' MUHAMMAD NAWAZ ABBASI, J.---The above two criminal appeals by leave of the Court have been directed against the judgment dated 2-6-1998 passed by a learned Division Bench of Lahore High Court, Lahore, by virtue of which Murder Reference No,295 of 1992 and Criminal Appeal No,389 of 1992 were disposed of.
2. The leave was granted in these appeals vide order dated 20-12-1999 as under:- ' "The petitioner Mehmood Rashid alongwith Hamid Rashid, Mushtaq Ahmed and Muhammad Siddique was tried by an Additional Sessions Judge at Gujranwala on a charge under section 302/34, P.P.C. On three counts for having killed Zaigham Hussain, Muhammad Abdullah and Khan Muhammad. They were further charged under section 307/34, P.P.C. On three counts for, having committed murderous assault upon Idrees alias Chaboo, Allah Ditta and Ghulam Abbas Khan. The learned Additional Sessions Judge vide judgment dated 30-4-1992 convicted the petitioner Mushtaq Ahmed and Muhammad Siddique under section 302/34, P.P.C. And sentenced each of them to death on three counts and to pay a fine of Rs,10,000 each or in default thereof to suffer R.I.
For a term of two years each. On the charge under section 307/34, P.P.C., the petitioner and the co- accused were convicted on three counts and were sentenced to undergo R.I. For a term of three years each on each count and to pay a fine of Rs,5,000 each on each count or in default thereof to suffer R.I. For a term of five months each. They were also convicted under section 449, P.P.C. And sentenced to undergo R.I. For a term of five years each and to pay a fine of Rs,5,000 each or in default thereof to suffer R.I. For a term of six months each. The learned Additional Sessions Judge further directed that fine on the charge under section 302/34, P.P.C., if recovered, shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The fine imposed on the charge under section 307/34, P.P.C., in the event of recovery, was directed to be paid to the injured persons.
Muhammad Siddique one of the accused, father of Mushtaq Ahmed co-accused, died in jail whereas Hamid Rashid also died before the conclusion of the trial. Alongwith the reference made by the Additional Session Judge to the Lahore High Court, the petitioner also preferred an appeal, while another appeal was preferred by Mushtaq Ahmed. The complainant also preferred criminal revision against the petitioner. Vide judgment dated 2-6-1998, both the criminal appeals were dismissed and the reference made by the Additional Sessions Judge was answered in affirmative and death sentence awarded to the.Petitioner was confirmed. Criminal revision preferred by the complainant was accepted and the petitione. Was directed to pay Rs,50,000 as compensation instead of Rs,10,000 as directed by the trial Judge.
2. The prosecution case in brief is that on 17-12-1986 at 9-30 p.m. The petitioner alongwith Hamid Rashid, Mushtaq Ahmed, Muhammad Siddique and Ijaz (acquitted accused) armed with Kalashnikove, came to the Dera of the complainant where three deceased and three injured persons were sitting with Manzoorul Hasan, Riaz Ahmed, Abbas Khan, Allah Ditta and Muhammad Idrees. Hamid Rashid raised Lalkara to the effect that Zaigham Hussain, Ghulam Abbas and his companion should be taught a lesson for having fired at him and not to spare anybody. Hamid Rashid fired a brust with Kalashnikove hitting Zaigham Hussain and Ghulam Abbas. The petitioner, Mushtaq and Siddique also fired and injured deceased and the P.Ws. Ijaz acquitted accused was firing in the veranda with his rifle and was also raising Lalkara. The first informat on account of fear could not interfere and thus as a result of this firing Zaigham Hussain and Abdullah died at the spot, and Khan Muhammad died subsequently. Ghulam Abbas, Idrees and Allah Ditta received injuries. The occurrence was witnessed besides the complainant by Riaz Ahmed and injured persons. The motive of the crime as narrated in the F.I.R. Was that Hamid Rashid suspected that the deceased Zaigham Hussain and injured Ghulam Abbas had fired at him in order to kill him, as a result of which a criminal case was pending adjudication, 33 empty cartridges were recovered from the spot, but no weapon was recovered from the petitioner. At the trial, the prosecution relied upon the ocular testimony furnished by Manzoorul Hasan, Muhammad Ashiq, Idrees, Allah Ditta and Ghulam Abbas Khan.
3. The learned counsel appearing for the petitioner has assailed the conviction and has contended that the evidence on record did not justify the conviction of the petitioner, inasmuch as Ijaz co- accused was acquitted on the basis of the same evidence, which has been believed qua the petitioner. After hearing the learned counsel at length, we grant leave to appeal for reappraisal of evidence to consider the following questions:--
(1) Two of the eye-witnesses happen to be the servants of Zaigham Hussain deceased with whom the enmity of the petitioner stands established on the record. Could such testimony form basis for awarding capital punishment without any independent corroboration?
(2) The occurrence had taken place in the darkness of the night and the prosecution did not disclose that there was any electric bulb at the scene of occurrence and thus the question of identification would need a probe?
(3) The Kalashnikovs were used in a room as a result of which six persons received injuries. Could the complainant escape receipt of injuries and whether in such circumstances the complainant could have been persons or in other words could the complainant save himself from being injured?
(4) Whether the plea of alibi raised by the petitioner was rightly rejected when cogent evidence had been brought on the record to substantiate the same.
(5) In the presence of his father the petition& had allegedly opened an attack and thus he would be acting under the influence of his elder, which would not justify the award of capital punishment?
Leave to appeal is accordingly granted."
3. The appellants alongwith two others namely Hamid Rashid and Muhammad Siddique (since dead) were tried under section 302/34, P.P.C. Read with sections 307/34, 148, 149 and 452, P.P.C. An Additional Sessions Judge, Gujranwala, for the charge of trespassing into the house of complainant, Manzoorul Haq situated in the area of Police Station, Hafizabad, and committing murder of Zaigham, Abdullah and Muhammad Khan and causing murderous assault upon Allah Ditta, Muhammad Idrees and Ghulam Abbas. Upon conclusion of the trial, learned trial Judge having found the appellants guilty of the charges convicted and sentenced them as detailed in the leave grnating order. The appellants challenged their conviction and sentence through Criminal Appeal No,389 of 1992 in the High Court whereas the learned Additional Sessions Judge sent a murder reference under section 374, Cr.P.C., for confirmation of sentence of death. The High Court while maintaining the conviction and sentences of the appellants vide impugned judgment, dismissed their appeals.
' Mehmood Rashid appellant in Criminal Appeal No,415 of 1999 is represented by Raja Muhammad Anwar, Senior Advocate Supreme Court whereas Mr. Muhammad Khan, Advocate Supreme Court has appeared on behalf of Mushtaq Ahmed appellant in Criminal Appeal No,416 of 1999. Learned counsel representing Mehmood Rashid has contended that the defence plea of alibi raised on behalf of the said appellant, was being supported by very strong evidence and unimpeachable character of entirely independent, most respectable and reliable persons of the status of Speaker National Assembly, Federal Ministers and Members of National Assembly. Learned counsel while taking us to the statement of Sh. Mansoor Ahmed, MNA (D.W.4) and Maqbool Ahmed Khan, the then Minister for Religious Affairs (D.W.5) submitted that on the day of occurrence i.e, 17-12-1986, Mehmood Rashid appellant and his father Hamid Rashid, were present in Islamabad and had taken their dinner at about 8 p.m. With them whereas the occurrence took place at 9-30 p.m. At Hafizabad and, thus their presence. At the place of occurrence at the relevant time was not possible. The plea of alibi taken by Mehmood Rashid appellant was scrutinized by the trial Court as well as by the High Court in the light of evidence of injured eye-witnesses and found that it was not confidence-inspiring. We, with a view to satisfy the dictates of justice and to ascertain whether the evidence was properly appreciated by the High Court, have gone through the record with the help of learned counsel for the parties and found no exception to the view of the evidence-taken by the High Court. The presence of the eye-witnesses at the spot is established beyond any doubt and their testimony was also not suffering from any visible defect in the nature of exaggeration, improvement, material contradiction or discrepancy to doubt truthfulness of their evidence. The contention of the learned counsel that the eye-witnesses being employees of Zaigham Hussain, deceased, were interested and not independent and that in the absence of any confirmatory evidence, it was not safe to place reliance on their sole testimony to convict the appellants on the capital charge, may be taken as a principle of criminal administration of justice but it has no weight in the facts of the present case.The rule of independent corroboration is not an absolute and mandatory rule to be applied in each case rather it is a rule of abundant caution which is applied in the cases in which the direct evidence is not of the standard which alone can be considered sufficient for convictions. In the present case, the occurrence took place at the Dera of the complainant where the presence of the witnesses who were employees of the complainant, was natural therefore, their independence cannot be doubted for mere reason for their being in the employment of the complainant, or for that reason no adverse inference can be drawn to the truthfulness of their evidence or that it was not sufficient to place reliance in absence of any corroboratory evidence. Undoubtedly the prosecution evidence is silent about the availability of electricity or any other type of light at the Dera of complainant but it cannot possibly be suggested that the deceased and the witnesses were sitting at the Dera at 9-30 without light. It is difficult to accept that complainant alongwith the witnesses and his companion were present at the Dera without any arrangement of light, therefore, the contention of the learned counsel regading non- availability of light at the Dera and taking place of the occurrence in the dark is based on mere imagination. The contention of the learned counsel that since the incident, in which Klashanikovs were used happened in a small size of room situated at the Dera of complainant as has been shown in the site plan and still the complainant was not injured, would negate his claim of presence at the spot, appeals to mind but the possibility that by chance he was not hit, being not ruled out, the presence of complainant at the spot would not be excluded for mere reason that he was not injured or for said reason the direct evidence of the injured could not be disbelieved. The injured eye-witnesses in their statements have categorically stated about the presence of complainant at the spot and the active participation of the appellants in the occurrence. The giving of each detail regarding the causing of specific injuries to the deceased and the witnesses by the accused was not possible in the given situation and this omission would have no material effect on the prosecution case in any manner.
4. Raja Muhammad Anwar, Senior Advocate Supreme Court, in the alternative argued that in view the circumtances which led to the fateful occurrence and the manner in which the incident happened, it can safely be said that Mehmood Rashid a young man of 20/21 years of age being under the influence of Hamid Rashid, since dead, who was attributed the role of opening the firing at the complainant party by raising Lalkara, participated in . The occurrence and thus the above circumstance would fairly suggest that the appellant acted under the command of his father, which would be a source of mitigation for lesser sentence.
5. Learned counsel representing the complainant, on the other hand, has submitted that it was an arranged and pre-planned occurrence in which all the accused while armed with Klashnikovs in furtherance of their common intention, attacked at the deceased and witnesses who being unaware of the evil design of the accused party, were present together with empty hands at the Dera of complainant. Learned counsel added that the accused party while acting desperately through indiscriminate firing committed the murder of three persons and caused injuries to the witnesses who luckily survived and the present appellant free of any outside influence, played an active role in the occurrence. The learned counsel submitted that the accused party had grievance only against Zaigham Hussain but they with a view to satisfy their ego, also took life of two other innocent persons, therefore, there would be no mitigation in favour of appellants for lesser sentence.
6. We having heard the learned counsel for the parties and scanned the evidence with their help have not been able to differ with the conclusion drawn by the High Court and without taking any exception, maintained the conviction of appellants.
7. Mr. Muhammad Zaman Bhatti, Advocate Supreme Court, representing Mushtaq Ahmed appellant, has submitted that the appellant was less than 18 years of age at the time of alleged occurrence and being the juvenile offender, was given the benefit of general amnesty granted under the Presidential Order, dated 6-12-1988 and in consequence thereto the sentence of death awarded to him was altered into life imprisonment and that the appellant has already been released from jail on completion of sentence of life imprisonment. The learned counsel for the complainant has not been able to show us that the appellant was not entitled to the benefit of Presidential Order dated 6-12-1988 and thus in this view of the matter, the Criminal Appeal No,416 of 1998 filed by Mushtaq Ahmed is dismissed having become infructuous. However, we find that said appellant was burdened with nominal amount of compensation for payment to the legal heirs of the deceased. We, therefore, after giving notice to the appellant through his counsel for enhancement of the amount of compensation, direct that the appellant shall pay rupees one lac on each count to the legal heirs of the each deceased as compensation, failing which he shall undergo S.I. For six months on each count and the amount of compensation shall be recovered from him as arrear of land revenue.
8. Mehmood Rahsid appellant undoubtedly was above the age of 20 years at the time of occurrence but still he had not attained sufficient maturity- to suggest that he would not accept the influence of his elders in such a situation. The act of Hamid Rashid, father of appellant, of raising. Lalkara and opening of firing a die complainant party would definitely be a source of instigation for the appellant to follow his father. We, therefore, while taking into consideration the above aspect of the matter and also that appellant is behind the bars for the last 16 years and is in death cell for the last about 10 years are inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice. The appellant was directed by the High Court to, pay Rs,50,000 as compensation to the legal heirs of each deceased but we are of the view that it is inadequate. We, therefore, while giving notice to the appellant through his counsel enhance the amount of compensation and direct the appellant to pay rupees one lac as compensation'on each count to the legal heirs of each deceased. In default of payment of compensation, the appellant shall suffer S.I. For six months on each count and the amount of compensation shall be recovered from him as arrears of land revenue.
9. We while taking into consideration the seriousness of the occurrence in which three persons lost their lives and three sustained injuries at the hands of the appellant and his co-accused do not find it a fit case for grant of benefit of section 382-B, Cr.P.C. To the appellant.
10. For the foregoing reasons, we while maintaining the conviction of Mehmood Rashid appellant on all the charges on all counts, convert the sentence of death awarded to him on three counts into life imprisonment on three counts with enhancement of the amount of compensation and maintining the conviction and sentence on the remaining charges, dismiss his appeal with the direction that all the, sentences shall run concurrently without the benefit of section 382-B, Cr.P.C.
Sentence reduced.