JUDGMENT SH. NAJAM-UL-HASAN, J.---Appellants Mahboob alias Moobi, Asghar Ali, Muhammad Jamil and Abdur Razzaq along with three other co-accused were tried by learned Additional Sessions Judge, Chunian, District Kasur in case F.I.R. No.354 of 2003 dated 12-9-2003 for the offence under sections 302/324/342/337-F (i.e)/34, P.P.C. Registered at Police Station Kanganpur. The learned trial court vide judgment dated 25-3-2005 convicted all the appellants along with their co- accused Ghulam Rasool under section 148, P.P.C. And sentenced to three years' R.I. Each. The trial court also convicted all the appellants under section 302(b) read with section 34, P.P.C. And awarded death sentence to Mahboob alias Moobi and Abdur Razzaq and imprisonment for life to Asghar Ali and Muhammad Jamil appellants. All the appellants were also directed to pay Rs.50,000 each as compensation to the legal heirs of the deceased Aslam and Bilal under section 544-A, Cr.P.C. And in default whereof to undergo six months' S.I. Co-accused of the appellant namely Ghulam Rasul was also convicted under section 324, P.P.C. And sentenced to ten years' R.I. With a fine of Rs.20,000 and in default whereof to undergo three months' S.I. Both the sentences of the three appellants were ordered to run concurrently and benefit of section 382-B, Cr.P.C., was also extended in their favour.
2. Feeling aggrieved by the impugned judgment, appellants Mahboob alias Moobi, Asghar Ali and Muhammad Jamil filed Criminal Appeal No.523 of 2005, Abdul Razzaq appellant has filed Criminal Appeal No.478 of 2005, while deciding Crl.Misc.No.1-2009 in Criminal Appeal No.523 of 2005 seeking 'suspension of sentence on behalf of Muhammad Jamil and Asghar Ali a notice was issued to Jamil for enhancement of sentence and office has prepared Suo Motu Revision i.e. Criminal Revision No.498 of 2009, whereas the trial court has sent a reference (M.R. No.251 of 2005) seeking confirmation of death sentence awarded to Mahboob alias and Abdur Razzaq appellants. All these matters are being disposed of together through this single judgment. It is pertinent to mention here that while challenging his conviction and sentence Ghulam Rasool (co-accused) also filed Criminal Appeal No.678 of 2005 and that appeal has already been dismissed as withdrawn by this Court vide order dated 8-12-2010 as Ghulam Rasool had served out his sentence of imprisonment.
3. In brief the case of the prosecution as narrated in the F.I.R. (Exh.PK/1) registered upon the complaint (Exh.PK) filed by Muhammad Akram is that his cousins Tahir Mahmood and Shafqat Mahmood sons of Aslam went to their fields for cutting fodder at 7-00 a.m., on 12-9-2003 where accused Mahboob alias Moobi and Muhammad Jamil etc. Were already present and they stopped them from cutting the fodder. Mahboob alias Moobi appellant with the help of his companions detained Tahir Mahmood and asked Shafqat Mahmood to go back and bring his father saying that they would not allow them to cut the fodder. The complainant along with his uncle (Chacha)
Muhammad Aslam, Bilal alias Makhar, Muhammad Ishaque alias Jajji and Qasim came at the spot where Mahboob alias Moobi being armed with rifle 303 bore, Muhammad Jamil armed with rifle 8 MM had detained Tahir Mahmood, whereas Razzaq being armed with .303 bore rifle, Faryad armed with .222 bore rifle, Asghar armed with rifle, Ghulam Rasul alias Bau armed with rifle, Ghaffar armed with pump action .12 bore and three unknown persons present there aimed their fire-arms towards them. Mahboob alias Moobi directly fired at the complainant's (Chacha) Muhammad Aslam which hit him on his left knee and he fell down on the ground. Mahboob repeated the fire which hit Aslam on his back. Muhammad Jamil appellant fired with his rifle which hit Bilal alias Makhar upon his chest. Meanwhile Razzaq fired with his rifle upon deceased Bilal alias Makhar who fell down on the ground. Thereafter Faryad, Asghar, Ghaffar and Ghulam Rasul alias Bau made direct firing upon various parts of his body. Both Aslam and Bilal succumbed to the injuries at the spot. In the meantime Ghulam Rasul alias Bau directly fired at Tahir Mahmood which hit him on his left thigh.
The motive behind the occurrence was that accused Mahboob alias Moobi was in a habit of receiving "Jagga Tax" from the people upon which the complainant's uncle (Chacha) Ghulam Muhammad got registered a case F.I.R. No.345 of 2003 for the offences under sections 384/506/148/149 P.P.C., against the accused persons at Police Station Kanganpur. Statedly the complainant and his companion Muhammad Ishaque alias Jajji and Qasim witnessed the occurrence and saved their lives while hiding themselves in the fields.
4. The matter was investigated by Naseer Ahmed S.I. (P.W.13). He visited the place of occurrence, took into possession blood stained earth of Bilal and Aslam deceased vide recovery memo Exh.PL and Exh.PM respectively and six crime empties P.9/1-6 which were taken into possession vide recovery memo Exh.PN. He arrested Mahboob and Razzaq appellants on 28-9-2003. Mahboob appellant voluntarily got recovered rifle 303 from his residential house which was taken into possession vide recovery memo. Exh.PX/1. Abdur Razzaq appellant also got recovered rifle 303 P.7 and the same was taken into possession by the investigating officer vide recovery memo Exh.PE. He arrested Muhammad Jamil, Faryad, Asghar Ali, Ghulam Rasul and Ghaffar on 29-9-2003 and Asghar appellant got recovered .8 MM rifle P.6 from his residential house which was taken into possession by the Investigating Officer vide recovery memo Exh.PD. The investigating officer after complying with legal formalities and recording the statements of witnesses under section 161, Cr.P.C., submitted challan before the trial court while placing the names of Mahboob alias Moobi and Asghar Ali in column No.III and Muhammad Jamil, Faryad, Ghulam Rasul and Ghaffar in column No.II. All the accused were summoned to face the trial. At the inception of trial, the court framed charge against the appellants and their co- accused to which they pleaded not guilty and claimed to be tried. In order to prove the charge against the appellant, the prosecution produced as many as thirteen witnesses, out of them Muhammad Akram complainant (P.W. 9), Tahir Mahmood (P.W.10) and Muhammad Ishaque (P.W.10) appeared as eye- witnesses of the occurrence, whereas Dr. Shaukat All (P.W.7) and Dr. Liaquat Ali (P. W.12) proved the medical evidence.
5. The trial court examined the appellants and their co-accused under section 342, Cr.P.C.
Mahboob alias Moobi appellant while answering to question "Why this case and why the P.Ws. Have deposed against you?" made the reply which reads as under:-- "A false case has been registered against me and my co-accused. I along with Mushtaq and Tufail were going towards village Tangiran on 12-9-2003 at about 9-30 a.m., and when we reached near the crop of Younas Mochi, suddenly the complainant Muhammad Akram with gun .12 bore, Mushtaq son of Ghulam Muhammad with rifle 303, Asghar armed with rifle 303, Amjad Masood with rifle 8-MM emerged from the minor where they had concealed themselves and started firing upon me. The fire shots made by Ishaque and Akram hit on various parts of my body and I fell down. The other persons also fired which passed above me and hit deceased Bilal and Aslant which resulted their death. Tahir Mahmood was also injured by their firing. Tufail took me to my house as I was unconscious. Tahir Mahmood was taken to his house by Mushtaq son of Noor Muhammad. I was medically examined by the police on 20-9-2003 after my arrest. Tufail and Mushtaq son of Noor Muhammad appeared before the I.O. And told all the facts. An application was also filed by them to the. S.H.O. But the police did not record our version and I and my other co-accused have falsely been involved in this case."
6. While answering to the same question, appellants Abdur Razzaq, Muhammad Jamil and Asghar Ali made almost the same reply which reads as under:-- "I have falsely been involved in this case. I was running a tea shop where the accused persons often visited to take tea and so I have been involved in this case under suspicion. I have been found innocent as the result of police investigation. Nothing has been recovered from me and the P.Ws. Have deposed against me falsely due to close relative of the deceased."
7. The appellants did not make statements under section 340(2), Cr.P.C., however, they produced Dr. Liaquat Ali who medically examined accused Mahboob alias Moobi as DW.1 and Muhammad Tufail as DW.2. The learned trial court after appraisal of evidence available on the record vide judgment dated 25-3-2005 convicted and sentenced the appellants as narrated earlier, hence these appeals.
8. Learned counsel for the appellants contends that the prosecution case is that the occurrence has taken place in the land of the complainant where they were going to cut the fodder whereas it has been brought on record through the evidence of draftsman and even other witnesses that the place of occurrence was in possession of one Yasin. It is contended that the place of occurrence was not owned or possessed by the complainant and as such the presence of the complainant and the witnesses at the place of occurrence is highly doubtful. Learned counsel further contends, that appellant Mahboob received thirteen pallet injuries, he was not medically examined on the day 'of occurrence but later on he was produced by the police before the doctor and was medically examined on 20-9-2003 and the doctor indicated that the injuries on his person were caused 6/7 days back, in these circumstances it can easily be said that the injuries were received by Mehboob in the occurrence in which two persons from the other side died. He further contends that in the F.I.R. It was stated that the fires made by Jamil had hit Bilal on his chest, whereas the doctor who conducted the postmortem report has found the same to be an exit wound which was result of the entry wound made on the back and such circumstance indicates that the complainant was not there and has not seen the occurrence; even while appearing in the court the complainant remained stuck to his same position and his statement is just contradictory to the medical evidence and that the witnesses have stated that Tahir was detained by the appellants side and he was tied while he was detained but when Tahir appeared in court he has not admitted regarding his detention while tying him with rope and such a circumstance also infers that the witnesses have not seen the occurrence. It is further contended that the role of firing at Muhammad Aslam deceased is assigned to Mehboob appellant and statedly he fired two shots which landed on his left knee and at his back, in the postmortem report only two fire arm injuries were found by the doctor on the person of Aslam deceased. Learned counsel contends that the other accused are not liable for causing injuries to Muhammad Aslam even according to the prosecution case, Jamil appellant statedly fired at Bilal deceased on his chest; during investigation nothing was recovered from Jamil and even during investigation he was found innocent. It is contended that the general role of firing at Bilal is attributed to Faryad, Ghaffar acquitted accused) and Razzaq and Asghar along with three unknown persons, thus the injuries on the person of Bilal are attributed to seven persons, whereas the doctor has observed that Bilal deceased only received three injuries, out of them one was simple in nature and this circumstance leads to only one inference that the complainant side is trying to involve maximum number of persons by widening the net against the accused party: during investigation four of the accused named in the F.I.R. Namely Jamil, Ghulam Rasool and Faryad were found innocent by the Investigating Officer and nothing was recovered from these persons and out of them two have been acquitted by the learned trial court. It is further contended that rifles. 303 were recovered from Abdul Razzaq and Mehboob, six crime empties were taken into possession by the investigating officer from the place of occurrence which were of .303 bore, the empties were sent to the fire-arm expert on 27-9-2003, whereas the .Rifles from these appellants were sent to the fire-arm expert on 13-10-2003, the report of the fire-arm expert indicates that all the six crime empties were from the rifle recovered from Mehboob appellant. It is contended that so far as Razzaq appellant is concerned, the report of the fire-arm expert is negative. Learned counsel further contends that the presence of injuries on the person of Mehboob indicate that some aggressive action has been taken by the other side. It is contended that the motive put forward by the appellant has not been proved, there was no such circumstances which could have been led to such an occurrence; the medical evidence does not corroborate the ocular account. As far as the number of accused and even regarding the seat of injuries qua one of the deceased persons is concerned, it is contended that the recovery of crime weapons do not corroborate the ocular account regarding all the accused except Mehboob, so this is a case in which the ocular account is not worth relying as the complainant has suppressed the injuries on the person of one of the accused and the remaining corroborative evidence is also not sufficient which could lead the appellants to gallows, so in these circumstances the appellants are entitled to benefit of doubt; the presence of injuries on the person of one of the accused indicates that it was the complainant party who were aggressors and the occurrence has taken place in some other way. Learned counsel lastly contends that the presence of the complainant and the P. Ws. At the place of occurrence is highly doubtful the places which they have described was having KEEKAR bushes, but no such bushes were seen by the draftsman who prepared the site plan, this is also a circumstance which indicates that the complainant side is suppressing the truth and is not coming with clean hands and their statements are not worth relying. Learned counsel further contends that it has come in the prosecution evidence that the fires were made from a distance of 4/5 acres and that does not coordinate with the medical evidence. It has been argued on behalf of Abdur Razzaq appellant that the role attributed to him is the same as attributed to the acquitted accused Faryyad and Ghaffar and three unknown persons and in such circumstances, the appellant is entitled to the same relief; there is general allegation of making firing against Razzaq but no seat of injury has been described. Learned counsel contends that there are three injuries on the person of Bilal deceased and the same injuries have been attributed to seven persons, so it is not clear whether the appellant is responsible for causing any injury on the person of Bilal; .303 rifle was recovered from Abdur Razzaq and the report of fire arm expert indicates that the same does not match with the crime empties recovered from the appellant, even otherwise the recovery of rifle was not made from the exclusive possession of Abdur Razzaq, so such a recovery cannot be used against the appellant in any from. Learned counsel has relied on cases titled Noor Muhammad and another v. The State (2008 SCM R 69) and Akhtar Ali and others v. The State (2008 SCM R 6) in which it was held that when on the same evidence some of the co-accused are acquitted by the trial court, then the conviction and sentence on the same evidence to other accused cannot be maintained and they are entitled to acquittal on the basis of principle of consistency.
9. On the other hand, learned D.P.-G. States that the place of occurrence has not been described as the land owned by the complainant but it was stated that the complainant, and P.W.3 were going to cut the fodder and in the way the occurrence took place. He further contends that the whole case is based on the statement of the injured witness whose presence at the spot cannot be doubted, he was got medically examined by the police and the doctor observed the fire-arm injuries on his person; no reason for false implication of the appellant has come on the record; the version put forward by the appellant is highly doubtful and it cannot be presumed that six injuries would be received by the deceased and the injured witness with the fire arms at the hands of their on companions. With regard to appellant Mehboob, it is contended that he was produced before the doctor by the police after seven days of the occurrence who observed certain simple injuries on his person and the doctor further observed that the same may be the result of the pallets fired from a distance. It is contended that the said medical evidence does not lead to an inference that prosecution has not come with clean hands. It is contended that if the version put forward by the appellant has to be considered then under Articles 119 and 121 of Qanoon-e-Shahadat Order, 1984 the onus was on him to produce on record the circumstances in which two persons from the complainant side were killed. It is contended that appellant did not make statement on oath under section 340(2), Cr.P.C. And has not produced any evidence indicating the venue of occurrence which he has described. Learned D.P.-G. Further contends that in the absence of such clear evidence the appellant is not entitled to any exception, even otherwise the version put forward by the appellant is absolutely unreliable and cannot be accepted under any circumstances; there is a possibility that the appellant received certain injuries at some other place. So far as Mehboob appellant is concerned, he statedly fired two shots at Aslam deceased and the same were found by the doctor to be present on the person of Aslam, .303 rifle was recovered from the appellant and the report of the fire-arm expert indicates that the empties secured from the place of occurrence by the investigating officer matched with the same rifle, appellant Mehboob repeated the fires, there is no contradiction regarding his role. As far as Jameel appellant is concerned, learned D.P.- G. States that the role attributed to him is that of making firing on the Bilal deceased on his chest; no doubt the injury observed by the doctor was on the back of his chest, but the learned D.P.G.
States that the injury was present on his person and it is evident that the specific fire made by Jameel appellant hit on the back of Bilal and he was not confronted in this respect, so as far as the evidence regarding the injury on the back of Bilal is concerned, the same is corroborated from the medical evidence and for that he was given the benefit by the learned trial court and was awarded the life imprisonment. So far as Abdur Razzaq appellant is concerned, learned D.P.-G. States that he was armed with .303 rifle and he fired at Bilal deceased, no doubt there is no seat of injury described by the witnesses but the fact remains that he did fire at Bilal deceased; the recovery of .303 rifle also corroborates the ocular account, he was an unconcerned person and was friend of Mehboob appellant, as there was no enmity with the complainant or witnesses with Abdur Razzaq, so his involvement in the commission of offence in the presence of independent evidence is fully proved. With regard to Asghar appellant, it is concerned, that there is a general allegation of firing at Bilal deceased, there were three injuries on his person and one specific injury was assigned to Jameel; so there were two other injuries on the person of Bilal deceased which were assigned to remaining accused including Asghar appellant, during investigation. Asghar appellant got recovered 8 MM rifle, he has rightly been convicted and sentenced by the learned trial court.
Learned D.P.-G. Contends that Ghulam Rasool (co-convict of the appellants) has already undergone his sentence of imprisonment and his appeal has already been decided; the two co- accused namely Faryyad and Ghaffar were acquitted and general role of firing was attributed to them as they were declared innocent during the investigation, so their case is distinguishable from the appellants. Learned D.P.-G. Lastly submits that the appellants have rightly been convicted and sentenced by the learned trial court and the impugned judgment does not need any interference by this Court.
10. We have heard the arguments of learned counsel for the parties and have also gone through the record.
11. In this case the occurrence took place at 7-00 a.m., and the matter was reported in the police station through written application filed by Muhammad Akram (P.W.9) at 9-30 a.m. The police station was statedly at a distance of 8 Kilometers from the place of occurrence. So it can be said that the F.I.R. Was promptly lodged.
In this occurrence, two persons namely Bilal and Aslam received fire-arm injuries and died at the spot, whereas Tahir Mahmood (P.W.12) also received one firearm, injury on his left thigh. Tahir Mahmood was medically examined by the doctor and the duration between the injuries and the medical examination coordinates with the time of occurrence. So the presence of this witness at the place of occurrence is natural and is further established from the presence of fire-arm A injury on his person. The injury on the person of injured has duly been mentioned in the F.I.R. The complainant is nephew of both the deceased, whereas the injured is cousin of the complainant.
Seven persons were specifically nominated in the F.I.R. And they were statedly armed with deadly weapons. It is also mentioned in the F.I.R. That along with these seven persons three unknown persons accompanied them and even they were also armed with deadly weapons. Out of these persons, appellant, Mehboob was allegedly armed with 303 rifle and he fired two shots on the back and left knee of deceased Aslam. The postmortem report of Aslam deceased indicates that there were two fire arm injuries on his left knee and back and there was no other fire arm injury present on his person as observed by the doctor. So as far as the injuries on the person of Aslam deceased are concerned, the same are assigned to Mehboob appellant. Bilal deceased received three fire- arm injuries, out of them one was on the back of chest and was assigned to Jamil appellant. In the F.I.R. It was stated that he received injury on his chest, whereas the doctor observed that the fire was made from back which made its exit on the front. The fact remains that the other witnesses including the injured had specifically stated that the fire made by Jameel was on his back. So as far as Jameel appellant is concerned, the fire made by him on Bilal as described by the injured witness was found available by the doctor who conducted the postmortem examination on the person. There were two other injuries present on the person of Bilal deceased. It is the prosecution case that Abdur Razzaq made a fire which hit Bilal. It is also prosecution case that Ghaffar, Faryad, Aslam and Ghulam Rasul also fired at Bilal which hit on different parts of his body. The doctor who conducted the postmortem examination on the person of Bilal deceased has observed that he was having fire-arm injuries on his back, thigh and wrist. The injury on the back of Bilal deceased, as discussed earlier, is assigned to Jameel appellant, whereas two injuries i.e. On the thigh and wrist have been assigned to all these persons namely Razzaq, Farryad, Asghar, Ghaffar, Ghulam Rasul and three unknown persons. So the fact remains that two remaining injuries on the person of Bilal deceased were assigned to eight persons and with regard to these two injuries the prosecution is not sure that out of these persons who was responsible for causing these injuries as seat of injury has not been assigned to any of the accused. Out of these accused, two persons were acquitted by the learned trial court, whereas three persons remained unknown. Thus, with regard to two injuries on the person of Bilal deceased, the prosecution could not prove its case against Razzaq and Asghar appellants.
12. It has been noticed by us that during investigation six crime empties of .303 bore were recovered from the spot and rifles .303 were also recovered from Mehboob and Abdur Razzaq appellants. Both these six crime empties and fire-arms recovered at the instance of these appellants were sent to the fire-arm expert and report of the fire-arm expert is that all the six empties were fired from the rifle recovered from Mehboob appellant. So far as Razzaq appellant is concerned, the recovery of rifle .303 at his instance does not support the prosecution case rather it goes in favour of Razzaq that the empties secured from the spot did not match with the rifle recovered from him.
Thus, the case of Abdur Razzaq and Asghar is distinguishable from that of Mehboob and Jameel appellants who were assigned specific injuries on the person of the decease which were later on found to be present on the person of the deceased by the doctor who conducted the postmortem examination. The main motive is also alleged against, Mehboob and Jameel appellants. They were the persons who were present at the place of occurrence at a very first instance and the remaining accused came later on. No doubt nothing was recovered from Jameel during investigation but as the place of occurrence was barren land so there is a possibility that the crime empties were not traceable. Thus, we find that prosecution has proved its case against appellants Mehboob and Jameel beyond reasonable doubt and the case of remaining two appellants remains doubtful as the injuries assigned to them on the person of Bilal deceased were also assigned to five other persons and there were only two fire arm injuries left on the person of Bilal.
13. Appellant Mehboob while making statement under section 342, Cr.P.C., has taken a specific stance that he statedly also received fire-arm injuries during the same occurrence. He produced DW.1 who medically examined him on 20-9-2003 i.e. After 7/8 days of the occurrence and the doctor observed that the injuries were 7/8 days back. He observed thirteen pallet injuries on his person which he statedly received in the same occurrence but he did not appear before the police rather went to his on house. He never got himself medically examined for seven days and thereafter when he was got medically examined by the police. There is another strange factor that Mehboob was medically examined by the doctor through the police on 20-9-2003 but he was shown arrested on 28-9-2003. The injuries on the person of Mehboob were so simple in nature that the doctor himself observed that they were the result of pallets from cartridge No.4 fired from a considerable distance. Mehboob appellant has also taken a specific stance that the injuries on the person of both the deceased were the result of fires made by their on party-men. It is absolutely unacceptable that two injuries on the person of Aslam, three injuries on the person of Bilal and one injury on the person of Tahir Mehmood injured i.e. Total six injuries were received by the deceased and the injured with the result of the fires made by their on party-men and only one fire shot was received by appellant Mehboob and that too from a considerable distance. In support of his defence, the appellant has not brought on record sufficient material to substantiate his version, so the same cannot be accepted especially when the time of receiving injury also remained a matter in dispute because the medico legal examination on the person of the appellant was conducted after the delay of 7 days without any explanation.
14. As far as the question of common intention is concerned, the same is not proved from the foregoing facts and circumstances of the case because during investigation four persons were found innocent, three remained unknown and two were acquitted by the learned trial court. Qua two injuries on one of the deceased seven persons were implicated. In these circumstances, we are not feeling any hesitation in observing that the prosecution to some extent is not telling the truth and deliberately concealing some true facts from the Court. Even otherwise, is the duty of the prosecution to prove its case and the benefit of every doubt ought to be extended in favour of the accused. In case titled Ayub Masih v. The State (PLD 2002 Supreme Court 1048), the honourable Supreme Court held that:-- "Prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right---Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law--Doubt must be reasonable and not imaginary--- Said rule was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" and occupied a pivotal place in the Islamic law and is enforced rigorously in view of saying of Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."15. The nutshell of the above discussion is that prosecution has been able to prove its case against Mehboob and Jameel appellants, whereas remaining appellants i.e. Asghar and Razzaq are concerned, there is no sufficient evidence to connect them with the offence of murder. As there is no corroborative piece of evidence available on record to establish the ocular account qua the involvement of the above two accused Asghar and Razzaq, while accepting Criminal Appeal No.478 of 2005 (filed by Abdur Razzaq) and Criminal
16. Appeal No.523 of 2005 (to the extent of Asghar Ali appellant), we extend benefit of doubt in favour of Asghar and Razzaq appellants and they are acquitted from all the charges. They shall be released forthwith if not required to be detained in any other criminal case.
17. The presence of injuries on the person of Mehboob appellant indicates his presence at the place of occurrence but at the same time such injuries indicate that prosecution is suppressing something. So in these circumstances it is clear that something else had also happened in the same occurrence besides the matter regarding the murder. While considering the same we think that the death sentence awarded to appellant Mehboob is too harsh. It is well settled that even while awarding sentence accused is entitled to benefit of doubt. There are two sentences provided under section 302(b), P.P.C. It has been observed by us that Mehboob and Jameel appellants were already present at the place of occurrence, the deceased and the witnesses came there and the occurrence took place. While considering all these circumstances we think that appellant Mehboob is entitled to leniency. Accordingly while upholding the conviction of appellant Mehboob under section 302 (b) read with section 34, P.P.C. His sentence is converted into that of imprisonment for life. The conviction and sentence of Jameel appellant under section 302(b) read with section 34, P.P.C. Is maintained. So Criminal Appeal No.523 of 2005 to the extent of Mahboob and Jameel is dismissed. The conviction and sentence of the appellants on the other charge is set aside. Benefit of section 382-B, Cr.P.C., shall be extended in favour of these appellants and they shall also pay the compensation as ordered by the learned trial court. For the said reasons, we do not find any reason to enhance the sentence of Jameel appellant from imprisonment life to death, accordingly while withdrawing the notice of enhancement issued to him vide order, dated 9-6- 2009, Criminal Revision No. 498 of 2009 stands dismissed.
18. Resultantly death sentence awarded to Abdur Razzaq and Mehboob appellants is Not Confirmed and reference i.e. M.R. No. 251 of 2005 is answered in the Negative.