2017 PLP 217 (YLRN)

MUHAMMAD TARIQ ABBASI, J.

This judgment shall dispose of the above captioned Criminal Appeal and the Murder Reference as both are outcome of single judgment dated 29.7.2009, passed by the learned Additional Sessions Judge, Kehror Pacca, District Lodhran, whereby in case FIR No. 577 dated 29.12.2007, registered under Sections 302/324/337A(i)/ 337A(ii)/ 337F(i)/ 337F(ii)/ 452/ 148/ 149, P.P.C., at Police Station City Kehror Pacca, District Lodhran, Muhammad Akbar alias Bhola, Muhammad, Asghar alias Kaloo and Muhammad Afzal alias Aloo have been convicted and sentenced in the following terms:- a) Under section 302(b), P.P.C. to death with compensation of Rs.1,00,000/- each, payable to the legal heirs of Muhammad Shafique and Muhammad Hafeez (deceased), otherwise to undergo simple imprisonment for six months, each. b) Under section 148, P.P.C. to rigorous imprisonment for three years with fine of Rs.10,000/- each, in default to further undergo simple imprisonment for one month, each. c) Under section 452, P.P.C. to R.I. for five years and fine of Rs.10,000/- each, failing which to further undergo S.I. for one year. The benefit of section 382-B, Cr.P.C. was also extended to the appellants and all the above mentioned sentences were ordered to run concurrently. '

2. The facts are that Saeed Ahmad complainant (PW-7), made the statement (Ex.PR), before the Police, contending therein that on 29.12.2007, at about 8.15 a.m., when their children along with other children were 'playing cricket at the 'dera' of Ghulam Sarwar Khan Lodhi, Muhammad Asghar alias Kaloo (appellant/convict) caused injury to Abdul Latif (PW-8), while inflicting a bat blow. Abdul Latif (PW-8) for legal proceedings went to the Police Station; complainant along with his brothers Muhammad Shafique alias Bubli, Muhammad Hafeez (both deceased) and Muhammad Nadeem (PW-9) was available in the house, when suddenly M/s Muhammad Akbar alias Bhola, Muhammad Asghar alias Kaloo, Muhammad Afzal alias Aloo (appellants/convicts) all armed with daggers, Muhammad Ashraf and Muhammad Akram (co-accused since P.O.) both having knives (chhuris), entered into the house and raised `lalkara' that they will teach a taste to them (complainant party) for sending Abdul Latif (PW-8) to the Police Station; Muhammad Akbar alias Bhola (appellant/convict) inflicted dagger blow at the chest of Muhammad Shafique (deceased); Muhammad Asghar alias Kaloo (appellant/convict) made a dagger blow, which landed at the right flank of Muhammad Shafique (deceased), who fell down; Muhammad Ashraf (accused since P.O.) and Muhammad Afzal alias Aloo (appellant/convict), with their respective weapons caused injuries to Muhammad Hafeez (deceased), at different parts of his body; Muhammad Akram (accused since P.O.) caused injuries with a knife/Chhuri at different parts of body of Muhammad Nadeem (PW-9); on hue and cry, Abdul Sattar (PW-10) and Muhammad Hanif (given up PW) attracted at the spot and the accused fled away; the injured were shifted to Tehsil Headquarter Hospital, but Muhammad Shafique succumbed to the injuries, in the way. Later on, Muhammad Hafeez also lost his life. Consequently, the FIR (Ex.PR/l) was chalked out. The case was investigated. The appellants/convicts were found to be involved. Muhammad Ashraf and Muhammad Akram were declared proclaimed offenders. Due report under section 173, Cr.P.C. was submitted in the court of competent jurisdiction, where the required proceedings were carried on and the appellants/convicts were charge sheeted. They pleaded not guilty and claimed the trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got recorded as many as 14 witnesses. The gist of evidence led by the material witnesses was as under:- i) PW-1 Dr. Anjum Iqbal had conducted postmortem examination of the dead body of Muhammad Hafeez and prepared post-mortem, report (Ex.PA). During the said examination, following injuries were noticed on the dead body:-- 1) A stab wound 2. cm x 1/2 cm going deep on the front and left side of Neck. 2) A stab wound 8 cm x 1.5 cm going deep on the back of left shoulder. 3) A stab wound 5 cm x I cm going deep on the back of left chest. 4) A stab wound 2.5 cm x 1 cm going deep on the back of left chest. 5) A stab wound 14 cm x 4 cm muscle deep on the lateral side of left Arm. 6) An incised wound 2.5 cm x 3 mm skin deep on front of left Arm. 7) An incised wound 5 cm x 1.5 cm muscle on the back of left forearms. 8) An incised wound 4.5 cm x 1 cm bone exposed on pamer aspect of left thumb. 9) A stab wound 1.5 cm x 1 cm going deep on front of abdomen, 2 cm above the umblicus. As per the doctor, all the injuries were anti-mortem in nature and caused by sharp edged weapon; the injuries Nos. 1, 3 and 4 were result of death, which occurred within four to five hours of the receipt of injuries. ii) PW-5 Dr. Zafar Iqbal had medically examined the dead body of Muhammad Shafique and prepared the postmortem report (Ex.PJ). During the said examination, the following injuries on the dead body were noticed:-- 1) A stab wound 3 cm x 1 cm going deep on the epigastrium area 12 cm below from the right nipple. 2) A stab wound 4 cm x 1-1/2 cm going deep on the left side of the lower chest anteriorly, 15 cm below from the left nipple, 17 cm above from the umblicus. As per the witness, the above mentioned injuries, which were ante-mortem in nature, were cause of the death and that the death had occurred within half an hour after receipt of injuries. This witness had also examined Muhammad Nadeem injured (PW-9) through the report (Ex.PN) and Abdul Latif (PW-8) vide report (Ex.PP) and noticed three injuries on the body of Muhammad Nadeem (PW9), whereas two at the person of Abdul Latif (PW8) being caused by sharp edged weapons. The above named witness had also examined Muhammad Hafeez, then injured and noticed nine injuries, caused by sharp edged weapon, at his person and referred the injured to Bahawalpur Victoria Hospital, for further treatment. iii) PW-7 Saeed Ahmad, Complainant as well as eye-witness of the alleged occurrence, during statement in the court, narrated the same facts, which were stated by him in complaint/Fard Bian (Ex.PR). iv) PW-8 Abdul Latif had deposed about the occurrence, which had taken place, on the fateful day at 7.30 AM, during which he was inflicted bat by Muhammad Asghar @ Kaloo (appellant/convict) and he, for reporting of the matter, went to the Police Station. v) PW-9 Muhammad Nadeem injured had narrated almost the same facts as were stated by the above named PW-7. vi) PW-10 Abdul Sattar an eye-witness of the alleged occurrence had supported and corroborated the version of the complainant (PW-7) and Muhammad Nadeem (PW-9) in all its four corners. He had also attested the Memos (Ex. PS, Ex. PT, Ex.PG, Ex. PH) through which blood stained earth collected from the spot and last worn clothes of the deceased were taken into possession by the investigating officer. He had also witnessed the proceedings, during which blood stained daggers (P-7, P-8 and P-9) were recovered from Muhammad Akbar, Muhammad Asghar and Muhammad Afzal (appellants/ convicts) and taken into possession by the investigating officer through Memos (Ex.PU, Ex.PV and Ex.PW) respectively. vii) PW-11 Muzaffar Hussain, Head Constable had drafted formal FIR (Ex.PR/1). viii) PW-13 Muhammad Tufail, Inspector/SHO investigated the case, during which arrested the appellants/convicts and obtained their physical remand; took into possession the blood stained dagger's (P-7, P-8 and P-9) through Memos (Ex.PU, Ex.PV and Ex.PW), which were respectively got recovered by Muhammad Akbar, Muhammad Asghar and Muhammad Afzal (appellants/ convicts); got prepared the scaled site plans (Ex. PF, Ex. PF/1, Ex.PF/2 and Ex.RF/3) from the draftsman; deposited the case property with the Moharar; recorded statements of the concerned witnesses at the relevant times and got prepared the challan. ix) PW-14 Safdar Naseer S.I. recorded the statement/complaint (Ex.PR) and also carried on the investigation, during which inspected the dead body of Muhammad Shafique and prepared the injury statement (Ex. PM) and the inquest report (Ex. PL); also prepared the injury statement (Ex.PT) of Muhammad Hafeez (deceased, the then injured) and that of Muhammad Nadeem (Ex.PQ) and Abdul Latif (Ex.PR); drafted the injury statement (Ex.PC).and the inquest report (Ex. PB), pertaining to Muhammad Hafeez, after his death; collected the blood stained earth from the place, where the above named deceased sustained injuries and took into possession through Memos (Ex.PS and Ex.PT); secured the last worn clothes of the deceased through Memos (Ex.PG and Ex.PH); drafted the rough site plan (Ex.PAB); recorded statement under section 161, Cr.P.C. of the relevant witnesses at relevant stages.

3. After examination of the prosecution witnesses, the reports of the chemical examiner and serologist were tendered as Ex.P.AC to Ex.P.AO and case for the prosecution was closed. Thereafter the appellants were examined as required under section 342, Cr.P.C., during which the questions arising out of the prosecution evidence were put to them and they denied almost all such questions, while alleging their innocence and false involvement in the case. All had replied the questions "why this case against you and why the PWs have deposed against you?" in the following words:-- "All the PWs are closely related with one another as real brothers and cousin. Incident of this case, in fact is result of serious quarrel amongst all the brothers namely, Nadeem, Latif, Shafique and Hafeez that is why motive part injuries to Abdul Latif injured sustained by him are sharp edge which were used in the main incident of this case. Whereas motive part injury caused to Abdul Latif injured is a single injury and alleged to cause him with cricket bat which is blunt weapon. It also a reason that MLC of Abdul Laltif Injured was prepared by the M.O. just after the medical examination of Muhammad Hafeez (deceased) while in his injured condition. Likewisely, the complainant as well as PWs in connivance with Imad Ullah Abbasi, Union Nazim and themselves have falsely planted this case against us and co-accused. MLCs of the injured witnesses of this case and postmortem report in respect to Muhammad Shafique deceased have been falsely prepared by the M.Os. in connivance with the complainant party before registration of the case which is crystal clear proof of mala fides on the part of the complainant party. All the recoveries are fake and have been planted against us and co-accused in collusion of complainant with the Police and these recoveries have been shown from our joint possession including family members residing in the same house. All the reports in respect to chemical examiner and serologist are fake, frivolous and made one and the same day i.e. 09.07.2009." They did not opt to lead any evidence in their defence or make statements under section 340(2), Cr.P.C.

4. After completion of the above said proceedings, the learned Trial Court had passed the impugned judgment, whereby convicted and sentenced the appellants in the above mentioned terms. Consequently Criminal Appeal and Murder Reference in hand.

5. The learned counsel for the appellants has argued that they were innocent and falsely involved in the case with mala fide; the cause of the occurrence, alleged in the complaint as well as the FIR was not established on the record; the statements of the eye-witnesses were full of material contradictions; the witnesses had failed to establish their presence and availability at the spot; with mala fide and to achieve some ulterior motive, all the family members were roped in the occurrence; the prosecution case and the charge against the appellants were not proved, hence they were entitled for acquittal, but the learned Trial Court had erred in not giving any consideration to the attending facts and circumstances, and passing the impugned judgment, which is not sustainable in the eye of law.

6. The learned Deputy Prosecutor General has vehemently opposed the appeal, with the contention that it was a day light occurrence, which was promptly reported to the Police; the witnesses were available at the spot, who during the incident had also sustained the injuries, hence no question that they were not available at the place of occurrence; the ocular account was supported and corroborated with the medical evidence as well as recoveries from the appellants; sufficient material towards commission of the occurrence by the appellants, which resulted into death of two innocent persons and injuries to other, was available on the record, hence the learned Trial Court justifiably had pronounced the impugned judgment, which should not be interfered with.

7. Arguments of all the sides have been heard and the record has been perused.

8. In the complaint/Fard Bian (Ex.PR), Saeed Ahmad complainant (PW-7) had narrated the cause of the occurrence to be a quarrel between Muhammad Asghar @ Kaloo (appellant/convict) and Abdul Latif (PW-8), during playing of cricket, whereby the above named appellant caused injury to the above said PW, by inflicting a bat blow and the said PW had gone to the Police Station to report the matter there and that in retaliation, the appellants along with their co-accused (since P.O.) attacked at them and caused injuries to Muhammad Shafique and Muhammad Hafeez, which resulted into their death and also to Muhammad Nadeem (PW-9). During the trial, not only the above named complainant (PW-7) had categorically and confidently narrated the above mentioned earlier incident, which had caused the occurrence in question, but Abdul Latif (PW-8), Muhammad Nadeem (PW-9) and Abdul Sattar (PW-10) had also supported and corroborated the above mentioned version of the complainant. Furthermore, the evidence of Dr. Zafar Iqbal (PW-5) and the medical report (Ex.PP) had also confirmed that Abdul Latif (PW-8) in an injured condition had come to the hospital, having two injuries on his body. Therefore, prosecution had satisfactorily established on the record the previous occurrence, which resulted into the occurrence in question.

9. Saeed Ahmad complainant (PW-7), Muhammad Nadeem injured (PW-9) and Abdul Sattar (PW-10) had categorically deposed that the appellants, while armed with daggers, along with their co-accused (since P.O.), entered into the house of the complainant party, while proclaiming that a taste would be taught to the said party for sending Abdul Latif (PW-8) to the Police Station for reporting the matter of quarrel between him and Muhammad Asghar alias Kaloo (appellant/convict); Muhammad Akbar and Muhammad Asghar (appellants/ convicts) inflicted their respective weapons, which landed at the chest and left flank of Muhammad Shafique (deceased); Muhammad Afzal alias Aloo (appellant/ convict) and Muhammad Ashraf (co-accused since P.O.) with their respective weapons attacked at Muhammad Hafeez (deceased) and caused injuries at different parts of his body; Muhammad Akram (co-accused since P.O.) caused injuries to Muhammad Nadeem (PW-9); as a result of the above mentioned injuries caused by the appellants/convicts, in the above mentioned manners, Muhammad Shafique and Muhammad Hafeez lost their lives.

10. The statements of the above named witnesses, towards involvement of the appellants in the above mentioned manner were corroborative, consistent and confidence inspiring almost on all the material particulars. The defence had cross-examined the witnesses at length, but failed to shake their testimony contradicting their above mentioned version or bring on the record any material favourable to the appellants. All the above named witnesses categorically and confidently deposed that it were the appellants, who had caused injuries to the above named, which resulted into their death. On one hand, the witnesses had proved and established their availability at the spot and witnessing of the occurrence, but on the other hand, the defence had failed to disprove their above said contention, hence arguments of the learned counsel for the appellants that the witnesses were not available at the spot are nothing, but a bald assertion.

11. It was a day light occurrence, the matter was immediately reported to the Police and the witnesses were examined by the I.O. without any delay, hence no question of any consultation or deliberation. Although the witnesses are closely related inter-se and with the deceased, but their no previous grudge or enmity with the appellants could be established on the record, hence no reason, cause or justification to discard their testimony, which otherwise is confidence inspiring and trust worthy. In this regard, reliance may be placed to the case "Haji v. The State" (2010 SCMR 650), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "Both the ocular witnesses undoubtedly are inter se related and to the deceased, but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence, which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident." Similar view was framed in case reported as "Muhammad Ahmad (Mahmood Ahmed) v. The State" (2010 SCMR 660) and after thrashing out the whole case law on the subject the Hon'ble Supreme Court observed as wider:--

23. What thus emerges from a survey of the above-quoted and other earlier decisions of this Court is that:

(a) it is a mistaken notion that reliance could never ever be placed on the uncorroborated testimony of interested witnesses; (b) looking for corroboration before placing reliance on interested testimony, was only a rule of caution prescribed by the Courts and not a rule of law commanded by the legislature; (c) that even the said was not an inflexible rule; (d) thus crucial test for accepting or rejecting a piece of evidence was its intrinsic worth and not really the source from which the same emanated; and finally that (e) corroboration, even if required for the satisfaction of the conscience of the Court, did not always have to come from independent sources of un-impeachable character but could be gathered even from the circumstances available on record."

12. We are not in agreement with the contentions made by the learned counsel for the appellants that the statements of the eye-witnesses are full of material contradictions, because neither during the arguments nor perusal of the record, any such contradiction has been pointed, out or observed. The discrepancies, which as per the learned counsel for the appellants are very material, in fact are not so, but are minor in nature, and being sign of natural deposition, should be ignored. In this regard, we are fortified by the law laid down in cases Muhammad Hanif and another v. The State and another (2002 PCr.LJ 238), Dilbar Masih v. The State (2006 SCMR 1801) and Zulfiqar Ahmad and another v. The State (2011 SCMR 492). The relevant portion of the case of Dilbar Masih (Supra) reads as under:-- "We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances, the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to affect the credibility of the evidence of eye-witness or create any doubt or dent in the prosecution case."

13. The above mentioned ocular account has further been corroborated by the medical evidence 141 by Dr. Anjum Iqbal (PW-1) as well as Dr. Zafar Iqbal (PW-5) and the above mentioned reports prepared by them, as the injuries described by the PWs were found on the dead bodies and person of the injured.

14. It is available on the record, without rebuttal that the above mentioned weapons (P-7 to P-9) used by the appellants, for commission of the occurrence, were recovered at their instance, which were made into sealed parcels and taken into possession through the above said Memos. The parcels for the analysis were sent to the laboratories, where they were examined and the reports (Ex.PAE, Ex.PAG, Ex.PAH, Ex.PAJ, Ex.PAK and Ex.PAM) were prepared, according to which the weapons were found stained with blood, which was of human origin. The above said recoveries and the reports, have also supported the above mentioned stance of the above named witnesses.

15. For what has been discussed above, we have come to the conclusion that the prosecution has succeeded in establishing and proving charge, against the appellants, towards commission of murder of the above named persons and injuries to the above named PWs, beyond shadow of all reasonable doubts. Therefore, we do not find any reason to interfere with the findings of the learned Trial Court, which resulted into conviction of the appellants. It has been confirmed on the record that Muhammad Akbar alias Bhola (appellant) inflicted a dagger blow at the chest of Muhammad Shafique (deceased), whereas Muhammad Asghar alias Kaloo (appellant) had caused injury at the left flank of Muhammad Shafique (deceased) with a dagger. Dr. Zafar Iqbal (PW-5) had confirmed that both the above mentioned injuries, were fatal and cause of the death. There is no circumstance to give any concession in quantum of sentence to the above named appellants. Therefore, the death penalty awarded to the above named appellants (Muhammad Akbar alias Bhola and Muhammad Asghar alias Kaloo) by the learned Trial Court is maintained, because it has been held by the superior courts in a number of judgments that when charge of death is proved beyond any doubt, then the normal penalty is the death and nothing else. Reliance in this regard may be made to the case of "Asad Mahmood v. Akhlaq Ahmed and another" (2010 SCMR 868) wherein it was observed as under:- "Normal sentence in a conviction under section 302(b), P.P.C. is death except where Court finds some mitigating circumstances which may warrant imposition of lesser sentence." In the case of Zahid Imran and others v. The State and others (PLD 2006 Supreme Court 109), while deciding the question of quantum of sentence in a proved murder case, the Hon'ble Supreme Court of Pakistan held as under:-- " ...It is well-established by now that 'the normal sentence for a person found guilty under this section is the sentence of death and the lesser punishment cannot be awarded unless there are extenuating circumstances which, though they are not sufficient to bring the case under any of the exceptions to this section, could be taken into account as mitigating circumstances to award lesser of the two sentences .." As about Muhammad Afzal alias Aloo (appellant), it is stated that he along with Muhammad Ashraf (since P.O.) had caused injuries to Muhammad Hafeez (deceased), on different parts of his body. As per the medical evidence (PW-1 & Ex.PA), as many as nine injuries at the body of the above named deceased were found, out of which injuries Nos. 1, 3 and 4 proved fatal. Nothing is available on the record to suggest that which of the above mentioned injuries were caused by Muhammad Afzal alias Aloo (appellant). The same fact in our mind is a mitigating circumstance to award lesser penalty to the said appellant.

16. Resultantly, the Criminal Appeal in hand to the extent of Muhammad Akbar alias Bhola and Muhammad Asghar alias Kaloo (appellants) is dismissed and conviction and sentence awarded to them by the learned Trial Court is maintained. Consequently, Murder Reference No. 146/2009 to their extent is answered in affirmative and death sentence awarded to them is confirmed. Whereas while dismissing the appeal to the extent of Muhammad Afzal alias Aloo (appellant), the conviction awarded to him by the learned Trial Court is maintained, but his sentence is altered from death to the imprisonment for life. As a consequence, the Murder Reference to the extent of Muhammad Afzal @ Aloo (appellant) is answered in negative and death sentence awarded to him is not confirmed. He shall be entitled for the benefit of section 382-B, Cr.P.C. HBT/A-198/L Order accordingly.