' AMIR HANI MUSLIM, J.---Through this common judgment, we intend to decide both the criminal appeals, filed against the judgment of Lahore High Court. Appeal No, 2 of 2011 has been preferred by the complainant Saeed Akhtar for enhancement of the sentence of the respondents Muhammad Javed and Muhammad Pervaiz accused-appellants whereas the other Appeal No, 1 of 2011 has been filed by the accused-appellants for their acquittal.
2. The learned counsel for the accused-appellants does not press the Appeal No, 1 of 2011 on merits and prays that the conviction recorded in the impugned judgment by the learned High Court be maintained with the modification that the appellant may be extended benefit of section 382-B, Cr.P.C.
3. The complainant in his appeal (Criminal Appeal No,2 of 2011) has sought enhancement of the sentence of the appellants in the other appeal from life imprisonment to death. In view of this, the only question left before us in these proceedings would be confined to the quantum of sentence of the accused appellants from life imprisonment to death penalty.
4. Facts of the case as are narrated by Saeed Akhter, the complainant-appellant in the F.I.R. Are that on 31-10-2003, he upon receipt of information of a quarrel of accused-appellant Muhammad Javed with his brother Muhammad Javed (deceased) arrived at the shop of his brother and learnt that Muhammad Javed (deceased) for return of Rs,44,000 had sent his man to Muhammad Javed accused-appellant, who had stated that he would himself come to the shop for return of the amount. At about 8-30 a.m. Muhammad Javed, Muhammad Pervaiz, Muhammad Riaz and Muhammad Ejaz all accused went to the shop of Muhammad Javed deceased, who scuffled with Muhammad Javed and Muhammad Pervaiz but they were separated upon the intervention of the people; at the shop where Abdul Ghalib, Abdul Khaliq, Masood, Tariq, Pervaiz and Muhammad Javed were present.
5. At about 12-15 noon accused Muhammad Javed, Muhammad Pervaiz, Muhammad Riaz, Muhammad Ejaz, Muhammad Fayyaz all armed with pistols, Muhammad Hayat armed with rifle like kalashinkov, Masood and Pervaiz sons of Mirza Khan armed with iron rods came there on cars Nos.4606-Rawalpindi and 1676-Lahore. Immediately after coming out from the cars, appellant Muhammad Javed accused fired with his pistol, which hit on the right shoulder of Muhammad Javed deceased, who died at the spot. After this, Pervaiz deceased came out and the appellant Muhammad Pervaiz accused fired at him which hit on front of the neck. Muhammad Hayat, Muhammad Ejaz, Muhammad Fayyaz and Muhammad Riaz started firing with their respective weapons. Perviaz fell on the ground after receiving fire shot. Masood accused inflicted injury with iron rod on the head of complainant, who also fell down. Muhammad Pervaiz son of Mirza Khan gave iron rods blow on the head of their employee Muhammad Tariq, who was also injured. The motive for the occurrence was mentioned as demand for return of loan.
6. Investigation of the case was conducted by Noor Khan S.I P. W.16. He after receiving the information about the occurrence, reached the spot, prepared injury statement of Tariq Mehmood Exh.PV and of saeed Akhtar Exh.PW, also prepared the injury statement of Muhamamd Pervaiz (deceased) Exh.P.X, recorded the statement of Muhammad Pervaiz under section 161, Cr.P.C, also prepared injury statement of Muhammad Javed deceased Exh.PAA, his inquest report Exh.PBB, inspected the spot, took into possession blood stained earth from the place of death of Muhammad Javed and Muhammad Pervez vide Exh.PR and Exh.PS respectively. He also took into possession four empties of .30-bore P.19/1-4, vide memo Exh.PT, prepared rought site plan Exh.PCC.
On 11-11-2003, he took into possession Car No,LHC-1676 P.17 vide recovery memo Exh.PK., On 2-11- 2003, from the shop of Muhammad Javed deceased he took into possession the register/khata P.7 vide memo Exh.PG. On 4-11-2003 on the receipt of information about the death of Muhammad Pervez, he reached DHQ Hospital, Chakwal, prepared his inquest report Exh.PEE. On 5-11-2003, he took into possession Car No,RIV/4606 P-18 vide memo Exh.PL. On 5-11-2003, he arrested accused Muhammad Hayat, Masood and Muhammad Pervez. On 24-11-2003 Muhammad Hayat accused while in police custody got recovered rifle .7 M.M P-1 and its licence P-2 which was taken into possession vide memo Exh.PB. On the same day, Masood accused got recovered iron rod P-3 which was secured vide memo Exh.PC. On 13-12-2003, he arrested accused Muhammad Riaz, Ijaz and Fayyaz. On 24-12-2003 Muhammad Ijaz accused got recovered pistol .30 bore Exh.P-9 along with four bullets Exh.P-10/1-4 which were taken into possession vide memo Exh.PH. On 24-12-2003, Muhammad Riaz accused got recovered pistol .30 bore Exh.P-11 having two bullets P-12/1-2 which were secured vide memo Exh.PI. On 6-1-2004, he arrested Muhammad Javed and Muhammad Parvaiz accused. On 14-1-2004, Muhammad Javed accused got recovered pistol .30 bore P-3 having four bullets P-4/1-4, which were taken into possession vide memo Exh.PE. On the same day, Muhammad Parvaiz accused got recovered pistol .30 bore P-5 having four bullets P-6/1-4 which were taken into possession vide memo Exh.PF. However, after completion of remaining formal investigation, he found all the accused guilty and challaned them to face the trial.
7. The prosecution, at trial, in order to prove its case produced 16 witnesses in all, besides the Chemical Examiner's report, Forensic Science Laboratory Report, bail applications moved by the accused-appellants; whereafter the prosecution closed its side. The statements of the accused under section 342, Cr.P.C. Were record. On conclusion of the trial, the appellants Muhammad Javed and Muhammad Pervaiz were awarded death sentence on two counts under section 302(b)/34, P.P.C. With compensation of Rs,1,00,000 on each count or in default thereof to suffer six months S.I each count. Muhammad Ijaz, co-accused, was awarded life imprisonment on two counts under section 302(b)/34, P.P.C. With compensation of Rs,1,00,000 on each count and in default to suffer six months S.I. On each count. Co-accused Muhammad Riaz, Muhammad Fayyaz Muhammad Hayat, Muhammad Masood and Pervaiz Akhter were acquitted by the trial Court.
8. The accused-appellants preferred appeal before the learned High Court against their conviction and sentence while the complainant filed criminal revision for enhancement of sentence of accused Muhammad Ejaz as well as criminal acquittal .Appeal against acquittal of the co- accused acquitted by the trial Court. The learned Lahore High Court after hearing the parties in appeals and criminal revision, accepted the appeal of accused Muhammad Ijaz and ordered his acquittal, whereas the appeal of accused-appellants Muhammad Javed and Muhammad Parvaiz was dismissed with the modification that their sentences were commuted from death penalty to life imprisonment. Likewise, criminal acquittal appeal filed by the complainant against acquittal of other co-accused was also dismissed. Criminal Revision of the complainant for enhancement of sentence of Muhammad Ejaz was too dismissed, which common judgment of learned Lahore High Court is impugned in these proceedings.
9. It is contended by the learned counsel for the complainant-appellant that the High Court has erred in law in commuting the death penalty of the appellants to life imprisonment, inter alia, on the ground that motive was shrouded in mystery. He submitted that the learned High Court while commuting the sentences of the accused appellants has not given any justifiable reasons of modification. It is contended that the High Court has observed that prosecution has failed to prove the motive. The learned counsel has further contended that merely a single fire shot injury was not a sufficient ground to commute the sentence of appellants from death to life imprisonment. He submitted that the motive was asserted in the F.I.R. And in order to prove that the deceased Muhammad Javed had given loan to accused-appellant Muhammad Javed register of account was produced in evidence before the trial Court to establish the factum of loan. He submitted that in the face of this evidence, which had come on record the learned High Court has wrongly commuted the sentence of the accused-appellants.
10. The learned counsel for the complainant further contented that the loan amount was outstanding and was payable by the accused-- appellants and on demand by the deceased Muhammad Javed, the murder of two real brothers was committed by the appellants. He submits that the accused-appellants in retaliation for demanding return of loan attacked the deceased brothers and all these proven facts were completely overlooked by the learned High Court while passing the impugned judgment. He, in support of his contentions, has relied on the case of Latif Ullah v. The State reported in (2007 SCM R 994), Muhammad Afzal v. Muhammad Asghar (PLD 2000 SC 12), Syed Hamid Mukhtar Shah v. Muhamamd Azam (2005 SCM R 427), Shahid Ghafoor v. The State (2007 SCM R 1338) and Zulfiqar Ali v. The State (2008 SCM R 796). According to the learned counsel for the complainant, the impugned judgment of the High Court was violative of the principles laid down by this Court in the above-noted judgments and sentences of life imprisonment awarded to the accused-appellants were not in consonance with the law laid down by this Court.
11. The learned Additional Prosecutor-General, Punjab, did not support the impugned judgment of learned Lahore High Court and adopted the arguments of the learned counsel for the complainant.
12. The counsel for the accused-appellants (Respondents in Appeal No,2 of 2011) has submitted that the learned High Court was justified in commuting the sentence of the accused from death to life imprisonment as according to the prosecution version, each and every accused was carrying firearm weapons. The prosecution witnesses have deposed before the trial Court that all the accused persons have participated in multiple firing but the deceased have only received one bullet shot each on their persons. He submits that this was sufficient ground to commute the sentence. Additionally, he submitted that out of eight accused persons, six were acquitted by courts below, which establishes that the conduct of complainant party had all intents to rope the entire family of the accused-appellants.
13. We have heard the learned counsel for the complainant as well as the accused and the.
Additional Prosecutor-General, Punjab. We have also perused the record with their able assistance.
It is not disputed that parties were not inimical to each other. The demand of loan amount is also stood proved by the prosecution witnesses. What really concern us is the manner in which the loan amount has been demanded which was the real cause resulting into the unfortunate incident.
There were three stages of occurrence which are reflected from the contents of the F.I.R. The first instance was the time when a person was sent by the appellant Muhammad Javed to the deceased' shop demanding the loan money back. On return, the person informed that the accused are asking deceased Muhammad Javed to come himself for such purpose. The appellants with Ijaz and others went to the shop of the deceased Javed where scuffle between the accused and the complainant party took place. Injuries were received by co-accused Muhammad Ijaz, who has been acquitted by the High Court vide impugned judgment. The fact that co-accused during scuffle had received injuries has been substantiated by the medical report of P.W.15, who was examined in the trial Court and has produced the medical report. Third stage was when the appellants and 6 other co-accused Muhammad Riaz, Muhammad Ejaz, Muhammad Fayyaz, Muhammad Hayat, Muhammad Rasheed and Pervaiz Akhter alleged to have come to the shop of the deceased Javed and allegedly started firing which has resulted in the loss of lives of deceased Javed and deceased pervaiz, pursuant to which the F.I.R. Was registered against them.
14. There is no previous enmity between the parties. On the unfortunate day of the incident, due to scuffle between the parties, initially co-accused Muhammad Ijaz received injuries. The appellants and aforesaid accused came back after some time and fired at the deceased party. The case in hand is not a case in which the motive was shrouded in mystery but in fact the entire prosecution story revolves around the three incidents of the same day. The High Court in its judgment while commuting the sentence of the accused-appellants has held that the motive between the parties was not proved and has been shrouded in mystery. Perhaps the word 'motive' was wrongly used by the learned Judges in Chamber' while passing the impugned judgment. It was the demand of loan amount and subsequent scuffle between the parties when injuries were received by the co- accused Muhammad Ijaz which resulted in the commission of offence. All this has been happened within 4 hours on the same day and, therefore, it can be safely presumed that the act of the appellants of committing murder was either provocative or in vengeance and there was no previous enmity or dispute between the parties except the aforesaid events. The complainant party prompted the occurrence.
15. There is no cavil to the propositions of law laid down by this Court in the above-referred judgments cited by the learned counsel for the appellant-complainant, but each case has to be decided on its own merits. We have also gathered from the record, the conduct of the parties as none of the parties have approached the police station in spite of the two incidents which took place between them prior to the occurrence, which establishes that either party was not inclined to involve the area police. The complainant party has also roped all the brothers of the accused- appellants as co-accused, five of them were acquitted by the trial Court whereas the sixth was acquitted by the learned High Court. The prosecution witnesses have deposed that all the accused were firing at the complainant party, but the deceased have received single bullet injury on their person. The only question before us is whether there were mitigating circumstances justifying the learned High Court to commute the sentences of the accused-appellants from death of life imprisonment. The phrase 'mitigating circumstances' has been interpreted in the case of Muhammad Sharif v. Muhammad Javed alias Jeeda Tedi (PLD 1976 SC 452), where their lordships have held that extreme youth, sudden provocation, influence of an elder and question of family honour etc. Are covered by the phrase of extenuating and mitigating circumstances. If a case falls within any of the aforesaid circumstances, a Court, in law, is justified to award lesser penalty.
16. Looking at the background narrated hereinabove, we are of the considered view that the case in hand is covered by one of the categories of the phrase mitigating circumstances and therefore, we are inclined to hold that there existed mitigating circumstances and the learned High Court though has not spelt out reasons for awarding lesser punishment to the accused-appellant in the impugned judgment, has rightly commuted the sentence of death of the accused-appellants to life imprisonment.
17. We, for the aforesaid reasons, while dismissing both the appeals maintain the judgment of the learned Lahore High Court with the modification that the appellants shall pay compensation of Rs,2,00,000 each to the legal heirs of the deceased Muhammad Javed and Muhammad Perviaz respectively or in default shall suffer six months S.I. However, sentences of the accused-appellants shall run concurrently and they will be entitled to the benefit of section 382-B,