' The present criminal appeal has been directed against the judgment dated 28-3-1993, whereby the learned Additional Sessions Judge, Sialkot,.Had convicted and sentenced the appellants as follows: - ' Rafaqat Ali and Liaqat Alt appellants Nos.3 and 4 under section 302/34, P.P.C. To life imprisonment and a fine of Rs,20,000 each or in default thereof to further R.I. For two years each. Half of the fine. If realized, was directed to be paid to the legal heirs of the deceased; ' Zulfiqar Ahmad and Liaqat Ali appellants Nos.1 and 4 under section 337-A(i), P.P.C. To R.I. For one year and a fine of Rs,10,000 each or in default thereof to further suffer R.I. For six months each for having caused injuries to Rashid and Muhammad Arif P.Ws. Respectively; ' Muhammad Khalid appellant No,2 under section 337-A(iii), P.P.C. To R.I. For two years and a fine of Rs,10,000 or in default thereof to undergo further R.I. For six months, for having caused injury to Muhammad Waris P.W., and under section 337-A(i), P.P.C. To R.I. For one year and a fine of Rs,10,000 or in default thereof to suffer R.I. ' for further six months (on two counts) for having caused injuries to, Rashid and Muhammad Arif P.Ws.
' Half of the fine, if realized, was directed to be paid to the injured P.Ws, and the sentences imposed on Zulfiqar Ahmad, Muhammad Khalid and Liaqat Ali-appellants Nos.1, 2 and 4 were directed to run concurrently.
' Criminal Revision No,257 of 1993 filed by the complainant for enhancement of the sentences awarded to the appellants and directed to be heard alongwith the present criminal appeal, shall also be disposed of by this judgment.
2. Brief facts of the prosecution case, registered on the statement Exh.P.D. Of Muhammad Waris, complainant, made before Muhammad Ashraf, A.S.-I., Police Station Cantt. Sialkot on 4-1-1991 at 1- 35 p.m. Are that his uncle Muhammad Siddiq had died 2/3 years back, whose widow Mst.
Maqsooda Begum was residing in the adjacent house. 6/7 months back, Hanif son of Muhammad Din and his wife Mst. Zubaida Begum enticed away Mst. Farida Kausar daughter of Muhammad Siddiq and Muhammad Khalid son of Rafiq to their house on the pretext of getting them married.
Mst. Maqsooda Begum asked Hanif and his wife for the return of her daughter Farida Kausar, whereupon they abused her. She complained about it to Abdur Rashid P.W. (father of the complainant), who reprimanded them, whereupon Muhammad Hanif felt seriously annoyed and chalked out a programme to take revenge, in pursuance whereof Khalid accused came to the house of Mst. Maqsooda Begum at about 9-30 a.m. On the day of occurrence and tried to take away rice from there, but at the instance of Mst. Maqsooda Begum, he was checked by Abdul Rashid (father of the complainant) and he went away. At 10-30 a.m. On the same day, Zulfiqar alias Bichhu accused armed with Chhuri, Muhammad Khalid armed with Dang, Liaqat and Rafaqat accused armed with hatchets, while coming to the house of the complainant, reached in front of the house of Muhammad Aslam, they came across Muhammad Malik (deceased), and Zulfiqar accused raised Lalkara saying that first the son be put to death and thereafter the father will be dealt with, whereupon Liaqat accused gave a hatchet blow on the head of Muhammad Malik and Rafaqat accused also gave hatchet blow on his head, as a result of which he fell down. When the complainant stepped forward to rescue him, Muhammad Khalid accused inflicted a Dang blow on his right hand. Thereafter, the complainant warded off all the Dang blows at his hand. In the meanwhile, Rashid and Muhammad Arif (father and brother respectively of the complainant) came to the spot. Muhammad Khalid inflicted a Dang blow on the head of Rashid and Zulfiqar accused inflicted a Chhuri blow on his mouth as a result of which he also fell down. Muhammad Khalid inflicted a Dang blow on the head of Muhammad Arif and Liaqat Ali accused caused a hatchet blow on his head, who also fell down. Muhammad Khalid accused also inflicted Dang blows to him while he was in falling position. Besides the complainant, the occurrence was also witnessed by Muhammad Akbar, Muhammad Arshad and Mst. Allah Rakhi P.Ws. Who rescued the victims from the assailants.
' Muhammad Malik and other injured P.Ws. Were taken to the hospital where Muhammad Malik succumbed to the injuries. According to the complainant, the occurrence took place at the instance of Muhammad Hanif.
' Muhammad Ashraf A.S.-I., having received the information about the occurrence, reached the hospital, recorded the statement Exh.P.D. Of the complainant-Muhammad Waris, sent the same to the Police Station through Asghar Ali, Constable for registration of the case, collected the medico- legal reports of the complainant, the deceased and the other injured P.Ws, prepared the injury statement Exh.P.K. And inquest report Exh.P.L. Of the deceased and despatched the dead body to the mortuary for post-mortem examination under the escort of Muhammad Ilyas and Muhammad Sarwar, Constables. He made query through applications Exh.P.M. And Exh.P.N, whereupon Muhammad Arif P.W. Was reported to be fit to make statement, but Rashid was reported to be not fit. He again inquired through application Exh.P.O. About his condition and he was declared fit to make his statement by the doctor. Thereafter he went to the spot, inspected the spot and prepared rough site plan of the place of occurrence Exh.P.P. He recorded the statements of the P.Ws.
Collected bloodstained earth from the spot, vide memo Exh.P.B. And handed over the sealed parcel of the blood-stained earth to the Moharrir for keeping in the Malkhana for safe custody. On 5-1-1991, he took into possession the last worn clothes of the deceased i,e, shirt P.1, Jarsi P.2, another Jarsi P.3, Banyan P.4, Pajama P.5 and Shalwar P.6, vide memo Exh.P.A. He had also made search for the accused, but could not trace out them, and in the meanwhile investigation was transferred.
4. On 19-2-1991 Shaukat Ali, S.-I. (P.W.16) was entrusted with the investigation of this case, who arrested all the accused and obtained their physical remand. On 28-2-1991 he got recovered blood-stained Chhuri P.7 on pointing out of Zulfiqar accused from underneath the chaff in the north-eastern room of his house, vide memo Exh.P.Q. On the same day, he got recovered blood- stained Dang P.8 on pointing out of Muhammad Khalid accused from the room of house of Zulfiqar accused, vide memo. Exh.P.R. On the same day, he also got recovered blood-stained hatchets P.9 and P.10 on pointing out of Rafaqat and Liaqat accused from the, residential room of the house of Zulfiqar accused, vide memos. Exh.P.S. And Exh.P.T. Respectively. He prepared the site plan of the place of recovery Exh.P.U. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. He handed over all the sealed parcels to the Moharrir for keeping them in the Malkhana for safe custody. After the investigation, he challaned all the accused.
5. This case was also investigated partly by Waqar Javaid, S.-I. (P.W.13) and Tasnim Ghani, S.-I.
(P.W.15). Waqar Javaid, S.-I. Had got prepared the site plan of the place of occurrence Exh.P.J. And its duplicate Exh.P.J./1 and recorded his notes in red ink thereon and signed the same. He also recorded the statement of Akhtar Naqash, Draftsman under section 161, Cr.P.C. Tasnim Ghani, S.-I.
Has recorded the statements of Muhammad Ilyas, Constable and Mahmood Khan, Moharrir A.S.-I.
Under section 161, Cr.P.C. And verified the investigation already conducted.
6. At the trial, the prosecution produced as many as seventeen witnesses to prove its case. P.W.1 Muhammad Sarwar, Constable had escorted the dead body of Muhammad Malik deceased to the mortuary and after the post-mortem examination, had transmitted the last-worn blood-stained clothes P.1 to P.6 to Muhammad Ashraf, A.S.-I. Who took them into possession vide memo Exh.P.A.
P.W.2. Muhammad Ashraf had identified the dead body of Muhammad Malik deceased at the time of autopsy and also attested the memo. Exh.P.A. With regard to the last worn clothes of the deceased P.1 to P.6.
7. P.W.3 Muhammad Ilyas, Constable on 12-1-1991 was handed over a sealed parcel, which he delivered in the Office of Chemical Examiner and on 13-1-1991 he brought back the said parcel alongwith the report of the Chemical Examiner and handed it over to the Moharrir. P.W.4 Munawar Hussain was the witness of the recovery of blood-stained earth vide memo. Exh.P.B.
8. P.W.5 Dr. Muzaffar Masud, on 5-1-1991 had conducted the postmortem on the dead body of Muhammad Malik and found the following injuries on it:--
(1) An incised wound 8 x 2 c.m. x depth not probed on the top of the head to the right temporal region and the brain matter had bulged out through the bone.
(2) An incised wound 9 c.m. x 1-1/2 c.m. On the top of the head extending towards the right parietal region. Small quantity of brain matter had bulged out from the wound.
' On dissection, he found that under injuries Nos.l and 2 skin and connective tissues were cut and there were complete fractures of the skull bone extending to the right temporal region to right parietal region. Except the injuries mentioned above, rest of the organs were found healthy and normal.
' In his opinion, injuries Nos.1 and 2, caused by sharp-edged weapon, were grievous and dangerous to life. Both the injuries were ante-mortem and were sufficient to cause severe haemorrhage and shock leading to sudden cardiorespiratory arrest which was sufficient to cause death in the ordinary course of nature. Duration between injuries and death was 2 to 4 hours and between death and post-mortem examination about 22/23 hours. Exh.P.C./1 was the carbon copy of his post-mortem report, whereas Exh.P.C./1 was the diagram showing the location of the injuries.
9. P.W.6 Muhammad Khan, Moharrir/A.S.-I. Had recorded the formal F.I.R. Exh.P.D./1 on the basis of the statement Exh.P.D. Of the complainant on 4-1-1991 and kept the sealed parcel containing blood-stained earth in the safe custody of Malkhana, which was handed over to him by Muhammad Ashraf, A.S.-I. On 5-1-1991 he was also handed over the sealed parcel of blood-stained last-worn clothes of the deceased for safe custody in the Malkhana. On 12-1-1991 he handed over the sealed parcel containing blood-stained earth to Muhammad Ilyas, Constable for taking to the Office of Chemical Examiner, which was received back on 13-1-1991 with the relevant report. On 28- 2-1991 Investigating Officer had given him four sealed parcels containing two bloodstained hatchets, one Dang and one Chhuri, for safe custody in the Malkhana, out of which two were sent to the Office of Chemical Examiner, Lahore, on 11-3-1991, but were received back with some objection on 12-31991 and were again delivered in the Office of Chemical Examiner on 26-3-1991 intact.
10. P.W.7 Dr. Muhammad Ayub on 4-1-1991 had medically examined Muhammad Malik and found the following injuries on his person:--
(1) An incised wound 8 c.m. x*2 c.m. x DNP on middle of head extending from midline to right temporal region. Brain matter was coming out of the wound. Wound was bleeding.
(2) An incised wound 9 c.m. x 1-1/2 c.m. x DNP on middle of head extending from midline to right parietal region. Brain matter was coming out of the wound and it was bleeding.
' According to him both the injuries were grievous having been caused by sharp-edged weapon within a duration of 2 to 2-1/2 hours. Exh.P.E. Is the carbon copy of his medico-legal report.
' On the same day, he medically examined Rashid P.W. And found the following injuries on his person:
(1) Lacerated wound which was V shape, 4 c.m. x 1 c.m. x DNP on occipital region of head.
(2) An incised wound 2 c.m. x 1 c.m. x muscle cutting left upper lip.
(3) An incised wound 1 c.m. x 1-1/2 c.m. x muscle cutting inner side of left upper lip.
(4) An incised wound 1 c.m. x 1/4 c.m. x DNP on gums of left side of upper jaw between second incisors and canine.
' The patient was admitted and X-rays of skull from A.P. And lateral view were advised. According to him injury No,1 was kept under observation while rest were simple. Injuries Nos.2, 3 and 4 were caused by a sharp-edged weapon while injury No,1 by blunt weapon. The duration of the injuries was within five hours.
' On the same day, he medically examined Muhammad Arif injured P.W. And found the following injuries on his person:--
(1) An incised wound 5 c.m. x 1 c.m. x DNP on temporal region of right side of head.
(2) Swelling on top of head measuring 3 c.m. x 3 cm.
(3) An abrasion 4 c.m. x 3 c.m. On left shoulder.
' X-rays of skull and left shoulder from A.P. And lateral views were advised. All the injuries were kept under observation. Injury No,1 was caused by sharp-edged weapon and rest by blunt weapon within a duration of 6 hours.
' On the same day, he medically examined Muhammad Waris injured P.W. And found the following injury on his person:--
(1) A swelling on whole of right hand. X-rays of right hand from AP and lateral view was advised.
' The injury was kept under observation, having been caused by blunt weapon within a duration of 6 hours and on the basis of the report of Radiologist on X-rays, the same was declared grievous.
Exh.P.H. Was the carbon copy of his medico-legal report.
11. P.W.8 Akhtar Naqash, Draftsman on 7-1-1991 inspected the spot and prepared the site plan Exh.P.J. And Exh.P.J./1 in the scale of 20 feet to an inch on the directions of the police and pointing out of the P.Ws. And handed over the same to the police on 13-1-1991.
12. P.W.9 Muhammad Waris---complainant had reiterated the contents of his statement Exh.P.D, whereas P.W.10 Muhammad Rashid and P.W.11 Muhammad Arif had corroborated his statement in all material details.
13. P.W.14 Muhammad Sharif had witnessed the recoveries of bloodstained Chhuri P.7, Dang P.8, two hatchets P.9 and P.10, on the pointing out of Zulfiqar, Muhammad Khalid, Rafaqat and Liaqat accused/appellants, vide memos. Exh .P.Q . , Exh . P. R . , Exh . P. S . And Exh.P.T. Respectively.
14. P.W.17 Amjad Hussain, Constable on 11-3-1991 was handed over two sealed parcels by the Moharrir for their onward transmission to the Office of Chemical Examiner, which he delivered there on the same day, but on 12-3-1991 the said parcels were returned to him under some objection and he delivered them back to the Moharrir. On 26-3-1991, the sealed parcels were again handed over to him for their delivery in the Office of the Chemical Examiner and he delivered the same intact on the same day.
15. The prosecution had given up Muhammad Akbar P.W. As being won over, whereas Muhammad Arshad and Mst. Allah Rakhi P.Ws. As being unnecessary and while tendering in evidence reports of the Chemical Examiner Exhs.P.V. And P.X. And report of the Serologist Exh.P.Y., closed its case.
16. In their statements, recorded under the provisions of section 342, Cr.P.C. The appellants had denied the allegations levelled against them in the F.I.R. And also denied the recovery of weapons of offence at their instance, by deposing that Mst. Farida Kausar and Muhammad Khalid were living with Muhammad Hanif and as a matter of fact, the complainant party launched attack to forcibly take back Farida Kausar as a result of which Liaqat Ali-appellant, his mother namely Mst. Sardaran Bibi and Zubaida Bibi had sustained large number of injuries in front of the house of Muhammad Hanif at the hands of Rashid Ahmad, Muhammad Arif and Muhammad Waris and that Liaqat Ali accused had acted in the exercise of his right of self-defence. They had deposed that the injured persons from their side were medically examined at Daska, as the complainant party was bent upon committing violence in the District Headquarters Hospital, Sialkot. The appellants had examined Dr. Saadat Ullah Cheema as D.W.1, who had medically examined Mst. Zubaida Bibi, Mst.
Sardaran Bibi and Liaqat Ali and found 14, 8 and 8 injuries on their persons respectively. He has also testified the medico-legal reports Exh.D.D., Exh.D.E. And Exh.D.F. In respect of the said injured persons, to be in his hand. Liaqat Ali appellant had tendered in evidence copies of F.I.R. No,45 of 1992, dated 28-1-1992, Criminal Miscellaneous No,4002-B of 1991, and an application addressed to the Inspector-General of Police Punjab, Lahore, alongwith its postal receipt, as Exh.D.G., Exh.D.H. And Exh.D.J. Respectively and closed his defence. All the appellants however, did not get recorded their statements under the provisions of section 340(2), Cr.P.C.
17. The learned trial Court taking into consideration the facts and circumstances of the case convicted and sentenced the appellants as stated above.
18. The leaned counsel for the appellants, the State and the complainant were heard and the record of the case perused with their assistance.
19. The learned counsel for the appellants argued that the motive as set up has not been proved, whereas the explanation provided by the defence through the statement of Liaqat appellant under section 342, Cr.P.C. To the effect that immediate cause of the occurrence in question was Mst.
Farida Kausar and pursuant to the murderous assault by the complainant party against him and his womenfolk, he was forced to retaliate in self-defence that had resulted in injuries to the prosecution witnesses in question. Further argued, as the entire facts and circumstances of the case fully. .Support the version of the said appellant Liaqat, therefore, his case should be decided within the ambit of self-defence, as provided by law, whereas rest of the appellants deserve to be acquitted. Further submitted that the recoveries are of no consequence, as Dang P.8 recovered from Muhammad Khalid appellant, vide memo. Exh.P.R. Was not blood-stained, whereas Chhuri P.7 hatchet P.9 and hatchet P.10 recovered from Zulfiqar, Rafaqat and Liaqat appellants, vide memos.
Exh.P.Q., Exh.P.S. And Exh.P.T., respectively, were allegedly blood-stained, but there is no report of the Serologist exhibited to the effect that the said three recoveries were stained with human blood: and further impugned the said recoveries by pointing out that as the recoveries had been effected on 28-2-1991 i,e, one month and 24 days after the occurrence in question that had taken place on 4-1- 1991 and thereafter had been received by the Chemical Examiner on 26-3-1991, as recorded in Exh.P.X. i,e, report of Chemical Examiner, therefore, the same could not be relied upon as persistently held by the superior Courts. In this respect, reliance was placed on The State v. Mst.
Mukhtaran and others 1980 PCr.LJ 827 and Khandoo etc. v. The State 1977 PCr.LJ 560. Further contended that as the prosecution had falsely implicated Muhammad Hanif in the instant case by naming him in the F.I.R. As the instigator of the occurrence in question, therefore, further false involvement of the three appellants i,e, other than Liaqat appellant, cannot be ruled out. Argued that the two sharp-edged injuries suffered by the deceased i,e, injuries Nos.1 and 2, are so close to each other as is evident from the postmortem report Exh.P.C,. And being on the same side of the head, the said injuries having been caused by the same person, cannot be ruled out and the benefit thereof should go to Rafaqat appellant, who had denied the charge, whereas Liaqat appellant had admitted to have acted in self-defence.
20. On the other hand, the learned counsel for the State supported the impugned judgment and argued for ^ustaining the conviction and sentences awarded to the appellants by emphasising that the occurrence stands admitted, whereas the plea of self-defence taken up by Liaqat appellant has not been proved, as the defence had failed to discharge the onus of proof thus placed on it. Further submitted that according to the site plan Exh.P.J. And the recovery of blood- stained earth it is duly proved that the occurrence had taken place in open space and not in the house of the appellant Liaqat, as implied by him in his statement under section 342, Cr.P.C. Further argued that as the alleged injured family members of the accused party, namely, Mst. Zubaida Bibi and Mst. Sardaran Bibi had not appeared before the learned trial Court to support the version of Liaqat appellant, therefore, his statement to that effect needs to be totally ignored.
21. The learned counsel for the complainant has adopted the arguments advanced by the learned counsel for the State and further submitted that the motive was not essential to prove the charge in the presence of direct evidence by the injured prosecution witnesses, as was the case in the instant occurrence, which had taken place during the day time between the parties known to each other and that had resulted in brutal murder of the deceased Muhammad Malik.
22. The Court had given its anxious consideration to the arguments advanced for and against the present criminal appeal. The motive as alleged by the prosecution shall be dealt with at first. In that respect, it has been taken notice of that whereas the prosecution version itself refers to Mst. Farida Kausar and her step-brother Muhammad Khalid had been given shelter by the accused party that had caused an altercation to take place between the accused party and Abdul Rashid P.W.10, yet the immediate cause is stated to be an attempt by appellant Khalid to lift some rice from the house of his mother Mst. Maqsooda Begum, but without producing the said lady to support the said version and such a failure on the part of the prosecution raises serious doubts in respect thereof. Furthermore, the complainant P.W.9 Muhammad Waris had admitted during his cross- examination that immediately a day after the present occurrence the said Mst. Farida Kausar had been forcibly abducted by the complainant party and that pursuant to the filing of a habeas corpus petition, she was recovered and F.I.R. Exh.D.G. Had been lodged against some members of the complainant party named therein. Therefore, it is hereby held that the prosecution had failed to prove the motive as alleged, but the explanation of the accused in that respect is more plausible and needs to be relied upon for the reasons recorded above. The Court is further constrained to observe that immediate cause of the occurrence in question is shrouded in mystery and the possibility of the instant occurrence having taken place on the spur of moment, pursuant to an altercation resulting from the exchange of hot words between the parties, cannot be ruled out, and that, therefore, every accused shall be liable for his own act only.
23. To deal with the alleged recoveries of weapons of offence stated above, it shall suffice to record that in the absence of the report of the Serologist it cannot be accepted that the hatchets in question were stained with human blood and furthermore that the extremely late recoveries thereof rules out any possibility of said recoveries being helpful in supporting the case of the prosecution, as charged. Here it may be observed, as help time and again by the superior Courts and specially in the authorities relied upon by the learned counsel for the appellants i,e, The State v.
Mst. Mukhtaran and others 1980 PCr.LJ 827 and Khandoo etc. v. The State 1977 PCr.LJ 560 that weapon of offence could not retain blood stains on it for nearly two months.
24. Court is only left with the ocular evidence, as provided by the three eye-witnesses, all injured and the corroboration thereof provided by the medical evidence. But specially taking into consideration the answer to question No,10 by appellant Liaqat in his statement recorded under the provisions of section 342, Cr.P.C., it is hereby observed that except for claiming that he had acted in his own self-defence and in the defence of his womenfolk, he had not provided any specific details regarding as to how he alone had caused injuries to the deceased and to the three injured P.Ws.
Therefore, his statement can only be accepted to the extent of his admission to have participated in the occurrence in question that had led to the death of the deceased and injuries to the prosecution witnesses. However, it further stands proved on the record through the testimony of D.W.1 Dr. Saadat Ullah Cheema and medico-legal report Exh.D.F. That Liaqat appellant had also suffered injuries, which had been suppressed by the prosecution. It is further observed, taking into consideration the nature of injuries i,e, blunt and sharp, suffered by the three prosecution witnesses named above, that the same could not have been caused by Liaqat appellant alone, who is said to have been armed with a hatchet and that, therefore, participation of the two appellants namely Zulfiqar and Khalid, cannot be ruled out; specially, as the parties were known to each other and the injured P.Ws. Had specifically named the said two appellants to have caused specific injuries to their respective persons. In that respect, the testimony of the injured P.Ws. Is consistent and confidence inspiring except in the case of Rafaqat appellant.
25. To deal with the case of Rafaqat appellant, it is noted that all the three eye-witnesses had made improvements in their testimony before the learned trial Court by stating that he had caused injury to the deceased on the top of the head, whereas at first they had stated that the same was caused on the right side and with regard thereto they were duly confronted, which raises serious doubt about their testimony against the said appellant Rafaqat. In addition thereto, it has been taken notice of that both the injuries suffered by the deceased are in very close proximation to each other and on the right side, which gives rise to possibility that they may have been caused by same person and that the benefit of the doubt thus arising should go to the appellant Rafaqat. In this respect, it is further observed that the tendency to involve innocent person/persons in the instant case had been duly borne out by the involvement of Muhammad Hanif, who was neither challaned nor summoned by the learned trial Court. Therefore, as the motive stands disbelieved, recoveries of weapons discarded, serious doubts arisen because of improvements made by the eye-witnesses in respect of Rafaqatappellant, as stated above, causing doubt about the seat of injury attributed to him, and as it has been held, as recorded above, that every accused is liable for his own act only in the instant matter, it is hereby held that the prosecution had failed to prove its case against him beyond reasonable doubt. Consequently, he is acquitted of the offences charged. He shall be released forthwith, if not required to be detained in any other case.
26. This brings the Court to the case of appellants Zulfiqar and Khalid. Suffice it to state that the injured P.Ws. Had specifically named them to have caused specific injuries and as their testimony has stood the test of lengthy cross-examination, therefore, convictions of the said appellants, as recorded by the learned trial Court i,e, Zulfiqar-appellant under section 337-A(i), P.P.C. And Khalid- Appellant on one count under section 337-A(iii), P.P.C. And on two counts under section 337-A(i), P.P.C., are hereby maintained, However, as they have already suffered substantive imprisonments for almost one year and are on bail at present, therefore, while reducing their respective sentences to the periods already undergone by them the said two appellants are directed to pay the fine and compensation as follows:- ' Zulfiqar-appellant: Fine of Rs,5,000 or in default thereof to suffer 6 months' R.I. And compensation of Rs,10,000, payable to injured P.W.10, Muhammad Rashid, or to undergo S.-I. For 6 months in default thereof; ' Khalid-appellant: Fine of Rs,5,000 or in default thereof to suffer 6 months' R.I., compensation of Rs,10,000, payable to injured P.W.9, Waris, or to undergo S.-I. For 6 months in default thereof; fine of Rs,5,000 or in default thereof to undergo R.I. For 6 months, compensation of Rs,10,000 payable to injured-Arif P.W.11, or in default thereof to suffer S.-I. For 6 months; and fine of Rs,5,000 or to suffer R.I.
For 6 months in default thereof and compensation of Rs,1C,000 payable to injured-Muhammad Rashid P.W.10, or in default thereof to undergo S.-I. For six months.
27. To deal with the case of Liaqat appellant, it is hereby emphasised that the prosecution had not come out with the whole truth regarding the mode and manner in which the present occurrence had taken place, as is evident from mystery shrouding immediate motive for the occurrence and the suppression of injuries suffered by this appellant. The injuries suffered by Liaqat-appellant leads to the reasonable inference that the complainant party was not entirely innocent of blame in the instant occurrence although the appellant-Liaqat has not been able to discharge the onus placed on him to prove his plea of self-defence, as stated above. Consequently, it is hereby held that he is, guilty of having caused the death of Muhammad Malik-deceased. The ocular evidence of the three injured prosecution witnesses, medical evidence and his own statement fully support the conclusion thus arrived at. However, this brings us to the question as to under what provisions of law he shall be held guilty of the said offence under the facts and circumstances highlighted.
The punishment for Qatli-Amd, and is the case herein, has been provided under the provisions of section 302, P.P.C., which is as follows:-- "302. Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be---
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
A perusal of the above section makes it clear that three different types of punishment for Qatl-i- Amd has been provided thereunder. The punishment ofi death as Qisas has not been applied in the instant case by the learned Trial Court and the sentence of imprisonment for life as Ta'zir has been awarded to the appellant-Liaqat by the impugned judgment without specifically referring to subsection (b) of section 302, P.P.C. But subsection (c) of the said section further provides for imprisonment of either description for a term which may extent to twenty-five years, whereas according to the Injunctions of Islam the punishment of Qisas is not applicable. The difference between the two provisions i,e, subsection (b) and subsection (c), applicable instead of Qisas is that whereas under subsection (b) the punishment is to be imprisonment for life and under the provisions of subsection (c), imprisonment thereof may extent to 25 years. Therefore, the Court hereby holds that under the facts and circumstances highlighted in respect of appellant Liaqat, as recorded above, it shall meet the ends of justice, if the punishment of imprisonment for life awarded to him is converted into punishment under the provisions of subsection (c) of section 302, P.P.C. Pursuant thereto, the Court hereby modifies the sentence of imprisonment for life awarded to Liaqat appellant to 14 years' R.I. Under subsection (c) of section 302, P.P.C. He is further directed to pay Rs,20,000, to be paid as compensation to the legal heirs of the deceased Muhammad Malik, or to suffer S.-I. For 6 months in default thereof. His conviction under the provisions of section 337-A(i), P.P.C. To R.I. For one year with a fine of Rs,5,000 or in default thereof R.I. For 6 months, for having caused injuries to Arif P.W., is hereby maintained, with the further direction that he shall also pay Rs,10,000 to be paid as compensation to the injured P.W. Arif, or shall suffer S.-I. For six months in default thereof. The sentences awarded to Liaqat-appellant shall run concurrently and he shall be entitled to the benefit of the provisions of section 382-BCr.P.C.
28. In accordance with the modifications stated above, the present criminal appeal is partly allowed and disposed of accordingly.
29. For the reasons recorded above, Criminal Revision No,257 of 1993, directed to be heard alongwith the present criminal appeal, stands dismissed.