' This judgment will dispose of Criminal Appeal No,579 of 1999 filed by three convict/appellants namely Murtaza, Umer Hayat and Maqsood challenging their conviction and sentence, Criminal Revision No, 546 of 1999 filed by State and Criminal Revision No, 327 of 1999 filed by Ghulam complainant both seeking the enhancement of sentence. All the above-referred three matters arise out of common judgment dated 6-5-1999 passed by Malik Izhar-ul-Haq Awan, learned Additional Sessions Judge, Toba Tek Singh, in case F.I.R. No, 337 dated 22-9-1997 registered with Police Station Pirmahal, Toba Tek Singh under section 302/34, P.P.C. The learned trial Judge on conclusion of the trial convicted all the three appellants under section 302(b)/34, P.P.C. And sentenced them to undergo imprisonment for life with a fine of Rs,20,000 in default whereof to further undergo two years' R.I. Each. The convict/appellants were also ordered to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default thereof to further undergo six months' S.I. Benefit under section 382-B, Cr. P C . Was extended.
' The prosecution case as stated by the learned trial Judge in narration of facts is as follows: - "On 21-9-1997 at about 3-30 p.m. Shakir Hussain deceased a student of 6th Class arrived at his house as the School had closed. It was further alleged that Maqsood accused took away Shakir Hussain deceased by summoning him from his house that when Shakir Hussain deceased did not turn up till evening, the complainant Ghulam entertained suspicion and as such he accompanied by Muhammad Nawaz and Khadim Hussain P. Ws. Set search of Shakir Hussain deceased and when they reached near the sugarcane crop of Riaz son of Sikandar, they heard shrieks raised in the sugarcane crop whereupon they reached at the spot witnessed that Maqsood accused had captured Shakir Hussain deceased by his legs, whereas Umar Hayat accused had held him by his arms, Murtaza accused was moving Churri on the neck of Shakir Hussain deceased. The accused on seeing the complainant party, reaching the place of occurrence, fled away."
' The motive was stated to be that accused had demanded the hand of daughter of brother of the complainant, in marriage for their brother but the brother of complainant did not agree to it and wanted to give the hand of his daughter in marriage to Shakir Hussain deceased and that due to this grudge, the accused murdered Shakir Hussain."
3. Ali Akbar, A.S.-I. P.W. 10 recorded the statement of the complainant Exh.P.F and sent the same to police station where formal F.I.R. Was recorded. The Investigating Officer 'reached the place of occurrence, inspected the dead body, prepared its injury statement Exh.P.A and inquest report Exh.P.B. The Investigation Officer also performed various other formalities necessary for investigation and on finding the accused guilty sent up them to face trial in the above-said Court.
4. The prosecution in order to prove its case examined eleven witnesses, out of them Dr. Nawazish Ali P.W. 1 examined the deceased Shakir Hussain and noted the following injuries on his dead body: -
(1) An incised wound 6 1/, c.m. x 2 1/2 c.m. On the front and right side of neck. Major blood vessels of the neck under injury No, 1 were cut.
(2) An abrasion 6 c.m. x 1 c.m. On the right side of face.
(3) Multiple abrasion in an area of 6 c.m. x 4 c.m. On the left side of face.
5. Ghulam P.W. 6 and Khadim Hussain P.W. 7 furnished the eye-witness account of the occurrence.
Ghulam is also complainant and father of the deceased. According to him, as detailed above, his son was 11/12 years old. He along with Muhammad Nawaz and Khadim Hussain went in search of his son. According to them they saw that Maqsood accused was holding the legs of Shakir Hussain, Umar Hayat was holding arms, whereas Ghulam Murtaza inflicted an injury with Churri on front of right side of the neck. On seeing the witnesses approaching him, the accused persons fled away.
6. The second eye-witness Khadim Hussain P.W. 7 also made a statement on similar lines with that of Ghulam complainant. Both the witnesses were subjected to lengthy cross-examination but they stood firm to their testimony.
7. P.W. 10 Ali Akbar, A.S.-I. Conducted the investigation in this case and after finding the accused guilty observed that they should be sent up to face trial.
8. P.W.9 Muhammad Naseeb Inspector also conducted partial investigation. He arrested all the three accused appellants on 6-11-1997. On 15-11-1997 accused Murtaza led to the recovery of Churri P-3 from his house which was taken into possession vide memo. Exh.P.H. The rest of the witnesses are formal in nature.
9. The learned Prosecutor tendered in evidence copy of Serologist Report Exh.P.K and with that closed the case for the prosecution. According to the report Churri P-3 had been found to be stained with human blood.
10. After close of the prosecution case, appellants were examined under section 342 Cr. P.C. They denied the allegations against them. They also denied the motive as set up by the prosecution.
According to Ghulam Murtaza appellant, prior to the occurrence Sharirs wife who is brother of the complainant, had been abducted and a case was registered against him' i,e, Ghulam Murtaza, therefore, according to him, the question of asking the hand of Mst. Nooran sister of Sharif did not arise. It was further added by him in answer to question No, 10 that in fact Nazar son of Chiragh had committed the murder but he was not associated with the investigation, as he joined hands with Muhammad Naseeb Dogar, Inspector/S.H.O and instead three brothers i,e, appellants were falsely implicated in the present case. The remaining two appellants i,e, Umar Hayat and Maqsood also denied the allegations against them and adopted and endorsed the statement made by their brother Ghulam Murtaza.
11. The evidence has been gone through and relevant record was perused with the help, of learned counsel for the parties:
12. The learned counsel for the appellants mainly argued that this occurrence took place in the sugarcane field as such it was an unwitnessed occurrence and the P.Ws deposed against them on account of enmity which existed in between the parties, merely on the basis of suspicion. It was also argued that in fact Nazar was the real culprit but he was exonerated as Inspector/S.H.O. Had joined hands with him, instead the accused appellants were made as scape-goats. It was next argued that enmity and friction in between the parties is evident rather admitted, therefore, the eye-witnesses being interested, no reliance could be placed on their testimony and the appellants as such are entitled to be acquitted. It was further argued that the motive as set up by the prosecution is not true and according to the learned counsel as explained by Ghulam Murtaza appellant the parties were opposed to each other. As they were not on friendly terms, therefore, there did not arise any question of asking the hand of Mst. Nooran for Maqsood appellant.
13. The learned counsel for the State as well as complainant have supported the conviction.
According to them the witnesses and the accused persons are related to each other. The eye- witnesses did not have any ill-will or grouse to falsely implicate them. The witnesses had seen the occurrence and the manner in which the incident has been explained, inspires confidence. The learned trial Judge, therefore, has rightly relied upon their testimony. Appellants committed an extremely barbaric, act by killing a young boy who had not even entered his teens. The learned counsel for the complainant prays that imposition of lesser penalty for imprisonment for life is not justified, the accused applicants should have been awarded the normally penalty of death.
14. The arguments were heard at quite some length and the evidence on record was perused with the help of learned counsel for the parties.
15. The prosecution case is based on eye-witness account which is furnished by Ghulam P.W. 6 and Khadim Hussain P.W. 7, the medical evidence furnished by Dr. Nawazish and also the motive that the hand of Mst. Nooran daughter of complainant's brother Sharif had been asked for Maqsood appellant which was refused and instead complainant's brother wanted to marry her to Shakir Hussain who is son of the complainant. The witnesses have made consistent statements which are supported by the medical evidence. According to the witnesses, the fatal injury was caused by Ghulam Murtaza, Maqsood was stated to have held the deceased from his legs and Umar Hayat from his arms. As per medical evidence the injury was sufficient to cause death in ordinary course of nature. The said fatal injury could not have possibly been caused by a single person. The allegation against Ghulam Murtaza is further supported by the fact that blood-stained Churri P.3 was recovered at his instance. .According to the prosecution, Shakir deceased was a young boy aged 11/12 years and was done to death as Sharif brother of the complainant had refused to give the hand of his daughter to Maqsood and instead he had chosen Shakir Hussain deceased to be married with his daughter who was his nephew. Killing of a young boy like the deceased would not have accrued unless he was intended to be eliminated or removed from the scene. The deceased himself being a young boy had no enmity or other grouse or grudge against any one. As to why he was made victim by the appellants has satisfactorily been explained by the prosecution that the appellants bore a heavy grudge against Shakir deceased and out of the said grudge and sense of rivalry the young boy was made victim of the offence. Had the appellants not committed the murder, the prosecution witnesses would not have involved them in this case because the enmity or friction in between the parties is neither of the kind or magnitude on the basis of which the complainant or his accompanying witnesses would have falsely implicated the appellants of an offence which could entail capital punishment. However, in order to eliminate or repel the possibility of false implication, the guideline provided by the Honourable Supreme Court that grain has to be sifted from chaff, the evidence has , been subjected to deep analysis and scrutiny. As noted above three brothers have been involved. On query, it was informed that in all, the accused appellants are four brothers, three of them i,e,, Murtaza, Umar Hayat and Maqsood (present accused) reside in the village whereas one was away to Karachi in connection with his business, as such all the three brothers who were in the village have been implicated as accused. The implication of all the three, therefore, has naturally put the Court to caution and it has to be carefully guarded that any innocent person might have been involved. It is not unusual that the complainant party who is obsessed with attributive anger and grouse, implicates the innocent persons along with guilty ones. The rule of prudence in such a situation requires that instead of placing an implicit reliance on the testimony some corroboration may also be sought for. Following this principle, we find that as regards Ghulam Murtaza appellant, there is ocular testimony against him which is supported by the recovery of Churri P-3 blood-stained, therefore, safe reliance can be placed on the testimony of the eye-witnesses and his involvement stands established beyond any doubt.
16. Coming to the case of Maqsood, as per the motive as set up by the prosecution, the hand of Mst. Nooran was demanded for Maqsood appellant which was refused and instead it was intended that Mst. Nooran be married to Shakir Hussain deceased. Maqsood therefore, had a direct motive to eliminate Shakir Hussain. Apart from that the deceased was done to death by cutting his throat which could not be done by Ghulam Murtaza alone unless he was associated by another person to hold and have a grip on the deceased. The allegation against Maqsood thereforee is supported by the motive as well as by the circumstances of the case because in absence of his help and support the murder could not be committed in the manner as has been done. The prosecution has therefore established its case beyond doubt against Maqsood. The conviction recorded against Ghulam Murtaza and Maqsood is therefore, fully sustainable which is upheld and maintained.
17. As regards the participation of Umar Hayat, although the witnesses have implicated him as well, yet the fact remains that their testimony qua Umar Hayat remains uncorroborated. Possibility that all the three brothers might have been implicated although falsely cannot be ruled out. Keeping in view, the principle of safe administration of justice and following the rule of caution, benefit of doubt is extended to Umar Hayat. His appeal is allowed and his conviction and sentence is set aside.
18. As a result of above discussion, the conviction and sentence of Ghulam Murtaza and Maqsood, as recorded by the learned Additional Sessions Judge under section 302(b)/34, P.P.C. Is upheld and maintained. Umar Hayat however, is acquitted and will be released from jail forthwith, if not required in any other case.
19. In support of Criminal Revisions, one on behalf of the State and the other by the complainant, the learned counsel has argued that reasons weighed with the learned trial Judge for award of lesser penalty, are not in conformity with the principles laid down by this Court. The argument may not be without substance yet keeping in view the facts and circumstances of the present case, imposition of lesser penalty cannot be treated altogether as without justification. Both, the death and the imprisonment for life are legal sentences provided by law. I have therefore, been not able to pursuade ourselves to enhance the sentence of imprisonment for life to death. Both the Criminal Revisions are as such dismissed.
20. In view of the above discussions, Criminal Appeal to the extent of Umar ,Hayat appellant is allowed, his conviction and sentence is set aside and he be released from jail forthwith if not required in any other case. Criminal Appeal to the extent of Ghulam Murtaza and Maqsood is dismissed, meaning thereby, their conviction and sentence as recorded by the learned trial Judge is upheld and maintained.