' SYED DEEDAR HUSSAIN SHAH, J.---Through this common judgment we intend to dispose of the above appeals, which, in their own turn, have arisen out of common judgment passed by a Division Bench of the Lahore High Court, Lahore, in Criminal Appeals Nos. 124 and 131 of 1998 and Murder Reference No,39-T of 1998.
2. The facts, in brief, are that Tahir Saeed complainant P.W.6 lodged F.I.R. Dated 29-8-1996 (Exh.P.A.1) at Police Station Peoples Colony, Faisalabad, alleging therein that his brother Tariq Saeed deceased used to run Dawood Departmental Store at Tanki Road. On the day of occurrence, the complainant, Imran Ashraf resident of P-30, Hussain Shaheed Colony, and Muhammad Anwar resident of Chak No,243-GB, Roshanwala, were sitting in the said departmental store with Tariq Saeed deceased, when three persons riding Kawasaki Motorcycle of red colour came there out of them two had pistols which they pointed towards them. Tariq Saeed deceased took out his licensed revolver from drawer and pointed it towards the accused. The empty-handed accused tried to snatch revolver from Tariq Saeed, but he resisted. Remaining two assailants fired with their pistols two shots each one after the other hitting Tariq Saeed at right knee and at his left flank, who after receiving the injuries fell down. Thereafter, the accused ran away towards D-Ground on the same motorcycle by taking licensed revolver of Tariq Saeed. Tariq Saeed injured was taken to the hospital where he succumbed to the injuries.
3. The motive for the occurrence was that the assailants had come to commit dacoity in the departmental store and on resistance of the deceased they committed his murder.
4. Muhammad Nasir, S.-I. (P.W.11) reached the hospital, prepared the injury statement of dead body of Tariq Saeed, inquest report and sent the dead body for post-mortem examination. On 29-10- 1996, the Investigating Officer submitted an application Exh.P.C. For holding identification parade of the accused in jail and the same was held on 3-11-1996 under the supervision of Khalid Mahmood Ranjha, Magistrate (P.W.13) in District Jail, where Tahir Saeed, Imran Ashraf and Muhammad Anwar P.Ws. Participated and identified all the accused. On 9-11-1996 the accused led to recovery of motorcycle which was used in the commission of crime from Auto Shop at Lall Mill Road, which was taken into possession. The Investigating Officer recorded the statements of the witnesses under section 161, Cr.P.C., completed the investigation and challand the accused. They denied the allegations and claimed trial. During the trial, the prosecution in order to prove its case examined 13 witnesses.
5. Wahid Iqbal, Javaid and Ajmal accused-appellants alongwith the acquitted accused Arshad Saeed were tried by the learned Special Judge, Anti-Terrorism Punjab, under sections 302/392/412/34, P.P.C. They were convicted under section 302/34 P.P.C. And sentenced to death for committing Qatl-i-Amd of Tariq Saeed and to pay fine of Ruppes one lac each or in default thereof to further undergo R.I. For six years. The accused-appellants were also convicted under section 392, P.P.C. And sentenced to 10 years' R.I. Each and fine of Rs,50,000 each, or in default to further undergo R.I. For three years. In case of realization of fine, it was ordered that the same may be paid to the legal heirs of the deceased, as compensation.
6. The convicts assailed their conviction and sentences through separate appeals .Before the Lahore High Court, Lahore. A learned Division Bench of the High Court through impugned judgment maintained the death sentence of Wahid Iqbal and Javaid but altered the death sentence of Ajmal to imprisonment for life with benefit of section 382-B, Cr. P C
7. Leave to appeal was granted to consider whether the High Court has kept in view rule laid down by this Court off and on in relation to appreciation of evidence in criminal cases keeping in view the safe administration of justice betwixt the parties.
8. Learned counsel for the accused-appellants, inter alia, contended that the identification parade, in which the appellants were identified by the prosecution witnesses, was not held in accordance with law and rules; that the witnesses did not specify the role played by each of the appellant, as such the evidence of identification parade was not to be believed.
9. Mr. Iftikhar Hussain Gillani, learned Advocate Supreme Court, submitted that the learned High Court in the impugned judgment has held that appellant Ajmal had not shared common intention for committing the murder, being empty-handed, as such, his case was found to be distinguishable and, taking lenient view his sentence of death was modified to that of imprisonment for life with benefit of section 382-B, Cr.P.C. He further submitted that the imprisonment already undergone by the appellant would meet the ends of justice.
10. Learned counsel for the accused-appellants have referred to Mehmood Ahmad and 3 others v.
The State and another (1995 SCMR 127) State/Government of Sindh v. Sobharo (1993 SCMR 585), Lal Pasand v. The State (PLD 1981 SC 142), Ghulam Rasul v. The State (1988 SCMR 557), Khadim Hussain v. The State (1985 SCMR 721) and Alim v The State (PLD 1967 SC 307).
11. Mr. Nazir Ahmad Ghazi, learned counsel for the complainant submitted that all the appellants with their common object committed the crime and the trial Court rightly convicted appellant Ajmal awarding him death sentence, but the learned High Court finding that Amjad was empty- handed and he did not share common intention with the co-appellants, as such, his death sentence was modified to imprisonment for life, which resulted in miscarriage of justice.
12. Ch. Ghulam Ahmad, learned counsel for the State supported the impugned judgment of the High Court.
13. We have considered the arguments advanced by the learned counsel for the parties and have minutely examined the evidence available on record. In this case the star prosecution witnesses are Tahir Saeed complainant (P.W.6) and Muhammad Anwar P.W.8. Both of them correctly picked out the culprits in the identification test supervised by Khalid Mahmood Ranjha P.W.13. For the proper appraisal of the evidence it would be pertinent to look into the evidence of the above witnesses, particularly their statements on oath, in which both these witnesses stated that appellant Ajmal caught hold of deceased Tariq Saeed, whereas two shots each were fired by Javaid and Wahid Iqbal appellants at the deceased. Medical evidence is in consonance with the ocular evidence. In cross-examination the witnesses denied that the appellants were shown to them prior to holding of the identification test. The occurrence took place in the broad daylight and F.I.R. Was lodged very promptly without any loss of time. The police secured blood-stained earth and empties from the place of occurrence. The police arrested the appellants on 29-10-1996 after about two months of the occurrence and thereafter the witnesses identified the assailants in the identification parade held by the Magistrate. The eye-witnesses have rightly given proper complexion and physiques of the assailants in the F.I.R. As well as in their statements recorded by the police. We also found that both the P.Ws. Correctly picked out the assailants in the identification parade held by the Magistrate (P.W.13). No doubt, the Magistrate did not put any question during the test about the role of the appellants, but the accused were arrested for the alleged offence and the P.Ws. Correctly identified them for the same. The main emphasis of the learned counsel for the accused-appellant is that since role of each of the accused was not mentioned in the identification parade, therefore, evidence of identification test may not be believed.
14. Now, we will discuss the precedents cited by the learned counsel for the accused-appellants. In 1988 SCMR 557 (supra), it has been held that:-- ' "Role of accused at time of commission of offence and described by w itness--- Inherent defect-- -Evidence of witness identifying accused in such identification parade lost its efficacy and not relied upon."
' In PLD 1967 SC 307, (supra), it was observed that: ' "Witnesses, in particular circumstances of the case, at best had only a fleeting look at assailant-- Variation in statements made before Committing Court and those recorded at trial on point of identification---Unsafe to put reliance on such statements."
' In 1985 SCMR 721 (supra), it was laid down that: ' "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes, if it was the identification of their role then it should have been specified so as to complete the picture of the crime and reinforce the case against them for commission of the crime."
In 1995 SCMR 127, (supra), it was held that: ' "Picking up of the accused in the identification parade with describing the role played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value."
' In 1995 SCMR 127 (supra), it was observed that: ' "From the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witnesses."
15. We have also gone through the citations i.e, Ali Muhammad v. The State (1985 SCMR 1834), Muhammad Afzal v. The State (1982 SCMR 129) and Muhammad Bashir Alam v. The State (PLD 1958 SC (Pak.) 1). It would be pertinent to refer to the case of The State through the Advocate-General, Sindh, Karachi v. Farman Hussain and another (PLD 1995 SC 1) to highlight/distinguish the effect of non-mentioning of the role of the culprits in identification test, wherein my learned brother Ajmal Mian, J., observed as under:-- ' . I may also observe that the question, whether any identification parade was warranted, depends on the facts of each case. In this regard reference may be made to the judgment in the case of Muhammad Yousaf Zai v. The State (PLD 1988 Karachi 539) relied upon by the trial Court, in which a Division Bench of the High Court of Sindh (to which I was a member and happened to be the author of the judgment), made following observations as to the requirement of the identification parade:- - ' We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eyewitnesses can identify the accused before the trial Court that is - enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while drawing the amount of Exh.2/F through five cheques during the period from 5-9-1984 to 17-9-1984 whereas the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985' ."
16. We have minutely gone through the authorities referred to hereinabove by the defence counsel, which are quite distinguishable from the facts and circumstances of the case in hand, because in ,this case the accused-appellants duly armed with weapons entered the departmental store; one appellant Ajmal caught hold of the deceased, whereas Javaid and Wahid Iqbal fired two shots each at the deceased. The complainant in the F.I.R. And the witnesses in their statements have given necessary physiques and complexion of the assailants and the witnesses have in unequivocal terms stated the role of each of the appellants during trial and also identified the assailants in identification parade.
' It would be advantageous to refer here few relevant lines of the evidence of P.W.8 Muhammad Anwar, which is available at page 99 of the paper book (Criminal Appeal No,330 of 2001), who in cross-examination by the defence on behalf of Javaid accused, stated as under:-- ' "Voluntered I was asked by the police to identify the persons whom I had seen at the time of occurrence committing robbery and murder.
' . . . . . The description of the accused was in my mind in order to identify them. I had stated only before the police about age of the accused and not detailed about their face It is further incorrect that the accused were shown to me by the police before the commencement of the identification parade. It is incorrect that the accused had been falsely involved in this case. The fact of matter is that I was present during the commission of robbery and murder. I saw the accused there and therefore, I identified them during the identification parade."
' Similarly, Tahir S3eed (P.W.6) during cross-examination, at pages 78, 79, 82 and 86 of the same paper book, also deposed as under:-- ' .It is incorrect that prior to the identification parade of the accused the police had been arresting different persons and showing them to us. I had given the description of the accused in my first statement Exh.P.A. Wahid Iqbal is the accused who made two fires hitting the right flank of the deceased. I had given his description as aged about 25/30 years and of smart physique."
' I had not seen the accused prior to this occurrence, nor they were known to me prior to this occurrence. Their names were also not in my knowledge prior to this occurrence. I have no enmity with the accused, as they were not known to me. My deceased brother was not inimical .To anybody. Ajmal accused enterd first in the store alongwith Javaid. On entering the store they asked us to raise our arms. They did not demand anything from us. It is incorrect that someone else had murdered my deceased brother due to enmity and I had falsely implicated the accused present in Court. The accused had entered the store for the commission of robbery.'
' It was also incorrect that before the identification the accused were shown to me variably at the police station and special identification marks of each of them like dimple etc. Were memorized to me' ."
So far the non-mentioning of role of each of the appellant is concerned, such question was not put by the Magistrate which is a mistake and lethargy on his part for which the prosecution should not suffer. In the evidence before the trial Court the eye-witnesses had clearly assigned the role to each of the appellant, which was not shaken. In this view of the matter, it would be pertinent to refer here the observation of this Court made in PLD 1958 SC (Pak.) 1, at page 2 (supra), which runs as under:- ' "A Judge in deciding an appeal from conviction is, therefore, not justified in proceeding to decide the case on the basis that the main evidence in the case was that of the identification test and failing to take into consideration the direct and most convincing evidence of the eye-witnesses."
' In 1982 SCMR 129 (supra) it was held that:-- "13. Now there is no provision in law that identification proceedings should be held in case where a crime is committed by persons unknown to the witnesses or for that matter in any type of cases.
The identification has by itself no independent value . ...... . . . . . . . ...... . . It will be presently shown that in this case the identity of appellants was sufficiently and adequately established by the evidence of P.W. Rahim Khan corroborated by the recoveries from the appellants. But before that I may also refer to the identification that has, according to me, taken place at the police station for as stated earlier it is reasonable to assume that P.W. Rahim Khan had seen the appellants at the police station when they were in custody as suspects and that they were pointed out by the witness. It is the defence version that the appellants were not the only suspects in custody and if therefore, P.W.
Rahim Khan identified the appellants to the police as perpetrators of the crime, it is not a case of an accused being shown singly in advance to facilitate his identification later on I am, therefore, of the view that the appellants were even otherwise properly identified by P.W. Rahim Khan at the police station. Be that as it may, for in any event, there is no reason to doubt the identification testimony of P.W. Rahim Khan at the trial."
' In 1985 SCMR 1824, at page 1844, it was held as under:-- ' "There is no hard and fast rule that a delayed parade due to late arrest/discovery of the culprits is always to be rejected. It depends upon a host of circumstances including the type, witnesses and other factors. In this case they had seen the killing. The killers' features were fixed in their memory due to many reasons, some of them have been recorded in the High Court judgment with which we agree on this point."
17. In view of the case-law, the contention of the learned counsel for the appellants that in identification test role of each of the appellant has not been mentioned, therefore, the same may not be believed, is not tenable. The eye witnesses have fully supported the prosecution case.
Moreover, the eyewitnesses have no previous enmity or malice against the accused to involve them in such a heinous offence. The High Court taking lenient view awarded life imprisonment to Ajmal appellant, but, in our considered view the High Court had wrongly held that he did not share common intention for committing the murder of the deceased as he was empty-handed and his case was distinguishable. Ajmal appellant with common intention of committing dacoity entered the departmental store alongwith the co-appellants, as the deceased resisted and tried to take out his revolver from his drawer he caught hold of hint and facilitated his murder at the hands of the coaccused/appellants, who fired shots with their respective weapons at the deceased. Under section 34, P.P.C. He is liable for the consequences committed under section 302, P.P.C. Since he was empty-handed and did not cause any injury to the deceased, the learned High Court rightly modified his sentence, which, in our opinion, is not open to exception. However, the submission of Syed Iftikhar Hussain Gillani, learned Advocate Supreme Court that the sentence of life imprisonment may be modified to the imprisonment already served out by Ajmal appellant, in view of the serious nature of crime and brutal murder of the deceased, is not acceptable. The contention of Mr. Nazir Ahmad Ghazi, learned Advocate Supreme Court that death sentence may be awarded to Ajmal, for the foregoing reasons, is also not tenable. .
18. The Courts below have properly examined; and analysed the evidence keeping in view the principles laid down by this Court for the safe administration of criminal justice. We do not find misreading or illegality in the impugned judgment. Resultantly, all the appeals are without merit and substance which are hereby dismissed and the impugned judgment is maintained.