CH. EJAZ YOUSAF, J.---This judgment will dispose of Criminal Appeal No.38/1 of 1999 filed by appellant Sher D.1, against his conviction and sentences, through Mr. Abduliah Jan Mirza, Advocate, Criminal Appeal No.40/I of 1999 filed by Abdul Razzaq complainant against acquittal of accused persons namely Riafat, Pervez, Khalil-ur-Rehman's, Rafaqat and Fayyaz, Criminal Appeal No.24/P of 1999 filed by Advocate-General, N.-W.F.P. Against acquittal of aforenamed accused persons and Criminal Revisions bearing Nos.5/P and 6/1 of 1999 filed by Abdul Razzaq complainant and Advocate-General N.-W. F. P., for enhancement of sentence inflicted on respondent/appellant Sher D.1, as all these appeals and revisions arise out of the same judgment dated 26-2-1999 passed by the learned Additional Sessions Judge, Abbottabad whereby Sher D.1 appellant was convicted under section 396, P.P.C. And sentenced to undergo imprisonment for life (25 years) and to pay a fine of Rs. 1,00,000 or in default thereof to further undergo R.I. For live years and the accused persons name above, were acquitted of the charges. Benefit of section 382-B, Cr.P.C. Was. However.
Extended to appellant Sher D.1. It was also ordered that on recovery of tine, half of the recovered amount be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. Briefly stated the prosecution case as gathered from the record is that on 26-4-1997 at 22-00 hours, at Mohallah Jogan, one Abdul Razzaq son of Malik Ghulam Qadir the complainant, met with S.H.O. Muhammad Rafique of Police Station Nawan Shehr and reported to him that at 21-30 hours on the same day, the complainant and his brother namely Abdul Majid, Riaz-ur---Rehman's and Jamil-ur-Rehman's were present in their house situated in Mohallah Jogan. In the meanwhile, the door bell rang whereupon Jamil-ur-Rehman's went towards the gate. No sooner said Jamil-ur- Rehman's opened the gate then four persons who were armed with pistols and rifles forced their entry into the house by pushing Jamil-ur-Rehman's aside and called out that no one should move.
It was further alleged by the complainant that as they i.e. Complainant and his companions tried to catch hold of the culprits, they started firing. One of them fired at his brother namely Abdul Majid and the bullet landed on his chest. Resultantly, he fell down to the ground and after some time succumbed to the injury, at the spot. It was further alleged by the complainant that three of the culprits were able to make good their escape while one of them was apprehended at the spot alongwith a pistol and a National Identity Card in the name of some Ghulam Mustafa son of Muhammad Yousaf resident. Of Mohallah Shoaibzai. It was further claimed by the complainant that the occurrence was witnessed by him and his aforenamed companions. The complainant charged all the four persons vicariously for committing house trespass and also for committing Qatl-e-Amd of his brother Abdul Majid. Murasila/report i.e. Exh.P.A./1 was accordingly written and sent to the police station for registration of the case, on the basis whereof formal F.I.R. Bearing No.135, dated 26-4-1996 under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Hudood Ordinance) read with sections 419, 420, 468, 471/34, P.P.C. And 13, Arms Ordinance was registered at Police Station Nawan Shehr and investigation was carried out in pursuance thereof. In the course of investigation it came to light that name of the culprit who was apprehended at the spot and was subsequently arrested by the police, was Sher D.1 son of Muhammad Alam resident of Nawan Shahr and not Ghulam Mustafa as was found written in the National .Identity Card allegedly taken from his possession at the spot. As per prosecution version. Accused Sher D.1 in the course of his 161, Cr.P.C. Statement disclosed before the Police that he himself, Pervez, Rafaqat, Khalil, Riafat, Arshad and Fayyaz had, in the cattle shed of Pervez, chalked out a plan on the evening of the alleged occurrence, for committing dacoity in the house of Abdul Majid which was shown to them by said Pervez as he i.e. Abdul Majid according to Pervez was a wealthy person and was his neighbour, therefore; they all armed with pistols (except Khalil who was armed with a rifle) went to the house, pointed out by Pervez, who himself returned after making pointation. That he i.e. Sher D.1, Rafaqat, Khalil and Arshad went on the gate of the house, while Fayyaz and Riafat stood outside. Rafaqat gave bell, whereupon a person came out to open the gate who was taken on gun point by them. In the meantime, however, three more persons came at the spot and tried to catch hold of them. Resultantly, they made firing and as he was overpowered, in order to get rid from their hold, he tired straight on the person and yet made another tire but he was not aware as to whether the same hit some one or not while, the third cartridge stuck up in the pistol. He was apprehended and beaten due to which he became unconscious. On the disclosure allegedly made by Sher D.1 rest of the accused persons except Arshad were also apprehended. Two of them Riafat and Pervez also allegeably made confessions before Judicial Magistrate. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons, produced 11 witnesses. In all. P.W.1 Muhammad Ishaque Moharrir Head Constable had on the receipt of Murasila/complaint i.e. Exh.P.A./1 had incorporated contents thereof into the formal F.I.R. Exh.P.A. P.W.2 Muhammad Ravail is a marginal witness of the recovery memo. Exh.P.W.2/1 vide which a National Identity Card Exh.P.1 and Domicile Certificate Exh.P.2 were recovered and taken into possession by the police from the house of one Shamraiz brother-in-law of accused Sher D.1, at his instance. He is also a marginal witness of the recovery memo. Exh.P.W.2/2 vide which 7 mm rifle Exh.P.3 was recovered by the police from the possession of accused Khalil-ur-Rehman's, at his pointation, from a Kassi. P. W.3 Muhammad Shafique is a marginal witness of the recovery memo. Exh.P.W.3/1 vide which blood with the help of a cotton was taken by the Investigating Officer from the place of occurrence. He is also a marginal witness of the recovery memo. Exh.P.W.3/2 vide which two .30 bore empties i.e. Exh.P.4 were taken into possession by the Investigating Officer from the place of occurrence. He is also a marginal witness of Exh.P.5 vide which on the same day, the police had taken into possession of .30 bore pistol produced by the complainant allegedly belonging to Sher D.1 and snatched from him by Riaz-ur-Rehman's P.W. Alongwith 2 magazines Exh.P.6, one magazine Exh.P.7 having one live cartridge, a bandolier Exh.P.8, 24 live cartridges Exh.P.9 and an I.D. Card Exh.P.10 in the name of Ghulam Mustafa son of Muhammad Yousaf, while photograph of accused Sher D.1 was on it. P.W.3 is also a marginal witness of the recovery memo. Exh. P. W.3/4 vide which an empty Exh.P.11 from the path, outside the house, two empties Exh.P.12, three live cartridges of .30 bore Exh.P.13 and three empties Exh.P.14 were taken into possession by the Investigating Officer. He is also marginal witness of the recovery memo Exh P.W.3/5 vide which a white Bunyan Exh.P.15, a shirt Exh.P.16 and a sheet --(Chaddar) Exh.P.17, all blood-stains( belonging to the deceased and produced by Constable Mehboob were taken into possession by the Investigating Officer. He is also a marginal witness of the pointation memo. Exh.P.W.3/6 prepared by the Investigating Officer on the pointation accused Riafat alias lagga who, while :: custody had on 1-5-1997 led the police party to a cattle shed belonging to Pervez accused wherein they all had allegedly planned to commit the offence. P.W.4 Mehboob F.C. Had escorted the dead body from the place of occurrence to the mortuary. After post--mortem examination, the doctor had handed him over a white Banyan, one shirt and a Chadar all blood-stained, which he produced before the I.O. Who took the same in his possession vide memo. Exh.P.W.3/5. P.W.5 Ijaz is a marginal witness of the recovery memo.
Exh.P.W.5/1 vide which police had recovered a .30 bore pistol i.e. Exh.P.18 from the house of Pervez, on the pointation and instance of accused Rafaqat. P. W.6 Mst. Farah Jamshaid Khan, Judicial Magistrate had on 3-5-1997 recorded confessional statement i.e. Exh.P.W.6/2 of accused Riafat. She confirmed that she had recorded the statement in question after fulfilling all the legal requirements. In the course of her cross-- examination she admitted the suggestion as correct that having been inquired, as to how many days he remained in police custody`' accused Riafaq had stated before her that he was in police custody for four days. P.W.7 Dr. Mustafa Ali had on 27-4- 1997 at 8-35 --hours, examined the de Majid and found as under:-- A middle aged, well built male lying supine on post-mortem table wearing blood and stand stained light brownish Shalwar and Qamiz eyes and mouth closed, blue coloured cotton cloth around face. Black hairs and moustaches. Rigor mortis and lividity developed.
Wound of entry (1)A wound on left side of chest 2" medial to left nipple and in 6th intercastal space, starting towards left side. Measuring 1-1/2" x 1". No blackening or tattooing seen around the wound.
Wound of exit (1)A wound on tip of left shoulder, measuring 1-1/2" x. 1-1/2" margins everted.
Internal examination Thorax---Walls, ribs and cartilages---wound of entry in 6th intercastal space medial to left nipple.
No fracture of rib or cartilage. Pleaurae---pierced. Left lung----collapsed. Pericoridum and heart-- --pierced left ventricle shattered. I found fracture of upper end of humerus. "
5. On the conclusion of prosecution evidence the learned defence counsel tiled two applications for the summoning of Dr. Khalid Javed, Medical Officer, D.H.Q. Hospital, Abbottabad, Dr. Aun Ali, Medical Officer, D.H.Q. Hospital, Abbottabad and Dr. Mustafa Ali, C.M.O. Ayub Teaching Hospital, Abottabad, as C.Ws., as according to him their evidence was essential. They were summoned accordingly.
Dr. Khalid Javed, while appearing as C.W.1 deposed that he had on 30-4-1997 examined Riafat accused and found entrance wound 1/2 c.m. x 1/2 c.m. In front of his right upper thigh, with inverted margins, sides were of brownish colour. He also found an exit wound 1 c.m. x 1 c.m. With averted margins, clotted wounds (bleeding) nature of injuries was simple and time elapsed was 4 to 5 days. Distance tired from was distant area. Kind of weapon used was tire-arm. He produced his report as C.W.1/1. He further deposed that on 4-5-1997 he had also examined Riafat accused and found that he was suffering from left renal colic. He produced his report as C.W.1/2. On 4-5-1997 he had also examined Khalil-ur-Rehman's accused and found a tire-arm injury over left tuberosity of his left foot just making laceration about 2-1/2 c.m. Size. Nature of injury was simple and weapon used was fire--arm. Duration was about 8 to 10 days. He produced his report as C. W.1/3. On 4-5- 1997, he also examined Fiaz accused and found that his left foot was swollen and tender with restricted movements. He advised X-Ray of the foot and referred him to Male Orthopaedic Ward for the needful. In his opinion the weapon used was blunt. He produced his report as Exh.C.W.I/4. Dr. Aun Ali C. W.2 had on 1---5-1997 examined Parvez accused and prepared injury sheet i.e. Exh.P.W.8/1. As per his examination the accused was complaining of pain in his right knee-joint, which was found tender to touch. X-Ray was advised, however, no evidence of fracture on X-Ray or any other deformity was found. He produced his report as C.W.2/1. Dr. Mustafa Ali C.W.3 had examined accused Sher D.1 and prepared injury sheet as Exh.P.W.II/3. He found an abrasion on his nasal bridge and also an abrasion on anterior aspect of his left leg, midway. As per his report the patient was unconscious. Weapon used was blunt. He produced his report as C.W.3/1. In the course of his cross-- examination C.W.3 deposed that nature of both the injuries were simple and artificial and could not have led to unconsciousness.
6. All the accused persons in their statements under section 342. Cr.P.C. Denied the charge and pleaded innocence. They however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. Accused Sher D.1 in his above statement denied the recovery of .30 bore pistol, magazines, bandolier, 24 live cartridges of .30 bore and identity card allegedly effected vide recovery memo. Exh.P.W.3/3 by the Investigating Officer and pleaded that recoveries were foisted on him. Accused Parvez denied to have made confession voluntarily and stated that the so-called confessional statement was the result of 3rd degree methods. Riafat accused also denied to have made confessional statement voluntarily, and stated that the confession was extracted from him through coercive methods and was the result of torture.
7. We have heard Mr. Abdullah Jan, Advocate for appellant Sher D.1, Malik Rab Nawaz Noon, Advocate, for the complainant, Mr. M. Sharif Janjua, Advocate for the State and have also perused the record of the case, minutely, with their assistance. Mr. Abdullah Jan Mirza, Advocate, learned counsel for the appellant has raised the following contentions:-- (i)That F.I.R. Was recorded at the spot after due deliberations, consultations and preliminary inquiry, therefore, it was of no value.
(ii)That both eye-witnesses i.e. P.Ws.9 and 10 were not present at the place of occurrence, therefore, narration given by them is not surrounded by physical circumstances.
(i.e)That the eye-witnesses were interested and partisan. Therefore, their testimony was of no significance.
(iv)That so-called retracted confessional statements of co-accused were neither recorded according to law nor were corroborated by any other evidence, rather it were inconsistent with the story narrated in the F.I.R.
(v)That the prosecution evidence was disbelieved qua the acquitted accused persons, therefore, the same evidence could not have been relied upon against appellant Sher D.1 without material corroboration.
Malik Rab Nawaz Noon, Advocate, learned counsel for the complainant as well as the learned State Counsel on the other hand, while controverting the contentions raised by learned counsel for the appellants have urged:-- (i)That appellant Sher D.1 was apprehended at the spot with .30 bore pistol and a bogus National Identity Card, therefore, his participation in the crime was proved.
(ii)That it was neither a case of substitution of accused nor was of mistaken identity, therefore, appellant Sher D.1 was rightly convicted for the offence. F.I.R. Was lodged with utmost promptness and all necessary details were given therein. Besides, specific role was attributed to appellant Sher D.1.
(i.e)That both the eye-witnesses were independent and natural and had no enmity with appellant Sher D.1 or any other accused person, therefore, their statements were rightly believed by the learned trial Judge. They can by no stretch of imagination, be tagged or dubbed as interested or partisan.
(iv)That the medical evidence also fully supported the prosecution version.
(v)That the recoveries effected at the spot as well as subsequently at the instance of other co- accused persons too, had strengthened the prosecution case, therefore, the accused persons were rightly convicted for the offence.
8. We have, given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused entire record of the case carefully
9. In order to supplement his first contention that the F.I.R. Was lodged after preliminary investigation, deliberations and consultations. Mr. Abdullah Jan Mriza, Advocate, learned counsel for the appellant Sher D.1 has contended that actually the occurrence took place on or about 8-00 p.m. On 26-4-1997, whereas, in the report, the time of occurrence was wrongly given by the complainant as 9-30 p.m. He maintained that the time elapsed in between 8-00 p.m. To 9-30 p.m.
Was utilized by the prosecution to concoct the story and falsely implicated the appellant in the crime. In order to ascertain as to whether or not there is substance in the through the record of the case. It is explicit on record that the F.I.R. Was registered at 22-30 hours whereas the report was lodged at 22-00 hours. In the report it has been mentioned that the occurrence took place at 21-30 hours. In the F.I.R., the distance between the police station and place of occurrence has been shown to be one kilometre. Both the eye-witnesses i.e. P.W.9 Abdul Razzaq and P.W.10 Riaz-ur- Rehman's, while appearing in Court, have categorically stated that the occurrence took place at 9- 30 p.m. And police arrived at the spot at 10-00 p.m. Though both the eye-witnesses, in the course of their cross-examinations were suggested by the defence that the occurrence took place at 8-00 p.m. (which suggestion, being incorrect, was denied by them) yet, in the absence of any evidence to the contrary it, by no stretch of imagination, can be concluded that the occurrence took place at 8-00 p.m. Further though no such question was made to P.W.11 i.e. The Investigating Officer, yet in the course of his cross--examination it was suggested to him (which suggestion too, being incorrect was denied by him) that he had effected recoveries at 9-00 p.m. Before lodging the report. We are unable to understand as to how learned counsel for appellant Sher D.1 has gathered this impression that the occurrence took place at 8-00 p.m. Because the assertion itself, is belied by the record. The fact cannot be lost sight of that in Exh.P.W.7/1 i.e. The post--mortem report, the time of death of the deceased has been shown to be between 9 to 10 p.m. On 26-4-1997 and probable time elapsed between the injury and death mentioned therein is about 30 minutes. It is, further mentioned therein that time elapsed between death and post-mortem examination was within 11 to 12 hours. Now if the time of death of the deceased is computed from the time of his post-mortem on the basis of the had died exactly between 9-00 to 10-00 p., on 26-4-1997 as claimed by both the witnesses. Stand taken by the learned counsel for the appellant that occurrence had take place earlier, therefore, is negated by medical evidence. It would be worthwhile mention here that entries made by P. W.7 doctor qua death of Abdul Majid deceased, the post-mortem report, were neither challenged nor disputed at the trial and single question was not put to him the deceased had not died between 9-00 to 10-1 p.m. On 26-4-1997, as found by him. It well-settled that if statement of a witness which was material to the controversy is not challenged then such unchallenged statement should be given full credit and usually accepted as true unless displaced by trustworthy and sound evidence. In this view we are fortified by the following reported judgments:--
(1) Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300,
(2) Qaamar-ud-Din through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819,
(3) Muhammad and others v. State 1993 PCr.LJ 1632,
(4) Kaleem Ahmad and others v. The State PLD 1993 Kar. 13,
(5) Amjad Pervez v. State 1992 ALD 269(2)
(6) Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465,
(7) Karim-ud-Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545,
(8) Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515,
(9) Muhammad Mujeeb-ur-Rehman's Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537,
(10) Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110 and
(11) Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138.
We are, therefore, unable to subscribe to the contention that the F.I.R. Was lodged after preliminary investigation deliberations and consultations. Because if the time given by the complainant in the report is presumed to be true then hardly any time was left for the prosecution to concoct or fabricate the story or try to improve its case.
10. In furtherance of his next contention that since both the eye-witnesses were not present at the place of occurrence, therefore, narration given by them is not surrounded by physical circumstances, the learned counsel for the appellant Sher D.1 has vehemently contended that statements made by both the eye-witnesses are not only inconsistent with the story narrated in the F.I.R. But are contradictory inter se as well on certain material points, therefore, the only inference possible to be drawn is that the eye-witnesses were not present at the time and place of occurrence. For instance, he pointed out, that:-- (i)P.W.9 has stated that more than 10 or 15 shots were fired by the culprits whereas, P.W.10 has deposed that the culprits fired 15 to 20 shots while the stand taken by the Investigating Officer is that he had recovered two empties from the place of occurrence. Thus, all contradicted each other qua the number of shots fired.
(ii)Both the eye-witnesses have stated that as they wanted to overpower the culprits they i.e. The culprit resorted to tiring. Investigating Officer has stated that only two empties were recovered from inside the house. The learned counsel maintained that had statement of the eye-witnesses been true, a lot of empties should have been recovered from inside the room.
It appears that the learned counsel for the appellant Sher D.1 has raised the contention under some misconception because, at the trial, it was never the stand taken by the appellant that the eye- witnesses were not present at the place of occurrence. On the contrary, his stance was that both the eye-witnesses were very much present at the spot. Rather, through counter-version, it was suggested to both the eye-witnesses that they had also participated in the crime and resorted to tiring. A perusal of the following portion from the statement of P.W.9 would crystallize the position:-- "It is incorrect to suggest that Majid had obtained loan from the father of Sher D.1 accused and for the settlement of the dispute Sher D.1 accused was summoned by the deceased to his house. It is incorrect to suggest that both Majid and his brother Razzaq came out to settle the matter with Sher D.1 and during talk Majid gave butt blow of pistol on the nose of Sher D.1 accused who tell down unconscious. It is wrong to suggest that when his companions came to his rescue. Majid and his companions including Ghulam Mustafa fired at them with pistol causing them bullet injuries."
It would also be not out of place to mention here that P.W.10 too, was not only expressly tried to be implicated in the crime but his presence at the place of occurrence was also admitted, by the defence, through the following suggestion:-- "It is incorrect to suggest that ' we' injured them with pistol."
Even otherwise the contradictions pointed out by the learned counsel for the appellant, regarding the number of shots fired by the culprits, at the time of occurrence, to our mind. Are neither material nor have any bearing on the case of the present appellant because firstly; the deceased had died as a result of a single gunshot injury allegedly inflicted on him by the present appellant and the firing made by the rest of the culprits remained ineffective and secondly; in the circumstances, it could not have been expected from any of the witnesses to count and remember the number of shots, exactly, fired by all the culprits. The fact cannot be lost sight of and it is the prosecution case that as inmates of the house tried to apprehend the culprits they i.e. The culprits resorted to firing and, while doing so, they fled. The recovery of a number of empties from outside the house suggests that firing was also made outside the house, therefore, the eye--witnesses who both, as per prosecution version, remained inside the room were not expected to know or to count as to how many shots were, exactly tired. Therefore, if one of them has stated that the number of shots tired were 10 to 15 and the other has come out with the reply that it were 15 to 20 then the narration given by them cannot be doubted because they were expected to tell about the total number of shots fired approximately by way of guess and the number of 15 is after all common in their statements. As to the second limb of argument in the contention that since only two empties were recovered from inside the room and as per witnesses more than 15 shots were fired, therefore, non-recovery of the empties from inside the room has rendered the statements of both the eye-- witnesses as doubtful, it may be pointed out here that it was never case of the prosecution that all the shots were fired by the culprits inside the room, therefore, recovery of more or all the empties therefrom was out of question. On the contrary since, it has come on record through the statement of Investigating Officer that he had taken into possession one empty i.e. Article 11 from the path outside the house, two empties Article P.12 and three live cartridges of .30 bore Article P.13 from western side of the house, therefore, statements of the eye-witnesses that the culprits had decamped from the place of occurrence while firing, have to be believed because to this extent it finds corroboration from the above mentioned recoveries.
11. It has been further argued by the learned counsel for the appellant that since only two empties were recovered from the place of occurrence therefore, keeping in view the statement of eye- witnesses who have categorically stated that more than 10 to 15 shots were fired, non-recovery of the rest of empties renders the testimony of the eye--witnesses as doubtful; Mr. M. Sharif Janjua, Advocate learned counsel for the State as well as Malik Rab Nawaz Noon, learned counsel for the complainant both, in reply, have urged that since soon after the occurrence a lot of persons/people had gathered at the place of occurrence and it was night time as well, therefore, either the empties might have been taken away by somebody or the Investigating Officer, due to darkness. Could not have been able to recover the same.
It is incorrect that only two empties were recovered by the Investigating Officer from the place of occurrence, yet keeping in view the circumstances of the case as well as location of the house, wherein the occurrence allegedly took place, the explanation offered by the learned counsel for State as well as the complainant appears to be plausible because as per record, one empty i.e. Article P.11 was recovered by the Investigating Officer from the path situated outside the house and two empties Article P.12 alongwith three live cartridges of .30 bore i.e Article P.13, were recovered from western side of the house, therefore, the possibility that the tiring was made, mostly outside the house and the rest of the empties might have been taken away by the passersby or the people who had, soon after the occurrence, gathered at the spot or had been lost and the Investigating Officer due to darkness could not have been able to locate/recover the same, cannot be ruled out.
Non-recovery thereof cannot, therefore, in any manner, effect the veracity of the statements of the eye-witnesses.
12. In furtherance of his next contention that since the eye-witnesses were interested and partisan, therefore; their testimony could not have been relied upon, the learned counsel for appellant Sher D.1 has empathetically contended that since both the eye-witnesses i.e. P.Ws.9 and 10 were closely related to the deceased and were thus interested in prosecution of the case, therefore, their testimony could not have been believed by the learned trial Judge in recording conviction against the appellant. No doubt the deceased was related to both P.Ws.9 and 10. He was real brother of P.W.9 Abdul Razzaq and was uncle of P.W.10 Riaz--ur-Rehman's but we are unable to understand as to how both these witnesses can be dubbed or tagged as interested witnesses because interested witnesses is one who has, of his own, motive to falsely implicate the accused. The term "interested" postulates that the witnesses must have some direct interest in having the accused, somehow or the other, convicted for some animus or for some other reason and therefore, testimony of a close relative which otherwise may be found credible cannot be discarded or rejected because of mere relationship. This view receives support from the following reported judgments:-- (i)Saeed Akhtar and others v. The State 2000 SCMR 383, (ii)Allah Wasaya and another v. The State 2000 SCMR 746, (i.e)Malkhan Singh v. State of U.P. AIR 1994 SC 1443, and (iv)Shankar Lal v. State of M.P. 1996 SC (Crl.) 740.
It may be mentioned here, that the proposition in hand came up for consideration before the Honourable Supreme Court of Pakistan in the case of Iqbal alias Bala and 2 others v. The State reported as 1994 SCMR 1 and the same was authoritatively answered in the following words:-- "The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State (PLD 1962 SC 269). In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmed v. The State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCMR 734) the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses."
What to speak of related witnesses, it has been held, in a number of judgments that testimony of an interested witness even, cannot be brushed aside unless it is proved that the witness had involved the accused for some ulterior motive. Reference in this regard may usefully be made to the judgment of the Honourable Supreme Court of Pakistan delivered in the case of Sarfraz alias Sappi and 2 others v. The State reported as 2000 SCMR 1758. Further, in the case of Muhammad Sarwar v. The State 1999 SCMR 2428 the evidence of inimical witness, even without corroboration, was believed when intrinsic worth of the testimony inspired-confidence and led to the belief that the witnesses had seen the occurrence. In the case of Abdul Ghafoor v. The State reported as 2000 SCMR 919 as well, it was held that evidence furnished by interested witnesses, related to the victim or the deceased cannot be discarded merely because of the relationship. It would be worthwhile to mention here that in the case of an interested witness even, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and the same rule applies to a partisan witness.
It would not be out of place to mention here that related witnesses some times, particularly in murder cases, may be found more reliable because they due to their relationship would not let go the real culprit or substitute an innocent person for him. It is quite possible that in a case, in which, a number of accused persons are involved and mere is previous enmity between the parties as well, a wider net might have been thrown but in the case of a single accused, relatives of the deceased would hardly and rarely replace or spare the culprit actually responsible for the crime. It may be noted here that though in the instant case initially four persons were nominated in the F.I.R.
Yet, at the trial only appellant Sher D.1 was made responsible for committing murder of the deceased. Both the eye-witnesses are unanimous on the point that it was the appellant, who had fired at the deceased and Abdul Majid ultimately succumbed to the injuries caused by him.
Though it has also come on record that as the complainant party tried to apprehend the accused persons, the rest of them also resorted to firing yet, from the record of the case it appears that the purpose of firing made by them was primarily, to evade their arrest. Recovery of only two empties (allegedly fired by appellant Sher D.1) from inside the room wherein the murder was committed, also leads to the same inference. Since in the instant case it has not been shown or proved that the eye-witnesses named above, were inimical towards the appellant or had, prior to the incident, any motive to falsely implicate him in the offence therefore, they cannot, be termed to be interested witnesses. The contention, therefore, has no force.
13. Learned counsel for appellant Sher D.1 has further contended that though judicial confessions i.e. Exhs. P.W.6/2 and P.W.8/2 allegedly made by accused persons namely Riafat and Pervez before the Judicial Magistrate, Abbottabad have been found inadmissible by the learned trial Judge, yet, since the complainant has filed Criminal Revision No.6/I of 1999 praying that acquittal of the respondents may be set aside and they be punished and in doing so confessional statements in question may also be taken into consideration, therefore, he would like to submit that since both the confessional statements were extracted from the respondents by applying coercive and third degree methods and the very fact was also proved on record, therefore, the same were rightly discarded by the learned trial Judge. He added that injuries were found on the bodies of the aforenamed accused persons, that is why C. Ws. 1 and 2, on the application of the accused persons, were summoned and examined by the trial Court. He maintained that use of coercive methods was patent on record inasmuch as that when questioned accused Pervez had straightaway replied that he was tortured by the police and the same answer was recorded by the Judicial Magistrate in the questionnaire. Though both the confessional statements allegedly made by the accused persons namely Riafat and Pervez have not been taken into consideration by the learned trial Judge, yet in order to see as to whether or not there is substance in the contention, we, have ourselves carefully, perused the entire record. The learned trial Judge has discarded the confessional statements in question primarily for the reason, that since it were recorded after considerable delay and injuries were also found on the bodies of the accused persons, therefore, the possibility that it were extracted from them could not have been ruled out. Record reveals that accused Riafat was arrested on 29-4-1997 whereas he, for the purpose of recording of his confessional statement, was produced before the Judicial Magistrate on 3-5-1997, four days after his arrest. Accused Parvez was arrested on 30-4-1997 and his confessional statement was got recorded on 6-5-1997, six days after his arrest. Learned trial Judge has observed that since both the witnesses i.e. The Investigating Officer as well as the Judicial Magistrate, when specifically questioned, have failed to offer any satisfactory explanation regarding the delay caused in recording the confessional statements, therefore, it was not safe to rely thereon. He has further observed that on the other hand, both the accused persons have not only retracted the confessions but in order to show that it were extracted from them by applying third degree method, have through application got summoned and examined C.W.I and C.W.2, who have confirmed that simple injuries were found on the person of accused Riafat and accused Parvez was also complaining pain in his right knee joint which was found tender on touch, therefore, application of coercive methods could not have ruled out. It may be noted here, that injuries were also found on the person of appellant Sher D.1 but it was admitted by both the eye-witnesses P.Ws.9 and 10 that they had given Danda blows to him. It is not case of the prosecution that other accused persons were also beaten. As stated above, accused Riafat was arrested on 29-4-1997 whereas Pervez accused was arrested on 30-4-1997. Dr. Khalid Javed C.W.1 has stated that Riafat accused was examined by him on 30-4-1997 whereas Dr. Aun Ali, C.W.2 has stated that he had examined accused Parvez on 1-5-1997. Though considerable time had elapsed in between medical examination of the accused persons and recording of their confessional statements yet, in the circumstances of the case, to us, the reasons advanced by the learned trial Judge for not believing and relying on the confessions appear to be sound and we see no reason as to why a different view may be taken.
14. As regards the next contention of the learned counsel for the appellant that since the prosecution evidence was disbelieved qua the acquitted accused persons, therefore, the same evidence without mate-'al corroboration, could not have been considered against appellant Sher D.1, it may be pointed out here, that to our mind, the contention on the face to it appears to be misconceived, for the simple reason that it was not the "same" evidence, which was disbelieved qua the acquitted accused person and was believed against appellant Sher D.1. Rather there was a lot of difference. Against appellant She D.1, there was ocular evidence, account whereof was given by P. Ws.9 and 10. There was evidence of the recovery of crime weapon alongwith ammunition from his possession. A National Identity Card in the name of Ghulam Mustafa whereon photo of the appellant was affixed, was also recovered from his possession. There was medical evidence, which materially corroborated the statements of both the eye-witnesses qua the seat and location of injury. There was also the report of Ballistic Expert who had confirmed that empties recovered inside the room were found to have been fired from the weapon which was allegedly recovered from the possession of the appellant. Chemical Examiner's Report regarding blood-stained earth, taken into possession by the Investigating Officer from the place of occurrence, was also available on record which proves that the incident had taken place on the location, as claimed by the prosecution and above all the appellant himself was apprehended on the spot and the defence plea too, could not be substantiated, whereas, the evidence against the acquitted accused person was quite different, there was a disclosure, allegedly made by the appellant, while he was in police custody, to the effect that the other accused persons were his companions and were also involved in the crime. There were retracted confessional statements of accused persons namely Riafat and Parvez, which were not proved to have been made voluntarily, there was evidence of recovery of weapons which though were allegedly used by the accused persons but were not proved to have been used for causing murder of the deceased and there was also the evidence of the pointation of the place of occurrence by some of the acquitted accused persons. It may be noted here, that neither name of any of the accused persons was disclosed by the complainant nor their features were given in the F.I.R. Nor they soon after their arrest, were put to identification test nor it was alleged that any of them had directly fired at the deceased or they were responsible for the murder nor an;, of the empties recovered from outside the house of the complainant was found to have been tired by the acquitted accused persons, therefore, to our mind, it can by no stretch of imagination, be concluded that it was the same evidence on the basis whereof the appellant was convicted and the rest of the accused persons were acquitted. Further it was not the case that the statements of both the eye-witnesses, qua the acquitted accused persons were disbelieved rather benefit of doubt was extended to them for want of corroboratory evidence.
15. While arguing in support of tile grounds taken in Criminal Appeal No.40/1 of 1999, Malik Rab Nawaz Noon, Advocate, learned counsel for the complainant submitted that all the accused persons, including appellant Sher D.1, according to a plan and in furtherance of their common intention, while armed with deadly weapons, had gone to the house of the complainant. Four of them forcibly trespassed into the house. They were intercepted by the complainant party and as inmates of the house tried to apprehend them, they opened fire. Resultantly Abdul Majid deceased received bullet injury and died instantly. Appellant Sher D.1 was apprehended on the spot, however, the other accused persons namely Khalil-ur-Rehman's. Rafaqat and Arshad fled away, while firing.
Two of the accused persons who were standing outside of the house, were also able to make their good escape. He added that since guilt of the acquitted accused persons too was, substantially and materially brought home at the trial by the prosecution through reliable evidence, therefore, their acquittal was improper.
16. Mr. Abdullah Jan Mirza, Advocate, learned counsel for the respondents while controverting the contention raised by the learned counsel for the complainant submitted that neither names of the acquitted accused persons were mentioned in the report nor their features were given nor were they, soon after their arrest, put to identification test, therefore, their participation in the crime was doubtful. He added that confessional statements of Parvez and Riafat accused persons too. Were found inadmissible and were thus rightly not believed by the learned trial Judge. He maintained that since on record, no other piece of evidence was available to connect the acquitted accused persons with the crime, therefore, their acquittal was just and proper.
17. Record reveals that the prosecution in order to bring home charge against the acquitted accused persons had relied upon the following pieces of evidence:--
(a) Disclosure made by appellant Sher D.1 to the effect that the respondents were his companions and were invovled in the crime.
(b) Ocular testimony furnished by P.Ws.9 and 10.
(c) Judicial confessions made by accused Riafat and Pervez, and
(d) Other circumstantial evidence including the recoveries of empties as well as Arms and Ammunition from the possession of the accused persons.
As stated above, both the confessional statements allegedly made by the accused persons namely Riafat and Pervez, having been found inadmissible, were not taken into account by the learned trial judge in deciding guilt of the accused persons, whereas in the absence of identification test parade as well as for want of description by appearance of the acquitted accused persons and their names in the F.I.R. The testimony of eye-witnesses too, to the extent of acquitted accused persons was not found safe to base conviction thereon and other evidence i.e. Evidence of recoveries etc. Too, which was primarily of corroboratory nature could not warrant their conviction. In order to ascertain as to whether or not the learned trial Judge has properly evaluated the evidence qua the acquitted accused persons we would like to examine all the aforementioned pieces of evidence, one by one.
18. So far as the disclosure allegedly made by appellant Sher D.1 regarding participation and involvement of the other accused persons in the crime is concerned, the same in our view, was not admissible, because any information received from an accused person, while he is in custody, cannot be proved at the trial unless any fact is deposed to as discovered in consequence thereof.
The provisions of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 (hereafter referred to as "the Order") are explicit in this regard which lay that a confession made by an accused person, while he is in custody of police is not admissible. However, if something related to the case is recovered or any fact is discovered in consequence of the information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of "the Order" because then the presumption would be towards its truthfulness. It would be beneficial to reproduce hereinbelow the said Article which reads as follows:-- "40.When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
But if nothing "related" to the case, rather incriminating, in consequence of the "disclosure" is recovered then the information so received by itself would not be admissible. It would be worthwhile to mention here that Article 40 is an exception to the rule enacted in Articles 38 and 39 of "the Order" and in order to bring the case within the ambit of Article 40 the prosecution must establish that (i) the information conveyed by the accused actually led to the discovery of some fact; (ii) the fact was unknown to the police and it was for the first time derived from the accused and (i.e) the discovery of the fact must relate to commission of the offence or connect the accused with the crime. In the instant case it is alleged that appellant Sher D.1 in pursuance of the above disclosure had led the police to the house of his brother-in-law Shamraiz and from there, he got recovered his own National Identity Card i.e. Exh.P.1 and also his Domicile Certificate i.e. Exh.P.2. But the recovery of N.I.C. Or Domicile Certificate on the pointation of the appellant, to our mind, would not advance case of the prosecution particularly, against the acquitted accused persons because, firstly, recovery of these articles cannot strictly be termed to be discovery of any fact as the fact discovered must have gome nexus with the crime for instance, recovery of dead body on the pointation of an accused person from a place which was within his exclusive knowledge or of the crime weapon or any other incriminating article from a place previously unknown to the police and secondly; recovery of these articles did not in any manner connect the acquitted accused persons with the crime thereby leading to the conclusion that information conveyed by the appellant was true and the acquitted accused persons were actually involved in the crime. Since in the instant case appellant was caught red --handedly and his identity or place of abode was never hidden, therefore, it was not difficult for the police to collect the required information, notwithstanding the disclosure made by him. In this view we are fortified by the following reported judgments:-- (i)Zahir Khan and others v. The State 1995 SCMR 1793, (ii)Ahmad Sher v. The State PLD 1995 FSC 20, (i.e)Muhammad Riaz v. The State PLD 1994 Pesh. 102, (iv)Ram Kishan Mithan Lal Sherma v. State of Bombay AIR 1955 SC 104, (v)Earabhadsappa v. State of Karnatak AIR 1983 SC 446, (vi)Arshad Mahmood v. The State 1989 PCr.LJ 574, and (vii)Mahabir Mandal v. State of Bihar AIR 1972 SC 1331.
19. Since admissibility of the confessional statements of the accused persons namely Riafat and Pervez had already been discussed in the preceding paras. Therefore, needs not to be reviewed here.
20. So far as the testimony of eye--witnesses, as against the acquitted accused persons, is concerned, it may be pointed out here, that both the eye-witnesses i.e. P.Ws.9 and 10 have not only failed to utter a single word against the acquitted accused persons, except that four persons had entered into the house at the time of occurrence yet have failed to even identify or point out the acquitted accused persons in Court, as well. Though P.W.9, the complainant, in the course of his cross-examination has claimed that he had given features of the culprits to the police yet, the record belies the stand taken by him. In the latter, part of his cross --examination he has himself admitted that he had not mentioned the features of the culprits in the F. I. R. Be that as it may, fact remains that neither features of the accused persons were given in the F.I.R. Nor specific roles, were attributed to them. Since as per Investigating Officer the eye-witnesses had claimed to have seen, at least, three of the culprits, in addition to appellant Sher D.1, at the time of occurrence, therefore, in our view it was obligatory for the Investigating Officer to have arranged for identification test parade of the accused persons soon after their arrest. It would be pertinent to mention here that facts which establish the identity of an accused person are relevant under Article 22 of "the Order".
Though legally statement made in Court by a witness is the substantive evidence within the purview of Article 2(c) of "the Order" and the identification made by him at the parade is only corroboratory in nature yet, where the accused was not previously known to the witness and he i.e. The witness had only a fleeting glimpse of the accused, holding of the test identification parade becomes essential because normally it is seen that statements of witnesses are recorded in Courts much after the occurrence --and, therefore, possibility that a witness might not have mistakenly nominated or pointed out some body cannot be ruled out The evidence of identification of an accused person at the trial for the first time, therefore, is considered by the Courts, to be inherently of a very weak character and it has been emphasized that prosecution in order to carry conviction, should ordinarily clarify and answer certain questions i.e. As to how long did the witnesses have the accused under observation? At what distance? In what light? Was the observation impleaded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused etc. And needful cannot be done unless the suspect is put to identification test at the first opportunity. After all human beings have their own limitations and everybody's memory fade by the lapse of time. In the case of Danial Boyd (Muslim name Saifullah) (1992 SCMR 196) and another it was held by the Honourable Supreme Court of Pakistan that when accused was charged in F.I.R. And in statements under section 161, Cr.P.C. By the description of their statures, their identification in a formal parade was a "must". Further, in the case of State through Advocate-General, Sindh v. Farman Hussain and others reported as PLD 1985 SC 1 it was held that in a criminal case if a witness gets momentary glimpse of an accused and claims that he would be able to identify him then after his arrest identification test becomes very essential which is to be conducted strictly according to the guidelines and legal requirements enunciated by law. It would be pertinent to mention here that identification parade is not only, the preferred method of identification of suspects in the eyes of Courts but it is also the method stipulated by the Police Rule 26.32 of the Police Rules, 1934 is explicit in this regard. Under Sub-rule (1) thereof it has been provided that the rules shall be strictly observed in confronting arrested suspects with such witnesses, who claim to be able to identify them and under rule 1(c) it has been made obligatory for the Police Officer to arrange for identification test of the suspects soon after their arrest. Sub- rule (2) provides that though, it is not the. Duty of the officer conducting them or of the independent witnesses to record statements or cross-examine either suspects or identifying witnesses yet, they should be requested to question the latter as to the circumstances in which they saw the suspect whom they claim to identify. It would be advantageous to reproduce hereinbelow Rule 26.32 of the Police Rule, 1934 in extenso which reads as follows:- "26.32. Identification of suspects.--- (1) The following rules shall be strictly observed in confronting arrested suspects with witnesses, who claim to be able to identify them.
(a)The proceedings shall be conducted in the presence of a Magistrate or gazetted Police Officer, or, if the case is of great urgency and no such officer is available, in the presence of two or more respectable witnesses not interested in the case, who should be asked to satisfy themselves that the identification has been conducted under conditions precluding collusion.
(b)Arrangements shall be made, whether the proceedings are being held inside a jail or elsewhere, to ensure that the identifying witnesses shall be kept separate from each other and at such a distance from the place of identification as shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification.
(c)Identification shall be carried out as soon as possible after the arrest of the suspects.
(d)The suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. Each witness shall then be brought up separately to attempt his identification. Care shall be taken that the remaining witnesses are still kept out of sight and hearing and that no opportunity is permitted for communications to pass between witnesses who have been called up and those who have not. If it is desired, through fear of revenge or for other adequate reasons, that witnesses shall not be seen by the suspects, arrangements shall be made for the former, when called up to stand behind a screen or be otherwise placed so that they can see clearly without being seen.
(c)The results of the test shall be recorded by he Senior Police Officer present in Form 26.32(1)(e) as each witness views the suspect. On conclusion, the Magistrate, or other independent witness or witnesses, shall be requested to sign the form and certify that the test has been carried out correctly and that no collusion between the police and witnesses or among the witnesses themselves was possible. It is advisable that, whenever possible, an independent and reliable person unconnected with the police should be present throughout the proceedings at the pace where the witnesses are kept and should be required to devote his attention entirely to the prevention of collusion. It is important that, once the arrangements for the proceedings have been undertaken, the Officer investigating the case and any Police Officer assisting him in that investigation should have no access whatever either to the suspects or to the suspects or to the witnesses. Formal identification proceedings should not, if it can be avoided, be arranged without the orders of an officer of or above the rank of Inspector, and such officer should always be present and arrange the conduct of the proceedings himself if possible. The value of tests arranged by the Investigating Officer or his subordinates is inevitably liable to be called in question by the defence.
(2)Proceedings of the nature described above are extra judicial. It is not the duty of the officer conducting them or of the independent witnesses to record statements or cross-examine either suspects or identifying witnesses, but they should be requested to question the latter as to the circumstances in which they saw the Suspect whom they claim to identify, and to record the answer in Column 4 of the form. While every precaution shall be taken to prevent collusion, the identifying witnesses must be given a fair chance, and conditions must not be imposed, which would make it impossible for a person honestly capable of making an identification to do so. In this connection attention is invited to paragraph 814 of the Punjab Jail Manual, which strictly prohibits the alteration in any way of the personal appearance of unconvicted prisoners, so as to make it difficult to recognize them. "
21. In the instant case, the F.I.R. Is proved to have been lodged promptly. Both the eye-witnesses i.e. P.W.9 Abdul Razzaq, the complainant and P.W.10 Riaz-ur-Rehman's appear to be natural and truthful witnesses and their presence at the spot cannot be doubted which otherwise has been established. Although they are closely related inter se and with the deceased as well yet, as discussed above, mere relationship would not discredit them. They have, in pith and substance, corroborated each other on all material points. Their statements render full corroboration to the prosecution version. Four persons duly armed had trespassed into the house of the complainant for the purpose of committing Harabah and as inmates of the house tried to apprehend him one of them i.e. Sher D.1 tired a shot at the chest of Abdul Majid deceased which hit him, consequently he fell down and died at the spot. The remaining three accused persons ran away while firing with their weapons. Both the witnesses have corroborated each other about snatching of pistol of .30 bore having a bullet stuck in its barrel alongwith bandolier containing 24 live cartridges, magazines and an Identity Card from the possessida, of appellant Sher D.1 and that he was handed over to police alongwith crime weapon and other articles which were taken into possession by the police of the presence of independent witnesses vide recovery memo. Exh.P.W.3/2 alongwith two empties of .30 bore Exh.P.4 picked up by the Investigating Officer during the spot inspection in the presence of recovery witness Muhammad Shafiq P.W.3. The pistol alongwith two empties were sent to Fire- Arms Expert and his report Exh.P.W.I1/16 reveals that crime --empties were fired from the same .30 bore pistol. Testimony of eye-witnesses with regard to the infliction and seats of injuries find corroboration by the evidence of Dr. Mustafa Ali, P.W.7 who had conducted post--mortem examination on the dead body of the deceased. Blood-stained garments of the deceased and blood recovered from the spot were also sent to Serologist for analysis and his report, dated 30-9- 1997 reveals that it was human blood and of the same group. Admittedly the occurrence took place at 21-30 hours and thus no one else could have been expected to be present at the time and place of occurrence per chance, and therefore, inmates of the house were the natural witnesses.
They have neither any enmity against the appellant nor have they I any motive to falsely implicate him in the offence rather he was stranger to them. In view of the evidence and circumstances discussed above, to our mind, the learned trial Judge was justified in concluding that appellant Sher D.1 alongwith his companions had trespassed into the house of the complainant for the purpose of committing Harabah but could not succeed in extorting or taking away any property from the house and during the transaction, appellant Sher D.1 committed murder of Abdul Majid, therefore. In the absence of the required proof for Harabah liable to Hadd, he was , rightly convicted for committing the offence of Harabah liable to Tazir.
22. As regards the last contention raised by the learned counsel for the complainant that in the absence of any mitigating or extenuating circumstance the learned trial Judge was not justified to inflict lesser sentence on appellant Sher D.1, it may be pointed out here that the learned trial Judge having found appellant Sher D.1 guilty of committing Harabah liable to Tazir under section 20 of the Ordinance has sentenced him under section 396, P.P.C. To undergo rigorous imprisonment for life (i.e. 25 years) alongwith a tine of Rupees one lac or in default to further undergo R.I. For five years.
A bare perusal of section 20 of the Ordinance, which for the sake of convenience and ready reference is reproduced hereinbelow, would lead to the inference that whosoever is found guilty of committing Harabah liable to Tazir has to be punished and awarded the sentence provided for the offence of dacoity, robbery or extortion in the Pakistan Penal Code as the case may be. Section 20 of the Ordinance reads as follows;-- ---20. Punishment for Harrabah liable to Tazir.---Whoever commits Harabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available, or for which punishment of imputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, or extortion, as the case may be. "
Appellant's conviction under section 396, P.P.C. Indicates that the learned trial Judge was satisfied that the instant case was a case of dacoity, as allegedly six persons had participated in the crime.
Section 396, P.P.C. Provides that if anyone of five or more persons who are conjointly committing Jacoity, commits murder in so committing dacoity, everyone of those 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 tine. It may be mentioned here that section 396 takes care of and provide punishment for two different offences i.e. Dacoity as well as murder punishable under sections 395 and 302, P.P.C. Respectively. Section 395, P.P.C. Lays down that a person found guilty thereunder may be punished with imprisonment for life or with R.I. For a term which shall not be less than four years and more than ten years and shall also be liable to fine. Whereas, under section 302(a) and (b), P.P.C. Sentences of death as Qisas and death or imprisonment for life as Tazir have been provided. In the case of Muhammad Yaseen and 2 others v. The State reported as 2002 SCMR 391 four accused persons had committed robbery in the Bank in broad daylight, in which, one person lost his life and two persons received injuries. Accused persons were apprehended after a chase given by the police and the Bank Staff and consequently fire-arm as well as robbed property was recovered from their possession. Learned trial Judge, having found them guilty, convicted all the accused persons under section 302/34, P.P.C. And sentenced each of them to death for committing murder of one Zahid Anwar, Constable. He also convicted all the accused persons under section 394, P.P.C. And sentenced each of them to undergo life imprisonment alongwith fine and further convicted them under section 324, P.P.C. And inflicted various punishments. Appeals were filed in the Lahore High Court, two of which, were dismissed and death sentence inflicted on Shah Alam Badshah and Saifur Rahman alias Hafiz Muhammad Zahid were maintained, however, the appeal filed by third convict Muhammad Yasin though was dismissed yet, the sentence of death inflicted on him was converted into imprisonment of life. Sentences awarded under section 394, P.P. To each of them were, however, maintained. The fourth accused namely Pappu was acquitted as it was found that neither he v arrested from the spot nor his identification parade was held. On a petition for special leave to appeal, which was granted, the Honourable Supreme Court of Pakistan was pleased to hold that when an offence is proved against an accused person a Judge should never hesitate to award punishment for that offence, even if it was a capital punishment. Their Lordships were further pleased to observe that leniency was being shown in matter of capital punishment by the Courts below, even in those cases where act/crime involved was of heinous nature. It was further observed by their Lordships that no doubt, a Judge ought to be lenient or compensate in awarding punishment but at the same time he should be more cautious in believing the prosecution story as it is narrated before him and efforts should not be made to look for mitigating circumstances, creating doubt in the prosecution case and extend benefit of doubt to the accused and so that the miscreants may not be set at free who are causing unrest in the society as a whole and this menace should be curbed.
Death sentences inflicted on two accused persons named above. Were resultantly maintained.
Further, in the case of Anees Ahmed alias Muhammad Umar and another v. The State reported as 2002 SCMR 1431 the accused persons were convicted under sections 302 and 392, P.P.C. And punished to death as well as ten years' R.I. Alongwith fine. Accused's counsel did not press the appeal on merits but only prayed for reduction in the quantum of sentence. It was held by the Honourable Supreme Court of Pakistan that since the accused had committed murder in the course of robbery intentionally, without any justification, therefore, he deserved to be dealt with strictly and adequate sentence was to be inflicted on him so that it may serve as deterrence to like-minded persons instead of granting lesser punishment without justification. The death sentence inflicted on the petitioner was maintained. It, therefore, follows that in the absence of any extenuating or mitigating circumstance normal penalty for murder for murder i.e death has to be imposed. This view receives support from the following reported judgments, as well:--
(i) Ijaz alias Billa and 3 others v. The State (2002 SCMR 294),
(ii) Sakhawat v. The State (2001 SCMR 244),
(iii) Muhammad Fazal v. Ghulam Asghar and others (PLD 2000 SC 12),
(iv) Ch. M. Yousaf and another v. The State (1992 SCMR 983),
(v) Waris Ali alias Dulli and others v. The State (1999 SCMR 1469),
(vi) Pervez and others v. The State (1998 SCMR 1976),
(vii) Noor Muhammad v. The State (1999 SCMR 272),
(viii) Mst. Bismillah and others v. M. Jabbar and others (1998 SCMR 862), and (ix)Muhammad Sharif v. Muhammad Javed alias Jedda Tedi PLD (1976 SC 452).
We have minutely, gone through the impugned judgment. It is not evident as, to why the learned trial Judge has inflicted 25 years' imprisonment, instead of normal penalty, on the appellant.
Upshot of the above discussion is that Criminal Appeal No.38/I of 1999. Criminal Appeal No.40/I of 1999 and Criminal Appeal No.24/P of 1999, being misconceived, are hereby dismissed. Criminal Revisions Nos.6/I of 1999 and 5/P of 1999! Are accepted. Conviction of appellant Sher' D.1 under section 396, P.P.C. Is maintained, however, the sentence of imprisonment inflicted on him is enhanced from life imprisonment to Death. He may be hanged by the neck till he is dead. The sentence of fine or quantum of imprisonment in default thereof shall remain intact. Half of the fine if realized shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. As ordered by the learned trial Judge.