JUDGMENT ABDUL QADIR MENGAL, J. This criminal appeal under section 410, Cr.P.C. Has been directed against the judgment dated 8-12-2009, passed by the Additional Sessions Judge-II, Quetta, in murder F.I.R. No.19 of 2008, whereby the appellants were convicted and sentenced under section 302(b), 34, P.P.C., for life imprisonment, so as were directed to pay a sum of Rs.50,000 (Rupees fifty thousand only) each, as compensation to the legal heirs of the deceased Muhammad Naeem, in default, to undergo for further term of six (6) months' S.I., each, with benefit of section 382--B, Cr.P.C.,
2. Being aggrieved of the said order, the present appeal has been preferred with the prayer:-- "That Hon'ble Court may Net aside impugned judgment dated 8-12-2009 and to acquit the appellants."
3. Similarly, the complainant filed a Criminal Revision No.2 of 2010 for enhancement of the sentence.
We intend to dispose of the both through a common judgment.
4. Brief facts as unfolded in the judgment of the learned Additional Sessions Judge-II, Quetta, were that, the complainant, Muhammad Kareem son of Faiz Muhammad, lodged an F.I.R. Through a Fard-e-Bayan, Exh.P/1, stating therein that, he is residing along with his brother at Pashtoonabad, Quetta, and running a business of vegetables at Hazar Ganji Vegetable Market. It was 1-4-2008, when he and his brother, Muhammad Naeem, were present at home. It was about 8-00 p.m., his brother left for the house of Khuda-e-Nazar, saying he was invited there, so his brother went to their house situated near Abdul Wali Chowk. Soon after that he came to know that appellants Shah Nawaz and Nadir Ali have killed his brother Muhammad Naeem by firing of Kalashnikov, due to unknown reasons. The complainant rushed to the spot and found his brother smearing in blood.
Thereafter, he shifted his brother to the hospital, where the S.H.O. Along with the Police party was already present in connection with the incident of a quarrel and was busy for completing formalities and treatment of the injured accused. There, he informed the Police about the murder of his brother at the hands of the accused Shah Nawaz and Nadir Ali, who reduced the information into writing and then send it for the registration of an F.I.R. Under sections 302, 34, P.P.C.
5. After lodging the F.I.R. No. 19 of 2008, the Investigation of the matter was entrusted to P.W.8 Manzoor Ahmed S.-I., who arrested the appellants. He recorded the statements of the P.Ws. And took into possession the blood-stained clothes of the deceased, blood-stained knife from the place of occurrence and prepared the sketch of wardat and also secured the bloodstained earth.
He recovered two leads of bullet through a recovery memo in presence of the witnesses. The bloodstained articles were sent for analysis and certificates of the same were received. He prepared the final challan of the matter on 26-6-2008.
6. On receiving the challan, the District and Sessions Judge, Quetta, transferred the matter to the Court of the Additional Sessions Judge-II, Quetta, for trial..
7. On 14-6-2008, charge was framed and was read over to the appellants, to which, they pleaded not guilty and claimed trial. To prove the case, the prosecution produced the following eight (8) witnesses:-- P.W.1 Muhammad Kareem, the complainant of the case.
P.W.2 Saadullah son of Nida Muhammad, an eye-witness of the incident.
P.W.3 Habibullah son of Raheemuddin, an eye-witness.
P.W.4 Talib Hussain A.S.-I., a formal witness for production of Counter F.I.R. No. 18 of 2008, under section 324 and so as memos of recoveries of the incident.
P.W.5 Abdul Sadiq, an eye-witness of the incident.
P.W.6 Riasat Ali S.-I. a recovery witness of the articles, such as, Blood-stained Clothes, Blood stained Earth including Blood stained Knife.
P.W.7 Dr. Muhammad Ibrahim MLO, Civil Hospital, Quetta.
P.W.8 Manzoor Ahmed is the Investigating Officer of the accused, who on completion of the investigation, has submitted the challan before the court.
8. On conclusion of the case, the trial Court convicted and sentenced the appellant as mentioned hereinabove, hence these appeal and revision.
9. Learned counsel for the appellants mainly contended that the trial Court has not properly appreciated the evidence and has overlooked the impact of the counter F.I.R. No. 18 of 2008, whereas it was the deceased, Muhammad Naeem, who attacked upon the appellants/accused and gave them serious injuries. He argued that the appellants immediately approached the police station and registered their F.I.Rs. And thereafter, the present F.I.R. Was registered against the appellants. He stated that at the time of the present incident, the appellants were not, present at the spot, rather, after registration of their F.I.Rs., they were in hospital for their treatment. According to the learned counsel, the appellants have wrongly been involved in the case.
10. The learned counsel stated that the appellants are innocent and the so-called eye-witnesses actually are not the witnesses of the scene and are the arranged ones. He further argued that there is no recovery from the accused, which could connect the accused in the commission of the offence, therefore, in the circumstances, the accused are innocent and are liable to be acquitted of the charge, but the trial Court did not dilate upon the relevant fact properly and overlooked the important and material aspect of the case, as such, committed an illegality.
11. The counsel for the State, Mr. Ateeq Ahmed Khan, and so as the counsel for the complainant, Mr. Muneer Ahmed Langov, while repudiating the Sessions Judge has failed to pass a normal penalty of death to the appellants by overlooking the real facts and evidence of the eye-witnesses of the incident, and has wrongly concluded that the incident was a result of a mitigating circumstance and awarding the life imprisonment. It is a rule of law that, once a murder has been proved, then, the normal sentence of death should be awarded, but the trial Court did not consider contention of learned counsel for the appellant stated that, the accused, intentionally, committed the murder of the deceased, by calling him to their house. They, with their common intention and pre-arranged plan, attacked upon the deceased and killed him by means of firing of the Kalashnikov, as such, the appellants/ accused have committed the murder of the deceased. The additional this legal and factual aspect.
12. We have heard both the sides and perused the record of the case. Admittedly, the deceased had come to the house of the appellants for lodging a protest of their attitude for annoying on a petty matter.
Record reflects that the deceased had changed his behaviour by extending abuses to the appellants in their house in front of their mother, so the appellants took him out of their house and tried to pacify the deceased. According to the appellants, the deceased became furious, took out a knife and, then, attacked upon the both brothers by inflecting them knife blows, which resulted into serious injuries.. They were shifted to a hospital and registered an F.I.R. No.18 of 2008 against the deceased, but the same was not proceeded being abated due to the death of Muhammad Naeem. It may be necessary to point out that on this aspect. The trial Court expressed himself as follows:-- "As discussed hereinabove, at the strength of record, it is patently clear that the deceased Muhammad Naeem had gone to the house of accused person in order to make protest, whereupon an altercation picked up between them. They indulged in quarrel and after receiving stab wounds the accused persons retaliated with such a degree of venom that Shah Nawaz at the instance of Nadir Shah opened fire with a Kalashnikov and killed Muhammad Naeem instantaneously on the spot. The nature of offence is, no doubt, an act of ruthless murder with an automatic weapon, the attending circumstances in which the offence was committed are that the accused persons made onslaught using maximum force to retaliate the assault of deceased having a knife, and the degree of deliberation shown by the accused persons is of very short span of time as they reacted spontaneously. Amidst such state of affairs, it is evident that the accused persons did not act in preplanned or premeditated manner to take the life of the deceased in order to encumber them with culpability of murder. The proof as envisaged under section 304, P.P.C. In either form is not available, therefore, as it appears that the deceased went to the house of accused persons and the accused persons in a sudden flare up and in the heat of passion acted in such a manner which cannot be justified in totality yet the case squarely fell within the ambit of section 302(b), P.P.C. As Tazir."
13. The view expressed by the trial Court seems to be based upon the evidence and material available before it. The finding of facts arrived at by the trial Court has weight in it for the reason that the Judge had the advantage of seeing the witnesses appeared before him. Hence, credibility is attached to such observation of the trial Court and, as such, we see no reason to disturb it.
Reliance has been placed on a case of Mst. Khatoon v. Sabir Ahmed and others, reported in PLD 1995 Karachi (593).
Thus, it is proved that the deceased went to the house of the appellants/accused, where an altercation took place, in result whereof, the present incident had taken place.
14. Now, adverting to the evidence, the present case almost depends upon the evidence of three
(3) eye-witnesses, including admission of the appellants about the arrival of the deceased to their house and altercation, which culminated into the quarrel and use of the knife by the deceased.
Admittedly, the complainant is not an eye-witness of the case, whereas P.W.2 Saadullah, P.W.4 Abdul Saddiq and P.W.3 Habibullah claimed to be the eyewitnesses of the incident. According to them, they all went to the shop of ice cream, in the meanwhile, they received an information from a cyclist that some people were beating Muhammad Naeem Achakzai, on that, they went there and saw Nadir telling his brother Shah Nawaz, who had a Kalashnikov in his hand, to fire burst, who fired at Muhammad Naeem, whereafter, accused fled away from the place of the incident. The witnesses said that they took Muhammad Naeem to the hospital, where Muhammad Kareem also reached. The witnesses fully corroborate each other on this point. This. Is the whole and material evidence of record on basis of which, the trial Court has based his finding. In the light of the background of the case, the statements of the witnesses require minute examination and assessm ent. Role of both the accused and their common intention of killing the deceased, Muhammad Naeem, are required to be dealt with on the basis of the record and findings of the trial Court.
15. At the very outset, we may mention that the arrival of the deceased at the house of the appellants and the altercation and quarrel with the appellants gets support from the admissions of the appellants, secondly from the statements of the eye-witnesses, who confirm the place of the occurrence, being adjacent to the house of the appellants. This fact gets further support from the complaint, wherein, it is said that the deceased had informed the complainant that he had left to the house of the appellants. This fact has further been supported by the site plan, where the dead body was found, and the blood-stained earth was obtained therefrom. The F.I.R. Registered by the appellants also confirms the place of the occurrence, as near to the house of the appellants.
Admittedly, the witnesses did not mention the injuries caused to the appellants, rather they assigned the, role of raising "Lalkara" to the appellant, Nadir. In Our view, these portions of the statements of the P.Ws.Do not match the facts of the incident and suppressed some of the facts. It is unbelievable that if the appellant had a Kalashnikov to kill the deceased,. Muhammad Naeem, before the arriving of the Eye-witnesses, then, there was no need for them to wait till arrival of the Evewitnesses. The statements of the witnesses of given reply of "Ialkara" to the appellant Nadir is unbelievable for the reason that his F.I.R. Was registered Prior to the F.I.R. Of the present case.
Secondly, Nadir was taken to the hospital immediately after the occurrence, and his medical certificate shows the nature of the injuries caused to him on his vital parts do not reflect self inflicted injuries.
Fired upon the deceased and killed him. Since, there was no common intention on the part of the appellant Nadir, therefore, he could not be held responsible for the act of Shah Nawaz, as such, was not liable to be convicted for the murder of Muhammad Naeem. In this respect, we have fortified our view from 1997 (4) CRI (63), which reads as follows:- "The mere act by the accused shouting at other accused for assault cannot mean that all the accused persons had common intention to cause grievous hurt, specially when the weapon of offence itself had not been carried by accused prior to occurrence, but was suddenly picked up by him near the spot."
17. Hence, in our view, the conviction and sentence awarded to the appellant Nadir in the present case is absolutely improper and illegal, as such, he is acquitted of the charge. Whereas, it is proved that during the fighting, the circumstances compelled Shah Nawaz to kill the deceased.
16. Thus, in the light of the above,
18. The act 18. The act Nawaz shows that he fired at the deceased who received several injuries on his vital parts, as is evident from the M.L.C., knowingly that, it would cause death of the deceased. He could have make fires in his self defence at the leg of the deceased, but not on his vital parts. The appellant Shah Nawaz committed the murder of Muhammad Naeem and the trial Court has rightly held it a result of the mitigating circumstances, therefore, we are reluctant to interfere in the finding of the Additional Sessions Judge-II, Quetta, to the extent of Shah Nawaz.
19. Thus, in view of what has been while assessing the evidence, we are of the view that despite the narrated facts by the complainant side, we see no any pre-plan or pre-concerts of minds for commission of the murder, therefore, section 34, P.P.C. Hardly can be applied in the present matter.
Facts further show that, the appellants/ accused having had Kalashnikov at their house, but same was not used by them nor there was such intention to murder the deceased, but at a sudden or in spur of the moment, the deceased took out the knife and started inflecting the injuries to appellants. So, it was that stage when Shah Nawaz during the fighting rushed to his house and brought the Kalashnikov and stated and discussed above, the appeal is partly allowed. The impugned judgment 'dated 8-12-2009 passed by the Additional Sessions Judge-II Quetta, to the extent of the appellant Nadir Ali son of Khuda-e-Nazar is set-aside. He is acquitted of the charge.
The appeal to the extent of appellant, Shah Nawaz, is dismissed and his conviction is maintained.
In view of the above findings on the appeal, we see no any reason or weight in Criminal Revision No.2 of 2010 for enhancement of the sentence, therefore, same is dismissed.. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.