RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeals Nos.420 of 1995, 436 of 1995 and 468 of, 1995 as well as Criminal Miscellaneous No. 1730/M of 1997, all of which have arisen out of judgment dated 3-7-1995 passed by the learned Judge Special Court No.III (Suppression of Terrorist Activities), Lahore.
2. The case against the accused/ appellants is based on F.I.R. No.35 of 1992 (Exh.P.F/1) registered on 4-2-1992 at Police Station Gawalmandi, Lahore on the statement of Muhammad Tariq complainant. In his statement Exh.P.F., Muhammad Tariq complainant had stated that he was working as Zargar (goldsmith) on Zaildar Road, Ichhra while the shop of his paternal uncle Muhammad Aslam Naeem was in Hangan Wali Street, Sua Bazar, Lahore. On the day of occurrence he i.e. The complainant alongwith his maternal cousin Ijaz Ahmed went to the shop of his paternal uncle around 7-00 p.m. On a scooter. Around 8-30 p.m. His uncle (Muhammad Aslam Naeem) in order to proceed to his house, put the cash in a shopper bag while in the other bag, there were books, etc. And also some cash. He was holding the shopper bag (containing cash) in his hand while the other bag was tied by him with the handle of the scooter. His paternal uncle Muhammad Aslam Naeem and Sheraz Akram alias Goga took their seats on the scooter and left (for the house).
They were going ahead of them while they (the complainant and Ijaz Ahmad P.W.) were following them on their scooter. The complainant and Ijaz Ahmad were to return to Ichhra while his uncle etc. (Muhammad Aslam Naeem and Sheraz Akram) were proceeding to their house situated in Model Town. When they reached in Bansan Wala Bazar, from a white coloured Suzuki car three persons alighted and started firing at his uncle Muhammad Aslam Naeem and Sheraz Akram alias Goga with Kalashnikov and who got injured and fell down. The accused picked up the shopper bag containing cash and drove away towards hospital. His paternal uncle Muhammad Aslam Naeem and Sheraz Akram alias Goga succumbed to the injuries. The Paktel telephone which was hanging around the neck of his uncle was also hit by the fire shots. The dead bodies, scooter and the bag containing books which also contained some cash, were lying at the spot. The complainant was proceeding to the police station to lodge the report when the S.-I. Met him and recorded his statement (Exh.P.F.) and on the basis of which formal F.I.R. Exh.P.F/1 was registered under section 302/34, P.P.C.
3. P.W.25 Muhammad Arif, S.-I. Was posted as Incharge Police Post, Mayo Hospital, Police Station Gawalmandi, Lahore and who on 4-2,1992 was present in Chowk Mayo Hospital on patrolling duty at 8-45 p.m. When Muhammad Tariq complainant lodged complaint Exh.P.F. With him. He i.e. P.W.25 then sent the same i.e. Exh.P.F. To the police station through Sardar Ali, Constable for the registration of the case. Then he accompanied the complainant to the place of occurrence, prepared injuries statements and inquest reports in respect of both the deceased persons. He handed over the dead bodies to Safdar Ali and Haq Nawaz, Constables for the purpose of post-- mortem examination. He inspected the place of occurrence and took some other formal steps in connection with the investigation of the case. He got prepared the site-plan Exh.P.E. And its duplicate Exh.P.E/1 from Imran Bokhari, Draftsman. He continued the investigation till 8-2-1992 when it was transferred to C.I.A., Lahore under the orders of S.S.P., Lahore.
4. P.W.26 is Abdul Rauf Dogar, D.S.P. Crimes Branch to whom investigation was entrusted on 6-2- 1992. After receiving information, he raided and apprehended Muhammad Ishaque and Asif alias Bhola accused from their residences on 12-2-1992 at 11-00 p.m. After recovering fire-arms from both the said accused around 12-05 a.m. Midnight, he formally arrested the said accused in this case. Then he conducted raid to apprehend Adalat Khan accused from Shah Noor Studio and apprehended him from there from the office of Tahir Ali Sheikh accused. On search from the right said pocket of Adalat Khan accused Rs.1,00,000 were recovered. From the front pocket of his shirt purse P.47 was recovered and from the said purse currency notes of the value of Rs.33,585 alongwith visiting cards and chits.
5. On 12-2-1992 Adalat Khan and Asif alias Bhola Jin accused were put to identification parade test by Tariq Mahmood, Magistrate; Muhammad Tariq and Ijaz Ahmed P.Ws. Identified both the said accused during the identification parade. Muhammad Islraque accused While in custody made a disclosure and then led to the recovery of Rs.50,000 concealed in an attache-case. On 24-2-1992 after making a disclosure Adalat Khan accused led to the recovery of the briefcase P.64 lying in Palace Cinema, Sharaqpur Sharif. From inside the briefcase, an amount of Rs:7,50,000 was recovered. On the same day Adalat Khan accused after making disclosure got recovered Suzuki Car No.8758-LOA from outside the shop of Sh. Tahir Ahmed, sweat meat seller. The car was taken into possession vide memo. Exh.P.Z. On 27-3-1992, Khadim Hussain alias Kala accused while in police custody after making a disclosure, led to the recovery of Rs.3,90,000 from his residential room. This witness also made mention of certain other recoveries and also of other formal steps taken by him in connection with the investigation of this case.
6. P.W.24 is Muhammad Sharif, Inspector and who on 11-2-1992 had joined the investigation of this case conducted by Abdul Rauf Dogar, S.P. Cantt., C.I.A. In his statement he also made mention of different steps in connection with the investigation of the case and also of certain recoveries.
7. P.W.1 is Dr. Muhammad Khalid who on 5-2-1992 at 10-10 a.m. Had conducted the post-mortem examination on the dead body of Muhammad Aslam Naeem deceased and had found 20 injuries on his person. In his opinion all the injuries were ante-mortem and had been caused by fire--arm, except injury No.20 which had been caused by blunt means. According to him the cause of death in this case was the result of damage to the vital organs of chest and abdomen and their major blood vessels under injuries Nos. 1 to 8 which had led to the haemorrhage, shock and death. These injuries were sufficient to cause death in the ordinary course of nature. The time that elapsed between injury and death was immediate while the time that elapsed between death and post- mortem examination was 15 to 30 hours. Exh. P.A is the copy of post-mortem report while Exh.P.A/1 and Exh.P.A/2 are the diagrams showing the locale of injuries.
8. P.W.2 is Dr. Maqbool Ahmad who on 5-2-1992 at 12-15 p.m. Had conducted post-mortem examination on the dead body of Sheraz Akram deceased and had found 13 injuries on his person.
In his opinion, all the injuries were ante-mortem and had been caused by fire-arm. The cause of death in this case was damage to the organs of chest and abdomen and their blood vessels under injuries Nos.2, 3, 4 and 13 which led to haemorrhage and shock and which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was within five minutes while the time that elapsed between death and post-mortem examination was 15 to 30 hours. Exh.P.B. Is the carbon copy of the post-mortem report while Exh.P.B/1 and Exh.P.B/2 are the diagrams showing the locale of injuries.
9. The sole eye-witness examined in this case is P.W.23 Muhammad Tariq complainant and who deposed on the same lines as indicated in the F.I.R. He stated that he had lodged the report Exh.P.F.
With Muhammad Arif, Inspector in Mayo Hospital Chowk and thereafter he had proceeded to the place of occurrence alongwith the Investigating Officer and had joined the investigation at the spot. He made mention of different recoveries. He had also identified the dead bodies of the two deceased persons at the time of post-mortem examination. On 12-2-1992 he participated in the identification parade held in Central Jail, Kot Lakhpat. He stated that he identified two culprits namely Muhammad Asif alias Bhola Jin and another. He deposed that the other culprit who was identified by him during the identification parade was not present in the Court. On 12-3---1992 he had again joined the identification parade held in jail. He pointed towards Khadim Hussain accused present in the Court and stated that he had identified him during the identification parade. He further stated that on 19-3-1992 he has joined the investigation of this case alongwith Muhammad Akram Shah P.W. And in their presence, Khadim Hussain alias Kala accused, after making disclosure, led to the recovery of Rs.5,50,000. Placed in a briefcase in the almirah of his godown. On 27-3-1992, he again joined the investigation of this case and Khadim Hussain alias Kala accused in his presence led to the recovery of currency notes/cash of Rs.3,90,000 from his house placed in an almirah in a box. During cross-examination, he however admitted that he had not identified Khadim Hussain accused during the course of identification parade held in jail.
However, he stated that he could not identify him in the identification parade but he had identified him (in the Court) and that he is one of the culprits who had committed this crime.
10. In this case the prosecution had examined 26 P.Ws. In all. After the statement of P.W.26 was recorded, the Prosecutor tendered in evidence report of Chemical Examiner Exh.P.Y.Y. And that of the Serologist Exh.P.Y.Y./A as well as reports of Examiner of Fire-Arms as Exh.P.Z.Z. And Exh.P.Z.Z./A and closed the case for the prosecution.
11. After the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances. Khadim Hussain accused in his statement under section 342, Cr.P.C., in answer to the Questions Nos.7 and 8 relating to the recovery of cash at his instance, denied the said recoveries having been effected at his instance. However, in answer to Question No.10 he claimed the ownership of the currency recovered from him and stated that under pressure the police had recovered the amount of Rs.12,00,000 from his father and brothers and the same was shown to have been recovered at his instance while the remaining amount had been retained by the police.
12. In his statement under section 342, Cr.P.C., Adalat Khan alias Bala alias Safdar in answer to Question No. 12 denied the recovery of cash of Rs.7,50,000 at his instance. However, in answer to Question No. 18, he did not claim the ownership of the currency notes and the prize bonds as Well as other articles recovered at his instance. He stated that the aforesaid currency was found lying scattered at the spot which was kept by the police and later on planted on him and other accused.
Neither Khadim Hussain nor Adalat Khan appellants made statements on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence.
13. After hearing the arguments the learned trial Court convicted and sentenced the accused as under:-- Accused/appellants Asif alias Bhola Jin and Khadim Hussain were convicted under section 302/34, P.P.C. And were sentenced to death on two counts. They were also directed to pay Rs.1,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
Accused/appellants Asif alias Bhola Jin and Khadim Hussain were also convicted under section 392, P.P.C. And were sentenced to 10 years each R.I. And a fine of Rs.50,000 each. In default of payment of fine they were directed to suffer further six months' R. I.
Adalat Khan accused/appellant was convicted under section 412, P.P.C. And was sentenced to life imprisonment and a fine of Rs.50,000.
Muhammad Ishaque accused/appellant was convicted under section 412, P.P.C. And was sentenced to 10 years and a fine of Rs.25,000. In default of fine, he was to suffer further one year R.I.
Tahir Ali Sheikh and Dilawar Khan accused were acquitted of the charge by the trial Court.
14. Aggrieved of the aforesaid judgment, Muhammad Asif alias Bhola Jin and Muhammad Ishaque alias Heera filed a joint appeal (Criminal Appeal No.420 of 1995), Khadim Hussain alias Kala filed a separate appeal (Criminal Appeal No.436 of 1995), Adalat Khan accused has filed Criminal Appeal No.468 of 1995. Ahmad Nadeem etc. Filed Criminal Miscellaneous No. 1730/M of 1997. All these matters are being disposed of through this single judgment.
15. Muhammad Asif alias Bhola Jin accused/appellant died during the pendency of appeal and as such appeal (Criminal Appeal No.420 of 1995) to his extent abated. Muhammad Ishaque alias Heera who was the other appellant in Criminal Appeal No.420 of 1995 was sentenced to 10 years' R.I.
And to payment of fine of Rs.25,000 under section 412, P.P.C. In case of default in payment of fine he was to undergo further R.I. For one year. No one has turned up on his behalf during the hearing of this appeal and it has been stated that he had already undergone the sentence of imprisonment awarded to him. As such Appeal No.420 of 1995 has become in fructuous to the extent of Muhammad Ishaque alias Heera appellant as well. Adalat Khan appellant had been convicted on the charge under section 412, P. P. C. And was sentenced to life imprisonment and a fine of Rs.50,000. He has filed Criminal Appeal No.468 of 1995 against the said judgment.
16. As regards Khadim Hussain alias Kala accused/appellant, he had been convicted under section 302/34, P.P.C. Alongwith Asif alias Bhola Jin accused (since dead) and was also directed to pay an amount of Rs.1,00,000 as compensation to the legal heirs of the deceased. He was also, convicted under section 392, P.P.C. And was sentenced to 10 years' R.I. And to payment of fine of Rs.50,000 and in case of default in the payment of fine he was to suffer further R.I. For six months.
17. The learned counsel for Khadim Hussain appellant has argued that none of the culprits was named specifically in the F.I.R. And that the only eye-witness of the occurrence examined in this case by the prosecution is P.W.23 Muhammad Tariq. He has argued that even according to the prosecution version the allegation against Khadim Hussain alias Kala appellant is not that of firing at the deceased persons and the only allegation against him is that he was driving the white coloured Suzuki car in which the accused had reached the spot and had fired at the deceased persons. He has pointed out that in the course of cross-examination, P.W.23 had admitted that he had not identified Khadim Hussain during the identification parade and the said fact is evident from the proceedings of the identification parade (Exh.P.U.) which were held on 12-3-1992.
18. He has argued that in the F.I.R. Even the description of culprits was not given. He has argued that the occurrence had taken place around 8-30 p.m. When there was load shedding in the concerned area and when there was darkness all around. He has argued that Khadim Hussain was identified by P.W.23 while making statement before the Court during the trial but this type of identification is without any significance. In this respect he has placed reliance on the case Tayyab v. The State reported as 1995 SCM R 412. He has argued that in his statement P.W.23 had leveled the allegation of firing against Khadim Hussain accused/appellant about 3 years and one month after the occurrence. He has argued that P.W.23 Muhammad Tariq has shaken his own credibility as a witness by making a false statement in that respect. He has argued that during the course of investigation the prosecution had attempted to prove the allegation against Khadim Hussain accused/ appellant of retaining in his possession the alleged stolen property and which he had reason to believe to have received during the commission of dacoity. He has argued that a false story has been concocted relating to the recovery of the briefcase Exh.P.33 on 19-3--1992 on the pointation of Khadim Hussain accused and from which an amount of Rs.5,00,000 had been recovered. He has further asserted that an amount of Rs.3,90,000 was planted on Khadim Hussain accused on 27-3-1992 which was allegedly recovered on his pointation from a card board box Exh.P.37. He has argued that the police by applying undue pressure had recovered an amount of Rs.12,00,000 from the father and brothers of Khadim Hussain accused during the course of investigation out of which the aforesaid amount was planted on Khadim Hussain while the remaining amount had been retained by the police. He has argued that the sole statement of P.W.23 which is not corroborated by any other P.W. Is not sufficient to convict Khadim Hussain appellant on the capital charge and that the same is liable to be set aside. He has argued that even the story of recovery of the alleged looted money from Khadim Hussain accused does not inspire confidence and is not sufficient to convict Khadim Hussain on the charge under section 412, P.P.C. He has argued that according to the prosecution story itself Khadim Hussain appellant was driving the Alto Suzuki Car at the time of occurrence and had played no other role during the occurrence and, as such, his conviction on the charge under section 392, P.P.C. As well cannot be legally sustained.
19. The learned counsel for Adalat Khan appellant has argued that there is no evidence on record to the effect that Adalat Khan accused/appellant had played any role, so far as the occurrence was concerned. As such, he was convicted only on the charge under section 412, P.P.C. He has argued that according to the prosecution version, on 18-2-1992, he had got recovered briefcase Exh.P.30 from a steel Paiti in the house of Muhammad Siddique, Driver and had got recovered one bundle of prize bonds of Rs.1,00,000 (Exh.P.14/1-100) and four bundles of currency notes Exh.P.15/1-4 (Rs.4,00,000) and two bundles of currency notes Exh.P.16/1-2 (Rs.50,000). He has argued that according to the prosecution evidence on record Adalat Khan accused/appellant had got recovered another briefcase (Exh.P.64) on 24-2-1992 and from which an amount of Rs.7,50,000 had been recovered. He has argued that the recovery aforesaid was totally false. He has argued that the aforesaid currency notes were found lying scattered at the spot and the said amount was collected by the police and was later planted on Adalat Khan appellant and his other co -- accused. He has also argued that the prosecution story regarding the recovery of Rs.1,33,585 from Adalat Khan accused at the time of his arrest on 11-2-1992 was also fake as the same was not corroborated by any independent witness. He has argued that Adalat Khan accused/appellant had been apprehended in this case at the instance of the then Federal Interior Minister as the family of Adalat Khan appellant had supported his opponent (during the elections). He has argued that there is not sufficient evidence on record to warrant conviction of Adalat Khan accused/appellant on the charge under section 412, P.P.C. And which is liable to be set aside.
20. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant, has supported the judgment of the learned trial Court.
21. We have carefully considered the arguments. It may be again mentioned here that vide the impugned judgment Tahir Ali and Dilawar Khan accused had been acquitted and only Asif alias Bhola Jin and Khadim Hussain appellants were convicted under section 302/34, P.P.C. And also on the charge under section 392, P.P.C. According to the prosecution story Khadim Hussain appellant was driving Alto Suzuki Car in which the accused had reached the place of occurrence. Initially there was no allegation against him of firing at the deceased persons. However, while appearing in the Court the complainant namely Muhammad Tariq Mahmood P.W.23 who is the only eye-witness examined in this case stated that on 12-2-1992 he had identified Muhammad Asif alias Bhola Jin and another accused during the identification parade, He stated that on 12-3-1992 he had again joined the identification parade in jail and had identified an accused. While making the said statement he pointed towards Khadim Hussain accused who was then present in the Court.
However, during cross-examination, he admitted that he had not identified Khadim Hussain accuses in the course of identification parade held in jail. The prosecution has not examined in this case the other eye-witness i.e. Ijaz who was given up for being out of the country. The only available eye-witness i.e. P.W.23 did not identify Khadim Hussain during the identification parade.
As such, it can be said that there is hardly any evidence on record to connect Khadim Hussain accused/appellant with the charge under section 302/34, P.P.C. Or the charge under section 392, P.P.C.
However, there is sufficient evidence on record to connect Khadim Hussain accused/appellant with the offence punishable under section 412, P.P.C. Same is the position of Adalat Khan accused/appellant. According to P.W.24 Muhammad Sharif, Inspector, on 11-2-1992, in his presence, on personal search of Adalat Khan, after his arrest from Shah Noor Studio, one purse P.47 was recovered from his front pocket and which contained currency notes of Rs.1,33,585 and the same were taken into possession by the D.S.P. Vide memo. Exh.P.D.D. It was also stated by P.W.24 Muhammad Sharif, Inspector that on 18-2-1992 Adalat Khan accused while he was on physical remand, led to the house of Muhammad Siddique Tanga driver and pointed out a room where a Jisti Petti was lying and after his pointation the lock of the said Petti was broken and on the pointation of Adalat Khan accused briefcase P.30 was recovered and from the same a bundle of prize bonds of Rs.1,00,000, four bundles of currency notes of the denomination of Rs.1,000 each (a total amount of Rs.4,00,000) were recovered. All the said articles i.e. Prize bonds and currency notes and also the plastic shopper bag of black colour were taken into custody by the Investigating Officer vide memo. Exh.P.G. According to P.W.24, on 13-3-1992 Khadim Hussain alias Kala accused while in custody made, a disclosure and then led to the recovery of Rs.5,55,000 concealed in an almirah in a briefcase from his godown situated in Al-Qaiser Market, Badami Bagh, Lahore. The said amount alongwith two shirts etc. Were taken into possession by the Investigating Officer vide memo. Exh.P.A.A. .P.W.6 Abdul Rauf Dogar, D.S.P. Also deposed about the case as well as the articles recovered from the possession of Adalat Khan accused which were taken into possession by him vide memo. Exh.P.D.D. According to P.W.6, Khadim Hussain alias Kala accused was arrested by him on 23-2-1992. He alsostated that on 24-2-1992, Adalat Khan accused led to the recovery of one briefcase P.64 lying in Palace Cinema, Shamqpur Sharif and from where the accused got recovered a briefcase concealed under a cot. After the lock of the briefcase was opened, an amount of Rs.7,50,000 was recovered therefrom. All the said amount and cash were taken into possession by the Investigating Officer vide memo. Exh.P.Y. On 27-3-1992, Khadim Hussain alias Kala accused after making a disclosure led to the recovery of Rs.3,90,000 from his residential room.
The said amount/currency notes alongwith a shoe box P.37 were taken into possession by the Investigating Officer vide memo. Exh.P.B.B.
22. It is on record that a huge amount out of the alleged stolen/looted cash had been got recovered by Khadim Hussain alias Kala and Adalat Khan accused/appellants. Keeping in view the huge quantity of the amount recovered from the said accused persons, it can be said that the aforesaid amount could not be falsely planted on the accused merely .In order to implicate them in this case. The Investigating Officer could not have the means to spare such a huge amount in order to plant the same on the accused.
23. In view of what has been stated above, it is clear that although the charges under sections 302 and 392 are not proved against Adalat Khan and Khadim Hussain accused/appellants beyond reasonable doubt, yet it is proved on record beyond reasonable doubt that they had dishonestly received and kept in their possession a huge amount stolen in the commission of a dacoity. It cannot be expected that a victim will keep with him the numbers of currency notes which were snatched from him. The objection of the learned counsel for the appellants in that respect is unfounded. There is overwhelming evidence on reword connecting Khadim Hussain alias Kala and Adalat Khan accused with the offence under section 412, P.P.C, and they are clearly liable for conviction and sentence for the said offence.
24. Now we come to the petition field by Ahmad Nadeem etc. i.e. Criminal Miscellaneous No.1730/M of 1997. The petition was filed by them to the effect that Muhammad Aslam Naeem deceased was father of petitioners Nos. 1 and 2 i.e. Ahmed Nadeem and Tabbasum Naeem and husband of Munawar Sultana petitioner No.3 while Sheraz Akram deceased was the nephew of Muhammad Aslam Naeem deceased. It was stated in the application that the appeals filed by the convicts are pending in this Court against the judgment of the learned trial Court dated 3-7-1995. It was further averred that Muhammad Aslam Naseem deceased was the only earning member of the family and whole of his earnings have been blocked in the case since 4-2-1992 i.e. The day of occurrence and which is resulting in hardship to the family. During the trial, Adalat Khan convict had not claimed the ownership of currency notes recovered from him and subsequently he had sworn an affidavit dated 27-5-1997 reiterating that he had not claimed the ownership of the amount of Rs.14,83,585 which was recovered by the police from him. Similarly respondents Nos.2, 3 and 4 had also sworn similar affidavit. It was prayed that the currency notes and prize bonds etc. May be ordered to be returned to the petitioners.
25. This Court had passed an order on the petition on 3-8-2002. Now, when these appeals are being disposed of through this judgment, the legal heirs of the, deceased persons will obviously receive the alleged stolen property belonging to the deceased persons. While disposing of the main case, the learned trial Court had also issued a direction in that respect and the same is contained in the judgment dated 3-7-1995, With the aforesaid observation this criminal miscellaneous petition of Ahmed Nadeem etc. Is disposed of.
26. In view of that has been discussed above, the appeal filed by Adalat Khan appellant (Criminal Appeal No.468 of 1995) is dismissed and his conviction under section 412, P.P.C. As well as the sentence awarded to him by the learned trial Court is upheld.
27. So far as Khadim Hussain alias Kala appellant is concerned, his conviction on the charge under sections 302/34 and 392, P.P.C. Is set aside but in view of the circumstances mentioned above, he is convicted under section 412, P.P.C. And is sentenced to life imprisonment and a fine of Rs.50,000. In case of default in payment of fine, he will have to undergo further R.I. For two years. Criminal Appeal No.436 of 1995 is dismissed with the aforesaid modification. Sentence of death awarded to Khadim Hussain alias Kala accused is not confirmed.
28. As regards Criminal Appeal No.420 of 1995, it has already been mentioned above that one of the appellants namely Muhammad Asif alias Bhola Jin has died and the appeal to his extent has already abated while Muhammad Ishaque appellant No.2 appears to have undergone the sentence of imprisonment awarded to him in this case. As such, Criminal Appeal No.420 of 1995 has become in fructuous to the extent of Muhammad Ishaque, appellant No.2 as well.