' ASIF SAEED KHAN KHOSA, J.--- Tanveer Ahmad alias Terri and his brother namely Shabbir Ahmad alias Sandoo, appellants were convicted for an offence under section 302(b)/34, P.P.C. Vide judgment dated 8-2-2000 handed down by the learned Additional Sessions Judge, Lahore and Tanveer Ahmad alias Teeri appellant was sentenced to death whereas Shabbir Ahmad alias Sandoo appellant was sentenced to imprisonment for life. They were also ordered to pay a sum of Rs,50,000 each to the heirs of Muhammad Aslam deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months each. Tanveer Ahmad alias Teen appellant was further convicted for an offence under section 337- F, P.P.C. And was sentenced to rigorous imprisonment for one year and to pay a sum of Rs,5,000 to the injured complainant namely Muhammad Aslam by way of compensation or in default of payment thereof to undergo rigorous imprisonment for one month. The benefit under section 382- B, Cr.P.C. Was extended to Shabbir Ahmad alias Sandoo appellant. Through the same judgment the learned trial Court had acquitted the appellant's co-accused and brother namely Nazeer Ahmad alias Nazeera. Both the appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,136 of 2000 which has been heard by us along with Murder Reference No,69 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against Tanveer Ahmad alias Teen appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Muhammad Aslam complainant was a resident of Block No,601/8 D.S. Office, Carson Club, Boghi Road, Lahore and he used to run a video shop. At about 4-00 p.m. On 13-9-1996 the complainant's cousin namely Muhammad Aslam (deceased) and Tanveer Ahmad alias Teeri appellant had an altercation with each other but the two had been separated by their friends and on that occasion Tanveer Ahmad alias Teen appellant had left while extending threats. About an hour later the complainant and his cousin namely Muhammad Aslam (deceased) were sitting outside the Carson Club when Tanveer Ahmad alias Teen appellant came there with his two brothers namely Shabbir Ahmad alias Sandoo, appellant and Nazeer Ahmad alias Nazeera acquitted co-accused. Nazeer Ahmad alias Nazeera accused raised a Lalkara that Muhammad Aslam (deceased) was to be taught a lesson for quarreling with their brother whereafter Shabbir Ahmad alias Sandoo appellant caught hold of Muhammad Aslam (deceased) and Tanveer Ahmad alias Teen appellant took out a Chhuri from the fold of his trousers and gave three repeated blows with it in the abdomen of Muhammad Aslam (deceased). When the complainant lunged forward to rescue the deceased he too received a Chhuri blow on his left hand. Upon the hue and cry raised by the complainant and others Malik Shaukat Ali and Imran Shuja P.Ws. Were attracted to the spot and they saved the deceased and the complainant from the clutches of the appellants and their co-accused. Thereafter the appellants and their co-accused left the spot while raising Lalkaras. The complainant and the deceased were then taken to Mayo Hospital, Lahore by their friends for treatment. A statement made by Muhammad Aslam complainant in respect of the alleged incident was recorded by Manzoor Ahmad, A.S.-I. (P.W.1) at 9-30 p.m. At Chowk Garhi Shahoo, Lahore subsequently formal F.I.R. No,105 was registered on the basis of the same at Police Station, Garhi Shahoo, Lahore at 9-40 p.m. On 13-9-1996 for an offence under section 324/34, P.P.C. Upon the subsequent death of Muhammad Aslam deceased on 18-9-1996 section 324 was substituted by section 302, P.P.C. In the F.I.R.
3. After registration of the F.I.R. The investigation of this case was conducted by Manzoor Ahmad, A.S.-I. (P.W.11) who arrested the appellants and their co-accused, effected recovery of a blood- stained Chhuri from the possession of Tanveer Ahmad alias Teeri appellant and after completion of investigation prepared a challan in this case which was subsequently submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302/34, and 337-F/34, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced twelve witnesses in support of its case against the appellants and their co-accused. Muhammad Aslam complainant (P.W.4), Malik Shaukat Ali (P.W.1) and Imran Shuja (P.W.2) furnished the ocular account of the incident in question. Muhammad Aslam, complainant (P.W.4) and Malik Shaukat Ali (P.W.1) also deposed about the motive. Pervaiz Aslam (P.W.9) proved the recovery of blood-stained Chhuri from the possession of Tanveer Ahmad alias Teeri appellant during the investigation of this case.
The medical evidence was provided by Dr. Bilal Ahmad Dar (P.W.13) and Dr. Sabahat Butt (P.W.14).
Manzoor Ahmad, A.S.-I. (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Nazeer Ahmad alias Nazeera but, after finding the prosecution's case against them to have been proved beyond reasonable doubt, convicted and sentenced the appellants as mentioned and detailed above.
Hence, the present appeal and the connected murder reference before this Court.
5. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against Shabbir Ahmad alias Sandoo appellant beyond reasonable doubt and, thus, his conviction and sentence recorded by the learned trial Court ought to be set aside by this Court. He has gone on to maintain that he does not challenge the convictions of Tanveer Ahmad alias Teeri appellant recorded by the learned trial Court but he has submitted that in view of some peculiarities of this case the said appellant does not deserve a sentence of death. Thus, the learned counsel for the appellants has prayed for reduction of the sentence of Tanveer Ahmad alias Teeri appellant to imprisonment for life under section 302(b). As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
6. After hearing the learned counsel for the parties and going through the record of this case with their assistance. It has straightaway been noticed by us that Shabbir Ahmad alias Sandoo appellant was empty-handed during the alleged occurrence and, thus, he did not stand saddled with the responsibility of causing any injury to the deceased or to the injured complainant. It is also admitted at all hands that he was not involved in the incident forming the motive and, thus, he was not directly connected with the same. There is nothing available on the record to suggest that he knew before hand that his co-appellant namely Tanveer Ahmad alias Teeri was carrying a Chhuri with him. According to the prosecution's own case Tanveer Ahmad alias Teeri appellant had, at the relevant time, taken out a Chhuri from the fold of his trousers and before that the Chhuri was not visible to anybody. We have further noticed that a co-accused of this appellant namely Nazeer Ahmad alias Nazeera had been acquitted by the learned trial Court on the basis of the same evidence and the said acquitted co-accused had also not caused any injury to any person during the alleged incident. In these circumstances we have felt that an exaggeration by the prosecution to the extent of Shabbir Ahmad alias Sandoo appellant was also not beyond contemplation. We have, therefore, decided to extend the benefit of doubt in this regard to Shabbir Ahmad alias Sandoo appellant. Criminal Appeal No,136 of 2000 is, therefore, accepted to the extent of this appellant and, resultantly, his conviction and sentence recorded by the learned trial Court are set aside and he is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.
7. As far as Tanveer Ahmad alias Teeri appellant is concerned we have observed that the prosecution's case against him had been supported by as many as three eye-witnesses and one of them, i,e, Muhammad Aslam complainant (P.W.4) was an injured witness. The said eye- witnesses had no background of or bitterness against Tanveer Ahmad alias. Teeri appellant so as to prompt the said witnesses to falsely implicate this appellant in a case of this nature. The said eye-witnesses had made consistent statements to the extent of this appellant and their statements had not only impressed the learned trial Court but the same have also inspired our confidence to the extent of Tanveer Ahmad alias Teeri appellant. Recovery of a blood-stained Chhuri from this appellant during the investigation of this case had provided corroboration to the ocular account and the medical evidence had provided support to the same. In these circumstances we have found the learned counsel for the appellants to be amply justified in not challenging the convictions of Tanveer Ahmad alias Teeri appellant recorded by the learned trial Court.
8. The sentence of death passed against Tanveer Ahmad alias Teeri appellant by the learned trial Court under section 302(b), P.P.C. Has, however, received our anxious considerations. In this context we have noticed that the motive set up by the prosecution was not only trifling and trivial in nature but the same had also remained far from being conclusively established. In the F.I.R. No detail had been mentioned by the complainant regarding the dispute between this appellant and the deceased and even before the learned trial Court the said dispute had remained unexplained. It may also be relevant to mention here that the prosecution had sought to prove the motive through the statements of Muhammad Aslam complainant (P.W.4) and Malik Shaukat Ali (P.W.1). In the F.I.R.
Muhammad Aslam complainant had not claimed to have himself witnessed the incident forming the motive but during the trial he had advanced such a claim and he was duly confronted with the F.I.R. In that regard Malik Shaukat Ali (P.W.1) had admitted before the learned trial Court in so many words that he had not personally witnessed the incident forming the motive. Another factor in respect of mitigation of the sentence of this appellant appears to be that all the three accused persons in this case were real brothers and Tanveer Ahmad alias Teeri appellant was the youngest of them all. According to the prosecution's own case this appellant had gone back to his house after the incident forming the motive and had then returned to the spot along with his two elder brothers to avenge the earlier altercation with the deceased. During this second visit the assault was opened by this appellant only after a Lalkara had allegedly been raised by the appellant's elder brother namely Nazeer Ahmad alias Nazeera co-accused and after the deceased had been caught hold of by the appellant's co-convict namely Shabbir Ahmad alias Sandoo. It is, thus, easily conceivable that this appellant had returned to the spot when his elder brothers had felt infuriated upon his insult by the deceased and it was the elder brothers of this appellant who had prompted him to launch an assault upon the deceased. In this view of the matter Tanveer Ahmad alias Teeri appellant has appeared to be acting under the influence of his elder brothers at the relevant time.
Although, one of such elder brothers of this appellant had been acquitted by the learned trial Court and the other elder brother has been acquitted by us today yet the fact remains that according to the prosecution's own case the assault was mounted by this appellant only after a Lalkara had been raised by one elder brother and after the deceased had been caught hold of by the other elder brother of this appellant and we cannot allow the prosecution to wriggle out of its own case when it comes to the matter of sentencing of Tanveer Ahmad alias Teeri appellant. Yet another factor qua mitigation of the sentence of Tanveer Ahmad alias Teeri appellant is that soon after his arrest in connection with this case the Police Officer effecting such arrest had recorded this appellant's age as 18/19 years and this is so evident from the case-dairy dated 28-9-1996. The case in hand had been decided by the leaned trial Court on 8-2-2000 and the Juvenile Justice System Ordinance, 2 )00 had been promulgated on 1-7-2000. Under the said Ordinance of 2000 a 'child' below the age of eighteen years at the time of the alleged occurrence cannot be sentenced to death and the provisions of the said Ordinance are retrospective in their effect and operation. As the said Ordinance was not in the field till the decision of the main case by the learned trial Court, therefore, apparently no effort was made by the defence to establish that Tanveer Ahmad alias Teeri appellant was in fact less than eighteen years of age at the time of the alleged incident certificate from the relevant Union Council has been produced by the learned counsel for the appellants before us today to show that as a matter of fact this appellant was muchless than eighteen years of age at the time of the present occurrence but we have not allowed him to rely upon any such additional evidence in the absence of any formal application having been filed before this Court in that regard. Be that as it may, the fact remains that the juvenility of this appellant at the time' of the present occurrence was a borderline case and, therefore, we have decided to err on the side precaution in this regard. For all these reasons Criminal Appeal No,136 of 2000 is dismissed to the extent of Tanveer Ahmad alias Teeri appellant's conviction under section 302(b), P.P.C. Recorded by the learned trial Court but the same is partly allowed to the extent of his sentence to the said offence which is reduced to imprisonment for life. The conviction and sentence of the appellant recorded by the learned trial Court for an offence under section 337-F, P.P.C. Are, however, upheld and maintained. Both the sentences of imprisonment against this appellant shall run concurrently and the benefit under section 382-B, Cr.P.C. Shall be extended to this appellant. It is further clarified that the orders passed by the learned trial Court regarding payment of compensation by this appellant to the heirs of Muhammad Aslam deceased and to the injured complainant are also maintained but in default of payment thereof this appellant shall suffer simple imprisonment rather than rigorous imprisonment for the respective periods ordered by the learned trial Court. Criminal Appeal No,136 is, thus, disposed of with the acquittal of Shabbir Ahmad alias Sandoo appellant and modifications of the sentences of Tanveer Ahmad alias Teeri appellant as detailed above.
9. Murder Reference No,69 /of 2000 is answered in the negative and the sentence of death passed by the learned trial Court against! Tanveer Ahmad alias Teeri appellant is not confirmed.