' MAZHAR IQBAL SIDHU, J.---Through this consolidated judgment, we intend to dispose of Criminal Appeal No,1974 of 2006 brought by appellants Nasir Ali and Ahmad Nawaz and Criminal Revision No,149 of 2007 by petitioner Noor Muhammad, whereas Murder Reference No,61 of 2007 has been sent seeking confirmation of sentence of death or otherwise having arisen out of the same judgment.
2. Appellants Nasir Ali and Ahmed Nawaz by way of Criminal Appeal No, 1974 of 2006 have brought under attack the judgment rendered on 20-12-2006 by the learned Additional Sessions Judge, Jhang in case F.I.R. No, 113 registered under section 302/34, P.P.C. At Police Station, Garh Maharaja, Tehsil Shorkot, District Jhang on 21-6-2002. He vide the same imposed the following conviction and sentences upon the appellants:-- Nasir Ali Under section 302(b)/34, P. P. C .
' Sentenced to death and to pay a sum of Rs,1,00,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C., and in default whereof to further simple imprisonment for six months Ahmad Nawaz ' Imprisonment for life and to pay a sum of Rs,1,00,000 as required under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to further simple imprisonment for six months with benefit of section 382-B Cr.P.C.
3 Through the same judgment, the learned trial court acquitted accused Manzoor and Mazhar by extending them the benefit of doubt.
4. Petitioner/complainant Noor Muhammad has brought Criminal Revision No, 149 of 2007 for enhancement of quantum of sentence of appellant Ahmad Nawaz.
5. The facts leading to the conclusion of all the matters are that on the basis of statement Exh. PG had have recorded by Noor Muhammad complainant (P.W.8) before the police on 21-6-2002 at about 10-00 a.m. Through Exh.PC, the F.I.R. Wherein he stated that he is resident of Garh Maharaja and is cultivator by profession. On the said date at about 10-00 a.m. His son Amjad Ali (deceased) in order to visit his uncle, Gul Muhammad proceeded from his house and when he reached near Imam Kot of Nawazish Ali Khan then accused Nasir Ali armed with sota and Muhammad Nawaz, who had hidden out there came before him. In the meantime, Ahmad Nawaz took him in his (japha) and Nasir Ali inflicted sota blow on his head. Thereafter the accused fled away from the spot.
6. The motive behind the occurrence was that they embroiled with each other one hour before the instant occurrence, due to this grudge, the accused have injured Amjad Mi. The injured was escorted to R.H.C. Garh Maharaja in an injured condition. He was unconscious and the doctor referred him to Nishter Hospital, Multan, who succumbed to his injury just after 1-1/2 hour of his arrival at Multan.
7. The investigation was conducted by Muhammad Nawaz, S.-I. He drafted complaint Exh.PG on the statement of Noor Muhammad on 21-6-2002 and sent the same for the registration of formal F.I.R.
After receiving the copy of F.I.R., he proceeded to Nishtar Hospital, Multan and found the dead body of Amjad deceased there, prepared his injury statement Exh.PD and inquest report Exh.PE and handed over the dead body to Mukhtar Ahmad-C for onward escort to hospital at Garh Maharaja for postmortem. He inspected the place of occurrence on the same day, took into possession blood stained earth vide memo Exh.PJ attested by the P.Ws. And prepared rough site plan of the occurrence Exh.PK. Then he recorded the statements of the P.Ws. Under section 161, Cr.P.C. And also recorded the supplementary statement of complainant. Mazhar and Manzoor were implicated by having for the, abetment of conspiracy for this occurrence. Safdar Ali, P.W. Produced before him the medical certificate of the deceased. Mukhtar Ahmad constable after the postmortem produced before him on 22-6-2002, the last worn dudes of the deceased shirt P-1, Shalwar P-2, Banyan P-3, which were taken into possession vide memo Exh.PA attested by the P.Ws. The said P.Ws. Also produced before him carbon copy of postmortem report of the deceased. The draftsman took rough notes of the place of occurrence on 24-6-2002 and on 26-6-2002 produced before him the scaled site plans in duplicate prepared by him Exh.PF and Exh.PF/1 and recorded his statement. He arrested both the accused on 14-7-2002. Nasir accused on his disclosure got recovered sota P-4 which was taken into possession vide memo Exh.PH and secured the same into sealed parcel and prepared site plan of the same Exh.PH/1. Both the accused were sent to judicial lock up on 15-7- 2002. Manzoor and Mazhar Hussain were also arrested by him.
8. Upon completion of the investigation the Challan was submitted to the learned trial court.
9. At the commencement of the trial the learned trial court framed the charge against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
10. During the trial the prosecution produced ten witnesses in support of its case against the appellants and their co-accused.
11. The medical evidence was provided by Dr.. Ghulam Farid (P.W.3), who performed the postmortem examination of Amjad Ali and observed on his body following:- INJURY
(i) A lacerated wound 5 cm x 1 cm, 4 x 1 cm on the right side of scalp. The wound was 7 cm above from right ear. The same was bone deep (bone exposed).
12. In his opinion, the cause of death was oedema of brain as a result of Injury No,1, which was sufficient to cause death in the ordinary course of nature. Injury No,1 was caused by a blunt weapon and ante mortem in nature. Furthermore, the probable time between injury and death was four to five hours and between death and postmortem was about 17 to 18 hours.
13. Learned ADA renounced Fakhar Abbas P.W. On 20-7-2006 being unnecessary and the learned SPP by tendering in evidence reports of Chemical Examiner Exh.PL and Exh.PL/1 and that of Serologist Exh.PM and Exh.PN closed the prosecution case.
14. Thereafter the statements of the appellants as well their co-accused since acquitted under section 342, Cr.P.C. Were recorded, in which they denied and controverted all the allegations of fact levelled against them and professed their innocence. Their stances while answering the question that why this case against you and why the P.Ws. Was the same that the case is false and the P.Ws.
Are related inter-se with the deceased and the complainant and they are innocent. They, however, opted not to make statement on oath under section 340(2), Cr.P.C. And even not to produce any evidence in their defence.
15. Upon conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed supra and acquitted their co-accused Manzoor and Mazhar. Hence, the present appeal, criminal revision and the murder reference.
16. The learned counsel for the appellants has argued qua Ahmad Nawaz appellant that at the time of occurrence, he was empty handed and the role ascribed to him that he took the deceased in his clasp at the time of occurrence does not fit in the prosecution version rather it is inapprehensible that the appellant was apprehending every likelihood of the receipt of injury in his body, when the deceased was in his Japha and was attacked by the co-appellant. Why he would involve him in danger. The learned counsel submits that the because of the enmity, he has been involved by making the mesh widen and has prayed for his acquittal.
17. The learned counsel for the appellant death-convict Nasir Ali has argued that the F.I.R. Was delayed by eight hours. The deceased in injured condition was taken to Nishtar Hospital, Multan but even on the way or from the hospital nobody bothered till the death of the deceased to lay information to the police about the occurrence. The learned counsel submits that the facts and circumstances of the case implying that the story was fabricated by the complainant party in collusion with the police because of the same F.I.R. Was lodged with some delay. The learned counsel has further argued that there has no previous enmity between the parties and the prosecution's own case set up in the F.I.R. That earlier to the happening of the incident of murder hot words were exchanged among Amjad Ali and Safdar Ali from one side of the appellants or other side because of this, misadventure by way of happening of the instant occurrence .Entered the houses of the parties. The learned counsel has submitted that actually at the spur of the moment, the occurrence took place in which no conventional weapon was used by the appellant and a solitary blow was caused to the deceased by Nasir Ali appellant. The learned counsel has further argued that the intention of the appellant was not to put the deceased in death. It has been further argued that the presence of the P.Ws. At the place of occurrence is doubtful because none of them came forward to rescue the deceased. When was under the attack and even none of them attempted to capture either of the appellants at the time of occurrence. The learned counsel has further submitted that during the investigation, the prosecution version has not been found correct in its totality and the version set forth by the appellant seems to be reasonable and plausible in the circumstances of the case. The learned counsel has submitted that in the circumstances of the case capital punishment is unwarranted and uncalled for.
18. The learned D.P.-G. Assisted by the learned counsel for the complainant has opposed the appeal to the extent of Nasir Ali vehemently, whereas qua Ahmad Nawaz appellant, the learned counsel remained nolens volens.
19. It has been argued that because of one hour earlier incident. Nasir Ali appellant along with his co-accused Ahmad Nawaz came at the spot with the knowledge as well as intention to commit the murder of Amjad Ali deceased and caused a blow on the most vital part on the body of deceased i.e head and the same made causation. The learned counsel has submitted, that no doubt that only single blow was landed by the appellant but this fact has itself is not sufficient to extenuate the quantum of sentence and in so many legal precedents, the Hon'ble Supreme Court of Pakistan has held that this fact alone is not sufficient to mitigate the quantum of sentence and what is required to be seen by the Court is that at the time of occurrence what was the intention of the wrong doer, the weapon used, seat of the injury and the damage caused. In this case, head of the deceased was selected to be landed blow and ultimately the blow took the life of the deceased. The learned counsel has further argued that so far as the previous enmity is concerned, this factor goes against the appellant because on a meager matter life of the deceased has been extinguished. It has, thus, been prayed that the appeal may be dismissed.
20. We have heard the learned counsel for the parties and perused the record with the assistance of the learned counsel for the parties.
21. The occurrence took place on 21-6-2002 at 10-00 a.m., whereas the matter was reported to the police on the same day at 6-20 p.m. With the delay of, about eight hours as to the same, no plausible reason has been assigned by the complainant and it is incomprehensible that why the complainant did not lay information to the police about the occurrence up till the death of the deceased. In these circumstances, it is justifiable construed that the complainant party must have deliberated prior to the lodgment of the F.I.R. It is evident from the record that there was no previous enmity between the parties. One hour earlier of the happening of the incident hot words allegedly exchanged between the parties and out of the same, the instant incident was borne out.
We have not seen any previous enmity between the parties. After going through the record, we have been persuaded that the incident described by the prosecution of one hour earlier is false but it appears from the circumstances that all of a sudden at the spur of moment, the incident took place and only one sota blow was operated on the head of the-deceased by appellant Nasir Ali.
We have also remained unable to come to the conclusion that P.Ws. Have not seen the occurrence.
The prosecution has not exaggerated its version of the incident. We have also not seen any reason by way of spite rankling in the minds of the P.Ws. To make false statements against the appellants.
Mere propinquity between the P.Ws. And the deceased by itself is not ground to discard their testimony. During the physical remand weapon of offence sota smeared with blood was recovered on the disclosure of the appellant and the same was sealed in a parcel and was sent it to the office of the Chemical Examiner. As per Exh.PL/1 and that of the Serologist Exh.PM, it has been opined that human blood was found available on the sota. The recovery of weapon of offence also corroborates the prosecution version.
22. In these circumstances of the case, we believe that the prosecution has fully proved it's case beyond any shadow of doubt against Nasir Ali appellant. In these circumstances of the case, we have observed certain factors convincing us to reduce the quantum of sentence of Nasir Ali appellant:--
(i) No previous enmity has been found between the parties.
(ii) The alleged occurrence took place at the spur of moment and if one hour earlier incident is taken into consideration then legal precedents are that revolving of rage in the body of person remains up to three hours then it may be taken due to the previous incident in the rage of mind this incident took place.
(iii) The weapon of offence sota is not conventional. We have also seen the recovery of same Exh.P1.
The same was Ghootna and was also colourful.
(iv) Solitary injury was caused by the appellant, though he had the opportunity to repeat the same but he did not. All these factors have led us keeping in view the precedents of this case as well the Hon'ble Supreme Court of Pakistan to reduce the quantum of sentence of the appellant under section 423, Cr.P.C.
23. For what has been discussed above, we are satisfied to convert the death sentence of the appellant Nasir Ali into imprisonment for life under section 423(b), Cr.PC. With this modification, the appeal of Nasir Ali appellant is dismissed.
24. So far as Ahmad Nawaz appellant is concerned, he did not cause any injury to the deceased and the role of Japha allegedly attributed to him does not appeal to reasons.
25. In these circumstances of the case by extending him benefit of doubt, his appeal is allowed. The impugned judgment to his extend is set aside. He is acquitted of the charge. He is on bail and his surety is discharged from the liability owned by him. The Murder Reference is answered in the negative. The sentence of death is not confirmed.