1. Order accordingly. , decided on 8th November, 1993.
2. (On appeal from the order of Lahore High Court, dated 17-3-1992 passed in Cr. Appeal No.101 of 1989 (in all)).
(a) Penal Code (XLV of 1860)--- All Pakistan Legal Decisions Vol. XLVI ----Ss. 302/34 & 324/34---Appraisal of evidence---Accused had failed to establish his right of self-defence---Eye-witness account was corroborated by the circumstantial evidence of recovery of gun which matched with the empties recovered from the spot---Convictions of accused were upheld in circumstances.
(b) Penal Code (XLV of 1860)--- ----Ss. 302/34 & 324/34---Appraisal of evidence---No recovery of weapon was effected from the accused although he was stated to be armed with a revolver at the time of incident---Prosecution did not lead any evidence to show that the injuries sustained by the deceased-and the injured prosecution witness could be caused by a different kind of fire-arm as attributed to the accused-- -No bullet was recovered from the spot to establish the use of such fire-arm---Ocular evidence was inimical and lacked corroboration---Accused was acquitted on benefit of doubt in circumstances.
(c) Penal Code (XLV of 1860) ----Ss. 302/34 & 324/34---Sentence---Weak or false defence plea---Falseness of the defence plea in a criminal case can neither relieve the prosecution of its burden to prove the case against the accused beyond all reasonable doubts nor it can lend support or strength to the prosecuting case against the accused, much less to justify on enhanced punishment to him---Punishment to be awarded to an accused person in a criminal case entirely depends, on the strength and circumstances established against him by the prosecution in the case---Weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment to the accused in a criminal trial.---[Criminal trial].
(d) Penal Code (XLV of 1860)--- ----S. 302/34---Sentence, reduction in---Motive as alleged by-the prosecution had not been established at the trial---What actually happened just before the incident remained shrouded in.
3. Mystery and the parties had not taken the Court into confidence to reveal the full facts---Death sentence awarded to accused by High Court was altered to imprisonment for life in circumstances.
4. Aftab Farrukh, Senior Advocate Supreme Court and Tanwir Ahmad Khan, Advocate-on-Record (absent) for Appellant (in CrA. No.168 of 1992) and Petitioners (in Cr.P. No.80 of 1992).
5. Raja Abdul Ghafoor,. Advocate Supreme Court for the State (in Cr.A. No.168 of 1992 and Cr.P. No.80 of 1992).
6. S.M.,Latif Khan Khosa, Advocate Supreme Court and S. Abul Aasim Jaferi, Advocate-on-Record (absent) for Petitioner (in Cr.P.No.236-L of 1992).
7. Nemo for Respondent (in Cr.P. No.236-L of 1992)
8. Date of hearing: 8th November, 1993
9. SAEEDUZZAMAN SIDDIQUI, J: --This judgment will govern the disposal of Criminal Appeal No.168 of 1992, Criminal Petition No.80 of 1992 and Criminal Petition No. 236 of 1992, all three directed against the judgment of Lahore High Court, Multan Bench, dated 17-3-1992.
10. Criminal Appeal No. 168 of 1992 is filed as of right by the convict Muhammad Ishaque Khan, challenging the enhancement of his punishment by the High Court under section 302/34, P.P.C.
11. From life imprisonment to death and his conviction and sentence under section 324/34, P.P.C.
12. Criminal Petition No.80 of 1992 is filed by convicts Shaukat Hayat Khan and Ejaz to challenge their convictions and sentences by the trial Court under section 302/34, P.P.C. And confirmed by the High Court on appeal. Criminal Petition No. 236-L of 1992 is filed by the complainant Abdul Jabbar, praying for enhancement of the sentences of Shaukat Hayat Khan, Ejaz and Ghulam Muhammad alias Watni under section 302/34, P.P.C. From life imprisonment to death, with a further prayer that the convict Ghulam Muhammad alias Watni be ordered to pay compensation to the heirs of the deceased in the same manner as has been ordered in the case of co-accused in the case by the High Court. We have heard the learned counsel for the appellant,. Petitioners and the State counsel at length.
13. According to the F.I.R. In the case lodged by Abdul Jabbar (P.W.7) at Police Station Katcha Khooh on 29-1-1988 at 3 p.m., the incident took place in the fields comprising of Killa No. 12, 13 and 14 of Square No.55, in Chak No.29/10-R, District Khanewal _at about .Juma prayer time. The above-- mentioned lands belonged to Government and both the complainant and the accused party were the lessees of the Government but the lease of the accused party had expired about 2 years before the incident. Out of these lands, one portion of Killa No.12 was in possession of the complainant party while the other portion was in occupation of the accused persons. On the fateful day, at the relevant time, Abdul Jabbar, complainant, was irrigating the land bearing Killa No.14 and his uncle's son Muhammad Iqbal was with him, Abdul Sattar (P.W.8) was sitting in his Bhaini in Yilla. No.13, while the deceased Khalid Mehmood was cutting the grass in Killa No.12. Convicts, Muhammad Ishaque Khan and Shaukat Hayat Khan, armed with .12 bore gun, Ejaz armed with .32 bore revolver and Ghulam Muhammad alias Watni, armed with a knife arrived at the scene and stood at the Watt which divided the portions of Killa No. 12, in respective possession of complainant and the accused.
14. Muhammad Ishaque Khan directed the tractor driver to demolish the Watt separating the portions of accused and the complainant parties. The tractor driver, accordingly, demolished the Watt.
15. When accused Khalid Mehmood intervened and forbade she appellants not to demolish the Watt, they replied that they were thirsty for his blood whereas he was asking them not to demolish the Watt. On hearing the altercation between deceased Khalid Mehmood and the appellants, Abdul Jabbar, Abdul Sattar P.Ws. And Muhammad Iqbal (not produced by prosecution) rushed towards the spot. In the meantime, appellant Muhammad Ishaque and Shaukat Hayat Khan opened fire on the deceased with their fire--arms which hit him on his chest and he fell down. Ejaz, appellant then fired from his .32 bore revolver hitting the deceased near his left ear. Ghulam Muhammad gave knife blow on the back side of the left shoulder of the deceased. Abdul Sattar (P.W.) in an attempt to save Khalid Mehmood from further assault threw himself over the deceased, whereupon Ghulam Muhammad dealt him with knife blows which caused injuries on his ear, left arm and left shoulder.
16. Shoukat Hayat Khan in the meantime re-loaded his gun and fired at Abdul Sattar and a pellet struck him on his back. Both Shoukat Hayat Khan and Muhammad Ishaque Khan also gave butt blows on the head and chest of the deceased Khalid Mehmood. Khalid Mehmood died on the spot while Abdul Sattar (PW) was removed to the Hospital in injured condition. Two empties of fire-arms were recovered from the spot by the police. Convicts, Shaukat Hayat Khan, Ejaz and Ghulam Muhammad were arrested by the police on 5-2-1988 while Muhammad Ishaque was arrested on 19-2-1988. While in police custody, Shaukat Hayat Khan got recovered a .12 bore gun while Ghulam Muhammad led to the recovery of a knife. No recoveries were made from Muhammad Ishaque and Ejaz. After-usual investigation, the police sent all the for accused to stand trial under sections 302/34 and 324/32, P.P.C.
17. The trial Court, relying on the ocular testimony in the case which was supported by the medical evidence and the recoveries, convicted all the for 'accused persons under section 302/34, P.P.C. For committing murder of Khalid Muhmood and sentenced them to life imprisonment plus fine of Rs.
18. 10,000 each or in default of payment of fine to undergo R.I. For two years. They were also convicted under section 324/34, P.P.C. For causing grievous hurts to Abdul Sattar, PW, and sentenced them to R.I. For two years. On appeal the learned Judges of the High Court while maintaining the conviction and sentences of three accused, namely; Shaukat Hayat Khan, Ejaz and Ghulam Muhammad awarded by the trial Court, enhanced the sentence of .Muhammad Ishaque from life imprisonment to death. Muhammad Ishaque Khan, Shaukat Hayat Khan and Ejaz were also directed by the High Court to pay a sum of Rs. 20,000 each as compensation to the heirs of the deceased in default to suffer 6 months' S.I. Each. Muhammad Ishaque Khan, Shaukat Hayat Khan and Ejaz have challznged their convictions and sentences as aforesaid.
19. The incident took place at about 1-30 p.m. And the F.I.R. Was lodged promptly at about 3 p.m. There were three eye-witnesses of the incident, namely; Abdul Sattar, Abdul Jabbar and Muhammad lqbal. Out of them Abdul Sattar was injured during the incident. The prosecution examined two eye-witnesses, Abdul Sattar and Abdul Jabbar and gave up the third witness Muhammad Iqbal as unnecessary. According to the medical evidence, the deceased Khalid Mehmood suffered 17 injuries on his person, out of which 10 were fire-arm entry wounds while 3 were exit wounds. There was also one incise wound and three contusions on the person of the deceased. Similarly, the injured P.W. Abdul Sattar suffered 4 injuries. Out of which one was fire-arm injury while 3 were incise wounds. Therefore, prosecution story as disclosed in the F.I.R. And stated in the evidence before the trial Court found substantial corroboration from the medical evidence. Muhammad Ishaque Khan did not deny his presence on the spot but pleaded the right of self defence as he was allegedly first fired at by the deceased Khalid Mchmood, who was armed, on his chest. Shaukat Hayat Khan and Ejaz denied their participation in the incident. However, the .12 bore gun recovered at the instance of Shaukat Hayat Khan matched with the two empties recovered from the spot by the police, according to ballistic expert report. Therefore, to the extent of the part assigned to Shaukat Hayat Khan, in the prosecution case, the case was not only proved through ocular evidence but it also found corroboration from the circumstantial evidence of recovery of .12 bore gun which matched with the empties recovered from the spot. However, the case against Ejaz, petitioner, is on different footing. According to prosecution case Ejaz accused was armed with .32 bore revolver at the time of incident. No recovery could be made from Ejaz.
20. The prosecution in the case had alleged motive on the part of accused, to occupy the land of complainant party by demolishing the Watt existing between their land. According to F.I.R. The Watt was in fact demolished by the accused which caused the incident. However, the allegation regarding demolishing of Watt between the land of complainant and the accused parties remained unsubstantiated. There is also no evidence on record to show that the accused persons dispossessed the complainant party from their lands or occupied it. The motive alleged against the accused, therefore, could not be proved by the prosecution. What really transpired immediately before the incident is shrouded in mystery as both the parties have withheld the true and full facts from the Court. The accused can the other hand claimed that they were falsely involved in the case because of enmity which arose on account of abduction and Zina case of Mst.
21. Azizan registered against the complainant party in which one of the accused Ghulam Muhammad was a witness. Both the eye-witnesses, Abdul Jabbar and Abdul Sattar, admitted in their evidence that they along with the deceased Khalid Mehmood and others were arrested in the case of abduction and Zina of Mst. Azizan and remained in judicial lock-up for about 10/11 days. Both claimed that the case of abduction and Zina against them was false and that Ghulam Muhammad, one of the convicts, was a witness of prosecution in that case. They also admitted that Muhammad Ishaque Khan and Shaukat Hayat Khan were opposing them in that case. The defence, therefore, reasonably succeeded in establishing that there was enmity between the complainant side and the accused party on account of Zina and abduction case of Mst. Azizan. In the circumstances, following the rule of caution and safe administration of justice in criminal case, it was desirable to look for independent corroboration of ocular testimony in the case.
22. In so far appellant Muhammad Ishaque Khan is concerned, he admitted his presence and participation in the incident but pleaded the right of self-defence. The two Courts below after analysing the defence evidence in juxtaposition with the prosecution case, reached the conclusion that Muhammad Ishaque Khan failed to establish his right of self-defence in the case and we find no reason to differ from the above conclusion of the Courts below as the reasonings given by them do not suffer from any infirmity. Similarly, Shaukat Hayat Khan, though denied his presence and participation in the incident but he was fully implicated in the offence by the two eye--witnesses in the case one of whom was injured and his presence could not be doubted in the circumstances of the case. The eye-witness account against Shaukat Hayat Khan also found corroboration from the circumstantial evidence of recovery of .12 bore gun which matched with the two empties recovered from the spot. Therefore, conviction of Muhammad Ishaque and Shaukat Hayat Khan under section 302/34 and 324/34, P.P.C. In the case was not open to any exception. We, accordingly, maintain their convictions had uphold the sentences awarded to them by the High Court except enhancement of sentence of Muhammad Ishaque Khan from life imprisonment to death which will be dealt with separately a little later. The case against Ejaz, however, cannot be said to have been proved beyond reasonable doubt by the prosecution in the circumstances of the case. Ejaz was said to be armed with a .32 bore revolver at the time of incident. There was no recovery of weapon from him after his arrest. The dimensions of the entry wounds on the person of the deceased and the injured P.W. Abdul Sattar show that they were most likely caused by the same type of firearms.
23. The prosecution did not lead any evidence to show that these injuries could be caused by different kinds of fire arms. The allegations in the F.I.R. Were that only Muhammad Ishaque Khan and Shaukat Hayat Khan had same-type of weapons namely .12 bore guns. There was no recovery of any bullet from the spot to establish the use of different kinds of fire-arms. In these circumstances, following the principles of safe administration of justice, petitioner Ejaz was entitled to the benefit of doubt, in the absence of corroboration of ocular evidence in the case which was inimical. We, accordingly, convert Petition No. 80 of 1992 into appeal, allow the same in so far it relates to appellant Ejaz and acquit him in the case giving him the benefit of doubt. He is directed to be set at liberty forthwith unless required by the authorities in some other case. The appeal of Shaukat Hayat Khan is dismissed and his conviction and sentences awarded by the High Court are maintained.
24. We now take up the question of enhancement of sentence of life imprisonment to death appellant Muhammad Ishaque Khan by the learned High Court. The trial Court considering the circumstances of the case had awarded life imprisonment to appellant Muhammad Ishaque Khan.
25. The learned High Court, however enhanced his sentence of life imprisonment to death giving the following reasons in support of their conclusions:- "53.For the above reasons, we hold that the appellants were rightly convicted under sections 302 and 324 read with section 34 of the P.P.C. We are also of the opinion that the sentences of Shaukat Hayat, Ejaz and Ghulam Muhammad Watni, appellants, do not call for interference, except that an order under section 544-A of the Cr.P.C. Should have been made in the case of Shaukat Hayat and Ejaz, appellants. We are, however, convinced that the appellant, Muhammad Ishaque, played the - leading role in the commission of the offence. This view gains support from the finding that he had gone to the length of fabricating an injury on his person to enable him and his co-accused to take a false plea of self-defence.
26. 54.We, therefore, enhance the sentence of Muhammad Ishaque, appellant, under section 302 read with section 34 of the F.P.C. To death and direct that he be hanged by the neck till he is dead."
27. We find it difficult to subscribe to the above reasoning given by the learned Judges of the High Court to justify the enhancement of the punishment of Muhammad Ishaque Khan from life imprisonment to death. Firstly, there is nothing in the prosecution evidence to show that role played by Muhammad Ishaque Khan was in any v Gay different from the role assigned to appellant Shaukat Hayat Khan. In the F.LR. Of the case both Muhammad Ishaque Khan and Shaukat Hayat Khan were said to be armed with .12 bore gun at the time of incident. Both of them fired at the deceased Khalid Mehmood one after the other which hit at the chest of the deceased. Both were attributed blows from the butt of their guns on the head and body of the deceased after he fell down. In fact, Shaukat Hayat Khan was additionally charged for having fired at P.W. Abdul Sattar as well. In this state of prosecution case, there was no justification for the observations by the High Court that the role played by Muhammad Ishaque Khan in the case was a leading role. The second reason given by the learned Judges of the High Court for enhancement of the life imprisonment to death in the case of Muhammad Ishaque Khan, was his false defence. It needs no mention here that falseness of the defence plea in a criminal case can neither relieve the prosecution of its burden to prove the case against the accused beyond all reasonable doubts nor it can lend support or strength to the prosecution case against the accused, much less to justify an enhanced punishment to the accused. The punishment to be awarded to an accused person in a criminal case entirely depends on the strength and circumstances established against him by the prosecution in the case. The weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment to the accused in a criminal trial. We, have already observed that in the present case the prosecution had alleged spec motive against the accused persons which could not be established at the trial. What actually happened just before the incident remained shrouded in mystery and the parties have not taken the Court into confidence to reveal the full facts. In these circumstances, the trial Court rightly awarded the lesser punishment of life imprisonment to appellant Muhammad Ishaque Khan. There was no justification for enhancement of the sentence of life imprisonment awarded by the trial Court to appellant Muhammad Ishaque Khan to death, by the High Court in the circumstances of the case. We, accordingly, partly allow Criminal Appeal No. 168 of 1992 filed by Muhammad Ishaque Khan .And alter the death penalty awarded to him by the High Court and restore the sentence of. Life imprisonment awarded by the trial Court. Sentences under section 324/34, P.P.C. And fine and compensation awarded by the High Court are maintained.
28. As a result of above discussion, Criminal Petition No. 236-L of 1992 filed by the complainant fails which otherwise is not maintainable as it is barred by 70 days and no reasonable explanation for the delay is offered by the complainant/petitioner.
29. N.H.Q./M-1915/S