2001 PLP 2818 (YLR)

(1) A fire‑arm wound of entrance 0.5 c.m. x 0.5 c.m. margins inverted and black on the outer side of left forearm and DNP with exit wound of 2 c.m. x 2 c.m. on the inner side of left elbow‑joint. (2) A lacerated wound 1 c.m. x 1 c.m. x DNP, margins were inverted on the left side of both lips. Injury No. 2 was in continuation of injury No.

1. In his opinion the cause of death was shock and haemorrhage due to injuries No. 1 and 2 collectively. Both the injuries were ante‑mortem and had been caused by fire‑arm and were sufficient to cause death in the ordinary course of nature. He produced post -mortem report Exh. PG, pictorial diagram Exh. PG/1 and also inquest report and statement of injury Exhs. PI and PH respectively. On 14‑9‑1998 he medically examined Zulfiqar Ali and found the following injuries on his person:‑‑‑ (1) A lacerated wound of entry 1 c.m. x 0.5 c.m. x DNP on the back of right leg. The margins of the wound were burnt and inverted. The patient was in a serious condition. His D.P was 60/40 MM. HG. (2) A lacerated wound of exit 1‑1/2 c. m. x 1 c.m. x DNP on the front and lateral side of right leg. The margins of the wound were averted, 11 c.m. away from the right knee joint. Injuries Nos. 1 and 2 were kept under observation. Probable duration of injuries is fresh. The injury was caused by fire‑arm. The patient was advised for X‑Ray and after X‑Ray examination vide report of Radiologist No. 771, dated 14‑9‑1998, there was fracture of right Tibia. So, injuries Nos. 1 and 2 were declared as Hashimah Jurh Ghair Jaifah. He issued medico‑legal report Exh. PJ. He also medically examined Muhammad Javed on the same day and found the following injuries on his person:‑‑‑ (1) A lacerated wound of entry 1 c.m. x 0.5 c.m. x DNP on the front and left side of chest 3.5 c.m. away from left nipple. The margins of the wound were inverted and burnt. (2) An exit wound of 1 c.m. x 7 c.m. on the back and right side of chest (right scapular region). The margins of the wound were averted. The condition of the patient was serious and D.P of the patient was not recorded. He produced his medico‑legal report Exh. P.K. Bashir Ahmad Constable (P.W.3) was handed over the dead bodies of Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi on 15‑9‑1998 for post‑mortem examination. After the post‑mortem examination he produced last‑worn clothes of Muhammad Rafique P.1 and P.2. which were secured vide memo. Exh. P.L. He also produced last‑worn clothes of Bashir Ahmad P.3 and P.4 alongwith sealed phial which was secured vide memo. Exh. PM. He also produced last worn clothes of Mst. Kishwar Bibi P.6 to P.8 which were secured by the Investigating Officer vide memo. Exh. PN. Muhammad Arshad (P.W.4) Constable was given three parcels containing blood‑stained earth on 21‑9‑1998 which he delivered in the Office of Chemical Examiner intact on 22‑9‑1998. Muhammad Quresh (P.W.5), Moharrir Head Constable drafted formal F.I.R. Exh. PO/1 on the basis of complaint Exh. PO on 14‑9‑1998. On 15‑9‑1998 he was given three sealed parcels containing blood stained earth which he delivered to Muhammad Arshad Constable on 21‑9‑1998 for onward transmission to the Office of the Chemical Examiner. Muhammad Aslam (P.W.6) identified the dead bodies of the three deceased. Muhammad Siddique (P.W.7) is witness of memos of recovery Exh. PQ, PR and PS pertaining to the securing of blood‑stained earth from the place of murder of Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi respectively. Syed Kazim Hussain draftsman (P.W.8) prepared site plans Exhs. PT and PT/1 and handed over the same to the Investigating Officer. Shabbir Hussain (P.W.9) is the complainant who has corroborated his version appearing in complaint Exh. PO. Muhammad Javed (P.W.10) is injured witness of this occurrence and has corroborated the prosecution version. He also produced his blood‑stained clothes P.9 and P.10 which were secured vide memo. Exh. PU. Zulfiqar Ali (P.W.11) is another injured eye‑witness and has also supported the prosecution version. He also produced his blood‑stained clothes P.9 and P.10 which were secured vide memo. Exh. P.U. Zulfiqar Ali, (P.W.11) is another injured eye‑witness who has also supported the prosecution version. He also produced his blood‑stained clothes P.11 and P.12 which were secured vide memo. Exh. PV. Javaid Ali, Inspector/S.H.O. (P.W.12) and Ahmad Javaid, Inspector (P.W.13) are the Investigating Officers whose evidence has already been discussed above. Thereafter, the learned Public Prosecutor produced reports of Chemical Examiner Exhs. PDD, PEE and PFF in respect of blood‑stained earth pertaining to deceased Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi respectively. He also produced reports of Serologist Exh. PGG, PHH and PJJ in respect of aforementioned deceased and closed the case of prosecution vide his statement, dated 22‑12‑1998.

5. When examined under section 342, Cr.P.C. the accused Muhammad Qasim and Manzoor Ahmad denied the prosecution version and stated that they had been implicated in this case falsely. Ali Akbar and Muhammad Iqbal have also denied the prosecution version and accused Ali Ahmad while replying to Question No. 6 as to why this case has been registered against him stated as follows:‑‑ "The P.Ws. have deposed against me due to their enmity. They have deposed against my co‑accused also due to their enmity with them. The real facts are that on the day of occurrence at evening time at about 6‑00 p.m. I heard that my brother Muhammad Hussain co‑accused was being beaten severely by deceased Bashir Ahmad, Muhammad Rafique, Kishwar Bibi and the nephews of Muhammad Rafique deceased. I reached at the place of occurrence and saw that Bashir Ahmad, Muhammad Rafique and Kishwar Bibi were lying dead at the spot while Muhammad Rafique was lying in injured condition. After that I saw Zulfiqar and Javed P.Ws. reached at the spot. Zulfiqar injured P. W. saw his wife Mst. Kishwar Bibi lying dead and being provoked by this he fired at my brother Muhammad Hussain co‑accused (since P.O.). I stepped forward to save my brother and the fire hit on my thigh and I also fell down. Muhammad Hussain my brother and co‑accused, then, in realization fired two shots and injured Zulfiqar and Javed P.Ws. respectively. None of the accused except myself and my brother Muhammad Hussain co‑accused were present at the place of occurrence. I also came to know that prior to the occurrence Muhammad Hussain my brother and co‑accused had gone to the house of Bashir Ahmad deceased for making a complaint of his father's insult to Bashir Ahmad alone. He was given a merciless beating by Bashir Ahmad, Muhammad Rafique deceased. The deceased and nephews of Muhammad Rafique deceased had reached in front of the house of Shabbir Hussain P.W. while giving beating to my brother Muhammad Hussain co‑accused. My brother Muhammad Hussain was seriously injured by the deceased and their relatives, he fell down on the ground in an injured condition, then he fired three shots with his pistol hitting the three deceased persons respectively." The accused Ali Akbar and Muhammad Iqbal have also made a similar statement regarding their involvement as given by accused Ali Ahmad.

6. After going through the evidence produced by the prosecution the learned trial Court convicted Ali Ahmad, Ali Akbar, Muhammad Iqbal, Muhammad Qasim and Manzoor Ahmad under section 148, P.P.C. and sentenced them to R.I. for three years each (nine years for three counts) and to pay a fine of Rs. 10,000 each (Rs. 30,000 for three counts) and in default thereof to undergo further R.I. for 6 months. The trial Court further held Ali Ahmad, Ali Akbar, Muhammad Iqbal, Muhammad Qasim and Manzoor Ahmad guilty under sections 302/ 149, P.P.C. and awarded them death punishment and to pay a fine of Rs. 50,000 (Rs. 1,50,000 for three counts) and in default' thereof to further undergo R.I. for seven years (21 years on three counts). It was further ordered that if the fine is realized it shall be paid to the legal heirs according to law. The accused were further held guilty under sections 324/149, P.P.C. and were sentenced to R.I. for ten years each (30 years for three counts) and to pay tine of Rs. 10,000 each (Rs. 30,000 for three counts), in default thereof to further undergo R.I. for 2‑1/2 years each (7‑1/2 years for three counts). The fine if recovered, was ordered to be paid to the injured prosecution witnesses. The accused were further convicted under section 7 of Anti‑Terrorism Act and were imposed death punishment on three counts and to pay fine of Rs. 50,000 each (Rs. 1,50,000 for three counts) or in default thereof to undergo R.I. for seven years each (21 years for three counts). It was further ordered that all the sentences awarded to the appellant shall run concurrently and they will also be extended the benefit of section 382‑B, Cr.P.C.

7. Feeling aggrieved the accused/appellants filed instant appeal. Along with this Criminal Appeal, Murder Reference No. 13‑T of 1999 has also been submitted as required under section 374, Cr.P.C. The instant appeal and Murder Reference arise out of same judgment so both are being disposed of by this single judgment.

8. We have heard the learned counsel for the appellants, complainant as well as learned counsel for the State.

9. It has been stated by the learned counsel for the appellant that Muhammad Iqbal son of Khushi Muhammad has died. As such the appeal to the extent of Muhammad Iqbal stands abated. It is argued that according to the prosecution version the accused had abducted initially Bashir Ahmad and thereafter abducted Muhammad Rafique which stand of the prosecution has not been accepted. As such the accused were not convicted under section 364, P.P.C., that the prosecution witnesses have also made dis honest improvements to bring their statements in line with the medical evidence and as such their statements are not trustworthy and in this respect placed reliance on Abdul Rehman v. Fateh Sher and 8 others (1996 SCMR 176), that presence of the injured witnesses, no doubt, cannot be disputed at the time of occurrence but their statements cannot be accepted without any independent corroboration and placed reliance on Iqbal Shah v. The State (1998 PCr.LJ 1177), that independent corroboration of the statement of the complainant is required which is lacking in the instant case and as such prosecution evidence cannot be relied upon and placed reliance upon Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others (1998 SCMR 25). He further contended that if his submissions do not find favour with this Court, even then the sentence of death imposed upon the appellants is not warranted by law as Ali Ahmad, Muhammad Qasim and Manzoor Ahmad are of tender ages as they are 18, 19 years, 19, 20 years and 20,21 years respectively, that their young age is also a ground for imposing upon the lesser penalty than the normal penalty and placed reliance upon Muhammad Riaz and another v. The State (1999 SCMR 976). He further argued that even otherwise effective role has been attributed to Muhammad Hussain who is still at large and no active and effective role in the commission of this offence has been attributed and assigned to the accused/appellant. He also argued that none of the present accused/appellant was armed with any lethal weapon at the time of occurrence and as such can in no way be inflicted the normal penalty of death in the instant case. He thus submitted that the sentence of death awarded to the accused/appellants be altered to imprisonment for life and they be also extended benefit of section 382‑B, Cr.P.C.

10. Conversely the impugned judgment has been supported by the learned counsel for the complainant as well as State. To supplement his contention, he contended that time, place of occurrence and motive almost stands admitted by the accused/appellants, that occurrence took place on 14‑9‑1998 at 6‑00 p.m. whereas F.I.R. was lodged on the same day at 7‑45 p.m. and this promptness in lodging the F.I.R. rules out possibility of any false involvement, that Bashir Ahmad deceased was lifted from his house and was thereafter removed by the accused/appellants and same is the case in respect of Muhammad Rafique and Mst. Kishwar Bibi. It was further submitted that as the accused have been responsible for committing a brutal murder of three persons so they are not entitled to lesser penalty and have been awarded appropriate punishment as required by law.

11. It is evident from the contents of the F.I.R. Exh. PO/1 that main part has been attributed to Muhammad Hussain who has been shown to be armed with pistol. It is Muhammad Hussain who fired three shots hitting Bashir Ahmad, Mst. Kishwar Bibi and Muhammad Rafique who finally succumbed to the said injuries. Again it is Muhammad Hussain who fired two successive fire shots hitting Zulfiqar (P.W.11) and Muhammad Javed (P.W.10). No fire whatsoever has been attributed to either of the accused/appellants. The accused/appellants have been assigned the role of facilitating the commission of this offence as they had supported Muhammad Hussain (P.O.) in removing Bashir Ahmad and Muhammad Rafique from their respective places and then to drop them where they had been finally done to death. It is thus clear that none of the accused/appellants has been responsible for causing the death of aforementioned three deceased. Under these circumstances, we feel that the accused/appellants were not entitled to the normal punishment which has been awarded to them as they have not been attributed any injury what to talk of a fatal injury on the person of any one of the three deceased. Thus they could not be awarded normal punishment of death and they are entitled to lesser punishment. Accordingly while dismissing the appeal we modify the sentence of death to imprisonment for life. However, the other sentences award to them are hereby maintained. Since all the accused/appellants have participated in any occurrence resulting into the death of three innocent persons so we do not consider it appropriate to extend them benefit of' section 382‑B, Cr.P.C. However, it is ordered that all the sentences awarded to the accused/appellants shall run concurrently.

12. Since the death sentence awarded to the appellants has been modified to imprisonment for life so the Murder Reference is answered in the negative. N.H.Q./M‑835/L Sentence reduced.