' ASIF SAEED KHAN KHOSA, J.--- Muhammad Akhtar alias Hussaina, Muhammad Yaseen and Sarfraz alias Shabbu appellants were convicted by the learned Judge, Anti-Terrorism Court, Faisalabad for an offence under section 449/34, P.P.C. Vide judgment, dated 19-12-2000 and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs,1,00,000 each or in default of payment thereof to undergo rigorous imprisonment for two and a half years each. All the appellants were also convicted for an offence under section 302(b), P.P.C. And were sentenced to death each by way of Ta'zir and to pay a sum of Rs, 1,00,000 each to the heirs of Manzoor Ahmad deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. The appellants were further convicted for an offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were sentenced to death each by way of Ta'zir. All the appellants were also convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and were sentenced to death each and a fine of Rs,1,00,000 each or in default of payment thereof to undergo rigorous imprisonment for seven years each. The sentences of imprisonment passed against the appellants were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to the appellants.
Muhammad Akhtar alias Hussaina and Muhammad Yaseen appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,2013 of 2000. The said appellants as well as their co-appellant namely Sarfraz alias Shabhu have also filed Criminal Appeal No,165/J of 2001 before this Court against their convictions and sentences recorded by the learned trial Court. We have heard both these appeals alongwith Murder Reference No,1-T of 2001 seeking confirmation of the sentences of death passed against the appellants and we propose to decide all these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Muhammad Iqbal complainant was a labourer by profession and his brother namely Manzoor Ahmad used to live in a Dhari in Chak No,659/G.B. Situated within the area of Police Station Dajkot, District Faisalabad. During the night between 11/12-10-1999 Muhammad Iqbal complainant had come to his brother Manzoor Ahmad's Dhari and had stayed there overnight. During that night he was sleeping in the same room with his brother Manzoor Ahmad, their nephew Muhammad Ali and the said Muhammad Ali's wife namely Mst. Tassawar and a lantern was alight in the room. At about 2/2-30 a.m. The complainant, his brother and their nephew woke up upon hearing the voice of Mst. Tassawar and saw Muhammad Akhtar alias Hussaina appellant and two unknown persons trying to take Mst. Tassawar forcibly out of the said room. Manzoor Ahmad tried to take Mst. Tassawar out of the clutches of the culprits whereupon Muhammad Akhtar alias Hussaina appellant gave a Chhuri blow hitting Manzoor Ahmad in his left arm-pit. Another Chhuri blow was then given by the said appellant again hitting Manzoor Ahmad in his left arm-pit. Thereafter, the two unknown culprits also gave Chhuri blows to Manzoor Ahmad on his left upper arm and left wrist. Upon receipt of those injuries Manzoor Ahmad fell down and the complainant and Muhammad Ali tried to handle him and during this while all the three culprits took Mst. Tassawar out of that room and bolted the door from outside whereafter they put Mst. Tassawar on a cot in front of that door and started committing rape with her. The culprits had threatened the complainant, etc. Not to raise any noise lest they may be killed. After some time the culprits opened the door of the room and pushed Mst. Tassawar inside the room, locked the said door from outside and started guarding the place. In the meanwhile Manzoor Ahmad succumbed to his injuries at the spot. During this period the culprits had been issuing threats that the complainant, etc. Would be done to death if they raised any noise. In the morning Muhammad Yaqoob and Sher Muhammad P. Ws. Came to the said Dhari and upon seeing them approaching the culprits decamped from the spot. The said witnesses then broke the door open and brought the complainant party out of the room. The complainant then proceeded to report the matter to the police and met Inayatullah S.-I. (P.W.12) at the Hospital Road, Dajkot whereat he made a statement in respect of the said incident. On the basis of the said statement F.I.R. No,293 was registered at Police Station Dajkot, District Faisalabad at 6-30 p.m. On 12-10-1999 at the instance of Muhammad Iqbal complainant for offences under section 302/34, P.P.C. And section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. After recording the statement of the complainant Inayatullah, S.-I. (P.W.12) took up the investigation of this case and went to the place of occurrence whereat he inspected the dead body of Manzoor Ahmad and also inspected the place of occurrence. He prepared an injury statement and an inquest report in respect of the deceased and dispatched the dead body to the mortuary for autopsy. He then secured the blood-stained earth, the blood-stained bedding, a'lantern, prepared a rough site plan of the place of occurrence, recorded the statements of witnesses and then sent Mst. Tassawar to the hospital for her medical examination.
4. Dr. Liaqat Ali (P.W.5) conducted post-mortem examination of the dead body of Manzoor Ahmad deceased on 12-10-1999 at 4-00 p.m. And found five injuries on the dead body which were all ante- mortem and had been caused by a sharp and pointed weapon. The cause of death was shock and haemorrhage and probable duration between the injuries and death was opined to be within one hour while that between the death and post-mortem examination was within 12 to 18 hours. On the same day, w,e,f, 12-10-1999 Mst. Tasawar was medically examined by Dr. Munazza Khurshid (P.W.10).
5. After post-mortem examination of the dead body Inayatullah, S.-I. (P.W.12) received the last- worn clothes of the deceased and secured the Shalwar of Mst. Tassawar. On 16-10-1999 he recorded the supplementary statements of Muhammad Iqbal complainant and Mst. Tassawar P.W.
Wherein they nominated Sarfraz alias Shabbu and Muhammad Yaseen appellants as the two hitherto unknown culprits accompanying Muhammad Akhtar alias Hussaina appellant. On 23-10- 1999 all the three appellants were arrested. Thereafter, a formal site plan of the place of occurrence was got prepared by him through a Patwari. On 7-11-1999 he got all the three appellants medically examined by Dr. Saeed Akbar Tariq (P.W.1) for their potency. Thereafter, after completion of the other formalities, he completed his investigation and submitted a challan.
6. At the commencement of the trial the learned trial Court framed a charge with four heads under section 449, P.P.C. Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 302/34, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 to which the appellants pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 13 witnesses in support of its case against the appellants. Muhammad Iqbal complainant (P.W.7) and Mst. Tassawar (P..W.8) furnished the ocular account of the incident. Sher Muhammad (P.W.9) provided the Wajtakkar evidence. The medical evidence was provided by Dr. Saeed Akbar Tariq (P.W.1) Dr. Liaqat Ali (P.W.5) and Lady Dr. Munazza Khurshid (P.W.10). Inayatullah, S.-I. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was merely formal in nature.
8. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
They had maintained in unison that it was a blind murder and they had falsely been implicated in this case. The appellants, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence.
9. At the conclusion of the trial and learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
10. We have heard the learned counsel for the parties and have gone through the record with their assistance. It has been argued by the learned counsel for the appellants that it was a case of a night occurrence wherein the culprits had not been properly identified; the appellants had no motive to perpetrate the alleged offences; nothing had been recovered from the appellants during the investigation of this case; and the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the guilt of the appellants had been proved by the prosecution to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court.
11. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by us that it had throughout been the prosecution's case that the complainant party knew Muhammad Akhtar alias Hussaina appellant since before the occurrence and this aspect of the matter was fortified from the statement made by the said appellant under section 342, Cr.P.C. Which confirmed the fact of such acquaintance of the complainant party with Muhammad Akhtar alias Hussaina appellant. Muhammad Iqbal complainant (P.W.7) and Mst.
Tassawar (P.W.8) had straightaway named this appellant in their first statements made before the police. Mst. Tassawar (P.W.8) was a resident of the Dhari where the occurrence had taken place and, thus, she was a natural witness of the occurrence. During the said occurrence she had herself been subject to rape and, thus, her presence at the spot at the relevant time could not be seriously questioned or doubted. Muhammad Iqbal complainant used to live in his own Dhari which was situated at a place not far away and his explanation for spending the night with his brother namely Manzoor Ahmad deceased at the latter's Dhari has not been found by us to be either unusual or unnatural. Both the said witnesses had absolutely no background of animosity with Muhammad Akhtar alias Hussaina appellant so as to falsely implicate him in a case of this nature. The said witnesses had made consistent and straightforward statements before the learned trial Court and their statements had received ample support from the medical evidence. It may be true that the A incident in this case commenced at 2-30 a.m. During a night but the said incident was said to have continued till morning. The presence of a lantern inside the room where the occurrence had taken place and the duration of the incident have left us with no doubt that Muhammad Iqbal complainant (P.W.7) and Mst. Tassawar (P.W.8) had ample opportunity to identify Muhammad Akhtar alias Hussaina appellant as one of the perpetrators of the offences involved in this case. We have, thus, felt no hesitation in concluding that the prosecution had indeed succeeded in proving its case against Muhammad Akhtar alias Hussaina appellant beyond reasonable doubt.
12. As regards Muhammad Yaseen and Sarfraz alias Shabbu appellants it has been noticed by us that they had not been identified during the occurrence. Muhammad Iqbal complainant had maintained that he had made a supplementary statement before the Investigating Officer after about 2/3 days of the occurrence wherein he had nominated these appellants to be the co- culprits of Muhammad Akhtar alias Hussaina appellant. Mst. Tassawar (P.W.8) had stated before the learned trial Court that the identity of these appellants had become known to her after four days of the occurrence and also that she did not know these appellants previously. Even Muhammad Iqbal complainant (P,W.7) had stated before the learned trial Court that he had never seen these appellants prior to the occurrence. Inayatullah, S.-I. (P.W.12), the Investigating Officer, had deposed that the supplementary statements of B Muhammad Iqbal complainant (P.W.7) and Mst. Tassawar (P.W.8) had been recorded by him on 16-10-1999, w,e,f, four days after the occurrence and it was in those supplementary statements that these witnesses had nominated these two appellants for the first time. The record of this case shows that Muhammad Iqbal complainant (P.W.7) and Mst. Tassawar (P.W.8) had never disclosed before the Investigating Officer or even before the learned trial Court as to on what basis they had subsequently identified and nominated these two appellants to be the co-culprits of Muhammad Akbar alias Hussaina appellant. The Wajtakkar evidence provided by Sher Muhammad (P.W.9) has been found by us to be utterly unreliable as he had seen three persons running away and he had not disclosed as to how he had identified those three persons to be the present appellants especially when the occurrence had taken place during a night and this witness had never claimed to be carrying any light with him. Even otherwise had this witness correctly identified these two appellants to be co- culprits of Muhammad Akhtar alias Hussaina appellant then he would have straightaway disclosed their identity to Muhammad Iqbal complainant (P.W.7) and Mst. Tassawar (P.W.8) and in such a case it would not have taken the said witnesses four days to make their supplementary statements before the Investigating Officer nominating these appellants. In these circumstances we have entertained serious doubts regarding Muhammad Yaseen and Sarfraz alias Shabbu appellant's identification and implication as co-culprits of Muhammad Akhtar alias Hussaina appellant.
13. For what has been discussed above these appeals are accepted to the extent of Muhammad Yaseen and Sarfraz alias Shabbu appellants, their convictions and sentences recorded by the learned trial Court are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required in any other case. These appeals are, however, dismissed to the extent of Muhammad Akhtar alias Hussaina appellant whose convictions and sentences recorded by the learned trial Court are upheld and maintained subject to the modifications that in default of payment of compensation to the heirs of Manzoor Ahmad deceased he shall undergo simple imprisonment for six months instead of rigorous imprisonment for seven'years ordered by the learned trial Court and his conviction under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is substituted with one under section 10(3) of the said Ordinance of 1979 and for that offence he shall undergo rigorous imprisonment for twenty-five years.
14. In view of our findings recorded above Murder Reference No,1/T of 2001 is answered in the negative as far as Muhammad Yaseen and Sarfraz alias Shabbu appellants are concerned and the said Murder Reference is answer in the affirmative to the extent of Muhammad Akhtar alias Hussaina appellant whose two sentences of death are hereby confirmed.
15. Death sentences of Muhammad Yaseen and Sarfraz alias Shabbu appellants are not confirmed.
16. Death sentence of Muhammad Akhtar alias Hussaina appellant is confirmed.