SADIQ MAHMUD KHURRAM, J.- Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz, Sajawal Masih son of Javaid Masih,Asif Masih son of Emanuel Masih and Dawood Masih son of Sarwar Masih (convicts) were tried along with Rawal Masih (since acquitted ), the co-accused of the convicts, by the learned Sessions Judge, Bahawalpur in the case F.I.R No. 323 of 2021, dated 26.06.2021, registered at police station Cantt., District Bahawalpur in respect of offences under sections 302,337-A(i), 337-F(i), 337-F(ii), 337-F(v), 337-H (2), 148 and 149 P.P.C.. for committing the Qatl-i-Amd of Atif Masih son of Fateh Masih (deceased). The learned trial court vide judgment dated 28.11.2022 convicted Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz, Sajawal Masih son of Javaid Masih, Asif Masih son of Emanuel Masih and Dawood Masih son of Sarwar Masih (convicts) and sentenced them as infra: Shamshad Sanni alias Lallou son of Aslam Riaz :- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Atif Masih son of Fateh Masih (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. ii) Simple Imprisonment of one year under section 337 F-(i) P.P.C.( wrongly mentioned as 337-E(a) in the judgment by the learned trial court ) and directed to pay Daman of Rs.10,000/- to the injured namely Ramaish Nazeer (PW-5). iii) Simple Imprisonment of three years under section 337 -F(ii) P.P.C..(wrongly mentioned as 337- E(b) in the judgment by the learned trial court ) and directed to pay Daman of Rs.10,000/- to the injured namely Ramaish Nazeer (PW-5). iv) Simple Imprisonment of one year under section 148 P.P.C.
The convict was ordered to be hanged by his neck till death.
Sajjad alias Chajju son of Aslam Riaz:- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Atif Masih son of Fateh Masih (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. ii) Simple Imprisonment of one year under section 148 P.P.C.
The convict was ordered to be hanged by his neck till death.
Javaid alias Phajja son of Aslam Riaz :- i) Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Atif Masih son of Fateh Masih (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. ii) Simple Imprisonment of one year under section 148 P.P.C.
Sajawal Masih son of Javaid Masih:- i) Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Atif Masih son of Fateh Masih (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. ii) Simple Imprisonment of one year under section 148 P.P.C.
Asif Masih son of Emanuel Masih :- i) Simple Imprisonment of one year under section 148 P.P.C. ii) Simple Imprisonment of two years under section 337 A-(i) P.P.C. and directed to pay Daman of Rs.10,000/- to the injured namely Nazir Thomas (PW-4). iii) Simple Imprisonment of two years under section 337 -F(v) P.P.C. and directed to pay Daman of Rs.10,000/- to the injured namely Nazir Thomas (PW-4).
Dawood Masih son of Sarwar Masih :- i) Simple Imprisonment of one year under section 148 P.P.C. ii) Simple Imprisonment of two years under section 337 A-(i) P.P.C. and directed to pay Daman of Rs.10,000/- to the injured namely Nazir Thomas (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.
Rawal Masih, the co-accused of the convicts was acquitted of all the charges by the learned trial court.
2. Feeling aggrieved, Shamshad Sanni alias Lallou son of Aslam Riaz, Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz, and Sajawal Masih son of Javaid Masih (convicts) lodged the Criminal Appeal No.679 of 2022, assailing their convictions and sentences. Feeling aggrieved, Asif Masih son of Emanuel Masih (convict) lodged the Criminal Appeal No.687 of 2022, assailing his conviction and sentence. Feeling aggrieved, Dawood Masih son of Sarwar Masih (convict) lodged the Criminal Appeal No.691 of 2022, assailing his conviction and sentence.The learned trial court submitted Murder Reference No. 41 of 2022 under section 374 Cr.P.C. for confirmation or otherwise of the sentences of death awarded to Shamshad Sanni alias Lallou son of Aslam Riaz and Sajjad alias Chajju son of Aslam Riaz (convicts). We intend to dispose of the Criminal Appeal No.679 of 2022, the Criminal Appeal No.687 of 2022,Criminal Appeal No.691 of 2022 and the Murder Reference No. 41 of 2022 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Nazir Thomas (PW-4), the complainant of the case, are as under:- "I am Chowkidar posted in Agriculture Engineering Department, Bahawalpur. About two months prior to 26.6.2021, Shamshad alias Lallu slapped my nephew namely Areal S/O Atif Masih over a dispute of catching kite which caused a quarrel between us and cross cases were registered and police also proceeded against both the parties. On 26.6.2021 we came to the court in connection with the preventive proceedings carried out by the police in the court. When after the date, we were returning back to home in the manner that my brother Atif and Zahid were boarded on one motorcycle whereas on the second motorcycle I and my son Ramaish Masih were riding. Atif and Zahid were ahead of us at about 01:20 P.M. When we reached in front of Vocational Institute, Bahawalpur where Javed alias Phajja armed with Danda, Sajjad alias Chhajju armed with Danda, Shamshad alias Lallu armed with dagger, they are sons of Aslam Riaz Masih. Rawal Masih armed with pistol, Sajawal armed with Danda, sons of Javed alias Phajja. Dawood S/O Sarwar armed with Danda, Asif S/O Emanuel armed with Danda alongwith 3/4 unknown were present in front of gate of Vocational Institute with their common object. When Atif my brother and Zahid reached near to them, they were intercepted and all the said accused started inflicting Sota, Danda blows besides pelting of stones upon them. In the meanwhile, I and my son Ramaish reached there. In our view, Sajawal inflicted a Danda blow hitting on the forehead of Atif, Sajjad alias Chhajju put his Sota on the ground and took a stone and inflicted upon the head of my brother hitting on the mid of head, Javed alias Phajja inflicted 3/4 blows consecutively with full force to Atif Masih hitting on his head.
Then Sajawal inflicted a Danda hitting on the back side of head of my brother Atif Masih resulting into bleeding from the head of my brother. Shamshad alias Lallu inflicted a dagger blow on the back side of chest of my brother, repeated dagger blow hitting on the left forearm of Atif. He again repeated dagger blow hitting on the chest and abdominal part of Atif. My brother Atif fell on the ground Shamshad alias Lallu picked a brick lying near side and inflicted upon the head of my brother Atif. I and my son were given beating by the accused party when rushed to intervene, then Dawood inflicted a Danda blow on my head hitting on the mid of my head. Then Sajawal inflicted a Danda blow hitting on the back side of my head. Again said, Asif inflicted the Danda blow resulting into bleeding. Asif again repeated Danda blow hitting on the right side of my hand. Then Shamshad alias Lallu inflicted a dagger blow upon my son Ramaish Masih hitting near to his ear and the second blow hit on the left forearm of my son Ramaish Masih. Then Sajjad alias Chhajju inflicted a Sota blow hitting on the ear of Ramaish/Thereafter, Rawal inflicted pistol butt blows hitting on my son Ramaish on his shoulder and also made aerial firing. In the meanwhile, Sharoon also reached there. Dawood inflicted a Danda blow on the left hand of Sharoon, whereas Sajawal inflicted Danda blow on the left upper arm of Sharoon. So many people gathered there upon our hue and cry.During the scuffles, Shamshad alias Lallu also received some injuries.We forthwith attended Atif.
The accused party decamped from the place of occurrence. We shifted Atif to Bahawal Victoria Hospital, Bahawalpur who succumbed to the injuries on way to the Hospital. The police also reached in the Hospital on receipt of information of the occurrence. I stated the occurrence before the police. My statement was reduced into writing into "Fard Bayan" Ex.P-H, same was read over to me and I signed and attested the same in token of its correctness. I then accompanied the police to the place of occurrence where the I.O. inspected the place of occurrence. Thereafter, we were given first aid in the Hospital and also treatment and Atif (deceased) was sent for post mortem examination."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 07.01.2022, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case, got statements of as many as fifteen witnesses recorded. The ocular account of the case was furnished by Nazir Thomas (PW-4), Ramaish Nazeer (PW-5) and Sharoon Masih (PW-6). Ghulam Muhammad 1371/C (PW-7) stated that on 26.06.2021, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Siraj Tabassum, ASI (PW-11) stated that on 26.06.2021, he got recorded the formal F.I.R. (Exh.PH/1). Saeed Akhtar draftsman (PW-13) prepared the scaled site plan of the place of occurrence (Exh.PY). Muhammad Afzal, SI (PW-14) investigated the instant case from 26.06.2021 till 10.09.2021, arrested the appellant namely Shamshad Sanni alias Lallou in this case on 30.06.2021, arrested the appellants namely Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz, Sajawal Masih son of Javaid Masih,Asif Masih son of Emanuel Masih and Dawood Masih son of Sarwar Masih on 30.08.2021 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court .
6. The prosecution also got Dr. Muhammad Shafique (PW-2) examined, who on 26.06.2021 was posted as Senior Medical Officer at Bahawal Victoria Hospital, Bahawalpur and on the same day medically examined Ramaish Nazeer (PW-5). Dr. Muhammad Shafique (PW-2), after examining Ramaish Nazeer (PW-5) observed as under:- "Injury No. 1.
Multiple spindle shaped wound on left forearm.
1-A Transverse wound on ulnar border of left forearm 5 x 2 cm 2-B Transverse wound on ulnar border of left forearm about 6 cm x 2 cm 3-C Transverse wound about 3 cm x 2 cm.
4-D Transverse wound over the dorsum of left forearm about 7 cm x 2.5 cm long with tandem and visible.
Advised X-ray of left forearm AP and Lateral view.
Injury No.2 An incised wound 2 cm x 0.125 cm skin deep over the left mastoid behind the left ear. Advised X-ray of left cervical spine AP & Lateral view. "
On 26.06.2021 Dr. Muhammad Shafique (PW-2) also medically examined Nazir Thomas (PW-4). Dr. Muhammad Shafique (PW-2), after examining Nazir Thomas (PW-4) observed as under:- "Injury No. 1 Lacerated wound 1.5 cm x 0.125 cm skin deep on parietal region of skull. Advised X-ray of skull AP&Lateral view.
Injury No.2.
Lacerated wound 1 x 0.125 cm skin deep on the occipital region of skull. Injury No.3.
Complaint of pain and swelling of right hand. Advised X-ray of right hand AP&Lateral view."
The prosecution also got Dr. Mazhar Mushtaq (PW-1) examined, who on 26.06.2021 was posted as APMO at Bahawal Victoria Hospital, Bahawalpur and on the same day conducted the post mortem examination of the dead body of Atif Masih son of Fateh Masih (deceased) and after the post mortem examination observed as under:- "Injury No.1 A lacerated wound 2.5 cm x 01 cm x bone exposed present on the forehead above the right eyebrow.
Injury No2.
A lacerated wound 5.5 cm x 1.5 cm x bone exposed present on the top of skull.
Injury No.3.
Two lacerated wounds 5 cm x 2 cm, 3 cm x 1 cm bone exposed on the right side of the skull, 02 cm above and lateral to injury No.2.
Injury No.4.
A lacerated wound 3.5 cm x 01 cm x bone exposed present on the occipital region.
Injury No.5.
An incised wound 4.5 cm x 01 cm x blind deep present on the abdomen, omentum was coming out from the wound. It was 08 cm above the umbilicus slightly on the left side. The corresponding part of the Qameez and Banyan was also torn.
ON DISSECTION: Abdominal cavity was full of blood and fecal matter due to rupture of the gut and blood vessels.
Injury No.6.
An incised wound 04 cm x 01 cm x muscle exposed present on the lateral aspect of the left wrist.
Vessels were not ruptured.
Injury No.7.
An incised wound 5.2 cm x 01 cm x blind deep present on the back of right chest. Blood was coming out from the wound.
ON DISSECTION Right lung was ruptured and right chest cavity was full of blood, the corresponding part of the Qameez and Banyan were also torn.
Injury No.8.
An abrasion 7 cm x 2 cm present on the front of chest. ----------------- REMARKS BY MO:- After complete external and internal examination of the dead body, I was of the opinion that injury No.2 to 5 and 7 were the cause of death in this case. Injury No.2 to 4 caused the neurogenic shock and injury No.5 and 7 caused the hemorrhagic shock, that collectively lead to death of the person.
All the injuries were ante-mortem in nature and caused by injuries No. 1, 2, 3, 4 & 8 with blunt weapon. Injury No.5, 6 and 7 by sharp edged weapon. Such type of injuries were sufficient to cause death of a person in an ordinary course of life."
The prosecution also got Dr. Adnan Nazir (PW-3) examined who stated that on 26.06.2021, he had also treated Ramaish Nazeer (PW-5) and prepared the surgical notes (Exh.PD/1). The prosecution also got Dr. Farooq Ahmad (PW9) examined who stated that on 01.07.2021, he was serving as Senior Registrar Radiologist at the Bahawal Victoria Hospital, Bahawalpur and on the same day had examined Nazir Thomas (PW-4) and issued the reports (Exh.PX and Exh.PX/1).
7. On 03.06.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Zahid Masih, Samuel Masih and Faisal Mahmood as being unnecessary. On 26.08.2022, the learned Deputy District Public Prosecutor submitted the copy of the proceedings held by the learned Magistrate (Exh.PEE and Exh.PFF/1-5). On 18.08.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Khalid Razzaq, SI, Muhammad Naveed 948/C and Younis as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PCC).
8. The learned trial court examined Dr. Rasheed Mahmood Khan (CW-1) who stated that on 26.06.2021, he was posted as Consultant Surgeon at the Bahawal Victoria Hospital, Bahawalpur and had treated the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz and prepared the surgical notes (Exh.CW-1/A).
9. After the closure of prosecution evidence, the learned trial court examined the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz, Sajawal Masih son of Javaid Masih 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, the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was seriously injured after having been surrounded by the complainant party whereas the deceased died as a result of receiving injuries at the hands of his own companions. 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 Sessions Judge, Bahawalpur 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.
They further contended that the statements of Nazir Thomas (PW-4), Ramaish Nazeer (PW-5) and Sharoon Masih (PW-6) were not worthy of reliance. The learned counsel for the appellants further argued that on the day of occurrence, the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was seriously injured after having been surrounded by the complainant party whereas the deceased died as a result of receiving injuries at the hands of his 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 Nazir Thomas (PW-4), Ramaish Nazeer (PW-5) and Sharoon Masih (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 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 Nazir Thomas (PW-4) and Ramaish Nazeer (PW-5) and the death of Atif Masih (deceased) whereas according to the appellants, on the day of occurrence the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was seriously injured after having been surrounded by the complainant party whereas the deceased died as a result of receiving injuries at the hands of his 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 in proving 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 Nazir Thomas (PW-4), Ramaish Nazeer (PW-5) and Sharoon Masih (PW-6) and the medical evidence.
The presence of Nazir Thomas (PW-4) and Ramaish Nazeer (PW-5) 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 Nazir Thomas (PW-4) and Ramaish Nazeer (PW-5) were examined by Dr. Muhammad Shafique (PW-2) who verified that both Nazir Thomas (PW-4) and Ramaish Nazeer (PW-5) had suffered injuries which were not fabricated in ny manner. The presence of the prosecution witnesses namely Nazir Thomas (PW4) and Ramaish Nazeer (PW-5) 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 Nazir Thomas (PW-4), Ramaish Nazeer (PW-5) and Sharoon Masih (PW-6) remained consistent on material particulars of the incident and we see no reason not to believe the 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 Nazir Thomas (PW-4) , Ramaish Nazeer (PW-5) and Sharoon Masih (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, the date, time and place of occurrence are 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 appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was also injured during the occurrence. The prosecution witnesses namely Nazir Thomas (PW- 4) ,Ramaish Nazeer (PW-5) and Sharoon Masih (PW-6) stated about the injuries suffered by the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz that they were minor in nature and suffered by him during a scuffle, however, could not explain the presence of two incised wounds, one of the dimensions of 8cm x 1 cm, muscle deep , present below the mandible and another incised wound, of the dimensions of 3cm x1 cm, muscle deep, present on the right side of the neck of the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz 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 appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz, pleaded causing of injuries to the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz by the complainant party . Two persons on the side of the complainant were injured and one lost his life. On the other hand, the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was also injured as has been brought on record during the course of the trial. Dr. Muhammad Shafique (PW-2) admitted during cross-examination that on the day of occurrence i.e 26.06.2021, he had also medically examined the appellant, namely Shamshad Sanni alias Lallou son of Aslam Riaz at 02.40 p.m and Dr. Muhammad Shafique (PW-2) upon examination, observed the following injuries present on the person of the appellant namely Shamshad Sanni alias Lallou:- "Description of Injuries: Injury No.1.
An incised wound 8 cm x 01 cm muscle deep horizontal about 02 cm below the angle of mandible, referred to Surgical Unit on call for management.
Injury No.2.
Another incised wound 03 cm x 01 cm x muscle deep on right side of neck above the clavicle, Advised X-ray of neck AP & Lateral view. Till date, X-ray cannot be done so, the final opinion cannot be given.
Duration of injuries:Within 06 hours.
Weapon: Sharp The MLC is the attested photocopy which is Ex.DA written in hand and bears my signatures."
(emphasis supplied)
The learned trial court also examined Dr. Rasheed Mahmood Khan (CW-1) who stated that on 26.06.2021, he was posted as a Consultant Surgeon at the Bahawal Victoria Hospital, Bahawalpur and had treated the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz and prepared the surgical notes (Exh.CW-1/A).Dr. Rasheed Mahmood Khan (CW-1) further stated that surgery was performed upon the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz.Dr. Rasheed Mahmood Khan (CW-1) gave the details of the treatment of the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz as under:- "26.6.2021 I was posted in Emergency Ward as Consultant Surgeon in Bahawal Victoria Hospital, Bahawalpur. On the same date, patient Shamshad S/O Aslam, 30 years old, male, R/O Bahawalpur was presented to our Team comprised of myself, Doctor Ali Umar, Doctor Ramsha and Doctor Abdul Rauf for consultation for the purpose of his treatment regarding the multiple incised wounds on his neck, the detail of the wounds is as under:-
1. A horizontal incised wound 8.1 cm on left side of neck, about 1 to 2 cm below the angle of mandible.
2. A vertical incised wound measuring 3.1 cm on right side of neck just above clavicle.
After resuscitation and taking proper consent, patient was shifted to Emergency Operation Theatre, under ante septic measures and IV sedation, wound was explored. Following injuries were noted during surgery:-
1. Blood clots were present in neck on left side.
2. Anterior jugular veins were cut and bleeding.
Procedure: Wounds were washed, clots removed, vessels ligated, muscle stitched and wound closed. After recovery from sedation, patient was shifted to Surgical Ward No.3, for post operative treatment. Post operative period was unremarkable. Patient was discharged in satisfactory condition on 29th June, 2021. The surgical notes Ex.CW-1/A (computerized) were recorded on my dictation and same bear my signatures."(emphasis supplied)
The above referred portions of the statements of the witnesses clearly prove the fact that during the incident, the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was not only injured but had also received serious injuries which necessitated his admission in the hospital on 26.06.2021 for which reason the arrest of the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was put in abeyance and he was arrested on 30.06.2021. A perusal of the record of the prosecution case itself reveals that the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz was seriously 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 attacked them. 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 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 proven 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 appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022), it is observed that the death of Atif Masih (deceased) occurred during the course of the fight between the parties and no unfair advantage appears to have been taken by the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022). The pivotal question in the circumstances shall be whether the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) 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 Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022), of causing injuries 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 namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) 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 namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) 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 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."
19. For what has been discussed above, the Criminal Appeal No. 679 of 2022 lodged by the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz, Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih is partly allowed.
The convictions and sentences of the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) recorded by the trial court under Section 302(b) P.P.C are set aside. Instead, the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) are convicted under Section 302(c) P.P.C. The appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) are sentenced to rigorous imprisonment of fourteen years under section 302(c) P.P.C. as Tazir for committing Qatl- i-Amd of Atif Masih son of Fateh Masih and each is directed to pay Rs. 5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Atif Masih son of Fateh Masih and in case of failure to pay compensation, each shall further undergo simple imprisonment of six months. The convictions and sentences of the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz ,Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Javaid Masih (the appellants in Criminal Appeal No. 679 of 2022) recorded by the trial court under section 148 P.P.C are set aside as not sustainable in the circumstances of the case and they are ordered to be acquitted of the charge under section 148 P.P.C. The conviction and sentence of the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz (the appellant in Criminal Appeal No. 679 of 2022) recorded by the trial court under sections 337-F(i) and 337-F(ii) P.P.C are maintained and upheld. All the sentences awarded to the appellant namely Shamshad Sanni alias Lallou son of Aslam Riaz (the appellant No.1 in Criminal Appeal No. 679 of 2022) are ordered to run concurrently.The benefit under section 382-B, Code of Criminal Procedure, 1898 shall be extended to the appellants namely Shamshad Sanni alias Lallou son of Aslam Riaz, Sajjad alias Chajju son of Aslam Riaz, Javaid alias Phajja son of Aslam Riaz and Sajawal Masih son of Masih (the appellants in Criminal Appeal No. 679 of 2022) .The sentence of the appellant namely Sajawal Masih son of Javaid Masih (the appellant No.4 in Criminal Appeal No. 679 of 2022) was suspended by this Court vide order dated 30.05.2024, and the appellant namely Sajawal Masih son of Javaid Masih (the appellant No.4 in Criminal Appeal No. 679 of 2022) is present before the Court on bail. The appellant namely Sajawal Masih son of Javaid Masih (the appellant No.4 in Criminal Appeal No. 679 of 2022) is directed to be taken into custody and sent to the judicial lock up to serve out the remaining portion of his sentence. The sureties of the appellant namely Sajawal Masih son of Javaid Masih (the appellant No.4 in Criminal Appeal No. 679 of 2022) shall stand discharged from their liability and the bail bonds submitted by the appellant namely Sajawal Masih son of Javaid Masih (the appellant No.4 in Criminal Appeal No. 679 of 2022) are hereby cancelled.
20. With regard to the appellant Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) ,the Criminal Appeal No.691 of 2022, lodged by the appellant namely Dawood Masih son of Sarwar is also partly allowed as the conviction of the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) under section 148 P.P.C. is not sustainable in the circumstances and he is ordered to be acquitted of the said charge however the conviction of the appellant Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) under section 337 A(i) P.P.C. is maintained with the modification in the quantum of sentence awarded to the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) under section 337 A(i) P.P.C. and the sentence of the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) awarded to him under section 337 A(i) P.P.C is, with the consent of the learned counsel for the appellant and the learned Deputy Prosecutor General , reduced from Simple imprisonment of two years to that already undergone by the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022),however the punishment of amount of Daman to be paid by him shall remain intact. The appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) shall deposit the Daman amount 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 Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022). The learned trial Court is directed to collect the Daman amount from the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) as mentioned above and deliver the same to Nazir Thomas (PW-4) and thereafter discharge the appellant Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) from the liability of his surety bonds. The sentence of the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) was suspended by this Court vide order dated 09.01.2023, and the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) is present before the Court on bail. The bail bonds submitted by the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) shall remain intact for the specified period till he pays the Daman amount. If the appellant namely Dawood Masih son of Sarwar (the appellant in Criminal Appeal No. 691 of 2022) fails to deposit the Daman amount within the next two years in equal monthly installments, then he shall be 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. A certified Copy of the judgment be transmitted to the learned trial Court for compliance.
21. With regard to the appellant Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) , he was convicted and sentenced under sections 148, 337 F(v) and 337 A(i) P.P.C. by the learned trial court however today the complainant of the case namely Nazir Thomas (PW-4) , present before the Court and duly identified by his learned counsel, stated that he had compounded the offences under sections 337 F(v) and 337 A(i) P.P.C. P.P.C. and had no objection if the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) was acquitted of the charges under sections 337 F(v) and 337 A(i) P.P.C. and submitted his sworn affidavit which has been made part of the record as Mark-A. There are no circumstances attracting provisions of section 311, P.P.C. in the instant case. Therefore the permission sought by Nazir Thomas (PW-4), present before the Court and duly identified by his learned counsel, to compound the offences under sections 337 F(v) and 337 A(i) P.P.C. P.P.C. is granted and the compromise is accepted. As already mentioned, the conviction of the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) under section 148 P.P.C. is not sustainable in the circumstances. The conviction and sentence of the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) under sections 148,337 F(v) and 337 A(i) P.P.C. P.P.C. are set aside and the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) is ordered to be acquitted of the charges by way of the acceptance of the Criminal Appeal No. 687 of 2022 as lodged by Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022). The sentence of the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) was suspended by this Court vide order dated 19.12.2022, and the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) is present before the Court on bail. The bail bonds submitted by the appellant namely Asif Masih son of Emanuel Masih (the appellant in Criminal Appeal No. 687 of 2022) are cancelled and the sureties of the appellant are discharged from their liability.
22. Consequently, the Murder Reference No. 41 of 2022 is answered in Negative and the sentences of death awarded to Shamshad Sanni alias Lallou son of Aslam Riaz and Sajjad alias Chajju son of Aslam Riaz are Not Confirmed.