2009 SCMR 91 (PLP)

MUHAMMAD QAIM JAN KHAN, J.

These criminal appeals and the connected criminal petition have arisen out of consolidated judgment of a learned Division Bench of the Lahore High Court, Lahore dated 10-1-2002 passed in Criminal Appeals Nos.621 and 1016 of 1992 and Criminal Revisions Nos.476 and 761 of 1992.

2. Facts of the case, as, reflected from the F.I.R. lodged by Muhammad Sharif complainant, resident of Chak No.240/R.B., Abadi Khojewala, are that about three years ago Mst. Mondan daughter of Saleh was abducted by Allah Yar son of Qambar resident of the same Chak, regarding which Saleh and others got the abduction case registered against the complainant in which case Allah Yar and Mst. Mondan were challaned to the Court while all other accused were exonerated by the Investigating Agency. On account of this incident, the complainant and the accused side were not on visiting terms with each other. On the fateful day i.e. 1-2-1991 marriage of daughter of one Nausher of the same Chak was to be solemnized. Nusrat Ali son of Saleh and Muhammad Afzal son of Waryam had also come there to attend the marriage ceremony. Zafar Iqbal son of the complainant and Walayat son of Jalal took exception to their coming there and raised objection that since they were not on talking terms with each other, they should not have come to their Basti, as a result of which an altercation took place between Nusrat Ali and Zafar Iqbal, which converted into exchange of abuses between them. Consequently, Zafar Iqbal and Walayat gave slaps to Nusrat Ali and Muhammad Afzal, however, the people present around intervened and patched up the matter. Nusrat Ali and Muhammad Afzal left the spot by issuing threats that they will teach the complainant party a "lesson for misbehaving with them. Both the sides left for their respective places of residence. On the same day i.e. 1-2-1991, after a short while i.e. at about 4-00 p.m. Muhammad Sharif complainant along with his son Zafar Iqbal, Walayat son of Jalal and Jawaya son of Ahmad came and while they were present in front of the house of Jawaya. Amir and Munir brothers inter se sons of Raja, Muhammad Afzal son of Waryam, Nusrat Ali, Liaqat Ali brothers inter se sons of Saleh and Sarfraz son of Shera, all residents of the same Chak armed with .12 bore guns, raising Lalkaras that they would take revenge of the insult metted out to Muhammad Afzal and Nusrat Ali, reached the spot. Muhammad Afzal fired first shot which hit Zafar Iqbal on the front of his left thigh. Amir fired second shot at Zafar Iqbal which hit him on front of his neck, as a result wherepf he fell down. Liaqat Ali fired at Walayat which hit on his right wrist. Munir also fired a shot which hit- Walayat on the right side of his head. Thereafter Sarfraz fired a shot, a pellet of which hit on the left wrist of the complainant. Mian Khan son of Allah Yar, Zulfiqar son of Hajoora and Bashir son of Noor Muhammad were attracted' to the spot from the Dera of the complainant, and as soon as they reached in front of house of Qambar Ali, Nusrat Ali fired a shot which hit Mian Khan on left side of his chest as a result of which he fell down. Other people of the locality were also attracted to the scene by the noise. The accused while raising Lalkaras and making aimless firing, decamped from the spot. Zafar Iqbal and Mian Khan succumbed to the injuries on the spot while Walayat in injured condition was sent to Civil Hospital, Faisalabad. The complainant lodged report. The accused were arrested on 21-2-1991 and after completion of investigation challan was submitted in Court. The accused were brought before the Court and charged for the murder of Mian Khan and Zafar Iqbal and attempting at the life of Walayat, to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced 15 P.Ws. and after tendering the reports of the Chemical Examiner, Exhs.P.BB. and P.Z and the reports of Serologist Exhs.P.AA. and P.CC., closed its case.

3. The accused were examined under section 342, Cr.P.C. They pleaded innocence but neither recorded their statements under section 340(2), Cr.P.C. nor produced any evidence in defence. Consequently, after hearing the prosecution and the defence the trial Court on 24-5-1992 passed the following order:

"(18) On the basis of my above findings, I hold that the prosecution has succeeded to prove the ocular account duly corroborated by medical evidence in respect of Qatl-i-Amd of both the deceased namely Mian Khan and Zafar Iqbal and the charge of section 302, P.P.C. as introduced by Qisas and Diyat Ordinance stands established against both the accused namely Nusrat Ali and Amir but I find that the provision of section 34 of P.P.C. does not apply in the case of both the accused because both of them did not repeat the fire-arm injury on the persons of both the deceased and one fact can also not be denied that Mian Khan was murdered in front of the house of Qambar P.W. and Zafar Iqbal deceased was caused to death in front of the house of Jawaya P.W. and the prosecution also collected the blood-stained earth from two different places so both the murders are not the result in furtherance of the common intention of both the accused and thus section 34 of P.P.C. is not attracted to both the accused and they are only found to be individually liable for their acts. The case of both the accused is also not covered under section 302 (a and b) of P.P.C. as introduced by Qisas and Diyat Ordinance and I also find extenuating and mitigating circumstances in the prosecution case for not proving the motive and recoveries and by placing my reliance on the citations of PLD 1959 Kar. Page 460(b) and 1980 SCMR page 859, I take the lenient view and convict the accused Nusrat Ali and Amir under section 302(c) of P.P.C. as introduced by Qisas and Diyat Ordinance, 1990. Resultantly, I acquit all the accused namely Nusrat Ali, Liaqat, Ali, Amir, Munir, Sarfraz and Muhammad Afzal from the charges of sections 148/149 of P.P.C., section 324 of P.P.C. as introduced by Qisas and Diyat Ordinance, 1990 and section 149, P.P.C. by giving them benefit of doubt I also acquit the accused Liaqat Ali, Munir, Sarfraz and Muhammad Afzal from the charge of sections 302/149 of P.P.C. by giving them the benefit of doubt. The accused Liaqat Ali, Munir Sarfraz and Muhammad Afzal are present in Court in police custody so they have been informed accordingly. They shall be released by the jail authorities immediately, if not required in any other case. However, convict the accused Nusrat Ali under section 302(c) of P.P.C. as introduced by Qisas and Diyat Ordinance, 1990 for committing Qatl-i-Amd of Mian Khan deceased and sentence him to 25 years' R.I. under section 302(c) of P.P.C. I also convict the accused Amir under section 302(c) of P.P.C. as introduced by Qisas and Diyat Ordinance, 1990 for committing Qatl-i-Amd of Zafar Iqbal deceased and sentence him to 25 years' R.I. under section 302(c) of P.P.C. The accused Nusrat Ali is ordered to make the payment of compensation amount of Rs.10,000 to the legal heirs of Mian Khan deceased and the accused Amir is also ordered to make the payment of compensation amount of Rs.10,000 to the legal heirs of Zafar Iqbal deceased as required under section 544-A of Cr.P.C. and in default of payment of compensation amount, both the aforementioned convicted accused shall further suffer imprisonment for a period of 6 months' R.I. each. Moreover, both these accused namely Nusrat Ali and Amir are given the benefit of section 382-B of Cr.P.C. Both of them are present in Court in police custody so that have been informed accordingly. The case property i.e. blood-stained earth of both the deceased and last-worn clothes of both the deceased shall be destroyed after the expiry of period of appeal or revision if any. The weapons of offence i.e. guns recovered from the accused Nusrat Ali, Amir, Liaqat Ali, Munir and Muhammad Afzal shall be confiscated in favour of the State and the licensed gun of Sarfraz accused will be returned to him according to the rules on the subject after the expiry of period of appeal or revision if any." Dissatisfied with the said judgment, Nusrat Ali and Amir convicts filed Criminal Appeal No.621 of 1992 before the Lahore High Court, Lahore while the State through Public Prosecutor Punjab preferred Criminal Appeal No.1016 of 1992 seeking reversal of acquittal of Liaqat, Munir, Sarfraz and Muhammad Afzal and Criminal Revision No.761 of 1992 praying for enhancement of sentences awarded to Nusrat Ali and Amir convicts whereas the complainant filed Criminal Revision No.476 of 1992 against all the accused and a learned Division Bench of the said Court after hearing the respective counsel for the parties and scanning the record, allowed Criminal Appeal No.1016 of 1992 and Criminal Revision No.761 of 1992 while dismissed Criminal Appeal No.621 of 1992 and disposed of Criminal Revision No.476 of 1992, vide the impugned judgment, dated 10-1-2002 as under:-- "(21) For the foregoing reasons conviction and sentence of Nusrat Ali and Amir appellants under section 302(c), P.P.C. is set aside. Likewise acquittal of Liaqat Ali, Munir and Muhammad Afzal respondents is set aside. Accordingly, Nusrat Ali, Amir, Liaqat Ali, Munir and Muhammad Afzal are convicted under sections 302(b)/149, 324/149 and 148/149, P.P.C. (22) Now we advert to quantum of sentences to be awarded to Nusrat Ali and Amir appellants. Liaqat Ali, Munir and Muhammad Afzal respondents. We have failed to find out any extenuating circumstances in favour of Nusrat Ali and Amir appellants, so they are convicted under sections 302(b)/149, P.P.C. and sentenced to death on two counts with further direction to pay Rs.20,000 each on two counts to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. In case of non-payment of compensation they shall suffer simple imprisonment for six months each under each count. (23) Since Munir respondent is not assigned the role of causing an injury on the deceased so we take a lenient view in the matter of sentence to be awarded to him. He is convicted under sections 302(b)/149, P.P.C. and sentenced to imprisonment for life on two counts with further direction to pay Rs.20,000 under each count to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. or in default thereof to further undergo simple imprisonment for six months. (24) As far as Liaqat Ali and Muhammad Afzal respondents are concerned, we find that they were minors on the day of occurrence as indicated through certificates (Exhs.D.A. and D.B.) respectively, so they are convicted under section 308, P.P.C. on two counts and sentenced to rigorous imprisonment for fourteen years each under each count. They shall also be liable to Diyat on both the counts. (25) We also find that Nusrat Ali, Amir appellants, Liaqat Ali, Munir and Muhammad Afzal respondents, are guilty of charge under sections 324/149, P.P.C. for committing murderous assault upon Walayat (P.W.12). We accordingly convict them under sections 324/149, P.P.C. and sentence them to rigorous imprisonment for five years each. They shall also pay a fine of Rs. 10,000 each or in default thereof to further undergo rigorous imprisonment for one year each. Half of fine if realized shall be paid to Walayat (P.W.12) victim of assault. (26) We also find that Nusrat Ali, Amir appellant, Liaqat Ali, Munir and Muhammad Afzal respondents in prosecution of the common object of the unlawful assembly are guilty of offence of rioting punishable under section 148, P.P.C. so they are convicted as such and sentenced to rigorous imprisonment for three years each. Sentences awarded to the abovesaid appellants and respondents shall run concurrently. Benefit of section 382-B, Cr.P.C. shall be extended to Munir, Liaqat Ali and Muhammad Afzal respondents." Hence these appeals and the petition.

4. Learned counsel for the appellants/petitioners mainly argued that the prosecution version is not supported by the medical evidence and the motive; that no empty has been recovered from the spot; that it was a matter of family honour and strangely enough the convict-appellants attended the marriage ceremony of daughter of Nausher Machhi on his invitation and he being a Khadim of the village did not object to their coming at the Baraat but said Nausher has not been produced by the prosecution; that the complainant party has committed highhandedness as firstly the sister of the appellants was abducted and even they were restrained from attending the Baraat of daughter of Nausher Machhi; that the quarrel was initiated by deceased Zafar Iqbal and not the appellants; that during investigation four accused have been termed innocent and that the recoveries are fake and concocted; that according to the medical report only an abrasion is present on the arm of complainant Muhammad Sharif and thus, his statement is negated by the medical evidence; that the acquittal recorded by the trial Court was correct and no case of death is made out as the appellants have been dishonoured by the complainant party and falsely implicated. He lastly contended that he would not challenge the conviction rather would confine himself only to mitigation.

5. Learned counsel for the complainant, on the other hand, strenuously supported the impugned judgment. He argued that it is a daylight occurrence. F.I.R. is promptly lodged. The accused have been specifically nominated with specific role and weapon of offence; that the conduct of the appellants is also to be seen as they ran away from the Court after hearing the sentences. Nusrat Ali remained absconder for two years and Amir remained absconder for one year and they were arrested on 3-1-2003 which shows their guilty mind; that the prosecution case is proved beyond any shadow of doubt and is admittedly corroborated by the medical evidence and the motive.

6. Learned Deputy Prosecutor-General argued that no question of mitigation can arise in the present circumstances. The prosecution has proved its case beyond any shadow of doubt. The scuffle is admitted, the motive is proved and two precious lives have been lost; that the appellants have formed an unlawful assembly and committed the murder of Zafar Iqbal and Mian Khan with due preparation although the matter was patched up in the first instance by the villagers. He argued that the version of the appellants is frivolous and not proved from the record. However, the State as well as the learned counsel for the complainant did not say much about the acquittal of Sarfraz.

7. We have heard the learned counsel for the appellants/petitioners, the complainant and the learned Deputy Prosecutor-General and have also perused the available record with their assistance. Admittedly it is a daylight occurrence, the F.I.R. has been promptly lodged and motive has also been established. Even the appellants/petitioners have admitted the enmity and motive in their own statements. The parties being residents of the same locality are known to each other, therefore, the question of false implication is improbable. Prosecution case is fully proved by ocular evidence duly corroborated by the medical evidence and motive. The occurrence is even admitted by the accused appellants/petitioners but in a somewhat different manner. Formation of the unlawful assembly, premeditated and pre-concerted attack on the complainant party resulting into two murders and causing injury to one P.W. is proved beyond any doubt. Venue of the occurrence is also established as blood-stained earth has been collected from the spots where Zafar Iqbal and Mian Khan died. The weapons of offence have been specifically mentioned by the P.Ws. and are duly proved by the medical evidence as pellets have been recovered from the two dead bodies. The P.Ws. were put to lengthy searching cross-examination but nothing favourable to the defence came out from their mouth. Minor discrepancies cannot mar the prosecution case. With regard to the "possibility" of single fire shot in the statement of doctor the learned Division Bench has very elaborately explained the difference between the "possibility" and the "opinion" of the doctor. As far as the acquittal of Sarfraz is concerned that has not been seriously challenged by the complainant and the State. So, in this background of the case, as far as the conviction is concerned, the appellants have rightly been convicted by the learned Division Bench of the Lahore High Court, but keeping in view the factum that they were invited by Nausher Machhi to the marriage ceremony of his daughter and they had come to the said ceremony without any arms or weapons and at the first moment it was Zafar Iqbal who objected to their coming and initiated the quarrel by giving slaps to Nusrat Ali and Muhammad Afzal and disgraced them before the Baraatis, in our view punishment of death is too harsh.

8. On 29-4-2008 the following short order was passed:

"For the reasons to be recorded later, Criminal Appeals Nos.6 of 2003 and 24 of 2004 filed by the appellants, Ameer Ali and Nusrat Ali are partly allowed and their sentences of death are altered to imprisonment for life whereas Criminal Appeal No.103 of 2002 filed by Munir and another and Criminal Petition No.155 of 2002 filed by Liaqat Ali and another are dismissed. However, it is ordered that sentences of the petitioners/appellants will run concurrently with benefit of section 382-B, Cr.P.C. These are the reasons in support of our above short order. M.H./L-4/SC?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.