2011 SCMR 1048 (PLP)

SAYED ZAHID HUSSAIN, J.

Mushtaq Hussain, his two brothers namely Niaz Hussain, Riaz Hussain (sons of Lal Din) and their father Lal Din were tried by the learned Additional Sessions Judge, Lahore, for the commission of offence under sections 302, 324, 34, 337-F(i), 337-F(ii) and 337-A(i), P.P.C., i.e. qatl-e-amd of Shafaaqat Ali. Vide judgment dated 16-1-2002, Mushtaq Hussain and Niaz Hussain were found guilty and were convicted under section 302, P.P.C. and sentenced to death. They were also ordered to pay compensation of Rs.30,000 each to the legal heirs of the deceased. Lal Din was given the benefit of doubt and was acquitted of the charge whereas Riaz Hussain was convicted under section 337-F(ii), P.P.C. for causing injuries to Seemab Ali (P.W.4) and was sentenced to imprisonment of three years RI and was ordered to pay Daman of Rs.10,

000. On appeal by the convicts, which was heard along with the Murder Reference, a learned Division Bench of the Lahore High Court, Lahore affirmed the death sentence awarded to Mushtaq Hussain, appellant. The appeal to the extent of Niaz Hussain was partly accepted converting his death sentence into imprisonment for life and was ordered. to pay compensation of Rs.50,000 to the legal heirs of the deceased, in default whereof he had to undergo further sentence of six months' SI. Benefit of section 382-B, Cr.P.C. was also given to him. He then submitted a Jail Petition, in which leave to appeal was granted on 14-7-2009, which order reads as under: "It is, inter alia, contended that the death penalty as awarded by the learned trial Court and affirmed by the learned High Court is not in accordance with the law and settled norms of justice. It is further contended that the conviction and sentence as awarded to the petitioner does not commensurate with the gravity of the offence as the petitioner was not the only offender. Syed Ali Imran, Deputy Prosecutor-General is present on behalf of State and controverted the view point as portraited by Mr. Javed Aziz Sindhu, learned Advocate Supreme Court for the petitioner. We are, however, inclined to grant leave on the point of quantum of sentence only. The appeal may be fixed at some early date".

2. In view of the tenor of the leave granting order, the learned counsel has addressed us only as to the quantum of sentence awarded to the appellant by the trial Court and maintained by the High Court. It is contended that the appellant had been attributed as per the contents of the F.I.R. a chhuri blow at the abdomen of the deceased, whereas the chhuri blow attributed to Niaz Hussain had hit the deceased at his chest who has' been given lesser penalty by the High Court (i.e. Life Imprisonment). According to the learned counsel, as to the role of the appellant there are contradictions in the depositions of the prosecution witnesses and none could state with certainty as to who caused the fatal injury to the deceased and in such circumstances he was also entitled to the lesser penalty, as was given to Niaz Hussain.

3. The learned Deputy Prosecutor-General, Punjab, has supported the judgment rendered by the Lahore High Court, Lahore. According to him, the occurrence and the presence of the appellant is not disputed, who in league with the others took active part and caused injuries to the deceased.

4. We have perused and appreciated the evidence in the case and considered the respective contentions of the learned counsel. The occurrence was reported by Sadaqat Ali, complainant, to have taken place on 19-6-1999 at 9-45 p.m., in front of the Pan shop of Basharat Ali P.W.2, who had gone to the Pan shop of Basharat Ali to get cigarettes. He saw there Shafaaqat Ali deceased, Muhammad Ashfaq P.W.3, Basharat Ali P.W.2 and Semab Ali P.W.4, sitting in front of the shop where Niaz Hussain, his brothers Mushtaq Hussain and Riaz Hussain armed with chhuries and their father Lal Din armed with hatchet arrived. Lal Din shouted that Shafaaqat and Basharat should be given a taste and finished for having accused Mushtaq Hussain of the commission of theft. According to the contents of the F.I.R., Mushtaq Hussain gave successive chhuri blows to Shafaaqat deceased on the right side of the abdomen and thigh of left leg. Niaz Hussain also inflicted chhuri blows on the chest of the deceased whereas Riaz Hussain also caused injuries on the left arm of Shafaaqat Ali deceased. Sadaqat Ali, complainant (brother of the deceased) while appearing as P.W.1, reiterated his version with the variation that Mushtaq Hussain had given chhuri blows to Shafaaqat Ali deceased which "landed at his chest". This was an improvement in his statement, as in the F.I.R. he had attributed him the chhuri blow, which had hit the deceased on the right side of his abdomen. In his cross-examination he also stated that Mushtaq Hussain appellant-accused did not give threat to Shafaaqat in his presence to teach him lesson. Basharat All P.W.2, the other eye-witness, whose presence was shown by the prosecution at the place of occurrence also stated that Mushtaq Hussain appellant had given blow to Shafaaqat, which landed at his chest and Niaz Hussain also gave him a chhuri blow inflicting injury at the belly of Shafaaqat. Muhammad Ashfaq P.W.3, another eye-witness of the occurrence, had deposed that Mushtaq Hussain had given blow to Shafaaqat at his abdomen whereas Niaz Hussain gave chhuri blow to him at his chest. Seemab Ali P.W.4, who was also produced as eye-witness of the occurrence, also stated that chhuri blow was given by Mushtaq Hussain, which hit Shafaaqat Ali at his abdomen whereas Niaz gave chhuri blow hitting the deceased at his chest. Dr. Shehbaz Ahmad, who conducted post-mortem of the deceased, appeared as P.W.14 and while explaining the injuries on the dead body gave the cause of death in the case "injury to the heart, lung under injury No.1 and liver under injury No.3 leading to haemorrhage and shock". The cause of occurrence and motive for the same was a trivial alleged incident of theft of soft drink bottle from the shop of Shafaaqat. Whereas the defence version as given by the appellant in response to question No.10 (under section 342, Cr.P.C) was completely different. It wasp denial of the occurrence as put forth by the prosecution. According to the appellant, it was Mst. Safia who became cause of quarrel between Shafaaqat Ali, Basharat Ali, Muhammad Ashfaq and Semab Ali and after escaping and running away therefrom, she sought refuge in the house of the appellant and that his father was a bus driver and often remains out, was not at all present in the house. He pleaded innocence in the matter.

5. From the appreciation of above depositions of the prosecution witnesses, it is evidently clear that there is a clear shift in the stance of the complainant Sadaqat Ali, P.W.1, who changes his own version as to the seat of injury attributed to Mushtaq Hussain, appellant. His first version was that his chhuri blow had hit the deceased at the abdomen, but later on attributed the chest injury to him. The other eye-witnesses namely Muhammad Ashfaq P.W.3 and Seemab Ali P.W.4, attributed the appellant chhuri blows hitting at the abdomen of the deceased. The chest injury was attributed to Niaz Hussain, who was given lesser penalty by the High Court. It has been observed by the learned Division Bench of the High Court that Mushtaq Hussain, appellant, had given chhuri blow at the abdomen of Shafaaqat Ali, deceased. It appears an incongruous situation that accused Niaz Hussain, who was attributed the fatal injury hitting the chest of the deceased has been given life imprisonment and the other who is attributed the injury hitting the deceased at abdomen should face extreme penalty of death. It may be mentioned that the lesser penalty given to Niaz Hussain has not been assailed before us. There is no cavil that both have been found guilty and convicted but the variation of sentence has engaged our attention. In such a state of evidence led by the prosecution when the complainant had changed his stance from the one given by him in the F.I.R. and the testimony of other eye-witnesses being inconsistent with each other, the appellant did not deserve the penalty of death. Therefore, we find ourselves persuaded to alter the death sentence of the appellant to Life Imprisonment, which will meet the ends of justice. He will, however, pay compensation of Rs.50,000 to the legal heirs of the deceased and in failure to pay the same, he will suffer 6-Months' SI. He will be entitled to avail the benefit of section 382-B, Cr.P.C.

6. Resultantly, the appeal is allowed to the extent, mentioned above. H.B.T./M-17/SC Sentence altered.