1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the convict as well as to the complainant to examine the correctness of the judgment of the Lahore High Court, Rawalpindi Bench, dated the 3rdl February, 1982 whereby the appeal of the convict was dismissed and the sentence of death awarded to him, was confirmed and a revision petition filed by the complainant against the acquittal of Tahirul Islam, a brother of the convict, was also dismissed and his acquittal was not interfered with.
2. The prosecution case against the acquitted accused and the convict was that they had a flour Chakki adjacent to the carpet weaving factory of the deceased it Talagang, District Campbellpur.
3. At Peshiwela there was an altercation between the two deceased on the one hand and the two accused on the other over the latter---staking their positions in front of the carpet weaving factory of the deceased and thereby embarrassing the ladies who used to enter the carpet weaving factory for various purposes. The sane dpi; i.e. 7-7-1976 at about 5 p.m. The two accused both armed with knives attacked the two deceased causing the death of Ghulam Abbas immediately outside the carpet weaving factory and of Ghulam Shabbir inside the factory. A report was lodged about the occurrence by the eye-witness Muhammad Iqbal (P.W.9) an uterine brother of the two deceased at 5-50 p. m. At the Police Station Talagang .
4. Ch. Muhammad Arshad, S.I. P.W.11 recorded the First Information Report, went to the spot, attended to the dead bodies and sent them for autopsy. The following injuries were found on the dead body of Ghulam Abbas:---- "(1) Incised wound 1 --" x --" x going deep into the cranial cavity in the left temporal region of head.
5. 1" to the left of lateral end of left eyebrow.
(2) Abrasion -- " x-- "x on the back of the right wrist.
(3) Abrasion -- " x-- " in front of left knee."
6. The dead body of Ghulam Shabbir had the following injuries:--- "(1) Incised wound 1-- " x-- " x going deep in the chest cavity in the side of upper part of chest in front just above the collar bone.
(2) Incised wound 1 -- "" x --" outer side of the upper part of the left upper arm.
(3) Incised wound 1" x 1 -- " x 1 -- " in the central part of back of neck."
7. Tariq Pervaiz was produced by Nur Muhammad P.W.7 on 9-7-1976 alongwith the blood-stained knife Exh.P.7 used by him in the occurrence. Tahirul Islam respondent could be arrested on 12-7- 1976.
8. At the trial, Tariq Pervaiz denied the earlier altercation over their taking up positions in front of the carpet weaving factory of the deceased and gave a counter-version of the occurrence in the following words: ---- "Upto 8-9-1975 I was a student of the Middle Class. Thereafter I started working at the Chaki of my father. I was being assisted by another person named Ghulam Muhammad. My father has an ice factory at one mile distance from my Chaki, on which my brother Tahir the co-accused and others, one of whom is Aslam, worked. I used to be busy with the Chaki which was also visited by women of the locality for turning their wheat into flour. There were whisper against the deceased that they stared at the womenfolk. We are immigrants and, therefore, we did not object, since the deceased were locals. At Dopeharvela on the day of occurrence, I was at the weighing-scale and Ghulam Muhammad was at the Chaki. Some of the flour bags of the customers were lying on the ground. I saw a hen which started picking grain from the bag. At random I picked up my chappal which was lying besides the scale and flung it on the hen and she was killed. I threw her outside. It was found that it belongs to the deceased since they came to complain. It was explained to them that how she was killed. The deceased did not accept and wanted me to swear about it at their premises on the Holy Qur'an. Me and they we walked into their factory, at which place they started an altercation with me. They threatened to dishonour me. Ghulam Shabbir dragged me inside grappling me from the arm and said that he would dishonour. Ghulam Abbas closed the door. I took one of the cutters which is like a Chhuri placed near the loom and is used for levelling the carpets. Shabbir assaulted, I apprehending danger and in a state of panic being provoked injured him. I rushed out. Ghulam Abbas chased me. He overtook me and I also caused him injury. I had no intention of killing them or causing them any serious blow. It was on account of being upset. My brother was not with me. He had gone to Lahore and Gujranwala in connection with spare-parts of the Ice factory. I told this to my father who took me to the police. The P. Ws are relations and they have suppressed true facts. They were not present. No one can sit at the place where the chairs were alleged to have been placed on account of the afternoon sun in July."
9. Tahirul Islam had an altogether different explanation and he gave it in the following words:--- "I am innocent. Exhs.D.C/2 to 6 have already been produced by me during the investigation. On the day of the occurrence I was at Gujranwala from where I purchased items mentioned in Exh.DC/2.
10. Later I went to Lahore from where I had purchased items mentioned in Exh. D. C. /3. I gave at Lahore for repair items mentioned in Exh.DC/4 on the same day. On 8-7-1976 purchased from Lahore items mentioned in Exh.DC/6 and retrieved goods mentioned in Exh.DC/5. After repairs which I delivered vide Exh. DC/4. On 12-7-1976 when I returned to Talagang and I heard about the case I produced myself before the Police and handed these to the Police. I produced locals of Talagang in support of my innocence. One H.C. Ghulam Sarwar went to verify the documents and my presence in Lahore and Gujranwala per directions of D.S.P. The Police informed me that I was innocent but said they would not drop my name since they left it for the Court and because the P.Ws. Had deposed against me."
11. He also produced five witnesses in defence to account for his presence elsewhere on the date and time of the occurrence.
12. The trial Court after examining the evidence recorded the following conclusion with regard to the two accused:--- "The prosecution has been able to fully establish its case against Tariq accused with respect to the murder of Ghulam Abbas and I ought to believe the prosecution version to that extent. It also seems that Tariq accused came prepared and armed to launch the attack. At the time when Tariq committed the murder of Ghulam Abbas Tahir accused did not over-act, whereas as discussed earlier it was difficult for the eye-witnesses to ascertain who caused the fatal blow on Ghulam Shabbir inside the factory. The knife has been recovered from Tariq accused. The defence plea raised by him being unconvincing has been rejected. However, the possibility that Tariq accused alone came and committed the two murders in quick succession could not be entirely ruled out."
13. The two-fold mitigation claimed by Tariq Pervaiz convict in the matter of sentence was denied to him by the trial Court with the following observations: --- "I do not agree with the defence plea that any mitigating circumstance exists since the accused did go armed to the premises of the deceased to attack and he murdered two persons who were real brothers. He had no apprehension of any danger as was his plea. His appearance that he is not as young as he is being described by the defence. In fact against school leaving certificate produced by him the prosecution has placed on record a document of date of birth of the accused. This could not be exhibited and so I am not adverting to it. But the prosecution has been arguing that he was of more age than mentioned in the school leaving certificate and I also feel so on seeing him."
14. He was held guilty under section 302, P.P.C. Convicted and sentenced to death on two counts. He was also directed to pay a fine of rupees ten thousand on each count and in default to undergo four years' R.I. The fine as and when recovered, was to be paid to the mother of the deceased as compensation under section 544-A, Cr.P.C.
15. While seized of the question of confirmation of death sentence of the convict, the convict's own appeal against his conviction and sentence and a revision petition privately filed against the acquittal of Tahirul Islam, the High Court re-examined the entire evidence and recorded the following conclusion:- "Judging testimony of the eye-witnesses and keeping their version in the juxtaposition that version of the appellant we are of the considered view that the guilt of Tariq Pervaiz appellant, has been proved successfully by the prosecution beyond any shadow of doubt. Assuming for the sake of argument that causing of injuries to Ghulam Shabbir could not have been witnessed by the eye- witnesses while standing in the lane, yet the fact remains that it is in the evidence that the appellant ran after Ghulam Shabbir and Ghulam Shabbir deceased was found fatally injured in the room where at that time no one else was present. Tariq Pervaiz appellant in his statement under section 342, Cr.P. C. Admitted that he gave injuries to Ghulam Shabbir inside the room. His own case was that his co-accused was not present. In the circumstances the injuries found ay the Doctor on the person of Ghulam Shabbir can safely be attributed to the appellant."
16. The involvement of Tahir-ul-Islam, the acquitted accused, was distinguished by the High Court in the following words:--- ---The case of Tahir-ul-Islam, acquitted co-accused stands on a different footing. He according to prosecution witnesses was accused of having given injuries to Ghulam Shabbir in the room located inside the factory. The causing of injuries inside the room possibly could not have been seen by the eye-witnesses while standing in the lane. Moreover a suggestion put to the D.S.P. That always the prosecution was interested in the case. Moreover D.S.P. Who had investigated the case accepting the suggestion that initially the complainant party was interested to involve 4 persons. In this view of the matter, the benefit of doubt was rightly extended to Tahir-ul-Islam, his co-accused."
17. As regards the question of mitigation in the matter of sentence awardable to Tariq Pervaiz on conviction under section 302, P.P.C., the learned Judges of the High Court recorded the following conclusion:--- "We have examined the school leaving certificate and find that there is some overwriting with respect to the date upto which the appellant had been studying in the school. The best evidence in the circumstances was the birth certificate, but the same was not produced. The learned Additional Sessions Judge recorded his age as 17/18 years. Even otherwise two murders were committed by causing fatal injuries. The appellant, therefore, does not deserve any leniency nor any extenuating circumstances are present. The not result is that the appeal is dismissed and the sentence of death awarded to the appellant by the learned Additional Sessions Judge, Attock is hereby confirmed."
18. Mr. M.B. Zaman, Advocate, the learned counsel for the convict-appellant, has urged that as the eye-witnesses have been disbelieved by the two Courts in material particulars, that is, with regard to the participation and role of Tahir-ul-Islam, it was not possible in view of an equally, if not more plausible defence version, to hold the case against Tariq Pervaiz proved. There were indications on the record that defence version was more plausible and that the ocular evidence had been artificially procured and was interested in securing the conviction of an equal number of persons as were the deceased. With regard to the mitigation, it has been urged that Tariq Pervaiz had no direct motive as the occurrence, according to the prosecution case, was the result of an altercation which had taken place on that very day. He was shown to be of 14-15 years of age at the time of the occurrence. According to the learned counsel, he was on that occasion, acting under the influence of Tahir-ul-Islam, his elder brother. If these factors had been taken note of and fully given effect to then on being convicted Tariq Pervaiz was entitled to the lesser sentence rather than the extreme penalty of death.
19. Mr. Ahmad Raza Khan Kasuri, Advocate, the learned counsel for the complainant, on the other hand, contended that having believed the ocular evidence against Tariq Pervaiz, there was hardly any reason to disbelieve these witnesses or to doubt their veracity with regard to the presence and participation of Tahir-ul-Islam. It was, according to the learned counsel for the complainant, an artificial distinction which has been created as regards the presence and participation of Tahir-ul- Islam in the occurrence. The number of injuries, the age of the victims and the presence of witnesses, give a sure indication that such ends could not be achieved by a single individual moreso when he was so young in age as compared to the victims and those who witnessed the occurrence. The number of injuries and the number of injured both, according to the learned counsel for the complainant, provided the necessary corroboration, if at all, it was required to prove the prosecution case against both the accused. There were, according to the learned counsel, no mitigating circumstance whatsoever because they had come prepared, they had launched one- sided attack and they had inflicted fatal injuries without receiving a scratch on their person.
20. As regards the sentence awardable to him, three factors have been pleaded. Firstly, the motive as given out by the prosecution is somewhat thrown into doubt, not only by its inherent improbability, but also by the Investigating Officer who in the site plan prepared on the indication of the eye- witnesses showed the accused having taken positions in front of their own flour mill and not in front of carpet weaving factory of the complainant. He has called it a mistake and owned it. This fact if in slightest doubt would suggest that the deceased were making an unreasonable demand on the convict or his brother not to sit in front of their own flour mill facing the road or path. There being no other motive, and the one given out being so trivial and not entirely as the prosecution alleged, the occurrence would be sudden. Secondly, as the entire thrust of the prosecution case is that the crime was from the beginning to the end committed by convict in the company of his elder brother, benefit has been sought of the decision of this Court in the cases of Sher Hassan v. The State PLD 1959 SC (Pak.) 480; Mushtaq Ahmad v. State 1985 SCMR 423; Mukhtar Hussain v. The State 1985 SCMR 479 and Muhammad Nawaz v. The State 1970 SCMR 220, notwithstanding the acquittal of the elder brother. Thirdly, both according to the School Leaving Certificate and the age recorded by the trial Court on observation, the convict appeared to be of fifteen years of age at the time of occurrence and hence entitled to some mitigation in the matter of sentence as held in Muhammad Afzal v. The State PLD 1976 SC 568. All these facts cumulatively if not alone, do make out a case of mitigation of sentence.
21. As regards the acquittal of Tahir-ul-Islam, the trial Court as well as the High Court has not relied, as in the case of the convict, entirely on the statement of the two eye-witnesses. They have looked for corroboration but found,, in his case, none. On the other hand, there are a number of factors justifying their caution and their insistence on corroborative evidence. These factors are the plea of alibi and the number of witnesses produced to establish it, the other being the statement of one of the Investigating Officers appearing in defence. It is true much in his statement is inadmissible being conjectural and hearsay but the fact remains that he investigated the case and the investigation included the plea of alibi taken by Tahir-ul-Islam. The caution exhibited by the two Courts in appreciating the evidence, in insisting on corroborative evidence, was in accord with safe administration of criminal justice and is not open to exception or interference.