Rauf Ahmed Sheikh, J.--Through Criminal Appeal No, 350/2007 and Criminal Appeal No, 351 of 2007, Ashiq Hussain and Sabir Hussain appellants have assailed the vires of judgment dated 11.10.2007 passed by the learned Additional Sessions Judge, Kot Addu, District Muzaffargarh, in case FIR No, 94/2007 dated 29.3.2007 P.S. Kot Addu, District Muzaffargarh, under Sections 302/337- F(v)/148/149, PPC, whereby they were convicted and sentenced as under:--
1. Ashiq Hussain appellant: To death as Ta'zir under Sections 302 (b)/34, PPC. He was further directed to pay a sum of Rs,50,000/- to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.C. and in case of default thereof to undergo S.I. for six months.
2. Sabir Hussain appellant: i. To imprisonment for life under Sections 302(b)/34, PPC.
He was further directed to pay a sum of Rs, 25,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in case of non-payment thereof to undergo S.I. for six months. ii. To imprisonment for five years and was further ordered to pay a sum of Rs,20,000/- as Daman under Section 337-F(v), PPC and in case of default thereof to be treated under Section 337-Y(2), PPC.
The learned trial Court has also submitted Murder Reference No, 486 of 2007 under Section 374, Cr.P.0 seeking confirmation or otherwise of the death penalty awarded to the appellant Ashiq Hussain. As all these matters are interconnected and interlinked so are being decided through this single judgment.
2. The facts, in brief, as set-forth in the FIR (Ex.PG/1) recorded on the statement (Ex.PG) of Hafiz Muhammad Ali son of Sher Muhammad, caste Cheena, aged about 60/61 years, cultivator by profession, resident of Chah Waliwala, Mauza Shadi Khan Munda, P.S. Kot Addu, District Muzaffargarh, are that on the day of occurrence i,e, 29.3.2007, the complainant was present at his residence alongwith his sons Altaf Hussain, Mazhar Iqbal, Shah Nawaz and Zafar Iqbal. At about 6.00 p.m. his son Altaf Hussain was planting Siris (Shireen) tree on his land towards left of his house.
In the meanwhile Ashiq Hussain armed with Churri, Sabir Hussain armed with `Sota' Ibrahim empty handed, Ghulam Yasin armed with `Kassi' and Ghulam Sarwar empty handed, caste Cheena, resident of Shadi Khan Munda were seen while proceeding towards Altaf Hussain. Mazhar Iqbal, who was standing near the complainant went towards his brother Altaf Hussain on seeing the accused persons. Muhammad Ibrahim, who was empty handed raised a Lalkara that they be taught a lesson for planting tree in their land. After exhorting his brothers, he held Mazhar Iqbal in his arms. Ghulam Sarwar also held Mazhar Iqbal from his arms. Ashiq Hussain, who was armed with Churri gave a blow on the left side of his neck with an intention to cause his Qatal. Mazhar Iqbal fell on the ground after sustaining the injury while cladded in blood and succumbed to the injuries. The complainant, Shah Nawaz, Zafar Iqbal and Altaf Hussain, who were present near the place of occurrence, witnessed it. In the meanwhile Mst. Ameeran Mai, his wife and Altaf Hussain made interference on which Sabir Hussain appellant gave a `Sota' blow on the back side of the right hand of Mst. Ameeran Mai. Ghulam Yasin gave a 'Kassi' blow to Altaf Hussain but the same did not hit him. The motive was stated to be a dispute over boundary line between the lands of the complainant and Ghulam Sarwar, etc. accused persons which are adjacent to each other.
3. After investigation, the appellants and their co-accused, namely Ghulam Yasin, Muhammad Ibrahim and Ghulam Sarwar were sent up to face the trial. They were charged under Sections 302/148/149, PPC. They pleaded not guilty and claimed the trial.
4. After conclusion of the trial, the appellants were convicted and sentenced as mentioned above.
5. The prosecution has produced 14 witnesses in addition to documentary evidence in support of its allegations against the appellants. Dr. Ali Waris (PW-1) had conducted the post-mortem examination of the dead body of deceased Mazhar Iqbal on 29.3.2007. He found following injury on his person :--
1. Stab wound measuring 4 cm X 1 cm on the left organic side 9 cm below shoulder & 11 cm from tip of shoulder.
He opined that the death was result of stab injury, which was anteniortem and sufficient to cut arota leading to hemorrhagic shock and death within five minutes of injury. Probable time between the death and injury was 15 minutes and between death and post-mortem was 5 to 7 hours. He proved the post-mortem report (Ex.PB) and his signatures on inquest report (Ex.PC). He further stated on the same day, he examined MM. Ameeran Mai and found swelling 8 cm X 4 cm on the wrist joint and lower end of right fore-arm. It was kept under observation and, after the report of the X-Ray, he issued the MLC (Ex.PE). He found fracture of both radius and ulna.
6. The prosecution led the ocular account through Hafiz Muhammad Ali (PW-4), Mst. Ameeran Mai (PW-5), Altaf Hussain (PW6) and Shah Nawaz (PW-7). The complainant while appearing as PW-4 has almost reiterated the contents of his statement (Ex.PG) and added that it was read over to him and he put his signatures on the same in token of its correctness. Mst. Ameeran Mai stated that about five months back at `Degarwela', she, Zafar, Shah Nawaz, Altaf Hussain, Mazhar Iqbal and her husband Muhammad Ali were present in their house. Altaf Hussain was planting a Sires tree in their land near their house. In the meanwhile Ashiq Hussain armed with Churri, Sabir Hussain armed with 'Sota' Ghulam Yasin armed with `Kassi', Ghulam Sarwar & Ibrahim empty handed arrived there Mazhar Iqbal went forward towards Altaf Hussain on seeing the accused persons. Ibrahim raised a Lalkara that a lesson be taught to the complainant party for planting tree on the dis uted `Bana'
(boundary line) of their land. After saying these words, Ibrahim accused grappled with Mazhar Iqbal, whereas Ghulam Sarwar accused got hold of him from his arms. Ashiq Hussain gave a Churri blow to Mazhar Iqbal, which hit on left side of his neck. After receiving injury, her son fell on the ground while smeared with blood and succumbed to the injuries at the spot. She and her son Altaf Hussain proceeded forward to interfere and on this Sabir Hussain appellant gave a 'Sota' blow on her right hand, whereas Ghulam Yasin gave a blow of 'Kassi' to Altaf Husain but fortunately he remained safe. The accused party after occurrence fled away with their respective weapons. She further stated that the land of the accused party is Adjacent to their land and they have dispute over boundary line due to which the accused persons caused Qatal-i-Amd of her son and injury to her. Altaf Hussain (PW-6) and Shah Nawaz (PW-7) have stated the similar facts.
7. Muhammad Yousaf, S.I./SHO (PW-11) and Shah Nawaz (PW-7) stated that Ashiq Hussain made a disclosure and led to the recovery of blood-stained Churri P.4, which was secured through memo of recovery (Ex.PJ). They further stated that Sabir Hussain while under Police custody made a disclosure and led to the recovery of `Sota' P.5, which was secured through memo of recovery (Ex.PK). PW-14 proved the formal FIR, whereas PW-9 stated that he prepared the site-plans (Ex.PL, Ex.PL/1 & Ex.PL/2) on the pointation of the complainant and PWs.
8. PW-10 Sardar Ali, S.I. stated that he recorded the statement of the complainant (Ex.PG), which was read over to him and in token of its correctness, he put his signatures on the same. He has also proved the application (Ex.PD), injury statement (Ex.PA), inquest report (Ex.PC), memo of recovery (Ex.PH) whereby blood-stained earth was secured by him, site-plan without scale (Ex.PM), memo of recovery (Ex.PF) regarding securing of last worn clothes of the deceased. Muhammad Yousaf, S.I. also investigated the case. He stated that site-plans (Ex.PL, Ex.PL/1 & Ex.PL/2) were prepared by Halqa Patwari Abdur Rehman (PW-9). He has also proved the recovery of weapons of offence, Churri P.4 and `Soto' P.5 allegedly made at the instance of Ashiq Hussain and Sabir Hussain appellants. The prosecution has also produced the reports of Chemical Examiner (Ex.PP & Ex.PR) and reports of Serologist (Ex.PQ & Ex.PN/1).
9. The appellants in their statement under Section 342, Cr.P.C. have denied the correctness of the prosecution allegations and truthfulness of the witnessed produced by it. They also contended that nothingwas recovered at their instance and added that they were falsely implicated due to dispute over boundary line (Bana). They, however, opted neither to produce defence evidence nor to appear as witness on oath under Section 340 (2), Cr.P.C.
10. Learned counsel for the appellant Ashiq Hussain has contended that there was no previous litigation between the parties and as such it was not premeditated or pre-planned murder; that even from the contents of the FIR and prosecution evidence, if is evident that Altaf Hussain (PW-6) and the deleased Mazhar Iqbal were planting tree on the disputed land, which resulted into fight at the spur of the moment; that the appellant Ashiq Hussain had not repeated the blow and the only single injury proved fatal and caused unfortunate death and as such the sentence awarded to him is very harsh and that the appellant should have been dealt with leniently keeping in view the facts of the case: In support of the contentions raised, reliance is placed on Muhammad Afzal alias Mithu v. The State (2010 P.Cr.L.J. 1355) (Lahore) and Muhammad Rafique v. The State (2011 YLR 415)
(Lahore).
11. Learned counsel for the appellant Sabir Hussain has contended that there was no abrasion or contusion on the hand of Mst. Ameeran Mai (PW-5) so it is not believable that she was given a blow with `Sota'; that admittedly there was grappling between PWs 3 to 7 and Mazhar Iqbal deceased on one side and accused persons on the other side so possibility of sustaining the injury due to fall on ground or grappling cannot be ruled out and that the learned trial Court did not appreciate the evidence properly.
12. Learned APG and learned counsel for the complainant have opposed the appeals. It is urged that the blow of Churri was given on the neck so the intention of the appellant Ashiq Hussain to cause Qatal-iAmd was very clear; that the appellant Sabir Hussain has caused injury to Mst.
Ameeran Mai (PW-5) and fully participated in the occurrence so he shared common intention with Ashiq Hussain appellant and as such is responsible for each and every injury sustained by the victims.
13. PW-11 in the cross-examination categorically stated that during his posting, no report regarding dispute between the parties was made in the Police Station, before the registration of this case.
PW-6 clearly stated that there was no dispute of boundary line (Bana), where the disputed tree was being planted and that the dispute was regarding the boundary line on the eastern side. The parties had no previous litigation both on criminal and civil sides. The land of the complainant is towards the North and South of the land of Ghulam Sarwar father of the appellants as per site-plan (Ex.PM). The tree was being planted on the boundary line of the land owned by Ghulam Sarwar.
Between the house of the complainant and place, a vacant strip of land is lying. According to the prosecution version, Altaf Hussain started plantation on the disputed Tana', which resulted into fight at the spot. There is nothing on the record to show that the land, where the tree was being planted is owned by the complainant party. The deceased was admittedly standing near Altaf Hussain, who was planting tree. In these circumstances, the deceased and Altaf Hussain one side and both the appellants appear to be responsible for the fight, which resulted into unfortunate death of Mazhar Iqbal. Admittedly the appellants alongwith their brothers arrived there on plantation of the tree at the disputed place. The appellants on one side and PWs alongwith the deceased on the other, grappled due to the dispute, which erupted at the spur of the moment. No premeditation or deliberation appear to have been made as nobody knew that the deceased and Altaf Hussain (PW-6) will plant tree on the disputed Tana'. The appellant Ashiq Hussain did not repeat the blow which landed 9 CM below shoulder & 11 CM from tip of shoulder. While determining the quantum of punishment for commission of an offence the over all impact of prosecution evidence & the defence version, if any and all circumstances emerging from appraisal of the same must be kept in mind. On careful evaluation of the evidence, we are of the considered view that the offence committed by him falls launder Section 302(c), PPC and the sentence awarded to him is on higher side so the same is not sustainable in the eyes of law. Mst. Ameeran Mai also tried to interfere in the fight as stated by the PWs. The grappling between young persons took place there.
There was no abrasion, contusion or bruise on her hand. The injury, therefore, might have been sustained during scuffle or due to fall. It does not appear to be result of a blow with 'Sota'.
14. In view of the findings recorded above, we are of the considered view that the learned trial Court did not appreciate the evidence in its true perspective and the findings recorded by it are not sustainable.
15. For the reasons supra, Criminal Appeal No, 351 of 2007 filed by Sabir Hussain is accepted. He is acquitted of the charge. He is on bail and is discharged of the liability of his bail bonds. Criminal Appeal No, 350 of 2007 filed by Ashiq Hussain is dismissed. However, he is convicted under Section 302(c), PPC instead of Section 302 (b), PPC and penalty of death awarded to him is commuted to 14 years R.I. The compensation under Section 544-A, Cr.P.C. and S.I. for six months in case of default are maintained. He would be entitled to benefit under Section 382-B, Cr.P.C. Murder Reference No, 486 of 2007 is answered in the negative. 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.