' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Crim. Appeal No, 211 of 2002 filed by Muhammad Daud and Tahir Hameed against their conviction and sentence, Crim. 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:- {{TABLE}} S. No, Name of accused Offence u/s Sentences
(1) Daud 302(b)134, PPC Sentenced to death and compensation of Rs, 1,00,000/-. As required u/s. 544A, Cr.P.. To the legal heirs of the deceased Altaf and in default whereof to , undergo S.I. For three years. f Tahir Hameed. 302(b)/34, PPC Sentenced to imprisonment for life and compensation of Rs, 1,00,000/-, as required u/s. 544A, Cr.P.C. To the legal heirs of the deceased and in default whereof to undergo S.I. For three years.
(2) Daud and Tahir U/s. 324/34, Sentenced to Hameed, PPC undergo R.I. For five years each alongwith 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 U/s. 337-F (ii)/ Sentenced to Hameed. 34, PPC undergo two years R.I. As Tazir on two counts and also pay Daman of Rs, 10,000/- to each PW All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. however was extended to Tahir Hameed, accused. {{TABLE}}
2. Precisely, the prosecution story as alleged in FIR (Exh. PA/1) is that on 15.12.2000, the complainant alongwith Altaf Hussain, deceased, Muhammad Sajjad PW-10, Muhammad Fayyaz and Muhammad Nisar (not produced) after offering the Jumma prayer in Hanfia Mosque, wee 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 PW 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 PW 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 alongwith 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 Sajjad, 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/PW; that upon the hue and cry raised, both the accused had succeeded to escape from the scene of crime; that the complainant, Sajjad PW and Altaf in an injured condition were being taken to Civil Hospital Hasanabdal, 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 excharge 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 between me and Nisar PW. 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 PWs were standing who way laid me. Nisar PW asked to take revenge for his insult made earlier whereafter 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 trespass 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 himiliated 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 connivance 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 u/s. 340(2), Cr.P.C. For did he produced defence evidence. The learned Trial Court after hearing the learned counsel of 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 FIR, took place at 2:30 p.m. And the FIR was lodged at 4:15 p.m. On the same day at Police Station, Hassan Abdal, which is at a distance of ten and half K.M. And FIR is promptly lodged. The ocular account was furnished in this case by Fazal Karim,PW- 9/complainant (father of the deceased) and Muhammad sajjad pw-1 , both injured eye-witnesses.
Fazal Karim, PW9 retierated the story of FIR, according to which, when he alongwith deceased Altaf Hussain and nephew Muhammad Sajjad, PW-10, Muhammad Fayyaz and Muhammad Nisar PW (not examined) were passing near the house of the Daud appellant, Daud appellant while armed with Chhurri gave blow on left chest of Altaf Hussain (deceased), Tahir Hameed appellant while armed with .12 bore carbine made fire which hit Sajjad PW-10 on his left thigh and Muhammad Daud appellant gave a chhurri blow hitting left wrist of the complainant. The same evidence was corroborated by another injured eye-witness PW-10 Muhammad Sajjad. The ocular account furnished by both the PWs is also corroborated by medical evidence furnished by Dr. Abdul Zahoor Malik, PW5 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-edged weapons and on the person of Muhammad Sajjad injured PW-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 PW-7 and Muhammad Amir Khan, S.I/ PW-11 but the same was not wedded with the empty recovered from the spot as the 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 Daud, it was nowhere 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 not 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 PW (not examined), brother of Muhammad Sajjad PW-10. The complainant alongwith PWs after offering the Jumma prayer made complaint to the 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, PW-10 and thereafter the matter was patched up by the complainant but the accused Muhammad Daoud 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 Daoud is more plausible and same also gets support from the version of the complainant as well as from the FIR was one day prior to the occurrence quarrel had taken place between the accused and Nisar PW (given up) and thereafter the complainant alongwith 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 PWs 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, PWs 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 PW-11 Muhammad Amir Khan, S.I. The place of occurrence was in front of the house of Muhammad Daoud appellant-accused. This fact shows that what triggered the incident prior to the occurrence shrouded in mystery and some-how 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 Daoud 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 parts had been mentioned. Non-mentioning of the house of the appellant-accused in Exh. PK/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 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 fale of drawing inference from the 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 PWs-9 & 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 as to the presence of four family members of the complainant including the deceased and PWs 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 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 u/s. 302(b), PPC 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.