JUDGMENT SHAHID HAMEED DAR, J. Through this judgment we intend to dispose of Criminal Appeal No.1285 of 2005 filed by Altaf Hussain alias Taafi and Muhammad Jamshed alias Pervez appellants accused and Criminal Appeal No.440 of 2005 filed by Amanat Ali alias Taju appellant-accused.
2. Through this consolidated judgment a Murder Reference No.164 of 2005 sent by the learned trial court shall also be answered.
3. The appellants-accused namely Muhammad Jamshed alias Pervez, Altaf Hussain alias Taafi and Amanat Ali alias Taju were prosecuted for the offence of murder of Muhammad Shahid son of the complainant in case F.I.R. No.55 of 2002 dated 24-2-2002 under section 302, P.P.C. Read with section 34, P.P.C. Registered at Police Station Manga Mandi, Lahore.
4. The appellants-accused were held guilty by the learned Addl. Sessions Judge, Lahore who vide judgment dated 26-2-2005 convicted and sentenced the appellants= accused, as. Under:- Altaf Hussain alias Taafi appellant-accused. Under section 302(b), P.P.C. Death with order to pay Rs.50,000 as compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof, to undergo six months' S.I.
Amanat Ali alias Taju and Muhammad Jamshed alias Pervez, appellants-accused. Under Section 302(b), P.P.C. Imprisonment for Life each with order to pay Rs.50,000 each as compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof, to undergo six months' R.I. Each.
Benefit of section 382-B, Cr.P.C. Was extended to both of the above named appellants-accused.
5. The prosecution story, precisely, as unfurled in the statement Exh.PA (F.I.R. Exh.PA/1), rendered by Maqbool Ahmad, P.W.1. Is that he was an agriculturist and resident of village Bhai Kot, Lahore; he was present at his house when his younger son Abid informed him at about 5-00 p.m on 24-2- 2002 that a quarrel had erupted between Shahid (deceased) and Altaf alias Taafi joined by Pervez and Taju etc. At the agricultural land of Maqsood Ahmad alias Hussain (late) where he had gone to play cricket with Altaf etc., the complainant (PW-1) Muhammad Siddique (P.W.2.) and Muhammad Akarm (given-up P.W.) rushed to the spot and witnessed Messrs Muhammad Altaf alias Taafi (appellant), Pervez (appellant) and "Taju (appellant), armed with cricket bats, wrangling with his son Shahid (deceased); Pervez and Taju (appellants) caught hold of the arms of Shahid (deceased) within the view of the complainant etc. And Altaf alias Taafi gave a forceful blow of his bat on the chest of Shahid which, felled him to the ground, then, all three beat deflated Shahid with their bats; on their satisfaction, that he had died, they fled away; Muhammad Shahid breathed his last instantaneously; the occurrence was witnessed by. Muhammad Siddique, Muhammad Akram and the complainant; the motive behind the occurrence was that the team of Altaf alias Taafi etc, owing to partial umpiring by Shahid (deceased) had been defeated, 5/6 days earlier and a brawl had taken place between them which caused them grudge, due to which they committed the murder of Shahid.
6. The complainant (P.W.1.) recorded his statement Exh.PA before Arshad Mahmood Inspector/S.H.O., (P.W.9.) at 5-30 p.m. On 24-2-2002 at the place of occurrence, on the basis of which, formal F.I.R. Exh.PA/1 was registered at Police Station, Manga Mandi, Lahore.
7. Haider Ali S.-I/Investigating Officer P.W.8. Reached the place of .Occurrence immediately, on receipt of an information about the incident and found the dead body of the deceased lying on the ground, he examined it and prepared an injury statement Exh.PH, inquest report Exh.PJ, a docket Exh.PK for postmortem examination of the dead body and transmitted the corpse of the deceased to the mortuary under the escort of Mansab Ali constable and Muhammad Saeed 738/C, P.W.4. For autopsy; he/I.O./P.W.8. Also prepared visual site plan of the place of occurrence Exh.PL; recorded supplementary statement of the complainant qua correction of the names of Amanat Ali and Muhammad Jamshed, appellants--accused, secured last worn clothes of the deceased Shalwar P-4, Qameez P-5 and Bunyan P-6 vide recovery memo Exh.PE; he got prepared scaled site plan Exh.PF and Exh.PF/1 in duplicate by Syed Younis Ali Bokhari, Draftsman P .W.5.
8. Jamshed alias Pervez, Altaf alias Taafi and Amanat alias Taju, the appellants-accused were arrested on 5-3-2002 by Haider Ali, S.-I./Investigating Officer P.W.8., who, pursuant to their turn-by- turn disclosure before him and other P.Ws., on 7-3-2002, led to the recovery of cricket bats P-1, P-3 and P-2 vide memos Exh.PB, Exh.PD and Exh.PC respectively, attested by Liaqat Ali, P.W.3. And Muhammad Latif, P.W. The 1.0. Prepared the site plans Exh.PM., Exh.PN and Exh.PO of the place of recovery of the above said cricket bats.
9. Upon completion of investigation, a report under section 173, Cr.P.C. Was submitted before the learned trial court for trial of the accused-appellants.
10. At the commencement of the trial, the learned trial court charge sheeted the appellants- accused under section 302, P.P.C. Read with section 34, P.P.C. To which they did not plead guilty and claimed a trial.
11. The prosecution examined 9 witnesses in toto to prove the guilt of the appellants-accused.
Maqbool Ahmad, complainant, P.W. I. And Muhammad Siddique P.W.2. Furnished the ocular account of the occurrence in question. P.W.1. Also deposed about the motive part of the incident; Liaqat Ali, P.W.3. And Latif P.W. Attested the recovery memos Exh.PB, Exh.PC and Exh.PD, qua the recovery of bats P-1, P2 and P-3; got recovered by Jamshed, Amanat Ali and Altaf Hussain appellants-accused. Liaqat Ali P.W.3 also identified the dead body of the deceased at the time of autopsy before the Medical Officer Dr.Maqbool Hussain P.W.7. Syed Younis Ali Bokhari, Draftsman P,W.5. Prepared the site plan in duplicate, Exh.PF and Exh.PF/1 of the place of occurrence in the scale of 1 inch equal to 100 feet. Muhammad Saeed 738/C, P.W.4. Attested recovery memo Exh.PE qua the above said last worn clothes of the deceased.
12. The medical evidence was provided by the Medical Officer, Dr.Maqbool Hussain P.W.7. Who conducted postmortem examination of the dead body of Muhammad Shahid, deceased, at 11-15 a.m. On 25-2-2002 vide post mortem examination reports PG pictorial diagrams Exh.PG/1 Exh.PG/2).
All the 6 injuries on the dead body of the above deceased were caused by blunt weapon. The probable time elapsed, as noticed by this P.W., between injuries and death was 'immediate' and between death and postmortem was within 12 to 24 hours. The cause of death recorded by Medical Officer (P.W.7.) was due to damage to the heart leading to neurogenic shock.
13. Haider Ali S.-I./Investigating Officer P.W.8. Conducted complete investigation of this case from day one, till preparation and submission of challan under section 173, Cr.P.C. For trial of the accused. The remaining evidence produced by the prosecution was more or less formal - in nature.
14. The learned Public Prosecutor after giving up certain P.Ws. Being unnecessary announced the prosecution case closed.
15. In their statements recorded under section 342, Cr.P.C. Altaf Hussain alias Taafi, Amanat All alias Taju and Muhammad Jamshaid alias Pervez, appellants-accused denied all the charges of the prosecution against them and professed.' their innocence. Altaf Hussain alias Taafi, appellant- accused, while answering the question, "why this case against you and why the P.Ws. Had deposed against you", contended as under:-- "I have been falsely implicated in this case due to previous enmity. My father Bashir Ahmad Malik was a witness against the father of Maqbool Ahmad P.W. I. In a murder case. Due to the said enmity I have been falsely implicated in this case."
Amanat AN alias Taju appellant-accused answered the aforesaid question, as under:-- "I have falsely been implicated due to previous enmity. The father of the accused Altaf Bashir Ahmad Malik was a prosecution witness against the father of P.W.1. Maqbool Ahmad. I being relative of Malik Bashir Ahmad has been falsely implicated in this case."
Muhammad Jamshed alias Pervez, appellant-accused, recorded his reply to the aforesaid question in the following words:-- "I have been falsely implicated in this case due to previous enmity. My maternal uncle Bashir Ahmad Malik was a witness in murder case against the father of Maqbool Ahmad P.W.1."
16. All the appellants-accused adopted another version, individually, qua their innocence in the instant case while responding to question No.7 of their statements under section 342, Cr.P.C, " Do you want to say anything-else,", with following contention:-- "I am innocent. On the alleged day of occurrence Shahid was playing cricket and was running to complete score, fell on the bricks, used as wicket, with his on force suffered injuries and died."
17. They did not appear as their on witness under section 340(2), Cr.P.C. To repel the prosecution case against them. Altaf Hussain alias Taafi accused, however, produced Pervez Iqbal as DW-1 in his defence, whereas, his aforesaid co-accused did not avail the said facility.
18. Upon conclusion of the trial, the learned trial Court after finding the prosecution's case, against the appellants to have been proved beyond reasonable doubt, convicted and sentenced them, as stated herein before, hence, the present appeal and the connected murder reference before this court.
19. We have heard learned counsel for the parties and have perused the record of this case.
20. The learned counsel for the appellants, being convinced to have ripped apart the prosecution case, contends that the prosecution had failed to prove its case against the appellants beyond reasonable doubts and that they should have been acquitted; the witnesses of ocular account have rendered false and tutored statements against them as they were neither present at the spot nor had witnessed the occurrence, besides their statements were pregnant with countless contradictions and discrepancies; the deceased was neither attacked, nor caused any injuries by, the appellants-accused and he, being a patient of epilepsy, had fallen on the bricks with a thud due to epileptic fits, while running between the wickets, during a cricket game; the medical evidence does not corroborate the ocular account in any manner and the measurement of injuries of the deceased negates the story narrated by them; the evidence of recovery of cricket bats from the appellants-accused is fake, hence; inconsequential for the prosecution's case; the impugned judgment suffers from non-reading and misreading of the evidence which has been passed in an arbitrary, perverse and capricious manner; the site plan also does not corroborate the statements of P.W.1. P.W.2., the witnesses of ocular .Account, failed to establish their presence at the place of occurrence at the relevant time and they have rendered mendacious statements in this regard, which cannot be used under the law to convict and sentence the appellant; the impugned judgment has resulted in miscarriage of justice which cannot be sustained.
21. On the basis of the said contention, the learned counsel for the appellants has prayed for the acquittal of the appellants. In the alternative, he has made a prayer to convert the death sentence of Altaf Hussain alias Taafi, appellant into one of imprisonment for life on the ground, that there are mitigating and extenuating circumstances in favour of the said appellant as the motive has gone unestablished. Relies upon Noor Muhammad v. The State and another (2010 SCM R 97).
22. Conversely the learned Deputy Prosecutor-General assisted by learned counsel for the complainant have submitted in unison that the prosecution had succeeded in establishing its case against 'the appellants beyond reasonable doubt and thus their conviction and sentence recorded by the learned trial court does not warrant any interference by this court.
23. We find, after having heard the learned counsel for the parties and gone through the record, that the prosecution case hinges at the ocular account furnished by P.W.1 and P.W.2, the medical evidence presented by P .W.7., the evidence of motive produced by P.W.1. And the recovery evidence qua three cricket bats P-1 to P-3 at the instance of the appellants-accused, furnished by P.W.3. And P.W.B.
24. According to the prosecution's case the appellants had been assigned specific role qua the deceased, that they being armed with cricket bats, in the backdrop of a previous dispute over umpiring of a cricket match, hurled their wooden arms on the body of the deceased and caused his instantaneous murder. Altaf Hussain alias Taafi, appellant-accused inflicted a specific blow with his cricket bat on the chest of Shahid deceased, after his co-accused had rendered the deceased helpless by catching his arms, due to which he fell down. Thereafter, all of them gave repeated blows with their weapons, on the body of fallen Shahid (deceased) till he expired at the spot. The witnesses of ocular account have further deposed that the appellants-accused fled away, after they had satisfied themselves about the expiry of their rival team-player. The occurrence took place at 5-00 p.m. On 24-2-2002 when daylight was available. In parallel to the prosecution's case, it has been contended by the appellants-accused in their statements under section 342, Cr.P.C., that the deceased had fallen on the bricks, which were used as wickets, during a cricket match and received multiple injuries on his body owing to which he died. The versions of both the sides are poles apart interse so, these shall have to be assessed and scanned by keeping them in juxtaposition to each other. Maqbool Ahmad, P.W.1. Showed his ignorance as to what a cricket team meant and how many players formed a cricket team but he deposed about his little knowledge as to who an umpire was in a cricket game. He was tested on the point that his deceased son was a patient of epilepsy and that he used to have fits of the said disease to which he replied in negative. He admitted in his cross-examination that his father was an accused in the murder case of a Patwari and that Bashir Ahmad Malik, father of Altaf Hussain alias Taati, appellant, was a prosecution witness against him and that he was a maternal uncle of Jamshed appellant-accused as well. It has also been admitted by him that Amanat appellant-accused was a relative of his co-accused appellants. He also deposed that it was the Tru day (the following day of Eid) when the unfortunate occurrence took place. The arena of the occurrence was a vast piece of land owned by one Maqsood alias Chand who had a big chunk of agricultural land, which touched Sundar road, leading to the village. Some portion of this land was used by the youth of the village to play cricket and they also used to stage cricket matches with other teams, hailing from the nearby villages. The gathering of a number of people at the said ground on the day of the occurrence, being a Tru day, may not be an unusual circumstance, as the people throng such places on a festive day for merry-making: While, conducting cross examination on both the P.Ws.
The defence does not appear to be sure and definite as to how many persons had visited that ground on the day of the occurrence as number of such persons has been put to the P.Ws. With a difference, in hundreds. We find a strange approach of the defence while we go through the cross examination on the witnesses of ocular account that not a single question has been put to the said witnesses as to the mode of occurrence, the position and distance of the witnesses in regard to the deceased at the relevant time or the end of the cricket pitch where according to the defence, the deceased had allegedly fallen on the bricks. The defence has also shown no interest aeall in establishing the fact, whether P.W. I . P.W.2. Had reached the place of occurrence at the relevant time or they were placed in such a situation wherefrom they could witness the occurrence or not. A few questions regarding one irrelevant fact and a few regarding some other irrelevant fact and the defence exhausted themselves in terms of cross-examination. Both the witnesses have categorically denied the repeated questions as to the ailment of the deceased i.e. The epilepsy, which could not be established by the defence during trial. In fact, they shed the contention while making statements under section 342, Cr.P.C. P.W.1. And P.W.2. Have successfully proved their presence at the place of occurrence as the portions of their statements in chief, relating to their arrival at the spot and their viewing the occurrence have not even, been touched upon by the defence, for the reasons known to them only, thus, leaving no other option but to believe them. The arrival of the police at the spot at about 5-15/5-20 p.m. Has been deposed about by the P.Ws which is a strong indication that the statement of the complainant Maqbool P.W.1. Had been recorded by the police at about 5-30 p.m and that the F.I.R. Exh.PA/1 had been recorded at 6-00 p.m as is shown on the face of the said document. The promptitude shown in this respect by the prosecution lends a sense of authenticity to the deposition of P.W.1. That he had recorded his statement at the place of occurrence before Haider Ali S.-I./ Investigating Officer P.W.8 immediately on his arrival at the spot, within 15/20 minutes of the occurrence. The objection of the learned counsel for the defence that the post mortem examination of the deceased had been conducted at 11-15 a.m. On 25-2- 2002, was a delayed post mortem examination so the F.I.R. Might be considered as an anti timed document, does not have any substance in it as the relevant P. Ws. Have not been cross examined at all in this regard. The complainant has confidently stated that on receipt of information about the dispute from his son Abid, he immediately rushed to the place of ,occurrence and witnessed the same as there was no obstruction between the place of occurrence and the village abadi which could hinder his view of the scene of occurrence. As discussed earlier, the hesitation of the defence, to grill P.W.1. And P.W.2. On the said points has resulted in proving the arrival and presence of the said witnesses at the spot, at the crucial time of occurrence. Their testimonies, however, cannot be accepted in a blind folded manner as the mode of occurrence leads us to believe that it was Altaf Hussain alias Taafi appellant-accused, alone, to have committed the offence and his co- appellants appear to have been implicated in this case by casting the net too were. Muhammad Jamshed alias Pervez, and Amanat Ali alias Taju appellants-accused have been stated to be the relatives of their co-appellant and their being co-players and team-mates of Altaf Hussain alias Taafi accused-appellant have been roped in this case so as to stop and discourage them to come to the rescue of their co-accused during the investigation and during the course of the trial. Their presence at the place of occurrence might be possible, for the foregoing reasons but it does not seem believable that they had given beating to the deceased. Had they, Muhammad Jamshed alias Pervez and Amanat Ali alias Taju appellants, been armed with cricket bats, why would they throw away their bats to catch hold of the deceased from his arms as they all, being three in number could easily hurl their weapons on the body of the deceased as he being alone could not show any resistance. It was not essential at all that two of the three appellants should render the deceased helpless, by catching hold of his arms, as a person, at the mercy of three men armed with cricket bats, could easily be surrounded and nose-dived by them without any difficulty. Their act of allegedly holding the deceased in fact shows, that they were not armed at all nor they had caused any injuries on the body of the deceased. It does not mean that on this score alone, the ocular account should be thrown away as the primary duty of the courts is to sift grain from the chaff and segregate the mendacity from the truth. The principle of falsus in uno, fillsus in omnibus is not universally applicable and the innocent have to be separated from the sinners, on the basis of the evidence available on the record. The way, both the above said witnesses have narrated the facts of this case, has led us believe that their testimonies are credible and worth-reliance to the extent of Altaf Hussain alias Taafi, appellant-accused.
25. So far as the raison d'etre is concerned it finds mention in the F.I.R. Exh.PA/1 and the prosecution witness P.W.1. Has deposed in terms that a quarrel had taken place between Shahid deceased and Altaf alias Taafi and others 5/6 days prior to the occurrence, over the umpiring of a cricket match as Altaf alias .Taafi appellant, suspected the deceased of unfair and dishonest umpiring which had resulted in a defeat to his cricket team. The complainant P.W.1 did not produce any evidence before the Investigation Officer, P.W.8., in connection with the above said motive nor he claimed during the trial that the motive incident had taken place in his presence. Haider Ali, P.W.8. Has stated in his testimony that the complainant had not produced any witness to, establish the factum of motive.
Although, the defence once again showed carelessness while cross-examining P.W.1., as not only, a single question in respect of the motive incident was not put to him but also, even a formal suggestion denying the motive was not put to the P.W., yet, it is always the prosecution to prove its case against the accused beyond shadows of doubt. So, the prosecution was not absolved of their primary duty to stand on its on legs even in respect of motive. In these circumstances, we have come to a definite conclusion that the prosecution miserably failed to prove motive as narrated by the complainant before the Investigation Officer/P.W.8., for setting the machinery of law in motion.
26. Insofar as the medical evidence is concerned it has been produced by Dr. Maqbool Hussain, P.W. 7, who performed autopsy on the dead body Shahid deceased at 11-15 a .m on 25-2-2002 vide postmortem examination report, Exh. PG (pictorial diagrams Exh.PG/1 and Fxh.PG/2). The eminent characteristics of the postmortem examination are that all the injuries on the body of the deceased had been caused by blunt weapon(s), the detail of which is reproduced hereunder:--
(1) Abraided area 3 x 2 c.m. On the back of right chest. 6.5 c.m. From posterior midline, 20 c.m.
Below to tip of right shoulder.
(2) Abraided area 4.5 x 2.5 c.m. On the back of left chest 8.5 c.m. From posterior midline, 9.5 c.m.
Below inferior angle of left scapula.
(3) Abrasion 2 x.3 c.m. On the front of neck in the mid line and to the left 4.5 c.m. Above supra sternal. Notch.
(4) Abrasion, 3 x 1 c.m. On the left chest anteriorly 2.5 c.m. From left nipple at 4-00 '0' clock position.
(5)Abrasion 1.5x .5 c.m on the left chest anteriorly 6.5 c.m below the left nipple at 6-00 'O'clock position.
(6)Abrasion 5 x 5 c.m on left fore arm medially 4 c.m. Above left wrist.
27. The medical evidence establishes the fact that the dead body of the deceased had been dissected by the Medical Officer who had recorded his findings that the deceased had died due to damage to the heart leading to neurogenic shock. The time elapsed between-injury and death, was noticed by the Medical Officer, P.W.7, as 'immediate' and between death and postmortem as 12 to 24 hours which corroborates the ocular version. The Medical Officer recorded a strange reply in his testimony that Injuries Nos.4 and 5 might possibly be the result of fall on the bricks. The detail of dissection given by the Medical Officer, straightaway negates his above said dishonest and concessional version, as, lower lobe of left lung was bruised, heart was congested, petechial haemorrhages were present, apex of left vertrical was bruised and testicles of the deceased were also bruised. The aforesaid favouring reply by the Medical Officer is unfortunate and smacks dishonesty and malpractice. The medical evidence, we find, fully corroborates the ocular account.
28. So far as the evidence of recovery of cricket bats P-1 to P-3 at the instance of Altaf Hussain alias Taali, Muhammad Jamshed alias Pervez and Amanat Ali alias Taju, vide memos Exh.PD, Exh.PB and Exh.PC respectively, is concerned, it is hardly of any consequence as none of the, wooden weapons was stained with blood, hence, these weapons were not sent to the, office of Chemical Examiner, Punjab, Lahore or to the Serologist, Punjab, Lahore In absence of any such evidence, it cannot be said if the said bats could be termed as the weapons of offence. This piece of evidence is inconsequential to the prosecution's case.
29. Insofar as the defence plea and the defence evidence produced by the appellants-accused is concerned we find it as devoid of any substance or truth for the reason that no plausibility existed to believe the contention that the deceased had fallen on the bricks while running between the wickets and that he had the fits of epilepsy at the time of occurrence. The P.W.1 P.W.2 have categorically denied that the deceased was a patient of epilepsy or he had been having the treatment for such an ailment. The appellants-accused too felt the absurdity and shallowness of their defence plea. Therefore, they did not press into service such sickness of the deceased while recording their replies in their statements under section. 342, Cr.P.C. The defence witness Pervez Iqbal (D .W.1) deposed about a cricket match between two teams at the place of occurrence wherein, Shahid deceased was also playing for one of the teams who played a ball and ran for the other end, where, he fell on the bricks, with a thud due to epilepsy and received the injuries which proved terminal. The medical evidence directly controverts this deposition of the defence witness as the pictorial diagram Exh.PG/2 shows two blunt weapon Injuries (Nos.1 and No.2) on the back whereas, three, injuries are on the frontal posture of the deceased and one injury on the medial left arm. Such locale of injuries could only be found on the body of the deceased, if we look at the defence evidence; that the deceased after falling once on the bricks, would get up and throw his body again and again on the bricks so as to receive the said injuries, as mentioned in the postmortem examination report Exh.PG. Pervez Iqbal, DW-1, never knew if his statement had been recorded by the Investigation Officer during investigation or not. He either innocently or cleverly had deposed that he never inquired from the 1.0, if his statement had ever been recorded by him or not. It was an evasive action on the part of the DW which reflected upon the veracity of his contentions. The statement of the I.O/P.W.8. Also does not verify the said factum, as claimed by D.W.1. It was an after thought and a delayed attempt/ move on the part of the defence, to evade the consequences of the murder of the deceased. The defence evidence thus, is brushed aside and rejected by us.
30. For the foregoing reasons, the prosecution, as we conclude, has failed to prove its case against Muhammad Jamshed alias Pervez and A tnanat Ali alias Taju, the appellants-accused beyond any shadow of doubt. Hence, we allow the Criminal Appeal No.1285 of 2005 to the extent of Muhammad Jarnshed alias Pervez appellant and the Criminal Appeal No.440 of 2005, filed by Amanat Ali alias Taju; appellant, set aside the impugned judgment to their extent, passed by the learned trial court.
They are acquitted of all the charges and would be released forthwith, if not required, in any other criminal case.
31. Now reverting to the quantum of sentence in respect of Altaf alias Taafi, we have observed, as discussed above that the prosecution failed to prove motive part of its story. Haider Ali S.-I./P.W.8.
Deposed that during his investigation, the complainant P.W.1. Did not produce any evidence before him to prove the motive. The solitary statement of the complainant, on the factum of motive, could not find any corroboration from any source. It cannot be said with certainty as to what happened or transpired between the parties prior to the occurrence. The possibility of a chance encounter clash between the parties cannot be ruled out. As the motive, set up by the prosecution has gone abegging so the prosecution must suffer the consequences and not the defence. While relying upon the case-law Noor Muhammad v. The State and another (2010 SCM R 97), cited by the learned counsel for the appellants, we have held and concluded that there is a mitigating and extenuating circumstance, requiring the conversion of death sentence of Altaf Hussain alias Taafi, appellant into one of imprisonment for life. Hence, the death sentence, awarded to Altaf Hussain alias Thafi appellant, by the learned trial court is converted to Imprisonment for Life, with benefit of section 382-B, Cr.P.C. The sentence of compensation and in default thereof, is however maintained.
32. The Murder Reference No. 164 of 2005 is answered in the negative.