. In the case of Arif Masih and another v. The State PLD 2001 SC 398, offence of robbery, in course whereof murder was committed, took place on 28-8-1993. After committing the offence the accused persons, who were three in number, fled and remained at large until 29-1-1994, when two of them were apprehended. Their identification test parade was held after about 6 months of the occurrence. Appellants in that case were convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment. The sentences inflicted on them, by the learned trial Judge were maintained by the High Court. While arguing the appeal, an objection regarding delayed identification test was taken, on behalf of the appellants, before the Honourable Supreme Court of Pakistan. The objection was repelled and it was held that mere long interval in holding an identification test parade and identification of accused would not itself be sufficient to discard testimony of a witness, if it was not challenged by the accused persons in the cross-examination, because once deep impressions of the accused persons in respect of their personal characteristics and features are perceived, preserved and retained in the mind and memory of a witness at the time of commission of offence than later one when the said features re-appear again, the perception stimulate the original memory record of characteristics/features of accused. The fact cannot be lost sight of that in the instant case, the defence has neither disputed the holding of identification test parade nor has sought any explanation, regarding delay, from the Investigating Officer. Further, to our mind, corroboration from identification test would be essential only if, there is doubt regarding identity of the accused otherwise his involvement in the crime can be inferred from the attendant circumstances. In the case of Haq Nawaz and another v. The State 2000 SCMR 5785 the appellant was convicted and sentenced to death under section 302, P.P.C. In addition, certain other sentences were also inflicted on him. It was held that since the accused was apprehended within minutes of the incident and he having been clearly nominated in the promptly lodged F.I.R., being the person who had fired at the deceased, holding of his identification parade was not essential, particularly when the complainant had made a positive assertion both in the F.I.R. As well as before the Court that he had identified the accused as the perpetrated of the crime. We may add here, that in certain cases in which an accused person has an opportunity to identify the accused properly and had no cause or occasion to nominate him falsely, corroboration from identification test would be of not much significance because veracity of the statement of a witness cannot be tested on the touchstone of identification test alone. In the case of Muhammad Bashir Alam v. The State PLD 1958 SC 1 it was held that where the evidence of eye-witness can safely be believed apart from the evidence of the identification parade the latter evidence is of least value. It was further held therein, that real evidence, which implicates the accused person is the statement of the identifying witness in Court and that he had seen a particular person committing an offence, therefore, a Judge in deciding the appeal from conviction is not justified in proceeding to decide the case on the basis that the main evidence in the case was that of identification test and fail to take into consideration the direct and convincing evidence of the eye-witnesses. In the instant case identity as well as involvement of the appellants was sufficiently and adequately established by the evidence of P.W.
Shaukat corroborated by the recoveries from the spot as well as from the possession of the appellants and other evidence. P.W. Shaukat has in unequivocal terms stated that it were the appellants who had hired Datsun Pick-up of the complainant and subsequently, robbed the same away and in the process also murdered the driver. P.W.12 Shahbaz has deposed that on the day of occurrence he, while on his way back to his house from a brick kiln, had seen the culprits sitting in the robbed Pick-up and, that they were proceeding towards Tank in high speed. He has added that after covering some distance, the Pick-up stopped, the appellants alightened therefrom and started running towards a nearby situated jungle. He, therefore, immediately rushed to the village and informed Muhammad Hussain brother of the deceased regarding the above fact whereafter, an announcement on the loudspeaker of the village's mosque was made. P..W.11 Amanullah has stated that on hearing announcement on the loudspeaker of the mosque of the village he alongwith Abdul Latif P.W had gone in search of the culprits and had seen a police party going in pursuit of the accused persons, therefore, they also followed them and it was in his presence that the present appellants were apprehended by the police and crime weapons as well as ammunition was also recovered from their possession. Recovery of empties from the place of occurrence which wedded with the pistols recovered from the possession of the appellants, the recovery of buttons which proved to be from the shirt of the appellant Nasrullah, the recovery of N.I.C. Belonging to him from the place of occurrence and the recovery of the Pick-up from the place where it was statedly abandoned by the culprits lead to the inference that it was not a case of mistaken identity. Further confessional statements of both the appellants which at the trial were proved to have been made voluntarily, on the very next day of their arrest corroborated by other evidence strengthens the belief that the appellants were not substituted of real culprits. It would also be pertinent to mention here that though the appellants were stranger to P.W. Shaukat yet, it, is not the case that he had only a fleeting glimps of the both. As per prosecution version, the appellants had initially contacted the deceased at the bus Adda for the purpose of hiring the Datsun Pick up where P.W. Shaukat was also present. While settling the rent they had conversation with the driver whereafter they all left for the place of occurrence. As per P.W. Shaukat the scuffle between the deceased and the culprits also took place in his presence thus P.W. Shaukat had had ample opportunity tb see and identify the culprits. In the circumstances, their identification subsequently by the witnesses cannot be viewed with suspicion. The contention, therefore, has no force.
14. In support of his last contention that since the appellants had no intention to kill the deceased, therefore, infliction of the sentence of death on them by the learned trial Court was not justified, the learned counsel for the appellants has vehemently urged that as per prosecution version primarily aim of the appellants was to snatch the vehicle away, therefore, if in the course of occurrence the deceased, who had offered resistance, was killed then the appellants could not have been saddled with the liability of intentional murder and, therefore, the imposition of the sentence of death on them was neither proper nor warranted. He has further contended that since as per medical evidence, a number of fire-arms, injuries were found on the person of the deceased and only one i,e, the injury No,7 proved fatal, therefore, at least one of the appellants, who was not responsible for inflicting the said injury, was entitled to be dealt with leniently . In order to substantiate his contention he has placed reliance on the following reported judgments:--
(i) Allah Dad and another' v. The State 1995 SCM R 142 in which case, when record did not show with certainty that it was the shot of the accused which killed the deceased and not of the other accused, sentence of death was altered to imprisonment of life.
(ii) Ansar Ahmad Khan Barki v. The State and another 1993 SCM R 1660 in which case death sentence awarded to the accused, on two counts, by the High Court was converted into imprisonment for life keeping in view the events, happened preceding the occurrence, which might have genuinely created an impression in accused's mind that the deceased was responsible for ruining the matrimonial life of his niece brought by him as his daughter.
(iii) Saee and others v. The State 1984 SCM R 1069 in which case when large crowd formed an unlawful assembly and individual fatal shot could not have been assigned to the accused with reasonable certainty, the sentence of death on him was substituted by imprisonment for life.
(iv) Ata Muhammad v. The State 1985 SCM R 181 in which case shot fired by the appellants was not shown to have actually caused death of the deceased, the sentence of death was altered to life imprisonment.
(v) Shahruddin v. Allah Rakhio and 5 others 1989 SCM R 1461 in which case five persons were convicted by Sessions Judge, Dadu under sections 302/149, P.P.C. For the murder of Ghulam Muhammad deceased and each of them was sentenced to death alongwith a fine of Rs,100 or in default to further undergo R.I. For six months. In addition, other punishments under sections 148, 324 and 404, P.P.0 were also inflicted on them. On appeal the conviction and sentences awarded to the respondents were set aside and they were acquitted of the charge by the High Court of Sindh. On appeal to the Honourable Supreme Court of Pakistan the judgment of the High Court was set aside, however, the death sentences inflicted on the appellants were converted into life imprisonment in view of the fact that it was not possible to be ascertained as to whose gunshot had hit the deceased, in the darkness.
' In order to ascertain as to whether or not there is force in the contention we have ourselves minutely gone through the record of the case. No doubt P.W.9 Dr. Tahir Manan who had carried post-mortem on the dead body of deceased Imam Din had noted nine wounds on the person of the deceased and almost all were fire-arm injuries yet, postmortem report Exh.P.W.9/1 is silent to the effect that which of the injuries mentioned therein proved fatal. The doctor is also silent in this regard, therefore, in the absence of the requisite details, it is not conceivable as to how the learned counsel for the appellants has formed this opinion that the injury No,7, which was a fire-arm wound deep in chest cavity, proved fatal. On the contrary, it has been categorically expressed by P.W.9 that cause of death of the deceased was due to "firearm injuries" leading to the destruction of vital organs i,e, lungs, heart and major blood vessel. It may be mentioned here, that injury No,1 reflected in Exh.P.W.9/1 is a fire-arm entrance wound at the right upper and lateral neck whereas, injury No,2 is the exit wound of the injury No,l. Injury No,3 is also a fire-arm entrance wound at the right anterior and mid forearm which caused compound fracture of right radius and ulna and injury No,4 is the exit wound of the same. Injury No,5 is a firearm entrance wound at the left medial and upper arm and injury No,6 is the exit wound corresponding to the above. Whereas injury No,7 deep in chest cavity is the fire-arm re-entry wound of wound No,6, and injury No,8 is re-exit fire-arm wound of the injury No,7. The above resume would lead to the clear inference that at least two of the injuries i,e, injury No,1 and injury No,7 having been caused on the neck and chest respectively, might have proved fatal, therefore, we are unable to subscribe to the contention fatal injury was caused by one of the appellants only, therefore, the other, deserves to be dealt with leniently. It would be pertinent to mention here that the four empties recovered, (two each from two different points,) from the place of occurrence, as per Ballistic Expert Report is Exh.P.K., were proved to had been fired from the crime weapons recovered from the possession of the appellants, therefore, in the presence of at least three fire-arm injuries on the person of the deceased it can, by no stretch of imagination, be presumed that only one of the appellants was responsible for causing the fatal injury. Even otherwise it is well-settled that once community of intention is established, then the question of fatality of injuries would be wholly irrelevant. In this view we are fortified by the observations of Honourable Supreme Court of Pakistan made in the case of Muhammad Akbar and 2 others v. The State PLD 1991 SC 923, wherein it was held that though generally, common intention inter alia, precedes by some or all of the following elements, namely common motive, pre-planned preparation and concert pursuant to such plan yet, common intention may develop even on the spur of moment or during the commission of offence. Since in the instant case it has been proved on record that the offence of Harabah/robbery was committed by the appellants in furtherance of their common intention and they were prepared and determined to use force, even to the extent of committing murder, in taking away the vehicle as is evident from their confessional statements and the use of fire-arms by both the appellants, therefore, to our mind both were vicariously liable for the offence. In the case of Abdul Jabbar v. The State PLD 1964 SC 81, two persons A and B armed with deadly weapons, entered into a house to commit robbery. B on being hindered stabbed deceased while A at pistol point, held off inmates of the house from raising cries and seeking assistance. It was held by the Honourable Supreme Court of Pakistan that A shared common intention with B in killing deceased and, therefore, conviction under section 302/34, P.P.C. Was proper. In the case of Mitho v. The State PLD 1963 (W.P.) Kar a Division Bench of the erstwhile High Court of West Pakistan, observed that though common intention of M and A was to commit robbery, yet in the course of committing that criminal act, since murder was committed by M, therefore, both were liable for the murder as the murder was committed by M in furtherance of common intention of committing robbery. In the case of Hayat v. The State 1977 SCM R 340, five persons were tried under section 302/34, P.P.C. Two were acquitted while the rest were convicted.
An appeal was filed in the Honourable Supreme Court of Pakistan, by one of the accused persons, it was contended that since the common object of the assailants was to regain a bough which had been taken away by a brother of the deceased and since the appellant took no part in the attack on the deceased, therefore, he could not be said to have shared common intention with the accused who had killed the deceased. The contention was repelled and it was held that since assailant's intention was to kill and then to take away the disputed bough, therefore, section 34 was clearly applicable to their case. It would be pertinent to mention here, that common intention has to be inferred from entire conduct of the accused and not from an individual act which may be committed by him, on the spot. This view receives support from the case reported as Maqsood Parvez alias Billa and others v. The State 2000 SCM R 1859.
' As regard the second limb of argument in the contention that since intention of the appellants was basically to snatch the Datsun away and not to kill the deceased, therefore, they could not have been saddled with the liability of the murder, it may be pointed out here that to our mind, this argument too, is without substance because it has come on record that both the appellants being armed with deadly weapons, as per plan, had hired the Pick-up of the deceased. He was purposely taken to a deserted place so that the vehicle, without any hindrance, be snatched away and since, the deceased had offered resistance (which was justified in view of the provisions of sections 103, 104 and 105, P.P.C.) therefore, he was murdered, intentionally.
' So far as the cases cited at the Bar by the learned counsel for the appellant are concerned, we are afraid, the learned counsel for the appellant cannot take advantage of the same because firstly, the facts of the instant case are wholly distinguishable from the facts of the cited cases and secondly, occurrence in all the cited cases took place prior to the introduction of criminal law (second amendment) Ordinance, 1990 (commonly known as the Qisas and Diyat Ordinance) whereby radical changes in the penal law, concerning the offences effecting the human body, were brought. Except the case of Insar Ahmad Khan Barki 1993 SCM R 1660 in which case, the loss of family honour and ruining of the matrimonial life of the neice of the accused was considered to be a mitigating circumstance for not inflicting the death sentence, in all other cited cases the death sentence was substituted by life imprisonment primarily for the reason that it was not proved by the prosecution that the accused persons were responsible for causing the fatal shots whereas, nothing of the sort has happened in the instant case. On the contrary, observations made by the Honourable Supreme Court in Shahruddin's case 1989 SCM R 1461 would bear up the prosecution case. In that case eye-witness though related to the deceased were believed as nothing on record was shown that they had any enmity with the accused party so as to implicate them falsely and ocular version was corroborated through the recovery of crime weapons which matched with the empties. So far as the imposition of death penalty is concerned, it appears that infliction thereof on the appellants in the circumstances of the case was quite justified because in the absence of any mitigating or extenuating circumstance normal penalty provided for the offence under section 302, P.P.C. Is the sentence of death. In the case of Parvez and two others v. The State 1998 SCM R 1976 four persons including the appellants namely Parvez, Saghir and Mehrban were charged under section 302 read with section 34, P.P.C. For committing murder, in furtherance of their common intention. One of them namely Javed was acquitted. Since fatal shot was attributed to Parvez accused only, therefore, he was sentenced to death while the other two namely Saghir and Mehrban were sentenced to undergo life imprisonments. While dismissing the appeal, filed by all the three convicts, the Honourable Supreme Court of Pakistan was pleased to enhance the sentences of two appellants namely Saghir and Mehrban as well from life to death as it was found that all the appellants had acted in furtherance of their common intention. It was observed that in the absence of any mitigating circumstances each of them ought to have been punished with the penalty of death. The contention, therefore, has no force.
15. A careful perusal of the evidence on record would reveal that in the instant case the prosecution has been successful in establishing guilt of the appellants without any shadow of doubt. It has been proved on record that the appellants according to a plan had contacted Imam Din deceased at Tank Adda and hired his Datsun Pick-up on the pretext of transporting a few bags of chaff. On reaching the place of occurrence they, in furtherance of their common intention, tried to snatch the vehicle away and in the process, killed the deceased as resistance was offered by him. To prove the above fact, the prosecution at the trial has produced two eye-witnesses namely P.W.13 Shaukat and P.W.14 Hafeezullah, one of them i,e, Hafeezullah has been disbelieved by the learned Judge. So far as P.W. Shaukat is concerned, though, he is a relative of the deceased yet, neither he has any motive, of his own, to falsely implicate the appellants in the crime nor appears to have implicated them, by mistake. His testimony finds support from the medical evidence, the recovery of empties from the place of occurrence and statement of P. W.12 Shahbaz who had seen the appellants travelling in the robbed Pick-up just after the occurrence. Therefore, in our view, he was rightly believed by the learned trial Judge. The recovery of two buttons as well as the National Identity Card belonging to appellant Nasrullah from the place of occurrence lends further support to the prosecution version. Arrest of the appellants from the vicinity soon after the occurrence and recovery of crime weapons from their possession, in presence of independent witnesses of the locality, further suggest that the appellants were responsible for the crime. The Fire-arms Expert Report i,e, Exh.P.K. Which confirms that the empties recovered from the place of occurrence were fired from the pistols recovered from the possession of the appellants further strengthens the belief that it were the appellants who had killed the deceased. Above all, the confessional statements of both the appellants which, at the trial, have been proved to be made voluntarily fully establish guilt of the appellants. It is well-settled that a retracted confession is sufficient to sustain a conviction for capital offence, if the Court is of the view that the same is voluntary and is true. Needless to point out that corroboration to a confession is sought only as a matter of prudence. Reference in this regard may usefully be made to the following reported judgments:--
(i) Haq Nawaz and others v. The State 2000 SCM R 785, (ii) Ch. Muhammad Yaqoob v. The State 1992 SCM R 1983 and (iii) Muhammad Gul v. The State 1991 SCM R 942.
' The Chemical Examiner Report lends further support to the prosecution version. Another fact worth-consideration is that the complainant or for that purpose other witnesses have no motive to falsely implicate the appellants. It does not appeal to reason that legal heirs of the deceased would let go the real culprits and instead make the appellants scape-goats, just for nothing. So far as the stand taken by the appellants in defence that they happened to be in the vicinity of the place of occurrence for harvesting the crop is concerned, it appears to be patently sham and after thought because neither any of the Mehsuds with whom the appellants Bashirullah, according to him, was working, were examined to rebut the allegations levelled by the prosecution nor Pir Hikmat Shah in whose field the appellant Nasrullah, according to him, used to work was produced. Further no evidence has been produced by any of the appellants that National Identity Card as well as the buttons belonging to the appellants were not recovered from the place of occurrence and were procured by the police subsequently, to beaf up the prosecution case. In the circumstances we are of the opinion that the appellants were rightly convicted for the offence.
The upshot of the above discussion is that Criminal Appeal No,40/I of 2001 being misconceived is hereby dismissed. The conviction and sentences of death inflicted on the appellants under section 302(b)/ 34, P.P.C. By the learned trial Judge vide judgment, dated 14-12-1991 are maintained.
However, since the. Appellants at the trial were also charged under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. For committing "Harabah" and the learned trial Judge despite the fact that the charge with regard to the offence of robbery, committed by the appellants, too, was proved, has omitted to award appropriate sentences thereunder, therefore, the appellants are also convicted under section 392, P.P.C. And sentenced to undergo R.I. For ten years each and to pay a fine of Rs,25,000 each or in default thereof to further undergo R.I. For one year each. The amount of fine, if realized, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The Murder Reference No,2-I of 2001 is answered in affirmative. The revision petition is partly accepted and the prayer contained therein with regard to the grant of compensation, as mentioned above, is granted.
' These are the reasons for our short order of the even date.