2004 PLP 1125 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners/ convicts Muhammad Abbas and Muhammad Ismail have filed this petition against judgment, dated 11-7-2001 passed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench in Criminal Appeals Nos.65 and 73 of 2000/BWP and Murder Reference No.12 of 2000 confirming their death sentence.

2. The complainant Zafar Iqbal P.W.4 got a case F.I.R. No. 125 of 2000 Exh.P.Q. registered at Police Station, Saddar, Chishtian, District Bahawalnagar on 4-6-2000 in that he alongwith his brother Ali Anwar Khalid, A.S.I. Police and Muhammad Riaz were traveling towards Chishtian in a bus which was stopped by three persons armed with the fire arms. One of the accused fired at his said brother which hit one Muhammad Ramzan Bhatti, a passenger at his right shoulder. His brother Ali Anwar Khalid also fired at the accused with his official revolver but the shot missed the target. The other accused again fired at his brother hitting him at his forehead. His brother fell down and succumbed to the injuries at the spot. The third accused also caused a fire-arm injuries on the person of Shakeel Ahmed P.W. and Muhammad Ramzan Bhatti, passengers. Thereafter, the accused made bodily search of the passengers, after they were alighted, and robbed them of cash and other belongings. The accused decamped alongwith the official revolver of the deceased. During the investigation the petitioners and three other accused were found involved in the case. The petitioner Muhammad Ismail was found to have sustained injuries on his person during the occurrence.

4. All the five accused including the petitioners were challaned in the case and were tried for offences under sections 302, 397, 392,324, 411, 109, 337, P.P.C. They were convicted and sentenced by the Anti Terrorism Court, Bahawalpur Division, Bahawalpur by judgment, dated 22-11-2000. However, Mehmood Amjad accused, who had removed the bullet from the body of Muhammad Ismail petitioner, was acquitted by the trial Court by extending him the benefit of doubt. The convicts were sentenced as under: "(i) Under section 324/34, P.P.C. Muhammad Ibrahim, Muhammad Ismaeel, Sana Ullah and Muhammad Abbas are convicted and sentenced (7) seven years' R.I. with a fine of Rs.10,000 (ten thousand) each. In default of payment of fine, they shall further undergo for 1-1/2 years' S.I. each. (ii) Under section 302/34, P.P.C. (a) Muhammad Abbas and Muhammad, Ismail accused are convicted and awarded death sentence. They be hanged by their necks till they be dead. Ali Anwar Khalid deceased died in result of the bullets fired by them. (b) Sana Ullah and Muhammad Ibrahim accused are convicted and awarded life imprisonment. All the above mentioned four accused persons will also pay a sum of Rs. one lac as compensation under section 544-A of Cr.P.C. to the legal heirs of the deceased according to their shares, each. In default thereof the accused shall further undergo for six months S.I. each. (iii) Under section 392/34, P.P.C. Muhammad Ibrahim, Muhammad Ismail, Sana Ullah and Muhammad Abbas accused are convicted and sentenced ten (10) years R.I. each, with a fine of Rs.20,000 each. In default of payment of fine they shall further undergo for 2-1/2 years' S.I. each. (iv) Under section 337, P.P.C. Sana Ullah accused fired at Ramzan P.W. Injury was declared. "Ghair Jaifah Munqillah", therefore he is convicted and sentenced 7 (seven) years' R.I. as Tazeer. He will also pay Rs. 10,000 as 'Daman' to Muhammad Ramzan injured. Muhammad Ismail accused fired at Shakeel P.W. which was declared "Ghair Jaifah Mutalahimah", therefore he is convicted and sentenced three (3) years R.I. He will also pay Rs.5,000 (Five thousand) to Muhammad Shakeel injured as "Daman" Muhammad Ibrahim accused injured Shakeel P.W. The injury was declared as "Ghair Jaifah Mutalahimah" by the doctor, therefore he is convicted and sentenced three (3) years R.I. He will also pay Rs. 5,000 (Five thousand) to Muhammad Shakeel injured as ' Daman'. (v) Under section 411, P.P.C. Muhammad Ismail, Muhammad Ibrahim, Sana Ullah and Muhammad Abbas are convicted and sentenced 3 (three) years' R.I. with a fine of Rs.10,000 (ten thousand) each and in default thereof, they shall further suffer 9 (Nine) months' S.I. each."

5. The accused filed separate appeals there against which were dismissed and the Murder Reference was answered in affirmative. The death sentence of the present petitioners was confirmed by the learned Division Bench of the Lahore High Court. Bahawalpur Bench vide impugned judgment dated 11-7-2001. Hence this Jail Petition by the petitioners Muhammad Abbas and Muhammad Ismail for the grant of leave to appeal.

6. The learned counsel for the petitioners to be fair of him, frankly conceded that the case against the petitioners was not defendable on merits and that there were no extenuating circumstances in their favour for the award of a lesser sentence. It was, however, submitted that of injured P.Ws. Muhammad Ramzan Bhatti, was not produced by the prosecution to testify his statement before the Court and that on account of his failure to appear no conviction and sentence could be recorded in respect of injuries sustained by him nor any compensation was awardable in his favour under the provisions of section 544-A, Cr.P.C. Moreover, the Courts below were under legal obligation to specify whether the sentence of death was awarded by way of 'Qisas' or 'Tazeer'. The particular part of section 302, P.P.C. under which the petitioners were convicted and sentenced also needed to be specified for the purpose of removal of any doubt.

7. We have heard the learned counsel for the petitioners at length. In this case, the eye-witnesses of the occurrence were consistent in their statements that the deceased was fired at by the petitioners. The empties recovered from the spot also matched with the weapons of offence used and recovered from the petitioners. The report of the Forensic Science Laboratory, Exh. PNN was positive. The P.Ws. had duly identified the petitioners during the identification parade. There was no previous enmity or acquaintance of the P.Ws. with the petitioners not the P.Ws had any person to implicate the petitioners falsely. The ocular version of the prosecution case is supported by the medical evidence and

recoveries of the looted property from the possession of the petitioners. Despite the lengthy cross-examination of the prosecution witnesses, the defence could not shake their creditability as truthful witnesses. The prosecution was able to prove the case against the petitioners beyond any shadow of doubt.

8. Now we have to consider the effect of the non-production of P.W. Muhammad Ramzan Bhatti by the prosecution in the Court. Suffice it to say that the prosecution had dropped this witness having been won over. Therefore, nothing turns out by the non-appearance of said P.W. in the Court. The other P.Ws. were consistent in implicating the petitioners or the commission of the offence with which the petitioners were charged. We need not examine the question of conviction and compensation under section 544-A, Cr.P.C. in respect of the injuries caused to the said P.W. inasmuch as the convict Sana Ullah had not chosen to file any appeal against his conviction and sentence for the injuries caused to the said P.W.

9. In the facts and circumstances of the case, we are of the view that conviction and sentence of death on the petitioners should have been specifically awarded under section 302(b), P. P. C. by way of 'Tazeer' as the conditions requisite for awarding the sentence by way of 'Qisas' had not been satisfied. Order accordingly.

10. For the foregoing reasons, the Jail Petition of the petitioners is dismissed. The conviction and sentence of death awarded to the petitioners are specified to be for the offence under section 302(b), P.P.C. by way of 'Tazeer' and are also maintained accordingly. N.H.Q./M-598/S Order accordingly.