' MUHAMMAD FARRUKH MAHMUD, J.--- The appellants Wilson Masih, Nasir Masih, Mst. Salma and Mst. Tareeza, along with their co-accused Javed Masih, Waseem Gill, Parvez Masih and Tarish Masih were tried by the learned Additional Sessions Judge, Lahore, in lieu of case F.I.R. No,119 registered at Police Station Nishtar Colony, Lahore, on 10-6-1994 for offences under sections 302/337-A(i), (ii)/ 337-F(i)/148/149, P.P.C. Vide judgment dated 9-5-2000, the learned trial Judge, while acquitting the aforesaid co-accused, convicted and sentenced the appellants as under:--
(i) Wilson Masih and Nasir Masih for offence under section 302, P.P.C. Each to death each plus payment of Rupees fifty thousands each, as compensation, to the legal heirs of the deceased, in default in payment whereof, they would undergo S.I. For one year each;
(ii) Mst. Salma for offence under section 337-A(ii), P.P.C. To undergo R.I. For one year plus payment of Rs,13,500 as Arsh to Mst. Zainab Bibi;
(iii) Mst. Tareeza for offence under section 337-A(i), P.P.C. To suffer R.I. For six months plus payment of Rs,5,000 as Daman to Mst. Zainab Bibi. She has been further convicted and sentenced for offence under section 337-F(i), P.P.C. To undergo R.I. For six months and also to pay Rs,5,000 as Daman to Mst. Zainab Bibi. However, her sentences were to run concurrently.
' Both Mst. Salma and Mst. Tareeza, convicts, have been given the benefit of section 382-B, Cr.P.C.
2. Aggrieved by their above noted convictions and sentences the appellants have filed Criminal Appeal No,634 of 2000. However, Nasir Masih, convict/appellant, has filed another appeal, i,e, Criminal Appeal No,699 of 2000, separately, as well. The learned trial Court has made a reference bearing Murder Reference No,336 of 2000, seeking confirmation or otherwise of death sentence imposed upon Wilson Masih and Nasir Masih, appellants. All these matters are being decided through this consolidated judgment.
3.. Brief facts of the prosecution case per statement/complaint (Exh.P.C.) recorded by Muhammad Manzoor, S.-I./P.W.13, at the instance of Boota Masih, complainant/P.W.3, on the basis of which based the registration of formal F.I.R. (Exh.P.C./1), are that three years prior to the occurrence, the complainant's younger brother Mushtaq Masih/P.W.10 was married with Mst. Noshi and out of this wedlock a daughter namely Ainee aged about two years was born. About one year ago, Mst. Noshi after having quarrelled with her husband went to her parental house. However, on account of intervention of the respectables, Mst. Noshi came back to the house of Mushtaq Masih but her mother Mst. Tareeza and Sister Mst. Salma did not send Ainee to his house. Mst. Tareeza asked Mushtaq to bring his parents for apology and then the daughter would be given to him, whereupon, on the fateful day, i,e, 10-6-1994 at about 8-00 p.m., the complainant, his brothers Mushtaq Masih/P.W.10, Ishaq Masih/P.W.9, father Sarwar Masih, mother Mst. Zainab, Zulfiqar and Dulla Masih, while on their way to the house of Mst. Tareeza, reached near her house at Yuhanabad where an electric bulb outside the nearby house was on, when Mst. Tareeza/appellant raised Lalkara that her enemies were coming and none of them should go alive, whereupon Waseem (acquitted accused) armed with Sota, Javed (acquitted accused) armed with Dang, Nasir/appellant armed with Sota, Wilson/appellant armed with Dang, Parvez (acquitted accused) armed with Sota, Tarish and Mst. Salma/appellant, who were sitting on a Thhara in the dark, attacked upon them. Wilson gave two Dang blows, hitting the complainant's father on his head and forehead. Nasir gave a Sota blow to him. As a result thereof, Sarwar fell on the ground. Javed, Nasir, Wilson, Parvez caused blows to Mushtaq, Ishaq and Zulfiqar, in view whereof Ishaq Masih sustained injuries on his face, chest and back, while Mushtaq received injuries on his thighs. Mst.
Salma, Tarish and Mst. Tareeza threw brick bats upon Mst. Zainab, as a result of which she sustained injuries on her forehead, head and arms. They were saved by Nazir Masih and Barkat Masih. The accused decamped from the scene of occurrence. Sarwar succumbed to the injuries at the spot. Ishaq, Mushtaq and Mst. Zainab, the injured persons, were taken to the hospital for medical treatment.
4. On 10-6-1994, Muhammad Manzoor, S.-I./P.W.13, was on patrol duty at Dillu Kalan, where Boota Masih/complainant got recorded his statement/complaint (Exh.P.C.), which was sent to the police station where formal F.I.R. (Exh.P.C./1) was recorded by Muhammad Yousuf, Inspector/P.W.12 on the same date. After sending the aforesaid statement/complaint to the police station, Muhammad Manzoor/S.-I. Proceeded to the place of occurrence, inspected the spot, prepared the injury statement (Exh.P.M.) and inquest report Exh.P.L. Of the deceased and sent the dead body for post- mortem examination. He took into possession blood-stained earth from the spot, sealed the same into parcel vide memo. Exh.P.P. And prepared the site plan without scale Exh.P.Q. He took into possession the last-worn clothes of the deceased, i,e, shirt 'P.1 and Chadar P.2 through memo.
Exh.P.A. On 16-6-1994, he arrested Nasir Masih, Wilson Masih, Mst. Tareeza and Mst. Salma, the accused/appellants. Nasir Masih, while in custody, on the same day, led to the recovery of Sota P.3, which was taken into possession vide memo. Exh.P.H. Wilson Masih, while in custody, on the same date, led to the recovery of Dang P.4, which was taken into possession through memo. Exh.P.I. After completion of investigation, the appellants along with their co-accused, were challaned to face the trial.
5. To substantiate its version at the trial, the prosecution examined as many as fourteen witnesses.
The ocular account was furnished by Boota Masih, complainant/P.W.3, Mst. Zainab Bibi/P.W.4, Dullah Masih/P.W.7, Ishaq Masih/P.W.9 and Mushtaq Masih/P.W.10. In addition to that, they also stated about the motive. Dr. Muhammad Nawaz Tahir/P.W.5, who conducted post-mortem examination on the dead body of the deceased, found three injuries on his person, i,e, one lacerated wound 3 c.m. x 1 c.m. On the top of head, one lacerated wound 1 c.m. x 0.8 c.m. On the left side of forehead and a swelling 6 c.m. x 5 c.m. On the left side of head. In the opinion of the doctor, the injuries were caused by blunt weapon. The cause of death was the head injury which was sufficient to cause death in the ordinary course of nature. Duration between injury and death was within half an hour, while between death and post-mortem examination the duration was 12 to 24 hours. Dr. Asif Nazir Qureshi/P.W.6 examined Mst. Zainab Bibi and found two lacerated wounds, one contused swelling and one abraded swelling on her person. In the opinion of the doctor, all the injuries were caused by blunt weapon. Injuries Nos.1 and 2 were declared as Shajjah-iMudihah, while injury No,3 was declared as Shajjah-i-Khafifah and injury No,4 was declared as Shajjah-i- Damighah. Muhammad Manzoor, S.-I./P.W.13, stated about the, drafting of the complaint and investigation thereafter. Rest of the evidence, being formal in nature, need not be discussed. After tendering in evidence the reports of Chemical Examiner Exh.P.R. And Serologist Exh.P.S. The prosecution closed its side. Thereafter, in their statements under section 342, Cr.P.C. The accused/ appellants pleaded their innocence and false implication in the case. However, neither they appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in their defence.
6. During the pendency of the appeal, Nasir Masih, convict/ appellant, filed Criminal Miscellaneous No,1771/M of 2005, seeking his acquittal on the basis of compromise with the legal heirs of the deceased. Copy of the aforesaid application was sent to the learned Sessions Judge, Lahore for verification of the legal heirs of the deceased and genuineness/voluntariness of the compromise.
According to the report of the learned Sessions Judge, dated 4-2-2006, one of the legal heirs of the deceased has not entered into compromise with Nasir Masih/appellant. Compromise is incomplete. This application is dismissed.
7. Learned counsel for the appellants, at the very outset, submits that he would not press for the acquittal of Wilson and Nasir, appellants, and would pray for reduction of sentence, as both of them were less than eighteen years of age at the time of occurrence and according to prosecution case itself, they acted under the influence of their mother. He has further submitted that Salma and Tareeza, appellants, are both ladies and the allegation against them is that they caused injuries through brick bats or in other words they were not armed with any weapon and that they have been suffering for their act for about twelve years. The learned counsel appearing on behalf of the State has submitted that story of the prosecution is supported by five witnesses; that one of witnesses; Mst. Zainab Bibi had received injuries and her presence could not be denied; that the ocular account was fully supported by the motive as well as by the medical evidence. The learned counsel has supported the impugned judgment passed by the learned trial Court. However, when confronted with the age of Wilson and Nasir, appellants, the learned counsel conceded that being a legal point, he had nothing much to say in that regard.
8. We have heard the learned counsel for the parties and have also gone through the relevant record of the case.
9. In order to prove its case, prosecution has produced five witnesses, including P.W.4 Mst. Zainab Bibi, who received injuries during the occurrence. Their statements fully stand supported by the medical evidence and corroborated by the motive coupled with the fact that the matter was reported to the police within an hour. The tenor of cross-examination suggested plea of self- defence, as is evident from the cross-examination from the Investigating Officer/P.W.13 available at page 99 of the paper book. However, the appellants chose in their wisdom to take simple plea of denial during their statements recorded under section 342, Cr.P.C. In the above noted circumstances, the prosecution has successfully proved its case against the appellants and the learned counsel for the appellants has wisely not pressed for acquittal.
10. Now coming to the question of sentence in this case. It has been noticed by us that the statements of Wilson and Nasir/appellants under section 342, Cr.P.C. Were recorded on 7-10-1999.
The age of Wilson has been mentioned as 22 years, while the age of Nasir has been mentioned as 20 years. The ages mentioned in their statements have not been challenged by the prosecution.
The occurrence took place on 10-6-1994. So Wilson at the time of occurrence was about 17 years of age, while Nasir was about 15 years of age. It is also the prosecution case itself that they acted under the influence of their mother Mst. Tareeza/appellant. It would be relevant to mention that the age of the deceased was about eighty years. In the above noted circumstances, while maintaining the conviction of Wilson Masih and Nasir Masih, appellants, for offence under section 302(b), P.P.C.
We reduce the sentence to imprisonment for life each. Benefit of section 382-B, Cr.P.C. Is extended to both of them. The amount of compensation inflicted upon both would remain the same.
However, in case of default of realisation or payment thereof, each of these appellants would suffer S.I. For six months.
11. As far as Salma and Tareeza, appellants, are concerned, both are ladies. They were not armed with any weapon and according to the prosecution case, Mst. Zainab Bibi received injuries at their hands due to brick bats thrown upon her. They have been suffering for their act for more than 11-02 years. Thus, while maintaining their conviction on each count, we reduce the sentence to the period already served out by them. Mst. Tareeza appellant was directed to pay Daman Rs,5,000 on two counts. We reduce the amount to Rs,2,500 on each count. Mst. Tareeza appellant who is mother of Mst. Salma appellant has undertaken before this Court, vide her statement of even date recorded on a separate sheet, to pay the amount of Arsh Rs,13,500 and total Daman of Rs,5,000 within two months. In case the amount of Arsh and Daman is not paid, Mst. Salma and Mst.
Tareeza, appellants would be taken into custody and sent to jail. They would remain in jail till payment of Arsh and Daman. Both the appellants Mst. Salma and Mst. Tareeza are on bail. Their bail bonds are cancelled and sureties are discharged.
12. With the above modification/reduction in sentence, this appeal is partly allowed. In the presence of Criminal Appeal No,634 of 2000, wherein Nasir Masih is also one of the appellants, Criminal Appeal No,699 of 2000 filed by him has become infructuous and the same is disposed of as such.
Thep death sentence is not confirmed. The Murder Reference is answered in the negative.