GHULAM QADIR Versus THE STATE

March 21, 2002 — LAHORE HIGH COURT LAHORE — Honorable Justice TANVIR BASHIR

ANSARI — Sardar Ahmed Khan , Malik Sadiq Mehmood Khurram , Mian Muhammad
Bashir — 2002 YLR 2117
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TANVIR BASHIR ANSARI, J. The judgment shall decide Criminal Appeal No.20 of 2000 and
Criminal Appeal No.26 of 2000, as both these appeals arise out of the same judgment dated
31‑5‑2000 passed by the learned Judge Special Court for Suppression of Terrorist Activities,
Bahawalpur Division Bahawalpur.

2. Khan Muhammad son of Pehlwan, Ali Hassan son of Sikandar, Rab Nawaz son of Karim Bakhsh
and Ghulam Qadir son of Allah Ditta were tried for the offences punishable under sections
148/149/395/396/ 397/324/412, P.P.C. The learned trial Judge convicted Rab Nawaz, Ali Hassan
and Ghulam Qadir and sentenced them as under: ‑‑

(i)Under sections 396/149, P.P.C.

Rab Nawaz, Ali Hassan and Ghulam Qadir were awarded death sentence. They were directed to be
hanged by neck till they were dead.

(ii)Under sections 148/149, P.P.C.

They were convicted and sentenced to 3 years' R.I. each.

(iii)Under sections 449/149, P.P.C.

They were convicted and sentenced to 5 years' R.I. and a fine of Rs.5,000 each or in default
thereof to undergo 6 months S. I.

(iv)Under sections 324/149, P.P.C.

They were convicted and sentenced to 7 years' R.I. and a fine of Rs.5,000 each or in default
thereof to undergo 6 months S. I.

The convicts were directed to pay a sum of Rs.60,000 each as compensation under section 544‑A,
Cr.P.C. to the legal heirs of both the deceased Mehdy Khan and Ghulam Hussain separately and to
pay a sum of Rs.40,000 each as compensation to P.W. Muhammad Azam or in default thereof to
undergo 6 months S.I. All the sentences were ordered to run concurrently. However, the benefit of
section 382‑B, Cr.P.C. was extended to each of them. Accused Khan Muhammad was, however,
acquitted of the charge giving him the benefit of doubt.

3. All the three convicts/ appellants have filed Criminal Appeal No.20 of 2000 against their
sentences and convictions whereas the State has filed Criminal Appeal No.26 of 2000 against the
acquittal of Khan Muhammad accused.

4. According to the case of the prosecution, the occurrence took place on 21‑2‑1998 at about
8‑00 p.m. when the complainant Major (R.) Muhammad Akram being Manager Admn. was present
in his office of Ashraf Sugar Mills Ltd. Ashraf Abad, Bahawalpur. All of a sudden, 8/10 persons
armed with Kalashnikov, pistols and mouzers trespassed into the Mill offices and rushed towards
the Accounts Branch. First of all, they struck Muhammad Akram, Security Guard with the butt of
their Kalashnikov and snatched his rifle. Then, one of the accused fired a shot at Akbar Khan, the
other Security Guard, which hit him on his right leg who fell down alongwith his rifle which was
picked up by the accused. Thereafter, all the accused broke open the lock of the Iron Grill and
entered the Accounts Branch. They tried to break the Iron Safe of the Accounts Branch with the
burst of their fire weapons in order to take away the cash lying therein. However, they could not
succeed. In the meanwhile, there was commotion all around and the Security Staff and other
employees of the Mill rushed to the place of occurrence. Faced with this situation, the accused
started indiscriminate firing resulting into the death at the spot of Ghulam Hussain, Security
Supervisor and Mehdey Khan; Security Guard. At the same time, Muhammad Azam, Security
Officer, Muhammad Zaman, Time Officer and Muhammad Akhtar, Operator were also seriously
injured. All the culprits then made good their escape alongwith the four rifles bearing Nos.7677,
9075, 3326 and 8925 which they snatched from the deceased and the other security staff. The
matter was immediately reported to the police whereupon a criminal case was lodged with Police
Station Musafar Khana.

5. Abdul Rashid, S.‑I./S.H.O. visited the place of occurrence, secured a number of empty cartridges
fired from Kalashnikov acid other lethal weapons alongwith live bullets and sealed them
accordingly. He also secured blood‑stained earth pertaining to deceased Mehdy Khan and
Ghulam Hussain. He further prepared the injury statements of the deceased as well as the other
injured Muhammad Zaman, Akbar Khan, Muhammad Azam and Muhammad Akhtar. He
despatched the dead bodies for post mortem examination alongwith their inquest reports and
also referred the injured for their medical examination.

6. The matter remained under investigation as the accused were not being traced and it was on
23‑8‑1998 when Khan Muhammad, Ali Hassan, Rab Nawaz and Ghulam Qadir were arrested in
this case who were carrying certain weapons (unlicenced) with them. As no one was nominated in
the F.I.R. and identification of the accused became a crucial issue, the identification parade was
held on 27‑8‑1998 in the New Central Jail, Bahawalpur. Muhammad Azam and Muhammad Akmal
being eye‑witnesses took part in the identification parade. Out of them Muhammad Azam
identified Ghulam Qadir, Ali Hassan and Rab Nawaz whereas Muhammad Akmal failed to identify
any of the accused. All the accused pointed out the place of occurrence. Out of them Khan
Muhammad and Ghulam Qadir led to the recovery of rifles so stolen away from the place of
occurrence. whereas Rab Nawaz led to the recovery of Kalashinkov on 6‑9‑1998. After completion
of the investigation, the challan was submitted before the Court for trial.

7. Dr. Syed Sajjad Hussain P.W.9 conducted the autopsy of Mehdy Khan on 22‑2‑1998 and found
the following injuries on his person:‑

(i) There was an oblique lacerated wound measuring 1.5 c.m. x 1 c.m. blind deep on right supra
clavicular fosal just above medial and of right end of right clavicle. Edges were inverted (Entrance
wound) Clotted blood was present around the wound;

(ii) There was an oblique 2.5 c.m. x 1 c.m. x blind deep lacerated wound on left lateral aspect of
left chest and was 18 c.m. infero‑lateral to the left, nipple. Edges were everted (exit wound)
clotted blood was present around the wound.

(iii) There was an oblique 8 c.m. x 2 c.m. x bone is fractured gutter shaped through and through
lacerated wound of front of upper 1/3rd of left leg and was 5 c.m. below the left knee joint. Edges
were inverted in medial half and everted in lateral half;

(iv) There was an oblique 4 c.m. x 5 c.m. x joint cavity deep lacerated through and through wound
on front of right knee joint. On dissection, joint cavity was opened and medial condyle of right
femur was found fractured;

(v) There was an oblique lacerated wound measuring 2 c.m. x 3 c.m. x bone exposed through and
through on front of left ankle joint. On dissection, the underlying bones were intact.

All the injuries were ante‑mortem in nature and were caused by fire‑arm weapons. Probable time
between injuries and death was within 15 minutes while probable time between death and
post‑mortem was within 12‑24 hours. He issued the post‑mortem report Exh. PS and its diagram
Exh. PS/1. He also signed the inquest report and injury statement of the deceased vide Exhs.PT
and PU.

On the same day, he further conducted the autopsy of deceased Ghulam Hussain and found the
following injuries on his person:‑

(i) There was an oval lacerated wound measuring 0.5 c. m. x 0.5 c. m. x blind deep present on left
arm on its upper 1/3rd, 8 c.m. below head of left humerus. Edges were inverted (Entrance wound);

(ii) There was an oblique 1 c.m. x 0.5 c.m. x blind deep lacerated wound on outer aspect of right
chest, 5 c.m. below the right arm pit. Edges were everted. (Exit wound).

(iii) There was an oblique 1 c.m. x 0.5 c.m. x blind deep lacerated wound on front of upper 1/3rd
of left thigh. Edges were inverted and blackened. There was marked tatooing in an area of 5 c.m. x
3 c.m. around the wound. (Entrance‑ wound). It was 8 c.m. below anterior/superior illiac supine
(left).

(iv) There was an oval 1 c.m. x 0.75 c.m. lacerated wound on outer aspect of upper half of left
thigh and was 15 c.m infro‑lateral to the left anterior superior illiac supine. Edges were everted.
(Exit wound). On dissection of injury No.3, the projectile went downwards on outwards on
outwards and towards left thigh. The soft tissue of left thigh made tract and brushed the soft
tissues and went out through injury No.4.

All the injuries were ante‑mortem and were caused by fire‑arm weapons: Probable time between
injury and death was within 10 minutes while between death and post‑mortem was within 12‑24
hours. He issued the report of post‑mortem and the diagram vide Exhs. PV and PV/1. He also
signed the inquest report and injury statement of the deceased vide Exhs. P.W. and PX.
7. Dr. Muhammad Siddique P.W.11 examined the injured Muhammad Zaman, Akbar Khan,
Muhammad Azam and Akhtar Hussain on 21‑2‑1998 and found the following injuries on their
person:‑

(i) There was an entry wound with inverted margins about 1/2 c.m. x 1/2 with ragged margins on
the left side of the chest anteriorly in the second intercostal space with oozing blood. No surgical
emphysima palpable. X‑Ray chest was advised;

(ii) A lacerated wound with ragged irregular and everted margins about 3 c.m. x 4 c.m. alongwith
outer border of scapula in the 4th inter costal space. It was an exit wound;

(iii) Two wound on the antero‑medial aspect of left arm about 1 c.m. x 2 c.m. each, 5 c.m. apart
and muscle deep. It looked as if one was an entry wound and other exit wound.

No neuro‑vescular deficit in the left upper limb. Breath sounds audible on both sides with few soft
crepitaties.

Injuries Nos. 1 and 2 were kept under observation while injury No.3 was declared "Ghayr Gaifah
Mutallahimah". All the injuries were caused by fire‑arm and the duration of the injuries were
within 1‑2/2 hours. The patient was admitted in the Surgical Ward No.4 on the same day. He
issued the medical legal certificate Exh. PZ with a sketch showing seat of injuries vide Exh. PZ/1.
He also signed injury statement Exh. PZ/2.

(i) There was an entry wound with inverted margins about. 1 c.m. x 1 c.m. on the lateral aspect of
right groin with burn smoke;

(ii) There was an exit wound with inverted margins of about 3 c.m. x 4 c.m. muscle deep on the
right buttock with ragged and irregular margins. No vascular deficit.

Both the injuries were caused by fire‑arm and were of the nature of "Ghayr Gaifah Mutalahimah".
The probable duration of injuries was within 1‑2/2 hours. The patient was admitted in the Surgical
Ward No.4 on the same day. He issued the medico legal certificate Exh. PAA with the sketch
showing seat of the injuries Exh. PAA/1. He also signed the injury statement vide Exh. PAA/2.

(i) There was swelling on the left side of the face at sub‑mandibular region. Left mandible was
fractured and crepitus was felt. He was feeling difficulty while opening his mouth.

(ii) There was an entry wound with inverted margins 1 c.m. x 1 c.m. on the right side of neck. There
was heamatoma at the root of the neck. X‑Ray of neck was advised.

(iii) There was a lacerated wound 1 c.m. x 1 c.m. with inverted margins at right axile at anteriar
axiliary. X‑Ray chest was advised. Breach wounds on right side of chest was diminished.
Neuro‑muscular status of the axilae was normal.

According to the surgical notes, tracheostomy was done and haemothoras on the right lung was
noted. Injury No. 1 was caused by blunt weapon while injuries Nos.2 and 3 were caused by
fire‑arm. Injury No. 1 was "Shajjah‑i‑Hashimah" in nature whereas injuries Nos.2 and 3 were
"Jaifah". All the injuries were caused within 1‑2/2 hours. Patient was admitted in the Surgical Ward
No.4 on the same day. He issued the medico legal certificate vide Exh. PBB and also signed the
injury statement vide Exh.PBB/1 already prepared by the police.

(i) 1/2 c.m. small lacerated wound with inverted margins at the lateral side of the upper thigh.

(ii) 3 cm. x 2‑1/2 c.m. lacerated wound with everted margins at the upper medial aspect of the
right thigh.

(iii) Lacerated wound at postero‑medial aspect of the right knee measuring 1 c.m. x 1‑1/2 c.m.
muscle deep.

(iv) 3" x 2" lacerated wound on the lateral aspect of left lower thing. Margins were inverted. X‑Ray
of both thighs and knee were advised.

The patient was admitted on the same day in ortho‑ward. All the injuries were caused by fire‑arm
weapons and were kept under observation. Probable duration of injuries were within 1‑2/2 hours.
He issued medical‑legal certificate Exh. PC with a sketch showing seat of the injuries vide Exh.
PCC/1. He further signed the injury statement vide Exh. PCC/2.

9. In support of its case, the prosecution examined as many as 17 witnesses.

P.W.1 Major (R.) Muhammad Akram is the Manager Admn. Ashraf Sugar Mills who was present on
his duty at the time of occurrence. He made the report Exh. PA and himself filed the same in Police
Station Musafar Khana. He further deposed that on his return after lodging the report, he saw the
dead bodies of Mehdy Khan and Ghulam Hussain deceased. He also stated to have seen
Muhammad Azam, Akbar Khan and Muhammad Akhtar in an injured state.

P.W.2 Muhammad Akmal, Security Guard was on duty on the date and time of occurrence. He is
an eye‑witness who stated about the assault by the accused on his person and the snatching of
his official rifle. He affirms the firing by the accused at Akbar Khan, Security Guard who was
injured. He also stated that the culprits broke the lock and the Iron Grill of the Accounts Branch
and forcibly entered the said Branch. The culprits then fled after causing indiscriminate firing and
as a result, Muhammad Azam, Security Officer, Muhammad Akhtar and Muhammad Zaman
received injuries. Ghulam Hussain, Security Supervisor and Mehdy Khan. Security Guard were
murdered as a result of the tiring. This witness had also taken part in the identification parade but
was not able to identify any of the accused.

P.W.3 Muhammad Azam, Security Officer was present on duty at the time of occurrence and
according to his statement, he was confronted by 7/8 culprits who were armed with Kalashnikov
and .30 bore pistols, one of whom directly fired upon this P.W. One shot hit him on the left side of
his face while the second fire injured him on the right side below his neck. He stated that he fully
recognized his assailants and also identified Ali Hassan accused present in the Court as such
attacker. This witness also took part in the identification parade held on 27‑8‑1998. He identified
the accused Rab Nawaz, Ali Hassan and Ghulam Qadir with certainty during the identification
parade. He was not able to identify the 4th accused namely Khan Muhammad.

P.W.10 Tariq Javed, MIC Bahawalpur confirmed having conducted the identification parade held in
Central Jail; Bahawalpur on 27‑8‑1998. He deposed that the 4 accused were intermingled with
35/36 other prisoners who were arranged at random in different rows. Muhammad Azam P.W.3
was called for identification whereupon he identified Ali Hassan, Ghulam Qadir and Rab Nawaz
but could not recognize Khan Muhammad accused. He denied any suggestion if identifying P.Ws.
were briefed about the identity of any accused.

P.W.11 Dr. Muhammad Siddique examined Muhammad Zaman, Akbar Khan, Muhammad Azam
and Akhtar Hussain, all of whom were injured during the occurrence. He verified their injuries as
per his reports on the record.

P.W.13 is Abdul Majid, A.S.I. who deposed regarding the arrest of the Lour accused, on 23‑8‑1998.
Khan Muhammad was armed with Kalashnikov, Rab Nawaz with a 7MM rifle while Ghulam Qadir
and Ali Hassan were empty‑handed. All the four accused were arrested, as none of them had any
licence in respect of the weapons in their possession. 27 live bullets were recovered from the
Kalashnikov while 4 live bullets from the rifle of Rab Nawaz. Ghulam Qadir was driving Truck
No.SLA‑3375 in which the accused were traveling.

P.W.16 Muhammad Afzaal, S.I. stated to have recorded the statement of Muhammad Azam P.W.
under section 161 Cr.P.C. on 4‑3‑1999. He also stated to have submitted the supplementary
challan wherein the said Muhammad Azam was shown as one of the witnesses.

P.W.17 Jam Manzoor Ahmad, S.‑I. stated that on 23‑8‑1998, he stopped a Truck No.SLA‑3375 and
arrested all the four accused. According to him, Khan Muhammad was armed with Kalashinkov
with 27 live bullets while Rab Nawaz was armed with 7MM rifle with 4 live bullets which were
taken into possession. Ghulam Qadir was found in possession of Rs.7,000 which were also
recovered from him. The truck was also taken into custody. He further deposed that on 24‑8‑1998
all the accused were produced before the Magistrate and they were sent on judicial remand in the
Central Jail, Bahawalpur. On 27‑8‑1998, the identification parade of all the four accused was
conducted in the Jail. The statement of the Magistrate who conducted the identification parade
was recorded on 28‑8‑1998. He further deposed regarding the pointation of the place of
occurrence, by all the four accused. He also stated about the recovery of 7MM rifle upon the
pointation of Ghulam Qadir and the recovery of one Kalashnikov upon the pointation of Rab
Nawaz accused.

He identified the handwriting and signatures of Abdul Rashid, S.I. and brought on the record
exhibits, so prepared and signed by Abdul Rashid, S.I. who had since proceeded abroad on official
duty.

10. The other P.Ws. were by and large formal in nature. After tendering in evidence the reports of
Chemical Examiner vide Exh.PKK and Exh. PKK/1 and of Serologist vide Exh. PLL and Exh. PLL/1
and also the report of Forensic Science Laboratory, Lahore vide Exh. PMM, the prosecution closed
its evidence.

11. All the accused in their statements under section 342, Cr.P.C. refuted the prosecution
allegations leveled against them. They also repudiated being in possession of any weapon of
offence or having led to its recovery. They all termed the identification parade to be a fake show.
They further maintained that they have been involved at the instance of Jam Manzoor Ahmad, S.I.
who hails from Tehsil Sadiqabad where, his brother Toty Khan was living like a terrorist and had
differences with them. None of the accused got himself examined on oath no led any oral or
documentary evidence in their defence.

12. The learned trial Judge believing the prosecution evidence, convicted and sentenced the
appellants as indicated above.

13. Sardar Ahmad Khan, Advocate for the appellants has challenged the judgment of the learned
trial Court on the grounds that the accused were not named in the F.I.R. nor their physical features
mentioned therein. None of the culprits was arrested at the time of occurrence. Their subsequent
arrest on 23‑8‑1998 and the delayed identification in the identification parade held on 27‑8‑1998
was a result of police manipulation and that no credence can be placed upon such identification.
He placed reliance upon the case of Mushtaq Ali Kalhoro and two others v. State (1996 PCr.LJ
1315) in contending that the delayed identification by person who could have, if at all, only a
fleeting glimpse of the assailants was not worthy of reliance. It was contended that the injured
witness Muhammad Akmal failed to recognize any of the accused during the identification
parade. He further stated that it was incumbent upon the identifying witness (es) to attribute
specific role and weapon of offence to each of the accused. He next contended that the
eye‑witness account produced by the prosecution was sketchy and insufficient. Elaborating his
submissions, it was urged that admittedly the complainant Major (R.) Muhammad Akram, Admn.
Manager who appeared as P.W.1 was not an eye‑witness of the occurrence. He lodged the report
upon hearsay version made to him by Inam Ullah, Telephone Operator who was not produced in
evidence. It was stressed that out of the injured persons mentioned in the F.I.R., Muhammad
Zaman, Muhammad Akhtar and Akbar Khan were also not produced by the prosecution.

The learned counsel for the appellants pointed out irregularities in the investigative process. He
referred to the fact that the statement under section 161, Cr.P.C. of Muhammad Azam was
recorded at a very belated stage on 4‑3‑1999 and that this would denude his statement of all
legal value. The name of Muhammad Azam, according to him, was not even mentioned in the
original calendar of witnesses. These defects, it was urged, would vitiate the entire trial.

It was lastly contended that no offence under section 396, P.P.C. was made out. According to the
learned counsel there was no evidence on the record to prove the offence of dacoity or murder
during the dacoity. He made reference to the provisions of section 396, P.P.C. and also cited the
rule laid down in the case of Shyam Behari v. State of Uttar Pradesh (PLD 1957 Supreme Court
(India) 281).

13. On the other hand, Mian Muhammad Bashir, Assistant Advocate‑General, Punjab for the State
and Mr. Sadiq Mahmood Khurram, Advocate for the complainant have supported the judgment of
the learned trial Court. It was contended that the ocular account rendered by P.W.1, P.W.2 and
P.W.3 was cogent and consist ant. The recoveries of a large number of empties fired from
different types of fire‑arm weapons, the murder of two Security Personnel at the spot and injuries
to many others, the medical evidence on the record regarding the injured and the deceased and
last but not the least, the manner of arrest and identification had proved the guilt of the
appellants upto the hilt. According to the learned counsel there eras sufficient evidence of
attempt to commit dacoity and that the offences as established by the learned trial Court were
fully made out.
14. We have considered the arguments advanced by the learned counsel for the parties and
learned A.A.‑G. for the State and have reviewed the entire evidence produced by the prosecution,
the statement made under section 342, Cr.P.C. and all the attending circumstances of the case.

15. The occurrence took place on 21‑2‑1998 at 7‑45 p.m., the F.I.R. was promptly lodged on 8‑15
p.m. on the same day by Major (R.) Muhammad Akram, Admn. Manager P.W.1. He is a truthful
witness when he does not claim to be the eye -witness of the occurrence itself, although, he was
present in his office within the Mills premises. Aman Ullah who rendered the eye witness account
to him and on the basis of which the complaint was made, accompanied P.W.1 to the Police
Station and was present when the F.I.R. was registered. P.W.1 may I not have been an eye‑witness
of they occurrence during its commission, yet he confirmed the murder at the spot of Ghulam
Hussain, Security Supervisor and Mehdy Khan, Security Guard whose dead bodies lay at the spot
when first report was made. He also deposed about seeing Muhammad Azam, Akbar Khan and
Muhammad Akhtar is an injured condition. The evidentiary value of the statement of such a
witness cannot be brushed aside on the ground that he was not an eye‑witness of the occurrence
itself.

16. The eye‑witness account was given by Muhammad Akmal, Security Guard P.W.2 and
Muhammad Azam, Security Officer P.W.3, both of whom sustained direct injuries during the
occurrence. Both P.W.2 and P.W.3 narrated in details how the attempted dacoity took place. Both
of them deposed that they were present near the main office of the Ashraf Sugar Mill when 8/10
persons armed with lethal weapons trespassed there. First of all, they deprived Muhammad Akmal
of his rifle and then caused fire shot to Akbar Khan, Security Guard and after picking up his rifle,
entered the main Accounts Office and tried to get the iron "Safe" opened when in the meanwhile,
P.W. Muhammad Azam confronted them who was also fired at by .30 bore pistol which hit him on
his face and neck. He fell down there. During the course of committing dacoity, these culprits had
further injured Muhammad Azam, Akbar Khan and Muhammad Akhtar and also caused the
murder of Mehdy Khan and Ghulam Hussain with fire shots.

17. The investigation in the case, immediately after the occurrence was conducted by Abdul
Rashid, S.I./S.H.O. Police Station Musafir Khana who proceeded to the spot and secured two
empties and a live bullet of Kalashnikov rifle under a memo. Exh. PB, a broken lock P.3 vide Exh.
PC, 10 empties of Kalashnikov P.4/1‑10 and three empties of .30 bore pistol P.5/1‑3 and 15
empties of Kalashnikov P.6/1‑1 under a memo. Exh. PE. He also secured the blood stained earth in
respect of the deceased Ghulam Hussain and Mehdy Khan vide Exh.PF and Exh.PG. All the articles
except broken lock were sealed on the spot. He also drafted a site plan without scale vide
Exh.PKK. He then prepared the injury statements inquest reports of the deceased Mehdy. Kban
and Ghulam Hussain vide Exh.PU and Exh. PT and Exh.PX and Exh.PW respectively, and
despatched the dead bodies to the hospital for post‑mortem examination. On the same day, he
further prepared the injury statements of the injured Muhammad Zaman, Akbar Khan, Akhtar
Hussain and Muhammad Azam vide Exh.PZ/2, PAA/2, PCC/2 and PBB/1 and referred them to the
medical officer for their examination. On 22‑2‑1998, he also secured the moulds of the feet of the
culprits under a memo. Exh. PR. On the same day, he also took into possession the last worn
clothes of the deceased Mehdy Khan and Ghulam Hussain vide Exhs.PHH and PJJ. Abdul Rashid,
S.I. has since left abroad on official duty and all documents signed by him were brought Jam
Manzoor Ahmad, S.‑I. P.W.17 who was his successor and also well‑acquainted with his signatures.
P.W.4 Muhammad Ishaq son of Sher Muhammad is an attesting witness to the securing of crime
empties, broken lock and the blood‑stained earth of both the deceased vide memos Exhs.P.B, P.C,
P.D, P.E, P.F and P.G. He also received the dead bodies of both the deceased after their
post‑mortem examination vide Exhs.P.J and P.H.

18. P.W.4, P.W.6 and P.W.7 though formal witnesses in nature have fully corroborated the
investigative process carried out by the first Investigating Officer. The exhibits made by the said
Investigating Officer were proved and brought on the record through the statement of the
subsequent Investigating Officer P.W.17 Jam Manzoor Ahmad. The medical evidence which
compromises of the autopsy report of the two deceased and the medical report regarding the
injuries to the staff of the Mill also corroborate the eye‑witness account.

19. In view of the foregoing, the contention of the learned counsel for the appellants that
sufficient ocular evidence of the occurrence was not produced is without force and is repelled.

20. The next contention raised on behalf of the appellants relates to the validity of the
identification parade conducted on 27‑8‑1998 wherein Muhammad Azam P.W.3 identified the
appellants. It is true that the accused were not nominated in the F.I.R. They were not apprehended
till 23‑8‑1998 when they were arrested in the manner stated by P.W.13 Abdul Majeed, A.S.I.
Special Squad and Jam Manzoor Ahmad P.W.17. The identification parade which was necessitated
by the circumstances of the case took place in the Central Jail Bahawalpur on 27‑8‑1998. The
report of identification is Exh.PY and is duly authenticated by Tariq Javed, MIC P.W.10. The details
of the identification parade have been narrated both by P. W .10 and P. W .17. Muhammad Azam
P.W.3 categorically stated thjt he had recognized the appellants with certainty in the proceedings
on 27‑8‑1998. He was subjected to lengthy cross‑examination but nothing has been elicited from
him which could militate against his depositions. He is an injured eye‑witness. Injuries have been
confirmed through medical evidence. While making his statement, Muhammad Azam has
pinpointed appellant Ali Hassan. who fired shots at him. Nothing has been brought on the record
by the appellants which indicates any material irregularity in the conduct of the I identification
parade. In such circumstances, no interference in the result of the identification parade is called
for. The reliance is placed upon the case of Muhammad Ashfaq and others v. The State and others
(2000 SCMR 308). Although, P.W.2 failed to recognize the appellants in the identification parade,
this fact on its own is not sufficient to discredit the testimony of P.W.3 which has to be evaluated
according to its own intrinsic evidentiary value.

The case cited as Mushtaq Ali Kalhoro (supra) by the learned counsel for the appellants is
distinguishable. In that case, the identification parade was held after the period of about 6 months
of the arrest. It was found therein that the proceedings were not confidence‑inspiring and that it
was not assured that the persons identifying the accused of the said case had no access to the
accused before the identification or that they were not briefed about the identity of the accused
before hand. No such material is discernible in the instant case. Another distinguishing feature in
the present case is that the identification has been made by a witness who was himself injured
during the occurrence.

The argument that as P.W.3 only had a fleeting or a momentary glimpse of his attacker, he could
not identify effectively after a lapse of 6/7 months has, in the circumstances not impressed us. As
a result, the challenge to the proceedings is not sustainable.
21. The next submission of the learned counsel for the appellants that the delay icy recording of
the statement of Muhammad Azam P.W.3 under section 161, Cr.P.C. would vitiate the entire trial is
also devoid of force. This lapse of the Investigating Officer concerned has been taken note of by
the learned trial Court. Such lapses on the part of the Investigating Officers do create difficulty in
the way of investigation and are strongly deprecated. However, such an irregularity alone shall not
have the effect of detracting from the case of the prosecution if it is otherwise established on the
record. Delay in recording the statement under section 161, Cr.P.C. itself would not cause any
prejudice to the accused if the copies of the said statement are provided to him before the said
witness is produced at the trial. Delayed recording of the statement under section 161, Cr.P.C. is
not fatal to the case of the prosecution when no prejudice has been alleged to have been caused
to the accused.

22. To appreciate the contention raised by the learned counsel for the appellants that no case
under section 396, P.P.C. was made out, it is necessary to refer to the provisions of sections 391,
395 and 396, P.P.C. which are reproduced asunder:‑‑

Section 391, P.P.C. Dacoity.‑‑‑When five or more persons conjointly commit or attempt to commit
a robbery, or where whole number of persons conjointly committing or attempting to commit a
robbery, and person present and aiding such commission or attempt, amount to five or more,
every person so committing, attempting or aiding is said to commit "dacoity".

Section 395, P.P.C. Punishment for dacoity.‑‑ Whoever commits dacoity shall be punished with
imprisonment for life or with rigorous imprisonment for a term which shall not be less than four
years nor more than ten years and shall also be liable to fine.

Section 396, P.P.C. Dacoity with Murder.‑‑‑If anyone of five or five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity, everyone of those
persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a
term which shall not be less than four years nor more than ten years, and shall also be liable to
fine.

23. The real question that arises in this case is that as to what act or series of acts constitute
dacoity. The necessary ingredients of dacoity is that when five or more persons conjointly commit
or attempt to commit a robbery, each of such person shall be said to commit dacoity. It is not
necessary to complete the offence that actual robbery is perpetrated by such number of accused
persons: The offence in such a case shall commence as soon as the culprits enter upon the
premises which is intended to be the target of the offence. In other words, the act of the accused
when they formed the unlawful assembly, in prosecution of their common objective and entered
the premises of the Mill, armed with deadly weapons with an intention to commit robbery, the
offence under section‑396, P.P.C. would be complete if murder is committed during the course of
this continuous series of acts. The reliance placed upon Shyam Behari's case (supra) by the
learned counsel for the appellants is not apt. In that case, the accused numbering more than five
attempted to commit robbery at the house of M. On hue and cry which was raised, they fled
without committing robbery. The accused were chased by a villager and when one of the dacoit
was caught hold of, the accused thereupon fired a pistol shot and killed the deceased in the case.
It was in those circumstances, that it was held that the murder was not committed during the
commission of dacoity. In the instant case, however, the murders took place in the premises of the
Mill during the course of the attempted dacoity. The reference to the aforementioned judgment
shall not advance the case of the appellants.

Viewed in this perspective, this contention of the learned counsel for the appellants is
misconceived.

24. The learned trial Court has passed a well‑reasoned judgment and upon the review of law and
facts of the case, we do not feel pursuaded to express a different view. Resultantly, there is no
merit in this criminal appeal which is hereby dismissed. The sentence of death awarded to each of
to appellants is confirmed. The case of P.Us. namely Shabbir Chachar, Hussaina, Ashiq Jhullan and
Manthar Khosa shall be dealt with in accordance with law when they are apprehended.

25. As far as Criminal Appeal No.26 of 2000 is concerned, the learned trial Court has rightly
extended the benefit of doubt to Khan Muhammad accused as he was not identified by
Muhammad Azam P.W.3 during the course of identification parade. The reason given by the said
witness for not having identified the acquitted accused that he (P.W.3) had been suffering from
fever is not plausible and was rightly not relied upon by the learned trial Court. There is no
sufficient material on the record to incriminate the acquitted accused.

26. Learned Assistant Advocate‑General, Punjab has contended that all the four accused including
Khan Muhammad were arrested together and in a similar manner and that, recoveries are also
attributed to him. This argument does not impress us as the recovery alleged to have been made
upon the pointation of Khan Muhammad has been disbelieved by the learned trial Court and his
arrest all together with the appellants in Criminal Appeal No.20 of 2000 would not by itself be
sufficient to warrant his conviction.

27. Resultantly, Criminal Appeal No.26 of 2000 is also dismissed.

N.H.Q./G‑175/L Appeal dismissed.