2002 PLP 2283 (YLR)

13. P.W.9 is Yousaf Ali who deposed that on 13‑2‑2001, around 12‑00 or 12‑30 noon, while proceeding to N.I.C. Officer he saw three boys coming out from the house of Waqas' Younis and walking briskly. They had also a bag with them and on the same day later on, at night time he came to know about the murder of mother and sister of Waqas Younis, P.W. On 22‑2‑2001 he joined the identification parade held in District Jail, Khang and identified the three boys whom he had seen coming out of the house of Waqas Younis, P. W. While appearing in the Court as P.W.9, he deposed that he had seen the accused present in the Court and they are the same persons whom he had seen on the day of occurrence coming out of the house of Waqas Younis and walking briskly and they were the same persons whom he had identified during the identification parade.

14. P.W.8 is Safdar Ali who had stated that on 13‑2‑2001 he alongwith Muhammad Tariq, P.W. was coming back from the office of National Registration Office around 11‑00 a.m. and when they were passing through the street of Waqas P.W. three boys were seen standing in front of the door of the house of the complainant and one of them was pressing the electric bell. After some time he came to know that somebody had murdered the mother and sister of Waqas Younis, P.W. and had also committed robbery ip their house. He stated that it had caused terrorism in the city. Having received the information of murder, he alongwith Tariq P.W. went to the house of Waqas P.W. and told him as well as the police about the presence of three boys (outside the house of Waqas Younis). P.W.8 further deposed that on 22‑2‑2001, he alongwith Tariq and Yousaf, P.Ws. participated in the identification parade in District Jail, Jhang and he identified the three persons whom he had seen on the day of occurrence standing in front of the house of Waqas Younis P.W. and he had also seen the three accused present in the Court (while making statement as a P.W.) and that they were the same persons whom he have seen on the day of occurrence in front of the house of Waqas Younis and whom he had identified during the identification parade, on 22‑2‑2001.

15. P.W.8 also deposed that he had identified the dead bodies of the mother and sister of Waqas Younis, P.W. at the time of their post‑mortem examination.

16. P.W.5 is Bashir Ahmed who had also identified the dead bodies of the deceased ladies at the time of post‑mortem examination.

17. P.W.6 is Asrar Ahmed, Constable No.601 who on 13‑2‑2001 had escorted the dead bodies of the deceased ladies to the Civil Hospital, Toba Tek Singh for the purpose of post‑mortem examination and after the post mortem examination had brought back the last worn clothes P.1 to P.5 of the deceased ladies alongwith the sealed phial and had handed over the same to the I.O. and who had taken the same into possession vide separate memos. Exh.PB and Exh.PC.

18. P.W.7 is Waqas Younis, the complainant. He supported the prosecution story as narrated in the F.I.R. He also deposed that the articles which were allegedly recovered by the accused during the investigation, had been shown to him by the police and he had identified the same.

19. P.W.1 Adalat Ali, Moharrir/HC No.618 of Police Station City Toba Tek Singh who had recorded the formal F.I.R., Exh.PA/1 on the receipt of complainant Exh.PA on 13‑2‑2001. He performed certain other duties as well during the course of investigation such as keeping the sealed parcels in the Malkhana and thereafter sending the same to the Office of Chemical Examiner through different Constables from time to time.

20. P.W.2 Muhammad Jamil, Constable No.9 was entrusted two sealed parcels containing blood‑stained cotton on 20‑2‑2001. On 21‑2‑2001 he delivered the aforesaid sealed parcels in the office of Chemical Examiner, Lahore, intact.

21. P. W.3 is Muhammad Sharif, Constable No.322. On 20‑3‑2001, the Moharrir/HC had handed over to him three sealed parcels containing blood‑stained shoes and one sealed parcel containing a blood stained Churri, for taking the same to the office of Chemical Examiner. On 21‑3‑2001 lie handed over the aforesaid sealed parcels intact in the aforesaid office.

22. P.W.4 is Muhammad Aleem, Constable No.558. On 22‑2‑2001 Moharrir/HC handed over to him two sealed phails for taking the same to the office of Chemical Examiner and he deposited the same in the said office intact on the same day.

23. After the conclusion of the prosecution evidence the statements of the three accused under section 342, Cr.P.C. were recorded by the learned trial Court and wherein they denied all the incriminating circumstances. In answer to question as to why this case against him and as to why the P. Ws. had deposed against him Zeeshan Afzal, accused stated that the P.Ws. were related inter se and had deposed against him just to settle their own old scores. It was in answer to Question No.13 that he stated that Mst. Shahnaz lqal, deceased was his paternal aunt while Mst. Mah Para Younis deceased was the daughter of his aforesaid aunt. In answer to Question No.13 he deposed as under:‑‑ "Mst. Shahnaz Iqbal deceased was my paternal aunt and Mst. Mah Para Younis deceased was the daughter of my aforesaid deceased aunt. My mother was divorced by my father 10/12 years ago due to which I used to live with my maternal grand parents but often I used to visit the houses of my relatives from paternal side as well as the house of above said deceased ladies. My paternal aunt Mst. Shahnaz Iqbal deceased used to love me very much and he wanted to marry Mst. Mah Para Younis deceased with me but the other relatives took it ill and desisted me to visits the house of my aforesaid paternal aunt. My father Muhammad Afzal had contracted a second marriage from whom he has got three daughters. I am the only male issue of my father who has to inherit the movable and immovable property to the tune of Rs.50,00,000 of my father. My paternal uncles Munawar Aslam and Zafar Iqbal P.W.13 in order to grab the property of my father as well as mine, they fabricated a false story and roped me in this case. It is pertinent to add here that my father is a simpleton and plays as a puppet in the hands of his brothers. Actually it was a blind murder and an unseen occurrence committed by some unknown terrorists but the complainant party with the connivance of local police made me a scapegoat in this case and just to pay of their old scores. The I.O. challaned me falsely in order to show his efficiency in the eyes of his high‑ups.

24. In answer to Question No. 11 as to why this case against him and why the P.Ws. have deposed against him, Rizwan, accused deposed as under:‑‑ "I am innocent in this case. Zeeshan accused is resident of the same street where I and my co‑accused Muhammad Yasir reside. On 15‑2‑2001 the I.O. of this case raided my house in order to effect my arrest in this case. I and my co‑accused Muhammad Yasir asked from the I.O. about any warrant of arrest issued by the Court of competent jurisdiction for their arrest, which resulted into annoyance of the I.O. who took me and my co‑accused forcibly to Police Station City, Toba Tek Singh where I and my co- accused Muhammad Yasir were illegally detained and consequently the I.O. in league with the complainant party falsely involved us in this case and also planted a fake recovery of alleged stolen property. Besides this, the I.O. showed me and my co‑accused to the witnesses at the P.S. prior to holding of identification parade held in District Jail, Jhang. The witnesses are related inter se and interested witnesses. They falsely roped me and my co‑accused in this case."

25. In answer to the same question as mentioned above, Yasir accused took the same plea as his co‑accused Rizwan did, and gave the same answer.

26. None of the accused made statement under section 340(2), Cr.P.C. in answer to the question as to whether they will produce evidence in defence, Rizwan Ali, accused deposed that he is of tender age and he produced school leaving certificate as Exh.PDD. Yasir accused also took the plea that he is of tender age and he produced the school leaving certificate as Exh.BC. Zeeshan Afzal did not produce any evidence in defence but' in answer to Question No. 13 he revealed his defence version which has already been reproduced above.

27. After the conclusion of the trial, the learned trial Court convicted Zeeshan Afzal accused/appellant under sections 302(b)/34, P.P.C. and sentenced him to death as Ta'zir on two counts for committing Qatl‑i‑Amd of Mst. Shahnaz Iqbal and Mst. Mah Para Younis deceased and to pay Rs.1,00,000 on each count as compensation to the legal heirs of both the deceased ladies and in default of payment of compensation to undergo R.I. for 10 years.

28. Muhammad Yasir and Rizwan Ali, accused/appellants were convicted under section 302(b)/34, P.P.C. and were awarded imprisonment for life as Ta'zir on two counts for committing the Qatl‑i‑Amd of the deceased ladies and to pay Rs.1,00,000 on two counts as compensation to the legal heirs of the deceased and in case of default in payment of compensation to further undergo R.I. for 7 years on each count.

29. All the three accused were also convicted under section 392/34, P.P.C. and were awarded R.I. for 10 years and a fine of Rs.50,000 and in default of payment of fine to further undergo R.I. for 2‑‑1/2 years.

30. All the three accused were also convicted under section 411, P.P.C. and were awarded R.I. for three years each and to pay a fine of Rs.20,000 each and in default of payment of fine to further undergo R.I. for nine months.

31. The learned trial Court also convicted Zeeshan Afzal accused/appellant on the charge under section 7 of the Anti -Terrorism Act, 1997 and awarded him sentence of death on two counts and a fine of Rs.1,00,000 on each count and in default of payment of fine to undergo R.I. for 10 years on each count.

32. The learned trial Court also convicted Muhammad Yasir and Rizwan Ali, accused/appellants as well under section 7 of Anti‑Terrorism Act, 1997 and they were awarded imprisonment for life on two counts and a fine of Rs.1,00,000 on two counts and in default of payment of fine to undergo further R. I. for 7 years on two counts. They were also allowed the benefit under section 382‑B, Cr.P.C.

33. Aggrieved of the judgment of learned trial Court, the three accused/appellants initially filed a joint Jail Appeal (Criminal. Appeal No. 187‑J of 2001). Rizwan Ali and Yasir, accused/appellants filed two separate appeals as well and which are Criminal Appeal No.735 of 2001 and Criminal Appeal No.927 of 2002 respectively. An appeal on behalf of the State was also filed for enhancing the sentences awarded to Yasir and Rizwan, accused/appellants to the maximum penalty of death and which is Criminal Appeal No.787 of 2001. The learned trial Court submitted a murder reference as well for the confirmation of the sentence of death awarded to Zeeshan Afzal, accused/appellant. All the aforesaid appeals and the murder reference were being disposed of through this judgment.

34. The learned counsel for the appellants have argued that it was actually an unseen occurrence and that none of the appellant had been specifically named in the F.I.R, except Zeeshan and even about him only suspicion had been expressed as no one had seen hin; in the course of occurrence. They have argued, that if the appellants were carrying only one bag while going back from the scene of occurrence, how is it that they could carry a large number of articles, as detailed in the prosecution evidence, in that bag. They have argued that as articles allegedly recovered at the instance of that accused did not bear any identification mark and were articles of such nature which are generally available in Bazar, the recovery of the same was of no consequence and did not help the prosecution in any manner. They have also argued that in the F.I.R. itself there was no mention of any theft of any articles from the house of the deceased at the time of occurrence and that the story about the theft of aforesaid articles had been concocted specifically at the instance of the I.O. so as to provide corroborative piece of evidence and in that respect supplementary statement of the complainant was recorded to fill up the lacunas. They have argued that the alleged recoveries had been effected on the last day of physical remand of the accused and it has always been disapproved by the Superior Courts of the country. It was also argued that Yousaf Ali, P.W.9 who claims to have seen the accused coming out of the house of the complainant and carrying a bag neither mentioned the features of the culprits in his statement under section 161, Cr.P.C. nor did he disclose the same before the complainant. During the identification parade he did not attribute specific role to different accused while identifying them. Similar is the position of P. W. 8 Safdar Ali who had seen the three boys standing in front of the door of the house of Waqas Younis one of whom was pressing the button of electric bell. He did not mention their features in his statement under section 161, Cr.P.C. Besides that, he did not attribute to them specific role while identifying them during the course of identification parade. Before the alleged recoveries, a joint disclosure was attributed to the accused and which had no legal importance and that from each of the accused an amount of Rs.500 was recovered without mention of any identification mark on the currency notes. Although the blood‑stained shoes were sent to the Chemical Examiner but there was no report as to whether any blood grouping had taken place. The counsel for the appellants further argued that P.W.8 and P.W. 9 were both chance witnesses, and their conduct was unnatural. Safdar Ali was related to this complainant but he did not question the boys standing outside the house of the complainant as to why they were standing there. They have argued that as held in 1995 SCMR 127, description of specific role of the accused during the course of identification parade was necessary and that a witness must disclose the context in which he had identified an accused. They have argued that the supplementary statement cannot be equated with an F.I.R. and that it has absolutely no value. Learned counsel for the appellants have argued that no motive whatsoever had been attributed to Yasir and Rizwan, appellants and so far as Zeeshan is concerned only a suspicion was expressed about him in the F. I. R. but even as against him no motive had been attributed. They have argued that the proceedings of identification parade had not been conducted in accordance with law and that the same could not be relied upon so far as the identification by the accused was concerned because the accused had been shown to the P.Ws. before the identification parade had actually taken place. They have argued that the recoveries in this case were fictitious and the alleged recoveries were planted on the accused/appellants so as to strengthen the prosecution story. They have asserted that the prosecution had miserably failed to prove any of the charges against any of the accused/appellants and that the learned trial Court had wrongly convicted and sentenced the accused/appellants in this case without any lawful justification and hence the appellants were entitled to be acquitted.

35. Conversely the learned counsel for the State has advanced his arguments in support of the prosecution story and has asserted that the learned trial Court had rightly convicted and sentenced the appellants and that the prosecution had established its case to the hilt and that the learned trial Court had rightly convicted the accused/appellants in this case. Further he has argued that as the same role hail been attributed to the three accused/appellants and as all the three accused/appellants were equally liable for the occurrence, therefore, there is no lawful justification for awarding lesser punishment to Yasir and Rizwan, appellants. It was asserted by him that Yasir and Rizwan be also awarded maximum punishment for the offence provided by law and in this respect the criminal appeal filed by the State be accepted while appeals filed by the three accused/appellants be dismissed.

36. We have carefully considered the arguments. So far as Zeeshan Afzal, accused/appellant is concerned he is specifically named in the F.I.R. which had been lodged promptly. Even though in the F.I.R. the complainant had expressed only suspicion against the said accused/appellants, it does not mean that the evidence against him could not be collected during the investigation proceedings. It is an admitted fact that Mst. Shahnaz Iqbal deceased was the paternal aunt of Zessehan Afzal, accused/appellant whose mother had been divorced by his father. He himself in his statement under section 342, Cr.P.C. (in answer to Question No. 13) had stated that his father Muhammad Fazal had contracted a second marriage. In this aforesaid statement he had further stated that his paternal aunt Mst. Shahnaz Iqbal, deceased loved him and she wanted to marry her daughter Mst. Mah Para, deceased with him but the other relatives took it ill and they did not like his visits to the house of his aforesaid paternal aunt. P. W.7 Waqas Younis, the complainant in the course of cross‑examination stated that his mother used to love Zeeshan accused/appellant but she had no intention to marry his sister Mst. Mah Para with him. P.W.7 also denied during the course of cross -examination that this was a blind murder and committed by some terrorists and that they had roped in Zeeshan and his co‑accused in order to take revenge from Zeeshan for marrying his sister. Admittedly no such marriage had taken place and as such there could be no question of taking the revenge from Zeeshan accused/ appellant by falsely implicating him in this case and by letting off the actual culprits. The evidence furnished by Safdar Ali P.W.8 and Yousaf Ali P.W.9 clearly connects Zeeshan Afzal, accused/appellant with the offence. They have also identified him and the co- accused during the identification proceedings. But even if there be any legal infirmity existing in the identification parade and even if there may have been some legal defects, the same are not of such a nature which may deprive the said evidence of its intrinsic value. There does not seem to be any confusion about the identity of the culprits. So far as Zeeshan, accused/appellant is concerned, he had even got recovered the blood‑stained Churri P‑30 as well from the bag P‑

29. The said Churri was sent to the Chemical Examiner in a sealed parcel and according to the report of the Chemical Examiner the said Churri was stained with blood and according to the report of the Serologist it was stained with human blood. Even if it be assumed that the alleged stolen articles were of general nature and were available from the Bazar even then the complainant had identified the said articles as belonging to his household and as such there is hardly any justification to discredit the said recoveries. It is correct that in the F.I.R. there was no mention of the alleged stolen articles. But we can also understand as to what was the state of mind of the complainant immediately after reaching his house when he saw the dead bodies of his mother and sister lying in the bath room with their throats cut with a sharp‑edged weapons. The only possible thing he could do at that moment was to shout, cry and to raise alarm. It could not be expected from him at that moment to check up the household articles to find out as to whether any theft had been committed in the house. The conduct of the complainant in that respect does not appear to be unnatural. Having failed to marry Mst. Mah Para daughter of his aunt, Zeeshan accused/appellant could do anything, including the murder of Mst. Mah Para and her mother. It may be mentioned here that in the original F.I.R. to motive wag attributed to the accused appellant. As such it was not necessary for the prosecution to prove the existence of motive. Even most heinous offences are some times committed without the existence of any motive. However, during the trial, it did come to light that Zeeshan Afzal accused/appellant did have the motive to commit the offences in question. Hence, so far as Zeeshan Afzal, accused/appellant is concerned, the prosecution has fully established all the charges against him and thus he had been rightly convicted and sentenced. We do not find that there was any mitigating circumstances in his favour.

37. So far as the other two appellants i.e. Yasir and Rizwan are concerned, their case does not appear to be at par with Zeeshan Afzal, accused/appellant. It is correct that their exists evidence on record that P.W.8 Safdar Ali had seen them standing outside the house of the complainant before the occurrence and Yousaf Ali P.W.9 had seen them going back with a bag, after the occurrence. But no one had seen them entering the house of the complainant. It can be assumed that Zeeshan Afzal, accused/appellant who was a friend of these two appellant i.e. Yasir and Rizwan had taken them along saying that he was going to the house of his aunt without mentioning the fact as to what he was going to do there. The P.Ws. might have seen them coming back with Zeeshan Afzal, accused but even the said evidence cannot be assumed to be conclusive so far as culpability of Yasir and Rizwan appellants was concerned. In this case, Zeeshan Afzal, accused/appellant had a motive for the commission of offence as he must be frustrated on his failure to marry Mst. Mah Para, deceased, the daughter of his aunt. His name was mentioned as a suspect in the F.I.R and it was he from whom the Churri i.e. weapon of offence had been recovered. The said factors are not there so far as Yasir and Rizwan are concerned and so far as Yasir and Rizwan are inclined to give to them i.e. Yasir and Rizwan, accused/appellants, the benefit of doubt in that respect. Since the prosecution has not established its case against these two accused/appellants i.e. Yasir and Rizwan beyond reasonable doubt, therefore, they are entitled to be acquitted.

38. In view of what has been discussed above, we accept Criminal Appeal No.735 of 2001 filed by Rizwan Ali, accused/appellant and Criminal Appeal No.927 of 2001 filed by Muhammad Yasir, accused/appellant and acquit both the said appellants of all the charges in this case, and set aside the conviction and sentences recorded by the learned trial Court against the said appellants. However, we dismiss Criminal Appeal No. 187‑J of 2001 to the extent of Zeeshan Afzal, accused/appellant and we uphold the conviction and sentences of the said appellant, recorded by the learned trial Court on all the charges, with the modifi cation that the sentence of imprisonment in default of payment of compensation under section 544‑A, Cr.P.C. on each count, shall be S. I. for six months only.

39. The sentence of death awarded to Zeeshan Afzal, accused/appellant is confirmed. In consequence, the Murder Reference No. 16‑T of 2001 is answered in the affirmative. H.B.T./Z‑130/L Order accordingly.