1978 PLP 45 (SCMR)

QASIR KHAN, J.‑Gullab aged 85 years, his sons Ali Jan aged 60, Abdul Razzaq aged 50 and Abdur Rashid aged 40, Imam Din @ Maloo aged 80, his sons Allauddin aged 30 and Hakam Din aged 42 and Nizam Din son of Nadir aged 82, residents of Khanewal were tried by the Sessions Judge, Multan on charges under section 302/149, 324/149, 323/149 and 148, P. P. C. The learned Sessions Judge by his order dated 26‑1‑1971 acquitted Gulab. Abdur Razaaq, Nizam Din, and Imam Din accused. Ho however, convicted Abdur Rashid. Ali Jan, Allauddin and Hakimuddin under sections 302/34, P. P. C. on two counts, under section 324/34 and under section 323/34, P. P. C. Each one was sentenced to transportation for life under section 302/34, P. P. C. on each count, to 3 years' R.1. under section 324/34, P. P. C. and to one year's R. 1. under section 323/34, P. P. C. The sentences were ordered to run concurrently. An appeal against the acquittal of Gulab etc. by the State was dismissed on 7‑10‑1971. The 4 convicts filed an appeal against the order of their convictions and sentences and a revision was also filed by the complainant for enhancement of the sentences of transportation to those of death. The learned Judges in the High Court by their order dated 26‑7‑1970 dismissed the appeal but accepted the revision petition and enhanced the sentences of the appellants as follows :‑ "The sentences of Abdur Rashid and Ali Jan under section 302/34, P. P. C. on each count were enhanced to death and to pay a fine of Rs. 1,000 or in default to undergo one year's R. I. The sentences of transportation for life of Allauddin and Hakimuddin under section 302/34, P. P. C. on both the counts were upheld but they were further sentenced on each count to pay a fine of Rs. 1,000 or in default to undergo one year's R. L" Abdur Rashid and Ali Jan have come up in appeal against the order of their conviction and sentences. Allauddin and Hakimuddin have not filed any appeal and we are given to understand they have already been released after undergoing their sentences of transportation for life. The facts of the case in brief are as follows: These need not be narrated In detail as the learned counsel for the appellants did not question the convictions of the appellants but only questioned the sentences awarded to them. Mohabbat Ali deceased a Tonga driver used to supply ice from the ice factories to the shopkeepers. A few days before the present occurrence Mobabbat Ali took ice to the shop of Lala son or Abdur Razzaq somewhat late and on this Mohabbat Ali on the one hand and Lala and Abdur Rashid on the other exchanged hot words. The same day late in the evening Ali Jan, Abdur Rashid and Abdur Razzaq attacked Mohabbat Ali while he was returning in his Tones from the Railway Station. In this fight Mohabbat Ali and Abdur Rashid were injured and both admitted in the hospital. On 9‑9‑1969 at late Peshl time Muhammad Siddiq P. W. 9 was present in his house when be heard the noise of Mohabbat Ali. Riaaat Ali and Ghulam Muhammad P. W. 10 in the street just outside his house. On coming out of his house be saw Abdur Razzaq armed with a Takwa, Ali Jan armed with a Gandasa. Abdur Rashid armed with a spear and Imam Din, Hakimuddin, Allsuddin, Nizam Din and Gulab armed with sticks. Within his view Abdur Razaaq struck Mohabbat Ali with his Takwa, Ali Jan struck Riasat Ali with his Gandasa and Abdur Rashid stabbed Ghulam Muhammad with his spear. The other accused then gave stick blows to all the three, namely Mohabbat Ali, Riasat Ali and Ghulam Muhammad. Amjad Ali, Muhammad Akram and Gulab son of Ali Muhammad arrived at the spot and rescued the injured. Leaving the three Injured who were unconscious on the spot Muhammad Siddiq went to the Police Post City distant hardly a furlong from the spot where he reported the matter to the above effect at 4.15 p.m. This report was recorded by Manzoor Ilahi S. I. P. W. 13 who sent a copy of it to the Police Station, Khanewal distant three furlongs from the spot on basis of which a case was registered. Abdur Rashid, Ali Jan and Allaudin were arrested on 10‑9‑1969. Imam Din, Nizam Din and Gulab were arrested on 1 1‑9‑1969, Abjur Razzaq was arrested on 15‑9‑1969 and Hakimuddin on 21‑9‑1969. On 10 9‑1959 Ali Jan while under arrest allegedly produced a blood‑stained Gandasa and a blood‑stained spear from his house. The same day Allauddin accused produced a stick from his house. On 21‑9‑1969 Hakimuddin also produced a stick from his house. On 13.9‑1969 a blood‑stained Takwa was allegedly recovered at the instance of Abdur Razaaq accused from his Bethak. Mohabbat Ali expired in the hospital during the night between the 9th and 11th while Riasiat Ali expired in the Hospital on 15‑9‑1969. After the usual investigation all the eight accused were challaned to the Court of Illaqa Magistrate from where they were committed to the Court of Sessions for trial and where 4 were acquitted and remaining 4 convicted and sentenced as mentioned above. Mr. Aftab Farrekh, learned counsel for the appellants, and Mr. Riaz Ahmad, Assistant Advocate General, Punjab for the State heard. As already mentioned above, learned counsel for the appellants did not question the convictions of the appellants, but contended that the sentences of death were not called for in the circumstances of the case. Abdur Rashid appellant according to the prosecution evidence was armed with a spear. No appear blow was found on any of the two deceased by the doctor and as a matter of fact the F. I. R: lodged by Muhammad Siddiq P. W. which he admitted to be correct shows that Abdur Rashid had given a bloc with his spear only to Ghulam Muhammad P. W. and not any of the deceased Under the circumstances Abdur Rashid mould only be held responsible for the murders on the basis of constructive liability in which case the sentences of transportation for lift: awarded to him by the trial Court were proper for meeting the ends of justice. We would, therefore, accept his appeal and restore the sentences awarded to him by the trial Court on both the counts under section 3012/34, P. P. C. So far as Ali Jan appellant is concerned according to the prosecution evidence he was armed with a Gandasa the doctor, however, did not find any injury on the person of Mohabbat Ali deceased having boon caused with a Gandasa and Ali Jan could. Therefore, be held responsible for the murder of Mohabbat Ali on the bass of constructive liability only. Under the circumstances as mentioned earlier, the sentence of transportation for life awarded to him by the trial Court for the Murder of Mohabbat Ali could therefore amply meet the ends of justice and there was no justification for the enhancement of his sentence to that of death by the High Court. So far as the sentence awarded to him by the High Court in connection with the murder of Riasat Ali is concerned it appears to be perfectly justified. He was armed with a Gardasa according to the prosecution evidence and is alleged to have struck Riasat Ali deceased with it on his head. According to the statement of the doctor Riasat Ali had expired as a result of a blow on his head which could be caused with a Gardasa. No other injury on his person except a minor one was found by the doctor. Since appellant Ali Jan struck Riasat Ali deceased with a formidable weapon on his head he could, therefore, very well be presumed to have intended his death. He was, therefore, rightly awarded the sentence of death on this count. The net result is that the appeal of Ali Jan is accepted to the extent that his sentence of death is altered to ore of transportation for life for the murder of Mohahbat Ali. His appeal with respect to his conviction and sentence regarding the murder of Riasat Ali is, dismissed. However, before parting with the case in view of the contention of the learned counsel for the appellants we would recommend to the Government to exercise the power of clemency to the case of Ali Jan for reducing his sentence from death to that of transportation for life. He was sentenced to transportation for life along with his there co‑accused and he has been in Jail throughout. His co‑accused have undergone the sentence of transporta tion for life and have been released from Jail. He will, therefore, executed after he had undergone the sentence of transportation for life. Since this is not a legal ground on which the Court could commute his entente of death, it is why we are making recommendation to the Government in this respect. Orders accordingly