' KHAWAJA MUHAMMAD SHARIF, C.J.--- This judgment will dispose of Criminal Appeal No,335 of 2006 filed by Asad Mahmood and Yasir Mahmood, appellants who were convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide judgment dated 21-9-2006 as under:-- Asad Mehmood Death and to pay compensation of Rs,50,000 under section 302(b) read with section 34, P.P.C.
Yasir Mehmood ' Three years' R.I under section 337-F(ii) P.P.C. On two counts as Daman.
' Two years' R.I., under section 337-A(i), P.P.C. As Daman on two counts.
' Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' Murder Reference No,695 of 2006 for confirmation or otherwise of death sentence of Asad Mehmood appellant shall also be replied through this single judgment.
2. Brief facts of the case as narrated by the complainant in the complaint Exh.P.J. Are that he was residing in Gulistan Colony and was a painter. On the day of occurrence he was returning to home at about 7-00 p.m. After seeing his friend Arshad, when he reached in front of the house of Yasir Mahmood accused who was standing in front of his house started abusing him, he refrained him on which the accused started scuffled. He get himself free, went home and informed his brother Aftab Ahmed. His brother Aftab Ahmed, Mst. Zareefan Bibi, his mother had gone to the house of Yasir Mahmood to complain about that he was following his brother and mother, his brother complained them when Yasir Mahmood armed with dagger, Asad Mahmood armed with iron rod and Mst. Malka armed with Danda attacked his brother and mother. He has also stepped forward when Yasir Mahmood accused gave a dagger blow on his left arm. Asad Mahmood gave a Saria blow on the head of Aftab Ahmed deceased on the backside of his head. Mst. Malka accused gave a Danda blow on the nose of his deceased brother. Yasir accused inflicted two dagger blows on ear and lip of the deceased. Asad accused again inflicted a Saria blow on the left cheek of the deceased. The complainant and his mother raised hue and cry, Aftab Ahmed, his brother fell down unconscious and in the meantime Arshad and Tanvir P.W. Reached at the spot who rescued them from the accused person. The motive was alleged to be a previous quarrel between complainant and Yasir accused which had taken place two months before the occurrence.
3. The investigation of the case was taken over by Muhammad Saeed A.S.-I., P.W.8, who on receipt of information about the occurrence reached at the spot, inspected the place of occurrence and prepared injury statement Exh.P.H. As the injured was in serious condition, therefore, he made written request Exh.P.H. To the doctor for recording statement of injured. On 1-6-2004 he visited the place of occurrence, prepared rough site plan Exh. P.J., prepared injury statement Exh.P.K. On 31-5- 2004 and recorded the statements of P.Ws. On 1-6-2004. He also secured blood-stained earth from place of occurrence vide memo Exh.P.L. The injured P.W. Died on 2-6-2004 and the investigation was entrusted to Rasheed Ahmed S.-I. Rasheed Ahmed P. W.17 took over the investigation of this case. On 2-6-2004, on the information that Aftab Mehmood injured died in the hospital, he reached there, prepared inquest report Exh.P.S. And injury statement Exh.P.T. And sent the dead body to the mortuary for postmortem examination. On 16-6-2004 Mst. Malka accused was arrested from whom Abdul Qayum S.-I. Has already recovered Danda vide memo Exh.P.M. On 24-7-2004, he arrested Yasir Mahmood and Asad Mahmood accused. On 27-7-2004, Yasir Mahmood accused led to the recovery of dagger P.4 which was taken into possession vide memo Exh.P.Q. On the same day, Asad Mehmood accused led to the recovery of Saria P.3 which was taken into possession vide memo Exh.PN and after completion of formal investigation, accused were sent to face the trial.
4. At the trial prosecution in order to prove its case produced 17 witnesses in all. The learned DDA after tendering in evidence reports of the Chemical Examiner Exh. P. U. , Exh. P. V . , Exh.P. X. , reports of Serologist Exh.P.U./1, Exh.P.V./1 and Exh.P.X./1 closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for appellant submits that in fact it was the complainant party, who was aggressor; that appellants had produced their sister, namely, Majida Khatoon as D.W.1 in their defence; that it was not the case of the complainant that appellants had gone to the roof of their house and started pelting stone on the complainant party; that injuries attributed to Asad Mehmood appellant on the person of Aftab Ahmed deceased are simple in nature; that according to the prosecution case he used iron rod and he was not armed with any dagger; that learned trial Court had come to the conclusion that occurrence had taken place at the spur of the moment and in view of the said observations, Asad Mehmood appellant should also be given some concessions; that it is a case of two versions, one put forward by the prosecution and other introduced by the appellants especially through the statement of Mst. Majida Khatoon D. W.1.
6. On the other hand, learned Deputy Prosecutor-General submits that already learned trial Court had dealt with Yasir Mehmood appellant in a very lenient manner so he should be given notice for the enhancement of sentence. He submits that it was a case in which one person had lost his life and the other was seriously injured; that names of the appellants, the roles they played and the weapons of offence with which they were armed have been specifically mentioned in the F.I.R.; that prosecution has proved its case against the appellants beyond any shadow of doubt and the appeal filed by them is liable to be dismissed.
7. We have heard the arguments advanced by learned counsel for the parties and have also gone through the record very minutely with their able assistance. Occurrence in this case had taken place on 31-5-2004 at 7-00 p.m. Within the revenue estate of Gulistan Colony Lane No,III Mohallah Roshan Din at a distance of three K.Ms away from Police Station Civil Line, Rawalpindi while the matter was reported to the police on the same day at 11-30 p.m. By Altaf Ahmed complainant through complaint Exh.P.G. And the formal F.I.R. Was recorded on the same day at 11-55 p.m. By Muhammad Sabir S.-I. P.W.15.
Dr. Muhammad Shakeel P.W.3 on 31-5-2004 medically examined both Altaf Ahmed and Aftab Ahmad and found two and six injuries on their persons respectively. Injuries Nos.3, 5 and 6 on the person of Aftab Ahmed are with sharp edged weapon while injuries Nos.1 to 4 are with blunt weapon. Both the appellants were arrested in this case on 24-7-2004. Yasir Mehmood appellant got recovered dagger blood-stained on 27-7-2004, which was taken into possession vide memo Exh.P.Q. While Asad Mehmood appellant got recovered Danda and iron rod on 27-7-2004, which were taken into possession vide memo Exh. P. M . And Exh.P.N. Respectively.
' The case of the prosecution was that abuses were given by the appellant's party and the complainant's party had come to the house of the accused to complaint. It was also the case of the prosecution that first appellants were not armed with any weapon and when altercation took place appellants went into their house and came back along with their mother Mst. Malka Khatoon while armed with weapons and gave injuries to Aftab Ahmed and Altaf Ahmad. Ocular account in this case is fully corroborated by medical evidence. We cannot say that it was a case of right of self defence of person or property as there was not a single scratch on the body of any of the appellants or their mother Mst. Malka Khatoon. It is correct that Mst. Majida Khatoon was examined as D.W.1 in which she stated that she had gone to the house of one Yaqoob in order to fetch ice. The complainant Altaf was present on her way to the house of Muhammad Yaqoob, who came forward and tried to stop her. It is not even a case of grave and sudden provocation.
' We are satisfied with the version given by the eye-witnesses before the police and before the learned trial Court but the case of the prosecution itself is that when the complainant party went to the house of appellants none of them was armed with any weapon and it was also the case of the prosecution that when they exchanged hot words appellants party went into the house and took dagger, iron rod and Dandas. As far as, Asad Mehmood appellant is concerned, he gave two blows with iron rod on the person of the deceased but the findings of the learned trial Court are to the effect that occurrence had taken place at the spur of the moment. As the findings of the learned trial Court are that occurrence had taken place at the spur of the moment and he convicted and sentenced to both the appellants according to their roles, which they played during the occurrence, which took place in front of their house and were not armed with any weapon when the complainant party arrived, moreover, immediate cause of murder is shrouded in mystery and Altaf Ahmad complainant P.W.10 was involved in case F.I.R. No,408 of 2000 dated 16-8-2000 registered under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and F.I.R. No,891 of 2003 dated 4-12-2003 registered under section 399/402, P.P.C. With Police Station Civil Line whereas brother Aftab deceased was also involved in criminal case F.I.R. No,277 of 2002 registered under section 380/457, P.P.C. And his other real brother Ilyas was also involved in case F.I.R. No,286 of 2002 dated 8-6-2002 registered under section 324/353, P.P.C. Read with section 7-21-91 SIA, it seems that complainant's party is having a criminal history in their credit and they are responsible for this occurrence, so though we maintain the conviction of Asad Mehmood appellant under section 302(b), P.P.C. But convert his sentence from death to Imprisonment for life with the benefit of section 382-B, Cr.P.C. However, all the sentences are ordered to run concurrently. Death sentence is not confirmed and Murder Reference is replied in Negative.
' So far as, Yasir Mehmood appellant is concerned, this appeal to his extent is dismissed. The conviction and sentence recorded against him by the learned trial Court vide impugned judgment is maintained in toto.