1. By way of three separate Appeals bearing Nos,236, 239 and 251 of 1992, the appellants have challenged the judgment dated 17-10-1992 passed by learned Judge, Special Court H, STA, Karachi whereby, they have been convicted under sections 302 and 324 read with section 34, P.P.C. and sentenced to death each by way of Ta'zir under section 302/34, P.P.C. and five years R.I. to each of them under section 324/34, P.P.C. with fine of Rs,5,000 each or in default in payment thereof to undergo further R.I. for six months each.
2. Above appeals were heard by a Bench comprising of my learned brothers Wahid Bux Brohi and S.A.
3. Rabbani, JJ. who have written separate judgments and have differed with each other, Wahid Bux Brohi, J., has maintained the judgment of trial Court, whereas S.A. Rabbani, J., has acquitted the appellants of all the charges. Honourable Chief Justice has appointed me as Third/Referee Judge.
4. Accordingly the matter is being disposed of by this Judgment as follows.
5. In nutshell, the prosecution story is that the incident took place on 31-5-1991 at about 8-30 p.m. near House N9.21404 Jhanda Chowk, Liaquatabad, Karachi in which the appellants Arshad Pandey, Sarfraz, Aamir, Noman and other assailants arrived at spot on motorcycles and opened fires on a Bus which was to carry a marriage party on the occasion of "Going Away" (Rukhsati) of sister of complainant, after her marriage. Five persons namely Mehboob, Sayed Zulfiqar Ali, Mst. Sharifan, Mustaqeem and baby Saira were wounded, 'succumbed to their injuries, and 10 other persons namely P.Ws. Anwar, Naseem, Muhammad Faisal and others namely Abdul Salam, Safdar, Mst.
6. Sarnina, Mst. Hajira, Mst. Nasima, Mst. Rahila and Mst. Rabia were rendered injured. Details of the incident have been elaborately stated by my learned brother Wahid Bux Brohi, J., in his judgment and it is needless to repeat the same.
7. It will be pertinent to note that initially, trial commenced before Mr. Justice Abdul Rehman (as then he was) Presiding Special Court (for Speedy Trial) who recorded evidence of almost all the witnesses but, subsequently: The case was sent to learned Judge, Special Court No,II, STA, Karachi, who conducted fresh trial of the appellant.
8. Charge framed against the accused/appellants under sections 302, 324, 148 and 149,P.P.C. was read over to them, to which they pleaded not guilty.
9. At trial prosecution examined 22 witnesses namely P.Ws. Nayyar Khan Muhammad Shafiq (Complainant) Muhammad Faisal, Muhammad Anwar, Rashid Zaheer, SIP, Abdul Razzaque, Naseem Ahmad, Dr. Muhammad Aslam, Muhammad Hussain, Slaeem, Muhammad Zahid Mehtab, Badaruddin, Dr. Ali Bux, S.H.O. Aslam Noor Khan, Rashid Jamal, Muhammad Wahid, Saleem Asif, Iftikhar Ahmed, Muhammad Shahid, SIP, Ahmed Hassan, and S.H.O. Muhammad Naseeruddin.
10. Besides S.H.O. Sultan Mansoor Kiyani, H.C. and Ali Gohar were examined as court-witness Statements of appellants were recorded under section 342, Cr.P.C. whereafter, except appellant Aamir the other appellants examined themselves on the oath under section 340(2), Cr.P.C. The impugned; judgment was passed and the appellants were convicted and sentenced as above.
11. Precisely, the reasons which found favour with my learned brother Wahid Bux Brohi, J. for giving credence to the testimony of the complainant, are that the complainant was present at the time when the marriage party was boarding the bus and he had seen the culprits, his statement under section 154, Cr.P.C. was recorded by the S.H.O. Alam Noor Khan on the spot within few minutes of the occurrence, his evidence is in line with his statement under section 154, Cr.P.C.; in that the complainant has narrated almost all the ambient circumstances except with difference that he has not described the name of appellant Naushad in the said statement but, at the trial, he has stated his name, explaining that he knew the culprits because they had been visiting their Muhallah previously and they were residents of Liaquatabad and that nothing has been elicited from the complainant to give slightest indication that he, motivated by circumstances, would exoperate the real culprits who killed as many as 5 persons of the marriage party, and injured 10 others; and would involve the appellants disclosing their names within few minutes of the occurrence.
12. Except P.W. Muhammad Faisal, whose evidence in some material aspects has been ruled out of consideration, my learned brother has believed evidence in some material aspects has been ruled out of consideration, my learned brother has believed evidence of other P.Ws; He has observed that cumulative effect of their evidence is that they have seen the appellants firing at the marriage party causing death of 5 persons, and injuring 10 others, their evidence is corroborated by Medical evidence and the report of Chemical Examiner. He has further observed that the charge stood proved and learned trial Court rightly held that the appellants are guilty for offence of Qatl-eAmd and also of attempt to commit Qatl-eAmd.
13. My learned brother S.A. Rabbi, J., while giving his reasons in his judgment, has, however, observed that in view of the evidence brought on record at trial; at least, a doubt about the false implication of appellants cannot totally be ruled out. Benefit of doubt is to go to the accused/appellants and being entitled to tne same they are entitled to acquittal.
14. I have heard Mr. Abdul Hafeeq Lakho learned counsel for the appellants Arshad Ali, Mr. Abdul Qadir Halepota learned counsel for appellant Noman and Mr. Iqtidar Ali Hashmi for appellant* Naushad, Aamir, and Sarfaraz and Mr. Habib Ahmed learned A.A.-G. and with their assistance I have examined the material available before me.
15. Mr. Lakho argued that complainant said in his evidence that when the assailant started firing they ran towards the house, P.W. Nayyar stated that he was attracted only on hearing shots; therefore, it cannot be said that in such state of panic, bewilderment and heated moments the complainant and others witnesses could have clear view of the assailants to identify them accurately. He expressed that their visual evidence is nothing but a suspect evidence and cannot be relied upon unless it is shown that the offenders are known to the witnesses, there was no obstructions in between him and the offenders; and also that there was sufficient light to enable the witness to have a clear view of the offender and the incident taking place. In support of his arguments he referred to the case of Muhammad Arshad v. The State (PLD 1995 SC 475) and the case of Sajjad Hussain v. The Sate (1997 SCMR 174). Mr. Habib. Ahmed learned A.A.-G., controverted the arguments of Mr. Lakho with great degree of force. He submitted that it was a marriage ceremony when incident is said to have taken place; as such there must be sufficient light, even otherwise the accused persons are already known to the witnesses, they can easily be identified, even on dim light. He, strengthened his submission by saying that there is nothing on the record to indicate that there was no sufficient and that there was any Obstruction enablings them .to witness the incident.
16. Complainant Muhammad Shafique is brother of bride on whose marriage the marriage party available on the scene of occurrence was fired at when her "Going away" was to take place.
17. According to him, on 31-5-1991 at about 8-30 p.m. he was near Islamia Masjid, Liquatabad No,3 whereas a tent was installed in connection with marriage of his sister and a bus brought by the party of bridegroom was parked near the tent when 5 or 6 persons came on motorcycle and started firing at bus causing death of 5 persons and injuring. Faisal, Nasim, Anwar and others; that he had seen the motorcycle riders before they had escaped and that they were Sarfraz Amir Naushad Noman and Arshad Pandey who are known to him because they have been visiting his Muhallah previously and are resident of Liaquatabad. He pointed out to the five accused in Court and said that they are same who had come on two motorcycles and fired at the marriage party. In his cross-examination, he has stated that he was 10-15 paces away from the Bus at the time of incident. Also, he stated, that he was not in the house at the time of firing attending to his mother and sister. Another eye-witnesses P.W. Nayyar has stated in his evidence that after visiting his father when he reached Masjid Chowk (Square), he heard 2 or 3 gun shots from Jhanda Chowk, a place five-seven paces away from first mentioned Chowk and saw all the five accused persons present in Court who had come on motorcycles and fired at bus with automatic and semiautomatic fired arms and that the tiring continued for 2 or 4 minutes. He also stated that fie resided in same Muhallah in which marriage ceremony Was taking place and that all the accused persons are residents of same Muhalla, therefore, are known to him.
18. Mr. Lakho has placed reliance on case of Muhammad Arshad (supra), in which, in para. No,15 it has been observed: "15. The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of suspect evidence and that ordinarily it is not safe to convict on the basis of such evidence without corroboration.
19. Indeed, in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good equality, such as, where the offender was known to the witness, there as sufficient light, the witness had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon."
20. He has also referred to case of Sajjad Hussain (supra) in which the same principle has been followed.
21. It may be noted that incident has taken place at 8-30 p.m. in Liaquatabad which place, as per arguments of learned counsel for the appellants, is a densely populated area. It cannot be said to be without light, yet the places where marriages take place are largely illuminated and enough light is made available. It, therefore, cannot be presumed that at the time of incident there was no light. The defence has also not ventured to ask any question about availability or non-availability of light, conscious of the fact that at such occasions enough arrangements are made for the purpose. There is also nothing avialable in the evidence of complainant and P.W. Nayyar that there was any obstruction blocking their view and rendering them unable to witness the incident or for that matter they suffered from any infirmity disabling them to see as to what was happening during the course of incident. Complainant has stated in an unambiguous terms that he had seen the appellant firing at bus as a result whereof 5 persons died and 10 persons got injured.
22. Complainant has stated that he knows the accused as they had been visiting their Mohallah previously and that they are residents of Liaquatabad. His statement was recorded on spot as confirmed by S.H.O. Aslam Noor Khan who has stated that apart from complainant he also recorded the statement of P.W. Nayyar. Therefore, presence of complainant cannot be doubted. In view of this discussion, I am clearly of the view that the complainant Muhammad Shafique had a clear view of the incident and in this he is supported by P.W. Nayyar, an independent witness whose presence on spot -has also been confirmed by the S.H.O. The case law referred by Mr. Lakho is therefore, of no assistance to the appellants.
23. Mr. Lakho, next, argued that the complainant Muhammad Shafique's evidence is not trustworthy also for the reasons that he has not named appellant Naushad in F.I.R., but, has named him in his evidence; that in F.I.R., he not disclosed the name of eyewitnesses Nayyar, Faisal and Rashid Zaffar and has only given names of P. Ws. Nasim and Anwar to be present on the spot at the time of occurrence. Same arguments were also advanced by other learned counsel for appellants. Mr. Lakho also challenged the statement of complainant in which he has said that he knows the accused because they are residents of Liaquatabad. He reasoned that Liaquatabad is a vast, area, spread in miles with dense population in lacs; therefore, it is not possible for residents of such huge place to know each other, learned A.A.-G. replied that the. F.I.R. was lodged with promptitude; complainant has disclosed the name of appellant Naushad, has assigned role played by him, identified him in Court and that mere absence of names of some witnesses in the F.I.R. cannot eliminate his/their evidence or discredit their presence at the place of occurrence. There is no denial that the name of appellant Naushad does not appear in the F.I.R.; the fact, however, is that F.I.R. is not a substantive piece of evidence. In this opinion I am supported by the case of Imtiaz Hussain Phulpoto v. Returning Officer (1987 SCMR 468), wherein it has been held that: "The first information report and statements recorded under section 161, Cr.P.C. having served a subordinate purpose loses much importance insofar as the material considered for rendering the finding of guilty or otherwise is concerned. They are not treated as substantive evidence against the accused and no finding of guilty can be based on them. Whether it is criminal Court functioning under normal law or is a summary Military Court under Martial Law, there is no difference in this behalf."
24. The complainant in his evidence has named Naushad as one of the assailants so also he has clearly identified him in Court. In first trial, also he named him as one of the offenders. Certified true copy of his deposition (Exh.4.B) has been produced by him in his evidence. It will be pertinent to note that in his cross-examination, neither his attention has been drawn to the omission that he did not disclose the name of accused Naushad in F.I.R., nor the statement of complainant naming the appellant Naushad in his examination-in-chief has been challenged. It is well-settled principle of law that when some fact is deposed in examination-in-chief which is not questioned in cross- examination, the presumption is that part of evidence is deemed to have been accepted by the party against whom that evidence has been given. In this, I am supported by the case of Iftikhar Ahmed alias Boby and another v. The State reported in 1991 PCr.LJ 488 (Federal Shariat Court). Also, no question has been asked from the complainant that his evidence disclosing the name of appellant Naushad is on account of ulterior motive or due to enmity.
25. As regards non-mentioning the names of P.Ws. in F.I.R., it may be stated .that the complainant has clearly stated in the F.I.R. that this incident has been witnessed by Anwar,. Naseem- and other people (underlining is mine). His statement, therefore, does not exclude the presence of the eye- witnesses who include Nayyar Muhammad Faisal and Rashid Zaffar. Amongst them P.W.
26. Muhammad Faisal is himself an injured person and P.W. Rashid Zaffar runs a pan shop at Islamia Chowk. P.W. Nayyar has also stated in his evidence that he is resident of same locality in which the appellants resided and where the incident took place, therefore, their evidence cannot be ruled out of consideration for the simple reason that their names do not appear in the F . I. R .
27. Mr. Halepota, in his arguments referred to the words the Ivestigating Officer recorded his 154, Cr.P.C. statement of his own (Underlines are mine) which the complainant has said in his evidence.
28. Criticizing this piece of evidence, he interpreted that the said statement of complainant sufficiently indicates that 154, Cr.P.C. statement is not of the complainant but that the Investigating Officer, therefore, according to him entire basis of prosecution case becomes doubtful. I, however, do no agree with Mr. Halepota in his interpretation for the reasons that the words "of his own", in my view, refer to manual exercise of the S. H .0. in writing the F.I.R. and not the facts supposedly conjured up by him and/or written by him of his own accord' or wish. The other reasons for my disagreement are that the effect of these words is to be appreciated keeping in view the entire evidence of complainant Muhammad Shafique to assess that his other evidence militates or is in harmony with the interpretation of Mr. Halepota. On perusal of deposition of complainant, recorded before the Judges Special Court., STA, what I find is that the complainant, has clearly stated ' that his statement under section 154, Cr.P.C. produced as Exh.4-A was recorded by the Investigating Officer and it bears his signature. It was read over to him in Court and he stated that it is correctly recorded; more so he has furnished explanation in his re-examination by the saying that during his earlier trial he had stated that the Police Officer took down "his" F.I.R. on plain paper and obtained his signature on it. Thus, it is quite clear that the complainant consciously own his statement recorded under section 154, Cr.P.C. He has, in his evidence, fully supported it in clear terms in all material details. Mr. Halepota, then, argued that P.W. Nayyar has stated in his evidence that his statement was recorded on spot so also the statement of complainant Muhammad Shafique was recorded in his presence; but the complainant has contradicted him by saying in his evidence that police had not recorded statement of any other person, in his presence. He added that another glaring discrepancy is that the complainant has even not named P.W. Nayyar as a witness. He urged that aforementioned contradictory statements and the discrepancy creates doubts on the evidence of both of these two witnesses.
29. In order to appreciate above contentions of Mr. Halepota, properly, I have gone through evidence of both the complainant and P.W. Nayyar. The complainant has stated that the incident took place at 8-30 p.m. police arrived at the spot after about 10-15 minutes and immediately the S.H.O. recorded his statement, soon whereafter, he returned to his house therefore, his statement in his evidence that police had not recorded statement of any witness in his presence does not seem to be incorrect or improbable. As far nondisclosure of the names of P.Ws. in 154, Cr.P.C. statement of complainant, which includes eye-witness Nayyar, is concerned, this point has already been sufficiently discussed in detail and explained, in foregoing paras.
30. Mr. Halepota further argued that complainant Muhammad Shafique while recording his evidence in previous trial had not identified accused Noman so also P.W. Naseem during later trial has not identified accused Noman from whom no recovery has been effected, therefore, prosecution case against him becomes doubtful.
31. I have gone through evidence of complainant Muhammad Shafique who has disclosed in his previous statement the name of appellant Noman as one of the assailants. Also, in his statement in examination-in chief, he has stated in unequivocal terms that, "the accused present in the Court are the same" meaning thereby that all the appellants were identified as the culprits. He has, of course, stated in that statement in another place that, "I see accused Sarfraz, Naushad, Amir and Arshad present in Court", but this statement, does not slightly demonstrate that he has denied to identify appellant Noman rather it tan safely be concluded that he has identified him when he say in the end of his examination-in-chief that, "the accused present in, the Court are same', moreso, having already named him as a culprit. It will also not-be out of place to mention here that the complainant has disclosed the name of appellant Noman in his 154, Cr.P.C. statement, which according to him was recorded on spot within minutes of the occurrence by S.H.O. He has also named-him in his evidence record in later trial. He has no enmity with appellant Noman. P.W.
32. Naseem has identified--all the appellants, which include appellant Noman, by saying that, "I see the accused person in Court". Be that as it may, P.W. Nayyar an eye-witness, has corroborated complainant's evidence. He has clearly named appellant Noman as one of culprits and identified him in Court by pointing him by name. His evidence has not been shaken in cross-examination.
33. Learned counsel for appellants have also taken the plea that all the eye-witnesses are chance witnesses and no independent and natural evidence is available to corroborate the evidence of the complainant. Reliance has been placed on case of Daud alias Dadan and another v. The State (PLD 1964 Kar. 428), the case Abdul Hamid v. The State (1985 PCr.LJ 1992) and the case of The State v. Muhammad Sharif and 3 others (1995 SCMR 635). Learned A.A.-G. controverting the above arguments expressed that all the eyewitnesses have justified their presence on the spot at the time of occurrence; besides, they are unanimous in their evidence while giving the names of culprits and role played by them. He submitted that they were subjected to lengthy cross- examination but barring few contradictions of simple nature nothing favourable to appellants could be extracted from them which also sufficiently establishes their presence. The 'appreciate the above point, it may be stated that complainant is brother of bride on whose marriage the incident took place. His evidence has been discussed above. His presence at the time of incident is natural. P.W. Nayyar has also stated that he is resident of same Locality. He has justified his presence on the spot. P.W. Naseem Ahmed, another eye-witness has received injury during the course of incident. He has stated that at the time of incident he was selling Bun and Kababs on his push-cart in Jhanda Chowk where a marriage ceremony in the house of complainant was being held. This statement has not been challenged in his cross-examination,'
34. P.W. Faisal is yet another witness who, in the incident received bullet injuries, therefore, his presence also cannot be doubted. P.W. Rashid Zaffar runs a pan shop near the place of occurrence. P.W.
35. Anwar is also an injured person. He has stated that he is resident of Liquatabad, a locality where the incident has taken place and at the time of incident he had gone to purchase pan from Panshop at Jhanda Chowk. Therefore, all these witnesses cannot be termed as chance witnesses.
36. The case law cited by learned counsel for appellant as discussed below is distinguishable and of no assistance to the appellants. In the case of Daud (supra) the incident took place when the deceased (Abdul Aziz) was going to his village. P.Ws. Ali Nawaz and Nazar, his co-villagers, who joined him on the way to their village were considered as chance witnesses and their evidence was examined with care and caution and ultimately their evidence was not believed. In the case of Abdul Hameed, P.W., BakhsaL whose land was situated about two miles from the place of Vardat attempted to show his presence near the place of Vardat by stating that he had come to see the head of watercourse; that fact, however, was that there was not cultivation on his land as per his own admission, therefore, it was observed that there was no occasion for him to go and see the head of watercourse. Another P.W. Muhammad Chuttal in that case, who happened to be grazer by profession, deposed that he had taken his cattle for grazing and while he was returning he heard cries but as per his own admission there was no grazing field near the place of Vardat. Their evidence was therefore, not believed.
37. In case of the State v. Muhammad Sharif and three others (supra) P.W. Sh. Muhammad Javed, an eye-witness in the case resided at the distance of two furlongs from the scene of offence and witnessed the incident while on way to the house of his brother-in-law. It was observed that he was accidentally present at the spot and his explanation with regard to his presence there was found far from satisfactory.
38. Learned counsel for the appellants, beside the above, have contended that there is no circumstantial evidence to corroborate ocular evidence therefore no implicit reliance can be placed on their testimony and that the prosecution has failed to establish its case against the appellants beyond shadow of doubt. It may be pertinent to note that my learned brother Wahid Bux Brohi, J., has already held that ocular testimonies have been corroborated by medical evidence and the collection of blood samples from the place of occurrence. After going through the record I also do not feel inclined to disagree with him. Be that as it may, in a criminal case conviction of an accused can be based on evidence of sole witnesses provided, it is found true, reliable and worthy of credence. In this I am supported by the case of Faizullah v. State reported in 1995 PCr.LJ 510 wherein it has been observed that "If the evidence of a sole witness is found to be worthy of credit, true and reliable then the conviction can be maintained even on this sole testimony which exists in the present case. Similar view has been taken in case of Salamat Masih v.
39. The State reported in 1995 PCr.LJ 811 that, "there is no cavil with regard to the quality of evidence.
40. The conviction can be based on the solitary statement of a witness if the Court finds his evidence to be trustworthy, confidence-inspiring and in consonance with the circumstances of the particular case." In an other case of Gulistan and others v. State reported in 1995 SCMR 1789, also it has been observed that "No doubt, in a criminal case the conviction of an. accused can be based on the statement of one witness without corroboration but the condition is that the witness should be absolutely dependable".
41. Mr. Hashmi, concluding his arguments stated that the appellants are in death cell since their conviction. It has also be urged by him that they are young which is mitigating circumstances in their favour.
42. From arguments of learned counsel for the appellants what emerges is that the defence has neither denied the incident nor the fact that five persons lost their lives and ten others sustained injuries, during the incident.
43. My learned brother Wahid Bux Brohi, J., has, beside the evidence of other P.Ws. believed evidence of complainant Muhammad Shafique and P.W. Nayyar. Hereinabove, I have discussed evidence of these two witnesses. It is quite evident that their statements were promptly recorded on spot by S.H.O. they are natural and independent witnesses of incident having no animosity against the appellants. They have corroborated each other in all the material aspects. Their evidence suffers from no infirmity, is consistent and inspires Confidence. I feel no hesitation in believing ocular evidence of these witnesses which is sufficient for conviction of appellants. In case of Muhammad Pervaiz v. The State reported in 1993 SCMR 2185 it has been viewed that the ocular evidence in the case, if found consistent and confidence-inspiring against the other accused (apptllant) could validly form the base of conviction of appellant.
44. In view of the above discussions, I am in agreement with my learned brother Wandi Bux Brohi, J., that the appellants are guilty of the offences as are alleged against them and they have rightly been convicted under sections 302/34 and 324/34, P.P.C. so also they have rightly been sentenced under the last mentioned sections. I, however, do not feel myself inclined to agree with my learned brother in respect of the sentence of death awarded to the appellants under section 302/34, P.P.C., for the following reasons: Admittedly, the offence has taken place in the month of May, 1991 and soon thereafter, the appellants were arrested. They were first tried by a Judge of this Court and then the matter was sent to Special Court No,II, STA, Karachi which concluded the trial in the year 1992 and convicted and sentenced the appellants by impugned judgment dated 17-10-1992. Since then, the appellants have remained in prolonged custody, in death cell as stated by learned counsel for the appellants, after Tiling their appeals in the expectation of their release/acquittal. In my humble view, in the aforementioned circumstances, they deserve a lessor punishment. In this view of mine, I am fortified by the case of Fateh Muhammad v. Bagoo and others (PLD 1960 SC (Pak.) 28) wherein while allowing the appeal, setting aside the acquittal of two respondents and restoring the conviction under section 302/34, P.P.C. recorded by Sessions Judge, it has been held: "In view of the length of time which has elapsed since the commission of the crime viz., about 3-1/2 years, we consider that the extreme penalty need not be awarded in the present case, and we accordingly sentence each of the accused persons to transportation for life." In another case of Ghulam Hussain v. (1) Zainullah and (2) The State (PLD 1961 SC 230), wherein the Trial Court imposed upon the accused sentence of death under section 302, P.P.C. and learned Judge in High Court altered the conviction to section 302 part 1, P.P.C. and imposed sentence of 10 years' imprisonment; on an appeal before Honourable Supreme Court by Special leave, conviction under section 302, P.P.C. was restored, however, a sentence of transportation for life was imposed by observing as follows:-- "In view of the length of time which has elapsed since the occurrence and the intervening incidents, in particular that as a result of the decision of the High Court, Zainullah was given a full expectation of life, we consider that the justice of the case will be sufficiently met by the lesser sentence."
45. (Underlinings are mine).
46. Similar view has been taken in case of Muhammad Akbar v. The State (PLD 1961 (W.P.) Lahore 348) in the following words: "Considering all the circumstances of the case and the evidence on the record I am of opinion that the guilt of the appellants for the offences complained of had been established beyond reasonable doubt. As to the sentences, for no fault of the appellants this case has remained pending for about five years and as they must have undergone considerable worry and expense on account of the three trials, exaction of the extreme penalty provided' by law would be unjustified.
47. Ends of justice would, therefore, be met if the sentences' of death imposed on seven of the appellants are converted into sentence of transportation for life."
48. (Underlinings are mine).
49. The appellants have been convicted under section 302/34, P.P.C. and sentenced to death by way of Ta'zir. It may be pertinent to note that section 302(b) provides punishment of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of case, the lesser punishment, thus, provided for an offence under section 302, P.P.C. is imprisonment for life as Ta'zir.
50. Considering whatever is discussed above, in my view the ends of justice will be justly met in case the sentence of death awarded to the appellants is converted to life imprisonment to each. Now, the question will be whether as a third Judge, can I give third opinion distinct and different to that of my two learned brothers Wahid Bux Brohi and S.A. Rabbani, JJ; they having already differed with each other. It will be pertinent to note that relevant provision of law to deal with such situations is provided in sections 377, 378 and 429. Cr.P.C., which are reproduced as follows:-- "377. [Confirmation of new sentence to be signed by two Judges ---In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." "378. (Procedure in case of difference of opinion.---When any such case is heard before a Bench of Judges and such Judges are divided in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such Judge, after such hearing as he thinks fit, shall deliver his . opinion, andthe judgment or order shall follow such opinion." 429. 'Procedure where Judges of Court of Appeal are equality divided]. When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judges, after hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion."
51. In case of Subedar v. The State reported in 1956 Allahabad 529 ((S) AIR 43 C 142 Sept.). it is held that when the case of an appellant is referred to another Judge under section 429, Cr.P.C., it is open to that Judge to take a view different from taken by the referring Judges so far as the appellant is concerned. It has also been held that the opinion of the third .Judge is binding on the Division Bench.
52. In case of Abdul Raziq v. State reported in PLD 1964 (W.P.) Peshawar 67 while referring to sections 378 and 429 of Criminal Procedure Code, it has been observed that the plain reading of these sections shows that the third Judge to whom the case is 'referred need not agreed with the finding of either of the two Judges. He is to give an independent opinion and then give his finding. Such judgment or order will follow his opinion. There is nowhere, laid down in sections 378 and 429, of the Criminal Procedure Code, that the third Judge should follow or may follow the opinion of the Judge who has given his opinion favouring the accused.
53. In case of Babu and others v. The State of Uttar Pardesh reported in AIR 1965 SC 1467 similar view has been taken so also in case of Muhammad Sharif v. The State (PLD 1971 Lah. 708) while maintaining the conviction of appellant under section .302, P.P.C. but substituting the sentence of transportation for life for sentence of death, it has been observed that: "10. I may state here that under section 429, Cr.P.C. the reference to the third Judge is with regard to the whole case and the judgement or order is to follow his opinion. This opinion need not be agreement or at variance with one of Judges on account of whose difference of opinion a reference has been made. It has to be an independent assessment of the case including the question of sentence. Reference in this connection may be made to Sarat Chandra Mitra v.
54. Emperor 38 Ca1.202, Emperor v. Dukari Chandra Karmakar AIR 1930' Cal. 193, Ahmad Sher and others v. Emperor AIR 1931 Lah. 513. Daulat Ram v. Emperor AIR 1947 Lah. 244. In re: Ravipati Sitaramayya AIR 1953 Mad.61, Abdur Raziq v. The State PLD 1964 Pesh.67 and Mohim Mondal v. The State PLD 1964 Dacca 480.
11. Out of the above cases the cases of Sarat Chandra Mitra v. Emperor, Emperor v. Dukari Chandra Karmakar and In re: Revipati Sitarmayya, directly deal with the question of sentence. In Dukari Chandra's case, referred to above C.C. Ghose, J. to whom the case had been referred as third Judge. under section 429, Cr.P.C., referred to the opinion of Woodroffe, J., which was to the effect that if two 'Judges are in disagreement over the question of sentence, one favouring the death penalty and the other transportation for life, that in itself may be a sufficient ground of holding that the death penalty should not be imposed. The learned Judge, however, thought that the rule enunciated by Woodroffe, J. was not inflexible and that the third Judge should decide for himself whether the case before him was or was not a fit one for the imposition of the death penalty. In Ravipati Sitaramayya's case it was held that it was the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him. It was observed by Samasundaram, J., that: When on a difference of opinion as case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses, he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused."
55. While examining the scope of a reference made under section 429, Cr.P.C., Mookerjee, J. observed in the case of Sarat Chandra Mitra, as under:- "In such a contingency, what is laid before another Judge, is not the point or points upon which the Judges are equally divided in opinion, but the 'case'. This obviously means that so far as the particular accused is concerned, the whole case is laid before the third ' Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges: for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty, another Judge may consider him guilty under one section of the Indian Penal Code, and liable to be punishable in a certain way; the third Judge may find him guilty under a different section and pass such sentence' as he thinks fit." I respectfully agree with the above observations and hold that I am entitled to determine the question of sentence notwithstanding the confirmation of death by Muhammad Afzal Zullah, J. This view was maintained in another case of Muhammad Nazeer and 4 others v. The State reported in 1983 PCr.LJ 72. Also in case of Niaz Muhammad v. The State reported in 1996 PCr.LJ 394, while considering plethora of case of law, it has been observed that: "The perusal of the above judgments and the readings of sections 378 and 429, Cr.P.C., makes it clear that the Judges to whom the case is referred for decision would independently assess the evidence and would form his own opinion about it. The cumulative effect of the precedent case is that the case is not to be referred again to the Division Bench which had heard it and the decision would not be that of the majority rather it would be the opinion of the refer Judge which would have decisive effect and would be of binding nature and the judgment or order will follow such opinion." (underlining is mine)
56. Again, in case of Raza Khan v. The State. reported in 1998 PCr.LJ 530, the dictum laid down in case of Muhammad Sharif (supra) has been referred to with the following observation: "10. After lengthy discussion and going through the authorities produced by the learned counsel and considering the ratio decidendi of the case-law, I reached to the conclusion that the third Judge has full authority to hear the case afresh in toto and decide the case on its entirety. Third Judge needs to evaluate and weigh each and every point and has to examine the whole case afresh so as to form opinion in the case and deliver decision, as is deemed fit to his/her own satisfaction depending on evidence produced by the parties. If the case is proved and the third Judge arrives at a conclusion that normal penalty of death be awarded the dismissal of the criminal revision by the Honourable Members of disentiting Bench will not be considered an impediment to the enhancing of the sentence. It would be best to quote some para. From the judgment of Attaullah Sajjad, J. reported as Muhammad Sharif v. State (PLD 1971 Lah. 708) to whom the case was referred under section 429, Cr.P.C. for the reason of difference of opinion between the Shamim Hussain Kadri, J. who had ordered the acquittal of accused person while Muhammad Afzal Zullah, Y., found the accused guilty and confirmed the sentence of the death imposed on him by . the Sessions Court."
57. Note: Above underlining is mine, Relevant paras have already been reproduced hereinabove.
58. Having discussion the question of duties and powers of third Judge as above, I am of the considered view that there are no fetters placed on the third Judge. He may agree with any of learned Judges of differing with each other. He can also form and express his own opinion and findings the accused guilty may pass a sentence, as he thinks proper. I have already discussed the evidence of eyewitnesses in the foregoing paras. I have also stated that I am in agreement with the opinion of my learned brother Wahid Bux Brohi, J., in his judgment as far as conviction of the appellants under sections 302/34 and 324/34, P.P.C. is concerned; but, with respect for him, I prefer to differ with him as to sentence of death awarded by him to the appellants under section 302/34 for which, also I have already given my own reasons.
59. Considering all the above facts, circumstances and the case law, the sentence of life imprisonment to each of accused is substituted for death penalty under section 302/34, P.P.C. Both the sentences awarded to the appellants' under sections 302/34 and 324/34, P.P.C. to un- concurrently. Subject to aforementione modification rest of impugned judgment it is maintained.
60. Announced in open Court.