MUHAMMAD FARRUKH MAHMUD, J.---Micheal Masih, Arshad Masih, Sattar Masih and Dildar Masih, were sent up to face trial in case F.I.R. No. 58 of 1997 registered at Police Station Gaziabad, District Sahiwal, on 4-4-1997, for offences under sections 302/324/34 and 114, P.P.C. After the conclusion of trial, the learned trial Court vide judgment, dated 6-11-1999 acquitted Dildar Masih co-accused and convicted Micheal Masih, Sattar Masih and Arshad Masih in the following terms:--
(1) Micheal Masih (i)Under section 302/34, P.P.C.
Sentenced to death. Compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased, in default thereof he was to undergo further simple imprisonment for one year.
(ii)Under section 324/34, P.P.C.
Sentenced to seven years' R.I. Fine of Rs.20,000 in default thereof to further undergo S.I. For six months.
(2)Sattar Masih Under section 302/34. P.P.C.
Sentenced to life imprisonment. Compensation of Rs.50,000, in default thereof further S.I. For six months.
(3)Arshad Masih Under section 324/34. P.P.C.
Sentenced to seven years' R.1. Compensation of Rs.20,000 in default thereof further S.I. For six months.
Benefit of section 382-B, Cr.P.C. Was extended.
2. Feeling aggrieved Micheal Masih, Sattar Masih and Arshad Masih have filed Criminal Appeal No.400 of 1999 against the impugned judgment, while the trial Court has sent Murder Reference No.468 of 1999 seeking confirmation of death penalty awarded to Micheal Masih. We propose to decide both these matters simultaneously through this single judgment.
3. Mehmood Ali, A. S.-I., P.W.10 after learning about the occurrence reached the Hospital RHC Chak No. 8/11-L at about 11-45 a.m. On 4-4-1997 and recorded the statement Exh.PB of Shahbaz Qamar Gill P.W.4 on the basis of Exh. PB the formal F.I.R. No.58 Exh. PB/1 was registered at Police Station Ghaziabad, District Sahiwal at about 1-00 p.m. On 4-4-1997 but Muhammad Siddique, Head Constable P.W.2 for offences under sections 324/337-F (ii) & (iv)/337--C(i)/34, P.P.C. However, on the death of Abbas Qamar Gill, section 302, P.P.C. Was added and the case was sent up for trial under sections 302/324/34 and 114, P.P.C.
4. It was stated by Shahbaz Qamar Gill, complainant, that he was resident of Chak No.174-75 9-L.
On 3-4-1997 at about 7-30 p.m. He alongwith his brother Abbas Qamar Gill (deceased) reached at the Church Chowk of the village. Dildar Masih empty-handed (acquitted), Arshad Masih armed with dagger, Micheal Masih armed with dagger and Sattar Masih empty-handed (appellants) also reached there. The complainant stated that Arshad Masih had committed high--handedness vis- a-vis Javed Qamar Gill (brother of the complainant), which led to the exchange of hot words.
Dildar Masih and Sattar Masih raised Lalkara. Dildar Masih caught hold of the complainant, while Sattar Masih caught hold of Abbas Qamar Gill. Micheal Masih inflicted two dagger blows on the chest and abdomen of Abbas Qamar Gill, who fell down. Micheal Masih and Arshad Masih also inflicted injuries on the person of the complainant on his lips, left arm-pit, left flank, buttock and back of chest. It was further stated that Dildar accused dragged the complainant. On hue and cry and alarm Benamin son of Saleem Masih, Saleem Masih son of Khurshid P.W.5 and the residents of the village reached the place of occurrence and witnessed the same. The accused left the spot alongwith their weapons. The motive as set in the F.I.R. Was that few hours prior to the , occurrence Javed Qamar brother of the complainant was stopped by Arshad from passing through the street and also abused him and gave him beating. Due to this grudge, the accused with the common intention inflicted injuries on the persons of the complainant and his brother Abbas Qamar Gill (deceased). It is further stated that the injured complainant and his brother were taken to the hospital, who were examined by the doctor and were admitted in the hospital. Since Abbas Qamar Gill, brother of the complainant, was seriously wounded, he was referred to the Civil Hospital.
5. After registration of the case P.W.10 reached the scene of occurrence and collected the blood- stained earth from two places and took the same into possession vide memo. Exh.PE and Exh.PF.
6. The appellants were arrested on 20-4-1997. On the same date Micheal Masih led to the recovery of blood-stained dagger P-1 from his house, which was taken into possession, vide memo. Exh.P.C.
While Arshad Masih led to the recovery of blood--stained dagger P-2, which was also taken into possession vide memo. Exh. PD. The memos. Were attested by Mehmood Ali, A.S.-I. P.W.10 as well as Nadeem Akhtar Gill P.W.3. Nadeem Javed Gill, who also attested the afore-referred memos, was given up.
7. After completion of the investigation, the case was sent up for trial. The trial Court framed the.
Charge under sections 302/34, 324/34 and 114, P.P.C. The appellants denied the charge and claimed to be tried.
8. During trial, the prosecution produced 10 witnesses to support its case and after submitting the reports of Chemical Examiner Exh.PQ and Exh.PR, and the reports of Serologist Exh.PS and Exh.PT closed its case. Statement of Mukhtar Ahmad S.-I./S.H.O. Was also recorded by the trial Court as C.
W .1, P. W .4 and P. W . 5 appeared as eye-witnesses and supported the case as mentioned in the F.I.R. P.W.3 stated about the recovery of the blood-stained dagger. P. W .9 Dr. Zameer Ahmad furnished. The medical evidence including the post-mortem examination. Dr. Arif Mahmood, Radiologist, appeared as P.W.7 and stated about the X-Rays. P.W.10 Mehmood Ali, A.S.-I. Stated about the recording of the complaint, investigation and recovery. C. W.1 Mukhtar Ahmad S.-I./S.H.O.
Stated about the partial investigation. The rest of the witnesses were formal in nature.
9. After the conclusion of the trial, the appellants were examined under section 342, Cr.P.C. Sattar Masih in reply to Question No.6 stated that he was innocent. He was not present at the time of occurrence and he was involved in this case due to enmity. Micheal Masih-appellant in reply to Question No.7 stated that he was innocent. He was not present at the spot and he was involved in this case due to enmity. Arshad Masih-appellant while answering Question No.7 stated that he was innocent and in fact he gave beating to Javed Qamar Gill, brother of the complainant, on the day preceding the night of occurrence because he used to tease the girls. The deceased and the complainant being aggrieved about the beating given to Javed Qamar Gill launched attack upon him. He further stated that on his hue and cry many persons of the village were attracted to the scene of occurrence. There was a mallee and during scuffle the deceased and the complainant received injuries. He also stated that the deceased was the aggressor. Neither the appellants appeared as witnesses in their defence in accordance with section 340(2), Cr.P.C. Nor they produced any defence witness.
10. The learned counsel for the appellants has frankly conceded that he will not press this appeal on merits and conviction of Micheal Masih and Arshad Masih. However, the learned counsel submitted that in the circumstances, he would pray for lesser sentence for Micheal Masih- appellant. However, he has argued that the case against Sattar Masih-appellant was not proved and he merited acquittal. In support of his arguments, he submitted that the case of Sattar Masih was identical with that of Dildar Masih, who has been acquitted by the trial Court and that no exceptional circumstance was available against Sattar Masih to warrant his conviction and sentence.
11. Conversely, the learned counsel appearing on behalf of the State has argued that sufficient evidence was available against Sattar Masih that he facilitated the murder of Abbas Qamar Gill, therefore, he was rightly convicted. Further argued that Micheal Masih deserves no leniency in sentence, as he had taken life of a innocent young person by causing two dagger blows on his person.
12. We have heard both the learned counsel at length and minutely gone through the whole evidence as well as the impugned judgment.
13. The learned counsel for the appellant has rightly not pressed this appeal to the extent of Arshad Masih, as his infliction of dagger blows on the person of P.W.4 was fully proved. PWA and 5 gave straightforward account of the occurrence and the statements of these P.Ws. Were supported by the medical evidence and were corroborated by the recovery of blood-stained' dagger P-2 at his instance. Resultantly, the appeal to the extent of Arshad Masih is dismissed.
14. Now coming to the case of Sattar Masih-appellant. We have very carefully analysed the evidence available against him. Admittedly, he was empty-handed and he was assigned the similar role, as assigned to Dildar Masih co-accused, who was acquitted by the trial Court. Section 34, P.P.C. Was found not applicable and if the same was not available against the acquitted co- accused, the same can also be not applied against Sattar Masih-appellant. It is in the evidence that the appellants were already present at Church Chowk, when the complainant party reached there. It was a sudden flare up, therefore, in our considered opinion each individual was liable for its own action. The learned trial Court did not convict Arshad Masih co-- accused for offences under section 302/34, P.P.C. Although he caused injuries on the person of the complainant. No appeal or revision has been filed against Arshad Masih or Dildar Masih although both were acquitted of the charge under section 302/34, P.P.C. Therefore, in accordance with the principle of safe administration of justice, we extend benefit of doubt to Sattar Masih son of Munir Masih-appellant and allow this appeal to his extent. He is acquitted of the charge and his conviction and sentence are set aside. He is on bail, his bail bonds and the sureties are hereby discharged.
15. As far as the case of Micheal Masih --appellant is concerned, as mentioned above, the learned counsel for the appellants has not pressed this appeal to the extent of conviction of Micheal Masih and has prayed for lesser penalty.
16. The learned counsel for the appellants has justly not pressed the conviction of Micheal Masih- appellant in the circumstances of the case. P. W.4, who received injuries on his person fully implicated the appellant. He received injuries during the occurrence and his presence at the spot could not be denied. He is a natural witness. P.W.5 also testified as eye-witness. He is resident of the village. He is not related to the deceased or the complainant and no enmity could be brought on record against this P.W. To show that he had falsely implicated the appellant Micheal Masih in this case. The ocular account was fully supported by the medical evidence and was corroborated by the recovery of blood-stained dagger. Micheal Masih-appellant could not give any satisfactory explanation in his statement under section 342, Cr.P.C. As to why he was implicated falsely in this case. In the aforementioned circumstances, the trial Court has rightly convicted the appellant Micheal Masih.
17. As far as the quantum of sentence is concerned, we have spent a considerable time to determine the same. Admittedly, the appellant' Micheal Masih alongwith others was present at Church Chowk of the village, where the people are likely to be around and it was in no way an exceptional circumstance. It is also proved that Javed Qamar Gill, injured brother of the deceased and the complainant, was given beating by one of the co-accused Sattar Masih. It was the complainant party, who reached the place or occurrence and sought explanation from Arshad Masih as to why he gave beating to their brother. It is also in evidence that it led', to exchange of hot words and fight ensued. It is overwhelmingly proved that it was the sudden flare up and no previous enmity existed between the parties. We have already held that it was a case of individual liability so it cannot be said that it was a premeditated murder. The matter was not reported to the police either by the complainant or the P. Ws. On the date of occurrence. Considering all the aforementioned circumstances, we maintain the conviction p of the appellant Micheal Masih under section 302(b), P.P.C. However, we alter the sentence of the appellant from death penalty to imprisonment for life. Compensation of Rs.1,00,000 imposed upon the appellant by the trial Court under section 544-A, Cr.P.C. Is maintained. In default of payment thereof, the appellant would further undergo S.-I. For six months. The conviction and sentence of the appellant under sections 324/34, P.P.C. Is maintained. Both the sentences would run concurrently. Benefit of section 382-B, Cr.P.C. Is extended to the appellant. Murder Reference No.468 of 1999 is answered in Negative.
Death sentence is Not confirmed.
18. With the above modification, this appeal is partly allowed.
S.M.A.H./M-1569/L