1995 PLP 1298 (SCMR)

MUHAMMAD RAFIQ TARAR, J.‑‑‑This appeal by Fayyaz Rasul appellant is directed against the judgment of the learned Federal Shariat Court dated 24‑2‑1992 whereby his appeal challenging his convictions carrying death sentence and a fine of Rs.20,000 on four counts under section 302/149, P.P.C. death sentence and a fine of Rs.50,000 under section 396 and seven years' R.I. and a fine of Rs.5,000 under section 307/149, P.P.C was dismissed.

2. The appellant and five others namely Azad Iqbal, Nisar Ali, Mushtaq Ahmed, Sabir Ali and Muhammad Bashir were tried on the allegation that on 2‑2‑1989 at 11‑30 a.m. they alongwith co‑accused Naseera (since dead) armed with guns and Klashnikov formed themselves into an unlawful assembly with the common object of committing Haraba as also the murders of Muhammad Aslam, Khalid Latif, Chaudhry Noor Muhammad and Muhammad. Afzal deceased persons and for making murderous assault on Muhammad Rafiq and Muhammad Afzal P.Ws. and in prosecution of the said common object of the aforesaid unlawful assembly committed Haraba depriving the complainant of a sum of Rs.3,49,000 made murderours assault on Muhammad Rafiq and Muhammad Afzal P.Ws. and committed the murders of aforesaid deceased persons in the area of Chak No. 6 (South), Police Station Bhalwal, District Sargodha.

3. The brief facts of the prosecution case are that on the morning of 2nd February, 1989 Muhammad Rafiq complainant alongwith the deceased persons, Muhammad Afzal Dafadar and Muhammad Bashir Sub‑Engineer went to National Bank of Pakistan, Bhalwal in official Jeep No. FEL 5142 to draw salaries of the employees of the Irrigation Workshop, Bhalwal. He got an amount of Rs.3,49,597.62 from the bank out of which he kept Rs.597.62 with him and after putting the remaining amount in a bag handed it over to Muhammad Afzal Dafadar. They started for the Workshop in the same jeep and when they reached near a fish farm close to the Workshop a man who was later identified as Naseera, armed with a Klashnikov, suddenly came in front of the jeep from left side and started firing. From the right side another man (later identified as Fayyaz Rasul appellant) also started firing with double barrel gun. Afzal Khan, Muhammad Aslam, Khalid Latif and Chaudhry Noor Muhammad suffered fire‑arm injuries and the jeep came to a halt. Muhammad Rafiq and Muhammad Bashir came out of the jeep and ran towards the fields. They were also fired at by the accused. Muhammad Rafq suffered injuries but Muhammad Bashir escaped unhurt. Within their view a person (later identified as Azad lqbal) came on a motor‑cycle from Bhalwal side and took away both the armed culprits (Fayyaz Rasul and Naseera since dead) on his motor‑cycle. On coming to the jeep Muhammad Bashir found the entire amount missing and Muhammad Aslam and Khalid Latif lying dead. In the meantime Abdul Majeed brother of Khalid Latif another employee of the Irrigation Workshop got attracted to the spot by the fire reports. Muhammad Bashir reported the occurrence at Police Station Bhalwal vide F.I.R. Exh. PT at 12‑05 noon. Muhammad Rafiq, Muhammad Afzal P.Ws., and Chaudhry Noor Muhammad and Afzal khan driver were taken to T.H.O. Hospital, Bhalwal, where Chaudhry Noor Muhammad and Afzal Khan driver later on expired.

4. Sher Bahadur Sub‑Inspector investigated the case. On reaching the spot he secured blood‑stained earth from the places where the deceased and P.Ws., had fallen injured vide memos. Exhs. PU, PV, PW, PX, PY and PZ. He secured .12 bore empty P13 and ten empty shells of Klashnikov Exh. P14/1‑10 and made them into a sealed parcel. The same were sent to Forensic Science Laboratory, Lahore. He found National Identity Card of Muhammad Munir Akhtar accused lying on the spot and took into his possession vide memo. Exh. PAA. He also took the jeep into his possession vide memo. Exh. PCC. He despatched the dead bodies of Muhammad Aslam and Khalid Latif to the mortuary after preparing their injury statements and inquest reports. On 8‑2‑1989 Naseer alias Naseera co‑accused was killed to the area of Chak Saida, District Sargodha, in an encounter with a police party of which Match Ullah, Sub‑inspector/SHO, Police Station. Mtant. was also a member. After the encounter he took into his possession motor‑cycle Exh. P‑25, Klashnikov Exh. P26, a bag containing 98 Kiashnikov bullets. 77 empty shells of Klashnikov and two magazines. He also recovered currency notes of the value of Rs.5,000 from the pocket of the shirt of Naseera deceased vide memo. Exhs. PW24/2, 24/3, and 24/4. Ten empty bullets recovered from that spot were found by the Fire‑Arm Expert to have been fired from the Klashnikov Exh.P26.

5. Fayyaz Rasul appellant and co‑convict Azad Iqbal were arrested by Ahmed Khan Inspector/SHO, Police Station, Bhalwal on 9‑2‑1989 from the Dera of Muhammad Akram D.W.2 situate near Wilsonpur Railway Station. After arresting them he recovered Rs.1,60,000 from the appellant and Rs.1,44,000 from Azad lqbal vide memo. Exhs. PU/1. PV/A respectively. The remaining accused namely Nisar Ali, Mushtaq Ahmed, Sabir Ali and Muhammad Munir Akhtar were arrested from their village Chak No. 5/SB on the same day i.e. 9‑2‑1989. Ahmed Khan Inspector recovered Rs.10,000 from Muhammad Munir Akhtar vide memo. Exh. PW/A and equal amount from each of the aforementioned accused vide memo. Exhs. PX/A, PY/A and PZ/A.

6. On 26‑2‑1989, the appellant while in custody led to the recovery of unlicensed .12 bore gun and five live cartridges from a sugarcane field adjacent to the Dera of‑aforesaid Muhammad Akram which were made into a sealed parcel vide memo. Exh. PAA/1. A .12‑bore crime empty Exh. P13 recovered from the spot was found to have been fired from the left barrel of gun Exh. P29 recovered at the instance of the appellant. 7.At an identification parade held in District Jail, Sargodha on 25‑2‑1989 the appellant and co‑convict Azad Iqbal were correctly identified by Muhammad Bashir and Muhammad Rafiq P.Ws.

8. At the trial Muhammad Bashir P.W. 15, Muhammad Rafiq P.W. 16 and Muhammad Afzal P.W. 17 supported the prosecution version.

9. The appellant and his co‑accused pleaded not guilty to the charge and denied the prosecution allegations against them. The appellant and his co‑convict Azad Iqbal denied their arrest and recovery of cash at the Dera of Muhammad Akram. They maintained that the cash recovered from Naseera when he was killed in police encounter was planted upon them.

10. After examining the evidence on the record the Courts below accepted the prosecution evidence and convicted and sentenced the appellant as mentioned above. His co‑accused Azad Iqbal, Nisar Ali, Mushtaq Ahmed, Sabir Ali and Muhammad Munir Akhtar were acquitted of the murder charge but were convicted under section 396 of the P.P.C. Azad Iqbal was sentenced to imprisonment for life and a fine of Rs.50,000 and the others to R.I. for 10 years and a fine of Rs.10,000 each. Out of them only Fayyaz Rasul appellant and Azad Iqbal challenged their convictions and sentences but their appeal was dismissed. Azad Iqbal it appears, has not challenged the decision of the learned Federal Shariat Court.

11. Learned counsel for the appellant contends that since the trial Court had not made any reference to the Federal Shariat Court for the confirmation of the death sentences imposed on the appellant, therefore, the Federal Shariat Court had no jurisdiction to entertain, hear, decide and confirm the sentences passed by the learned Additional Sessions Judge. The argument is wholly misconceived. On going through the record we find that the learned Trial Court did make a reference and the learned Federal Shariat Court had taken notice of the same in the beginning of para. 2 of the impugned judgment. When confronted with this situation the learned counsel abandoned the objection and tried to argue that the prosecution evidence on the record was not sufficient to warrant the conviction. He argued that the appellant was not previously known to the eye‑witnesses and description given in the F.I.R. could fit many persons, therefore, his identification by Muhammad Bashir and Muhammad Rafiq P.Ws. at the test identification parade without an accompanying statement was of no avail to the prosecution. He further submitted that the evidence of the eye‑witnesses and the recovery of witnesses was full of material discrepancies, therefore, no reliance could be placed on them. The learned counsel for the State on the other hand argued that all the eye‑witnesses were independent and disinterested having absolutely no motive to falsely implicate any of the accused, therefore, they were rightly relied upon by the Courts below. It was further argued that four but of six accused had not challenged their. conviction and sentence in the Federal Shariat Curt and one had not challenged the impugned judgment before this Court which means that they were satisfied with the judgments of the Courts below and this circumstance adds to the, credibility of the prosecution version.

12. The contentions raised by the learned counsel for the appellant before us were also raised before the Courts below and were repelled in the impugned judgments for good and sufficient reasons. On going through the record we find that the Courts below have, on a detailed scrutiny of the entire evidence, accepted the prosecution version for valid reasons. No misreading, non‑reading or misconstruction was pointed out. Even the learned counsel for the appellant conceded that the eye‑witnesses had no previous enmity, ill‑will or malice against the appellant or any of his co‑accused. In that view of the matter their evidence was rightly relied upon by the Courts below. For the foregoing reasons there is no merit in this appeal which is accordingly dismissed. N.H.Q./F‑3,52/S Appeal dismissed.