2004 PLP 1 (YLR)

The medical evidence was furnished by Dr. Javed Iqbal, P.W.1, who on 26‑12‑1999 at 10‑36 p.m. conducted the post‑mortem examination on the dead body of Ahmad khan and found the following injuries on his body:‑‑ (1) An entry fire‑arm wound in the upper part of left side of neck, 1‑1/2 c.m. x 1 c.m., below left ear, with no blackening scorching noted. (2) An exit wound 1‑1/2 c.m. x 1 c.m. on the right side of skull above and behind right ear in the occipital temporal area. On dissection, fracture of occipital temporal bone found and also metallic shell was found on the right occipital area fire exit wound inside the skull cavity. He also medically examined Ghulam Roqia, P.W.12 and found the following injuries on her person:‑‑ (1) A fire‑arm entry wound, 1 p.m. x 1/2 c.m. on the interior aspect of right wrist joint. (2) An exit fire‑arm wound 1 c.m. x c.m. on the dorsal/back of right wrist joint. (3) There was blackening/scorching on the left thumb all around with no injury at the place of scorching. On the same day, he medically examined Muhammad Yaqoob; P. W .16 and found the following injuries on his person:‑‑ (1) An entry wound 1‑1/2 c.m. x c.m. below left hypochondrium alongwith blackening and scorching with corresponding mark of injury on Slooka, Qamiz and sweater, which were stained with fresh blood. (2) An exit wound, bleeding profusely, on the back left lumber region, above iliac bone border (1 x c. m.). The ocular account was furnished by Muhammad Shoaib, P.W.17 who was complainant of the case. He supported the version of the F.I.R. Muhammad Yaqoob, P.W.16 was injured witness in the same occurrence at the hands of the accused. He supported the prosecution story as an eye witness of the occurrence. His statement is in line with the statement of the complainant. Ghulam Roqia, P.W.12 was also injured in the same occurrence. She also supported the prosecution story as an eye‑witness of the occurrence. Muhammad Bashir, P.W.10 joined the investigation and got his statement recorded under section 161, Cr.P.C. with the Investigating Officer stating that on 26‑12‑1999 at 8‑45/9 p.m. he was going towards Adda and when he was passing near house of Ahmad Khan deceased he saw two persons in the light of bulb alongwith a motorcycle parked beside and thereafter, he saw six persons going towards north out of them two were on motorcycle. Thereafter, at about mid‑night he returned and came to know about commission of the instant crime. Muhammad Safdar, F.C./C.W.1 was entrusted proclamation of Nazir accused, who was not traceable and made the report in this regard Muhammad Doraiz, A.S.‑I/ P.W.2 had recorded the formal F.I.R. Exh.P.D/1, Muhammad Ashraf, F.C./ P.W.3 delivered the sealed parcels at the office of F.S.L: and the Chemical Examiner, Lahore. Muhammad Rafiq, H.C./P.W.4 kept the sealed parcels in safe custody at Malkhana and entrusted those parcels to Muhammad Ashraf, F.C. Tariq Mehmood, F.C. handed over the parcels of incriminating, articles to Muhammad Ashraf, F.C. for delivery at the office of F.S.L. Ghulam Muhammad, F.C. P.W.6 attested the recovery memo. Exh.P.E. whereby last‑worn clothes of the deceased were taken into possession by the Investigating Officer Muhammad Altaf, F.C. P.W.7 also attested the recovery memo. Exh.P.F. whereby pistol P.6 was taken into possession by the Investigating Officer Umar Hayat, F.C./P.W.8 and Muhammad Altaf, F. C. attested the recovery memo. Exh.P.F. whereby pistol P.6 was taken into possession. Muhammad Saleem Rasheed, appeared as P.W.9 who was posted as C.M.O. in Rural Health Centre, Rawalpindi and gave his opinion about physical condition of Muhammad Yaqoob on the application Exh.P.G, moved by the Investigating Officer whether he was fit to, make. the statement. Muhammad Sharif, Draftsman/P.W.11 had prepared the site‑plan. Ahmad Khan son of Hashim, P.W.13 identified the dead body of Ahmad Khan, deceased at the time of post‑mortem examination. Muhammad Iqbal, P.W.14 attested the recovery memos. of incriminating articles taken into possession from the spot by the Investigating Officer Muhammad Naeem Akhtar, M.I.C./P.W.15 supervised the identification parade held on 7‑2‑2000 wherein Iftikhar Hussain and Muhammad Younas accused were identified by Muhammad Bashir, P.W.10 and Muhammad Shoaib, P.W.17 by stating that they were not present inside the house alongwith their co‑accused at the time of commission of instant crime. Nasrullah Ranjha, P.W.18 had supervised the identification parade while he was posted as Senior Civil Judge/Magistrate Section 30, Chakwal on 26‑4‑2000 wherein Khaliq Dad and Niaz Muhammad, accused/appellants were identified by Ghulam Roqia, P.W.12, Muhammad Yaqoob, P.W.16 and Muhammad Shoaib, P.W.17. Arshad Mehmood, P.C. P.W.20 delivered the sealed parcels at the Office of F.S.L. Dilshad, F.C. P.W.21 handed over the sealed parcels at the Police Station for keeping it in police Maalkhana on 19‑8‑2000. The prosecution evidence was closed by tendering in evidence report of Forensic Science Laboratory Exh.P.A.A. and that of Chemical Examiner Exh.P.B.B. The statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. " The trial culminated into conviction of the appellants as mentioned above. Khaliq Dad and Niaz Muhammad alias Chacha appellants have filed Criminal Appeal No.456‑T of 2001 while Iftikhar Hussain and Muhammad Younas appellants have filed Criminal Appeal No.438‑T of 2001 against their conviction and sentence. Muhammad Shoaib, complainant has filed Criminal Revision No.188 of 2001 titled Muhammad Shoaib v. Iftikhar Hussain, etc. for enhancement of sentence. The trial Court has sent up Murder Reference No.19 of 2002 for confirmation of death sentence of Khaliq Dad and Niaz. As all the matters are outcome of the same impugned judgments are being decided by this single judgment. Learned counsel for the appellants has argued that alleged offences against Iftikhar Hussain and Muhammad Younas were only witnessed by Muhammad Bashir, P.W.10 who claimed that he had seen the appellants outside the house of the complainant and of the deceased at the time of commission of instant crime and subsequently he identified both of them during the identification parade conducted on 7‑2‑2000 in jail under the supervision of Muhammad Naeem Akhtar, M.I.C./P.W.15 and they have not actively participated in the occurrence and said Muhammad Bashir has not given any description about these appellants and how he identified them and that the Trial Court has relied upon the police diary, therefore, the conviction of both the appellants is not legal. Learned counsel for Khaliq Dad and Niaz appellants has argued that the fatal injury caused to Ahmad Khan, deceased was attributed to Nazir who was murdered in police encounter and Khaliq Dad and Niaz Muhammad appellants have been attributed injuries to Muhammad Yaqoob, P.W.16 and Ghulam Roqia, P.W.12. They have been convicted under section 337‑A, P.P.C. separately for the injuries. They have not caused any injury to the deceased the recovery of the alleged looted property has not been effected from them, therefore, the conviction recorded against them by the trial Court is not sustainable under the law. Conversely, the appeals have been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment. Learned counsel for the complainant has prayed for enhancement of sentence of Iftikhar Hussain and Muhammad Younas. Heard. Record perused. Iftikhar Hussain and Muhammad Younas, admittedly, did not enter into the house of the deceased. They have not been identified by the complainant and the eye witnesses in the identification parade. They have only been implicated by Muhammad Bashir, P.W.10 in his statement under section 161, Cr.P.C. He stated that he saw them in front of the house of the deceased/complainant. He had not given any description/features of the accused. As per his own statement he went away after seeing two persons standing alongwith motorcycle parked nearby. The learned trial Court has placed reliance on involvement of Iftikhar Hussain accused in previous cases to convict him in the instant case without confronting the accused about his previous history. The statement of Muhammad Bashir, P.W.10 has not been corroborated from any other independent source for involvement of Iftikhar Hussain and Muhammad Younas, appellants, therefore, their identification by Muhammad Bashir, P.W.10 has got no value in the eye of law and their conviction based on his sole statement and police diaries, is not legal, therefore, they cannot be held vicariously liable for causing murder of Ahmad Khan by their co accused. Resultantly, their Criminal Appeal No.438‑T of 2001 is allowed and they are acquitted of the charge. If they are not required to be detained in jail in any other case, they be set at liberty forthwith. As far as case of Khaliq Dad and Niaz Muhammad is concerned, they actively participated in the commission of crime. Ghulam Roqia P.W.12 received three injuries at the hands of Khaliq Dad while Muhammad Yaqoob was fired at by Niaz Muhammad, appellant. Their participation in the commission of crime has also been fully corroborated by medical evidence. They were identified by the complainant Muhammad Shoaib, P.W.17 and Muhammad Yaqoob, P.W.16 and Ghulam Roqia, P.W.12 during the identification parade conducted under the supervision of Nasrullah Ranjha, M.I.C./P.W.18 after observing all the legal formalities. These witnesses have no enmity for their false implication by letting off the real culprits. All the three witnesses stood to the test of lengthy cross‑examination but nothing was brought on record to discard their testimony. They were inmates of the house and their presence at the spot cannot be doubted particularly Muhammad Yaqoob, P.W.16 and Ghulam Roqia, P.W.12 were injured in the same occurrence. The appellants were identified I by the role played by each of the accused, therefore, the prosecution has successfully proved its case against the appellants beyond any shadow of doubt and we do not find any ground to interfere in the conviction recorded against both the appellants. As far as the sentence is concerned, the fatal injury caused to Ahmad Khan, deceased was attributed to Nazir; co‑accused who was murdered in police encounter. The alleged looted articles were not recovered from their possession, therefore, while maintaining the conviction recorded against them, we reduce the sentence under section 396, P.P.C. from death to imprisonment for life which will meet the ends of justice. However, sentence of compensation or in default thereof and other sentences are maintained. All the sentences shall run concurrently and the benefit of section 382‑B, Cr.P.C. will also be, available to the appellants. The death sentence of Khaliq Dad and Niaz Muhammad is not confirmed. Criminal Appeal No.456‑T of 2001 is dismissed with the above modification. Criminal Revision No.188 of 2001 filed by the complainant is also dismissed having no force. Murder Reference is answered in the negative. H.B.T./I‑218/L Order accordingly.