' MUHAMMAD NAWAZ ABBASI, J,--- The Criminal Petition No,127 of 2002 under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 27-3-2002 passed by a Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No,237 of 2000 and the murder reference pertaining to a case registered at Police Station Secretariat, Islamabad. The Criminal Petition No,183 of 2002 against the same judgment has been filed by Muhammad Zaafran seeking enhancement of the sentence of imprisonment of life awarded to Muhammad Tashfeen to death and both these connected petitions are proposed to be disposed of through this single judgment. The petitioners in Criminal Petition No,127 of 2000 faced trial before the Special Court Suppression of Terrorist Activities, Islamabad for the charges under sections 302/324/34, P.P.C. And 449/34, P.P.C. For the allegation of trespassing and causing injuries to the witnesses and committing Qatl-e Amd of Muhammad Akram deceased: The learned trial Judge having found the petitioners guilty of the above charges convicted and sentenced them as under:--
(a) Rigorous imprisonment for a term of ten years each with a fine of Rs,25,000 each and in default of the payment of fine to undergo R.I. For one year each under section 449, P.P.C.
(b) Rigorous imprisonment for a term of ten years each with a, fine of Rs,50,000 each and in default of the payment of fine to undergo R.I. For two years each under section 324, P.P.C. Half of the fine if recovered was directed to be paid as compensation to the injured witnesses.
(c) The sentence of death to Muhammad Tashfeen and imprisonment for life to Muhammad Saleem under section 302/34, P.P.C. For the charge of committing Qatl-e-Amd of Muhammad Akram and the payment of Rs,50,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased. In default of payment of compensation they were directed to undergo imprisonment for six month each. All the sentences of imprisonment imprisonment were directed to run concurrently with benefit of section 382-B, Cr.P.C.
2. The fateful occurrence had taken place at 9-00 a.m. On 11-11-1997 at the hair dresser shop of Muhammad Kamran brother of deceased situated in village Tarlahi District Islamabad within the area of Police Station Secretariat, Islamabad. The case was registered at 11-15 a.m. On the same day on the report lodged by Muhammad Kamran an injured witness.
3. The prosecution story briefly as contained in the statement of Muhammad Kamran complainant is that he was running a shop in the name and style of Purnam Hair Dresser in Tarlahi Kalan and on the fateful day at about 9-00 a.m. When he was present outside the shop, Muhammad Tashfeen intentionally collided with him as a result of which they exchanged hot words. The complainant lodged protest to Muhammad Saleem elder brother of Tashfeen who was present at a shop in the nearby but on the reply of Muhammad Saleem that he would not interfere in the matter, he went to his shop and with a short interval Muhammad Tashfeen and Saleem armed with Chhuris attacked at the complainant in his shop as result of which he and his two brothers namely Zaafran and Ikram who were present in the shop sustained injuries, but the matter was patched up with the intervention of the people present at the spot. After about ten minutes Muhammad Saleem armed with rifle, Tashfeen armed with .30 bore pistol and their father Muhammad Aslam armed with kalashnikov rifle rushed to the shop of complainant party and opened indiscriminate firing. The complainant sustained injuries as a result of shot fired by Muhammad Tashfeen whereas his brothers were hit by the firing of Saleem and Muhammad Aslam. The occurrence was witnessed by Mahmood, Barkat Hussain and a number of other persons present at the spot who removed the injured to the hospital for medical aid. The occurrence was the result of an earlier quarrel taken place between the complainant and Muhammad Tashfeen who were class fellows.
4. Initially the case was registered under sections 324, 452/34, P.P.C. And subsequently on the death of Muhammad Ikram in the hospital section 302, P.P.C. Was added.
5. The prosecution in proof of the charge produced 12 witnesses in all including the eye-witnesses, the doctor who medically examined the injured and conducted the post-mortem of the deceased and the Investigating Officer of the case.
6. The post-mortem of the deceased' conducted by Dr. Muhammad Arshad on 13-11-1997 revealed the following injuries on his person:--
(1) A wound of entry in the right iliac region 0.5 c.m. Diameter. This wound was 4 c.m. Above the inguinal fold. There was no burning/blackening or tattooing around the margins of the wound.
(2) A wound of exit on the right buttock just below the iliac crest and it was 3.5 c.m. On away from anal cleft.
(3) A wound of entry on the lateral surface of right forearm in the upper third region. There was no burning/blackening or tattooing. The wound was .5 c.m. Diameters.
(4) Wound of exit on the medical aspect of right forearm in the upper third part. The wound measuring .8 c.m. Diameter.
(5) Right paramedian incision. This was 8 inches in length with 12 black suture and this is the operation wound.
(6) A transverse incision of 3 inches length on the inguinal fold with 8 black sutures intact. An incision on the inner surface of height, 5 inches long with 8 black sutures intact.
(7) An incision on the inner surface of the height, 5 inches long with 8 black sutures intact.
(8) Colostomy wound on the left side of abdomen.
(9) Dirty blood-stained towards coming out from nose.
(10) A drainage hole on right side of abdomen.
7. In the opinion of doctor, death was caused due to extensive injuries on the abdominal organs.
The rest of injuries described by the doctor were due to operation.
8. The medical examination of Muhammad Kamran and Zaafran by the same doctor revealed the following injuries on their person:- "Injuries on the person of M. Kamran
(1) A wound of injury lateral aspect of left high margins was irregular with no blackening situated at upper one third.
(2) Wound of exit medial aspect upper one third of left thigh with ragged margins.
(3) Lacerated wound right hand 2 inches long, skin deep. Injuries on the person of Zaafran
(1) Wound of entry, left inguinal region with ragged margins.
(2) Wound of exit left buttock anal aspect."
9. Muhammad Saleem accused was also medically examined on the same day by the same doctor and following two injuries were found on his person:--
(1) A linear abrasion on right side of the cheek.
(2) An incised wound on the left chest back in scapular region, it was measuring 1.5 c.m. x 5 c.m.
Muscle deep. Identification mark was a black mole on the neck. X-ray of his chest was advised.
11. The injured eye-witnesses namely Muhammad Khuram (P.W.9) and Muhammad Zaafran (P.W.10) have narrated the story as contained in the F.I.R. Without any omission or addition or material discrepancy and contradiction. The witnesses being present at their shop at the time of occurrence sustained injuries in the occurrence at the hands of the accused and Muhammad Saleem (P.W.8) who claimed to have seen the occurrence corroborated them in each material.
Muhammad Hussain, Inspector (P.W.12) who conducted the investigation on receipt of information of the occurrence reached in the hospital and prepared the injury statements of the injured witnesses and deceased. The Inspector also prepared the injury statement of Muhammad Saleem accused and his brother Muhammad Naeem in the hospital on the same day and during the spot inspection recovered two lead bullets, a wooden piece of .12 bore gun from inside the shop and the empties of .30 bore pistol from outside the shop. Muhammad Saleem accused got recovered an unlicensed .12 bore gun from his residential house in presence of Muhammad Ramzan and Parvaiz Akhtar P.Ws. And a separate case was registered against him under Arms Ordinance, 1965.
Muhammad Tashfeen was arrested on 7-12-1997 and he led to the recovery of .30 bore pistol with five live bullets and two Chhuris on 11-12-1997 from his residential house. The petitioners in their statement under section 342, Cr.P.C. Taking defence plea denied the charge with counter-version.
Muhammad Tashfeen made the following statement:- "I am innocent. My involvement in the instant case is due to enmity with Kamran complainant who also roped me through the device of wider net. Virtually my brothers Muhammad Saleem and Muhammad Naeem were injured during the occurrence by the complainant party. Concededly, their inquiry statements were prepared and they were medically examined by the police immediately after the occurrence. My father has not participated in the occurrence and the role ascribed to him was belied during the investigation and the I.O. Too has categorically conceded that Muhammad Aslam had not participated in the occurrence and reached at the spot after occurrence and he was empty-handed. During the general investigation it transpired that Muhammad Aslam co-accused reached at the spot after the facts and circumstances no empty of kalashnikov or .222 rifle was recovered from the spot and therefore, use of kalashnikov and .222 rifle could not be established. The I.O. Thoroughly and minutely inspected the spot during spot inspection, he could not find any empty or kalashnikov or .222 bore rifle concededly. The complainant party introduced Muhammad Saleem P.W. At a belated stage and perusal of his cross-examination shall be revealing to the effect that his deposition is concoction simplicter. My brother Muhammad Saleem and Muhammad Naeem were produced by the I.O.
Before the C.M.O. Of PIMS Hospital and they were medically examined and due to non-availability of bed my brother Muhammad Naeem was shifted to Pakistan Institute of Medical Sciences. It is duly substantiated during trial that Kamran P.W. Had fired with .30 bore pistol at my brother Muhammad Naeem..."
11. The similar plea was taken by Muhammad Salem petitioner in his statement under section 342, Cr.P.C. The petitioners without making statement under section 340(2), Cr.P.C. Produced Muhammad Naeem as defence witness in support of their version.
12. The learned counsel for the petitioners has contended that by putting the defence version in juxtaposition to the prosecution story, the truthfulness of the defence version would be evident by the fact that Muhammad Naeem, who was not participant of the occurrence, was caused injuries.
Learned counsel added that the defence version was brought to the notice of police during the investigation and the fact that Muhammad Saleem and Muhammad Naeem sustained injuries in the occurrence would be strong circumstance to suggest that the accused party was victim of aggression of complainant party and they while acting in exercise of their right of self-defence caused injuries to the deceased and the witnesses. Learned counsel argued that the empties recovered from the spot were not found matched with the pistol recovered from Tashfeen and further according to the prosecution story he was responsible of causing fire-arm injury to Muhammad Kamran complainant and thus, in view the role attributed to Muhammad Tashfeen the sentence of death awarded to him was not justified. The learned counsel next argued that Muhammad Saleem was assigned the role of firing at the deceased with .12 bore gun but no pellet injury was found on the person of deceased, therefore, this fact alone would be sufficient to negate the prosecution story and in the light of the plea taken by Muhammad Saleem that he was dragged by the complainant party into their shop, a reasonable possibility would arise for the correctness of defence version and consequently the case against the petitioner for the purpose of conviction and sentence would squarely fall within the ambit of section 302(c), P.P.C.
13. Learned counsel for the petitioner in the connected Petition bearing No,183 of 2002 filed on behalf of Muhammad Zaafran for the enhancement of sentence of Muhammad Tashfeen has contended that the accused without any serious background of the enmity with preparation being armed with lethal weapon attacked at the complainant party at their shop. The learned counsel argued that the ocular account of injured witnesses seeking ample corroboration from the medical evidence and motive part of the prosecution story would evidently establish the aggression of accused, and that it was neither a case of self-defence nor of the sudden fight to bring it within the purview of section 302(c), P.P.C. The learned counsel questioning the legality of the sentence of Muhammad Tashfeen contended that the High Court for artificial reasons having come to conclusion that it was a case of emotions, patience and human frailty converted the sentence of death awarded to Muhammad Tashfeen by, the trial Court into life imprisonment. The learned counsel added that the .Active participation of both the convicts in the occurrence was established through the direct evidence of impeachable character and having taken part in the occurrence with common intention to kill were equally responsible for committing the capital offence and would not deserve any leniency in the matter of sentence.
14. We have heard the learned counsel for the parties at length and also perused the record with their assistance.The occurrence in the present case had taken place at about 9-00 a.m. In the broad daylight at the Hair Dresser Shop of the complainant party and the case was registered on the statement of Muhammad Kamran an injured witness within two hours at the Police Station Secretariat Islamabad situated at a distance of about 13 Kilometers from the place of occurrence.
The petitioners were nominated in the F.I.R. And were attributed the specific role of causing injuries to the deceased and the witnesses with their respective weapons in the shop of complainant. The petitioners have admitted the causing of the injuries to the deceased and witnesses, taking the plea of self-defence and in support of their version produced Muhammad Naeem their brother who also suffered injuries in the occurrence. We having given due consideration to the defence version find no substance in it and the mere fact that Muhammad Saleem petitioner and his brother Muhammad Naeem also sustained injuries in the occurrence would not by itself an evidence of aggression of the complainant party as the possibility cannot be ruled out that Muhammad Naeem sustained injuries as a result of firing of the accused party. Muhammad Saleem by taking the plea that he was dragged inside the shop by the complainant party has admitted that the firing took place inside the shop, which would give support to the prosecution version that the accused party while armed with lethal weapon with full preparation and premeditation entered into the Hair Dresser Shop and attacked at the complainant party.
15. The perusal of the record would not show that either the occurrence took place in the manner as suggested by the defence or it was sudden fight. The taking place of the occurrence in the shop of the complainant party and sustaining of fire-arm injuries by the witnesses and deceased at the hands of accused is admitted and this admission of accused would be the strong evidence of aggression of the accused and mere fact that Muhammad Naeem brother of the petitioners also suffered injuries in the occurrence would neither be enough to hold that it was a sudden quarrel and the accused acted in exercise of their right of self-defence.
16. The scanning of the evidence in the light of the prosecution and the defence version would exclude even a remote possibility of a slight truth in the defence version. The material facts relating to the taking place of occurrence in the shop of complainant party and sustaining of fire-arm injuries by the deceased and the witnesses at the hands of petitioners are admitted. The ocular account of two injured and natural witnesses being of unimpeachable character and confidence inspiring was alone sufficient to establish the charge but we find that in addition to the medical evidence and motive, the admission of the accused would provide a strong corroboration to the eye-witness account. It is settled principle of law that corroboration can be sought from the admission of the accused, the suggestion of the defence and also the attending circumstance of the, case and in the present case the accused in their statement under section 342, Cr.P.C. Have admitted the material fact, therefore, their conviction on the charge was unexceptionable.
17. We having considered the question of quantum of sentence find that the trial Court awarded extreme penalty of death to Muhammad Tashfeen on the ground that he was armed with pistol and the injuries on the person of deceased were also found that of pistol. However, the High Court converted the sentence of death awarded to him into life imprisonment on the ground that occurrence was not pre-planned or premeditated rather it was the result of emotion and patience.
The reasons given by the trial Court for awarding extreme penalty of death to Muhammad Tashfeen and also by the High Court for lesser penalty are not convincing. According to the prosecution story the specific role of causing injuries to deceased is attributed to Muhammad Aslam (since acquitted) who was armed with kalashnikov rifle and Muhammad Tashfeen was held responsible of causing injuries to Muhammad Kamran complainant and mere fact that he was armed with pistol would not be sufficient to hold him alone responsible for causing death of Muhammad Ikram. It being not clear in the evidence that who was exclusively responsible for causing fatal injury to deceased, the case of Muhammad Tashfeen would not be distinguishable to that of his co-accused Muhammad Saleem and consequently we are of the considered view that the sentence of imprisonment for life awarded to the petitioners would sufficiently meet the ends of justice.
' For the reasons given above we while maintaining the conviction and sentence awarded to the petitioners dismiss both the petitions. Leave is refused.