1. ' SYED ZAK1R HUSSAIN, J.---The applicant Nizamuddin, being dissatisfied by the impugned judgment, dated 18-3-2008, preferred the instant Criminal Revision Application, praying for enhancement of the punishment from life imprisonment to death penalty against the three convicts thereof.
2. ' The facts forming the background of the application, briefly stated, are that the applicant lodged the F.I.R. Bearing No, 181/2001 on 5-10-2001 at 1300 hours stating that about three days back, a quarrel' took place between his brother Ghulam Rasool, the deceased and the accused Noor Hassan over the matter of children; the accused Noor Hassan and others issued threats to the deceased that they would not spare him; on the fateful day, while in the morning, the deceased had taken his cattle break of two hours and he (the applicant) and his cousin Jabbar were on their way to their agricultural lands; the accused Noor Hassan, Ali Anwar and Muhammad Moosa, duly armed with guns, came across and shouted with challenge to the deceased over the issue already stated above; the accused Noor Hassan and Ali Anwar in furtherance of their common intention of causing murder of the deceased, fired from their guns at him; the deceased having received such injuries fell to the ground; the applicant party could not help the deceased due to the threats of the accused of being harmed in similar manner, in case they would intervene; the accused Muhammad Moosa made aerial firing to keep them away; after a short while when the accused left the scene, the applicant and his cousin went nearer to the deceased, who had already succumbed to injuries, two in number, one on right side of the chest, the other in between his buttocks.
3. ' The police started investigation, visited place of wardat and secured two empty cartridges from the spot under a memo prepared to such effect. The police arrested the accused Noor Hassan under a memo dated 27-11-2001 and also secured out of his possession, thereunder, his unlicensed Double Barrel Gun as crime weapon. The police got voluntary confession of the accused Noor Hassan recorded by the Civil Judge and Judicial Magistrate, Daharki, on 27-11-2001, whereby he confessed to have exclusively committed the murder of the-deceased with the said gun by having tired it twice at him, for the reasons that the deceased had committed sodomy upon his cousin Bashir Ahmed and when he demanded the deceased to bring about an amicable settlement in that regard (as a matter of tradition Of the locality/brotherly), he refused and started showing his muscles instead, putting thereby the accused in public embarrassment. The police finally submitted the charge-sheet against the accused Noor Hassan for the aforesaid offence, for the trial in the court of law, therefor, accordingly. The police found the case as 'not established' against other accused, who therefore, were placed in column No, 2 of the challan, but later on, the learned trial court, inserted/included them in the case, as accused persons, On the application of the applicant, and thus, they too, began to face the trial along with the accused Noor Hassan, against a common charge framed against them on the part of the learned trial court for the murder of the deceased conjointly as reported against,_ to which they all had pleaded 'not guilty' and claimed trial. The learned trial court thereafter, took down the evidence and concluded the trial by way of the impugned judgment, whereby all the accused have equally been held responsible to the commission of the crime, they were charged with and the learned trial court thereby convicted and sentenced them under section 302, .P.P.C. To suffer imprisonment for 25 years as Tazeer with benefit of section 382-B, Cr.P.C. To one of them, namely, Noor Hassan. Hence, this criminal revision application.
4. ' For the reasons to be recorded later, this Court by its order dated 13-4-2010, dismissed the Criminal Revision Application in hand.
5. ' We have heard the learned counsel for the parties, Assistant Prosecutor-General and have perused the relevant record. The record shows that the parties are living in the same vicinity as neighbors and they are of same caste. Admittedly, a quarrel over the matter of children, took place between the parties, which resulted in the incident in question. The applicant supported the F.I.R.
6. Before the court in his evidence. The case to such story was also supported by his witness namely Abdul Jabbar. As such, though by ocular testimony, the case stands supported, but at the same time, it stands belied by the other facts such as the secured two cartridges of .12 bore from the spot when sent under seal cover to the expert together with the secured licensed gun of the accused Noor Hasan, were found to have stood fired therefrom; and that the judicial confession of the accused Noor Hassan, which carries no infirmity, seems to have stood un shattered proved at trial.
7. The same makes the accused Noor Hassan responsible for the crime in question exclusive of other accused persons. There is no variation in the record, so far as the case of the accused Noor Hassan is concerned and therefore, the impugned judgment against him, does not suffer any infirmity. On the contrary, the case of the accused Ali Anwar seems to have not been proved beyond shadow of any reasonable doubt, for the twofold reasons, firstly, that no crime weapon belonging to him, was secured and no injury of the deceased, is open to be attributed to him, particularly when, two cartridges secured from the spot, are found by the expert to have belonged to the gun secured from the possession of the accused Noor Hassan, and the ocular testimony to the effect that the accused Ali Anwar made fire shot from his own gun, which hit the deceased on his buttocks or otherwise, being contradictory to the aforesaid position of the expert report and the number of the secured empties coupled with judicial confession of the accused Noor Hassan, which being produced by the prosecution as evidence, prima facie exonerates and absolve the accused other than Noor Hassan of vicarious liability or criminal accountability of the charge in question. The case of the accused Muhammad Moosa is rather lighter to that of the accused Ali Anwar. He reportedly made from his gun only aerial firing at the relevant time and did nothing else. In this regard, it is mentioned that had there been any aerial firing as is assigned to the accused Muhammad Moosa, there would have been empty cartridges in extra number on the spot, for being secured like the said two secured cartridges, by the Investigating Officer at the relevant time. The police rightly concluded that there had been no evidence against the accused Ali Anwar and. Muhammad Moosa and submitted such report, but the learned trial Court took the matter light and without proper appreciation of the reasons given by the police there against and the record of the prosecution, included them as accused to face the trial together with the accused Noor Hassan, with the result, these accused faced and suffered unwarranted agony of trial. This court would therefore, accordingly deal with the said doubtful aspects of the case of the accused Ali Anwar and Muhammad Moosa while deciding their jointly filed criminal appeal, which is pending disposal.
8. In our firm view, what we have already discussed above, is sufficient to show mitigating circumstances warranting lesser punishment in the case of the accused Noor Hassan, such as he is first offender; he made judicial confession and caused the crime weapon recovered and hence, cooperated with the police in the investigation; he had a motive of the commission of the crime beyond his control being matter of self-prestige and family honour he stood provoked by the unwarranted embarrassing conduct of the applicant side as is indicated in his judicial confession; the applicant and his witnesses roped in the brother and cousin of the accused Noor Hassan as his accomplices to his exclusive crime and such involvement of the said persons, does not stand corroborated by the circumstantial evidence as discussed above, and hence, false implication of such persons, can hardly be ruled out. All these facts are mitigating circumstances in nature which jointly serve as ground(s) for lesser punishment in the case of the accused Noor Hassan while the case of the other accused persons, is obviously of an altogether different fate and therefore, the prayer for the enhancement of the punishment awarded to the accused persons by the impugned judgment, is not open to be granted or acceded to in the circumstances of the case. Accordingly, this criminal revision application hereby stands dismissed.
9. ' The above are the reasons for our short order dated 13-4-2010.