QAZI MUHAMMAD AMIN AHMED, J:- Ahmad Nawaz, Mushtaq Ahmad, Umar and Sadiq Karim were sent to face trial in case FIR No.154 dated 12-10-1992 under Sections 302, 324, 34 PPC registered at Police Station Taunsa Sharif; they were accused of committing Qatl-e-Amd of Sajid Hussain, deceased. The occurrence took place at 6:30 a.m. on 12-10-1992 within the area of village Sokar situating at a distance of 5-kilometers from Police Station Taunsa Sharif.
2. Prosecution case set up on the statement of Shamshad Hussain (PW-8) is that on the fateful day he along with Ashfaq Hussain (PW-9) were present in his house in the company of Sajjad Hussain deceased when they went out on hearing the sound of cutting of wood and saw Sajjad Hussain deceased in altercation with the accused; it is his case that within their view Ahmad Nawaz accused gave a Sota blow which hit the deceased on his face followed by a hatchet blow by Sadiq accused landing on his shoulder, whereafter Umar dealt a hatchet blow on the right side of face and neck of the deceased, who upon receipt of injuries was falling when Ahmad Nawaz again dealt him a Sota blow on the back of his head. According to the witness, he tried to rescue his brother when Ahmad Nawaz gave Sota blows hitting various parts of his body while Mushtaq accused caused injuries to Ashfaq Hussain PW. Sajjad Hussain succumbed to his injuries at the spot.
Incident was reported at the police station at 8:30 p.m. when Muhammad Bukhsh ASI (PW-10) recorded formal FIR Ex.PL and proceeded to the spot, who dispatched the dead body to the mortuary, along with injured PWs besides taking other investigative steps of formal nature. PW-1 Dr. Musa Kaleem conducted autopsy at 1:05 p.m. and noted six injuries on the person of the deceased that included two incised wounds accompanied by three lacerated wounds and a bruise; injuries No.1 and 2 located on right cheek and middle of occiput were cause of death. Shamshad PW was noted to have four injuries comprising of one lacerated wound with three bruises. One incised wound was noted on the person of Ashfaq Hussain PW.
3. Sadiq, Umar and Mushtaq, pursuant to disclosures led to the recovery of bloodstained hatchets P-7, P-8 and P-9 on 20-10-1992 while Ahmad Nawaz got recovered a bloodstained stick P-10 same day; upon conclusion of investigation a report under Section 173 Cr.P.C. was submitted and the accused were indicted on 10-4-1993 when they claimed trial.
4. Prosecution in order to bring home charge against them produced as many as 12 witnesses; the main stay of the prosecution comprises of two injured eye witnesses i.e. Shamshad Hussain (PW-8) and Ashfaq Hussain (PW-9). Upon conclusion of the trial, confronted with the prosecution evidence, the accused rallied behind Sadiq Kareem who took the following plea:- "PWs have deposed against me due to enmity by licking the shape of occurrence according to their tase. I am Class IV employee in Govt; High School Dona, having been upgraded from Middle to High standard, which is situated at the distance of about 15 K.Ms. from my house. During my duty, I used to reside in the school even at night time, for the discharge of the assigned professional duties. Deceased, Sajjad Hussain developed illicit relations with my wife, Mst. Hafeez Mai. On the fateful night during the last hours of night, at 4/5 A.M., my wife went out of my house on the pretext of attending the call of nature in the Khola, situated in the abandoned house of one Haji Ahmad, just opposite to my house and after some time when she did not come back, I went out of my house to check her and found her in compromising position with Sajjad Hussain deceased. At that time hatchet P-7 was lying near Sajjad Hussain deceased. After seeing me near the place, the deceased Sajjad Hussain tried to pick up the hatchet in order to assault me but meanwhile, I succeeded in picking it up earlier to the deceased, as I had lost control over my senses and became mad; and that under the impulse of extreme Ghairat, sudden and grave provocation, I inflicted several blows with sharp and blunt side of the hatchet P.7. Sajjad Hussain, deceased, tried to run away towards his house and when he was crossing the short heighted boundary wall of about 6"/1 ft. of the abandoned house of Haji Ahmad, his feet struck against it and he fell down in the street. Meanwhile, my wife made good her escape from. After the occurrence, I had gone to the police station and produced the hatchet P.7 before the police. Voluntarily narrating the actual facts of the incident, none from the PWs including Ishfaq Hussain and Shamshad Hussain were present at the time of occurrence. Dr. Musa Kaleem, who is related to the complainant party, issued bogus and false medico-legal certificates, regarding the simple injuries of the PWs, merely in order to create their presence at the scene of occurrence to strengthen their case as per their choice. The FIR was lodged after considerable delay and deliberation although the police station was at a distance of a few minutes traveling from the place of occurrence. Even prisoner to the alleged occurrence, the rumour had spread in the town, regarding the murder of Sajjad Hussain, deceased by some un-known person."
While declining to be their own witnesses, however, they adduced defence evidence through DW-1 Mohsin Ali Moharrir/Head Constable, DW-2 Abdul Rasheed, DW-3 Ameer Muhammad Patwari and DW-4 Ghulam Qadir.
5. Upon conclusion of the trial, the learned trial Judge vide judgment dated 11-11-1993 while believing prosecution in totality convicted all the accused under Section 302(c) PPC and sentenced Sadiq Kareem, Umar to 25-years RI along with compensation of Rs.25,000/- each, however, Mushtaq accused was sentenced to 10-years RI with compensation of Rs.7000/- as he had not caused any harm to the deceased. The accused were also convicted and sentenced for causing injuries to the PWs. Reasoning given by the learned trial Judge for recording conviction under Section 302(c) PPC was failure of the prosecution which misses to qualify the test of Tazkia- tul-Shahood.
6. The convicts challenged conviction in the High Court through Crl. Appeal No.309 of 1993 and Crl.
Appeal No.313 of 1993. The complainant or the State did not challenge conviction under Section 302
(c) PPC. A learned Judge in Chamber of Lahore High Court at Multan Bench while maintaining their convictions under Section 302 (c) PPC reduced their sentences to the period already undergone by them vide judgment dated 20.03.2013.
7. Shamshad Hussain, complainant challenged reduction in sentence in the Hon'ble Supreme Court of Pakistan through Crl. Appeal No.138 of 2014 which was allowed in the following terms:- "Having considered the above submissions, we are in full agreement with the arguments of the learned ASC for the appellant that the impugned judgment of the Lahore High Court, as regards the reduction in quantum of sentence, not only lacks sound reasons to justify it, but also shows lack of application of mind in this regard. In this view of the matter, this appeal is allowed, the impugned judgment is set aside and both the Criminal Appeals No.309/1993 and 113/1993 are remanded to the Lahore High Court, Lahore for re-hearing and their disposal through a speaking order strictly in accordance with law, but only to the extent to respondents No.1, 2 & 4, Sadiq Karim, Ahmad Nawaz and Umar. Since it is an old case pertaining to an incident, which has occurrence in the year 1992, we expect that the hearing of these appeals will be undertaken before the High Court on priority basis."
In wake of above events, now Sadiq Kareem, Ahmad Nawaz and Umar, appellants are before the Court; it has been argued on their behalf that deceased was not a Masoom-ud-Dam as he was surprised by Sadiq Kareem in a compromising position with his wife and loss of cool by the said appellant in such a situation was a natural human reaction; according to the learned counsel for the appellants given the protracted agony of the appellants reduction in sentence to already served would meet the ends of justice and that Hon'ble Supreme Court merely desired reasoning in support thereof which is patent on the record.
8. Contrarily, appeals have been resisted by the learned counsel for the complainant on the ground that defence taken by Sadiq Kareem does not take into account extensive injuries sustained by two PWs and thus stands nullified as false and absurd; it is further argued that deceased in his prime youth was done to death in a merciless manner and the appellants deserve no leniency.
9. Heard. Record perused.
10. Presence of two eye witnesses with receipt of extensive injuries on their persons cannot be doubted at the spot; role attributed to the present appellants are fully corroborated by medical evidence; recoveries of bloodstained hatchets and stick extend additional corroborative support to the charge against the appellants. There is disagreement on the motive for the incident. Reasoning given by the learned trial Judge for recording appellants conviction under Section 302(c) PPC on account of prosecution's failure to put its witnesses to the test of purgation (Tazkia-tul-Shahood) in itself is not sustainable as this would not ipso facto bring the case within the ambit of Section 302(c) PPC, however, this aspect of the case was not challenged by the complainant even during his recourse to the Hon'ble Supreme Court of Pakistan; cases where Qisas cannot be exacted for lack of requisite standard of proof as required under Section 304 PPC can be squarely dealt with under Section 302 (b) PPC. However, facts and circumstances of the case justify conviction under Section 302(c) PPC on another score and that is happening of the occurrence all of a sudden, ignited by situation which no one contemplated; such a situation can be attended by the provisions of Section 302(c) PPC as is held in the case of Ali Muhammad Vs. & Ali Muhammad & another (PLD 1996 S.C. 274). The relevant portion is advantageously reproduced below:- "Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 300 P.P.C. read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
Even if defence plea is brushed aside as it fails to synchronize with the injuries sustained by two eye witnesses, prosecution's own case spelt out a scenario which justifies application of clause (c) of section 302 PPC. Appellants never questioned their conviction under the said provision during their first visit to this Court. In this backdrop, I feel no hesitation in holding that the learned trial Court rightly returned a guilty verdict; insofar as quantum of sentence is concerned, since the appellants have been convicted under clause (c) of Section 302 PPC which is to cater situations involving mitigated enormity, the maximum sentence provided thereunder is not called for and in the facts and circumstances of the case punishment for a period of fifteen years with benefit of Section 382- B Cr.P.C. would meet the ends of justice; appellants' sentences for causing injuries to the PWs under other provisions and compensation to be paid by them are kept intact; sentences shall run concurrently. The appellants are on bail and shall be taken into custody to serve their remaining sentences.
As a result, conviction under Section 302 (c) PPC is maintained with sentences mentioned above and Crl. Appeal No.309 of 1993 and Crl. Appeal No.313 of 1993 stand dismissed.