MUHAMMAD HAROON Versus STATE

1. HAZIQUL KHAIRI, J. -- By this judgment we propose to dispose of three Criminal Appeals Nos.121 of 1991 filed by Muhammad Haroon and Fahim Siddiqui, 131 of 1991 filed by Khurram Sharif and 137 of 1991 filed by Shakil Ahmed Khanzada, against the judgment dated 12-5-1991 passed by the learned Special Court III, Suppression of Terrorist Activities at Karachi, whereby the appellants Muhammad Haroon, Fahim Siddiqui and Khurram Sharif were convicted and awarded death sentence while appellant Shakil Ahmed Khanzada was convicted and sentenced for transportation for life. Each of the appellants were awarded fine of Rs.10,000 and in default R.I. for one year with direction that if the amount of fine is realised, half may be paid to the heirs of the deceased.

2. The facts of the case are that on 27-4-1989 at about 13-40 hours the complainant and P.W.4 Muhammad Ali Awan who is the father of the deceased Iffat Awan and a retired Air Force Officer was sitting in his House No.2/38-A, Block 2, Shah Faisal Colony, Karachi, alongwith his wife Mrs. Zainab Awan and two daughters, namely, P.W.6 Azra Awan and Iffat Awan deceased when at 13-40 hours the bell of the house rang from the northern side gate of the house. He got up to go there. In the meantime his two daughters Iffat deceased followed by Azra Awan went towards it. From the dining room he heard the deceased asking "who is there"? twice. But there was no reply. Thereafter he heard his daughter Iffat Awan again "who is there?" and "what is it?" and after a little while "what is it that you want?" In the meantime he heard his second daughter Azra Awan shouting "daddy.. daddy save us". Immediately thereafter the witness heard a shot being fired. The witness quickly rushed to the southern verandah when second shot was fired and saw two persons with arms standing outside the northern verandah. They were having arms like revolver or T.T. Pistols. He saw appellant Haroon who was standing near the gate on the northern side of the house but he could not say whether he was armed or not as the northern gate was closed. According to him the northern gate is about six feet in height but there are cut away portions on the top and hence it is possible to see the upper portion of the body of any person standing outside the gate. He also saw appellant Khurram coming down from the northern verandah of house armed with a weapon, bigger than a pistol and may be a carbine. These persons opened the northern gate and went away. He identified appellants Shakil, Haroon and Khurram in the Court. After the incident had taken place he saw his daughter Iffat Awan (deceased) lying unconscious in front of the northern verandah. There was hole on left side of her body over her heart. She was taken to Fauji Foundation Hospital, where the doctors advised him to take her to Jinnah Hospital. She was, however, taken to Agha Khan Hospital, and in the operation theatre she breathed her last. Police recorded his statement as Exh.4/A, when he reached his house which bears his signature. Police also inspected the house particularly the place of occurrence. He produced before the police two empties of bullets which were marked in Court as (Article "A"). They were found lying outside the northern verandah of the house. Police also recorded his further statement. Later he was put to an identification test by a Magistrate when appellants Khurram and Haroon were identified by him. His statement was also recorded under section 164, Cr.P.C. which he produced in Court as Exh.4/B. In his cross-examination he had stated that he neither knew any of the accused persons previously nor is aware of their residence. There used to be curfew in the area due to ethnic disturbances but when the incident had taken place there was relaxation in the curfew timings in that area. After the incident, the witness deposed that one Yaqoob Baig's son living in the same street had come to his house and helped them put Iffat Awan (deceased) in the car when they were leaving the house for hospital. After six months of the incident he went to the police station to enquire about the progress of the case. The identification test by the Magistrate was conducted on 23-5-1989 about 4 to 5 weeks after the incident and he was informed by the Police Officer to appear before the Magistrate at City Court. His daughter Azra Awan and two other witnesses namely Iqbal and Riaz were also put to identification test. In cross-examination the witness totally and repeatedly denied that he was shown the accused persons before identification test. It was admitted by him that he did not see appellant Fahim Siddiqui inside his house at the time of incident. In his statement Exh.4/B recorded under section 164. Cr.P.C. he had stated that after hearing first shot of fire, he went out and saw accused Khurram, Haroon Shafiqur Rehman and Shakil Khanzada.

3. Besides P.W.4, Muhammad Ali Awan, the prosecution had examined P.W.1 Ghulam Shabbir, Police Constable/Process-Server, P.W.2 Mauladad Khan, Sub-Inspector/Ballistic Expert, P.W.3 Asghar, Booking Clerk Imperial Cinema, P.W.5 Ijaz Baig, a student, P.W.6 Azra Awan, sister of deceased, P.W.7 Wali Muhammad Awan, Bank Officer and brother-in-law of deceased, P.W.8 Dr. Amanullah, Medical Practitioner and MA.O. at Annah Post- Graduate Medical Centre, P.W.9 Muhammad Riaz, Electrician, P.W.10 Rao Muhammad Iqbal, A.S.I., P.W.11 S.D.M. Mirpur Methelo, and P.W.12 Abdul Sattar S.H.O. of Police Station Shershah and also statements recorded under section 164, Cr.P.C.

4. The deposition of P.W.4, Muhammad Ali Awan the complainant and father of the deceased was corroborated by his other daughter P.W.6, Azra Awan, who was also residing in the said house at the time of incident and was in fact an eye-witness. In addition to what P.W.4 had deposed she stated that her sister Iffat Awan (deceased) was at a distance of 25 feet from the gate and was behind her about the same distance she saw two persons standing outside the gate of her house and identified one of them in Court as appellant Haroon. After a few moments when the deceased asked "who is there?" she saw two armed persons coming from the direction of the north side verandah. One of those two persons was Shakil (pointing out to him in Court) who was perhaps carrying a carbine (Article "G"). On seeing two armed persons coming towards Iffat Awan (deceased) she got very scared and started shouting "daddy.. daddy". She saw absconding accused Shafiqur Rehman coming to northern verandah of house towards her sister from where he fired at her close to her heart. While going away, he again fired at her. Before the accused Shafiqur Rehman could fire at the deceased she shouted, "What's the matter?" On receiving first shot, she fell down. The second shot fired by the accused Shafiqur Rehman had passed by her side and did not hit her. She had also seen Khurram Sharif and Fahim Siddiqui appellants with fire-arms running away and was identified by her in Court. She deposed that she knows one Mirza Ijaz Baig who is residing in her area, and had come down to her house after the incident. At the time she was griefly upset because of the incident and was busy in taking her sister Iffat Awan (deceased) to hospital. The police came to her house twice on the day of incident. Second time the police recorded her statement. By that time the witness came to know the names of all the accused throughout her neighbour Mirza Ijaz Baig. Prior to this incident she did not know Mirza Ijaz Baig. Her statement Exh.6/A was also recorded under section 164, Cr.P.C. before the Magistrate. On 23rd May 1989 she was put to an identification test by the Magistrate in City Court. She deposed in cross-examination that in her statement under section 164, Cr.P.C. she had not stated that she had learned the names of accused through their neighbour Mirza Ijaz Baig. She deposed that she went with her father to the City Court. She subsequently came to know that the house of Mirza Ijaz Baig is very close to her house on the southern side. Only a road separates his house from her. It was stated that her father was inside the house when the first shot was fired by the accused Shafiqur Rehman but by the time Shafiqur Rehman fired -the second shot her father came out and saw the second shot being fired. The culprits were standing outside the gate at a distance of 5 to 6 feet.

5. Ijaz Baig P.W.5 a resident of same area Shah Faisal Colony in his examination-in-chief had stated that the appellants were known to him personally by name. On the day of incident at 1-30 p.m. he was sitting outside his house when he saw six boys strolling in front of his house. Out of those six boys four were present before the Court. He pointed out to appellants Khurram Sharif, Muhammad Haroon, Fahim Siddiqui and Shakil Ahmed Khanzada whereas other two were Iqbal and Shafiqur Rehman who were not present before the Court. He deposed that out of these six persons Iqbal Ahmed (absconding accused) and appellant Fahim Siddiqui came to him and asked for drinking water. The witness told them that -he was fasting and went inside his house. Just after he went inside the house he heard fire shot. According to him, he had not seen any weapon in their hands when he saw them first time but on hearing the gun shot when he came out of his house he saw all the 4 appellants present in Court alongwith absconding accused Shafiqur Rehman and Iqbal Ahmed running away having arms with them. Giving details he stated that Iqbal Ahmed absconding accused who is not present appeared to be carrying a longish type of gun while appellants Shakil Ahmed and Khurram were armed with pistol type of weapons. Immediately he rushed towards the house of complainant Muhammad Ali Awan as the gun shots appeared to have come from the direction of the complainant's house. On going to the house of complainant he found his daughter Iffat Awan lying in front of the front gate of the house. The complainant was also present there. He stated that the complainant took his daughter in a car to hospital. By then number of people gathered there and police had come to the spot and recorded his statement. He also produced photostat copy of his statement recorded under section 164, Cr.P.C. as Exh.5/A.

6. P.W.7 Wali Muhammad Awan, is the brother-in-law of the deceased who upon receipt of information that the deceased had received a bullet injury, rushed to her house at about 4-00 p.m. In his presence two empty cartridges were recovered by the police. In cross-examination he deposed that the police reached there within 30 to 40 minutes when he was also examined. He produced Mashirnama as Exh.6/8. He learnt from P.W.5 Ejaz Baig that appellant Khurram Sharif, Haroon, Fahim Siddiqui and Shakil Khanzada and two others, namely, Shafiqur Rehman and Iqbal Ahmed had killed his sister-in- law Miss Iffat Awan.

7. P.W.9 Muhammad Riaz deposed that at about 12/1-00 p.m. he was going to find his partner Abdul Razzak who was residing in Drigh Colony. When he crossed Block No.2 of Drigh Colony (Shah Faisal Colony) he found the accused (pointing out towards Fahim Siddiqui, Khurram Sharif and Muhammad Haroon) with fire-arms alongwith another culprit who was not present before the Court. They were firing at a house (which he came to know belonged to the complainant) coming out from it. One of the culprits had T.T. pistol while the others had some arms like rifle. He went to police and was examined. He also identified the three accused Fahim Siddiqui, Khurram Sharif and Muhammad Haroon during the identification parade in presence of Magistrate where about 30/40 persons were standing in the line. The statement of the witness under section 164, Cr.P.C. was also recorded by the Magistrate.

8. P.W.10 Rao Muhammad Iqbal is S.I. of Police Station Gadab, according to whom on 10-5-1989 he received a spy information about appellant Fahim Siddiqui who was arrested by S.H.O. Abdul Sattar Detho in his presence and in the presence of P.Ws. Asghar and Zafar Farooq and another Mashir Zafar Farooq. A Klashnikov loaded with magazine, a plastic bag containing 21 live cartridges and another magazine with 8 cartridges were recovered from his person (Exhs.PA., P.B. and P.C.). Mashirnama was prepared on the spot as Exh.11. In cross-examination it was stated by him that during investigation in his presence Fahim Siddiqui informed the police of the involvement of appellants Haroon and Khurram Sharif in the crime and that they were available in Block No.3 of Shah Faisal Colony, where accused Khurram Sharif and Haroon were found sitting on Thalla in the street. Both the said accused were arrested. On personal search a pistol containing 4 live cartridges was secured from Haroon in the presence of Mashirs. Similarly, on personal search of accused Khurram Sharif one Carbine was recovered from the fold of his Shalwar in the presence of the Mashirs. In so far as the appellant Shakil Khanzada is concerned, on 29-10-1989 he was arrested from Colony Gate in the presence of Mashirs A.S.I. Rao Muhammad Iqbal and P.C. Samiullah, as per Mashirnama of arrest (Exh.13/D).

9. P.W.3 Asghar is a Booking Clerk at Imperial Cinema. In his presence on a date in May 1989, which he does not remember around 8-30 or 9-00 p.m., a few feet away from Chowrangi No.3, Shah Faisal Colony, Karachi, the police party arrested the appellant Fahim Siddiqui and recovered from him a Klashnikov wrapped by him around his body. This Klashnikov was fitted alongwith a magazine containing 40 live rounds. The appellant had failed to produce licence for the Klashnikov. Mashirnama was prepared on the spot. The witness has testified his signatures on the Mashirnama which was exhibited as 3/A and also a Klashnikov and magazine with 40 live rounds. He and the second Mashir went to the police from where the appellant Fahim Siddiqui led the police party and the 2 Mashirs to the Flour Mill in Shah Faisal Colony where on the pointation of appellant Fahim Siddiqui, two other appellants Haroon and Khurram Sharif who were standing outside the Mill were arrested by the police. The police also recovered from appellant Haroon a pistol which was hidden by him in the fold of his trousers and the pistol was fitted a magazine with 4 live rounds. Similarly, the police in his presence and in the presence of other Mashirs searched the person of accused Khurram Sharif who had also concealed a carbine inside the Chadar around his body. The appellant Khurram Sharif had failed to produce any licence for Carbine. This witness has produced Mashirnamas as Exhs.3/B and 3/C.

10. The prosecution had also produced P.W.11 Abdul Sattar Detho S.H.O. Police Station Shah Faisal Colony, Karachi. In examination-in-chief the P.W. stated that on 27-4-1989 he was S.H.O. of Police Station Faisal Colony. On that day during the patrolling he received information of the incident. On receiving such information the witness reached the place of incident and there he came to know that due to firing Miss Iffat Awan got injured and she had been taken to hospital by the complainant. The witness remained at the place of Wardat when complainant arrived. He told the witness that Miss Iffat Awan, his daughter, had died. The witness deputed A.S.I. who was there, to get the dead body from Agha Khan Hospital and directed him to take the same to Jinnah Hospital for post-mortem. The witness also passed message to S.I. Iqbal Hussain Shah to reach Jinnah Hospital in order to complete the requirement under section 174, Cr.P.C. The witness recorded the statement of complainant Muhammad Ali Awan under section 154, Cr.P.C. and sent it to Police Station Shah Faisal Colony for registration of the case. The witness deposed that Exh.4/A was the same statement which was recorded by complainant and bore his signature. The P.W. received F.I.R. of the case from Police Station Shah Faisal Colony for further investigation. The F.I.R. Exh.13/A was recorded by H.C. Nasiruddin and bore his signature. The witness visited the place of Wardat and secured two empties and prepared Mashirnama Exh.8/A in presence of Mashirs Wali Muhammad Awan and Maqbool Hussain which bore his signature and the signatures of witnesses. P.W. Abdul Sattar Detho examined Mrs. Zainul-Awan, Miss Azra Awan and Mirza Ejaz Baig and others. In the meantime S.I. Iqbal also arrived at the place of Wardat and handed over the inquest report of the memo of inspection of the dead body. The witness had examined Qasim Ali Shah and Muhammad Riaz. On 10-5-1989, the witness received spy information that accused Fahim Siddiqui was available near Shams Flour Mills, Block 3, Shah Faisal Colony: On getting such information the witness rushed to the pointed place and found accused Fahim Siddiqui there. The witness arrested the accused Fahim Siddiqui in the presence of the Mashirs A.S.I. Rao Iqbal, Zafar Farooq and Asghar. This witness after the arrest of appellant Fahim Siddiqui till the arrest of other two appellants namely, Haroon and Khurram Sharif has fully corroborated the deposition of P.W.10 Rao Muhammad Iqbal and has testified the articles of recovery and produced Mashirnamas. It was on 20-5-1989 that this witness had requested Mr. Shahzad Ali Naqvi, who at that time was A.C.M. Court No.IV, Karachi East for holding of identification parade and statement of P.Ws. under section 164, Cr.P.C. being Exh.12/C. Subsequently, he issued notices to P.Ws. The identification of the appellants was held under the supervision of P.W.12 when their statements under section 164, Cr.P.C. were also recorded. The property of the case was sent to Ballistic Expert after completing the investigation. On 29-10-1989 the witness arrested the appellant Shakil Khanzada from the Colony Gate in the presence of P.W.10 and P.C. Samiullah and produced the Mashirnama of arrest as Exh.13/D. This witness had also identified appellants Fahim Siddiqui, Shakil Khanzada, Haroon and Khurram Sharif.

11. The prosecution has also produced P.W.11 Syed Shahzad Ali A.C.M. Court No. V, Karachi-East. The witness deposed that on 20-5-1989 he was posted as A.C.M. when he received a request from S.H.O. of Police Station Shah Faisal Colony for holding identification parade in Crime No.152/89 of Police Station Faisal Colony P.W.10 and fixed 23rd May, 1989 for holding the identification parade. At about 2-00 p.m. on 23-5-1989 the identification parade was held in the Court. The accused were mixed with 30 different persons of the same age and stated that all the legal formalities for completion of identification parade were made. He stated that he called the witnesses separately one by one. P.Ws. Muhammad Ali and Azra identified Haroon and Khurram but did not recognize accused Fahim Siddiqui. P.W. Muhammad Iqbal identified all the accused. The witness said that he prepared such memo after identification and produced it as Exh. 12/B and S.H.O.'s letter as Exh.12/A and memo of identification parade; as Exh.12/B which bears his signature and also deposed that those 3 accused were the same persons in Court. On 20-5-19.39 S.H.O. also requested for recording the statement of P.W. under section 164, Cr.P.C. The P.W. fixed 23-5-1989 for recording statement. The copies of 164, Cr.P.C. statements of P.Ws. were supplied to police the same day and the statements were sealed in the envelope containing the statements under section 164, Cr.P.C. as Exh.12/D to Exh.12/J.

12. The prosecution has also produced and examined P.W.7 Dr. Amanullah on Exh.8 who produced Exh.8/A (post-mortem report) in which it is mentioned in external examination that a female about 20 years age was examined and in column 13 fire-arms injury left side chest medial side of the left breast 1/4" margin, rough, inverted (wound of entry) was found. On internal examination the following damages were found: -

(1) Chest cavity full of blood.

(2) Through and through hole found left lung, heart and right lung, heart empty.

13. Bullet lodge bag of mid of right chest was sealed and handed over to Sub-Inspector Syed Iqbal Hussain, clothes of the deceased were also sealed and handed over to the same Sub-Inspector.

14. On the external as well as internal examination the doctor gave the opinion that the death of deceased cast cardio respiratory failure, resulting from severe haemorrhage, shock caused by fire-arm. Time between death and post-mortem was about 3 to 4 hours and the above injuries were sufficient to cause the death in normal course of life.

15. P.W.1 Ghulam Shabbir is a Police Constable/Process-Server at Shah Faisal Colony Police Station East. He was entrusted with non-bailable warrant of accused Iqbal Ahmad and Shafiqur Rehman. He has returned N.B.Ws. of the said accused as unexecuted as Exhs3 and 4. P.W.2 Moula Dad Khan Ballistic Expert produced Exhs. 2/a, 2/b, 2/c and 2/d and stated that he had examined pistol recovered from the appellant, and also compared the marks up ruing on the two crime empties as Exhs. C/1 and C/2 He further examined the crime empties and test empties with the aid of comparison microscope and prepared at the chart Exh.2/C also his report Exh.2/D. In short, the marks of firing on the crime bullet corresponded with and were in agreement with the marks of firing on the test bullet.

16. The appellant Khurram Sharif has produced D.W.1 Muhammad Sharif his father, D.W.2 Muhammad Yamin Washerman and D.W.11 Noor-ul -Huda a family friend. The appellant Fahim Siddiqui has produced D.W.3 Shamsul Haq, his brother, D.W.7 Muhammad Saleem and D.W.8 Babu Khan his neighbours. Appellant Haroon has produced D.W.4 Zahoor Ahmed, D.W.5 Haji Muhammad Munsif, D.W.6 Mustafa Hussain neighbours and D.W.9 Haji Imam Din his father.

17. The defence of appellant Khurram Sharif was that he was a member of M.Q.M. and on the date of incident on 27-4-1989 he had gone to Tando Allah Yar for fixation of date of his marriage. His father D.W.1 Muhammad Sharif Khan has produced marriage card of his son. Both D.W.2 the Washerman as well as D.W.11 Shaikh Noor-ul-Huda have supported his version of being out of station on the date of incident. According to the latter appellant Khurram Sharif s father was released after the appellant was produced from Tando Allah Yar on 8-5-1989 at the police station.

18. The defence put up by Fahim Siddiqui appellant through his witness D.W.3 was that he was also a member and office-bearer of All Pakistan Mohajir Unit of the Government College of Technology. The police party took him from his house on the night in between 29th-30th April, 1989 at about 2/3 a.m. and asked him to accompany it to the house of Qasim Shah where the appellant Fahim Siddiqui has gone and in his presence the police apprehended Qasim Shah and appellant Fahim Siddiqui. It was stated by him that in those days Pakistan People's Party's Government was victimizing the Mohajirs. It was further stated by him that nothing was secured from the appellant Fahim Siddiqui at the time of his arrest. D.W.7 Muhammad Saleem and D.W. Babu Khan who reside in front of the house of Qasim Shah had stated that Fahim Siddiqui was arrested from the house of Qasim Shah on 29-4-1989. None of them saw anything being recovered from the said appellant.

19. The defence put up by appellant Haroon as per D.W.5 Haji Muhammad Munsif, D.W.6 Mushtaq Hussain, D.W.10. Jamal Ahmed Khan his neighbours was that on 29-4-1989 in the Holy month of Ramazan he and his father Haji Imam Din were taken away by police from their house and no weapon was recovered from them. D.W.9 Haji Imam Din father of appellant Haroon has also stated to the same effect.

20. Mr. Azizullah K Shaikh learned counsel for Muhammad Haroon and Fahim Siddiqui in Criminal Appeal No.121 of 1991 urged before us that it is not a fit case for conviction of the appellants Muhammad Haroon and Fahim Siddiqui as mere presence of accused persons at the place of incident was not sufficient to warrant their conviction for murder. In a situation such as this, proof of some overt act by the said appellants was necessary. None of the prosecution witness has stated anywhere of any overt act committed by the said two appellants resulting in murder of the deceased.

21. Reference was made by learned counsel to the case of Hassan v. State 1969 S C M R 454 in which it was held:--

22. "It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence of being a member, of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty-handed and he did not assault Suleman, as was stated by P.W.3."

23. Next case cited by him was Hassan v. Muhammad Mushtaq 1978 SCMR 49, wherein also it was held that mere presence of accused does not necessarily attract section. 34 of the Penal Code. Lastly reference was made to the case of Abdul Karim and 2 others v. The State P L D 1971 Kar. 239 in which while dealing with section 302 read with section 34 of P.P.C. a Division Bench had held that where the appellant was neither armed nor having knowledge that other co-accused have knives with them, nor they had preconcerted with co-accused and accused persons appeared to have met deceased only by chance and the appellant accused had only given fist blow, it was held that he could not have shared common intention of co-accused to kill the deceased.

24. Next contention raised by Mr. Azizullah K Shaikh was that the statements of prosecution witnesses under section 161, Cr.P.C. recorded after delay of many hours are unreliable and could not be taken into account by the learned trial Judge. In this regard learned counsel made reference to Ismail and 3 others v. The State 1983 P Cr. L J 823 and Sikandar v. The State P L D 1963 SC 17. According to him the learned trial Judge has heavily relied upon a chance witness who was examined by the police after great deal of delay, and it would be unsafe to rely upon his deposition. In Muhammad Rafiq v. The State 1974 P Cr. L J 391, Wajtakkar was examined by the police after lapse of 1-1/2 months. Reliance was also placed on Muhammad Sadiq and another v. The State P L D 1960 SC 226.

25. It was next contended by Mr. Azizullah K Shaikh that there was inordinate delay in sending, articles of recovery to Ballistic Experts, which would be fatal to the prosecution case, resultantly benefit must go to the accused persons. Reliance in this regard was placed on Allah Hando v. The State 1969 S C M R 714, Muhammad Hafiz and another v. The State 1978 P Cr. L J 27, Sultan Ahmed and another v. The State 1987 S C M R 1177, Ali Haider v. The State 1981 P Cr. L J 97 and Daniel Boyd and another v. The State 1992 SCMR 196.

26. Learned counsel for appellant Khurram Sharif Mr. Iqtidar Ali Hashmi and learned counsel for appellant Shakil Ahmed adopted the arguments advanced by Mr. Azizullah K. Shaikh, Advocate and also placed reliance on his citations. No case-law was, however, cited by the learned Additional Advocate -General in rebuttal. .

27. The case of Hassan v. The State 1969 S C M R 454 relied upon by the learned counsel is not applicable to the facts of the present case. In the cited case the appellant was charged for rioting but he was neither found armed with deadly weapon nor there was anything to suggest that he alongwith others in pursuance of the common object joined the unlawful assembly to have attacked and murdered one Ilam Din. His mere presence was not considered to warrant his conviction. The present case is clearly distinguishable in which six persons with arms having common object to murder the said victim assembled together and as such section 34 of P.P.C. is applicable. Similarly the case of Hasan Din v. Muhammad Mushtaq and Abdul Karim (supra) has no relevance to the present case, as again it is not a case of the presence of the accused persons at the site of the crime but clearly brings them into the ambit of section 34 of Pakistan Penal Code.

28. With regard to delay in regarding the statement of prosecution witnesses in Ismail and 3 others v. The State 1983 P Cr. L J 823 (supra) there was a delay of 8 days and no explanation for such delay was forthcoming for which reason the statement was ruled out for consideration.

29. Similarly in Muhammad Sadiq and another v. The State P L D 1960 SC (Pak.) 2234, no credibility was attached to the evidence of a friend of the deceased who had not disclosed to anyone for nearly 24 hours of the murder of the deceased and no attempt was made by him to save the latter. In this regard reference was made by the learned counsel to the evidence of P.W.

30. Muhammad Riaz who had failed to disclose to anyone what he had witnessed on 27-4-1989 and as late as 29-4-1989 he was examined by the police. The delay in reporting by him would lead to irresistible conclusion that he is a false and made up witness. It was pointed out that whereas neither P.W.4 Muhammad Ali Awan nor P.W.6 Azra Awan saw appellant Fahim inside the house nor firing by anyone except Shafiqur Relunan he saw appellant Fahim alongwith Khurram Sharif and Muhammad Haroon firing at the house. In other words, he contradicts the version of the prosecution and his testimony cannot be believed in. We fully agree with learned counsel for the appellants and are of the view that the delayed reporting of the incident by P.W.9 Muhammad Riaz at the police station has no evidentiary value.

31. Now reverting to the evidence on record, there is nothing to establish any enmity between the deceased or her family members with the accused persons. The defence put up by the appellants, however, is to the effect that they were implicated because they belonged to M.Q.M. and the P.P.P. Government had become hostile to it. What, however, stands established beyond doubt is that P.W.4 Muhammad Ali Awan, P.W.6 Azra Awan and P.W.5 Mirza Ijaz Beg had no reason to implicate the appellants falsely in the case. No suggestion as such was put to them in cross-examination by any of the accused persons. At the same time, the appellants were identified by them before the Magistrate and/or before the trial Court. The complainant P.W.4 Muhammad Ali Awan, P.W.6 Azra Awan had identified appellants Haroon, Khurram Sharif and P.W.5 Mirza Ijaz Beg had identified appellants including Fahim Siddiqui. It was rightly observed by the learned trial Judge that the version of the eye-witness P.W.6 Azra Awan appears to be correct word by word without any material contradiction. Her version is supported by P.W.4 Muhammad Ali Awan father of the deceased whose deposition in all material respects corroborated with the statement of P.W.6. As to the deposition of P.W.5 Mirza Ijaz Beg, he saw all the six accused persons before and after the incident and identified the appellants in Court. His testimony further strengthens the prosecution case and was in line with the deposition of P.W.4 and P.W.6. He is a resident of the area and knew the accused persons personally. His description of the fire-arm, as layman is substantially correct as observed by the learned trial Court. He found the deceased lying in front of the verandah and saw her being taken away to the hospital by P.W.4 and P.W.6. There is no suggestion that he was inimical to the accused persons so as to falsely implicate them. He has fearlessly and honestly deposed as to what he saw. His deposition has remained unshaken and inspires confidence.

32. The contention of learned counsel for appellants that P.W.4 Muhammad Ali Awan did not give their names in the F.I.R. has no force as they were total strangers to him and reflects truthfulness 8f this witness.

33. The delay in lodging the F.I.R. for 2/3 hours is also explainable as the deceased was immediately taken to the Agha Khan Hospital. The medical evidence also supports the prosecution case and has remained unshaken.

34. However, with regard to the report of the Ballistic Expert it was contended by learned counsel for appellants. that there was inordinate delay of about 7/8 months in despatching of parcels of crime weapon to Chemical Examiner. Here it is an admitted position that the appellants were also involved in another criminal case under section L3-D of Arms Ordinance in which the case property was required and the delay was explainable. However, even if there had been no report of Ballistic Expert there was sufficient material to warrant conviction of the appellants. It may also be stated here that the deposition of the Ballistic Expert had gone un-rebutted and none of the appellants cared to cross-examine him:

35. With regard to the evidence adduced by the appellants, none of the learned counsel for appellants has placed any reliance on it and not even referred to it during the course of their arguments before us. However, in view of strong prosecution case establishing beyond doubt the guilt of the appellants, the evidence adduced by the appellants cannot be relied upon and C appears to be made up and even otherwise not substantiated. The appeals, therefore, have no merits and are hereby dismissed.

36. The learned trial Court had convicted and sentenced Shakil Khanzada to transportation for life (which stands amended to imprisonment for life) and not death sentence for the reason that he did not carry any fire-arm, whereas other appellants had carried fire-arms with them. This reasoning does not appeal to us. In view of the fact that the appellant had common intention to commit the said criminal act, in the circumstances of the case all should be awarded the same punishment. We, therefore, reduce the death sentence p awarded to the appellants Haroon, Fahim and Khurram to imprisonment of life and maintain the conviction and sentence of Shakil Khanzada which will also be imprisonment for life. All the appellants will, however, be entitled to the benefit of section 382-B of the Criminal Procedure Code.

37. HUSSAIN ADIL KHATRI, J.--- I agree.

38. N.H.Q./M-19/K Sentence reduced.