SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Mushtaq alias Bhola son of Nazeer Masih, Christian by faith, resident of Ghaine-ke, Tehsil and District Kasur, Ishfaq alias Shaka son of Nazeer Masih Christian by faith, resident of Ghaine-ke, Tehsil and District Kasur (Cr1. Appeal No, 2494/2012), Sohail Masih son of Nazeer Masih, Christian by faith, resident of Ghaine-ke, Tehsil and District Kasur (Crl.
Appeal No, 1351/2012), appellants along with Rehmat Masih and Imran (convicts) were involved in case FIR No,477/2009, dated 25.06.2009, offence under sections 302, 324, 337-A (ii), 337-F(i), 452, 148, 149, P.P.C., registered with Police Station Saddar Raiwind, Kasur. They were tried by learned Additional Sessions, Kasur, under the aforementioned offences. The learned trial court after completion of the trial, convicted and sentenced the appellants vide judgment dated 10.05.2012 in the following terms:- S. #Name of the appellant/convictSentence/Conviction (1)Mushtaq alias BholaUndersSection 302(14, P.P.C.. Sentenced to death as Ta'zir with direction to pay Rs,1,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr. P.C. To be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. For six months.
(2)Ishfaq alias ShakaUnder section 302(6), P.P.C., sentenced to death as Ta'zir with direction to pay Rs,1,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr.P.C. To be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. For six months.
(3)Sohail Masih Under section 337-A(ii), P.P.C., sentenced to pay Arsh equivalent to 5% of diyat.
2. Mushtaq alias Bhola and Ishfaq alias Shaka Masih, appellants have assailed their conviction and sentence through filing Crl. Appeal No,249-J/2012 while Sohail Masih, appellant, has filed Crl. Appeal No,1351/2012. The learned trial court forwarded Murder Reference No,224/2012 for confirmation of sentence of death inflicted upon Mushtaq alias Bhola and Ishfaq alias Shaka/convicts in terms of section 374, Cr.P.C. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PE/1) lodged on the complaint (Exh.PE) of George Masih son of Mandha Masih, Christian by faith, resident of Ghaine-ke (PW-5) is that the complainant earns his livelihood through labour. On 24.06.2009 at about 7:30 p.m. The complainant along with his brother Aslam, Imran son of Sohail were going to their house from the Dera of Ch. Muhammad Ali Nazim when accused (1) Bhola son of Nazeer armed with pump action, (2) Rehmat son of Nando, armed with gun double barrel, (3) Shaka son of Nazeer, armed with pump action, (4)
Sohail son of Nazeer armed with hatchet,
(5) Imran son of Rehmat, armed with hatchet, all residents of the same village, forcibly entered the house of Aslam, brother of the complainant. At that time no body was present in the house. The accused resorted to firing with their firearms and raised lalkara to kill Aslam. Thereafter, the accused went towards the Billiard Shop owned by Sohail son of Yaqoob bhateja of the complainant, who was present at his shop. Accused Imran inflicted a hatchet blow upon Sohail, which landed at his right hand. Sohail son of Nazeer inflicted a hatchet blow at the back side of head of Sohail, who raised hue and cry, which attracted Mustafa and Sabir sons of the complainant and Hameed son of Basheer. Bhola accused made a fire shot with his pump action, which landed at right side of abdomen of Mustafa. Rehmat son of Nando, one after the other, made two fire shots with his double barrel gun and the pellets landed at face, chest, abdomen and right buttock of Sabir. Bhola son of Nazeer, one after the other, made two fire shots and the pallets hit Suneel son of Mustafa at his right ear and on the right side of neck of Mujahid son of Rafique Masih, who were passing by. In the meanwhile the complainant along with Aslam, Imran son of Samuel Masih and other inhabitants of the locality reached the place of occurrence and beseeched the accused.
' Motive behind the occurrence as disclosed in the crime report was that in the morning of the day of occurrence a scuffle had taken place between the children of Aslam and children of Nazeer followed by fight between the women folk of both sides. Due to this grudge the accused Bhola etc. With an intent to kill sons, bhateja and grand-son of the complainant had fired upon them. The injured were evacuated to Civil Hospital, Kot Radha Kishan, however, due to precarious condition Sabir and Mustafa, were referred to Jinnah Hospital, Lahore.
4. On receipt of information regarding the occurrence, Muhammad Jahangir, S.I. (PW-20) reached the place of occurrence where the complainant made his statement (Exh.PE) and after endorsing police karvai the same was transmitted to Police Station through Abdul Mannan C/93 for registration of formal FIR. Thereafter, the Investigating Officer collected blood stained earth near the shop of Sohail Masih vide recovery memo Exh.PA. He also prepared rough site plan of the house of Aslam Masih (Exh.PT) and rough site plan of the shop of Sohail Masih (Exh.PU). From the place of occurrence, the Investigating Officer collected two crime empties of gun .12-bore vide recovery memo Exh.PB. The Investigating Officer visited Jinnah Hospital where Sabir and Mustafa injured were admitted, however, the application moved by the Investigating Officer seeking permission from the doctor for recording statements of the injured was declined. The Investigating Officer returned to police station where complainant produced bloodstained clothes shalwar, qameez and bunyan which were secured vide recovery Memo Exh.PC. The Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. On 26.06.2009, the Investigating Officer was informed about the death of Mustafa, hence he incorporated provisions of section 302, P.P.C. He along with other police officials visited Jinnah Hospital, Lahore where he prepared inquest report (Exh.PV) and dispatched the dead body to mortuary along with police papers under the escort of Almas 1284/C (PW-10). After postmortem examination last worn clothes of the deceased shalwar and qameez were produced before the Investigating Officer, which he secured vide recovery memo Exh.PD. On 27.06.2009 upon the direction of the Investigating Officer and pointing out of the PWs, Muhammad Sadiq Qamar, Draftsman (PW-13) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PJ, Exh.PJ/1, Exh.PK and Exh.PK/1) which was made part of the file. On 08.07.2009, the Investigating Officer arrested Ishfaq alias Shaka, appellant and obtained his physical remand, however, the Investigating Officer proceeded on departmental course and the investigation was entrusted to Hakim Ali, Inspector (PW-18). During the course of interrogation in pursuance of disclosure on 22.07.2009, Ishfaq alias Shaka appellant led to the recovery of pump action (P-9) along with five live cartridges (P-9/1-5) and two empties (P/1-A and 1-B), which were taken into possession vide recovery memo Exh.PS. On his return, Muhammad Jahangir, S.I. (PW-20) took over the investigation and on 02.08.2009, he arrested Mushtaq alias Bhola appellant. During the course of interrogation in pursuance of disclosure on 09.08.2009, Mushtag alias Bitola appellant led to the recovery of pump action (P-7), which was taken into possession vide recovery memo Exh.PF. He also prepared rough site plan of the place of recovery (Exh.PX). Subsequently the investigation was again entrusted to Hakim, Ali, Inspector (PW-18), who on 14.08.2009 arrested Sohail appellant.
During the course of interrogation in pursuance of disclosure Sohail appellant led to the recovery of hatchet (P-8), which was taken into possession vide recovery memo Exh.PG.
5. After conducting the investigation, the Investigating Officer submitted report unifier section 173, Cr.P.C. While placing the names of the appellants in column No,3. On 16.05.2011, the learned Additional Sessions Judge formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced twenty prosecution witnesses.
6. Occular account in this case consists of the statements of George Masih (PW-5), Suneel Masih (PW-1), Sabir Masih (PW-6), Imran Masih (PW-7) and Sohail Masih (PW-9). Master Sadiq Qamar, Draftsman (PW-13) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Hakim Alt, Inspector (PW-18) and Muhammad Jahangir, S.I. (PW-20).
On 24.06.2009, Dr. Masood Aziz (PW-8) had medically examined Mustafa son of George, injured and observed following injuries on his person:- "Multiple penetrating wounds with contused swelling on the right half of the abdomen. Lower abdomen and right side of right thigh and front of thigh."
On the same day the doctor also medically examined Sohail Masih injured and observed following injuries on his person:- "1. Lacerated wound 3 x 1/2 cm x bone exposed on the back of head.
2. Lacerated wound 4 x 1/3 x. Skin deep on the left palm.
3. Abrasion 3 x 1/2 cm on the outer surface of left upper arm.
4. Abrasion 1 x 1/3 cm on the tip of right ring finger."
PW-8 had also medically examined Sabar son of George injured and observed following injuries on his person:- "1. Multiple penetrating wounds with contused swelling on the upper chest, neck and left cheek.
2. There was bleeding from oral cavity."
On the same day Dr. Masood Aziz (PW-8) medically examined Hameed Masih injured and observed as under:- "1. Contused swelling 6 x 4 cm on the back of left palm at the base of index and middle finger."
On 02.07.2009 Dr. Ejaz Hussain Sindhu, Medical Officer (PW-17) had medically examined Suneel injured and observed following injury on his person:- "1. A circular healed wound 1/4 x 1/4 cm on the left side of head 3 cm from the left ear. He was advised the X-Ray."
After death of Mustafa, on 26.06.2009 Dr. Zulfiqar Ahmed (PW-16) had conducted postmortem examination on the dead body of deceased and observed following injuries on his person:- "1. Multiple millet size pallets wounds in area 34 x 30 cm on right side of lower abdomen and upper part of right thigh on front.
2. An operation stitched wound 19 cm long on front of abdomen on mid line."
After postmortem examination the doctor rendered the following opinion:- "In the light of MLR, surgical notes and post mortem findings, it was declared that the deceased died due to excessive haemorrhage and shock caused by injury to small intestines, large intestines, liver, right kidney and peritoneum under No,1. Injury No,1 was ante mortem in nature and caused by fire arm. Probable time that elapsed between injury and death was ,declared 33 hours approximately according to documents and that between death and post mortem was declared nine hours approximately according to documents."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 15.09.2011 Aslam Masih, PW, was given up having proceeded abroad while Abdul Rehman, Hameed Masih and Salamat Masih, PWs, were given up being won over. Vide statement recorded on 15.11.2011, learned ADPP gave up Muhammad Tufail 511/C, PW, being unnecessary. On 09.02.2012, learned ADPP tendered in evidence the reports of Forensic Science Laboratory (Exh.PCC and Exh.PDD), report of Serologist (Exh.PEE) and operation notes of Mustafa George (Exh.PFF) and closed the prosecution evidence.
8. The appellants were examined under section 342, Cr.P.C.; wherein they refuted the accusations levelled against them in the prosecution evidence. In defence, Mst. Sharifan Bibi (DW-1), Faqeer Masih (DW-2) and Salamat Masih (DW-3) made their statements.
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellants in the above stated terms.
10. Today at the time of arguments, it was pointed out by learned Law Officer that although the learned trial court had framed charge against Mushtaq alias Bhola, Ishfaq alias Shaka, Sohail Masih, appellants and Rehmat Masih and Imran Masih convicts under sections 302, 324, 337-A(ii), 337-F(i), 452, 148, 149, P.P.C., for the murder of Mustafa deceased and causing injures to Sohail Masih, Sabir Masih, Hameed Masih, Mujahid Masih and Suneel Masih, however, while handing down the judgment the learned trial court had neither acquitted Sohail Masih, Rehmat Masih and Imran Masih under the provisions of section 302, P.P.C., nor recorded any conviction against them particularly when Mushtaq alias Bhola and Ishfaq alias Shaka, appellants were convicted under section 302(b), P.P.C., and sentenced to death, therefore, the conviction and sentence passed by the learned trial court being against the canons recognized for safe administration of criminal justice, the case is liable to be remanded to the learned trial court for re-writing the judgment. The question of law raised by learned Law Officer has been conceded by the learned counsel representing the appellants.
11. Perusal of record available on file reveals that the prosecution is consistent from day one that Mushtaq alias Bhola, Ishfaq alias Shaka, Sohail Masih, appellants along with Rehmat Masih and Imran Masih, co-convicts, by forming an unlawful assembly in furtherance of their common object, had inflicted injuries on the person of Mustafa (deceased), as well as, Sohail Masih, Sabir Masih, Hameed Masih, Mujahid Masih and Suneel Masih, injured. Moreover, the learned trial court vide order dated 16.05.2011 had framed the following charges:- "FIRSTLY: That you all on 24.06.2009 at about 7:30 p.m. At Ghanekey within the local limits of P.S. Raiwind Saddar, Kasur while armed with deadly weapons formed an unlawful assembly with common object of rioting and thus committed an offence punishable under section 148, P.P.C.
Which is within the cognizance of this Court.
SECONDLY: That you all on the same day, time and place in prosecution of common object of unlawful assembly formed by you, killed Mustafa by firing and thus committed his Qatal-i-amd an offence punishable under sections 302/149, P.P.C. Which is within the cognizance of this court.
THIRDLY: That you all on the same day, time and place in prosecution of common object of the unlawful assembly caused injuries to Sohail, Sabir and Mujahid and thus committed an offence punishable under sections 324/149, P.P.C., which is within the cognizance of this Court."
However, nevertheless the learned trial court had believed the presence of Sohail Masih, appellant armed with hatchet, Rehmat Masih armed with gun double barrel and Imran Masih armed with hatchet at the place of occurrence at the relevant time, being part of the unlawful assembly, who along with other co-accused had participated during the occurrence in which Mustafa was done to death while Sohail Masih, Sabir Masih, Hameed Masih, Mujahid Masih and Suneel Masih had received injuries, but while passing the impugned judgment as far as murder of Mustafa deceased is concerned, the learned trial court has not given any findings qua the applicability of provisions of sections 302/149, P.P.C., to the extent of Sohail Masih, appellant, Rehmat Masih and Imran Masih/convicts although the same was part of the charge framed by the learned trial court.
Similarly no findings were given by the learned trial court under the provisions of section 337-A(ii), P.P.C., to the extent of Mushtaq alias Bhola and Ishfaq alias Shaka, appellants. This Court is I conscious of the fact that this aspect can be taken care of by this Court while deciding the lis but at the same time it is impression of the Court that while giving any finding qua the application of the above sections by this Court, the appellants, may be deprived, of an opportunity of hierarchy of adjudicator, which in other words can prejudice their right of adjudication. Therefore, the impugned judgment passed by the learned trial court being against the judicial acumen, hence is not sustainable in the eyes of law as a consequence whereof judgment dated 10.05.2012, passed by learned Additional Sessions Judge, Kasur, is set aside. Resultantly, Crl Appeal No,249-J/2012 and Crl.
Appeal No,1351/2012 are disposed off and the matter is remanded back to the learned trial court with the direction to re-write the judgment after affording opportunity of hearing to learned counsel for both sides and while taking into consideration all the aspects of the case pertaining to charge framed, strictly in accordance with law and while giving convincing and elaborative reasoning, which satisfy the judicial conscious in the interest of safe administration of criminal justice. It is, however, made clear that till re-writing the judgment, the trial of the case in hand shall be deemed pending before the learned trial court. During this period, the appellants shall be treated as under trial prisoners.
12. Murder Reference No, 224/2012 is answered in negative.
13. Before parting with the judgment we have felt persuaded to direct the learned trial coal to re- write the judgment within a period of one month from the receipt of this judgment and if need be to conduct day-to-day proceedings.
14 Case Remanded.