Through the titled criminal appeal under Section 410, Cr.P.C., appellants Allah Bakhsh, Ijaz Ahmad, Mudassar Hassan, Asif Hussain and Tahir Ahmad have challenged the vires of judgment dated 25.03.2008 passed by the learned Additional Sessions Judge, Khushab in case FIR No. 08 dated 15.01.2007, in respect offences under Sections 302, 355, 337-A(ii), 337-F(i), 337-L(ii), 148 & 149 PPC, registered at Police Station, Naushera District Khushab whereby they were convicted and sentenced as under: Under Section 302(b). PPC read with Section 149 PPC Imprisonment for life each and to pay Rs. 1,00,000/- each to the legal heirs of deceased as compensation under Section 544-A, Cr .P.C. and in default thereof, to further undergo simple imprisonment for six months each.
Under Section 324. PPC read with Section 149. PPC Rigorous Imprisonment for ten years each alongwith fine of Rs. 50,000/- each and in default thereof, to further undergo simple imprisonment for one year each. Under Section 337-A(ii), PPC read with Section 149, PPC Rigorous Imprisonment for five years as T a'zir 'sir each and to pay Arsh which will be 5% of Diyat amount each.
Under Section 337-F(i), PPC read with Section 149, PPC Rigorous Imprisonment for-one year as Ta'zir each and to pay Daman of Rs. 5,000/- each.
Under Section 337-L(ii), PPC read with Section 149, PPC Rigorous Imprisonment for two years as Ta'zir each and to pay Daman of Rs 5,000/- each They were held entitled for the benefit of Section 382-B, PPC. All the sentences were ordered to run concurrently .
2. The prosecution story unfolded in the crime report (Ex.PN) registered on the complaint of Muhammad Alam (PW- 10) is that on 15.01.2007 at about 08:30 a.m., his sons Ahmad Nawaz (deceased) and Habib Nawaz, students of 10th and 8th class respectively alongwith their class-fellow namely Muhammad Akram were going to attend their class at Tuition Centre in Uchhali and when they reached at the bank of Blasser Lake, all of a sudden accused Allah Bakhsh, Ijaz, Asif and Tahir (appellants) armed with Sotas and accused Mudassar armed with rifle reached there on motorbikes. They stopped the motorcycles, Allah Bakhsh raised a Lalkara that be prepared, to face them and inflicted a Sota blow at the head of Ahmad Nawaz, Asif inflicted Sota blow at head of Habib Nawaz, the Sota blow given by Ijaz hit at the left ear of Ahmad Nawaz and the Sota blow inflicted by Tahir hit at the right side of head of Habib Nawaz. After receiving injuries, both the aforesaid injured fell down and all the accused inflicted repeated Sota blows to them. On the report of hearing hue and cry raised by his sons, the complainant alongwith Noor Zaman reached at the spot and tried to save his sons. Thereafter , accused Tahir sprinkled black Mobil oil on the face of both the above said victims and fled away on their motorcycles. He took both the injured to the Civil Hospital, Naushera from where injured Ahmad Nawaz was referred to the District Headquarter Hospital, Sargodha due to his precarious condition. After registration of case, Ahmad Nawaz succumbed to the injuries in the hospital on 19.01.2007.
Motive behind the occurrence was that a few days prior to the occurrence, an altercation had taken place between sons of the complainant and accused Allah Bakhsh.
3. Muhammad Riaz ASI (PW-13) took all necessary steps of initial investigation on the same day and recorded the statements of witnesses Noor Zaman and Muhammad Akram under Section 161, Cr.P.C. He recorded the statement of the deceased being injured under Section 161, Cr.P.C. after seeking permission from the medical officer. Ahmad Nawaz injured succumbed to the injuries on 19.01.2007 and he added offence under Section 302, PPC.
Muhammad Munsab, SI (PW-12) prepared injury statement and inquest report and got conducted post-mortem examination of the dead body of the deceased. He arrested the appellants on 19.01.2007. During investigation appellants Allah Bakhsh, Tahir Ahmad, Ijaz Ahmad led to the recovery of respective Sotis (P-6 to P-8) whereas appellant Asif Hussain led to the recovery of motorcycle (P-9) and Soti (P-10). Appellant Mudassar Hussain got recovered rifle (P-4), which were taken into possession and after completion of investigation, he got prepared report under Section 173, Cr .P.C.
4. Dr. Ghulam Nabi (PW-5) conducted the medico-legal examination of dece ased Ahmed Nawaz in injured condition on the same day 15.01.2007 at 1 1:30 a.m. and observed the following injuries:
1. An abrasion 3x2 cm right side head front near hair line.
2. An abrasion 1 x 1 1/2 cm left side cheek. Whole face painted with black Mobil oil.
3. A painful swelling 3x2 cm back inner side right hand.
4. A contusion mark 28 x 7 cm on back left shoulder left middle chest. Mid line chest extending to right side lower chest.
5. A contusion mark 15 x 3 cm back abdomen both sides of mid line.
6. A contused area 21 x 17 cm back left buttock.
7. A contused are 12 x 16 cm back right buttock.
8. A contused area 12 x 20 cm on outer and back left thigh upper middle part.
9. A contused area 27 x 21 cm on whole back of right thigh extending to outer side middle part of thigh.
10. Compliant of hematuria.
He also conducted the medico-legal examination of injured Habib Nawaz and observed the following injuries:
1. An abrasion 3 x 3 cm and painful swelling 4 x 5 cm right side of fore head while face was painted with black mobile oil.
2. A contused swelling 4 x 3 cm right temple advised for X-ray .
3. An abrasion 2 x 1 cm outer side pinny of right ear .
4. An abrasion 7 x 5 cm back left fore-arm middle part advised X-ray .
5. A lacerated wound 1 x 1/2 cm left leg lower part skin exposed.
6. An abraded area 18 x 3 cm right leg lower and middle part of front.
7. An abrasion 3 x 2 cm front left knee.
8. A contusion mark 23 x 3 cm back right chest middle and lower chest near mid line.
9. A contused area 17 x 18 cm back left buttock.
10. A contused area 13 x 17 cm back right buttock.
11. Contused area 13 x 3 cm outer and anteria aspect of right thigh on middle part.
5. On 19.01.2007 he held autopsy on the dead body of deceased Ahmad Nawaz and observed the afore- mentioned injuries. The cause of death was acute tubular necrosis consequent upon the injuries causing death.
The probable duration between injuries and death was about four days, whereas between death and post-mortem examination it was about 07-hours.
6. At the commencement of the trial, learned trial Court framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.
7. At the commencement of trial the prosecution examined 13-witnesses and the appellants, in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against them.
They neither opted to make statements under Section 340(2), Cr .P.C. nor produced any evidence in their defence.
8. Learned trial Court, upon conclusion of the trial, proceeded to convict and sentence the appellants as stated above vide impugned judgment dated 25.03.2008. Hence, this appeal.
9. Learned counsel for the appellants submits that the appellants are quite innocent and they have nothing to do with the alleged occurrence; that there was delay 31/2 hours in reporting the matter to the police, which shows that the prosecution case was an :afterthought story , outcome of deliberation and consultation; that complainant Muhammad Alam, (PW- 10) was a chance witness, who attracted at the venue of occurrence after hearing hue and cry and he did not witness the occurrenc e; that narration of the acclaimed eye-witnesses that they alongwith the deceased were going to take tuition at Ushali Tuition Center has not been proved because no documentary evidence was brought on record to prove that they were studying in the said tuition Centre; that there was contradiction between the ocular and medical evidence because some injuries specifically attributed to the appellants were found non-existent; that the alleged recovered clubs were of common patron and the same cannot be safely connected against the appellants especially when the same were not stained with blood and were recovered from an open place being accessible to everyone; that there was no documentary proof regarding motive part of the occurrence, which is a shrouded mystery . At the end, learned counsels have contended that if the Court is not convinced with the arguments supra, at the most, it was a case of Qatl Shihh-i-Amd attracting the provisions of Section 316 PPC and if the conviction and sentence of the appellants in an offence under Section 302 (b), PPC is controverted into Section 316 PPC, they do' not challenge the conviction of principal accused Allah Bakhsh, who is also ready to pay Diyat to the legal heirs of the deceased provide d the sentence of imprisonment may be reduced to the period already undergone.
10. Conversely , learned Assistant District Public Prosecutor appearing for the State assisted by the learned counsel for the complainant have gracefully conceded that the alternate contention of learned counsel for the appellants was more appropriate and that the quantum of sentence is the exclusive prerogative of the Court.
11. I have heard learned counsel for the appellants, learned Assistant District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
12. In order to prove the homicidal death of deceased Ahmed Nawaz at the hands of the appellants, the prosecution produced Muhammad Alam (PW-10), complainant/father and Habib Nawaz (PW-11)/iW ured, brother of deceased Ahmad Nawaz. The complainant narrated the whole story , regarding the murder of his son Ahmad Nawaz and the injuries caused to the other son namely , Habib Nawaz at the hands of the appellants. The respective role of each appellant is that appellant Allah Ditta inflicted a Soti blow at the head and appellant Ijaz inflicted Soti blow at left ear of deceased Ahmed Nawaz, whereas, appellants Asif Hussain and Tahir Ahmad were saddled with the responsibility of inflicting respective Soti blows at the head and right side of head of injured Habib Nawaz. Appellant .Mudassar Hussain though was armed with rifle but he did not use it. Thereafter , all the accused persons caused injuries to the deceased as well as the injured witness. Habib Nawaz, (PW-11) injured supplemented the complainant on all material points with a slight difference that appellant Asim Hussain inflicted Soti blow at his mouth instead of head . This portion of his statement was though confronted to him with his previous statement got recorded under Section 161, Cr.P.C. (Ex.DA) yet it is not fatal to the prosecution because he had sustained eleven injuries on his person including head and mouth. The injury caused by appellant Asim Hussain at his head and mouth are existe nt. During cross-examination, both the eye-witnesses remained firm and consistent on all material particulars of the incident in the ordeal of lengthy cross-examination and nothing favourable to the defence could be elicited therefrom. Learned counsels for the appellants have laid a lot of emphasis that the complainant's presence at the venue of occurrence is doubtful as he himself admitted that he attracted to the venue of occurrence from some distance after hearing hue and cry, so his narration regarding specific injuries is nothing but hearsay however , he had admitted the presence of injured Habib Nawaz at the spot, who had sustained eleven injuries at the hands of the appellants.
13. Both deceased and the injured witness were young lads, who were going to the tuition Centre for study purposes, when the appellants halted and caused injuries to them resulting into death of deceased Ahmad Nawaz.
There exists no manner of doubt in my mind that the prosecution has been succeeded to establish that deceased Ahmad Nawaz died due to the injuries sustained by him at the hands of the, appellants and also caused injuries to Habib Nawaz but the question remains as to whether it was an intentional murder or they had assaulted upon the deceased and the' injured witness in order to cause injuries to them. It is evident from the record that all the injuries on the body of the deceased except fracture of 5th metacarpal of right hand were simple in nature. Both deceased and the injured witness were shifted to the hospital on the same day where the deceased remain admitted for three days and he was discharged therefrom after getting Medical treatment but on the following day of discharge from the hospital, Ahmed Nawaz succumbed to the injuries. In the post-mortem examination report the Medical Officer did not' give specific opinion regarding the cause of death of deceased and deferred it till the receipt of report from histopathology's expert and clinical notes. After receiving of said report, he opined that the cause of death was acute tubular necrosis consequent upon the injuries causing death. In view of the foregoing reasons, when the injuries received by the deceased and the injured witness except fracture of 5' metacarpal of right hand are simple in nature and the death occurred on 4th day of the incident, in addition to a kind of weapon used, undoubtedly , the ingredients of Section 302(b) 'PPC do not attract in the present scenario. Keeping in view the aforesaid facts and circumstances of the case, the case against the appellants, at the most, falls under the mischief of Section 316 PPC, Learned Law Officer as well as learned counsel for the complainant have also failed to controvert this aspect of the case that it was not an intentional murder as observed by the trial Court in the impugned judgment.
14. The motive as set up by the prosecution directly relates to appellant Allah Bakh sh. Though it was a petty matter having no documentary proof yet the evidence adduced by the prosecution raised finger towards the said motive consistently and even appellant Allah Bakhsh in his statement recorded under Section 342 Cr.P.C. admitted that he had, a family dispute with the complainant party .
15. Muhammad Mansab, SI (PW-12) got recovered respective Sotis, being the weapons of offence, at the disclosure of appellant Allah Bakhsh, Ijaz Ahmad and Tahir Ahmad, wheras, rifle 222-bore was shown to have been recovered at the instance of appellant Mudassar Hussain. Though the Sotis recovered at the instance of the aforesaid appellants are common in patron and almost available in every house in rural set-up yet this fact alone is not sufficient to brush aside such an important evidence as the same was got recovered by the appellants from their Daira. However , it is evident form the record that rifle 222-bore had not been used in the incident, which remains inconsequential.
16. Having scanned the entire evidence available on record, it has been proved that the prosecution has been able to prove that appellants Allah Bakhsh, Asim Hussain and Tahir Ahmad had inflicted repeated Soti blows to the deceased as well as the injured witness, whereas, injury attributed to appellant Ijaz Ahmad at left ear of the deceased was found non-existent and appellant Mudassar Hussain shown to be armed with rifle .222-bore, did not cause any injury to them though he had full opportunity to kill them. In such circumstances, the possibility cannot be ruled out of consideration that they were involved by the complainant in order to spread the net wide.
17. It has been proved beyond shadow of reasonable doubt that appellants Asif Hussain and Tahir Ahmad had caused injuries at the specific parts of body of injured Habib Nawaz with their respective Sotis. The injuries attributed to them were found available in the medico-legal examination report (Ex.PE) of the said injured witness.
Furthermore, injured Habib Nawaz admitted in his cross-examiantion that two of the accused caused injuries to the deceased while two of them assaulted upon him, therefore, it has been established on record that appellants Asif Hussain and Tahir Ahmad had not caused any injury to deceased Ahmad Nawaz, therefore, they are not responsible for murder of the deceased.
18. As it has already been discussed above that offence under Section 302(b) PPC has not been proved by the prosecution rather it was a case of Qatl-i-Shibh-Amd and, thus, appellant Allah Bakhsh is acquitted in offence under Section 302(b) PPC, however he is convicted and sentence in offence under Section 316 PPC but so far as the quantum of sentence is concerned, it has been observed that the said appellant was arrested in this case on 19.01.2007, he faced the trial as an unde r-trial prisoner and after conviction, his sentence was suspended by this Court after more than 4-1/2 years vide order dated 23.8.201 1. He has already undergone more than 4-1/2 years of his substantive sentence, which in my view, would meet the ends of justice and the very purpose of prosecuting him.
19. The epitome of above discussion is that the appeal in hand is hereby allowed to the extent of appellant Ijaz Ahmad and Mudassar Hussain are acquitted of the charge by giving the benefit of dubt to them. They are presen t on bail, their bail bonds as well as the respective surety stands dischared from the liability . '
20. This appeal to the extent of appellant s Asif Hussain, Tahir Hussain is partly allowed and they are acquitted of the charge is offence under Section 302(b) PPC, however their conviction in offences under Sections 324, 337- A(ii), 337-F(i) & 337-L(ii) PPC is hereby maintained with the modification of their sentence to the imprisonment already undergone in the said offences. However , their sentences of Arsh in offence under Section 337-A(ii), PPC at the rate of 5% of Diyat and the sentenc e of Daman of Rs. 5000/- in offences under Sections 337-F(i) & 337-L(ii), PPC shall remain intact. The amount of Arsh and Diyat shall be paid within six weeks failing which both the convicts shall be taken into custody and kept in jail as simple imprisonment till its realization.
21. This appeal to the extent of appellant Allah Bakhsh , is partly allowed in the terms that he is acquitted of the charge in offences under Section 302(b), 324, 337-A(ii), 337-F(i) & 337-L(ii), PPC, however he is convicted, and sentenced in offence under Section 316, PPC to the imprisonment already undergone. He is further burdened to pay Diyat at the rate of fiscal year 2006-07 to the legal heirs of the deceased within a period of 90-days failing which, he shall be lodged in jail as simple imprisonment till realization.