' RAJA MUHAMMAD KHURSHID, J.--- The appellants were convicted and sentenced under section 302(b)/34/337-A(i), P.P.C. By Syed Ijaz Hussain Gillani, learned Sessions Judge, Attock vide his judgment, dated 1-2-1994, whereby, out of them Ali Bahadur was sentenced to death and Abdul Malik was sentenced to imprisonment for life under section 302(B)/34, P.P.C. With the direction that both of them shall pay Rs,30,000 each as compensation under section 544, Cr.P.C. To the legal heirs of the deceased Hafeez-ur-Rehman or in default to undergo further R.I. For six months each.
The third appellant namely Muhammad Rafique was, however, convicted under section 337-A(i), P.P.C. And sentenced to two years' R.I. For causing Shajjah-i-Kafifah to Murad Ali P.W. And was further directed to pay Daman to the extent of Rs,10,000. The benefit of section 382-B, Cr.P.C. Was also given to all the appellants including Ali Bahadur if his sentence of death was not confirmed by this Court.
2. The Murder Reference No,29 of 1994 was made under section 374, Cr.P.C. By the learned trial Court for the confirmation of the death sentence passed upon Ali Bahadur appellant.
3. The Criminal Revision No,59 of 1994 was instituted by the complainant Janas Khan with the prayer that the sentence of Abdul Malik appellant be enhanced to death, whereas, the order of acquittal of Muhammad Rafique under section 302/34, P.P.C. Be set aside and retrial to his extent be ordered. The enhancement in the amount of compensation in case of the appellants namely Ali Bahadur and Abdul Malik was also prayed.
4. Since all the three matters arise out of the same judgment, therefore, those are being dealt with together in this judgment.
5. The brief facts are that the appellants were arraigned under section 302/ 337-A (vi)/34, P.P.C. In a case registered at Police Station Attock Khurd vide F.I.R. No,801 of 1992, dated 23-10-1992 for committing the Qatal-i-Amd of Hafeez-ur-Rehman deceased and causing injuries to Murad Ali P.W. On the aforesaid day at about 12-00 O'Clock in the noon within the area of village Mansar while acting in furtherance of their common intention to commit such offences. The complaint (Exh.P.G.) was lodged by Janas Khan (P.W.10), father of the deceased. It was alleged by Jams Khan that he was resident of Village Zaida, District Sawabi and his son-in-law Gul Rehman (P.W.12) was residing in village Mansar being a cashier in Habib Bank Ltd., Attock. The aforesaid Gul Rehman went to the complainant in village Zaida to inform- him that the appellant All Bahadur used to quarrel quite often with him. He asked the complainant to accompany him to have a talk on the subject with the aforesaid Ali Bahadur being his neighbour. The complainant thereupon accompanied Gul Rehman.
The deceased Hafeez-ur-Rehman, Muhammad Khalid and Murad Ali son of Ghulam Habib, a Mohalladar also joined them to reach Mansar. After reaching Adda at Mansar, the aforesaid Gul Rehman proceeded to his house in a Suzuki, whereas, the remaining persons started on foot to reach village Mansar as they could not find any seat in the Suzuki. The complainant alongwith afore-named persons reached the house of his son-in-law namely Gul Rehman at 10-30 a.m. And heard the alarm whereupon they rushed to that side. They saw Ali Bahadur and Muhammad Rafique appellants quarrelling with Gul Rehman aforesaid. They, however, intervened and rescued Gul Rehman who left for police station to lodge the report, whereas, the complainant and his companions went to Gul Rehman's house. On the same day at about 12-00 noon, they heard the noise in the street due to the exchange of abuses whereupon, they came out. All of them noticed Abdul Malik appellant armed with Chhuri, Ali Bahadur appellant armed with hatchet and Muhammad Rafique appellant armed with Danda. They were abusing the deceased Hafeez-ur- Rehman who also returned the abuses to all the three appellants/accused. The appellants, however, attacked the deceased after raising Lalkara. The appellant Ali Bahadur wielded three hatchet blows successively at the deceased hitting him on the right, left and backside of the head.
The deceased fell down on receiving those injuries. The appellant Abdul Malik inflicted four successive Chhuri blows to the deceased thereby causing injuries on his right, left and in the middle of the back. The complainant side wanted to rescue the deceased when Muhammad Rafique appellant/accused gave two Danda blows to Murad All P.W. Which caused injuries on his right and left side of the head. Eventually, the complainant side succeeded to save the victims from the further onslaught of the accused/appellants, who after committing the aforesaid occurrence escaped towards their homes alongwith the weapons of offence. In the aforesaid occurrence, the complainant, Ali Bahadur and Muhammad Rafique (accused) also allegedly received minor injuries. The deceased, however, succumbed to the injuries in the hospital on the same day. The motive for the occurrence was the preceding altercation between Gul Rehman and Ali Bahadur appellant, etc.
6. Learned counsel for the appellants has contended that there was no pre- meditation nor there was any community of purpose to commit the occurrence by the appellants; that the ocular account of the occurrence was not reliable as it consisted of the interested witnesses who were also related to each other; that the witnesses were not actually present at the spot to see the occurrence; that the medical evidence contradicted the ocular account of occurrence given at the trial; that the recoveries were of no avail to the prosacution to link any of the appellants with the occurrence; and that the complainant side was aggressor as they had opened attack. In this regard, Ali Bahadur stated, while examined under section 342, Cr.P.C. That on the day of occurrence Janas Khan, Murad Ali, Khalid-ur- Rehman and Hafeez-ur-Rehman while armed came to his house and started abusing. The main door of the house was closed, whereupon, the deceased tried to enter the house by climbing over the wall. The appellant Ali Bahadur thereupon came out but all of them opened attack upon him and caused him injuries and also fell him on the ground. His mother, wife and sister raised alarm which attracted some Mohallandars who also raised hue and cry. His brother Muhammad Rafique who was working as labourer in the nearby village also came to the spot alongwith one Faqir Muhammad. The complainant party opened attack and caused injuries to Rafique as well. Out of the .Villagers who had gathered at tne spot, some unknown persons attacked and injured the deceased. The appellant Ali Bahadur alongwith his brother Rafique allegedly went to Police Station Attock Khurd in injured condition at about 1-00 p.m. On the same day and narrated the incident to lqbal Hussain Shah, who asked them. To sit in the police station. In the meantime, one Major Hidayat Ullah posted in A.K. Centre, Mansar and a resident of Village Zaida, District Swabi came there as the deceased used to serve with him as a gardener. The aforesaid Major Hidayat Ullah prevailed upon the police which did not record the report of the appellant Ali Bahadur and instead falsely involved them in this case at the behest of the complainant. The defence version was also not recorded by the S.-I. Which allegedly prejudiced the case of the appellants. The recovery of blood-stained hatchet (P.2) was denied by Ali Bahadur who contended that the same was planted upon him. He took up the plea that he was falsely implicated in the case as aforesaid. Muhammad Rafique appellant repeated the same story which was given by his co-appellant Ali Bahadur. The appellant Abdul Malik took up the plea that he was not present at the time of occurrence but was falsely implicated on account of party faction because the complainant side had committed aggression and they were apprehensive that his father being an influential person in the village will expose their aggression, and therefore, he was involved falsely in the case. The defence evidence was also examined by the appellants.
Muhammad Mehboob, D.S.P. Headquarters, Attock entered the witness-box as D.W.1 and stated that the participation of Abdul Malik accused/appellant in the occurrence was doubtful according to his investigation. However, he admitted during the cross-examination that the aforesaid appellant was not placed in column No,2. He also admitted that such doubt about the participation of Abdul Malik did not figure in the report prepared under section 173, Cr.P.C. Though the same was forwarded by him to the Court.
7. Learned counsel for the appellants contended in the light of the aforesaid defence that in fact, the appellants were the victims of aggression but were wrongly challaned by the police. As such, it was alleged that the prosecution had failed to prove its case beyond any reasonable doubt.
8. Learned State Counsel contended that the prosecution was successful to prove its case against all the appellants beyond any reasonable doubt through ocular account of the occurrence supported by the medical evidence and the recovery of the weapons of offence through a reliable evidence. The defence version was allegedly concocted in order to .Save the skin of the appellants at some subsequent stage. The injuries to Muhammad Rafique accused have already been explained by the complainant which he had allegedly suffered during the scuffle between the two sides. Those were of superficial nature and would not give any benefit to the defence, which will rather show that Muhammad Rafique was actually present at the spot thereby providing corroboration to the prosecution version that the accused had committed the occurrence. It was, therefore, urged that there was no substance in the appeal.
9. It was contended on behalf of the revision petitioner that the sentence awarded to the accused Muhammad Rafique did not correspond to his offence and he should be sentenced also for the murder of the deceased as he shared the common intention with his co-accused. The amount of compensation was also stated to be quite meagre and was requested to be enhanced.
10. We have considered the arguments addressed at the Bar. First of all, it is to be seen whether the prosecution has been able to prove its case beyond any shadow of doubt. In this respect, it may be pointed out that though the witnesses are related to each other but they have no serious enmity so as to implicate the appellants falsely in this case: The motive will itself show that the unfortunate murder had taken place on account of altercation which had previously 'taken place between the parties. In such a situation, it cannot be said that the parties were inimical to each other or that the witnesses were interested so as to bring a false charge against the appellants/convicts. On the contrary, it appears that they were the natural witnesses as they were called to have a talk with Ali Bahadur, a neighbour of the son-in-law of the complainant with whom he had some sort of unhappiness leading to frequent quarrels. However, the details of those quarrels had not been provided from any of the two sides. The complainant along with the deceased and others came to the place of occurrence in order to have a talk with Ali Bahadur to settle the aforesaid differences.
However, before that could happen, the incident of quarrel between the appellants namely Ali Bahadur and Muhammad Rafique and Gul Rehman i,e,; son-in-law of the complainant took place soon after the later had reached near the house of aforesaid Gul Rehman. However, that incident did not take a serious turn due to the intervention of the complainants and his companions. But, on the same day, the appellants arrived at the scene while variously armed as stated above and started abusing Hafeez-urRehman who also returned the abuses leading to an attack upon him and a scuffle between P.Ws. And the accused while he was given fatal blows. In that way, Rafique accused/appellant also sustained some injuries. Thus, it is obvious that the presence of Rafique accused is established at the spot. As such, the evidence given by the eye-witnesses is not only inspiring but also trustworthy as far as the occurrence is concerned. It is particularly so because the injuries found on the person of the deceased and as disclosed by the doctor in the post- mortem report tallies with the injuries inflicted by the appellants Ali Bahadur and Abdul Malik with their respective weapons The stab wounds can be easily attributed to tally with the weapons of offence i,e,; Chhuri, used by Abdul Malik accused, whereas, the incised wounds found on the person of the deceased would link the blood-stained hatchet recovered from Ali Bahadur accused. Hence there is no contradiction of any kind between the ocular account of the occurrence and the medical evidence brought on record: In fact, the medical evidence corroborates the occurrence as deposed by the eye-witnesses.
11. The recovery of blood-stained hatchet and the other weapons of offence also undoubtedly link all the three appellants with the occurrence. As such, it can be safely stated that the prosecution has been able to prove its case from the evidence brought on record against all the three appellants.
12. Now the question would arise whether the defence version is probable or not. The plea of the appellants that they were the victims of aggression cannot be accepted because had the complainant side come with the preparation to attack the appellants then they would have been better armed than to be empty-handed. The damage done to the side of the complainant further speaks that the attack was opened by the appellants. The mere fact that the police was under the influence of the complainant side would not be readily acceptable because there was no trustworthy evidence to show that in fact they were not the aggressors. Hence putting both the versions in juxtaposition, the defence story appears to be improbable as compared to the prosecution story which stood proved beyond any shadow of doubt, as observed above.
13. After our above findings, the question about sentence regarding Ali Bahadur would arise. The circumstances of the case suggest that there was no premeditation and the occurrence took place on the spur of the moment because both the parties were living in each other's neighbourhood. The occurrence took place suddenly and its origin appears to be shrouded in mystery, therefore, though the conviction of Ali Bahadur appellant is maintained but it would serve the interest of justice if his death sentence is converted into imprisonment for life. As such, death sentence awarded to him is not confirmed and the same is altered to imprisonment for life. The amount of compensation and in case of default, its subsequential imprisonment is, however, maintained.
14. In case of Muhammad Rafique accused/appellant, he was rightly convicted and sentenced under section 337-A(i), P.P.C. For causing Shajjah-iKhafifah to Murad Ali P.W. He was arrested in November, 1992 and was sentenced vide the impugned judgment to undergo two years' R.I. And a Daman of Rs,10,000. If the aforesaid sentence awarded to him has not already expired, it will suffice the ends of justice if he is sentenced to a period, he has already undergone. The sentence of Daman is, however, maintained.
15. The conviction and sentence of Abdul Malik appellant is to be examined keeping in view his age which according to the evidence brought on record is 15 years. For this purpose a reference to the charge-sheet and his statement under section 342, Cr.P.C. Can be made with advantage. The school certificate (Exh.D.C.) produced by Abdul Malik also shows his date of birth as 8-1-1978 which means that at the time of occurrence, he was about 14 years and 9 months. The learned trial Judge had rejected the school certificate on the ground that it is not a reliable evidence and has relied upon his observation that by appearance, the aforesaid accused looked to be of the age of 18/19 years. This observation is given by the learned trial Judge while writing the judgment but nowhere else during the trial. The right occasion for such observation was when the accused had appeared before him at the time of framing of charge or when he was examined under section 342, Cr.P.C. On none of the two occasions, any such observation was made. Hence his age is undoubtedly 15 years which closely tallies with the age of the aforesaid accused/appellant given in the school leaving certificate. As such, it cannot be said in the absence of any other proof that the accused was not in the range of 15 years of age at the time of occurrence. Hence, it is quite clear that the aforesaid accused/appellant Abdul Malik was not adult at the time of occurrence as he had not attained the age of 18 years as defined in section 299(a), P.P.C. Such an accused being a minor shall be dealt with in accordance with the provisions contained in section 306 read with section 308, P.P.C. An offender who is a minor shall not be liable to Qisas for Qatl-i-amd under section 306, P.P.C. Hence such an offender shall be liable to punishment in the form of Diyat as provided in section 308, P.P.C.
We have already held that the aforesaid offender had participated in the murder of the deceased by inflicting him Chhuri blows, therefore, the defence story that he was falsely implicated only because the complainant party wanted to conceal their aggression and was afraid of that his father being an influential person will expose them to law, appears to be the most improbable as against the eyewitnesses. Hence the offence against the aforesaid .Offender having been proved to be not punishable with Qisas but punishable under section 308, P.P.C., we convert his conviction from section 302(B), P.P.C. To section 306 read with section 308, P.P.C. And sentence him to pay an amount of Rs,2, 29,000 (rupees two lacs and twenty-nine thousands) which is the existing amount of Diyat for the present financial years and shall be recoverable from his person and property, if any. We further sentence him to 7 years' R.I. As Tazir under second proviso to subsection (1) read with subsection (2) of section 308, P.P.C. As the said accused had attained sufficient maturity so as to be able to realise the consequences of his criminal act.
16. We also direct that the benefit of section 382-B, Cr.P.C. Shall be extended to both the appellants/accused namely Ali Bahadur and Abdul Malik respectively.
17. Since the death sentence awarded to Ali Bahadur appellant/convict is not confirmed, therefore, the reference made for the confirmation of death is answered in negative.
18. In view of our above findings, the Revision Petition No,59 of 1994 has no merit and the same is also dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.