' MUHAMMAD TARIQ ABBASI, J.---This judgment shall decide the above captioned matters, being outcome of the judgment dated 15-4-2006, passed by the learned Additional Sessions Judge, Chiniot, whereby Akmal, Muzaffar and Zafar (appellants in Criminal Appeal No, 679 of 2006) were convicted and sentenced in the following terms:- Muzaffar and Akmal ' Under Section 302(b), P. P.C. To death and compensation of Rs,50,000 each, payable to the legal heirs of the deceased persons.
Zafar
(i) Under Section 324, P.P.C. To rigorous imprisonment for ten years and fine of Rs,5000, in default whereof to further undergo simple imprisonment for four months.
(ii) Under Section 337-F(vi), P.P. C. To rigorous imprisonment for seven years with Daman of Rs,30,000, payable to Rab Nawaz injured.
(iii) It was directed that all the sentences awarded to Zafar (appellant/convict) shall run concurrently, and benefit of section 382-B of Cr.P.C., will be permissible to him.
2. Facts of the case are that on 29-8-2002, Ali Muhammad (complainant) made a statement (Exh.PA), before the police, contending therein that he and his brother Muhammad Anwar (deceased) were residing together; along with his above named brother, Rab Nawaz (injured/PW), Mahmood Amjad (deceased) and Ansar, at about 7.30 p.m. Was sitting in front of his house and talking; suddenly M/s Akmal, Muzaffar and Zafar (convicts/appellants), Ashraf, Asghar, Nasrullah and Sajid (since acquitted), while armed with firearms attracted there; Akmal (convict/appellant) raised a ('lalkara' that they had come to take revenge of their murder, whereupon they (complainant party) to save themselves, started running to their house; Akmal with his gun made a fire shot, which hit Muhammad Anwar upper side of right flank and he fell down; Muzaffar (convict/appellant) fired a shot of his gun, which landed at back side of the head of Mahmood Amjad, who also fell down; the fire shot made by Zafar (convict/appellant), with his gun hit at the buttock of Rab Nawaz; thereafter Nazar with .44 bore rifle, Ashraf with 303 bore rifle; Asghar with 8 mm rifle, Nasrullah with 8 mm rifle and Sajid with 223 bore rifle also made indiscriminate firing; on.
Hearing reports of firing, many persons of the locality ran towards the spot, whereupon the accused, fled away; Muhammad Anwar and Mahmood Amjad succumbed to the injuries, whereas Rab Nawaz in an injured condition was shifted to the hospital; the motive was previous enmity of murder. As a result of the above mentioned complaint, the FIR No, 456 dated 29-8-2002 under Sections 302/324/148/149, P.P.C. Was registered at Police Station Saddar Chiniot. During the investigation, the police declared some of the accused innocent, hence the complainant filed a private complaint (Exh. PB), against the appellants/convicts and five others (since acquitted), almost on the same grounds as were narrated in the above mentioned Fard Biyan (Exh.PA). In the said complaint, the due proceedings were carried on and the nominated respondents/accused were summoned. Pre-trial proceedings were conducted, whereafter appellants/convicts and their co-accused (since acquitted) were formally charge sheeted, by the learned trial Court on 18-12- 2003. All pleaded not guilty and claimed the trial, hence, the prosecution evidence was summoned and recorded.
3. Prosecution got examined as many as five persons as PWs, whereas, ten as CWs. Gist of evidence of the material witnesses is as under:-
(i) P. W.1 Ali- Muhammad was the complainant as well as an eyewitness of the alleged occurrence, who narrated almost the same facts as were stated by him in the Fard Biyan (Exh.PA) and the private complaint (Exh.PB). He had also received a phial containing pallets, from the doctor being recovered from the body of Rab Nawaz (PW) and produced it before the investigating officer, who had taken the same into possession, through memo- (Exh.PC), attested by him.
(ii) P. W.2 Rab Nawaz, who during the occurrence received injury had supported the version of All Muhammad complainant (P. W.1), in all its four corners.
(iii) P. W.5 Dr. Mushtaq conducted the post morteni examination of the dead bodies of Muhammad Anwar and Mahmood Amjad and prepared the reports (Exh.PF and Exh.PJ). At that time the following injuries were found on the dead body of Muhammad Anwar deceased: -
(a) Nine lacerated wounds 1 cm x 1 cm each in an area of 12cm x 1 cm on the outer and middle of right chest.
' Margins were inverted, corresponding holes were present on the Qameez, these were wounds of entrance.
(b) Seven lacerated wounds 1,1/2 cm x 1 cm each in an area of 9cm x 9cm on the front and upper part of the right chest. Margins were everted, holes were present on the Qameez, these were wounds of exit.
(c) Lacerated wound 2 cm x 1 cm on the back and upper part of right scapular area, margins were everted, hole present on the Qameez, it was wound of exit.
' During autopsy of Mahmood Amjad, the following injury was noticed:- "Crushed lacerated wound 20cm x 16cm on the left and slightly back side of the head and left ear.
Margins were inverted, brain matter was coming out, underlying skull bone was fractured into multi-pieces. Plastic wad was removed from the brain matter, it was wound of entrance.
' As per doctor, the above mentioned injuries were caused by firearms, ante-mortem in nature, sufficient to cause death and that the deceased, died just on receipt of the injuries.
(iv) CW-1 Muhammad Nawaz Head Constable chalked out the formal FIR. (Exh. CW-A/1), received the parcels containing blood stained earth and the empties, from the investigating officer, kept the same in the Malkhana and thereafter handed over them to Allah Rakha Constable, for their onward transmission to the office of Forensic Science Laboratory, Lahore intact.
(v) CW-2 Allah Rakha 624/C transmitted sealed sample parcels, relating to the case to the concerned offices' '
(vi) CW-4 Muhammad Baqir 665/MHC kept in the Malkhana parcels containing .12 bore guns and rifle and thereafter got them dispatched in the office of Forensic Science Laboratory, Lahore.
(vii) CW-5 Zafar lqbal 870/C Constable got conducted the post mortem examination of the dead bodies and also produced the last worn clothes of the deceased (P-I to P-4) before the investigating officer, who took the same into possession through memo (Exh.CW.5/E). This witness also attested the memo (Exh.CW.5/F) through which .12 bore gun (P15) along with four live cartridges (P-6), allegedly got recovered by Muzaffar (convict/ appellant) from his house was taken into possession by the investigating officer.
(viii) CW-7 Jamil Akhtar drafted the scaled site plans (Exh.CW.7/.1 and Exh. CW. 7/K) of the spot.
(ix) CW-8 Babar Nawaz investigated the case. During his proceedings, he recorded the statement (Exh.PA) of Ali Muhammad complainant and for registration of the formal FIR sent it to the Police Station; prepared injury statements (Exh.PG & Exh.PK) and the inquest reports (Exh.PH & Exh.PL) relating to the dead bodies; collected the blood stained earth from the spot, made it into sealed parcels and took the same into possession through memo (Exh. PD); collected seven empties of 12 bore gun (P-1/I-7) and ten of .44 bore rifle (P-2/1-10) from the spot and took the same into possession through memo (Exh.PE); prepared rough site plan (Exh. CW. 8/L) of the spot; prepared injury statement (Exh.PN) of Rab Nawaz (injured PW) and also recorded his statement; took into possession the last worn clothes of the deceased (Exh.P-I to Exh. P-4); got prepared the scaled site plans (Exh.CW-7/J and Exh.CW-7/K) from the draftsman; deferred arrest of Akmal, Zafar, Nazar and Ashraf, accused when they appeared before him on 10-9-2002, but arrested Muzaffar and Asghar accused on 8-11-2002; took into possession the gun (P-5) along with four live cartridges (P6/1-4) got recovered by Muzaffar convict/appellant from his house, through memo (Exh.CW- 5/F); referred Rab Nawaz PW to Allied Hospital, Faisalabad for the purpose of operation and took into possession a pallet which was removed from his body; deposited the case property with Moharar at the relevant stages and also recorded statements of the concerned witnesses; finally, prepared the challan while placing the names of Akmal, Zafar (appellants/convicts), Nazar, Hayat and Ashraf (accused since acquitted) in Column No, 2 of the report under section 173 of Cr. P.C.
(x) CW-9 Dr. Arshad Ali examined Rab Nawaz (injured PW) and prepared the medico legal report (Exh.CW-9/P). Two fire shot injuries, one at right buttock and other at right thigh of the injured were noted.
4. After examination of the above said witness, the complainant tendered the reports of the Chemical Examiner, Serologist and Forensic Science Laboratory as Exh.PR, Exh.PS & Exh.PT respectively and closed the prosecution case, whereafter the appellants/convicts as well as their acquitted co-accused were examined as required under Section 342 Cr.P.C., during which the questions emerging from the prosecution evidence were put to them and they denied almost all such questions, while pleading their innocence and false involvement, in the case with mala fides.
The question "Why this case against you and why the PWs have deposed against you?" was replied by the appellants with the following three words:- "Due to enmity."
5. At that time, Akmal (appellant/ convict) opted to lead evidence in his defence but refused to make statement under Section 340(2), Cr.P.C., whereas Zafar and Muzaffar (appellants/convicts) did not opt to lead any evidence in their defence or make statements on oath. Later on, Akmal also refused to lead any defence evidence.
6. On completion of the trial, the learned trial Court pronounced the impugned judgment, whereby the appellants were convicted and sentenced, in the above mentioned terms, whereas their above named co-accused were acquitted of the charge. Consequently the matters in hand.
7. Learned counsel for the appellants have argued that the appellants are innocent and falsely roped in the case, with mala fide, while concocting a false and frivolous story; during the investigation, Akmal and Zafar (appellants) were found to be not involved, being not available at the spot, hence declared innocent, but the learned trial Court failed to consider the said fact and erred in convicting and sentencing them; during the investigation, no incriminating was recovered from Akmal and Zafar, (appellants); the gun allegedly recovered from Muzaffar (appellant) was a planted weapon and as such the said recovery could not be believed; the statements of the prosecution witnesses were full of material contradictions but not considered by the learned trial Court; in consistency between the ocular account and the medical evidence was also not taken into consideration by the learned trial Court; the prosecution had failed to prove the charge against the appellants, hence they were entitled for acquittal and as such the impugned judgment is not sustainable in the eye of law.
8. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant has not only vehemently opposed the appeal but also reiterated the grounds taken in Criminal Revision (No, 156 of 2007) and prayed for enhancement of the compensation awarad to the appellants.
9. Argument of learned counsel for the appellants, learned counsel for the complainant as well as learned Deputy Prosecutor General have been heard and the record has been perused.
10. Ali Muhammad complainant (P.W.1) at the time of the reporting the matter to the police on 29- 8-2002 through Exh.PA, alleged the motive as previous enmity of murder. At that time he did not make any detail of the said enmity, but when he filed the complaint on 13-1-2003 (Exh.P.B), contended that in the year 1987, Bahu was murdered, who was real uncle of A kmal , Zafar (appellants), Muhammad Ashraf and Asghar (since acquitted), whereas, first cousin (Chacha Zad) of Nazar (since acquitted) and Muzaffar (appellant/convict); a criminal case against Anwar deceased and others was registered at Police Station Saddar Chiniot, wherein Anwar deceased was sentenced to twenty five years imprisonment, who after serving out was released; the accused to get revenge of the said murder, with common intention, had committed Qatal of Muhammad Anwar and Mahmood Amjad, whereas murderous assault at Rab Nawaz (P.W.2). During statement of the complainant (P.W.1) it came on the record that one Ahmed, who was also challaned for murder of Bahu, was acquitted in the year 1989, whereas Anwar (deceased) and Nazir, after serving out their sentences came back about 3/4 years before the occurrence.In the above said back ground, the alleged motive does not appeal to a prudent mind because no action against Ahmed was ever taken by the accused party, who according to the complainant, was also a murderer of Bahu and acquitted in the year 1989. Anwar (deceased) was enlarged from the jail about 3/4 years prior to the instant occurrence, but just after his release, he was not questioned by the accused party in any manner, despite the fact that both the parties were residing in the same locality.
Therefore, the alleged motive could not be termed to have been established.
11. Ali Muhammad complainant (P.W.1) and Rab Nawaz injured (P.W.2) during the trial categorically deposed that when they along with Muhammad Anwar and Mahmood Amjad (deceased) were available at the spot, the appellants/ convicts, while armed with firearms attracted and attacked at them and when they to save themselves started running towards their house, Akmal (appellant/ convict) made a fire shot with his gun which hit at back side of right flank of Muhammad Anwar (deceased); Muzaffar (appellant/convict) with his gun fired at Mahmood Amjad (deceased) hitting on the back side of his head, whereas Zafar (appellant/convict) fired and caused injuries at right buttock of Rab Nawaz (P.W.2); due to the injuries sustained by Muhammad Anwar and Amjad Mahmood at the hands of Akmal and Muzaffar (appellants), both died then and there. The witnesses however, admitted that each of the appellants made only one fire shot without any repetition. The above mentioned version of the above named witnesses was concurrent, consistent and confidence inspiring. Despite lengthy cross- examination, no material contradiction in the said version was brought on the record, hence the learned trial Court had rightly believed the version to be true. The place of occurrence was confirmed to be outside the house/haveli of the complainant, hence admittedly the appellants were the aggressors, who succeeded in getting lives of two innocent persons and causing grievous injuries to one. The matter was promptly reported to the Police, hence no chance of any deliberation, consultation or false implication. The defence had failed to contradict presence of the above named injured witness at the spot and sustaining of the injuries. Inconsistency between the medical evidence and the ocular account has been alleged by the learned counsel for the appellants, but on perusal of the record, no such contradiction has been noticed, hence the said contention has no force. It can rightly and safely be held that the ocular account is in line with the medical evidence.
12. The contention of the learned counsel for the appellants that when on the basis of same evidence, co-accused were acquitted, then no justification of conviction of the appellants, is answered in the terms that now-a-days principle of "falsus in uno falsus in omnibus" is not applicable, rather maxim "sifting of grain out of chaff' is to be adopted. Hence acquittal of the above mentioned co-accused and conviction of appellants being result of application of the above mentioned maxim, is not objectionable. If any case-law is needed to fortify this view, reference can be made to the case of "Iftikhar Hussain and another v. State" (2004 SCM R 1185), wherein the Hon'ble Supreme Court of Pakistan at page 562 held as under:-- "...It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i,e, sifting of grain out of chaff i,e, if an ocular, testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts."
' Similar view was reiterated in the subsequent judgment of the Hon'ble Supreme Court of Pakistan reported as "Akhtar Ali and others v. The State" (2008 SCM R 6).
13. The Investigating Officer, during the investigation, had declared Akmal and Zafar (appellants) innocent, being not available at the spot and as such challaned them in Column No, 2 of the report under Section 173, Cr.P.C. The investigating officer (CW-8) during his statement in the Court had admitted it correct that no documentary evidence about innocence of the above named accused was produced before him, meaning thereby that the findings of the investigating officer, towards innocence of the above named appellants was without any substance, hence can rightly be termed as ipse dixit of the police and as such could not, be given any weight. The learned trial court had rightly appreciated the said fact and discerned the above said findings made by the investigating officer. Even otherwise, if there was any specific stance/plea of any appellant, then it should have been established during the trial, through cogent and convincing evidence but despite opportunity, the appellants had failed to do so.
14. Admittedly as Akmal and Zafar (appellants) were declared innocent and even not arrested, hence no recovery from them was effected. Recovery of 12 bore gun from Muzaffar (appellant) was alleged and it was also sent to the laboratory for comparison, with the empties collected from the spot. A photo copy of report of the Forersic Science Laboratory was brought on the record of the learned trial Court as Exh.PK, which at all was not admissible in evidence, hence no weight could be given to the said document. Furthermore as per the record, the empties allegedly collected from the spot were dispatched to the laboratory after about three months and as such the mandatory procedure/requirement of sending the empties to the laboratory just after the recovery was violated. The said reason had also made the comparison, if any, useless.
15. As a result of what has been discussed above, we are of the considered view that as the charge against the appellants was proved beyond any doubt, hence the impugned judgment, towards conviction of the appellants, in the above mentioned terms being result of correct evaluation and appreciation of evidence was quite justified and call of the day. But non-establishment of the alleged motive, the recovery of weapons, report of the Forensic Science Laboratory and non- repetition of firing by the appellants, according to us are sufficient circumstances for concession, in the sentence awarded to the appellants by the learned trial court. It is well recognized principle, by now that an accused is entitled for the benefit of doubt as an extenuating circumstance, while dealing his quantum of sentence as well. In this regard, reference may be made to the case of Mir Muhammad alias Miro v. The State (2009 SCM R 1188), wherein the Hon'ble Supreme Court of Pakistan had held as under:-- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of. The Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
16. Consequently, the conviction of Akmal and Muzaffar (appellants) under Section 302(b), P.P.C.
Awarded through the impugned judgment is maintained but their sentence is altered from the death to imprisonment for life. The compensation awarded to the appellants by the learned trial court is maintained. However, we have noticed that learned trial court has not awarded any sentence in default of payment of compensation provided under section 544-A(2), Cr.P.C.
Therefore, we direct that if the appellant fails to pay the compensation amount, he will undergo simple imprisonment for six months. The benefit of section 382-B of Cr.P.C. Is also given to the appellants.
17. As stated above Zafar (appellant) during the investigating was not arrested and he was taken into custody at the time of announcement of the impugned judgment. As per the information made by the jail authorities, where he remained confined, he was dispatched to the jail on 15-4- 2006 and released on bail, on 30-6-2008, hence he served out imprisonment for 2 years, 8 months and 15 days. He made only fire shot at the buttock (non vital part) of the above named injured, hence due to the reasons, mentioned above, he also deserves concession in his sentence.
Therefore, his sentence for charge under Sections 324 and 337F(vi), P.P.C. Is reduced to the imprisonment for 2 years, 8 months and 15 days each, which he has already undergone. The fine of Rs,5000 and Daman of Rs,30,000 imposed against him by the learned trial court shall remain intact.
He is directed to make the payment of the above mentioned amounts, within thirty days from today and submit the receipt(s) in the office of Deputy Registrar (Judicial) of this Court, failing which he shall undergo the imprisonment, which in default of the above mentioned fine has been prescribed by the learned trial court.
18. In view of the foregoing discussion, with the above mentioned modification in the sentence of the above mentioned appellants Criminal Appeal No, 679 of 2006 is dismissed. Murder Reference No, 484 of 2006 is answered in negative and death sentence of Muzaffar and Akmal is not confirmed. Zafar appellant, by way of suspension of sentence is on bail, hence his bail bonds are discharged.
19. The above stated facts are sufficient towards dismissal of Criminal Revision No, 156 of 2007, hence it is dismissed.