ALI NAWAZ CHOWHAN, J.----This judgment shall dispose of the cases i.e. Criminal Appeal No. 115 of 1998 and Murder Reference No. 257 of 1998, arising out of the judgment, dated 28-4-1998 handed down by the learned Sessions Judge, Jhelum. Whereby, he convicted the appellant Tallat Mehmood and Tariq Mehmood under section 302-B of the Pakistan Penal Code, while sentencing Tallat Mehmood appellant to death and Tariq Mehmood appellant to imprisonment for life.
2. The matter pertains to case F.I.R. No. 375, dated 29-11-1996 registered at Police Station Dina, under sections 302/34, P.P.C.
3. Muhammad Ghafoor is the complainant, on whose statement, F.I.R. (Exh. P.G.) was recorded at about 12-30 p.m. On 29-11-1996. While appearing as a witness (P.W.8), Muhammad Ghafoor supported the prosecution case by stating:-- "On 29-11-1996 an inspection team of officer was due at Grat Dam, Saeed Ahmad deceased of this case was a contractor for repair of Khal (water--course). Muhammad Abbas my brother was posted at Grat Dam as Wireless Operator. Nazar Hussain, Sub-Engineer Small Dam had instructed Saeed Ahmad for painting the gage and reeling was to be repaired. Grill was also to be repaired on that day i.e. 29-11-1996 Saeed Ahmad had taken me to help him in the job and we Reached Grat Dam at about 8-00 a.m. Where Abbas Ahmad, Wireless Operator was already present on, his duty.
After reaching there myself and Saeed Ahmad started the work. At about 11-00 a.m. Tariq Mehmood and Tallat accused present in the Court also reached there. Muhammad Abbas P.W. Got prepared the tea and myself Muhammad Abbas P. W. Saeed Ahmad deceased, Tallat Mehmood and Tariq Mehmood accused took the tea together. After a short while thereafter Tallat Mehmood and Tariq Mehmood left for their village. At about 12-00 noon Nazar Hussain Bhatti, S.E. Arrived at the Dam, checked the work and told it to be satisfactory and asked us that if we wanted to leave we could go. When myself and Saeed were about to leave Muhammad Abbas also accompanied us because the said Sub-Engineer had asked him (Muhammad Abbas) to close certain water channels. Myself Muhammad Abbas and Saeed Ahmad left for the village Khojki and at that time Muhammad Saeed was ahead of us. At about 12-30 p.m. When we reached the place known as Lambi Dhari, all of sudden Tallat armed with pistol and Tariq Mehmood empty---handed emerged out and raised Lalkara that you will not be left spared today. Immediately thereafter Tallat Mehmood fired a shot with a pistol hitting Saeed Ahmad on left side of lower abdomen. Saeed Ahmad ran towards his right side whereupon Tallat Mehmood fired second shot hitting Saeed Ahmad on left buttock and then Tallat Mehmood and Tariq ran after Saeed Ahmad. After covering some distance Tariq accused caught hold of Saeed Ahmad from his hairs. Thereafter Tallat Mehmood fired five shots at Saeed Ahmad one after the other hitting him on his left collar bone, upper portion of left thigh and face. On receiving these fire shots Saeed Ahmad fell down. Myself Muhammad Abbas and Muhammad Siddique saw this occurrence and tried to intervene but Tallat Mehmood threatened us that if we would interfere we will be meeting the same fate. Then Tallat Mehmood fired last shot with his pistol on Saeed Ahmad who had fallen down hitting on his head and decamped from the spot towards eastern side."
4. The motive part of the story as given in his testimony was as follows:-- "About 13/14 years back sister of Tallat Mehmood namely Zahida Parveen had married with Saeed Ahmad deceased of her own free-will. Father of Tallat Mehmood got a case registered in this regard, but the matter was patched up as his brother-in-law (brothers of Zahida Parveen) and parents, has agreed on this marriage later on but Tallat Mehmood accused kept the grievance in his heart and due to this grudge murdered Saeed Ahmad with the help of his nephew Tariq accused."
5. The following excerpts from his testimony during cross-examination are also worth reproduction and these are reproduced below in extenso:-- "The father of Tallat accused is also resident of village Khojki. Manzoor father of accused Tallat has 5 sons. Tallat accused is youngest son. He born in village Khojki and used to live in the same village.
The distance between the houses of deceased and Tallat accused is 3/4 minutes walk. Mst. Zahida sister of Tallat had cordial relation with her parent and used to visit his house regularly. My deceased brother had also visiting terms to the house of in-laws. Similarly Manzoor and his were also visit to the house of the deceased however Tallat accused used to visit the house of and on.
Prior to the occurrence of murder deceased had no quarrel or litigation with Tallat or his family member. "
"The place of occurrence is situated within the even land and not the hilly area however the small hills are at a distance of about 6 Beghas from place of occurrence."
"At the time of occurrence Saeed deceased was 6 Karams ahead of us. Myself and Abbas P.W.
Were walking side by side. When we saw the accused for the first time they were at a distance of 6 Karams from us and they were side by side. When we saw the accused Tallat he was already holding pistol in his hand. As soon as I saw Tallat holding pistol I apprehended attack upon us. Just after raising Lalkara accused Tallat fired his pistol. On receiving the tire Saeed deceased turned and covered a distance of about 24 Karams and fell down. The occurrence was completed within 4 minutes. "
"Five empties were spread within an area of one yard towards the head of the body of deceased.
When police party reached the spot about 50/60 men and women were present there. "
6. Muhammad Abbas (P.W.9), the second eye-witness of the occurrence, came to support the complainant, whose brother he was. A relevant excerpt from his testimony during his cross- examination is reproduced below:-- "When I first saw accused persons they were at a distance of 6 Karams from me. Tallat Mehmood fired first shot at Saeed deceased from a distance of about 2 Karams. Tallat accused fired second shot at Saeed deceased when he was 2-1/2 Karams away. The occurrence lasted about 1/2 minutes. When Tallat fired first shot at the deceased Siddique was at a distance of about 80 Karams from him. This distance may be about 60 Karams at the time second shot by Tallat accused. At the time of first shot fired by Tallat Mehmood accused I might be at a distance of about 4 Karams from Saeed deceased. When Tallat accused fired 5 successive shots at Muhammad Saeed deceased I might be at a distance of 3 Karams from him and by that time Siddique P. W. Had joined us. Muhammad Ghafoor P.W. Remained for 3/4 minutes at the spot before leaving for police station."
7. Dr. Khalid Mehmood, (P.W.6) conducted the autopsy on the dead body of Saeed Ahmad when it was brought to him at 11 a.m. In the District Headquarters Hospital, Jhelum. He found the following 12 injuries on his person:--
(1) Lacerated wound 1 c.m. x 1/2 c.m. On left chest front just below to clavicle 7 c.m. Medial to left exillary fold. Margins were inverted.
(2) Lacerated wound 1 c.m. x 1 c.m. With inverted margin, 2 c.m. Above and medial to injury No. 1.
(3) Lacerated wound 1 c.m. x 1 c.m. With inverted margins 2 c.m. Above and medial to injury No.2.
(4) Lacerated wound with everted margins 1-1/2 c.m. x 1 c.m at the back of left chest above to upper border of left scapula.
(5) Penetrating injury with inverted margins 1 c.m. x 1 c.m. On top of vertex.
(6) Lacerated wound with everted margin, 1/2 c. m. x 1-1/2 c.m on left side ofneck just below to mandible.
(7) Lacerated wound with inverted margins 1 c.m. x 1 c.m. On right cheek just below to right lower lip.
(8) Lacerated wound with everted margins on left side of neck lateral to thyroid cartilage.
(9) Lacerated wound inverted margin 1--1/2 c. m. x 1-1/2 c.m. On left iliac fossa.
(10) Lacerated wound inverted 1-1/2 c.m. 1/2 c.m. With everted margin on left side of abdomen on iliac crest.
(11) Lacerated wound 1 c.m. x 1 c.m. With inverted margins on left side of upper part of left thigh.
(12) Lacerated wound with evened margins 2 c.m. x 1 c.m. On back of right buttock.
While giving his opinion through his testimony, he stated:-- "I was of the opinion that all injuries were ante-mortem in nature caused by fire-arm weapon leading to shock, haemorrhage, damage to brain and death. Injuries Nos. 1, 2, 3 caused excessive haemorrhage while injury No.5 caused damage to brain. All injuries were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was instantaneous and between death and post-mortem within 12 to 24 hours. "
Exh. P.F. Is the carbon copy of his post--mortem report, whereas Exh. P.F.1/2 is the pictorial sketch of the injuries.
8. Exh. P.K. Is the report of the Chemical Examiner, Exh. P.L. Is of the Serologist, whereas Exh. P.M. Is the report of the Forensic Science Laboratory. These are in positive. The pistol recovered was stated to be wedded with the empties which were recovered.
9. Ghulam Ali, Inspector (P.W.10) was at the relevant time the S.H.O. Of Police Station Dina. According to him, the complainant came to him at about 2 p.m. And recorded his statement. He then proceeded to the place of occurrence. He inspected the dead body of Saeed Ahmad, prepared his injury statement (Exh. P.H.) and the inquest report (Exh. P.J.) and referred the dead body to Constable Muhammad Zaman for autopsy. During inspection of the place of occurrence, he collected blood-stained earth and seven empties (P-6/1-7) which were secured vide memo. Exh.
P.D. In presence of two public witnesses Ch. Khan and Muhammad Iqbal. He did search for the accused persons but they were not available then. On 30-11-1996 he received the last-worn clothes of the deceased from Constable Muhammad vide memo. Exh.P.A. And which he handed over to the Moharrir. On 3-12-1996 he recorded the statement of some other witnesses. It was on 5-12-1996 that he arrested Tallat Mehmood appellant who when interrogated, led to the disclosure and discovery of pistol .30 bore ('P-8). This was secured and sealed into a parcel, attested by the same two witnesses Chaudhry Khan and Haji Muhammad Iqbal (memo. Exh. P.E.). As the pistol was unlicensed, a case under the Arms Ordinance was also made against Tallat Mehmood. He later got prepared the site plans of the place of occurrence (Exh.P.B., Exh. P.B./1 and Exh. P.B./2) through Afzal Mehdi, Revenue Patwari, and he scribed his note in red on the said site plans.
10. On 11-12-1996 he arrested Tariq Mehmood appellant and later submitted the challan against both the appellants.
11. Amongst the formal witnesses, we have Matloob Hussain (P.W.1), who identified the dead body of his brother, the deceased. Qurban Hussain (P.W.2) took two parcels on 1-12-1996 one containing the blood-stained earth and the other containing the empties which he delivered to the respective offices of the Chemical Examiner and the Forensic Science Laboratory.
12. Muhammad Zaman, Constable (P.W.3) had taken the dead body for autopsy. He received the last-worn clothes of the deceased which he handed over to the Investigating Officer alongwith a phial given by the Doctor to him. Afzal Mehdi, Patwari (P.W.4) affirmed that he prepared the site plans on the instructions of the Investigating Officer.
13. Chaudhry Khan (P.W.5) affirmed that the blood-stained earth and the empties were taken into possession during his presence. He further affirmed that on 5-12-1996 Tallat Mehmood led the Investigating Officer to the recovery of pistol .32 bore in his presence, which was taken into possession by the Investigating Officer vide memo. Exh. P.E.
14. Dilawar Hussain, Head Constable (P. W .7) had kept in safe custody two parcels containing the blood-stained earth and the empties in the Malkhana. He corroborated the statement of Qurban Hussain, Constable while stating that he handed over the parcels to him on 1-12-1996 for delivery at the respective offices. He also corroborated Ghulam Ali, Inspector for having received a pistol on 5- 12-1996 which he had kept in the Malkhana and later gave it to Qurban Hussain, Constable on 15- 12-1996 for delivery to the office of the Forensic Science Laboratory.
15. In their statements under section 342, Cr.P.C., both the appellants professed their innocence.
Tallat Mehmood appellant stated that he was a child when his sister got married with the deceased and that both were living a very happy life and, he was on visiting terms. On the question, as to why this case was made against him, his reply was as follows-- "I am innocent. In fact the dead body was found lying in unattended place near the village which was result of discovery much after the Victual death due to which reason mouth and eyes of the dead body were found open and legs were contracted. It was a blind murder and the complainant got me falsely challaned in this case due to suspicion. The P.Ws. Are closely related inter se and to the deceased. There is no independent and impartial evidence against me."
16. Tariq Mehmood appellant accepted the fact that he was the maternal nephew of co-accused Tallat Mehmood. His plea was that he had been implicated because of suspicion. Both the appellants did not produce any evidence in their defence nor expose themselves to cross- examination by appearing as their own witness as required under section 340(2) of the Cr. P.C.
17. This is an occurrence of broad daylight. The deceased admittedly was the brother-in-law of the appellant Tallat Mehmood. To say that this was a blind murder and to further state that the appellant Tallat Mehmood had been substituted for the real culprit, was an un-plausible defence under the circumstances of this case. This plea was rightly unaccepted by the Court below.
18. Even while arguing this case, the learned counsel for the appellant did feel difficulty in asking for his acquittal and alternately argued that this was a case where death sentence ought not to have been awarded. And that there were mitigating circumstances calling for reduction in the sentence in respect of Tallat Mehmood appellant:
19. While for the appellant Tariq Mehmood, he built his case for his acquittal by stating that Tallat Mehmood appellant had already fired two shots at Saeed, when, according to the prosecution, the appellants Tallat Mehmood and Tariq Mehmood had restrained him while Tariq Mehmood held him from the hair and Tallat Mehmood tired five shots which hit him on different portions of his body.
20. It was argued that according to the doctor, there was no charring and blackening and, therefore, the fire was not shot from a close range. The learned counsel argued that with such a position it is impossible for a man to hold another while a third person was to fire at from some distance because there was every risk of the fire hitting the person who is holding the person who is fired at. That it is usual to implicate uninvolved people and widen the net this way by ascribing different roles for creating hardship for the defence. We have seen the role attributed to Tariq Mehmood appellant. No motive is ascribed to him and the probability is there that he did not hold the deceased while the, deceased was being fired at in view of the apparent risk. We also find that no other role is ascribed to him for causing injuries to the deceased who could have received the injuries at the hands of a single assailant being armed with a pistol. Therefore, as far Tariq Mehmood appellant is concerned, on the probabilities and presumptions existing in his favour we hold that his case was doubtful and we acquit him of the charge.
21. As far as the case of Tallat Mehmood appellant is concerned, we hold a different view. The pistol recovered from him was found wedded. The motive part of the story, however, does not satisfy us because why will he kill his brother-in-law after such a long period of the marriage while firing seven shots at him. The possibility is that there were some other reasons for this as well. But the fact of the matter is that he had acted cruelly in firing so many shots and killing his own brother-in- law in broad daylight. And merely because there are other possibilities with respect to the motive part of the story, should not help the appellant in any manner because after all the motive part of the story to the extent that the deceased was married to his sister is true, regarding the only part whether he disliked this marriage, was something pertaining to his intention.
22. The learned counsel next argued that at the relevant time he was a minor being 17 years and 7 months of age and, therefore, his case shall fall under the provisions of sections 306 and 308 of the Pakistan Penal Code. This plea was not raised before the trial Court and, therefore, there was no exercise for ascertaining the age of the appellant. Learned counsel has referred to the statement of the appellant under section 342, Cr.P.C. Where his age is inserted perhaps after his name and his residence, as 19 years. This statement was recorded on 21-4-1998, whereas the occurrence took place on 29-4-1996, The age pointed out on the basis of these references was 17 years and about 7 months. But the question is whether the statement under section 324, Cr.P.C. Which only mentioned his age without any reference to the date of birth, could be now taken as such at a belated stage for purposes of grant of concession to him.
23. Learned counsel stated that this was a question of law and can be raised at any stage. We differ with this contention because determination of the question of age is a mixed question of law and fact for purposes of Pakistan Penal Code. It is first to be established factually that someone was a minor and then to ask for concessions as provided under sections 306 and 308 of the Pakistan Penal Code. The learned counsel was unable to produce the Birth Certificate of the appellant even at this stage.
24. It may, however, be pointed out that although age is to be written down in the judgments by the Courts below, but the mentioning of age in the statement under section 342, Cr.P.C. Is invariably a perfunctory exercise where there is no application of mind.
25. While further arguing, the learned counsel referred us to the cases of (1) Sohail Iqbal v. The State (1993 SCM R 2377); (2) Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758), and (3)
Shaukat Masih v. The State (PLD 1982 FSC 19).
26. A reference may be made to sections 306 and 308 of the Pakistan Penal Code. Both these sections relate to cases of Qisas and exclude an offender who is a minor or insane from the application of Qisas besides in other eventualities which are not relevant for our purposes now. It is apparent that the sentence of death was awarded to the petitioner as Taazir as no case of Qisas was made.
27. We are, therefore, of the considered view that the authorities referred to by the learned counsel, are not applicable to the facts and circumstances of the present case. The case of Shaukat Masih pertained to the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and related to the determination of the question of puberty of the appellant. In paragraph 9 of the judgment in the said case, it was observed:-- "The learned counsel ultimately argued that the appellant was less than 18 years of age on the day of occurrence and there is absolutely no evidence to prove that he was otherwise an adult. We have considered this aspect of the case in the light of the definition of adult under section 2(a) of the Ordinance. It means a person who has attained the age of eighteen years or has attained puberty. It appears from 'the only circumstance on the record that the age of the appellant as recorded in his statement under section 322 Cr.P.C. Was 18 years on the date of his examination. On the 15th of September, 1979 he could have been only between 16/17 years of age. The prosecution has not proved by medical evidence that he had attained puberty. This could have been proved by the Chemical Examiner's report on the swabs, if it had been positive. But that evidence is also not forthcoming. The only evidence which has been pointed out to us by the learned counsel for the State is the evidence of the Shalwar being stained with semen and as a result of the Zina---bil- Jabr committed by the appellant. The prosecutrix is a married lady. May be the Shalwar might have been stained with semen consequent on intercourse with her husband. In these circumstances the benefit of section 7 of the Ordinance shall have to be given to the appellant."
28. In the case of Sarfraz alias Sappi the observations of the Hon'ble Apex Courts was as follows:-- "Applying the above test on the case of Sarfraz alias Sappi qua appellant Abdul Rashid we have no option but to hold that as far as former being minor on the day when crime was committed is concerned cannot be held liable for Qisas, therefore, he cannot be awarded death penalty.
However for this distinction appellant Abdul Rashid will not be exempted from Qisas in view of proviso to section 306, P.P.C. Therefore, it is held that on account of distinctions or distinguishable events either on law as well as on facts Court is empowered to award distinct sentences to more than one accused facing trial in the case where normal penalty is of death."
Which reflects that the case of said Saifraz alias Sappi was a case of Qisas.
29. In the case of Sohail Iqbal, there was exchange of hot words and grappling and exchange of fist blows and a single fire was shot at the deceased. The trial Court recorded tie age of the appellant as 16/17 years on account of his appearance and in his case the sentence was reduced.
30. Needless to mention here that even otherwise as was held in the case of Raheem Bakhsh v.
Abdul Subhan and others (1999 SCM R 1190), everything said in a judgment particularly in a criminal judgment, is to be understood with reference to the facts of that l particular case.
31. Whereas, in the present case, there are seven shots. The appellant's own case is that he was 17 years and 7 months of age. This he draws from his own statement but he fails to produce any record. We have also noticed that age in the statement under section 342, Cr.P.C. Was not given with any exactitude. No plea was raised about the minority of the appellant before the trial Court, about which the appellant had the special knowledge. This was a case of Taazir and of a gruesome murder. We, therefore feel that the argument of the learned counsel for the appellant asking for reduction in sentence is not well based. We, therefore, uphold the order of his conviction and sentence totally and dismiss his appeal. The Murder Reference is answered in the positive as far as he is concerned. While the appellant Tariq Mehmood is acquitted in view of the reasons aforementioned and his appeal is accepted.