1. Criminal Appeal No. 107 of 1997 BASHIR A. MUJAHID, J.- Muhammad Abdullah son of Muhammad Noor and Zafar Iqbal and Muhammad Khan have challenged judgment dated 30.6.1997 passed by learned Addl, Sessions Judge, Talagang whereby they were convicted under Section 30V34, PPC for committing murder of Muhammad Shafiq. Muhammad Abdullah was sentenced to death while Zafar Iqbal was sentenced to imprisonment for life. They were also ordered to pay compensation of Rs. 100,000/- each under Section 544-A, Cr.P.C to the legal heirs of the deceased, failing which they had to undergo six months' S.I. Zafar Iqbal was extended benefit of Section 382- B, Cr.P.C.
2. The brief facts of the prosecution case are that F.I.R. No. 91 Ex. PG was got recorded by Allah Ditta, PW-7 at P.S. Lawa, District Chakwai at 10 a.m. On 18.10.1994 alleging therein that during the night 17/18.10.1994 he was sleeping in his house along with his wife and children. His son Shafiq (deceased) was sleeping in a separate room, ln the morning before leaving the house he went to the room of Shafiq to ask him to offer his Fajr prayers but he was not present. He thought that Shafiq might had gone to offer prayers or to ease himself. He got worried. Thereafter, he learned that a dead- body was lying in 'Nala Dhudhar', on which, he along with Noor Muhammad, PW-3 and Muhammad Din-went to said Nala and found the dead-body of Shafiq lying with i.e-arm injuries on different parts of his body. F.I.R, was recorded on the written application of Allah Ditta PW-7 by Muhammad Safdar, PW-10.
3. Muhammad Safdar, AS1 PW-10 after registration of case arrived at the place of occurrence, took the dead-body into possession and prepared the injury statement through memo. Ex.PC and inquest report Ex.PE and despatched the dead- body for post-mortem examination through Abdul Qadoos, FC PW-2 and he secured blood-stained earth and bloodstained stone from the place of occurrence through memo. Ex.PI and Ex.PH respectively. He also took into possession a magazine of pistol 30-bore and two live cartridges P7/1 -2 and pistol 30-bore through memo. Ex.P] from the spot. He also recorded the supplementary statement of the complainant of statements of the prosecution witnesses under Section 161, The ocular account was furnished by Allah Ditta, PW-7. He supported the version of the F.I.R. He also attested the recovery memo. Ex.PI and Ex.P). He stated that upon his return from the Police Station his son Muhammad Drees, PW- 6 told him that Zafar Iqbal took away Muhammad Shafiq, deceased about mid night and he got the supplementary statement recorded with the I.O. At the spot. Noor Muhammad, PW-3 identified the dead-body at the time of post-mortem examination.
4. Muhammad Drees, PW-6 was real brother of the deceased and son of the complainant. He stated that during the night between 17/18.10.1994 he was sleeping in a room of his paternal grand-mother as she had gone to village Dharal to see her relative. At mid night he heard somebody is talking with Muhammad Shaiq, on which he peeped through the window and saw Zafar iqbal asking his brother to accompany him in connection with some work and Shafiq, deceased went with him. His statement was recorded by the police at the spot and he also informed his father about last seen of deceased in the company of Zafar Iqbal accused. Rai Javed Ahmad,"Resident Magistrate PW-8 had recorded the confessional statement Ex.PK of Muhammad Abdullah accused under Section 164, Cr.P.C, produced before him by Raja Munawar, DSP. He proved the said statement got recorded in his presence and proved that statement was in his had-writing and signed by him. Muhammad Anayat, PW-9 was Moharrar of P.S. Lawa and kept the sealed parcel in safe custody of police maalkhana. Muhammad Safdar, PW-10 and Raja Munawar Hussain, DSP PW-11 had investigated the case as discussed above.
5. The prosecution evidence was closed by tendering in evidence report of Serologist Ex.PM and that of Chemical Examiner Ex.PN.
6. The statement of the accused were recorded under Section 342, Cr.P.C. They denied the allegations and claimed their innocence and . False involvement. Muhammad Abdullah in reply to question No. 11 stated as under:-- Lahore. Muhammad Rafiq, HC/PW-4 kept the sealed parcels in safe custody at Malkhana and entrusted those parcels to Muhammad Ashraf, FC. Tariq Mehmood, FC handed over the parcels of incriminating articles to Muhammad Ashraf, FC for delivery at the office of F.S.L. Ghulam Muhammad, FC PW-6 attested the recovery memo. Ex.PE whereby last worn clothes of the deceased were taken Into possession by the I.O. Muhammad Altaf, FC PW-7 also attested the recovery memo. Ex.PF whereby pistol P6 was taken into possession by the 1.0. Umar Hayat, FC/PW-8 and Muhammad Altaf, FC attested the recovery memo. Ex.PF whereby pistol P6 was taken Into possession. Muhammad Saleem Rashed, appeared as PW-9 who was posted as C.M.O, in Rural Health Centre, Rawalpindi and gave his opinion about physical condition of Muhammad Yaqoob on the application Ex. PG moved by the I.O. Whether he was fit to make the statement. Muhammad Sharif, Draftsman/PW-11 had prepared the site plan. Ahmad Khan son of Hashim, PW-13 identified the dead-body of Ahmad Khan, deceased at the time of post-mortem examination. Muhammad Iqbal, PW-14 attested the recovery memos, of incriminating articles taken into possession from the spot by the 1.0, Muhammad Nadeem Akjhtar, MIC/PW-15 supervised the identification parade held on 7.2,2000 wherein Iftikhar Hussain and Muhammad Younas accused were identified by Muhammad Bashir, PW-10 and Muhammad Shoaib, PW-17 by stating that they were not present inside the house along with their co-accused at the time of commission of instant crime. Nasrullah Ranjha, PW-18 had supervised the identification parade while he was posted as Senior Civil Judge/Magistrate Section 30, Chakwal on 26.4.2000 wherein Khaliq Dad and Niaz Muhammad, accused/appellants were identified by Ghulam Roqia, PW-12, Muhammad Yaqoob, PW16 and Muhammad Shoaib, PW17. Arshad Mehmood, FC PW-20 delivered the sealed parcels at the office of F.S.L. Dismissed, FC PW-21 handed over the sealed parcels at the Police Station for keeping it in police maalkhana on 19.8.2000.
7. The prosecution evidence was closed by tendering in evidence report of Forensic Science Laboratory Ex.PAA and that of Chemical Examiner Expiable.
8. The statements of the accused were recorded under Section 342, Cr.P;Cr They denied the allegations and claimed their innocence and false involvement.
9. The trial culminated into conviction of the appellants as mentioned above. Khaliq Dad and Niaz Muhammad alias Chacha appellants have filed Crl. Appeal No. 456-T/2001 while Iftikhar Hussain and Muhammad Younas appellants have filed Crl. Appeal No. 438-T/2001 against their conviction and sentence. Muhammad Shoaib, complainant has filed Cri. Revision No. 188/2001 titled Muhammad Shoaib Vs. Iftikhar Hussain, etc. For enhancement of sentence. The, Trial Court has sent up Murder Reference No. 19/2002 for confirmation of death sentence of Khaliq Dad and Niaz. As all the matters are outcome of the same impugned judgments are being decided by this single judgment. learned counsel for the appellants has argued that against Iftikhar Hussain and Muhammad Younas were only witnessed by Muhammad Bashir, PW-10 who claimed that he had seen the appellants outside the house of the complainant and of the deceased at the time of commission of instant crime and subsequently he identified both of them during the identification parade conducted on 7.2.2000 in jail under the supervision Muhammad Nadeem Akhtar, MIC/PW-15 and they have not actively participated in the occurrence and said Muhammad Bashir has not given any description about these appellants and how he identified them and that the Trial Court has relied upon the police diary, therefore, - the conviction of both the appellants is not legal. learned counsel for Khaliq Dad and Niaz appellants has argued that the fatal injury caused to Ahmad Khan, deceased was attributed to Nazir who was murdered in police encounter and Khaliq Dad and Niaz Muhammad appellants have been attributed injuries to Muhammad Yaqoob, PW-16 and Ghulam Roqia, PW-12. They have been convicted under Section 337-A, PPC separately for the injuries. They have not caused any injury to the deceased the recovery of the alleged looted property has not been effected from them, therefore, the conviction recorded against them by the Trial Court is not sustainable under the law.
10. Conversely, the appeals have been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. learned counsel for the complainant has prayed for enhancement of sentence of Iftikhar Hussain and Muhammad Younas.
11. Heard. Record perused.
12. Iftikhar Hussain and Muhammad Younas, admittedly, did not enter into the house of the deceased.
13. They have not be*n identified by the complainant and the eye-witnesses in the identification parade. They have only been implicated by Muhammad Bashir, PW-10 in his statement under Section 161, Cr.P.C. He stated that he saw them in front of the house of the deceased/complainant.
14. He had not given any description/features of the accused. As per his own statement he went away after seeing two persons standing along with motor-cycle parked nearby. The learned Trial Court has placed reliance on involvement of Iftikhar Hussain accused in previous cases to convict him in the instant case without confronting the accused about his previous history. The statement of Muhammad Bashir, PW-10 has- not been corroborated from any other independent source for involvement of Iftikhar Hussain and Muhammad Younas, appellants, therefore, their identification, by Muhammad Bashir, PW-10 has got no value in the eye of law and their conviction based on his sole statement and police diaries, is not legal, therefore, they cannot be held vicariously liable for causing murder of Ahmad Khan by their co-accused. Resultantly, their Crl. Appeal No. 438-T/2001 is allowed and they are acquitted of the charge. If they are not required to be detained in jail in any other case, they be set at liberty forthwith.
15. As far as case of Khaliq Dad and Niaz Muhammad is concerned, they actively participated in the commission of crime. Ghulam Roqia PW^12 received three injuries at the hands of Khaliq Dad while Muhammad Yaqoob was fired at by Niaz Muhammad, appellant. Their participation in the commission of crime has also been fully corroborated by medical evidence. They were identified by the complainant Muhammad Shoaib, PW 17 and Muhammad Yaqoob, PW-16 and Ghulam Roqia, PW-12 during the identification parade conducted under the supervision of Nasrullah Ranjha, MIC/PW-18 after observing all the legal formalities. These witnesses have no enmity for their false implication by letting OF the real culprits. All the three witnesses stood to the test of lengthy cross- examination but nothing was brought on record to discard their testimony. They were inmates of the house and their presence at the spot cannot be doubted particularly Muhammad Yaqoob, PW- 16 and Ghulam Roqia, PW-12 were injured in the same occurrence. The appellants were identified by the role played by each of the accused, therefore, the prosecution has successfully proved its case against the appellants beyond any shadow of doubt and we do not find any ground to interfere in the conviction recorded against both the appellants.
16. As far as the sentence is concerned, the fatal injury caused to Ahmad Khan, deceased was attributed to tyazir, co-accused who was murdered in police encounter. The alleged looted articles were not recovered from their possession, therefore, while maintaining the conviction recorded against them, we reduce the sentence under Section 396, PPC from death to imprisonment for life which will meet the ends of justice. However, sentence of compensation or in default thereof and other sentences are maintained. All the sentences shall run concurrently and the benefit of Section 382-B, Cr.P.C, will also be available to the appellants. The death sentence of Khaliq Dad and Niaz Muhammad is not confirmed. Crl. Appeal No. 456-T/2001 is dismissed with the above modification.
17. Crl. Revision No. 188/2001 filed by the complainant is also dismissed having no force.
18. Murder Reference is answered in the negative.