1. ' MUHAMMAD NAWAZ ABBASI, J.---The appellants' namely Shafqat Ishaq alias Shaukat son of Muhammad Ishaq and Muhammad Yaqoob son of Muhammad Zaman have filed this Criminal Appeal No,147-T of 1999 through Superintendent District Jail, Jhelum. Mr. Aftab Ahmad Gujar, Advocate was appointed as defence counsel on behalf of appellant namely Muhammad Yaqoob son of Muhammad Zaman at State expenses. However,. Shafqat Ishaq alias Shaukat son of Muhammad Ishaq has engaged a private counsel. The appellants alongwith Nasir Mehmood (acquitted accused) were tried for the charge under section 392/34, P.P.C., section 302/34, P.P.C.
2. And section 397/109, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 by the Special Court established under Anti-Terrorism Act, 1997 for Rawalpindi and Capital Territory Islamabad for the allegation of committing murder of Muhammad Hanif, deceased, while committing robbery.
3. ' The learned trial Judge having found the appellants guilty of charge under section 302/34, P.P.C.
4. And for the charge under section 392, P.P.C. Vide judgment dated 26-6-1999 convicted and sentenced' them as under:-- ' Shaloat Ishaq: ' Sentence of death under section 302, P.P.C. And for the charge under section 392, P.P.C. Rigorous imprisonment for a term of ten years, with a fine of Rs,20,000 and in default of the payment of fine to undergo Rigorous Imprisonment for six months.
5. ' Muhammad Yaqoob: ' Imprisonment for life for the charge under section 302, P.P.C. And Rigorous Imprisonment for a term of ten years, with a fine of Rs,20,000 under. Section. 392, P.P.C. And in .Default of the payment of fine to undergo Rigorous Imprisonment for six months.
6. ' The two sentences of imprisonment awarded to Muhammad Yaqoob have been ordered to run concurrently with benefit of section 382-B, Cr.P.C. Nasir Mehmood, the co-accused of the appellant was acquitted of all the charges and the appellants were also acquitted from the charge under section 7 of Anti-Terrorism Act, 1997.
7. ' The appellants through this composite appeal have challenged - their conviction and sentence, whereas the complainant namely Muhammad Rafiq has filed Criminal Revision' No:79 of 1999 for grant of compensation to the legal heirs of the deceased under section 544-A Cr.P.C. The criminal revision was ordered to be heard along with the criminal appeal and, therefore, both the criminal appeal and the revisions are disposed of together through this single judgment.
8. ' The occurrence in the present case had taken place at 3-35 p.m. On 19-6-1997 in the area of village Chand within the limits of Police Station Jalal Pur Shard, District Jhelum and the case was registered on the same day ide Exh.P.A /1 on the basis of statement Exh.P.A made by Muhammad Rafiq son, of Fazal Ahmad.
9. ' The brief facts as contained in the complaint Exh.P.A are that Muhammad Hanif, real brother of the complainant was employed in Post Office, who while going to his house at 3-45 p.m. Was attacked by the unknown culprits on the road and was murdered. The complainant on the receipt of information while reaching at the spot with a few other 'co-villagers, found the deceased lying dead having sustained fire-arm injury on the chest. Fazal Ahmad and Muhammad Ishaq while present at Borh Wali Ban near Pakka road saw that two unknown persons passing on the road on a-motorcycle bearing No,LOX 8916 suddenly as a result of slipping of their motorcycle, fell on the ground and sustained injuries. The motorcycle went out of order and despite efforts, they remained un-successful in bringing the motorcycle' in order again and, thus they while leaving the motorcycle at the spot disappeared in the nearby jungle. The description of culprits as narrated by the above named witnesses to the complainant was that one, of them was of blackish colour of the age of 21/22 years with 5' 8/9" height and slim body, whereas the other one was of the age of 26/27 years with 5' 6/7" height of, normal weight and blackish colour. The culprits were identified by the witnesses. Namely' Fazal Ahmad and Muhammad Ishaq at the spot. On the complai,nt made by Muhammad Ras, the case was registered at about 6-00 p.m. Under section 302/392, P.P.C. At the Police Station Jalalpur Sharif at a distance of 19 kilometers from village Chand.
10. ' Muhammad Younas, the then S.H0 of Police Station Jalalpur Sharif (P.W.20) having reached at the .Spot recorded the statement Exh.P.A of Muhammad Rafiq complainant and having inspected the dead body of Muhammad Hanif prepared the inquest report Exh.P.0 and dispatched the dead body to the mortuary at District Headquarters Hospital, Pind Dadan Khan. The S.H.O at the same time after sending Exh.P.A to the police station, for the registration of the case, recorded the statements of Fazal Ahmad and Muhammad Ishaq under section 161 Cr.P.C. And also secured blood-stained earth and a crime empty P.1 of .30 bore pistol from the spot in presence of the witnesses through separate sealed parcels. The Investigating Officer then having prepared the recovery memo. Of `motorcycle bearing No,LOX 8916 P.3 belonging to the deceased lying on the road near Borh Wali Ban, took the same into possession and later also took into possession the last worn clothes of the deceased produced before him by Muhammad Ashraf, Constable and got prepared site plans Exh.
11. P.J and Exh.P.J/1 by the Patwari of the Halqa. Shafqat Ishaq accused on arrest on 2-7-1997 was got medically examined and was sent to the Judicial lock-up on the same day for holding his identification parade in the ,Jail. The witnesses namely Fazal Ahmad Muhammad Ishaq identified the accused in the identification parade held on 7-7-1997 in the Jail in the supervision of a Magistrate. Shafqat Ishaq accused while in police custody led to the recovery of pistol P.4 on 20-7- 1997 from an open place in Hilly area, which was taken into possession vide memo. Exh. P. F in presence of the, witnesses. Muhammad Yaqoob, on arrest was also sent to Judicial lock up for the .Purposes of holding his identification parade, and he was ideitified as one of the culprits by the witnesses in the identification parade held, on 2-9-1997 in Jail. Muhammad Yaqoob accused while in Police custody got recovered Chhuri P.2 from the hilly area on 3-9-1997, which was taken ir to possession through a recovery memo. Prepared by the S.H.O in presence of the witnesses. The Investigating Officer having completed the formal investigation and found the appellants guilty challaned them to face the trial.
12. ' Dr. Muhammad Zafar Iqbal (P.W.5) conducted post-mortem examination on the dead body of Muhammad Hanif on 20-6-1997 and traced following injuries on the dead body:-- (1). A wound of entry 1/2 c.m. x 112 c.m. On left side of chest. It was 7 c.m. Posterior to posterior axillary line, and 21 c.m. From the top of left shoulder. On probing, it was going in.
13. (2). A wound of exit on the front of left lower chest, in between the two nipples, and 2-1/2 c.m. Below the level of nipples. It was 10 c.m. From the left nipple and 15 c.m. From the right nipple. It was 1-74 x 1-1/2 c.m. In diameter.
14. ' Doctor opined that injury No,2 was result of injury No,1 and both the injuries were ante-mortem, which were caused with fire-arm and were sufficient to cause death in ordinary course of nature.
15. Dr. Khalid Mehmood Farooqi (P.W.6) medically examined Shafqat Ishaq accused on 2-7-1997 and found following injuries on his person:-
(1) A semi healed round shaped wound was present on lateral aspect of right shoulder joint, 2-1/2 c.m. Below the dip acromian. Size of the wound including scar was half c.m. Diameter. Margin of the wound was inverted. This wound looked to be the wound of entry of fire-arm weapon.
(2) A fire-arm wound of exit, was present in the right pectoral region, 5 c.m. Above and behind the right nipple. Wound was semi healed and scar was present over the wound. Size of the wound including scar was 1 c.m. In diameter.
(3) A healed abrasion, 5-1/2 c.m. x 1/2 c.m. In size, on posterior aspect of upper '/4th of left fore-arm.
(4) An ovoid shape semi healed lacerated wound in front of left knee joint. Size of the wound was 2- V2 c.m. In diameter.
(5) A skin deep lacerated wound on antro lateral aspect of upper and of left thigh, wound was semi healed.
16. ' Injuries No,1 and 2 were found to have been caused with fire-arm, whereas remaining injuries were of blunt weapon and seemed to haired been sustained in a road accident. The- prosecution apart from the Investigating Officer namely Muhammad Younas (P.W.20), Dr. Muhammad Zafar Iqbal and Dr. Khalid Mehmood Farooqi (P.W.5) and P.W.6 respectively produced 17 other witnesses including the eye-witnesses namely Fazal Ahmad and Muhammad Ishaq. Gul Zaman, Head Constable (P.W.1) took complaint Exh.P.A to the Police Station on the basis of which, the case was registered.
17. Dilawar Khan, Head Constable (P.W.2) was posted as Moharrar at police station, who kept the sealed parcels containing bloodstained earth and crime empty in Mall Khana and subsequently handed over the same to Muhammad Safdar Constable (P.W.4) on 27-6-1997 for onward delivery in the Office of Chemical Examiner and Forensic Science Laboratory at Lahore. The parcel of .30 bore pistol was given to him on 20-7-1997 and he handed over the same to Muhammad Bakhsh, Constable (P.W.3) on 29-7-1997 for onward delivery in the Office of Forensic Science Laboratory at Lahore. Muhammad Safdar (P.W.4) has deposed in affirmation to the statement made by Dilawar Khan, Head Constable (P.W.2). Khalid Mehmood (P.W.7) witnessed the recovery of blood- stained earth from the place of murder of Muhammad Hanif and crime empty of .30 bore pistol recovered by the S.H.O from the spot, Muhammad Asghar (P.W.8) identified the dead body of Muhammad Hanif at the time of post-mortem examination in Hospital. Fazal Ahmad (P.W.9) and Muhammad Ishaq (P. W.10) having deposed in confirmation of the prosecution story as contained in the complaint Exh.P.A identified the appellants at Identification parade in the Jail and also in the Court as same persons, who while travelling on motorcycle LOX 8916 as a result of fall from Motorcycle on the road in their presence near Borh Wali Ban sustained injuries. They deposed that the motorcycle due to slip on the road has gone out of order and the appellants within their sight, while leaving the motorcycle at the spot disappeared in the Jungle. These witnesses further deposed that shortly after the disappearance of the appellants, they found Muhammad Hanif deceased lying dead on the road at some distance. The witnesses have stated that they at the time of occurrence were present near Borh Wali Ban and were not known to the deceased and the appellants and also to the complainant. Manzoor Ahmad (P.W.11) and Muhammad Azam (P.W.12) deposed that Shafqat Ishaq and Muhammad Ishaq mer them on 19-6-1997 after the occurrence and found that Shafqat Ishaq was injured. Zafar Iqbal (P.W. 13) witnessed the recovery of .Pistol P.4 from an open place in the hilly area at the instance of Shafqat Ishaq accused. The learned trial Judge, while recording the statement of Zafar Iqbal made a note as under:- "A chit was found with the parcel of pistol with the words, one pistol .30 bore recovered from Shaukat Hayat alias Shaukat, son of Muhammad Zaman, caste Darzi, resident of Padri, which was overwritten with the words Shafqat Ishaq alias Shaukat son of Muhammad Ishaq."
18. ' The following writing on the sealed parcel of the pistol was found:- "Recovery of case F.I.R. No,21 dated 19-6-1997 under section 302/392 P.P.C., Police Station Jalalpur Sharif, District Jhelum."
19. ' Syed Mobashar Hussain, Magistrate Ist Class (P.W.14) has deposed that he supervised the identification parade and the appellants were correctly identified by the witnesses at the identification parade. Muhammad Rafiq (P.W. 15) witnessed the recovery of motorcycle P.3 bearing .No,LOX 8916 (Yamaha) from near Borh Wali Ban. Shaukat Hayat, A .S.I. (P.W.16) was entrusted non- bailable warrant of Muhammad Yaqoob, who was arrested while in custody at Police Station Aziz Bhatti (East) Karachi. Muhammad Rafiq (P.W.17) is the complainant of the case and Liaquat Ali, Patwari on the direction of Investigating Officer and pointation of witnesses prepared the site plans Exh.P.J and Exp.P.J/1. Muhammad Ashraf, Constable (P.W. 19) escorted the dead body of Muhammad Hanif to Mortuary and after the post-mortem examination delivered the last worn clothes of the deceased to the S.H.O.
20. ' The accused in their statement under section 342, Cr.1P.C. Denied the charge and pleaded false implication and innocence.
21. ' The learned counsel for the appellants have raised the following contentions in support of this appeal:-
(a) That the occurrence was unseen and the evidence of witnesses namely Fazal Ahmad and Muhammad Ishaq would not connect the appellants with the commission of offence;
(h) There is no evidence either of snatching the motorcycle by the appellants from the deceased or of causing tire-arm injury to him, therefore, the conviction and sentence on both charges was not sustainable;
(c) That the recovery of pistol from Shafqat Ishaq appellant despite positive result of Chemical Examiner of matching the empty with the pistol, would not be helpful to the prosecution as while recording the statement of Khalid Mehmood recovery witness, the learned trial Judge observed that name of another accused in a different case was written on the parcel and,' therefore, a strong presumption would be raised that the pistol allegedly recovered from the appellant was not produced in the Court;
(d) That the presence of P.W. 9 and P.W. 10 near the place of occurrence was just by chance and it was not safe to place reliance on their evidence to sustain conviction and sentence.
22. ' The learned State counsel, on the other hand, contended that the witnesses being strangers to the accused as well as to the complainant party were entirely independent and disinterested, therefore, their evidence alone was sufficient to sustain the Conviction and sentence awarded to the appellants. The that tied counsel added that the motorcycle belottging to Muhammad Hanif was found in possession of the appellants shortly after the death of the deceased, therefore, it would be a strong evidence of committing the murder of Muhammad Hanif by the appellants, while snatching motorcycle from him. The learned counsel argued that the empty recovered from the place of occurrence was found matched with the pistol subsequently recovered from the appellant by the fire-arm expert, which was another strong piece of evidence to connect the accused with the commission of the offence.
23. ' We have heard the learned counsel for the parties at length and perused the record with their assistance. The occurrence relating to the sustaining of fire-arm injury by the deceased was unseen but the falling of the accused from motorcycle on the road at a short distance from the dead body of Muhammad Hanif shortly after his sustaining fire-arm injury and possession of the motorcycle of deceased with accused 'was in the direct knowledge of two eye-witnesses. The recovery of dead body of Muhammad Hanif from pakka road near Borh Wali Ban, and the recovery of his Motor4cle bearing No,LOX 8916 at the place of fall of accused at a short distance from dead body was established through direct evidence. The second part of the story relating to the accident of the accused, who were in possession of motorcycle of , deceased was seen by the witnesses namely Fazal Ahmad and Muhammad Ishaq, who were neither known to the appellants nor to the deceased and the witnesses before the occurrence, and thus were entirely independent.
24. The presence of the witnesses at Borh Wali Ban on the metalled road was neither challengeable nor they could be treated as chance witnesses at a little distance from their residence. There was no reason with the witnesses to make a false statement against the appellants or substitute them with unknown culprits. The witnesses have disc used the description of the accused to the first informant, which was narrated as such in the complaint Exh.P.A and further the same description of accused was given in their statements under section 161, Cr.P.C. The witnesses have correctly identified the appellants, in the identification parade. In Jail and also in the Court. The story that the appellants were seen in possession of motorcycle of deceased at a short distance from the place of recovery of dead body of Muhammad Hanif at the metalled road and running of the appellants into the Jungle after fall from motorcycle in injured condition leaving the motorcycle at the road was sufficiently proved by the evidence of these two independent witnesses. This is correct that sustaining of injuries by the deceased at the hand of the appellants was not witnessed by any person but there being a little distance between the place of sustaining fire-arm injury by the deceased while going on motorcycle and the place where the appellants were found in the possession of said motorcycle and gap of - short time between two incidents would be a strong circumstance to establish that the appellants having fired at the deceased snatched his motorcycle and while running fell on road from the motorcycle. The crime empty recovered from the 'place of occurrence 'was found matched with the pistol subsequently recovered from Shafqat Ishaq but the recovery of pistol being doubtful, the positive report of fire-arm expert would be of no consequence. Shafqat Ishaq accused on arrest was found injured and apart from a tire-arm entry wound with its exist wound, he also sustained abrasion and lacerated wounds. The duration of the injuries on his person as opined by the Doctor would show that same were sustained by the accused on the day of occurrence. The fire-arm injury on the person of Shafqat Ishaq if was not caused by chance at the time of fall as stated by the witnesses, it would suggest that the same was caused during the resistance put by the deceased to the accused, during the process of snatching the motorcycle. The scrutiny of the evidence and attending circumstances would sufficiently connect the appellants with the commission of offence. We, therefore, are of the view that no 'exception can be taken to the findings of guilt of appellants arrived at by the learned trial Judge. The recovery of pistol from Shafqat Ishaq was not proved beyond doubt and as a result thereof, the recovery of crime empty from the place of occurrence would not provide corroboration to the evidence of the witnesses namely Fazal Ahmad and Muhammad Ishaq to establish that deceased sustained injury at his hand. There being no direct or circumstantial evidence to identify the individual role, of the accused and, distinguish their case from each other to ascertain that either deceased sustained firearm injury at the hand of Shafqat Ishaq or Muhammad Yaqoob. We find that they would stand at par to each other in the matter of sentence. Muhammad Yaqoob was awarded sentence of life imprisonment, whereas Shafqat Ishaq was awarded sentence of death without distinguishing his role to that of his co-accused. The complainant and the State 'have not sought enhancement of sentence of Muhammad Yaqoob. We, therefore, having found no distinction in the case against Shafqat Ishaq to that of Muhammad Yaqoob, are not inclined to confirm the sentence of death awarded to Shafqat Ishaq accused. Consequently, we while reducing the sentence of Shafqat Ishaq from death to life imprisonment and maintaining the sentence of life imprisonment of Muhammad Yaqoob under section 302/34; P.P.C. And the sentences awarded to them under section 392/34, P.P.C. Dismiss their appeal. However, we direct, that both the sentences of the appellants shall run concurrently and they shall also be, entitled to the benefit of section 382-B, Cr.P.C. We have noticed that learned trial Judge while awarding the conviction and sentence under section 302/34, P.P.C. Has not taken notice of mandatory provision of section 544-A Cr.P.C. We, therefore, while giving notice to the appellants through their counsel direct that a compensation of Rs,2,00,000 shall be paid by each appellant to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of default in the payment of compensation, they shall suffer - simple imprisonment for six months each and the amount of compensation shall be recoverable from them as arrears of land revenue. The criminal revision stands disposed of as notice case and the criminal appeal with the above modification/alteration in the sentence stands dismissed.
25. Sentence reduced.