Syed Hussain Mazhar Kaleem, J.--Above titled appeals have been directed against the judgment of Additional District Court of Criminal Jurisdiction, Dudyal dated 13.04.2011, whereby Abdul Qayyum and Rashid All were convicted and sentenced to life imprisonment under Section 302, A.P.C.
2. Necessary facts for disposal of the appeals are that a case under Section 302/34, A.P.0 was registered at Police Station, Dudyal on the complaint of Muhammad Ajayab. It was reported that the complainant was resident of Dhok-Choudrian village Kandor. Abdul Qayyum and Abdur Rasheed were real brothers. Prior to the occurrence, Abdur Rasheed was residing in United Kingdom. About two years before the occurrence he came to his village and lived in the house of his brother Mushtaq who was also living abroad. His house was adjacent to the house of Abdul Qayyum. He used to take meal etc with the convicts in their house. On 02.11.2006, at about 6.00 a.m the complainant heard noise from the house of Abdul Qayyum convict and came at the spot alongwith Shabbir Hussain. There he saw Abdur Rasheed, Abdul Qayyum, Mst. Sunnan Bibi and Rashid Ali, were injured. Abdul Qayyum was carrying a Chopper in his hand, Rashid Ali was armed with stick. He inquired into the matter and came to know that Abdur Rasheed injured Sunnan Bi, upon which they quarreled with each other. The occurrence was also witnessed by other residents of the locality while they were bringing the injured persons to the Police Station, Abdur Rasheed succumbed to the injuries.
3. After completion of investigation, the challan was submitted before Additional District Court of Criminal Jurisdiction, Dudyal. The charge was framed against the convict-appellants on 23.11.2006.
They pleaded not guilty, upon which the prosecution was directed to produce evidence in support of the case. After necessary proceedings the Court convicted the appellants and awarded them life imprisonment under Section 302, A.P.0 through the impugned judgment, hence these appeals.
4. Learned counsel for the convict-appellants argued that the occurrence was not premeditated.
Abdul Qayyum and Abdur Rasheed were real brothers. There was a dispute over a piece of land between them. Prior to the occurrence the victim was permanently residing in United Kingdom. He came to his village two years before the occurrence and started living in the house of Mushtaq which was adjacent to that of Abdul Qayyum. His other family members were living in United Kingdom because of which he used to go to the house of convict - appellants for taking food. On the fateful day, he also came there. Some unpleasantness took place between them, upon which the deceased beat Mst. Sunnan Bibi wife of Abdul Qayyum resultantly, an hostility took place and they started fighting. Abdur Rasheed caused injuries to the convict appellants and Mst. Sunnan Bibi wife of Abdul Qayyum. During the occurrence he also suffered injuries resulting into his death. This clearly shows that a sudden fight took place between the parties. During trial, the prosecution failed to examine the complainant and other eyewitnesses mentioned in the F.I.R. The trial Court while convicting the appellants relied upon the statement of P.W Khalid Shaheen who was a close relative of the deceased and was also interested in conviction of the appellants. His claim regarding witnessing the crime was doubtful as it was clear from the record that the hue and cry attracted him to the spot and he reached there after the occurrence. Besides, his statement was not corroborated by any independent material, thus it was not safe to be believed for recording conviction. The trial Court while passing the impugned judgment failed to appreciate that case against the convict appellants was not proved and the conviction was not warranted in the circumstances, therefore, by accepting the appeal filed by the convicts and setting aside the impugned judgment, they may be acquitted of the charges and that of filed by legal heirs of the deceased may please be dismissed.
5. On the other side, it was argued that the occurrence took place during broad day light, identification of the convict appellants was not in doubt. They were nominated in promptly lodged F.I.R and were attributed specific role of causing injuries to the deceased. The allegation was supported by post-mortem report, 14 injuries caused with Chopper and stick were found over the dead body. It was also established that the crime was pre-planned and it was committed in furtherance of common intention. The case against the convict appellants was proved beyond doubt. The ocular version narrated by P.W Khalid Shaheen was corroborated by recovery of weapon of offence and the post-mortem report. There was no doubt, that it was an intentional murder. The trial Court failed to appreciate that the normal punishment of death sentence provided for the offence of murder was warranted in the circumstances, thus a serious illegality was committed while awarding lesser punishment of life imprisonment, therefore, by accepting the appeal filed by legal heirs of the deceased, the same may be enhanced accordingly and that of filed by the convict-appellants may please be dismissed.
6. We have heard the learned counsel for the parties and gone through the record of the case.
Since both the appeals arise out of the same case, therefore, these shall be disposed off through this common judgment.
7. The ocular version was that on 02.11.2006 at about 6.30 a.m, P.W Khalid Shaheen and Saeed Ilyas were present in their house, they heard noise and rushed towards the house of Abdul Qayyum.
When they arrived in the Courtyard witnessed that the convict-appellants and the deceased were fighting, they tried to stop Abdul Qayyum, upon which he threatened them. Abdul Qayyum was armed with Chopper and Rashid Ali with stick. The prosecution witness made hue and cry. Abdul Qayyum inflicted injury at the head of Abdur Rasheed. He fell down, thereafter; the convicts caused injuries at left arm, hands and both sides of the body. Rashid Ali gave stick blow at his leg. In the meantime, Ajayab and Shakeel came there. They also tried to stop the convicts. Abdur Rasheed crawled towards the wash room. In the meanwhile, other residents of the locality came at the place of occurrence. They hired a Suzuki to take the injured persons to hospital. After examining P.W doctor declared that Abdur Rasheed was dead. In support of the above mentioned ocular version the prosecution produced Chopper, stick, postmortem report, medico-legal reports pertaining to the convicts and Mst. Sunnan Bibi etc. The trial Court by putting reliance on the above mentioned story convicted the appellants and awarded them life imprisonment.
8. From perusal of the evidence reveals that time and place of occurrence were not disputed, it was proved beyond doubt that the incident took place in the house of convict-appellants. The deceased died of the injuries caused by sharp edge weapon. During post-mortem 14 injuries were found at the dead body. The death occurred due to the head injury caused by sharp edge weapon.
Recovery of weapon of offence was not doubtful. The ocular version given by P.W Khalid Shaheen was supported by the above mentioned incriminating evidence.
9. The point raised by learned counsel for the convict appellants that prosecution failed to produce the important eye-witnesses and the deposition of solitary witness who was close relative of the deceased was not safe to be believed for recording conviction was not worth consideration. It was evident from the record that during trial Mr. Imtiaz Hussain Raja, Advocate representing the legal heirs of the deceased moved an application stating therein that Muhammad Ajayab complainant was close relative of the deceased. P.W Shabbir was his friend. They had been trying for compromise but failed and consequently refused to appear as witness in support of the prosecution version, there fore, the prosecution does not want to examine them, upon this their evidence was closed. Thus, in the circumstances non-production of the aforesaid witnesses before the Court was based on strong ground. Besides, it is settled principle of law that the prosecution is not bound to produce all the witnesses cited in the challan. The paramount consideration should be the quality of the evidence. If there appears that deposition of solitary witness rings true to prove the case beyond doubt, the quantity hardly matters. In a case titled 'Mahboob Ali Vrs. State, (2000 SCM R 152) the proposition was resolved in the following manner: "It is well settled that factum of placing implicit reliance upon testimony of solitary witness whose presence is otherwise established depends upon circumstances of each case and satisfaction of Court. Mere existence of enmity when - solitary ocular version is unimpeachable and confidence inspiring becomes irrelevant."
10.Another point raised by learned counsel for the convict-appellants was that P.W Khalid Shaheen was an interested witness. He was close relative of the deceased and roped the convicts in a false case. In a case titled 'Abdur Rasheed Vrs. Abdul Ghaffar, (2001 P.Cr.L.J 524) it was observed:- "An "interested" witness is one who falsely implicate an innocent person with the commission of offence with ulterior motive. Thus, a related witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime. It may be observed that a party may- rope innocent persons in a crime alongwith a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent persons."
11. In the present case, the above mentioned witness though was close relative of the deceased but he had no enmity with the convict-appellants and also had no reason to falsely implicate them in the case by leaving the real culprit. There was nothing on record indicating that he was interested in conviction of the appellants, thus mere fact that he was related to the deceased was not sufficient to disbelieve his deposition.
12. From perusal of the statement of P.W Khalid Shaheen transpires that on the fateful day he alongwith Saeed Ilyas was present in his house. At about 6.30 a,m they heard noise and came at the spot. When they entered in the house of Abdul Qayyum noticed that Abdur Rasheed, Abdul Qayyum and Rashid Ali were fighting. They tried to stop Abdul Qayyum upon which he threatened them. Abdul Qayyum was armed with Chopper while Rashid Ali with stick. They witnessed that Abdul Qayyum inflicted injuries with Chopper at head, arms, both sides of the body and at the hands of the deceased. Rashid Ali also gave stick blow at legs and both sides of his body. They made hue and cry. In the meantime P.Ws Ajayab and Shabbir came there. They also tried to stop the convict-appellants but failed. The victim crawled towards the wash room. In the meanwhile the residents of the locality were attracted to the spot. They arranged a Suzuki to take the injured persons to hospital where P.W doctor after examining Abdur Ra.sheed declared his death.
13. The questions requiring consideration were that of the quality of aforesaid deposition and the quantum of sentence. It was not disputed that Mst.Sunnan Bibi and the convict-appellants also suffered injuries caused by sharp edge and blunt weapons during the same occurrence. Medico legal reports pertaining to them were also placed on record. According to P.W Khalid Shaheen he was attracted to the spot due to hue and cry. Upon which he came at the place of occurrence and tried to stop the convict-appellants from causing injuries to the deceased.
There was nothing in his statement showing that who caused the injuries to the convict appellants and Mst. Sunnan Bibi. Therefore, said deposition clearly shows that this part of the occurrence was not witnessed by him. In the given circumstances it was hard to ascertain that who initiated the fight which resulted into the unfortunate incident, thus the origin of fight was shrouded in mystery.
As said earlier that Abdul Qayyum, Rashid Ali and Mst.Sunnan Bibi sustained injuries before the convict-appellants started beating the deceased, the probability was there that on the fateful day Abdur Rasheed came to the house of convict-appellants. Some unpleasantness took place between them which resulted into a sudden fight. Initially Mst.Sunnan Bibi, Abdul Qayyum and Rashid Ali suffered injuries at the hands of Abdur Rasheed. Thereafter Abdul Qayyum and the deceased started quarreling, fighting. During fight Abdul Qayum caused injuries with Chopper while Rashid Ali gave stick blows to the victim.
14. The trial Court while deciding the case failed to appreciate that the crime was not premeditated. There was nothing on record showing that it was committed in furtherance of common intention. A sudden fight took place between the parties. The place of occurrence was the house of convict-appellants, they also suffered injuries which were not explained by the prosecution. According to Exh.PB initially the deceased caused injury to Mst. Sunnan Bibi. The possibility was there that the convict-appellants also suffered injuries at his hands and they though exceeded but exercised the right of self defense. Abdul Qayyum was attributed for giving fatal blow to the victim while Rashid Ali was attributed for causing blunt injuries at the non-vital part of his body. Thus, neither the capital punishment nor life imprisonment but a lenient view was warranted in the circumstances.
15. In light of the facts discussed above the conviction is maintained however, the impugned judgment to the extent of awarding life imprisonment is amended in the terms that Rashid Ali appellant is punished with the sentence of undergone imprisonment while Abdul Qayyum is awarded 14 years imprisonment. He shall also be entitled to the benefit of Section 382-B, Cr.P.C. as extended to him by the trial Court.
Upshot of above discussion is that, the appeal filed by the convict appellants is disposed off in the aforesaid manner while that of filed by the legal heirs of the deceased being without any substance is hereby 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.