2003 SCMR 516 (PLP)

NAZIM HUSSAIN SIDDIQUI, J.‑‑‑This judgment will dispose of Criminal Appeals Nos.592 and 593 of 2000, as common questions of facts and law are involved in these matters and they arise from the same judgment dated 21‑2‑2000 of a learned Division Bench, Lahore High Court, Multan Bench, whereby Criminal Appeal No.198 of 1997 and Murder Reference No. 170 of 1997 were disposed of. 2.The occurrence took place on 15‑8‑1994 at about 7‑15 a.m. in Mouza Shah Abbas Wala Daya Choke, Tehsil Kot Addu, District Muzaffargarh. F.I.R., was recorded on the statement of Ashiq Hussain on said date at about 8‑30 a.m. at Police Station Sanawan by Mureed Abbas, A.S.‑I.

3. It is a double murder case and the deceased of this case are Barkat Ali and Ashfaque Ali. The incident was witnessed by Ashiq Hussain complainant, Abbas Ali, Ilyas Ali, Riaz Hussain and Muhammad Hussain P.Ws. Of them, Abbas Ali and Ilyas Ali are injured P.Ws.

4. The motive, as alleged, was that 4/5 months prior to the incident appellant/accused, Rafique Ahmed had given "Rishta" of his daughter to Ilyas P.W. and in exchange wanted Rishta of the daughter of Barkat Ali deceased for his son. namely Shafique Ahmed appellant/accused, but Barkat Ali declined. According to the prosecution, this annoyed the appellants and they committed murders of the deceased persons and caused injuries to said injured P.Ws.

5. The prosecution's case, in brief, is that Ashiq Hussain complainant lodged F.I.R. alleging therein that at the time of occurrence, he was reciting Holy Qur'an in his own room, while his brother Barkat Ali and nephew Shafique Ali deceased were working in nearby fields. All of a sudden, he heard the sound of firing and rushed towards the scene of occurrence along with Riaz Hussain and Muhammad Hussain P.Ws. His nephew Abbas Ali and Ilyas Ali P.W. also reached there. Shafique Ahmed appellant (in Criminal Appeal No.592 of 2000) fired at Barkat Ali with 12 bore gun, which hit the latter on the leg and he fell down, while Rafique Ahmed appellant inflicted successive hatchet blows on his head and he died on the spot. It is alleged that thereafter, Rafique Ahmed appellant inflicted hatchet blow upon Ashfaque Ali, on his neck and he also died on the spot. When the witnesses started running to their houses, Shafique Ahmed fired at Abbas Ali. which hit him on his back and he fell down. He again fired upon Ilyas Ali, but the shot was missed. Rafique Ahmed ran towards Ilyas Ali and inflicted repeated hatchet blows, whereupon Ilyas Ali was seriously injured. Consequent upon arrival of the villagers, above named appellants went to their houses alongwith their respective weapons of offence.

6. On completion of investigation the charge‑sheet was submitted before District Judge, Muzaffargarh, who entrusted it to Additional Sessions judge, Kot Adu for trial.

7. At trial, the prosecution examined, as many as, 15 witnesses, namely Mushtaq Ahmed, A.S.‑I. P.W.I. Manzoor Hussain P.W.2, Amir Bakhsh P.W.3, Sultan Mehmood P.W.4. Abdul Hameed P.W.5, Dr. Muhammad Rashid Khan P.W.6. Dr. Iftikhar Ahmed P.W.7. Talib Hussain P.W.8, Ashiq Hussain P.W.9, Abbas Ali P.W.10, Ilyas Ali P.W.11, Riaz Hussain P.W.12, Abdul Sattar P.W.13, Mureed Abbas, A.S.‑I. P.W.14 and Muhammad Ramzan, S.‑I. P.W.15.

8. Appellants, Rafique Ahmed and Shafique Ahmed in their statements recorded under section

342. Cr.P.C. have denied the prosecution's allegations and claimed to be innocent. According to them, the complainant party had killed the aforesaid deceased over a dispute of land and involved them (appellants) in this case, as they had strained relations with the complainant party.

9. Barkat Ali deceased sustained, as many as, seven injuries on his person, while Ashfaque Ali deceased had sustained incised wound 10 c.m. x 5 c.m. on the right side of the neck. Abbas Ali P.W. sustained four grievous injuries and 11yas Ali had three grievous injuries on his person.

10. Neither factum of death of Barkat Ali and Ashfaque Ali is disputed nor the injuries sustained by them. Also, it is not disputed that Abbas Ali and Ilyas Ali had sustained injuries.

11. On assessment of the evidence brought on record learned trial Judge/Additional Sessions Judge. Kot Addu vide Judgment dated 18‑6‑ 1997 convicted the appellants and sentenced them as follows: Under sections 302(b ;) 34, P.P.C. (i) Both Rafique Ahmed and Shafique Ahmed were sentenced to death by causing the death of Barkat Ali. (ii) Only Rafique Ahmed was further sentenced to death for causing murder of Ashfaq Ali. Under sections 324/34, P.P.C. (i) Both Rafique Ahmed and Shafique Ahmed were further sentenced to 7 years' R.I. each with a tine of Rs.20,000 each and for non payment of fine both were ordered to further undergo R.I. for one year each for causing injuries on the person of Abbas Ali, P.W. (ii) Both Rafique Ahmed and Shafque Ahmed were sentenced to 10 years. R.I. each and for fine of Rs.30.000 or in default of payment of fine to further undergo R.I. for two years each. The fine if realized, moiety of the same was to he paid to the injured P.Ws., in each case. Benefit of section 382‑B. Cr.P.C. was also extended. They were further directed to pay compensation to the legal heirs of both the deceased @ Rs.50.000 in equal share or in default in payment thereof to further undergo two years R.I."

12. Being dissatisfied with the judgment of trial Court, the appellants preferred appeal before High Court. Murder reference by trial Court was also made for the confirmation of their death sentences. Learned High Court confirmed the death sentence of appellant Rafique Ahmed and altered the death penalty of appellant Shafique Ahmed to life imprisonment and observed as follows:‑‑ . "After giving due consideration to the facts and circumstances of the case, we are of the considered opinion that the prosecution had established its case beyond any shadow of doubt against both the appellants by an unimpeachable evidence of the injured witnesses, the medical evidence and the recoveries of the weapons of offence. It was a brutal murder of two innocent persons and causing of serious injuries on two prosecution witnesses. Therefore, we do not find any reason to interfere in the conviction recorded by the learned trial Court. The same is maintained. The sentence awarded to Rafique appellant, who caused injuries to both the deceased is upheld. However, the case of Shafique Ahmed is to some extent distinguishable. According to the complainant, he attracted to the spot after hearing the firing and when they reached the venue the firing was being made, but till that time nobody had been injured. Furthermore he did not aim at vital part of Barkat deceased and no injury is ascribed to him admittedly is not the cause of death. All these factors lead us to infer that he did not intend to cause the death of anybody. Despite opportunity he did not repeat the shot, and must had acted to please his father under his influence and command and in our opinion these are the mitigating circumstances for awarding him lesser penalty. Consequently sentence awarded to Shafiq Ahmed appellant is altered from death to life imprisonment. The sentences on other counts under section 324/34, P.P.C. against him are however, maintained. All the sentences recorded against him shall run concurrently. Benefit of section 382‑B, Cr.P.C. is also extended to him."

13. Vide order dated 17‑11‑2000 leave to appeal was granted to consider the following:‑‑ "Whether, the High Court was legally justified in reducing the sentence of Shafique Ahmed for the reasons stated in the impugned order and whether the conviction and sentence of both the petitioners in Jail Petition No.147 of 2000, was supported for the evidence on record. The entire evidence is to be assessed and evaluated so as to find out whether the guilt of the petitioners/convicts has been established in accordance with the principles enunciated from time to time for safe administration of justice in criminal cases."

13. Mr. Zaman Bhatti, learned counsel for the appellants (in Appeal No. 592 of 2000) contends that the guilt of the appellants was not established, as the principles laid down by this Court from time to time for appreciation of evidence were not strictly followed both by trial Court and High Court. We asked, as to where the prosecution evidence was misappreciated or misread, he was not able to point out any such omission.

14. We have thoroughly examined the evidence brought on record with the assistance of learned counsel appearing in these matters. It was a daylight occurrence and the F.I.R. was lodged promptly. The complainant fully implicated the appellants and so also Abbas Ali and Ilyas Ali P.Ws., who are injured witnesses and their presence at the spot was established beyond any shadow of doubt. In fact, the evidence brought on record by the prosecution is irrefutable. Although, the case of the prosecution was established by the testimony of the injured witnesses, yet, it was also corroborated by the recovery of crime weapons at the instance of the appellants coupled with Chemical Examiner and Forensic Science Laboratory's report. Medical evidence also corroborated the testimony of the complainant and the injured P.Ws. Learned High Court rightly held that motive of crime was also clearly established. The cumulative effect of above pieces of evidence is that the appellants had committed the offences of which they were charged and convicted.

15. Mr. Ziaullah, Advocate Supreme Court in Criminal Appeal No.593 of 2000 argued that Shafique Ahmed (respondent No. l in Appeal No. 593 of 2000) was not entitled to lesser punishment and High Court without legal justification interfered in the sentence awarded to him by trial Court. He also argued that these were brutal murders and the reasons assigned by High Court for lesser punishment are not sustainable in the light of the principles laid down by this Court in various cases.

16. We have considered above submissions and examined them in the light of the evidence brought on record. Death sentence and imprisonment for life are both legal sentences. Learned High Court while exercising discretion converted the death penalty of Shafique Ahmed into life imprisonment. The reasons assigned by High Court are substantial and based upon the evidence brought on record. We are not persuaded to take contrary view. The discretion exercised by High Court was just and not open to any interference.

17. In consequence, both the appeals are dismissed. N.H.Q./R‑64/S Appeals dismissed.