Sadaqat All Khan, J. Appellants Ashfaq alias Shaka, Mushtaq alias Bhola, Rehmat Masih, Imran Masih and Sohail Masih have been tried by learned trial Court in case FIR No. 477 dated 25.06.2009 offences under Sections 302, 324, 452, 337-A(ii), 337-F(i), 148, 149, P.P.C. Police Station Raiwind Saddar , District Kasur and were convicted and sentenced vide judgment .dated 30.03.2017 as under: i. Ashfaq alias Shako , ii. Mushtaq alias Bhola (appellants)
U/S. 302(b)/149, PPC Sentenced to DEATH each for committing Qatl-i-Amd of Mustafa deceased along with compensation Rs.
1,00,000/- each payable to the legal heirs of the deceased under Section 544-A, Cr .P.C. and in default whereof to further undergo 6-months S.I. each. iii. Rehmat Masih iv. Imran Masih v. Sohail Masih (appellants)
U/S. 302(b)/ 149, P .P.C. Sentenced to imprisonment for life each for committing Qatl-i-Amd of Mustafa deceased along with compensation Rs. 1,00,000/- each payable to the legal heirs of the deceased under Section 544-A, Cr .P.C. and in default whereof to further undergo 6-months S.I. each.
Ashfaq alias Shaka. Mushtaq alias Bhola, Rehmat Masih. Imran Masih. Sohail Masih (appellants)
U/S. 324, 149, P .P.C. Sentenced to ten years R.I. for attempting to commit Qatl- i-Amd of Sabir with fine of Rs. 20,000/- each and in default whereof to further undergo one year S.I.
U/S. 324, 149, P .P.C. Sentenced to ten years R.I. for attempting to commit Qatl- i-Am of Sohail with fine of Rs. 20,000/- each and in default whereof to further undergo one year S.I U/S. 337-A(ii) 149, P .P.C. Sentenced to five years R.I. for causing injury to Sohail with payment of Rs. 10,000/- as Daman with equal share to him.
U/S. 337-F(i), 149, P .P.C. Sentenced to one year R.I. as Tazir for causing injury to Sohail with payment of Rs. 10,000/- as Daman with equal share to him.
U/S. 324, 149 PPC Sentenced to ten years R.I. for attempting to commit Qatl- i-Amd of Suneel with fine of Rs. 20,000/- each and in default whereof to further undergo one year S.I U/S. 324, 149 P .P.C. Sentenced to ten years R.I. for , attempting to commit Qatl- i-Amd of Mujahid alias Guddo with fine of Rs. 20,000/- each and in default whereof to further undergo one year S.I.
Appellants have filed instant appeals against their convictions, learned trial Court has sent Murder Reference for confirmation of death sentences of Ashfaq alias Shaka and Mushtaq alias. Bhola (appellants) or otherwise, which are being decided through this single judgment.
2. Brief facts of the case have been stated by George Masih (PW.5) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: Stated that on 24.06.2009 at about 07:30 p.m I alongwith Aslam and Imran was going from the dera of Ch. Muhammad Ali Nazim towards our home. Ashfaq accused present in Court armed with pump action, Mashtaq @ Bhola accused present in Court armed with pump action. Rehmat accused present in the Court armed with double barrel gun, Imran accused present in Court armed with hatchet, Sohail accused present in Court armed with hatchet entered in the house of Aslam and raised lalkara that he would not be left alive. After making firing from the house of Aslam, they went to the bellied shop of Sohail Imran accused present in Court made a hatchet blow on the left hand of Sohail Yaqoob. Sohail accused present in Court made hatchet blow on back side of head of Sonail Yaqoob. On hue and cry of Sohail Yaqoob, Mustafa. Sabir and Hameed attracted there. Mashtaq accused present in Court made fire from his pump action which landed on right side thigh of Mustafa. Ashfaq @ Shaka accused present in the Court made a fire from his pump action which landed at abdomen of Mustafa deceased. Rehmat accused present in the Court made fire from his double barrel gun which landed at face chest and thighs of Sabir .
Mashtaq accused present in the Court made two fires from his pump action which hit left hand of Hameed and neck of Mojahid Guddu and on the left temporal part of Shaneel. I, Imran and Aslam attracted to the place of occurrence. Other people also attracted there. The accused persons fled away from the scene.
3. Arguments heard, record perused.
4. FIR shows that occurrence took place on 24.06.2009 at 7:30 p:m., FIR was lodged on the following day i.e. 25.06.2009 at 7:30 p.m. on the statement Ex.P.E made by George Masih complainant P.W.5. Mustafa (died later on), Mujahid alias Guddo P.W.2, Sabir Masih P.W.6 sustained firearm injuries, Sohail Masih P.W.9 and Suneel Masih P.W.I sustained blunt injuries. Mustafa injured died on 26.06.2009 in the hospital. Mujahid alias. Guddo PW.2 aged 9/10 years was not competent to testify in view of his tender age as declared by learned trial Court. Case of Rehmat Masih, Imran Masih and Sohail Masih (appellants) is distinguishable from those of Ashfaq alias Shaka and Mushiaq alias Bhola appellants. Firstly we would like to take up case of Rehmat Masih, Imran Masih and Suhail Masih, who have not been attributed any injury on the person of Mustafa deceased. The only allegation against them is that; Imran Masih appellant gave hatchet blow'which landed on left hand of Sohail Yaqoob/Sohail Masih injured P.W.9, Dr. Masood Aziz P.W.8 observed lacerated wound 4 x 1/3 x skin deep on the left palm of Sohail Masih injured P.W.9 declaring this injury Jurh ghayr-jaifah Pamiyah, attracting offence under Section 337-F(i), P.P.C., Sohail Masih appellant was attributed hatchet blow on the back side of head of Sohail Yaqoob/Sohail Masih injured P.W.9, Dr. Masood Aziz P.W.8 observed this injury i.e. lacerated wound 3 x (1/2) cm x bone exposed on the back of head declaring it Shujjah-i-mudihah, attracting offence under Section 337-A(ii), P.P.C., Rehmat Masih appellant was attributed fire shot with .12-bore gun which hit on face, chest, abdomen and right thigh of Sabir Masih injured P.W.6, Dr. Masood Aziz P.W.8 observed multiple penetrating wounds with contused swelling on the upper chest, neck and left cheek of Sabir Masih injured P.W.6. Learned DPG assisted by learned counsel for the complainant submits that prosecution could not prove common object between the appellants. Considering the peculiar circumstances of this case, we are of the view that prosecution has failed to prove common object between the appellants. In these circums tances, convictions and sentences of appellants (Rehmat Masih, imran Masih and Sohail Masih) in offence under Section 302(b), P.P.C. read with Section 149, P.P.C. are hereby set- aside. Convictions and sentences of appellants (Imran Masih and Sohail Masih) in offence under Section 324, P.P.C. read with Section 149, P.P.C. are also hereby set-aside. Conviction and sentence of Rehmat Masih appellant in offences under Sections 337-F(i), 337-A(ii), P.P.C. read with Section 149, P.P.C. are also set aside. At this stage, learned counsel for appellants (imran Masih and Sohail Masih) submit that they do not press the convictions of the appellants under Sections 337- F(i), 337-A(ii), P.P.C., hence, the same are maintained. They also do not press the conviction of Rehmat Masih appellant in offence under Section 324, P.P.C. with the request to reduce his sentence which is reduced from 10-years R.I. to three years R.I. Fine of Rs. 20,000/- is maintained but sentence in default whereof is reduced from one year R.I. to one month. All the sentences shall run concurrently with benefit of Section 382-B, Cr.P.C. With the above said modification in the impugned judgment, Criminal Appeal No. 19292 of 2017 is disposed of.
5. Coming to the case of Ashfaq alias Shaka and Mushtaq alias Bhola appellants, they have been attributed firearm injuries with .12-bore guns on the person of Mustafa deceased. Eye witnesses (Suneel Masih P.W.1, George Masih complainant P.W.5, Sabir Masih injured P.W.6, Imran Masih injured P.W.7 and Sohail Masih injured P.W.9 were cross-examined at length but their eviden ce could not be shaken during the process of cross-examination. They corroborated one another on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring.
6. Medical evidence furnished by Dr. Zulfiqar Ahmad P.W.16 has fully supported the ocular account furnished by the above mentioned eye-witnesses.
7. Motive of the occurrence mentioned in the FIR that children of Aslam from complainant party and Nazir from accused party had a quarrel but Aslam has not been produced to establish the motive story , hence, the same is not believable.
8. Report of Forensic Science Laboratory Punjab Lahore Ex.P.CC pertaining to recovery of .12-bore pump action gun on pointing out of Ashfaq alias Shaka appellant shows that crime empties and double barrel gun .12-bore received in the office together on 17.03.2010. Mushtaq alias Bhola appellant was arrested on 02.08.2009 by Muhammad Jehangir S.I P.W.20. Report of FSL Ex.P.DD shows that crime empties received in the office on 08.08.2009 after his arrest. Considering this, possibility of manufacturing of the crime empties before their dispatch to the said laboratory cannot be ruled out of consideration, hence, these reports Ex.P.CC and Ex.P.DD are not believable which are hereby discarded.
9. Both the appellants (Ashfaq alias Shaka and Mushtaq alias Bhola) have stated in their statements recorded under Section 342 Cr.P,C. that due to enmity , they were involved in this case. Mushtaq alias Bhola also got recorded his statement under Section 340(2), Cr.P.C. with the plea that the complainant party actually made firing which has rightly been discarded by the learned trial Court with suf ficient reasons.
10. As we have already observed that the prosecution has failed to prove common object between the appellants hence, convictions and sentences of the appellants (Ashfaq alias shaka and Mushtaq alias Bhola) in offences under Sections 337-F(i), 337-A(ii), 324 read with Section 149, P .P.C. are hereby set-aside.
11. In view of the above discussion if evidence of motive and recovery of guns on pointing out of the appellants (Ashfaq alias Shaka and Mushtaq alias Bhola) is excluded from Consideration, even then the prosecution has proved its case beyond Shadow of doubt against appellants (Ashfaq alias Shaka and Mushtaq alias Bhola) through the evidence discussed earlier .
12. Coming to the quantum of sentence, we have noted some mitigating circumstances. Firstly recovery of guns on pointing out of appellants (Ashfaq alias Shaka and Mushtaq alias Bhola) is inconsequential with the reasons mentioned in para 8 and secondly motive has been discarded by us with the reasons mentioned in para 7 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into presen t unfortunate incident. 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. Reliance is placed on case titled "Mir Muhammad alias Miro vs. The State " (2009 SCMR 1 188) and case titled " Zafar Iqbal and others v . The State "(2014 SCMR 1227 ).
13. Considering above, convictions of appellants (Ashfaq alias Shaka and Mushtaq alias Bhola) in offence under Section 302(b), P.P.C. for committing the murder of Mustafa deceased are maintained but their sentences are altered from death to imprisonment for life each. The compensation and sentence in default whereof awarded by the trial Court are also maintained. Benefit of Section 382-B, Cr.P.C. is extended to them. Murder Reference is answered in NEGA TIVE and death sentences of Ashfaq alias Shaka and Mushtaq alias Bhola (appellants) are NOT CONFIRMED .