2007 PLP 1506 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Special Anti-Terrorism Appeal No.57 of 2001 and confirmation case No.8 of 2001 as they arise out of a common judgment.

2. Brief facts giving rise to the present appeal and confirmation case are that the deceased Safdar Ali was Manager in United Bank Limited, Workshop Branch, Sanghar. He was residing in Ward No.8 Sanghar along with his family members. On 9-1-1999- at about 7-30 a.m. the deceased on his new motorcycle which he had purchased few days back with his daughter P.W.6 Manza and niece P.W.7 Quratulain both aged about 11 years left the house for leaving the girls in the school. Within one or two minutes the motorcycle reached near the house of Jaipuri on Mithi Khual Road were a white Jeep was parked in which a person was sitting on driver's seat, two persons were standing near the said Jeep. The said two persons were armed with pistols and on the pistols' points the motorcycle of the deceased was got stopped. Both the persons had muffled their faces. They asked the deceased to leave the motorcycle, therefore, scuffle took place between one of the culprits and the deceased with the result that muffle on his face was removed and the deceased told him that he was identified, Suddenly that person fired from his pistol at the deceased who received the injury on his left eye. The other culprit pushed the deceased. During that period, the muffle of the second culprit was also removed. The deceased fell down on the ground and then the culprits took away the motorcycle. The white Jeep parked there followed the culprits. The P.W. 6 immediately rushed to her house to inform the incident to his uncle Azhar Abbas, the complainant who after hearing the incident rushed to the place of incident where he found the deceased lying in injured condition. A police mobile van also reached there. The deceased was shifted to the hospital but he was declared dead therefore, the complainant went to police station and lodged the report at 9-30 a.m.

3. After registration of the case, the police went to the hospital where they completed the formalities of the dead body. Thereafter the Investigating Officer P.W. 20 S.H.O. Abdul Haq went to the place of incident where he found blood lying there. There were one empty bullet shell and one live bullet lying at the place of incident. The articles were secured. Sealed and such mashirnama was prepared. He then recorded the statements of P.Ws. On 9-2-1999, the appellants were arrested while coming on a white jeep from whom arms and ammunition were secured. The Jeep was also seized. After the arrest, the appellants were produced before a Magistrate for holding identification test through the eye-witnesses P.Ws. 5 to 7 where they identified the appellants to be the culprits of the crime. On the same date at 5-00 p.m., .the two appellants namely Ghulam Akbar and Qasim led the police party and produced pistols and revolvers, which the police secured and sealed. Thereafter both the appellants led the police to a sugar cane crop, which was near the house of the appellant Ghulam Akbar and produced the robbed motorcycle, which the police secured, and such mashirnama was prepared. The Jeep and the motorcycle secured from the possession of the appellants were produced before the Magistrate for holding identification tests through the witnesses. The identification tests were held and the witnesses 5 to 7 identified the Jeep to be a same, which was seen by them at the place of incident' and the motorcycle to be the motorcycle of the deceased. After completing the usual investigation, the appellants were challaned in the Court.

4. The learned Special Judge Anti-Terrorism Court for Hyderabad and Mirpur Khas Divisions at Hyderabad framed the charge for offences punishable under sections 302 and 392 read with section 34, P.P.C. The appellants pleaded not guilty to the. charge. The prosecution examined 20 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. They did not examine themselves on oath or lead any evidence in their defence.

5. The learned trial Judge after considering the evidence and hearing the parties counsel convicted the appellants for offence punishable under section 302 read with section 34, P.P.C. and sentenced each of them to death. They were further convicted for offence punishable under section 392, P.P.C. and sentenced to suffer R.I. for 10 years and fine of Rs.25,000 each or in default thereof, to suffer R.I. for lane year with benefit of section 382-B, Cr.P.C. under the judgment dated 6-5-1999. The appellants were dissatisfied with the said judgment, therefore, they preferred an appeal. On 6-4-2000, the appeal was allowed and the case was remanded to the trial Court for proceedings with the case afresh from the stage of charge, as the charge for offence punishable under Anti-Terrorism Act was not framed.

6. The trial Court after receipt of the case re-framed the charge with the heading "amended charge" for offences punishable under sections 302, 392 read with section 34, P.P.C. and section 7 of Anti-Terrorism Act, 1997 on 2-6-2000. The appellants again pleaded not guilty to the charge. On the same date, the learned prosecutor made a statement in writing by which he adopted the evidence that was previously recorded and to examine some additional witnesses on the point of amended charge. The learned defence counsel under the instructions of the appellants made a statement in writing by which he informed the Court that he would cross-examine eight witnesses, viz., Doctor, Investigating Officer, complainant, Magistrate. P.Ws.4 to 6 and mashir Abdul Rasheed. On 3-6-2000, the learned Advocate for the appellants made another statement in writing by which he informed the Court that he would not cross-examine the other witnesses as they were already cross-examined before the amended charge. In pursuance of the above statements, the Advocate for the appellants cross-examined the listed witnesses as per his statement dated 2-6-2000. The prosecution examined four more witnesses on the point that incident had created terror in the area. The trial Court recorded the statements of the appellants under section 342, Cr.P.C. in which they denied all the allegations of the prosecution but they examined two defence witnesses.

7. The learned trial Judge after considering the evidence available on the record and hearing the parties' counsel convicted the appellants for offence punishable under section 302, P.P.C. and sentenced each of them to death. The appellants were further convicted for offence punishable under section 392, P.P.C. and sentenced to suffer R.I. for 10 years and fine of Rs.50,000 each or in default thereof to suffer R.I. for two years with benefit of section 382-B, Cr.P.C. They were further convicted for offence punishable under section 7 of Anti-Terrorism Act, 1997 and awarded death sentence under the impugned judgment dated 6-7-2000. The appellants were dissatisfied with the said judgment therefore, they have filed the present appeal. The learned trial Judge has sent reference under section 374, Cr.P.C. for confirmation of death sentence.

8. We have heard the advocates for the appellants, complainant, A.A.-G. for the State, and perused the record of this case very carefully. The learned Advocate for the appellants has stated that after the remand of the case the trial Court was required to try the case afresh by framing a fresh charge and re-recording the evidence of all the witnesses afresh but the trial Court has committed illegality by just framing amended charge and adopted the evidence which was already recorded therefore, it has caused a miscarriage of justice as the evidence was not recorded in the presence of appellants as provided under section 353, Cr.P.C. and the remand order passed by this Court was not complied with properly, therefore, the case may be again remanded to the trial Court for compliance of the order passed by this Court on 6-4-2000.

9. As regards the merits of the case, the learned Advocate for the appellants has stated that the prosecution has relied upon five pieces of evidence (1) Ocular testimony; (2) Recovery of motorcycle; (3) Recovery of Jeep; (4) Recovery of pistol from appellant Akbar with matching report of the ballistic expert; and (5) Identification test. He has further stated that ocular testimony consists of three witnesses out of them P.W.5 was not the resident of Sanghar Town but he was residing in his village and that he is a set up witness. He has further stated that P.Ws.6 and 7 were minor girls at the time of incident therefore, they were tutored, not present at the scene of incident and their evidence is full of improvements, exaggerations and contradictions therefore, it is very unsafe to rely upon the evidence of child witnesses. As regards the identification test of the accused through P.Ws.5 to 7 he has stated that no features of the culprits were disclosed by the witnesses to the police; that they did not assign the role to each appellant; that the witnesses had seen the appellants before the identification test in the Court and that the dummies in all the identification tests were same therefore the the identification tests have become doubtful. As regards the recovery of robbed motorcycle from the possession of appellants. Akbar and Qasim he has stated that it was a joint recovery which cannot be relied upon in view of Article 40 of Qanun?e-Shahadat Order therefore, it has no evidentiary value. As regards the recovery of Jeep, which was found by the witnesses at the place of incident, he has stated that the appellants were not arrested in the manner as claimed by the prosecution; that the Jeep was .in possession of its owner P.W. Muhammad Sharif who has not supported the prosecution case, therefore, the recovery from the possession of the appellants is highly doubtful. As regards the recovery of pistol which was used in the commission of this crime and secured from the possession of appellant Akbar he has stated that the pistol has been foisted upon the appellant to involve him in the case falsely. In support of his arguments, he has relied upon Amir Khan v. State (PLD 1985 Lah. 18), Qaimuddin v. State (1971 PCr.LJ 229), Bagh Ali v. Muhammad Anwar (1983 SCMR 1292), Mujahid Hussain v. State (1985 SCMR 1573), Muhammad Yaqoob v. The State (PLD 2001 SC 378), Rasool Bux v. State (1980 SCMR 225), Munawar Niamat v. Federation of Pakistan (NLR 1991 SCJ 291) and Abdul Khaliq v. State (1996 SCMR 1553).

10. On the other hand the learned Advocate for the complainant has stated that the trial Court has not committed any illegality in adopting the evidence of the witnesses whose statements were recorded in the earlier trial as the said statements were adopted with the consent of the appellants; that the said statements were recorded in the presence of the appellants; that the appellants opted to cross-examine eight witnesses and they fully availed the opportunity; that the learned Advocate for the appellants cross-examined all those witnesses at length as a lengthy cross-examination was conducted by him; that no prejudice has been caused to the appellants; that the case was remanded only on the point of framing the charge for offence punishable under Anti-Terrorism Act, that the trial Court has framed the said charge and recorded additional evidence covering the said charge because the evidence was already recorded in respect of other offences on which the charge was already framed in the case, therefore, he has stated that the case is not required to be remanded to the trial Court but a decision may be given at this stage.

11. As regards the merits of the case the learned Advocate for the complainant has stated that all the three eye-witnesses have fully supported the prosecution case and implicated the appellants with the commission of this crime; that their presence at the scene of incident cannot be doubted because both the minor girls who were quite intelligent girls and competent to give evidence were being taken to the school by the deceased and on the way to the school this incident took place; that there are no material contradictions in their evidence; that the presence of P.W.5 was established from the statement of P.W.7. As regards the identification test he has stated that the learned Magistrate performed all the legal formalities and then conducted the identification test in which all the witnesses had correctly pointed out the appellants and that they assigned role to each appellant which they had performed at the place of incident therefore, there is no illegality in the identification test. As regards the recovery of the motorcycle from the joint possession of the two appellants, he has stated that the said recovery is not hit by Article 40 of Qanun?e-Shahadat Order and can be safely relied upon. As regards the recovery of Jeep from the possession of the appellants, he has stated that the Investigating Officer had arrested the appellants in presence of mashirs; that they have supported the prosecution case and through their evidence, the arrest and the recovery of Jeep have been established that was subsequently identified by the witnesses to be the same Jeep, which was used in the commission of the crime. As regards the recovery of crime weapon he has stated that the said weapon was produced by the appellant Akbar in presence of Investigating Officer and mashir who was a private and independent witness; that they both have supported the prosecution case, that there is no discrepancy in their evidence therefore, the said evidence can be safely relied upon. He has further stated that the empty secured from the place of incident matched with the said pistol as per ballistic expert report. He has supported the impugned judgment.

12. The learned A.A.-G. has stated that the remand order shows that the charge of Anti-Terrorism Act was not framed therefore, the case was remanded to the trial Court for retrial from the state of charge; that a portion of the judgment cannot be read in isolation but the entire judgment is to be read so as to draw the intention of the remand order; that from the perusal of entire judgment it reveals that the case was remanded for a limited question with regard to the framing of charge of Anti-Terrorism Act as the charge in respect of murder and robbery was already framed and the evidence was recorded on the said charge therefore, the trial Court was not required to record the evidence on the said charge; that the trial Court has rightly adopted the procedure by amending the charge and allowing the parties to lead evidence in support of their respective cases; that section 231, simply provides that the parties may ask to recall the witnesses if they are examined but the parties did not avail the said opportunity with regard to the evidence recorded to prove charge of offences punishable under sections 302 and 392, P.P.C.; that the Hon'ble Supreme Court of Pakistan in the recent decision reported in Abdul Ghaffar v. State (2006 SCMR 56) has decided this point and has observed that if the parties did not ask the Court to recall the witnesses then they cannot agitate subsequently against the procedure adopted by the Court therefore, he has argued that there is no illegality in the trial hence the case is not required to be remanded to the trial Court.

13. As regards the merits of the case, he has adopted the arguments of the learned Advocate for the complainant but further added that the cases of all the three appellants are distinguishable from each other. He has stated that from the evidence the appellant Akbar is responsible for offence punishable under sections 302(b) and 304, P.P.C. read with section 7(ii) of Anti-Terrorism Act, 1997. As regards the case of appellant Qasim, he has stated that section 302, P.P.C. is not applicable but he will be responsible for offence punishable under section 394 read this section 397, P.P.C. As regards the case of appellant Luqman he has stated that he was simply sitting in the Jeep at the time of incident; that no overt act has been assigned to him, that no P.W. has stated that he came out from the Jeep therefore, his case is doubtful.

14. We have given due, consideration to the arguments gone through the evidence with the help of learned Advocate for the appellants and found that the case of prosecution rests upon five pieces of evidence; (1) Ocular testimony; (2) Identification test of the appellant; (3) Recovery of motorcycle and its identification test; (4) Recovery of Jeep and its identification test; and (5) Recovery of crime weapon with its matching ballistic expert report with crime empty. (sic) advocate for the appellants. The details of earlier trial have been mentioned in the earlier part of the judgment. In the appeal while challenging the judgment of the trial Court, delivered on 6-5-1999 the learned Advocate for the appellants argued that the charge in the matter was framed under sections 302 and 392 read with section 34, P.P.C. only and that no charge under the Anti-Terrorism Act was framed in the case therefore the entire case had proceeded as an ordinary trial having no reference of the Anti-Terrorism Act in the impugned judgment and that even no question was put to the appellants for offence punishable under sections 6 and 7 of the Act, 1997 therefore, the trial Court had no jurisdiction in the matter and hence conviction was required to be set aside. The learned Assistant A.-G. also conceded to the above position therefore, this Court while setting aside the conviction and sentence remanded the case to the trial court only to proceed with the case afresh from the stage of charge with permission to the appellants to raise the point of jurisdiction before the trial Court if they were advised to do so. It will be noticed that there was no allegation that the evidence recorded in the case was not proper. However, the learned Advocate for the appellants had argued that the Court had no jurisdiction in the matter.

16. It appears from the order of this Court that the conviction and sentence were set aside because of the fact that no charge for offence punishable under section 7 of the Act, 1997 was framed but it was not set aside for want of jurisdiction as the appellants were permitted to raise' such point' before the trial Court if they were (sic) section 23 of the Act, 1997 before the trial Court to transfer the case. The learned trial Judge after hearing the parties' counsel dismissed the application on 28-5-2000. The said order was not challenged by the appellants before this Court. Even otherwise when the offence was committed viz. on 9-1-1999 the offence of murder with robbery was a scheduled offence as such the Anti-Terrorism Court had jurisdiction to try the said offences during the first trial. Thus, the evidence recorded in the earlier trial was in accordance with law and by - the Court having jurisdiction to try the offences. When the said evidence was recorded at that time the appellants were present and provided opportunity to cross-examine all the witnesses which they availed of, as such, there was no violation of section 353, Cr.P.C. in recording the evidence in the earlier trial.

17. When the case was remanded to the trial Court the evidence on the charge for offences punishable under sections 302, 392 and 34, P.P.C. was already on the record, which was recorded as per law, by the Court of competent jurisdiction. Before the appellate Court objection was raised that offence punishable under the Act, 1997 was not included in the charge and the allegation of said offence was not put to the appellants in their statements recorded under section 342, Cr.P.C., therefore, the trial was bad. This Court accepted that plea and the case was remanded to the trial Court for retrial from the stage of charge. Thus the judgment of this Court was clear that the retrial was ordered in respect of offence punishable under the Anti-Terrorism Act, 1997, therefore, the trial Court framed the fresh charge mentioning the offences. The trial Court has given the heading to the charge as "amended charge".

18. Under section 231, Cr.P.C. if the charge is altered then the Court is required to allow the prosecutor and accused to recall or re-summon or examine with reference to such alteration or addition of the charge, any witness who may have been examined or also to call any further witness whom the Court may think to be material. In pursuance of the above provision of law the prosecutor did not find it feasible to recall the witnesses whose statements were earlier recorded but requested that he would call further witnesses to prove the amended charge on the Act of Terrorism vide statement dated 2-6-2000. On the same date, the learned defence counsel simply requested the Court that he would cross-examine eight witnesses out of the witnesses whose statements were earlier recorded. The details are already mentioned in the earlier part of the judgment. The Court allowed the request of the defence counsel and recalled those witnesses. The defence counsel conducted lengthy cross-examination to those witnesses. It is further pointed out that the examination-in-chief of all these witnesses were recorded in presence of the appellants in the earlier trial and then the cross-examination was also conducted in their presence as such there is no violation of section 353, Cr.P.C. The prosecutor also examined four more witnesses in presence of the appellants to whom the defence counsel thoroughly cross-examined thereafter the statements under section 342, Cr.P.C. were recorded in which all the material pieces of evidence brought on the record were put to the appellants and they explained the circumstances appearing in the evidence. As such, there is no illegality or irregularity in the trial. However, the provisions of section 231, Cr.P.C. have been examined by the Hon'ble Supreme Court of Pakistan in the case of Abdul Ghaffar's case (2006 SCMR 56) in paragraphs 4 to 7 and has observed as under:-- "(4) Since the question of non-compliance of section 231,. Cr.P.C. has been raised, it would be appropriate to reproduce the said section for ready reference:-- "

231. Recall of witnesses when charge altered.

"Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material." According to this section, whenever a charge is altered or added by the Court, after commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon and examine with reference to such alterations or additions, any witness who may have been examined-, the section couched in the words indicative of the fact that first a request or an application be made to that effect as 'to allow' or grant of permission is generally preceded by a request or application. Since no such request or application has been made, therefore, it was not necessary for the Court to examine or recall or re-summon the witnesses. In this respect reference can be made to cases from Indian jurisdiction Konmal and another v. Emperor AIR 1930 All. 215, wherein it was held:-- "There is no duty laid on the Court under or re-summon prosecution or defence witnesses and so there is no breach of any provisions in section 231 if the Court does not so enquire. It is essential that the accused should ask for permission." And another case of Musahru and others v. Emperor AIR 1930 Pat. 355, in which it was held:- "Had the accused after the amendment of the charges made a fresh application or renewed their application to the learned Judge to have defence witnesses summoned, such application could hardly be resisted, but in fact at the trial itself no such application was made and I think it must be taken that the wish on the part of the accused to have those witnesses summoned was abandoned." In the case of Muhammad Bakhsh v. The State (1968 PCr.LJ 1901), it was held that:-- "It is true that under section 231, Cr.P.C. the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party has to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by the section was not allowed."

5. Furthermore, the re-summoning and re-calling or examination would be with reference to such alterations or additions. If we read both the charges, there is no substantial alteration in the charges as the earlier charge was for attempt at the life of the complainant by firing at him effectively and in the latter amended charge, the same allegations have been levelled i.e. the attempt at the life of the complainant by firing at him effectively with addition of causing injury to him. The earlier charge by mentioning the firing effectively is reflective of the fact of causing injury to the complainant and hence the first charge, which is graver offence punishable with sentence more than the one provided for added offence under section 337-F(ii), P.P.C. also covets the latter offence.

6. Moreover, if it is taken to be an irregularity by not recalling, re-summoning or examining the witnesses after the alteration of the charge of the nature as in the instant case, then it is curable under section 537, Cr.P.C. and the conviction and sentence passed . against the petitioner cannot be reversed and moreso when the objection was not raised at the trial and even, later on, during the hearing of appeal which negate the occasion of any failure of justice in view of the explanation to section 537, Cr.P.C. which reads as under: "Explanation.

In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

7. Resultantly, we see no force in this petition and the same is dismissed. Leave refused."

19. The above rule laid down by the Hon'ble Supreme Court of Pakistan is fully applicable to the facts and circumstances of the present case. Furthermore the appellants were not prejudiced in their defence in any. manner as they were given full opportunity to cross-examine the witnesses which they availed as such there is no failure of justice in the trial of the case hence the arguments of the learned Advocate for the appellants are without any force.

20. Now we will take the ocular testimony, which consists of three witnesses viz., P.W.5 Azhar Abbas, P.W.6 Manza, P.W. Quratulain and corroborative evidence of complainant P.W.4 Akhtar Abbas.

21. The evidence of P.W.5 reveals that he was returning to his house, where he was residing with the deceased, after purchasing milk and when he reached at the place of incident he found the deceased coming on motorcycle along with P.Ws.6 and 7 as he was to leave the girls in the school, it was about 7-45 a.m. He saw two persons standing on the road wearing shawls. They took out pistols and got stopped the motorcycle of his brother. One of them caught hold of his brother, the second person kept pistol on his left eye, and thereafter he fired his pistol at him. The other person pushed his brother and then his brother fell down on the ground. His evidence further reveals that both the culprits became unmuffled. Thereafter they robbed the motorcycle of the deceased, took it away by riding on it and he saw their faces clearly. He also saw 'a white colour jeep parked behind the motorcycle in which one person was sitting, he also saw him clearly as the Jeep passed him. His evidence further reveals that P.W.6 ran towards her house. He tried to stop some vehicle to take the deceased but he could not do so therefore, he went to the house. After reaching there he was informed that the complainant and P.W.6 had already left for the place of incident therefore, he returned to the said place but the deceased was already removed to hospital. He went to the hospital where he came to know that the deceased had died and the complainant had gone to police station.

22. The evidence of P.Ws. 6 and 7 aged about 11 years shows that first the Court asked preliminary questions to form an opinion about their ability to give statements, in the Court. After putting such questions the Court formed the opinion that the witnesses were intelligent and able to give statements thereafter their statements were recorded. Their evidence reveals that on 9-1-1999 at about 7-45 a.m. the deceased took them on motorcycle to leave them to their school. When they reached at the place of incident, they saw a white colour Jeep parked on the road in which one person was sitting. Two persons were standing near the Jeep who had muffled their faces. Both the said culprits stopped the motorcycle on pistols' points. They asked the deceased to leave the motorcycle but the deceased resisted and during scuffle, muffle of one person was removed and the deceased told him that he was identified thereafter another culprits caught hold of the deceased. His muffle was also removed during the scuffle. The first culprit fired from his pistol, which hit the deceased. Then the second culprit pushed the deceased who fell down on the ground and then they took away the motorcycle of the deceased. They further stated that they saw the said White Jeep following the motorcycle. Thereafter P.W. went running to the House to inform the incident. Where she met with the complainant and she narrated the facts to him. He reached the place of incident along with P.W.6 where he found the deceased lying injured and then a police mobile came in which the deceased was shifted to hospital where he was declared dead by the medical officer and then the complainant went to police station for lodging the report.

23. The evidence of P.W.4 complainant Akhtar Abbas reveals that he was residing in the house of the deceased. On 9-1-1999 at about 7-30 a.m. the deceased took his daughter P.W.6 and niece P.W.7 to leave them in their school on his motorcycle. At about 7-45 a.m. P.W.6 came weeping and told him about the incident, therefore, he rushed to the place of incident where he found his brother lying injured with fire-arm injuries on his person. A police mobile van also came there, therefore, he took the deceased in injured condition to the hospital but he was declared dead by the medical officer, therefore, he went to the Police Station and lodged the report.

24. From the above ocular testimony, it is clear that two persons who were armed with pistols stopped the deceased's motorcycle on pistol's point. In the initial stage they had muffled their faces but during the commission of the offence their faces became open as their muffles were removed therefore the witnesses were able to see their faces. One of the culprits fired at the deceased. The second culprit pushed the deceased and then the deceased fell down on the ground, thereafter, both the culprits took away the motorcycle of the deceased. From the evidence it is further clear that the white colour Jeep was parked therein which one person was sitting, he was wearing shawl and after the incident the said Jeep followed the culprits. All the three witnesses were thoroughly cross-examined by the defence counsel but nothing came on record to discredit their evidence. Their evidence is unanimous on all the material particulars of the case. Their evidence is corroborated by the complainant.

25. The learned Advocate for the appellants attacked the evidence of P.W.5 on the ground that he was not available at the scene of incident. His presence at the scene of incident has been established from the statement of P.W.7 as in her cross- I examination she replied to the question of the defence counsel that when the accused were trying to escape her uncle Azhar Abbas arrived there. Thereafter the defence counsel tried to challenge her said statement but she denied the same. However, she gave further explanation, which further establishes the presence of P.W.5 at the scene of incident. As such, it is proved that the P.W.5 was present at the place of incident and saw the incident. His statement is fully supported and corroborated by-the P.Ws.6 and 7 who are natural witnesses and their presence at the place of incident cannot be doubted. Thus, the prosecution has proved the incident as mentioned above.

26. The next piece of evidence through which the involvement of the appellants has been tried to be proved is their identification through the above named eye-witnesses before the Magistrate. In order to prove the said piece of evidence the prosecution examined P.W.3 Judicial Magistrate. He conducted the identification test on 9-2-1999. According to him he conducted three separate identification tests of each accused. He mixed up 10 dummies with the appellant Luqman as his identification test was held before the identification tests of other appellants. He called the P.W.5 to identify him and he correctly identified the said appellant. Then he was sent back and again called to identify the said appellant, which he did, and for the third time he was again called and he identified the said appellant. In the same manner, he conducted the identification tests of remaining two appellants through this witness. The identification tests of the remaining appellants were also conducted through the remaining two witnesses in the abovementioned manner as each witness had identified each accused for three times. A question was asked from the Magistrate about the dummies as to whether in all the three identification parades the dummies were same or otherwise to which he replied as under:- "I cannot say now whether I changed the dummies in respect of every suspect or mix the suspect every time with the same dummies."

27. Thus, it is clear that the Magistrate was not sure whether the dummies were same or otherwise but he stated that the identification tests were held in presence of two mashirs namely Ghazanfar Hussain and Muhammad Saleem. The prosecution examined mashir Ghazanfar as P.W.11. The defence counsel asked similar question from this witness and he replied that all the 10 dummies were same in all the three identification tests. This point has further been clarified by P.W.6 as she stated in the cross-examination which was conducted during the first trial that she identified all the accused from the same dummies who were mixed up with the accused for the first time so also in the case of third accused. When the second trial was conducted and she was cross-examined for the second time she further confirmed her earlier statement by again admitting that for all the three identification parades, the dummies were same but their positions were changed. Thus, it is clear that in all the three identification parades the dummies were same.

28. An identification parade is held in order to see whether the witnesses are able to recognize the culprits who was seen at the time and place of incident. For that the dummies who are unknown to the witnesses are required to be mixed up with the said accused person with a view that from all the unknown persons whether the witnesses are able to identify the culprits or otherwise. If the dummies are same in all the identification parades of different accused persons then the witness will be in a position to pick out a new face from the same dummies, who were already seen by him in the earlier identification parade. Thus, for each identification parade of an accused person the Court is required to arrange new dummies who are unknown to the witnesses so that the witnesses can pick out the culprits from the persons whose faces were not already seen by them. If the same dummies are mixed up with the other accused persons who were already seen by the witness in respect of one accused person then in my humble view it will be against the principle of natural justice. It will also affect the transparency of the test. Hence the same would not fulfil the requirements of law but on the contrary, it is against the spirit of identification test.

29. In the present case, for the first appellant Luqman the dummies were new and unknown to the witnesses therefore, at the most his identification test can be held to be legal and proper. It is further pointed out that the witnesses had seen the dummies for three times for each accused person and then the same dummies were mixed up with the second and third accused person, therefore, the identification tests of appellants Akbar and Qasim cannot be held to be legal and proper and fulfil the requirements of law therefore, the identification test in respect of appellants Akbar and Qasim carry no weight at all.

30. Most important point in the case of the identification test is that the witnesses had no opportunity to see the faces of the culprits before the identification test. If the culprits are shown or seen by the witnesses before the identification test then such identification test carries no weight. In the present case, the P.W.5 stated that when they reached in the Court all the three accused persons were already present there. From this statement, it appears that the witnesses, saw the accused persons in the Court on' their arrival, therefore, they had stated after seeing them that the accused persons were already present there. P.W.6 has further clarified this point as she stated that when they reached at the Court she saw the accused persons already sitting outside the Court. She admitted this fact during the first trial. When this witness was cross-examined for the second time after the remand of the case, she again stated that she had seen the accused persons with handcuffs and without muffles in the Court. Thus, it has been established through these witnesses that before the identification tests they saw the accused persons in the Court. The third eye-witness P.W.7 did not state anything about the above fact in examination-in-chief or in the cross-examination which was conducted during first trial but during the cross-examination of second trial she stated that she had not seen any of the accused persons in handcuffs or with covered faces before the identification parade in the Court premises. Thus, two contradictory statements have appeared in the statements of prosecution witnesses. Two views, theories and possibilities emerge from the evidence; one favouring the appellants and second favouring the prosecution. In such a situation, it is well settled that if two views, theories or possibilities are available in the evidence of the prosecution witnesses then the view, possibility and theory favourable to the accused has to be adopted and 'accepted. Reference is invited to cases Muhammad Ashrafv. Ghulam Safdar, 1989 SCMR 1944, Sher Hussain v. State PLD 1959 SC 480, Wall Muhammad v. Nawab 1984 SCMR

914. In the present case from the statements of P.Ws.5 and 6 it appears that the witnesses had seen the appellants before the identification tests, therefore, such possibility is required to be accepted. In such a situation, the identification tests have lost their evidentiary value. Thus, the prosecution has failed to prove this piece of evidence against the appellants.

31. Now we will take up the recovery of motorcycle of the deceased from the possession of appellants, Akber and Qasim. In order to prove the said recovery the prosecution relied upon the evidence of P.W.12 Nazir Ahmed and Investigating Officer P.W. 20 S.H.O. Abdul Haq. P.W.20 in his statement deposed that on 9-2-1999 both the appellants led them to a sugar cane crop of Jamalluddin, which was at a distance of about 20 paces away from the house of appellant Akbar, and they took out motorcycle from there, which was secured in presence of mashirs Nazir Ahmed and Abdul Sattar. The prosecution examined P.W.12 Nazir Ahmed. He supported the, Investigating Officer and specifically stated that both the accused took them to sugar cane cultivation and took out motorcycle from there, which was secured by the police and he signed the mashirnama. The said motorcycle was produced before the Magistrate for holding identification test through P.Ws.5 to

7. The Magistrate P.W.3 stated that he had mixed up to similar motorcycle with the said motorcycle and then the witnesses 5 to 7 were called separately who identified the motorcycle to be the motorcycle of the deceased, which was robbed. The P.Ws.5 to 7 also stated that they identified the motorcycle of the deceased from the identification parade supervised by the Magistrate, which was present before the Court. Thus, it has been established beyond any shadow of doubt that the robbed motorcycle of the deceased Was recovered from the joint pointation and possession of the appellants, Akber and Qasim.

32. The learned Advocate for the appellants has stated that the said recovery is inadmissible under Article 40 Qanun-e-Shahadat Order as it was a joint recovery therefore, it cannot be safely relied upon. The above point was considered by a Division Bench of this Court' in a case of Ajab v. State (2004 MLD 180) in which one of us namely Rahmat Hussain Jafferi, was one of the members and author of the judgment, after considering judgments of the Hon'ble Supreme Court of Pakistan observed that such recovery is admissible under Article 21 of Qanun-e-Shahadat Order, 1984. A detailed discussion has been made in paragraphs 18 and 19 of the judgment. They are as under:-- "(18) The learned Advocate for the appellants has stressed upon the point of recovery of abductee and Jeep on the joint pointation of both the appellants. and .relied upon the cases of Amir Ali, Faquira, Rafiquddin Ahmed, Khalas Khan and Abdul Ghani (supra) on the proposition that. the evidence of jointly pointing out the place of recovery is not admissible against any of them and cannot be relied upon. All these authorities and some more authorities viz., Abdul Kaleem v. State reported in 1992 PCr.LJ 1314 (Hon'ble Supreme Court, Appellate Jurisdiction) and Naeem Akhtar v. State reported in 1993 PCr.LJ 769 (Federal Shariat Court) were considered by a Division Bench of this Court in Criminal Appeal No.193 of 1994 (Naseem Akhtar v. State), decided on 4-5-1998, in which detailed discussion has been made on the above point. The learned Judge of the Division Bench had distinguished the abovementioned authorities and observed that joint pointing and joint recoveries are admissible in evidence under Article 40 of the Qanun-e-Shahadat Order, therefore, joint recovery of handkerchief, joint pointation of place of recovery of dead body of deceased on the pointation of appellants were found to be admissible and reliable and convicted the said appellants. The said decision of this Court was challenged before the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan in the case of Naseem Akhtar v. State reported in 1999 SCMR 1744 did not decide the said point in the said appeal but left the said point to be decided by an' authoritative judgment at some other time. Thus the decision arrived at by this Court in the above cases, on the above point was neither accepted nor rejected by the Hon'ble Supreme Court but left the said decision intact as it is. However, the abovementioned pieces of the evidence were relied upon by the Hon'ble Supreme Court of Pakistan and it maintained the judgment of this Court after relying upon the case of Gul Jamal v. State (1980 SCMR 654) which was also relied upon by this Court, it will be advantageous to reproduce the relevant portion of the said judgment appearing at pages 1765 to 1768, which reads as under: "The High Court in the impugned judgment, despite the fact that the pointation and the_ aforesaid recoveries were joint, accepted the same as admissible distinguishing various judgments cited before the High Court for the proposition that joint pointation and joint recoveries are inadmissible in evidence. Judgments cited by learned Advocate for the appellants support the proposition that joint pointation and joint recoveries are not admissible. However, we do not consider it necessary in this case to decide this question as, according to us other reliable evidence is available or corroborating the retracted judicial confessions of the two appellants. We may, however, observe that in some other appropriate case the question regarding admissibility or otherwise of joint or simultaneous pointation and recoveries can be decided by the authoritative judgment of the Court."

16. Reference may now be made to a judgment of this Court in the case of Gul Jamal v. State (1980 SCMR 654). In that case also there were two appellants before this Court in-the murder case, after their arrest, the appellants led the S.H.O. to a place where they had washed the blood from the tonga and discarded the clothes of the deceased and to a place at a distance of hundred yards further from where a torn shalwar and a piece of the shirt of the decease were secured. Both the appellants led the S.H.O. to a house from where one of the appellants, Gul Jamal had picked up a blood-stained dagger. An objection had been raised regarding joint pointation and recoveries and in this context it was observed as follows:-- "It, was contended that the joint recoveries should not be accepted as pieces of corroboratory evidence for such evidence of conduct under section 8 of the "Evidence Act, 1997". In evaluating this submission, the weight of authorities have judged this piece of evidence on the footing of a statement made to a police officer under section 27 of the Evidence Act, 1997 which leads to the discovery of a fact and for reference sake we may here cite Fagira and others v. Emperor (AIR 1929 Calcutta 184). In this connection it will be of relevance to refer to Monir's Commentary on the Law of Evidence, 1974 Edition, at page 62 of his book:-- "If, however, two or more persons are alleged to have pointed out a relevant fact, it must be shown who pointed out the fact first; and if that is not done, the evidence of pointing out will not be admissible against anyone of the accused. Where no material fact is discovered and the accused merely points out places where certain incidents took place, the evidence of pointing out will not be admissible. Of course, the fact that the accused produced stolen property or any instruments used in the commission of the offence can always be proved as a relevant fact under, as well as apart from, the present section." The reasons for exclusion is not far to seek, for section 27 of the "Evidence Act, 1997", renders a statement admissible if it leads to the discovery of a fact. Similarly, Explanation 1 to section 8, also makes statements which accompany and explain facts other than the statements also admissible and since the line to be drawn between the admissibility of these statements under section 27 and Explanation 1 to section 8 is thin, the Courts have been zealous to guard against the admission of statements which amount to confessions even though they accompany and explain acts and, therefore, they have held section 8 to be read subject to sections 25, 26 and 27 of the Act. Further, for drawing the inferential conclusion, the Courts have insisted that the 'statements leading to the discovery of incriminating article should be precise and clear as to who gave the information first either by words or gesture so as to fasten the discovery of the incriminating article with his conduct, in terms of explanation 1 to section

8. However, a distinction has to be drawn where, without making a statement an accused leads to a place where he had discarded the articles and upon a search these were recovered. In such a case it would amount to an act which would be relevant under section 8 as a piece of conduct; and if authority is needed it will be found in the case of Emperor v. Nanua (AIR 1941 All. 145). In drawing a distinction between an act and statement, it was held as under:-- "Conduct" may in certain circumstances include statements as well as acts, but in doing so it still retains the difference between an act and a statement. The difference between a statement and an act is in our opinion clear. A statement must spelled out, as would be done by a mute persons who spells out words on his fingers and we are inclined to think that even words would not always be statements, as for instance, if a person recited the numbers from 1 to 10, if one considers a statement in the sense used in section 162, Cr.P.C., Acts, however, exclude words and in our opinion cannot be translated into words. For instance if a person points out a place, it is impossible to say whether had he spoken he would have said look there or dig there, or you will find there, or I have buried there, or I have committed such and such crime, we are unable to hold, therefore, that the fact that in present case appellants, by taking in his hands certain articles and handling them over, made a statement much less can we find that he made a statement which amounts to a confessions. In Ganu Chandra Kashid v. Emperor (33 Cr.LJ 396), Beaumont, C.J., held: "The fact of the production of these sums of money is of course admissible as conduct under section 8 of the "Act, 1872" and if the fact of production is admissible then the circumstances in which the production took place are also relevant under section

9. The cases of Faqira and others v. Emperor (supra) and Rafiquiddin Ahmad and others v. Emperor (supra) were decided on the premise that the statements made by the accused persons did not show any particularity as to from whose information the recovery was effected so as to fasten the statement with the act in terms of Explanation 1 to section 8 and also for the reason as to who was the first to give that statement which led to the recovery of the article as in that eventuality the statement of the other could not be linked with the act as the fact had already been discovered. In these cases, however, no distinction was attempted to be drawn between an act simpliciter and the statement accompanying the act and, therefore, whatever was said in the context of the facts of those cases. Here insofar as the seizure of the dagger is concerned, the act of Gul Jamal in picking it up from under the box cannot be excluded for it is a piece of relevant conduct under section

8. Similarly, the joint leading to the place from where the clothes of the deceased were recovered is also an act and we see no reason why it should not be so fastened to each appellant as a piece of conduct under section 8 of the "Evidence Act, 1872" in the absence of any bar in this section itself. The High Court had taken the presence of the blood on the front seat of the tonga which was of the same group as that of the blood of the deceased, to substantially corroborate the confessions of both the appellants as they had stated that the fist blow was given while the deceased was sitting on the front seat of the tonga". (It may be noted that sections 26, 27 and 28 of the repealed "Evidence Act, 1872", are identical to Articles 38, 39 and 40 of the Qanun-e-Shahadat Order). It has been held that joint leading by the two appellants in the reported judgment to the place from where the clothes of the deceased were recovered is also an act and that the same cannot be fastened to each appellant as a piece of conduct under section 8 of the Evidence Act, (now Article 22 of the Qanun-e-Shahadat Order, 1984) in the absence of any bar in such section itself.

17. In the present case, though there might be some objection to the admissibility of joint recoveries and joint pointation by the appellants, the fact that the two appellants led the police to the place from where the dead body of the deceased and motorcycle were found and recovered and conducts of the appellant which are admissible under Article 8 of Qanun-e-Shahadat Order, 1984, and can be used as corroboration for the judicial confessions. At least as regards the dead body, it has also been noted that since the boy disappeared nobody knew his whereabouts and the boy was recovered only after the appellants had been arrested on 6-8-1994. Both the appellants led the police and others to the place where the body was found and this is a very important and admissible conduct against the two appellants and provides corroboration for their involvement in the crime and for their confessions.

19. In the case of Sadaf v. State (2002 SCMR 611) the High Court convicted the accused after relying upon the evidence of jointly pointing out the place of concealment of abductee by two accused and on their pointation the abducteee was recovered. The Hon'ble Supreme Court of Pakistan also relied upon the recovery of abductee on the joint pointation of two accused and maintained the decision of the High Court."

33. Thus from the authoritative decisions of the Hon'ble Supreme Court of Pakistan and earlier decisions of Division Benches of this Court the joint recovery in the present circumstances of the case is an admissible piece of evidence which can be safely relied upon therefore, the arguments of the learned Advocate for the appellants have no force.

34. We have already held that the motorcycle was robbed from the possession of deceased at the time of commission of the murder. On the said point there is evidence of P.Ws. 5 to 7 as such it has also been established that the motorcycle in question was the robbed property. On the 30th day of the incident the robbed motorcycle was secured from the possession of the appellants, therefore, by virtue of illustration (a) of Article 129 of Qanun-e-Shahadat Order the appellants are either robbers or receivers of 'robbed property unless they account for their possession. The said illustration reads as under:- "

129. Court may presume existence of certain facts.

The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume: (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"

35. The words "soon after the theft" appearing in the illustration clearly demonstrates that the possession of the stolen goods must be possession soon after the theft or that the goods must have been recently stolen. This point was subjected to interpretation by the various High Courts in some cases period of three weeks after the commission of burglary was held to be sufficient for conviction (Singha v. E. (1938) 40 PLR 58) in some cases recovery of stolen revolver from the possession of accused after seven months of the incident was found sufficient for conviction (Reuti v. E. 1933 A 461). In some cases recovery after 12 years', 2-1/2 of years', 19 months', 15 months', 13 months', 7 months', 6 months', 5 months', 4 months', 3 months', 40 days, 13 days were held to be too long to justify the presumption of guilt. Reference is invited to Mangal v. E., 96 IC 650, Chhotey Lal v. E., 1925 A 220, Imam-ud-Din Khan v. E., 1937 P 112; Naqli v. E., 1926 L 528, Narain Singh v. E., 1928 L 687, Jaimullabdin, In re, 53 IC 819, Q. v . Poromeshur Aheer, 23 W 16 (Cr.), Crown v., Doodnathsingh, 224 IC 372, Suchit Ahir v. E., 1931 P 85; Mangaya Shah v . E., 32 IC 660, Taylor, S. 127(a), E. v. Sughar Singh, 29 A 138, Giyan Chandra v. E., 1936 ALJ 1158, Alia v. E., 1926 L 272, Joyenullah Bepari v. Moniruddin Sheikh, 46 IC 158, Ramhit v. E., 1922 A 24 and Mavji Manji v. E., 1941 B 325.

36. Thus, there can be no definite rule of limitation barring responsibility for stolen property after a certain time. As such, in the case of possession of stolen goods no fixed time limit can be laid down to determine whether the possession is recent or otherwise. Every case must be judged on its own facts as the presumption of guilt varies according to whether the stolen article is not calculated to pass readily from hand to hand therefore, the importance to be attached to possession must vary with the circumstances of each individual case. Furthermore, the important factors are the number of articles recovered and the 'way in which information led to discovery. Not only the nature of the property but also the seriousness of the charge should be taken into consideration in considering whether the presumption of the guilt or the ordinary presumption of innocence must prevail. Reference is invited to Shaikh v. Q.E. 11C 160, Baliram Tikaram v. E., 1945 N 1, Amar Singh v. Crown, 1945 E. P 315, Necha v. E., 1928 N 213, Amdumiyar v. E., and ILR 1937 N 315.

37. In the present case, it will be noticed that the incident was in respect of heinous crime of murder and robbery. It has also been brought on the record that after the incident, the processions were taken and the law and order situation was created in Sanghar Town as is clear from the evidence of P.Ws.15 to

18. The incident was given prominent place in newspapers. The police were making efforts to arrest the real culprits therefore, in such a situation the culprits must be waiting for right time to dispose of the property but they were unable to do so because of abovementioned pressure of public and police. As soon' as they were apprehended, they led the police, mashirs and produced the robbed motorcycle before the police, which was secured. The appellants Ghulam Akber and Qasim have failed to account for their possession of robbed motorcycle. They have not furnished any explanation whatsoever on the above subject. Therefore, in the present peculiar circumstances of the case the recovery on the 30th day of incident cannot be held to be too long to justify the presumption of guilt as provided under illustration (a) of Article 129 of Qanun-e-Shahadat Order.

38. Next point for consideration in this case is to what extent the presumption can be made applicable; either it should confine to the case of theft or can be equally made applicable to grave charges such as robbery, dacoity, murder etc., as illustration deals with the case of theft only. The provision in question is no more than the illustration under which it has been explained that in such circumstances such type of presumption can be raised therefore, it cannot be confined to the cases of theft only but its implication can be extended to other offences therefore, the presumption of illustration (a) of Article 129 is not confined to the cases of theft only but it extends to all charges, however penal, including even murder, robbery or dacoity. Therefore, the general presumption of illustration (a) of Article 129 is that the person found to be in recent possession of the fruits of the crime is a criminal unless he can account for his possession. Similar point was discussed by M various High Courts and took a similar view. Reference is invited to cases Wasim Khan v. State of UP (AIR 1956 SC 400), Sada Shiva Daulat v. State (AIR 1950 MB 104), Pritam Singh Sohan Singh v. State (AIR 1954 Puj. 201), AIR 1954 M 1088, Ram Sarup Singh v. E., 9 P 606, E., v. Chinlamori Sahu AIR 1930 P 879, Q.E. v. Sami, 13 M 426, Taylor, S. 127(c), Sharif Jio v. E., ILR 1943 Kar.371. The question was examined by the Supreme Court of India in the case of Wasim Khan v. State of UP (AIR 1956 SC 400) and took the similar view and further observe at page 403 as under: "(7) The real question is whether the evidence on the case establishes that the appellant murdered and robbed Ram Dularey. The evidence is circumstantial. Before we deal with the evidence, it is necessary to consider how far recent possession of property of a deceased, in circumstances clearly indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had connection with the theft. In the case of "Emperor v. Neamatulla', 17 Cal WN 1077 (a) Sir Lawrence Jenkins, had the occasion to examine this question after referring to S.114, Evidence Act, he quoted the following passage from Wills on circumstantial Evidence. "The possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized." In the case of "Queen-Empress v. Sami', 13 Mad 426 at p. 432(B). the learned Judges of the High Court observed: "Under these circumstances, and in the absence of any explanation, the presumption arises that any one who took part in the robbery also took part in the murder. In cases in which murder. and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as the robbery ??.." In the case of "Emperor v. Chintomoni Shahu' 1930 Cal. 379(2) (AIR V 17)(C),the opinion was expressed that "the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with the theft; this particular fact of presumption forms also a material element of evidence' in the case of murder." A similar view seems to have been taken in the case of "In re Venkataswamy' 1950 Mad 309 (AIR V 37)(D) as well as in the case of "Ramprashad Makundram v. The Crown', 1949 Nag 277 (AIR V 36)(E)."

39. In the above mentioned authority the Supreme Court of India has clearly observed that in the case in which murder and robbery forms part of one transaction, the recent and unexplained possession of the stolen property by the accused is not only presumptive evidence against him on the charge of robbery, but is also evidence against him on the charge of murder. In the present case, the murder and robbery were committed in the series of same transaction. The robbed motorcycle has been secured from the possession of appellants, Akber and Qasim therefore, the said evidence can be used against them on the charge of robbery and as well as on the charge of murder therefore, they can be presumed to be robbers and murderers of the incident.

40. Now we will deal with the recovery of pistol from the possession of the appellant Akber and the matching report of ballistic expert. In order to prove such allegation the prosecution relied upon the evidence of P.W. 20 S.H.O. Abdul Haq and P.W.12 Nazir Ahmed. The evidence of P.W.20 reveals that on 9-2-1999 the appellant voluntarily led the police and the witnesses to his house and produced the pistol which was secured and sealed at the spot and such mashirnama was prepared. 0 The evidence of S.H.O. has been supported and corroborated by P.W.12 mashir Nazir Ahmed who stated that the appellant led them to his house and produced a pistol before the police which was secured, sealed at the said place and such mashirnama was prepared which he had signed. Both the witnesses were cross-examined by the defence counsel at length but he could not shake their evidence. There are no contradictions or discrepancies in their evidence or any such contradictions or discrepancies have been pointed out. P.W.12 is an independent witness.' He has no relationship or friendship with the complainant party but on the contrary, he clearly admitted in the cross-examination that he did not know the complainant or he had any relationship with him. As such, he has no reason or cause to depose against the appellant. His evidence is reliable and trustworthy, we do not find any reason to disbelieve his statement. The evidence of P.W.20 and P.W. 12 is in conformity with each other therefore, the same is sufficient to prove the above piece of evidence.

41. The pistol secured from the appellant Akber and the crime empty secured from the place of incident matched as per Chemical Analyzer's report. The crime empty was sealed at the said place as per statement of P.W.10 who categorically stated that the one empty bullet lying at the place of incident, which the police had secured was sealed. His statement is corroborated and supported by P.W.20 who also confirmed the above statement by specifically stating that when he visited the place of incident he found an empty bullet lying there which he had secured and sealed in presence of mashirs and prepared such mashimama. As such the said piece of evidence has also been proved in accordance with law. Both the articles were sent to chemical analyzer, who examined the same and reported that the crime empty was fired from the pistol secured from the possession of appellant Akber. Thus, it has been established beyond any shadow of doubt that the pistol secured from the possession of the appellant Akber was used for committing the murder of the deceased. He has not furnished any explanation to show as to how the crime pistol came in his possession or he has accounted for such possession.

42. Now we will deal with the recovery of Jeep, which was seen on the date, time and place of incident and allegedly recovered from the possession of the appellants. In order to prove the case the prosecution relied upon the evidence of P.W.1l Ghazanfer and P.W.20 S.H.O. Abdul Haq. The P.W.20 deposed that on 9-2-1999 they reaching National Bank Naka No.1 Sanghar on spy information. From there he picked up mashirs, then reached a culvert of Sim Nali and found a Jeep coming towards them. The jeep was got stopped in which they found the appellant Luqman driving the same and the remaining two appellants were sitting in it. From the possession of appellant Luqman, a revolver was secured. The Jeep was bearing registration number 8237 and was of white colour. The Jeep was secured in presence of mashirs. P.W.11 has fully supported the Investigating Officer and specifically stated that when the jeep was got stopped it was being driven by appellant Luqman and the remaining two appellants were sitting in it. From the search of appellant Luqman, a revolver was secured. The Jeep was having white colour, which was also secured, and such mashimama was prepared. It is pointed out that the said Jeep was produced before the Magistrate for holding identification parade through P.Ws.5 to

7. The Magistrate P.W.3 deposed that he mixed up other jeeps with the jeep produced by the police and called P.Ws.5 to 7 to identify anyone of the Jeeps. His evidence further reveals that P.Ws.5 to 7 correctly identified the Jeep which was produced by the police. P.Ws. 5 to 7 further deposed that they identified the Jeep in the identification parade, which was seen by them at the place of incident in which one person was sitting avid he followed the motorcycle after its robbery. All the witnesses were cross-examined by the defence counsel. They have successfully passed the test of cross-examination. There are no contradictions or discrepancies in their evidence or any such contradictions or discrepancies were pointed out by the learned Advocate for the appellants. After considering the evidence, we are of the considered view that the S prosecution has proved the above piece of evidence.

43. From the above analysis of the various pieces of evidence led by the prosecution it has been established through the ocular testimony that the prosecution has proved that on 9-1-1999 the deceased along with P.Ws.6 and 7 was going on his new motorcycle. When they reached at the place of incident a white colour Jeep was parked in which one person, wearing shawl was sitting. Two persons were standing near the Jeep with muffled faces, armed with pistols. They got the motorcycle of the deceased stopped on pistols' points. Thereafter one of them fired at the deceased, another culprit pushed the deceased who fell down on the ground. During this period the muffles of the culprits were removed. Then both the culprits took away the motorcycle. On 9-2-1999, the police arrested the appellants who were travelling in the Jeep, which was T found parked on the date, time and the place of incident. The appellants Akber produced pistol from his house before the police. The police secured an empty bullet shell from the place of incident. Both the articles were sent to ballistic expert for examination and report who opined that the empty bullet was fired from the pistol as such the pistol was used in the commission of crime. Thus from the pistol secured from the appellant Akber, the murder of deceased was committed. On the same date, the police also secured robbed motorcycle from the possession of appellants, Akber and Qasim, which was identified to be robbed property, and belonged to the deceased. However, the appellants were produced before the Magistrate for holding identification parades through the P.Ws. 5 to 7 but the said identification parades have been found to be not fulfilling the requirements of law, therefore, the same are not helpful to the prosecution. From the above position and through the ocular testimony the involvement of the appellant Luqman has not been established. Nevertheless, there is circumstantial evidence in the shape of recovery of robbed motorcycle from the possession of L appellants Akber and Qasim. Recovery of crime weapon from the possession of appellant Akber coupled with ocular testimony.

44. Now it is to be seen whether the said circumstantial evidence is enough to convict the appellants Akber and Qasim or otherwise. We have already observed that under illustration (a) of Article 129 Qanun-e-Shahadat Order the general presumption is that a person found to be in recent possession of the fruits of a crime is a criminal unless he can account for his possession. The presumption under illustration (a) of Article 129 can also be extended to the cases of robbery, dacoity and murder. In the present case the robbery of motorcycle was committed. The same was secured from the joint possession of the appellants Akber and Qasim which was the fruit of the crime of murder and robbery therefore, presumption can be raised that the appellants Akber and Qasim are murderers and robbers in respect of the murder of deceased Safder Ali and robbery of his motorcycle. The appellants have not accounted for their possession of the motorcycle as no explanation whatsoever has been furnished as to how they came into possession of the robbed motorcycle. On the contrary, they simply denied the allegation of the prosecution. Nevertheless, the prosecution has been able to prove the said piece of evidence against them. Thus, the evidence is sufficient to convict the appellants Akber and Qasim for the offence of murder and robbery. The Supreme Court of India in the case Wasim Khan (supra) v took similar view. Relying upon the said authority, we are of the considered view that the appellants Akbar and Qasim are responsible for the commission of murder and robbery.

45. In addition to above, the appellant Akber produced the pistol which matched with the crime empty secured from the place of incident as per ballistic expert report therefore, the pistol produced by the appellant Akber was the weapon, which W was used for committing the murder of the deceased. The said pistol has been found in possession of the appellant Akber. He did not explain the circumstances under which the pistol came into his possession, which clearly demonstrates that after commission of the crime the pistol remained with him. We are conscious of the fact that recovery of pistol is a corroborative piece of evidence, which by itself is not sufficient to 11 convict the appellant. A corroborative piece of evidence is meant to test the veracity of ocular evidence and is required to corroborate a substantial piece of evidence and then both the pieces of evidence are to be read together. They cannot be read in isolation. Reliance is placed upon Asadullah v. Muhammad Ali (PLD 1971 SC 541). In the present case, no doubt the ocular testimony is the substantial piece of evidence, which simply shows that two culprits robbed motorcycle out of them one fired at the deceased. To prove the identity of the culprits, the identification test has not been found trustworthy therefore, the same has been discarded. However, the fact remains that one of the culprits had fired at the deceased from his pistol and he left the empty bullet shell at the place of incident which was secured and sealed. The said empty bullet has been found to have been fired from the pistol produced by the appellant. If the ocular testimony, the recovery of crime empty, pistol from the possession of the appellant Akber and Ballistic Expert report are read together then it can be held that it was the appellant Akber who fired from the pistol at the deceased, which resulted his death. Apart from the said fact there is another substantial piece of evident which is the recovery of robbed motorcycle and a conviction can be based on the said recovery as provided under illustration (a) of Article 129 Qanun-e-Shahadat Order. Therefore, it is a substantial piece of evidence for the simple reason that a conviction can be based on such presumption unless the possession is accounted for which has not been done in the present case. Thus, the evidence of recovery of motorcycle from the possession of the appellant and the evidence of recovery of crime weapon from his possession can be made corroborative piece of evidence to the above substantial pieces of evidence. If all the abovementioned pieces of evidence are read together then there will be no hesitation in holding that the appellant Akber is responsible for causing the murder of the deceased and 'he robbed the motorcycle of the deceased along with appellant Qasim.

46. In view of above position the circumstancial evidence is sufficient to prove the guilt of the appellants Akber and X Qasim for offences punishable under sections 302 and 394, P.P.C.

47. The learned Advocate for the appellants has argued that there was no common intention between the appellants to commit the murder of the deceased but the common intention if any between them was the commission of robbery therefore the appellant Qasim cannot be held responsible for causing the murder of the deceased.

48. Common intention as provided under section 34, P.P.C. is derived from English law. The section simply emphasises a common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. It appears that the reason why all are deemed guilty in such cases is that the presence of an accomplice affords an encouragement, protection and support to the person actually engaged in the commission of the offence. The section lays down the principle of joint liability in the doing of a criminal act.

49. In the present case no doubt the common intention of both the appellants was to commit the robbery of the motorcycle but they loaded themselves with pistols which was done for the purpose of using the same if need arises and by using the pistol they had knowledge that it will cause the murder of any person therefore, in such cases the accused who are involved in the case of robbery-dacoity had common intention to use the weapon for the purpose of killing. Therefore, if while committing the robbery or dacoity the culprits have armed themselves with weapons and if a person is killed by fire-arm shot from any one of them then the robbers so armed and acting in concert are all clearly guilty of the murder under section 302 read with section 34, P.P.C. though each may not have actually fired a shot. Reliance is placed on cases of Barendra v. Emperor (AIR 1925 PC 1), Abdul Jabbar v. State (PLD 1964 SC 81) and Wasim Khan v. State of UP (AIR 1956 SC 400).

50. The Hon'ble Supreme Court of Pakistan in the case of Abdul Jabbar (supra) at page 84 has observed as under: "The principal question that arises in the case of Abdul Jabbar is whether the High Court was right in holding that Abdul Jabbar was also guilty of the murder of Pershotamdas. On a careful consideration of the evidence on record, we see no ground to differ from the appraisal of that evidence by the High Court. Both Mitho and Abdul Jabbar were armed with deadly weapons, ostensibly to commit robbery in the house of Pershotamdas. The nature of the weapons carried by them would legitimately lead to the inference that they were prepared to use them if resisted in their adventure. Mitho actually stabbed the deceased fatally when he was thwarted .in his purpose. Simultaneously, Abdul Jabbar held off the other inmates of the house by pointing a pistol at them and sought to suppress their effort to seek assistance from outside. This was a sufficient indication that Abdul Jabbar associated himself with the act of murder committed by his co-accused Mitho and it follows that he shared a common intention with him as far as the killing of Pershotamdas was concerned. Section 34, P.P.C. was attracted to the case and the conviction of Abdul Jabbar under section 302 read with section 34, P.P.C. does not therefore, appear to us to be open to exception. We consider it unnecessary to express any opinion as to the soundness or otherwise of the opinion expressed by the learned Judges as to the construction and scope of section 34, P.P.C., in this connection."

51. In the case of Wasim Khan v. State of UP (AIR 1956 SC 400), at page 404, it has been observed as under: "(9) The appellant was convicted of the offences of murder and robbery by the Sessions Judge by the application of section 34, Indian Penal Code. The charge framed, however, was one of murder and robbery and there was no mention of these offences having been committed in the furtherance of a common intention. The High Court, however, found that the appellant along with two others committed these offences and they shared in the goods robbed. On this finding, even if the co-accused of the appellant were acquitted, the appellant could be convicted by the application of the provisions of section 34, Indian Penal Code. The charge framed against the appellant was for murder and robbery and the only question to be decided was whether the evidence was sufficient to support such a charge or did it merely establish offences less grave in nature. We think it was and are satisfied that it establishes the offences of murder and robbery against the appellant and not merely the minor offence of robbery or theft. It is impossible to accept the submission that the evidence does not establish any offence having been committed by the appellant. (10) Having regard to what is established in the case and the principles deducible from the cases cited, we are satisfied that the appellant has been rightly convicted of the offences of murder and robbery. The appeal is accordingly dismissed."

52. Thus, the appellants Akber and Qasim have committed offence punishable 5 'under section 302, read with section 34, P.P.C. therefore, they are liable to conviction under the said sections.

53. The appellant Akber took the defence in his 342, Cr.P.C. statement that his father had filed a complaint 'against S.D.P.O. All Nawaz, therefore, he has been involved in the case. He further took the stand that D.W.1 Muhammad Anwar produced him before the police at the police station where he was arrested. In support of his first plea, he has not examined his father. No evidence except the bare word of the appellant has been produced to prove the said defence. The appellant Luqman also took the defence that the police raided their houses, therefore, his neckmard Muhammad Anwar producing him before the police at police station where he was arrested. Both the appellants examined D.W.1 Muhammad Anwar. He stated that he had produced the appellants Akber and Luqman before the police at the police station where they were arrested. The appellant Akber did not state that 'when D.W. 1 produced him at the police station the appellant Luqman was with them. The appellant Luqman also did not state that appellant Akber was with him when D.W.1 produced him at the police station. Furthermore, both the appellants in their earlier statements recorded under section 342, Cr.P.C. did not state that the D.W.1 had produced them before the police at the police station where they were arrested but on the contrary, they stated that they were arrested from their houses. As such, the statements of the appellants are contradictory to their earlier statements, therefore, it appears that the subsequent pleas taken by the appellants, are afterthought. The appellant Qasim took the defence that because of the police raid on their houses, the D.W.2 Punhoon produced him before the police at the police station where he was arrested. In support of his case he has examined D.W.2 Punhoon who stated that on the previous night of the arrest of the appellant Qasim his (Qasim) daughter had died. The police came to the house of Qasim to arrest him, but he told the police that he would produce the appellant on the next day. Thereafter he produced the appellant before the police at the police station where he ' was arrested. The appellant Qasim has not supported the said statement as he did not state that police came to arrest him when he was mourning over the death of his daughter and that D.W.2 took him to the police station on the next day where he was arrested. Furthermore, the appellant did not take such defence in his earlier statement recorded during the first trial but he took a specific plea that he was arrested from his house. As such, it appears that his defence is also afterthought.

54. As regards the case of appellant Luqman it has been brought on the record through P.W.19 Muhammad Sharif owner of the Jeep that he had given the Jeep to appellants Akber and Luqman as it went out of order which was returned to him on 10-1-1999. The involvement of the appellant Luqman was through the identification test through P.Ws.5 to

7. But the identification test has been found to be not in accordance with law and has been discarded, therefore, there is no other evidence connecting the appellant Luqman with the commission of this crime excepting that he was found present in the Jeep when the appellants were arrested. The said piece of evidence by itself is not sufficient to convict . the appellant with the commission of this crime unless the prosecution proves his presence at the place of incident but the same has not been done therefore, the case against him is highly doubtful hence he is entitled to the benefit of doubt.

55. As regards the conviction and sentence, the appellants Akber and Qasim have been awarded death sentence for offence punishable under section 302, P.P.C. and section 7 of the Act, 1997. It has been established beyond any reasonable doubt that the appellant Akber caused A injury to the deceased from his pistol, which resulted deceased's death. The appellant Qasim also shared common intention to commit the offence, therefore, they are required to be awarded normal sentence of death.

56. The Hon'ble Supreme Court of Pakistan in the case of Abdul Jabbar v. State (PLD 1964 SC 81) confirmed the capital sentence awarded by the High Court to an accused who also did not cause injury to the deceased, which was attributed to co-accused at the time of commission of attempt to commit robbery.

57. In the case of Shambho Nath (supra) the Supreme Court of India also maintained the death sentence of the accused by invoking the provisions of section 34, I.P.C. though in that case there was no direct allegation that the accused caused injuries to the deceased.

58. As regards the sentence for offence punishable under section 392, P.P.C., it is pointed out that while committing the offence of robbery one of the appellants caused injuries to the deceased at the place of incident who subsequently succumbed to injuries, therefore, the offence would fall under section 394, P.P.C. hence they are liable to be convicted for the said offence. The perusal of evidence of P.Ws.15 and 18 shows that the incident had created fear and terror in Sanghar Town, therefore, the processions were taken, as such, the offence punishable under section 7(ii) of the Act, 1997, has also been made out.

59. In the light of what has been discussed above the case of the appellant; Luqman is highly doubtful therefore, he is entitled to the benefit of doubt, which is accordingly given to him therefore convictions and sentences awarded to him are set aside. He is acquitted and set at liberty. He is in custody; he should be released forthwith if not required in any other custody case.

60. As regards the case of appellants Akber and Qasim they are convicted for offences punishable under section 302(b) read with sections 34, P.P.C. and 7(ii) of the Act, 1997. Their sentence of death is I maintained. They are directed to pay Rs.100,000 each as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. The appellants Akber and Qasim are further convicted for offence punishable under section 394, P.P:C., but the sentence awarded to them under section 392, P.P.C. is hereby maintained with benefit of section 382-B, Cr.P.C.

61. With the above modifications in the convictions and sentences, the appeal is party allowed and partly dismissed in the above terms. The confirmation case in respect of appellants Akber and Qasim is allowed, whereas it is dismissed in respect of appellant Luqman. H.B.T./G-5/K????????????????????????????????????????????????????????????????????????????????????? Order accordingly.