SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 281 of 2012 filed by Ghulam Mustafa, Muhammad Sadiq, Riaz Ahmed and Muhammad Iqbal appellants, Criminal Appeal No, 303 of 2012 filed by Muhammad Nawaz and Shoukat Ali appellants, Criminal Appeal No, 320 of 2012 filed by Imtiaz alias Kalu appellant, Criminal Appeal No, 321 of 2012 filed by Sahib Yar appellant, Criminal Appeal No, 367 of 2012 filed by Shabbir Ahmed appellant (against their convictions) and M.R. _No, 47 of 2012 sent by learned Trial Court for confirmation of the death sentence of the appellant Ghulam Mustafa or otherwise all the above-stated matters have arisen out of the same judgment dated 30.8.2012 passed by learned Additional Sessions Judge, Liaquatpur District Rahimyar Khan according to which the present appellants were convictec, and sentenced as under:--- "(i) Ghulanz Mustafa was convicted under section 302(b), PPC and sentenced to death as the deceased Faiz Ahmed died due to the fatal injury caused by him alongwith Rs, 2,00,000/- under section 544-4,. Cr.P.C. Payable to legal heirs of the deceased and in defau-r thereof further under six months,' S.I.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years'
R.I.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to years'
R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 3?4 read with section 149, PPC and sentenced to ten years' R.I.
Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Damn amount Rs, 10,000/-to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(ii) Muhammad Sadiq was convicted under section 302(b) read with section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further undergo six months' S. I.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years'
R.I.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years R.I.
Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the ' convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/-to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(iii) Riaz Ahmed was convicted, under section 302 (b) read with section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, , Cr.P.C. And in default thereof further undergo six months' S. I.
' He was also convicted under section 14'8 read with section 149, PPC and sentenced to two years,' R.
I.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10:000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149. PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/- to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(iv) Muhammad lqbal was convicted under section 302(b) read with section 149, PPC and sentenced to imprisonment for life along with compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further undergo six months' S. I.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years'
R.I.
' He was also convicted under section 152, PPC read with section 149, PPC and sentenced to seven years' R. I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10.000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/-to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(v) Muhammad Nawaz was convicted under section 302(b) read with section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, ,Cr.P.0 and in default thereof further undergo six months' is S. I.
' He was also convicted under section 148 read with section 149, PPC and ,sentenced to two years' R.
I.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.
1. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman anzount.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/-to the injured, and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(vi) Shaukat Ali was convicted under section 302 (b) read until section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further undergo six months' S. I.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years' R ' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Along with fine Rs, 5000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/-to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(vii) Imtiaz alias Kalu was convicted under section 302(b) read with section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further undergo six months' Si.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years'
R.I.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced ten years'
R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced, to six years' R.I. Alongwith Daman amount Rs, 10,000/- to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the conVict. The convict shall remain in jail till the payment of amount of Daman.
(viii) Sahib Yar was convicted under section 302 (b) read with section 149, PPC and sentenced to imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.0 and in default thereof further undergo six months' S.I.
' He was also convicted under section 148 read with section 149, PPC and sentenced to two years' RI.
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S. I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten yews' R.I.
Along with fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to two years' R.I. Alongwith Daman Rs, 10,000/- to the injured, and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/-to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman.
(ix) Shabbir Ahmed was convicted, under section 302(b) read with section 149, PPC and sentencedsto imprisonment for life alongwith compensation Rs, 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof Maher undergo six months' S. I.
' He was also convicted under section 148 read with section 149, PPC and -sentenced to two years'
R. I"
' He was also convicted under section 452, PPC read with section 149, PPC and sentenced to seven years' R.I. Alongwith fine Rs, 5000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 324 read with section 149, PPC and sentenced to ten years'
R.I. Alongwith fine Rs, 10,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 337-F(v) read with section 149, PPC and sentenced to five years' R.I. Alongwith Daman Rs, 10,000/- to the injured and in case of his death his legal heirs will be entitled to receive that Daman amount from the convict and the convict shall remain in jail till the payment of Daman amount.
' He was also convicted under section 337-F(vi) read with section 149, PPC and sentenced to six years' R.I. Alongwith Daman amount Rs, 10,000/- to the injured and in case of death of injured, his legal heirs will be entitled to receive that amount of Daman from the convict. The convict shall remain in jail till the payment of amount of Daman."
' Whereas their co-accused Muhammad Ajmal was acquitted by the learned Trial Court, All the sentences awarded to the present appellants were ordered to be run concurrently with benefit of section 382-B, Cr.P.C. In case FIR No, 549, dated 5.7.2009 under sections 302, 324, 452, 148/149, 337- F(v), 337-F(vi), PPC police station, Liaquatpur District Rahimyar Khan.
2. The facts of the case have been stated by Mumtaz Ahmed complainant PW-1 real brother of Faiz Ahmed deceased in his statement before the learned Trial Court and same statement is hereby reproduced for narration of the facts:--- "On 4.7.2009, it was about 08:00/9:00 p.m. (night) I along with my brother Faiz Ahmed, my sons Mushtaq Ahmed, Mazhar Abbas, Riaz and Fayyaz were sitting in my house. Again said Mushtaq Ahmed is my nephew. On that night, myself and my son Riaz went for the turn of my water.- When myself and Riaz Ahmed went out from outer door of our house, 13 accused persons namely Sahib Yar armed with hatchet, Ghulam Mustafa armed with Sota, Imtiaz alias Kalu armed with hatchet, Abdul Sattar armed with hatchet. Riaz armed with hatchet, lqbal armed with Sota, Hashim P.O.
Armed with hatchet, Shabbir armed with Soti, Sadiq armed with Soti, Noor P.O. Armed with Soti, Nawaz armed with Soti Shaukat armed with pistol as well as Soti. Abdul Malik armed with Soti alongwith 7/8 unknown accused persons. The above-said accused parsons entered into my house. They started abusing us.
' Ghulam Mustafa, Sahib Yar, Imtiaz alias Kalu and Satiar gave beating to Faiz Ahmed my brother (since deceased) Sahib Yar accused gave a wrong side of hatchet on the rib area of my brother Faiz Ahmed. Accused Ghulam Mustafa present before the Court in custody gave a Sota blow on the head of my brother Faiz. Accused Imtiaz alias Kalu gave a wrong side of hatchet on the nose of said Faiz. Sattar accused gave a wrong side of the hatchet on the back of my brother Faiz Ahmed.
Thereafter, Iqbal, Riaz and Hashim P.O. Accused persons gave beating to my son Faiyyaz and caused him injuries on the various parts of his body. Shabbir Ahmed and other accused persons gave beating to my son Mazhar Abbas as well as to myself. Thereafter Noor P./0., Nawaz and Abdul Malik etc. Also gave beating to me as well as to my son Mazhar Abbas.
' Mushtaq Ahmed my nephew informed the police through telephone and police came at the spot and taken us to the hospital. First aid was given to us at the hospital. Police recorded my statement Ex.PA at the spot. The same was read over to me and I thumb marked the same as a token of its correctness. Due to precarious condition of my brother Faiz, he was referred to Victoria Hospital, Bahawalpur but he taken his last breath when he was taken to hospital towards Bahawalpur.
' After the occurrence, I identified three unknown accused persons as Munir, Shabbir, Ajmal and Muhammad Bakhsh. I went to the police station where I/SHO Saifullah told me that Ajmal is involved in this occurrence because his co-accused are alleging against him about his participation. All the above-said accused persons committed the above-said occurrence. "
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. Was submitted in the Trial Court.
4. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code flamed the charge on 2.4.2011 against the present appellants/convicts Muhammad Iqbal, Imtiaz alias Kalu, Riaz Ahmad, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Ghulam Mustafa and their co-accused Muhammad Ajmal and Abdul Sattar (since acquitted) under sections 148/149, 452, 324, 337-F(v), 337-F(vi) & 302, PPC to which they pleaded not guilty and prosecution evidence was summoned'.
5. Prosecution produced Mumtaz Ahmed complainant as PW-1, Mushtaq Ahmed PW-2, Mazhar Abbas PW-3, Muhammad Sadiq PW-4, Abdul Rehman Patwari PW-5, Ghulam Yasin constable PW- 6, Subah Sadiq, SI PW-7, Dr. Muhammad Akram M.0 PW-8 and Mehr Nasir Ali Saqib, 1/SHO as CW-1 whereas PWs namely Fayyaz Ahmad, Riaz Ahmad, Mumtaz Ahmad, Faiz Ahmad, Rasheed Ahmad constable, Muhammad Shabbir, SI and Mehr Nasir, Inspector/ SHO were given up by the prosecution being un-necessary and after tendering documentary evidence i.e, statement of Mumtaz Ahmed Ex.PA, FIR.Ex.PA/1, recovery memos. Of Soti Ex.PB and Ex.PC, recovery memo of Kulhari Ex.PD, recovery memo. Of Soti Ex.PE, receipt of dead-body Ex.PF, site-plan Ex.PC, recovery memo of clothes of deceased Ex.PH, injury plan Ex.PJ to Ex.PN, inquest report Ex.PP, application to SHO Ex.PT, medical reports Ex.PU to Ex.PZ, post-mortem report Ex.PAA closed the prosecution evidence.
6. Medical evidence was furnished by Or. Muhammad Akram M.O. PW-8 who stated that on 4.7.2009 he medically examined Faiz Ahmed (deceased) in injured condition and observed as under:---
(1) A lacerated wound about 5.1cm 0.3 cm.' bone not exposed but fresh blood was oozing on right half of head.
(2) (i) A swelling about 5.2 cm' 3.4 cm on nose.',
(ii) A smelling about 3 C.M. ' 6 C.M. On right leg with an abrasion about 3.1 C.M.
0.6 C.M. On right knee.
(3) A tender area about 10.2 C.M.
7.2 C.M. On outer side of right chest.
' All injuries were KU.O. For X-Rays except injury No, 2(ii). On 5.7.2009, vide X-Ray film No, 7677, there was radiological evidence of fracture of skull and some of its small pieces had been entered into brain matter, so injury No, 1 was "ShujjahDamaghia" (337-A (vi), PPC) and other injuries were as injury No, 2(i) as "Shujjah-i-Khafifah", No, 2(ii) "Jurh Ghyr Jaifah Damiyah", No, 3 was "Jurh Ghyr Jaifah Damiyah". Injury No, 1 was dangerous to life. All the injuries were caused with blunt weapon and were inflicted within the duration of 24 hours (fresh). Due to serious condition of the injured, he was referred to B.V.H Bahawalpur.
' On the same day, he also medically examined Mazhar Abbas s/o Mumtaz Ahmed, injured PW and observed the following injuries:
(1) A reddish bruise about 4.7 C.M.' 0.8 C.M. On front of right clavicle bone (right shoulder).
(2) A laceration about 2.1 C.M. 1 C.M. On back of right shoulder.
(3) Two reddish bruises about 8 C.M. 1 C.M. On back of right shoulder.
(4) A swelling about 15 C.M.
10.2 C.M. On left forearm.
(5) A reddish bruise about 6 C.M. 2 C.M. On back of thigh.
(6) A reddish bruise about 10 c.m.
2.2. C.M. On back of left leg.
' All injuries were "Jurh Ghyr Jaifah Damiah except injury No, 4, which was KUO for X-Rays. On 5.7.2009 vide X-Ray No, 80 at RHC, Allah Abad there was radiological fracture of left ulna with displacement, so injury No, 4 was declared, as Jurh Ghyr Jaifah Munaqila. All injuries were caused by blunt weapon and the duration of injuries was within 24 hours (fresh).
' On the same day, he medically examined Mumtaz Ahmed s/o Ghulam Sarwar, injured PW and observed the following injuries:---
(1) A swelling area about 6.7 C.M.
5.3 C.M. On top of left half of head.
(2) Swelling about 5.5 C.M. X 5.1 'on nose.
(3) A reddish bruise about 11/2 feet T 3.7 C.M. On back of left shoulder and chest.
(4) A reddish bruise about 10 C.M.
3.7 C.M. On back of left shoulder.
(5) Two reddish bruises about 8 C.M. X 3.2 C.M. On back of right shoulder.
(6) Two reddish bruises about 10 C.M.
3.2 C.M. On outer side of the right arm.
(7) A tender area about 10 C.M. 8 C.M. On outer side of right chest.
' Injuries No 1, 2 & 7 were KUO for X-Rays and injuries No, 3. 4, 5 & 6 were "Jurh Ghyr faifah Dainiya". All injuries were _inflicted with blunt weapon and inflicted within a period 24 hours (fresh).
' On` the same day, he medically examined Riaz Ahmed s/o Mumtaz Ahmed, injured PW and observed the following injuries:
(i) Two reddish bruises about 12 inches X 4 C.M. On back & top of left shoulder.
(2) Multiple reddish bruises each about 7 inches 2 C.M. On back of chest.
(3) A laceration about 6 C.M.
5.5 C.M. On back of left lumbar region.
(4) Three reddish bruises each about 11/2 feet 2.5 C.M. On back of right shoulder and chest and abdomen.
(5) A reddish bruise about 9 C.M. v 4.5 C.M. On outer side, of right shoulder.
(6) A reddish bruise about 7.6 C.M. x 2.7 C.M. On back of right fire-arm.
(7) An abrasion about 1.9 C.M.
1.7 C.M. On back of middle finger of light hand.
(8) An abrasion about 1.9 C.M. x 1.6 C.M. On back of right ring finger.
(9) A. Reddish bruise about 8.7 C.M. x 2. 7 C.M. On front of left wrist & thumb.
(10) A reddish bruise about 6 inches X 3 C.M. On back of left thigh.
' All injuries were Jurh Ghyr Jaifah Damiya except injury Nos. 6, 7 & 8, which were KUO for X-Rays. On 5.7.2009, vide X-Ray No, 85 at R.H. C. Allaha bad dated 5.7.2009, there was no radiological fracture:, so injuries No, 6, 7 & 8 were also Jurh Ghyr Jaifah Damiya. All the injuries were caused by blunt weapon and duration of injuries was within 24 hours (fresh).
' On the same day, he medically examined -Fayyaz Ahmed s/o Mumtaz Ahmed, and observed the following injuries:
(1) Swelling about 5.2 C.M. X 3 C.M. On right half of head.
(2) A swelling about 7.9 C.M.
5.7 C.M. On back of right forearm.
(3) A lacerated wound about I C.M. 1 C.M. Muscle deep on back of left forearm with swelling about 6 C.M. 5 C.M.
(4) A reddish bruise about 8 C.M. 3 C.M. On back of left shoulder.
(5) Two reddish bruises about 10 C.M. 4 C.M. On back of left chest.
(6) Two reddish bruises about 9 C.M. 4 C.M. On back of left thigh.
(7) A swelling 10 C.M. 10 CM. 9 C.M. On left knee joint. , ' Injuries No, I, 2 & 7 were KUO for X-rays and expert opinions. Injuries No, 4, 5 & 6 were Jurh Ghyr Jaifah Damiya and injury No, 3 was KUO for X-Rays and expert opinion. Injuries were inflicted with blunt weapon and inflicted within a period of 24 hours (fresh).
' On 5.7.2009, after expiry of Faiz Ahmed s/o Ghulam Hussain (deceased) he conducted postmortem examination on his dead-body and observed as under: ' ON DISSECTION: i: Vide MLC No, 30/09, Injury No, 1.
' A depressed area soft and swollen about 77 C.M. On right side of head (anterior half). After death and X-Ray film of the head was taken and there was a radiological fracture of parietal bone of right side of head. Vide X-Ray Nos. 76 & 77 dated 5.7.2009 at R.H.C. Allahabad, a communicated dressed fracture of skull on right side of head. Parietal bone (Right) was fractured into pieces and few of them was entered into brain matter on right side.
' Meanings were ruptured on that side and clotted blood was seen in area of about 8 X 7.2 C. M.
Over the upper and outer part of right parietal bone. Rest of the three injuries have already been described in MLC No, 30/09.
' As per opinion of doctor, all the injuries inflicted over the person were caused by blunt weapon and ante-mortem in nature and in this case, injury No, 1 causing compound fracture of skull and due to extradural haematoma culminating into increased intra cerebral pressure resulting into compression of vital centers of brain sufficient to cause death in ordinary course of nature.
Probable time that elapsed between the injuries and death was within about six hours between death and postmortem, about]] hours. "
7. On the other hand, statements of present appellants Muhammad Iqbal, Imtiaz alias Kalu, Riaz Ahmad, Sahib Yar" Shabbir Ahmed, Muhammad Sadiq,--Muhammad Nawaz, Abdul Sattar and Ghulam Mustafa and their co-accused Muhammad Ajmal and Abdul Sattar (since acquitted) were recorded under section 342, Cr.P.C. Who refuted the allegations so levelled against them and have not opted to appear under section 340(2), Cr.PC and also did not produce oral as well as documentary evidence arid iln reply to question "why this case against you and why the PWs deposed against you?" the appellant Ghulam Mustafa replied as under:- -- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' There was a dispute of land between us (accused party) and Mumtaz Ahmed etc. (complainant party). We purchased the disputed land/place of occurrence while the remaining land was obtained by us on lease. There was no land in the name of deceased (Faiz Ahmed). The complainant party is aggressor. Neither I nor my co-accused was present at the time of occurrence at the place of occurrence. There are two "Beraderis" (Malik & Khateek) residing over there and quarrel was happened between them along with my co-accused reached at the place of occurrence after the occurrence. I have no concern whatsoever with the instant case and due to above-said dispute of land, I along with my co-accused falsely involved in this murder case".
' In reply to question "why this case against you and why the PWs. Deposed against you?" the appellant Muhammad Sadiq replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' I was not present at the time of occurrence at the place of occurrence therefore, I have been declared innocent by the police during the course of investigation. I have no concern whatsoever with the instant case and I have been falsely involved in this murder case due to the political rivalry of my co-accused/my relative Sahib Yar with one Nabi Bakhsh and the complainant who belongs to the party of said Nabi Bakhsh, therefore, he has involved me in this case on the asking of said Nabi Bakhsh".
' In reply to question "why this case against you and why the PWs. Deposed against you?" the appellant Riaz Ahmed replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' There Was a dispute of land between us (accused party), and Mumtaz Ahmed etc. (complainant party). We purchased the disputed land/place of occurrence while the remaining land was obtained by us on lease. There was no land in the name of deceased. (Faiz Ahmed). The complainant party is aggressor. Neither I nor my co-accused was present at the time of occurrence at the place of occurrence. There are two "Beraderis" (Malik & Khateek) residing over there and quarrel was happened between them. I alongwith my co-accused reached at the place of occurrence after the occurrence. I have no concern whatsoever with the instant case and due to above-said dispute of land, I alongwith my co-accused falsely involved in this murder case ' In reply to question "why this case against you and why the PWs. Deposed against you?" the appellant Muhammad Iqbal replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also In conspiracy with each other, they, have falsely involved me in this case.
' There was a dispute of land between us (accused party) and 'Mumtaz Ahmed etc. (complainant party). We purchasd the disputed land/place of occurrence while the remaining land was obtained by us on lease. There was no land in the name of deceased (Faiz Ahmed). The complainant party is aggressor. Neither I nor my co-accused was present at the time of occurrence at the place of occurrence. There are two "Beraderis" (Malik & Khateek) residing over there and quarrel was happened between them. I along with my co-accused reached at the place of occurrence after the occurrence. I have no concern whatsoever with the instant case and due to above-said dispute of land, I along with my co-accused falsely involved in this murder case".
' In reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Nawaz replied as under:- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' I was not present at the time of occurrence at the place of occurrence therefore, I have been declared innocent by the police during the course of investigation. I have no concern whatsoever with the instant case and I have been falsely involved in this murder case due to the fact that I gave my land to my co-accused persons Ghulam Mustafa etc on lease, therefore, Nabi Bakhsh Zimindar gave me threat that I will have to face the consequences of giving the land on lease to accused Ghulam Mustafa etc. The complainant, who belongs to the party of said Nabi Bakhsh, therefore, he has involved me in this case on the asking of said Nabi Bakhsh".
' In reply to question "why this case against you and why the PWs. Deposed against you?" the appellant Shaukat Ali replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' I was not present at the time of occurrence at the place of occurrence therefore, I have been declared innocent by the police during the course of investigation. I have no concern whatsoever with the instant case and I have been falsely involved in this murder case due to the fact that I gave my land to my co-accused persons Ghulam Mustafa etc. On lease, therefore, Nabi Bakhsh Zimindar gave me threat that I will have to face the consequences of giving the land on lease to accused Ghulam Mustafa etc. The complainant, who belongs to the party of said Nabi Bakhsh, therefore, he has involved me in this case on the asking of said Nabi Bakhsh."
' In reply to question "why this case against you and why the PWs. Deposed against you?" the appellant Imtiaz alias Kalu replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' There was a dispute of land between us (accused party) and Mumtaz Ahmed etc. (complainant party). We purchased the disputed land/place of occurrence while the remaining land was obtained by us on lease. There was no land in the name of deceased (Faiz Ahmed). The complainant party is aggressor. Neither I nor my co-accused was present at the time of occurrence at the place of occurrence. There are two "Beraderis" (Malik & Khateek) residing over there and quarrel was happened between them. I alongwith my co-accused reached at the place of occurrence after the occurrence. I have no concern whatsoever with the instant case and due to above-said dispute of land, I alongwith my co-accused falsely involved in this murder case."
' In reply to question "why this case against you and why the PWs deposed against you?" the appellant Sahib Yar replied as under:--- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' I was not present at the time of occurrence at the place of occurrence therefore, I have been declared innocent by the police during the course of investigation I have no concern whatsoever with the instant case and I have been falsely involved in this murder case due to my political rivalry with one Nabi Bakhsh and the complainant, who belongs to the party of said Nabi Bakhsh, therefore, he has involved me in this case on the asking of said Nabi Bakhsh".
' In reply to question "why this case against you and why the PWs. Deposed against you?", the appellant Shabbir Ahmed replied as under:- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' I was not present at the time of occurrence at the place of occurrence therefore. I have been declared innocent by the police during the course of investigation. I have no concern whatsoever with the instant case and I have been falsely involved in this murder case due to political rivalry of my co-accused my relative Sahib Yar with one Nabi Bakhsh and the complainant, who belongs to the party of said Nabi Bakhsh, therefore, he has involved me in this case on the asking of said Nabi Bakhsh."
8. After conclusion of the trial, learned Trial Court while acquitting Muhammad Ajmal co-accused of the present appellant, convicted the present appellants Muhammad Iqbal, Imtiaz alias Kalu, ,Riaz Ahmad, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz Abdul Sattar (since acquitted) and Ghulam Mustafa, with above stated sentences through judgment dated 30.8.2012.
Hence these appeals.
9. Learned counsel for the appellants contended that:---
(i) the judgment of the Trial Court dated 30.8.2012 is against law and facts on the file and is liable to be set aside.
(ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs. And the learned Trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the Trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that appeals may be accepted and the judgment of the Trial Court dated 30.8.2012 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned DPC assisted by learned counsel for the complainant has vehemently opposed the appeals and submitted that:---
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeals.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as given by Mumtaz Ahmed complainant PW-1 real bother of Faiz Ahmad deceased has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
13. According to the FIR, occurrence took place on 4.7.2009 at 8:00/09:00 p.m. Whereas FIR was registered on 5.7.2009 at 12:20 p.m. (noon).
14. Deceased of this case is Faiz Ahmad. Injured persons of this case are Mumtaz Ahmad complainant PW-1, Mazhar Abbas PW-3 and Fayyaz (not appeared as witness).
15. " Prosecution has introduced 16 following accused in this case:- (i) Muhammad Noor (ii)
Muhammad Hashim (iii) Munir Ahmad (iv) Abdul Malik (v) Qasim (these five accused are still P.Os.)
(vi) Muhammad Ajmal (this accused has been acquitted by the Trial Court through the impugned judgment and complainant has not filed any appeal against his acquittal) (vii) Abdul Sattar (this accused has been convicted by the Trial Court but has been acquitted by this Court through separate judgment on the basis of compromise) (viii) Muhammad Iqbal (ix) Imtiaz alias Kalu (x)
Riaz Ahmed (xi) Ghulam Mustafa (xii) Sahib Yar (xiii) Shabbir Ahmed (xiv) Muhammad Sadiq (xv)
Muhammad Nawaz (xvi) Shaukat Ali (present appellants).
16. Motive of the occurrence stated by complainant Mumtaz Ahmad injured PW-1 in the FIR is as under:---
17. But while appearing before the Trial 'Court, Mumtaz Ahmed complainant PW-1 did not utter a single word regarding above-mentioned motive rather has omitted the same in his statement before the Trial Court: He further stated in cross-examination as under:--- "The occurrence was happened suddenly"
18. He further stated in cross-examination as under:--- "There is no previous enmity between myself and the accused party consisted on Iqbal, Mustafa and Imtiaz etc."
19. Mushtaq Ahmad PW-2. (eye-witness, nephew of Mumtaz Ahmad complainant PW-1) also did not utter a single word regarding motive of the occurrence in his statement before the Trial Court.
20. Mazhar Abbas PW-3 real son of Mumtaz Ahrnad complainant PW-1 stated in his statement before the Trial Court regarding motive as under:--- "There was our dispute of land with the accused party"
' But did not give any detail of dispute.
21. Considering above, we are of the opinion that complainant Mumtaz Ahmad PW-1 himself omitted the motive stated by him in the FIR reproduced above and occurrence -took place suddenly at the spur of the moment without having previous enmity between the parties as stated by complainant Mumtaz Ahmad PW-1 in his cross-examination reproduced above.
22. Considering this fact, we are of the view that it is a case of free fight entailing individual liability of every accused person.
23. Now we take up the case of every accused/appellant separately one by one.
(1) Muhammad Iqbal appellant:
24. This appellant has not been attributed any injury on the person of Faiz Ahmed deceased. The only allegation against Muhammad Iqbal appellant is that he caused injuries on the person of Fayyaz injured who has not appeared as a witness and in such a situation no accused can be convicted against injuries of that injured.
Imtiaz alias Kalu appellant
25. The allegation against this appellant is that he gave a blow of hatchet with wrong side on the 'nose of Faiz Ahmed deceased.
26. Dr. Muhammad Akram PW-8 observed following injury No, 2 on the nose of Faiz Ahmed deceased attributed to present appellant Imtiaz Ahmed alias Kalu (A swelling about 5.2 cm x 3.4 cm on nose). This injury has been declared `Shajjah-i-Khafifah' attracting offence under section 337-A(i), PPC.
27. It is pertinent to mention here that according to the prosecution story Imtiaz Ahmed alias Kalu gave a hatchet blow to 'Faiz Ahmed deceased which landed on his nose but medical officer did not observe any bruise, abrasion or contusion rather observed only swelling without any wound.
28. Considering this, we are of the considered view that this injury could not be the result of hatchet blow attributed to Imtiaz Ahmed alias Kalu.
29. No other injury is attributed to Imtiaz Ahmed alias Kalu appellant on the person of Faiz Ahmed deceased.
(iii) Riaz Ahmed appellant.
30. No injury has been attributed to Riaz Ahmed appellant on the person of Faiz Ahmed deceased rather only injury has been attributed to present appellant on the person of Fayyaz injured who has pot appeared as a witness.
(iv) Sahib Yar appellant.
31. Only allegation against Sahib Yar appellant is that he gave a blow of hatchet with wrong side which landed on the rib area of Faiz Ahmed deceased.
32. Dr. Muhammad Akram PW-8 observed injury No 3 on the outer side of the right chest of Faiz Ahmed deceased attributed to Sahib Yar appellant which is hereby reproduced:--- "A tender area 10.2 cm x 7.2 cm on outer side of right chest"
33. This injury has been declared `Jurh Damiyah' attracting offence under section 337-F(i), PPC.
34. Considering the nature of injury, we are of the view that this injury could not be the result of hatchet blow. This appellant Sahib Yar has been declared innocent during the investigation and nothing was recovered from him during the investigation.
35. So far as appellants Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Skaukat Ali are concerned, admittedly no injury has been attributed to them on the person of Faiz Ahmed deceased. Mumtaz Ahmed complainant PW-1 while appearing before the Trial Court has, levelled only general and collective allegation and stated as under:--- "Shabbir Ahmed and other accused persons gave beating to my son Mazhar Abbas as well as to myself.
36, Likewise, Mushtaq Ahmed PW-2 while appearing before the Trial Court stated that Shabbir Ahmed appellant caused injury to Mazhar Abbas but did not specify the seat of injury. He further stated that Muhammad Sadiq appellant gave a Soti blow on the head of Mumtaz Ahmed complainant but medical officer did not observe any injury except swelling on the head of Mumtaz Ahmad complainant PW-1.
37. All the injuries on the persons of Mumtaz Ahmed injured PW-1 and Mazhar Abbas injured PW-3 have been declared `Shajjah-i-Khafifah' and `Jurh Damiyah' attracting offences under sections 337-A(i) & 337-F(i), PPC except injury No, 4 on the person of Mhar Abbas which was fracture of left ulna and ha been declared 337-F(vi), PPC.
38. Mazhar Abbas PW-3 stated in his statement before the Trial Court that Shabbir Ahmed appellant .Gave him a Soti blow which landed on his left arm, right shoulder and left leg.
39. Medical officer observed injury No, 4 on the left forearm of Mazhar Abbas PW-3 which is hereby reproduced:- "A swelling about 15 cm x 10.2 cm on left forearm"
' But did not observe ay bruise, abrasion or contusion.
40. Occurrence took place on 4.7.2009 at 08:00/09:00 p.m. Whereas Mazhar Abbas PW73 appeared before the medical officer for his medical examination on 4.7.2009 at 10:39 p.m. With the delay of about two hours but medical officer has observed duration of this injury as fresh which is not in line with the time of occurrence.
41. Although, medical officer PW-3 while appearing before the Trial Court stated that duration of this injury is about twenty-four hours which is not acceptable being dishonest improvement in this regard because we have perused MLR Ex.PW and found duration of injury has not been mentioned twenty-four hours rather specifically duration of injury is mentioned i.e, fresh. Even otherwise, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali appellants have been declared innocent during the investigation and nothing was recovered from them during the interrogation. Reliance is placed on case titled Khalid Mehmood and others v. The State (2011 SCM R 664) in which Hon'ble Supreme Court of Pakistan has observed at page 669 as under:--- "Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been affected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarUing participant of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad PWs qua appellant Abid Hussain is not credible and trustworthy. The following observations were made by this Court in Ayub Masih v. The State (PLD 2002 SC 1048):--- "It is hereby necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the court in convicting the accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reading a fitful decision in a case.
It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.
' In view of the above discussion, Criminal Appeal No 304 of 2009 qua Khalid Mehmobd and Zahid alias Javed Iqbal appellants, is dismissed and conviction and sentences awarded to them are maintained and upheld. However, the appeal to the extent of Abid Hussain appellant is allowed and conviction and sentence awarded to him is set aside. He shall be released forthwith if not required in any other case."
42. In view of the above discussion, we are of the view that case of the prosecution to the extent of Muhammad Iqbal, Imtiaz Ahmed alias Kalu, Riaz Ahmed, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali appellants is not free from doubts and for giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then the accused would be entitled to its benefit not as a matter of grace or concession but of right. Reliance is placed on case titled Muhammad Akram v... The State (2009 SCM R 230) in which Hon'ble Supreme Court of Pakistan has observed at page 236 as under:---- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt, not as a matter of grace and concession but as a matter of right".
43. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants Muhammad Iqbal, Imtiaz Ahmed alias Kalu, Riaz Ahmed. Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali to the hilt. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants Muhammad Iqbal, Imtiaz Ahmed alias Kalu, Riaz Ahmed, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali. The Criminal Appeal No, 281 of 2012 to the extent of Muhammad Sadiq", Riaz Ahmed and Muhammad lqbal appellants, Criminal Appeal No, 303 of 2012 filed by Muhammad Nawaz and Shaukat Ali appellants, Criminal Appeal No, 320 of 2012 filed by Imtiaz alias Kalu, Criminal Appeal No, 321 of 2012 filed by Sahib Yar appellant and Criminal Appeal No, 367 of 2012 filed by Shabbir Ahmed aniellant are accepted and convictions and sentences awarded by the learned Trial Court through judgment dated 30.8.2012 are set aside and they are ordered to be acquitted of the charge in case FIR No, 549, dated 5.7.2009 under sections 302, 324, 452, 148/149, 337-F(v),, 337-F(vi), PPC police station, Liaquatpur District Rahimyar Khan. Appellants Muhammad Iqbal, Imtiaz Ahmed alias Kalu, Riaz Ahmed, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali are present on bail. Their sureties stand discharged.
44. Adverting to the case of Ghulam Mustafa appellant, although we have acquitted above- mentioned appellants by disbelieving the evidence of Mumtaz Ahmed complainant PW1, Mushtaq Ahmed PW-2 and Mazhar Abbas PW-3 but it is settled by now that the maxim falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the Court to sift the grain from the chaff. Reliance is placed on case Elahi Bakhsh v. Rabnawaz and another (2002 SCM R 1842) in vhich Hon'ble Supreme Court of Pakistan has observed at page 1847 as under:- "We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitioner) could not have been convicted but it has been ignored while raising the said contention that the case of acquitted accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner.
In such an eventuality the credibility of Ellahi Bukhsh PW-7 and Abdur Razzaq PW-10 could not be said to 'have been shattered due to the said acquittal. It is well-settled by now that the maxim falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the Court, to sift the grain from the chaff. In this regard reference can be made to Khairu v. State (1981 SCM R 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition' for Leave to Appeal (108/2001) being devoid of merit is dismissed".
45 Mumtaz Ahmed PW-1, Mushtaq Ahmed PW-2 and Mazhar Abbas PW-3 (eye-witnesses) have stated in their statements before the Trial Court that Ghulam Mustafa appellant gave a Soti blow to Faiz Ahmed deceased which landed on his head. They were cross-e5camined at length but their evidence could not be shake' n during the process of cross-examination to the extent of Ghulam Mustafa present appellant. They corroborated each other on all material aspects of the case to the extent of present appellant Ghulam Mustafa. Their evidence is straight forward, trustworthy and confidence inspiring to the extent of Ghulam Mustafa present appellant.
' They have established their presence at the place of occurrence at the time of occurrence with their stated reasons.
46. Medical evidence has been furnished by Dr. Muhammad Akram PW-8 who has observed injury No, 1 on the head of Faiz Ahmed deceased attributed to Ghulam Mustafa present appellant which injury is hereby reproduced:-- "A lacerated wound about 5.1 m x 0.3 cm bone not exposed but fresh blood was oozing on right half of head."
47. He further observed that injury No, 1 was the cause of death. Probable time that elapsed between injury and death was within six hours whereas between death and post-mortem was about 11 hours. Therefore, medical evidence has fully supported the ocular account furnished by above-mentioned three eye-witnesses to the extent of Ghulam Mustafa appellant.
48. Alleged recovery of Soti P-1 on pointing out of the present appellant Ghulam Mustafa on 19.2.2009 is not bloodstained and is inconsequential in the present case.
49. Although we have disbelieved mot: - story of the .Prosecution and recovery of Soti P-1 but if this evidence is excluded from consideration, even then, prosecution has proved its case beyond shadow of doubt against Ghulam Mustafa appellant through ocular account furnished by Mumtaz Ahmed PW-1, Mushtaq Ahmed PW-2 and Mazhar Abbas PW-3 _to the extent of present appellant Ghulam Mustafa supported by medical evidence.
50. Adverting to the defence plea of the present appellant Ghulam Mustafa he stated in answer to question "why this case against you and why the PWs deposed against you?" as under:- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' There was a dispute of land between us (accused party) and Mumtaz Ahmed etc. (complainant party). We purchased the disputed land/place of occurrence while the remaining land was obtained by us on lease. There was no land in the name of deceased (Faiz Ahmed). The complainant party is aggressor. Neither I nor my co-accused was present at the time of occurrence at the place of occurrence. There are two "Beraderis" (Malik & Khateek) residing over there and quarrel was happened between them. I alongwith my co-accused reached at the place of occurrence after the occurrence. I have no concern whatsoever with the instant case and due to above-said dispute of land, I alongwith my co-accused falsely involved in this murder case".
He did not appear as a witness under section 340(2) of Cr.P.C. And also did not produce any oral as well as documentary evidence in support of his defence plea. Considering above it is concluded that appellant has failed to prove his defence plea and learned Trial Court has rightly discarded his defence plea with sufficient reasons.
51. Coming to the quantum of sentence, we have disbelieved the motive story of the prosecution in paras 16 to 21 of this judgment and Mumtaz Ahmed complainant PW-1 himself stated in cross- examination that occurrence took place suddenly at the spur of the moment having no previous enmity between the parties. Recovery of Soti P-1 has also been disbelieved. It is a case of single Soti blow and there is no allegation of repetition of Soti blow against Ghulam Mustafa appellant. It is not determinable in this case as to what was the real cause of occurrence and as to what had happened immediately before the occurrence which resulted into present unfortunate incident.
Therefore, in our view death sentence awarded to the appellant Ghulam Mustafa is quite harsh. It is well-recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence, as well. In this regard, we respectfully refer to the case of Meer Muhammad alias Miro v. The State (2009 SCM R 1188) in which Hon'ble Supreme Court of Pakistan has 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."
' Further reliance is placed on case Zafar lqbal and others v. The State (2014 SCM R 1227) in which Hon'ble Supreme Court of Pakistan has observed at pages 1235 & 1238 as under:--- "the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case Trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of investigation in sentences could be found. Although in the ocular account It is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any fire-arm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the' recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed coverting distance and murder Jaffar Hussain's two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither, the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery."
"All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b), PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B, Cr.P.C., this appeal is partially allowed in the above terms".
52. For the foregoing reasons, conviction of present appellant Ghulam Mustafa u/s. 302(b), PPC is maintained but his sentence is altered from death to imprisonment for life. Compensation and sentence in default thereof are also maintained. Conviction and sentence of the present appellant on other head i.e, under section 452 is maintained. As the appellants Muhammad lqbal, Imtiaz Ahmed alias Kalu, Riaz Ahmed, Sahib Yar, Shabbir Ahmed, Muhammad Sadiq, Muhammad Nawaz and Shaukat Ali have been acquitted under sections 148, 324, 337-F(v), 337-F(vi) read with section 149, PPC, hence conviction and sentences of the present appellant Ghularn Mustafa under sections 148, 324, 337-F(v), 337-F(vi) read with section 149, PPC are set aside. All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. Is also given to the appellant Ghulam Mustafa.
Consequently, with the above-said modification in the sentences of Ghulam Mustafa present appellant, Criminal Appeal No, 281 of 2012 filed by Ghulam Mustafa etc. To his extent is dismissed.
M.R. No, 47 of 2012 is answered in NEGATIVE and death sentence of Ghulam Mustafa present appellant is NOT CONFIRMED.