SADIQ MAHMUD KHURRAM, J.- Liaquat Ali son of Sher Khan and Saeed Ahmed son of Banaras Khan (convicts) were tried along with Nasir Ali, Ata Muhammad ,Muhammad Khan, Imanat Ali, Mamraz Khan , Muhammad Fayyaz and Riasat Mehmood ( all since acquitted ), the co-accused of the convicts, by the learned Additional Sessions Judge, Pindigheb in the case instituted upon the private complaint titled "Amanat Ali Versus Liaquat Ali and eight others" (relating to F.I.R. No. 350 of 2021 dated 13.09.2021 registered at Police Station Pindigheb, District Attock) in respect of offences under sections 302,324,337-F(vi),341,148 and 149 P.P.C. for committing the Qatl-i-Amd of Basheer Ahmad son of Ahmad Khan (deceased) and Feroze Khan son of Amanat Ali (deceased) . The learned trial court vide judgment dated 30.11.2023 convicted Liaquat Ali son of Sher Khan and Saeed Ahmed son of Banaras Khan (convicts) and sentenced them as infra: Liaquat Ali son of Sher Khan :- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Basheer Ahmad son of Ahmad Khan (deceased) and directed to pay Rs. 3,00,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of each of the two deceased and in case of failure to pay compensation, to further undergo simple imprisonment of six months. ii) Rigorous imprisonment of ten years under section 324 P.P.C and fine of Rs.1,00,00/- and in case of failure to pay fine, to further undergo simple imprisonment of three months. iii) To pay Daman of Rs.3,00,000/- under section 337-F(vi) P.P.C. to the injured Amanat Ali (PW-1) .
The convict was ordered to be hanged by his neck till death.
Saeed Ahmed son of Banaras Khan:- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Feroze Khan son of Amanat Ali (deceased) and directed to pay Rs. 3,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the two deceased and in case of failure to pay compensation, to further undergo simple imprisonment of six months. ii) Rigorous imprisonment of ten years under section 324 P.P.C and fine of Rs.1,00,00/- and in case of failure to pay fine, to further undergo simple imprisonment of three months.
The convict was ordered to be hanged by his neck till death.
The convicts, were however acquitted of the other charges by the learned trial Nasir Ali, Ata Muhammad, Muhammad Khan,Imanat Ali, Mamraz Khan Muhammad Fayyaz and Riasat Mehmood, the co-accused of the convicts were acquitted of all the charges by the learned trial court .
2. Feeling aggrieved, Liaquat Ali son of Sher Khan (convict) lodged the Criminal appeal No.883 of 2023, assailing his conviction and sentence. Feeling aggrieved, Saeed Ahmed son of Banaras Khan (convict) lodged the Criminal appeal No.892 of 2023, assailing his conviction and sentence. The learned trial court submitted Murder Reference No. 71 of 2023 under section 374 Cr.P.C. for confirmation or otherwise of the sentences of death awarded to Liaquat Ali son of Sher Khan and Saeed Ahmed son of Banaras Khan (convicts). We intend to dispose of the Criminal Appeal No.883 of 2023, the Criminal appeal No.892 of 2023 and the Murder Reference No. 71 of 2023 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Amanat Ali (PW-1), the complainant of the case, are as under:- "States that I am farmer by profession. I have civil litigation with accused Liaqat Ali. On 13.09.2021, I, alongwith my brother Bashir Ahmad, my son Feroz Khan and Muhammad Idrees, residents of Thathi Kalran Pindigheb, was on my way back from Pindigheb courts to my home on two motorcycles, one bearing registration number AKK-7082 and the second one was without number.
My brothers namely Lal Khan and Karam Khan were coming behind following us on their motorcycle. At about 02:30 p.m, when we were crossing the "The village School" present at some distance from Ikhlas chowk, in the meanwhile. accused persons Liaqat Ali son of Sher Khan, Nasir Ali son of Sher Khan, Atta Muhammad son of Sarfraz, Muhammad Khan son of Habib, Amanat Ali son of Mushtaq, Saeed Khan son of Banaras, Mumaraz Khan son of Amanat and Faiz son of Nawaz hurriedly overtook us through their four motorcycles and stopped their motorcycles beside the road on the opposite side of the college at some distance and alighted from their motorcycles.
When we arrived near them, the accused persons caused restraint to us. We also alighted from our motorcycles. Meanwhile, accused Liaqat Ali took out pistol from his dub and raised Lalkara that we all would be taught lesson of litigation. Liaqat Ali made fire shots with intention to kill, at my brother Bashir Ahmad (since deceased) which landed on different parts of his person and he fell down on receiving fire shot injuries. Accused Saeed Khan while armed with pistol made straight fire shots upon Feroz Khan (since deceased) with intention to kill him, which landed on different parts of his person body, who also fell down on the ground. Accused MuhammadKhan, being armed with pistol, also made straight fire shots upon Muhammad Idrees with intention to kill, which also landed on different parts of the body of Muhammad Idrees and resultantly he also fell down. Accused Nasir Ali, armed with pistol, made straight fire shots upon me, with intention to kill, which landed on the lower part of my belly and left elbow. I also fell down after receiving these fire shots. The accused persons Atta Muhammad, Amanat Ali and Mumariz Khan gave kick blows to me. At the same time, PWs Lal Khan and Karam Khan attracted at the spot on seeing the occurrence. The accused persons, while brandishing their weapons decamped from the spot on their motorcycles.
Bashir Ahmad succumbed to injuries at the spot and Feroz Khan was taken to THQ Hospital Pindigheb, but after few minutes, my son also succumbed to the injuries. The accused persons Liaqat Ali & others, on the abetment of accused Riasat Ali son of Sultan, committed the murder of my brother Bashir Ahmad and my son Feroz Khan, while causing injuries to me and Muhammad Idrees. The motive of the occurrence is the pending civil litigation with the accused persons. I narrated the incident before police at THQ Hospital Pindigheb and my statement Exh.PA was recorded by police, which bears my signature as Exh.PA/1, upon which FIR No.350 dated 13.09.2021, under section 302, 324, 341, 337F(vi), 341, 148,149 PPC P.S Pindigheb.
During investigation of the above said case at THQ Hospital Pindigheb, I submitted application Exh.PB before the police that due to some fear, pain and being in injured condition, I could not mention the name of accused Fiaz Hussain in the contents of FIR. The said Fiaz Hussain, while armed with pistol, was present, alongwith the other accused persons, at the spot. He raised lalkara, time and again, that no one should be spared. He also provided protection to the other accused persons, being armed at the spot. The accused Fiaz actively participated in the occurrence and shared common object with the other accused persons in order to commit Qatal-eAmd.
I also mentioned in the application Exh.PB which bears my signature as Exh.PB/1 that Nazeer Ahmad son of Ahmad Khan and Majid Ali Khan son of Lal Khan told me that on 12.09.2021, at about 08:30 p.m, accused persons Riasat son of Sultan, Liaqat Ali son of Sher Khan and Saeed were talking to each other at Al-Hussain Hotel Pindigheb. Accused Riasat asked accused Liaqat Ali that when Feroz Khan, Bashir Ahmad, Adil Shehzad & others would come on the date of hearing at Pindigheb Civil courts, they be murdered. Accused Liaqat Ali, in reply, stated not to worry and in affirmation said that he would cause the murder of Bashir, Feroz & other. Accused Riasat Ali nourished grudge for opposing registration of FIR of abduction by Adil and Bashir against him at Islamabad. The above said story was told by the PWs Nazeer Ahmad and Majid Ali to him. My brother and my son were murdered upon the abetment of accused Riasat Ali.
Local police, during investigation, apprehended accused Liaqat Ali and Saeed Ahmad and submitted challan against them but falsely declared the other accused persons as innocent, in connivance with them. I made an application for change of investigation before DPO Attock but no result came out. The investigation was changed and entrusted to Hafeez ur Rehman Inspector, who during his investigation declared involved 05 persons namely Liaqat Ali, Saeed, Muhammad Khan, Fayyaz and Mumaraz, whereas, declared 04 persons namely Riasat Ali, Nasir Ali, Atta Muhammad and Amanat not involved.
The police did not pay heed in this regard. Being aggrieved from the investigation of local police, I preferred instant private complaint Exh.PC against the accused persons which also bears my signatures and thumb impression as Exh.PC/1. The accused persons may be punished in this case in accordance with law.
I tender the attested copy of the petition for medical board, alongwith the order titled "Amanat Khan vs Liaqat Ali & others" Exh.PD/1 3, bail application "titled Tassadaq Hussain vs The State" alongwith order Exh.PE/1-3, rapat No.2/39 dated 08.09.2021 P.S Pindigheb Exh.PF, photocopies of rapat No.2/34 dated 26.05.2021 Mark-PA, of FIR 190 dated 29.05.2021 under section 337F(vi), 337A(i), 34 P.S Pindigheb Mark-PB and of FIR No.60 dated 18.02.2017 under section 452, 354 PPC P.S Pindigheb Mark-PC before this court in support of my version."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Amanat Ali Versus Liaquat Ali and eight others" (relating to F.I.R. No. 350 of 2021 dated 13.09.2021 registered at Police Station Pindigheb, District Attock) in respect of offences under sections 302,324,337- F(vi),341,148 and 149 P.P.C. for committing the Qatl-i-Amd of Basheer Ahmad son of Ahmad Khan (deceased) and Feroze Khan son of Amanat Ali . The learned trial court framed the charge against the accused on 20.01.2023, 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 Amanat Ali (PW-1), Muhammad Idrees (PW-2) and Karam Khan (PW-3). Muhammad Adeel (PW-4) stated that on 13.09.2021 the Investigating Officer of the case took into possession various articles from the place of occurrence and on 19.09.2021, the appellant namely Liaquat Ali got recovered the pistol (P-5) and the appellant namely Saeed Ahmad got recovered the pistol (P-8) . Nazir Ahmad (PW-5) stated that on 13.09.2021 he identified the dead body of the deceased namely Feroz Khan at the time of its post mortem examination and that on 12.09.2021 he and Majid Ali Khan (PW-6) went to a restaurant and at about 09:30 pm they saw the appellant alongwith their co-accused planning the murder of the deceased and told this fact to the complainant of the case. Muhammad Daud (PW-7) stated that on 13.09.2021, he identified the dead body of the deceased namely Bashir Ahmad at the time of its post mortem examination
6. The learned trial court recorded statements of ten witnesses as Court witnesses. Muhammad Akram 501/HC (CW-1) stated that on 13.09.2021 he escorted the dead bodies of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examinations of the dead bodies of the deceased and also got the appellants namely Liaquat Ali and Saeed Ahmad examined on the same day by the Medical Officer and also received their lost worn clothes and on 14.09.2021 the Investigating Officer of the case took into possession Universal Serial Bus (USB) storage device (P-19). Sher Ahmad 557/HC (CW-2) stated that on 13.09.2021, the Investigating Officer of the case handed over to him five sealed parcels, three motorcycles and one bullet and on 16.09.2021 he handed over the sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 19.09.2021 the Investigating Officer of the case handed over to him three parcels and on 24.09.2021 he handed over the three sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 09.10.2021 the Investigating Officer of the case handed over to him one sealed parcel which on 18.10.2021 he handed over to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Tayyab Iqbal draftsman (CW-4) prepared the scaled site plan of the occurrence (Ex.PY). Ghulam Hassan, SI (CW-9) investigated the case from 13.09.2021 till 23.10.2021 arrested the appellants on 14.09.2021 and narrated the facts of the investigation conducted by him in his statement recorded by the learned trial court. Hafeez ur Rehman, Inspector, (CW-10) investigated the case from 02.11.2021 till 13.02.2022 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. Usman Ghafoor (CW-8), who on 13.09.2021 was posted as Medical Officer at THQ hospital Pindigheb and on the same day conducted the post-mortem examination of the dead body of the deceased, namely Feroz Khan.
Dr. Usman Ghafoor (CW-8) on examining the dead body of the deceased namely Feroz Khan, observed as under:- "1. Entry wound on right orbit medial side measuring 1.5 X 1.5 CM with orbit bone fractures measuring extend to 3 X 3 CM. Exit wound measuring 1.5 X 1.5 CM on medial aspect of back of skull and 6 CM from right ear pinna in upward position.
2. Entry wound measuring 1.5 X 1.5 CM on left side of thorax measuring 14 CM below left nipple and 10 CM lateral to body of sternum..
According to my opinion, cause of death might be brain damage due to firearm bullet passed through skull and damaged brain matter and vasculature of brain leading to brain injury and hemorrhage. Ultimately lead to cardiopulmonary arrest."
On 13.09.2021, Dr. Usman Ghafoor (CW-8) also conducted the post-mortem Ahmad Khan . Dr. Usman Ghafoor (CW-8) on examining the dead body of the deceased namely Basheer Ahmad son of Ahmad Khan , observed as under:- "1. Wound entry measuring 1 X 1 CM in occipital region with bleeding about 11 CM back from right ear.
Exit wound measuring 2 X 1 CM on forehead on right side 5 CM above right eye.
Bruise: one bruise was present on left eye..
According to my opinion, cause of death was cardiopulmonary arrest due to gunshot injury to brain. "
On 13.09.2021 Dr. Usman Ghafoor (CW-8) also medically examined Amanat Ali (PW-1) . Dr. Usman Ghafoor (CW-8) on examining Amanat Ali (PW-1), observed as under:- "Entry wound on left side of left elbow joint measuring 2 X 1 CM with active bleeding. Exit wound on medial side of left elbow measuring 2 X 1 CM with active bleeding.
2. Entry wound on left anterior pelvis measuring 3 CM. On below anterior superior iliac spine measuring 1 X 1 CM with active bleeding.
3. Exit wound on left gluteal regeion measuring 8 CM lateral to coccyx bone measuring 1 X 1 CM with active bleeding.
4. Swelling on below right eye. No active bleeding."
On 13.09.2021 Dr. Usman Ghafoor (CW-8) also medically examined Muhammad Idrees (PW-2). Dr. Usman Ghafoor (CW-8) on examining Muhammad Idrees (PW-2), observed as under:- "1. Wound on the left side of chest in the upper region measuring 1 X 1 CM with active bleeding and bubble oozing from wound. Referred to Holy Family Hospital, Rawalpindi and injuries were kept under observation."
8. On 27.11.2023, the learned counsel for the complainant gave up the witnesses namely Lal Khan son of Ahmad Khan, Mehr Khan son of Ahmad Khan, Riasat Ali Khan son of Amanat Khan, Zafar Iqbal son of Lal Khan, Mehboob Khan ASI, Najeeb Ullah ASI and closed the prosecution evidence after tendering in evidence the attested copy of FIR No.461/23 (Exh.PAD), copy of compromise deed between Khalida Bibi and Bashir Ahmed dated 16- 07-2021 (Exh.PAE), original death certificate of Bashir Ahmad son of Ahmad Khan (Exh.PAF), death certificate of Feroze Khan son of Amanat Ali (Exh.PAG), reports of Punjab Forensic Science Agency, Lahore (Exh.PAH, Exh.PAJ and Exh.PAK), photocopy of petition under Section 491 of Cr.P.C. titled as Sher Khan Vs. Karam Khan etc. alongwith order dated 08.09.2022 (Mark. PD/1-6).
9. After the closure of prosecution evidence, the learned trial court examined the appellants namely Liaquat Ali son of Sher Khan and Saeed Ahmad son of Banaras Khan 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 rather during the occurrence, both of them were seriously injured after having been surrounded by the complainant party and fired at whereas both the deceased died as a result of receiving injuries at the hands of their own companions. The appellants opted not to get themselves examined under section 340(2) Cr.P.C. however, the appellant namely Liaquat Ali son of Sher Khan produced the certified copy of private complaint titled " Liaqat Ali Vs. Amanat Ali & others" (Exh.DB), certified copy of my oral statement before police (Exh.DC), certified copy of injury statement alongwith MLC (Exh.DD), certified copy of injury statement of Saeed Ahmad alongwith MLC (Exh.DE), certified copy of surgical report issued by Holy Family Hospital, Rawalpindi (Exh.DF), certified copy of surgical report of Saeed Ahmad issued by Holy Family Hospital, Rawalpindi (Exh.DG), certified copy of the radiological report (Exh.DH), certified copy of evidence recorded in private complaint titled "Liaqat Ali Vs. Amanat Ali & others" (PW-1 Saeed Ahmad Exh.DJ, PW-2 Liaqat Ali Exh.DK, CW-1 Najeeb Ullah ASI Exh.DL, CW-2 Muhammad Akram 501/HC Exh.DM, CW-3 Dr. Farman Ellahi Exh.DN, CW-4 Sher Ahmad 557/HC Exh.DO, CW-5 Dr. Hafiza Kiram Saleem Butta Exh.DP, CW6 Dr. Sobia Kulsum Exh.DQ, CW-7 Muhammad Waqas 23/HC Exh.DR, CW8 Dr. Usman Ghafoor M.O Exh.DS, CW-9 Ghulam Hassan S.I Exh.DT, CW10 Hafeez ur Rehman Inspector Exh.DU) and the certified copy of the application for Superdari dated 13.09.2021 ( Exh.DV) as evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Pindigheb 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 Amanat Ali (PW-1), Muhammad Idrees (PW-2) and Karam Khan (PW-3) were not worthy of reliance. The learned counsel for the appellants further argued that on the day of occurrence the appellants namely Liaquat Ali and Saeed Ahmad were seriously injured after having been surrounded by the complainant party and fired at whereas both the deceased died as a result of receiving injuries at the hands of their own companions. 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 Amanat Ali (PW-1), Muhammad Idrees (PW- 2) and Karam Khan (PW-3). 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 appeals.
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 Amanat Ali (PW-1) and Muhammad Idrees (PW-2) and Qatl-i-Amd of Bashir Ahmad (deceased) and Feroz Khan (deceased) whereas according to the appellants, on the day of occurrence the appellants namely Liaquat Ali and Saeed Ahmad were seriously injured after having been surrounded by the complainant party and fired at whereas both the deceased died as a result of receiving injuries at the hands of their own companions. . 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 in their statements recorded under sections 342, Cr.P.C. ) are that the place of occurrence is not disputed and the incident happening on the return of both the parties from the courts on the day of occurrence 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 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 Amanat Ali (PW-1), Muhammad Idrees (PW-2) and Karam Khan (PW-3) and the medical evidence. Presence of Amanat Ali (PW-1) and Muhammad Idrees (PW-2) 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 Amanat Ali (PW-1) and Muhammad Idrees (PW-2) were examined by Dr. Usman Ghafoor (CW-8). The presence of the prosecution witnesses namely Amanat Ali (PW-1) and Muhammad Idrees (PW-2) at the place of occurrence, at the time of occurrence was not even disputed by the appellants. While appearing before the learned trial court, the prosecution witnesses namely Amanat Ali (PW-1), Muhammad Idrees (PW-2) and Karam Khan (PW-3) 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 Amanat Ali (PW-1), Muhammad Idrees (PW-2) and Karam Khan (PW-3) were present at the place of the occurrence and the appellants were also present at the spot while armed and caused injuries on the person of 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 the appellants in their statements recorded under section 342, Cr.P.C. have stated that the complainant side received all the injuries at the hands of their own companions but also stated that the appellants namely Liaquat Ali and Saeed Ahmad both were also injured during the occurrence. The prosecution case is also silent about the injuries suffered by the appellants namely Liaquat Ali and Saeed Ahmad 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 Supreme 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 Liaquat Ali and Saeed Ahmad, pleaded causing of injuries to the appellants namely Liaquat Ali and Saeed Ahmad to the complainant party . Two persons on the side of the complainant were injured and two lost their lives. On the other hand, the appellants namely Liaquat Ali and Saeed Ahmad were also injured as has been brought on record during the course of the trial. Muhammad Akram 501/HC (CW-1) stated that on 13.09.2021 he got the appellants namely Liaquat Ali and Saeed Ahmad examined on the same day by the Medical Officer and also received their lost worn clothes. Muhammad Akram 501/HC (CW-1), in his statement before the learned trial court stated as under:- "On the same date i.e. 13.09.2021, accused persons Liaqat Ali Khan and Saeed Ahmad in injured condition arrived at THQ Hospital Pindigheb having motorcycle bearing registration No.6114- AKK of red colour. After medical examination of accused persons Liaqat Ali Khan and Saeed Ahmad, Ghulam Hassan S.I/I.O took into possession motorcycle No.6114-AKK (P14) vide recovery memo Exh.PT attested by me and Mehboob Khan ASI. I.O recorded our statements under section 161 Cr.P.C in this regard.
After medical examination of accused persons Liaqat Ali and Saeed Ahmad, medical officer handed over to me blood stained clothes of accused Liaqat Ali ie. off white Shalwar (P15) and Qameez (P16) and clothes of Saeed Ahmad ie. blood stained Kaleji colour Shalwar (P17) and Qameez (P18), I handed over the same to Ghulam Hassan S.I/I.O, who took the same into possession vide recovery memo Exh.PU attested by me. I.O recorded my statement under section 161 Cr.P.C in this regard." (emphasis supplied)
Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case, in his statement before the learned trial court, got recorded as under:- "On the same date i.e. 13.09.2021, accused persons Liaqat Ali Khan and Saeed Ahmad in injured condition arrived at THQ Hospital Pindigheb having motorcycle bearing registration No.6114-AKK of red colour. After medical examination of accused persons Liaqat Ali Khan and Saeed Ahmad, I took into possession motorcycle No.6114-AKK (P14) vide recovery memo Exh.PT attested by Muhammad Akram 501/HC and Mehboob Khan ASI. I recorded their statements under section 161 Cr.P.C in this regard."
Amanat Ali (PW-1), the complainant of the case, admitted during cross-examination that both the appellants namely Liaquat Ali and Saeed Ahmad were not only injured during the incident but were also medically examined by the Medical Officer posted at the same hospital where the prosecution witnesses namely Amanat Ali (PW-1) and Muhammad Idrees (PW-2) had been examined. Amanat Ali (PW-1) during cross-examination admitted as under:- "It is correct that in the said private complaint Liaqat Ali complainant and Saeed injured as we were empty handed. It is correct that Liaqat Ali and Saeed, who are accused in the instant case, were medically examined on 13.09.2021 from THQ Hospital Pindigheb. It is correct that both the accused persons Liaqat Ali and Saeed, according to medical reports got firearm injuries."
Karam Khan (PW-3) also admitted during cross-examination as under:- "It is correct that on the day of occurrence, medical examination of Liaqat Ali and Saeed accused was conducted."
During cross-examination by the learned counsel for the complainant, Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case replied as under: "There were present only one entry and one exit wound upon the persons of each of the accused ie.
Liaqat Ali and Saeed Ahmad, apart from it, no other injury was present upon the persons of said accused persons. On 13.09.2021, I have held the arrest of the accused persons Liaqat Ali and Saeed Ahmad in abeyance and they were formally arrested by me on 14.09.2021."
The above referred portions of the statements of the prosecution witnesses clearly prove the fact that during the incident, the appellants namely Liaquat Ali and Saeed Ahmad were not only injured but had also received serious injuries which necessitated their admission in the hospital on 13.09.2021 for which reason the arrests of the appellants namely Liaquat Ali and Saeed Ahmad were put in abeyance. A perusal of the record as submitted by the appellant namely Liaquat Ali also reveals that both the appellants namely Liaquat Ali and Saeed Ahmad were injured during the incident and no manner of doubt remains in this regard.
16. We have also noted that the prosecution witnesses claimed that at the time of occurrence they were returning from the courts and it were the appellants and their co-accused who stopped them and thereafter fired at them , however during the course of the investigation, Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case, collected evidence that the narrative of the case as given by the prosecution witnesses namely Amanat Ali (PW-1) , Muhammad Idrees (PW-2) and Karam Khan (PW-3) was not correct at all and that actually the incident had happened when the complainant party stopped their vehicles on their own, waiting for the arrival of the appellants and their co-accused and thereafter the incident happened. During the course of the investigation, Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case, also took into possession the Universal Serial Bus (USB) storage device (P-19), having stored in it the video footage of the incident which revealed the presence of only two persons from the accused side and exposed the false narrative of the private complaint. Even the prosecution witness namely Karam Khan (PW-3) admitted during cross-examination that according to the video footage of the incident, as recovered from the CCTV Cameras installed at and around the place of occurrence,it was revealed that the number of the accused as mentioned by the prosecution witnesses namely Amanat Ali (PW-1) , Muhammad Idrees (PW-2) and Karam Khan (PW-3) was wrong. Karam Khan (PW-3) during cross-examination admitted as under:- "It is correct that at the place of occurrence CCTV Camera was installed. It is correct that in the CCTV footage accused persons Atta Muhammad, Amanat Ali, Nasir Ali, Mumaraz Khan, Muhammad Khan and Muhammad Fayya z were not present." (emphasis supplied)
During cross-examination by the learned counsel for the complainant, Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case replied as under: "I have also collected the footages of CCTV Cameras installed at Superior College Pindigheb. After seeing said the footages secured from CCTV Cameras installed at Superior College Pindigheb, I was of the view that the face features of the persons present in the said footage were not identifiable. Volunteered; however, it can be ascertained that how many persons were there at the crime scene."
During cross-examination by the learned counsel for the appellants, Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case replied as under: "Keeping in view the CCTV footages collected from the Superior College Pindigheb, two out of 09 accused persons namely Liaqat Ali and Saeed Ahmad were found to be present at the place of occurrence at the time of occurrence."
It was also brought on record that during the course of the investigation, Ghulam Hassan, SI, (CW- 9), the Investigating Officer of the case, collected evidence that actually the incident had happened when the complainant party stopped their vehicles on their own, waiting for the arrival of the appellants and their co-accused. Ghulam Hassan, SI, (CW-9), the Investigating Officer of the case, explained during cross-examination as under :- "Both the parties reached at the place of occurrence at the same time, whereas, the complainant party stopped the motorcycles ahead of the accused persons." (emphasis supplied)
A similar conclusion was drawn by Hafeez ur Rehman, Inspector (CW-10) was also armed with weapons and already present at the place of the occurrence . Hafeez ur Rehman, Inspector (CW- 10) stated during cross-examination:- "As per my investigation, it was found that the complainant party was already present at the crime scene. It is correct that as per my investigation, the complainant party was also armed with firearm weapons. As per my investigation, it is correct that there present other crime empties in addition to those which were taken into possession by the first investigation officer and which were not sent to PFSA."
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.
17. 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 loser and 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 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. 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.
18. 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 Liaquat Ali who is attributed the fire shot which led to the death of the deceased namely Bashir Ahmad, it is observed that the death of Bashir Ahmad (deceased) occurred during the course of the fight between the parties and no unfair advantage appears to have been taken by the appellant namely Liaquat Ali. Similarly, with regard to the appellant namely Saeed Ahmad who is attributed the fire shot which led to the death of the deceased namely Feroz Khan, it is observed that the death of Feroz Khan (deceased) occurred during the course of the fight between the parties and no unfair advantage appears to have been taken by the appellant namely Saeed Ahmad. The pivotal question in the circumstances shall be whether the appellants namely Liaquat Ali and Saeed Ahmad are liable for committing culpable homicide amounting to murder or they are 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 acts of the appellants namely Liaquat Ali and Saeed Ahmad, of causing the fire shots to the deceased were done by them 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 appellants nor had they 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 appellants 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 Supreme 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 responsiblefor 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."
19. For what has been discussed above, the Criminal Appeal No. 883 of 2023 lodged by the appellant namely Liaquat Ali son of Sher Khan and the Criminal Appeal No. 892 of 2023 lodged by the appellant namely Saeed Ahmad son of Banaras Khan are partly allowed . The convictions and sentences of the appellants namely Liaquat Ali son of Sher Khan (the appellant in Criminal Appeal No. 883 of 2023) and Saeed Ahmad son of Banaras Khan (the appellant in Criminal Appeal No. 892 of 2023) recorded by the trial court under Section 302(b) P.P.C are set aside. Instead the appellants namely Liaquat Ali son of Sher Khan (the appellant in Criminal Appeal No. 883 of 2023) and Saeed Ahmad son of Banaras Khan (the appellant in Criminal Appeal No. 892 of 2023) are convicted under Section 302(c) P.P.C. The appellant namely Liaquat Ali son of Sher Khan (the appellant in Criminal Appeal No. 883 of 2023) is sentenced to rigorous imprisonment for fourteen years under section 302(c) P.P.C. as Tazir for committing Qatl-i-Amd of Basheer Ahmad son of Ahmad Khan (deceased) and directed to pay Rs. 3,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Basheer Ahmad son of Ahmad Khan (deceased) and in case of failure to pay compensation, to further undergo simple imprisonment of six months. The appellant namely Saeed Ahmad son of Banaras Khan (the appellant in Criminal Appeal No. 892 of 2023) is sentenced to rigorous imprisonment for fourteen years under section 302(c) P.P.C. as Tazir for committing Qatl-i- Amd of Feroz Khan son of Amanat Ali (deceased) and directed to pay Rs. 3,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Feroz Khan son of Amanat Ali (deceased) and in case of failure to pay compensation, to further undergo simple imprisonment of six months. The convictions and sentences of the appellant namely Liaquat Ali son of Sher Khan (the appellant in Criminal Appeal No. 883 of 2023) recorded by the trial court under sections 324 and 337-F(vi) P.P.C and the conviction and sentence of the appellant namely Saeed Ahmad son of Banaras Khan (the appellant in Criminal Appeal No. 892 of 2023) recorded by the trial court under section 324 P.P.C are set aside as the injured witnesses namely Amanat Ali (PW-1) and Muhammad Idrees (PW-2) did not saddle the appellants with the responsibility of inflicting injuries upon them. Reliance in this regard is placed on the case of Allah Nawaz Vs The State (2009 SCMR 736) wherein the august Supreme Court of Pakistan has held as under:- "11. In view of the above, we convert his conviction from 302(b) to 302(c) of the P.P.C. and alter the sentence of death to 14 years' R.I. on two counts. The appellant will also pay compensation of Rs.1,00,000 to the legal heirs of the deceased, in default he would undergo simple imprisonment for one year. The sentence of 14 years' R.I. awarded to the appellant shall run concurrently. He will also be entitled to the benefit of section 382-B, Cr.P.C. So far as the conviction and sentence under sections 324 and 337-A(ii)/34, P.P.C. are concerned, since the injured did not implicate the appellant nor it was confessed that the appellant also caused injury to Saeed Anwar, therefore, he is acquitted of the said charges."
The benefit under section 382-B, Code of Criminal Procedure, 1898 shall be extended to the appellants namely Liaquat Ali son of Sher Khan (the appellant in Criminal Appeal No. 883 of 2023) and Saeed Ahmad son of Banaras Khan (the appellants in Criminal Appeal No. 892 of 2023).
20. Consequently, the Murder Reference No. 71 of 2023 is answered in Negative and the sentences of death awarded to Liaquat Ali son of Sher Khan and Saeed Ahmad son of Banaras Khan are Not Confirmed.