' KHILJI ARIF HUSSAIN, J.--- The above titled appeal and jail petition arises out of a common judgment dated 5-11-2002 of the Division Bench of the Lahore High Court, Rawalpindi Bench Rawalpindi in Criminal Appeal No,371 of 2004, Reference No,804 of 2001, converting death sentence awarded to Akhlaq Ahmed respondent into life imprisonment. The jail petition has been filed against the order of conviction and sentence, whereas Criminal Appeal No,282 of 2004 has been filed for enhancement of sentence.
2. We proposed to dispose of these appeal/jail petition by this judgment as the facts and law so also the controversy involved are the same.
3. The prosecution case as disclosed in the F.I.R. By complainant P.W.12 is that Hashim Kamal son of Khalid Khan was his brother-in-law and he owned land in the area of Dheri Malhu. Muhammad Ishaq son of Abdul Rehman resident of the same village also owned some land adjacent to land of Hashim Kamal, but has no way to link with metalled road and to have access to his land, used the land of Hashim Kamal. About 8/10 days before the occurrence, Hashim Kamal and Nawazish Khan (both deceased) restrained Muhammad Ishaq from using their land as passage and asked him that he should arrange for an alternate passage, as their land was not a thoroughfare/street. Upon this, Muhammad Ishaq exchanged hot words with both the deceased and he also abused them. In return, Hashim Kamal gave slaps to Muhammad Ishaq who thereafter threatened him that he will take revenge of giving him slaps. On 19-5-2000 at about 4-30 p.m. The complainant along with Hashim Kamal and Nawazish Khan went to the house of Wan son of Aziz Khan resident of Dheri Malhu to talk with him about chaff which was lying in the land of the complainant. Hashim Kamal and Nawazish Khan stood near the house of Irfan while complainant went to call Muhammad Irfan from his house. As soon as Irfan came out of his house, Muhammad Ishaq armed with .30 bore pistol, Muhammad Ishaq armed with Kalashnikov and Muhammad Akhlaq (petitioner in Jail Petition No,419 of 2004) armed with .30 bore pistol came there from the backside. Muhammad Ishaq raised Lalkara to Hashim Kamal and Nawazish Khan that today they would teach them a lesson for giving slaps to him. In the meantime, Muhammad Ishtiaq started firing with Kalashnikov upon Hashim Kamal who on receiving bullets fell down at the spot. Muhammad Akhlaq (petition in Jail Petition No,419 of 2004 hereinafter referred as accused) and Muhammad Ishaq also made firing upon him when he was lying on the ground. Hashim Kamal expired at the spot. In order to save his life from accused, Nawazish Khan ran away towards the Haveli of Muhammad Miskeen and all the three accused chased him while firing. Nawazish Khan also received injuries due to the firing of the accused persons and he took shelter in the residential room of the Haveli of Muhammad Miskeen where the accused along with other co-accused also entered by chasing him and made firing upon him, as a result of which he expired there. The complainant stated that apart from him and Irfan, the concurrence was also witnessed by Jamal Khan and Anwar Khan P.W.13.
4. In order to prove its case, the prosecution has produced as many as 18 witnesses and tendered in evidence reports of Chemical Examiner and reports of Serologist, Exhs.P.Q., P.Q./1, P.R., P.R./1 and report of Forensic Science Laboratory, Exh.P.S. Dr. Abdul Hameed, Medical Officer P.W.1, conducted post-mortem examination of both the deceased on 19-5-2000 and 20-5-2000.
5. The following injuries were found on the dead body of Nawazish Khan:--- "(1) A fire-arm wound 2 cm x 2 cm with blackening of skin present in the middle of right abdomen, about 4 cm right to umbilicus wound of entry.
(2) 2 cm x 1.5 cm fire-arm wound on right lower arm on lateral aspect near elbow exposing bone and fracturing bone. Wound of entry.
(3) 3 cm x s fire-arm wound on right fore-arm exposing bone about 4 cm from and below elbow on lateral aspect-exit wound of injury No,2
(4) 2 cm x 2 cm fire-arm wound with blackening of skin in the web between right big toe and adjacent finger wound of entry.
(5) 3 cm x 2 cm fire-arm wound on ventral aspect of left thumb root with blackening of skin wound of entry.
(6) 1 cm x 1 cm fire-arm wound on medial aspect of left thumb root with blackening of skin wound of entry.
(7) 2 cm x 2 fire-arm wound on root of left thumb on dorsum on lateral aspect-Exit of Injury No,6.
(8) On back, 2 cm x 1.5 cm wound of fire-arm in inter scapular region about 4 cm left to lateral border of right scapula. Wound of entry.
(9) On neck, above davical just to left to mid-line, 3 cm x 2 cm wound of fire-arm on front of neck.
Exit of Injury No,8.
6. The following injuries were found on the dead body of Hashim Kamal deceased:--- "(1) Fire-arm wound 1 cm x 1 cm with inverted margins and blackening of skin on lateral aspect of right middle arm fracturing humerus. Wound of entry.
(2) 3 cm x 2 cm fire-arm wound on right lower arm lateral aspect. Exit of injury No, 1.
(3) Fire-arm wound 1 cm x 1 cm with blackening of skin on right shoulder front about 2 cm lateral to mid clavicular line. Wound of entry.
(4) Fire-arm wound 3 cm x 2 cm below and lateral to right scapula on back, about 8 cm away from scapula. Exit of injury No,3.
(5) Fire-arm wound 2 cm x 1.5 cm on front of left chest below clavicle with blackening of skin.
Wound of entry.
(6) Fire-arm wound 3 cm x 2 cm on neck on dorsolateral aspect on right side of neck. Exit of injury No,5.
(7) Fire-arm wound 1 cm x 1 cm with blackening of skin, 2 cm below left nipple. Wound of entry.
(8) Fire-arm wound 4 cm x 2 cm below tip of left scapula on back. Exit of injury No,7.
(9) Fire-arm wound 1 cm x 1 cm with blackening of skin on right posterior auxiliary line on right chest at about level of upper and of zephoid process. Entry wound.
(10) 3 cm x 3 cm fire-arm wound on right lower chest about 10 cm away and lateral to right nipple.
Exit of above.
(11) 1 cm x 1 cm fire-arm wound on upper left axilla with blackening of skin. Entry wound.
(12) 2 cm x 2 cm fire-arm wound on lower left axilla. Exit of above.
(13) 1 cm x 1 cm fire-arm wound on right upper thigh on lateral aspect with blackening of skin-entry wound.
(14) 3 cm x 2 cm wound of fire-arm in left mid auxiliary line in abdomen at the level of umbilicus.
Exit of above.
(15) A 3 cm x 2 cm wound of fire-arm with blackening of skin on right shin middle with a black area of burning of about 3 cm, about 4 cm below it. Entry and Exit wound.
(16) A fire-arm wound of 1 cm x 1 cm on left upper thigh with blackening of skin on lateral aspect.
Entry wound.
(17) 3 cm x 2 wound of fire-arm on left buttock middle. Exit of above.
(18) A fire-arm wound of entry just.Superior to left nipple with dimensions 1 cm x 1 cm going inwards on front of chest.
(19) 2 cm x 2 cm fire-arm wound with everted edges on back chest at middle of left scapula. Exit of above.
(20) A wound of entry 1 cm x 1 cm on back of chest below left shoulder broader with blackening of skin and inverted margins.
(21)A wound of exit 2 cm x 2 cm with everted edge on front of chest just lateral and right to ziphoid process."
7. After recording the prosecution evidence, statement of accused under section 342 Cr. P.C., was recorded wherein he denied the prosecution evidence as well as the commission of occurrence.
The other co-accused namely Muhammad Ishaq and Muhammad Ishtiaq father and brother of the accused could not be apprehended and Investigation Officer proceeded against them under section 87/88 Cr.P.C. And Ilaqa Magistrate after proper proceedings declared both the accused as proclaimed offenders and challan was submitted declaring the said two accused as proclaimed offenders. As the two accused have been declared proclaimed offenders, trial of the accused has been separated from the absconder accused as they would be tried whenever they will be arrested.
8. After recording the evidence and hearing the parties, the learned trial Court vide judgment dated 19-10-2001 convicted the Akhlaq Ahmed-accused under section 302(b), P.P.C. And sentenced him to death on two counts. He was also directed to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To the legal heirs of each of the deceased and in default thereof to further undergo 6 months' R.I. He was also directed to pay a fine of Rs,25,000 to each of the deceased and in default to further undergo 3 years' R.I.
9. Aggrieved by the order accused Akhlaq Ahmed filed Criminal Appeal No,371 of 2001 before the Lahore High Court, Rawalpindi Bench, Rawalpindi. The trial Court sent the matter for confirmation or otherwise of death sentence to Lahore High Court, Rawalpindi Bench Rawalpindi.
10. The High Court, after hearing the parties, vide judgment dated 5-11-2000, upheld the conviction recorded by the trial Court and dismissed the appeal to that extent and converted the sentence of death on each count to that of imprisonment for life.
11. Heard Malik Rab Nawaz Noon, Senior Advocate Supreme Court for the accused-petitioner in Jail Petition No,419 of 2004, Sardar Muhammad Ishaq, Senior Advocate Supreme Court for the appellant/ complainant in Criminal Appeal No,282 of 2004, and Mr. Shahid Mahmood Abbasi, D.P.- G. For the State.
12. Learned counsel for the petitioner-accused vehemently argued that the age of accused at the time of occurrence was about 19-1/2 years and was under the influence of his father and elder brother at the time of occurrence and he is entitled for reduction of the sentence looking to his age and circumstances prevailing at the time of occurrence and learned High Court rightly converted death sentence to life imprisonment. He further argued that most of the injuries as per post- mortem report show that the firing was effected upon the deceased at a distance from 4-15 and there is contradiction between the ocular medical evidence. To substantiate the contentions, reliance has been placed on Tariq and 2 others v. The State 1995 SCMR 168, Mst. Hafeezan Bibi v.
Muhammad Tufail and others 1995 SCMR 256, Liaquat Ali and others v. The State 2000 SCMR 1455, Sultan and another v. The State 2000 SCMR 1818, Sohail Iqbal v. The. State 1993 SCMR 2377, Ghulam Sarwar and others v. Sajid Ullah and others 2005 SCMR 1054, Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502.
13. On the other hand, Sardar Muhammad Ishaq, Sr. ASC for the appellant in Criminal Appeal No,282 of 2004 vehemently argued that both the Courts below believed upon the prosecution evidence and this Court will not undertake reappraisal of the evidence; that F.I.R. Was lodged promptly and evidence on record is in line with the contents of the F.I.R., out of five empties found at the spot, three empties matched with the pistol of the accused person; that medical evidence corroborated with the ocular evidence. There was no motive to falsely implicate accused-person in offence where two persons were brutally murdered. The accused is major person can takes its own decision and committed premeditated murder of two persons. In support of his contentions, he relied upon the cases of Khalas Khan and another v. The Crown PLD 1954 Lah. 73, Iftikhar v. The State PLD 1972 Pesh. 27, Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458 and Muhammad Ilyas and another v. Muhammad Sufian and another PLD 2001 SC 465.
14. The learned High Court converted the death sentence into life imprisonment on the ground that the occurrence took place on 19-5-2000. In the statement recorded under section 342, Cr.P.C. On 4- 10-2001, accused gave his age as 21 years. The co-accused are father and brother of the accused and he was under the influence and command of the said two co-accused persons.
15. We have taken into consideration arguments advanced by the learned counsel for the parties and perused the record.
16. From perusal of the record, it appears that F.I.R. Was lodged at 6-30 p.m. Whereas the occurrence took place at 4-30 p.m. The motive for the occurrence as per complaint was that Hashim Kamal was the owner of land situated at Dheri Malhu, father of the petitioner was owner of adjacent land and unauthorizedly used the land of Hashim Kamal as a passage. 8/10 days prior to the occurrence Hashim Kamal and Nawazish Khan (both deceased) restrained Muhammad Ishaq (father of the accused) from using their land and as a passage. Hot words were exchanged and Hashim Kamal had slapped Muhammad Ishaq. It appears from the evidence that to take revenge that accused person, his father and elder brother caused the premeditated murder of two persons.
17. In the F.I.R. As well as in the statement of P.W.12 complainant Asad Mahmood assigned specific role to the accused that Hashim Kamal after receiving the fire-arms injuries caused by Muhammad Ishtiaq, father of the accused, when he was lying on the ground the accused and his elder brother made fire upon him and he expired at the spot. The matter not ended here the accused along with other two co-accused person chased Nawazish Khan deceased and brutally murdered him while he in order to save his life took shelter in the residential room of the Haveli of Muhammad Miskeen.
18. From the post-mortem, it appears that Nawazish Khan-deceased received nine injuries on his person, whereas, Hashim Kamal-deceased received 21 injuries on his person. The police took into the possession, 17 empties of Kalashnikov and 3 empties of .30 bore pistol from the place where Hashim Kamal was murdered, which matched with the pistol of the accused.
19. The statements of P.W.12 and P.W.13 are also supported by the medical evidence. The said two witnesses stated that some injuries were caused to Nawazish Khan, when he was running to save his life. As per post-mortem report in injuries Nos.6 and 8 caused from backside of the deceased Nawazish Khan. Three empties of .30 bore pistol were also taken into possession by the police from the place of occurrence where dead body of Nawazish Ali Khan was lying.
20. We have gone through the case law cited by the learned counsel for the parties. In the case of Ghulam Sarwar (supra), on the same day when the father of the petitioner-accused was insulted by the deceased petitioner-caused murder and taken into consideration young age of the petitioner sentence was covered from death to life.
21. In the case of Sohail Iqbal (supra), the petitioner was a young person immediately after he was insulted fired a shot at the deceased.
22. In the case of Tariq and 2 others (supra), the petitioner on the directions of their mother and sisters immediately caused murder of the deceased.
23. In the case of Mst. Hafeezan Bibi (supra), the P.W. Himself stated that he heard that the father of the appellant was directing his son to take revenge if they were his real sons.
24. In the case of Sultan and another (supra), the petitioner was a young person took revenge of murder of his family members.
25. Case-law cited by the learned Advocate Supreme Court for the accused is not of any help to him.
26. The doctrine of influence of elders can be considered a relevant factor and can constitute mitigating circumstances looking to tender age of the accused, but in the instant case, the petitioner who was of an age of 19-1/2 years at the time of occurrence along with his father and elder brother who are proclaimed offenders, committed two brutal murders. While considering mitigating circumstances the principle of proportionality is not lost sight and there should be some semblance proportion between the injury or insult giving by the deceased and the reaction.
27. It is not the case of the accused that he acted under the influence of his father or that the deceased Hashim Kamal slapped his father in the presence of number of the persons, resulting humiliation of their family. Though, even if it is so, same by any logic cannot give a cause to a person to commit brutal murders of two persons one on the spot and other by chasing him.
28. The penalty of death must be imposed if the Court finds the manner and method of incident to be in the nature of a brutality, horrific, heinous, shocking involving terrorist nature. Normal sentence in a conviction under section 302(b), P.P.C. Is death except where Court finds some mitigating circumstances which may warrant imposition of lesser sentence.
29. Having considered the matter from all angles in the light of material available on file, we are of the view that this is a case of premeditated occurrence in which two persons were brutally murdered and learned trial Court rightly convicted and sentenced to Akhlaq G Ahmed-accused to death.
30. In view of the above discussion, Criminal Appeal No,282 of 2004 filed by the Asad Mahmood- appellant is allowed and the judgment dated 5-11-2002 of the Lahore High Court, Rawalpindi Bench Rawalpindi, is set aside and the judgment dated 19-10-2001 of the trial Court, is restored/confirmed.
31. Jail Petition No,419 of 2004 filed by Akhlaq Ahmed-accused has no force. Even otherwise, as per office report the same is barred by 733 days, therefore, the jail petition is dismissed and leave to appeal is refused.