1. ' BASHIR A. MUJAHID, J.---Sana Ullah alias Gullu, Shah Nawaz alias Shahu, Pervaiz alias Peju alias Falak Sher have ' assailed judgment dated 11-4-1993 passed by Judge Special Court, A.T.A., Gujranwala whereby they and their co-accused Kabir alias Kabeera (P.0) were convicted under section 302/34, P.P.C. On nine counts for causing death of Muhammad Ramzan, Syed Tanvir Hussain son of Nazir, Nazir Hussain, Muhammad Sharif, Syed Tanvir Hussain son of Muhammad Nadim, Wajid Nadim, Altaf Hussain, Saleem Akhtar, Faisal Mehmood, Altaf Hussain son of Saddiq.
2. They were also directed to pay compensation of Rs,20,000 on each count to the legal- heirs of each deceased, in default thereof to undergo two years' R.I. On each count. The appellants were further convicted under section 324, P.P.C.For causing, murderous assault on Rasheed Ahmad, P.W.28, Habib Ullah P. W.29' and sentenced to 5 years' R.I. On each count. They were also directed to pay compensation of Rs,5,000 each to the injured P. Ws. In default thereof they had to undergo one years' R.I. On each count. They were also convicted under section 396, P.P.C. Along with Shahbaz son of Muhammad Ramzan and Shahbaz Ahmad son of Bashir Ahmad and sentenced to 10 year's R.I. And fine of Rs,10,000 each, in default, thereof to undergo 11/2 year's R.I. The sentences were ordered to run concurrently. Through the same judgment, Anwar Mehmood and Khalid Mehmood were acquitted of the charge. However, Shahbaz son of Muhammad Ramzan and Shahbaz son of Bashir Ahmad have not challenged their conviction and sentence.
2. F.I.R. No,29 of 1991 (Exh.P.U/1) was registered at Police Station Phulora District Sialkot on 13-3-1991 at 9-45 p.m. On the basis of statement Exh.P.0 of Ghulam Haider P.W.28 recorded at Civil Hospital, Zafarwal at 8-30 p.m. About the occurrence took place at 6-30 p.m. On the same day within area of Kot Virk, 16 k.Ms. From the police station.
3. ' Briefly the facts of the case as narrated in the F.I.R. Are that the complainant was resident of Jugal and the marriage of Rafiq son of Habib. Nephew in relation of the resident of was scheduled on that date and for 'Baraat' the \ hired No,356711 FM whose driver was Abdur Rashid son of Muhammad Hussain and a ear No,8071/JM whose driver as Hair Bashir. The bus and car were parked on the bank of Dek near village Nangal Boota and Baraat went to the house of Muhammad Iqbal ttsident of that village and after marriage ceremony at about 6-00 p.m. All the members of the Baraat came to the bus while Muhammad Rafiq, groom along with Mst. Rehana Bibi, bride and Muhammad Ramzan son of Hayat uncle of Muhammad Rafiq and 2/3 ladies of the family boarded the car. The bus stuck up in the swamp and was pulled with the help of the tractor. The car proceeded ahead of the bus to come back to their village Jugal. When they reached in the area of Kot Virk at bank of Nala Dek at 6-30 p.m., four persons armed with fire-arms, one was tall and other was small and two were of middle height and young emerged from the side and stopped the car.
4. They forcibly looted the jewellary and cash from the passengers of the car. In the meantime the bus reached near and they also stopped the bus. Muhammad Ramzan (deceased) alighted from the car and came near the bus and asked the passengers to catch hold of the culprits and he shouted that he has identified the culprits. Altaf and Tanvir Shah admonished to come down from the bus while raising Lalkara when all the four accused first fired at Muhammad Ramzan who was killed at the spot. Thereafter, they resorted to indiscriminate firing which resulted into death of Syed Tarivir Hussain son of Nazir Hussain Shah, Muhammad Sharif, Tanvir Hussain son of Muhammad Latif, resident of Jugal, Wajid Nadim resident of Sahiwal, Altaf son of Muhammad Maalik, resident of Sahiwal and Saleem Akhtar resident of Jugal in the bus. Altaf son of Muhammad Sadiq, Habib son of Hayat, Mst. Razia Begum wife of Faiz Ahmad, Rasheed Ahmad son of Muhammad Shafi, Riasat Ali son of Karam Din, Mst. Zohra .Bibi wife of Rasheed Ahmad, Faisal son of Rasheed, Mst. Safia Kausar daughter of Rasheed and Shahbaz son of Ghulam Rasool, all residents of Jugal, sustained injuries at the hands of the accused. On hue and cry many other persons from the surrounding were attracted and the accused fled away. The dead body of Muhammad Ramzan was also put in the bus and the dead bodies along with injured persons were removed to Civil Hospital Zafarwal where the injured were given medical aid and were referred to Civil Hospital Sialkot. The complainant stated in the F.I.R. That the accused can be identified by him and other P.Ws. If they are brought before them.
4. Muhammd Nawaz, -Inspector P.W.35 after recording statement Exh.P.0 of the complainant sent the same to the police station for registration of formal F.I.R. He took the dead bodies into possession from the bus and prepared the inquest report and injury statement of Altaf Hussain through memo. Exh P LL and Exh . P. LL/1 , of Muhammad Sharif Exh. P. MM and Exh .P.MM/1, of Muhammad Ramzan Exh . P. NN and Exh.P.NN/1, of Wajid Nadim Exh.P.00 and Exh.P.00/1, of Tanvir Hussain son of Muhammad L,atif, Exh.P.PP and Exh.P.PP/1, of Tanvir Hussain son of Nazir Hussain Shah Exh.P.QQ and Exh.P.QQ/1 and of Saleem Akhtar Exh P RR and Exh. P. RR/1 respectively, and despatched the dead bodies for post-mortem examination. On 15-3-1991, Altaf Hussain son of Sadiq also expired and he prepared his inquest report through memo. Exh.P.TT' and injury statement Exh.P.TT/1 and despatched the dead body for postmortem examination. On 25-3-1991, Faisal Mehmood injured also succumbed to the injuries at Mayo Hospital Lahore and he prepred his inquest report through memo. Exh.P.W. He also took into possession blood-stained pieces of seats of bus P.38 vide memo. Exh.P.DD and the bus vide memo. Exh.P.CC and pieces of broken glass P.40/1-8 vide memo. Exh.P.EE. He recorded the statement of Abdur Rashid Driver of the bus and Muhammad Afzal, Conductor Aleem Anjum, Ashiq Hussain and Muhammad Iqbal on 13-3-1991 under section 161, Cr.P.C. On 14-3-1991 at 1-00 a.m., he arrived at the place of occurrence and took the blood-'stained earth from the place where Muhammad Ramzan was murdered, through memo. Exh.P.FF. He also took into possession Car No,8071/JM P.31 through Memo. Exh.P.Z and 12 crime empties of kalashnikov P.41/1-12 and one crime empty of .12 bore gun P.50 vide memo.
5. Exh.P.GG. On the same day, last worn clothes of all the deceased were produced before him which he took into possession through memo. Exh. PV. On 17-3-1991, he got prepared the site plan of the place of occurrence through Muhammad Latif, Patwari. On 12-4-1991, he arrested Sana Ullah accused in the instant case who was earlier arrested by Dr. Tariq Ahmad Khokhar and who while in police custody led to the recovery of gun P.30 which was taken into poisession through memo.
6. Exh.PX. He obtained the non-bailable warrants of Kabeer accused who was not traceable and got him declared as proclaimed offender. On 4-5-1991, Riaz Ahmad Tarar, D.S.P. Arrested Pervez alias Peju accused and Shah Nawaz alias Shahu accused and sent them in judicial lock-up for their arranging identification parade. On 5-5-1991, Abdul Majid, S.I. Moved an application for identifiction parade of Shah Nawaz and Pervez. On 8-5-1991 tdentification parade was held in District Jail Sialkot under the supervision of Mr. Aamer ljaz Akbar, MIC/P.W./7 where they were identified by the complainant P.W.28, Habib Ullah. P.W.29, Ghulam Nabi P.W.30 and Mst. Azra Bibi P.W.33. Thereafter, he obtained physical remand of the accused. On 22-5-1991, Shah Nawaz, appellant while in police custody led to the recovery of golden nasal nail (Nuth) P.43 which was taken into -possession through memo. Exh.P.WW. Pervaiz alias Peju while in police custody led to the recovery of Purse P.48 which was taken into possession through memo. Exh. P. KK. On 23-5-1991, Mst. Rehana Kausar, Mst.
7. Azhara Bibi and Mst. Razia Bibi identified the articles got recovered by the accused. Shah Nawaz was having a kalashnikov P.35 along with empty magazine which were taken into possession through memo. Exh.P.AA. Mauzar P.33 was also taken into possession from Pervez Ahmad.
8. ' After completion of the investigation, challan of the case was submitted in the Court. The trial Court framed the charge which was denied by the accused and they claimed trial.
9. ' During the trial, the prosecution examined as many as 40 witnesses to prove the guilt of the accused.
10. ' The medical evidence was furnished by Dr. Rana Muhammad Akhtar, P.W.1, who on 25-3-1991 conducted the post-mortem examination on the dead body of Faisal Mahmood son of Bashir Ahmad aged about 4 years and found the following injury on the dead body:-
(1) A stitched wound about 5 c.m. Long on right side of scalp, blackening was present. Dr. Gul Nawaz, P.W.2, on 14-3-1991 conducted the post-mortem examination on the dead body of Saleem Akhtar and found the following injuries:-
(1) Fire-arm wound 1/2 x 1/2 c.m. Chest cavity, deep outer aspect of left chest on upper part.
11. Margins were inverted (Entry wound).
(2) Fire-arm wound 11/2 x 11/2 c.m. Outer and back of right chest on upper part. Margins were everted. (Exit wound).
12. ' On the same day, the same doctor also conducted post-mortem examination, on the dead body of Syed Tanveer Hussain son of Nazir Hussain and found the following hijuries-:= -
(1) Fire-arm wound 1 x 1 c.m. Back of upper sacral region in middle margins inverted. (Entry)
(2) Fire-arm wound 11/2 x 11/2 c.m. Margins everted outer aspect of right buttock.(Exit)
(3) Fire-arm wound 1 x 11/2 c.m. Back of left knee joint. Margins were inverted (Entry).
(4) Fire-arm wound 31/2 x 2 c.m. Inner side of left knee joint. Margins everted.(Exit).
(5) Fire-arm wound 8 x 5 c.m. Front of right 'leg upper part. Both bones of leg, tibia and fibula were fractured.
13. ' The same doctor on the same day conducted the post-mortem examination on the dead body of Tanveer Hussain son of Muhammad Lateef and found the following injury:-
(1) A fire-arm wound 2 x 11/2 c.m. Margins were inverted in front of left lower chest. Hole on clothes were present (entry).
14. ' On the same day, he conducted the post-mortem examination on the dead body of Wajid Nadeem and found the following injuries:-
(1) A fire-arm wound 3A x 3/4 c.m. Margins were inverted on the back of left lower chest (entry).
(2) Fire-arm wound 3 x 11/2 c.m. On front of left chest. Margins were everted (exit).
(3) Huge iacerated wounds 12 x 5 c.m. On front of left forearm. Both bones fractured (entry).
(4) Lacerated wound 12 x 5 c.m. On the back of left forearm.(exit).
15. ' The same witness on the same day conducted the post-mortem examination on the dead body of Altaf Hussain son of Muhammad Malik and found the following injuries.
(1) A fire-arm entry wound 1/4 x 3/4 c.m. On right side of abdomen 10 c.m. Below right nipple and 12 c.m. From mid line.
(2) Fire-arm exit wound 5 x 3 c.m. On outer side of left abdomen. 18 c.m. Below from nipple and 18 c.m. From mid line.
16. ' On the same day, he conducted the post-mortem examination on the dead body of Muhammad Ramzan and found the following injuries:-
(1) Fire-arm entry wound 1/2 x c.m. Margins inverted on the middle of forehead at hair line.
(2) Fire-arm exit wound 5 x 5 cm. On the right ear.
(3) Fire-arm entry wound 3/4 x 1/4 c.m. Margins inverted on the left pochondrum.
17. ' Fire-arm exit wound 1/2 x 1/2 c.m. On the outer side of right abdomen. Margins everted.
18. ' The same witness on the same day also conducted the post-mortem examination on the dead body of Muhammad Sharif and found the following injuries:-
(1) Fire-arm entry wound 2 x 1 'c.m. On outer aspect of right abdomen upper part.
(2) Fire-arm exit wound 3 x 3 c.m. On outer aspect of left abdomen upper part. Intestines coming out from the wound.
19. ' On 14-3-1991, Dr. Muhammad Saleem, P.W.4 conducted the post-mortem examination on the dead body of Altaf Hussain son of Muhammad Sadiq and found the following injuries:-
(1) A lacerated stitched blackish wound with inverted margins 1 x c.m. x abdominal cavity deep on the back of left side of abdomen in its lower most part.
(2) A lacerated wound with everted margins 3 x .2 c.m. On the front of left side of abdomen in its lower part_ ' On 14-1-1991, Dr. Shakeel Ahmad Butt, P.W.5 had medically examined Mst. Zohra and found following fire-arm injuries on person:-
(1) Lacerated wound with blackish margins 1 x 1 c.m. Which were inverted on the inner aspect of left thigh on its upper part.
(2) A lacerated wound with everted margins 2 x 21/2 c.m. On front of middle part of left thigh with tatooing around the wound.
(3) A lacerated wound 11/2 x N c.m. On the outer aspect of right thigh with inverted margins on its upper part.
(4) A lacerated wound with everted margins 3 x 11/2 c.m. On outer aspect of right thigh on its middle part below and posterior to the above injury.
(5) A lacerated blakish wound with inverted margins N x 1/2 c.m. With tattooing marks on area about 15 c.m. x 20 c.m. On front of right chest in its lower most part On the same day, the same doctor had medically examined Altaf son of Muhammad Sadiq and found following firearm injuries:--
(1) A lacerated blakish wound with inverted margins 1 x c.m. On the back of left side of abdomen in its lower most parts (entry).
(2) A lacterated_ wound with everted margins 3 x 2 c.m. On front of left side of abdomen in its lower most parts with omentum protruding.
20. ' The same witness on the same day medically examined Faisal son of Rashid Ahmad and found following fire-arm injuries on his person:-
(1) A. Lacerated wound with inverted margins about 2 x 1 c.m. On right side of head just above right ear.
(2) A lacerated wound with everted margins 5 x 1/2 c.m. On the back of right side of head in its upper part. Clotted blood was present in right ear and in the nose.
21. ' The same witness on the same day medically examined Rashid Ahmad and found following fire- arm injuries on his person:--
(1) A lacerated wound inverted', margins about 'A x c.m. On back of left side of chest in its upper part.
(2) Lacerated wound with inverted margins 1 1/2 x 1 c.m. On front of left knee joint in its upper most parts.
(3) A lacerated wound with everted margins 2 x 1/2 c.m. On back of left side in its lower most part.
22. There was swelling around the hole knee joint.
23. ' On the same day, he also medically examined Habib Ullah and found following fire-arm injuries on his person:--
(1) A lacerated blakish wound with inverted margins 2 x 1/2 c.m. On back of left forearm in its middle part with tatooing marks in an area of about 10 c.m. x 6 c.m.
(2) A lacerated wound with everted margins 3 x 1 c.m. On the inner aspect of left elbow.
(3) A lacerated blakish wound on the terminal phalynx of left little finger of left hand about 2 x 1 c.m.
24. '(4) A lacerated blackish wound with inverted margins on the inner aspect of ring finger of left hand over it terminal phalynx.
25. ' He on the same day,- medically examined 7 Mahmood' and found following injuries on his person:-
(1) Multiple blackish abrasion about 8 in Tmber on the forehead with swelling all around the margins.
(2) Blackish lacerated wound 1 x 44 c.m. On palpebral, confection of right eye with clotted blood present around tie bulbar conjective.
26. ' Ott the same day, the same doctor medically examined' Riasat son of Karam Din and found following injuries on his person:-
(1) A lacerated wound with inverted margins 2 1/2 x 2 c.m. On the inner aspect of right thigh in its upper part.
(2) A lacerated blackish wound with everted, margins on the outer aspect of right thigh on its upper most part.
27. ' On the same day, he medically examined Muhammad Shahbaz son of Ghulam Rasool and found following injuries on his person:-
(1) A lacerated wound 6 x 3 c.m. With inverted margins, on the front of chest in its upper part over the mid line with air buble and blood coming out.
(2) A lacerated wound 4 x 3 c.m. On the outer aspect of left forearm in its distil most part which inverted margins.
(3) A lacerated wound 3 x 4 c.m. On the inner aspect of left forearm with everted margins.
28. ' The ocular account was furnished by Rasheed Ahmad P.W.28, Habib Ullah, P.W.29 and Ghulam Nabi P.W.30. They narrated the motive of the occurrence. Rasheed Ahmad was complainant of the case and was injured in the same occurrence: He supported the F.I.R. As an eye-witness. He also identified Pervez alias Peju and Shah. Nawaz alias Shahu accused during the identification parade held in District Jail, Sialkot. Habib Ullah, P.W.29 was also injured in the same occurrence. He identified Shah Nawaz and Pervez during the identification parade. Ghulam Nabi P.W.30 also identified Pervez and Shah Nawaz in the identification parade. Abdul Ghani, P.W.31 had attested the recovery memo. Exh.P.JJ whereby a hand bag P.46 and Purse P.45 were got recovered by Pervez accused. Mst. Rehana Kausar P.W.32 was the unfortunate bride and her marriage solemnized with Muhammad Rafiq and she identified her golden ornaments got recovered by the police from the accused. Mst. Azhara Bibi P.W.33 widow of Muhammad Ramzan was also participating in the marriage and her bag P.46 was recovered from Pervaiz accused and she identified the same. Mst.
29. Razia P.W.34 was also looted in the same occurrence and she identified her Purse P.45 in the possession of the police. Muhammad Nawaz, Inspector P.W.35 had investigated the case. Likewise, Dr. Tariq Khokhar, A.S.P P.W.36 and Riaz Ahmad Tarar, D.S.P, P.W.38 and Saeed Inspector P.W.39 had partly investigated the case. The remaining witnesses and of formal nature ',and need not to be discussed.
30. ' The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.PXX/1, Eidn,?YY and that of Saologist Exh.P.ZZ and Exh.P.ZZ/1 and of Fire Arm Expert Exh. P. A.A A.
31. ' The statements of the accused under section 342, Cr.P.C., were recorded. They denied the allegations and claimed their innocence and false involvement.
32. ' The trial culminated into conviction of the accused as mentioned above. Shah Nawaz accused has filed Criminal Appeal No, 69-J of 1993, while Sana Ullah Criminal Appeal No,287 of 1993 and Pervez alias Peju Criminal Appeal No,315 of 1993 against their conviction and sentence.
33. ' Learned counsel for the appellants have argued that it was a dark time occurrence and the identification of the accused was not possible; that no description of the accused was given in the F.I.R. And they have not been identified during the identification parade by the role played by each of the accused in the commission of crime; that the recoveries have been planted to strengthen the prosecution case. Learned counsel for Pervez alias Peju has argued that he was less than 18 years of age at the time of alleged crime, therefore, capital punishment is not legal against him.
34. ' Conversely, the appeals have been opposed by the learned counsel for the State who has supported the impugned judgment.
35. ' Heard. Record perused.
36. The occurrence took place at 6-30 p.m. On 13-3-1991 which was about Maghrib prayers time and sufficient light was available A to identify the accused. Even otherwise the head lights of the car and bus were also available. On 4-5-1991, Pervaiz alias Peju and Shah Nawaz alias Shahu appellants were arrested by Dr. Tariq Ahmad Khokhar, D.S.P. Kalashnikov P.5 was recovered from.
37. Shah Nawaz along with empty magazine P.37 which were taken into possession through memo.
38. Exh.P.AA and attested by Shahbaz Ahmad Mauzer P.33 was recovered from Pervez alias Peju through memo. Exh.P.BB which was also attested by Muhammad Shahbaz, P.W.22. On 8-5-1991 identification parade was held under the supervision of Mr. Aamer Ijaz Akbar, MIC/P.W.7 wherein Shah Nawaz alias Shahu and Pervez alias Peju were correctly identified by Rasheed Ahmad P.W.28, Habib Ullah P.W.29, Ghulam Nabi P.W.30. Master Ghulam Qadir, Mst. Azra P.W.33 and Abdul Karim alias Shakir Din P.W.19 also identified them in the proceedings. Although they were not identified by their role but the prosecution witnesses were not asked by the Magistrate about the role and without asking such question an uneducated person is not expected to give the detail. As far as identification of Sana Ullah is concerned, the arguments of the learned counsel for him is that he was not even put to identification parade but we find that he was identified by Mst. Razia P.W.34 in the Court on asking of the learned Trial Judge and she also stated that she has seen the accused for the first time in the Court after the occurrence. The identification of the accused ,-in the Court is also valid and can be relied upon. The identification parade was conducted after observing all the formalities. Apart from identification, recovery of looted articles from the appellants also corroborates the prosecution story. On 22-5-1991, Pervez alias Peju led to the recovery of Purse P.48 which was taken into possession through memo. Exh.PKK. Mst. Rehana P.W.32 who was unfortunate bride whose marriage was solemnized with Muhammad Rafiq, she identified her Purse P.48 and golden Nasal P.43 (which was prepared by Zafar Iqbal, Gold Smith P.W.20 who identified the same at the Police Station on 25-5-1991) in the police station, got recovered by Shah Nawaz accused.
39. Likewise Mst. Azra P.W.33 widow of Muhammad Ramzan deceased also identified hand bag P.46 of her husband. She identified the accused in the identification parade and in the Court. Mst. Razia Bihi, P.W.34 also identified Purse P.49 and she identified Sana Ullah alias Gullu as mentioned above.
40. The crime empty P.50 tallied with the gun 12 bore recovered from the possession of Sana Ullah alias Gullu appellant through Forensic Science Laboratory report Exh.P.AAA. Likewise Shah Nawaz alias Shahu and Pervez alias Peju were arrested in police encounter and a kalashnikov P.35 was taken into possession from Shah Nawaz through memo. Exh.P.AA and Mauzer P.33 from Pervez alias Peju and according to report Exh.P.AAA, 12 empties P.41/1-12 taken into possession from the spot tallied with the kalashnikov used by Shah Nawaz appellant. The prosecution witnesses have no previous enmity to implicate the appellants in false case. Shah Nawaz alias Shahu and Pervez alias Peju were also declared proclaimed offenders which is important factor to corroborate their involvement in the instant offence, therefore, after deep re-appraisal of the prosecution evidence, we are convinced that the prosecution has successfully established its case against the appellants beyond any shadow of doubt and find no reason to interfere in the conviction recorded against them and the sentence awarded to Sana Ullah alias Gullu and Shah Nawaz alias Shahu appellants.
41. As far as case of Pervez. Alias Peju is concerned, during the identification parade it has been stated that he was aged 15 years and in his statement under section 342, Cr.P.C. His age has been stated as 17 years when he was below 18 years at the time of commission of instant occurrence took place and was Juvenile. While maintaining his conviction, we reduce his sentence from death to imprisonment for life which will meet the ends of justice. The other sentences are maintained. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Will also be available to him, The appeals are dismissed with above modification. Death sentence of Sana Ullah and Shah Nawaz alias Shahu is confirmed and that of Pervez is not confirmed,