' JUSTICE NAZIM HUSSAIN SIDDIQUI (CHAIRMAN).--- This judgment will dispose of Criminal Appeal No,38(S) of 1998 and Criminal Petition No,26(S) of 1998, which arise from same F.I.R.No,126 registered on 19-12-1988 at Police Station Sihala, District Islamabad.
2. The occurrence took place on 18-12-1988 at about 10-00 p.m. At Rawalpindi-Lahore GT Road near junction of Rawat and Kahuta Road about four kilometers away from said police station. F.I.R. Was recorded by Muhammad Jan, S.-I. On the complaint of Muhammad Arif, Inspector. Mirza Tahir Hussain, (appellant in Criminal Appeal No,38(S) of 1998 and respondent No,1 in Criminal Petition No,26(S).Of 1998), hereinafter referred to as "the appellant", is the accused of this case. Abdul Ghani, who prayed for enhancement of sentence from life imprisonment to death of the appellant before Federal Shariat Court, is the petitioner in Criminal petition No,26(S) of 1998, which has been filed for enhancement of compensation and he is respondent No,2 in Criminal Appeal No,38(S) of 1998, hereinafter referred to as "the respondent No,2". Jamshed Khan s/o Haji Abdul Ghani is the deceased of this case.
3. It was an un-witnessed crime. The case of the prosecution, in brief, is that Muhammad Arif Inspector/S.H.O. Of Police Station Sihala (P.W.11), who is complainant and also Investigating Officer of this case, was present in front of Amir Dad Hotel alongwith other police personnel in connection with patrol duty at 11-30 p.m. On 18-12-1998. Amjad Masood P.W.4 came to him and informed him that a person in suspicious condition was present in Taxi No,IDB-4049 at a petrol pump nearby and there was blood on the front seat of taxi. Amjad Masood further informed him that he was a salesman at said petrol pump and said person had taken petrol for his taxi, but it did not start, though he made all possible efforts in that regard. Thereafter, the complainant accompanied by said informer, Amir Dad P.W.5 and other police officials reached the petrol pump and made queries from the suspected person, but the replies given by him were unsatisfactory. The complainant searched him and found him carrying a .30 bore pistol under his clothes for which no licence was produced. Consequently, F.I.R. No,125 of 1988 was registered under section 13/20/65, Arms Ordinance on 18-12-1998 at Police Station Sihala, District Islamabad, which had its basis, on Murasila (Exh.P.N.) drafted by Muhammad Asif complainant. This Murasila, indicated that Amjad Masood informer had informed at 11-30 p.m. On 18-12-1988 about personal search and search of a bag lying in the taxi from which, inter alia, another incriminating article i.e, dagger was also recovered for which no licence was produced. Thereafter, on 19-12-1988 necessary information was sent to police station for registration of a case through Shakil Ahmed P.C. No,743. Another Murasila (Exh.P.E.), which related to the present case, was prepared by said S.H.O., after having interrogated the appellant further. It was prepared at 7-00 a.m. On 19-12-1988 at Sawan Camp and was sent topolice station through Sakhawat Ali P.C. No,351, who was not examined in this case. As per Murasila Exh.P.E., the complainant, while conducting investigation relating to F.I.R. No,125 of 1988 under section 13/20/65, Arms Ordinance against the appellant, the latter admitted that he had hired Taxi No,IDB-4049 from Rawalpindi and when it reached near Sawan Camp GT Road, he (appellant) asked the driver to stop the taxi and leave it, but the driver/the deceased had declined.
According to the prosecution, the appellant shot the driver with his .30 bore pistol in the taxi and threw him away on one side of the road. The prosecution claimed that after having done as above, the appellant drove the robbed taxi and reached the petrol pump near Rawat and obtained gasoline. Thereafter, the taxi did not start. The appellant was arrested and interrogated. It is alleged that the appellant led the police party to the place where the corpse of Jamshed deceased was lying. An inquest report was drawn in presence of witnesses, the robbed taxi was taken into possession. The appellant, who was already arrested under section 13/20/65, Arms Ordinance, was formally arrested under section 302, P.P.C. And F.I.R. In question was lodged.
4. The charge-sheet was submitted against the appellant under sections 302/392, P.P.C. Read with article 20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as "the Ordinance of 1979", before the Court having jurisdiction in the matter. Necessary charge was framed against him on 17-5-1989 to which he did not plead guilty.
5. At trial, the prosecution examined as many as 11 witnesses namely, Muhammad Akram, Draftsman, Rehmat Khan, Muhammad Jan, S.-I, Amjad Masood, Amir dad, Dr. Ali Bakhtiar, Hasrat Mohani, Muhammad Hussain, Muhammad Jamshaid, Muhammad Riaz and Muhammad Arif.
6. The following injuries were found on the person of the deceased:- 'External injuries
(1) Bruise on top of the skull on the left side, half inch dia meter skin intact.
(2) Bruise on left side of fact temporal region two inches diameter.
(3) Swelling below right eye with bruise 0.25 inch length.
(4) Blood below right nostril.
(5) Single entry wound right shoulder 1 c.m. Diameter 5.5 c.m. From shoulder joint 36 c.m. From elbow joint, (superiorly). Edges inverted margins burnt.
(6) Single exit wound left side of chest 1 c.m. Dia edges evened 13 c.m. Latterly from left nipple. 18 c.m. Inferolateral from mid left clavical.
(7) Scalp intact, blood clot below temporal region on inch diameter. External examination ' Fractured right third rib, lateral aspect. On left side 5th rib abraded, upper margin of middle of rib, plurae punctured at third rib fracture also at point of abrasion of 5th rib left side. Punctured upper lobe of the right lung, penetrating wound through and through. Blood vessels punctured superior yea cava just before arch of aorta. Chest wall punctured at point of exit. Other walls intact. Swelling of both lips stomach contains were 500 ml. Semi-digested. All the remaining organs were healthy.
7. According to the doctor, death occurred due to injury No,1 resulting in damage of lungs and vessels due to haemorrhage. This injury in the ordinary course of nature was sufficient to cause death. All injuries were declared ante-mortem and injuries Nos.1 and 2 were caused 'by fire-arm.
The factum of death is not disputed.
8. The appellant in his statement recorded under section 342, Cr .P.C. Stated as follows:- "Amjad Masood, Mir Dad and Rehmat Khan P.Ws. Being under the influence of police, have falsely deposed against. Me. Moreover, Rehmat Khan P.W. Has also deposed against me at the behest of the owner of the taxi.
' Actually I was a stranger in Pakistan and after the occurrence, I thought that P.S. Rawat is the concerned police station. I was taking the taxi and the revolver to the Police Station Rawat, when I saw the police present on the Hotel of Mir Dad. I personally produced the revolver and taxi before the police and informed the police that I had hired the said taxi for my village. Jamshaid deceased took another person alongwith him to travel from Rawalpindi to Bhubher in District Chakwal as it.
Was night journey. The companion of the deceased and the deceased started altercating with each other; in Pushto about a half mile short of place of incident. When they reached the spot, they started grappling with each other. After parking the taxi, by road side, then the companion of the deceased, told me that the deceased wanted to commit sodomy on him. On this, the deceased wiped out a pistol and wanted to fire at the companion but again scuffle took place. During that scuffle, incidentally the pistol went off and hit the deceased. The deceased then openedthe door of the taxi and went out of it to fight with the companion. By that time, his companion also went out of the taxi and the deceased fell on the grass. His companion escaped. I had been trying to give support and aid to the deceased, but he succumbed to the injuries. Then I acted as stated above.
The police enroped me in this case because on the following day, i.e, 19-12-1988, when the police realized about the failure to trace out the real culprit, then they involved me falsely in this case. On 18 and 19-12-1988, the police could not get even the address of the deceased Jamshed nor could know about the owner of the taxi. Somewhere after sunset, on 19-12-1988 they succeeded in probing the owner of the taxi and then they know about the name of the deceased. For this reason, the dead body of the deceased could not be dispatched for post-mortem examination on 19-12- 1988."
9. On close scrutiny of entire evidence brought on record, learned trial Judge, vide judgment, dated 30-9-1989, convicted the appellant under section 302, P.P.C. And sentenced him to death and to pay fine of Rs,20,000 or in default thereof to suffer R.I. For two years. He was also convicted under section 20 of the Ordinance, 1979 read with section 392, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs,5,000 or in default thereof to suffer R.I. For one year. The benefit of section 382-B, Cr.P.C.
Was extended to him and all the sentences were ordered to run concurrently. Compensation of Rs,20,000 was to be paid by him to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default thereof to undergo six months' R.I.
10. The appellant challenged his conviction and sentenced vide Criminal Appeal No,94 of 1989, which was allowed and his convictions and sentences were set aside, as per judgment dated 20- 6-1996 and the case was remanded to learned Sessions Judge to decide it again in the light of the observations of said judgment. Criminal Review No,70 of 1989 filed by the respondent No,2 was dismissed.
11. In compliance of order of High Court, learned Sessions Judge again delivered the judgment, dated 3-4-1994 and convicted the appellant on both counts viz. Section 302, P.P.C. And section 20 of the ordinance, 1979 read with section 392, P.P.C. And sentenced him under section 302, P.P.C. To imprisonment for life and to pay a fine of Rs,10,000 or in default thereof to undergo further S.I. For two years. He was also sentenced under section 20 of the Ordinance, 1979 read with section 392, P.P.C. To R.I. For seven years for committing robbery on the highway and to pay fine of Rs,5,000 or in default thereof to suffer further S.I. For one year. However, these sentences were ordered to run consecutively with the benefit of section 382-B, Cr.P.C. Compensationof Rs,20,000 were also awarded to legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to suffer S.I. For two years. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
12. The appellant again challenged above convictions and sentences through Criminal Appeal No,52 of 1994 and the respondent No,2 filed Revision No,39 of 1994. It was noticed by High Court that the appeal could only be heard by Federal Shariat Court, as such, both appeal and revision were returned for their presentation before the Federal Shariat Court.
13. The Criminal Appeal No,122/I of 1996 and Criminal revision No,22/I of 1996 were heard by a Bench of Federal Shariat Court, comprising three Honourable Judge namely, Dr. Fida Muhammad Khan, Abdul Waheed Siddiqui and Muhammad Khiyar. Justice Siddiqui extended the benefit of doubt to the appellant and acquitted him, while Justice Dr. Fida Muhammad Khan and Justice Muhammad Khiyar maintaining the conviction of the appellant under section 302, P.P.C. Altered the sentence of life imprisonment to death with an observation that death sentence would operate subject to confirmation by this Court viz. Shariat Appellate Bench of this Court with a fine of Rs,50,000 or in default thereof to suffer R.I. For two years. The conviction under section 20 of the Ordinance, 1979 read with section 392, P.P.C. Was also maintained and awarded him 10 years' R.I. And a fine of Rs,50,000 or in default thereof to further undergo for one year R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The appellant was further ordered to pay compensation of Rs,1,00,000 (one lac) to the legal 'heirs of the deceased under section 544-A, Cr.P.C., failing which he was to undergo two years' R.I. With above modification, the appeal was dismissed and the revision was allowed in above terms.
14. Above convictions and sentences have been impugned in these matters.
15. We heard learned counsel for the parties and perused the record.
16. The contentions raised before Federal Shariat Court have been repeated before us. It is contended on behalf of the appellant that there being no eye-witness of the crime the case of the prosecution solely rests upon on circumstantial evidence and the chain of circumstances never established confidence inspiring evidence to justify the conviction. It is also contended that there are substantial contradictions in the depositions of P.Ws., which by themselves are sufficient to create doubts about the correctness of the prosecution's version and that if established judicial principles would have been applied, the conclusion certainly would havebeen that the guilt of the appellant was not established. Learned counsel argued had the appellant been guilty he could easily escape when Amjad Masood P.W. Peeped inside the taxi and noticed blood on its front seat.
He also submitted that the appellant could get gasoline from another petrol pump instead of from that where the police was available, that the medical evidence, is in conflict with ocular account and it does not fit in with the prosecution's version, that the report of forensic Expert is of no consequench as, the empty and pistol were sent together to the Fire-arm Expert, that it could not be said with certainty that above pistol was recovered from the appellant, that the evidence of recovery of crime-empty, bullet and their matching is of no consequence and the same could not be used as an incriminating evidence for the reason that these pieces of evidence were manipulated by the police, that the prosecution's version as a whole is inadmissible, besides being contradictory, that the sentence was enhanced without notice to the appellant.
17. As against above, learned counsel for the respondents argued that the case against the appellant was established by a strong substantial evidence, which is irrefutable, that the witnesses had not enmity whatsoever with the appellant, who was caught red-handed with snatched taxi having blood-stained seat and was also found in possession of pistol used in the commission of this crime, that lenient view taken by trial Court in respect of the sentence was not justified and normal sentence of death should have been awarded and this mistake was rectified by learned Federal Shariat Court, that at the relevant time the appellant was 18 years, 6 months and 6 days old and being guilty of brutal murder and of committing robbery did not deserve any leniency, as such, the lesser penalty awarded to him by trial Court was violative of the dictums laid down by the superior Courts.
18. Mr. Malik Rab NawaL Noon appearing for the respondent No,2 cited Muhammad Khurshid alias Khurshid v. The State 1973 SCM R 324, Aurangzeb v. The State 1978 SCM R 255 and Fazal Hussain and another v. Suleman Khan and another 1991 SCM R 56 to contend that mere fact that accused was a young offender, it was not a valid ground for not awarding normal penalty of death. This contention is supported by Ms. Afshan Ghazanfar, A.A.-G., who appeared for the State.
19. Close scrutiny of the prosecution's entire evidence brought on record unequivocally postulates that it was the appellant and appellant alone, who had killed the deceased. It has been established that Jamshed Khan deceased was the driver of the taxi in question and the appellant hired said taxi to take him from Rawalpindi to Bhubher on the night intervening between 18 and 19 December, 1988. It is admitted by theappellant that he drove said taxi from place of occurrence to petrol pump at Rawat adjacent to hotel of Mir Dad. The appellant also admitted his presence at the relevant time at place of occurrence. The dead body o the deceased was recovered after the disclosure was made by him to the police. The dead body was lying in the bushes and not in the taxi. P.W.4 maintained that the appellant brought taxi at the petrol pump, got it refueled and tried to start it but failed. Said P.W. Noticed blood-stains on the front seat and thereafter, informed the police officials available at the hotel immediately. All this happened swiftly. The police officials immediately reached the petrol pump alongwith owner of the hotel and saw him in the taxi, when he could not produce its necessary documents. Thereafter, pistol and Khanjar were recovered from him. In the meantime, Rahmat Khan P.W. Alongwith Sohbat Khan and Sher Khan also reached the petrol pump and identified the taxi, which belonged to Sher Khan. Thereafter, the appellant in police custody led the police to the place of occurrence and pointed out the dead body the deceased.
20. The story of alleged scuffle between the deceased with another person, neither named nor his particulars provided, ex facie, does not inspire confidence_ In the normal course of events, the companion of the deceased, who allegedly grappled with the deceased and killed him, must A have been taken the pistol with himself and not threw it away at the scene of occurrence. The appellant did not disclose his defence version to the police at the time of arrest nor it was put to the P.Ws. At the earlier stage. It was afterthought. It was only put to P.W.11, who vehemently repudiated it. The robbed taxi was recovered from his possession soon after the occurrence and this proved that he was guilty of snatching it. There is a chain of unbroken circumstances showing that he had committed the murder. It is significant to note that after gets' the taxi refueled, he tried to start it and never informed the police about the earlier part of the incident. It is significant to note that two different Sessions Judges delivered judgments in this case and both believed the prosecution's version and convicted the appellant under section 302, P.P.C. Federal Shariat Court rightly awarded death sentence to the appellant.
21. We are of the view that, under the circumstances, the appellant was not entitled to any leniency nor we find any ground for enhancing compensation to the heirs of the deceased as prayed in Criminal Petition No,26(S) of 1998. Accordingly, both appeal and petition are dismissed.
Appeal/.