1989 PLP 4016 (MLD)

RIAZ AHMAD, J.‑‑ The appellant Muhammad Ali was tried by a Special Court for Speedy Trials, Gujranwala, at Lahore on charges under sections 302/34, 307/34, 392/34 read with section 397/34, P.P.C. The learned trial Court vide its judgment dated 5‑5‑1988, found the appellant guilty on all the charges. On the charge under section 302/34, P.P.C. for having caused the murder of Nasarullah, the appellant was convicted and sentenced to death and to pay a fine of Rupees one hundred thousand or in default to suffer rigorous imprisonment for a term of five years. The entire fine, if recovered, was directed to be paid as compensation to the heirs of the deceased. The appellant was also found guilty on the charge under section 392/34 read with section 397/34, P.P.C. on two counts. On the first count, for robbing cash of Rs.95,910, from the bank appellant was sentenced to suffer rigorous imprisonment for a term of ten years and to pay a fine of Rupees one hundred thousand, or in default thereof, to suffer rigorous imprisonment for a term of 2‑1/2 years. The entire fine, if recovered, was directed to be paid as compensation to the National Bank of Pakistan, Rerka Bala Branch, District Gujrat; on the second count under section 392/34 read with section 397/34, P.P.C. for robbing Khalid Nawaz P.W.11, of his motor‑cycle, the appellant was sentenced to suffer rigorous imprisonment for a term of ten years and to pay a fine of Rs.20,000 or in default thereof, to suffer two years' R.I. further. Half of the fine, if recovered, was directed to be paid as compensation to Khalid Nawaz P.W.11. On the charge under section 307/34, P.P.C. for causing the murderous assault on Khalid Nawaz, P.W.11, the appellant was sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.20,000 or is default to suffer rigorous imprisonment for a term of two years. Half of the fine, if recovered, was ordered to be paid as compensation to Khalid Nawaz P.W.11. Aggrieved by his conviction, the appellant has preferred this appeal and we propose to dispose of the same vide this judgment.

2. The occurrence took place on 26‑4‑1987 at 11 a.m. in the branch of National Bank of Pakistan situated in village Rerka Bala in District Gujrat. On the receipt of the information about the occurrence, Mukhtar Ahmad, S.H.O., Police Station Miana Gondal, P.W.14, reached the scene of occurrence. Bashir Ahmed, P.W.13, Manager, National Bank of Pakistan at Rerka Bala Branch reported the occurrence to the S.H.O., who recorded his statement Exh.P.E. at 1 : 40 p.m. and sent the same to the Police Station Miana Gondal, for the registration of a case. At the Police Station Miana Gondal, the formal F.I.R. Exh.P.E./1 was drawn by Muhammad Yousaf, A.S.I. P.W.6 at 2‑30 p.m.

3. In brief, the complainant Mian Bashir Ahmed P.W.13, Manager in the National Bank of Pakistan stated in the F.I.R., that on the fateful day, at 11 a.m. he was present in the bank alongwith the Cashier Nasrullah and the Gunman namely Abdur Rehman, P.W.12. One Salabat an account‑holder was also present in the bank to encash a cheque, when at the same time, through the main gate of the bank, two persons, one of them armed with a rifle and the other with a revolver entered the bank and their third companion armed with a revolver entered from the back door. The one who was armed with a rifle hit the Gunman Abdur Rehman, P.W.12, with the butt end of his rifle and snatched the gun from him and after breaking the same threw it. Thereafter, they fired inside the bank to overawe the complainant and the other employees and on the gun‑point obtained the keys, and after opening the safe and from the counter, all the money amounting to Rs.95,400 was taken away. According to the complainant, all the three accused were of young age and he could identify them. The three accused had come on motor‑cycle bearing Registration No.1771/Faisalabad and had parked the same near the gate of the bank. After having robbed the bank, all three went out through the main gate in the street where the motor‑cycle was parked. Nasarullah Khan (deceased) Cashier went into the street through the back door to chase them, whereupon, they fired at Nasarullah, as a consequence of which, he received injuries and died at the spot. All the three accused then left the motor‑cycle and ran away. In the adjacent graveyard, Khalid resident of Chak 48, was coming at a motor‑cycle bearing Registration No.SAA/151. All the three accused fired upon him who left the motor‑cycle to save his life and all the three took away that motor‑cycle and escaped through the pavement of Sem Nala. The complainant further asserted that the aforesaid Khalid could also identify all the three accused. It was further stated that all the three were talking in the local dialect.

4. Mukhtar Ahmed, Inspector Police, P.W.14, during the investigation, recovered three live cartridges P.7/1‑3 from the spot and the same were taken into possession vide memo. Exh.P.K. attested by Abdur Rehman P.W.12, Bashir Ahmed, complainant, P.W.13 besides the Investigating Officer, Mukhtar Ahmad, Inspector Police P.W.14. The motor‑cycle bearing Registration No. FDK1771, abandoned by the accused was also taken into possession vide memo. Exh.P.L. which was also attested by the same aforementioned witnesses.

5. P.W.1 Dr. Pervez Ahmed Nazir Tarar, Medical Officer, Civil Hospital, Phalia, conducted the post‑mortem examination on the dead body of Nasarullah Khan, Cashier, on 26‑4‑1987 at 4‑15 p.m. and noticed the following injuries:‑ (1) A fire‑arm wound of entry 0.5 c.m. x 0.5 c.m. on back of chest left side upper part. (2) A fire‑arm wound of entry 0.5 c.m. x 0.5 c.m. on lateral aspect of left chest. (3) A fire‑arm wound of entry 0.5 c.m. x 0.5 c.m. on left renal area. (4) A fire‑arm wound of entry 0.5 c.m. x 0.5 c.m. on lateral aspect of left gluteal region. (5) A fire‑arm wound 0.5 c.m. x 0.5 c.m. on left gluteal region. (6) A fire‑arm wound of entry 0.5 c.m. x 0.5 c.m. on outer aspect of lift upper arm. (7) A fire‑arm wound 0.5 c.m. x O.5 c.m. on inner aspect of left upper arm. Under injuries Nos. 1 and 2, left lung was badly damaged at two place,. Heart was punctured. The stomach was damaged under injury No.3 and diaphragm was also damaged. Two metallic foreign bodies were recovered from the muscles of chest and abdomen. In the opinion of the doctor, the death occurred due to shock and haemorrhage and injuries to the vital organs, which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 4 to 7, were simple in nature while 1, 2, 3 were grievous and dangerous to life collectively as well as individually.

6. On 3‑6‑1987, the Investigating Officer, Mukhtar Ahmed, Inspector Police, P.W.14, was informed about the arrest of the appellant by the S.H.O. Police Station Miani, District Sargodha. Mukhtar Ahmed, P.W.14, got the appellant transferred to District Gujrat for investigation. The appellant led the police near the Berri tree in a garden in village Pindi Rawan and got an unlicensed revolver P.4 recovered underneath the said tree and the same was taken into possession vide memo. Exh.P.G. attested by Qamar Pervez, P.W.8, Ashiq Hussain, F.C. (not produced) besides the Investigating Officer. On the same day, appellant also led the police and got recovered motor‑cycle P.5, bearing Registration No.SAA‑151, from Dhabb (thick growth of grass) in a Sem Nala near village Jassuwal. This motor‑cycle was taken into possession vide memo. Exh.P.H. attested by Qamar Pervez P.W.8, Ashiq Hussain Foot Constable, (not produced) besides the Investigating Officer. On the same day, the appellant also took the police to Umer Hayat, P.W.9, in village Bar Musa and got an amount of Rs.10,000 Exh.P.6/1‑20, recovered and the said amount was taken into possession vide memo. Exh.P.I attested by Qamar Pervez, P.W.8, Ashiq Hussain, F.C. (not produced) besides the Investigating Officer.

7. The appellant was sent to judicial lock‑up on 4th of June, 1987. Mukhtar Ahmed, Inspector, P.W.14, moved an application Exh. P.B. on the same day, for holding of the identification parade of the appellant in jail. The Assistant Commissioner, deputed Mr. Anwar Aziz, Magistrate, P.W.2, to hold the identification parade. The Magistrate directed the Superintendent Jail, Gujrat, to make necessary arrangements for holding an identification parade in jail on 7‑6‑1987. On 7‑6‑1987, the identification parade was held under the supervision of Mr. Anwar Aziz, Magistrate P.W.2. During this identification parade, Bashir Ahmed, Manager, of the bank P.W.13, Abdur Rehman, P.W.14, Khalid Nawaz P.W.11, Sohni, P.W.5 and Anara (given up prosecution witness) correctly identified the appellant.

8. To support its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.12, Abdur Rehman and P.W.13 Bashir to prove the robbery and the murder of Nasarullah Khan (deceased). Khalid Nawaz appeared as P.W.11, who was robbed of the motor‑cycle Exh.p.5, bearing Registration No.SAA‑151 by the appellant and his associates. Sohni, P.W.5, was produced as Wajtakkar witness who had seen the three accused riding on a motor‑cycle on the Sem Nala bridge. In addition to the testimony of these witnesses, Qamar Pervez, P.W.8, appeared to prove the. incriminating recoveries at the instance of the appellant. Umer Hayat, P.W.9 was produced to depose about the receipt of Rs.10,000 from the appellant. Besides this evidence, the prosecution also placed reliance upon the medical evidence and the evidence as to the identification parade to corroborate its case.

9. During his examination under section 342, Cr.P.C., the appellant denied the charge and stated that Sub‑Inspector, Shah Nawaz, S.H.O., Police Station, Miani was inimically disposed towards him on account of a quarrel and, therefore, he had been involved in a false case. The appellant further stated that S.I. Shah Nawaz handed him over to the Inspector, Mukhtar Ahmad, P.W. 14, for his involvement in the false case.

10. With the assistance of the learned counsel for the appellant and the State and that of the father of the deceased, we have carefully perused the record and we have also examined the various contentions raised by the learned counsel on both sides.

11. Learned counsel for the appellant strenuously argued that the ocular testimony in this case should not be relied upon because both the eye‑witnesses were interested. It was also argued that the corroborative evidence led by the prosecution in this case, was of no avail to the prosecution because the same was tainted one and, therefore, the tainted corroborative evidence cannot be used by the prosecution to bring home guilt to the appellant. The identification parade was also criticised and it was argued at the Bar that the same was devoid of truth because the appellant had been shown to the witnesses. It was further argued that if the prosecution case was assumed to be correct; even. then, the death sentence could not be awarded to the appellant because it was not known as to who had caused the fatal shot to the deceased. 12.'' We have carefully examined all these contentions in the light of the evidence on the record. A careful perusal of the statements of Bashir Ahmad, PW.13 and Abdur Rehman, PW.12, the bank employees, reveals that they have no animus against the appellant and, therefore, by no stretch of imagination, they can be branded as interested witnesses because it is well‑known that an interested witness is a person who has a motive to falsely implicate a person. In this case, we find nothing on the record to infer or deduce that these eye‑witnesses are in any way inimical towards the appellant. In fact, both the eye‑witnesses did not know the appellant. They being the bank employees, are the natural witnesses of the occurrence, when the robbery and the murder took place. The presence of these witnesses cannot be denied nor the same can be challenged, as they were present in the bank and after the robbery, Nasarullah Khan, (deceased), an employee of the bank, had gone out to chase or to take any step to apprehend the appellant when he was fired at, resulting in his death. It was a daytime occurrence and, therefore, we have no doubt in our mind, that the eye‑witnesses would not have remembered the features and faces of the appellant and his associates. The witnesses have also been cross‑examined at length, but the defence failed to elicit anything, so as to discredit them. On the other hand, their testimony is consistent and they have narrated the occurrence with minutest details and particulars and, therefore, the testimony of these eye-witnesses inspires confidence.

13. It was also contended by the learned counsel for the appellant that the features of the appellant and others were not mentioned in the F.I.R. and it was stated by the complainant that the culprits were of young age and were speaking in local dialect, whereas, the appellant is not of young age and his dilect was not local. We have examined this contention. We are afraid that the same has no force. In such like cases where a sudden attack is launched, with a view to commit robbery, the eye‑witnesses are naturally under the state of shock and particularly so, when the assailants had also indulged into indiscriminate firing. Features and faces would be well‑remembered by the onlookers but the description as to the age is the subjective approach of a particular witness and, therefore, the defence cannot make any capital out of it. As far as dialect is concerned, nothing was elcited or brought out on the record to show that the appellant was not one of the culprits. It was also contended by the learned counsel for the appellant that the statements of both the eye‑witnesses are discrepant. We have examined the evidence in detail but we do not find any material discrepancy which had the effect of demolishing the prosecution case, hence the contention is repelled. '

14. Adverting to the corroborative evidence, we have no hesitation to hold that nothing turns. upon the recovery of revolver P.4 at the instance of the appellant from near a Berri tree. No empty of revolver was recovered or picked from the spot nor it was alleged that the revolver had been used in firing and lastly, the place of recovery was accessible to the public and, therefore, it cannot be said that the same was recovered from the exclusive possession of the appellant. In our view, the learned trial Judge, has also rightly discarded this recovery. However, the recovery of the motor‑cycle P.5, belonging to Khalid Nawaz, P.W.11, which was recovered from a thick growth of grass near Sem Nala is material, because the presence of such motor‑cycle would be in the exclusive knowledge of the appellant, therefore, the recovery of this motor‑cycle amply corroborates the prosecution version and tends to connect the appellant with the commission of crime. The learned counsel assails this recovery on the ground that no independent witness was cited nor any one from the local population was associated to prove this recovery. This objection does not carry any weight, inasmuch as, Inspector Mukhtar Ahmad, P.W.14, the Investigating Officer and P.W.8 Qamar Pervez, an independent witness, had proved this recovery and we cannot except that this police officer would falsely plant a motor‑cycle on the appellant. The motor‑cycle so recovered, was also identified by Khalid Nawaz, P.W.11, as his own belonging. We have, thus, no doubt in our mind, that this recovery is a corroborative piece of evidence. 15. ' The testimony of P.W.8 Qamai Pervez, is also above board, as he stated, that he had gone to Head Faqirian to enquire about the arrival of Tehsildar at the rest house, when he joined the investigation. The Investigating Officer also deposed that he did not know Qamar Pervez P.W.8, previously. The learned counsel‑ drew our attention to the reply given to a question in cross‑examination by Qamar Pervez, P.W.8, stating that he knew the S.H.O., previously. The learned counsel persuaded us to discard this recovery on the basis of this contradiction. We are afraid, that no significance can be attached to this contradiction because otherwise, there is nothing on the record to discredit Qamar Pervez P.W.8. He is not a stock witness and, therefore, we hold that the recovery stood proved on the record.

16. Adverting to the recovery of Rs.10,000 from Umer Hayat, P.W.9, at the instance of the appellant, no weight can be attached to it. There is nothing on the record to show, that these were the same currency notes which had been robbed from the bank. Neither Umer Hayat, P.W.9, nor the appellant has claimed these currency notes and, therefore, we are not prepared to consider it as corroborative evidence.

17. Before parting with this judgment, it will be necessary to comment upon the nature and quality of the identification parade held during the investigation. The appellant was arrested on 3rd of June, 1987 and was remanded to judicial lock‑up m the District Jail, Gujrat on 4‑6‑1987 and on the same day, an application was moved by the Inspector Mukhtar Ahmed, P.W.14 to the Assistant Commissioner for holding the identification parade and the Assistant Commissioner deputed P.W.2, Mr. Anwar Aziz, Magistrate, to supervise the identification parade, on 7th of June, 1987. It was suggested by the defence in cross‑examination that a day before the identification parade, the appellant had been shown to the witnesses. Unfortunately, there is nothing on the record to hold that in fact, the appellant had been shown to the witnesses because a day before the identification parade, the appellant was in jail. Hence, in our view, the. identification parade is not open to any objection, so as to falsify its result.

18. It was also argued by the learned counsel for the appellant that the wintesses did not state before the Magistrate, before the identification parade that they had come to identify those persons who had committed the murder and robbery. The report of the identification parade belies it because it was stated by the witnesses that they had come to identify the accused persons. Even otherwise, the witnesses had sufficient time to identify the appellant because for considerable period, they remained in the bank while committing the offence.

19. Finally, it is evident that the occurrence took place in two parts. The first consists of the robbery and the second relates to the murder after completion of the robbery and also snatching of the motor‑cycle by having fired at Khalid Nawaz, P.W.D. Khalid Nawaz, P.W.11 after having been robbed of the motor cycle reached the bank and after having come to know of the robbery and murder and without any further loss of time, he narrated the incident, in the course of which, he was robbed of the motor‑cycle. In our view, the testimony of Khalid Nawaz, P.W.11, also corroborates the occurrence as to the murder and robbery. 19‑A. The upshot of the above discussion is that the prosecution has droved its case beyond any shadow of doubt and guilt of the appellant also stands, established on the record. However, we find force in the contention of the learned counsel that since it was not known as to whose fire, was fatal, therefore, the appellant does not deserve death penalty.

20. After anxious consideration of all the facts of the case, we are of the view that the appellant did participate in the occurrence and he alongwith his associates had fired at Nasarullah (deceased) causing his death but it is not clear as to whose fire had, in fact, proved fatal, therefore, we would alter death sentence awarded to the appellant into the sentence of life imprisonment on the charge under section 302, P.P.C. read with section 34 of the Pakistan Penal Code. 1 he sentence of fine is maintained and, if recovered, the same shall be paid as compensation to the heirs of the deceased.

21. The conviction of the appellant on the charge under sections 392 and 397 read with section 34, P.P.C. on both the counts and the sentences thereunder are also maintained. The fine on one count, for robbing the cash from the bank, if recovered, shall be paid as compensation to the National Bank of Pakistan, Rerka Bala Branch, District Gujrat. The fine on the other count of robbing motor‑cycle from Khalid Nawaz, P.W., if recovered, half of the same will be paid to Khalid ,Nawaz, P.W. as compensation.

22. The conviction and sentences of the appellant under section 307/34 are maintained. ‑The line, if recovered, half of the same shall be paid as compensation to Khalid Nawaz, P.W. The sentences under all the charges shall run concurrently. The appellant shall also be given the benefit of section 382‑B, Cr.P.C. Resultantly, this appeal is dismissed. S.A./M‑1454/L Appeal dismissed.