' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave to the Court has been directed against the judgment dated 27-2-2002 passed by a division Bench of the Lahore High Court, Rawalpindi Bench whereby appeal filed by the respondents against their conviction and sentence awarded to them by learned Additional Sessions Judge, Rawalpindi under section 302(5)/34, P.P.C. Read with 460, P.P.C. Was dismissed with reduction of sentence of death into life imprisonment. The respondents were also directed to pay Rs,50,000 as compensation to the legal heir of the deceased under section 544-A, Cr.P.C. And in default of the payment of compensation to undergo S.I. For six months.
2. The appellant/complainant of the case being dissatisfied with the judgment of the High Court, has filed this appeal for enhancement of the sentence of convicts and leave was granted in this appeal by virtue of order dated 2-5-2002 which is reproduced hereunder:-- "Leave to appeal is sought against the judgment of the Lahore High Court, Rawalpindi Bench dated 27-2-2002, where by death sentences of the respondents were converted into life imprisonment, Criminal Revision filed by the complainant for enhancement of the amount of compensation was dismissed and Murder Reference sent by the trial Court for confirmation of the death sentences awarded to the respondents, was answered in the negative.
2. Brief facts of the case are that Ashiq Hussain and his brother Mohabbat Hussain were tried by an Addl. Sessions Judge, Rawalpindi under sections 302/460/34, P.P.C. For the murder of Farzand Ali.
On conclusion of the trial, the learned trial Judge convicted both the respondents under sections 302/460, P.P.C. Vide his judgment dated 9-10-1997. Under section 302(b), P.P.C., they were sentenced to death whereas under section 460, P.P.C., they were sentenced to two years' R.I. each. They were also ordered to pay compensation of Rs,50.000 each to the legal heirs of the deceased or in default to undergo six months imprisonment each. Benefit of section 382-B, Cr.P.C.
Was extended to them.
3. The respondents challenged their conviction and sentences through Criminal Appeal No,155/1997, the complainant filed Criminal Revision No,106/1997 for enhancement of the Compensation and the trial Court sent Murder Reference No,290 of 1997 for confirmation of the death sentence awarded to the respondents.
4. A learned Division Bench of the Lahore High Court, Rawalpindi Bench altered the death sentences of the respondents from death into life imprisonment, dismissed the revision petition of the complainant and answered the murder reference in the negative vide its judgment dated 27-2- 2002, impugned herein.
5. After hearing the learned counsel for the petitioner and going through the record of the case, we find that although the learned Division Bench of the High Court observed that the prosecution has proved its case against the respondents beyond any shadow of doubt and they were rightly convicted yet it altered the sentences of death to life imprisonment with the observation that `it appears that some important facts have been concealed by the parties and what happened immediately before the occurrence is not clear, therefore, for safer administration of criminal justice, we consider that sentence of death awarded to the accused/appellants is to be substituted to imprisonment for life which will meet the ends of justice". We grant leave, inter alia, to consider whether the High Court was justified to alter the death sentences of the respondents into imprisonment for life on the aforesaid ground when the respondents committed the preplanned murder at odd hours of night after trespassing into the house of the deceased. It may be mentioned that it has recently been held by this Court in several cases that motive shrouded in mystery or what happened immediately before the occurrence cannot be deemed to be a mitigating circumstances and in view thereof on such a ground death sentence cannot be altered into life imprisonment.
' The respondents shall not be released from jail till the disposal of the appeal."
3. The learned counsel for the appellant (complainant of the case) in Criminal Appeal No,158 of 2002, has contended that the High Court after coming to the conclusion that the respondents (convicts) armed with deadly weapon having trespassed into the house of deceased caused him injuries on the most sensitive part of the body which were found fatal to his life was not justified in reaming their sentence on the ground that it was not known that what happened immediately before the occurrence.
4. Learned counsel argued that the accused after having armed themselves with lat his at dead hours of night, attacked on the deceased while he was sleeping at his house and was quite helpless to make his defence and save himself from barbaric attack, therefore, they would not deserve any leniency in the matter of sentence. Learned counsel submitted that the ground which prevailed to the High Court for reduction of sentence cannot be considered a valid ground for withholding the normal penalty of death provided under law for committing an offence of Qatl-i- Amd and vehemently argued that in absence of a strong mitigation, there was no jurisdiction for lesser penalty.
5. Learned counsel for the convicts/respondents and the appellants in the connected appeal bearing No,374/2003 has submitted that even if the prosecution story is believed in to as gospel truth, the accused would hardly be liable for committing an offence of Qatl-i-Shuba-e-Amd under section 315, P.P.C. The punishment of which is provided under section 316, P.P.C. As the accused allegedly caused injuries to the deceased with the sticks which are not commonly used as weapon of offence and a stick is also, in the ordinary course of nature not considered a weapon which may cause death, therefore, the case against the convicts would not fall within the ambit of Qatl-i-Amd punishable under section 302, P.P.C.
' The learned counsel next argued that it was an unseen occurrence which took place during the night and the prosecution witnesses being closely related to the deceased were interested and could not be relied upon without independent corroboration and in that prosecution has not been able to prove the charge beyond reasonable doubt. In the alternate, learned counsel argued that notwithstanding the reliability of the eye-witnesses account, the liability of the accused would be confined to the extent of committing an offence under section 315, P.P.0 or at the most, the case against them would fall within the ambit of section 302(c), P.P.C. For the purpose of punishment.
6. The leave was granted in these connected appeals to consider the question regarding the legality of the conviction and sentence awarded to the accused.
7. The deceased was murdered after midnight in his house and occurrence was witnessed by Muhammad Younas (complainant), Muhammad Naeem (P.W.1) son of deceased and Imtiaz Bibi (P.W.2) his widow, who were the inmates of the house and most natural witnesses. The accused being neighbours of the deceased, were identified by the witnesses in the electric light available in the courtyard of the house, therefore, there was no question of mistaken identity or substitution.
The motive for the occurrence was quarrel of the accused with deceased about 3/4 months ago on a petty matter and there was no serious enmity between the parties. The deceased was caused injuries on left eye brow, left ear and on left maxilla, which caused fracture of the left frontier bone above left armpit and his upper inside tooth was also found missing. The accused in their statement under section 342, Cr.P.C. Pleaded false implication as under:-- "Deceased Farzand Ali was having strained relations with Muhammad Younas complainant/PW on account of some rishta due to which in order to get rid of his brother in collusion with his brother's wife Imtiaz Bibi giving the family members false impression, managed damage to the deceased Farzand Ali and in order to hide his own conspiracy knowing ourselves to be the weakest possible people of the village got implicated in false and fabricated case. No independent witness of the .Locality has deposed against us. However, the witnesses produced by the prosecution are all interested cum false and inimical witnesses who deposed against us due to false impression given by the complainant."
8. The deceased was first .Taken to hospital for medical and then report was lodged with maximum promptitude excluding any possibility of consultation and deliberation to suggest the false implication. The eyewitnesses being the inmates of the house, were most natural witnesses of the occurrence who having deposed quite consistently have strongly supported the prosecution version in each detail without any material discrepancy or contradiction. The defence has not been able to bring anything material on record to suggest even a slight doubt quo the guilt of the accused. The ocular account of the natural witnesses duly supported by the medical evidence and attending circumstances was found truthful and confidence inspiring and being of unimpeachable character, was alone sufficient to sustain the conviction. The learned counsel for the convicts instead of pointing out any material discrepancy in the evidence to affect the credibility of testimony of the eye-witnesses, has based his argument on the probability that the identification of the assailants may not be possible in the night. This may be seen that the deceased was attacked while he was sleeping in the courtyard of his house whereas Muhammad Naeem (P.W.1) and Imtiaz Bibi (P.W.2) while sleeping in the adjoining room have claimed to have seen the occurrence and certainly the accused could conveniently be identified in the courtyard.
9. In view of the factual position at the scene of occurrence, we would not take any exception to the concurrent findings of the two Courts regarding guilt of the accused and contention of the learned counsel that it was a case of Qatl-Shuba-e-Amd has no substance. The accused having trespassed in the house of deceased during the night caused him blows with lathis on sensitive part of the body knowingly that the injuries may be fatal to life and cause death, therefore, their act would squarely fall within the ambit of section 302(b), P.P.C. As Tazir. This may be seen that the intention to commit the crime can be gathered from the attending circumstances and in the present case all the essential elements of committing an intentional murder were traceable on the record to bring the case within the purview of Qatl-i-Amad. In the light of the fact and circumstances of the case we are of the considered view that the prosecution has been successful in proving the charge of murder, against the accused and they have been rightly convicted under section 302(b), P.P.C.
10. The sentence of death is normal penalty in the murder case and unless there is a strong mitigating or extenuating circumstances, the Court is not supposed to withhold the normal penalty in its discretion. However, in the present case the accused, who were real brothers, have been assigned the collective role of causing injuries to the deceased with sotis, which is an ordinary weapon. The deceased died in the hospital after seven days of the occurrence and this was also not ascertainable that which injury was individually fatal and who was responsible for causing such an injury. There was also no serious enmity between the parties and in view of the above features of the case, we find that sentence of life imprisonment awarded to the accused/convicts would call no interference. In the light of forgoing reasons both the appeals are dismissed.