MALIK HAQ NAWAZ, J.---Since Criminal Appeal No.41/2017, Criminal Appeal No. 49/2017 and Criminal Revision No.26/2017 are arising out of one and same FIR, therefore these are being disposed of through this single consolidated Judgment.
2. By means of Criminal Appeal 41/2017, the convicts/appellants have made the following prayer: "It is therefore humbly prayed that this hon'ble Court may kindly accept this appeal, the impugned judgment/conviction/sentence dated 28.9.2017 pass. d in Sessions case No. 22/15 may kindly be set aside the appellants may be acquitted from all charges to meet the ends of justice."
3. In Criminal Appeal No. 49/2017, filed by the State through Dy .A.G., the prayer reads as under:- "It is therefore, humbly prayed, that the impugned order/judgment of the acquittal of the accused by the learned Sessions Judge District Ghizer dated 28.9.2017, may kindly be set aside and the accused may be convicted according to the spirit of the above mentioned sections, to meet the ends of justice."
4. Likewise in Criminal Revision No. 26/2017, which also been filed by the State through learned Dy.A.G. and following prayer:- "It is therefore, humbly prayed that by accepting this revision petition this honorable court may be pleased to revise the impugned judgment enhancing the punishment of life impris onment into death sentences with fine to meet the ends of justice."
5. At the very outset it would be advantageous to mention here that convict/appellant Gul Murrad and two other co- accused namely Jan Khan and Saleh Aman were convicted under section 302/34 and were awarded life imprisonment with the benefit of section 382-B, Cr.P.C. Criminal Appeal No. 49/2017 has been filed against the acquittal of respondent/accused Attaullah and Sharafuddin, whereas Criminal Revision No. 26/17 has been filed for enhancement of sentence of convicts/appellants Gul Murrad, Jan Khan and Saleh Aman from life to death.
6. Since all the details of the occurrence have been minutely discussed in the impugned judgment dated 28.9.2017, therefore, these are not being reproduced to avoid a lengthy judgment. However in brief it is worth mentioning that this unfortunate incident took place on 20.4.2015, when one Syed Jahangir Shah S/o Syed Hussain Shah submitted a written application in Police Station Yasin to the effect that his brother Syed Junaid Shah was employed as Chowkidar in Tehsil Yasin. On 19.4.2015 as per the contents of FIR No. 14/15, the brother of complainant came for his duty at about 4.00 p.m. and on 20.4.2015 at about 10:00 a.m. the complainant was informed that his brother has been seriously injured and is admitted in Civil Hospital at Gupis. When the complainant reached hospital he found his brother dead. The complainant stated in FIR that on inquiry he came to know that accused Gul Murrad was suspecting illicit relations of his daughter namely Mst. (A) with the deceased and the accused Gul Murrad, Jan Khan, Saleh Aman, Attaullah and Sharaf-ud-Din inflicted torture upon the deceased in their house which resulted into his death.
7. The charge up to the extent of Gul Murrad, Jan Khan and Saleh Aman was framed on 11.9.2015 to which they did not plead guilty and claimed trial. The charge of two juvenile accused namely Attaullah and Sharaf-ud-Din was separately framed and prosecution was directed to adduce evidence in support of their case. Prosecution examined 13 P. Ws. in support of their case, while two P. Ws. namely Muslim Baig and Waqar Ahmad were abandoned. As evident from the statement of learned DPP Gulzar and Mr. Sultan Wali, the learned counsel for the complainant Mst. Attia was declared hostile and cross-examined by the learned DPO. On conclusion of trial the statements of accused under section 342, Cr.P.0 were recorded, however the accused neither produced any defence witnesses nor got recorded their statement on oath under section 340(2), Cr .P.C.
8. The learned trial Court on conclusion of the trial convicted accused Gul Murrad, Jan Khan and Saleh Aman and awarded life imprisonment to all the above three accused, while co-accused namely Attaullah and Sharf-ud-Din were acquitted from the charges.
9. Both the parties i.e. accused/State being aggrieved from the Judgment of the trial Court have resorted to this Court for redressal of their grievances by filing the above mentioned appeals/revisions.
10. The learned counsel for the convicts/appellants submitted that prosecution miserably failed to connect the accused with the alleged offence and the complainant involved whole family of the accused side by throwing a wide net. The learned counsel submitted that the judgment of trial. Court is result of mis reading and non reading of material evidence, which was in favour of the convicts/appellants, which resulted to grave mis-carriage of justice.
Per learned counsel, Mst. Attia was the sole eye witnesses of the occurrence, but she was declared hostile by the prosecution, whereas PW-2 Sadam Hussain and PW-3 Badshahi retracted from their statements. After exclusion of the statements of the above two important witnesses, there remains only the statements of police officials, who in the given circumstances of the case cannot be relied upon to maintain conviction on a capital charge. Per learned counsel the statement of I.O. is in direct conflict with the statements of rest of the prosecution witnesses and the- incriminating articles were not produced in Court during trial of the case. The ocular evidence is direct in conflict with the medical evidence and the time of death does not coincides with the story of the prosecution. Lastly that acquittal of two co-accused namely Attaullah and Sharaf ud Din on the same evidence and conviction of the appellants is not permissible under law. While accepting the evidence up to the extent of convicts/appellants and rejecting the same up to the extent of two acquitted accused is against the principle s of governing administration of criminal justice. The convicts/appellants deserve clean acquittal from the charges by accepting the instant appeal.
The learned counsel for the appellants/c onvicts relied on the following case laws. 1. 1968 SCMR 18, 2. 1993 PCr.LJ 1616 (Lahore), 3. 1994 PCr.LJ 1901 (Lahore), 4. 2008 PCr.LJ 1153, 5. 2011 PCr.LJ 357 (Lahore) and a Judgment passed by this Court in case bearing No. Criminal Appeal 35/2018 titled Muhammad Ibrahim v.
Kousar Hussain .
11. On the other hand the learned Dy.A.G. assisted by learned counsel for the complainant submitted that the deceased was given merciless beating in the house of accused Gul Murrad, who later died in civil hospital Gupis.
The convicts/appellants and respondents in Cr. Appeal 49/17 are directly charged in the FIR. The acquittal of accused/respondents Attaullah and Sharaf ud Din was result of misreading of evidence, which requires indulgence by this Court. Per learned Dy.A.G. it was a day light occurrence and the story of occurrence, place of occurrence and manner of occurrence has not been challenged by the defence. The learned defence counsel badly failed to shatter the natural, coherent and convincing evidence produced by the prosecution. The minor contradictions may occur in the statements of the witnesses, either due to lapse of time or because of mental caliber of perceiving the event by the witnesses. Medical evidence is in line with the prosecution and other evidence. The learned Dy.A.G. further submitted that it was a brutal murder and withholding of death penalty by the trial Court was not justified because now almost all it is recognized principal of law that when the charge of murder is proved, the normal penalty would be death. The Dy.A.G. vehemently contended that there was no mitigation in the given circumstances of the case and by accepting the Criminal Revision No. 26/2017, the sentence of the respondents namely Gul Murrad, Jan Khan and Saleh Aman be enhanced to death to meet the ends of justice and the acquittal of respondents be also set aside and they be also awarded punishment provided under law .
12. The whole of prosecution story reveals and it is not denied that the deceased Syed Junaid Shah was spotted in the cattle shed of the convict/appellant Gul Murrad. The deceased took to his heels when his presence was noticed by the inmates of the house. He was chased and apprehended and brought back into the house of the convict/appellants, where he was thrashed by the accused. The final police report depicts that danda was inflicted on the head of deceased by accused Gul Murrad, which proved fatal. The postmortem of deceased Exh.PW -12/A also confirms that deceased died due to blunt trauma to the head and because of brain internal bleeding. The site plan Exh.PW .13/A also confirms the presence of the convict/appellants and the deceased at Point No. 1, however the presence of acquitted accused namely Attaullah and Sharif Ud Din is not shown in the site plan. During investigation of the case a danda was recovered from the accused Gul Murrad vide Exh.PW -13/A. A rope was also recovered from the house of accused Gul Murrad, which was used for tiding of the deceased and the pair of shoes of deceased were also recovered therefrom vide Exh.PW -9/A. The site inspection report shows presence of accused Gul Murrad, Attaullah and Sharaf ud Din, but the presence of accused Jan Khan and Saleh Aman is conspeiously missing.
13. The above narration of facts leaves no doubt in our mind that the deceased was beaten and tied up in the house of accused Gul Murrad and from there rescued he was shifted by the local police to Civil Hospital Gupis in police vehicle along with the accused.
14. The following aspects of the case in hand were very crucial to reach at a just and fair conclusion:
(a) Whether the murder was a preplanned and committed with the common intention of all the accused and if common intention was missing or doubted who could be held responsible for murder of the deceased.
(b) Whether there was any justification for the deceased to intrude into the cattle shed of the accused Gul Murrad and what would be the impact of his unannounced entry into the house of accused.
(c) Whether it was a case of section 302(b) in the peculiar circumstances of the case.
15. The above questions could be answered after evacuation of evidence as under:-
(a) It has come on record that the deceased died because of a fatal blow, which was inflicted on his head by accused Gul Murrad and a danda was later on recovered on his pointation from his house, which was exhibited in the trial Court. The presence of accused Jan Khan and Saleh Aman has not been shown in site inspection report and no recovery has been effected from any of the convicted accused. The presence of accused Attaullah and Sharif ud Din has not been shown in site plan.
(b) Entry and that too on unannounced entry into the house of Gul Murrad by the deceased Syed Junaid Shah was not justified and the inmates of the house were fully justified to defend the privacy of their house. As evident from the final police report the entry into the cattle shed of deceased Syed Junaid Shah was with ill intentions. The said facts remained completely unattended and it is the own case of the prosecution and prosecution cannot back out from their version, because for all intent and purpose, the final police report is the gist of the prosecution case. The appellant Gul Murad was well within his right to safeguard the privacy of "Chadar and Chardewari"
(c) The case keeping in view the peculi ar circumstances is one which squarely falls under section 302(c) and conviction under section 302(b) was not justified. The wisdom is drawn from a Judgment reported in PLD 2015 SC 77, at page 1 13(G), it was held as under:- "According to my understanding the provisions of section 302(c), P. P.C. are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas and I further understand that sections 306 and 307, P.P.C. are person specific whereas section 302(c), P.P.C. relates to certain situations and circumstances wherein a murder is committed and according to the injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances."
16. Section 338-F , P.P.C. was inserted in P.P.C., when the Qisas and Diyat order was promulgated to meet such like eventualities, which section of law is reproduced as under:- 338-F , P. P. C.
Interpretation. In the interpretation and application of the provisions of this Chapter , and in respect of matters ancillary of akin thereto, the Court shall be guided by the injunction of Islam as laid down in the Holy Quran and Sunnah.
17. Needless to say that under the injun ction of Islam, the right of self defence has much more wider scope as compared to English law. Section 97, P.P.C. which deals extensively with the parameters of self defense is reproduced for the purpose of convenience:- Section 97, P .P.C.
Right of private defence of the body and of property . Every person has a right, subject to the restrictions contained in section 99, to defend First. His own body , and the body of any other person, against any of fence af fecting the human body; Secondly . The property , whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of the theft, robbery , mischief or criminal trespass, or which is an attempt to commit theft, robbery , mischief of criminal trespass.
18. Likewise section 100, P.P.C. defines the circumstances, where the death of assailant could be caused and any person causing death will not be liable for any penal consequences. Section 100 is reproduced as under:- Section 100, P .P.C.
When the right of private defence of the body extends to causing death.-- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereafter enumerated, namely: First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly . Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly . An assault with the intention of committing rape; Fourthly . An assault with the intention of gratifying unnatural lust; Fifthly . An assault .with the intention of kidnapping or abducting; Sixthly . An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have resource to the public authorities for his release.
19. The actions of all the appellants/respondents is to be adjudged in view of the stance of prosecution's evidence adduced and overall coherence of the prosecution version when juxtaposed with other evidence and the circumstances emanating from the case.
20. The prosecution miserably failed to connect the appellants/convicts Jan Khan and Saleh Aman with the alleged offence beyond any shadow of doubt. The appeal up to their extent is allowed. They shall be released forthwith if not required to be detained in any other case. The sentence/conviction of Gul Murrad is altered from section 302(b), P.P.C. to 302(c), P.P.C. and his sentence of imprisonment for life is reduced to 10 years R.I with the benefit of section 382-B, Cr.P.C. The Criminal Appeal No. 49/17 filed by the State against acquittal of accused/respondents Attaullah and Sharaf ud Din is dismissed being meritless and the Criminal Revision No. 26/17 filed by the State for enhancement of sentence of convicts/appellants is also dismissed.
21. Appellant/accused namely Gul Murad was released on bail under section 426, Cr.P.C. He is present in the Court and directed to be taken into custody to serve out the remaining sentence.