' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Tahir alias Kala and Shahid sons of Shabrati alias Bati, Liaqat, Shafqat and Sadaqat all sons of Muhammad Ramzan, Gujjar by caste r/o Mohalla : Dhallwali Chiniot City District, Jhang and Yameen son of Ramzan caste Gujjar r/o Mandi Sheikhan Tehsil Chiniot District Jhang along with Muhammad Ramzan alias Jani son of Wali Muhammad, Shabrati alias. Bati son of Wali Muhammad and Mst. Rafiqan wife of Yameen, Gujjar by caste were tried by learned Additional Sessions Judge, Chiniot District, Jhang in pursuance of case F.I.R. No.235 of 2001 dated 15-8-2001 under sections 302, 324, 148/ 149, P.P.C. Registered with Police Station City Chiniot at the instance of one Muhammad Asghar. The learned trial Court vide judgment dated 27- 5-2004 convicted Tahir alias Kala, appellant to sentence of death under section 302(b), P.P.C. As Tazir and a fine of Rs.20,000 and in default of payment of fine he shall further undergo six months'
R.I. With compensation of Rs.50,000 in terms of section 544-A, Cr.P.C. In default whereof he was further to undergo imprisonment for six months' S.I. Whereas Shahid, Liaqat, Shafqat, Sadaqat and Yameen were also convicted under section 337-A(i), P.P.C. For one year each and were directed to pay Rs.5,000 each to the injured P.Ws as daman by the same judgment. Appellant Tahir alias Kala filed Criminal Appeal No.928 of 2004 against conviction while Criminal Appeal .No.858 of 2004 was filed on behalf of Shahid, Liaquat, Shafqat, Sadaqat and Yameen against their sentences in the judgment impugned.
The learned trial court also forwarded Murder Reference No.419 of 2004 in terms of section 374, Cr.P.C. For confirmation of the death sentence to Tahir alias Kala appellant as required by the law.
As all the matters are arising oui of the same F.I.R., therefore, they are being disposed of through this single judgment.
' Complainant Muhammad Asghar filed Criminal Appeal No.1030 of 2004 against the acquittal of Ramzan Jani, Shabrati alias Bati and Mst. Rafiqan wife of Yameen and also filed Criminal Revision No.581 of 2004 for the enhancement of compensation awarded to Tahir, alias Kala appellant. Both the matters were dismissed as withdrawn by the Division Bench of this Court vide order dated 23-1- 2008.
2. As per prosecution case incorporated in the F.I.R. Vide an application Exh.PA is that complainant and his brother Muhammad Ashraf are maintaining buffaloes compound near their houses; on 15- 8-2001 at 6-30 p.m. Evening complainant along with his brother Muhammad Ashraf and his nephews Muhammad Aslam and Muhammad Akram were coming to their houses after milking their buffaloes and Muhammad Ashraf was coming behind at some distance from them when Muhammad Ashraf reached near house of accused Yameen, they over-heard a lalkara upon which they took a turn and saw behind them and visualized that accused Bati was raising lalkara "that Ashraf should not be left alive" and suddenly accused Muhammad Ramzan alias Jani and Shabrati alias Bati caught hold of Muhammad Ashraf in their Japhha and threw him on the ground by the side of his face. We stepped forwarded to rescue to Muhammad Ashraf, meanwhile the accused Tahir alias Kala gave a Khanjar blow. To Muhammad Ashraf in the fallen position which hit on left side of his back. The remaining accused Liaqat, Sadaqat, Shafqat, Rafaqat, Sajjad and Yameen who were armed with Sotas assaulted upon us and they all inflicted injuries with their respective sotas upon us. Mst. Rafiqan accused threw a brick on Muhammad Ashraf while he was breathing his last which hit on his left shoulder. On our hue and cry inhabitants of Mohallah were attracted towards the scene of occurrence upon which the accused persons fled away while extending threats of dire consequences. The complainant along with Muhammad Aslam and Muhammad Akram took care of Muhammad Ashraf besides other inhabitants of Mohalla were evacuating towards the hospital for treatment but on the way Muhammad Ashraf succumbed to the injuries. The complainant while leaving for information to the police left behind' Aslam, Akram, Muhammad Yaseen and Muhammad Iqbal besides the dead-body in the hospital but on his way Muhammad Rafique, S.I. Of Police Station City Chiniot met at the gate of Civil Hospital, who recorded the statement of the complainant upon which afore-stated crime report was incorporated.
3. Motive behind the occurrence is that on the day of alleged occurrence at 4-00 p.m. a' quarrel had taken place between the children of Mst. Rafiqan and the children of deceased Muhammad Ashraf when some hot words were exchanged between Mst. Rafiqan and Mst. Zubaida wife of Muhammad Ashraf, deceased. Mst.Rafion had extended threats, that she would show result within a short time. On the basis of said grudge all the accused persons in furtherance of their common intention launched murderous assault resulting into death of Muhammad Ashraf aeceased and injuries to prosecution witnesses.
4. During the course of investigation, the appellants were found guilty and were challaned. In this regard the report under section 173, Cr.P.C. Was sent to the court of Additional Sessions Judge Chiniot en-routed through Illaqa Magistrate in terms of section 190(2), Cr.P.C. The learned Trial Court on receipt of challan under section 173, Cr.P.C. And other relevant documents supplied the copies to the appellants. The lerned trial Court framed charge against the appellants under sections 302/324/148/ 149, P.P.C., which was denied by all the appellants and they claimed trial vide order dated 5-7-2003.
5. During the course of trial, the prosecution in order to prove its prosecution version produced eleven prosecution witnesses in all. The learned Prosecutor while tendering the reports of Chemical Examiner as Exh.PAA and. Exh.PBB, the reports of Serologist as Exh.PAA/1 and Exh.PBB/1 closed the prosecution evidence vide order dated 19-3-2004.
6. The appellants made their statements without oath under section 342, Cr.P.C. And rebutted the accusation put to them but they did not opt to appear as defence witnesses of their own to disprove the allegations in terms of section 340(2), Cr.P.C. In response to the question that why this case and why the P.Ws. Have deposed against you, Tahir alias Kala, appellant replied in the following terms which is reproduced as under:- "In my absence alleged occurrence had taken place and all members of my family were falsely involved in this case due to the relationship with Mst. Rafiqan and Yameen. Actually on the alleged 'day of occurrence at 5-00 evening Muhammad Ashraf deceased along with his son and ten unknown persons entered into house of Muhammad Yameen accused' intending to obtain possession of his house. Ashraf deceased had purchased the share of Yameen's house and possession was still with Yameen. When Ashraf came there with the help of outsiders for taking into possession of house of Yameen accused, the people of Mohalla attracted at the spot for resistance, many people of Mohalla also entered into the house of Yameen accused and after seeing the people of Qabza Group were fled away and during this commotion, Ashraf deceased received injuries on his backside by some unknown persons while remaining in the house of Yameen accused and people of locality picked Ashraf deceased and fetched him to THQ, Hospital Chiniot. Aslam, Akram and Asghar P.Ws. Are brother inter se and the paternal nephews of Ashraf deceased. They later on reached at the spot after spending much time they hired the services of a counsel and prepared a concocted story. They were neither injured in the alleged occurrence nor present there. Further more they obtained fictitious medical legal certificates and deposed falsely before the court due to cited relationship."
7. After hearing the arguments by the learned counsel appearing on behalf of both the parties, the learned trial Court, after evaluating the evidence available on record in the light of arguments advanced by both the learned counsel found the version of the prosecution correct beyond any reasonable doubt resulting into conviction of the appellants as stated supra. Hence, this matter.
8. The learned counsel for the appellants at the very, outset strongly criticized the promptness for registration of the F,I.R., it has been argued that as per prosecution case, the occurrence had taken place at 6-30 p.m. While the matter was reported in the police station at 7-45 p.m. On the same day i.e. 15-8-2001. Prior to the registration of case with police a written application was furnished to Muhammad Rafique S.I. (P.W.7) who received the same in front of the gate of Civil Hospital at 7-15 p.m. The promptness by the local police qua the registration of case seems to be dubious and fake especially when the complainant prior to furnishing information to the police have taken the deceased to the hospital who died on the way and thereafter leaving the dead-body in the hospital, the complainant preferred to inform the police. It has not been mentioned anywhere, from where and from whom the local police got the information of the occurrence and approached the civil hospital because as per KARWAI of the police, which is mentioned beneath the application, P.W.7 himself approached in front of the gate of the civil hospital where he met the complainant and received application Exh.PA. It is argued with sense that all this promptness and immediate response shows that the register pertaining to F.I.Rs. Was estopped and subsequently entry was made into it after due consultation and deliberation. The motive alleged in this occurrence is that prior to the present occurrence, a quarrel had taken place between children of Rafiqan Bibi and of the deceased, which ultimately aggravated and instant occurrence had taken place. According to the learned counsel for the appellant that the motive in this case is of trifle nature which was not established beyond any reasonable doubt during the course of trial and the immediate cause of occurrence is not established by the prosecution, which brings the culpability of the appellant Tahir alias' Kaka too of lower magnitude, otherwise, the prosecution has thrown wider net and involve as many as 10 persons in the alleged occurrence. The prosecution has totally failed to establish the motive against the rest of the appellants and not a single sentence has been said against them, therefore, their involvement in this case is only due to their close relationship. It has been argued on behalf of Tahir alias Kala that his father Shabrati alias Bati (since acquitted) was also arrayed as one of the accused, who was assigned the role of Lalkara. If the prosecution story is accepted in toto then the version of the defence that appellant acted under the influence and instigation of his father. Shabrati alias Bati has force and bring the case of appellant within the ambit of mitigation.
The learned counsel has relied upon "Mahmood Rasheed and others v. State" (2003 SCMR page 581). Recovery of dagger after the lapse of six months and that too stained with blood seems to us nothing except the maneuvered circumstance just to strengthen the prosecution case. It has been argued qua rest of the appellants that they were involved being close relative and if the prosecution case qua the other appellants is accepted as a whole then the case of the appellants i.e. Shahid, Liaquat, Shafqat, Yameen and Sadaqat could not be distinguishable from the case of Shabrati alias Bati, Muhammad Ramzan alias jani and Mst.Rafiqan, since acquitted by the learned trial court, therefore, the appellants deserve the same leniency from this court especially when the appeal against acquittal has already met its ye and criminal revision for enhancement too was dismissed by this court vide order dated 23-1-2008.
9. The learned Additional Prosecutor-General assisted by learned counsel for the complainant argued that Mst. Rafiqan and Mst. Zubaidan widow of deceased were residing in the adjoining houses and dispute has arisen between their children and later on the situation aggravated and ended in the present occurrence. The main stay of the prosecution case is that threats were advanced through Mst. Rafiqan, since acquitted, to the wife of deceased and in consequence of that this incident took place in which one person lost his life and this fact is duly mentioned in the F.I.R. Learned Addl. P.G. Further argued that motive is fully proved through P.W.2 and P.W.6 injured prosecution witnesses. The appellant, Tahir alias Kala had approached the place of occurrence from a distance of 1-1/2 Kilometer while armed with dagger, which clearly depicts intent of the appellant, the other appellants Shahid, Liaquat, Shafqat, Yameen and Sadaqat in furtherance of their common intention had attacked with pre-concert resulting into one death and causing injuries to three persons. The presence of appellants is fully proved and the injured P.Ws. Have supported the prosecution version. The stamp of injuries on the person of injured P. Ws. Are caused with blunt weapon, which further strengthen the prosecution case. The injury ascribed to the appellant Tahir alias Kala was so serious and inflicted on vital part of the body,. Which proved fatal resulting into death of Muhammad Ashraf deceased, therefore, in these circumstances, the prosecution has fully proved the case and there is no aspect of mitigation or leniency available to the appellants. The appellant Tahir alias Kala deserves the normal sentence of death provided by the statute. The appellant Tahir alias Kala remained absconder and the same is a circumstance in favour of the prosecution the delayed recovery of dagger is not injurious to the prosecution version as the appellant was arrested on 6-2-2002 after a considerable time.
10. We have heard the arguments advanced by learned counsel for the parties and scanned the record minutely with their able assistance.
11. We have gone through the judgment impugned and had observed that the occurrence in this case had taken place at 6-30 p.m. While the matter was reported to the police at 7-45 p.m. On 15- 8-2001, therefore, very registration of the F.I.R. Is lodged with full promptitude and the possibility of any deliberation and consultation do not arise. The motive in this case as agitated by the prosecution is not rebutted by the defence, therefore, the motive in this case has to play an important role and lend the fate of this case as a whole to its logical conclusion. Admittedly, the occurrence had initiated due to quarrel between the children of the two families residing in the adjoining houses. The matter was confined to the women-folk, which was later on conveyed to the male members due to which the matter was flared up resulting into death of one person and causing injuries to three prosecution witnesses. This aspect of the prosecution case, that the accused parties belong to 1-1/2 kilometer from the place of occurrence, is not denied during the course of cross-examination. It is an admitted fact that the occurrence had taken place in the month of August and during that season 6-30 p.m. Is not time when the light fades and the identification of the assailants is difficult to observe, therefore, accurate identification of assailants is negated in all eventualities.
12. There are two sets of appellants before us. Tahir alias Kala has challenged the judgment impugned through Criminal Appeal No.928 of 2004 and he was convicted to death sentence. As far as rest of the appellants Shahid, Liaquat, Shafqat, Yameen and Sadaqat who have filed Criminal Appeal No.858 of 2004 is concerned their case is distinguishable from the case of Tahir alias Kala appellant. The appellants Shahid, Liaquat, Shafqat, Yameen and Sadaqat are stated to be armed with Sotas and had inflicted injuries on the person of Muhammad Asghar, Aslam and Akram injured P.Ws. The learned trial Court on the basis of same evidence had acquitted the rest of the accused, Mst.Rafiqan, Shabrati alias Bati and Muhammad Ramzan alias Jani, the same was challenged before this court but the appeal against the acquittal as well as revision for enhancement had already been dismissed by this court vide judgment dated 23-1-2008. The role of the appellants Shahid, Liaquat, Shafqat, Yameen and Sadaqat for causing injuries to the injured P.Ws. With Sotas is not distinguishable. Keeping in view the role ascribed to them and rule of consistency, we are of the opinion that their sentence is reduced to period already undergone. They are on bail, their sureties are discharged from liabilities. Criminal Appeal No.858 of 2004 is hereby dismissed. However, they are directed to pay Rs.5,000 each as Daman to the injured P.Ws. As ordained by the learned trial Court, in case of default of payment of Daman, they be again taken into custody.
13. As far as the case of Tahir alias Kala appellant is concerned, it is an admitted fact that only one dagger blow is caused to the deceased on the vital part of body by the appellant Tahir alias. Kala when his father Shabrati was also present there, who raised Lalkara, therefore, in these circumstances, the possibility of appellant being acted under the influence of his father Shabarati alias Bati, since acquitted, cannot be ruled out, therefore, the sentence of death is not called for as it is rightly referred above, by the learned counsel for the appellant. Guidance in this regard is observed by us, the same was considered as mitigation, the sentence of death was converted into imprisonment for life. Apart from the judgment referred above, the latest judgment of the Apex Court of Pakistan also help us to seek guidance from another judgment reported in "Noor Muhammad v. State (2010 SCMR page 97). It has been held that if motive specifically alleged by the prosecution but if the same is not proved or the same is shrouded in mystery, the prosecution would suffer and that too considered as a mitigation in favour of the appellant Tahir alias Kala.
Therefore, following with great honour the esteem judgment of the august Supreme Court of Pakistan referred above, we are persuaded to consider the case of Tahir alias. Kala of one which mitigates circumstances and the same is extended in favour of the appellant.
14. The crux of the discussion above is that role ascribed to the appellant Tahir alias Kala of causing injury without repetition, Improved motive coupled with possibility of acting under the influence of his father culminate us to come to the conclusion that death sentence awarded to appellant Tahir alias Kala by the learned trial Court is not called . The The same is reduced into imprisonment for life considering the aforesaid circumstances as mitigating. He is directed to pay the compensation of Rs.1,00,000 which is enhanced from Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. In default of payment of compensation he is further to undergo imprisonment for six months' S.I. The amount of fine Rs.20,000 is set aside. Benefit of section 382-B, Cr.P.C. Is given.
15. Whatever stated above, Criminal Appeal No.928 of 2004 filed on behalf of Tahir alias Kala is dismissed with the modification of conversion of sentence of death into imprisonment of life.
Murder Reference No.419 of 2004 sent by the learned trial Court in terms of section 371, Cr.P.C. For the confirmation of sentence of death fails and is answered in NEGATIVE.