' KAZIM ALI MALIK, J.--- Zafar Hussain, Safdar Hussain sons of Manzoor Hussain, Ghulam Shabbir, Nazir Ahmad and Wazir Ahmad sons of Elahi Bukhsh all Chandia by caste and residents of Village Ambreend, District Dera Ghazi Khan were challaned to the Court of Session, Dera Ghazi Khan to stand trial on the charge of rioting, attempted murder and murder in a case F.I.R. No,318 of 1999 registered with Police Station Civil Lines, Dera Ghazi Khan. On conclusion of trial they were convicted and sentenced by a learned Additional Sessions Judge, Dera Ghazi Khan vide judgment, dated 10-1-2002, now under challenge at their instance, as under:-- Under section 302(b)/34, P.P.C. For committing murder of Nazar Hussain and Muhammad Hussain.- -- Sentenced to death on two counts and to pay Rs,1,00,000 each to be paid equally to the legal heirs of both the deceased or to undergo simple imprisonment for six months each in default thereof.
Under section 337-F(i), P.P.C. For causing injuries to Sajjad Hussain, P.W.--- Sentenced to one year's rigorous imprisonment each and to pay Daman of Rs,2,000 each to Sajjad Hussain, complainant.
2. The Court of Session, Dera Ghazi Khan made Murder Reference No,67 of 2002 seeking confirmation of death sentence on two counts imposed on the appellants whereas the latter filed Criminal Appeal No,26 of 2002 and called in question legality and correctness of the conviction and sentences recorded by the learned trial Court. We propose to dispose of these interconnected matters through this single judgment.
3. The occurrence took place inside the court-room of learned Sessions Judge, Dera Ghazi Khan at 9-15 a.m. On 9-8-1999 and was reported to the police the same day at 10-00 a.m. By Sajjad Hussain, complainant.
4. Nazar Hussain (30) and his father Muhammad Hussain (52) suffered death in this happening.
Nazar Hussain died of his injuries inside the court-room whereas his father Muhammad Hussain and Sajjad Hussain, complainant were removed to the hospital in injured condition out of whom Muhammad Hussain also succumbed to his injuries and in this way it became a case of double murder.
5. The prosecution case set up in the F.I.R. In brief, is that Manzoor Hussain Chandia contracted first marriage with Mst. Zainab Mai, a maternal-aunt of Sajjad Hussain, complainant and from this wedlock she gave birth to Irshad Hussain and Fazal Hussain. Manzoor Hussain contracted second marriage with Mst. Bashir Mai and Safdar Hussain and Zafar Hussain (appellants) were born out of the wed-lock. Irshad Hussain and Fazal Hussain on one side and their step-brothers Safdar Hussain and Zafar Hussain (appellants) on the other developed differences. Muhammad Hussain (deceased) sided with their sister's sons Irshad Hussain and Fazal Hussain, whereas Manzoor Hussain supported his sons for his second wife, Safdar Hussain and Zafar Hussain (appellants). Jan Muhammad, father of Sajjad Hussain, complainant also contracted two marriages. Sajjad Hussain, complainant was the only son of Jan Muhammad from his first wife whereas his step-mother gave birth to Abid Hussain, Sabir Hussain and Mst. Lal Mai. About one year before the present occurrence Mst. Lal Mai, step-sister of Sajjad Hussain, complainant suffered unnatural death. Her mother Mst.
Jannat Mai got registered murder case against Irshad Hussain afore-mentioned. Eight months before the present occurrence Jamil Ahmad, a brother of Nazir Ahmad, appellant was killed for which Irshad Hussain, Fazal Hussain afore-mentioned and Muhammad Hussain deceased were reported against. Two months earlier Nazir Ahmad (appellant) made murderous assault on Sajjad Hussain, complainant for which a case on the charge of attempted murder was registered against him. Nazir Ahmad, appellant and Muhammad Hussain (deceased) were on bail in those cases.
6. On 9-8-1999 in the morning Sajjad Hussain, complainant, Nazar Hussain (deceased), Muhammad Hussain (deceased), Karam Hussain and Fazal Hussain (P.Ws.) reached the Court of Session, Dera Ghazi Khan to appear in the above-said cases. At about 9-15 a.m. Nazir Ahmad, Wazir Ahmad, Ghulam Shabbir, Safdar Hussain and Zafar Hussain, appellants armed with Chhuris opened attack on the complainant party and threw challenged that they would avenge the killings of Jamil and Lal Mai afore-mentioned. The deceased persons and the P.Ws. Took shelter inside the court-room of Sessions Judge, D.G. Khan. All the five assailants followed them and inflicted Chhuri blows to Nazar Hussain, Muhammad Hussain and Sajjad Hussain on different parts of their bodies.
Nazar Hussain, died of his injuries inside the court-room whereas Muhammad Hussain and Sajjad Hussain were removed to the hospital in an injured condition where Muhammad Hussain also breathed his last.
' The police officials present in the Court of Session, Dera Ghazi Khan in connection with different official duties caught red-handed all the five assailants with blood-stained Chhuris and produced them before the Investigating Officer, who formally arrested them and also seized weapons of offence. After necessary completion of investigation the five assailants were sent up to Court to stand trial on the aforesaid charge.
7. On 9-8-1999 at 4-45 p.m. Dr. Khalid Naveed, P.W.10 conducted post-mortem examination on the dead body of Nazar Hussain (30) and found following 22 injuries on different parts of his body:--
(i) An incised wound 3 c.m. x 1 c.m. Situated on root of nose. The wound was skin muscle and bone deep. Bone was not exposed.
(ii) An incised wound 1 c.m. x 1/2 c.m. Situated on lateral side of right eye lid. The margin was cut.
Bleeding was present on the right eyg.
(iii) An incised wound of 1 c.m. x 1/2 c.m. Situated on left lower eye lid. The margins were separated.
Bleeding as also present in the left eye.
(iv) An incised wound 3 c.m. x 1/2 c.m. On right side of nose and right ala was cut with cartilage.
(v) An incised wound 1 c.m. x 2 c.m. Situated on right cheek. The wound was skin and muscle deep.
(vi) Two incised wounds 2 c.m. x 1.5 c.m. And 2.5 x 1.5 c.m. Situated on right upper chest at the level of second intercostals space 2 c.m. Apart. The wounds were just holes through which right lung was seen which was shrunken. Blood also present in the pleural cavity.
(vii) Two incised wound 2.5 c.m. x 1 c.m. And 2 c.m. x 1.5 c.m. Situated at third intercostals space right upper chest separated 3 c.m. Each other. The wound was penetrated into chest cavity.
(viii) An incised wound 1.5 x 1 c.m. At the level of third rib, so wound was skin, muscle and bone deep.
(ix) An incised wound 2 c.m. x 5 c.m. On lower right chest 5 c.m. Lateral to xiphiod sternum on right chest.
(x) An incised wound 2 c.m. x 1 c.m. On right lateral chest wall 10 c.m. To xiphiod sternum wound penetrating into pleural and chest cavity.
(xi) An incised wound 2 c.m. x 1 c.m. Costal margin of left chest wall 6 c.m. From xiphiod sternum.
The wound was penetrating into abdominal cavity.
(xii) An incised wound 20 c.m. x 8 c.m. Over epigestrium and left hypochondrion, left lumber region and umbilicus. The omentum intestine were visible and injured. The blood collection was seen in peritoneal cavity. Stomach was also injured. Contents of stomach seen in the peritoneal cavity.
(xiii) An incised wound of 2 x 1 c.m. In the hypogestrium 6 c.m. Below the umbilicus. The wound was muscle deep.
(xiv) An incised wound obliquely situated left iliac fossa 2 c.m. Medial to iliac spine. The wound was muscle deep.
(xv) An incised wound 4 c.m. x 2 c.m. Just above the left iliac crest. Wound was skin muscle deep.
(xvi) An incised wound 3 c.m. x 1 c.m. In the right iliac fossa. Wound was skin and muscle deep.
(xvii)An incised wound 2 c.m. x 1 c.m. Posterior surface on right fore-arm. Wound was skin muscle deep.
(xviii) An incised wound 2 c.m. x 5 c.m. Just below injury No,17. The wound was skin muscle deep.
(xix) An incised 3 c.m. x 1 c.m posterior surface of right wrist joint. The wound was skin muscle deep.
(xx) An incised wound 1 c.m. x 1/2 c.m. On little finger of right hand. The wound was skin deep.
(xxi) An incised wound 2 c.m. x 1 c.m. Posterior surface of left wrist joint. The wound was skin deep.
(xxii)An incised wound 1.5 c.m. x 3 c.m. On lateral surface of left knee joint. The wound was skin deep.
' On dissection, right pleura, right lung, abdominal walls, peritoneum, right side of diaphragm, stomach, small and large intestines and liver were injured.
' All the injuries were ante-mortem caused by sharp-edged weapon. Injuries Nos.6, 7, 10, 11 and 12 were individually fatal to life. Cause of death was haemorrhage and shock. The probable time that elapsed between injuries and death was 20 to 60 minutes and between death and post-mortem examination was five to eight hours. Under his report Exh.P.D., the post-mortem examiner confirmed that Nazar Hussain died of sharp-edged weapon injuries, which in his opinion were sufficient to cause death in ordinary course of nature.
' On the same day the post-mortem examiner also made autopsy on the dead body of Muhammad Hussain (52) who had been medically examined while being alive at 1-25 p.m. The following 24 sharp-edged weapon injuries were found on the dead body:---
(i) An incised wound of 3 c.m. x 1 c.m. Right side of forehead. The wound was skin muscle deep and bone deep and bone exposed.
(ii) An incised wound 2.5 x 1/2 c.m. Was situated just above the ala of nose (right side). The cartilage was cut and nasal bone was exposed.
' An incised wound 3 c.m. x 1 c.m. On the left side of chin. The wound was muscle and bone deep.
(iv) An incised wound 1.5 c.m. x 1/2 c.m. Was situated on right side of chin interiorly. The wound was muscle deep.
(v) An incised wound 3 x 1 c.m. Over the right supra clavical region. Wound was penetrated into chest cavity.
(vi) An incised wound 2 c.m. x 1 c.m. Situated in between xiphiod sternum and costal margin on left chest wall. The wound was skin muscle deep and penetrating into chest cavity.
(vii) An incised wound 3 x 1 c.m. Lateral to injury No,6 (on left side of chest). The wound was muscle deep.
(viii) An incised wound 1.5 x 1/2 c.m. On left lateral chest at mid axillary line 8 c.m. Lateral to injury No,7. Blood was present around the wounds. Wound was penetrating into left chest wall and pleura cavity.
(ix) An incised wound of 2 c.m. x 1 c.m. Was situated on left chest back 2 c.m. Below the spine of scapula 4 c.m. Lateral to vertebral column. The wound was skin and muscle deep.
(x) An incised wound 3 c.m. x 1.5 c.m. At the angle of left scapula. Wound was penetrating into chest and pleural cavity.
(xi) An incised wound of 2 x 4 c.m. Was situated 3 c.m. Lateral to injury No,10. The wound was muscle deep.
(xii) An incised wound 3 c.m. x 1 c.m. Was situated below injury No,10. 3 c.m. Lateral to vertebral column on lateral chest wall back. Wound was penetrating into chest and pleural cavity.
(xiii) An incised wound 2 c.m. 5 c.m. Just blow angle of right scapula. The wound was muscle deep.
(xiv) An incised wound 2 x 1 c.m. Was situated 4 c.m. Lateral the injury No,13. The wound was penetrating into chest and pleural cavity.
(xv) An incised wound 3 x 1 c.m. Was situated 2 c.m. Lateral to vertebral column 4 c.m. Below to angle of scapula. The wound was penetrating into chest and pleural cavity.
(xv) An incised wound (stab) 4 x 3 c.m. The right hypgestrium, the omentum, small intestine protruding out.
(xvii)An incised wound 2 c.m. x 1 c.m. Situated into left hypogestrium just below costal margin. The wound was also penetrating into abdominal cavity.
(xviii) An incised wound 2 x 1 c.m. Situated the lumber region. The wound was also penetrating into abdominal cavity.
(xix) An incised wound 22 c.m. x 1 c.m. Situated below the injury No,18.
(xx) An incised wound 3 x 1 c.m. Was situated on left arm posteriorly 2 c.m. Above the elbow joint.
The wound was skin deep.
(xxi) An incised wound 3 c.m. x 1 c.m. Situated superior to left shoulder joint. The wound was skin deep.
(xxii)An incised wound of 1 c.m. x 1/2 c.m. Situated on left thigh lower 1/3 muscle deep.
(xxiii) An incised wound 1.5 x 1/2 c.m. Situated on left knee joint laterally. Skin deep.
(xxiv) An incised wound 3 x 2 c.m. Was situated posteriorly on right thigh. Skin deep. 3 c.m. Below right buttock crease.
' On dissection, pleura, lungs, peritoneum, stomach, small and large intestines and liver were found injured.
' All the injuries were ante-mortem. Injuries Nos.5, 6, 8, 10, 12, 14, 15, 16, 17 and 18 proved fatal to life collectively causing haemorrhage and shock. The probable duration between injuries and death was 1 to 2 hours and between death and autopsy was 2 to 6 hours. The doctor certified under his report Exh.P.F. That Muhammad Hussain suffered death by violence.
8. On the same day, Sajjad Hussain, complainant was medically examined by Dr. Muhammad Safdar Hashmi, P.W.11 and following injuries were noticed on his person:---
(i) An incised wound 2-1/2 c.m. x 1 c.m. Going through on the right side of cheek 2 c.m. Above right angle of mouth.
(ii) An incised wound of 2-1/2 c.m. x 1/2 c.m. On the palmer aspect of left hand.
(iii) An abraided bruise of 3 c.m. x 4 c.m. On the top of left shoulder.
(iv) An incised wound of 1 c.m. x 1/2 c.m. x skin deep on the back of left side of lower part of chest.
(v) An incised wound of 3 c.m. x 1/2 c.m. x skin deep on the right side of back of lower part of chest of at the level of umbilical region.
' Except injury No,3 the remaining injuries were caused by sharp-edged weapon.
9. At the inception of trial, the appellants were charged under section 148, P.P.C. For having formed an unlawful assembly while armed with Chhuris which resulted in violence; under section 302, P.P.C.
Read with section 149, P.P.C. (on two counts) for having committed the murder of Nazar Hussain and his father Muhammad Hussain in prosecution of the common object of the unlawful assembly and under section 324 read with 149, P.P.C. For having made murderous assault at Sajjad Hussain, injured P.W. The appellants denied the charge and claimed trial.
10. The prosecution examined 16 P.Ws. In all in support of the charge out of whom Sajjad Hussain, injured P.W.13 and Fazal Hussain, P.W.14 furnished ocular account of the incident and also deposed about the motive while Abdul Hameed, Police Inspector, P. W.15 proved his investigation.
11. When examined under section 342, Cr.P.C. All the five challaned accused denied each piece of prosecution evidence put to them. However, they did not lead defence evidence and also refused to make statements on oath in terms of section 340(2), Cr.P.C.
12. Learned counsel for the appellants accepted conviction of the appellants on the charge of double murder, attempted murder and rioting and confined their arguments to the quantum of sentence with the plea that mitigating circumstances available on the file had not been taken into consideration by the learned trial Court while passing the impugned judgment. In the opinion of the learned counsel following are the mitigating circumstances, which escaped notice of the learned trial Court:---
(i) It was a sudden flare up/free fight between the parties.
(ii) Both the sides belong to Baloch tribe and traditionally the accused party was within their right to take . Revenge of the killing of their close relations.
(iii) Blood feud enmity exists/existed between the parties.
(iv) The P. Ws. Did not attribute fatal injuries to the accused persons specifically.
(v) Zafar Hussain appellant was aged about 16/17 years at relevant time and, therefore, the trial Court should have separated his case for trial by the Juvenile Court established under the Juvenile Justice System Ordinance, 2000 or lesser penalty should have been imposed on him.
(vi) The accused persons also sustained injuries at the hands of the deceased, but the complainant wrongly claimed while lodging the F.I.R. That they suffered injuries at the hands of their own companions.
13. Now we propose to examine and analyse each contention separately in the light of the available material and the law governing the subject of quantum of sentence.
' (i) The contention of the learned counsel for the petitioner that it was a sudden flare up/free fight is not receiving support from the manner of incident and the attending circumstances. Admittedly, both the sides had reached the Court of Session, Dera Ghazi Khan to enter appearance in the criminal cases pending trial. There was no occasion for the appellants to arm themselves with Chhuris while appearing before the Court of law. During the course of arguments, learned counsel for the appellants were not possessed with any answer as to why the appellants chose to arm themselves with Chhuries. While appearing before the Court of law, the appellants assaulted the deceased persons and the complainant with Chhuries inside the court-room. The mode and manner of the incident provide a basis to infer that it was premeditated and preplanned attack on the complainant party. Needless to add that the litigants appearing in the Court are not supposed and expected to arm themselves with deadly weapons.
(ii) It is true that both sides belong to Baloch tribe and it might beA their tradition to take revenge from each other but the law does I not recognize the system of private revenge.
(iii) Mere fact that blood feud enmity existed between both the sides for which they were present in the Court of Session would not give a license to the appellants to kill their rivals inside the court- room. The accused persons had reached the Court of Session, Dera Ghazi Khan to prosecute their case and cause in accordance with law and were not justified to kill their rivals inside the court- room.
(iv) A combined examination of the entire record would show that the deceased persons and the P.Ws. Were not apprehending danger to their lives nor they were expecting attack from the appellants while standing in front of the Court of Session, Dera Ghazi Khan. All of a sudden the appellants opened attack upon which the deceased persons and the injured took shelter inside the court-room of learned Sessions Judge. The appellants injured Nazar Hussain and his father Muhammad Hussain brutally. In the preceding paragraph we have already mentioned that Nazar Hussain suffered 22 injuries on different parts of his body including face, forehead, abdomen and chest. Likewise, his father Muhammad Hussain sustained 24 sharp-edged weapon injuries on his hand, face, abdomen, neck and other parts of the body. Sajjad Hussain, complainant also received sharp-edged weapon injuries at the hands of the assailants. The way the deceased and the P.Ws.
Were attacked, it was not possible for the eye-witnesses including the injured to attribute each and every injury of the deceased persons to the assailants specifically. All the five appellants actively participated in the occurrence and caused Chhuri blows to deceased persons and the injured complainant. They were caught red-handed with bloodstained Chhuries in the Session Court premises. In the circumstances, mere fact that the eye-witnesses could not attribute each and every injury of the deceased persons to the B appellants specifically would hardly benefit the appellants while determining the quantum of sentence.
(v) Zafar Hussain, appellant did not claim to be a juvenile during course of investigation as well as at trial. At the time of his arrest, the investigator recorded his age as 22/23 years. For the first time he claimed to be aged about 16/17 years when his statement under section 342, Cr.P.C. Had been recorded. Here we would say that statement of Zafar Hussain without oath regarding his age cannot be and should not be accepted as conclusive proof of his age, particularly when he did not claim to be a juvenile at commencement of the trial.
(vi) A perusal of the F.I.R. Would show that the complainant stated that the accused persons also sustained injuries at the hands of their own companions accidentally. The accused did not get themselves medically examined. They were produced before the area Magistrate at the time of their physical remand and when they were remanded to judicial custody. They were represented by defence counsel of their choice on each and every occasion. There is no explanation whatsoever as to why the appellants avoided their medical examination. From this state of affairs it appears that the injuries which they suffered accidentally at the hands of their own companions were trivial in nature. Had the appellants sustained grievous injuries during the occurrence at the hands of the complainant party, they would have got themselves medically examined. In absence of medico-legal reports no importance can be attached to their self-assertion which they have introduced before this Court for the first time. Needless to add that it was not the case of the appellants at trial.
14. The appellants killed Nazar Hussain and his father Muhammad Hussain inside the court-room of learned Sessions Judge, Dera Ghazi Khan. The complainant also sustained injuries at their hands.
His medical examiner was not even cross-examined by the defence. We have already mentioned time and again in the preceding paragraphs that the appellants were caught red-handed with blood-stained Chhuris within the Court premises by the police officials present there in connection with their normal official duty. Keeping in view the venue of killings and the manner of incident we are of the considered view that no mitigating circumstance whatsoever was/is available to the appellants. The learned trial Court rightly convicted the appellants and awarded them normal penalty of death on two counts. We see no legal and factual justification to interfere with the judgment of the learned trial Court qua the quantum of sentence.
15. The learned trial Court charge-sheeted the five appellants under section 148, P.P.C. For having formed an unlawful assembly while armed with Chhuris which caused death of Nazar Hussain and Muhammad Hussain and made murderous assault on Sajjad Hussain, complainant. The learned trial Court held all the five appellants vicariously liable for the killings and assault on the complainant, but while recording conviction and sentence, he inadvertently applied the provisions of section 34, P.P.C. And also omitted to convict and sentence the appellants for the charge of rioting and attempted murder. We, therefore, rectify the omission and mistake committed by the learned trial Court. The conviction and sentence imposed on the five appellants on the charge of murder on two counts may be read under sections 302(b)/149, P. P. C .
16. The appellants formed an unlawful assembly which resulted in violence and, therefore, they are all convicted under section 148, P.P.C. And sentenced to three years rigorous imprisonment each.
17. All the five appellants made murderous assault on Sajjad Hussain, P.W. By causing sharp-edged weapon injuries on different D parts of his body. We have already observed that the medical examiner of Sajjad Hussain, complainant had not been cross-examined. In this view of the matter the appellants are convicted under sections 324/149, P.P.C. And are sentenced to five years' rigorous imprisonment each with a fine of Rs,25,000 each and in case of default thereof to undergo further rigorous imprisonment for six months each.
18. The sentence of one year's rigorous imprisonment each with Daman of Rs,2,000 each for having caused injuries to Sajjad Hussain, complainant may be read as under sections 337-F(i)/149, P.P.C.
19. For the foregoing reasons we dismiss Criminal Appeal No,26 of 2002.
20. Murder Reference No,67 of 2002 is answered in the affirmative.
21. Death sentence imposed on the appellants by the learned trial Court on two counts is u>confirmed.