Muhammad Ashraf Bhatti, J.--Having arisen out of one and the same judgment dated 23.2.2004 passed by Mr. Javed Akhtar, learned Additional Sessions Judge, Bahawalnagar, Crl. Appeal No, 78/2004 filed by Shahzad alias Shada, Altaf Hussain alias Tafa, .Tariq Mahmood and Imtiaz Hussain convicts-appellant against their conviction and sentences, Crl. Appeal No, 121/2004 brought by Charagh Din and Muhammad Rafiq Gill against the acquittal of Qamar Rafiq and Ijaz Ahmad alias Jajja, co-accused and Crl. Revision No, 50/2004 filed by Muhammad Akram for enhancement of sentence of Tariq Mahmood and Imtiaz Hussain, appellants as well as the Murder Reference No, 19/2004 sent by the learned trial Court for confirmation of death sentence of Shahzad alias Shada and Altaf Hussain alias Tafa in terms of Section 374, Cr.P.C, are intended to be decided through this common judgment along with Crl. Appeal No, 83/2004 filed by Shahzad alias Shada challenging the acquittal of Muhammad Akram and others in a private complaint.
2. Shahzad alias Shada, Altaf Hussain alias Tafa, Qamar Rafiq, Tariq Mahmood, Imtiaz Hussain and Ijaz Ahmad alias Jajja were tried in relation to case FIR No, 53/2002 registered under Sections 302/324/34 of the PPC with Police Station City, Haroonabad at the instance of Muhammad Akram alias Pappu and at the culmination of trial, learned Additional Sessions Judge, Bahawalnagar vide judgment dated 23.2.2004 while acquitting Qamar Rafiq and Ijaz Ahmad alias Jajja by giving them benefit of doubt convicted Shahzad alias Shada and Altaf Hussain alias Tafa under Section 302 of the PPC for committing the murder of Abdul Razzaq and Ahmad Nadeem respectively and sentenced them to death with a fine of Rs,50,000/- each and in default of payment thereof each of them was to further undergo 6 months R.I. Learned trial also convicted Tariq Mahmood under Section 337-F(i) of the PPC for causing injury to Abbas PW and sentenced him to 1 year R.I. and 'Daman' of Rs,55000/- and in case of non-payment of fine to farther undergo 6 months S.I. He was further convicted under Section 337-F(ii) of the PPC and sentenced to 3 years R.I. and 'Daman' of Rs,5,000/- and in case of default in payment thereof to further undergo 6 months S.I. Learned trial Court also convicted Imtiaz Hussain, appellant under Section 337-A(i) of the PPC for causing injury to Muhammad Akram, complainant and sentenced him to 2 years R.I. with 'Daman' of Rs,5,000/- and in case of default in payment thereof to further undergo 6 months S.I. The sentences awarded to Tariq Mahmood and Imtiaz Hussain were ordered to run concurrently and they were also given the benefit of Section 382-B, Cr.P.C.
3. The prosecution story as unfolded in the FIR (Ex. PK) registered on the statement of Muhammad Akram alias Pappu, complainant (PW-8), a resident of Yahya Shah Colony, Haroonabad, is that he used to sell meat in Old Vegetable Market, Haroonabad. Few days before the occurrence, Muhammad Altaf alias Tafa, appellant bought meat from him in connection with his marriage and promised to pay the balance amount of Rs,845/- on the day of Eid-ul-Azha. The complainant on 23.2.2002 at 6:00 p.m. along with his maternal cousins ( >1). jf\#) Abdul Razzaq and Muhammad Abbas went to the house of Altaf alias Tafa, appellant where Altaf alias Tafa, Shahzad alias Shada, Imtiaz alias Panna, Tariq and Qamar Rafiq alias Jugnoo were sitting in the `Baithak' of the house and the door of the`Baithak' was open. On seeing Altaf alias Tafa, appellant sitting in the `Baithak', the complainant while standing in the street demanded his money. Altaf alias Tafa, appellant and others became angry for demanding money on the day of Eid, on which some altercation took place. Feeling insulted and becoming enraged. Shahzad alias Shada, Imtiaz alias Panna, Tariq alias Tara appellants went inside their house and took out a dagger. Qamar Rafiq and Ijaz alias Jajja were also with them. Imtiaz alias Parma inflicted a chhuri blow which hit the complainant on his forehead. When Abdul Razzaq and Muhammad Abbas came forwarded for his rescue, Qamar Rafiq alias Jugnoo caught hold of Abdul Razzaq and Shahzad alias Shada, appellant inflicted repeated blows with "chhuri" on the chest, right side of calf and on the back side of left hand of Abdul Razzaq.
Tariq alias Tara repeatedly inflicted blows on the upper part of left flank and left shin. In the meantime, Ahmad Nadeem and. Shafqat Bashir, who were passing nearby on the motorcycle, stopped their motorcycle and when Ahmad Nadeem interfered in order the save complainant, etc., Ijaz alias Jajja caught hold of him from his neck and Altaf alias Tafa inflicted "chhuri" blow from behind which hit him on his left buttock. Ahmad Nadeem fell down on the ground and the blood started oozing like water. On hearing hue and cry, the people from nearby started coming towards the place of occurrence and on seeing them, the accused persons fled away. Abdul Razzaq succumbed to the injures at the spot. Shafqat Bashir went on motorcycle to inform Muhammad Rafiq Gill, Advocate, who brought his car and took Abdul Razzaq, deceased, Muhammad Abbas and Ahmad Nadeem injured to the hospital at Haroonabad.
4. After registration of the FIR, Abdul Maalik, SI (PW-11) went to the THQ Hospital, Haroonabad, inspected the dead body of Abdul Razzaq, prepared the injury statement Ex. PD/2 and inquest report Ex. PD/3. He also prepared the injury statements of Muhammad Akram Ex. PB/1, Muhammad Abbas Ex. PC/1 and Ahmad Nadeem as Ex. PA/1. He moved an application Ex. PN before the Medical Officer regarding capability of Ahmad Nadeem to make any statement whereupon, the M.O. opined that the injured was not fit to make any statement. He got conducted the post mortem examination on the dead body of Abdul Razzaq. Then he visited the place of occurrence, secured blood stained earth from the place of occurrence vide memos Ex. PL and Ex. PM, prepared rough site plan of the place of occurrence Ex. PO and also recorded statements of the witnesses who attested the above mentioned memos under Section 161, Cr.P.C. Then he learnt that Ahmad Nadeem injured had expired in the hospital. Therefore, he went to the hospital, prepared inquest report of Ahmad Nadeem deceased as Ex. PE/3 and sent the dead body for post mortem examination. He got prepared scaled site plan in duplicate Ex. PP and Ex. PP/1 of the place of occurrence from Ghulam Yasin, Draftsman.
5. Thereafter the investigation of this case was taken over by Syed Kifayat Hussain Shah, Inspector (FW-4). He arrested all the accused persons on 27.2.2002. On 5.3.2002 Shahzad alias Shada, appellant got recovered blood stained "chhuri" P-1 from his residential room, which was taken into possession, vide memo Ex. PF. On the same day, Altaf alias Tafa, appellant got recovered blood stained "chhuri" P-2 from his residential room, which was taken into possession vide memo Ex. PG.
He found the accused persons Tariq Mahmood, Imtiaz Hussain and Ijaz Ahmad alias Jajja innocent and prepared discharge report, which was disagreed by the learned Illaqa Magistrate. Therefore, on the completion of investigation, he submitted challan against all the accused persons.
6. Charge under three heads was framed against the accused persons under Sections 148, 302 and 324 of the PPC on 17.4.2002, to which they pleaded not guilty and claimed to be tried. At the trial, in order to bring home the .guilt of the accused persons, prosecution produced 12 witnesses in all.
7. Dr. Muhammad Sarwar, Medical Officer (PW-1) on 23.2.2002 medically examined Ahmad Nadeem and found the following injury on his person:-- "An incised wound 7 CM X 1 CM on the left side of the back 3 CM above the buttock. Wound direction towards abdomen bleeding profusely (K.U.0.)."
He opined that the Injury No, 1 was caused by sharp edged weapon and may be dangerous to life.
The duration of the injury was declared to be within 24 hours.
On the same day he also medically examined Muhammad Akram and found the following injury on his person:-- "An incised wound 5 CM X 1 CM skin deep on the middle of forehead. Longitudal in direction."
He declared the injury as `Shajjah-e-Khafifah' and caused with sharp edged weapon. The probable duration of injury was within 24 hours. On the same day he also medically examined Muhammad Abbas and observed the following injuries on his person:-- "((1) An incised wound 3 CM X 1/2 CM on the interior side of left . leg. 4 CM above ankle joint injury was skin deep.
(2) An incised wound 4 CM X 1 CM Muscle deep on the left side of the abdomen. Lateral side below renal area."
Injury No, 1 was `Ghayr Jaifah Damiah' and Injury No, 2 was `Ghayr Jaifah Badiah' which were caused by sharp edged weapon and duration of injuries was within 24 hours.
On 24.2.2004, he conducted the post mortem examination on the dead body of Abdul Razzaq and on external examination he found the following injuries on his person:-- "(1) An incised wound 8 CM X 2 CM on the left side of the chest. Injury penetrated in chest at third inter costal space.
(2)An incised would 4 CM X 1 CM X skin deep on the right iliac fossa.
(3)An incised wound 3 CM X 1/2 CM X skin deep on the back of the left hand."
According to the opinion of the doctor cause of death in this case was haemmorrhage and shock due to. Injury No, 1, which was sufficient to cause death in ordinary course of life. Injuries No, 2 and 3 were `Ghayr Jaifah Damiah'. All the injuries were ante mortem and caused by sharp edged weapon. The probable time between the injuries and death immediate and between death and post mortem within 24 hours. On the same day, he conducted the autopsy on the dead body of Ahmad Nadeem and on external examination found the following injuries:-- "(1) An incised wound 7 CM X 2 CM on the upper border of left buttock. Injury penetrated into abdomen.
(2) A stitched wound 30 CM X 1/2. CM on the middle of abdomen below umbilicus. Clothes also cut at Injury No, 1."
In the opinion of the doctor cause of death in this case was haemmorrhage and shock due to Injury No, 1, which was sufficient to cause death in ordinary course of life. Injuries No, 2 was surgical wound due to operation in DHQ Hospital, Bahawalnagar. Injury No, 1 was ante mortem and caused by sharp edged weapon within 24 hours, Injury No, 2 was also ante mortem and caused by operation. The probable time between the injuries and death was within 12 hours and between death and post mortem within 24 hours.
In his cross-examination, he deposed that he also medically examined Altaf Hussain alias Tafa, appellant on 27.2.2002 and found following injuries on his person:-- "(1) A 3 CM X 1 CM lacerated wound scab form with fibrial formation which was on the scalp.
(2) A scab formed wound with fibrial proliferation on the right shoulder measuring 3 CM X 1/2 CM skin deep.
(3) A scab formed wound 2 CM X 1/2 CM on the left thumb back side. No swelling."
Injury No, 1 was Shajjah-e-Khafifah. Injuries No, 2 and 3 were declared `Ghayr Jaifah Damiah'. All the injuries were caused by blunt weapon. The duration of injuries was within 5 days.
On the same day, he examined Shahzad Ahmad alias Shada, appellant also and observed the following injury on his person:-- "A 5 CM X 1 CM scab formed lacerated wound on the middle of the head. Dense fibrils present, scab not hard."
This injury was declared as `Shajjah-e-Khafifah', which was caused by blunt weapon. The duration of injuries was within 5 days. Muhammad Akram alias Pappu, complainant (PW-8) and Muhammad Abbas (PW-9) deposed about the ocular account of the occurrence and their statements made before the learned trial Court need not be discussed here because the same are likely to be discussed in the later part of this judgment. Muhammad Aslam (PW-10) deposed about the recoveries of weapons of offence. He also identified the dead bodies of the deceased persons.
PW-4 Syed Kifayat Hussain Shah, Inspector and PW-11 Abdul Maalik, SI being investigators of the case deposed about the investigation. The remaining witnesses are of formal nature. Therefore, their statements need not be discussed.
8. Prosecution gave up Muhammad Sharif, Zulfiqar Ali, Shafqat Bashir, Sabtain Mustafa and Muhammad Ayyub PWs being unnecessary and after tendering into evidence reports of Serologist Ex. PQ and Ex. PR and those of Chemical Examiner Ex. PS and Ex. PT closed its case.
9. The statements of the accused persons were recorded under Section 342 Cr.P.C. wherein they denied the prosecution's allegations. However, Shahzad Ahmad alias Shada, appellant, in answer to the question "Have you anything else to say?" made the following statement:- "I am innocent. In fact, we had no previous ill will or enmity towards the complainant party rather we have quite friendly relations. On the Eid day i,e, 23.2.2002 the day of occurrence, I along with my co-accused Qamar Rafiq was sitting in my Baithak at about 6:00 p.m. as Qamar Rafiq had come for EidGreetings to my house whereas my co-accused Altaf Hussain was sleeping in our house and my mother and sister were sitting in the compound of our house. My co-accused, my real brother Ijaz Ahmad had gone to Chak No, 60/4-R for Eid-Greetings and to deliver meat to my Phuphi/Phuphas' house whereas my co-accused, my real brothers Imtiaz Hussain and Tariq Mahmood had gone to Chak No, 71/4-R for Eid Greetings and to deliver meat to my Khala's/Khaloo's house. Then Muhammad Afzal and Hamid Shah came on a Motorcycle and demanded the remaining amount Rs,840/- of the meat, which we had purchased from them on the marriage of my brother Altaf co-accused. I told him that Naseer Ahmad Gold-Smith on whose responsibility we have purchased meat from you, has received the above said amount also from us and you go and charge the same from him. Moreover, 1 requested him that it is a Eid Day and we had spent whatever we had today in our house on account of Eid expenses and if at all Naseer Ahmad does not pay him, we will settle the matter after Eid but in spite of that Muhammad Afzal and Hamid Shah quarreled with me and started giving filthy abuses to me and to my family and after extending threats to me that we will take that remaining amount today and went away from there.
After a short while i,e, about half hour Muhammad Akram complainant armed with chhuri, Muhammad Afzal, Abbas, Abdul Razzaq and Muhammad Ayyub armed with sotas whereas Shafqat Bashir, Hamid Shah, Blada, Kamran, Imran, Sabtain Mustafa, Ahmad Nadeem Pasha armed with sotas came there in front of our Baithak and shouted lalkara that they have come to teach a lesson and to take the balance amount of meat. Muhammad Abbas, Abdul Razzaq, Muhammad Akram and Ahmad Nadeem pushed the door of our Baithak and entered into it whereas the other remained standing outside the door of the Baithak in the street and launched attack on me. My co- accused Qamar Rafiq tried to intervene and my mother Mst. Sughran Bibi and my sister Mst.
Muqadas Bibi also attracted to our Baithak after hearing my noise. Ahmad Nadeem Pasha caught hold my sister Mst. Muqadas Bibi by her neck ( (Avt7) and shouted to his co-accused that lift Mst.
Muqadas Bibi and take her with us when they will make the payment we will return her. On this Abdul Razzaq deceased caught hold my sister Mst. Muqadas Bibi from here hair and started dragging her, in this struggle my sister became half naked. Hearing this noise my brother Altaf Hussain who was sleeping in our residential room also attracted to the place of occurrence and on seeing our sister in such half naked condition being dragged by the complainant party and as well as injuries being inflicted on my person, he also picked up a chhuri lying in our house which we used short while before the occurrence for cutting Qurbani meat and during this scuffle I also snatched chhuri from Muhammad Akram complainant and we both acted in our right of private defence of our person/property and also to save the honour and chastity of my mother and sister as a result of which on our side, myself and my co-accused Altaf received injuries whereas on the complainant side Abdul Razzaq and Ahmad Nadeem Pasha both the deceased persons received injuries including Muhammad Akram complainant and Muhammad Abbas injured PW. It was the complainant party who under a pre-planned scheme came to hour house duly armed, trespassed into Baithak and launched attack on me, my sister, my mother, whereupon I and my brother Altaf acted in our right of private defence of person, property and to protect the honour and chastity of our mother and sister. As two persons died on the side of the complainant party and also due to the personal and political influence of the complainant party they concocted false story and in connivance with the local police got involved all my brothers namely, Tariq Mahmood, Imtiaz Hussain, Ijaz Ahmad as well as Qamar Rafiq, who was our guest and had come to see me for Eid-Greetings.
During the investigation, all the I.Os unanimously rejected the prosecution version given in the FIR and declared Imtiaz Hussain, Tariq, Ijaz to be innocent and submitted their discharge report on 27.3.2002. Discharge report is Ex. DC. As we all brothers were arrested by the local police in this case and only my mother and sister remained behind as our father had already died. My mother gave numerous applications to the high police officers but all in vain, failing which I filed a written complaint on 2.5.2002 from District Jail, Bahawalnagar by engaging the counsel which is pending in this Hon'ble Court and fixed for hearing for today and after recording summary evidence of the complainant/myself and my supporting PW, the accused persons of the complaint case have also been summoned to face the trial by the Court. I produced the certified copy of the complaint Re: Shahzad Ahmad vs. Muhammad Akram, etc under Sections 324/337-A/337-F/452/148/149/354-A/506 of the PPC, Ex. DF as well as order of this Hon'ble Court for summoning the accused to face trial in complaint case Ex.
DG."
All the remaining accused persons relied upon the statement of Shahzad Ahmad alias Shada, appellant. None of the accused except Shahzad, appellant appeared as his own witness in disproof of the prosecution allegations under Section 340 (2), Cr.P.C, However, the accused persons produced Jabbar Aslam, DW-1, Rashid Minhas, DW-2 and Mst. Muqadas Bibi, DW-3 whereas Shahzad Ahmad alias Shada, appellant appeared as DW-4.
10.At the conclusion of the trial, learned Additional Sessions Judge vide judgment dated 23.2.2004 while acquitting Qamar Rafiq and Ijaz Alimad alias Jajja, convicted Shahzad alias Shada, Altaf Hussain alias Tafa, Tariq Mahmood and Imtiaz Hussain as detailed in the beginning of this judgment.
11.As stated by Shahzad Ahmad, appellant in his statement under Section 342, Cr.P.C. he filed a private complaint against eleven persons of the complainant party, who were summoned to face trial, charge was framed against them. They pleaded not guilty and claimed trial in accordance with law. Complainant, in order to substantiate the guilt of the accused persons, himself appeared as PW-1 and Jabbar Aslam as PW-2, Rashid Minhas PW-3, Mst. Muqadas Bibi PW-4 and Dr. Muhammad Sarwar PW-5. The accused persons were examined under Section 342, Cr.P.C. wherein they denied the allegations levelled by the complainant and professed their innocence. The accused persons did not produce any defence evidence nor anyone of them appeared as his own witness under Section 340 (2), Cr.P.C. Learned trial Court vide judgment dated 23.2.2004 acquitted all the accused persons as aforesaid.
12.Hence, all the above-cited matters for disposal before us today.
13. We have taken the stock of the evidence produced on record and the arguments advanced from both sides and come to the conclusion that the prosecution by all means has proved its case successfully beyond reasonable doubt against Shahzad alias Shada, Altaf Hussain alias Tafa, Tariq Mahmood and Imtiaz Hussain, appellants in Cr1. Appeal No, 78/2004. It is not disputed by both the parties that a petty amount of Rs,845/- became the bone of contention because of which this lawful incident took place, in which two innocent persons lost their lives and other injured. Both the sides by having argued the case from their respective angles have made it a case of two versions.
The defence is of the view that on the day of occurrence, which was Eid-ul-Azha, Muhammad Afzal and Hamid Shah came on a motor cycle to demand the remaining amount Rs,840/- of the meat from Shahzad alias Shada, appellant, etc., which they had purchased on the marriage ceremony of Altaf alias Tafa, appellant. Shahzad alias Shada told them that Naseer Ahmad Goldsmith, on whose responsibility they had purchased meat, had already received the said amount and they could charge the same from him and if Naseer would not pay them the said amount, they would settle the matter after Eid; but Muhammad Afzal and Hamid insisted for the said amount whereupon some altercation took place and both of them went away while extending threats to receive the amount on the same day. After a short while, Muhammad Akram, complainant armed with "chhuri", Muhammad Afzal, Abbas, Abdul Razzaq, Muhammad Ayyub, Shafqat Bashir, Hamid Shah, Blada, Kamran, Imran, Sabtain Mustafa and Ahmad Nadeem Pasha armed with sotas came in front of Baithak of Shahzad Ahmad alias Shada, appellant, etc. and shouted lalkara that they had come to teach a lesson and receive the balance amount. Muhammad Abbas, Abdul Razzaq, Muhammad Akram and Ahmad Nadeem pushed the door of the Baithak and entered into it whereas the others remained standing outside the door of Baithak and launched attack on Shahzad alias Shada, appellant. Mst. Sughran and Mst. Muqadas, mother and sister of Shahzad alias Shada, appellant also came towards Baithak after hearing the noise. Ahmad Nadeem caught hold of Mst. Muqadas by her neck and asked his other companions to lift her and to take her with them and when the accused persons (Shahzad Ahmad, appellant, etc.) would make the payment of the amount outstanding against them, Mst. Muqadas would be returned. The complainant, etc. started dragging Mst. Muqadas. On hearing the noise Altaf, appellant also came out of the house and on seeing his sister being dragged by the complainant party in a half naked condition, he picked up a "chhuri" lying in their house. During the scuffle Shahzad alias Shada also snatched "chhuri" from Muhammad Akram complainant and while acting in their right of self-defence and to save the honour and chastity of their sister they both inflicted "chhuri" blows on the persons of Abdul Razzaq, Ahmad Nadeem Pasha, Muhammad Abbas and the complainant. It was also the case of Shahzad alias Shada, etc. that on their side Shahzad alias Shada and Aitaf alias Tafa also received injuries.
14. When the evidence given by Muhammad Akram, complainant (PW-8) and Muhammad Abbas (PW-9) was gone through, we are left with no option without iota of doubt in our mind that the complainant, Abdul Razzaq and Muhammad Abbas went to the house of Shahzad Ahmad, appellant etc. to demand the money which was outstanding against them where some altercation and grappling took place, which ultimately culminated into present occurrence wherein Abdul Razzaq, Ahmad Nadeem, Muhammad Abbas and the complainant received injuries. Perusal of the cogent and straight forwarded ocular account furnished by Muhammad Akram, complainant (PW- 8) and Muhammad Abbas (PW-9) coupled with the entries of the site plan Ex. PP (Point No, 4), which gives the sitting position of the accused, shows that firstly altercation must have taken place in the Baithak where grappling occurred and while fighting they came out of Baithak. According to Points No 3 and 4 of the site plan the occurrence took place outside the Baithak. Therefore, the interference or involvement of the womenfolk of the appellants in the occurrence when it started right in their house and culminated just in front thereof, cannot be ruled out 15.The plea taken by the defence that the complainant party wanted to take away Mst. Muqadas Bibi, sister of the accused persons, is simply not believable that for a dispute on a petty amount of Rs,840/- they could have gone too far. However, they might have made such utterance in rage but there is no sufficient evidence on record to convince us with regard to existence of such intention of the complainant party to do this sinful act. To our mind it appears clearly that a fatal injury was caused to each of the deceased but question is as to whether there existed any danger to their lives that made it necessary on the part of the appellants to inflict any such fatal blow on the vital part, we find the answer in the negative. If the case of both the parties is put into juxta position it appears that causing of injuries on the part of the appellants was nothing more than the result of sudden flare up and provocative act of the complainant party, etc. when they demanded money on Eid-ul-Azha. However, it is possible that on making the demand of outstanding money on such a blissful day especially in the presence of Qamar Rafiq, a friend of the accused persons who had come . to pay Eid greetings to them, they took it ill and so feeling insulted they were infuriated and as a result there was sudden flare up, altercation and grappling turning it into a bloody occurrence.
16.In the wake of the above circumstances of the case where we are cognizant of the fact that the motive is always not legally necessary to be proved if set up or even if the prosecution has failed to prove it, no adverse inference has to be drawn. The fact would remain that a petty and trivial amount of Rs,840/- became mainly the cause of the present occurrence. The appellant party was of the view that they had already given it to Naseer Ahmad which explanation was not accepted by the complainant and so taking it insult, as has been stated above, the dispute of payment or otherwise of the above said amount did play a role in the occurrence. As to the plea taken by the defence that the occurrence had not taken place in the manner as stated by the complainant, the appellants have been unable to justify it. As regards the witnesses produced by them in defence and the statement of Shahzad alias Shada given under Section 340(2), Cr.P.C, it is suffice to say that the learned trial Court correctly appreciated the said evidence and the statement of Shahzad alias Shada, appellant. For abundant caution we have also scanned the said evidence in depth and find that in no way it helps the appellants if, it is juxtaposed with the above discussed ocular account furnished by the eye witnesses in detail in a frank and honest manner without any dishonest improvement on their part.
We, therefore, rely upon the same and brush aside the defence plea taken by the appellants.
17.As regards the recoveries of weapon of offence i,e, `chhuri' P1 and `chhurr P-2 (both stained with human blood as per report of Serologist), on the pointation of Shahzad alias Shada and Altaf alias Tafa, appellants respectively, the same have been established on record. Nothing is available on record to show that same were sham or planted nor the veracity of the witnesses attesting such recoveries could be shattered through cross-examination conducted at length. So, we do believe the recovery of "chhuries" to be genuine and properly effected in accordance with law from the appellants on their pointation.
18.Medical evidence, if seen, there is no major contradiction found with that of the ocular account furnished by Muhammad Akram, complainant (PW-8) and Muhammad Abbas (PW-9) as the nature, number and the manner in which the same were caused go along with the medical evidence furnished by Dr. Muhammad Sarwar (PW-1). There is also no dispute of weapon used.
Therefore, medical evidence coupled with the evidence of recoveries folly corroborates the ocular account brought on record by Muhammad Akram, complainant (PW-8) and Muhammad Abbas (PW-9).
19. Nutshell of the above discussion is that the prosecution has been successful to set up a case beyond reasonable doubt against Shahzad Ahmad alias Shada, Altaf Hussain alias Tafa, Tariq Mahmood and Imtiaz Ahmad, appellants but in the matter of punishment and quantum of sentences we are of the opinion that in the presence of evidence regarding the occurrence having taken place on account of sudden flare up and some provocative act of the complainant i,e, demand of money on the day of Eid-ul-Azha and insistence thereon, the penalty of death awarded to Shahzad Ahmad alias Shada and Altaf Hussain alias Tafa was hardly called for. On the other hand imprisonment for life could have met the ends of justice.
20. For what has been discussed above, while maintaining their conviction under Section 302(b)
PPC we convert/alter death sentence of Shahzad alias Shada and Altaf Hussain alias Tafa into imprisonment for life. However, their sentences regarding payment of fine Rs,50,000/- each and in default of payment thereof to further undergo 6 months R.I. shall remain intact. They shall also be entitled to the benefit of Section 382-B, Cr.P.C. As regards Tariq Mahmood and Imtiaz Hussain, appellants their conviction and sentences are maintained. Resultantly, Crl. Appeal No, 78/2004 is partly allowed to the extent of Shahzad alias Shada and Altaf Hussain alias Tafa.
21.As to the acquittal of Qamar Rafiq and Ijaz Ahmad alias Jajja it is observed that they have got presumption of double innocence and to set aside their acquittal very strong evidence is required which is lacking in this case because they did not play any active role in the occurrence nor they caused any injury to the deceased or the injured and even no motive is attributed to them.
Therefore, they have rightly been acquitted by the learned trial Court. So, Crl. Appeal No, 121/2004 brought by Charagh Din and Muhammad Rafiq Gill against acquittal of Qamar Rafiq and Ijaz Ahmad alias Jajja is dismissed.
22.22. Now coming to Crl. Appeal No, 83/2004 wherein the acquittal of the persons of complainant party in a private complaint has been challenged, we may observe that there are material contradictions in the statements of the PWs and that the complaint has been filed merely to manage a defence and get escaped from the consequences of criminal case FIR No, 53/2002 registered against the complainant and others, especially when the version of the complainant party in the State case has been believed and the accused persons have been convicted as noted above. Therefore, the learned trial Court has rightly acquitted the accused mentioned in the private complaint. Consequently, Crl. Appeal No, 83/2004 fails and is also dismissed.
23. In view of our above findings, Crl. Revision No, 50/2004 filed by Muhammad Akram, complainant for enhancement of sentence of Tariq Mahmood and Iintiaz Hussain is also dismissed. Murder Reference No, 19/2004 is answered in the NEGATIVE and death sentence of Shahzad alias Shada and Altaf Hussain alias Tafa is NOT CONFIRMED.