' JUSTICE RAJA AFRASIAB KHAN (MEMBER).--Abbas Hussain son of Fida Hussain and Fida Hussain son of Din Muhammad were convicted by the learned Special Court for Speedy Trial, Multan, on 8-10- 1991 under sections 302/34 and 324/34, P.P.C. And were sentenced to death plus a fine of Rs,50,000 each on each count or in default thereof to undergo further six months' R.I.Each on each count, for having committed the murder of Shahzad Latif and Sarfraz Ali and also for making an attempt to murder Parvez Iqbal P.W. The convicts challenged their conviction and sentence by filing CrA.No,14/SAC-91 before this Court. The learned trial Court acquitted the third accused Shahzad Hussain by giving him the benefit of doubt. The State also filed CrA.No,17/SAC-91 against the judgment of acquittal of Shahzad Hussain. We propose to dispose of both the appeals together as they arise out of the same judgment.
2. The facts, in brief, are that on 15-7-1991 at about 8-30 p.m. Riaz Ahmad, Sarfraz Ali sons of Muhammad Yaqub, Shahzad Latif son of Abdul Latif and Pervez Iqbal son of Ghulam Rasool (first informant) went together to meet Sana Ullah son of Muhammad Sharif who was a neighbour of the complainant. Fida Hussain Patwari and his sons Abbas Hussain and Shahzad Hussain were present in front of their house. The house of Fida Hussain is in front of the house of Sana Ullah. They enquired about Sana Ullah who was not found present in his house. Thereafter, they went towards the house of.Abdul Hameed. Fida Hussain and his two sons, who were armed with Chhuris opened an attack upon the complainant party all of a sudden. Abbas Hussain inflicated a Chhurri blow which landed on the left side of the abdomen of Shahzad Latif. Fida Hussain gave a Chhuri blow on the abdomen of Sarfraz Ali. Shahzad Hussain caused a Chhuri blow to Pervez Iqbal P.W. Which injured his right arm. Shahzad Latif and Sarfraz Ali fell down. Riaz Ahmed P.W. Raised an alarm whereupon Ghulam Rasool, Shafique-ur-Rehmam, Shafqat Ali and many other people of the locality gathered at the spot. The assailants left the place while brandishing their weapons in the air. The injured were taken to the Civil Hospital, Sahiwal where Shahzad Latif died without receiving any medical aid. Medical Certificates regarding the injuries of Parvez Iqbal and Sarfraz Ali were obtained by the complainant. Shafqat.Rasool son of Abdul Hameed saw Fida Hussain, Abbas Hussain and Shahzad while running from the spot after committing the crime.
3. Motive is that sons of Fida Hussain Patwari and other boys used to indulge in undesirable activities in the locality. A complaint was made by Muhammad Sharif with Ghulam Rasool who in turn asked the sons of Fida Hussain to behave and also gave them a warning. On this warning, Fida Hussain, Abbas Hussain and Shahzad were very much annoyed and on account of this grudge the accused opened an attack upon Parvez Iqbal, Sarfraz Ali and Shahzad Latif to take revenge of their insult. Shahzad Latif died on account of the injuries on the spot. The accused were sitting in an ambush while armed in the street to avenge their insult. Sarfraz Ali and Parvez Iqbal were admitted in the hospital in serious condition. Shafiq-ur-Rehman and Riaz Ahmad were left behind to guard the dead body while Ghulam Rasool went to the police station to give information for registration of a case. On the statement of Ghulam Rasool FIR Exh.PG was registered on 15-7-1991 at Police Station Sadar, Sahiwal at 9-40 p.m.
3-A. Muhammad Akram Inspector P.W.15 investigated the case. He went to the spot and collected the blood-stained earth from the place of occurrence where Shahzad Latif was injured. The blood- stained earth was taken into possession and kept it in a sealed parcel. The dead body of Shahzad Latif was sent to mortuary for conducting post-mortem examination on it. The statements of the witnesses were recorded by him. He also prepared the site-plan. Injury statement. Exh.PM and Inquest Report Exh.PN of Shahzad Latif were prepared by the Police Officer. He prepared injury statement Exh.Po of Parvez Iqbal and Exh.PO/1 of Sarfraz Ali. The injured Parvez Iqbal and Sarfraz Ali were not fit to make the statements as per the opinion of the Doctor. Abbas Ali and Shahzad were arrested on 27-7-1991. Fida Hussain was admitted in the hospital because he was also injured in the encounter. At that time, the Doctor on duty reported that Fida Hussain was in a serious condition and was not fit to make any statement. On 30-7-1991, Abbas Hussain accused led to the recovery of blood-stained Chhurri from his residential house. On 31-7-1991, Shahzad accused led to the recovery of blood-stained Chhuri from his house. Similarly, on 8-8-1991, Fida Hussain led to the recovery of bloodstained Chhurri from his house. All these weapons were kept in separate sealed parcels and were accordingly sent to the office of the Chemical Examiner for their analysis. Fida Hussain was formally arrested in the hospital on 8-8-1991. The recovery memos. Of the Chhurris were prepared. The statements of Parvez Iqbal and Sarfraz Ali were recorded on 1-8-1991 by the investigator only when it was opined by the Doctor that the injured were fit to make statements.
Sarfraz Ali died on account of the injuries on 7-9-1991 in the hospital. The Police Officer prepared his inquest report vide Exh.PU. He submitted the incomplete challan against the accused before the Court for their trial.
4. The positive reports of the Chemical Examiner Exh.PV dated 4-8-1991 (on earth of Shahzad Latif deceased and the Chhurris recovered from Abbas and Shahzad accused) and Exh.PW dated 12-8- 1991 on Chhuri recovered from Fida Hussain, accused, were tendered in evidence.
5. Dr. Muhammad Yousaf Nadeem P.W.12 conducted the Post-Mortem Examination on the dead body of Shahzad Latif on 16-7-1991 and found the following injuries:--
(1) Incised wound 3 cm x 1 cm x deep going on the outer middle part of left abdomen 12 cm from the outer side of umblicus. Peritoneum omentum and portion of intestine going out from the wound.
(2) An abrasion 2 cm x 1 cm on the inner side of left big toe.
(3) An abrasion 3 cm x 1 1/2 cm on the dorsum and base of big toe (left).
(4) An abrasion 3 cm x 1 cm on the inner side of left toe.
(5) An abrasion 3 cm x 1/2 cm on the dorsum of base of right toe.
' In the opinion of the Doctor, death occurred due to severe haemorrhage and shock as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. Injury No,1 was inflicted by a sharp-edged weapon while the rest were caused by blunt weapon. All the injuries were ante-mortem. Probable time that elapsed between injuries and death was within about half an hour and that between death and post-mortem examination was within twelve hours.
6. On 20-7-1991 the same Doctor medically examined Mst.Farhat Sultana wife of Fida Hussain and found the following injuries on her person:--
(1) Complaint of pain on the back middle part of left chest.
(2) Complaint of pain on the front middle part of left chest.
(3) Healed abrasion 2 cm x 1 cm on the back middle part of right forearm
(4) Contusion with blackish colour slightly 4 cm x 2 cm on the black lower part of left chest.
' All the injuries were declared simple and having been caused within a duration of about one week.
All the injuries were inflicted with a blunt weapon. The Doctor stated that possibility could not be ruled out that the injuries were self-suffered.
7. Dr. Waseem Izhar, Medical Officer P.W.11, medically examined Fida Hussain and found the following injury on his body:-- "Incised wound 3 cm x 1 cm deep going on outer aspect of left side of lower part of chest."
' The injury was kept under observation for Surgeon's opinion and X-Ray Test was also advised. The injury was inflicted by a sharp-edged weapon within a duration of about half an hour. According to the reports of the Radiologist and Surgeon, later on, the injury was declared grievous.
' On the same day, the said Doctor medically examined Parvez Iqbal and found the following injuries on his body:--
(1) Incised wound 10 cm x 2 cm x muscle deep on back upper part of right fore-arm.
(2) Incised wound 2 cm x 1/2 cm x deep going on front upper part of left side of abdomen. (5 cm outer to middle line).
' Injury No,1 was kept under observation and according to the report of the Radiologist, . Later on, it was declared simple. Injury No,2 was kept under observation and on receipt of Surgeon's report it was declared grievous.
' On the same day the said Doctor medically examined Sarfraz Ali and found the following injury on his body:--
(1) Incised wound 5 cm x 2 cm x deep going on left side of lower part of abdomen (3 cm left and lower to umbilicus). Intestine coming out of this wound. The condition of the patient was found serious. The injury was inflicted by a sharp-edged weapon within a duration of half an hour. The injury was kept under observation and on receipt of the Surgeon's report, it was declared dangerous to life.
' On 7-9-1991, the said Doctor conducted the Post-Mortem Examination on the dead body of Sarfraz Ali and found the following injuries:-
(1) Stab wound (septic) 5 cm x 2 cm into deep going on the left side of lower part of abdomen (3 cm to the left and lower to the umbilicus).
(2) Stitched septic wound 20 cm x 2 1/2 cm on front middle part of abdomen (operation wound).
(3) Septic wound 3 cm x 2 deep going on right inguinal region (drain wound).
(4) Septic wound 3 cm x 2 cm x deep going on left inguinal region (drain wound).
' In the opinion of the Doctor, the death occurred due to Septicaemia/Toxaemia and shock as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. The injury No,1 was ante-mortem. Probable time between the injury and death was about seven to eight weeks and that between death and post-mortem was about six hours.
8. Eye-witness account was furnished by Ghulam Rasool P.W. 10, Riaz Ali P.W. 13 and Parvez Iqbal P.W.
14. The appellant Abbas Hussain made a detailed statement under section 342, Cr.P.C. He deposed that he had been falsely implicated in the case. According to him, on 15-7-1991 at about 1-30 p.m., he was present in his house. He felt that some persons were standing outside his house and in consequence, he went outside to find that Sarfraz Ali, Shahzad Latif and Parvez Iqbal were present there. Apart from the above persons, two more persons were standing with them. An exception was taken by the appellant as to why they were standing just in front of his house, on which all the five persons issued serious threats to him and started abusing him, there and then. Again he objected to that as to why he was being subjected to threats and abuses. Shahzad Latif, Sarfraz and Parvez were armed with Khanjars while the other two persons were armed with Soti and a belt. They opened an attack by issuing threats to kill him on the spot. The appellant, out of fear, immediately, went inside his house. All the five accused followed him inside his house. His mother Mst. Farhat Sulatna also came and requested them to go outside their house. The accused abused Mst. Farhat Sultana and attacked the appellant and his mother as well. They also started beating them with the stick and the belt. In the meantime, Fida Hussain, his father who was a Patwari in the City, returned home and on seeing the five accused while behaving with them in an uncalled for manner asked them to leave his house at once. In the meantime, the accused armed with Khanjars inflicted injuries upon Fida Hussain who raised an alarm that he had been killed by the said persons. On hearing the noise, Abbas Hussain came out of his room and took up a knife in order to rescue his injured father from the clutches of the assailants. He inflicted injuries upon them. He deposed that the other witnesses who had been produced by the prosecution in the case were not present at the spot. Fida Hussain was seriously injured and as such he was taken to DHQ Hospital, Sahiwal for his treatment. He was arrested by the police formally in the said hospital. He took the plea that his brother Shahzad Hussain was not present at the time of occurrence. He was, later on, called from his house and was arrested by the police. He also made a complaint that Muhammad Akram Inspector (P.W. 15) was a partial witness and that he did not conduct the investigation of the case honestly and that the defence version was not recorded by him. He further added that he was in league with the complainant party with ulterior motives. He deposed that a false F.I.R. Was registered against him on the statement of Ghulam Rasool. He mentioned that his information for registration of the case was not received by the concerned police because they had been won over by the complainant party. He also deposed that his mother filed a writ petition in the Lahore High Court, praying for the registration of a case against the accused.
However, no criminal case was registered against the accused. Lastly, he stated that the complainant party was the real aggressor and that they were innocent and had committed no offence. Fida Hussain and Shahzad Hussain, the remaining two accused adopted the statement made by Abbas Hussain. However, no evidence in defence was led by the appellants in support of their pleas.
9. By believing the motive, ocular account and the medical evidence, learned trial Judge convicted and sentenced the appellants as already mentioned above. The recovery of blood-stained Khanjars was disbelieved by the learned trial Court because it was effected after the lapse of a considerable time.
10. Mr.' Muhammad Munir Khan, learned counsel for the appellants raised a preliminary objection that the case in hand was already pending trial before the learned Sessions Judge, Sahiwal and that it could not be transferred for its entrustment to the learned Special Court for Speedy Trials, Multan, for its trial, unless and until powers were exercised by the Federal Government under section 5(2) of the Special Courts for Speedy Trials Act, 1991 by issuing a notification for the purpose.. The learned counsel has relied upon a copy of the notification (available at page 49 of the paper book) in support of the plea. The notification does show that no order under section 5(2) of the Ordinance was passed by the Government showing that the trial of the accused shall be held by the Special Court in the public interest. Learned counsel states that it was the statutory duty of the Federal Government to have passed an order under subsection (2) of section 5 of the Act ibid and without passing such an order, it was not possible for the Government to transfer a pending case to the learned Special Court because the Government could transfer a case only when it was found that the transfer was in the public interest. According to the learned counsel, no such application of mind was made in the case in hand and as such the case could not be transferred and tried by the learned Special Court. We hold that there was no substance in the objection of the learned counsel inasmuch as this objection was admittedly, never raised before the learned Special Court for its disposal according to law. It is well settled that an objection pertaining to the jurisdiction of a Court or Tribunal has to be taken first of all before the same Court or Tribunal for its decision. This has not been done so and as such, we proceed to repel the contention of the learned counsel.
11. Learned counsel argues that it is established on record that it was the complainant party who in fact while armed with deadly weapons attacked the accused party and in consequence Fida Hussain was grievously injured by them. He, therefore, submits that no offence has been committed by the accused party because they were attacked by the complainant party. Our attention has been drawn by the learned counsel to a detailed statement made by Abbas Hussain accused under section 342, Cr.P.C. While replying the arguments, the learned State Counsel defended the conviction and sentence of the appellants. He also argued that there was absolutely no. Justification for acquitting Shahzad Hussain, accused, because he was named as an accused person with a specific role in the commission of the crime. He maintains with force that Shahzad was mentioned throughout in the evidence of the prosecution as one of the accused. According to the learned counsel the learned trial Court committed a gross error of law in acquitting him which resulted in the miscarriage of justice.
12. We have heard the learned counsel for the parties at considerable length and have read the whole record with their assistance with utmost care. Ghulam Rasool P.W.10 is the first informant. He reiterated his entire statement made by him before the Police. He stated that Fida Hussain, Abbas Hussain and Shahzad were armed with Chhurris at the time of occurrence. Abbas Hussain inflicted a powerful Chhurri blow upon Shahzad Latif which hit him on the left side of his abdomen. Similarly, Fida Hussain caused an injury upon Sarfraz Ali with his Chhurri on the left side of his abdomen.
Shahzad caused a Chhurri blow to Parvez Iqbal P.W. Which landed on his arm. Second Chhurri blow was given by Shahzad to Parvez Iqbal which injured his abdomen. Riaz Hussain P.W. Grappled with Fida Hussain from behind with a view to make him ineffective. Abbas Hussain actually intended to attack and inflict injuries upon Riaz Hussain P.W. As well who got aside and in consequence, the blow hit Fida Hussain, his own father. This is the explanation furnished by the prosecution as to how Fida Hussain appellant was injured in the occurrence. This explanation cannot be held to be far- fetched or fanciful. This could happen in the given facts and circumstances of this case. Thus, the defence version does not deserve credence. It is accordingly rejected." The statement of Ghulam Rasool P.W.10 was substantially corroborated by Riaz Ali P.W.13 and Parvez Iqbal P.W.14. Parvez Iqbal P.W. 14 was grievously injured at the hands of the accused during the occurrence. His presence therefore, at the spot cannot be doubted under any circumstances. He also supported the prosecution version materially. He deposed that he remained in the hospital for his treatment till 11- 9-1991. He deposed that his statement was recorded by the investigating officer on 1-8-1991. The evidence deposed by P.Ws.10, 13 and 14 demonstrates beyond any shadow of doubt that it was the accused party who while armed with Chhurris opened an attack upon the complainant party and murdered two members of the complainant party. The site plan Exh.PD shows that Shahzad Latif and Sarfraz Ali were done to death in front of the house of Muhammad Sharif at Point No,1.
According to the ocular account, the complainant party firstly went to the house of Muhammad Sharif at Point No,5 from where they got an information that Sana Ullah had gone to the house of Abdul Hameed. They had hardly covered a distance of about 2/3 houses when Fida Hussain, Abbas Hussain and Shahzad while armed with Chhurris attacked them. The ocular account plus the site plan demonstrate beyond any shadow of doubt that the occurrence did not take place in front or near the house of Fida Hussain which is situate at Point No,6 of the above said site plan. The blood- stained earth was also collected from Point No,1 which was found to be stained with human blood.
In this view of the matter, we are persuaded to hold that the occurrence took place at Point No,1 and definitely not at Point No,6 or Point No,5 in front of the house of the appellants. This shows that the appellant party was looking for an opportunity to settle their accounts with the complainant party because they were annoyed with the complainant party as a result of the earlier incident and they were definitely determined to avenge their insult. In this view of the matter, we hold that the appellant party was the aggressor while the complainant party was the aggressed. The plea taken by Abbas Hussain accused in his statement under section 342, Cr.P.C., certainly appears to be an afterthought and does not fit in the facts and circumstances of the case in hand. The injury on the person of Fida Hussain, although was grievous, had fully been explained by the prosecution in its evidence. The motive part of the prosecution story was proved by Muhammad Sharif P.W.9. We do not find any reason to disbelieve the statement of this witness. In consequence, as already observed above, the defence plea is repelled while that of the prosecution is accepted. In the peculiar facts and circumstances of the case, it has not been clarified by either party as to what was the actual and immediate, cause of occurrence as it is in the evidence that there was no such deep-rooted background of enmity existing between the parties. There appears to be a petty dispute between the parties over the teasing of the girls of the Mohallah. We hold the view that something serious happened immediately before the occurrence for which the appellants while armed with Chhurris opened an attack upon the complainant party and murdered two persons from the complainant side. Even the possibility of an altercation having taken place between the parties cannot be ruled out. Both the parties had been living in the same locality. We are convinced about the insufficiency of the immediate cause of unfortunate occurrence. In this view of the matter, we do not feel inclined to uphold the death sentences. In the circumstances, the sentences of the appellants are altered from death to imprisonment for life. Their death sentence is not confirmed. However, the sentences of fine under section 302/34, P.P.C. Are hereby maintained. The sentences awarded to the appellants under section 324/34, P.P.C. Are also maintained. Both the abovementioned sentences on each count shall run concurrently. Benefit of section 382-B, Cr.P.C., shall also be extended to the appellants. With this modification in the sentences, there is no substance in the appeal which is hereby dismissed. Learned trial Judge acquitted Shahzad Hussain for giving cogent reasons. Learned Judge sought support in acquitting Shahzad Hussain from the medical evidence. The presence of Shahzad Hussain was found doubtful at the time of occurrence.
In our view, the judgment of acquittal is not perverse or contrary to the principles laid down for administration of justice. There is, thus, no force in the State appeal which is also dismissed.