' ABDUR REHMAN KHAN, J.---This judgment will decide Criminal Petition No, 26 (Abdul Waheed etc. v.
The State) and Criminal Petition No, 43 of 1997 (Muhammad Haroon v. Ijaz Gul and others) as they arise from the common judgment dated 10-12-1996 of a learned Division Bench of Peshawar High Court. Petitioners in the former petition alongwith Muhammad Akram (acquitted accused) were tried under section 302/34, P.P.C. For triple murders of Aftab Ahmad Alam, Mohibullah and Zahid and also under sections 427/34, P.P.C. For causing damage to the car, in which the deceased were travelling by firing at it. They were found guilty under both the charges and on conviction under section 302/34, P.P.C., each of them on each count was sentenced to imprisonment for 25 years and to pay a fine of Rs,15,000 or in default to undergo 2 years' R.I. While under section 427/34, P.P.C.
Each of them was sentenced to one year R.I. Out of the fine if recovered 3/4th was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was given.
Muhammad Akram co-accused in the case was acquitted. The convicts/appellants preferred appeal in the High Court for their acquittal and the complainant moved two revision petitions in the High Court; in the one he prayed for enhancement of the sentence awarded to the convicts and in the other he requested for reversal of the acquittal of Muhammad Akram. All the three matters were disposed of by the High Court through the impugned judgment dated 10-12-1996 in the manner that the conviction and sentence of the appellants and acquittal of Muhammad Akram were maintained but the appellants were ordered to pay compensation of Rs,20,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. These two petitions have, therefore, been filed to impugned the legality of the High Court's judgment to the extent the petitioners are aggrieved of it.
2. Muhammad Haroon (P.W.13) reported the incident to the police on 19-4-1989 at 9-45 a.m. Which had occurred the same day at 8-30 a.m. It was stated therein that in the morning of that day there had been a querrel between his maternal uncle and Ghulam Haider etc. And as the injured of the case had been brought to the hospital, therefore, he alongwith his brother Aftab Alam and Mohibullah visited the hospital in their car for enquiring about them. After some time Aftab Alam, Mohibullah and Muhammad Zahid went in the car driven by Aftab Alam. In the meantime the three petitioners alongwith the acquitted accused came to the hospital in the car and when they came to know that Aftab Alam had left towards a place known as "supply" they also left for that place. Re apprehended some foul play, therefore, he alongwith Muhammad Rafiq P.W., also went after them in the car. When they reached 'Khan Motors' near city mosque they noticed the car in which Aftab Alam, Mohibullah and Muhammad Zahid were riding being followed by the car in which the petitioners and the acquitted accused were travelling. In their presence the acquitted accused with his revolver, Ijaz Gul petitioner with a Klashinikov Abdul Waheed petitioner with pistol and petitioner Muhammad Fazal with .12 bore shot gun started firing at the car in which Aftab Alam, Mohibullah and Muhammad Zahid were present and with this firing all the three received injuries out of whom Mohibullah died whereas Aftab Alam and Muhammad Zahid succumbed to the injuries in the hospital. Motive for the crime was given as quarral in the morning and the dispute over land.
3. Learned trial Judge based conviction on the ocular account given by the complainant who appeared as P.W.13 and Yousaf Ali P.W.15 while for the support of this evidence the recovery of Klashinikov at the behest of Ijaz Gul and shot gun at the instance of Muhammad Fazal and the matching of the empties recovered from the spot with the weapons so recovered. The damage to the car by firing, motive, recovery of blood from the car, recovery of broken pieces of glasses, recovery of empties and medical evidence were held to be confirmatory evidence. The High Court concurred with all the findings of the trial Court except it did not believe the testimony of P.W.15 Yousaf Ali on account of the following observations:-- "However, what makes his testimony doubtful is that he did not make statement to the police until two days after the occurrence, as per his own statement, despite the fact that he claims to have gone to the hospital at around 10 a.m. On the day of occurrence and had met the complainant there. Suprisingly he does not disclose nor discusses the incident with the complainant at the hospital. That also explains why he has not been shown any where in the site plan. In such conditions it is very doubtful that P.W., Yousaf Ali had witnessed the occurrence and, therefore, his testimony is excluded from consideration."
4. The learned counsel for the petitioners in Petition No 26 of 1997 at the very outset stressed that the case of Abdul Waheed petitioner No,1 in all respects is at par with that of the acquitted accused Muhammad Akram and observing the rule of consistency he is also entitled to acquittal. This argument was opposed by both the complainant and State Advocates. There is no force in this submission as it overlooks factual background under which the trial Court acquitted Muhammad Akram and the Appellate Court confirmed that finding. The finding of the trial Court in this respect is as under:- "The complainant who appeared as P.W.13 and Yousaf Ali, who appeared as P.W.15 no doubt both have stated that accused Muhammad Akram was driving the car of the co-accused at the time of occurrence, however, Qazi Sajjad who appeared as P.W.22 has stated in the cross-examination that accused Muhammad Akram was present at the time of identification of the dead bodies. He was present when (he the witness) reached there and identified the dead body of Zahid. It is not disputed that accused Muhammad Akram was arrested from the hospital. It is also not disputed that on getting the information of the morning quarrel and the injuries of his father Ghulam Haider and other relatives who were also brought to the hospital for treatment, the accused was there to look after them. The M.L.R. Of Ghulam Haider is missing from the record and has placed on file by the prosecution which shows mala fide on the part of prosecution to implicate accused Muhammad Akram making a ground that he had no job in the hospital to support the version of the complainant and other eye-witnesse Yousaf Ali as it does not appeal to my mind that accused Muhammad Akram could be present in the hospital after the commission of murders of three persons to witness the identification of the dead bodies at the time of post-mortem examination of the persons who were murdered, by him and his co-accused.
' In my view the accused Muhammad Akram has been falsely implicated by the complainant and at his instance by P.W. 15 Yousaf Ali who was not shown as eye-witness in the F.I.R. And his statement was recorded after two days of the occurrence by the police."
5. The High Court besides the above reasons gave an additional ground for extending benefit of doubt to Muhammad Akram which is "coupled with the fact that the revolver recovered from Muhammad Akram was never sent to firearm expert and that he had a genuine reason to be present at the hospital to attend to his father Ghulam Haider, injured in the previous incident, the order of acquittal of Muhammad Akram accused is neither unreasonable nor perverse so as to warrant interference therewith by us. We, therefore, find no substance in the argument that the merit of the case against the said two accused were alike and they should have been dealt with in the same way. It was next submitted that the ocular account in the case originated from interested source which could not form basis for conviction. It was in this context pointed out that the recovery of weapon and its matching with the empties picked up from the spot would not furnish any corroboration to the testimony of the eye-witness. The learned counsel for the complainant controverted this submission and referred to numerous precedent cases to support his point that conviction can be based on the deposition of interested witnesses if their testimony is confidence inspiring. In our view the proposition that the statement of an interested witness should, in no way, be accepted for conviction is too sweeping and too formidable to be adopted for general application . If this rule is held to be so inflexible and rigid in its application then the testimony of the inmates of a house, the shopkeepers of a shop, the employees of an office etc. Where incident occurs and in which they happen to receive injuries would as per force of this rule is to be excluded from consideration irrespective of the fact that their presence at the spot would be natural, trustworthy and otherwise proved. This is nowhere provided in any law nor it can be the intent of law that the evidence of an interested person should be overlooked irrespective of its probative force. Although in some of the decided cases this rule has been recognised as a rule of prudence but there too it has been emphasized that it could not be rigidly and universally applied. This fact is of common knowledge and every day observation that the factual aspect and circumstances of any two criminal cases are hardly alike and, therefore, a principle/rule laid down in particular set of facts cannot be made applicable to a case of diverse facts and circumstances. It was next argued that the alleged recoveries of Klashinikov at the behest of Ijaz Gul and that of shot gun at the instance of Muhammad Afzal could not be acted upon as these were effected from an open place accessible to general public and not in exclusive knowledge of the two accused. It was in this context elaborated that the weapon and the empty cartridges recovered from the spot were sent to the expert for examination on 15-5-1989 and this delay makes the evidence doubtful. This submission was also opposed by the complainant's counsel as, according to him, the trial Court and High Court have correctly relied on this piece of evidence. Exh.PW-7/2 and PW-7/3 are relevant recovery memos. Of the weapons where the accused are alleged to have led the police. This place has been shown in the memo. As and from here both the weapons were recovered. This dry ravine is covered with bushes is not place to be frequently visited by general public. Moreover, the delay of 7/8 days in sending weapon and crime empties to the expert in absence of allegation of fabrication would not deprive the expert report of whatever worth it is in the circumstances of the case. It was in the end pointed out that there is no provision for awarding 25 years imprisonment as the various types of punishments provided by section 53, P.P.C. Does not include such sentence.
This submission is correct and could not be controverted either by the State Counsel or by the complainant Advocate.
6. In Criminal Petition No, 43 of 1997 two reliefs have been sought; one is to set aside the acquittal of Muhammad Akram and the other is enhancement of the punishment of the convicts to death. We have already discussed about the acquittal of Muhammad Akram in the preceding para. As the petitioners' counsel in Criminal Petition No,26 of 1997 wanted to take advantage of this acquittal for the benefit of the petitioners in that petition because he was of the view that this acquittal detracts from the veracity of eye-witnesses and as a whole affects the merits of the case against the petitioners and creates doubt in the prosecution case. We have, however, not agreed with him and have repelled his contention, therefore, there is no need to repeat our finding on this point. The learned counsel in this petition stressed that this Court being the apex and ultimate one can convert the acquittal into conviction as its powers in this respect are not fettered like that of the High Court under section 439, Cr.P.C. Which debars it from changing acquittal into conviction. In this respect he referred to various decided cases. As we do not differ with the conclusion of the High Court on this point and we are inclined to uphold the finding of acquittal arrived by the trial and High Court, therefore, there is no need to refer to the precedent cases relied upon by the petitioners' counsel. These would have been relevant if we had arrived at a contrary conclusion than that of the High Court. For enhancement of sentence it was argued that this was a case of triple murder in a relentless and brutal manner without any extenuating circumstance, and as such, it deserves normal penalty of death. It was pointed out that the incident in this case occurred on 6-5-1989 which is a date before the enforcement of Hudood Law and the High Court and Sessions Judge were not correct in awarding punishment under the amended law. This submission is correct as the offence had been committed when the repealed law was operative, therefore, punishment provided under that law could be imposed. However, in substance it does not make any difference because the punishment for life is provided in both the laws and the appellant could be awarded imprisonment for life even under the old law. Numerous cases were referred to show that in cases without mitigating circumstance the penalty of death should be imposed. But the factual aspect of those cases being distinguishable would not help determining the imposition of correct sentence in this case. The motive for the offence in this case, which has been admitted by both the Courts and with which we agree, is that before the present occurrence a fight had taken place between the complainant and the accused party at 6-05 and 6-25 a.m. In which two reports Nos. 28 and 29 had been lodged. In that quarrel Ghulam Haider father of Muhammad Akram (acquitted accused) and convict Muhammad Afzal and grandfather of convict Ijaz Gul and Abdul Waheed alongwith some other relations were injured. This position has been dilated upon by the High Court while discussing the motive in these words:- "The motive for the offence stands proved. On the morning of the occurrence a fight had taken place between the two parties in which a number of persons received injuries. Counter F.I.Rs, Nos.28 (Exh.PW.17/1) and 29 (Exh.PW.17/2), were registered, on the reports of Iqbal Khan and Ghulam Haider respectively, by Iftikhar S.I. Who was examined as P.W.17, and who not only exhibited the F.I.Rs,, but also the injury sheets of Ghulam Haider, Sajjad Gul, Naseem Gul, Ali Asghar, Faheem and Muhammad Saleem injured in F.I.R. No,29 and those of Muhammad Arif, Babar Hussain, Tanveer Anwar and Muhammad Iqbal, the injured in F.I.R. No,28. The medico-legal reports of the injured on both sides were also exhibited by P.W.19 the doctor. In view of the registration of the counter F.I.Rs,, and the fact that persons froth both sides were injured the occurrence of a fight between the two parties the same morning stands sufficiently established for the purpose of proving a motive."
7. The trial Court has given the following reasons for lesser penalty:-- "However, the evidence, the standard of which is proved under Articles 17 of the Qanoon-e- Shahadat, 1984 has not been produced and occurrence appears to have taken place suddenly on provocation having seen the injuries of Ghulam Haider (the father of accused Muhammad Fazal and grandfather of accused Ijaz Gul and Abdul Waheed), therefore, I take a lenient view and sentence the said accused to imprisonment for 25 years' R.I. And to pay a fine of Rs,15,000 on each count."
8. The High Court agreed with it when it observed "the sentence awarded to the convicts do not warrant alteration. The trial Judge was justified in not awarding the sentence of death as Qisas under section 302(a), P.P.C., on the ground of lack of requisite standard and mode of proof, and death as Tazir under section 302(b) as the crime was committed in the heat of passion aroused by the G earlier incident". This Court normally does not interfere in the matter of sentence given by the High Court unless the sentence passed is shown to be not a legal sentence. The reason for lesser sentence in the light of the accident two hours before the present occurrence in which father of the two accused and H grandfather of the other two alongwith his relation had received injuries, cannot be described as fanciful or arbitrary.
9. Consequently, we refuse to grant leave in both the petitions and dismiss both. But as the counsel for the petitioners, State and complainant agreed that the sentence of 25 years is not legal one as it could not be given under the law, therefore, we convert it into imprisonment for life. The judgments of the Trial Court and High Court are modified to this extent only as all the counsel consented to it.