' MAZHAR IQBAL SIDHU, J.---Muhammad Akmal appellant, in the appeal, as mentioned above, has impugned the punishing judgment of learned Additional Sessions Judge, Mailsi dated 31-1-2009, whereby he along with his co-accused Allah Dewaya was tried in a complaint privately instituted under sections 302/34, P.P.C. Emanating from a case registered vide F.I.R. No.533/07 dated 12-12- 2007 under sections 302/34, P.P.C. At Police Station, City, Mailsi, District Vehari and punished as follows:-- {{TABLE}} Conviction Sentence Under section P.P.C. 302(b), Sentence of death as Ta'zir and to pay compensation to the tune of Rs.1,00,000 as required under section 544-A, Cr.P.C. To the legal heirs of the deceased Mumtaz Ahmad and in default whereof to further undergo six months' simple imprisonment as well as the same was ordered to be recovered as arrears of land revenue. {{TABLE}} ' whereas murder reference mentioned op-cit has been sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence or otherwise of the appellant under section 376, Cr.P.C. Both the matters are being decided by this judgment.
2. Feeling dissatisfied/aggrieved with the investigation, Ahmad Yar, complainant of the case (P.W.5) instituted private complaint.
3. Pithily the woeful facts unveiled by complainant. Ahmad Yar (P.W.5) in private complaint Exh-PJ are that he was resident of Chah Ranwah Wala, Mouza Umar Khichi, Tehsil Mailsi and was employed with Ejaz Khan Khichi. His son Mumtaz Ahmad (deceased) was grazing the sheep and goats in the cotton stalks at Chah Dhaka Wala, Mouza Umar Khichi, whereas the complainant was also working at acre. Distance. Munshi Muhammad Ramzan son of Ghulam Muhammao (P.W.6) visited him and they both were chatting. In the meantime. P* about 3-15 p.m, Muhammad Akmal (appellant) and Allah Dewaya son o Peer Bakhsh (since been acquitted) resident of Chah Ranwah Wala, also came nearby his son, Mumtaz Ahmad along with their goats. His son asked them to take back their sheep and goats. Muhammad Akmal was armed with toki, whereas Allah Dewaya was armed with soti and Muhammad Akmal hurling, abuses. Allah Dewaya raised a lalkara and commanded his son, Muhammad Akmal to teach a lesson to Mumtaz Ahmad for forbidding them to graze their sheep and goats. As a consequence thereof Muhammad Akmal inflicted a blow with iron toki, which hit Mumtaz Ahmad on the back side of his neck, who fell to the ground in an injured condition. Upon rumpus, the complainant along with Munshi Muhammad Ramzan while running arrived at the spot and in their view, Muhammad Akmal inflicted consecutive blows, which hit on the back side of neck of Mumtaz Ahmad, they tried to catch hold the appellant but, he extended threat that whosoever come nearby, would meet the same fate. Both father and son, accused persons went south The complainant and the P,W. Cared Mumtaz Ahmad but he succumbed at the spot.
' The motive behind the occurrence was that 3/4 days prior to the incident, a squabble took place between Mumtaz Ahmad and Muhammad Akmal, due to that chip on their shoulder, both the accused persons with their common object committed the Qatl-e-amd of Mumtaz Ahmad. While leaving the P.W. At the spot for protection of the dead body, the complainant proceeded to police station.
' About the occurrence, the complainant lodged F.I.R (Exh.PL), mentioned opcit. The complainant further avowed in the complaint that not only the I.O. Investigated the matter partially but also tried to cause damage to his case in connivance with the accused persons, as the complainant cited Munshi Muhammad Ramzan son of Ghulam Muhammad as witness, who also joined the investigation but the I.O. In the report under section 173, Cr.P.C. Instead of Munshi Muhammad Ramzan cited Muhammad Ramzan son of Khuda Bukhsh in the calendar of witnesses. He further averred that as per F.I.R., there was a witness namely Allah Ditta but during the investigation, his name was changed with the name of Allah Dewaya whereas the time of occurrence had also been wrongly mentioned. In the last, he submitted that he was an illiterate person and the accused persons committed the qatl-e-amd of his son.
4. After recording preliminary/cursory evidence of the complainant party and perusing the report under section 202, Cr.P.C. Submitted by the learned Illaqa Magistrate, the appellant and his co- accused were summoned by the learned trial Court to face trial.
5. The investigation of the case was conducted by Allah Wasaya, SI (C.W.1), who deposed that on 12-12-2007, Ahmad Yar, complainant got recorded his statement Exh.PG, which was read over to him, who thumb marked the same as Exh.PG/1 in token of its correctness, prepared Tehreer Istighasa, sent the same to the police station through Irshad Hussain 779-C for registration of case, he along with police posse and complainant visited the place of occurrence on official vehicle, sent dead body of deceased Mumtaz Ahmad to the hospital for postmortem examination through Muhammad Rizwan 1099/C from the place of occurrence, which was lying at the spot, inspected the place of occurrence, took into possession blood imbrued earth from the place of occurrence vide recovery memo Exh.PK signed by Muhammad Ramzan and Zahoor Hussain, P.Ws. On 12-12- 2007, he was present at Police Station after coming from place of occurrence, when Muhammad Rizwan, constable handed over to him last worn clothes of the deceased along with postmortem report, took into possession Qamiz P-1, Shalwar P-2 vide recovery memo Exh.PE, recorded the statements of Muhammad Rizwan, Zahoor Hussain, Ahmad Yar and Allah Dewaya, P.Ws. On 13-12- 2007, he arrested Muhammad Akmal in this case. On 13-12-2007, he obtained his physical remand from Illaqa Magistrate. On 26-1-2007, the appellant on his disclosure and pointing out got recovered Toki blood imbrued P-3, took the same into possession vide recovery memo Exh.PH in presence of complainant and the P.Ws., recorded the statements of Ahmad Yar and Muhammad Ramzan, prepared rough site plan of the place of occurrence Exh.CA. On 25-1-2008, he arrested Allah Dewaya and obtained his physical remand from learned Illaqa Magistrate. He called Ijaz Lateef draftsman, who took rough notes of the place of occurrence in presence of complainant and P.Ws. And after its preparation handed over to him and recorded his statement in this regard.
Re also recorded the statements of Muhammad Tariq, 622-HC/ Moharrir and Khalid Mahmood 36- C. On 15-3-2008, he prepared report in terms of section 173, Cr.P.C. And declared both the accused persons guilty during his investigation.
6. The medical evidence was adduced through the statement of Dr. Jan Irshad Hussain (P.W.1), who on 12-12-2007 conducted post-mortem examination on the dead body of Mumtaz Ahmad and observed infra:-- Injuries
(1) There was an incised wound measuring 16 cm x 7cm going deep touch to the tracheae, seated on back of neck, said injury got its start from right sternochedo mastoid projection and received its ending point on left border of back of neck. Blood clots were present in field of wounds and margins of wound were regular and wound was in spindle shape. There were two corresponding cut tears on upper part of back of shirt. Said corresponding tear and width of injury indicted that multiple trial had been made. Injury present middle of neck at level of Adams apple.
(2) There was an incised wound measuring 8 cm x 2 cm deep up to bone found out present on lower most part of back of neck 1-1/2 cm below injury No.
1. Blood clot present in field of wound. Margins of wound were regular. Wound was in spindle shape.
Corresponding cut tear present on back of upper of shirt. Both injuries were inflicted by sharp edged weapon.
' OPINION ' In his opinion, the cause of death in this case was shock, resulted by haemorrhage and damaged to spinal cord and carotid artery. Both injuries were fatal and were inflicted by sharp edged weapon and were ante-mortem and were sufficient to cause death in ordinary course of nature.
' Probable time between injury and death was 10-15 minutes approximately whereas between death and postmortem was 5-6 hours approximately.
' Exh.PA was inquest report, Diagram was Exh.PB, whereas postmortem report was Exh.PC and application for conducting the postmortem examination was Exh.PD.
7. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused, to which they pleaded non-culpabilis by claiming trial, whereupon the prosecution led its evidence to prove the case and produced 9 witnesses and one court witness in all
8. Learned A.D.P.P. Renounced P.Ws. Namely Allah Wasaya, SI as being won over and Allah Ditta as being de-trop. The complainant by tendering report of Serologist regarding blood imbrued earth Exh.PM and regarding Toki Exh.PN and that of reports of Chemical Examiner Exh.PO regarding earth and regarding Toki as Exh.PP closed the prosecution evidence.
9. Afterwards the statement of the appellant under section 342, Cr.P.C. Was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, neither opted to adduce evidence in his defence nor to appear as his own witness as required under section 340(2), Cr.P.C.
' The appellant in reply to a question "why this case against you and why the P.Ws. Have deposed against you" answered as under:-- "Actually it is a blind murder. When actual accused was not traced by the complainant, one imported witness who is the servant of Ijaz Khan Khichi stated against me on the instigation of Ijaz Khan Khichi with the connivance of the complainant. The evidence of P.Ws. Is merely based on suspicion and conjecture, which is not believable. There are so many discrepancies and improvements in the statements of P.Ws. And there is great difference between the statement of the P.Ws., police and doctor, Independent and honest witnesses are not produced by the prosecution."
10. Trial proceedings yielded in conviction and sentence of the appellant as mentioned op-cit, whereas his co-accused Allah Dewaya was acquitted of the charges imputed against him. Hence, the appeal as well as murder reference.
11. Learned counsel for the appellant has argued that the case was registered against the appellant and his co-accused, Allah Dewaya (real father of the appellant) and qua Allah Dewaya, the judgment has got finality, in this way, the prosecution story appears to be doubtful; there are glaring discrepancies in the statements of prosecution witnesses so the same are not reliable; Learned counsel added that presence of Ahmad Yar, father of the deceased (P.W.5) and (P.W.6) eye-witnesses is highly doubtful because in the circumstances of the case, their presence at the place of occurrence has been noticed, without any purpose; motive has not been proved by the prosecution-through any independent evidence. At the end, learned counsel has submitted that in any case, it is not a case of capital sentence, as according to the prosecution's own case, the occurrence had taken place at the spur of moment and the same is not enmity based one; the weapon used in the commission of occurrence is one of peasantry tools, its availability with the farmers in their fields is not unusual; the facts and circumstances of the occurrence show that it had taken place without any premeditation and under the heat of passions; the place of occurrence was not a place where some crop was standing and the same was likely to be damaged by getting grazed of sheep and goats of the appellant. Learned counsel has further argued that so far as the repetition of injuries is concerned, the deceased received two injuries, who was aged about 16 to 18 years whereas the appellant was of 20 to 22 years; both being in their youthful might have provocation on some issue and in the heat of passions multiple injuries were caused. Learned counsel has added qua the version of the prosecution case that according to postmortem report, deceased Mumtaz Ahmad received two injuries, whereas complainant and the eye-witnesses have alleged three injuries, therefore, acceptance of appeal has been solicited, however, in alternate, learned Counsel for the appellant has prayed that the quantum of sentence imposed upon the appellant is inadequate, so as to facts and circumstances of the case are concerned and has, thus prayed for its reduction equitably.
12. Learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed the submissions that F.I.R. In this case was lodged in a promptitude way; acquittal of Allah Dewaya, co-accused does not provide any benefit to the appellant because he did not cause any injury to the deceased, whereas all injuries have been attributed to the appellant; the motive has ndt been challenged or changed rather it has been proved by putting some questions to the complainant (P.W.5); the motive is not otherwise considered as sine qua non for the proof or disproof of the guilt; the appellant purposely came at the spot in order to graze his sheep and goats, where the appellant was present, who being employee of the landlord of the place of occurrence was duty bound to look after it and it was not an abundant place or Shamlat about which the deceased could not be asked by the appellant to go away from that place along with his sheep and goats. Learned Law Officer has further added that keeping of Toki (a sharp edged dangerous weapon) for grazing sheep and goats was recovered and holding of the weapon by itself demonstrates the intention and knowledge of the appellant, which has been proved by its displaying resulted in instantaneous death of the deceased by causing him multiple injuries. It has further been argued that no doubt both the eyewitnesses (P.W.5) Ahmad Yar and (P.W.6)
Muhammad Ramzan are related through blood with the deceased but it never means that they cannot be believed because of their propinquity, they were tested through searching cross- examination and the learned trial court has believed them. It has further been added that ocular account has been fully corroborated by the medical evidence as well as the recovery of Toki from the appellant. Lastly it has been maintained that deceased Mumtaz Ahmad was just adolescent and to be youthful purported to be a light of high hope of his old parents, was murdered on a meagre matter, in this way, no ground exists to mitigate the quantum of sentence of the appellant, therefore, instant appeal may be dismissed.
13. Arguments heard. Record perused.
14. The incident took place on 12-12-2007 at about 3-15 p.m. In the area of village Umar Khichi, 3-Km distant from Police Station, City Mailsi, District Vehari and on the same day, the matter was reported to Allah Wasaya, SI (C.W.1) at about 4-30 p.m., when complainant (P.W.5) met him at Khooh Dhaka, Mouza Khichi. His statement was recorded, the same was sent by C.W.1 though Irshad Hussain, C-779 to police station for registration of the case, where the F.I.R. Was chalked out at 4-45 p.m. By Muhammad Saleem 837-HC (P.W.8). Deceased Mumtaz Hussain died of injuries at the spot. Time of occurrence as well as its reporting time does not provide any spatial for deliberation or consultation, therefore, all possibilities are excluded that complainant Ahmad Yar might have reported the case after due deliberations and consultation.
15. So far as the motive of the prosecution case, is concerned, according to prosecution's case, 3/4 days earlier to the happening of unfortunate incident, the deceased and the complainant fetched a quarrel but its genesis have not been brought on the record, while during cross-examination on Ahmad Yar (P.W.5), it has been got proved that the incident having taken place 3/4 days earlier to the occurrence, had taken place in the house of the complainant. Non-proof of the motive or disproof of it does not mean that the whole incident is doubtful. Of-course, in the instant case previous enmity has not been found in existence between the parties and moreso, no direct evidence of the motive incident exists but even then on this score alone, the whole case cannot be thrown away.
16. Presence of eye-witnesses, Ahmad Yar (P.W.5) and Muhammad Ramzan (P.W.6) is not unusual at the place of occurrence because the deceased was an employee of Ijaz Ahmad Khan Khichi, the owner of the place where the incident took place and his presence at the place of occurrence is quite natural and so is the P. Ws. But at the same time, it is worth mentioning that where the sheep and goats of the appellant were likely to be grazed was an open place having no standing or cutting crop, in this way, if the sheep and goats were there, there was no harm to any property, then what situation in fact occurred in between the deceased and the appellant, which led the murder of the deceased, this aspect of the prosecution case remains weird. However, presence of the eyewitnesses at the place of occurrence has not been extirpated even through lengthy cross- examination and their testimonies cannot be over thrown because of their propinquity with the deceased for the simple reason that they are not taken mendacious because of , any criminal aforethought or wroth.
17. So far as the medical evidence is concerned, no significant inconsistency has been noticed in it vis-a-vis its corroboration to the ocular account. The recovery of the Toki further corroborates the prosecution case being a sharp edged weapon and the injuries were caused with the same kind of weapon. The report of the Chemical Examiner as to its blood-imbrued is in the affirmative.
18. Considering all pros and cons of the prosecution case the Court is of the humble view that the prosecution has ably proved its case against the appellant beyond shadow of reasonable doubt.
19. So far as the quantum of sentence in this case is concerned scientifically circumstances do exist to favour the appellant so as to extenuate his quantum of sentence from death to life, such as:--
(a) Motive is regarded weak lacks previous enmity.
(b) The venue of occurrence where sheep and goats were likely to be grazed was an open one without any crop prospective to be damaged.
(c) Erupting of circumstances to murder of the deceased shrouded in mystery or it appears to be happened in the heat of passions as well as at the spur of moment.
(d) The weapon allegedly used in the commission of crime is one of the peasantry tools, its availability with the farmers is not regarded unusual.
(e) The deceased as well as the appellant have been noticed contemporaries.
(f) The appellant has yet to enter in realities of life.
(g) Quantum of sentences under section 302(b), P.P.C. Death as well as life both are legally permitted to be imposed by due regard of facts and circumstances of a case.
' By arriving at the above conclusions, we have been guided from the case of Muhammad Javed and another v. The State and others (2011 SCMR 1662), wherein the Hon'ble Supreme Court of Pakistan has held under:-- "There is no cavil to the proposition of law laid by this Court in the above-referred judgment cited by the learned counsel for the appellant-complainant, but each case has to be decided on its own merits. We have also gathered from the record, the conduct of the parties as none of the parties has approached the police station in spite of two incidents, which took place between them prior to the occurrence, which establishes that either party was not inclined to involve the area police. The complainant party has also roped all the brothers of the accused-appellants as co-accused, five of them were acquitted by the trial Court whereas the sixth was acquitted by the learned High Court. The prosecution witnesses have deposed that all the accused were firing at the complainant party, but the deceased have received single bullet injury on their person. The only question before us is whether there were mitigating circumstances justifying the learned High Court to commute the sentences of the accused-appellants from death to life imprisonment. The phrase 'mitigating circumstances' has been interpreted in the case of Muhammad Sharif v.
Muhammad Javed alias Jeeda Tedi (PLD 1976 SC 452), where their lordships have held that excrement youth, sudden provocation, influence of an elder and question of family honour etc., are covered by the phrase of extenuating and mitigating circumstances, if a case falls within any of the aforesaid circumstances, a Court, in law, is justified to award lesser penalty.
Looking at the background narrated hereinabove, we are of the considered view that the case in hand is covered by one of the categories of the phrase mitigating circumstances and therefore, we are inclined to hold that there existed mitigating circumstances and the learned High Court though has not spelt out reasons for awarding lesser punishment to the accused-appellant in the impugned judgment, has rightly commuted the sentence of death of the accused-appellants to life imprisonment."
21. For what has been discussed above, while maintaining the conviction, the quantum of death sentence imposed upon the appellant under section 302(b), P.P.C. Is commuted to imprisonment for life by extending him the benefit of section 382-B, Cr.P.C. The amount of compensation shall remain enforced as ordered by the learned trial Court. With this modification in the quantum of sentences, instant appeal stands dismissed. However, death sentence imposed upon the appellant is not confirmed. Murder Reference is not answered in the affirmative.
Sentence reduced. 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.