P L D 2003 Karachi 195 (PLP)

16. On the point of robbery the prosecution examined P.W.I Muhammad Rustam. His evidence shows that after encashing a cheque Rs.15,000 from the Bank he boarded Mashallah Coach for going to his house at about 12‑50 a.m. When the coach reached at the Chowrangi of Sector 8‑1/2 near Allahwala College four persons who were sitting in the vehicle coach stood up. Out of them one controlled the driver, the second snatched Rs.15,000 from him on gun‑point, third stood at the gate of the coach and the fourth one started taking money from other passengers. Thereafter, the culprits left the coach and started running but the complainant and other persons raised cries on which two culprits ran towards Orangi Town whereas the remaining culprits started running towards Qatar Hospital, who were followed by them. After covering some distance they found two police officials performing their duties at the police picket. He informed the incident to them who followed the culprits and from there he went to the police station for lodging the report. While he was present at the police station he saw two culprits brought by the police, out of them he identified one of them to be the appellant Jamal Khan, who snatched the money from him but he could not identify the second culprit. His evidence is further supported by P.W.2 P.C. Muhammad Saeed and P.W.3 Muhammad Asif.

17. The evidence of P.W.2 P.C. Muhammad Saeed reveals that he alongwith deceased P.C. Shamim Ahmed were performing their duties at police picket when they were informed that two dacoits were going on a water‑tanker, therefore, P.C. Shamim Ahmed immediately took lift from a motorcyclist and proceeded towards the direction where,the water‑tanker was going. He followed them on another motorcycle after taking lift but his motorcycle went out of order then he started going towards that direction but he saw P.C. Shamim Ahmed got stopped the said water‑tanker and pointed his S.M.G. towards the culprits but one of the culprits namely Jamal Khan (appellant) tired from his pistol at P.C. Shamim Ahmed and then appellant Jamal Khan snatched S.M.G. rifle from him and gave his pistol to his companion, who was subsequently apprehended and identified as appellant Fazal Muhammad and then the appellants started running towards mountain side. He tired at the appellants but they also retaliated by firing from the S.M.G. rifle of P.C. Shamim Ahmed and pistol. In the meantime two Rapid Police Mobiles came there. He informed the incident to them and they followed the appellants but they went towards hillside. They chased them but the appellants took shelter in the graveyard which was surrounded and subsequently both the appellants were apprehended from there. S.I.P. Azhar Mehmood secured S.M.G. rifle of the deceased P.C. Shamim Ahmed from the appellant Jamal Khan whereas unlicensed pistol was secured from the possession of the appellant Fazal Muhammad. From the personal search Rs.1,550 and Rs.1,200 were secured from the possession of the appellants Jamal Khan and Fazal Muhammad respectively. The S.M.G. rifle was checked, which contained ten live bullets whereas pistol contained two live bullets. The Mashirnama of arrest and recovery was prepared which was signed by him. The weapons were sealed at the spot. The appellants and the properties were taken to the Police Station Peerabad where FAA& were lodged. Subsequently, the place of incident of murder was seen where they found six empties of S.M.G. and three empties of T.T. Pistol which were secured alongwith blood‑stained earth and the slime were sealed,

18. The evidence of P. W.3 Muhammad Asif reveals that he was present at the scene of incident. He saw a person trying to snatch S.M.G. rifle from a police constable and during the said period the said culprit fired three shots at the constable who after receiving injuries fell down on the ground and the said persons had snatched S.M.G. rifle from the hands of the police constable and ran towards Qasba More. Another police constable reached there, who fired shots at the culprits but those were missed and then two Police Mobiles came there. Thereafter, the said police constable and the Police Mobiles followed the culprits. He went to the injured alongwith other people. Thereafter. an Edhi Ambulance was called in which the injured police constable was sent to Abbasi Shaheed Hospital. His evidence further reveals that he also acted as Mashir of place of incident from where three empty cartridges of pistol, six empty cartridges of S.M.G. rifle and blood stained earth were secured and sealed by the police. He signed the Mashirnama.

19. The evidence of above mentioned witnesses is further corroborated by A.S.‑I. Azhar Mehmood and S.‑I. Abdul Majeed. Their evidences show that they received a wireless message about the encounter at the place of incident; therefore, they reached there where P.C. Muhammad Saeed informed them about the incident; hence they followed the culprits towards Qasba Colony. When they reached at the hill area the appellants fired at the police party, therefore, they also tired at them. The appellants took shelter in the graveyard which was surrounded and then both the appellants were arrested. SIP Azhar Mahmood secured S.M.G. rifle of deceased P.C. Shamim Ahmed from the possession of the appellant Jama1 Khan whereas unlicensed 30 bore pistol was secured from the possession of the appellant Fazal Muhammad. From their search Rs.1,550 and Rs.1,200 were secured from the appellants Jamal Khan and Fazal Muhammad respectively. On verification the S.M.G, rifle was found containing ten live bullets whereas pistol was loaded with two live bullets. Thereafter, Mashimama of arrest and recovery was prepared and then the appellants and the properties where taken to the police station where F.I.Rs. were lodged.

20. The evidence of Dr.Abdul Shakoor shows the details of the injuries found on the person of the deceased P.C. Shamim Ahmed. The injuries were one lacerated type of puncture wound 1 c.m. in diameter over left upper chest, about 4 c.m. above and lateral to left nipple margins inverted oval shaped (wound of entry). A lacerated punctured wound 3 c.m. in diameter irregular shape back of right lumber region (wound of exit) and six minor injuries of lacerated and abrasions on the person of the deceased. The doctor has opined that the deceased had died on account of cardio respiratory failures due to haemorrhagic shock/resulting from fire‑arm weapon injuries. Thus, from his evidence it is clear that the deceased had received fire‑arm injuries and died on account of the said injuries.

21. All these witnesses were subjected to cross‑examination but nothing has come on record to discredit their evidence. The cross‑examination was mainly in obtaining some clarification and details of incident.

22. From the evidence available on the record it is clear that on 14‑11‑2000 at about 12‑50 a.m. Mashallah Coach was robbed by tour culprits when: P, W,1, Muhammad Rustam wits present and from him Rs.15.000 was snatched. The culprits left the coach anti started running. Out of them two ran towards Qatar hospital who were followed by P. W. l Muhammad Rustam and other persons but they boarded a water‑tanker. An information about the incident was conveyed to the police constables P.C. Muhammad Saeed and P.C. Shamim Ahmed who chased the culprits. The deceased P.C. Shamim Ahmed was able to stop the water‑tanker but the appellant Jamal Khan fired at the P.C. Shamim Ahmed, who received fire arm injuries and fell down on the ground and appellant Jamal Khan snatched S.M.G. rifle from the hands of deceased P.C. Shamim Ahmed and handed over his pistol to the appellant Fazal Muhammad, who started running towards Qasba Colony. They were chased by P.C. Muhammad Saeed but both the culprits tired at him whereas the P.C. Muhammad Saced also fired at them. In the meantime two Police Rapid Mobiles in which A.S.‑I. Azhar Mehmood and S.‑I. Abdul Maiced aion,i:with staff came there. They followed them and both the appellants were apprehended from the graveyard. From the possession of the appellant Jamal Khan S.M.G. rifle of P.C. Shamim Ahmed was secured and from the possession of the appellant Fazal Muhammad an unlicensed .30 bore pistol was secured. From the scene of murder empties of S.M.G. rifle and pistol were secured which were sealed and were sent to ballistic expert alongwith pistol and S.M.G. rifle for examination and report. Ballistic Report has been produced in evidence which is Exh.49. It shows that the empties of pistol and S.M.G. rifle were fired from the above mentioned pistol and S.M.G., thus both the weapons have been connected with the commissions of the incident. The appellant Jamal Khan was immediately identified by P.W. Muhammad Rustam at the police station, who was brought there after his arrest but the appellant Fazal Muhammad was not identified by. P.W. Muhammad Rustam. The prosecution should have held identification parade of the appellants through P.W. Muhammad Asif, but they did not do so. Both the present. appellants were arrested by A.S.‑I. Azhar Mehmood, P.C. Muhammad Saeed and A:S.‑I. Abdul Majeed, from the graveyard just after committing the murder of deceased P.C. Shamim Ahmed. In the meantime the deceased P.C. Shamim Ahmed was taken to hospital where he died on account of the fire arm injuries received by him from the hands of the appellants. The evidence of all these witnesses are supporting and corroborating each other. All the witnesses are independent. They have no enmity whatsoever with the present appellants or any enmity has been suggested between them. There is no motive with the P.Ws. to falsely implicate the present appellants.

23. The chain of facts and circumstances from the stage of robbery till arrest of the appellants and recovery of weapons clearly established that both the appellants were the members of four robbers who committed the robbery from the coach and then murder was committed. The intention of both the appellants is clearly established from the facts that when the water‑tanker was intercepted they tried to escape from the police and in doing so the appellant Jamal Khan tired at the deceased P.C. Shamim Ahmed from his pistol which he immediately gave it to appellant Fazal Muhammad and then the appellant Jamal Khan snatched the S.M.G. rifle from the deceased. They also started running and P.C. Muhammad Saeed fired at the appellants but they retaliated and both the appellants tired at the P.C. Muhammad Saeed. This clearly establishes that they shared common intention in commission of this crime.

24. The judicial confession of the appellant Jamal Khan clearly shows that he confessed that he alongwith appellant Fazal Muhammad and two other companions robbed the Mashallah Coach on 14‑11‑2000 at about 10‑00 a.m. and Rs.15,000 was robbed from Muhammad Rustam. When they left the Coach they were followed by persons who were shouting Choor Choor. They ran towards Qasba More but in the meantime one police man alighted from motorcycle and stood in front of them and ordered them to surrender on which he told him that even if he would shoot him he would not surrender. Then he fired two fire‑arm shots at the police constable. Thereafter he snatched service S.M.G. rifle of the constable and started moving towards hill side but the police followed them and he tired at the police party. He gave his pistol to appellant Fazal Muhammad. They went in graveyard but they were apprehended from there. From his possession S.M.G. rifle was secured and from the possession of appellant Fazal Muhammad a pistol was secured and then they were taken to police station. This confession was duly recorded by the Magistrate who after completing all the required formalities of law recorded the same. The required certificate was attached with the confessional statement.

25. From the evidence of Judicial Magistrate it is clear that the confession was voluntarily made and true, therefore, it is enough to convict the appellants. This confession has been retracted but according to law retracted confession is sufficient for conviction but as a rule of procedure the Court seeks corroboration of the same on all material particulars. Reference is invited to a case of Muhammad Gul v. The State reported in 1991 SCMR 942. 25‑A. From the evidence available on the record it is clear that on all the material particulars the confession of appellant Jamal Khan is supported and corroborated as discussed above. Thus, the confession of the appellant can be safely relied upon under Article 43 of Qanun‑e‑Shahadat.Order, 1984, the confession of appellant Jamal Khan can be taken into consideration as circumstantial evidence against the appellant Fazal Muhammad but this cannot be done as no question was put to the appellant Fazal Muhammad in his statement recorded under section

342. Cr.P.C. by the trial Court, about the above piece of evidence.

26. The appellant Jamal Khan in his statement under section 342, Cr.P.C. has admitted that his confessional statement was recorded by the Magistrate but he took the plea that it was under pressure from the police officials. No evidence whatsoever has been led by the appellant Jamal Khan to prove that the police had pressurised him to confess the guilt. In the absence of such evidence it cannot be held that the police had pressurised the appellant Jamal Khan to confess the guilt. The appellant Jamal Khan has failed to prove his above defence.

27. The remaining evidences of P.W.6 S.‑I. Police Sikandar Khan, P.W.7 A.S.‑I. Inayatullah, P.W.9 A.S.‑I. Ali Asghar, P.W.10 Suhail Akhtar, P.W.11 Abdul Salam, P.W.12 Suhail Akhtar, P.W.13 1.0. Muhammad Ishaq, P.W.14 Investigating Officer Muhammad Safar and P.W.15 Investigating Officer Ghazan Zada, are in respect of the third incident in which appellant Islam Saeed was arrested and with regard to the investigation of this case.

28. From the evidence available on the record we are of the considered view that the prosecution have proved their case against both the appellants.

29. The appellant Jamal Khan has not taken any defence but he had denied all the allegations of the prosecution in his statement recorded under section

342. Cr.P.C. and further added that he was innocent and had been implicated falsely. He has not examined any witness to support his case. The solitary statement of appellant in presence of above mentioned overwhelming evidence led by the prosecution cannot be safely relied upon.

30. The appellant Fazal Muhammad took the plea that he was suffering from mental illness, therefore, he was taking medicine. On 14‑11‑2000 he, in semi‑conscious condition, went to Qasba Colony to see his friend but there was firing and the people were running here and there, therefore, he was also running but apprehended by the police and then involved in this case. In his support he has produced medical prescription slips of Peshawar Psychiatric Hospital. These medical slips only show that he was attending the hospital. Exh.59 (discharge slip) produced by the appellant, shows that he was admitted in Government Mental Hospital, Peshawar on 31‑12‑1998 but was discharged on 1‑8‑1999 and advised to visit after one month, to take water, continue medicine as advised and keep him busy in some work. Nature of ailment has not been shown in the slip. However, the document only shows that the appellant was admitted in the mental hospital for about twenty days but was discharged. The present incident took place on 14‑11‑2000 after more than one and half years. The appellant has not produced any document to show his mental condition on the date of incident. Before the trial Court no plea was raised that his mental condition was such where he could not understand the proceedings of the Court. This by itself shows that he was able to understand not only the proceedings of the Court but was in perfect mental health and pursuing his case regularly.

31. However, from the statement of the appellant it is clear that he admitted his presence at the time and the place of incident, therefore, he was required to explain his presence through some credible evidence but neither the appellant Fazal Muhammad examined himself on oath nor led any evidence to prove his stand taken by him in his statement under section 342, Cr.P.C. whereas the prosecution has led ample evidence to connect him with the commission of this crime. As such the defence taken by the appellant has not been proved.

32. After giving due consideration to the facts of the case it is clear that this is a case of robbery and not dacoity, therefore, section 396, P.P.C. is not applicable in the present circumstances of the case. Section 396, P.P.C. reads as under:‑‑ "

396. Dacoity with murder.‑‑‑If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of these persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which [shall not be less than four years nor more than] ten years and shall also be liable to fine."

33. From the perusal of the above section it is clear that it is applicable in the case of dacoity involving five or more persons but in the present case the prosecution alleged that only four persons were involved in the case, therefore, the convictions awarded by the trial Court under section 396, P.P.C. are not warranted by law which are hereby set aside.

34. After considering the material available on the record we are of the considered view that the appellant Jamal Khan has committed the offences punishable under sections 392, 353. 302(b), P.P.C and under section 13‑D of the Ordinance, 1965. As regards the involvement of the appellant Fazal Muhammad, his conduct shows that he was also involved in the murder of H P.C. Shamim Ahmed but to a lesser degree. As such he may be considered for lesser punishment on the ground of his mental state, i.e. nervousness, loosing, self‑control and act and role played and so forth. Therefore, some benefit may be extended to the appellant. While discussing as to which cases are falling under clause (c) of section 302, P.P.C. the Hon'ble Supreme Court in a case of Ali Muhammad v. Ali Muhammad (PLD 1996 SC 274) at page 290 has observed as under:‑‑ "As to what are the cased falling under clause (c) of section 302, the lawmaker has left it to the Courts td decide on a case to cage basis,"

35. On the same subject the Hon'ble Supreme Court of Pakistan in a case of Abdul Zahir v. The State reported in 2000 SCMR 406 and at page 412 observed as under:‑‑ "

17. Clause (c) of section 302, P.P.C. ante applies in case of Qatl‑e -Amd where, according to Injunction of Islam, the punishment of Qisas is not applicable. A bare reading of the clause would reveal that section 306, P.P.C. is applicable to cases of Qatl‑e‑Amd which are not liable to Qisas whereas Qati‑i‑Amd not liable to Qisas is indeed punishable under section

308. There is distinction, . albeit very slight, between Qatl‑i‑Amd to which punishment of Qisas is not applicable and that of the Qatl‑i‑Amd which is not liable to Qisas. A bare reading of section 308, P.P.C. would show that where offender is guilty of Qatl‑i‑Amd not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, P.P.C. shall be liable to Diyat. We, therefore, endorse the view held by this Court in the case of Ali Muhammad (supra) (PLD 1996 SC 274) that class of cases to which clause (c) of section 302, P.P.C. applies is different from class of cases enumerated in section 306 and punishable under section 308, P.P.C. Prima facie the cases covered by clause (c) of section 302, P.P.C are of Qatl‑i‑Amd: (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of section 306, P.P.C. punishable under section 308, P.P.C., (2) Qatl‑i‑Amd to which clause (b) of section 302, P.P.C. is attracted, namely, Qatl‑i‑Amd wherein proof in either of forms specified in section 304, P.P.C. is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word ' or' at the end of clause (b) of section 302, P. P. C reinforce this interpretation. In other words, it is a class of Qatl‑i‑Amd which is not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter of punishment to imprisonment of either description for a term which may extend to twenty‑five years. Some of those cases have been noticed in the precedent of Muhammad Hanif (1992 SCMR 2047), Ali Muhammad (PLD 1996 SC 274) and that Muhammad Mumtaz Khan's case (supra) to a larger extent of minority and lesser extent of 'provocation'. "

36. After considering the facts and peculiar circumstances of the case we are of the considered view that the case of the appellant Fazal Muhammad falls under section 302(c), P.P.C. Thus the appellant Fazal Muhammad has also committed offences punishable under sections 302(c),

353. P.P.C. and 13‑D of Ordinance, 1965.

37. In view of above position the convictions and sentences of the appellants are modified as under:‑‑ (a) The conviction and sentence awarded to the appellant Jamal Khan under section 396, P.P.C. is set aside. He is convicted under section 302(b), P.P.C but sentence of death awarded under the impugned judgment is maintained. He is directed to pay compensation of Rs.75,000, to the legal heirs of the deceased as required under section 544‑A, Cr.P.C. or in default thereof to suffer R.I. for six months. (b) The conviction and sentence of the appellant Fazal Muhammad, under section 396, P.P.C. is set aside. He is convicted under section 302(c), P.P.C. and sentenced to suffer R.I. for seven years. ` He is directed to pay compensation of Rs.25,000 to the legal heirs of the deceased as required under section 544‑A, Cr.P.C. or in default thereof to suffer R.I. for six months. (c) The conviction and sentence of appellant Jamal Khan under section 392, P.P.C. is maintained. (d) The conviction and sentence of appellants Jamal Khan and Fazal Muhammad under section 13‑D of Ordinance, 1965, is maintained. (e). The conviction and sentence awarded to both the appellants under section 353, P.P.C. is maintained. (f) The benefit of section 382‑B, Cr.P.C. extended to the appellants is maintained. Sentences shall also run concurrently.

38. Consequently the appeals are partly allowed and partly dismissed. The confirmation reference is accepted. N.H.Q./J‑50/K Order accordingly.