1987 PLP 2532 (PCRLJ)

(2) A stitched chest intubation wound 3 c.m. in length bearing two stitches. on the outer side of right chest middle part. On dissection under injuries Nos. 1 and 2 there were shattered fractures of right 10th, 11th and 12th ribs. Right chest cavity contained about 800 C.C. of blood. Right dome of diaphragm was performated. Right lung was collapsed. Left lobe of liver was ruptured through and through. There was big through and through performation of large gut on right side. Peritoneum and omentum were also ruptured. Right kidney was completely shattered and ruptured. Vertebral column was fractured at the level of 12th thoracic vertebra. Spinal cord was also injured at that level. Injury No. 3 was also situated at this level through which the bullet had come out. The abdominal cavity contained about 1500 C.C. of blood. One deformed bullet was recovered from the outer abdominal wall lodged in the muscles below the costal margin. On dissection under injury No.4, three pieces of deformed bullet were recovered from the upper portion of right fore‑arm which were situated on and around the upper part of shaft of radius. There was ecchymosis and extravasation of blood into the upper part of right fore‑arm muscles and subcutaneus tissues around the wound. Nothing abnormal was detected in rest of the thoracic viscera and abdominal viscera. On right side of the chest under injuries Nos. 1 and 2 inter costal vessels were ruptured. About 200 C.C. of watery fluid was present in the stomach. About 100 C.C. of urine was present in the bladder. Nothing abnormal was detected in the scalp, skull, brain and membrances. In his opinion death occurred due to shock and extensive haemorrhage as a result of injuries Nos.1 and 2, which were sufficient to cause death in the ordinary course of life (nature) collectively as well as individually. All the injuries were ante‑mortem and caused by fire‑arm. The recovered bullets were sealed in a phial and handed over to the police. Probable time that elapsed between injuries and death was 3 to 6 hours while the time between death and post‑mortem examination was about 12 hours. Exh.P.CC is the correct carbon copy of his post‑mortem examination report, whereas Exh.P.CC/1 is the diagram showing the location of the injuries.

8. Since the frame Number of cycle P.5 was not legible being erased, the frame was, therefore, sent to the metallic expert, Lahore, for tracing its number and Bashir Ahmad S.I., brought the report Exh.P.D. from the expert that its frame Number was LC 121393. During investigation Amanat Ali P.W.10 produced counterfoil receipt Exh.P.E./1 showing sale of the cycle to Muhammad Jamil P.W.11, who produced original receipt Exh.P.E. and admitting himself to be the owner of the cycle, produced register Exh.P.F. bearing entry Exh.P.F./1 showing the cycle to had been hired by Qamar‑uz -Zaman accused on 10‑8‑1987 and had not yet been received back. Rana Taj Ali Inspector, P.W.23, took these documents into possession vide memos Exh.P.M. and Exh.P.G.

9. Azhar Hussain accused was arrested by Farooq Ahmad Inspector P.W.25, on 22‑8‑1987 from Sahiwal from the house of his sister in Fareed Town, who at the time of his arrest got recovered Motor‑cycle P.6 as well as bag P.7, containing some clothes etc. which were taken into possession vide memo Exh. PP in the presence of Faiz Muhammad P.W.14 and Riasat Ali P.W.15, who attested the memo. Azhar Hussain accused was brought to Khanewal and was sent to judicial lock‑up on the same day.

10. Qamar‑uz‑Zaman accused was arrested by Mushtaq Ahmad S. I., P.W.6, at Ayub Chowk Khanewal on 22‑8‑1987 where his brother Akbar produced him. Mushtaq Ahmad P.W.6 produced Qamar‑uz‑Zaman accused before Farooq Ahmad, S.H.O., the same day and he was also sent to judicial lock‑up alongwith Azhar Hussain accused.

11. Since the culprits had not been named in the F.I.R. and the complainant had given their features in the F.I.R. Exh.P.C. and had stated that he could identify the culprits if they come before him, an identification parade was, therefore, held on 23‑8‑1987 in the District Jail Multan. Rana Taj Ali Inspector, P. W. 23, took alongwith him, Muhammad Ayub Piracha P.W.19, Muhammad Ishaq P.W.20 and Muhammad Salim P.W.21 to District Jail Multan on the same day, where all the eye‑witnesses correctly identified both the accused before Mr. Irshad Hussain Magistrate P. W.18, who conducted the identification parade.

12. After the identification parade, Farooq Ahmad S.H.O. obtained personal remand of the accused. Both the accused in custody offered to lead to the recoveries or. 24‑8‑1987. Qamar‑uz‑Zaman accused while in police custody offered to lead to the recovery of iron file P.20 and got it recovered from the baithak situated in Basti Sheikh Malka Chak No.76/10‑R, lying on the floor inside the kotha. It was seized vide memo Exh.P.T. He also led to the recovery of gun P.15 bandolier P.16 alongwith eight live cartridges P.17/1‑8 from the cotton crop of one Naseer‑ud‑Din near Canal 10‑R situated in Chak No.7/10‑R. These were taken into possession by the investigating Officer vide memo Exh.P.U.

13. On the same day, Azhar Hussain accused while in police custody offered to lead to the recovery of rifle, weapon of offence. He, therefore, led the police party to his kotha in the area of Chak No.76/10‑R, Basti Sheikh Malka and got recovered rifle P.18 as well as licence P.21 (in the name of his brother Akbar) from underneath the clothes lying in a Jisti Patty (iron box). The Investigating Officer made it into a sealed parcel vide memo Exh.P.V.

14. When charged under section 302/392, P. P. C. read with section 34 of the same Code, the accused pleaded not guilty to it.

15. At the trial the prosecution examined 25 witnesses. P.W.1, Muhammad Salim identified the dead body, P.W.2 Riaz Hussain is the witness of the memos of recovery of the last worn clothes of the deceased, shalwar P.1, string P.2, as well as phial P.3 and also blood‑stained shirt P.4, vide Memos Exh.P.A. and Exh.P.B. P.W.3 Talib‑ud‑Din Moharrir A.S.I. recorded formal F.I.R. Exh.P.C. on the receipt of complaint Exh . P. C . / 1 at 2.40 p. m. the same day at Police Station Sadar Khanewal. He also received sealed parcels of this case from the Investigating Officer and kept them intact in safe custody till he sent the same to the office of Chemical Examiner and Fire Arms Expert. P.W.4 Javed Iqbal Constable No.190 took the sealed parcels of blood‑stained earth and crime empty and delivered those intact in the office of Chemical Examiner and Director Forensic Science Laboratory, Lahore on 19‑8‑1987. P.W.5 Noor Nabi Constable No. 146 took the sealed parcel of rifle to the office of Forensic Science Laboratory Lahore on 25‑8‑1987. P.W.6 Rana Mushtaq Ahmad S.I., arrested Qamar‑uz‑Zaman accused on 22‑8‑1987. P.W.7, Bashir Ahmad A.S.I., took cycle P.5 to the office of Forensic Science Laboratory and obtained report Exh.P.D. containing original number of cycle Exh.P.5. P.W.8, Dr. Shafiq‑ur‑Rehman had medically examined the deceased when he was in injured condition. P.W.9 Mian Muhammad Razaq draftsman prepared site plans Exh.P. K. Exh.‑P, K/1 and Exh.P.K/2. P.W.10 Amanat Ali and P.W.11 Muhammad Jamil are the witnesses regarding sale of cycle P.5 as well as giving the same on hire to Qamar‑uz‑Zaman accused on 10‑8‑1987. They also proved Exh.P.E., Exh.P.E./1, Exh.P.F. and Exh.P.F./1 showing the sale of cycle to P.Ws. and its giving on hire to the accused. P.W.12 Faqir Muhammad A.S.I. escorted the dead body before the doctor after preparing inquest report Exh.P.O. and received the post‑mortem examination report as well as last‑worn clothes of the deceased alongwith sealed phial vide memos. Exh.P.A. and Exh.P.B. P.W.13 Liaqat Ali is the witness to whom Azhar Hussain accused tried to sell out motor‑cycle P.6 during the days of investigation. P.W.14 Faiz Muhammad and P.W.15 Riasat Ali are the witnesses of recovery of motor‑cycle P.6 as well as bag P.7 alongwith articles Exhs. P.8 to 14 vide memo Exh.P.P. P.W.16 Abdul Hamid and P.W.17 Ghaus Muhammad are Wajtakkar witnesses. P.W.18 Mr. Irshad Hussain Tangwani, Magistrate lst Class conducted Identification Parade on 23‑8‑1987 in the District Jail Multan. P.W.19 Muhammad Ayub Piracha, P.W.20 Rao Muhammad Ishaq and P.W.21 Muhammad Salim are the eye‑witnesses of the occurrence. Rao Muhammad Ishaq and Muhammad Salim P.Ws. also witnessed the recoveries. P.W.22 Muhammad Altaf is a metallic expert who traced correct number of cycle P.5 and submitted his report Exh.P.D. P.W.23 Taj Ali D.S.P. partly investigated the case and took into possession the record regarding cycle P.5 from Amanat Ali and Muhammad Jamil P.Ws. aforesaid vide memos Exhs.P.M. and P.G. P.W. 24 is Dr. Iftikhar Hussain Qureshi who performed the post‑mortem examination while P.W.25 is Farooq Ahmad S.H.O. Sadar Khanewal who recorded the complaint Exh.P.C/1, investigated the case and completed the challan.

16. In order to clarify the note marked A on the medico‑legal report Exh.P.H of Ata Muhammad, Dr. Muhammad Idris was examined as Court witness.

17. As observed above, eye‑witnesses account is given by Muhammad Ayub Piracha P.W.19, Rao Muhammad Ishaq P.W.20 and Muhammad Salim P.W.21.

18. Substance of the evidence of Muhammad Ayub Piracha P.W.19 is that on 11‑8‑1987 at 1‑45 p.m. he was present in the bank alongwith Rao Muhammad Ishaq and Muhammad Salim P.Ws and Ata Muhammad deceased guard. After closure of public dealing, they were busy in their official matter when all of a sudden Azhar Hussain accused while armed with rifle P.18 and Qamar‑uz‑Zaman accused armed with dagger entered the bank hall. Immediately Azhar Hussain accused fired two shots with his rifle P.18 hitting the deceased Ata Muhammad on the outer side of right chest of the lower part as well as on the right arm. Qamar‑uz‑Zaman accused then picked up the gun P.15, alongwith bandolier P.16 and eight live cartridges P.17/1‑8 from the corner of the hall and pointed towards the P.Ws. while Azhar Hussain accused proclaimed that nobody should move from his place. The accused then asked them to go to the strong room. Azhar Hussain accused demanded the keys of the safe from Muhammad Ayub Piracha and on his telling that he had no keys with him, Qamar‑uz‑Zaman accused took out bunch of keys from the drawer of his office table containing the keys of the safe, his motor cycle as well as keys of his house. The keys of safe were then thrown towards the witnesses and they were asked to open the safe. When the safe was opened by Muhammad Ayub Piracha as well as Rao Muhammad Ishaq by operating their respective keys,. Qamar‑uz‑Zaman accused threw the bag asking Muhammad Ayub Piracha to put .the cash into the bag. Muhammad Ayub Piracha then. put Rs.5,000 in the shape of ten bundles of notes of the denomination of Re.l in it and handed it over to Qamar‑uz‑Zaman. Both the accused fled away taking alongwith them the "cash bandolier as well as eight live cartridges belonging to the bank. They also drove away motor cycle P. 6 of Muhammad Ayub Piracha from outside the bank leaving the dagger P.17 at the spot. The rifle (the weapon of offence) was also taken away by the accused. Muhammad Ayub Piracha raised alarm which attracted Ghauns Muhammad and Abdul Hamid P.Ws. as well as Faqir Muhammad (not produced). On their arrival, Muhammad Ayub Piracha P.W. told these persons that two persons had committed dacoity and narrated the details to them. Ata Muhammad, who was lying injured in the bank, was then lifted by them to Civil Hospital. Farooq Ahmad Investigating Officer came to the hospital and since Ata Muhammad was not in a position to make statement, Muhammad Ayub Piracha made complaint Exh.P.C./1 which was recorded by Farooq Ali mad S. I. , P.W.25 in the Civil Hospital at 2‑30 p.m. on 11‑8‑1987. Muhammad Ayub Piracha stated that since both the accused were not known to him, but had seen them quite thoroughly, therefore, he had given the features of both the accused in the complaint Exh.P.C./1 and had stated that if they were brought before him, he could identify them and that at the time of identification parade held on 23‑8‑1987 in District Jail Multan he had correctly picked up both the accused.

19. Muhammad Ishaq 'P.W.20 made similar statement and stated that both the accused had entered the bank premises at 1‑45 p.m. on 11‑8‑1987 and that Azhar Hussain accused had fired two shots hitting the deceased Ata Muhammad and then decamped with Rs.5,000 as well as gun P.15, bandolier P.16 and eight live cartridges P.17/1‑8, while leaving at the spot dagger P.19. He also supported that motor‑cycle P.6 of Muhammad Ayub Piracha was taken away by the accused. He also stated that on 23‑8‑1987 he had correctly identified both the accused in identification parade held by Mr. Irshad Hussain Tangwani,, M.I.C. Khanewal.

20. Rao Muhammad Ishaq also stated that he joined police investigation and on 24‑8‑1987 Qamar‑uz‑Zaman accused while in Police custody led to the recovery of iron file P.20 from the room of his kotha, situated in Chak No.76/10‑R, Basti Sheikh Malka which was taken into possession vide memo Exh.P.T. He also testified that Qamar‑uz‑Zaman accused led to the recovery of gun P.15, bandolier P.16 and live cartridges P.17/1‑8, from the cotton field of one Naseer‑ud‑Din in the area of Chak No.76/lOR Sheikh Malka, which were taken into possession vide memo Exh.P.U.

21. Muhammad Ishaq also stated that Azhar Hussain accused while in police custody on 24‑8‑1987 had led to the recovery of rifle P.18 from inside his residential kotha from underneath clothes lying in one iron box and the investigating officer had made it into a sealed parcel and seized vide memo Exh. P.V. He attested the recovery memo.

22. Muhammad Salim P. W.21 who was working as Qasid in the bank on the day of occurrence also narrated the incident in almost similar manner and fully supported the prosecution version, giving the details of the occurrence in its minutest details. He also testified that the Investigating Officer had inspected the spot on that very day and had taken into possession blood‑stained earth and made it into sealed parcel, vide memo Exh.P.Y. The Investigating Officer also secured crime empty P.22 from the spot, seized the same vide memo Exh.P.X., Dagger P.19 was also left at the spot and the same was also taken into possession vide memo Exh.P.W. He testified that he had attested the memo. Since both the accused were not known to him previously, he, therefore, had given features of the accused to the police and, therefore, he was asked to identify them. Consequently he identified both of them correctly in the identification parade held in District Jail Multan on 23‑8‑1987. He also stated that he had joined investigation in this case on 24‑8‑1987. Qamar‑uz‑Zaman accused had led to the recovery of iron file P.20 from inside his residential kotha, which was taken into possession vide memo. Exh.P.R. Qamar uz‑Zaman accused had also led to the recovery of gun P.15, bandolier P.17 and eight live cartridges P.17/1‑8 from the cotton field of one Naseer‑ud‑Din which were taken into possession vide memo Exh.P.U. Azhar Hussain accused also led to the recovery of rifle P.18 from underneath the clothes lying in a Jisty Patty from his residential house in the area of Chak No.76/10‑R alongwith its licence P.21. The police have seized the same, made into a parcel, and took into possession vide memo Exh . P . V .

23. The accused when examined under section 342, Cr.P.C. denied to have committed the offence. They stated to have been involved by the police at the instance of Khizar Hayat Constable with whom they had enmity as well as criminal litigation and that said Khizar Hayst Constable had served as subordinate to Farooq Ahmad and Tai Ali Inspectors P.Ws. Both the accused made statements on oath under section 340(2), Cr.P.C. and stated that they were innocent. The case against them was false and that they had been involved at the instance of Khizar Hayat Constable who had relations with both the Inspectors Police. They further stated that the recoveries had been planted upon them in order to strengthen the case. They stated that police had arrested both of them on 18‑8‑1987 and detained their mother, father and brother Akbar and pressurized Akbar to bring rifle and as a result of which their brother Akbar produced his licensed rifle P.18 before the police. They further stated that they were shown to the eye‑witnesses quite a number of time before putting them to identification parade. Hence they stated that the story of recoveries, identification parade and recovery of rifle at the instance of Azhar Hussain accused was a mere concoction. They declined to produce evidence in defence.

24. I have heard the learned counsel for the parties, and have also gone through the, record. The prosecution case is based upon the evidence of:‑ (1) Ocular evidence. (2) Medical evidence. (3) Identification Parade. (4) Wajtakkar (5) Recoveries. Ocular Evidence.

25. All the three eye‑witnesses, namely, Muhammad Ayub Piracha, Muhammad Ishaq and Muhammad Salim have very unambiguously stated in their statements that both the accused had committed robbery in the Bank as well as committed the murder of Ata Muhammad. All of them are quite consistent and no material contradiction in their statements could be pointed out by the learned defence counsel. It was urged on behalf of the accused that the eye‑witnesses were interested witnesses and, therefore, should not be believed. The argument is devoid of any force. Out of them, as already stated, Muhammad Ayub Piracha was the manager while Muhammad Ishaq, the second officer had joined the duty in the said branch on 8‑8‑1987 i.e. two days" before the present occurrence and as such they had not by that time developed any personal equation with the deceased or animus against the accused. None of the eye‑witnesses is in any way shown to be interested to falsely involve the accused in this case. The contention of the learned counsel that they were interested witnesses is not tenable because the interested witness would be one who has motive to falsely involve or is so inimically disposed towards the accused as to secure conviction at any cost. In the instant case, the accused were not even known to witnesses at the time of lodging the F.I.R., so much so, that they were unable to give their names even and had only given their features before the police. This fact is admitted by the accused themselves in their statements under section 340(2), Cr.P.C. that the eye‑witnesses in this case had no enmity with them. The fact that the eye‑witnesses had named both the accused in their statements in Court to be the culprits, finds support from the identification parade held in Jail on 23‑8‑1987. The parade had been supervised by Irshad Hussain Tingwani, P.W., who had observed all the legal requirements and had conducted the same in accordance with law. Both the accused did not raise any objection before the Magistrate and changed their places as per their choice after the identification by the first eye‑witness, namely, Muhammad Ayub Piracha. Since all the three eye‑witnesses had correctly identified both the accused in the identification parade, it would, therefore, be a strong piece of corroborative evidence in support of the ocular testimony of the witnesses. The presence of eye‑witnesses at the spot gets confirmation from the facts and circumstances when considered seriously. All the eye‑witnesses, as already stated, were employees posted at the branch. Their presence, therefore, in the bank at the time of occurrence is quite natural and could not be doubted by any stretch of imagination. Their presence at the spot at the time of occurrence finds further support from the statement of Ghauns Muhammad P.W.17. Agricultural Officer who has deposed in Court that he reached the spot after hearing, the report of firing and while the culprits were still going from the place of occurrence and that Muhammad Ayub Piracha P.W. had disclosed to him the details of the occurrence, which are quite in confirmity with the statement of the complainant. This witness is a responsible Government officer, an educated man having no personal motive against the accused or interested in prosecution and his evidence is confidence‑inspiring because he has very straightforwardly stated that he could not recognize or identify the two persons seen by him going from the spot immediately after the report of firing on a motor‑cycle.

26. The next question which has engaged my attention is that even if the eye‑witnesses were present at the spot and had seen the occurrence, would it be possible for them to identify the assailants correctly, excluding all the chances of honest mistakes. The evidence of the eye‑witnesses reveals that both the accused had committed the offence in a way in which the eye‑witnesses had every chance to fully observe them in broad daylight for considerable time spent by them in the Bank. It is further seen that the eye‑witnesses had given their features in their statements before the police recorded immediately after the occurrence and the identification parade was held after about 12 days only, when the features were fresh in the mind of the witnesses.

27. The F. I. R. was recorded so promptly that there were no chances of deliberation and the said F.I.R. also contains the features of the accused leading me to believe that they are in a position to identify the accused. The learned defence counsel did not have the courage to confront the eye‑witnesses with their statements giving the features of the accused asking them to compare the features with the accused present in Court, ostensibly because the features resemble with the features of the accused. The learned defence counsel has tried to create doubt in the ocular evidence for the reasons that the complainant has stated in the F.I.R. that cycle P.5 left by the assailants at the spot was made (Sohrab Made) whereas it is in fact "Leader Cycle". I am not impressed by the arguments because Muhammad Ayub Piracha P.W. had clarified by saying that he had stated so out of perplexity. This contradiction in my opinion is not so material as to cast doubt on his veracity. The ocular testimony furnished by the eye‑witnesses is confidence inspiring, convincing, independent and straightforward having no bias against the accused. MEDICAL EVIDENCE.

28. Dr. Iftikhar Hussain P.W. 23 who conducted the post‑mortem examination of the deceased had stated that the three fire‑arm wounds of entry could be the result of two fire shots and that the deceased had died due to the fire‑arm injuries which had caused extensive damage to the internal organs and that the injuries were sufficient to cause death in the ordinary course of nature individually as well as collectively. The medical evidence, therefore, on the one hand proved that the deceased had died due to the injury and on the other hand corroborates the prosecution story.

29. The prosecution produced Abdul Hamid P.W.16 Ghauns Muhammad P.W.17 in support of this evidence. Abdul Hamid though identified both the accused in Court and stated that he had seen both the accused running from the spot on the motor‑cycle but his evidence cannot be believed for the simple reason that he was not made to identify the accused in the identification parade because according to the witness himself he did not know the accused before the present occurrence. Ghauns Muhammad P.W. very straightforwardly stated that he could not identify the accused present in Court. The evidence of Wajtakkar produced by the prosecution was not worth reliance.

30. The prosecution has produced Muhammad Salim P.W.21 as well as Farooq Ahmad Inspector, P.W.25 in order to prove recovery of cycle P.5 from the spot, which was found to have been obtained by Qamar‑uz‑Zaman accused from Muhammad Jamil P.W.11 on hire on 10‑8‑1987 and the number of which has been erased. The prosecution collected the evidence of Amanat Ali P.W as well as the receipts and its counterfoil to prove that the cycle had been sold out by Amanat Ali P.W.10, a cycle‑dealer, to Muhammad Jamil P.W.11, who was a shopkeeper and who gave cycle on hire. Qamar‑uz‑Zaman accused according to the prosecution, led to the recovery of iron file P.20 from his residence on 24‑8‑1987 in the presence of Farooq Ahmad Inspector P.W., Muhammad Ishaq P.W. and Muhammad Salim P.W. and the prosecution wanted to prove that the accused Qamar‑uz‑Zaman had erased the number of cycle after getting it on hire from Muhammad Jamil P. W and that both the accused had left the cycle at the spot after the occurrence, because they had driven away the motor‑cycle of the complainant. From the evidence produced by the prosecution, it is not proved that the accused had erased the number of the cycle and, therefore, the recovery of file P.20 is of no value to the prosecution case. The statement of Muhammad Jamil P.W.11 alongwith the Register Exh.P.F. produced by him however had established this fact that cycle P.5 had been hired by Qamar‑uz‑Zaman accused a day before the present occurrence. There is no direct evidence on the file that the accused had come on cycle P.5 in the Bank in order to commit the offence. But this much is brought in the evidence that cycle P.5, which the accused Qamar‑uz‑Zaman had hired from Muhammad Jamil P. W.11 a day before the present occurrence and which had not been returned to him, was found lying outside the bank immediately after the occurrence. These factors raise strong presumption to the effect that the cycle had been left by the accused after the occurrence. Accused Qamar‑uz‑Zaman had also led to the recovery of gun P.15 alongwith the bandolier P.16 and cartridges P.17/1‑8 from an open cotton field, accessible to everybody. The accused, therefore, did not have these articles in his exclusive possession and, therefore, the evidence of this recovery is of no help to the prosecution. Azhar Hussain 'accused at the time of his arrest on 24‑8‑1987 had led to the recovery of Motor‑cycle P.6 belonging to the complainant and this recovery was witnessed ‑by Fateh Muhammad P.W.14. Both the witnesses of recovery are quite independent and had no motive to depose falsely against the accused. They are residents of the locality from where the recovery was effected. The recovery of stolen motor‑cycle from the possession of the accused Azhar Hussain is proved by the evidence on record. Azhar Hussain accused, also stated to have led to the recovery of rifle P.18 from the residential kotha belonging to him situated in their field. He had brought out the said rifle from beneath the clothes lying in the iron box. This recovery was witnessed by Muhammad Ishaq P.W.20, Muhammad Salim P.W.21 and Farooq Ahmad Inspector P.W.25. The rifle had been made into a sealed parcel. The rifle was found to be a licensed rifle belonging to the brother of the accused. The rifle is not alleged to have been lost or stolen and the crime empty taken into possession from the spot was found to have been fired from the rifle P.18, by the Forensic Science Laboratory. All these circumstances also give rise to the strong presumption that the accused had used the said rifle in the commission of the crime and got it recovered as alleged by the prosecution. The learned defence counsel has attacked this recovery on the ground that no witness of the nearby locality had witnessed the recovery. I have considered this aspect of the case. No doubt both the recovery witnesses were the eye‑witnesses of the case and had been taken along by the police to the place of recovery but this is not sufficient to discard the recovery specially when no resident of the nearby locality was present at that time. It would have been better if the investigating officer had summoned some persons from Basti Sheikh Malka, which is the nearest abadi but the recovery can be believed even from the statements of the investigating officer if the investigation had been conducted by him quite impartially and honestly and particularly when the witnesses having already been found independent and impartial. Reliance is placed upon 1985 SCMR 854 wherein it has been held that mere fact that recovery witness was not resident of locality was not a proper reason for excluding his evidence. The learned Judges of the Supreme Court had observed in the same judgment that the applicability of section 103 of the Code of Criminal Procedure to a recovery made at the pointing out of the accused was not clearly established because section 103 of the Code of Criminal Procedure is applicable to search made in Chapter VII of the Code of Criminal Procedure in pursuance of a search‑warrant. It has also been observed that the stress under section 103, Cr.P.C. is on the respectability of the witness and if he be found to be respectable, he should not be disbelieved merely because he did not hail from the locality. The witnesses of recovery in the instant case namely, Muhammad Ishaq and Muhammad Salim were quite independent and respectable persons and, therefore, they should not be disbelieved simply because they are not residents of nearby locality. The recovery of rifle P.18 is also supported by Farooq Ahmad Inspector who is also a competent witness and his evidence is also not be discarded merely because he was police officer. He was open to cross‑examination, in the same manner as other prosecution witnesses. For the reasons stated above, I am of the considered opinion that the recovery of rifle P. 18 at the instance of Azhar Hussain accused is proved.

31. I have now to examine the plea of accused and if I come to the conclusion that the defence version could also be reasonably true it would react on the whole case. The plea of the accused that they had been falsely involved in this case at the instance of one Khizar Hayat Constable who was inimical towards them and had relations with the Inspector Farooq Ahmad and Taj Ali P.Ws. does not sound reasonable because although the accused had stated that Khizar Hayat the aforesaid had criminal litigation with their family yet no document in the shape of the copy of the F.I.R. etc. had been produced. There is no material to support the plea that there was any constable in the name of Khizar Hayat, employed in the police of this area nor of the allegation of the accused that he had served under both the police Inspectors. The Police Inspectors had categorically denied that any Khizar Hayat Khan was known to either of them. It is highly unbelievable that two Police Inspectors would involve innocent persons in the case at the instance of a constable. The plea of the accused that they were arrested on 18‑8‑1987, and were shown to the eye‑witnesses stood falsified from the evidence of Mr. Irshad Hussain Tangwani, Magistrate 1st Class, P.W.18 who stated that the accuse" did not raise any objection before him at the time of identification parade. Had it been so, they must have brought to the notice of the Magistrate. The accused had produced a newspaper containing some news item in respect of the present case in order to prove that they had been arrested by the police on 18‑8‑1987. The newspaper containing the news item was not proved in accordance with the requirements of law. In spite of that the news item did not support the plea of the accused. The defence version, therefore, is such which cannot be reasonably true or even plausible and, therefore, not believable:

32. On the other hand the prosecution has successfully proved that both the accused committed the offence of robbery and murder in the Bank. The place of occurrence is established from the report of the Chemical Examiner Exh. P. EE. and that of the Serologist Exh.P.FF that the blood‑stained earth seized from the spot was stained with human blood. The use of rifle P.18 has been proved from the report of the Forensic Science Laboratory Exh.P.G., according to which the crime empty P.22 seized from the spot had been fired from, rifle P .18.

33. The upshot of the whole discussion is that the prosecution has proved the case against both the accused by ocular evidence corroborated by the evidence of Identification parade. The ocular evidence is further corroborated by the Medical evidence. Although the ocular evidence under the circumstances is sufficient to bring home the guilt of the accused yet the evidence is further corroborated by the evidence of the recovery of the motor‑cycle of the complainant from the possession of Azhar Hussain accused. The recovery of rifle P.18 at the instance of Azhar Hussain accused also corroborates the ocular evidence. Recovery of cycle P.5 from the spot in the circumstances narrated earlier has also raised strong presumption` against the accused.

34. I have also given my anxious consideration to examine whether section 34, P.P.C. is applicable to Qamar‑uz‑Zaman accused in respect of the murder of Ata Muhammad deceased. The common intention is to be inferred from the facts and circumstances of each case. Qamar- uz‑Zaman and Azhar Hussain accused were real brothers. They had come to the spot while armed with rifle and dagger. After the firing by Azhar Hussain, Qamar‑uz‑Zaman accused lifted 'the gun from the spot and had pointed the same towards the eye‑witnesses, while Azhar Hussain accused had proclaimed that nobody should move from his place. These circumstances coupled with the subsequent conduct of Qamar‑uz‑Zaman accused leads to the irresistible conclusion that he was also shafting the intention of Azhar Hussain and the murder has been committed in furtherance of the common intention of both of them.

35. Resultantly both the accused are convicted under section 392, P.P.C. read with section 34, P.P.C. for committing robbery in the Bank and robbing the bank of Rs.5,000 alongwith the gun and bandolier etc. and also for taking away motor cycle P.6 belonging to the complainant, as booty of robbery. They are also convicted under section 302, P. P. C . read with section 34 of the same Code for committing the murder of Ata Muhammad deceased by intentionally causing his death. Azhar, Hussain accused is sentenced to death under section 302, P.P.C. read with section 34; P.P.C. for committing the murder of Ata Muhammad deceased. He is also sentenced to fine of Rs.5,000 or in default to undergo R.I. for further period of one year. He is also sentenced under section 392, P.P.C. read with section 34 of the same Code to ten years' R.I. and a fine of Rs.5,000 or in default thereof to further one year's R.I. Qamar‑uz‑Zaman accused is sentenced to death under section 302, P.P.C. read with section 34 of the same Code for committing the murder of Ata Muhammad deceased. He is also sentenced to fine of Rs.5,000 or in default to suffer further R.I. for one year. He is also sentenced under section 392, P.P.C. read with section 34 of the same Code to ten years' R.I. and a fine of Rs.5,000 or in default to suffer further R.I. for one year. It is further ordered that both the accused, namely, Azhar Hussain and Qamar‑uz‑Zaman, shall be hanged by their necks till they are dead. Out of the fine, if realized, Rs.5,000 shall be paid to the Bank (Habib Bank Limited) and Rs.10,000 shall be paid to heirs of Ata Muhammad deceased.

36. Gun P.15, bandolier P.16, cartridges P.17/1‑8 shall be returned to Habib Bank Khanewal Brach, with the direction that these shall not be disposed of till the decision of appeal, if any. Motor‑cycle P.6 shall be returned to Muhammad Ayub Piracha complainant its owner with the condition that he shall not dispose it of till the decision of appeal, if any. Dagger P.19, as well as rifle P. 18 shall stand confiscated to the State. Cycle P.5, shall be returned to Muhammad Jamil P.W.12 on the express condition that he shall not dispose it of till the decision of appeal, if any, Remaining exhibited articles in the case shall be destroyed after the decision of appeal, if any. M.A.K./S‑120/L Accused sentenced.