MUHAMMAD ZAFAR and another vs RUSTAM ALI and others

1. MANZOOR AHMAD MALIK, J.--- Criminal Appeal No. 311-L of 2009: Mazhar Khan, Muhammad Yaqoob, Muhammad Hassan, Muhammad Ayyub, Mushtaq Ahmad, Rustam Ali, Muhammad Siddique, Muhammad Ashraf, Muhammad Latif, Muhammad Ali, Mst. Taj Bibi, Muhammad Ramzan and Muhammad Tahir were indicted in case FIR No.47/2003 dated 24.03.2003 offence under sections 302, 324, 109, 148 and 149, P.P.C. registered at Police Station McLeod Gunj, Tehsil Minchinabad, District Bahawalnagar. They faced trial before the learned Additional Sessions Judge, Bahawalnagar. Vide judgment dated 22.12.2003, Rustam Ali (respondent No.1) was convicted under section 302(b)/34, P.P.C. as tazir and sentenced to death. He was also made liable to pay Rs. 50,000/- as compensation to legal heirs of Maqsood Ali (deceased) in default thereof to further undergo six months' R.I. Muhammad Yagoob (respondent No.2) was also convicted under section 302(b) read with section 34, P.P.C. as tazir and sentenced to life imprisonment. He was also made liable to pay Rs. 50,000/- as compensation to the legal heirs of Maqsood Ali (deceased) in default thereof to further undergo six months' R.I. Benefit of section 382- B, Code of Criminal Procedure was extended to Muhammad Yaqoob (respondent No.2). Their remaining eleven co-accused namely Muhammad Ali (respondent No.3), Muhammad Siddique (respondent No.4), Muhammad Ashraf (respondent No.5), Muhammad Hassan, Mushtaq Ahmad, Muhammad Latif, Mazhar Khan, Muhammad Ayub, Mst. Taj Bibi, Muhammad Ramzan and Muhammad Tahir were acquitted by the learned trial court while extending them benefit of doubt.

2. 2.Aggrieved of their convictions and sentences recorded by the learned trial Court, Rustam Ali (respondent No.1) filed Criminal Appeal No.410 of 2004, whereas Muhammad Yaqoob (respondent No.2) filed Criminal Appeal No.19 of 2004. Muhammad Zafar, complainant/ appellant filed Criminal Appeal No.10 of 2004 against acquittal of Muhammad Ali, Mazhar Khan, Muhammad Hassan, Muhammad Ayub, Mushtaq Ahmad, Muhammad Siddique, Muhammad Ashraf, Muhammad Latif, Mst. Taj Bibi, Muhammad Ramzan and Muhammad Tahir. The learned trial court sent Murder Reference No.9 of 2004 for confirmation or otherwise of the sentence of death awarded to Rustam Ali (convict/respondent No.1). All these matters were heard together by a learned Division Bench of Lahore High Court Bahawalpur Bench and through the impugned judgment, appeal against acquittal filed by the complainant was dismissed. Criminal Appeal No.19 of 2004 filed by Muhammad Yaqoob (respondent No.2) was allowed and he was acquitted of the charge, whereas Criminal Appeal No.410 of 2004 filed by Rustam Ali (respondent No.1) was disposed of converting his death sentence into life imprisonment. Benefit of Section 382-B, Code of Criminal Procedure was extended to respondent No. 1. The amount of compensation and the sentence of six months'

3. R.I., in default of the amount of compensation as ordered by the learned trial court was also maintained by the learned appellate court. Murder Reference No.09 of 2004 was answered in the negative and the sentence of death awarded to Rustam Ali convict-respondent No.1 was not confirmed. Feeling aggrieved of the judgment of the learned appellate court, Muhammad Zafar preferred Criminal P.L.A. No.621-L of 2008 wherein leave was granted vide order dated 16.09.2009 only to consider the effect of acquittal of Muhammad Yaqoob, Muhammad Ali, Muhammad Siddique and Muhammad Ashraf (respondents Nos.2 to 5).

4. 3.After hearing learned counsel for the appellant, learned Additional Prosecutor General for the State and perusal of the record, it has been observed by us that respondents Nos.3 to 5 namely Muhammad Ali, Muhammad Siddique and Muhammad Ashraf were rightly acquitted by the learned trial court. Along with respondents Nos.3 to 5 their eight other co-accused were also acquitted and their acquittal was not assailed any further by the complainant or by the State.

5. Consequently acquittal of respondents Nos.3 to 5 was not interfered by the learned Division Bench of the Lahore High Court for valid reasons recorded in the impugned judgment. Since no active role except a proverbial lalkara was attributed A to Muhammad Yaqoob (respondent No.2), therefore, he was also rightly acquitted by the learned appellate court. With the assistance of learned counsel for the appellant and learned Additional Prosecutor General Punjab for the State we have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/ appellant and learned Additional Prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons have not been found by us to be arbitrary, capricious or fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed.

6. Jail Petition No.958 of 2009: 4.According to the office this petition is barred by 313 days. This petition has been preferred through jail against conviction of the petitioner, therefore, the delay in filing this jail petition is condoned.

7. 5.Brief facts for the disposal of this petition have been given in paras 1 and 2 of this judgment and the same are not being reproduced to avoid repetition, 6.We have heard learned counsel for the petitioner, learned Additional Prosecutor General for the State assisted by learned counsel for the complainant and have also examined the available record.

7. Rustam Ali petitioner was attributed firearm injury in the chest of Maqsood Ali (deceased). The said injury was observed by Dr Muhammad Tariq Jamil (PW.10) during the post mortem examination conducted on the dead body of Maqsood Ali (deceased), therefore, we C hold that Rustam Ali (petitioner) was rightly convicted for the murder of Maqsood Ali (deceased). But we have also observed that as many as thirteen persons were implicated in this case out of whom eleven were acquitted by the learned trial court. Criminal Appeal No.19 of 2004 filed by the complainant against acquittal of the said co-accused of the petitioner was dismissed by the learned appellate court. Muhammad Yaqoob co-convict of the petitioner who was awarded life imprisonment by the learned trial court was also acquitted by the learned appellate court.

8. Acquittal of eight co-accused of the petitioner was not assailed any further either by the complainant or by the State whereas Criminal Appeal No.311-L of 2009 filed against acquittal of Muhammad Yaqoob, Muhammad Ali, Muhammad Siddinue and Muhammad Ashraf has been dismissed in paras 1 to 3 of this judgment. Therefore, out of thirteen accused persons twelve have been acquitted by the learned Courts below except the petitioner.

9. 8.The learned appellate court in the impugned judgment (at page 20 of the paper book) observed that none of the parties came with whole truth and both the parties had tried to twist and mould the story of occurrence in its favour, thus, the real igniting cause and as to what immediately preceded the occurrence, remained suppressed by respective parties. The learned Division Bench of Lahore High Court Bahawalpur Bench in the impugned judgment (at para 20 of the paper book) observed as under:- ..On the other hand, when we take up the defence version put by Muhammad Yaqub/appellant, it is more near to the reality that in fact Muhammad Yaqub along with his some servants would be present at the place of occurrence and complainant party proceeded towards the disputed place and restrained them from irrigating the disputed land and after altercation between the parties it formed the igniting cause..."

10. 9.Upon our own reappraisal of the evidence available on record. we agree with the findings recorded by learned appellate court. But the question arises whether the circumstances of the case warrant conviction of the petitioner under section 302(b) or 302(c), P.P.C. After considering all the available material particularly the observations of the learned High Court as alluded to in Para- 8 above, we are of the considered opinion that the case against the present petitioner is covered under section 302(c), P.P.C. and not under section 302(b), P.P.C. Therefore, this petition is converted into an appeal and the same is hereby partly allowed. Conviction recorded against Rustam Ali (appellant) under section 302(b), P.P.C. by the learned Courts below is converted into one under section 302(c), P.P.C. and he is sentenced to twenty years rigorous imprisonment. He shall also pay compensation of Rs.50,000/ - (rupees fifty thousand only) to the legal heirs of Maqsood Ali (deceased) under section 544-A, Code of Criminal Procedure, in default whereof he shall undergo simple imprisonment for further six months. The appellant shall also be entitled to the benefit of section 382-B, Code of Criminal Procedure. The impugned judgments of the learned Courts below stand modified accordingly.