' MUHAMMAD NAWAZ ABBASI, J.---The appellants namely Muhammad Razziq son of Muhammad Ashraf and Ghulam Saghir son of Fazal Dad were tried for the charge under sections 302/324/34, P.P.C. Read with section 397/34. P.P.C. By the Special Court No,II established for Rawalpindi Division and Islamabad Capital Territory, under Anti-Terrorism Act, 1997. The learned trial Judge vide judgment dated 19-11-1999 having found the appellants guilty of the charge of committing Qatl-e- Amd of Dost Muhammad and causing injuries to Mst. Rashida Bibi convicted and sentenced them as under:-
(a) Under section 302(b),P.P.C.
' Sentence of death to each of the appellant.
(b) Under section 324, P.P.C.
' Rigorous imprisonment for a term of ten years' R.I.. With a tine of Rs,10,000 to each appellant and in case of default in the payment of fine to undergo simple imprisonment for two years each.
(c) Compensation under section 544-A ' Each appellant was directed to pay rupees three lacs as compensation to the legal heirs of the deceased and in default of the payment of compensation, they were directed to undergo S.I. For six months each.
' The benefit of section 382-B, Cr.P.C. Was allowed to the appellants in the sentence under section 324, P.P.C. The appellants have challenged their conviction and sentence through this joint appeal bearing No,277-T of 1999.
2. The case was registered against the appellants on the basis of statement (Exh.P.C) made by Mst.
Rashida. Bibi P. W.4 to Muhammad Arshad, A.S.I. P.W.8 on 22-7-1999 at 4-00 a.m. In Pakistan Institute of Medical Sciences, Islamabad, vide F.I,R. Exh.P.C/1 under sections 302/324/34, P.P.C. Read with section 397/34, P.P.C. At Police Station Golra Sharif, Islamabad. The facts precisely as contained, therein are that the complainant along with her husband namely Dost Muhammad and Mst. Naseeran Bibi, their young 'daughter were sleeping in the courtyard of their house when at 2-15 a.m. (after mid-night) two young persons with muffled faces armed with Pistols entered into their hOuse and on gun point directed Dost Muhammad, the husband of the complainant, to hand over to them whatever was lying in his house. Dost Muhammad, instead of obeying their command scuffled with them and during the course of scuffling, their faces were exposed to the deceased as well as the complainant and his daughter who identified them as Ghulam Saghir son of Fazal Dad and Muhammad Razziq son of Muhammad Ashraf of their village. It was further stated in the complaint that Dost Muhammad while pointing out the identification of the accused directed them to leave the premises of his house 'peacefully, whereupon the accused fired' 3/4 shots as a result of which Dost Muhammad sustained injuries on the neck and left shoulder whereas. The complainant was caused fire-arm injury near the left shoulder. Dost Muhammad succumbed to the injuries at the spot. On hearing the report of tiring and the alarm raised by the complainant and her daughter, Khuda Dad and Muhammad Banaras P.Ws. Rushed ro their house and saw the accused running from the spot.
3. Muhammad Arshad, A.S.I. P.W.8 having obtained permission from the Medical Officer recorded the statement (Exh.P.C) of Mst. Rashida Bibi and sent the same to the police station for registration of the case. The A.S.I. After preparing the injury statement (Exh.P.E) of the complainant in the hospital reached at the spot and having prepared the inquest report (Exh.PG) of Dost Muhammad deceased dispatched the dead body for post-mortem examination through Muhammad Fayyaz Constable. During the spot inspection; the A.S.I. Took into' possession blood-stained earth, two crime empties ah.P.6/1-2 and a led P.7 vide memo.. Exh.P.A. The site-plan of the place of occurrence in triplicate Exh.P.J, Exh.P.J/1 and Exh.P.J/2 were prepared by Muhammad Akram P.W.11 on the direction of Investigating. Officer and pointation of the witnesses. The accused while under arrest led to the recovery of .30 bore pistols P.8 and P.9 which were taken into possession vide memo.
Exh.P.L and Exh.P.K and ,witnessed by Dildar Ahmad P.W.12 and Kala Khan (given up P.W.). The reports of the Chemical Examiner and the Forensic Science Laboratory ,showing positive results have been placed on record.
4. The prosecution in support of the charge produced fourteen witnesses in addition to the documentary evidence. The gist of the evidence is as under:- "Muhammad Ishaq, Constable P.W.1 has witnessed the recovery of the blood-stained earth,' two empties and a led bullet collected by Muhammad Arshad, A.S.I. From the courtyard of the house of Dost Muhammad during the spot inspection. He also produced last worn blood-stained clothes of the deceased and Mst. Rashida Bibi before the Investigating Officer. Muhammad Afzal , A. S . I . /Moharrir of the police station (P.W.2) kept the sealed parcels of crime empties, blood-stained earth and weapons offence in Malkhana which were subsequently handed over by him to Zia Abbas Shah, Constable for delivery of the same in the office of Chemmical Examiner and Forensic Science Laboratory at Lahore. Muhammad Banaras P.W.3 along with Khuda Dad (given up P.W.) on hearing the fire reports while proceeding towards the house of Dost Muhammad on confronting the accused kept silent due to threats of life extended by the accused to them. Mst. Rashida Bibi P.W.4, widow of Dost Muhammad deceased, sustained injuries in the occurrence as a result of firing of the accused, who were identified by her and her daughter at the spot when their faces were exposed during the scuffling with the deceased. Mst. Rashida Bibi deposed that since the accused were identified at the spot, therefore, they started firing with their respective weapons as a result of which she and the deceased sustained injuries and on her alarm Muhammad Banaras and Khuda Dad P.Ws. Reached at the spot. Mst. Naseeran Bibi P.W.5, daughter of Mst. Rashida Bibi and Dost Muhammad deceased, while corroborating the statement of her mother deposed that the appellants were identified by her at the spot. Fayyaz Constable P. W.6 escorted the dead body of Dost Muhammad to the mortuary and after the postmortem examination delivered the last worn collies of the deceased and Mst. Rashida Libi injured to the Investigating Officer".
5. Dr. Muhammad Naseer, Medical Officer, PIMS, P.W.7 conducted the postmortem examination on the dead body of Dost Muhammad and found the following injuries on his person:-
(1) Fire-arm entry wound with blackening and charring on the back , of right lumber region measuring 2 x 1 c.m. Which was 4 c.m. Below the Inferior angle of scapula corresponding with hole in Qameez.
(2) Fire-arm exit wound on the superior area of left shoulder measuring 2 x 2 c.m. Which was 1 c.m.
Medial to acronion process of scapula.
(3) Fire-arm entry wound with blackening and charring on the lateral aspect of left side of neck measuring 2 x 2 c.m., corresponding with hole in Qameez.
(4) Fire-arm exit wound on the middle 1/3 of right side of neck laterally measuring 3 x 2.5 c.m.
Which was 4 c.m. Above the right clavicle.
6. Muhammad Arshad, A.S.I. P.W.8 having partially conducted the investigation handed over the same to Tahir Iqbal, S.I. P.W.14 on 24-7-1998. Zia Badshah, Constable P.W.9 and Muhammad Akbar, Constable P.W.10 were given the parcels of "blood-stained earth, empties and weapons of offence on 25-7-1998 and 18-8-1998 respectively and they delivered the same in the office of Chemical Examiner. Muhammad Akram P.W.11 prepared the site-plans whereas Dildar Ahmad P.W.12 witnessed the recovery of pistol P.8 from Saghir accused and pistol P.9 at the instance of Razziq accused from Pind Sangrial.
7. Dr. Sohail Iqbal, Medical Officer, PIMS, medically examined Mst. Rashida Bibi on the day of occurrence and found the following injury on her person:- . "Fire-arm entry wound with blackening charring and the root of left side of neck measuring about .5 x 1 1/2 c.m. Which is 4 c.m. Above the left sternoclavicular joint."
8. Tahir Iqbal, S.I. P.W.14 having taken over the investigation recovered weapons of offence with three live bullets and two empties at the pointation of the accused which were handed over by him on 28-4-1998 to the Moharrir of the police station.
9. The accused in their statements under section 342, Cr.P.C. Having denied the charge pleaded that due to grudge of disclosing illicit liaison of the daughter of Dost Muhammad, they were substituted for unknown culprits.
10. Learned counsel for the appellants has raised the following contentions in support of the present appeal:-
(a) That there was no evidence that either the occurrence took place after mid-night in the courtyard of the house of the deceased or that the light was available in the courtyard of the house to identify the accused.
(b) That the scuffling of the deceased with assailants was not proved beyond doubt and the accused with muffled faces were not identifiable.
(c) That the witnesses namely Mst. Rashida Bibi and Mst. Nasreen were interested and inimical towards the accused on account of the grudge against them for disclosing the illicit connections of the daughter of Mst. Rashida Bibi.
(d) That the recovery of pistols from the accused is not confidence inspiring as no person from the locality was associated in the recovery proceedings. Dildar Ahmad P.W.12 who was associated with the recovery proceedings was resident of Chuhar Harpaal and the place of recovery was at a distance of 8/9 miles from Chuhar Harpaal. Learned counsel lastly contended that the motive set up by the prosecution was not proved and consequently the charge was not established beyond doubt.
11. Learned Assistant Advocate-General assisted by the learned counsel for the complainant has contended that the appellants being co-villagers of the witnesses were identified at the spot and they were also named as culprits by the complainant in her statement (Exh.P.C) recorded by an A.S.I. In the Hospital. Learned A.A-G. Has submitted that the occurrence took place at 2-15 a.m.
(after mid-night) and Mst. Rashida Bibi was immediately taken to the Hospital in an injured condition and she shortly after arrival in the Hospital made the statement to the A.S.I., therefore, there was no possibility of either of .Substitution or false implication. Learned A.A-G. Has added that the accused were identified by Mst. Rashida Bibi and her daughter Mst. Naseeran Bibi at the spot and further they were seen running from the spot after the occurrence by Muhammad Banaras and Khuda Dad P. Ws. And, thus the charge was proved by the direct evidence of natural witnesses.
12. We have heard the learned counsel for the parties and perused the record with their assistance.
The prosecution case is that the .Accused with a view to commit dacoity entered into the courtyard of the house of the deceased and during the, scuffle ,with the deceased, they having been exposed to the inmates of the house were identified by them and in consequence thereto, the accused opened firing as a result of which the deceased and Mst. Rashida Bibi sustained injuries. The witnesses undoubtedly have not specifically said that the light was available in the courtyard of the house of the deceased at the time of occurrence but in the site-plan Exh.P.J it is mentioned that at point No,9, the light was available in the courtyard of the house at 'the time of occurrence. The site-plan was prepared on the pointation of eyewitnesses but the defence has not put any question to the eye-witnesses or draftsman that there no light was available in the courtyard of the house and the same was wrongly shown in the site-plan. The defence having not challenged the correctness of site-plan has admitted the availability of the light in the courtyard of the house. We may observe that the place of occurrence is located in the area which is a part of capital territory of Islamabad' and, therefore, the electricity must be available in the said area and consequently a strong presumption would be raised in favour of availability of electricity light in the courtyard of the house of the deceased. The defence also did not cross-examine the witnesses that either due to non-availability of light or due to poor visibility, the culprits were not identifiable and the claim of inmates of the house regarding the identification of the accused at the spot stood established. The witnesses were neither inimical to the accused nor any enmity was suggested to them by the defence. The accused being co-villagers of the witnesses were known to them by face as well as by names with their parentage and Mst. Rashida Bibi in her statement made by her in the hospital shortly after the occurrence named them as culprits. Thus, the identification of the accused in the circumstances under which the occurrence took place could be free from any doubt.
13.. The perusal of the evidence would show that no material was brought on record in support of the plea that the accused Were substituted for unknown culprits on account of grudge against them for their disclosing the illicit connections of the daughter of the deceased. It was not disclosed that with whom the daughter of the deceased was carrying illicit relations. The substitution of an innocent person for an actual culprits being rare phenomena, there was no reason of involving the appellants in the murder of Dost Muhammad withcut any background of enmity of the accused with the family of the deceased and poor ladies would not take risk of permanent enmity with the appellants by implicating them in a false case. The contention of the learned counsel for the appellants that the recovery of pistols being doubtful wasIt confidence inspiring was not without force as the recovery was neither effected from the house owned or possessed by Ghulam Saghir nor any witness of the locality was associated .In the recovery proceedings. Thus, the recovery of pistol ,being not confidence inspiring, the positive reports of the Forensic Science Laboratory regarding the matching of the empties recovered from the spot with the pistols would be of no consequence. However, it is established on record through the medical evidence that the deceased and Mst. Rashida Bibi sustained injuries with bullets and the recovery of bullet empties from the spot would show that the pistol was used in the occurrence. The prosecution has not suggested , any 'other motive behind the occurrence except that the accused trespassed into the courtyard of the house of the deceased to the purpose of committing dacoity and during the cross-examination nothing was suggested to the witnesses that either the occurrence did not take place in the manner as stated or that the assailants have no intention to commit the theft. The ocular account of the natural witnesses being independent and confidence inspiring was fully corroborated by the medical evidence and the attending circumstances.
Therefore, the charge against the appellants under sections 302/324, P.P.C. For causing the death of Dost Muhammad and injury to Mst. Rashida Bibi stood proved beyond reasonable doubt .
14. While considering the question of sentence, we find that the accused with the intention to commit the theft entered in the courtyard of the house of the deceased and on having been identified opened- firing but it was not known as- to whether who tired at whom and consequently it was difficult to fix the individual responsibility of causing injuries to the deceased and Mst.
Rashida. We, therefore, in the given situation do not deem it proper to maintain the extreme penalty of death awarded to the appellants by the learned trial Judge as none of them can be held responsible individually for causing the fatal shot to the deceased. We, therefore, while considering it a mitigating circumstance in favour of the appellants maintain their conviction under section 302, P.P.C. For causing the murder of Dost Muhammad but reduce their sentence from death to imprisonment for life and similarly while maintaining the sentence of fine, we reduce the sentence of imprisonment of ten years' R.I.. Awarded to the appellant under section 324, P.P.C. To seven years'
R.I.. Dismiss this appeal.. The payment of compensation by the appellants under section 544-A, Cr.P.C. As per direction of the trial Court to the legal heirs of the deceased is also maintained. We, however, direct that the sentences of the appellants under sections 302(b) and 324, P.P.C. Shall run concurrently with benefit of section 382-B, Cr.P.C.
15. With the above modification in the sentence, this appeal is dismissed and the sentence of death is- not confirmed.
Sentence reduced.