' HASNAT AHMAD KHAN, J.--- By this single judgment, we intend to dispose of Murder Reference No,706 of 2002 and Criminal Appeal No,950 of 2002.
2. Abdul Waheed and Abdul Naveed-appellants, along with five others, were reported against at Police Station Kotli Loharan, District Sialkot, for causing injuries to Mukhtar Shah (given up P.W.), Kashif Ali (P.W.2) and Aamir Hussain (P.W.3) and the murder of Sajid Ali. Consequently, a case F.I.R.
No,2 of 1999 dated 2-1-1999, under sections 302/452/324/148/149, P.P.C., was registered against them. All the accused were tried by a learned Additional Sessions Judge, Sialkot. Initially, the charge was framed on 27-4-2000, however, the saine was amended on 13-7-2000 and statements of P.W.1 to P.W.8 were recorded. But once again, charge was amended by the learned trial Court vide order, dated 12-5-2001. Subsequently, statements of P.Ws.1 to 18 were recorded. Upon the conclusion of the trial, the learned Additional Sessions Judge vide his judgment, dated 23-5-2002 awarded death sentence to Abdul Waheed and Abdul Naveed-appellants under section 302(b)/34, P.P.C., with a direction to pay Rs,1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Sajid Ali (slain) or in default thereQf, to further undergo six months' S.I. Each.
They were further convicted under section 449/34, P.P.C. For committing house trespass and awarded 10 years' R.I. Each and a fine of Rs,5,000 each or in default thereof, they were directed to further undergo one month's S.I. Each. Abdul Naveed appellant was also convicted under section 324, P.P.C. For causing injuries to P.W.2 and was awarded 10 years' R.I. And a fine of Rs,5,000 or in case of default of payment of fine, he was ordered to further undergo one month's S.I. All the sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C. Was also given to both the accused. It was also directed that amount of fine of Rs,5,000 if recovered, shall be paid to Kashif Ali, injured P.W. All the other accused were acquitted of the charge by the learned trial Court.
3. Prosecution story in brief, as unfurled in the F.I.R. (Exh.P.A.) lodged by complainant Wajid Ali Shah (P.W.1), is to the effect that on the fateful day, i,e, 2-1-1999 at about 4-45 p.m., he, along with his father Mukhtar Shah and brother Kashif Ali, was present in his house. In the meanwhile, appellants Abdul Naveed, Abdul Waheed and Abdul Hameed, the trio armed with machetes/carving knives (Chhuri). Tasvir Hussain, armed with pistol, Imran, armed with carbine, Mst. Ghulam Fatima and Mst. Abida, both empty-handed, suddenly barged into their house. Mst. Ghulam Fatima raised a Lalkara that no one should escape, on which Tasvir Hussain and Imran started firing with their fire- arm weapons. Abdul Hameed inflicted Chhuri blows on left arm and abdomen of Mukhtar Shah, father of the complainant. Naveed appellant, statedly, inflicted Chhuri blows on the abdomen and back of Kashif Ali. On hearing the noise, real brother of the complainant, Sajid Ali (slain) and his friend Aamir Hussain ran towards the place of occurrence, but they were stopped by Mst. Abida Bibi (acquitted co-accused) in the street. In the meanwhile, both the appellants, allegedly, reached there and inflicted Chhuri blows on the left flank and arm of Sajid All (slain), who fell down on the ground in injured condition and succumbed to his injuries at the spot. Aamir Hussain (P.W.3) also received a Chhuri blow on his back, while rescuing Sajid (deceased). The commotion attracted many people to the scene, whereupon the accused fled from the place of occurrence raising Lalkara and firing. The incident, statedly, was also witnessed by Muhammad Yousaf, besides the complainant and injured P. Ws.
' Raison d'etre behind the occurrence was stated to be previous enmity between the parties regarding the murder of the brother of the appellants, by the complainant party.
4. Manzoor Hussain, S.-I., Police Station Kotli Loharan, the Investigating Officer, recorded the F.I.R.
(Exh.P.A.) on the statement of Wajid Ali Shah complainant (P.W.1) regarding the said occurrence.
Thereafter, he went to the place of occurrence and secured the bloodstained earth through memo.
Exh.P.N./1, blood-stained clothes through memos. Exhs.P.L. And P.M./1, prepared an inquest report, injury statement, recovery of pistol (P.1) vide memo. Exh.P.J., carbine (P.3) vide memo. Exh. P.K . , Chhuris , vide memo. Exh. P. M . And Exh . P. N. He also prepared the site plan of the placed of occurrence. He wrote an application for post-mortem of the deceased and an application for the issuance of docket. The dead body was entrusted to Muhammad Latif and Nasar Khan, constables for its onward escort to the mortuary of Allama Iqbal Memorial Hospital, Sialkot. After the autopsy on the dead body of Sajid Ali, the Investigating Officer took into possession his last-worn blood- stained clothes, i,e, Shalwar (P.6), Qameez (P.7), Sweater (P.8) and Banyan (P.9) vide memo. Exh.P.E.
5. The appellants, Messrs Rizwan Baqir, Imran Baqir, Abdul Hameed, Mst. Ghulam Fatima and Mst.
Abida Bibi, acquitted co-accused, were indicted on the charge of murder of Sajid Ali (slain) and causing injuries to complainant and other P. Ws. During the trial the prosecution, in support of its case, produced as many as 18 witnesses. Wajid Ali Shah complainant, who is real brother of the deceased and the one, who had triggered the legal machinery into motion by making a statement, which culminated into the F.I.R. (Exh.P.A.), appeared as P.W.1 and Kashif Ali, who is also a real brother of the deceased, appeared as P.W.2 before the trial Court and reiterated their versions as given in the F.I.R. Aamir Hussain, who is stated to be the friend of Sajid (deceased), appeared as P.W.3 and gave the ocular account of the incident. Rehmat Ali, A.S.-I. Appeared as P.W.4 and deposed about the service of arrest warrant of Abdul Hameed accused (Exh.P.G.) and his report (Exh.P.G./1). He also deposed about the receipt of proclamation (Exh.P.H.) and his report (Exh.P.H./1). Shaukat Ali, H.C.
1414 appeared as P.W.5 and deposed about the receipt/delivery of two sealed parcels containing Chhuris and blood-stained earth. As the Investigating Officer had expired during the trial, Shaukat Ali (P.W.5) again appeared and verified all the daily diaries recorded by the Investigating Officer regarding recovery memos., inquest report, injury statement, map of weapon of offence, blood- stained earth, clothes, application for postmortem examination, red-notes in scaled site plans and preparation of challan under 173, Cr.P.C. Muhammad Iqbal, constable 817 appeared as P.W.6 and deposed regarding the receipt of two sealed parcels containing machetes/Chhuris and delivery of the same to the office of Chemical Examiner. Mumtaz Hussain appeared as P.W.7 and stated that on 26-1-1999, on the pointing out of Rizwan Baqir, acquitted co-accused, a .30 bore pistol (P.1) was recovered in his presence vide memo. Exh.P.J., which was signed by him as a marginal witness. He also deposed about the recovery of 3 live bullets (P.2/1-3) on unloading of the said pistol. Zakir Hussain appeared as P.W.8 and deposed regarding the recovery of carbine (P.3) on the pointing out of Imran acquitted co-accused vide recovery memo. Exh.P.K. He also deposed about the recovery of blood-stained clothes of the injured Kashif and Sajid (slain) vide recovery memos.
Exh.P.L. And Exh.P.M., respectively. Abdul Karim appeared as P.W.9 and stated that bloodstained Chhuris (P.10) and (P.11) were recovered on the pointing out of Abdul Waheed and Naveed appellants vide recovery memos. Exh.P.N. And Exh.P.M. Respectively in presence of Shabbir Shah.
7.(sic) Dr. Fakhar-uz-Zaman who had medically examined Kashif, Amer Hussain and Syed Mukhtar Shah, appeared in the witness-box as P.W.10 and gave the detail of the injuries on their bodies as under:-- Injuries on the body of Kashif
(i) Incised wound 3-1/2 c.m. x 1 c.m. x D.N.P. On left lumber region. Wound was bleeding profusely.
The injured was restless and vomiting.
(ii) An incised wound 2-1/2 x 1-1/2 c.m. x D.N.P. On left mid abdomen below and lateral to umbilicus, omentum was protruding out of wound. The corresponding tears on Kareem colour Qamees blood-stained, was signed and handed over to police party.
' According to him the said injuries had been caused by sharp-edged weapon.
Injury on the body of Aamar Hussain ' Incised wound 4 x 2 c.m. x D.N.P. On back of left shoulder. The wound was bleeding, ' According to his opinion the said injury was also result of sharp-edged weapon.
Injuries on the body of Syed Mukhtar Shah
(i) An incised wound 3 x 1/4 c.m. x skin cutting on left palm.
(ii) Incised wound 2 x 1 c.m. x muscle cutting on palmer aspect of proximal phalanx wring finger of left hand.
(iii) Incised wound 5 x 1 c.m. x skin cutting.On back of upper part of left forearm.
(iv) A superficial neck 1/2 x 1/2 c.m. x D.N.P. On left mid abdomen."
8. P.Ws.11, 12, 13, 14 and 15 are formal witnesses, therefore, their statements need not be discussed here. Muhammad Afzal, S.-I., appeared as P.W.16 and deposed about the arrest of Abdul Hameed accused. Muhammad Hafeez, Inspector appeared as P.W.17 and stated that he had prepared and submitted complete challan under section 173, Cr . P. C.
9. Dr. Asif Sajjad, who had conducted autopsy on the dead body of Sajid Ali (slain), aged about 26/27 years showed up as P.W.18 and proved the post-mortem report prepared by him. He gave the detail of injury suffered by Sajid Ali deceased as under:--
(1) Incised wound 4.5 c.m. x 2 c.m. On the postrolateral aspect of left upper arm.
(2) Incised wound 5 c.m. x 1.5 c.m. On the lateral aspect of left upper arm.
(3) Incised wound 4 c.m. x 2 c.m. On the medial aspect of left upper arm.
(4) Incised wound 3 c.m. x 2.5 c.m. On left upper arm closed to left axilla.
(5) Incised wound 3 c.m. x 2 c.m. On left lateral axillary fold.
(6) Incised wound 3 c.m. x 2.5 c.m. On left lateral chest at about mid level.
' In his opinion, all the injuries were ante-mortem and were caused by sharp-edged weapon.
Injuries Nos.1, 2, 3, 4 and 5 were simple in nature (muscle cutting) but injury No,6 was Jaffa in nature and had damaged important vital organs as heart, left lung, left pleura, left diaphragm and fracture of seventh rib. According to this witness injury No,6 was the cause of death which had damaged important organs which led to excessive internal and external haemorrhage, shock and death.
10. Mst. Abida Bibi acquitted co-accused appeared as D.W.1 and refuted the prosecution story. She gave her own version regarding the occurrence. Muhammad Baqir appeared as D. W.2 and made a statement in line with that of D.W.1.
11. The prosecution gave up Kaleem Ullah, Hameed Hussain, Muhammad Yousaf Shah son of Jalal Shah, Muhammad Yousaf son of Saeed Hussain Shah, Ahmad Hussain and Mukhtar Shah P.Ws.
Being unnecessary.
12. After tendering the report of Chemical Examiner (Exh.P.T.), pertaining to blood-stained earth, Exh.
P. U. And Exh.P.V. Pertaining to Chhuris and report of Serologist (Exh.P.X.) the learned D.D.A. Opted to close the prosecution's evidence, whereafter, the appellants were called upon to make their statements under section 342, Cr.P.C. While making the said statements, the appellants denied the prosecution version and gave their own version while responding to .Question No,12, Abdul Waheed appellant replied as under:-- "The case has been registered against me because my brother Muhammad Saeed was murdered by Razaq Shah real brother of the complainant Wajid Ali Shah and 4 others and F.I.R. 137 of 1992 dated 4-8-1992 was registered under sections 302, 148/149, P.P.C. At Police Station Kotli Loharan in which I was an eye-witness and the accused Razaq Shah was awarded death sentence by Kh.
Imtiaz Ahmad, the learned Additional Sessions Judge, Sialkot, vide order dated 7-11-1995 and due to this reason I have been falsely implicated in this case and all the P.Ws. Are related inter se and are inimical towards me."
13. While making his statement under section 342, Cr.P.C. Abdul Naveed toed the line of his brother, Abdul Waheed who made a similar statement. All the accused except Abida acquitted co- accused did not opt to make the statement under section 340(2), Cr.P.C. However, they produced score of documents as Exh.D.A. To Exh.D.P. And closed their defence evidence.
14. Appellant Abdul Naveed, while responding to question No,12, replied as under: --
15. "The case has been falsely registered against me because I was an eye-witness in the murder case of my real brother Muhammad Saeed in which Razaq Shah was awarded death sentence, by Mr. Kh. Imtiaz Ahmad, learned Additional Sessions Judge, Sialkot, vide order, dated 7-11-1995 and due to this reason I have been falsely implicated in this case and all the P. Ws. Are related inter se and are inimical towards me."
14. After the conclusion of the trial, both the appellants were convicted and sentenced as mentioned in para.2 of this judgment, which had been impugned by them through the instant appeal. All the other co-accused were, however, acquitted of the charge.
15. Seeking acquittal of both the appellants, their learned counsel contended that while lodging the F.I.R., the appellants had falsely been implicated in this case; that the prosecution story is economical with truth; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, therefore, they are, entitled to clean acquittal; that Mukhtar Hussain Shah, who is father of Sajid Ali (deceased) as well as Wajid Ali complainant, though according to the prosecution, had received injuries in the same occurrence, yet this fact was malafidely withheld by the prosecution; that on the basis of the same evidence, five co- accused of the appellants had been acquitted by the learned trial Court, therefore, for maintaining the conviction and sentence awarded to the appellants, a strong corroboration is required but the same is not forthcoming; that the prosecution witnesses are interested witnesses, therefore, their statements cannot be relied upon without independent corroboration; that according to the medical evidence, Sajid Ali deceased received as many as six injuries but the same were not specifically attributed to the accused and that it is a case of two versions, and the defence version, being more plausible and nearer to the truth, needs preference over the prosecution version. In the alternative learned counsel for the appellants has submitted that the case being of mitigating and extenuating circumstances, death sentence awarded to both the appellants, needed alteration to one of imprisonment for life.
16. Conversely, the learned D.P.-G. Has controverted the arguments put forth by the learned counsel for the appellants. His arguments are that, as the occurrence was reported to the police within an hour, therefore, there is little chance of deliberations and thereby false implication of the appellants in this case; that the prosecution version is supported by the evidence of injured witnesses, therefore, the appellants have rightly been convicted and sentenced by the learned trial Court; that the defence version is nothing but a cock and bull story, therefore, it is not worthy of reliance; that the ocular version got due support from the evidence of motive, recoveries and the evidence of the doctors, who had medically examined the injured witnesses and conducted the autopsy on the corps of Sajid Ali deceased, respectively; that the recovery of bloodstained weapons of offence on the pointing out of both the appellants further supports the prosecution version; that the deceased was done to death in a brutal and callous manner, therefore, the appellants have rightly been sentenced to death; that there are no mitigating circumstances requiring the alteration of death sentence awarded to the appellants to one of life imprisonment.
17. After hearing both the parties at length, we have come to the conclusion that certain facts in this case are admitted on both the ends. The time as well as venue of the murder of Sajid (slain) has not been denied by the defence. We have further noticed that it is a case of daylight occurrence, which was reported to the police within an hour. It is also a fact that during the occurrence, Aamir (P.W.3), Kashif (P.W.2), besides, Mukhtar Hussain Shah (given up), had received sharp-edged weapons' injuries. The eye-witnesses cannot be disbelieved only on the ground that one of the injured witnesses, i,e, Mukhtar Hussain Shah, did not appear in the witness-box.
18. The suggestions put by the defence to the eye-witnesses, statements of the accused appellants recorded under section 342, Cr.P.C. And the statements of defence witnesses, namely, Mst. Abida Bibi (D.W.1) and Muhammad Bashir (D.W.2), lead us to conclude that the presence of both the appellants at the time of occurrence was not denied. The medico-legal certificates showing receipt of injuries by both the appellants during the same occurrence produced by them in their defence as Exhs.D.M.L. And D.N. Also confirm the presence of both the appellants at the time of occurrence. It is true that on the basis of the same evidence, five of the co-accused were acquitted by the learned trial Court but the appellants cannot be acquitted only on the said ground as the Courts are required to sift the grain from the chaff. On the said ground, the accused can only be acquitted if the ocular version does not get sufficient corroboration from the other attending circumstances but in this case, the ocular evidence provided by P.W.2 and P.W.3, who had stamp of injuries on their persons, got due corroboration from medical evidence, motive and other attending circumstances, besides some admitted facts. It is true that the prosecution suffered some infirmities regarding the recovery of weapons of offence but considering the fact that the medical evidence duly supported the prosecution version and the fact that the presence of both the appellants at the time of occurrence has not been denied, no premium can be given to the defence on the said point. There is nothing on the record to discard the ocular evidence. However, the case being of two versions, we have examined the case putting both the said versions in juxtaposition. According to the defence, the complainant party had forcibly entered into the house of the accused to pressurize them to effect a compromise in case of the murder of appellants' brother Muhammad Saeed, for which Abdul Razzaq, brother of the complainant had been awarded death sentence. It was further claimed by the defence that on the refusal of the accused party to accommodate the complainant party, Sajid Ali (deceased) had caught hold of arms of Mst. Abida Bibi (D.W.1), who was dragged by him.
19. We have gone through the statements of D.W.1 and D.W.2 as well as the statements of appellants made under section 342,Cr.P.C. And do not find the defence version plausible, because admittedly, Sajid (deceased) was not done to death in the house of the accused party, rather he was wiped out right in front of his own house. Secondly, Mst. Abida Bibi (D.W.1) did not receive even a scratch in the said occurrence. But at the same time, we have concluded that both the parties did not come up with the true version regarding the manner in which the quarrel between the parties initiated. Though, the prosecution claims that the accused party had launched an assault upon the complainant party after barging into their house, but admittedly, the blood-stained earth was not taken from the said house, though, during the occurrence, three P.Ws. Had received injuries. Besides, according to the prosecution's own version, Sajid Ali (deceased), who, after hearing the noise, had been attracted to the place of occurrence, was blocked by Mst. Abida Bibi.
(D.W.1) in the street. His dead body was also found in the said street, therefore, it appears that the prosecution had suppressed the real cause of the occurrence. In fact both the parties were determined to suppress the reality and truth from the Court. This conclusion gets further support from the fact that during the same occurrence, both the appellants had also received injuries, though, after their arrest, they were not immediately medically examined but they were examined on the orders of the concerned Court on 1-3-1999, i,e, after two months of the occurrence.
According to the doctor, who had medically examined them, duration of the injury was about 2/3 months. That duration reconciles with the defence version, according to which both the appellants did receive injuries in the same occurrence. Though, the doctor, who had examined the said witnesses, was not produced in the defence evidence but we can take judicial notice of the fact by going through the certified copies of the said medico-legal certificates which were produced in defence evidence as Exh.D.M. And Exh.D.N. In view of the law laid down in the case of Syed Ali Bepare v. Nibran Mollah and others PLD 1962 SC 502, we can reconstruct the manner in which the occurrence might have taken place. From the facts and circumstances of the case, we have come to the conclusion that both the parties have not given the correct picture regarding the occurrence in which it ignited, and the genesis of the sight is not clear. The possibility of a chance encounter/ clash between the parties in front of the house of the complainant party in view of the backdrop of animosity between the parties cannot be ruled out. During the quarrel the appellants also received minor injuries. Be that as it may, we have concluded that the prosecution did prove its case beyond shadow of doubt as far as the causing of injuries on the person of Sajid Ali (deceased) as well as two injured P.Ws., by the appellants is concerned, therefore, they are not entitled to acquittal.
20. As far as the quantum of the sentence is concerned, we have noticed that there are some mitigating circumstances in favour of the appellants necessitating the alteration of death sentence awarded to them into one of the imprisonment for life. For holding so, we have two pronged reasons, firstly, according to the medical evidence, Sajid Ali (deceased) had received six injuries on his person. The cause of death was injury No,6, which had been attributed to both the appellants. Rest of five injuries were found to be simple in nature and were not found fatal. As it is not clear that whom of the two appellants had caused the fatal injury, therefore, ends of the justice would meet if both of them are awarded imprisonment for life, which is also a legal sentence. In this regard, we are pinning our faith on the cases of Allah Dad and another v. The State 1995 SCM R 142, Shehruddin v. Allah Rakhio and 5 others E 1989 SCM R 1461, Sibtain Shah and others v. The State 1978 PCr.LJ 490 and Muhammad Anwar v. The State 1997 PCr.LJ 321. Secondly, as observed above, both the parties suppressed the immediate cause of occurrence and the origin of the fight remained shrouded in mystery.
21. Accordingly, this appeal is dismissed with the modification in the sentence, consequently, death sentence awarded to both the accused is converted into imprisonment for life. The sentence regarding the compensation and in default thereof, awarded to both the accused, is maintained.
However, both the accused shall get benefit under section 382-B, Cr.P.C. Sentence awarded under section 324, P.P.C. To Abdul Naveed appellant is also maintained, which shall run concurrently.
However, in view of our findings that the accused did not trespass into, the house of the complainant party, the sentence awarded to both the appellants under section 449/34, P.P.C. Is set aside.