MUHAMMAD IQBAL MAHAR, J.---By this single judgment, we propose to decide above cited criminal appeal and criminal revision application arising out of single judgment dated 28.2.2014 passed by learned Additional Sessions Judge Tando Muhammad Khan in Sessions Case No,409/2010, emanating from Crime No,72 of 2010 of P.S. Tando Muhammad Khan for offences punishable under sections 302, 324, 337-A(i), 337-F(ii), 337-L(2), 504, 147, 148, 149, P.P.C., whereby appellants have been convicted and sentenced to suffer (1) 2-years R.I and fine Rs,10,000/- for offence punishable under section 148, P.P.C., in default of payment, shall suffer S.I. For one month,
(2) life imprisonment with fine of Rs,100,000/- to be paid to legal heirs of deceased Imdad Ali for offence punishable under section 302(b), P.P.C. And in default to suffer S.I for one year more, (3) 5- years with fine of Rs,50,000/, in default S.I for six months more for offence purfishable under section 324, P.P.C., (4) 01-year R.I and arsh of Rs,10,000/- payable to all injured for offence under section 337-A(ii), P.P.C., (5) 06-months R.I and Daman of Rs,10,000/- payable to all injured for offence punishable under section 337-F(i) and (6) 01-year R.1 and Daman of Rs,10,000/- payable to all injured for offence punishable under section 337-L(2), P.P.C. With benefit of section 382-B, Cr.P.C., whereas the complainant/ applicant has preferred the Criminal Revision Application for enhancement of sentence to the appellants.
2. The related facts of prosecution case are that on 13.4.2010 complainant along with his brothers namely Imdad Ali and Muhib Ali, nephew Dost Ali, uncle Ali, cousin Hidayat Ali and Turab Ali was present in the house. At about 10.30 pm they heard fire shot reports and came out of the house and in the light of electricity they saw appellants/acbused namely (1) Ghulam Nabi Rind having DBBL gun in his hands, Ibrahim Rind having pistol in his hands, Pir Dino Rind, (4) Manik. Rind, (5) Deen Muhammad Rind, (6) Gul Hassan Rind, (7) Gulsher Rind, (8) Lal Muhammad Rind, all having hatchets in their hands. It is alleged that on seeing the complainant party appellants/accused Pir Dino instigated other appellants/accused to kill them. On his instigation appellants/accused Ghulam Nabi and Ibrahim made straight fires from their respective weapons upon complainant party with intention to kill them, who complainant fell down on the ground and fires hit to his brother Muhib Ali, cousin Hidayat Ali and uncle Ali. Appellants/ accused Pir Dino and Manik caused hatchet blows to Imdad Ali. In the mean time a mob of people gathered over there and appellants/accused while hurling abuses went away along with their weapons. Thereafter complainant brought the injured persons at police station, obtained letter for treatment and went to Civil Hospital, Tando Muhammad Khan but the Doctor referred the injured to LMCH Hyderabad.
After getting the injured admitted in hospital, the complainant appeared at the police station where he lodged the FIR on 14.4.2010 at 1745 hours. Motive alleged in FIR is dispute between the parties over using the street. After completion of investigation and other formalities, the case was challaned.
3: The charge against the appellants/accused was framed; they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined complainant Nawab Ali Ex.18, he produced FIR at Ex.18/A (2) Muhib Ali Ex.19, he produced his statement under section 164, Cr.P.C, (3) Dost Ali Ex.20,
(2) Ali Ex.21, he produced his statement under section 164, Cr.P.C, (5) Hidayat Ali Ex.22, (6) Turab Ali Ex.23, (7) Dr. Pehlaj Mal Ex.25, he produced police letters at Ex.25/A & 25/B, provisional and final certificates of injured Ali Khan at Ex.25/C & 25/D, injured Muhib Ali at Ex.25/E & 25/F, injured Turab Ali at Ex.25/G & 25/H, injured Dost Ali at Ex.25/I, 25/J; Hidayat Ali Ex.25/K and 25/L, (8) Dr. Javed Iqbal Ex.26, he produced postmortem report and police letter at Ex.26/A & 26/B, (9) Ali Bukhsho Ex.27, he produced mashirnama of place of incident Ex.27/A, mashirnama of injuries at Ex.27/B & 27/C mashirnama of blood stained clothes of deceased Imdad Ali at Ex.27/D mashimamas of arrest of appellants/accused Ibrahim, Raz Muhammad alias Lal Muhammad, Manik and Den Muhammad at Ex.27/E, 27/F & 27/G, mashirnama of recovery of hatchet at Ex.27/H, (10) Abbas Ali at Ex.28, he produced memo of Lash and Danistnama at Ex.28/A & 28/B, (11) AS! Sajidullah Ghambhir Ex.29, (12)
ASI Aurangzeb Ex.30, he produced receipt of handing over dead body to Abbas Ali, at Ex.30/A, (13)
Tapedar Sikandar Ali Ex.31, he produced map at Ex.31/A, (14) Ghulam Muhammad Ex.33, he produced chemical examiner's report at Ex.33/A. Thereafter the learned ADPP closed the prosecution side vide statement as Ex.34. The statements of appellants/accused were recorded under section 342, Cr.P.C. Whereby they denied the allegation and claimed their innocence. They did not examine themselves on oath under section 340(2), Cr.P.C., however, appellants examined their defense witnesses namely Piyaro Rind, Nihal Khan Rind and Shabbir Rind. After hearing the counsel for the parties and considering the above material available on record, the learned trial court passed impugned judgment.
4. Learned counsel for the appellants/ accused, inter-alia, contended that there is unexplained delay of 19-hours in lodging the FIR, which is not explained; that although the complainant went to police station and got a letter for treatment of the injured but he did not lodge the FIR, hence false implication of appellants/accused after consultation cannot be ruled out. He further contended that many villagers gathered at place of incident but no one was examined or cited as a withess.
He also contended that there is counter version of the same incident showing two appellants Ibrahim and Gulsher sustaining injuries but this fact has not been mentioned by the prosecution; that the medical evidence is inconsistent with the ocular evidence which belies the version of the incident put forward by the complainant party. Learned counsel also contended that apart from that, X-Ray reports have not been produced in the trial court and Radiologist has not been examined to support the injuries as alleged.
' He next contended that place of incident was doubtful and in this regard evidence of Tapedar identifying the place of incident is not helpful to the prosecution as his evidence is hearsay which has no penitentiary value. He also submitted that memo of wardat does not support the version of complainant party as neither blood-stained earth nor any empty was recovered, he explained it by stating that it was the case of prosecution that appellants/ accused Pir Dino and Manik caused hatchet blows to deceased Imdad who fell down on the ground and appellants/accused Ibrahim and Ghulam Nabi fired 10/12 shots but neither blood stained earth nor empties were recovered from the wardat. Learned counsel also submitted that deceased was taken to hospital in injured Condition and he expired after two days yet his statement was not recorded by the Investigating Officer; that no crime weapon was recovered from the possession of appellants except Raz Muhammad alias Lal Muhammad which was recovered after 4-days of his arrest, therefore, recovery is doubtful; that the impugned judgment is in violation of section 367, Cr.P.C. As the learned judge has neither discussed the evidence, nor statements of appellants/accused or evidence of DWs. According to learned counsel charge was defective as it did not show as to exactly what offences the appellants are charged with; that entire incriminating evidence was not confronted to the appellants/accused in the statements under section 342, Cr.P.C. As such the appellants could not properly defend their case. He submitted that there were material contradictions in the evidence in respect of manner of incident, the place of the incident, the role assigned to appellants/ accused and the descriptions of weapons, but the learned trial judge did not consider the same and convicted the appellants. He lastly stated that prosecution has failed to prove its case beyond reasonable doubt, hence the appellants be acquitted. In support of his arguments learned counsel relied upon 2003 YLR 166, 2011 SCM R 910, 1972 SCM R 144, 2015 SCM R 840, 2005 M LD 1451, 2011 SCM R 323, 1997 M LD 997, 2011 SCM R 45 and 2014 PCr.LJ 299.
5. The learned counsel for complainant while refuting the said contentions argued that delay in FIR is properly explained, the complainant took the injured to police station first, got the letter for treatment as there were serious injuries to the person of the injured who instantly needed treatment, went to the local hospital and then to LUMS Hyderabad, and thereafter appeared at police station where he lodged the FIR. All witnesses are inmates of the house hence they are natural witnesses who have fully supported the case of prosecution. He further argued that two medical officers were examined by prosecution in the trial and they have fully supported the prosecution version. He submitted that the recovery could not be made from place of incident for the reason that the FIR was lodged after 23 hours of the incident, immediately after the incident many people had gathered over there as such empties being misplaced and blood-stained earth got vanished was natural; that the street where the incident took place was common and it was being used by other villagers as well therefore non-recovery of the empties or blood stained earth therefrom could not be considered as fatal to the prosecution case. He further added that all the appellants/ accused acted in prosecution of their common object therefore they have been rightly convicted by the learned trial court. So far appellants/accused Pir Dino and Manik are concerned, he argued they have played active role and with preconcert caused hatchet injuries to deceased Imdad Ali therefore he prayed that their sentence may be enhanced from imprisonment of life to death. In support of his contentions he relied upon 1997 SCM R 871, 1998 PCr.LJ 1730, 1997 SCM R 1296, 2008 SCM R 266, 1997 PCr.LJ 1757, 1994 SCM R 1, 1994 PCr.LJ 288 and 1998 PCr.LJ 1901.
6. Learned A.P.G supported the impugned Judgment but did not support the plea of enhancement of sentence to appellants/ accused Pir Dino and Manik.
7. We have heard the learned counsel for the parties, learned A.P.G. And have gone through the file and case laws cited at the Bar. From the perusal of file it appears that the complainant party has involved as many as 8(eight) accused in the commission of the offence. Appellants Pir Dino and Manik have been assigned specific role of murder of deceased by causing hatchet blows to him.
The allegations against appellants/accused Ibrahim and Ghulam Nabi are that they fired at complainant party and fires hit Muhib Ali, Hidayat Ali and Ali, however, as per medical evidence injuries sustained by PW Muhib Ali and Ali are said to have been caused to them by hard and blunt substance, whereas PW Hidayat Ali sustained two injuries from hard and blunt substance and only one injury was caused to him by fire arm but said injury is not specifically attributed to any of them.
In evidence PW Hidayat Ali states that "I sustained fire shot injury at my right elbow". He also states that "The shot fired by appellants/ accused did not hit me". His evidence therefore, does not inspire confidence to the extent of identifying the exact appellant who caused him such injuries. It has also come in evidence that both parties are living in front of each other and only there is street in between their houses which was bone of contention. Evidence further shows that appellants/accused Raz Muhammad alias Lal Muhammad, Ghulam Nabi, Gulsher, Deen Muhammad and Gul Hassan were armed with hatchets but did not use its sharp side and caused injuries to prosecution witnesses with back side. It would therefore appear that they had no intention to take life of any of the PWs or attempt to commit Qatl-i-Amad and further more they neither caused any injury to deceased nor in any way facilitated the co-accused namely Pir Dino and Manik in murdering the deceased; so the arguments of learned counsel for the complainant that all the appellants acted in furtherance of their common object with premeditation does not stand proved. Keeping in view the above discussion, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt that appellants Ibrahim, Raz Muhammad alias Lal Muhammad, Ghulam Nabi, Gulsher, Deen Muhammad and Gul Hassan are guilty of sharing common intention with appellants Pir Dino and Manik in causing murder of the deceased. Insofar as their role of causing injuries to P.Ws. Is concerned, it is obvious that none of the injuries is specifically attributed to any of them; and in absence of confidence inspiring evidence in this regard, they cannot be convicted for offence under section 324, P.P.C. Or the offence of injuries.
8. Now we are reverting to the case of appellants/accused Pir Dino and Manik. Case against them is that they caused hatchet blows to deceased Imdad who died after two days. All PWs are unanimous in their evidence that appellants/accused Pir Dino and Manik caused hatchet blows to Imdad which hit him and he fell down. The said version of complainant party is also corroborated by two medical officers, the first namely Dr. Pehlaj Mal who examined Imdad Ali when he was injured and the other is Dr. Javed Iqbal who conducted his postmortem, according to which death of deceased Imdad Ali was un-natural and he died due to injuries available on his head that were caused by sharp edged weapon, so it can safely be held that the medical evidence is completely in consonance with the ocular account regarding the injuries on the person of deceased Imdad Ali.
The learned defense counsel argued that charge is defective because it does not show as to under what clauses (a, b and c) of section 302, P.P.C. It is framed. We cannot accept such view, for the reason that section 302, P.P.C. Is a penal provision for the offence of Qatl-i-Amd, defined under section 300, P.P.C. Clauses (a), (b), & (c) of section 302, P.P.C. Prescribe punishment of Qatl-i-Amd, either as death under "Qisas" (a); death or imprisonment for life as "Tazir" (b); and punishment of either description for a term which may extend to Twenty-Five years (c). These punishments are subject to different categories of proof which can come only in the evidence. Therefore at the charge stage the court cannot predetermine the kind of proof, the prosecution is going to bring on record, to mention exactly that the offence is committed either under clause (a), (b), or (c). So it is obvious that the question as to whether the offence of Qatl-i-Amd, shall be punished under section 302(a) or (b) or (c), P.P.C. Can only be- determined after recording the evidence and not otherwise.
Moreso learned counsel was not able to show as to how non-mentioning of clauses to section 302, P.P.C. In the charge has caused any prejudice to the appellants.
'Learned defense counsel also argued that statements under section 342, Cr.P.C. Are stereotype and have not been properly recorded, it may be observed that object of statement under section 342, Cr.P.C. Is to confront the accused with the incriminating evidence brought against him in the trial and seek his explanation. We have seen the statements, the trial court has put all relevant questions in respect of incriminating evidence to the appellants; some typographical mistakes are there, but they in no way appear to have prejudiced against the appellants or in any way misled them into putting up their explanation to the incriminating evidence. It is not unnecessary to state here that the appellants have not been able to show, how such minor discrepancies, which have no nexus with the salient features of the case and oral account of the incident viz-a-viz the role of appellants namely Pir Dino and Manik who have murdered the deceased have made their case doubtful. We are of the firm view that prosecution has been able to establish fully the case against the appellants Pir Dino and Manik for murdering the deceased.
9. So for revision application for enhancement of the sentence from imprisonment of life to death to the appellants is concerned, we are of the view it would not be justifiable in the given facts and circumstances as there appears no strong motive alleged by the prosecution, the incident appears to be result of a free fight between the parties without any pre-concert on the part of the appellants. Appellant/accused Manik is aged about 70 years. There are two head-injuries on the person of deceased which one proved to be fatal or by whom it was caused are the unanswered questions, which can be construed as mitigating circumstances, we cannot over look them while deciding the quantum of sentence. The Honourable Supreme Court in a case of Muhammad Riaz and others v. The State' reported in 2007 SCM R 1413 while considering the penalty for an act of commission of Qatl-i-Amd has observed that:-- "No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death but since life imprisonment also being a legal sentence for such offence must be kept in mind whenever the fact and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. "
10. In view of what has been discussed above we allow the criminal appeal to the extent of appellants namely Ibrahim son of Pir Dino, Raz Muhammad alias Lal Muhammad son of Soonharo, Ghulam Nabi son of Pir Dino, Gul Sher son of Sain Dad, Deen Muhammad son of Bahadur Khan and Gul Hassan son of Bahadur Khan and acquit them from the charge by extending them benefit of doubt, they shall be released forthwith if they are no more required in any other custody case/crime and dismiss the appeal of appellants Pir Dino son of Ibrahim and Manik son of Bahadur Khan and maintain the sentence awarded to them by the learned trial court. We also dismiss the Criminal Revision Application No,D-80 of 2014 considering it meritless.
11. The appeal filed by appellants/ accused and revision filed by complainant/ applicant are disposed of in the above terms.