1. ' BASHIR A. MUJAHID J.--- Muhammad Ayub son of Muhammad Ibrahim, Muhammad Amir alias Niazi son of Manzoor Ahmad, Muhammad Asghar alias Miran son of Muhammad Ashraf, Iftikhar ul Hassan son of Khushi Muhammad have challenged judgment dated 22-10-1998 passed by Judge, Special Court ATA, Faisalabad whereby they were convicted under section 302, P.P.C. Read with section 396, P.P.C. For commission of murder of Ashfaq Ahmad and sentenced to death. They were further convicted under section 395, P.P.C. And awarded imprisonment for life. They were also convicted under section 460, P.P.C. And awarded imprisonment for life. They were further convicted under section 412, P.P.C. And sentenced to imprisonment for li and under section 7 of Anti-Terrorism Act they were sentence to death. They were also convicted and sentenced to death and a fine of rupees one lac each in default thereof they had undergo six years'. R.I. Each. Benefit of section 382- B, Cr.P.C. Was also extended.
2. ' Briefly the facts of the prosecution case are that F.I.R. No, 360 Exh.P.B/1 was registered at Police Station Jhang Bazar, Faisalabad on 6-9-1993 at 3-50 a.m. About the occurrence which took place during the same night at about 2-30 a.m. On the statement Exh.P.B of Sadiq Hussain, P.W. 9 recorded by Muhammad Anwar, S.-I. At Main Bazar Gulfashan Colony at 3-30 a.m. Wherein it was alleged that the complainant was employee of Ayub Research Institute and was residing in Ayub Research Colony. His daughter Mst. Samra was married with Ashfaq Ahmad, r/o 338-C, Gulfashan Colony, Faisalabad and out of the wedlock one child aged 3 months was born and on the previous night the complainant along with Zulfiqar son of Niaz Ahmad, resident of Chak No,73/GB, Police Station Satiana had come to see Mst. Samra daughter of the complainant and they stayed for a night with Mst. Samra and Ashfaq and were sleeping on the roof of their house, when all of a sudden an electric bulb was lit and they saw four persons one of them was of normal height, wheatish colour, smart and of stout body having a elongated shape aged about 24/25 years, armed with dagger, the other one was blackish colour longated face, height about 4.4" aged about 22/23 years armed with pistol .30 bore third was also of whitish colour, smart body height about 5 feet 8/9" with big moustaches aged 24/25 years, had dagger and fourth one was of fair colour, smart and stout body, height 5-10", about 24/25 years, armed with pistol were standing around the cost of Mst. Samra Ashfaq and they threatened Mst. Samra to hand over all her ornaments otherwise she would be eliminated. On hearing the noised the complainant and Zulfiqar woke up and the complainant directed his daughter to hand over all the ornaments to the accused and .On which she took off her six golden bangles weighing six tolas from her left arm and two golden finger rings from her right hand weighing about 11/2 tolas and golden ear-rings weighing in one tola each and a chain about 1 1 /2 tolas and kept on a cot. In the meantime, Ashfaq Ahmad son-in-law of the complainant came to the cot of Mst. Samra and the accused who were armed with pistols fired one shot each hitting Ashfaq Ahmad below his neck on front side who succumbed to the injuries at the spot. The other accused also caused injuries from wrong side of dagger on different parts of the body of Ashfaq Ahmal. Thereafter the accused fled away through electric pole installed near the eastern wall of the house, after looting the ornaments which he had given to his daughter in dowry. The complainant left for the Police Station for registration of formal F.I.R. And he saw Muhammad Asiam alias Mira son of Muhammad Ashraf standings outside the house of the deceased who on seeing the complainant fled away.
3. ' Muhammad. Anwar, S.-I., P.W. 13 after recording the statement Exh.P.B of the complainant sent the same to the police station for registration of formal F.I.R. And he himself arrived at the spot and took the dead body into possession. He prepared injury statement of the dead body of Ashfaq Ahmad through memo. Exh. P. D and inquest report Exh.P.E and despatched the same for post-mortem examination through Abdul Majid, FC. He also took into possession blood-stained earth from the spot vide memo. Exh.P.F and two empties of pistol .30 bore vide memo. Exh.P.G. On the same day, he took into possession the last worn clothes of the deceased through memo. Exh.P.J. Thereafter the, investigation was entrusted to Noor Elahi, S.-I./P.W. 12 who on 12-9-1997 arrested all the accused i,e, Muhammad Ayub, Asghar (Aslam), Aamer and Iftikhar ul Hassan at 3-30 p.m. And on the following day he directed them to muffle their faces and sent them to judicial lock-up for making arrangement for their identification parade. On 15-9-1997 he moved an application Exh.P.H for making arrangement of identification of the accused in jail. On 17-9-1997, identification parade was held in District Jail, Faisalabad under the supervision of Mr. Nasim Sadiq, MIC P.W.7. Thereafter, he obtained physical remand of the accused. On 20-9-1997, Muhammad Ayub accused while in police custody led to the recovery of pistol 30-bore P3 along with three live bullets P4/1-3 which were taken into possession through memo. Exh.P.K. He also led to the recovery of two golden bangles P5/1-2 and one golden ear-ring P6 which were taken into possession through memo.
4. Exh.P.L. On the same day Iftikhar-ul-Hassan accused led to the recovery of dagger P7 and two golden bangles P8/1-2. The dagger P7 was taken into possession through memo. Exh.P.M while bangles P8/1-2 through memo. Exh.P.N. Muhammad Asghar alias Miran accused led to the recovery of pistol .30-bore P9 alog with five live bullets P12/1-5 which were taken into possession through memo. Exh.P.Q and two golden bangles P10/1-2 and one golden locket along with chain which were taken in possession through memo. Exh.PR. Aamar alias Niazi also led to the recovery of dagger P 13 which was taken into possession through memo. Exh.P.S. And two gold rings P14/1-2 and one gold ear-ring P15 which were taken into possession through memo. Exh.PT. All these recovery memos.
5. Were attested by Abdul Raz2aq P.W. 11 and Noor Elahi, S.-1. P.W.12 Rana Muhammad Shabbir coaccuse J as got declared a P.O. From the Col it of competent jurisdiction. 'After Lon of the investigation, challan of the ca se W2S submitted by Asrar-ur-Rehman, In.Pector/S.H.O., Police Station Jhang Bazar, Faisal a hand.
6. ' The trial Court framed the charge which was denied by the accused/appellants and they claimed trial.
7. ' During the trial, the prosecution examined as many as 13 witnesses to prove the guilt of the accused.
8. ' The medical evidence was furnished by Dr. Muhammad Rafiq, P.W. 4, who on 6-9-1997 conducted the post-mortem examination on the dead body of Ashfaq Ahmad and found the following injuries on his person: --
(I) A fire-arm wound of entry .5 x .5 c.m. On the upper part of right side of front of chest. .5 c.m.
9. Above clavical, 3 c.m. Away midline, with fire-arm wound of exit 1.5 x 1.5 c.m. On the back of middle part of left side of chest, 5 c.m. Below lower part of scapula, 11 c.m. Away from midline.
(2) A lacerated wound 2.5 x .5 c.m. x muscle deep, on the left side of head, 1 c.m. Away from midline, 7 c.m. Above left eyebrow.
(3) An abrasion 2 x 1 c.m. On the back of right shoulder, 7 c.m. Below top of shoulder, 16 c.m. Away from mid-line.
(4) An abrasion 5 x 1 c.m. On the front of upper part of left side of chest, 10 c.m. Above nipple, 13 c.m.
10. Away from mid-line.
11. ' In the opinion of the doctor, the cause of death was hemorrhage and shock as a result of injury No,1 which was sufficient to cause death in ordinary, course of nature. - Injury No, 1 was caused by fire-arm while injury Nos.2, 3 and 4 were caused by blunt weapon. The probable time between injuries and death was immediate and the probable time between death and post-mortem was within 24 hours.
12. ' The ocular account was furnished by Sadiq Hussain P.W. 9 who was complainant of the case and eye-witness of the occurrence. He supported the version of the F.I.R. And also identified the ornaments he had given to his daughter Mst. Samra Ashfaq in marriage. He also identified the accused/appellants during the Identification Parade conducted under the supervision of Nasim Sadiq, MIC/P.W.7 in District Jail, Faisalabad. Mst. Samra Ashfaq P.W. 10 was widow of deceased Ashfaq Ahmad and victim of the dacoity. She supported the prosecution story as an eye-witness of the occurrence. Her statement is in line with the statement of complainant. She also identified the accused/appellants during the identification parade conducted on 17-9-1997 in District Jail, Faisalabad under the supervision of Nasim Sadiq. She also identified her ornaments got recovered by the accused/appellants. Aurangzeb Draftsman P.W. 1 had prepared the site plan of the place of occurrence. Muhammad Baldish, HC P.W. 2 had recorded the formal F.I.R. Exh.P.B/l. Taj Muhammad, FC P.W. 3 had deposited the sealed parcel of the bloodstained earth at the office of Chemical Examiner on 15-9-1997. Muhammad Saleem Shahid P.W. 5 had identified the dead body of Ashfaq Ahmad deceased. Safdar Ali P.W. 6 had attested the recovery memo. Exh.P.F whereby blood- stained earth was taken into possession and Exh.P.G whereby two empties of pistol 30-bore were taken into possession by the 'investigating Officer from the spot. Nasim Sadiq, MIC P.W. 7 had supervised the Identification Parade held in District Jail Faisalabad on 17-9-1997 wherein Muhammad Ayub, Muhammad Aamer alias Niazi Muhammad Asghar (Aslam) alias Miran and Iftikhar-ul-Hassan were identified by Sadiq Hussain, P.W. 9 who was complainant of the case and Mst. Samra Ashfaq, P.W. 10 who was victim of the dacoity and widow of deceased Ashfaq Ahmad.
13. All the four accused were duly identified 'by both the witnesses during the Identification Parade.
14. Abdul Majid, FC P.W. 8 had . Escorted the dead body of Ashfaq Ahmad for post-mortem examination and, had produced the last-worn clothes of the deceased before the Investigating Officer Abdur Razzaq P.W.11 had attested. The recovery memo. Whereby the accused got recovered the looted ornaments and the weapons of offence.
15. ' The prosecution evidence was closed after tendering in evidence report of Chemical Examiner Exh.P.Y and that of Serologist Exh . P. Z ' The statements of the accused were recorded under section 342, Cr.P.C. They denied all the incriminating circumstances and claimed their innocence and false involvement It was the common stand of the accused that it was a blind murder and unwitnessed occurrence and Ashfaq deceased was murdered due to Mst. Samra's conduct and the police involved them in false case and recoveries have been planted on them and they were shown to the P.Ws. While in police lock- up so that they could be identified by the P.Ws. During the Identification Parade.
16. ' The trial culminated into conviction of the appellants as mentioned above. They have filed Criminal Appeal No,1042 of 1998 against their conviction and sentence and the trial Court has sent up Murder Reference No,328-T of 1998 for confirmation of death sentence under section 374, Cr.P.C.
17. Both the matters are being decided by this single judgment.
18. ' Learned counsel for the appellants has argued that it was a dark night unwitnessed occurrence.
19. The presence of Sadiq Hussain P.W.9 at the spot is not believable. He was permanent resident of Ayub Research Colony which is at a distance of 2 K.M. From the place of occurrence and there was no occasion for him to stay along with Zulfiqar, P.W. During the night of occurrence and the case has been registered after consultation and due deliberations; that the accused were nominated in the F.I.R. And the accused do not fit with the description given by the complainant in the F.I.R. And they have been falsely implicated due to suspicion; that they were not identified during the identification by their role and the Identification Parade was not conducted in lawful manner; that the recoveries have been planted on them, therefore, the case of the prosecution against the appellants has not been proved beyond shadow of doubt.
20. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment.
21. ' Heard. Record perused.
22. It is correct that except Muhammad Asghar (Aslam), appellant, no other accused was nominated in the F.I.R. However, the description of height, body structure and estimated age of all the four accused was given as seen by the complainant persons at the spot armed with their respective weapons. The alleged occurrence took place at 2-30 a.m. While the statement Exh.P.B was recorded by Muhammad Anwar, S.-I. P.W. 13, Incharge Police Post Gulafshan Colony at 3-30 a.m.
23. The presence of Sadiq Hussain, complainant at his daughter's house is believable as he stayed for a night on insistence of his daughter and son-in-law. Mst.Samra P.W. 10 was the victim of dacoity and both P.W. 9 and P.W. 10 stated that they had seen the accused in the light of electric bulb. Both the eye-witnesses i,e, complainant and his daughter Mst. Samra are educated persons and they had seen the accused at the spot where they remained for some time and ' to keep their description/features in mind for long time is natural, particularly when they caused death of husband of Mst. Samra P.W.
10. How she can forget the assailants even if they Were seen by momentary glimpse. The accused had also not muffled their faces at the time of commission of crime. The appellants/accused were arrested on 12-9-1997 at 3-30 a.m. And on the next day they were sent to judicial lock-up. At the time of their arrest they were directed by Noor Elahi, S.-L/P.W. 12 to muffle their faces. On the next day i,e,, 13-9-1997, they were sent to judicial lock-up to arrange for Identification Parade which was conducted on an application moved by the Investigation Officer On 17-9-1997 under the supervision of Mr. Nasim Sadiq, MIC/P.W.7 and all the appellants were identified by Sadiq Hussain, P.W. 9 and Mst. Samra P.W.
10. Asghar appellant was closely related to Ashfaq deceased and there was no question for his mistaken identity. No question was put to the witnesses about the role played by each of the accused during the occurrence. The P.Ws. Have given the full detail and description of the accused that Ayub along with Shabbir Hussain (P.O.) fired at the deceased while Muhammad Aamer alias Niazi and Iftikhar-ul-Hassan were armed with daggers. The role played by the appellants has been fully corroborated by the recoveries of weapons of offence and looted B ornaments. Mst. Samra was the natural witness. She and her father Sadiq Hussain stood the test of lengthy cross- examination on behalf of the appellants, separately, and no material discrepancy has been brought on record to discard their statements. They had also identified the ornaments looted, by the accused/appellants and got recovered by them. They had no previous enmity for false implication of the appellants/accused by letting off the real culprits. The ocular account furnished by both the eye-witnesses has also been fully corroborated by medical evidence, apart from recovery of looted ornaments and weapons of offence. We do not find any contradiction in the ocular account and the medical evidence as has been argued by the learned counsel for the appellants. The two empties of pistol 30-bore were taken into possession from the spot by the Investigation Officer which shows that two fire shots were made by the assailants and one lit the deceased. The defence plea that Muhammad Asghar (Aslam) alias Miran was implicated falsely, has no force. He is brother-in-law of real brother of deceased and there was no previous enmity for his false implication. He was nominated in the F.I.R. By the complainant and found guilty during the investigation along with others. How the accused were arrested by the police was for the Investigation Officer to explain and any lapse on the part of the police cannot destroy the entire prosecution case. The accused on their own made statements, voluntarily, before the Magistrate at the time of Identification Parade and admitted their involvement in the offence. The statements were without any duress or coercion, therefore, we find that prosecution case has been proved against the appellants beyond any shadow of doubt. We do not find any reason to interfere in the conviction recorded against the appellants.
24. ' As far as the sentence is concerned, as fatal injury has not been specifically attributed to any of the accused although Muhammad Ayub and Shabbir Hussain (P.O.) have been alleged to have fired at the deceased, therefore, while maintaining the conviction of Muhammad Ayub, Muhammad Aamir and Iftikhar-ul-Hassan under section 302(b), P.P.C., we reduce their sentence to imprisonment for life. Furthermore, the report of the Forensic Science Laboratory after comparison of the empties taken into possession from the spot with the weapons of offence recovered from the accused, has not been brought on record. The daggers were not used from the right side, therefore, it is not a case of capital punishment. Asghar accused had not actively and physically participated in the occurrence, therefore, his conviction under section 302(b), P.P.C. Is set aside. The conviction and sentence of all the appellants under section 395, P.P.C. And section 412, P.P.C. Are, however, maintained. As the sentence under section 302(b), P:P.C. Has been altered to imprisonment for life by giving the appellants benefit of mitigating circumstances, therefore, on the same analogy/principle, in peculiar circumstances of the instant case, death penalty awarded to the appellant under section 7 of Anti- Terrorism Act, 1997 is also reduced to imprisonment for life. The sentences will run concurrently. The benefit of section 382-B, Cr.P.C. Will however be available to the appellants. The appeal is dismissed with the above modification.
25. ' Murder Reference is answered in negative.