MUHAMMAD YASEEN Versus THE STATE
RUSTAM, ALI MALIK, J. ---Through this single judgment wt: intend to dispose of Murder Reference No.24 of 1996 and Criminal Appeal No.854 of 1995, both arising out of judgment dated 3-12-1995 passed by learned Additional Sessions Judge, Sargodha.
2. The F.I. R. in this case was lodged by Rehmat Ali complainant, wherein he had stated that on the night of occurrence i.e. 11-12-1991 while he was sleeping in the house of his brother-in-law Ghulam Habib at Ishtiaqabad, around 2-15 a.m., he got up after hearing the noise and saw that four persons were beating 'his sister Mst. Rashidan and were demanding that she should produce whatever she had. Ghulam Habib, the brother-in-law of the complainant was trying to rescue her. The complainant came out in the courtyard running, where there was street light and he identified Shabbir alias Shero Pathan armed with Churri, Muhammad Shafi Arain armed with pistol, Yasin Faqir armed with a pistol and Arif Butt Halwai armed with double barrel gun .12 bore. Ghulam Habib handed over the bag containing prize bonds of the denomination of Rs.500 each and which were of total value of Rs.3,00,000 and an amount of Rs.75,000 in cash to the accused. The complainant beseeched the accused to spare them. In the meanwhile, Nasar Iqbal and Zafar Iqbal the sons of Ghulam Habib also came out of their rooms. Nasar Iqbal caught hold of Yasin accused in his Japha but Arif Butt accused tired with the gun .12 bore hitting Nasar Iqbal on his right flank, who fell down. Ghulam Habib tried to catch hold of Shero accused but he gave him Churri blows. Ghulam Habib caught hold of the hand of Shero of which he was holding Churri, whereupon Shafi accused fired at Ghulam Habib but it hit Shero accused in his right thigh. Both Habib and Shero grappled with each other. Zafar Iqbal tried to save his father and attempted to snatch Churri from Shero but Shero accused gave him Churri blow as well. Yasin Faqir accused fired with his pistol and a shot fired by him hit Zafar Iqbal on his right shoulder while two shots fired by him hit Shafi accused who was trying to rescue Shero. Arif Butt and Yasin Faqir accused picked up the bag containing prize bonds and cash and fled away after climbing the roof through stairs. A number of residents of Mohallah gathered there. Nasar Iqbal succumbed to the injuries. Zafar Iqbal and Ghulam Habib were sent to the hospital while Shabbir alias Shero and Shafi were lying at the spot in injured condition. The complainant alleged that all the accused in consultation with each other had committed the dacoity in the house of his brother-in-law Ghulam Habib and had killed his nephew Nasar Iqbal and had also injured Zafar Iqbal and Ghulam Habib.
3. After the investigation the challan was submitted in the Court. However the present appellant namely Muhammad Yasin absconded. As a result of the trial one of the accused namely Arif Butt was sentenced to death and was then executed. It may be mentioned here that two of the accused namely Shabbir alias Shero and Shafi had also died subsequently.
4. After the arrest of Muhammad Yasin accused appellant, the proceedings were initiated against him as well and he was formally charged by the learned Judge Speedy Trial Court, Rawalpindi, Camp at Lahore on 22-6-1994. He pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. In this case the prosecution examined as many as 14 P.Ws. On 31-10-1995, the learned Prosecutor closed the prosecution evidence. Thereafter the statement of the accused was recorded under section 342, Cr.P.C. and wherein he denied all the incriminating circumstances. However, he did not produce any evidence in defence nor did he make statement on oath under section 340(2), Cr.P.C. On the conclusion of the trial, the learned Additional Sessions Judge, Sargodha convicted the appellant under section 397, P.P.C. and sentenced him to seven years' R.I. The appellant was also convicted under section 302(a), P.P.C. on three counts and was sentenced to death as Qisas He was further directed to pay Rs.50,000 as compensation under section 544-A, Cr.P.C.
6. Aggrieved of the judgment dated 3-12-1995 the appellant came up in appeal (Criminal Appeal No.854 of 1995). The learned trial Court also sent a reference (Murder Reference No.24 of 1996). Both these matters are being disposed of through this single judgment.
7. While the appeal was pending before this Court an application under sections 435/345 and 561-A, Cr.P.C. was filed before this Court on behalf of Muhammad Yasin appellant. On the basis of the said application, after preliminary hearing, this Court directed the learned Sessions Judge, Sargodha to submit report about the genuineness of the compromise. The report dated 6-2-2002 prepared by the learned Additional Sessions Judge has been received and according to which the legal heirs of the deceased, except the minor legal heirs of Nasar Iqbal deceased, have compromised with the accused/appellant and that the compromise was genuine. According to the report of the Additional Sessions Judge, Yasir Iqbal, Qaisar Iqbal (brothers) and also Naheed and Azra, the sisters of Nasir Iqbal were minors.
8. The learned counsel for the appellant in support of the appeal submits that there were three deceased and two injured P.Ws. The names of the deceased are Shabbir alias Shero, Nasar Iqbal and Muhammad Shafi. Learned counsel submits that so far as Shafi and Shabbir alias Shero are concerned, they are co-accused of the present appellant and all the legal heirs of Shabbir and Muhammad Shafi deceased have forgiven the appellant in the name of Almighty Allah, without getting any compensation. He further submits that so far as Nasar Iqbal deceased is concerned, he belongs to the complainant party. Although the adult legal heirs of the deceased have forgiven the appellant in the name of the Almighty Allah without getting any compensation, so far as the minors are concerned, the learned counsel for the appellant submits that no 'Diyat' amount has been deposited in their names. He further submits that so far as Ghulam Habib and Zafar Iqbal, injured P. Ws. are concerned, Ghulam Habib died before the trial while Zafar Iqbal had appeared before the trial Court and submitted that he has forgiven the appellant. He further submits that another co-accused of the appellant was Arif Butt, who was awarded death sentence and was then executed. He further submits that the present appellant was arrested on 24-3-1993. The adult legal heirs of Nasar Iqbal have forgiven the appellant. Now the question remaining in the field is about the 'Diyat; amount only and in these circumstances the death sentence awarded to the appellant cannot be confirmed and the conviction, if any, can be recorded by this Court as required under section 311, P. P.C.
9. The learned A.A.-G. assisted by the learned counsel for the State concedes the submissions made by the learned counsel for the appellant.
10. After having heard the learned counsel for the parties we set aside the death sentence awarded to the appellant on all the three counts. So far as the sentence regarding Shabbir alias Shero and Muhammad Shafi deceased is concerned, it is totally set aside. Now there remains in the field the sentence regarding the murder of Nasar Iqbal. All the legal heirs of Nasar Iqbal deceased except the minors have pardoned the appellant. So death sentence awarded to the appellant is also not confirmed and the death sentence awarded under section 302(b), P.P.C. is converted into 14 years' R.I., under section 311, P.P.C. He will also pay the 'Diyat' amount, which was prevalent at the time of occurrence to the minor legal heirs, in the shape of Defence Saving Certificates and while issuing the Defence Saving Certificates a note shall be recorded by the concerned Manager on the same that those shall not be encashed unless the minors attain the age of majority. So far as the injured P.Ws. the concerned, Zafar Iqbal P.W. has also forgiven the appellant. Ghulam Habib P.W. had not appeared before the trial Court because he died his natural death before the trial. The appellant is also granted benefit under section 382-B, Cr.P.C.
11. With this modification, the above said Murder Reference (No.24 of 1996) and Criminal Appeal (No.854 of 1995) stand disposed of death sentence of the appellant on all the three counts is not confirmed.
12. Murder Reference is replied in the negative.
H.B.T./M-1744/L Order accordingly.