' ASIF SAEED KHAN KHOSA, J.---Muhammad Nawaz appellant was convicted on two counts of an offence under section 302, P.P.C. Vide judgment, dated 23-7-2003 handed down by the learned Additional Sessions Judge, Sialkot and was sentenced to death on each count and to pay a sum of Rs,50,000 to the heirs of each deceased on each count by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months on each count. Through the same judgment the learned trial Court had acquitted Muhammad Nawaz appellant's co-accused namely Muhammad Azeem and Muhammad Shahid. Muhammad Nawaz appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,1446 of 2003 whereas Nazir Hussain complainant has preferred Criminal Appeal No,1587 of 2003 before this Court challenging the acquittal of Muhammad Azeem and Muhammad Shahid accused. On 29-3-2004 the said appeal was dismissed to the extent of Muhammad Azeem respondent No,1 as having not been pressed whereas notice of the said appeal had been issued to Muhammad Shahid respondent No,2. We have heard both these appeals together along with Murder Reference No,923 of 2004 seeking confirmation of the sentences of death passed by the learned trial Court against Muhammad Nawaz convict-appellant. We propose to decide all these matters together through the present consolidated judgment.
2. Naazir Hussain complainant was a resident of village Parrtan Wali situated within the area of Police Station Sadar, District Sialkot and he used to run a general store in that village. According to the F.I.R. Lodged by Naazir Hussain complainant at about 9-00 a.m. On 18-8-2002 a brother of the complainant namely Abdus Sattar and a son of the complainant namely Muhammad Naveed were busy at work in their Hamam when Muhammad Nawaz appellant carrying a pistol .30 bore in his hand and a pump action on his shoulder along with Muhammad Shahid accused armed with pistol .30 bore and Muhammad Azeem accused armed with a Danda emerged in front of that Hamam. Muhammad Azeem accused raised a lalkara, broke the glass panel affixed on the door of the Hamam and commanded his co-accused to teach a lesson to Abdus Sattar and Muhammad Naveed for their refusal to go ahead with the matrimonial proposal/engagement of his daughter.
Upon the lalkara raised by Muhammad Azeem accused Muhammad Nawaz appellant and Muhammad Shahid accused entered the Hamam and Muhammad Nawaz appellant fired from his pistol .30 bore at Muhammad Naveed causing him injuries on different parts of his body. Abdus Sattar ran and took shelter in the bathroom of that Hamam but Muhammad Shahid accused stood on a stool and from over the top of the door of that bathroom he fired from his pistol .30 bore at Abdus Sattar causing injuries to him on different parts of his body. Muhammad Naveed succumbed to his injuries and died at the stop whereas Abdus Sattar was transported to Civil Hospital, Sialkot for medical treatment but he breathed his last while on his way to the hospital.
After firing at the spot Muhammad Nawaz appellant and his co-accused ran away from the place of occurrence. The said incident had also been witnessed by Haji Bashir and Qadeer Hussain P.Ws.
Who were present at that Hamam on that occasion. The motive set up in the F.I.R. Was that some time prior to the present occurrence Naazir Hussain complainant's son namely Muhammad Naveed deceased had been engaged to a daughter of Muhammad Azeem accused but on account of some domestic issues Naazir Hussain complainant had refused to go ahead with- that engagement and had broken the same. It was alleged in the F.I.R. That it was on account of that grievance that Muhammad Nawaz appellant and his co-accused had murdered the complainant's brother namely Abdus Sattar and the complainant's son namely Muhammad Naveed. On the basis of that statement made by Naazir Hussain complainant in respect of the above mentioned incident F.I.R. No,341 was registered at Police Station Sadar, District Sialkot at 11-00 a.m. On 18-8-2002 for an offence under sections 302, P.P.C. Read with section 34, P.P.C.
3. After registration of the F.I.R. The criminal case in hand was investigated by different police officers and upon completion of the investigation a Challan was submitted before the learned trial Court. Muhammad Nawaz appellant and his co-accused pleaded not guilty to the charge framed by the learned trial Court against them and claimed a trial. During the trial the prosecution produced fourteen witnesses in support of its case against the appellant and his co-accused. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Muhammad Nawaz appellant had stated as followed:--- "I lived in a separate house with my wife and children near to my father's house. On the day of occurrence, my sister along with my brother Shahid were coming to visit me and my children.
When they reached in front of Abdus Sattar's barbershop, which was in the way, Naveed deceased passed obnoxious and threatening remark at my sister and said that he would abduct her, come what may. Then he used abusive and filthy language. His uncle instead of stopping him, also used filthy and threatening language against us and our whole family. They were too stunned and therefore, immediately rushed to my house in the adjacent street. My sister narrated the whole incident of open disgrace and threat of abduction. I got provoked and concerned about her well- being and asked them to stay there. Then I went alone to the said shop and killed them both with my licensed pistol. After the occurrence, I myself went to the Police Station and surrendered along with the pistol.
' My brother Shahid was immediately attracted to the spot after hearing the fire-shots. At that time, no witness cited in the F.I.R. Was present at the spot. The complainant made a cruel attempt to falsely implicate all the male family members by concocting and fabricating a false narration of events."
' Muhammad Nawaz appellant and his co-accused opted not to make statements on oath under section 340(2), Cr.P.C. But they produced the appellant's sister namely Mst. Sobia Bibi in their defence as D.W.1 who supported. The above mentioned stance taken by the appellant in his statement recorded under section 342, Cr.P.C. Upon conclusion of the trial the learned trial Court acquitted Muhammad Azeem and Muhammad Shahid accused but after finding the prosecution's case against Muhammad Nawaz appellant to have been proved beyond reasonable doubt it convicted and sentenced him as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
4. During the pendency of these matters before this Court Criminal Miscellaneous No, 740-M of 2005 had been filed seeking acquittal of Muhammad Nawaz appellant on the basis of a compromise between him and the heirs of the deceased. The matter of compromise was referred to the learned Sessions Judge, Sialkot for it verification. The report, dated 23-6-2005 submitted in that regard by the learned Sessions Judge, Sialkot showed that the heirs of Abdus Sattar deceased had affected a compromise with Muhammad Nawaz appellant and the compromise between them was complete whereas no compromise had been affected between Muhammad Nawaz appellant and the heirs of Muhammad Naveed deceased. On 21-7-2005 this Coat had passed an order that the matter of compromise arising out of Criminal Miscellaneous No, 740-M of 2005 would be considered at the time of final hearing of the main appeals and the Murder Reference.
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 Muhammad Nawaz appellant that the said appellant and the heirs of Abdus Sattar deceased have already entered into a compromise and the report, dated 23-6-2005 submitted by the learned Sessions Judge, Sialkot in connection with Criminal Miscellaneous No,740-M of 2005 had confirmed that the compromise between Muhammad Nawaz appellant and the heirs of Abdus Sattar deceased was not only voluntary but the same was also complete in all respects. He has, thus, maintained that on account of the compromise Muhammad Nawaz appellant is entitled to be acquitted on the charge pertaining to the murder of Abdus Sattar deceased. As regards the charge pertaining to the murder of Muhammad Naveed deceased the learned counsel for Muhammad Nawaz appellant has submitted that in view of the peculiar circumstances of this case and also in view of the stand taken by Muhammad Nawaz appellant through his statement recorded under section 342, Cr.P.C.
He does not challenge the conviction of Muhammad Nawaz appellant for an offence under section 302, P.P.C. Vis-a-vis the murder of Muhammad Naveed deceased but he only prays for reduction of his sentence on that count. In this regard he has submitted that even according to the prosecution's own case Muhammad Nawaz appellant had acted under the influence of his father and also that the murder in issue had been committed in furtherance of an issue which involved family honour. The learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have conceded that the compromise between Muhammad Nawaz appellant and the heirs of Abdus Sattar deceased is complete in all respects and they have no objection against acceptance of the same by this Court. They have, however, maintained in unison that as regards the murder of Muhammad Naveed deceased there was no mitigating circumstance available in this case so as to reduce the sentence of Muhammad Nawaz appellant on that count from death to imprisonment for life. They have gone on to maintain that it was a cold-blooded murder of an innocent person with the use of a firearm and, thus, Muhammad Nawaz appellant deserved nothing less than the sentence of death for the said murder. The learned counsel for the complainant has further submitted that the learned trial Court was not justified in acquitting Muhammad Shahid accused because the prosecution had succeeded in establishing his guilt to the hilt. As against the learned counsel for Muhammad Shahid accused has maintained before us that the reasons recorded by the learned trial Court for recording the acquittal of Muhammad Shahid accused were borne out from the record and, thus, the exercise of jurisdiction by the learned trial Court in that regard does not call for 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 we may straightaway observe that as regards the matter of compromise between Muhammad Nawaz appellant and the heirs of Abdus. Sattar deceased the report, dated 23-6-2005 submitted by the learned Sessions Judge, Sialkot in that regard shows that the -compromise between the parties was not only voluntary but also complete in all respects. The said compromise had been recorded between the parties way back in the year, 2005 and the same is still holding good despite a passage of about four years. It is not disputed that according to the prosecution's case Muhammad Nawaz appellant had D not caused any injury to Abdus Sattar deceased. We have, thus, found no occasion for not accepting the compromise between the parties or for not acting upon the same. Criminal Miscellaneous No,740-M of 2005 is, therefore, accepted, Criminal Appeal No,1446 of 2003 is partly allowed -to the extent of Muhammad Nawaz appellant's conviction and sentence for an offence under section 302, P.P.C. On the count pertaining to the murder of Abdus Sattar deceised, his conviction and sentence recorded by the learned trial Court on the said count are set aside and he is acquitted of the said charge on the basis of the compromise.
7. As regards Muhammad Nawaz appellant's conviction and sentence recorded by the learned trial court on the count pertaining to the Murder of Muhammad Naveed deceased we have found that the learned counsel for the appellant has not challenged the appellant's conviction on that count but has only prayed for reduction of his sentence in that respect. Naazir Hussain complainant (P.W.3) and Haji Bashir (P.W.4) had furnished the ocular account of the incident in issue and they had made absolutely consistent statements vis-a-vis the role played by Muhammad Nawaz appellant in the murder of Muhammad Naveed deceased. The ocular account furnished by the said eye-witnesses had received independent corroboration from the motive and had also found ample support from the medical evidence which had confirmed the date and time of occurrence, the weapon used and the locale of the injuries stated by the said eye-witnesses. In his statement recorded under section 342, Cr.P.C. Muhammad Nawaz appellant had accepted killing Muhammad Naveed deceased but he had maintained that the said murder had been committed by him under the impulse of grave and sudden provocation. It is settled law that if an accused person takes a special or a general plea then the onus shifts on him to establish the circumstances supporting his plea and the Court is to presume the absence of such circumstances. In the case in hand Muhammad Nawaz appellant's sister namely Mst. Sobia Bibi had been produced before the learned trial Court as D.W.1 and she had tried to provide support to the stand taken by Muhammad Nawaz appellant but she had conceded that she did not even known the name of the investigating officer and that she had never appeared before any Investigating Officer of this case. She had gone on to admit that she had never submitted any application either before any police officer or before the Area Magistrate advancing her version of the incident or supporting the stand taken by Muhammad Nawaz appellant. She had also failed of approach any Magistrate for getting her statement recorded under section 164, Cr.P.C. Or to approach this Court through any writ petition in that regard. The said witness was a real sister of Muhammad Nawaz appellant and it has appeared to us thaf by appearing in his defence before the learned trial Court she had belatedly tried to come to the rescue of her brother by way of an afterthought. No other independent witness or evidence had been produced by Muhammad Nawaz appellant in order to establish the circumstances supporting his plea of grave and sudden provocation. In these circumstances we have no hesitation in observing that Muhammad Nawaz appellant had failed , to discharge the onus placed on him in that respect. In this view of the matter we have found the learned tiral Court to be quite justified in finding Muhammad Nawaz appellant guilty of an offence under section 302(b), P.P.C. On the count pertaining to the murder of Muhammad Naveed deceased and even the learned counsel for the said appellant has been found by us to be quite fair and justified in not challenging his conviction recorded on that count.
8. As regards the sentence of Muhammad Nawaz appellant on the count pertaining to the murder of Muhammad Naveed deceased we have observed that Muhammad Nawaz appellant was a young man who had been brought to the place of occurrence by his father namely Muhammad Azeem accused. According to the prosecution's own case initiated through the F.I.R. It was Muhammad Nawaz appellant's father namely Muhammad Azeem accused who had initiated the transaction at the spot by raising a lalkara, it was he who had broken the glass panel of the door of the relevant Hamam and had then commanded Muhammad Nawaz appellant to teach a lesson to the complainant party and it was on the basis of that command that Muhammad Nawaz appellant had started firing at Muhammad Naveed deceased. While appearing before the learned trial Court Naazir Hussain complainant (P.W.3) had himself stated that "At the Lalkara of Azeem Nawaz made firing with his pistol on Naveed deceased". Even the other eye-witness namely Haji Bashir (P.W.4) had stated before the learned trial Court that "On the asking of Azeem accused Nawaz accused made firing with his pistol on Naveed deceased". We have further found that there was a complete convergence of the prosecution and the defence on the point that Muhammad Naveed deceased had been done to death as a result of an issue between the parties regarding the matrimonial proposal/engagement of Muhammad Naveed deceased with a sister of Muhammad Nawaz appellant and, thus, an element of family honour was inherently ingrained and embedded in the whole episode. We may observe without any fear of contradiction that a sentence of imprisonment for life is as much a lawful sentence for F an offence under section 302(b), P.P.C. As a sentence of death and it is left by the law to the Court concerned to determine in view of the circumstances of a given case as to which of the said two sentences is likely to meet the ends of justice. In the above mentioned peculiar circumstances of this case we have felt satisfied that the lesser of the two sentences would serve the interests of justice better. Criminal.
Appeal No, 1446 of 2003 is, therefore, dismissed to the extent of Muhammad Nawaz appellant's conviction for an offence under section 302(b), P.P.C. Recorded by the learned trial Court on the count pertaining to the murder of Muhammad Naveed deceased but the same is partly allowed to the extent of the sentence passed against Muhammad Nawaz appellant on that count which sentence is reduced from death to imprisonment for life. The order passed by the learned trial Court regarding payment of compensation and the sentence in default of the same is, however, upheld and maintained. The benefit under section 382-B, Cr.P.C. Shall be extended to Muhammad Nawaz appellant vis-a-vis his sentence of imprisonment on that count. Criminal Appeal No,1446 of 2003 is disposed of in these terms.
9. As regards Criminal Appeal No,1587 of 2003 we have found that Muhammad Shahid accused had been acquitted by the learned trial Court mainly on the grounds that the medical evidence produced by the prosecution did not support the ocular account to his extent and no weapon had been recovered from his possession during the investigation G of this case. It had also been observed by the learned trial Court that two investigating officers had found Muhammad Shahid accused to be innocent whereas another Investigating Officer had opined about his guilt. As regards conflict between the ocular account and the medical evidence vis-a-vis the case of Muhammad Shahid accused we have found that according to the prosecution Muhammad Shahid accused had fired at Abdus Sattar deceased from over the top of a bathroom while standing on a stool at a time when Abdus Sattar deceased had taken shelter in that bathroom. It is but obvious that in that situation the directions of fires received by Abdus Sattar deceased ought to have been from upward to downward. The statement made before the learned trial Court by Dr. Fakhar-uz- Zaman (P.W.7), however, showed that the bullet entertain the dead body of Abdus Sattar deceased from injury No,3 had made an exit from injury No,4 and injury No,4 was on a higher level than injury No,3. This showed that said bullet had travelled from downward to upward. Similar was the position with another injury sustained by Abdus Sattar deceased. The statement made by Dr. Fakhar-uz- Zaman (P.W.7) showed that the bullet entering the abdominal cavity of Abdus Sattar deceased through injury No,9 had also travelled upward towards the left side of his body. It is also pertinent to mention here that the diagram of injuries sustained by Abdus Sattar deceased showed that most of the entry wounds and their exit wounds were almosi at the same level which indicated that the assailant and the victim were both at the same level and that surely did not help the case of the prosecution vis-a-vis Muhammad Shahid accused who had allegedly fired at Abdus Sattar deceased from a position which was much higher than the level of the victim. It may not be out of place to mention here that it was Muhammad Nawaz convict-appellant who was at the same level with Abdus Sattar deceased and Muhammad Nawaz appellant had admitted before the learned trial Court that it was he alone who had fired at and killed both the deceased. We have, therefore, found the learned trial Court to be quite justified in holding that the medical evidence did not support the ocular account vis-a-vis Muhammad Shahid accused. It is not disputed that no weapon had been recovered from the possession of Muhammad Shahid accused during the investigation of this case. The record of this case also shows that, for whatever its evidentiary worth, the opinion of different Investigating Officers regarding involvement of Muhammad Shahid accused in the offence in issue was divided. The occurrence in this case had taken place in the year, 2002 and after facing a trial for about one year Muhammad Shahid accused had earned his acquittal on the merits of the case way back in the year, 2003 and about six years have already gone by ever since. The initial presumption of innocence qua Muhammad Shahid accused had been reinforced through his acquittal by the learned trial Court. For all the reasons mentioned above we have not felt persuaded to interfere with his acquittal recorded by the learned trial Court.
Criminal Appeal No,1587 of 2003 is, therefore, dismissed. The bail bond and surety of Muhammad Shahid accused-respondent No,2 shall stand discharged.
10. Murder Reference No,923 of 2004 is answered in the negative and the sentences of death passed by the learned trial Court against Muhammad Nawaz convict-appellant are not confirmed.