Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 204 of 2005 filed by Ali Aksar and Muhammad Akram appellants, who were convicted and sentenced by learned Addl.
Sessions Judge, Attack vide impugned judgment dated 31.5.2005 as under:-- Ali Aksar.
Death under Section 302(b) PPC and to pay Rs,50,000/- as compensation to the legal heirs of the deceased or in default six months SI.
Under Section 324 PPC.
Five years RI and to pay a fine of Rs,25,000/- or in default thereof three months RI.
Under Section 337-A (ii) PPC.
One year RI with Arsh: Under Section 337-F (ii) PPC.
One year RI and Daman amounting to Rs,30,000/-.
However, all the sentences were ordered to run concurrently with the benefit of Section 382-B Cr.P.C.
Muhammad Akram Under Section 337-F (ii) PPC, one year RI and to pay Daman of Rs, 30,000/- with the benefit of Section 382-B Cr.P.C.
Murder Reference No, 708 of 2005 for confirmation or otherwise of death sentence of Ali Aksar appellant, Criminal Appeal No, 212 of 2005 for acquittal of Muhammad Aslam, Muhammad Akram and Tabraiz Khan respondents and Cri. Revision No, 108 of 2005 filed by complainant against: AliAksar respondent for enhancement of compensation shah also be disposed of through this single judgment.
2. Brief fasts of the case as narrated by Mir Afzal complainant are that on 22.12.2003 he was present in his house when his nephew Azam Khan came and informed him that today he was coming to his house after taking milk, in the way dogs were fighting. Ali Aksar accused asked him why he has beaten the dogs whereupon he gave him beating. On this information he along with Azam Khan and Khalid Khan went to the house of Ali Aksar where Muhammad Aslam armed with Khunda, Muhammad Akram armed with chuni, Ali Aksar armed with pistol and Churri, Tabraiz armed with soti and Najab armed with soti were present there. During conversation a quarrel took place.
Muhammad Aslam accused raised Lalkara that they should be finished, on which Ali Aksar fired with his pistol in the air. It was about 6.30 a.m Muhammad Aslam accused gave him Khunda blow on his back whereas Ali Aksar inflicted churri blows on his head, left ear and left shoulder. He raised alarms on which Nazam Khan, Waheed son of Baboo Ansar, Mst. Imtiaz Bibi wife of Ansar and his son Waqar Ahmed reached at the spot. Ali Aksar accused gave churri blow to Nazam Khan, which hit on left side of his chest, who fell down and succumbed to the injuries. Muhammad Akram accused gave churri blow to Waheed on his left flank. Tabraiz and Najab Khan accused gave soti blows to him and Waheed on different parts of their bodies. Mst. Imtiaz Bibi step forward to rescue him and tried to catch churri due to which she received injuries on her right hand.
Motive behind the occurrence was that in the morning Ali Aksar gave beating to Azam Khan without any reason on which he went to his house for complaining and due to said grudge, all the accused with their common object murdered Nazam and attempted to commit their murder.
3. Investigation of the case was taken over by Ghulam Qadir SI/PW-17. He after receiving information about the occurrence reached at the spot, examined the dead body of Azam Khan deceased, prepared inquest report Ex.PZ and injury statement Ex.PAA, prepared injury statements of Mir Afzal, Waheed Akhtar and Mst. Imtiaz Bibi PW-s Ex.PBB, Ex.PCC and Ex.PDD respectively, inspected the spot, took into possession blood stained earth from the place where the deceased was fallen down on receipt of injury, seized the same vide recovery memo. Ex.PO, took into possession one empty of .30-bore pistol vide memo. Ex.PB, recorded the statements of PW-s u/s 161 Cr.P.C. and on 24.12.2003 arrested Muhammad Aslam and Tabraiz accused. On 25.12.2003 during interrogation Muhammad Aslam accused got recovered "Kunda" P-1 which was taken into possession vide memo. Ex.PK. On 28.12.2003 Tabraiz accused while in custody got recovered soti P-2 which was taken into possession vide memo. Ex.PL. On 30.12.2003, he arrested Najab accused and Ali Aksar accused. On 1.1.2004 Ali Aksar accused while in custody got recovered blood stained chhuri P-9 which was taken into possession vide memo. Ex.PQ. On 5.1.2004 Najab accused got recovered soti P-10 which was taken into possession .vide memo. Ex.PW-. On 6.1.2004 Ali Aksar accused got recovered pistol P-8 which was taken into possession vide memo. Ex.PX. On 18.2.2004 he arrested Muhammad Akram accused. Thereafter Investigation was entrusted to Ikhlas Khan SI/PW-18 who on 27.2.2004 got recovered chhuri P.11 on the pointation of Muhammad Akram accused which was taken into possession vide memo. Ex.PX. However, after completion of remaining formal investigation, the accused were challaned to face the trial.
4. At the trial, the prosecution in order to prove its case produced nineteen witnesses in all, thereafter learned DDA after tendering in evidence report of chemical examiner Ex.PJJ and Ex.PKK, report of Forensic Science Laboratory Ex.PLL and Ex.PMM closed the prosecution case. Then the statements of the accused were recorded u/S. 342 Cr.P.C. However, after conclusion of trial, the appellants were convicted and sentenced as mentioned above by the learned trial Court.
5. After having read the entire prosecution evidence; the statement of appellants recorded u/S. 342 Cr.P.C. and other material available on record; learned counsel for the appellants submits that occurrence had taken place on throwing of stone by Muhammad Azam on the dog of Ali Aksar appellant; that it is also case of prosecution that before the occurrence -hot words were exchanged between the parties; that after half an hour of the earlier occurrence all the members of the complainant party while armed with different weapons came to the house of appellant party; that case of the prosecution is that conversation was going on between the parties then a fight took place; that according to prosecution case Ali Aksar appellant was having pistol but he did not aim it on any body from the complainant side and he fired in the air and this fact has been conceded by the complainant that Ali Aksar appellant did not aim the pistol either on him or any of his companion; that there is solitary blow on the person of Nazam deceased and was not repeated by Ali Aksar appellant; that the occurrence had taken place at the spur of moment without taking any un due advantage without premeditation and without preconsultation; that Muhammad Azam who is the real cause of this occurrence was never produced by the prosecution; that Khalid Khan PW was also not produced by the prosecution and complainant had spread net wide against the appellants party and even did not spare the father of the appellant who was 82 years of age at the time of occurrence; that no case against Ali Aksar appellant is made out and even it is not a case of death sentence because he did not repeat the blow. He has relied upon 2007 SCM R 994 and 1019, 2006 SCM R 1127, PLJ 2004 S.0 30, NLR 2009 Cr.C. 305, 2010 YLR 121, PLJ 2010 Cr.C. 1 and PLJ 2009 Cr.C. 860 and submits that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal.
6. On the other hand, learned DPG assisted by learned counsel for the complainant, who has filed appeal against acquittal and criminal revision for enhancement of amount of compensation, submits that date, time and place of occurrence has been admitted by the appellants party; that a specific plea has been taken by Ali Aksar appellant but neither he himself appeared in the witness box as required under Section 340(2) Cr.P.C. nor produced any defence evidence in his favour as required under Article 121 of Qanoon-e-Shahadat Order, 1984, because the onus lies on the shoulder of the appellant but he failed to discharge the onus; that none from the side of appellants received a single scratch; that complainant received three injuries on his person during the occurrence; that injury on the person of Nazam deceased proved fatal and he has relied upon PLD 2008 S.C. 40; that it is not the case of single accused and seat of injury on the person of the deceased is on the most vital part of his body; that all the prosecution witnesses have supported the case of the prosecution; that the prosecution has proved its case against the appellants beyond any shadow of doubt and the appeal filed 15y them is liable to be dismissed.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 22.12.2003 at 6.30 a.m, matter was reported to the police in the civil hospital Attock at 7.30 a.m. and the formal FIR was recorded at 7.45 a.m. on the same day while the distance between the police station and place of occurrence was 7(1/2) kilometers. Nazam Khan is the deceased in this case. There are three injured namely Mir Afzal, Waheed Akhtar and Mst. Imtiaz Bibi (given up PW-). Mir Afzal complainant appeared before the learned trial Court as PW-15. He is uncle of Nazam deceased.
Waheed injured appeared as PW-16. The Investigating Officer took into possession blood stained earth from the place of occurrence vide memo. Ex.PO. Only one empty of .30-bore pistol was taken into possession by the Investigating Officer vide memo. Ex.PB. On 25.12.2004 Muhammad Aslam got recovered "Khunda" P-1 which was taken into possession vide memo. Ex.PK. Ali Aksar appellant was arrested on 30.12.2003 who on 1.1.2004 got recovered blood stained chhuri P-9 which was taken into possession vide memo. Ex.PQ. On 6.1.2004 Ali Aksar accused got recovered pistol P-8 which was taken into possession vide memo. Ex.PX. Thereafter on 5.1.2004 Najab co-accused got recovered soti P-10 which was taken into possession vide memo. Ex.PW-. Dr. Ijaz Hussain Khan, Radiologist PW3, on 1.1.2004 conducted the X-ray of Mir Afzal injured PW and according to him no bony injury was seen in the vault of skull and right shoulder. Dr. Ammar Hashmi Radiologist PW-4 on 30.12.2003 conducted X-ray of Mst. Imtiaz Bibi injured PW (not produced) and according to him no fracture was seen on the right hand of Mst. Imtiaz Bibi. On 22.12.2003 lady doctor Tabassam Shaheen, PW-5 medically examined Mst. Imtiaz Bibi wife of Ansar and she found three injuries on her person out of which two are abrasions. Doctor Muhammad Zubair PW-6 on 22.12.2003 at 9.30 a.m. conducted the post-mortem examination on the dead body of deceased Nazam Khan. There was only one injury on his chest. The probable time elapsed between injury and death was few minutes whereas the time between death and postmortem was 2 to 5 hours. Doctor Muhammad Akhtar Khan PW-12 medically examined Mir Afzal complainant/injured PW and he found three injuries on his person with sharp edge weapon. On the same day, he also medically examined Waheed Akhtar PW and he found one injury on his person.
8. The motive behind the occurrence according to prosecution was that on the day of occurrence at 6.00 a.m. it was the season of winter when Ali Aksar appellant was milking his buffalos and his dog was tethered along with buffalos, Muhammad Azam nephew of the complainant passed from there, the said dog barked on which Muhammad Azam threw a stone on the dog and an altercation took place between Muhammad Azam and Ali Aksar appellant. Muhammad Azam went to the house and told the whole occurrence to Mir Afzal complainant, his uncle. According to prosecution case the complainant and other persons went to the house of appellant in order to make the complaint about the altercation took place between Muhammad Azam and Ali Aksar appellant and thereafter the occurrence had taken place. Although both the eye-witnesses have supported the prosecution case as narrated in the FIR while on the other hand version of Ali Aksar appellant was recorded in his statement u/S. 342 Cr.P.C. especially in reply to Question No, 12 which is as under:-- "I, Muhammad Aslam, my father, Akram and Tabraiz, my brothers and Najab, my son who are the only male members of my family have been falsely implicated in this case. In fact on 22.12.2003 at about 5.30 AM I was milking my buffalo at my Dera. Muhammad Azam PW passed from nearby. My dog which was tethered had barked at Azam, who pelted stone on it. Thereupon I lodged protest to him. Azam exchanged hot words with me. I gave him beating whereupon he left the place with the threat to take revenge. After a short while Mir Afzal complainant, armed with gun, Azam and Nazim with chhuris, Waheed Akhtar with soti rushed to the spot which is open place bearing Khasra No, 32 and is owned by my father Muhammad Aslam. Mir Afzal called me out of my house and then exhorted the co accused to teach lesson to me for giving beating to Azam. Thereupon Azam PW attacked at me with gun. I caused him chhuri blows in the exercise of right of self defence. Mir Afzal staggered and fell in the neighboring depression. Having lost control on the gun, the same dropped there. Nazim then armed with chhuri attempted to attack on me. I gave him single blow. He fell down and died at the spot. Waheed Akhtar gave me 2/3 stick blows. I also caused him chhuri blows. As I had the training of `gatka' therefore, I remained successful in defending me otherwise I have been put to death by the complainant party as they have come to the spot to take revenge and retaliation for I had given beating Azam Khalid, Muhammad Hanif, Hasti Khan, the residents of neighboring hosue came to the spot in time. They had witnessed the occurrence and also intervened. Thereupon the complainant party left to their house." On the same day Ghulam Qadir SI visited my house to whom I produced gun which was snatched from Mir Afzal. The SI took over the gun. I was also injured and required the I.O. to get me medically examined but being conscious of the aggression of the complainant party and my right of private defence he did not get me medically examined. He also did not seize the gun of Mir Afzal as a case property. The remaining accused persons did not participate in the occurrence nor they caused injuries to the PWs. My father is 82-years old. He did not raise lalkara. He was also not expected to exhort his three sons and grand-son to participate in the occurrence. The occurrence has taken place in our plot and just in front of the main door of my house. Our family has no previous enmity or history as against the complainant party."
9. This version of the appellant was made to the Investigating Officer by the appellant but he refused to record his version and stated that this version was not taken by the appellant when he appeared before him. We also do not believe the version put forward by the appellant because there was one deceased and three injured PW-s and one of them was not produced by the prosecution but we think that this occurrence had taken place at the spur of moment without premeditation or preconsultation because according to FIR earlier occurrence had taken place at 6.00 a.m. on the same day and after half an hour this incident had taken place. It was the case of prosecution that the complainant party gone to Ali Aksar appellant to make complaint about the earlier occurrence between Muhammad Azam and the appellant and an altercation took place between the parties. According to the prosecution case Ali Aksar was armed with pistol and chhuri.
Chhuri was in his dub and he fired with his pistol in the air but had no intention to kill any person from the side of complainant. He must aim the pistol towards Muhammad Azam which has not been done by the appellant. It is also not plausible that the accused party was expected that the complainant party would come to their house and then they all armed with weapon and gave beating to the complainant party. After firing in the air Ali Aksar appellant put the pistol in his dub and took out the chhuri and gave chhuri blow on the person of Nazam which proved fatal. There is no previous background enmity between the parties. The appellant committed the murder of deceased without premeditation and preconsultation. In our considered opinion this occurrence had taken place at the spur of moment and no undue advantage was taken by the appellant and churri blow was not repeated by the appellant. In this view of the matter, we are of the view that it is a case u/S. 302(b) PPC of which two sentences have been provided. This is a case in which death sentence is not called for in view of the above mitigating circumstances, we maintain the conviction and sentence u/S. 302(b) PPC but convert the same to life imprisonment with the benefit of Section 382 (b) Cr.P.C. The convictions and sentences under Section 324 PPC, u/S. 337- A(ii) PPC and u/S. 337-F(ii) PPC, recorded against Ali Aksar appellant by the learned trial Court are maintained. However, the sentences are ordered to run concurrently. As far as Akram appellant is concerned, he has already undergone four months R.I. This occurrence had taken place in 2003 and we are now in 2010 so it would be proper that the period which he had already undergone is sufficient to meet the ends of justice. The death sentence of Ali Aksar appellant is not confirmed and the murder reference is answered in the negative.
10.As far as Criminal Appeal No, 212 of 2005 filed by Mir Afzal against Muhammad Aslam and others against their acquittal is concerned, it came up for hearing before our learned brother and it was admitted for hearing and notice was issued. We have gone through the judgment passed by learned trial Court for the acquittal of the respondents and we are of the view that learned trial Court had rightly acquitted the respondents, so the appeal against acquittal is dismissed.
11. The Criminal Revision No, 108 of 2005 filed by Mir Afzal complainant for enhancement of amount of compensation is also dismissed.