' MUHAMMAD NAWAZ ABBASI, J.--- This single judgment proposes to dispose of Murder Reference No,7 of 1997 (ATSC) sent by the learned Judge Special Court, Anti-Terrorism, Dera Ghazi Khan Division and Criminal Appeals Nos.17, 18 and 19 (through jail) of 1997(ATSC) filed by Muhammad Jaffar son of Sher Khan, Yasir Arfat son of Muhammad Inayat and Allah Ditta son of Ahmad Yar, respectively.
2. The above named appellants along with their co-accused, namely, Amjad Abbas son of Malik Rab Nawaz having faced trial for the charge under section 302/324/109/34, P.P.C. Before the Special Court at Dera Ghazi Khan established under Anti-Terrorism Act, 1997 for committing murder of Akbar Hameed and Aadil Hameed sons of Abdul Hameed complainant were convicted by the said Court vide judgment, dated 5-11-1997 and sentenced in the following manner:--
(i) Allah Ditta appellant: ' Under section 302/34, P.P.C. Sentenced to death on two counts with a fine of Rs,5,00,000 (Rupees five lacs) or in default thereof to undergo R.I. For five years. An amount of Rs,5,00,000 (Rupees five lacs) was ordered to be paid by him as compensation to the legal heirs of two deceased persons, namely, Akbar Hameed and Aadil Hameed under section 544-A, Cr.P.C. In equal share i,e, one half to the legal heirs of each deceased.
' Under section 324/34, P.P.C., sentenced to ten years' R.I. For causing injury to Aain-ul-Haq P.W. With a fine of Rs,50,000 or in default thereof to further undergo R.I. For two years.
(ii) Muhammad Jaffar appellant: ' Under section 302/34, P.P.C. Sentenced to death on two counts with a fine of Rs,5,00,000 (Rupees five lacs) or in default thereof to undergo R.I. For five years' R.I. He was also directed to pay a sum of Rs,5,00,000 (Rupees five lacs) as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, namely, Akbar Hameed and Aadil Hameed, which would be equally divided and one-half will go to the legal heirs of each deceased. In case of non-payment of the amount of compensation, the appellants will suffer imprisonment for six months each and the amount in question will be recoverable as arrears of land revenue.
(iii) Yasir Arfat appellant: Under section 324/34, P.P.C. Sentenced to ten years' R.I. For causing injury to Muhammad Akhtar P.W. With a fine of Rs,50,000 or in default thereof to further undergo R.I. For two years.
' Amjad Abbas, co-accused of the appellants has been acquitted of all the charges.
3. The occurrence in the present case took place on 1-2-1997 at Bus-stop of Father within the area of Police Station Chowk Azam at 11-30 a.m. The report of which was lodged by Abdul Hameed, father of the deceased persons through F.I.R. (Exh.P.M.) the same day at 12-00 noon. The precise facts narrated therein are as follows:-- On the fateful day at about 11-30 a.m. Abdul Hameed alongwith his sons, namely, Akbar Hameed and Aadil Hameed were waiting for the bus at Bus-stand Father in Chowk Azam whereas Aain-ul- Haq and Muhammad Akhtar P.Ws. Were busy in purchasing the house-hold articles from a nearby shop, when the appellants, namely, Allah Ditta, Muhammad Jaffar and Yasin Arfat appearing at the scene armed with Chhuris and raising Lalkara that Aadil Hameed would not be spared on that day, attacked on him with their respective weapons. Allah Ditta inflicted Chhuri blows on the chest and left shoulder of Aadil Hameed and on the intervention of Akbar Hameed to save his brother; he was caused Chhuri blows by Muhammad Jaffar appellant on different parts of the body. Aain-ul-Haq and Muhammad Akhtar P.Ws. When made an attempt to rescue the deceased, they were attacked by Allah Ditta and Yasin Arfat appellants and were caused injuries. Muhammad Akhtar and Aain- ul-Haq sustained simple injuries at the hands of Yasin Arfat and Allah Ditta respectively. Aadil Hameed and Akbar Hameed succumbed to the injuries at the spot, whereas Aain-ul-Haq and Muhammad Akhtar were retnoved to the hospital for medical aid and treatment.
' The motive behind the occurrence as disclosed in the F.I.R. Was that a week earlier a quarrel took place between Allah Ditta and Aadil Hameed on account of teasing of Aadil Hameed to Mst.
Bakhtawar, sister of Allah Ditta.
4. Riaz Hussain, S.-I. (P.W.6) reaching at the place of occurrence prepared the injury statements (Exhs.P.J. And P.C.) of Aadil Hameed and Akbar Hameed deceased and the inquest reports (Exhs.P.H. And P.B.) respectively. During the spot inspection, he collected blood-stained earth from two places through separate memos. And preparing sealed parcels thereof, sent the same to the Chemical Examiner. He arrested Allah Ditta and Muhammad Jaffar accused On 21-2-1997 and got recovered blood-stained Chhuris, the weapons of offence, from them on 25-2-1997 in presence of Abdul Hameed complainant. Yasin Arfat appellant was arrested after refusal of bail before arrest, however, no recovery was effected from him. The Sub-1nspector during the investigation found Yasin Arfat innocent and placed him in column No,2 of the final 'report.
5. Dr. Fateh Muhammad, S.M.O. R.H.C. Chowk Azam (P.W.5) medically examined Ain-ul-Haq and Muhammad Akhtar injured P.Ws., who sustained the following injuries on their person during the occurrence:-- ' Aain-ul-Haq.
(I) An incised wound on the medial side of lower part of left 'arm, measuring 1-1/2 c.m. x 1 c.m.
Muscle deep, corresponding cut hole present in shirt.
(2) An incised wound in the abdomen going deep into abdomen. Above umbilicus on left side.
Injury was kept under observation. Corresponding cut hole present in shirt and Bunyan and Sweater measuring 2-1/2 x 1 c.m.
' Muhammad Akhtar.
(1) An incised wound on right thigh at its upper part measuring 2 c.m. x 1/2 c.m. x muscle deep on back side.
6. Dr. Abdul Majeed, M.O., D.H.Q. Hospital, .Layyah (P.W.1) conducted the autopsy of the dead bodies of Akbar Hameed and Aadil Hameed deceased and found the following injuries on their person:-- ' Akbar Hameed.
(1) An incised wound 2-1/2 x 1/2 c.m. x 1 c.m. x going deep on the left side of chest cavity at the level of left nipple and 2 c.m. Medial to it.
(2) An L (shaped) incised wound 2-1/2 c.m. x 1/2 c.m. x 2 c.m. x going deep on the right side near to vertebrae at the level of iliac crest..
(3) A lacerated wound 1 c.m. x 1/2 c.m. x muscle deep on the front and the lower part of right knee joint.
' Aadil Hameed.
(1) An incised wound 3 c.m. x 1/2 c.m. x going deep on the left side of the chest. 4-1/2 c.Nri, above the left nipple. Wound was going deep into the chest cavity.
(2) An incised wound 1-1/2 c.m. x 1 c.m. x muscle deep on the middle of left scapular blad.
(3) A laceration 2 c.m. x 2 c.m. On the front of the knee joint.
' In the opinion of the doctor, the death was the result of injury No,1, which being grievous in nature was sufficient to cause death in the ordinary course of nature and was proved fatal to the life of Akbar Hameed deceased. Similarly, injury No,1 having caused damage to the heart resulted in the death of Aadil Hameed. The time duration given by the doctor was two to five hours between the death and the post-mortem examination.
7. The eye-witness account has been furnished by Abdul Hameed, father of the two deceased, and the complainant in addition to Aain-ul-Haq and Muhammad Akhtar, the injured witnesses. They repeating the story of the F.I.R. In their statements at the trial affirmed the role of causing injuries by the appellants to the two deceased and the witnesses as narrated by the complainant in the first information report. The presence of two eye-witnesses namely Aainul-Haq and Muhammad Akhtar who sustained injuries during the occurrence has not been questioned by the defence, but the presence of the complainant at the spot. Who is a resident of about five miles away from the place of occurrence, was seriously challenged. Allah Ditta appellant upon his arrest after twenty-five days of the occurrence led to the recovery of blood-stained Chhuri P.9 from his house in presence of Muhammad Aslam and Abdul Hameed complainant, which was taken into possession through recovery memo. Exh.P..Q. Similarly, Muhammad Jaffar appellant led to the recovery of Chhuri P.10 from his house on the same day in the presence of same witnesses. The above said weapons of offence recovered from the accused were found stained with human blood by the Serologist. The Reports of the Chemical Examiner and that of Serologist are Exh.P.S.. Exh.P.T. And Exh.P.U. On the record.
8. Allah Ditta appellant in his statement under section 340(2). Cr.P.C. On oath in the witness-box admitted the occurrence with the version that he along with his sister namely Mst. Bakhtawar was present at the bus-stop of Chowk Azam when Aadil Hameed and Akbar Hameed made an attempt to abduct his sister and as a result thereof during the quarrel between him and the deceased. He picking up a Chhuri from the nearby vegetable shop caused injuries to both the deceased. He stated that after the occurrence, he went to the hospital for medical aid when Aain-ul-Haq and Muhammad Akbar P.Ws. While making an attempt to apprehend him received injuries at his hand in the hospital. He excluding the presence and participation of his co-accused accepted the sole responsibility of committing the crime. The remaining two appellants namely Muhammad Jaffar and Yasir Arfat have denied their presence at the spot and pleaded false implication.
9. The trial Court rejecting the defense version while placing reliance upon the ocular account of the two injured witnesses and the complainant supported by the corroborative evidence of motive and medical along with the recovery of weapon of offence/blood-stained Chhuris allegedly recovered from - Allah Ditta and Muhammad Jaffar, accused, found the appellant guilty of the charge of murder.
10. Learned counsel appearing on behalf of Muhammad Jaffar appellant without challenging the evidence of the eye-witnesses and their credibility, argued that Muhammad Jaffar, a student of tenth class was less than 15 years of age at the time of occurrence and that having no concern with the matter or related to the parties had no motive against the deceased and that he was made an accused in the case because of his friendship with Allah Ditta. The learned counsel pointing out the minor discrepancies and the contradictions in the statements of the witnesses argued that the case was of doubtful character. The main thrust of the learned counsel was that the alleged motive being attributed to Allah Ditta, and all the injuries on the persons of the deceased of similar nature, the possibility of causing the same by one person being not ruled out and the addition of Muhammad Jaffar made the prosecution story cloudy. He lastly commenting upon the quantum of sentence emphasized that according to the prosecution story, the occurrence was the result of dispute between Abdul Hameed deceased and Allah Ditta appellant over the quarrel for teasing relative girls of Allah Ditta by the deceased and, therefore, Muhammad Jaffar being a boy of tender age having no direct motive was wrongly given the maximum penalty.
11. Sh. Muhammad Raheem, Advocate, learned defense counsel appointed on State expenses in Criminal Appeal No,19 of 1997 filed by Allah Ditta appellant through Jail, strongly argued that the defense plea taken by the appellant while putting in juxtaposition with the prosecution version with the background of earlier incident between Aadil Hameed deceased and Allah Ditta appellant on the. Teasing of his sister by the deceased as narrated in the F.I.R., it would be a case of grave and sudden provocation falling under the exception being covered by section 302(c), P.P.C. And that the sentence for Qatl-e-Amd under section 302(c), P.P.C. Was not legal. He argued that the statement of Allah Ditta appellant under section 340(2), Cr.P.C. Having the status of evidence negated the prosecution story and the same receiving full weight should have been accepted in toto.
12. Malik Muhammad Rafiq Rajwana, Advocate, learned counsel appearing on be,half of Yasir Arfat appellant contended that during the investigation, this appellant was found innocent. Riaz Hussain, Sub-Inspector P.W.6, who conducted the investigation of the case, deposed that Dr. Muhammad Yaqoob P.W. While accompanying Abdul Hameed complainant at the time of lodging the report disclosed that Yasir Arfrat was not present at the spot and that the presence of said Muhammad Yaqoob was admitted by the complainant with him at the time of 'lodging the report at the police station. The learned counsel challenging the conviction and sentence of the appellant alternatively argued that in any case the appellant was not a party to the transaction of murder as he allegedly caused a simple injury to Muhammad Akhtar P.W. In the occurrence. His argument was that had the appellant joined the common intention to kill the deceased, he being armed with Chhuri could join hands with his co-accused Muhammad Jaffar and Allah Ditta in causing injuries to the deceased but the same having not done by him the allegation of sharing the common intention to commit the murder are negated.
13. We with the help of the learned counsel for the parties have perused the record and minutely examined the evidence as well as heard them at length. The material facts of the case relating to the time and the place of occurrence, the use of weapon and the presence of witnesses at the spot are admitted through the statement of Allah Ditta appellant containing a counter-version to the prosecution case with the exclusion of participation of Muhammad Jaffar and Yasir Arfat appellant.
Looking at the two versions of the case together, the only controversy required to be resolved is confined to the extent, whether the occurrence was not pre-meditated and it took place suddenly and Allah Ditta alone was responsible for causing the injuries to the two deceased and the injured witnesses. The annoyance of the appellant over the conduct of the deceased of teasing the girls in the background of the occurrence is the common reason behind the fateful incident. The quarrel relating to the incident of teasing the sister of Allah Ditta by Aadil Hameed took place a week before the occurrence and the appellant having developed enmity because revengeful and consequently, attacked on the deceased on the fateful day with the help of his friends. Allah Ditta appellant through introduction of a different version of making an attempt of abduction of his sister by the deceased tried to make it a case of grave and sudden provocation withholding the natural evidence of his sister. Consequently, the defense version of abduction of girl and grave and sudden provocation being not supported by any evidence direct or circumstantial, has no plausibility in it to be accepted, while putting the two stories in juxtaposition. The story given by the prosecution not suggesting any possibility of the taking place of the occurrence in the manner as stated by Allah Ditta, is found near to truth and natural.
14. Proceeding further, we noticed that the injured witnesses having no background of enmity of personal grudge or malice against the appellants, telling truth described the role of causing injuries played by an individual accused. Aain-ul-Haq P.W. Consistently stated that he sustained injuries at the hands of Allah Ditta and similarly Muhammad Akbar stated that he was caused injuries by Yasin Arfat. They with no addition or omission assigned the role of causing injuries to Aadil Hameed deceased by Allah Ditta and Akbar Hameed deceased by Muhammad Jaffar as per version of the F.I.R., and fully supported the prosecution. The presence of these injured and independent witnesses at the spot is not challengeable and their evidence being confidence inspiring and truthful was, therefore, sufficient to make basis for the conviction without looking for any other source of corroboration. However, in the present case, the motive and the medical evidence provide a strong source of independent corroboration even with the exclusion of the recovery of blood-stained Chhuris, ' the recovery of which was being doubted on the ground that the blood could not --Alm possibly be traced on these weapons after laps of twenty-five days of the occurrence.
15. As a result of the above discussion, the prosecution story being convincing, the presence and participation of all the three appellants in the manner suggested therein is proved beyond doubt.
16. Taking the case of the individual accused, we noticed that Yasir Arfat appellant is attributed only simple injuries to Muhammad Akhtar P.W. And that too after sustaining the injuries by two deceased at the hands of Allah Ditta and Muhammad Jaffar appellants, therefore, the element of sharing the common intention with his co-accused in committing the murder of Aadil Hameed and Akbar Hameed being missing the doubt arising in this behalf made his case distinguishable to that of this co-accused. Consequently, keeping in view his role of causing simple injury to Muhammad Akbar P.W., we extending him the benefit of doubt, after his conviction and sentence under section 324, P.P.C. To section 337-F(i), P.P.C. And maintaining the fine awarded to him by the trial Court sentence him to rigorous imprisonment for one year and dispose of his appeal in the above terms.
17. The motive is attributed to Allah Ditta, who having felt dishonored by Aadil Hameed for teasing of his sister picked up a quarrel with him a week ago and being revengeful taking opportunity attacked on the deceased on the fateful day. Muhammad Jaffar appellant being not related to Allah Ditta joined him in the occurrence only due to the friendship and caused injuries to Akbar Hameed deceased, real brother of Aadil Hameed. Undoubtedly, the occurrence was the result of objectionable conduct of Aadil Hameed deceased of teasing the girls of the family of Allah Ditta, which ordinarily is not tolerated in the village life. Allah Ditta appellant a young person could not digest the same in his family honor and feeling injured and insulted could not compromise with the matter. We, therefore, taking into consideration the reason in the backgroUnd and the circumstances under which the occurrence took place, do not approve it a case of capital punishment and are not in favor of confirmation of death sentence. We, therefore, altering the sentence of death awarded to the two appellants on two counts into life imprisonment on individual count, answered the murder reference in the negative. We, therefore, modifying sentence of Allah Ditta appellant to life imprisonment for causing the murder of Aadil Hameed and Muhammad Jaffar appellant to life imprisonment for causing the murder of Akbar Hameed deceased on additional count, dismiss their appeals. However, the sentence of fine imposed by the trial Court and compensation awarded to the legal heirs of the deceased is maintained.