RAHMAT HUSSAIN JAFFERI,J.--- This judgment will dispose of Special 'Anti-Terrorism Appeals Nos.15 and 22 of 2001 and Confirmation Case No,3 of 2001 as they arise from a common judgment.
2. The Appeals have been directed against the judgment dated 1-3-2001. Passed by Anti-Terrorism Court No,III, Karachi, in (i) Special Case No,3 of 2001 (The State v. Jamal Khan and others), arising out of F.I.R., No,293 of 2000, under sections 392/397/34/109, P.P.C. Of Police Station Orangi Town, Karachi, (ii) Special Case No,199 of 2000 (The State v. Jamal Khan and another), arising out of F.I.R.
No,250 of 2000, under sections 353/392/397/324/302/34, P.P.C. Read with section 7-A of the Anti- Terrorism Act, 1997 (ATA), of Peerabad Police Station, (iii) Special Case No,200 of 2000 (The State v.
Fazal Muhammad), arising out of F.I.R. No,251 of 2000, under section 13-D of the Pakistan Arms Ordinance, 1965 of Peerabad Police Station, Karachi, (iv) Special Case No,201 of 2000 (The State v.
Jamal Khan), arising out of F.I.R. No,252 of 2000, under section 13-D of the Pakistan Arms Ordinance, 1965 (hereinafter referred to as Ordinance 1965) of Peerabad Police Station, Karachi. (v) Special Case No,4 of 2001, (The State v. Islam Saeed) arising out of F.I.R. No,260 of 2000 under sections 353/324/34, P.P.C. Of Saeedabad Police Station, Karachi, and (vi) Special Case No,5 of 2001 (The State v. Islam Saeed). Arising out of F.I.R. No,261 of 2000, under section 13-D of Ordinance, 1965 of Peerabad Police Station, Karachi, by which the learned Judge had convicted and sentenced the appellants in the following manner:--
(a) Convicted the appellant Jamal Khan under section 396, P.P.C. Read with section 302, P.P.C. And sentenced him to death and a fine of Rs,175,000. In case of default in payment of tine he was directed to suffer R.I. For two years and in case of recovery of fine, it should be paid to the legal heirs of the deceased under section 544-A, Cr. P.0 .
(b) Convicted the appellant Fazal Muhammad under section 396 read with section 302. P.P.C. And sentenced him to imprisonment for life and a tine of Rs,175,000. In case of default in payment of fine he was directed to suffer R.I. For two years and in case of recovery of tine, it should be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
(c) Convicted the appellant Jamal Khan under section 392, P.P.C. And sentenced him to suffer R.I.
For 10 years and a tine of Rs,50.000 or in default to undergo R.I. For one year.
(d) Convicted the appellant Jamal Khan, Fazal Muhammad and co-accused Islam Saeed under section 13-D of Ordinance, 1965, and sentenced them to suffer R.I. For 7 years and fine of Rs,50,000 each or in default to undergo R.I. For one year.
(e) Convicted the appellants under section 353, P.P.C. And sentenced them to suffer R.I. For 2 years and a fine of Rs,10,000 each or in default to undergo R.I. For 6 months.
(t) The benefit of section 382-B, Cr. P.C. Was extended to them
3. The facts giving rise to the present Appeals and confirmation case are that on 14-11-2000 at about 12-35 noon the complainant Muhammad Rustam Khan of F.I.R. No,293 of 2000 of Orangi Town Police Station encashed his cheque of Rs,15,000 from Habib Bank Limited, Aligarh Branch, Karachi and was going back to his house in Mashallah Coach. At about 12-50 noon when the coach reached at Chowrangi of Sector 8/1/2 near Allahwala College four persons sitting in the coach stood up and took out their pistols and asked the driver to reduce the speed of-the coach.
Out of the four culprits one went and stood near the drivel whereas the remaining three persons started snatching money from the passengers. The complainant was deprived of Rs,15,000 and his service card of Pakistan Steel Mill., The coach covered some distance and thereafter the culprits left the coach. The complainant also got down from the coach and started raising cries of dacoits dacoits. Out of the four culprits, two ran towards Sector 8-1/2 whereas the remaining two ran towards Qatar Hospital. The complainant alongwith several other persons followed the culprits, who went towards Qatar Hospital. When the culprits reached near Qadhafi Chowk they got stopped a water tanker and boarded on it thereafter they went towards Qasba More side. The- police personnel present at Qadhafi Police Check Post followed the culprits. From there the complainant went to Police Station Orangi Town for lodging the report which he did at about 1-55 p.m. Being F.I.R. No,3 of 2001.
4. At the Qadhafi Police Check Post two police constables namely Muhammad Saeed and Shamim Ahmed, were present. The people informed them that the dacoits were going in a water tanker; therefore, they followed them on two motor-cycles of passersby. The motor-cycle of P.C.
Muhammad Saeed developed some defect, therefore, he was stopped near Qasba More but P.C.
Shahmim Ahmed followed the water tanker. P.C. Muhammad Saeed also followed him but when he reached near Caltex Petrol Pump he saw the water tanker was stopped and two persons, who were later on found to be the present appellants, got down from it. Thereafter, one of the said persons later on found to be appellant Jamal Khan fired from his weapon at P.C. Shamim Ahmed. Who after receiving injuries on his body fell down on the ground. The appellant Jamal Khan snatched the S.M.G. Rifle from P.C. Shamim Ahmad and handed over his pistol to his accomplice later on found to be Fazal Muhammad. In the meantime P.C. Muhammad Saeed fired at the appellants. The appellants also fired at P.C. Muhammad Saeed and they started running towards Qasba Colony.
Thereafter, two vehicles of Rapid Police Force 15 arrived there, on which the police party alongwtih P.C. Saeed followed the appellants but they went towards Hills of Qasba Colony Thereafter, there was exchange of tire-arms shots between the police and the appellants and then they went inside the graveyard. From the firing of the appellants one passerby child Afsar aged about 10 years sustained injuries.
The culprits then hid themselves in the graveyard; therefore, the police surrounded the said place and then apprehended them. On inquiries they disclosed their names as Jamal Khan and Fazal Muhammad (the present appellants). The appellant Jamal Khan was. Having SMG Rifle of the deceased P,C. Shamim Ahmed. Which was secure. By A.S.-I. Azhar Mehmood and A.S.-I. Abdul Majeed secured a .30 bore unlicensed pistol from the possession of Fazal Muhammad. From the search of the appellant Jamal Khan Rs,1.150 and from the search of the appellant Fazal Muhammad Rs,1,200 were secured. Thereafter, both the appellants were arrested and such memo.
Was prepared. The appellants and the properties were taken to the police station where P.C.
Muhammad Saeed lodged the report being F.I.R. No,250 of 2000 against both the appellants whereas A.S.-I. Abdul Majeed lodged the report being F.I.R. No,252 of 2000 under section 13-D of the Ordinance, 1965. Against the appellant Fazal Muhammad and A.S.-L Azhar Mehmood lodged the report being F.I.R No,252 of 2000 under section 13-D of the Ordinance, 1965 against the appellant Jamal Khan. In the mean time the injured P.C. Shamim was taken to the hospital where he succumbed to the injuries.
5. During the interrogation of S.H.O. Sohail Axiitar of Saeedabad Police Station in connection with F.I.R. No,293 .Of 2000 of his police station, the appellants led them near Bilal Coach Stand, Gulshan- e-Ghazi, Saeedabad. Karachi, where encounter took place in which two persons received injuries.
They were apprehended at the spot. On enquiries they disclosed their names as Islam Saeed and Amjad. From their personal search T.T Pistols were secured. A Pakistan Steel Mill service card of Muhammad Rustam was also secured from Islam Saeed. Both the said culprits were sent to hospital where Amjad succumbed to the injuries. The S.H.O. Sohail Akhtar lodged the reports being F.I.R No,260 of 2000 at Saeedabad Police Station against Islam Saeed and Amjad and F.I.R. No,261 of 2000 under section 13-D of Ordinance. 1965 against Islam Saeed.
6. The police after usual investigation by recording the statements of witnesses, securing empty cartridges of weapons used at the place of murder, obtaining post-mortem report of the deceased, sending the secured weapons and empties to ballistic expert, etc. Submitted six challans arising out of above mentioned F.I.Rs, of Police Station Saeedabad and Peerabad, Karachi, before the Administrative Judge, Anti-Terrorism Courts, Karachi, from where the cases were assigned to the Anti-Terrorism Court No,III, Karachi, for disposal according to law. All the above cases were consolidated with each other: therefore, a common charge was framed against the appellants and Islam Saeed under sections 302, 324, 353, 392, 396, 397 and 109, P.P.C. Read with section 6-D of A.T.A.. 1997 and 13-D of Ordinance, 1965 to which they pleaded not guilty.
7. The prosecution examined fourteen witnesses namely, P.W.1Muhammad Rustam Khan (complainant of F.I.R. No,293 of 2000 and eyewitness of robbery), P.W.2 P.C. Muhammad Saeed Khan (complainant of F.I.R No,250 of 200() and eye-witness of murder), P.W.3 Muhammad Asif (eye-witness of murder, Mashir of Wardat and recovery of empties), P.W.4 A.S.-I. Azhar Mehmood (complainant of F.I.R No,252/00and eye-witness of chasing the appellants), P.W.5 S.I.P. Abdul Majeed (Complainant of F.I.R. No,251/00 and eye-witness of chasing the appellants) P.W.6 A,.S.I.P.
Sikandar Khan (1.0., and prepared memo. Of inquest report), P.W.7 Inayatullah, (Judicial Magistrate who recorded judicial confession of appellant Jamal Khan), P.W.8 Dr.Abdul Shakoor (MLO Abbasi Shaheed Hospital, who conducted post-mortem of the deceased), P.W.9 A.S.I Ali Asghar Tarar (Mashir of arrest of the appellants and recovery), P.W.10 P.C. Suhail Akhter (Mashir), P.W.11 P.C. Abdul Salam (Mashir) of arrest of Islam Saeed), P.W.12 S.I.P. Suhail Akhtar Sulheri (Mashir of third incident), P.W.13 S.-I. Muhammad Ishaque (Mashir and I.O. Of Crime No,293/00), P.W.14 Inspector Muhammad Safdar (Mashir and I.O. Of murder case) and P.W.15 Ghazan Zaden (1.0. Of third incident).
8. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Jamal Khan admitted that his confessional statement was recorded by the Judicial Magistrate No,II, Karachi (West) but it was given under the pressure of police officials. He claimed that he was innocent. The appellant Fazal Muhammad in his further statement claimed that he was suffering from mental ailment. He stated that on 14-11-2000 he left the house of his uncle after taking medicine, therefore, he was in semi-conscious condition and went to Qasba More to see his friend where the incident took place. Due to firing the people were running here and there. He also started running but the police apprehended him and then involved him in this case. He further stated that before identification test the witness Muhammad Rustam Khan saw him but did not identify him at the Police Station Peerabad. The appellant Jamal Khan examined himself on oath and deposed that he had not committed the present offence but had been implicated falsely. Appellant Fazal Muhammad did not examine himself on oath. Both the appellants did not examine any witness in their defence.
9. After considering the material available on the record the trial Court convicted the appellants as mentioned above. The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeals. As the trial Court had awarded death sentence to the appellant Jamal Khan, therefore, a reference under section 374, Cr.P.C. Has been sent to this Court for confirmation of death sentence. The learned Advocate for the appellant Fazal Muhammad, has argued that on the point of robbery the main witness Muhammad Rustam Khan has not implicated him: that no identification parade was held through P.W. Muhammad Asif who saw the appellant at the incident of murder; that there was no common intention between the appellant Fazal Muhammad and the appellant Jamal Khan in committing the murder of the deceased P.C. Shamim Ahmed; that there are material contradictions in respect of recovery of pistol from the possession of the appellant, therefore, no case has been made out against him.
11. Learned counsel for appellant Jamal Khan has argued that the judicial confession of the appellant is retracted by him which, is also not corroborated by any piece of evidence, available on the record, therefore, it is unreliable. He has further stated that there are material contradictions in the evidence of witnesses, and that the case against the appellant is not proved, therefore, he is entitled for the benefit of doubt.
12. On the legal aspect. The Advocates for the appellants have argued that the sentences awarded under section 396, P.P.0 is illegal because section 396, P.P.0 will be applicable when the number of offenders is five or more but in the present case the number of the accused is four.
13. On the other hand, the learned A.A.-G. Has stated that the incident of robbery has been supported and corroborated by Muhammad Rustam from whom the appellants had snatched Rs,15,000 and appellant Jamal Khan was seen at the police station by the complainant just after the incident, who was identified by him to be one of the culprits but did not identify the appellant Fazal Muhammad. He has further argued that the evidence of complainant and other witnesses show that just after the commission of the robbery two appellants boarded a water-tanker which was intercepted by the deceased P.C. Shamim Ahmed and then the appellant Jamal Khan had tired at the deceased and ran towards hill side alongwith appellant Fazal Muhammad after snatching the SMG rifle of P.C. Shamim and handing over his pistol to appellant Fazal Muhammad, who were subsequently apprehended by the police and T.T. Pistol was secured from the possession of the appellant Fazal Muhammad and S.M.G. Rifle of deceased Shamim Ahmed was secured from the appellant Jamal Khan. All these pieces of evidence if collected together would lead to the conclusion that appellant Fazal Muhammad was also involved in the robbery and subsequently murder of the deceased Shamim Ahmed. Recovery of pistol from his possession and S.M.G. Rifle of the deceased PC Shamim Ahmed from the possession of appellant Jamal Khan. He has further argued that judicial confession of the appellant Jamal Khan has been supported and corroborated by other pieces of evidence available on the record and the judicial confession was voluntarily recorded which is true, therefore, it is sufficient to convict the appellants. He has conceded that section 396, P.P.C. Is not applicable in the present circumstances of the case as there were only four culprits who had committed the robbery and subsequently murder was committed, therefore, the convictions under section 396, P.P.C. Is illegal but the appellants can be convicted under section 302(b), P.P.C. He has supported the impugned judgment with regard to the other convictions.
14. We have given due consideration to the arguments and have gone through the evidence available on the record with the help of learned Advocates for the appellants and the A.A.-G.
15. In this case, for the purpose of the present appeals, two incidents had occurred; first, incident of robbery and then incident of murder and subsequently apprehension of the appellants and recovery of pistol and S.M.G. Rifle from their possession.
16. On the point of robbery the prosecution examined P.W.1 Muhammad Rustam. His evidence shows that after encashing a cheque Rs,15,000 from the Bank he boarded Mashallah Coach for going to his house at about 12-50 a.m When the coach reached at the Chowrangi of Sector 8-1/2 near Allahwala College four persons who were sitting in the vehicle coach stood up. Out of them one controlled the driver, the second snatched Rs,15,000 from him on gun-point, third stood at the gate of'the coach and the fourth one started taking money from other passengers. Thereafter, the culprits left the coach and started running but the complainant and other persons raised cries on which two culprits ran towards Orangi Town whereas the remaining culprits started running towards Qatar Hospital, who were followed by them. After covering some distance they found two police officials performing their duties at the police picket. He informed the incident to them who followed the culprits and from there he went to the police station for lodging the report. While he was present at the police station he saw two culprits brought by the police, out of them he identified one of them to be the appellant Jamal Khan, who snatched the money from him but he could not identify the second culprit. His evidence is further supported by P.W.2 P.C. Muhammad Saeed and P.W.3 Muhammad Asif.
17. The evidence of P.W.2 P.C. Muhammad Saeed reveals that he alongwith deceased P.C. Shamim Ahmed were performing their duties at police picket when they were informed that two dacoits were going on a water-tanker, therefore, P.C. Shamim Ahmed immediately took lift from a motorcyclist and proceeded towards the direction where the water-tanker was going. He followed them on another motorcycle after taking lift but his motorcycle went out of order then he started going towards that direction but he saw P.C. Shamim Ahmed got stopped the said water-tanker and pointed his S.M.G. Towards the culprits but one of the culprits namely Jamal Khan (appellant) tired from his pistol at P.C. Shamim Ahmed and then appellant Jamal Khan snatched S.M.G. Rifle from him and gave his pistol to his companion, who was subsequently apprehended and identified as appellant Fazal Muhammad and then the appellants started running towards mountain side. He tired at the appellants but they also retaliated by firing from the S.M.G. Rifle of P.C. Shamim Ahmed and pistol. In the meantime two Rapid Police Mobiles came there. He informed the incident to them and they followed the appellants but they went towards hillside. They chased them but the appelants took shelter in the graveyard which was surrounded and subsequently both the appellants were apprehended from there. S.I.P. Azhar Mehmood secured S.M.G. Rifle of the deceased P.C. Shamim Ahmed-from the appellant Jamal Khan whereas unlicensed pistol was secured from the possession of the appellant Fazal Muhammad. From the personal search Rs,1,550 and Rs,1,200 were secured from the possession of the appellants Jamal Khan and Fazal Muhammad respectively. The S.M.G. Rifle was checked, which contained ten live bullets wereas pistol contained two live bullets. The Mashirnama of arrest and recovery was prepared which was signed by him. The weapons were sealed at the spot. The appellants and the properties were taken to the Police Station Peerabad where F.I.Rs, were lodged. Subsequently, the place of incident of murder was seen where they found six empties of S.M.G. And three empties of T.T. Pistol which were secured alongwith blood-stained earth and the same were sealed.
18.The evidence of P.W.3 Muhammad Asif reveals that he was present at the scene of incident. He saw a person trying to snatch S.M.G. Rifle from a police constable and during the said period the said culprit tired three shots at the constable who after receiving injuries fell down on the ground and the said persons had snatched S.M.G. Ritle from the hands of the police constable and ran towards Qasba More. Another police constable reached there, who fired shots at the culprits but those were missed and then two Police Mobiles came there. Thereafter, the said police constable and the Police Mobiles followed the culprits. He went to the injured alongwith other people thereafter an Edhi Ambulance was called in which the injured police constable was sent to Abbasi Shaheed Hospital. His evidence further reveals that he also acted as Mashir of place of incident from where three empty cartridges of pistol. Six empty cartridges of S.M.G. Rifle and bloodstained earth were secured and sealed by the police. He signed the Mashirnama.
19.The evidence of above mentioned witnesses is further corroborated by A.S.-I. Azhar Mehmood and S.-I. Abdul Majeed. Their evidences show that they received a wireless message about the encounter at the place of incident; therefore. They reached there where P.C. Muhammad Saeed informed them about the incident; hence they followed the culprits towards Qasba Colony. When they reached at the hill area the appellants fired at the police party, therefore, they also tired at them. The appellants took shelter in the graveyard which was surrounded and then both the appellants were arrested. SIP Azhar Mahmood secured S.M.G. Rifle of deceased P.C. Shamim Ahmed from the possession of the appellant Jamal Khan whereas unlicensed 30 bore pistol was secured from the possession of the appellant Fazal Muhammad. From their search Rs,1,550 and Rs,1,200 were secured from the appellants Jamal Khan and Fazal Muhammad respectively. On verification the S.M.G. Rifle was found containing ten live bullets whereas pistol was loaded with two live bullets. Thereafter, Mashimama of arrest and recovery was prepared and then the appellants and the properties where taken to the police station where F.I.Rs, were lodged.
20. The evidence of Dr.Abdul Shakoor shows the details of the injuries found on the person of the deceased P.C. Shamim Ahmed. The injuries were: one lacerated type of puncture wound 1 c.m. In diameter over left upper chest, about 4 c.m. Above and lateral to left nipple margins inverted oval shaped (wound of entry). A lacerated punctured wound 3 c.m. In diameter irregular shape back of right lumber region (wound of exit) and six minor injuries of lacerated and abrasions on the person of the deceased. The doctor has opined that the deceased had died on account of cardio respiratory failures due to haemorrhagic shock/resulting from fire-arm weapon injuries. Thus, from his evidence it is clear that the deceased had received fire-arm injuries and died on account of the said injuries.
21. All these witnesses were subjected to cross-examination but nothing has come on record to discredit their evidence. The cross-examination was mainly in obtaining some clarification and details of incident.
22. From the evidence available on the record it is clear that-on 14-11.2000 at about 12-50 a.m.
Mashallah Coach was robbed by four culprits where P.W.1. Muhammad Rustam was present and from him Rs,15.000 was snatched. The culprits left the coach and started running. Out of them two ran towards Qatar Hospital, who were followed by P.W.1 Muhammad Rustam and other persons but they boarded a water-tanker. An information about the incident was conveyed to the police constables P.C. Muhammad Saeed and P.C. Shamim Ahmed who chased the culprits. The deceased P.C. Shamim Ahmed was able to stop the water-tanker but the appellant Jamal Khan fired at the P.C. Shamim Ahmed, who received tire-arm injuries and fell down on the ground and appellant Jamal Khan snatched S.M.G. Rifle from the hands of deceased P.C. Shamim Ahmed and handed over his pistol to the appellant Fazal Muhammad, who started running towards Qasba Colony. They were chased by P.C. Muhammad Saeed but both the culprits tired at him whereas the P.C. Muhammad Saeed also fired at them. In the meantime two Police Rapid Mobiles in which A.S.-I.
Azhar Mehmood and S.-I. Abdul Majeed aiongwith staff came there. They followed them and both the appellants were apprehended from the graveyard. From the possession of the appellant Jamal Khan S.M.G. Rifle of P.C. Shamim Ahmed was secured and from the possession of the appellant Fazal Muhammad an unlicensed .30 bore pistol was secured. From the scene of murder empties of S.M.G. Rifle and pistol were secured which were sealed and were sent to ballistic expert alongwith pistol and S.M.G. Rifle for examination and report. Ballistic Report has been produced in evidence which is Exh.49. It shows that the empties of pistol and S.M.G. Rifle were tired from the above mentioned pistol and S.M.G., thus both the weapons have been connected with the commissions of the incident. The appellant Jamal Khan was immediately identified by P.W. Muhammad Rustam at the police station, who was brought there after his arrest but the appellant Fazal Muhammad was not identified by. P.W. Muhammad Rustam. The prosecution should have held identification parade of the appellants through P.W. Muhammad Asif but they did not do so. Both the present appellants were arrested by A.S.-I. Azhar Mehmood, P.C. Muhammad Saeed and A.S.-I. Abdul Majeed, from the graveyard just after committing the murder of deceased P.C. Shamim Ahmed. In the meantime the deceased P.C. Shamim Ahmed was taken to hospital where he died on account of the firearm injuries received by him from the hands of the appellants. The evidence of all these witnesses are supporting and corroborating each other. All the witnesses are independent. They have no enmity whatsoever with the present appellants or any enmity has been suggested between them. There is no motive with the P.Ws. To falsely implicate the present appellants.
23. The chain of facts and circumstances from the stage of robbery till arrest of the appellants and recovery of weapons clearly established that both the appellants were the members of four robbers who committed the robbery from the coach and then murder was committed. The intention of both the appellants is clearly established from the facts that when the water-tanker was intercepted they tried to escape from the police and in doing so the appellant Jamal Khan tired at the deceased P.C. Shamim Ahmed from his pistol which he immediately gave it to appellant Fazal Muhammad and then the appellant Jamal Khan snatched the S.M.G. Ritle from the deceased. They also started running and P.C. Muhammad Saeed tired at the appellants but they retaliated and both the appellants fired at the P.C. Muhammad Saeed. This clearly establishes that they shared common intention in commission of this crime.
24. The judicial confession of the appellant Jamal Khan clearly shows that he confessed that he alongwith appellant Fazal Muhammad and two other companions robbed the Mashallah Coach on 14-11-2000 at about 10-00 a.m. And Rs,15,000 was robbed from Muhammad Rustam. When they left the Coach they were followed by persons who were shouting Choor Choor. They ran towards Qasba More but in the meantime one police man alighted from motorcycle and stood in front of them and ordered them to surrender on which he told him that even if he would shoot him he would not surrender. Then he fired two tire-arm shots at the police constable. Thereafter he snatched service S.M.G. Rifle of the constable and started moving towards hill side but the police followed them and he fired at the police party. He gave his pistol to appellant Fazal Muhammad.
They went in graveyard but they were apprehended from there. From his possession S.M.G. Rifle was secured and from the possession of appellant Fazal Muhammad a pistol was secured and then they were taken to police station. This confession was duly recorded by the Mttrate who after completing all the required formalities of law recorded the same. The required certificate was attached with the confessional statement.
25. From the evidence of Judicial. Magistrate it is clear that the confession was voluntarily made and true, therefore, it is enough to convict the appellants. This confession has been retracted but according to law retracted confession is sufficient for conviction but as a rule of procedure the Court seeks corroboration of the same on all material particulars. Reference is invited to a case of Muhammad Gul v. The State reported in 1991 SCM R 942.
25-A. From the evidence available on the record it is clear that on all the material particulars the confession of appellant Jamal Khan is supported and corroborated as discussed above. Thus, the confession of the appellant can be E safely relied upon under Article 43 of Qanun-e-Shahadat.
Order, 1984, the confession of appellant Jamal Khan can be taken into consideration as circumstantial evidence against the appellant Fazal Muhammad but this cannot be done as no question was put to the appellant Fazal Muhammad in his statement recorded under section 342, Cr.P.C. By the trial Court, about the above piece of evidence.
26. The appellant Jamal Khan in his statement under section 342, Cr.P.C. Has admitted that his confessional statement was recorded by the Magistrate but he took the plea that it was under pressure from the police officials. No evidence whatsoever has been led by the appellant Jamal Khan to prove that the police had pressurised him to confess the guilt. In the absence of such evidence it cannot be held that the police had pressurised the appellant Jamal Khan to confess the guilt. The appellant Jamal Khan has failed to prove his above defence.
27. The remaining evidences of P.W.6 S.-I. Police Sikandar Khan, P.W.7 A.S.-I. Inayatullah, P.W.9 A.S.-I.
Ali Asghar, P.W.10 Suhail Akhtar, P.W.11 Abdul Salam, P.W.12 Suhail Akhtar, P.W.13 I.O. Muhammad Ishaq, P. W.14 Investigating Officer Muhammad Safar and P.W.15 Investigating Officer Ghazan Zada, are in respect of the third incident in which appellant Islam Saeed was arrested and with regard to the investigation of this case.
28. From the evidence available on the record we are of the considered view that the prosecution have proved their case against both the appellants.
29. The appellant Jamal Khan has not taken any defence but he had denied all the allegations of the prosecution in his statement recorded under section 342, Cr.P.C. And further added that he was innocent and had been implicated falsely. He has not examined any witness to support his case.
The solitary statement of appellant in presence of above mentioned overwhelming evidence led by the prosecution cannot be safely relied upon.
30. The appellant Fazal Muhammad took the plea that he was suffering from mental illness, therefore, he was taking medicine. On 14-11-2000 he, in semi-conscious condition, went to Qasba Colony to see his friend but there was tiring and the people were running and there, therefore, he was also running but apprehended by the police and then involved in this case. In his support he has produced medical prescription slips of Peshawar Psychiatric Hospital. These medical slips only show that he was attending the hospital. Exh.59 (discharge slip) produced by the appellant, shows that he was admitted in Government Mental Hospital, Peshawar on 31-12-1998 but was discharged on 1-8-1999 and advised to visit after one month, to take water, continue medicine as advised and keep him busy in some work. Nature of ailment has not been shown in the slip. However, the document only shows that the appellant was admitted in the mental hospital for about twenty days but was discharged. The present incident took place on 14-11-2000 after more than one and half years. The appellant has not produced any document to show his mental condition on the date of incident. Before the trial Court no plea was raised that his mental condition was such where he could not understand the proceedings of the Court. This by itself shows that he was able to understand not only the proceedings of the Court but was in perfect mental health and pursuing his case regularly.
31. However, from the statement of the appellant it is clear that he admitted his presence at the time and the place of incident, therefore, he was required to explain his presence through some credible evidence but neither the appellant Fazal Muhammad examined himself on oath nor led any evidence to prove his stand taken by him in his statement under section 342, Cr.P.C. Whereas the prosecution has led ample evidence to connect him with the commission of this crime. As such the defence taken by the appellant has not been proved.
32. After giving due consideration to the facts of the case it is clear that this is a case of robbery and not dacoity, therefore, section 396, P.P.C. Is not applicable in the present circumstances of the case. Section 396, P.P.C. Reads as under:-- "396. Dacoity with murder.---If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of these persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which [shall not be less than four years nor more than] ten years and shall also be liable to tine."
33. From the perusal of the above section it is clear that it is applicable in the case of dacoity involving five or more persons but in the present case the prosecution alleged that only four persons were involved in the case, therefore, the convictions awarded by the trial Court under section 396, P.P.C. Are not warranted by law which are hereby set aside.
34. After considering the material available on the record we are of the considered view that the appellant Jamal Khan has committed the offences punishable under sections 392, 353. 302(b), P.P.0 and under section 13-D of the Ordinance, 1965. As regards the involvement of the appellant Fazal Muhammad, his conduct shows that he was also involved in the murder of P.C. Shamim Ahmed but to a lesser degree. As such he may be considered for lesser punishment on the ground of his mental state, i,e, nervousness, loosing, self-control and act and role played and so forth.
Therefore, some benefit may be extended to the appellant. While discussing as to which cases are falling under clause (c) of section 302, P.P.C. The Hon'ble Supreme Court in a case of Ali Muhammad v. Ali Muhammad (PLD 1996 SC 274) at page 290 has observed as under:- "As to what are the cases falling under clause (c) of section 302, the lawimaker has left it to the Courts to decide on a case to case basis."
35. On the same subject the Hon'ble Supreme Court of Pakistan in a case of Abdul Zahir v. The State reported in 2000 SCM R 406 and at page 412 observed as under:-- "17. Clause (c) of section 302, P.P.C. Ante applies in case of Qatl-eAmd where, according to Injunction of Islam, the punishment of Qisas is not applicable. A bare reading of the clause would reveal that section 306, P.P.C. Is applicable to cases of Qatl-e-Amd which are not liable to Qisas whereas Qati-i-Amd not liable to Qisas is indeed punishable under section 308. There is distinction, albeit very slight, between Qatl-i-Amd to which punishment of Qisas is not applicable and that of the Qatl-i-Amd which is not liable to Qisas. A bare reading of section 308, P.P.C. Would show that where offender is guilty of Qatl-i-Amd not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, P.P.C. Shall be liable to Diyat. We, therefore, endorse the view held by this Court in the case of Ali Muhammad (supra) (PLD 1996 SC 274) that class of cases to which clause (c) of section 302, P.P.C. Applies is different from class of cases enumerated in section 306 and punishable under section 308, P.P.C. Prima facie the cases covered by clause (c) of section 302, P.P.0 are of Qatl-i-Amd: (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of section 306, P.P.C.
Punishable under section 308, P.P.C., (2) Qatl-i-Amd to which clause (b) of section 302, P.P.C. Is attracted, namely, Qatl-i-Amd wherein proof in either of forms specified in section 304, P.P.C. Is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word 'or' at the end of clause (b) of section 302, P.P.0 reinforce this interpretation. In other words, it is a class of Qatl-i-Amd which is, not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter of punishment to imprisonment of either description for a term which may extend to twenty-five years. Some of those cases have been noticed in the precedent of Muhammad Hanif (1992 SCM R 2047), Ali Muhammad (PLD 1996 SC 274) and that Muhammad Mumtaz Khan's case (supra) to a larger extent of minority and lesser extent of ' provocation' ."
36. After considering the facts and peculiar circumstances of the case we are of the considered view that the case of the appellant Fazal Muhammad falls under section 302(c), P.P.C. Thus the appellant Fazal Muhammad has also committed offences punishable under sections 302(c), 353, P.P.C. And 13-D of Ordinance, 1965.
37.' In view of above position the convictions and sentences of the appellants are modified as under:--
(a) The conviction and sentence awarded to the appellant Jamal Khan under section 396, P.P.C. Is set aside. He is convicted under section 302(b), P.P.0 but sentence of death awarded under the impugned judgment is maintained. He is directed to pay compensation of Rs,75,000, to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default thereof to suffer R.I. For six months.
(b) The conviction and sentence of the appellant Fazal Muhammad, under section 396, P.P.C. Is set aside. He is convicted under section 302(c), P.P.C. And sentenced to suffer R.I. For seven years. He is directed to pay compensation of Rs,25,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default thereof to suffer R.I. For six months.
(c) The conviction and sentence of appellant Jamal Khan under section 392, P.P.C. Is maintained.
(d) The conviction and sentence of appellants Jamal Khan and Fazal Muhammad under section 13-D of Ordinance, 1965, is maintained.
(e) The conviction and sentence awarded to both the appellants under section 353, P.P.C. Is maintained.
(f) The benefit of section 382-B, Cr.P.C. Extended to the appellants is maintained. Sentences shall also run concurrently.
38. Consequently the appeals are partly allowed and partly dismissed. The confirmation reference is accepted.