SADIQ M AHM UD KHURRAM , J.- Aftab son of Zafar Iqbal ,Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor, Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal (convicts) were tried along with Imran son of Zafar Iqbal (since acquitted), the co-accused of the convicts, by the learned Additional Sessions Judge Kehror Pacca in the case instituted upon the private complaint titled "Muhammad Afzal Vs. Sajjad and seven others" lodged in respect of offences under sections 302, 324,337-D, 337-A(i), 337-F(iii), 148 and 149 P.P.C.. (related to F.I.R No. 470 of 2017, dated 02.11.2017, registered at police station City Kehror Pacca, District Lodhran) for committing the Qatl-i-Amd of Muhammad Ashraf son of Muhammad Siddique (deceased) . The learned trial court vide judgment dated 28.09.2022 convicted Aftab son of Zafar Iqbal ,Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor ,Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal(convicts) and sentenced them as infra: Aftab son of Zafar Iqbal :- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ashraf son of Muhammad Siddique (deceased) and directed to pay Rs. 5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of failure to pay compensation, to further undergo simple imprisonment of six months.
The convict was ordered to be hanged by his neck till death.
Mehtab son of Zafar Iqbal:- i) Rigorous imprisonment of ten years under section 324 P.P.C. and directed to pay fine of Rs.100,000/- and in case of default of payment of fine, to undergo simple imprisonment of six months. ii) Simple imprisonment of two years under section 337-A(i) P.P.C. and directed to pay Daman of Rs.50,000/- to Muhammad Arshad (PW-4). iii) Simple imprisonment of three years under section 337-F(iii) P.P.C. and directed to pay Daman of Rs.100,000/- to Muhammad Arshad (PW-4).
Jehangir alias Nomi son of Liaquat :- i) Rigorous imprisonment of ten years under section 324 P.P.C. and directed to pay fine of Rs.100,000/- and in case of default of payment of fine, to undergo simple imprisonment of six months. ii) Simple imprisonment of two years under section 337-A(i) P.P.C. and directed to pay Daman of Rs.50,000/- to Muhammad Aadil (PW-3) iii) Simple imprisonment of ten years under section 337-D P.P.C. and directed to pay Arsh of the value of 1/3rd the amount of Diyat as notified for the year 2017 to Muhammad Aadil (PW-3).
Zafar Iqbal son of Abdul Shakoor :- i) Rigorous imprisonment of ten years under section 324 P.P.C. and directed to pay fine of Rs.100,000/- and in case of default of payment of fine, to undergo simple imprisonment of six months. ii) Simple imprisonment of ten years under section 337-D P.P.C. and directed to pay Arsh of the value of 1/3rd the amount of Diyat as notified for the year 2017 to Shamroz (PW-1)
Sajjad son of Abdul Shakoor :- i) Rigorous imprisonment of ten years under section 324 P.P.C. and directed to pay fine of Rs.100,000/- and in case of default of payment of fine, to undergo simple imprisonment of six months. ii) Simple imprisonment of ten years under section 337-D P.P.C. and directed to pay Arsh of the value of 1/3rd the amount of Diyat as notified for the year 2017 to Shamroz (PW-1)
Waseem son of Zafar Iqbal :- i) Rigorous imprisonment of ten years under section 324 P.P.C. and directed to pay fine of Rs.100,000/- and in case of default of payment of fine, to undergo simple imprisonment of six months. ii) Simple imprisonment of three years under section 337-F(iii) P.P.C. and directed to pay Daman of Rs.100,000/- to Muhammad Arshad (PW-4).
The benefit of Section 382-B of the Code of Criminal Procedure, 1898 was extended to the convicts by the learned trial court. The sentences awarded to convicts were ordered to run concurrently by the learned trial court. The convicts namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal were acquitted of the charges under sections 148 and 149 P.P.C. by the learned trial court.
Imran son of Zafar Iqbal, the co-accused of the convicts was acquitted of all the charges by the learned trial court.
2. Feeling aggrieved, Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal (convicts) lodged the Criminal Appeal No.947-LD of 2022, assailing their convictions and sentences. The learned trial court submitted Murder Reference No. 94-LD of 2022 under section 374 Cr.P.C. for confirmation or otherwise of the sentence of death awarded to Aftab son of Zafar Iqbal (convict). We intend to dispose of the Criminal Appeal No.947-LD of 2022 and the Murder Reference No. 94-LD of 2022 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Muhammad Afzal (PW-5), the complainant of the case, are as under:- "Stated that I alongwith my brother Ashraf etc worked in vegetable market Kehror Pacca at shop No.21. On 02.11.2017 at 6:45 A.M I alongwith my brother Ashraf, Arshad alias Achho, Aadil s/o Arshad, Rawal s/o Arshad, Shamrooz s/o Iftikhar were also present in our shop. Accused Zaffer Iqbal armed with rifle, Sajjad armed with rifle, Aftab, Mehtab, Imran and Waseem armed with 30 bore pistols, Jahangir alias Nomi armed with pistol 30 bore alongwith two unknown person came there, upon which accused Zaffer Iqbal and. Sajjad made Lalkara to teach them lesson for registering of case, upon which accused Mehtab made straight fire which hit on scrotum of Muhammad Arshad, Jahangir alias Nomi made fire shot which hit on upper side of head from right ear of Rana Aadil, he repeated fire shot which hit on buttock of Aadil and through & through from abdomen. Ashraf deceased came forward and caught hold accused Aftab, upon which Aftab accused made fire shot from close distance which hit to Ashraf on thigh of his right leg due to which he fell down. On falling, Aftab accused made fire shot which hit to left buttock of deceased Ashraf. Accused Mehtab made fire shot at me which hit to right thigh of Aftab accused instead of me. Zaffer accused made fire shot from his rifle which hit on chest of Shamrooz. Accused Sajjad made fire shot from his rifle which hit on abdomen of Shamrooz. Accused Waseem made fire shot which hit on right knee of Rawal. On our hue and cry PWs Nazeer s/o Rehmat and Zeeshan s/o Ashraf and other people, who were present in market witnessed the occurrence. Muhammad Ashraf succumbed to the injuries due to firing of accused persons and others were injured. Accused persons made aerial firing and caused terror in green market. People, who were gathered in green market hit bricks and stone which hit to accused Aftab, Mehtab and Jahangir and they were injured. The said accused were caught hold by the people alongwith their weapons, while other accused persons made their good escape from the spot with their respective weapons. Motive behind the occurrence was that prior to one day before the occurrence accused persons made quarrel with us regarding which we got registered a criminal case No.469/2017, u/s 324 PPC, Police Station City Kehror Pacca against the accused persons. I left the dead body of deceased Muhammad Ashraf at the spot and went to police station, where I submitted application Ex.PA for registration of case which bears my signatures as Ex.PA/1.
After the registration of case police arrived at the spot. Police inspected the place of occurrence in our presence and took into possession blood stained earth from the spot, made sealed parcel and took into possession through recovery memo Ex.PB which was attested by me and Zeeshan. I put my thumb impression on it and Zeeshan signed the same. Police took into possession 18 crime empties of pistol 30 bore from the spot. 1.0 prepared sealed parcel and took into possession 18 crime empties of pistol 30 bore P-1(1 to 18) through recovery memo Ex.PC which was attested by me and Zeeshan on which I put my thumb impression, while Zeeshan signed the same. On the same day 1.0 took into possession 11 crime empties of rifle scattered on the spot, prepared sealed parcel and took into possession 11 crime empties of rifle P-2(1 to 11) through recovery memo Ex.PD, which was attested by me and Zeeshan on which I put my thumb impression, while Zeeshan signed the same. On the same day postmortem of deceased was conducted by the doctor and other injured were medically examined. Police formally arrested accused Aftab, Mehtab and Jahangir alongwith their weapons from the spot. Police was connived with the accused persons. Police challaned the accused Sajjad and Zaffar Iqbal u/s 109 PPC. In fact both of the accused persons were present at the spot and caused injuries to Shamrooz and MLC of Shamrooz is available on record. Police declared innocent accused persons Waseem and Imran. In fact both said accused were also present at the spot and accused Waseem caused injuries to Rawal and MLC of Rawal is available on record. Police did not record statements of witnesses as per their versions, however police recorded the statements with their own accord. All the accused persons are history sheeter. I was not heard by the police, so I moved application for change of investigation but there I was not heard. So I have left no other option except to file the instant private complaint Ex.PE whit.. bears my signatures as well as my thumb impressions as Ex.PE/1. Xxxxx Reserved on the request of learned defense counsel."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Afzal Vs. Sajjad and seven others" lodged in respect of offences under sections 302, 324,337-D, 337-A(i), 337-F(iii), 148 and 149 P.P.C.. (related to F.I.R No. 470 of 2017, dated 02.11.2017, registered at police station City Kehror Pacca, District Lodhran) for committing the Qatl-i-Am d of Muhammad Ashraf son of Muhammad Siddique (deceased). The learned trial court framed the charge against the accused on 22.10.2019, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove his case got recorded statements of as many as seven witnesses. The ocular account of the case was furnished by Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6). Liaquat Ali (PW-7) stated that on 02.11.2017, he identified the dead body of the deceased namely Muhammad Ashraf at the time of its post mortem examination
6. The learned trial court recorded the statements of six witnesses as Court witnesses. Siraj ud Din draftsman (CW-1) prepared the scaled site plan of the place of occurrence (Exh.CW-1-A). Saeed Ahmad 105/HC (CW-6) stated that on 02.11.2017, he got recorded the formal F.I.R. (Exh.CW-6-A) and on the same day the Investigating Officer of the case handed over to him six sealed parcels and on 28.11.2017, he handed over the said sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Zubair, SI (CW-3) investigated the case from 02.11.2017 till 26.01.2018 arrested the appellant namely Mehtab on 02.11.2017, arrested the appellant namely Jehangir alias Nomi on 04.11.2017, arrested the appellant namely Aftab on 14.12.2017 and arrested the appellants namely Sajjad and Zafar Iqbal on 04.01.2018 and narrated the facts of the investigation conducted by him in his statement recorded by the learned trial court.
7. The learned trial court also recorded the statement of Dr. Muhammad Rafique (CW-2), who on 02.11.2017 was posted as Medical Officer at THQ hospital Kehror Pacca and on the same day conducted the post-mortem examination of the dead body of the deceased, namely Muhammad Ashraf son of Muhammad Siddique. Dr. Muhammad Rafique (CW-2) on examining the dead body of the deceased namely Muhammad Ashraf son of Muhammad Siddique observed as under:- " Injury No. 1: A lacerated wound 7mm x 7 mm x going deep, on center of left buttock. (wound of entry).
Injury No.2: A lacerated wound 2 cm x 1.5 cm x going deep with burning around, on front of right thigh, 12cm below mid-inguinal point.(wound of entry)
In the light of autopsy findings and X-rays injuries No.1 and 2 due to fire arm were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem in nature and homicidal in manner. The mode of death was hemorrhagic shock. Injur No.1 was Jurah Jaifah and injury No.2 was Jurah Ghair Jaifah Mutalahimah.."
On 02.11.2017 Dr. Muhammad Rafique (CW-2) also medically examined Shamroz (PW-1). Dr. Muhammad Rafique (CW-2) on examining Shamroz (PW-1) observed as under:- "DESCRIPTION OF INJURIES.
In ICU BVH patient was under anesthesia, abdomen and covered with bandages.
Right chest tube applied with under water sealed drainage.
Two drainage tubes coming out of right side of abdomen.
NG tube present.
Foley's present.
Patient very very serious."
On 02.11.2017, Dr. Muhammad Rafique (CW-2) also medically examined, Muhammad Aadil (PW-3).
Dr. Muhammad Rafique (CW-2) on examining Muhammad Aadil (PW-3) , observed as under:- "Injury No.1 A lacerated wound 7cmx1cmX bone not exposed on right side of scalp, 8 cm above right ear.
Injury No.2 A Circular lacerated wound 7 mmx7mm x going deep on upper and medial quadrant of left buttock (wound of entry).
Injury No.3 A circular lacerated wound 1cmx1cmx going deep on abdomen, 4cm above right anterior superior iliac spine, 11 cm lateral and inferior to umbilicus. (Wound of exit)"
On 02.11.2017, Dr. Muhammad Rafique (CW-2) also medically examined, Muhammad Arshad (PW- 4). Dr. Muhammad Rafique (CW-2) on examining Muhammad Arshad (PW-4), observed as under:- "Injury No.1 A circular lacerated wound 1.2cmx1cmX going deep on upper and outer part of right scrotum (wound of entry).
Injury No.2 A Circular lacerated wound 1 mmx1mm x going deep 1 cm below injury No.1 (wound of exit-1).
Injury No.3 A lacerated wound 6cmx1cmx muscles deep on upper part of right thigh near scrotum.
(Wound of exit-2) (gutter wound)."
On 02.11.2017, Dr. Muhammad Rafique (CW-2) also medically examined, Rawal (PW-2). Dr. Muhammad Rafique (CW-2) on examining Rawal (PW-2), observed as under:- "Injury No.1 A circular lacerated wound 1cmx1cmX going deep 4 cm above and medial to right patella (wound of entry).
Injury No.2 A lacerated wound 1.3 mmx1mm x going deep, below right patella (wound of exit)."
On 02.11.2017, Dr. Muhammad Rafique (CW-2) also medically examined, the appellants namely Mehtab, Aftab and Jehangir alias Nomi and issued the Medico Legal Examination Certificates.The learned trial court also recorded the statement of Dr. Hafiz Muhammad Usman (CW-4) who stated that on 02.11.2017, the prosecution witnesses namely Shamroz (PW-1), Muhammad Aadil (PW-3) and Muhammad Arshad (PW-4) were brought to Bahawal Victoria Hospital, Bahawalpur and he treated them and issued the surgical notes related to them. The learned trial court also recorded the statement of Dr. Muhammad Shahid Riaz (CW-5) who stated that on 02.11.2017, he had examined the prosecution witness namely Rawal (PW-2) and issued the surgical notes related to him.
8. On 09.02.2021, the learned counsel for the complainant gave up the witness namely Nazir Ahmad as being unnecessary. On 31.05.2022, the learned counsel for the complainant closed the prosecution evidence after tendering in evidence the certified copy of FIR No. 469/2017 (Ex.P-K), the certified copies of the previous criminal cases registered against the accused (Ex.P-M to Ex.P-R), the certified copy of the private complaint titled "Irshad Vs. Muhammad Afzal etc" (Ex.P-S), the certified copies of the statements of witnesses (Ex.P-S/1 and Ex.P-S/2) recording during inquiry proceedings of the private complaint titled "Irshad Vs. Muhammad Afzal etc" and the certified copy of the order dated 15.12.2021 ( Ex.P-S/3).
9. After the closure of prosecution evidence, the learned trial court examined the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor ,Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent . The appellants opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge Kehror Pacca convicted and sentenced the appellants as referred to above.
11. The contention of the learned counsel for the appellants precisely was that the whole case was fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification.
He further contended that the statements of Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) were not worthy of reliance. The learned counsel for the appellants further argued that on the day of occurrence, the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were seriously injured during the occurrence. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of doubt.
12. On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution proved its case beyond the shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants and the witnesses were also injured at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6). They contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of the appeal.
13. We have heard the learned counsel for the appellants, the learned counsel appearing on behalf of the complainant/respondent No.2, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
14. The occurrence in the present case is admitted by the parties with their own respective versions.
Each party has given a different version of the occurrence to establish the aggression of his opponent. According to the prosecution witnesses, on the day of occurrence they were attacked by the appellants and their co-accused resulting in the injuries to Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3) and Muhammad Arshad (PW-4) and death of Muhammad Ashraf (deceased) whereas according to the appellants, on the day of occurrence , the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were seriously injured during the occurrence . It is a case of two versions, one set by the prosecution and the other as stated by the appellants. The common features in both the versions (one set out by the prosecution and the other by the appellants) are that the place of occurrence is not disputed and the incident happening suddenly is also admitted. First of all, we would like to see whether the prosecution has succeeded to prove its case against the appellants beyond any shadow of doubt because, primarily, it is the responsibility of the prosecution to discharge the said onus. The prosecution, in order to prove its case, mainly relied on the ocular account of the occurrence as furnished by Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) and the medical evidence. The presence of Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3) and Muhammad Arshad (PW-4) at the place of occurrence, at the time of occurrence is established as they had the stamp of injuries on their bodies. The prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3) and Muhammad Arshad (PW-4) were examined by Dr. Muhammad Rafique (CW-2) . The presence of the prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3) and Muhammad Arshad (PW-4), at the place of occurrence, at the time of occurrence could not even be disputed by the appellants. While appearing before the learned trial court, the prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) remained consistent on material particulars of the incident and we see no reason not to believe testimony of these prosecution witnesses with regard to their presence at the place of occurrence, at the time of occurrence. After careful analysis of the evidence produced by the prosecution in this case, we are of the considered view that the prosecution has proved that the prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) were present at the place of the occurrence and the appellants were also present at the spot while armed and caused injuries to the deceased as well as the prosecution witnesses.
15. As we have held above, in this case date, time and place of occurrence is admitted but only the manner of the incident stated by the appellants' side is different from the prosecution case. We have noted that learned counsel for the appellants argued that the complainant side received all the injuries at the hands of their own companions but also stated that the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were seriously injured during the occurrence. The prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) stated about the injuries suffered by the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat that the said injuries were inflicted upon them by other people who were also present at the place of the incident and not by the prosecution witnesses. Shamroz (PW-1) stated in his statement before the learned trial court, as under:- " The other people present in the market gave brick/stone blows to the accused and Metab, Aftab and Jahangir were injured who were apprehended by the people along with their respective weapons while other succeeded in fleeing away from the spot."
Rawal (PW-2) stated in his statement before the learned trial court, as under:- "The other people present in the market gave brick/stone blows to the accused and Metab, Aftab and Jahangir were
(sic) injured were apprehended by the people along with their respective weapons while other succeeded in fleeing away from the spot."
Muhammad Aadil (PW-3) stated in his statement before the learned trial court,as under:- "The other people present in the market gave brick/stone blows to the accused and Metab, Aftab and Jahangir were (sic) injured were apprehended by the people along with their respective weapons while other succeeded in fleeing away from the spot."
Muhammad Arshad (PW-4) stated in his statement before the learned trial court, as under:- "The other people present in the market gave brick/stone blows to the accused and Metab, Aftab and Jahangir were (sic) injured were apprehended by the people along with their respective weapons while other succeeded in fleeing away from the spot."
Muhammad Afzal (PW-5) stated in his statement before the learned trial court, as under:- " People, who were gathered in green market hit bricks and stone which hit to accused Aftab, Mehtab and Jahangir and they were injured. The said accused were caught hold by the people alongwith their weapons, while other accused persons made their good escape from the spot with their respective weapons."
Muhammad Zeeshan (PW-6) stated in his statement before the learned trial court, as under:- "The people, who were gathered there, hit stone and bricks which hit to accused Aftab, Mehtab and Jahangir and they were injured. "
This claim of the prosecution witnesses namely Shamroz (PW-1), Rawal (PW2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) that the injuries suffered by the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were inflicted upon them by other people who were also present at the place of the incident and not by the prosecution witnesses was not verified by Muhammad Zubair, SI (CW-3) , the Investigating Officer of the case who not only stated that he arrested the appellant namely Mehtab on 02.11.2017 and the appellant namely Aftab on 14.12.2017 and the appellant namely Jehangir alias Nomi on 04.11.2017 after they had been discharged from the hospitals where they were being treated but also stated that he did not record the statement of any person present at the place of occurrence who claimed that the injuries suffered by the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were inflicted upon them by other people who were also present at the place of the incident and not by the prosecution witnesses. During cross-examination Muhammad Zubair, SI (CW-3), the Investigating Officer of the case , stated as under:- "It is correct that no private person from the Mandi deposed before the me that accused persons namely Aftab, Mehtab and Jahangir were apprehended by PWs. It is also correct that no private person deposed before me that they throw stones and bricks on the accused namely Jahangir, Aftab and Mehtab in order to overpower them and caused injuries to them. "
16. The the learned counsel for the complainant and the learned Deputy Prosecutor General have argued that the appellants denied their presence at the time of the occurrence and therefore no benefit can be extended to them for the failure of the prosecution to explain the injuries suffered by the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat. In this regard it is observed that the appellants' plea as now raised by the learned counsel for the appellants emanates from the case of the prosecution itself. The appellants did not raise this plea during the trial at the time when the prosecution witnesses were subjected to cross- examination or even while getting their statements recorded under section 342 Cr.P.C however there is no bar to raise such a plea despite having not taken the said plea specifically during trial and the Court can deduce the same from the evidence if the same is acceptable.Reliance in this regard is placed on the case of "Ghulam Farid v. The State" (2009 SCM R 929) wherein the august Supreme Court of Pakistan has held as under:- "The appellant did not raise this plea during trial either in his statement under section 342, Cr.P.C. or at the time when the prosecution witnesses were subjected to cross-examination. There is no bar to raise such plea despite having not taken the said plea specifically during trial and the Court can infer the same from the evidence led during trial if the same is tenable."
17. As the prosecution witnesses namely Shamroz (PW-1), Rawal (PW-2), Muhammad Aadil (PW-3), Muhammad Arshad (PW-4), Muhammad Afzal (PW-5) and Muhammad Zeeshan (PW-6) could not explain the presence of several injuries on various parts of the bodies of the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat so, it can be gathered from the above that both the parties have not come to the Court with clean hands and have not stated the whole truth. In such a situation, the Court cannot be deterred by the incompleteness of the tale from drawing the inference that properly flows from the evidence and circumstances of the case. In this regard, reliance is placed on "Syed Ali Beopari v. Nibaran Mollah and others" (PLD 1962 Suprem e Court 502).The occurrence with material facts having been admitted, the sole question left for determination was as to whether the version given by the prosecution or one put by the defence was the correct picture of the occurrence. The prosecution having taken benefit of the large number of injuries on the person of injured prosecution witnesses and the deceased, pleading the annoyance of the accused over pending litigation, made efforts to prove the aggression of the defence, whereas the defence, taking advantage of the injuries sustained by the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat, pleaded causing of injuries to the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat by the complainant party . Four persons on the side of the complainant were injured and one lost his life.
On the other hand, the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were also injured as has been brought on record during the course of the trial. Dr. Muhammad Rafique (CW-2) stated that on 02.11.2017, he had also medically examined the appellant namely Jehangir alias Nomi son of Liaquat and observed the following injuries present on his body:- " DESCRIPTION OF INJURIES.
Injury No.1 A lacerated wound 3cmx1cmx bone exposed, above and back of left ear. Advise X-ray skull.
Injury No.2 A lacerated wound 6 mmx1mm x bone exposed, on top of scalp.
Injury No.3 A lacerated wound 4cmx0.5cm x bone exposed, 8cm behind left ear.
Injury No.4 A lacerated wound 1cmx0.5cmx bone not exposed. 7 cm behind right ear.
Injuries all KUO Possibility of fabrication, no. Probable duration of injuries... about within one hour."
Dr. Muhammad Rafique (CW-2) further stated that on 02.11.2017, he had also medically examined the appellant namely Mehtab son of Zafar Iqbal and observed the following injuries present on his body:- "DESCRIPTION OF INJURIES.
Injury No.1 A lacerated wound 1cmx3mlx bone not exposed, on top and back of scalp.
Injury No.2 A lacerated wound 2mmx0.5mm x bone not exposed, on top and back of scalp.
Injury No.3 An abrasion 4mmx2mm on outer side of left eye brow.
Injury No.4 An abrasion 1cmx1cm with blackish brose. (4cmx2cm) below left eye.
Injury No.5 An abrasion 1cmx1cm on outer side of right eye.
Injury No.6 An abrasion 1cmx1cm on back of left hand.
Injury No.7 An abrasion (gutter shape) 2cmx1cm, 10 cm above left knee joint.
Injuries all KUO Possibility of fabrication, no. Probable duration of injuries... about within two hours.
Kind of weapon... all by blunt weapons except injury No.7 by fire arm "
Dr. Muhammad Rafique (CW-2) further stated that on 02.11.2017, he had also medically examined the appellant namely Aftab son of Zafar Iqbal and observed the following injuries present on his body:- "DESCRIPTION OF INJURIES.
Injury No.1 A lacerated wound 2cmx3mm x bone not exposed, 10 cm behind left ear. Injury No.2 A swelling 6cmx3cm on base of left thumb. Advised X-ray left hand.
Injury No.3 A swelling 4cmx2cm on, above and outer side of right wrist. Advised X-ray right hand.
Injury No.4 A circular lacerated wound 8mmx8mmx going deep with blackening around on outer side of right thigh, 30 cm above patella. (wound of entry) advised X-ray right thigh.
Injury No.5 A lacerated wound 5mmx5mmx going deep, 8cm above right medial malleolus (wound of entry?) advised X-ray right leg.
Injury No.1 Shajja-e-Khafifah. All other KUO. Possibility of fabrication, no. Probable duration of injuries... about within two hours.
Kind of weapon... Injuries No.1,2,3 by blunt weapons, injury No.4 by fire arm, injury No.5 by fire arm?
(sic) "
The statement of Dr. Muhammad Rafique (CW-2) clearly proves the fact that during the incident, the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were not only injured but had also received serious injuries which necessitated their admissions in the hospital on 02.11.2017 for which reason the arrest of the appellants namely Aftab son of Zafar Iqbal, Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat was put in abeyance and Muhammad Zubair, SI (CW-3) , the Investigating Officer of the case arrested the appellant namely Mehtab on 02.11.2017 and the appellant namely Aftab on 14.12.2017 and the appellant namely Jehangir alias Nomi on 04.11.2017 after they had been discharged from the hospitals where they were being treated. A perusal of the record of the prosecution case itself reveals that the appellants namely Aftab son of Zafar Iqbal , Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat were seriously injured during the incident and no manner of doubt remains in this regard.
18. We have also noted that the prosecution witnesses claimed that one day before the incident, another incident had taken place after which the case F.I.R. No. 469 of 2017 had been got recorded at the police station City Kehror Pacca District Lodhran. Hence judging from their acts and conduct we think it can safely be said that each party, anticipated resistance from the other and were, therefore, determined to have a trial of strength. However, the number of injuries on the person of the deceased and prosecution witnesses were more than that of the accused persons. The facts in evidence, with no doubt, suggest that both parties, expecting an unfortunate incident at any time, were mentally and physically prepared to face the situation. In such circumstances, it will be impossible to say that the accused were acting on the defensive merely or in other words, were acting in the exercise of any right of private defence of person or property. From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into a fight. We think it is rational to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the happenstance.
19. From the detailed analysis and the scrutiny of the evidence and the circumstances under which the occurrence took place, it can easily be ascertained that due to the extreme and impulsive situation, suddenly an expected quarrel took place between the parties resulting in injuries to the members of both sides. The mere fact that the complainant side was the loser and that a number of injuries were sustained by their members by itself is not a fact to determine the question of aggression. The prosecution as well as the defence withheld some material facts from placing on record to fix the whole responsibility of aggression on an individual party. The encounter probably was not planned or premeditated but each party, having a constant fear of attack by the other side, on facing each other became active to deal with the situation. While reviewing the entire evidence produced by the prosecution and the plea taken by the defence, the total responsibility of inviting trouble by an individual party cannot reasonably be put either on the accused or the complainant party. The circumstances of the case do not prove the defence plea or the aggression of the complainant party rather it being a free fight and a melee, which undoubtedly was not an arranged occurrence of either party rather both sides, under compelled circumstances, were to participate in it. It is common that in such like cases each party hesitates to bring the true facts on record to prove the aggression of his opponent. The prosecution has not brought satisfactory evidence to establish the aggression of the accused to come to a definite conclusion to give a verdict of the correctness of the prosecution version or plausibility of defence plea.
Exception 4 of the erstwhile section 300 of the P.P.C. covered those cases where an offender causes death 'without premeditation in a sudden flight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner'. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. It is to be noted that the word 'fight' occurring in Exception 4 contained in the erstwhile section 300, P.P.C. is not defined in PPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. 'Sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1 provided in the erstwhile provisions of section 300 P.P.C.. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. Exception 4 provided in the erstwhile provisions of section 300, P.P.C. jurisprudentially must be reckoned as a humane provision accepting the fact that even the most rational of men may, under the heat of passion, do acts which they may not have done or would not do if saner faculties were to prevail. To such persons, law in a humane manner, permits mitigation if and only if it is proved that the passion happened to run in a sudden fight upon a sudden quarrel. The present case , fulfilling all the necessary elements of free fight i.e. the preparation of the parties with some background of enmity or grudge against each other and looking for the opportunity to damage the opponent or the happening of something suddenly between the parties, the each participant is burdened with the liability of the act committed by him. These factors of the case squarely attract Exception 4 provided in the erstwhile provisions of section 300 P.P.C.
20. Having come to the conclusion that it was a free fight between the parties, we proceed to consider the liability of the each of the appellants vis-a-vis the roles played by them. With regard to the appellant namely Aftab son of Zafar Iqbal , it is observed that the death of Muhammad Ashraf (deceased) occurred during the course of the fight between the parties and no unfair advantage appears to have been taken by the appellant namely Aftab son of Zafar Iqbal. The pivotal question in the circumstances shall be whether the appellant namely Aftab son of Zafar Iqbal is liable for committing culpable homicide amounting to murder or he is entitled to the benefit of exception 4 to the erstwhile section 300 P.P.C. The benefit of Exception 4 provided in the erstwhile section 300 P.P.C. cannot be ordinarily denied on the ground that the act committed in a free fight was intentional, rather the benefit is extended subject to the fulfilment of the conditions and taking not undue advantage or acting in a cruel manner. The intention alone, in the absence of other essential conditions, in such cases cannot be pressed for the application of section 302(b), P.P.C. In the case of culpable homicide not amounting to murder, the act of causing death is either done with the intention to cause death or with that knowledge. In the present case, the act of the appellant namely Aftab son of Zafar Iqbal, of causing injuries to the deceased was done by him with the intention to cause death but having been done during the course of free fight, with no undue advantage and not in a cruel manner, the case should fall within the purview of Exception 4 to the erstwhile section 300 P.P.C. to be saddled with the responsibility of committing an offence under section 302 (c) P.P.C. The said Exception 4 to Section 300 and section 300 of the old law are reproduced hereunder: "300. Culpable homicide -- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Exception 1 --When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
Exception 2 -- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3 -- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4 -- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation -- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5 -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
It has already been held by the august Supreme Court of Pakistan in the case of "Ali Muhammad v.
Ali Muhammad and another" (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300 P.P.C. now attract the provisions of section 302(c) P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of the heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant namely Aftab son of Zafar Iqbal nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the erstwhile section 300 P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant namely Aftab son of Zafar Iqbal falls within the purview of the provisions of section 302(c) P.P.C. In the case, Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) the august Supreme Court of Pakistan had considered the scope of section 302(c) PPC (at pages 290-291) and held as under: "Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633. there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
In the case of Zahid Rehman v. State (PLD 2015 Supreme Court 77) the august Supreme Court of Pakistan held as under: "... 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. In the case of Ali Muhammad (supra) it had been declared by this Court that such situations and circumstances are the same which were contemplated by the Exceptions to the erstwhile section 300, P.P.C."
The cases covered by the Exceptions in the old section 300 P.P.C. are to be dealt with under clause
(c) of the section 302 PPC. The case of "Muhammad Saleem v. State" (2007 SCMR 1896) was decided after the amendments had been made in the P.P.C.. In that case, a sudden fight had taken place and the appellant had given a single blow with a stick on the head of the deceased and the august Supreme Court of Pakistan had converted the conviction awarded to the appellant under section 302 (b) PPC to one under section 302 (c) P.P.C. Reference was made to the Exceptions provided in the old section 300 P.P.C., which defined 'murder', but excepted certain acts, including those mentioned in Exception 4 thereto which attracted the punishment prescribed under the old section 304 P.P.C.. Reliance is also placed on the case of Syed Ali Beopari v. Nibaran Mollah and others (PLD 1962 Suprem e Court 502) wherein it was held as under:- "It seems to us that the High Court in this case did not fully .appreciate the circumstances and the manner in which Ahmad Bepari lost his life. Prosecution attempted to establish that the accused party were wrongfully reaping paddy from Ahmad Bepari's land and on his raising protest one of them killed him. In view of the fact that there was no dispute between the parties over the said land the High Court disbelieved this part of the prosecution story. This view of the High Court also finds some support from the fact that no reaped paddy was seized by the Investigating Officer from that land. Hence from the above facts a conclusion may be drawn that the fight was not over the paddy of Ahmad Bepari's land.
The learned Judges of the High Court, however, made no attempt to consider the evidence and circumstances as a whole in order to ascertain what actually took place. From the fact that the prosecution attempted to shift the place of occurrence they were content to conclude that the complainant party was the aggressor and that the accused persons most probably acted in and within the right of private defence. The evidence and circumstances, however do not justify such conclusions.
Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances. There is sufficient and satisfactory evidence that there was dispute between the parties over the plot which adjoins Ahmad Bepari's land to the south. Syed Ali Bepari (P. W. 1) claimed this southern plot and also filed documents in support of his claim. On the other hand, the accused Adu Mollah filed certain papers in support of his claim. There is, however no satisfactory evidence that either party was in exclusive or undisturbed possession of this land. A legitimate conclusion, therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict.
Hence judging from their acts and conduct we think it can safely be said that each part), anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that the accused party were acting' on the defensive merely or in other words were acting in the exercise of any right of private defence of person or property. From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. We think it is reasonable to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter. Hence in the circumstances such as those of the present case no question of right of private defence would arise and, the common object stated in the charge having failed, each person would be held responsible for his individual acts.
Now we proceed to consider the extent to which these three respondents, namely, Nibaran Mollah, Adu Mollah and Basheruddin were responsible for what occurred on the morning of 15th November 1959. According to the prosecution Nibaran Mollah killed Ahmad Bepari by giving a blow with a katra on his belly. Nibaran's presence m the fight is not disputed. The injuries on his person speak for themselves and prove his participation in the fight. Out of the six eye-witnesses who deposed in this case, the presence of three of them, namely, Billal Hussain, Shahajuddin and Khedani who had received injuries in the fight could not be doubted. They all have stated that Nibaran Mollah was solely responsible for killing Ahmad Bepari. The defence could not even suggest why they would falsely assign the part of killing to Nibaran Mollah. Hence we do not see any reason to take a view of credibility of these eye-witnesses on this point different from that of the Additional Sessions Judge. We think it has been proved beyond any doubt that Nibaran Mollah was solely responsible for killing Ahmad Bepari.
We also agree with the view taken by the Additional Sessions Judge that the offence committed is culpable homicide, but does not amount to murder, inasmuch as the death of Ahmad Bepari occurred in the course of a fight between two bodies of men who were deliberately fighting together both sides being armed and no unfair advantage appearing upon the evidence to have been taken by Nibaran Mollah in the course of the fight. The sentence of rigorous imprisonment for seven years awarded to Nibaran Mollah also does not seem to be at all on the side of severity."
To fortify our view, reliance is also placed on Abdul Karim v. The State (2007 SCMR 1375). In the said case, in similar circumstances, the accused were convicted under section 302(c), P.P.C. by the learned trial Court, however, were convicted under section 302(b), P.P.C. by the High Court. The matter went to the august Supreme Court of Pakistan and the Apex Court was pleased to restore the judgment of the learned trial Court. Reliance is also placed on the case of "MUHAMMAD ASHRAF alias NIKKA Versus The STATE (2022 SCMR 1328) wherein the august Supreme Court of Pakistan has held as under:- "The perusal of record also reveals that the occurrence took place all of a sudden; there was no pre-meditation on the part of the petitioner's side and during the occurrence the petitioner and co-accused Mujahid also received injuries at the hands of the complainant party, which aspect has been suppressed. Although, no medical report in this regard could be placed on record but there is no denial to this fact that during investigation it was found that the petitioner and the co- accused had received injuries during the occurrence, therefore, the stance of the petitioner cannot be denied merely for the reason that he did not place on record the medical certificate. A careful analysis of this aspect of case reflects that it is established principle of criminal jurisprudence that the defence is not under obligation to prove its version and the burden on it is not as heavy as on the prosecution rather the defence is to only show the glimpse that its version is true. This aspect lends support from the finding of the Investigating Officer that during the occurrence the petitioner and his co-accused had sustained injuries but due to one reason or the other they could not establish the same by producing medico legal reports. The possibility cannot be ruled out that it was because the petitioner was nominated in murder case and according to learned counsel he was arrested soon after the incident, the police officials had not let them to be medically examined being in league with the complainant. This creates a doubt in veracity of prosecution version, as such doubt in the prosecution case can be resolved in favour of the petitioner because it is settled that any doubt arising in the prosecution case is to be resolved in favour of the defence. Even otherwise, we have noted that during the course of investigation co-accused Muhammad Ashfaq, Muhammad Arif, Muhammad Mushtaq, Tariq, Abid were not recommended for challan as they were declared innocent by the Police. It seems the prosecution exaggerated the contents of the private complaint and has made an attempt to involve all the male members of the family. In these circumstances, a dent in the prosecution case has been created, benefit of which must be given to the petitioner. It is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. Any doubt arising in prosecution case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, we have observed that the case advanced by the prosecution is based upon facts not properly brought forth, rather there are certain flaws in the narration of the same particularly manner of occurrence, number of accused persons and suppression of facts, hence as an abundant caution, we refrain to accept finding of both courts below rather consider it a case of sudden affair, coupled with the fact, material facts were suppressed, hence keeping in view the act of each individual, we consider that the case of the petitioner is covered by section 302(c), P.P.C."
21. For what has been discussed above, the Criminal Appeal No. 947-LD of 2022 lodged by the appellants namely Aftab son of Zafar Iqbal ,Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor ,Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal is partly allowed to the extent of the appellant namely Aftab son of Zafar Iqbal. The conviction and sentence of the appellant namely Aftab son of Zafar Iqbal recorded by the trial court under Section 302(b) P.P.C are set aside. Instead, the appellant namely Aftab son of Zafar Iqbal is convicted under section 302(c) P.P.C. The appellant namely Aftab son of Zafar Iqbal is sentenced to rigorous imprisonment of fourteen years under section 302(c) P.P.C. as Tazir for committing Qatl-i- Amd of Muhammad Ashraf son of Muhammad Siddique and is directed to pay Rs. 5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Muhammad Ashraf son of Muhammad Siddique and in case of failure to pay compensation, shall further undergo simple imprisonment of six months.
22. In this particular case, there are some special features relevant to determining the quantum of sentences awarded to the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor ,Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal. We have observed that the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal have suffered the rigours of a protracted trial. We have also observed that it seems likely that the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal would have mended their conduct in these years. Learned counsel for the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor ,Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal on appellants' instructions, has earnestly and humbly prayed that the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoor,Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal may be given a chance to rehabilitate. At present, there is no evidence on the record to hold that the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Zafar Iqbal son of Abdul Shakoo, Sajjad son of Abdul Shakoor and Waseem son of Zafar Iqbal are either previously convicted, habitual or hardened, desperate or dangerous criminals or the offences had been committed by them in the name or on the pretext of honour. As such, the case of the appellants namely Mehtab son of Zafar Iqbal, Jehangir alias Nomi son of Liaquat, Sajjad son of Abdul Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal calls for a lenient view in the matter of the quantum of sentences. There are the five philosophies of sentencing. The first one is retribution and the purpose is to emphasize taking revenge on a criminal, perpetrator or offenders. The next philosophy is incapacitation which means a way to reduce the chances of an offender committing another crime. Then is the deterrence in which a criminal is made to fear going back to jail or prison. Rehabilitation is also another philosophy of sentencing by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance. Reparation is the last of the five philosophies of sentencing in which effort is made to repay victim(s). Indeterminate sentencing means that criminal punishment that promotes rehabilitation through the use of unspecific sentences. The offence under section 324 P.P.C. has been made punishable with imprisonment of either description for a term which may extend to ten years whereas the offence under section 337-D P.P.C. has been made punishable with imprisonment of either description for a term which may extend to ten years whereas the offence under section 337-A(i) P.P.C. has been made punishable with imprisonment of either description for a term which may extend to two years whereas the offence under section 337-F(iii)
P.P.C. has been made punishable with imprisonment of either description for a term which may extend to three years.The very intention of the Legislature for providing indeterminate sentencing, by using the words "may extend to" in sections 324,337-D,337-A(i) and 337-F(iii) P.P.C. was that it would provide for the rehabilitation of a convict. Such provisions of law providing for the unspecific sentences are indicative that the Courts have to appreciate circumstances indicative of the reformation of a convict before deciding about the quantum of sentence. A reformed convict will not only be a better person for society but may also be helpful for his dependents. The August Supreme Court of Pakistan has also observed in the case of Niaz-ud-Din v. The State (2007 SCMR 206) at page 209 as under:- "However, coming to the question of sentence we note that it has been conceded by learned A.A.G. that petitioner is a previous non-convict and there is no other instance of petitioner's involvement in drug trafficking. It has also been brought in evidence that at the time of this arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer. In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself."
Reliance is also placed on the cases of ""Naseem Khan v. The State" (2021 SCMR 1771), "Mst. Sughran versus State (2021 SCMR 109)"Niaz ud Din v. The State" (2007 SCMR 206), "Shaukat Ali alias Billa v.
The State" (2015 SCMR 308) and "State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi" (PLD 2017 Supreme Court 671). Consequently, the Criminal Appeal No.947-LD 2022, lodged by the appellant namely Sajjad son of Shakoor is dismissed to his extent and the conviction of the appellant Sajjad son of Shakoor under sections 324 and 337-D P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Sajjad son of Shakoor under sections 324 and 337-D P.P.C.and the sentence of the appellant namely Sajjad son of Shakoor awarded to him under section 324 P.P.C is reduced from Rigorous imprisonment of ten years to that of Rigorous imprisonment of five years however the punishment of fine of Rs.100,000/- to be paid by the appellant is maintained and the period of simple imprisonment, to be undergone by the appellant in default of payment of fine is also maintained and the sentence of the appellant namely Sajjad son of Shakoor awarded to him under section 337 D P.P.C is reduced from Simple imprisonment of ten years to Rigorous imprisonment of five years, however the punishment of the amount of Arsh to be paid by him to Shamroz (PW-1) shall remain intact and he shall remain in custody till he pays the Arsh amount and his imprisonment for the failure to pay the Arsh amount shall be treated as simple imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure, 1898 is extended to the appellant and all the sentences awarded to the appellant are ordered to run concurrently. The Criminal Appeal No.947-LD 2022, lodged by the appellant namely Zafar Iqbal son of Abdul Shakoor is dismissed to his extent and the conviction of the appellant Zafar Iqbal son of Abdul Shakoor under sections 324 and 337-D P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Zafar Iqbal son of Abdul Shakoor under sections 324 and 337-D P.P.C. and the sentence of the appellant namely Zafar Iqbal son of Abdul Shakoor awarded to him under section 324 P.P.C is reduced from Rigorous imprisonment of ten years to that of Rigorous imprisonment of five years however the punishment of fine of Rs.100,000/- to be paid by the appellant is maintained and the period of simple imprisonment, to be undergone by the appellant in default of payment of fine is also maintained and the sentence of the appellant namely Zafar Iqbal son of Abdul Shakoor awarded to him under section 337 D P.P.C is reduced from Simple imprisonment of ten years to Rigorous imprisonment of five years, however the punishment of the amount of Arsh to be paid by him to Shamroz (PW-1) shall remain intact and he shall remain in custody till he pays the Arsh amount and his imprisonment for the failure to pay the Arsh amount shall be treated as simple imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure, 1898 is extended to the appellant and all the sentences awarded to the appellant are ordered to run concurrently. The Criminal Appeal No.947-LD 2022, lodged by the appellant namely Waseem son of Zafar Iqbal is dismissed to his extent and the conviction of the appellant Waseem son of Zafar Iqbal under sections 324 and 337-F(iii) P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Waseem son of Zafar Iqbal under sections 324 and 337-F(iii) P.P.C. and the sentence of the appellant namely Waseem son of Zafar Iqbal awarded to him under section 324 P.P.C is reduced from Rigorous imprisonment of ten years to that of Rigorous imprisonment of five years however the punishment of fine of Rs.100,000/- to be paid by the appellant is maintained and the period of simple imprisonment, to be undergone by the appellant in default of payment of fine is also maintained and the sentence of the appellant namely Waseem son of Zafar Iqbal awarded to him under section 337-F(iii) P.P.C is reduced from Simple imprisonment of three years to Rigorous imprisonment of one year, however the punishment of the amount of Daman to be paid by him to Muhammad Arshad (PW-4) shall remain intact and he shall remain in custody till he pays the Daman amount and his imprisonment for the failure to pay the Daman amount shall be treated as simple imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure, 1898 is extended to the appellant and all the sentences awarded to the appellant are ordered to run concurrently. During the course of arguments, learned counsel for the appellants namely Sajjad son of Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal had prayed that appellants namely Sajjad son of Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal are poor and cannot pay the Daman and Arsh amounts in one go, therefore, requested for installments of the Daman and Arsh amounts. Section 337X P.P.C. reads as under :- "337X. Payment of arsh.__ (1) The arsh may be made payable in a lump sum or in instalments spread over a period of five years from the date of the final judgement.
(2) Where a convict fails to pay arsh or any part thereof within the period specified in sub-section (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until arsh is paid in full or may be released on bail if he furnishes security or surety equal to the amount of arsh to the satisfaction of the court or may be released on parole as may be prescribed by the rules."
Section 337-Y(2), P.P.C. provides that "in case of non-payment of daman, it shall be recovered from the convict and until daman is paid in full to the extent of his liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may be released on bail if he furnishes security equal to the amount of daman to the satisfaction of the Court." In this view of the matter it is directed that the appellants namely Sajjad son of Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal may be released subject to their furnishing surety bonds equal to the amounts of Daman and Arsh to the satisfaction of the learned trial court and if they have completed the sentences of Rigorous imprisonment awarded to them and paid the fine or undergone the period of simple imprisonment in default thereof. The learned trial court is directed to grant two years to the appellants namely Sajjad son of Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal for the payment of Daman and Arsh amounts, which would be payable in equal installments. However, it is made clear that in case of any default in payment of the monthly installments, the appellants namely Sajjad son of Shakoor, Zafar Iqbal son of Abdul Shakoor and Waseem son of Zafar Iqbal shall be taken into custody and dealt with in accordance with law. Reliance in this regard is placed on the case of MUHAMMAD USMAN Versus The STATE (2023 SCMR 1097).
23. With regard to the appellant namely Mehtab son of Zafar Iqbal ,the Criminal Appeal No.947-LD 2022, lodged by the appellant namely Mehtab son of Zafar Iqbal is dismissed and the conviction of the appellant Mehtab son of Zafar Iqbal under sections 337 A(i), 324 and 337-F(iii) P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Mehtab son of Zafar Iqbal under sections 337 A(i), 324 and 337-F(iii) P.P.C. and the sentence of the appellant namely Mehtab son of Zafar Iqbal awarded to him under section 337 A(i) P.P.C is reduced from Simple imprisonment of two years to that already undergone by the appellant namely Mehtab son of Zafar Iqbal and the sentence of the appellant namely Mehtab son of Zafar Iqbal awarded to him under section 324 P.P.C is reduced from Rigorous imprisonment of ten years to that already undergone by the appellant namely Mehtab and the sentence of the appellant namely Mehtab son of Zafar Iqbal awarded to him under section 337 F(iii) P.P.C is reduced from Simple imprisonment of three years to that already undergone by the appellant namely Mehtab ( according to the report dated 10.12.2024 submitted by the Superintendent, Central Jail Bahawalpur ,the appellant has already undergone five years and 23 days of imprisonment awarded to him) ,however the punishment of the amounts of Daman to be paid by him to Muhammad Arshad (PW- 4) shall remain intact.The appellant namely Mehtab son of Zafar Iqbal shall deposit the Daman amounts within the next two years in equal monthly installments. The benefit available under section 382-B of the Code of Criminal Procedure, 1898 is also extended to the appellant Mehtab son of Zafar Iqbal . The learned trial Court is directed to collect the Daman amounts from the appellant namely Mehtab son of Zafar Iqbal as mentioned above and deliver the same to Muhammad Arshad (PW-4) and thereafter discharge the appellant Mehtab son of Zafar Iqbal from the liability of his surety bonds. The sentence of the appellant namely Mehtab son of Zafar Iqbal was suspended by this Court vide order dated 26.06.2024, and the appellant, namely Mehtab son of Zafar Iqbal is present before the Court on bail. The bail bonds submitted by the appellant namely Mehtab son of Zafar Iqbal shall remain intact for the specified period till he pays the Daman amounts. If the appellant namely Mehtab son of Zafar Iqbal fails to deposit the Daman amounts within the next two years in equal monthly installments, then he shall be in custody till he pays the Daman amounts and his imprisonment for the failure to pay the Daman amounts shall be treated as simple imprisonment. With regard to the appellant namely Jehangir alias Nomi son of Liaquat ,the Criminal Appeal No.947-LD 2022, lodged by the appellant namely Jehangir alias Nomi son of Liaquat is dismissed and the conviction of the appellant Jehangir alias Nomi son of Liaquat under sections 337 A(i), 324 and 337-D P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Jehangir alias Nomi son of Liaquat under sections 337 A(i), 324 and 337-D P.P.C. and the sentence of the appellant namely Jehangir alias Nomi son of Liaquat awarded to him under section 337 A(i) P.P.C is reduced from Simple imprisonment of two years to that already undergone by the appellant namely Jehangir alias Nomi son of Liaquat and the sentence of the appellant namely Jehangir alias Nomi son of Liaquat awarded to him under section 324 P.P.C is reduced from Rigorous imprisonment of ten years to that already undergone by the appellant namely Jehangir alias Nomi son of Liaquat and the sentence of the appellant namely Jehangir alias Nomi son of Liaquat awarded to him under section 337 D P.P.C is reduced from Simple imprisonment of ten years to that already undergone by the appellant namely Jehangir alias Nomi son of Liaquat ( according to the report dated 10.12.2024 submitted by the Superintendent, Central Jail Bahawalpur ,the appellant has already undergone six years ,four months and 07 days of imprisonment awarded to him) ,however the punishment of the amounts of Daman and Arsh to be paid by him to Muhammad Adil (PW-3) shall remain intact. The appellant namely Jehangir alias Nomi son of Liaquat shall deposit the Daman and Arsh amounts within the next two years in equal monthly installments. The benefit available under section 382-B of the Code of Criminal Procedure, 1898 is also extended to the appellant Jehangir alias Nomi son of Liaquat .The learned trial Court is directed to collect the Daman and Arsh amounts from the appellant namely Jehangir alias Nomi son of Liaquat as mentioned above and deliver the same to Muhammad Adil (PW-3) and thereafter discharge the appellant Jehangir alias Nomi son of Liaquat from the liability of his surety bonds. The sentence of the appellant namely Jehangir alias Nomi son of Liaquat was suspended by this Court vide order dated 26.06.2024, and the appellant, namely Jehangir alias Nomi son of Liaquat is present before the Court on bail. The bail bonds submitted by the appellant namely Jehangir alias Nomi son of Liaquat shall remain intact for the specified period till he pays the Daman and Arsh amounts.
If the appellant namely Jehangir alias Nomi son of Liaquat fails to deposit the Daman and Arsh amounts within the next two years in equal monthly installments, then he shall be in custody till he pays the Daman and Arsh amounts and his imprisonment for the failure to pay the Daman and Arsh amounts shall be treated as simple imprisonment.The period of simple imprisonment to be undergone by the appellants Mehtab son of Zafar Iqbal and Jehangir alias Nomi son of Liaquat for the default of payment of fine amounts is however reduced to already undergone by them. A certified Copy of the judgment be transmitted to the learned trial Court for compliance.
24. Consequently, the Murder Reference No. 94-LD of 2022 is answered in the Negative and the sentence of death awarded to Aftab son of Zafar Iqbal is Not Confirmed.