' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Criminal Appeal No, 116 of 2007 filed by Muhammad Yaqoob and Jail Petition No, 13 of 2006 as they are directed against the same judgment dated 16-1-2006 passed by the learned Lahore High Court vide which it allowed the appeal of Amanat Ali alias Mani and converted his sentence of death into life imprisonment but dismissed the appeal of Muhammad Yaqoob and confirmed his sentence of death.
2. Appellant and petitioner along with six others were tried for the double murder of Muhammad Ramzan and Abdul Wahid and for causing murderous assault on Mst. Parsan (not produced) and Muhammad Akram (P.W.7) and Muhammad Aslam (P.W.8) in terms of the case registered vide F.I.R.
No, 307 dated 19-10-1996 under section 302/324/148/149, P.P.C. At Police Station Dera Raheem. The learned trial Court vide its judgment dated 3-2-2000 while acquitting Muhammad Tufail, Jan Muhammad alias Jana and Ghulam Haider convicted the appellants and the remaining in terms as follows:- "(I) Amanat Ali alias Mani son of Nazar Din and Muhammad Yagoob, appellants for offences under sections 302/148/149, P.P.C. To death each plus compensation Rs, 50,000 each, payable to the legal heirs of both the deceased Ramzan and Abdul Wahid or in default in payment thereof to undergo R.I. For six months each;
(II) Ghulam Qadir for offence under section 324, P.P.C. To undergo imprisonment for five years plus Rs, 10,000 as compensation to be paid to the injured Mst. Parsan Bibi or in default in payment thereof to suffer further imprisonment for six months;
(III) Amanat Ali son of Nawab and Muhammad Sharif for offence under section 302, P.P.C. To imprisonment for life each and also to pay Rs, 25,000 each as compensation to the legal heirs of 'Muhammad Ramzan, in default whereof to further under R.I.' for six months each."
3. By the time, the appeals of the appellants came up for consideration, the remaining convicts had already served out their sentences and the learned High Court vide the impugned judgment decided the appeals of the appellants only. The prosecution story briefly stated is as under:-- "The facts of the prosecution case, as narrated by Muhammad Akram, complainant, are that on 19- 10-1996, he along with his other family members, namely, Muhammad Ramzan, Mst. Parsan, Muhammad Aslam, Abdul Wahid, Mst. Maroofan and Mst. Hameedan was present, in the courtyard of the house, When at 5-00 p.m., Amanat Ali son of Nawab Din, Muhammad Shafi and Muhammad Tufail, armed with daggers, Jan Muhammad armed with hatchet, Amanat All son of Nazar Din (appellant) armed with spear (BA,RCHI), Ghulam Haider armed with BARCHHI, Muhammad Yagoob-appellant armed with dagger and Ghulam Haider armed with knife trespassed into their house. The complainant party raised alarm which attracted Pathana and Muhammad Hanif to the spot. Amanat Ali son of Nawab Din caused a dagger blow on the back of father of the complainant just underneath his neck. Muhammad Shafi gave dagger blow on the right side of Ramzan's back.
Muhammad Yaqoob-appellant caused injury with dagger on the neck of Ramzan. Amanat All son of Nazar Din (appellant) caused BARCHHI blow on the left armpit of Ramzan. Muhammad Tufail gave dagger blow, hitting on the head of Ramzan. The complainant's father Ramzan fell on the ground. Abdul Waheed intervened to rescue the complainant's father Ramzan when Muhammad Yaqoob-appellant gave a dagger. Blow on the left side of the chest of Abdul Wahid, who also fell on the ground. Amanat Ali alias Mani caused another blow with BARCHHI on the back of head of Abdul Wahid. Ghulam Haider gave BARCHHI blow, hitting complainant's mother on her right arm. Ghulam Qadir caused injury with CHURRI on her right hand in between her thumb and index finger.
Pathanay Khan and Muhammad Hanif P.Ws., rushed towards the scene of occurrence to rescue the complainant party from the clutches of the assailants, the accused made good their escape, along with their respective weapons, threatening with dire consequences if any would try to restrain them, he would met the same fate. Meanwhile, Ramzan and Abdul Wahid succumbed to their injuries at the spot. The occurrence was witnessed by Mst. Parsan Bibi, Muhammad Aslam, Muhammad Akram the complainant and Muhammad Hanif.
' The motive behind the occurrence was that five years prior to the occurrence, Muhammad Akram complainant had purchased an Ihata measuring five marlas from one Hassan Din and the complainant party was in possession thereof since then. After the death of Hassan Din, his brother Makhan sold the said Ihata to Muhammad Sharif-accused one year earlier to the occurrence. The accused party demanded the vacant possession of the Ihata, which demanded (sic.), being unjustified, was declined by the complainant, as a result whereof the accused party committed the offence."
4. During 'trial the prosecution examined 14 witnesses including the Doctor and the Investigating Officer. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
5. Learned counsel for the appellant and petitioner submitted that it was an unseen occurrence; that the F.I.R. Was registered with pre-concert; that the story narrated by the eye-witnesses namely Muhammad Akram (P .W.7) and Muhammad Aslam (P.W.8) is repellant to common sense inasmuch as it is not believable that they would remain silent spectators when their father Muhammad Ramzan was being belaboured with tarchees' and hatchet; that the graphic details with which these witnesses have attempted to attribute specific injuries to the appellants defies reason as in a moment of shock it is not possible to describe it in exactitude; that the doctor who conducted postmortem examination of both the deceased was never produced during trial and this fatal infirmity in the prosecution case makes the same not free from doubt.
6. Learned State counsel, on the other hand, defended the impugned judgment by submitting that the F.I.R. Was lodged promptly; that all the accused were specifically named in the F.I.R. And a definite role was assigned to each one of them; that the non-appearance of the doctor who conducted postmortem examination is of no consequence as secondary evidence was led to show that the said doctor has proceeded abroad and P.W.14 Muhammad Arshad, dispenser, appeared to identify the postmortem examinations which are placed on record as Exh.PX and Exh.PY.
7. We have considered the submissions made by learned counsel, for the appellant and petitioner as also for the State and have reappraised the evidence on record.
8. It is a case in which the F.I.R. Was lodged within two hours of the occurrence and all the accused including the appellant and petitioner were specifically named with a definite role assigned to each one of them. Although the ocular account furnished by Muhammad Akram complainant (P.W.7) and Muhammad Aslam (P.W.8) conies from blood relations of deceased Muhammad Ramzan (both are his sons) yet this by itself would not erode their credibility in the facts and circumstances of the instant case; first, because they are residents of the house where the occurrence took place, second, they had no reason to falsely implicate the appellant and petitioner and none was suggested either, third, they were consistent on the role ,attributed to each of the appellant and, m fourth, both are injured. The medical evidence is corroborative of their testimony not only with regard to their presence but also with regard to the injuries attributed to them on the person of both the deceased. The concurrent findings of guilt, therefore, are unexceptional. However, coming to the question of sentence with regard to Muhammad Yaqoob appellant, we find that it is a case in which as per the prosecution story, 8 accused armed with `barchees', hatchet and `khanjar' attacked the complainant party. There are 5 injuries on the person of Abdul Wahid and 6 injuries on the person of Muhammad Ramzan. Besides the 2 appellant and petitioner, there were 6 other accused, who were armed with sharp edged weapons, 3 of whom were acquitted by the Trial Court and the remaining served out their sentences. The fatal injuries on the person of Abdul Wahid are 8 and on the person of Muhammad Ramzan are 3.
In that moment of commotion and shock, it would be rather difficult to say with exactitude as to who caused the fatal injury. Even otherwise, the ocular account has partly been disbelieved qua those who stand acquitted. In these circumstances and reiterating the law laid down by this Court in Ansar Ahmad Khan Barki v. The State and another (1993 SCM R. 1660) as also Shahzada Khan v.
The State (1984 SCM R 1161), it would not be safe to award maximum sentence of death to Muhammad Yagoob appellant.
9. For what has been discussed above, we partly allow Criminal Appeal No, 116 of 2007 and convert the sentence of death into life imprisonment and for reasons given in paragraph 8 above, Jail Petition No,13 of 2006 is dismissed and .
Sentence reduced.