' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No, 211 of 2002 filed by Muhammad Daud and Tahir Hameed against their conviction and sentence, Criminal Revision No,115 of 2002 filed by the petitioner-complainant for enhancement of sentence against Tahir Hameed, respondent No,1 and the Murder Reference No,322 of 2002 submitted by the learned trial Court as all arise out of the same judgment dated 22-4-2002 passed by the learned Additional Sessions Judge, Attock, who convicted and sentenced them as under:- S.No.Name of AccusedOffence under sectionSentences
1. Daud 302(b)/34, P.P.C.Sentenced to death and compensation of Rs.1,00,000, as required under section 544-A, Cr.P.C. to the legal heirs of the deceased Altaf and in default whereof to undergo S.I. for three years.
Tahir Hameed302(b)/34, P.P.C.Sentenced to imprisonment for life and compensa--tion of Rs.1,00,000, as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo S.I. for three years.
2Daud and Tahir HameedUnder section 324/34, P.P.C.Sentenced to under- go R.I for five years each along with fine of rupees ten thousands each on two counts and in default whereof to undergo S.I for six months on two counts each.
3.Daud and Tahir HameedUnder section 337- F(ii)/34, P.P.C.Sentenced to under- go two years R.I as Tazir on two counts and also pay Daman of Rs.10,000 to each P. W.
All the sentences were ordered to run concurrently. Bene--fit of section 382-B, Cr.P.C., however, was extended to Tahir Hameed, accused.
2. Precisely, the prosecution story as alleged in F.I.R. (Exh.PA/1) is that on 15-12-2000, the complainant along with Altaf Hussain, deceased, Muhammad Sajjad P. W. 10, Muhammad Fayyaz and Muhammad Nisar (not produced) after offering the Jumma Prayer in Hanfia Mosque, were going back towards his house and when they reached near the shop of one Amir Zaman, they found there Muhammad Tahir and Muhammad Daud Accused; that Sajjad P.W. Made a complaint to Muhammad Daud accused that why he had abused his brother Muhammad Nisar one day earlier upon which there was an exchange of hot words between Daud accused and Sajjad P.W.
But the matter was settled down on the intervention of the complainant, however, Daud accused had exerted threats to teach a lesson and then both the accused proceeded towards their house; that when at about 2-30 p.m., the complainant along with Sajjad, Fayyaz and Nisar were about to cross in front of the house of Daud accused, Muhammad Tahir armed with .12 bore carbine and Muhammad Daud armed with Churri were present there, Muhammad Daud accused on seeing the complainant party raised lalkara not to go them alive and then Muhammad Daud accused inflicted a churri blow which landed on the left side of the chest of Altaf and in the meantime Muhammad Tahir accused made a fire with his .12 bore carbine which had hit on the left thigh of Muhammad Sajiad, who fell down on the ground; that Muhammad Daud again gave a churri blow which hit on the wrist of the left hand of Fazal Karim complainant/ P.W.; that upon the hue and cry raised, both the accused had succeeded to escape from the scene of crime; that the complainant, Sajjad P.W., and Altaf in an injured condition were being taken to Civil Hospital Hassanabdal, however, on the way Altaf Hussain succumbed to the injury; that the motive behind the occurrence was of abusing of Daud accused to Muhammad Nisar, nephew of the complainant, one day earlier of the occurrence and exchange of hot words between Sajjad and Daud which resulted into the present occurrence.
3. After due investigation report under section 173, Cr.P.C was submitted against the present appellants-accused Muhammad Daud and Tahir Hameed. Charge was framed against the appellants-accused, who denied of the charge, pleaded not guilty and claimed trial. To prove the charge, the prosecution produced its evidence. The appellants-accused were examined under section 342, Cr.P.C. In answer to question No,5 Muhammad Daud accused replied as under:-- "One day prior to the occurrence there was an exchange of abuses "One day prior to the occurrence there was an exchange of abuses between me and Nisar, P.W. On the day of occurrence I was coming back to my house after offering the Jumma prayer and on the way Fazal Karim, Altaf, Nisar, Fayyaz P.Ws were standing who way laid me, Nisar P.W. Asked to take revenge for his insult made earlier where after I started to run towards my house to save myself and the complainant party also started to chase me. I entered in my house where I confined myself in a room which was bolted from inside. The complainant party while committing house tresspass also entered in my house where my wife made request to them but Altaf deceased caught hold of my wife from her hair and started to dragged her. Finding my wife being humiliated I came out of the room where after scuffle took place between Altaf and me who was having a Churri in his hand.
During the scuffle Altaf received the injury. Tahir Hameed accused was not present at that time as he was on his job for labouring. The complainant party suppressed their aggression and has changed the place of occurrence, fabricated the injuries on the person of Sajjad and in coimivance with the police falsely involved me and my son in this case. We were arrested by the police on the same day from the hospital because I was also injured during the scuffling but the police did not show my arrest and nor got me medically examined. I pleaded the same version before the I.O.
Who did not opt to record the same being in connivance with the complainant party. My son Tahir came to see me in the P.S and he too was arrested. We were kept under illegal confinement till the day when our arrest was shown. No male member of my family or relative was available to support us. The police has been promising that they would proceed also against the complainant party but they did not do so. I am quite innocent."
'Tahir Hameed appellant-accused in answer to question No, 6 adopted the version of his co- accused Muhammad Daud. None of the accused either opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C., nor did he produce defence evidence. The learned trial court after hearing the learned counsel for the parties passed the above said judgment, which is being assailed through this appeal and revision.
4. We have heard the learned counsel for the parties, gone through the evidence and record available with their able assistance.
5. The occurrence in this case, according to F.I.R., took place at 2^30 p.m., and the F.I.R., was lodged at 4-15 p.m., on the same day at Police Station, Hassm Abdal, which is at a distance of ten and half K.M. And F.I.R., is promptly lodged. The ocular account, was furnished in this case by Fazal Kafim, P.W.9/complainant, (father of the deceased) and Muhammad Sajjad P.W.10, both injured eyewitnesses. Fazal Karim, P.W.9 reiterated the story of F.I.R., according to which, when he along with deceased Altaf Hussain and nephew Muhammad Sajjad, P.W.10 Muhammad Fayyaz and Muhammad Nisar P.Ws, (not examined) were passing near the house of the Daud appellant, Daud appellant while armed with Churri gave blow on left chest of Altaf Hussain (deceased), Tahir Hameed appellant while armed with . l2 bore carbine made fire which hit Sajjad P.W.10 on his left thigh and Muhammad Daud appellant gave a Churri blow hitting left wrist of the complainant. The same evidence was corroborated by another injured eyewitness P.W.10 Muhammad Sajjad. The ocular account furnished by both the P.Ws is also corroborated by medical evidence furnished by Dr.Abdul Zahoor Malik, P.W.5 who found the injuries on the body of the deceased Altaf Hussain as well as the person of the complainant were the result of sharp weapons and on the person of Muhammad Sajjad injured P.W.10 was the result of fire-arm.
6. The recovery of .12 bore Carbine, weapon of offence, was effected at the behest of Tahir Hameed appellant which was proved through evidence of Muhammad Ishaq P.W.7 and Muhammad Amir Khan, S.-I/P.W.11 but the same was not wedded with the empty recovered from the spot as he empty was not sent to the Fire-arm Expert for matching and same was discarded. Even according to the Memo. Of recovery of Churri effected at the behest of appellant Daoud, it was no where mentioned that the same was stained with human blood and it was kitchen knife as observed by the learned trial court and the same was also discarded. There is no need to dilate upon the same further.
7. As for as time, date and commission of occurrence have been denied by the appellants.
However, the place and manner of occurrence is disputed according to the statement under section 342, Cr.P.C. In answer to question No,5.
8. The motive alleged . By the prosecution was that one day prior to the occurrence a quarrel had taken place between the accused Muhammad Daud and Muhammad Nisar P.W. (not examined), brother of Muhammad Sajjad P.W.10. The complainant along with P.Ws. After offering the Jumma prayer made complaint to accused Muhammad Daoud about the motive part of the occurrence and during that process there was an exchange of hot words between Muhammad Daoud appellant and Muhammad Sajjad, P.W.10 and thereafter the matter was patched up by the complainant but the accused Muhammad Daud exerted threats that he would teach a lesson to them but the complainant party left for their home and later on when they were passing near the house of the accused they were attacked and the occurrence took place. As far as story of motive is concerned that does not appeal to reason rather the story about the motive given up by the appellant Muhammad Daud is more D plausible and same also gets support from the version of the complainant as well as from the F.I.R. That one day prior to the occurrence quarrel had taken place between the accused and Nisar P.W. (given up) and thereafter the complainant along with deceased had gone to the house of the appellant and the occurrence took place there and even otherwise it is also available in the evidence that house of the complainant, deceased and P.Ws.
Was not on the street wherein the occurrence took place and particularly when after offering Jumma prayer they had already made complaint to the appellant about the motive part of the prosecution story, why again the complainant, P.Ws. And the deceased went to the house of the accused. There is no explanation given by the prosecution for their presence at the place of occurrence, whereas, according to the statement of P.W.11 Muhammad Amir Khan, S.-I, the place of occurrence was in front of the house of Muhammad Daud appellant-accused. This fact shows that what triggered the incident prior to the occurrence shrouded in mystery and somehow it is decipherable from the evidence to some extent that the complainant party was also contributory to the occurrence.
9. The perusal of the site plan Exh.P.K/1 would show that neither the house of the appellant Muhammad Daud is shown therein nor any adjacent houses or locality has been mentioned.
Similarly, nothing about the distance between the place of occurrence and house of the appellant Muhammad Daoud or the complainant party had been mentioned. Non-mentioning of the house of the appellant-accused in Exh.P.K/1, in our view, is not due to mistake or negligence but it was an effort to conceal the actual facts qua the location of place of E occurrence. The presumption would be that the complainant party was the aggressor. It is settled proposition of law that the courts must not be deterred for the incompleteness of tale of drawing inference from the F evidence on record and circumstances. Reference can be had to Syed Ali Bepari's case (PLD 1962 SC 502) and Zahid Pervaiz's case (PLD 1991 SC 558). In view of the above discussion, we are of the considered view that commission of murder and injuring the P.Ws.5 & 10 by the appellants is proved but keeping in view the place of occurrence in front of the house of the appellant Muhammad Daoud without any explanation the presence of four family members of the complainant including the deceased and P. Ws. Is a mitigating circumstance in favour of Muhammad Daoud appellant and he deserves lesser punishment. As far as case of Tahir Hameed accused/appellant is concerned, the prosecution has established its case against G him beyond any shadow of doubt and he does not deserve any leniency.
10. In view of what has been stated above, the conviction awarded to the appellant Muhammad Daoud under section 302(b), P.P.C. Is maintained. However, sentence is altered from death to life imprisonment giving him benefit of section 382-B, Cr.P.C. While the remaining conviction and sentences are maintained. The appeal to the extent of Tahir Hameed, appellant is dismissed. All the sentences to run concurrently. The sentence of compensation shall remain intact. With the above modification the Criminal Appeal No,211 of 2002 filed by the appellants Muhammad Daoud and Tahir Hameed is hereby dismissed. Consequently, the Criminal Revision No,115 of 2002 filed by the complainant having no merit is dismissed.
' Murder Reference is answered in negative.
Sentence reduced.