PLJ 2009 Cr.C. (Lahore) 462 (DB)
Present: Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ.
MUHAMMAD AKMAL & another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 784 of 2002 & M.R. No. 405 of 2002, heard on 7.7.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/324/337-F(i)/34--Conviction and sentence--Challenge to--Double murder--Neither time nor venue of occurrence was denied--Controversy between parties, stands admitted by both sides--Only point of difference between parties is that according to prosecution, appellants had attacked complainant-party, whereas, according to appellants, it was complainant-party, which being aggrieved of fact of pronouncing divorce by appellant to his wife i.e. daughter of complainant--Complainant-party, in fact, had a strong motive to attack appellants, whereas appellants had no reason to launch an attack on complainant-party--Medical evidence is in line with ocular evidence--No major contradiction between medical evidence and ocular evidence--Both eye-witnesses were injured witnesses, therefore, their presence at time and place of occurrence, cannot be disbelieved. [P. 470] B, C & D
Appreciation of Evidence--
----Prosecution's case rests upon medical and ocular evidence alongwith the evidence of motive and recovery of weapons of offence--Held: Broad features of the case are that neither time nor venue of the occurrence is denied. [P. 469] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 121--Burden of proof--Plea of self-defence--After raising the plea of self-defence by appellants, burden of proof shifted on appellants in view of provisions of Art. 121 of Qanun-e-Shahadat Order, 1984, but appellants failed to discharge said burden--Similarly, they did not produce any witness in support of plea of self-defence raised by them--So, charge of double murder stands proved against both appellants.
[P. 471] E & F
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-F(i) & 34--Conviction and sentence recorded against accused--Challenge to--Mitigating circumstances--Nevertheless, prosecution has not come with clean hands, rather both parties have tried to suppress real facts and have tried to minimize role played by each of them during occurrence--Admittedly, hostility prevailed between both parties due to fact that one appellant had divorced complainant's daughter--Both parties suppressed real and immediate cause of occurrence--Both parties did not come forward with true story about encounter and genesis of fight is not clear--Both parties were determined in withholding reality and truth from Court--There are mitigating and extenuating circumstances necessitating commutation of death sentence awarded to both appellants to one of imprisonment for life--Appeal disposed of. [Pp. 472 & 473] G, H, I & J
PLD 1996 Lahore 402, 1999 SCMR 637, 1999 SCMR 803, 1999 SCMR 1937, 1992 SCMR 1647, 1994 SCMR 1733 and 1992 SCMR 320, rel.
Kh. Waseem Abbas, Advocate for Appellants.
Mr. Arif Karim, D.P.G. for State.
Date of hearing: 7.7.2008.
Judgment
Hasnat Ahmad Khan, J.--Muhammad Akmal and Muhammad Ajmal both appellants, along with their co-accused, namely, Mst. Saleema Bibi and Muhammad Akbar, were tried by the learned Additional Sessions Judge, Sialkot, in case FIR No. 76/1999 dated 04.06.2000, registered at Police Station Qila Kalarwala, District Sialkot, in respect of the offences under Section 302/324/337-F(i)/34, P.P.C. Vide his judgment dated 9-5-2002, the said learned Addl. Sessions Judge found both the appellants guilty for the murder of Guftar Ahmad and Muhammad Aslam and convicted both of them under Section 302, PPC on two counts, each. Both the appellants-accused were also convicted u/S. 324, PPC for making an attempt to commit the murder of Muhammad Jamil, PW-3 and were awarded with the sentence of 10 years R.I, each. They were also directed to pay Rs. 50,000/- each, on two counts, to the legal heirs of each of the deceased, or in default of payment thereof, they were ordered to undergo further six months S.I. The appellants were also given the benefit u/S. 382-B, Cr.P.C. However, the learned trial Court acquitted Muhammad Akbar and Mst. Salima Bibi of the charge.
2. Feeling dissatisfied with the judgment of the learned trial Court, the appellants have challenged their conviction and sentence through the instant Cr. Appeal No. 784/2002, while the trial Court has sent a reference (M.R. No. 405/2002) for the confirmation or otherwise of the death sentence, awarded by it to Muhammad Akmal and Muhammad Ajmal-appellants. This single judgment will dispose of both the said matters.
3. Succinctly, the prosecution's story, as disclosed by the complainant-Muhammad Yaqub in his statement (Ex.PA), which was later on reduced into FIR (Ex.PA/1), was to the effect that, a month prior to the occurrence, Muhammad Akmal-appellant had divorced complainant's daughter, namely Mst. Naheed Akhtar Mst. Samina Firdous, another daughter of the complainant, who was married in village Dhoda, was constructing her house and for her help, complainant and all his family members had gone to that village. On 3-6-2000, one day prior to the occurrence, due to the illness of complainant's daughter, his wife and son Guftar Ahmad (deceased) went to see her (complainant's daughter) in village Muzaffar. Complainant's wife stayed with her daughter, while his son, who was returning back to village Dhoda, came across Akmal and Ajmal-appellants, who gave him punch blows near their Peter Engine. Guftar Ahmed (deceased) told his father about that incident. On 4-6-2000, complainant, along with his son Guftar Ahmad (deceased), Muhammad Jamil (son-in-law) and his daughter, Mst. Samina Firdaus, was going to village Muzaffar to see his ailing daughter Rahat Afzaal as well as to enquire about the incident from Akmal-appellant and others in the presence of the respectables of the village, that as the relations between complainant and Akmal-appellant had come to an end after the latter had divorced the former's daughter, then why did he (Akmal-appellant) tease the complainant's son. When all of them reached near the Peter Engine, Muhammad Akbar-accused, seeing the complainant-party, ran towards his house. At about 10.00 a.m, when the complainant along with others reached near the house of his son-in-law, namely, Muhammad Aslam, Muhammad Akmal-appellant, armed .12 bore, double barrel gun, Muhammad Ajmal-appellant, armed with pistol, Muhammad Akbar, equipped with a hatchet and Mst. Saliman Bibi, equipped with a baton/staff, abusing and raising lalkaras, came there. Hearing the noise, Surayya Bibi wife of the complainant and Muhammad Aslam, his son-in-law, came out of the house to the street. Akmal-appellant fired with .12 bore, double barrel gun at Guftar Ahmad (deceased), which hit on the right side of his belly near his navel as well as near right thigh, right arm and backside of one hand, who fell down on the ground, soaked in blood. Ajmal-appellant fired with pistol at Muhammad Aslam (complainant's son-in-law), which hit him on the right side of his belly as well as under the armpit, and he fell down on the ground, as well, soaked in blood. In that position, Muhammad Akbar hit him with the backside of hatchet on his left shoulder. Then Mst. Saliman Bibi also hit him with the baton on his left arm. Then Ajmal-appellant fired from his pistol at Muhmmad Jamil (complainant's son-in-law), which hit him, on the front side of his belly. Then Muhammad Akmal-appellant fired with 12 bore pistol, which hit Muhammad Jamil up and down on the left side of his chest, drenched in blood he fell down on the ground. The complainant also suffered injuries on various limbs of his body, while snatching fire-arm weapons/hatchet from the accused/appellants. The occurrence was seen by Mst. Samina Bibi, daughter and Mst. Surayya Bibi, wife of the complainant as well as many other peoples of the village. The accused fled from the spot, raising lalkaras. Guftar Ahmed, son and Muhammad Aslam, son-in-law of the complainant, succumbed to their injuries, while he was being shifted to the hospital.
4. After the receipt of information about the incident, Ali Akbar, S.I/I.O reached Civil Hospital, Pasrur where he met with complainant, recorded his statement (Ex.PA), prepared the injuries statement of Guftar Ahmad (Ex.PS), inquest report (Ex.PT). He also prepared the injuries statements of Muhammad Aslam (Ex.PV), inquest report (Ex.PW) and recorded the statement of PW.5. After inspecting the place of occurrence, he collected blood stained earth from the spot vide memos. Ex.PE and PF, prepared a rough site-plan of the place of occurrence (Ex.PY). He arrested the accused-appellants on different dates. On the pointing out of Muhammad Akmal, Muhammad Ajmal-appellants and Muhammad Akbar, he recovered the weapons of offence vide memos. Ex.PO, PP, and PQ and prepared a rough site-plan of the place of the recovery of the weapons of offence. After completing the investigation, he challaned the appellant/accused under Section 173, Cr.P.C.
5. The appellants were indicted by the trial Court on the charge of murder of Guftar Ahmad and Muhammad Aslam (slain) and the murderous assault on Jamil, PW. During the trial, the prosecution, in support of its case, produced as many as 13 witnesses.
Muhammad Yaqub-complainant entered into the witness box as PW. 1, he confirmed the contents of complaint (Ex.PA) and furnished the ocular account of the occurrence.
Muhammad Jamil came forward as PW.3 and made statement in line with PW.1.
Muhammad Yousaf appeared as PW.4 and deposed about the identification of the dead bodies of Guftar Ahmad and Muhammad Aslam (slain). He also attested recovery memos. Ex.PC and Ex.PD.
Muhammad Shahbaz, appeared as PW.9 and proved recovery of 12-bore double barrel gun (P.9) and hatchet (P. 10) vide recovery memos. Ex.PP and Ex.PQ, respectively, on the pointing out of Akmal-appellant.
Dr. Gull Nawaz, who had conducted the post-mortem examination on the dead-bodies of Guftar Ahmad and Muhammad Aslam, appeared as PW.7 and gave the detail of the injuries on their dead-bodies as under:
Injuries on dead-body of Muhammad Aslam:
(i) Fire-arm wound 3/4 x 3/4 cm margin inverted on antero lateral aspect of right chest on anterior axillary line below its middle part, hole on bunyan and blacking wound whole present (entry wound).
(ii) Fire-arm wound 1 x 1-1/2 cm margin inverted on anterior axillary fold (exit wound)
(iii) Abrasion 8 x 4 cm on left shoulder.
(iv) Abrasion 6 x 2 cm on left upper arm.
In his opinion, the cause of death in this case occurred due to haemorrhage and shock, injuries to vital organs, liver and lungs due to Injury No. 1, which was sufficient to cause death in ordinary course of-nature. He further opined that Injury No. 1 was caused by fire-arm and Injuries No. 3 and 4 were caused by blunt weapon. According to him, all injuries were anti-mortem in nature.
Injuries on the dead-body of Guftar Ahmad
(i) Contusion 2 x 1 cm on left eye-brow.
(ii) Fire-arm gutter wound 4 x 1 cm muscle deep, back of right hand.
(iii) Fire-arm gutter wound 5 x 1 cm muscle deep back of right fore arm upper part.
(iv-a) Fire-arm wound 3/4 x 3/4 cm margin inverted front of right chest 7.cm below nippal. (entry wound).
(iv-b) Fire-arm wound 1 x 1-1/2 cm margin everted back of right lower chest exit wound.
(v-a) Fire-arm wound 3/4 x 3/4 cm margin inverted on right hypochondrium 3 cm from mid line, (entry wound).
(v-b) Fire-arm wound 1x1 cm margin everted back of right lumber area upper part exit wound.
(v) Fire-arm wound 3/4 x 3/4 cm margin inverted on right ileac crest."
In his opinion, death was caused due to haemorrhage and shock caused by Injury No. 4 and 5 damaging vital organs liver and lungs and other viscera mentioned in report. According to him, both injuries were sufficient to cause death collectively and individually. He further opined that all injuries were anti-mortem. Injury No. 1 caused by blunt weapon, rest all by fire-arms.
Muhammad Riaz, C-1485, appeared as PW.8 and deposed that he had escorted the dead bodies to the hospital for the post-mortem examination. He further stated that after the post-mortem examination, he had received the last worn clothes of the deceased, which were produced by him before the I.O, who took them into possession vide recovery memo. Ex.PC and Ex.PD.
Masud Ahmad Bhatti, appeared as PW.2 and proved the site-plan prepared by him on the instructions of I.O.
Tariq Mahmood (Ex-HC-411) appeared as PW.13 and stated that he had received four sealed parcels containing blood stained earth, 12 bore double barrel gun and revolver from I.O., which were handed over by him to Muhammad Younas, C-1360, for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory, respectively.
Muhammad Sawar, ASI, entered into witness box as PW.6 and deposed about drafting of formal FIR (Ex.PA/1).
Ali Akbar, S.I/I.O appeared as PW.12 and furnished the detail of the investigation conducted by him.
6. The learned D.D.A gave up Muhammad Nawaz, HC-1173, being unnecessary and closed the prosecution's evidence, after tendering in evidence the reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Ex. PEE/1, Ex. PFF and Ex. PGG and PHH, respectively.
7. The statements of both the appellants were recorded under Section 342, Cr.P.C. Both of them denied the charge levelled against them. In answer to the question, as to why the case was registered against him and why PWs have deposed against him, Muhammad Akmal-appellant replied as under:
"The PWs are interested witnesses. They are related to each other. I divorced the daughter of complainant, therefore, the PWs have deposed against me."
In answer to the question, as to why the case was registered against him and why PWs have deposed against him, Muhammad Ajmal-appellant replied as under:
"The PWs are interested witnesses. They are related to each other and they have deposed against me as I am brother of Muhammad Akmal who divorced the daughter of complainant."
The other accused toed the line of defence adopted by Muhammad Akmal and Muhammad Ajmal-appellants.
8. The appellants did not opt to appear under Section 340(2), Cr.P.C. After the conclusion of the trial the learned trial Court convicted and sentenced both the appellants as above. However, Muhammad Akbar and Mst. Saliman Bibi, co-accused were acquitted of the charge.
9. In support of this appeal, Waseem Abbas, Advocate who has been appointed as defence counsel due to non-appearance of the learned counsel for the appellants, has contended that the prosecution has failed to prove its case beyond shadow of doubt; that considering the fact that complainant's daughter namely, Mst. Naheed Akhtar, had been divorced by Akmal-appellant, it was the complainant-party, which had a motive to launch an attack upon the accused-party, which had no occasion to launch murderous attack upon the complainant party; that the medical evidence outrightly contradicted the prosecution's case, inasmuch as, the dimensions of injuries received by both the deceased as well as the injured PW, show that the same had been caused with only one fire-arm weapon; that, although, the occurrence took place quite near the house of Muhammad Aslam, one of the deceased, yet no crime-empties, were recovered from the spot; that this omission on the part of investigating officer was a deliberate attempt to conceal the fact that, in fact, only one fire-arm weapon was used during the course of occurrence; that the fact that the accused were arrested on the very next day of the occurrence, shows that they had appeared before the investigating officer themselves with a plea of self-defence; that the plea of self-defence raised by the accused through suggestions put to the eye-witnesses, is more probable and plausible than that of the prosecution's version; that, in fact, the complainant-party had launched a murderous assault when the accused were passing in front of the house of Muhammad Aslam-deceased; that the fact that both the accused had received the injuries on their persons during the same occurrence, belies the case of the prosecution; that the injuries suffered by both the accused, were intentionally suppressed by the prosecution while putting the legal machinery into motion and that in the said backdrop, both the accused are entitled to acquittal.
10. Conversely, the learned DPG has contended that the prosecution has successfully proved its case through the evidence of motive, medical evidence, recoveries of weapons of offence and the ocular evidence, including the statement of injured witness, namely, Muhammad Jamil; that the contention that all the injuries received by both the deceased as well as the injured witnesses were of the same dimension, is against the record; that the defence plea that all the injuries were caused by Akmal-appellant after snatching the pistol from the complainant-party, is neither believable nor plausible; that, although, the said plea was raised through suggestions put to the eye-witnesses, yet such a defence plea was neither raised by the appellants while making their statements nor did they opt to appear in their own defence under Section 340(2), Cr.P.C; that after raising a plea of self-defence, the burden of proof shifted to the appellants in view of Article 121 of Qanun-e-Shahadat Order, 1984 but the accused-appellants failed miserably to discharge the said burden, therefore, their plea of self-defence is liable to be rejected outrightly and that since the appellants committed the murder of two innocent people and caused serious injuries to the third one, therefore, they are not entitled to any concession in the matter of sentence and, therefore, the death sentence, awarded to them by the learned trial Court, merits confirmation.
11. After giving an ardent hearing to the respective learned counsel for either of the parties and going through the record, we have observed that prosecution's case rests upon medical and ocular evidence along with the evidence motive and recovery of weapons of offence. The broad features of the case are that neither time nor the venue of the occurrence is denied. The only controversy between the parties is that according to the prosecution, it was the accused-party, who had launched a murderous assault on the complainant-party, whereas, according to the appellants, they were made victims of assault by the complainant-party, when they (appellants) were passing near the house of Aslam-deceased. It is further claimed by the appellants that Akmal-appellant after snatching a pistol from the assailants, had fired in order to save his life.
12. Insofar as the motive is concerned the basic fact which led to the controversy between the parties, stands admitted on both the ends. The only point of difference between the parties is that according to the prosecution, the appellants had attacked the complainant-party, whereas, according to the appellants, it was the complainant-party, which, being aggrieved of the fact of pronouncing divorce by Akmal-appellant to his wife, i.e. Mst. Samina Firdous, daughter of the complainant, the latter, in fact, had a strong motive to attack the appellants, whereas the appellants had no reason to launch an attack on the complainant-party.
13. Now, adverting to the medical evidence, the same was furnished by Dr. Gul Nawaz (PW.7), who had conducted autopsy on the dead-bodies of Muhammad Aslam and Guftar-deceased and medically examined Muhammad Jamil (PW.3) and Muhammad Yaqoob (P.W.1). We have minutely gone through the statement of the said doctor and have come to the conclusion that the same is in line with the ocular evidence. There is no major contradiction between the medical evidence and the ocular evidence. Therefore, the appellants cannot have any benefit on the basis of minor inconsistencies, especially, when the prosecution's evidence is supported by the statements of two injured eye-witnesses, namely, Muhammad Yaqub (PW.1) and Muhammad Jamil (PW.3). It would be relevant to point out here that during the cross-examination, the defence did not challenge the presence of the said witnesses at the time and place of occurrence.
14. Insofar as the ocular-evidence is concerned, as both of the eye-witnesses, are injured witnesses, therefore, their presence at the time and place of occurrence, cannot be disbelieved, especially, when their presence at the relevant time and place has not been seriously challenged by the defence. However, the stamp of injuries on the persons of the injured P.Ws by itself cannot establish that the said witnesses are truthful also. So, the only thing to be seen is, whether the eye-witnesses are trustworthy and reliable and if so, whether, they are telling the truth in full measure. To examine this aspect of the case, we have gathered that the salient features of the prosecution's story have not been denied by the appellants. We have further observed that, though, the appellants, while making their statements under Section 342, Cr.P.C, did not raise a plea of self-defence, yet the fact remains that while cross-examining both the eye-witnesses, the plea of self-defence was duly raised by the appellants, who claimed that after being attacked by the complainant-party while passing in front of the house of Aslam-deceased, Akmal-appellant had fired with the pistol, which had been wrested by him from the complainant-party, in self-defence. So, primarily, it has become a case of two versions. Therefore, we have to examine as to which of the version is more plausible and nearer to the truth. In this regard, we have gathered that after raising the plea of self-defence, the burden of proof shifted on the appellants in view of the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984. But the appellants failed to discharge the said burden, inasmuch as, neither they opted to advance such a plea while making their statements under Section 342, Cr.P.C nor did they appear under Section 340(2), Cr.P.C. Similarly, they did not produce any witness in support of the plea of self-defence raised by them. Moreover, the extensive damage, suffered by the complainant-party in this encounter, belies the said self-defence plea, for, multiple fire-arm wounds were caused to both the deceased along with serious fire-arm injuries suffered by Muhammad Jamil, in addition to this, Muhammad Yaqub also received two injuries during the occurrence. In sharp contrast to the numerous injuries, received by the complainant-party, Muhammad Akmal-appellant, received only one incised wound on his cheek, therefore, we are not inclined to accept the plea of self-defence, as raised by the appellants. Insofar as, the question of participation of both the appellants is concerned, the same cannot be doubted, because, according to their own showing, both of them had received injuries during the occurrence. Even, otherwise, they have not denied their presence at the time of occurrence.
E
15. We have come to the conclusion that naturally, both the injured witnesses were present at the time of occurrence and they did witness the occurrence. We have further concluded that the appellants failed to establish their plea of self-defence through their statements. The attending circumstances also belie the plea of self-defence. Therefore, the charge of double murder stands proved against both the appellants. Nevertheless, we have concluded that the prosecution has not come with clean hands, rather, both the parties have tried to suppress the real facts, which became the immediate cause of occurrence. From the prosecution's evidence itself it is established that Muhammad Akmal-appellant did receive a sharp-edged injury during the same occurrence. Consequently, he was medically examined by Dr. Gul Nawaz (PW.7), who proved the Medico-Legal Report, pertaining to said appellant-accused, as Ex.PL. The attending circumstances further depict that Muhammad Ajmal-appellant also received two injuries in the same occurrence. Though, neither the prosecution nor the defence tried to prove the said fact by producing the Medico-Legal Certificate pertaining to Ajmal-appellant, nor was Dr. Shehzad who had medically examined Muhammad Ajmal-appellant, produced by either of the
F
parties. However, on perusal of the record, we have found that the same contains the said Medico Legal Report, which shows that the police got him (Ajmal-appellant) examined medically. The said report further shows that he was produced for his medico-legal examination by Muhammad Arshad-Constable. The duration of the injuries suffered by him is synchronous/compatible with the time and date of the occurrence. Moreover, Ali Akbar, Sub-Inspector, the Investigating Officer (PW.12), during his examination-in-chief, categorically stated that at the time of arrest, Ajmal-appellant was found in injured condition. He further stated that he had prepared his injury-statement (Ex.PZ) and had referred him to the Civil Hospital for his medical examination. The said facts clearly depict that the prosecution made a deliberate attempt to suppress the injuries suffered by both the appellants. The said conclusion of our's gets support from the fact that Saliman Bibi, another injured witness, who certainly was also one of the star-witnesses, was withheld by the prosecution. She was given up as an unnecessary witness, which is not understandable. Moreover, the prosecution could have easily explained the injuries suffered by the accused, by stating that during the course of their defence, minor injuries were caused by them to the appellants but they did not opt to do so. This fact again make one raise his eye-brow about the bona fides of the prosecution. The said circumstances clearly indicate that both the parties have tried to minimize the role played by each of them, during the occurrence. Therefore, we have gathered that the immediate cause of the occurrence is still shrouded in mystery. So, in these circumstances, while applying the litmus test laid down by the Hon'ble Supreme Court in the case of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), we can draw inferences that properly flow from the evidence and circumstances. Admittedly, hostility prevailed between both the parties due to the fact that Akmal-appellant had divorced complainant's daughter. In this backdrop, a day prior to the occurrence, Akmal and Ajmal-appellants, allegedly, thrashed Guftar-deceased, who complained to his father regarding the said incident. According to the contents of the F.I.R, on hearing the said complaint, the complainant decided to enquire from the accused-party as to why were they teasing the complainant party, though, the relationship between the parties had terminated since Akmal-appellant had divorced the complainant's daughter. A perusal of the F.I.R further reveals that on the day of occurrence, when the complainant, along with his associates, was passing near the Peter Engine of the accused-party, Muhammad Akbar (acquitted accused), ran towards his house, whereafter, the accused-party, allegedly, attacked the complainant-party. Similar statement was made by PW.1, while appearing before the learned trial Court. The said portion of the evidence shows that after smelling a foul-play at the hands of the complainant-party, the accused-party might have prepared for an encounter.
16. Be that as it may, in the given facts and circumstances, we have concluded that both the parties suppressed the real and immediate cause of the occurrence. We have further concluded that both the parties did not come forward with the true story about the encounter, and the genesis of the fight is not clear. It cannot be said with certainty as to what transpired between the parties prior to the occurrence and which of the parties took the initiative, especially, when, admittedly, the occurrence took place near the house of Muhammad Aslam-deceased. According to the complainant-party, after noticing the presence of the complainant-party in their village, the appellants and the acquitted co-accused had launched an attack resulting in this unfortunate occurrence. Whereas, according to the accused-party, the occurrence took place when they were attacked while passing in front of the house of Muhammad Aslam-deceased, where the complainant-party had gathered to take revenge of the previous incident, from the accused. The injuries suffered by both the appellants were intentionally suppressed by the complainant party. All the facts, as said before, show that both the parties were determined in withholding the reality and the truth from the Court, therefore, while relying upon the aforesaid judgment and the cases of Muhammad Iqbal v. The State (PLD 1996 Lahore 402), Naubahar v. The State (1999 SCMR 637), Ahmad Khan v. Nazir Ahmad (1999 SCMR 803), Husnain Shah v. The State (1999 SCMR 1937), Shahid Raza v. The State (1992 SCMR 1647), Muhammad Yousaf v. The State (1994 SCMR 1733) and Abbas v. State (1992 SCMR 320), we have concluded that there are mitigating and extenuating circumstances necessitating the commutation of death sentence awarded to both the appellants to one of imprisonment for life. Consequently, while maintaining the conviction under Section 302(b), PPC, the death sentence awarded to both the appellants is converted into that of imprisonment for life. The benefit of Section 382(b), Cr.P.C, shall, of course, be given to the appellants. The sentence of compensation awarded to both the appellants in terms of the judgment of the learned trial Court is maintained. Similarly, the conviction and the sentence awarded to
both the appellants under Section 324, PPC is also maintained.
Death sentence is not confirmed. Murder Reference is answered in negative.
I
J
17. With the said modification in the sentence, this Appeal stands disposed of.
(Sh.A.S.) Appeal disposed of
Present: Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ.
MUHAMMAD AKMAL & another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 784 of 2002 & M.R. No. 405 of 2002, heard on 7.7.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/324/337-F(i)/34--Conviction and sentence--Challenge to--Double murder--Neither time nor venue of occurrence was denied--Controversy between parties, stands admitted by both sides--Only point of difference between parties is that according to prosecution, appellants had attacked complainant-party, whereas, according to appellants, it was complainant-party, which being aggrieved of fact of pronouncing divorce by appellant to his wife i.e. daughter of complainant--Complainant-party, in fact, had a strong motive to attack appellants, whereas appellants had no reason to launch an attack on complainant-party--Medical evidence is in line with ocular evidence--No major contradiction between medical evidence and ocular evidence--Both eye-witnesses were injured witnesses, therefore, their presence at time and place of occurrence, cannot be disbelieved. [P. 470] B, C & D
Appreciation of Evidence--
----Prosecution's case rests upon medical and ocular evidence alongwith the evidence of motive and recovery of weapons of offence--Held: Broad features of the case are that neither time nor venue of the occurrence is denied. [P. 469] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 121--Burden of proof--Plea of self-defence--After raising the plea of self-defence by appellants, burden of proof shifted on appellants in view of provisions of Art. 121 of Qanun-e-Shahadat Order, 1984, but appellants failed to discharge said burden--Similarly, they did not produce any witness in support of plea of self-defence raised by them--So, charge of double murder stands proved against both appellants.
[P. 471] E & F
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-F(i) & 34--Conviction and sentence recorded against accused--Challenge to--Mitigating circumstances--Nevertheless, prosecution has not come with clean hands, rather both parties have tried to suppress real facts and have tried to minimize role played by each of them during occurrence--Admittedly, hostility prevailed between both parties due to fact that one appellant had divorced complainant's daughter--Both parties suppressed real and immediate cause of occurrence--Both parties did not come forward with true story about encounter and genesis of fight is not clear--Both parties were determined in withholding reality and truth from Court--There are mitigating and extenuating circumstances necessitating commutation of death sentence awarded to both appellants to one of imprisonment for life--Appeal disposed of. [Pp. 472 & 473] G, H, I & J
PLD 1996 Lahore 402, 1999 SCMR 637, 1999 SCMR 803, 1999 SCMR 1937, 1992 SCMR 1647, 1994 SCMR 1733 and 1992 SCMR 320, rel.
Kh. Waseem Abbas, Advocate for Appellants.
Mr. Arif Karim, D.P.G. for State.
Date of hearing: 7.7.2008.
Judgment
Hasnat Ahmad Khan, J.--Muhammad Akmal and Muhammad Ajmal both appellants, along with their co-accused, namely, Mst. Saleema Bibi and Muhammad Akbar, were tried by the learned Additional Sessions Judge, Sialkot, in case FIR No. 76/1999 dated 04.06.2000, registered at Police Station Qila Kalarwala, District Sialkot, in respect of the offences under Section 302/324/337-F(i)/34, P.P.C. Vide his judgment dated 9-5-2002, the said learned Addl. Sessions Judge found both the appellants guilty for the murder of Guftar Ahmad and Muhammad Aslam and convicted both of them under Section 302, PPC on two counts, each. Both the appellants-accused were also convicted u/S. 324, PPC for making an attempt to commit the murder of Muhammad Jamil, PW-3 and were awarded with the sentence of 10 years R.I, each. They were also directed to pay Rs. 50,000/- each, on two counts, to the legal heirs of each of the deceased, or in default of payment thereof, they were ordered to undergo further six months S.I. The appellants were also given the benefit u/S. 382-B, Cr.P.C. However, the learned trial Court acquitted Muhammad Akbar and Mst. Salima Bibi of the charge.
2. Feeling dissatisfied with the judgment of the learned trial Court, the appellants have challenged their conviction and sentence through the instant Cr. Appeal No. 784/2002, while the trial Court has sent a reference (M.R. No. 405/2002) for the confirmation or otherwise of the death sentence, awarded by it to Muhammad Akmal and Muhammad Ajmal-appellants. This single judgment will dispose of both the said matters.
3. Succinctly, the prosecution's story, as disclosed by the complainant-Muhammad Yaqub in his statement (Ex.PA), which was later on reduced into FIR (Ex.PA/1), was to the effect that, a month prior to the occurrence, Muhammad Akmal-appellant had divorced complainant's daughter, namely Mst. Naheed Akhtar Mst. Samina Firdous, another daughter of the complainant, who was married in village Dhoda, was constructing her house and for her help, complainant and all his family members had gone to that village. On 3-6-2000, one day prior to the occurrence, due to the illness of complainant's daughter, his wife and son Guftar Ahmad (deceased) went to see her (complainant's daughter) in village Muzaffar. Complainant's wife stayed with her daughter, while his son, who was returning back to village Dhoda, came across Akmal and Ajmal-appellants, who gave him punch blows near their Peter Engine. Guftar Ahmed (deceased) told his father about that incident. On 4-6-2000, complainant, along with his son Guftar Ahmad (deceased), Muhammad Jamil (son-in-law) and his daughter, Mst. Samina Firdaus, was going to village Muzaffar to see his ailing daughter Rahat Afzaal as well as to enquire about the incident from Akmal-appellant and others in the presence of the respectables of the village, that as the relations between complainant and Akmal-appellant had come to an end after the latter had divorced the former's daughter, then why did he (Akmal-appellant) tease the complainant's son. When all of them reached near the Peter Engine, Muhammad Akbar-accused, seeing the complainant-party, ran towards his house. At about 10.00 a.m, when the complainant along with others reached near the house of his son-in-law, namely, Muhammad Aslam, Muhammad Akmal-appellant, armed .12 bore, double barrel gun, Muhammad Ajmal-appellant, armed with pistol, Muhammad Akbar, equipped with a hatchet and Mst. Saliman Bibi, equipped with a baton/staff, abusing and raising lalkaras, came there. Hearing the noise, Surayya Bibi wife of the complainant and Muhammad Aslam, his son-in-law, came out of the house to the street. Akmal-appellant fired with .12 bore, double barrel gun at Guftar Ahmad (deceased), which hit on the right side of his belly near his navel as well as near right thigh, right arm and backside of one hand, who fell down on the ground, soaked in blood. Ajmal-appellant fired with pistol at Muhammad Aslam (complainant's son-in-law), which hit him on the right side of his belly as well as under the armpit, and he fell down on the ground, as well, soaked in blood. In that position, Muhammad Akbar hit him with the backside of hatchet on his left shoulder. Then Mst. Saliman Bibi also hit him with the baton on his left arm. Then Ajmal-appellant fired from his pistol at Muhmmad Jamil (complainant's son-in-law), which hit him, on the front side of his belly. Then Muhammad Akmal-appellant fired with 12 bore pistol, which hit Muhammad Jamil up and down on the left side of his chest, drenched in blood he fell down on the ground. The complainant also suffered injuries on various limbs of his body, while snatching fire-arm weapons/hatchet from the accused/appellants. The occurrence was seen by Mst. Samina Bibi, daughter and Mst. Surayya Bibi, wife of the complainant as well as many other peoples of the village. The accused fled from the spot, raising lalkaras. Guftar Ahmed, son and Muhammad Aslam, son-in-law of the complainant, succumbed to their injuries, while he was being shifted to the hospital.
4. After the receipt of information about the incident, Ali Akbar, S.I/I.O reached Civil Hospital, Pasrur where he met with complainant, recorded his statement (Ex.PA), prepared the injuries statement of Guftar Ahmad (Ex.PS), inquest report (Ex.PT). He also prepared the injuries statements of Muhammad Aslam (Ex.PV), inquest report (Ex.PW) and recorded the statement of PW.5. After inspecting the place of occurrence, he collected blood stained earth from the spot vide memos. Ex.PE and PF, prepared a rough site-plan of the place of occurrence (Ex.PY). He arrested the accused-appellants on different dates. On the pointing out of Muhammad Akmal, Muhammad Ajmal-appellants and Muhammad Akbar, he recovered the weapons of offence vide memos. Ex.PO, PP, and PQ and prepared a rough site-plan of the place of the recovery of the weapons of offence. After completing the investigation, he challaned the appellant/accused under Section 173, Cr.P.C.
5. The appellants were indicted by the trial Court on the charge of murder of Guftar Ahmad and Muhammad Aslam (slain) and the murderous assault on Jamil, PW. During the trial, the prosecution, in support of its case, produced as many as 13 witnesses.
Muhammad Yaqub-complainant entered into the witness box as PW. 1, he confirmed the contents of complaint (Ex.PA) and furnished the ocular account of the occurrence.
Muhammad Jamil came forward as PW.3 and made statement in line with PW.1.
Muhammad Yousaf appeared as PW.4 and deposed about the identification of the dead bodies of Guftar Ahmad and Muhammad Aslam (slain). He also attested recovery memos. Ex.PC and Ex.PD.
Muhammad Shahbaz, appeared as PW.9 and proved recovery of 12-bore double barrel gun (P.9) and hatchet (P. 10) vide recovery memos. Ex.PP and Ex.PQ, respectively, on the pointing out of Akmal-appellant.
Dr. Gull Nawaz, who had conducted the post-mortem examination on the dead-bodies of Guftar Ahmad and Muhammad Aslam, appeared as PW.7 and gave the detail of the injuries on their dead-bodies as under:
Injuries on dead-body of Muhammad Aslam:
(i) Fire-arm wound 3/4 x 3/4 cm margin inverted on antero lateral aspect of right chest on anterior axillary line below its middle part, hole on bunyan and blacking wound whole present (entry wound).
(ii) Fire-arm wound 1 x 1-1/2 cm margin inverted on anterior axillary fold (exit wound)
(iii) Abrasion 8 x 4 cm on left shoulder.
(iv) Abrasion 6 x 2 cm on left upper arm.
In his opinion, the cause of death in this case occurred due to haemorrhage and shock, injuries to vital organs, liver and lungs due to Injury No. 1, which was sufficient to cause death in ordinary course of-nature. He further opined that Injury No. 1 was caused by fire-arm and Injuries No. 3 and 4 were caused by blunt weapon. According to him, all injuries were anti-mortem in nature.
Injuries on the dead-body of Guftar Ahmad
(i) Contusion 2 x 1 cm on left eye-brow.
(ii) Fire-arm gutter wound 4 x 1 cm muscle deep, back of right hand.
(iii) Fire-arm gutter wound 5 x 1 cm muscle deep back of right fore arm upper part.
(iv-a) Fire-arm wound 3/4 x 3/4 cm margin inverted front of right chest 7.cm below nippal. (entry wound).
(iv-b) Fire-arm wound 1 x 1-1/2 cm margin everted back of right lower chest exit wound.
(v-a) Fire-arm wound 3/4 x 3/4 cm margin inverted on right hypochondrium 3 cm from mid line, (entry wound).
(v-b) Fire-arm wound 1x1 cm margin everted back of right lumber area upper part exit wound.
(v) Fire-arm wound 3/4 x 3/4 cm margin inverted on right ileac crest."
In his opinion, death was caused due to haemorrhage and shock caused by Injury No. 4 and 5 damaging vital organs liver and lungs and other viscera mentioned in report. According to him, both injuries were sufficient to cause death collectively and individually. He further opined that all injuries were anti-mortem. Injury No. 1 caused by blunt weapon, rest all by fire-arms.
Muhammad Riaz, C-1485, appeared as PW.8 and deposed that he had escorted the dead bodies to the hospital for the post-mortem examination. He further stated that after the post-mortem examination, he had received the last worn clothes of the deceased, which were produced by him before the I.O, who took them into possession vide recovery memo. Ex.PC and Ex.PD.
Masud Ahmad Bhatti, appeared as PW.2 and proved the site-plan prepared by him on the instructions of I.O.
Tariq Mahmood (Ex-HC-411) appeared as PW.13 and stated that he had received four sealed parcels containing blood stained earth, 12 bore double barrel gun and revolver from I.O., which were handed over by him to Muhammad Younas, C-1360, for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory, respectively.
Muhammad Sawar, ASI, entered into witness box as PW.6 and deposed about drafting of formal FIR (Ex.PA/1).
Ali Akbar, S.I/I.O appeared as PW.12 and furnished the detail of the investigation conducted by him.
6. The learned D.D.A gave up Muhammad Nawaz, HC-1173, being unnecessary and closed the prosecution's evidence, after tendering in evidence the reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Ex. PEE/1, Ex. PFF and Ex. PGG and PHH, respectively.
7. The statements of both the appellants were recorded under Section 342, Cr.P.C. Both of them denied the charge levelled against them. In answer to the question, as to why the case was registered against him and why PWs have deposed against him, Muhammad Akmal-appellant replied as under:
"The PWs are interested witnesses. They are related to each other. I divorced the daughter of complainant, therefore, the PWs have deposed against me."
In answer to the question, as to why the case was registered against him and why PWs have deposed against him, Muhammad Ajmal-appellant replied as under:
"The PWs are interested witnesses. They are related to each other and they have deposed against me as I am brother of Muhammad Akmal who divorced the daughter of complainant."
The other accused toed the line of defence adopted by Muhammad Akmal and Muhammad Ajmal-appellants.
8. The appellants did not opt to appear under Section 340(2), Cr.P.C. After the conclusion of the trial the learned trial Court convicted and sentenced both the appellants as above. However, Muhammad Akbar and Mst. Saliman Bibi, co-accused were acquitted of the charge.
9. In support of this appeal, Waseem Abbas, Advocate who has been appointed as defence counsel due to non-appearance of the learned counsel for the appellants, has contended that the prosecution has failed to prove its case beyond shadow of doubt; that considering the fact that complainant's daughter namely, Mst. Naheed Akhtar, had been divorced by Akmal-appellant, it was the complainant-party, which had a motive to launch an attack upon the accused-party, which had no occasion to launch murderous attack upon the complainant party; that the medical evidence outrightly contradicted the prosecution's case, inasmuch as, the dimensions of injuries received by both the deceased as well as the injured PW, show that the same had been caused with only one fire-arm weapon; that, although, the occurrence took place quite near the house of Muhammad Aslam, one of the deceased, yet no crime-empties, were recovered from the spot; that this omission on the part of investigating officer was a deliberate attempt to conceal the fact that, in fact, only one fire-arm weapon was used during the course of occurrence; that the fact that the accused were arrested on the very next day of the occurrence, shows that they had appeared before the investigating officer themselves with a plea of self-defence; that the plea of self-defence raised by the accused through suggestions put to the eye-witnesses, is more probable and plausible than that of the prosecution's version; that, in fact, the complainant-party had launched a murderous assault when the accused were passing in front of the house of Muhammad Aslam-deceased; that the fact that both the accused had received the injuries on their persons during the same occurrence, belies the case of the prosecution; that the injuries suffered by both the accused, were intentionally suppressed by the prosecution while putting the legal machinery into motion and that in the said backdrop, both the accused are entitled to acquittal.
10. Conversely, the learned DPG has contended that the prosecution has successfully proved its case through the evidence of motive, medical evidence, recoveries of weapons of offence and the ocular evidence, including the statement of injured witness, namely, Muhammad Jamil; that the contention that all the injuries received by both the deceased as well as the injured witnesses were of the same dimension, is against the record; that the defence plea that all the injuries were caused by Akmal-appellant after snatching the pistol from the complainant-party, is neither believable nor plausible; that, although, the said plea was raised through suggestions put to the eye-witnesses, yet such a defence plea was neither raised by the appellants while making their statements nor did they opt to appear in their own defence under Section 340(2), Cr.P.C; that after raising a plea of self-defence, the burden of proof shifted to the appellants in view of Article 121 of Qanun-e-Shahadat Order, 1984 but the accused-appellants failed miserably to discharge the said burden, therefore, their plea of self-defence is liable to be rejected outrightly and that since the appellants committed the murder of two innocent people and caused serious injuries to the third one, therefore, they are not entitled to any concession in the matter of sentence and, therefore, the death sentence, awarded to them by the learned trial Court, merits confirmation.
11. After giving an ardent hearing to the respective learned counsel for either of the parties and going through the record, we have observed that prosecution's case rests upon medical and ocular evidence along with the evidence motive and recovery of weapons of offence. The broad features of the case are that neither time nor the venue of the occurrence is denied. The only controversy between the parties is that according to the prosecution, it was the accused-party, who had launched a murderous assault on the complainant-party, whereas, according to the appellants, they were made victims of assault by the complainant-party, when they (appellants) were passing near the house of Aslam-deceased. It is further claimed by the appellants that Akmal-appellant after snatching a pistol from the assailants, had fired in order to save his life.
12. Insofar as the motive is concerned the basic fact which led to the controversy between the parties, stands admitted on both the ends. The only point of difference between the parties is that according to the prosecution, the appellants had attacked the complainant-party, whereas, according to the appellants, it was the complainant-party, which, being aggrieved of the fact of pronouncing divorce by Akmal-appellant to his wife, i.e. Mst. Samina Firdous, daughter of the complainant, the latter, in fact, had a strong motive to attack the appellants, whereas the appellants had no reason to launch an attack on the complainant-party.
13. Now, adverting to the medical evidence, the same was furnished by Dr. Gul Nawaz (PW.7), who had conducted autopsy on the dead-bodies of Muhammad Aslam and Guftar-deceased and medically examined Muhammad Jamil (PW.3) and Muhammad Yaqoob (P.W.1). We have minutely gone through the statement of the said doctor and have come to the conclusion that the same is in line with the ocular evidence. There is no major contradiction between the medical evidence and the ocular evidence. Therefore, the appellants cannot have any benefit on the basis of minor inconsistencies, especially, when the prosecution's evidence is supported by the statements of two injured eye-witnesses, namely, Muhammad Yaqub (PW.1) and Muhammad Jamil (PW.3). It would be relevant to point out here that during the cross-examination, the defence did not challenge the presence of the said witnesses at the time and place of occurrence.
14. Insofar as the ocular-evidence is concerned, as both of the eye-witnesses, are injured witnesses, therefore, their presence at the time and place of occurrence, cannot be disbelieved, especially, when their presence at the relevant time and place has not been seriously challenged by the defence. However, the stamp of injuries on the persons of the injured P.Ws by itself cannot establish that the said witnesses are truthful also. So, the only thing to be seen is, whether the eye-witnesses are trustworthy and reliable and if so, whether, they are telling the truth in full measure. To examine this aspect of the case, we have gathered that the salient features of the prosecution's story have not been denied by the appellants. We have further observed that, though, the appellants, while making their statements under Section 342, Cr.P.C, did not raise a plea of self-defence, yet the fact remains that while cross-examining both the eye-witnesses, the plea of self-defence was duly raised by the appellants, who claimed that after being attacked by the complainant-party while passing in front of the house of Aslam-deceased, Akmal-appellant had fired with the pistol, which had been wrested by him from the complainant-party, in self-defence. So, primarily, it has become a case of two versions. Therefore, we have to examine as to which of the version is more plausible and nearer to the truth. In this regard, we have gathered that after raising the plea of self-defence, the burden of proof shifted on the appellants in view of the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984. But the appellants failed to discharge the said burden, inasmuch as, neither they opted to advance such a plea while making their statements under Section 342, Cr.P.C nor did they appear under Section 340(2), Cr.P.C. Similarly, they did not produce any witness in support of the plea of self-defence raised by them. Moreover, the extensive damage, suffered by the complainant-party in this encounter, belies the said self-defence plea, for, multiple fire-arm wounds were caused to both the deceased along with serious fire-arm injuries suffered by Muhammad Jamil, in addition to this, Muhammad Yaqub also received two injuries during the occurrence. In sharp contrast to the numerous injuries, received by the complainant-party, Muhammad Akmal-appellant, received only one incised wound on his cheek, therefore, we are not inclined to accept the plea of self-defence, as raised by the appellants. Insofar as, the question of participation of both the appellants is concerned, the same cannot be doubted, because, according to their own showing, both of them had received injuries during the occurrence. Even, otherwise, they have not denied their presence at the time of occurrence.
E
15. We have come to the conclusion that naturally, both the injured witnesses were present at the time of occurrence and they did witness the occurrence. We have further concluded that the appellants failed to establish their plea of self-defence through their statements. The attending circumstances also belie the plea of self-defence. Therefore, the charge of double murder stands proved against both the appellants. Nevertheless, we have concluded that the prosecution has not come with clean hands, rather, both the parties have tried to suppress the real facts, which became the immediate cause of occurrence. From the prosecution's evidence itself it is established that Muhammad Akmal-appellant did receive a sharp-edged injury during the same occurrence. Consequently, he was medically examined by Dr. Gul Nawaz (PW.7), who proved the Medico-Legal Report, pertaining to said appellant-accused, as Ex.PL. The attending circumstances further depict that Muhammad Ajmal-appellant also received two injuries in the same occurrence. Though, neither the prosecution nor the defence tried to prove the said fact by producing the Medico-Legal Certificate pertaining to Ajmal-appellant, nor was Dr. Shehzad who had medically examined Muhammad Ajmal-appellant, produced by either of the
F
parties. However, on perusal of the record, we have found that the same contains the said Medico Legal Report, which shows that the police got him (Ajmal-appellant) examined medically. The said report further shows that he was produced for his medico-legal examination by Muhammad Arshad-Constable. The duration of the injuries suffered by him is synchronous/compatible with the time and date of the occurrence. Moreover, Ali Akbar, Sub-Inspector, the Investigating Officer (PW.12), during his examination-in-chief, categorically stated that at the time of arrest, Ajmal-appellant was found in injured condition. He further stated that he had prepared his injury-statement (Ex.PZ) and had referred him to the Civil Hospital for his medical examination. The said facts clearly depict that the prosecution made a deliberate attempt to suppress the injuries suffered by both the appellants. The said conclusion of our's gets support from the fact that Saliman Bibi, another injured witness, who certainly was also one of the star-witnesses, was withheld by the prosecution. She was given up as an unnecessary witness, which is not understandable. Moreover, the prosecution could have easily explained the injuries suffered by the accused, by stating that during the course of their defence, minor injuries were caused by them to the appellants but they did not opt to do so. This fact again make one raise his eye-brow about the bona fides of the prosecution. The said circumstances clearly indicate that both the parties have tried to minimize the role played by each of them, during the occurrence. Therefore, we have gathered that the immediate cause of the occurrence is still shrouded in mystery. So, in these circumstances, while applying the litmus test laid down by the Hon'ble Supreme Court in the case of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), we can draw inferences that properly flow from the evidence and circumstances. Admittedly, hostility prevailed between both the parties due to the fact that Akmal-appellant had divorced complainant's daughter. In this backdrop, a day prior to the occurrence, Akmal and Ajmal-appellants, allegedly, thrashed Guftar-deceased, who complained to his father regarding the said incident. According to the contents of the F.I.R, on hearing the said complaint, the complainant decided to enquire from the accused-party as to why were they teasing the complainant party, though, the relationship between the parties had terminated since Akmal-appellant had divorced the complainant's daughter. A perusal of the F.I.R further reveals that on the day of occurrence, when the complainant, along with his associates, was passing near the Peter Engine of the accused-party, Muhammad Akbar (acquitted accused), ran towards his house, whereafter, the accused-party, allegedly, attacked the complainant-party. Similar statement was made by PW.1, while appearing before the learned trial Court. The said portion of the evidence shows that after smelling a foul-play at the hands of the complainant-party, the accused-party might have prepared for an encounter.
16. Be that as it may, in the given facts and circumstances, we have concluded that both the parties suppressed the real and immediate cause of the occurrence. We have further concluded that both the parties did not come forward with the true story about the encounter, and the genesis of the fight is not clear. It cannot be said with certainty as to what transpired between the parties prior to the occurrence and which of the parties took the initiative, especially, when, admittedly, the occurrence took place near the house of Muhammad Aslam-deceased. According to the complainant-party, after noticing the presence of the complainant-party in their village, the appellants and the acquitted co-accused had launched an attack resulting in this unfortunate occurrence. Whereas, according to the accused-party, the occurrence took place when they were attacked while passing in front of the house of Muhammad Aslam-deceased, where the complainant-party had gathered to take revenge of the previous incident, from the accused. The injuries suffered by both the appellants were intentionally suppressed by the complainant party. All the facts, as said before, show that both the parties were determined in withholding the reality and the truth from the Court, therefore, while relying upon the aforesaid judgment and the cases of Muhammad Iqbal v. The State (PLD 1996 Lahore 402), Naubahar v. The State (1999 SCMR 637), Ahmad Khan v. Nazir Ahmad (1999 SCMR 803), Husnain Shah v. The State (1999 SCMR 1937), Shahid Raza v. The State (1992 SCMR 1647), Muhammad Yousaf v. The State (1994 SCMR 1733) and Abbas v. State (1992 SCMR 320), we have concluded that there are mitigating and extenuating circumstances necessitating the commutation of death sentence awarded to both the appellants to one of imprisonment for life. Consequently, while maintaining the conviction under Section 302(b), PPC, the death sentence awarded to both the appellants is converted into that of imprisonment for life. The benefit of Section 382(b), Cr.P.C, shall, of course, be given to the appellants. The sentence of compensation awarded to both the appellants in terms of the judgment of the learned trial Court is maintained. Similarly, the conviction and the sentence awarded to
both the appellants under Section 324, PPC is also maintained.
Death sentence is not confirmed. Murder Reference is answered in negative.
I
J
17. With the said modification in the sentence, this Appeal stands disposed of.
(Sh.A.S.) Appeal disposed of
No comments:
Post a Comment