For

THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.365/2016

Confirmation Case No.09 of 2016

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant : Ishtiaq Ahmed son of Mushtaq Ahmed through Mr. Nasrullah Korai, advocate

Respondents : The State through Mr. Mohammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of hearing: : __.12.2018

Date of announcement : 28.01.2019

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Ishtiaq Ahmed son of Mushtaq Ahmed appellant was tried by learned Additional Sessions Judge-VI, Karachi East, in Sessions Case No.400 of 2007 for offences under sections 396, 397, 302, 324, 34, PPC. After full-dressed trial, by judgment dated 06^th October 2016, appellant was convicted under Section 302/34, PPC and sentenced to death, subject to confirmation by this Court. Appellant was also convicted under section 324/34, PPC and sentenced to suffer 7 years R.I. and to pay fine of Rs.30,000/-, in default whereof to suffer six months R.I. Impugned judgment concluded by stating that, “As regards injuries sustained by injured Muhammad Rafiq, Muhammad Ilyas, Ghulam Sakina and Sidra are concerned and it is mentioned in the medical certificate that same was result of firearms but final opinion is not given by the doctor, therefore, I avoid to convict the accused for the injuries sustained by the witnesses though it is necessary but final medical certificate is not available and accused has been also convicted U/s. 324 PPC, therefore, I hesitate to do so in the present case.” Trial court has made Confirmation Reference to this Court in terms of Section 374, Cr.PC.

2. Brief facts of the prosecution case, as disclosed in the FIR are that on 11.04.2007 at 04:30 hours, complainant Mst. Hashmat Bibi was offering Namaz-e-Tahajud in her room in House No.R-59, Ahsanabad, Malir, Karachi. Suddenly, six persons having pistols and weapons entered into her house through roof and started forcibly removing gold bangles, earrings and one gold ring from her hands in a cruel manner, they slapped upon her face on which she raised cries, which attracted her son Idrees (now deceased). In the meantime, all family members came in room and tried to apprehend accused with the result, husband of complainant Muhammad Rafiq, his son Ilyas, daughter Sakina and daughter-in-law Sidra sustained firearm injuries. On the fire shots mohallah people gathered outside the house, accused fled away from the place of incident. All the injured were taken to the hospital but on the way her son Muhammad Idress succumbed to the injuries.

3. SI Azhar Hussain Jafri after receiving such information rushed to the hospital and found that Muhammad Idrees had already expired. He recorded statement of Mst. Hashmat Bibi under section 154, Cr.PC and on the basis of her statement, he lodged FIR vide Crime No.78/2007, under sections 396, 397, 398, PPC on 11.04.2007 at 1030 hours.

4. Investigation was carried out by SI Azhar Hussain Jafri. He inspected the place of wardat; prepared the inquest report of the dead body. Appellant Ishtiaq Ahmed was arrested by police in other case, however, during interrogation he disclosed about the commission of present offence, as such, he was arrested in this case on 05.07.2007. During investigation, he was produced before the concerned Judicial Magistrate for identification parade through eyewitnesses on 09.07.2007, notices were issued to the witnesses, namely, complainant Mst. Hashmat Bibi, Muhammad Raheel, who appeared before Judicial Magistrate-X, Karachi East where identification test was held and the appellant was identified by both the witnesses. Other injured witnesses were seriously injured and were admitted in hospital. After completion of usual investigation, challan was submitted against the appellant under sections 396, 397 and 398, PPC, showing other accused, namely, Furqan, Aslam, Zubair and Faisal as absconders.

5. Learned trial court after completing the formalities, ordered the case to proceed against absconding accused under section 512, Cr.PC, proceedings under sections 87 and 88, Cr.PC were concluded against them.

6. Trial court framed charge against accused Ishtiaq Ahmed at Ex.2 under sections 396, 302, 34, PPC. Accused pleaded not guilty and claimed to be tried.

6. At the trial, prosecution examined complainant (PW-1) Mst. Hashmat at Ex.4, PW-2 Muhammad Rafiq at Ex.5, PW-3 Muneeruddin at Ex.6, PW-4 Muhammad Ilyas at Ex.7, PW-5 Mst. Sidra at Ex.10, PW-6 Ghulam Sakina at Ex.11, PW-7 MLO Afzal at Ex.13, PW-8 Muhammad Raheel at Ex.16, PW-9 Mr. Allah Bachayo, Judicial Magistrate at Ex.17, PW-10 SI Azhar Hussain Jaffri at Ex.18, PW-11 Changez Khan at Ex.19 and PW-12 Raja Tariq Mehmood at Ex.20. Thereafter, prosecution side was closed at Ex.21.

7. Statement of accused was recorded under section 342 Cr.PC at Ex.22, in which he denied the prosecution allegations and claimed his false implication in this case. Accused raised plea that he was arrested from gate of Masjid and weapon has been foisted upon him. Accused stated that he has been acquitted in a case under section 13(d) of the Arms Ordinance registered against him. Accused did not lead evidence in defence and declined to examine himself on oath in disproof of prosecution allegations.

8. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 13.11.2012 convicted the appellant and sentenced him to death as stated above. Hence, appellant filed this appeal. By this single judgment, we intend to dispose of the aforesaid appeal as well as Confirmation Reference No.09/2016 made by trial court.

8. Learned counsel for the appellant mainly argued that postmortem examination of the deceased was not conducted and identification of accused through the PWs was defective. It is further argued that incident took place at night time but source of light has not been disclosed by the eyewitnesses. Lastly, argued that prosecution has failed to prove its case against the accused. Learned counsel for the appellant in support of his contentions relied upon the following cases:

9. Learned D.P.G. argued that doctor has clearly mentioned that deceased died because of firearm injuries but postmortem examination was not conducted at the request of uncle of the deceased, the same would not be fatal to the prosecution case. Learned D.P.G. further argued that identification parade of appellant was held on 09.07.2007 through PWs Muhammad Raheel and Mst. Hashmat Bibi, no material irregularity has been committed in conducting the identification parade. Lastly, submitted that conviction and sentence recorded by the trial court do not warrant any interference by this Court. Learned D.P.G. in support of his contentions relied upon the cases of :

10. After hearing the learned counsel for the parties, we have scanned the entire evidence.

11. We have carefully heard the learned counsel for the parties at length and scanned the entire evidence available on record.

12. Firstly, we discuss medical evidence. In order to prove unnatural death of deceased Muhammad Idrees and firearm injuries sustained by Muhammad Ilyas, Mst. Sakina, Sidra and Muhammad Rafiq, prosecution has examined PW-7 Afzal Ahmed Memon, MLO, JPMC, Karachi at Ex.13. He deposed that on 11.04.2007 he was posted as MLO at JPMC in night shift, at 05:35 a.m. three injured, namely, Muhammad Ilyas, Mst. Sakina, Muhammad Rafiq and Mst. Sidra were brought in hospital. MLO examined injured Muhammad Ilyas, aged about 35 years, and found firearm injury, punctured wound size 2cm in diameter and mid of chest of examination margins inverted as wound of entry and referred him for emergency treatment. MLO examined Muhammad Idrees, who was brought dead. Mst. Sakina daughter of Muhammad Rafiq had firearm injury, punctured wound size 1.5 c.m. in diameter at right mid axillary line above 5cm to right chest on examination margins inverted as wound of entry, she was referred for emergency treatment. MLO examined injured Muhammad Rafiq, aged about 65 years, and found injury No.1 firearm punctured would size 1.6 c.m. in diameter at left limber region on examination margin inverted as wound of entry; injury No.2, firearm injury, punctured would size 2cm in diameter at left in general region on examination margin averted as wound of exit, he was referred for emergency treatment. MLO examined injured Sidra daughter of Idrees, aged about 20 years, and found injury No.1 firearm injury, punctured wound size 1cm in diameter at 2^nd toe of left foot with inverted margin as wound entry; injury No.2 firearm punctured would size 2cm in diameter at medial side of left foot bone averted margin as wound of exit. Medical Officer issued medico legal certificates at Ex.13/A to 13/E. Medical Officer further deposed that he did not remember whether he conducted postmortem of Idrees but he advised for postmortem in the MLC at Ex.13/B. Perusal of Medical certificate Ex.13/B reveals that Muhammad Idrees was brought dead having sustained firearm injuries, but no proper postmortem was conducted by the Medical Officer. It is clear from medical evidence that deceased Idrees dies of firearm injuries and injured persons, namely, Muhammad Ilyas, Mst. Sakina, Muhammad Rafiq and Mst. Sidra had also sustained firearm injuries as described by the Medical Officer.

13. PW-1 Mst. Hashmat Bibi deposed that on 11.04.2007 at 04:00 a.m., she along with her husband was offering Tahajud prayers and reciting Darood Shareef. All of sudden, three accused persons armed with weapons came in room and on gunpoint demanded her to give everything having in her house. She removed bangles of gold from her wrist and accused gave her beating. She raised cries which attracted their children and asked that dacoits as to why they have entered in their house. Accused persons confined all family members in a room. One of accused pulled out necklace of her daughter-in-law Sidra, which she was wearing. Accused were asked to take whatever they want but they started bearing to her, her husband and son. My son Idrees tried to stop them from doing so, however, one of the accused fired upon him and another accused fired upon her other son Muhammad Ilyas. He also fired upon my husband and bullet after striking to her husband hit to her daughter-in-law Sidra.

14. PW-2 Muhammad Rafiq deposed that on 11.04.2017 he was at home and at about 04:30 a.m. he after offering Tahajud prayers along with his wife was reciting Tasbeeh; abruptly three persons entered in their rom, he inquired from them who they are, they replied that they in connection with their Tanzeem. They should upon him and his wife and asked to handover whatever is in his house. He raised alarm upon which accused present in Court started beating him severely with fists and kicks and he fell down on the floor. His wife raised cries, who was also beaten by the present accused and she fell down on cot. Thereafter, the family members, namely, Idrees his wife Sidra, Ilyas, Raees, Sakina, Maryam and Bushra came in the room. Accused asked them to hand over whatever was in the house. It is further stated that son of Muhammad Rafiq asked dacoits not to misbehave any of the family members and he grappled with accused, thereafter, Muhammad Rafiq also grappled another accused and stated that he was the same before the trial Court. He further stated that present accused fired at his son Idrees and another accused fired upon Ilyas and fires were also made by accused upon Mst. Sakina. Thereafter, accused made escape good from the place of incident. He has further deposed that his son Idrees was declared dead by the doctors in the hospital and his other son Ilyas, daughter Sakina and daughter-in-law Sidra were also admitted in the hospital. Above named witness was also admitted in the hospital for 20 days. Trail court in the end mentioned that PW correctly pointed out the accused person in the court that he was wearing white colour shalwar qameez at the time of incident. He was cross-examined by the defence counsel and denied the suggestion that he was deposing falsely against the accused at the instance of police.

15. PW-3 Muniruddin has deposed that on 11.04.2007, he was present at his house and was performing Tahajud prayers. He heard gunshot report from the house of the complainant and his door was also knocked by PW Raheel, who is his neighbor, who disclosed that dacoits were entered into the house. The persons of the Mohallah were called and he went to the house of Raheel and saw that 2/3 ladies, Ilyas, father of Ilyas and Idrees were lying injured on the ground. Idrees has succumbed to the injuries. Injured persons and Idrees were shifted to the hospital.

16. PW-4 Ilyas, the eyewitness of the case, has deposed that on 1104.2007 at 04:00 to 05:00 a.m. he was sleeping at the upper floor of the house. He heard noise at the ground floor of the house. He saw that some boys were beating to his parents. He was kept quiet by those boys armed with weapons. They snatched bangles from the wrist of his mother, snatched necklace from his sister-in-law. His brother Muhammad Idrees asked accused persons not to abuse the family member then there was a quarrel in between accused Ishtiaq fired upon his brother Idrees and another accused fired upon his chest. He remained hospitalized for one month. In the cross-examination, he denied the suggestion that he had deposed falsely against the accused.

17. PW-5 Mst. Sidra, wife of deceased Muhammad Idrees, is also eyewitness of the incident, she had deposed that on 11.04.2007, she was sleeping on the ground floor of the house. At 04:30 hours she wake up on some noise and observed that his father-in-law Muhammad Rafiq was raising noise that dacoits have entered into the house and made call to 15. She has further deposed that the dacoits asked the family members to handover golden ornaments and she removed her bangles from the hands. In the meanwhile, one dacoit snatched chain from her neck to which her husband Muhammad Idrees (now deceased) asked dacoits not to physically abuse the ladies and quarrel started in between her husband and dacoits. She has further deposed that her father-in-law, her brother-in-law and her husband caught hold the dacoits and the dacoit who was caught hold by her father-n-law had released himself from his father-in-law and made fire upon her husband, namely, Muhammad Ilyas and dacoit who was caught hold by her husband was released and he fired upon her brother-in-law and dacoit who was caught hold by her brother–in-law was released and made fire upon his sister-in-law, namely Ghulam Sakina. While the accused persons running away they also made fire upon her father-in-law and fire hit him. Thereafter, injured persons were taken to the hospital and her husband expired. She has categorically stated that accused Ishtiaq Ahmed before the Court was same dacoit who made fire upon her husband. She has replied that present accused had fired upon her husband.

18. PW-6 Ghulam Sakina is also eyewitness of the incident. She had deposed that on 11.04.2007 at night time, she was sleeping in the upper portion of the house. She heard noise and came running on the ground floor and saw that a person was standing armed. He pushed her to the room and culprits directed the family members to handover all the ornaments of gold. She handed over her bangles. Suddenly, present accused snatched a chain from the neck of her sister-in-law to which much annoyance was caused to deceased Muhammad Idrees and asked accused as to why they were disgracing the family to which one dacoit had slapped to Idrees. Thereafter, her father made call at 15, he was also slapped so also her mother. She has stated that present accused fired upon her brother Idrees, fire hit him and he fell down. PW Mst. Ghulam Sakina had also given the entire episode of the incident. She was also cross-examined. She denied the suggestion that she was deposing falsely against the accused.

19. PW-8, Muhammad Raheel is also eyewitness of the incident. He had deposed that on 11.04.2007 he was sleeping in the house, at 04:45 a.m. he heard some noise and came down from the first floor of the house and saw two stranger persons standing in the house and they were armed with pistols. One culprit caused butt blow to PW Muhammad Raheel at his head and asked him to keep silence and pushed him into the room where other family member were made hostage. He had deposed that accused Ishtiaq tortured his father. His mother and sister-in-law handed over the ornaments of the gold to the accused. He has further stated that one dacoit snatched chain from the neck of his sister-in-law (wife of deceased) to which Muhammad Idrees resisted and appellant fired upon Idrees. He has further stated that remaining accused fired upon remaining family members. He was cross-examined at length. He had denied the suggestion that no identification parade was held in his presence. He has also denied the suggestion that police has falsely involved the appellant in this case.

20. PW-9 Allah Bachayo, Civil Judge & Judicial Magistrate had conducted the identification parade. He has deposed that investigation officer produced accused Ishtiaq before him for holding identification parade through witnesses Muhammad Raheel and Mst. Hashmat Bibi on 09.07.2007 in Crime No.78/2007 for offence under sections 396/397/398, PPC. Judicial Magistrate conducted identification parade through the above named witnesses and stated that both the witnesses identified accused Ishtiaq by assigning the role to the accused. Judicial Magistrate was also cross-examined by the defence counsel and he denied the suggestion that witnesses had seen the accused before holding of identification parade.

21. PW-10 SIP Azhar Hussain Jaffri deposed that on 11.04.2007 he was posted at P.S. Al Falah as a duty officer and received information through 15 by ASI Asif at about 05:30 hours about the incident took place in House No.R-59, Ahsanabad in which three males and two females received injuries, who were taken to JPMC. Upon receipt of such information he rushed to JPMC and met with MLO, who informed him that one Muhammad Idrees had expired and other one is not in a position to record statement, whereas three injured are in operation theatre. SIO examined dead body of Muhammad Idrees and prepared such memo. He prepared inquest report. It is further stated that when he asked the legal heirs of deceased for postmortem, real uncle of deceased, namely Haji Liaquat refused to conduct postmortem. SIO recorded his statement at Ex.18/C. Other injured were not able to depose anything, therefore, he recorded 154, Cr.PC statement of Mst. Hashmat Bibi wife of injured Muhammad Rafiq and mother of injured and deceased. She disclosed that on 11.04.2007 at 04:30 hours, she was offering Tahajud prayers in her room, when six persons entered into the house through roof and on gunpoint snatched her gold bangles, earrings etc. and upon her hue and cry other family members had got up and when her son Muhammad Idrees and other family members resisted, then one of the accused started firing, therefore, her husband Muhammad Rafiq, sons Idrees and Ilyas, daughter-in-law Sidra and daughter Sakina received injuries. They were taken to JPMC but Muhammad Idrees expired and others were under treatment at hospital. Upon reaching at Police Station he lodged FIR No.78/2007 under sections 396/397/398/34 PPC against unknown accused persons. Investigation was entrusted to Incharge Investigation.

22. PW-11 SHO Inspector Changez Khan has deposed that on 11.04.2007 he was posted at Police Station Al-Falah, he received information at 04:45 a.m. that dacoity has been committed in House No.R-59. H along with subordinate staff reached at the abovementioned house and found crowd there. Injured persons were taken in Ambulance to the hospital. SHO inquired about the incident, he was informed that at Fajr pryer time Mst. Hashmat Bibi was performing Tahajud pryers, six dacoits entered into the house from rooftop and on gunpoint snatched bangles and fired upon the family members, in result whereof, Muhammad Rafiq, Ilyas, Sakina, Sidra and Idrees received firearm injuries. IO inspected the place of occurrence, secured 2 empties of 12 bore and 4 empties of TT pistol, bloodstained earth and went to the police station and FIR was lodged. Accused Ishtiaq was arrested in this case on 05.07.2007 and he was also under arrest in a case under Section 13(d) of the Arms Ordinance, 1965. During interrogation, he disclosed that he had committed this crime along with his 5 accomplices in Bungalow No.59. Accused pointed out the place of incident/house, IO prepared such mashirnama in presence of mashirs Muhammad Rafiq and Muhammad Ilyas. He was declared hostile to the extent of recovery of empties and securing blood. PW-12 Raja Tariq Mehmood, carried our investigation of this case. He has deposed that on 11.04.2007 he inspected the place of wardat and secured 2 empties of 12 bore, four empties of 30 bore and 2 bullets (sikka) on 05.07.2007. Accused Ishtiaq was arrested by SHO Al-Falah, namely, Chang Khan and a pistol was recovered from his possession. During the course of interrogation in this case, accused disclosed that he was involved in the commission of the crime. SHO took him to the place of incident, it was pointed out by the accused. SIO Raja Tariq Mehmood has stated that accused was identified by Muhammad Rafiq at spot and accused was arrested in this case and brought to the police station and accused was produced before the Judicial Magistrate for identification parade through eyewitnesses, namely, Muhammad Raheel and Mst. Hashmat Bibi. Identification parade was held on 09.07.2007 and accused was remanded to the judicial custody. Investigation officer in his cross-examination has admitted that accused hade made complaint against him before Judicial Magistrate regarding torture o 11.06.2007. Investigation officer had denied the suggestion that he was deposing falsely against the accused. It was the entire prosecution evidence brought on record against the accused.

23. We have carefully heard the learned counsel for the parties and have gone through the record of the case with their assistance.

24. After hearing the learned counsel for the parties and going through the record of this case with their assistance, it has been observed by us that prosecution is case is based upon the following pieces of evidence:

(i) Ocular account.

(ii) Identification parade

(iii) Recover of weapon from appellant’s possession and matched with crime empties.

(iv) Medical evidence.

(v) Evidence pertaining to the investigation of the case.

25. The record reflects that prosecution had produced as many as 5 eyewitnesses of the incident before the trial court out of them PWs Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina were injured witnesses, who had received injuries during the incident. PW-1 Hashma Bibi (complainant), Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina had consistently deposed before the trial court against the appellant and out of the said witnesses Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina had stamps of injuries on their persons so as to establish their presence at the time of commission of offence at the relevant time. During identification parade, eyewitnesses, namely, Mst. Hashmat Bibi and Muhammad Raheel pointed figure at the person of accused and all the eye witnesses before the trial court deposed that he was the accused and main member of the party of the decaoits who had committed the offence in the house of the complainant at the relevant time. All these eyewitnesses are natural witnesses. Incident occurred in the house, all the witnesses are family members and some of them injured. Accused had snatched ornaments of gold from them and remained in house for sufficient longtime. These eye witnesses had made straightaway and honest statements before the trial court and evidence of the eyewitnesses had not been solely question by the defence counsel before the trail court. These eyewitnesses had absolutely no background, ill-will or animosity against the present appellant prompting to falsely implicate the appellant in the case of this nature. Trial court has rightly relied upon the evidence of the eyewitnesses and we have no hesitation to disbelieve such confidence inspiring evidence.

26. As regards to the identification parade held on 09.07.2007, learned Judicial Magistrate has rightly conducted the same. No inherent defect or irregularity had been found by us in conducting such test. We have noticed that injured witnesses, namely, Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina were admitted in the hospital and identification parade was held through only PWs Hashmat Bibi and Muhammad Raheel, who picked up the appellant during the identification parade. The Honourable Supreme Court in the case of Solat Ali Khan vs. State (2002 SCMR 820) has observed as under:

“The figure and features of the appellant must have been imprinted on the minds of Mrs. Shahnaz Hamid (P.W) and Umer Shahid (PW.12) widow and son respectively of deceased Shahid Hamid. How they can forget the person who had committed this gruesome act of killing Shahid Hamid along with his driver and gunman? It is expecting too much from the complainant to point out the detailed description and features of the accused in the FIR as at that moment she must be undergoing a very traumatic condition?

PWs Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina had identified the present appellant before the trial court that he had actively participated in the dacoity and fired upon the deceased Muhammad Idrees. In absence of any motivation on the part of these witnesses to falsely implicate the appellant in this case, we have no hesitation to rely on such identification of the appellant as actual culprit who had, along with absconding accused, committed the offence. Appellant was arrested by the police in another case under Section 13(d) of the Arms Ordinance, 1965. During interrogation, he admitted the commission of the present offence.

27. The medical evidence had provided corroboration to the ocular evidence inasmuch as the date and time of occurrence. Ocular evidence is fully corroborated by the medical evidence. As regards to the contention of the defence counsel that postmortem examination of the deceased was not conducted. In Medical Certificate Ex.13/B, Dr. Afzal Ahmed Memon, MLO, JPMC has mentioned that deceased was brought in hospital dead, with history of fining during dacoity. Mere fact that postmortem examination was not conducted has no material effect or legal consequences for the reason that according to eyewitnesses deceased had sustained firearm injury. Non-performance of postmortem would not be fatal to the prosecution case as held by the Honourable Supreme Court in the case of Abdul Rehman vs. The State (1998 SCMR 1778). We, therefore, agree with the trial court that deceased Muhammad Idrees died unnatural death in the result of firearm injury as described by medical officer.

28. The arguments of learned counsel for the appellant that no light was available at the time of occurrence is devoid of any force as according to the case of prosecution, incident occurred in the double-storied house, complainant and her husband were offering Tahajud Prayers and Durood Sharif, it could not be presumed that Tahajud Prayers were being offered in a room which had no light. In this regard, we are fortified by the dictum laid down by the Honourable Supreme Court in the case of NASRULLAH KHAN & 2 Others vs. The State (2010 SCMR 881). Relevant portion is reproduced as under:

“3. We have carefully examined the contentions as agitated on behalf of petitioners and perused the judgment impugned with the eminent assistance of learned Advocate Supreme Court on behalf of petitioners. The question of identification has been dealt with in depth by scrutinizing the entire evidence which has come on record in a comprehensive manner and relevant portion of the judgment impugned is reproduced herein below for ready reference:---

"According to statement of the complainant, Muzaffar, Zulfiqar Ali and Tasneem Aslam had also witnessed the occurrence and that complainant and other P.Ws. could identify the assailants. The descriptions of the two accused who had entered into the room and resorted to firing was given in the statement. One of the accused was aged about 24-25 years, was of strong physique, was keeping beard his. height was about 5 feet 7/8 inches and was wearing `Shalwar Kameez', the other accused was of the height of about 5 feet 6/7 inches, he was of whitish complexion, had a strong physique was aged about 20-25 years and was wearing `Shalwar Kameez'.

It was also observed in the judgment impugned that "the identification test was conducted by P.W.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his statement, on oath, reveals that the witnesses while identifying the accused had also described the role played by them. Furthermore, all the P.Ws. identified the accused before learned trial Court and also specified their roles. The argument of the learned counsel that no light was available at the time of occurrence is devoid of any force as it cannot be presumed that the Daras was being given in a room which had no lights."

29. For what has been discussed above, we have arrived at a conclusion that prosecution had succeeded in establishing the appellant’s guilt of committing lurking house-tresspass by night and committed murder of deceased Muhammad Idrees beyond reasonable doubt. Death sentence passed against the appellant by the trial court is maintained, however, with slight modification under Section 460, PPC instead of Section 302(b), PPC in the view of circumstances of the case. Fine of Rs.30,000/- imposed upon appellant is enhanced to Rs.200,000/- and is converted to the compensation payable to the legal heirs of deceased Muhammad Idrees, in default thereof, appellant shall undergo S.I. for six months; remaining convictions and sentences are maintained.

30. The appellant had demonstrated for desperate character by indulging in extreme highhandedness in killing a young man inside of his own house after snatching ornaments of gold from the ladies. Normal sentence of murder is death. We have found that in the circumstances of the case, appellant deserves no leniency. Appeal is, therefore, dismissed and conviction and sentence of the appellant recorded by the trial court with above modification are upheld. Confirmation Reference made by the trial court is accordingly answered in affirmative.

J U D G E

Gulsher/PS