2016 PLP 102 (YLRN)

SADAQAT ALI KHAN, J.

This single judgment shall dispose of Criminal Appeal No. 1046 of 2013 filed by Muhammad Rizwan appellant, Criminal Appeal No.1050 of 2013 filed by Ijaz Baig appellant (against their convictions), Writ Petition No. 26905 of 2013 filed by Liaquat Ali brother of Muhammad Naveed deceased (for enhancement of compensation and fine) and C.S.R No.17-T of 2013 sent by the learned trial court i.e. Special Judge Anti-Terrorism Court No. III; Lahore for confirmation of the death sentences of appellants stated above or otherwise as all the above matters have arisen out of the same judgment dated 19.08.2013 passed by learned Special Judge, Anti-Terrorism Court No. III, Lahore according to which both the present appellants were convicted and sentenced as under:- (i) "under section 302/34, P.P.C. and sentenced to death each for committing the murder of Muhammad Naveed deceased along with compensation Rs.3,00,000/- each payable to the legal heirs of the deceased under section 544-A, Cr.P.C. to be recovered as arrears of land revenue of each of the convict and in default thereof further undergo six months' S.I. (ii) under sections 7(a), A.T.A., 1997 read with section 34, P.P.C. and sentenced to death each for causing the murder of Muhammad Naveed deceased along with fine Rs.2,00,000/- each and in default thereof further undergo six months' S.I. (iii) under sections 324/34, P.P.C. and sentenced to five years R.I each for attempting to commit Qatl-i-amd of Shehzad Iqbal constable along with fine Rs.50,000/- each and in default thereof further undergo three months' S.I. (iv) they were also convicted under sections 337-F(i)/34, P.P.C. and sentenced to one year's R.I. each for causing injury to Shehzad Iqbal constable along with compensation Rs.50,000/- each payable to injured Shehzad Iqbal constable and in default thereof further undergo three months' S.I. (v) under sections 186/34, P.P.C. and sentenced to three months R.I each for causing obstruction to police officials who were public servants in discharge of their lawful duties along with fine Rs.10,000/- each and in default thereof further undergo 15 days imprisonment. (vi) under sections 353/34, P.P.C. and sentenced to two years R.I each for attempting to commit assault while using criminal force to deter police officials being public servants in discharge of their lawful duties along with fine Rs.20,000/ - each and in default thereof further undergo two months imprisonment. (vii) under section 7(h) of A.T.A., 1997 and sentenced to life imprisonment each for causing serious violence against police officials in which one was murdered and other was injured along with fine Rs.2,00,000/- each and in default thereof further undergo three months' imprisonment." The sentences of both the appellants were ordered to be run concurrently along with benefit of section 382-B, Cr.P.C. by the learned trial court in case FIR No.515 dated 26.4.2012 under sections 302, 324, 353, 186/34, P.P.C. read with section 7, A.T.A., 1997, Police Station, North Cantt., Lahore.

2. The facts of the case have been stated by Abdul Sattar SI/PW-11 complainant in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts:- "On 26.04.2012 I was posted at Police Station North Cantt, Lahore. On the same day I along with Basharat Ali C was on patrol duty in PAF Colony Lahore Cantt. Naveed and Shahzad constables were also on the patrol duty in the area on their private motorcycle. I directed the said Naveed and Shahzad Iqbal constables to patrol and check the suspects in the street of PAF Colony. Both the constables went for some distance and when they reached near the Eastern Corner of the Park they signaled to stop two boys who were going on foot and when they intended to search their persons, they started firing on the aforesaid police constables with their respective pistols. Both Naveed and Shahzad constables fell down on the ground after receiving injuries. Street lights were on and there was bright light, we chased the accused persons after hearing the voice. I along with Basharat/C witnessed the occurrence by ourselves. The said accused disappeared towards north in the soling streets of Ghaziabad. We came back and attended both the injured police constables and took them to Services Hospital, Lahore in a private rickshaw. Naveed/C was seriously injured who received fire injury on his chest and abdomen and he was not in position to record his statement. He was then immediately shifted to the operation theatre. Shahzad Iqbal/C received fire injury on his thigh and was in position to get recorded his statement. I after writing the complaint Ex.PA sent the same to the Police Station through Basharat/C for registration of the formal FIR. Said Basharat/C came back to me at Services Hospital, Lahore and from there we reached the place of occurrence. After some time Inspector Ghulam Abid Incharge Investigation reached at the place of occurrence along with his investigation team. I pointed out the place of occurrence to the Investigation Team who also took into the possession six crime empties of .30-bore P 8/ 1-6 scattered there vide recovery memo Ex.PL. The I.O. also took into the possession the blood from the place of injury of constable Naveed on cotton swab vide recovery memo Ex.PM. Similarly the I.O. also took into possession the blood from the place of injury of Shahzad constable on a cotton swab vide recovery memo Ex.PN. The I.O. also took into possession the motorcycle P-9 (Applied For Registration) of the police constables lying on the ground at the place of occurrence vide recovery memo Ex.PP. We tried to trace out the accused on the direction of senior officer and then we received a spy information that two boys parked their motorcycle CD-70 red coloured LXY-8994 with the boundary wall and then fled away on the said motorcycle (Learned defence counsel raised objection that this is a hearsay evidence and inadmissible in evidence. This objection shall be resolved at the time of final arguments). I got recorded my statement under section 161, Cr.P.C. on 05.05.2012. On 16.05.2012 I participated in the Identification Parade of the accused before the Magistrate at Camp Jail, Lahore and rightly identified both the accused, present in the court. My statement was also recorded by the learned Magistrate at the time of the Identification parade."

3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted in the trial court.

4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 10.10.2012 against the present appellants/convicts Muhammad Rizwan and Ijaz Baig under sections 302, 324/34, 353, 186, P.P.C. read with section 7(a)(c) & (h) of A.T.A., 1997 to which they pleaded not guilty and prosecution evidence was summoned.

5. Prosecution produced Liaquat Ali as PW-1, Iftikhar Ahmad PW-2, Muhammad Furqan. PW-3, Muhammad Yaqoob SI PW-4, Muhammad Shafique PW 5, Dr. Shahzad Ashraf PW-6, Dr. Ijaz Ahmad PW-7, Hameed-ud-Din Chishti PW-8, Abdul Wahid SI PW-9, Muhammad Raza SI PW-10, Abdul Sattar SI/ complainant as PW-11, Dr. Ahmad Raza Khan PW 13, Sammar Abbas PW-14, Muhammad Ashfaq SI PW 15, Muhammad Aslam PW-16, Ch. Muhammad Arshad PW-17, Dr. Ijaz Ahmad PW-18, Ghulam Abid Inspector PW-19 whereas PWs namely Muhammad Yasin, Manawar Hussain SI, Naimat Ali, Tahir Hussain H. C, Basharat Ali constable, Anwar, Dr. Umar were given up by the prosecution being unnecessary and tendered in evidence receipt of dead body Ex.PA, recovery memo of blood stained uniform Ex.PB, recovery memo of clothes Ex.PC, recovery memo of pointing of place of occurrence Ex.PD and Ex.PE, recovery memo of motorcycle. Ex.PF, recovery memo of operation notes Ex.PG, recovery memo of medico legal report Ex.PH, recovery memo of empty bullets Ex.PL, recovery memo of blood stained cotton Ex.PM and Ex.PN, recovery memo of motorcycle Ex.PP, recovery memo of postmortem examination report Ex.PQ and Ex.PQ/1, recovery memo of pistol .30 bore Ex.PS, site plan Ex.PS/1, application for identification parade and order Ex.PT, proceedings of identification parade Ex.PU, copy of medico legal report Ex.PV, site plan Ex.PW, copy of FIR Ex.PX and Ex.PY and Mark-A to Mark-A/10 and closed the prosecution evidence.

6. Medical evidence was furnished by Dr. Ahmad Raza Khan PW-13 who stated that 08.05.2012 he conducted the postmortem examination on the dead body of Muhammad Naveed deceased and observed as under:- "EXTERNAL EXAMINATION. It was a dead body of an adult male of healthy built of 176 cm of length and appeared to be of stated age. Body was clad in checkdar pink shirt and white Shalwar removed signed and handed over to police as case property. Rigor mortis was in developing phase. Faint postmortem was present in between areas of contact flattering. Eyes and mouth were closed. FINDINGS. No.1 A wound measuring 2 x 1.5cm was on lateral aspect of right lower chest 23 cm below right axilla. This injury co related with injury No.1 in medical legal report and injury No.1 in operation notes provided by Services Hospital, Lahore. This injury was 20 cm below right nipple at 7 O'clock position. No.2 A wound measuring 2 x 1.8cm on the back of lower part of right chest 10 cm right of posterior mid line 9 cm below inferior angle of scapula. This injury corresponded with injury No.2 of operation notes provided by Services Hospital, Lahore. No.3 A wound measuring 2 x 1 cm on the front of left chest 11 cm below left nipple at 6 O'clock position 10 cm left of mid line. This injury corresponded with Injury No.2 of MLC and injury No.3 of operation notes Services Hospital, Lahore. No.4 A wound measuring 2 x 1.5 cm on the back of left upper abdomen 1 cm left of posterior mid line 21 cm above natal cleft. This injury corresponded with injury No.4 stated in operation notes Services Hospital, Lahore. No.5 A laparotomy incision 25 cm long extending from 2 cm below sternum up to 14 cm above root of penis. It had five blue prolene stitches covered with plastic tubing. No.6 A wound measuring 1x1.5 cm in right lumber region 12 cm right of umbilicus at 9 O'clock position. No.7 A wound measuring 3x3 cm circular in the left lumber region 10 cm from umbilicus at 3 O'clock position. No.8 An open wound 6x3 cm on the lateral aspect of left lumber region 6 cm above left anterior superior iliac spine. No.9 A wound measuring 1x.5 cm on lateral aspect of left chest 20 cm below left axilla, 19 cm from left nipple at 5 O'clock. No.10-A 17 cm long wire stitched wound having 38 wire stitches horizontally place on left chest 17 cm from left nipple at 3 O'clock position up to posterior axillary fold. DISECTION OF THE CHEST Upon dissection of the chest, chest cavity was full of blood in clots. Left lung was repaired 10th and 11th and 12th ribs were fractured on the right side anterolaterally. 12th rib along with vertebral body was fractured on the left side posteriorly. Left side 5th and 6th rib were stitched internally and posterolaterally. DISECTION OF ABDOMEN. Abdominal cavity was full of blood and clots. Left hemi diaphragm was perforated spleen was septic and stomach, small intestine along with its mesentery was repaired. Left kidney is missing and as per operation notes left nephrectomy was done, right kidney septic. Repair seen corresponded with operation notes provided by registrar S3 Services Hospital, Lahore. EXAMINATION OF THE HEAD. Healthy. Urinary bladder was healthy and empty and organs of generation were healthy. OPINION. Injuries stated above were ante-mortem in nature and caused by firearm weapon. The cause of death in this case was firearm injury to chest and abdomen and its complications. Time between injury and death. Hospital death. Time between death and postmortem. Three hours and thirty minutes. On 19.05.2012 Dr. Shahzad Ashraf PW-6, issued the operation notes Ex.PG of Muhammad Naveed son of Muhammad Akbar, Aged 27 years male with MR No.311189, date of admission was 26.04.2012, date of operation were I. 26.04.2012, II, 03.05.2012, III, 08.05.2012. EXTERNAL FINDINGS. 1. 1.5 x 1.5cm penetrating wound with irregular black margins in posterior axillary line at 10th rib on right side. 2. 2 x 2cm penetrating wound with irregular black margins about 4 inches below the tip of right scapula and about 4 inches posteriolateral to wound No.1 at the level of 10th rib on right side. 3. 2 x 2 cm penetrating wound with irregular black margins in mid clavicular line on left side at level of 8th costal cartilage. 4. 2 x 2cm penetrating wound with irregular black margins about 2 inches lateral and left to spine 4 cm below 12th rib on back of left side. INTERNAL FINDINGS.

1. About 2 liters of hemoperitoneum. 2. 700 ml of hemothorax left side. 3-A 2 x 2cm rent in left hemidiaphragm. 3-B 1 x 2 cm perforation in anterior wall of stomach at greater curvature. 4. 2 x 2 cm perforation in posterior wall of stomach at greater curvature. 5. 2 x 2 cm through and through perforation at splenic flexure of colon.

6. Grade V injury of left kidney.

7. Fracture right 10th rib. PROCEDURE.

1. On 26.04.2012 exploratory laparotomy, primary repair of gastric perforation, repair of diaphragm rent, left nephrectomy and exteriorization of perforation of splenic flexure of colon.

2. On 03.05.2012 incision and drainage of left sub phrenic abscess done with placement of CRD.

3. On 08.05.2012 re look laparotomy, drainage of left sub phrenic abscess, abdominal lavage, left thoracotony and decortication of left lung.

4. Wound debridement done.

5. A septic dressing done. Likewise, on 26.04.2012 Dr. Ijaz Ahmad, PW-7 conducted the medical examination of Muhammad Naveed deceased, the then injured and found following injuries:- INJURIES.

1. An entry wound 1.5 x 1 cm on right front of chest.

2. An entry wound 0.7 cm on front of left chest. Patient with massive bleeding and respiratory distress."

7. On the other hand, statements of present appellants Muhammad Rizwan and Ijaz Baig were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them and Muhammad Rizwan appellant initially opted to appear as a witness under section 340(2), Cr.P.C. but thereafter did not appear whereas appellant Ijaz Baig has not opted to appear as a witness under section 340(2), Cr.P.C. and also did not produce any defence evidence whereas appellant Muhammad Rizwan produced in defence evidence Ghulam Bari DW-1, Muhammad Qasim Zafar DW-2, Muhammad Faizan DW-3, Hafiz Muhammad Shoaib Bhatti DW-4 and Dr. Muhammad Zeshan Idrees DW-5 and in documentary evidence produced documents Ex.DA to Ex.DK/1 and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Mohammad Rizwan replied as under:- I was arrested in this case on 27.4.2012 in front of my house. I was arrested by Rana Muhammad Yousaf ASI on his personal revenge and he detained me in the lockup of Police Station Baghbanpura, Lahore. The SHO Muhammad Raza SI and Rana Muhammad Yousaf ASI brutally tortured me in police cell due to which my left forearm was fractured and I was seriously injured. My brother Muhammad Irfan submitted an application before the learned District and Sessions Judge, Lahore to recover me from the illegal custody of Police Station Baghbanpura, Lahore. Out of the fear of the bailiff the police shifted me at different places and finally SHO of Police Station Baghbanpura, Lahore Muhammad Raza SI shifted me in Police Station North Cantt, Lahore. My brother Muhammad Irfan submitted a habeas petition before the Hon'ble Lahore High Court, Lahore which was fixed for 8.5.2012. Out of the fear of said habeas petition for my recovery SHO of Police Station, North Cantt, Lahore and Ghulam Abid Inspector/I.O. Abdul Sattar SI tortured me and sent me to the judicial lockup. The local police malafidely involved me in this case due to said personal revenge and also due to filing of habeas petition against the SHO of police station North Cantt., Lahore. The police also extended threats to my brother and father regarding filing of said habeas petition before the Hon'ble Lahore High Court, Lahore. I was not present at the place of occurrence. I along with my cousin (Chachazad) Muhammad Farooq and 20 other Mohallahdars were present at Allama Iqbal International Airport, Lahore on 26.4.2012 from 07:00 pm to 11:00 p.m. My cousin Muhammad Farooq went to Dubai, I and other Mohallahdars went to see him off at the said airport. My CCTV Footage and video is available and 20 people of Mohallahdars also submitted their sworn affidavits before the I.O. regarding my innocent. The ocular account recorded before this court by the prosecution is totally fake and fictitious. All the PWs in this case are police officials except a few. The complainant as well as deceased the police officials. Likewise, in reply to question "why this case against you and why the PWs deposed against you?" the appellant Ijaz Baig replied as under:- "I was arrested in this case on 26.04.2012 at Akhri Mint Stop on motorcycle out of Suspicion. I along with my co-accused Rizwan were detained in Police Station Baghbanpura, Lahore and brother of Rizwan accused filed a habeas petition before the Hon'ble High Court, Lahore regarding the recovery of accused Rizwan. When the bailiff of Hon'ble Lahore High Court, Lahore conducted the raid at Police Station Baghbanpura, Lahore my motorcycle was available in the Police Station. The police involved me in this case just to show the efficiency because a police constable was murdered in this case and one was injured. The police did not arrest the actual culprits in this case and I along with my co-accused were involved in this case as I did not fulfill and meet the illegal requirements of the police. All the PWs are police officials except a few and they deposed falsely against me just to strengthen the prosecution case. No person from the locality made his deposition before the court. I am totally innocent."

8. After conclusion of the trial, learned trial court convicted the present appellants Muhammad Rizwan and Ijaz Baig with above stated sentences through judgment dated 19.08.2013. Hence this appeal.

9. Learned counsel for the appellants contended that:- (i) the judgment of the trial court dated 19.08.2013 is against law and facts on the file and is liable to be set aside. (ii) that the prosecution has failed to prove its case against present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures; (iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law; (iv) lastly submitted that appeal may be accepted and the judgement of the trial court dated 19.08.2013 may kindly be set aside and appellants may be acquitted.

10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:- (i) Prosectuion has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal. (ii) learned counsel for Liaquat Ali, brother of Muhammad Naveed deceased while arguing in Writ Petition No. 26905 of 2013 submitted that compensation and fine awarded by the trial court are less and same may be enhanced;

11. We have heard the learned counsel for the parties and perused the record.

12. The detail of prosecution case as given by Abdul Sattar complainant/PW-11 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

13. Both the accused are not nominated in the FIR. Muhammad Raza SI PW-10 stated that on 7.5.2012, he arrested present two appellants (Muhammad Rizwan and Ijaz Baig) being suspects with motorcycle having registration No. LXY 8994 Ex.P7 and during interrogation they disclosed that they had committed the occurrence of this case. Thereafter, present two appellants were handed over to Ghulam Abid Inspector PW-19 I.O. of this case along with motorcycle stated above Ex.P7 who took the same into possession through recovery memo Ex.PF duly attested by Muhammad Yaqoob SI PW-4 and also arrested the accused/present appellants in this case and got them sent to Judicial lockup on 8.5.2012 for the purpose of identification parade. On 16.5.2012, identification parade was held under the supervision of Ch. Muhammad Arshad PW-17, the then Special Judicial Magistrate Lahore Cantt in District Camp Jail, Lahore in which Abdul Sattar SI PW -11 complainant and Shahzad Iqbal injured PW-12 constable (eye-witnesses) have identified Muhammad Rizwan and Ijaz Baig present appellants being culprits of this case. Both these eye-witnesses stated before the court that on 26.4.2012 at 08:00 pm, they were on patrolling duty in the area of PAF colony, Lahore and street lights were on; they signaled the present two appellants to stop for checking but they started firing with their pistols as a result of which Muhammad Naveed constable succumbed to the injuries at the spot whereas Shahzad Iqbal injured PW-12 became injured.

14. Ch. Muhammad Arshad PW-17, the then Special Judicial Magistrate Cantt Lahore stated in cross-examination that he had recorded the objections of the accused persons in the report Ex.PU that they were shown to the PWs by the police before the identification parade. But, it is our confirmed view that this is a routine objection which always an accused takes to challenge the veracity of the identification parade. The court has to examine whether such objection is bona fide supported by any material evidence and further whether the testimony of the witnesses who identified the accused inspires confidence and has corroborated by other evidence led. In the present case, we find that afore referred plea is not tenable having not been supported by any material on record. Reliance is placed on case Ghazanfar Ali @ Pappu and another v. State (2012 SCMR 215) in which Hon'ble Supreme Court of Pakistan has observed at page 220 as under: "The Magistrate who supervised the identification parade appeared as PW-14 admits that during the identification parade, an objection was raised by the accused that they had been shown to the prosecution witnesses at the Police Station and their photographs were also prepared. This is the usual defence plea an accused takes to challenge the veracity of the identification parade but when such a plea is taken, the Court has to examine whether it is bona fide; whether there is any other material circumstance to support it and whether the testimony of the witnesses who identified the accused inspires confidence and is corroborated by other evidence led. In the instant case, we find that the afore-referred plea remained merely an allegation and was not supported by any material on record."

15. According to point-D of scaled site plan Ex.PJ/ 1 prepared by Hameed-ud-Din Chisti. PW-8 Draftsman street lights were on, on different places at the place of occurrence at the time of occurrence, so identity of present two appellants is not doubtful and they have rightly been identified by above stated eye-witnesses who had absolutely no grudge or to falsely implicate present two appellants in this case. Both these eye-witnesses Abdul Sattar SI PW-11 and Shahzad Iqbal injured PW-12 were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They remained consistent on all material aspects of the case. These two eye-witnesses have also identified present two appellants during their statements before the trial court. Thus, even otherwise, the holding of identification parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness qua the identity of an accused even in Court inspires confidence, if he is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, the absence of holding of identification parade would not be fatal to the prosecution. In Harbajan Singh v. State of Jammu and Kashmir ((1975) 4 Supreme Court Cases 480), the Court upheld the conviction where no identification parade had been held and observed that the failure to hold identification parade would not be fatal in cases where enough corroborative and conclusive evidence was available. A similar view was taken in Jadunath Singh v. State of U.P. ((1970) 3 Supreme Court Cases 518).

16. Shahzad Iqbal injured PW-12 constable received firearm injury during the occurrence at the hands of present two appellants whereas Abdul Sattar SI PW-11 was also on patrolling duty at the time of occurrence at the place of occurrence as stated by him. Hence, the presence of these two eye-witnesses at the place of occurrence at the time of occurrence cannot be considered as improbable and unnatural. Their evidence is trust worthy and straight forward. The story of the prosecution is quite natural and we do not find any discrepancy in their statements. Even otherwise, suffice to say that if the prosecution had any intention to falsely implicate the present appellants in the present case by fabricating false evidence, the complainant Abdul Sattar SI PW-11 could easily mentioned the names of present two appellants in the FIR which shows bona fide on the part of the prosecution that they did not mention the names of present two appellants in the FIR.

17. Medical evidence was furnished by Dr. Ijaz Ahmad PW-7, Dr. Shahzad Ashraf PW-6 and Dr. Ahmad Raza Khan PW-13 detail of which is mentioned in para No.6 of this judgment, therefore, no need to repeat the same to avoid repetition and duplication. However, Dr. Ijaz Ahmad PW-7 on 26.4.2012 conducted medical examination of Muhammad Naveed deceased, the then injured and observed two firearm entry wounds on his chest. Dr. Ahmad Raza Khan PW-13 who conducted postmortem examination on the dead body of Muhammad Naveed deceased on 8.5.2012 at 07:00 pm stated that injuries stated above were ante-mortem in nature and caused by firearm weapon and cause of death in this case was firearm injury to chest, abdomen and its complications. Likewise, Dr. ljaz Ahmad PW-18 stated that on 26.4.2012 he conducted medical examination of Shahzad Iqbal injured PW-12 and observed a graized wound 9 cm x 2 cm on inner aspect of right thigh only skin deep 16 cm from knee caused by firearm weapon. In this way, medical evidence has supported the ocular account furnished by above stated two eye-witnesses.

18. Ghulam Abid Inspector PW-19 I.O. of this case stated that on 26.4.2012 during the spot inspection, he collected six crime empties of .30 bore pistol P-8/1-6 which were taken into possession through recovery memo Ex.PL attested by Abdul Sattar SI PW-11. We have also perused the statement of Abdul Sattar SI PW 11 in this regard and both these PWs have not stated in their statements before the trial court that parcel of above stated empties was prepared at the spot after taking same into possession.

19. According to the report of Punjab Forensic Science Agency (PFSA) Ex.PZ, parcel of crime empties of .30 bore pistol was received in the office of PFSA on 09.05.2012 after the arrest of present two appellants i.e. on 7.5.2012. Prosecution did not explain that when parcel of crime empties was prepared. So possibility of manufacturing of crime empties before their dispatch to the said laboratory could not be ruled out of consideration.

20. Ghulam Abid Inspector PW-19 I.O. of this case stated that on 11.6.2012, Muhammad Rizwan present appellant disclosed and led to the recovery of pistol .30 bore P-10 from the room of his residential house which was taken into possession through recovery memo Ex.PR attested by Muhammad Aslam PW-16 and further stated that Ijaz Baig present appellant on the same day on 11.6.2012 during interrogation disclosed and led to the recovery of pistol 30-bore P-11 from the room of his residential house which was taken into possession through recovery memo Ex.PS attested by Muhammad Aslam PW-16. This witness has not stated that parcel of both the pistols were prepared separately at the time of recovery. Hence, recovery of the pistols is also doubtful and is not believable and same is hereby disbelieved. Positive report of (PFSA) Ex.PZ is also not believable and is hereby discarded.

21. Although, we have disbelieved the evidence of recovery of the pistols but if this evidence is excluded from consideration, even then, prosecution has proved its case against present two appellants through the eye-witnesses supported by medical evidence as discussed earlier without any shadow of doubt.

22. Adverting to defence plea of Muhammad Rizwan appellant/convict, he stated in his statement under section 342, Cr.P.C. in reply to question "why this case against you and why the PWs deposed against you?" replied as under:- "I was arrested in this case on 27.4.2012 in front of my house. I was arrested by Rana Muhammad Yousaf ASI on his personal revenge and he detained me in the lockup of Police Station Baghbanpura, Lahore. The SHO Muhammad Raza SI and Rana Muhammad Yousaf ASI brutally tortured me in police cell due to which my left forearm was fractured and I was seriously injured. My brother Muhammad Irfan submitted an application before the learned District and Sessions Judge, Lahore to recover me from the illegal custody of Police Station Baghbanpura, Lahore. Out of the fear of the bailiff the police shifted me at different places and finally SHO of Police Station Baghbanpura, Lahore Muhammad Raza SI shifted me in Police Station North Cantt, Lahore. My brother Muhammad Irfan submitted a habeas petition before the Hon'ble Lahore High Court, Lahore which was fixed for 8.5.2012. Out of the fear of said habeas petition for my recovery SHO of Police Station, North Cantt, Lahore and Ghulam Abid Inspector/I.O. Abdul Sattar SI tortured me and sent me to the judicial lockup. The local police malafidely involved me in this case due to said personal revenge and also due to filing of habeas petition against the SHO of Police Station North Cantt, Lahore. The police also extended threats to my brother and father regarding filing of said habeas petition before the Hon'ble Lahore High Court, Lahore. I was not present at the place of occurrence. I along with my cousin (Chachazad) Muhammad Farooq and 20 other Mohallahdars were present at Allama Iqbal International Airport, Lahore on 26.4.2012 from 07:00 pm to 11:00 p.m. My cousin Muhammad Farooq went to Dubai, I and other Mohallahdars went to see him off a the said airport. My CCTV Footage and video is available and 20 people of Mohallahdars also submitted their sworn affidavits before the I.O. regarding my innocent. The ocular account recorded before this court by the prosecution is totally fake and fictitious. All the PWs this case are police officials except a few. The complainant as well as deceased the police officials. But he did not appear under section 340(2), Cr.P.C. and produced in defence documentary evidence documents Ex.DA to Ex.DK/1 to support his plea and produced oral defence evidence DW-1 to DW-5. Muhammad Rizwan has failed to prove his plea of alibi.

23. Likewise, Ijaz Baig appellant/ convict stated in his statement under section 342, Cr.P.C. in reply to question "why this case against you and why the PWs deposed against you?" as under:- "I was arrested in this case on 26.04.2012 at Akhri Mint Stop on motorcycle out of Suspicion. I along with my co-accused Rizwan were detained in Police Station Baghbanpura, Lahore and brother of Rizwan accused filed a habeas petition before the Hon'ble High Court, Lahore regarding the recovery of accused Rizwan. When the bailiff of Hon'ble Lahore High Court, Lahore conducted the raid at Police Station Baghbanpura, Lahore my motorcycle was available in the Police Station. The police involved me in this case just to show the efficiency because a police constable was murdered in this case ond one was injured. The police did not arrest the actual culprits in this case and I along with my co-accused were involved in this case as I did not fulfill and meet the illegal requirements of the police. All the PWs are police officials except a few and they deposed falsely against me just to strengthen the prosecution case. No person from the locality made his deposition before the court. I am totally innocent." But he also did not appear under section 340(2), Cr.P.C. and also did not produce any defence evidence to establish his defence plea. In view of the above, defence plea of both the appellants is nothing except denial and the same was rightly discarded by the trial court with sufficient reasons.

24. Adverting to the quantum of sentence, we have noted some mitigating circumstances in the instant case (i) We have disbelieved the evidence of recovery of the pistols and have discarded the report of Punjab Forensic Science Agency (PFSA) Ex.PZ. (ii) It is not ascertainable in the evidence of the prosecution that which accused from the appellants has caused fatal injuries on the person of Muhammad Naveed deceased, rather, both the eye-witnesses Abdul Sattar SI PW-11 and Skahzad Iqbal injured PW-12 stated in their statements before the trial court that both the appellants made firing in result of which Muhammad Naveed deceased received two firearm entry wounds on his chest whereas Shahzad Iqbal injured PW-12 received one firearm injury but did not specify the role of present two appellants.

25. In view of the above, individual responsibility of any of the appellants cannot be determined and they are jointly responsible for the murder of Muhammad Naveed deceased and firearm injury suffered by Shahzad Iqbal injured PW-12.

26. In view of the above stated circumstances, the death sentence awarded to present two appellants is harsh. Reliance is placed on unreported judgment of Hon'ble Supreme Court in case i.e. Criminal Appeals Nos. 487 and 488 of 2006 and Jail Petition No. 934/2009 titled Muhammad Nazim, Muhammad Luqman etc. and Tabassum v. The State decided on 12.12.2014 in which Hon'ble Supreme Court of Pakistan in para No. 11 observed ads under:- "We have also attended to the question of propriety or otherwise of the sentences of death passed against the appellants and the petitioner and have straightaway observed that at no stage of the case it had been established by the prosecution as to which accused person was responsible for the fatal injuries received by any of the seven murdered persons. Although the appellants and the petitioner indeed shared common object of commission of the murders in issue yet the individual responsibility of any of the appellants and the petitioner was not discernable from the record. The law is firmly settled by now that where it is not clear as to which of the culprits had caused the fatal injury to the deceased there, by way of abundant caution, the sentence of death is usually to be withheld in the interests of justice and a reference in this respect may be made to the case of Muhammad Latif and another v. The State (1984 SCMR 284), Saee and others v. The State (1984 SCMR 1069), Allah Dad and another v. The State (1995 SCMR 142), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577), Muhammad Riaz and another v. The State (2007 SCMR 1413) and Naik Muhammad alias Naika and another v. The State (2007 SCMR 1639). The ratio of the said precedent cases applies with full force to the criminal case in hand."

27. For the foregoing reasons, convictions of both the appellants under sections 302(b)/34, P.P.C. and 7(a) of A.T.A., 1997/34 are maintained but their sentences are reduced from death to life imprisonment each. Compensation and fine awarded by the trial court and sentences in default thereof are also maintained. Convictions and sentences of present appellants on other heads under sections 324/34, 337-F(i)/34, 186/34, 353/34, P.P.C. are maintained. In presence of conviction of present two appellants under section 7(a), A.T.A., 1997, conviction under section 7(h) of A.T.A., 1997 is not sustainable and same is hereby set aside. All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. is also given to the appellants. Consequently, with the above said modification in the sentences of Muhammad Rizwan and Ijaz Baig present appellants, Criminal Appeal No. 1046 of 2013 filed by Muhammad Rizwan and Criminal Appeal No. 1050 of 2013 filed by Ijaz Baig appellants are hereby dismissed. C.S.R. No. 17-T of 2013 is answered in NEGATIVE and death sentences of Muhammad Rizwan and Ijaz Baig present appellants on all counts are NOT CONFIRMED.

28. In view of the above discussion, Writ Petition No.26905 of 2013 filed by Liaquat Ali petitioner (brother of Muhammad Naveed deceased) for enhancement of the compensation and fine respectively, has no merits and the same is hereby dismissed. ZC/M-54/L Appeal dismisse