ZAFAR PASHA CHAUDHRY, J.---Criminal Appeal No,705 of 1996 has been filed by Rashid Mahmood appellant against his conviction and sentence whereas Criminal Appeal No,743 of 1996 under section 417(2-A), Cr.P.C. And Cr.P.S.L.A. No,32 of 1996 under section 417(2), Cr.P.C. Have been filed by Muhammad Ali complainant. As all the three arise out of common judgment dated 7-9-1996 passed by Malik Ata Rasool Joya, Additional Sessions Judge, Gujranwala, therefore, have been taken up together and are disposed of through this single judgment.
2. Abdul Ghafar, Muhammad Ramzan and Rashid Mahmood appellants were sent up to face trial in the Court of Malik Ata Rasool Joya, Additional Sessions Judge, Gujranwala, in case F.I.R. No,39 of 1994 registered with Police Station Cantt. Gujranwala, on 15-3-1994 under section 302/34, P.P.C. As Abdul Ghafar and Muhammad Ramzan had been found innocent during investigation and were placed in column No,2 of the challan, therefore, Muhammad Ali complainant filed a private complaint. However, both police challan and the private complaint were taken up together as they arose out of the same occurrence. The learned trial Judge on conclusion of the case, vide his judgment dated 7-9-1996, acquitted Abdul Ghafar and Muhammad Ramzan of the charge against them whereas Rashid Mahmood appellant was found to be guilty for committing Qatl-i-Amd of Muhammad Ashraf deceased. As Rashid Mahmood appellant was found to be in his teens as his age in the judgment was recorded 15 years old, he was held not liable to Qisas in view of section 306, P.P.C. He was convicted under section 308, P.P.C. And sentenced to 14 years' R.I. As Ta'zir and was ordered to pay Rs,2,10,000 as Diyat to the heirs of the deceased. He was also ordered to pay Rs,50,000 as compensation to heirs of deceased under section 544-A, Cr.P.C. And in default thereof to undergo six months' S.I.
3. Prosecution case, in brief, as revealed from the statement of Muhammad Ali made in F.I.R.
Exh.C.W.2/B is that he had four sons the youngest one being Muhammad Ashraf was married 5/6 months back. On 15-3-1994 at about 12-30 p.m., the complainant along with Bashir Ahmad, his relations, was coming back from the cattle market. When they reached the turning of Mandiala Warraich, they heard reports of gun fire. The complainant's son Muhammad Ashraf was seen running towards Shaftal field of Ghulam Rasool Pathan. He was being chased by Abdul Ghafar and Muhammad Ratnzan sons of Liaqat and Rashid Mahmood son of Abdul Ghafar. They were all armed with pistols. All three were firing on Muhammad Ashraf which hit at his back. Muhammad Ashraf fell down on which Abdul Ghafar fired a shot from his pistol hitting him on his chest.
Muhammad Ramzan fired two shots which inflicted on the abdomen. Therefore, Rashid Mahmood fired a shot hitting the deceased on his left elbow and he succumbed to the injuries at the spot. On alarm, Basharat was attracted to the site and he saw the occurrence. The accused persons fled away thereafter.
4. The motive was stated to be that Muhammad Ashraf and Rashid Mahmood had exchanged abuses a few days back during which Muhammad Ashraf had slapped Rashid Mahmood. Rashid Malutood, therefore, had extended threat that he would teach him lesson and revenge his insult. As a result of this exchange, all the accused persons committed murder of Muhammad Ashraf.
5. Muhammad Ashraf aged about 21/22 years was medically examined by Dr. Muhammad Fayyaz C.W.5 and he described following injuries on his person:--
(1) Fire-arm lacerated wound with inverted margin 1-1/2 c.m. x 1-1/2 c.m. Going deep on the front of chest in the middle of sternum.
(2) Fire-arm lacerated wound 1-1/2 c.m. x 3/4 c.m. Going deep with everted margins on outer side of left chest upper part near posterior border of left axilla.
(3) Fire-arm wound of entry 1-3/4 c.m. x 1-3/4 c.m. Going on mid of epigastric area 13 c.m. Above umbilicus.
(4) Fire-arm wound of entry 1-1/2 c.m. x 1-1/4 c.m. On mid of upper abdomen going deep 1 c.m. Left to injury No,3, omentum is coming out from wound.
(5) Fire-arm wound of exit 1-1/2 c.m. x 1-1/2 c.m.On back left chest lower part going deep.
(6) Fire-arm wound of exit 1-1/2 c.m. x 1-1/2 c.m. On back of left abdomen outer side upper part going deep.
(7) Fire-arm wound of entry 3/4 c.m. x 3/4 c.m. Going deep on back of left elbow upper part.
(8) Fire-arm wound of exit 1-1/2 c.m. x 1 c.m. On back of left elbow outer side going deep. All the, injuries were ante-mortem. As it appears from the description, all injuries had been caused with fire-arms.
6. The prosecution in order to prove its case examined four P.Ws. i,e, Muhammad Ali complainant P.W.1, Bashir Ahmad P.W.2, Muhammad Yousaf Patwari P.W.3 and Nazir Ahmad P.W.4. As the proceedings had been initiated on a complaint and the police case had been taken up along with that, therefore, the remaining seven witnesses were examined as Court-witnesses as C. W.1 to C.W.7. P. Ws, I and 2 furnished the eye-witness account of the occurrence. Both the witnesses reiterated the statements already made by Muhammad Ali complainant in F.I.R. But in Court they deposed that Rashid accused had fired a shot hitting deceased on his left flank. P.W.3 was a formal witness whereas P.W.4 Nazir Ahmad identified dead body at the time of post-mortem examination.
C.W.6 Altaf Hussain is an Investigating Officer. He recorded F.I.R. Exh.C.W.2/B and Exh.C.W.2/A on the statement of P.W.1 Muhammad Ali and thereafter, he proceeded to the place of occurrence and performed various formalities towards conclusion of investigation. He dispatched dead body for postmortem examination. He searched for the accused but they were not available. Thereafter, C.W.7 Manzoor Ahmad was entrusted with investigation. He got the scales site plan of the occurrence prepared. During investigation on 4-4-1994, Rashid Mahmood appellant made a disclosure and in consequence thereof he got Pistol P/5 recovered from the place near Railway Line in village Kot Shahan which was secured vide memo. Exh.C.W.7/A. The rough site plan was prepared. According to his investigation, Abdul Ghafar and Muhammad Ramzan accused persons were declared innocent and were not challaned.
7. After close of prosecution case, the appellant was examined under section 342, Cr.P.C. On 29-5- 1996. On that date, his age was recorded as 16 years and occupation as student. He denied the various allegations regarding the motive as well as infliction of injuries on the person of the deceased. However, he admitted his relationship with accused Abdul Ghafar and Muhammad Ramzan as his father and uncle respectively. He also admitted that the Pistol P.5 was his father's licensed weapon but denied its recovery at his instance. He adopted the statements of his father and uncle in answer to question as to why the case had been registered against him and his co- accused. The following defence plea was raised as per statement of Abdul Ghafar under section 342, Cr.P.C.:-- "I am innocent and I have been falsely implicated in this case by the P.Ws. Due to enmity along with my co-accused. Deceased Muhammad Ashraf had illicit relations with my daughter and due to this illicit relations she had conceived and Muhammad Ashraf deceased tried for her abortion and due to this occurrence we had a deep-rooted enmity with the complainant party. The respectable of the village intervened and it was decided that Ashraf deceased should not visit the village.
Ashraf deceased was not a man of good character. He had some other enemies and he was murdered by some persons at Adda situated three miles from the village. The complainant was informed subsequently about the murder and summoned by the police and after consultation and deliberation the complainant and his close relatives who are P.Ws. In this case concocted a false story and involved me and my co-accused. The complainant and P.Ws. Were not present at the time of occurrence. We ourselves put appearance before the police and pleaded our innocence and during investigation we were found innocent, subsequently the investigation was transferred at the instance of the complainant and again we were declared innocent which was not challenged by the complainant anywhere. After nine months of the occurrence the complainant filed the present complaint to save his skin from any penal action. The people who were present at the spot at the time of occurrence appeared before the police and did not support prosecution version, so the complainant did not cite them as P.Ws. With mala fide. The complainant also did not produce them before Court with mala fide intention. Rashed Mahmood my co-accused is my minor son. All the male family members have been involved in this case. The police after the occurrence asked me to produce my licensed pistol P.5 and subsequently planted a false recovery on my minor son Rashad Mahmood."
8. The learned trial Judge discussed the evidence of all the aforesaid witnesses at length and came to the conclusion that the prosecution had succeeded to bring home the charge against Rashid appellant alone. The evidence against Rashid comprised of eye-witness account, supported by medical evidence and that of motive. The recovery was also effected at the instance of the appellant. The learned trial Judge, therefore, by extending benefit of doubt to co-accused of the appellant acquitted them of the charge.
9. The learned counsel while advancing his arguments in support of his appeal argued that prosecution had failed to discharge its onus inasmuch as the two co-accused have been acquitted of the charge even though the prosecution evidence comprised of the same witnesses who deposed against the appellant. According to learned counsel no safe reliance can be placed on the testimony of the prosecution witnesses unless the same was corroborated materially by reliable evidence. Learned counsel, however, appears to have lost sight of the principle falsus in uno falsus in omnibus which is no more of universal application. The grain can be sifted out of chaff and the same has been done by the learned trial Court. The learned counsel did riot challenge seriously the appellant's conviction. However, he came forward with an alternative plea that the appellant was a student and was less than 16 years of age at the time of occurrence. He committed murder in order to vindicate the family honour. Although on the basis of his age, he was extended the benefit of section 306, P.P.C. And conviction was recorded under section 308, P.P.C. Yet it was not a case of imposition of maximum punishment prescribed under that section. The learned counsel laid much emphasis on the motive aspect of the case and the fact that criminal disgrace and insult had been meted out to the appellant and his family as stated by Abdul Ghafar in his statement under section 342, Cr.P.C. We have given our anxious consideration to this aspect of the case by keeping in view the relevant and attending circumstances.
10, We find that the conviction recorded by the learned trial Judge is unexceptionable. He has appraised evidence properly and rightly came to the conclusion that the prosecution case stood proved at least against appellant Rashid Mahmood. The learned counsel for the appellant has, therefore, rightly chosen not to challenge the conviction. However, with regard to quantum of sentence, we feel that under section 308, P.P.C., the appellant is to be convicted to pay Diyat to heirs of the deceased. Apart from that if a minor has attained sufficient mental maturity, he has to be sentenced to imprisonment as Ta'zir extending up to 14 years. The appellant at the time of occurrence was more than 14 years of age and the way he counted the murder by arming himself with pistol, he had attained sufficient maturity and fully realised the consequences of his act, therefore, it is a case where the sentence of imprisonment is also to be imposed. As per the defence plea we are of the view that vindication of family honour was involved, therefore, a young boy obsessed by disgrace and insult meted out to him and his family was prompted to commit murder. In our view the extreme penalty. Of 14 years' R.I. May be excessive. We, therefore, reduce the sentence of imprisonment from 14 years to 10 years' R.I. As he has to be punished with payment of Diyat, his sentence to pay Diyat is upheld and maintained. Accordingly, the appellant is ordered to pay Diyat which shall be recovered from his estate or shall be paid by his guardian.
11. The learned trial Judge has ordered the appellant to pay Rs 50,000 as compensation to the legal heirs. He appears to have followed the dictates of section 544-A, Cr.P.C. Subsection (3) of section 544-A, Cr.P.C. Lays down that "the compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted". As the amount of compensation is to be awarded in addition to sentence prescribed by law, the learned trial Judge considered that under section 308, P.P.C. The punishment of Qatl-i-Amd is not liable to Qisas and instead has been prescribed the payment of Diyat and also 14 years' imprisonment as Ta'zir. He after imposing the sentence of 14 years as Ta'zir acted under the impression that it was mandatory under section 544-A(3), Cr.P.C. That compensation has to be awarded in addition to the above stated sentence prescribed by law. It is true that routine perusal of the two sections i,e, section 308, P.P.C. And section 544-A(3), Cr.P.C. May create an impression that compensation has to be awarded over and above the sentence provided under the law but learned trial Judge lost sight of one very important, factor that section 308, P.P.C. Was enacted much later than section 544-A, Cr.P.C. It is not mere amendment in the penal sections but number of additional punishments have been introduced by incorporating the provision of Qisas and Diyat Ordinance. Linder the original Code, the sentence of payment of "Diyat", "Daman" or "Arsh" had not been incorporated in the list of punishments. With introduction of the Qisas and Diyat Ordinance, section 299, P.P.C. Has been materially amended and new punishment such as "Daman", "Diyat" and "Arsh", etc., have been included. Section 399(c), P.P.C.
Defines "Diyat" as a compensation specified in section 323, P.P.C. Payable to the heirs of the victim.
Similarly, "Daman" has also been defined to be a compensation to be determined by the Court payable by the offender to the victim. The intention of Legislature expressed by section 544-A, Cr.P.C. Is that in case where death, hurt, injury, mental anguish or psychological damage is caused to any person or some other material damage is caused to person or property apart from punishing the offender, the victim or the heirs of the victim, as the case may, should also be compensated and reasonable compensation in shape of money be ordered. As noted above, the very definition of "Diyat" denotes that "Diyat" is in fact a compensation to be made to the heirs of the deceased as derived from the dictates of the Holy Qur'an, Sunnah and other sources of Islamic Law. To our mind, when an offender has been paid amount of Diyat it would just be duplication of compensation and will not be in conformity with the principles as incorporated for payment of Diyat. If an offender has been ordered to pay Diyat the purpose of section 544-A, Cr.P.C. Stands accomplished and no order for payment of compensation is called for. Accordingly, we set aside the order for payment of Rs,50,000 as compensation to the heirs of the deceased over and above the payment of Diyat as made by the learned trial Judge.
12. As a result of above discussion, the appellant's conviction under section 308, P.P.C. Is upheld but we reduce the sentence of 14 years imprisonment to 10(ten) years' imprisonment as Ta'zir and also order to pay Diyat amounting to Rs,1,42,322.29 (Rupees one lac forty-two thousand three hundred twenty-two and paisas twenty-nine only) which shall be recovered from his estate or from his guardian. All the three matters are disposed of in the above terms.