Malang Shah vs Muthair Shah etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.367-P/2013 Date of hearing: 29.01.2015

Date of Announcement: 12.02.2015

Appellant (s) : Malang Shah by Barrister M. Zahoor ul Haq.

Respondent (s) : Muthair Shah alias Tahir Shah by Mr. Nisar Khan, Advocateand the State by Mian Arshad Jan AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- At a trial held by learned Additional Sessions Judge Shabqadar Camp Court Tangi, Charsadda, appellant Malang Shah was found guilty of various offences, thus, vide judgment dated 20.02.2014, he was convicted and sentenced as under:- Under Section 302 PPC:- Penalty of death on two counts for the murder of Mst. Bushra and Umar Khan deceased. To be hanged by neck till he is declared dead and to pay Rs.1,00,000/- as compensation in terms of S.544-A Cr.P.C. to LRs of each deceased or in default thereof to undergo 06 months S.I. further.

Under Section 324 PPC:- To undergo 05 years simple imprisonment on two counts for attempting at the lives of complainant and *M.Siraj Afridi P.S. D

PW and Mutawasil Shah and to pay a fine of Rs.50,000/- to each injured or in default thereof to undergo 04 months S.I. further. Under section 337-F(v):- To pay Daman amounting to Rs.50,000/- to injured Mutahir Shah and to suffer two years S.I. as Ta’zir. Under Section 337-F (iii) PPC:- To pay Daman amounting to Rs.50,000/- and to suffer 02 years S.I. as Ta’zir.

The sentences have been directed to run concurrently and benefit of S.382-B Cr.P.C. has been extended to the appellant-convict.

2.Being aggrieved from his conviction and sentences, appellant-convict Malang Shah, has preferred the instant criminal appeal, while the learned Trial Court has sent Murder Reference No.10-P/2013, in terms of Section 374 Cr.P.C. for confirmation of death sentence of the appellant-convict. As both are stemming out of the same judgment of the learned Trial Court, therefore, are going to be disposed of through this common judgment.

3.The prosecution case as enumerated in First Information Report is that on 13.07.2009, complainant Tahir Shah (PW.8), in injured condition, reported to local police in RHC, Jamal Abad, that on the fateful day he was on his way *M.Siraj Afridi P.S. D

to house from his shop and at 12.00 noon, when he reached near his house, Malang Shah (appellant-convict herein) along with his brother Niazbin Shah (absconding co-accused), duly armed with firearms, emerged there and started arguments/altercation with him; that on commotion, his father Umar Khan deceased, brothers Mutawasil Shah (PW.11), Akhtar Shah, Hanif Shah (abandoned) and sister Mst. Bushra, came out of the house. In the meantime, both the accused, opened indiscriminate firing at them with intention to commit their Qatl-e-Amd, resultantly, his father Umar Khan and sister Mst. Bushra got hit and died on the spot while he, his brothers Hanif Shah and Mutawasil Shah sustained firearm injuries, whereas his other brother Akhtar Shah, luckily remained unscathed. Motive behind the occurrence is stated to be a dispute over a house. In addition to complainant, the occurrence is stated to have been witnessed by PWs Akhtar Shah, Mutawasil Shah and Hanif Shah. Report of complainant was reduced into writing in the shape of murasila Exh.PA/1 by Muhammad Anwar Khan SI, on the basis of which, FIR No.289 dated 13.07.2009 was *M.Siraj Afridi P.S. D

registered under sections 302/324/34 PPC at Police Station Mandani District Charsadda. Muhammad Anwar Khan SI (PW.4) prepared injury sheet of injured Tahir Shah, Hanif Shah and Mutawasil Shah Exh.PW.4/1 to Exh.PW.4/3. He also prepared injury sheets and inquest reports of deceased Mst. Bushra and Umar Khan deceased Exh.Pw.4/4 to Exh.PW.4/7, shifted their dead bodies to the mortuary for autopsy under the escort of Constable Ikram Ullah and referred the injured for medical examination.

Lady Dr. Afshan Shafiq (PW.1) conducted autopsy on the dead body of Mst. Bushra deceased on 13.07.2009 at 2.00 p.m and found the following:-

1.Firearm entry wound 1x 5 cm x 1x 5 cm on left side of chest posterially at medial border of left scapula.

2.Firearm exit wound 4 x 4 cm interially on the left side of chest below the medial (1/3rd of clavicle).

Opinion: According to her opinion, the deceased died due to cardio respiratory arrest because of damage to her vital organs *M.Siraj Afridi P.S. D

i.e. heart, lungs and major blood vessels, caused by firearm.

Probable time between injury and death has been observed by her as “10 minutes” and between death and postmortem as “1⁄2 hours”.

Dr. Muhammad Riaz (PW.2) conducted postmortem examination on the dead body of deceased Umar Khan on 13.7.2009 at 1.30 p.m. and found the following injuries on his person:-

1.Firearm entry wound 1x 5 cm x 1 x 5 cm on the back toward left side of left scapula with fracture left scapula.

2.Firearm exit wound No.1 intero lateral wall of left side of chest below left axilla 3 x 3 cm in size.

3.Firearm entry wound on the posterial aspect of right thigh 1x5 cm x 1 x 5 cm in size.

4.Firearm exit wound (of wound NO.3) on intero medial aspect size 2x 5, 2x 5 cm.

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Opinion: According to opinion of the Medical Officer, the deceased died due to cardio respiratory arrest because of damage to his heart, lungs and major blood vessels caused by firearm.

Probable time between injury and death has been given as “about 10 minutes” and between death and postmortem as “one hour”.

On the same day he also examined injured Hanif Shah and found the following injury on his person:-

A firearm crush wound on left face and neck with loss of muscle and skin. After administering first aid, the patient was referred to LRH Peshawar.

Kind of weapon: Firearm

Nature. Grievous.

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The said Medical Officer also examined

injured Mutawasil Shah and found the

following on his person:-

1.A firearm entry wound on right thigh intero lateral aspect.

2.A firearm entry wound on the right buttock.

After administering first aid, patient was referred to LRH, Peshawar.

On the same day Dr. Muhammad Riaz (PW.2) examined injured Mutahir Shah and found

the following:-

1.Firearm entry wound below left scapula.

2.Firearm exit wound on left shoulder.

After first aid, the patient was referred to LRH, Peshawar. The nature of injury was found grievous.

4.Said Rahim Khan S.I. (PW.12) conducted investigation in the case. After registration of the case, he proceeded to the spot and prepared site plan Exh.PB on the pointation of eyewitness Akhtar Ali. During spot inspection, he secured bloodstained earth from the places of injured and deceased, two crime empties of 7.62 bore and single empty of *M.Siraj Afridi P.S. D

30 bore pistol, vide recovery memo Exh.PW.10/1, recorded statements of the PWs under section 161 Cr.P.C. Vide recovery memo Exh.PW.12/2, he took into possession the bloodstained last worn clothes of the two deceased as well as injured. As the accused were avoiding their lawful arrest, therefore, he initiated proceedings under sections 204 and 87 Cr.P.C. against them vide applications Exh.PW.12/3 and Exh.PW.12/4, sent the bloodstained articles to the FSL for Serologist opinion vide application Exh.PW.12/5, report whereof is Exh.PW.12/6. On completion of investigation, challan in terms of S.512 Cr.P.C. was submitted against the accused.

5.Saifullah Anjum ASHO (PW.6) arrested appellant Malang Shah, who was already arrested by local police of Takht Bhai in case FIR No.737 dated 25.12.2010 under section 381-A PPC, FIR No.13 dated 06.01.2011 under section 457/380 PPC and FIR No.39 dated 19.01.2011 under section 381-A PPC. He after fulfilling all legal formalities requisitioned the appellant from District Jail Mardan through Zamima Bey.

The appellant was interrogated by him and after completion of *M.Siraj Afridi P.S. D

necessary investigation, Noor Elahi Khan SI (PW.13) submitted supplementary challan against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as thirteen witnesses.

After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath or to produce evidence in defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above.

6.Learned counsel for the appellant argued that appellant is quite innocent and has been implicated falsely;

that confirmatory evidence i.e. autopsy reports of the two deceased and medico legal reports of the injured, does not support the ocular account, albeit, furnished by injured witnesses, namely, Mutahir Shah and Mutawasil Shah, as keeping in view the dimension of injuries on the persons of the deceased and injured, the incident seems to be the doing *M.Siraj Afridi P.S. D

of single person, but the charge has been exaggerated; that prosecution has miserably failed to prove that single person to be the appellant; that similarly, recovery of 2 empties of 7.62 bore and single empty of 30 bore pistol, in light of allegations of indiscriminate firing by two persons, does not corroborate the ocular account because in such eventualities more empties should have been recovered from the spot and much damage should have been caused to the complainant party, but contrary to it, a single injury has been found on the person of each injured including deceased Mst. Bushra while two firearm injuries have been found on the person of deceased Umar Khan; that neither any spent bullet has been recovered from the spot nor any bullet marks have been noticed by the I.O.

during spot inspection which negates the prosecution version;

that PWs Akhtar Ali alias Akhtar Shah and Hanif Shah, have been abandoned by the prosecution for no good reason which amounts to withholding of best available evidence and in the circumstances, adverse inference within the meaning of Article 129-G of the Qanun-e-Shahadat Order, 1984, would be drawn against the prosecution; that in the initial report general role *M.Siraj Afridi P.S. D

of firing has been attributed to two accused, but later on, during preparation of site plan, abandoned PW Akhtar Ali assigned specific role to each accused, which amounts to dishonest improvement and the learned Trial Court while considering and relying his statement recorded under section 161 Cr.P.C., has committed gross illegality as statement under section 161 Cr.P.C. is not a substantive piece of evidence; that statement of a witness under section 161 Cr.P.C. is inadmissible evidence the object of which is only to confront the said witness with his statement for the purpose of contradiction; that on one hand the motive alleged, has no concern with the appellant, as the civil proceedings on the disputed house, were inter-se deceased Umar Khan and absconding co-accused Niazbin Shah since 2007, while on the other hand, the parties being residing in the same Mohallah having their houses adjacent to each, suggests that there was no previous enmity between them; that had there any intention of the appellant to do the complainant party away on the basis of said motive, then why he kept mum since 2007 i.e. the year of the civil proceedings till 2009 i.e. the year of *M.Siraj Afridi P.S. D

incident; that peculiar facts and circumstances of the case suggests that PWs have amalgamated the truth and false thus have not come forward with clean hands, therefore, failed to prove the incident in the mode and manner as alleged by the prosecution; that the occurrence does not seem to be a pre- planned rather the result of sudden flare up between the assailant and the complainant party and who was that assailant is shrouded in mystery; that documents of the suits qua the alleged motive, placed on file on the application of the complainant party have neither been exhibited during trial nor the appellant has been provided an opportunity of cross examination over the same, therefore, it would not advance the case of the prosecution; besides, the appellant has not been confronted with these documents in his statement under section 342 Cr.P.C. and any piece of evidence not put to the accused in statement u/s 342 Cr.P.C. cannot be considered against him; that prosecution evidence is suffering from material contradictions, discrepancies and is pregnant with doubts, benefit of which is to be extended to the appellant not as matter of grace or concession but as a matter of right.

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7.Conversely, learned AAG assisted by learned counsel for the complainant contended that appellant is directly charged alongwith absconding co-accused Niazbin Shah (his brother) for the incident in a promptly lodged report, eliminating the possibility of consultation and fabrication; that in the incident two persons have been done to death while three have been injured by attempting at their lives; that being a broad daylight occurrence and parties closely related to each other, question of mistaken identity does not arise; that there was a civil suit over a house between the parties which was decreed by two courts below in favour of the complainant party, which culminated in to the present incident, in support whereof record has been brought on record on the application of complainant party, not objected by the defence, therefore, motive has been successfully proved; that having stamp of injuries on their persons, the presence of PWs Mutahir Shah and Mutawasil Shah cannot be denied, who both have charged the appellant and absconding co-accused; that both have furnished the true account of the incident and have corroborated each other on *M.Siraj Afridi P.S. D

all material aspects of the incident while the defence miserably failed to create any dent in their testimony; that ocular account is supported by medical evidence coupled with recovery of bloodstained earth from the spot, bloodstained garments of the deceased as well as injured, positive Serologist report and noticeable unexplained abscondance of the appellant; that it is not the quantity of evidence to be considered rather the quality and conviction can be recorded even in a capital charge on the basis of solitary statement of a witness; that prosecution has examined two injured witnesses in support of its case, therefore, non-examination of PWs Akhtar Shah and Hanif Shah, would not damage the prosecution case; that statement of Akhtar Shah, has been exhibited by the defence in the statement of the I.O., meaning thereby that the defence is relying on his statement, therefore, the same has rightly been taken into consideration and believed by the learned Trial Court; that in case of direct evidence of unimpeachable character like the one in case in hand, mere non-recovery of much number of empties from the spot, which otherwise is a corroborative piece of evidence, *M.Siraj Afridi P.S. D

would also not damage the prosecution case; that though from the tenor of cross-examination of PWs, the defence has tried to shift the incident towards the absconding co-accused, but no such specific plea has ever been alleged by the appellant nor any shred of evidence whatsoever has been brought on record to prove the incident to be the doing of absconding co-accused. They lastly contended that prosecution has successfully brought home the guilt of the appellant through cogent and confidence inspiring evidence and there being no mitigating circumstance, the learned trial Court by holding the appellant guilty of the offence was justified by awarding him the maximum punishment of death.

They sought dismissal of the appeal and requested for confirmation of sentence of the appellant.

8.We have heard the exhaustive arguments of learned counsel for the parties and learned AAG for the State and perused the record with their valuable assistance.

9.It appears from the record, particularly, from the statement of appellant under section 342 Cr.P.C. that appellant has not denied relationship of absconding *M.Siraj Afridi P.S. D

co-accused Niazbin Shah to be his real brother and injured PWs Mutahir Shah and Mutawasil Shah, as well as injured Hanif Shah and Akhtar Shah (abandoned PWs) to be his real nephews. Houses of both the parties situate in one and the same street, adjacent to each other. This untoward incident took place in front of their houses on a thoroughfare of village Sheikhano Bari Band, leading towards village Khair Gul Khel Kale Charsadda at 12.00 noon, which has been reported with promptitude at 12.45 p.m. i.e. within 45 minutes, eliminating the possibility of consultation, deliberation and concoction.

Being a broad day light incident and parties close relative inter-se i.e. the appellant maternal uncle of the complainant, question of any mistaken identity does not arise. Besides, it does not appeal to prudent mind that nephews will charge their innocent real maternal uncles letting off the actual culprits. In support of his version, complainant Mutahir Shah alias Tahir Shah appeared as PW.8. In his examination in chief he reiterated the same facts as set forth by him in his initial report. He deposed that on the fateful day, he after closing his shop was on his way to his house; that when he reached near *M.Siraj Afridi P.S. D

his house he confronted with the appellant and his brother absconding co-accused Naizbin Shah, who started altercation/arguments with him, on which inmates of his house i.e. his father Umar Khan deceased, brothers Akhtar Shah, Hanif Shah and Mutawsil Shah including his sister Mst.

Bushra deceased, came out of the house and the accused initiated incident. As the altercation was in front of the house of the complainant, therefore, on commotion, attraction of inmates of house of the complainant including his sister Mst.

Bushra, to the spot was natural, which does appeal to mind, as she being the niece of the accused, having no formalities of “pardha” with them, also reached there. Moreso, in village life, in such altercation between relatives, the women folk of their houses also attract as having no limit of Pardha with each other. Had there been altercation inter-se the complainant and some strangers, the lady deceased would have not attracted there nor his brothers would have allowed her to go out of the house. This aspect of the case further substantiates the version of the complainant.

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10.Other injured prosecution witness Mutawasil Shah appeared as PW.11 and supported the version of the complainant. He deposed that on the day of occurrence he along with his father Umar Khan deceased and brothers Hanif Shah, Akhtar Shah and sisters Mst. Bushra was present in their house. In the meanwhile, they heard commotion outside the house, on which they attracted to the spot and noticed appellant Malang Shah and Niazbin Shah, their maternal uncles in altercation with their brother Mutahir Shah alias Tahir Shah complainant, who on seeing them, opened fire at them, as a result he, Mutahir Shah, Hanif Shah, Umar Khan and Mst. Bushra got hit; that his father Umar Khan and sister Mst. Bushra died on the spot while PW Akhtar Shah luckily escaped unhurt. He advanced the same motive as alleged by the complainant i.e. a dispute over a house and pendency of civil proceedings qua the same.

11.Both these injured eyewitnesses have been subjected to taxing and comb searching cross-examination by the defence, but nothing beneficial to defence could be extracted from them. They remained stuck on their stance and *M.Siraj Afridi P.S. D

supported each other on each and every material aspects of the incident. In their cross-examination, the defence has tried to prove the incident to be the doing of single accused and to shift that burden towards the absconding co-accused by putting certain suggestions, but failed. From the very first day till their statements before the court, both the PWs are charging the two accused for the occurrence. Their testimony get corroboration from medical evidence in shape of autopsy reports of the deceased and medico legal reports of the injured coupled with the statements of Medical Officers. The unnatural death of the two deceased with firearms further substantiates the ocular account. Similarly, recovery of bloodstained earth from the places of the deceased and injured coupled with their bloodstained garments and positive Serologist report, confirms/establishes the crime venue as alleged by the prosecution.

12.So far as recovery of less number of crime empties from the spot is concerned, suffice it to say that the place of occurrence is a general thoroughfare. It is not the case of the prosecution that the complainant party remained there and *M.Siraj Afridi P.S. D

nobody interfered with the spot. As huge loss in the shape of two deceased and three injured had been caused in the incident to the complainant party and soon after the incident, they shifted to the hospital, therefore, it does appeal to mind that somebody might have removed some empties from the spot, without sensing their evidentiary value. In the case in hand, the ocular/direct evidence furnished by injured eyewitnesses as discussed above, is trustworthy and confidence inspiring, therefore, in such circumstances, there would hardly be signification of corroboration, as per the dictum laid down by the apex court in case titled, “ Muhammad Ehsan Vs the State” (2006 SCMR 1857), “that if the court is satisfied about the truthfulness of direct evidence available on record, requirement of corroboration is not of much significance”.

13.The arguments of the learned counsel for the appellant that adverse inference is to be drawn against the prosecution because of non-production of rest of the eyewitnesses named in the FIR i.e. Hanif Shah and Akhtar Shah, is unpersuasive, as in criminal cases, what is more *M.Siraj Afridi P.S. D

essential to be observed by the courts, is the veracity and credibility of the witnesses and not their numbers and relationship, because it is quality and not the quantity of the evidence which matters. In the instant case two injured eyewitnesses have been examined. By virtue of Article 17 of the Qanun-e-Shahadat Order, 1984, in financial matters, two male or one male and two female witnesses, have been made the requirement of law to prove the financial obligations.

Whereas in all other matters including criminal, there is no such obligation, which clearly suggest that a single witness is sufficient to prove a fact. When the law permits a fact to be proved through the statement of a single witness, there is no reason or logic to call for more witnesses than one. The Hon’ble Supreme Court in Zar Badadar’s case (1978 SCMR 136), has dealt with the same proposition in the following words:-

“We are also aware, and learned counsel place great stress on it that according to the two eyewitnesses, Mohammad Sher was with them

and that the other persons in the hotel

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including its proprietor had seen the murder.

Mr. Enayat Elahi, therefore, submitted that the courts had erred in law in not drawing an adverse inference against the prosecution for not examining these other witnesses. The submission is not correct because the prosecution is not required to examine every eyewitness of a crime. The only question if whether the evidence of the witnesses is sufficient to prove the prosecution version of the crime and both the courts have held that the evidence of PWs Akbar and Roidad were sufficient to prove the petitioner’s guilt as we indicated this finding is supported by evidence, therefore, nothing turns on the fact that the prosecution did not examine every possible eyewitness of the murder. Additionally, as pointed out by the courts, the ocular evidence receives support from the evidence for the motive of the crime and from the petitioner’s *M.Siraj Afridi P.S. D

abscondance because the abscondance was for a long period”.

Same view has been reiterated by the apex court in case titled, “Muhammad Ahmad and another Vs the State and others”(1997 SCMR 89), that “prosecution is not required to examine every eyewitness of a crime”.

14.In case titled, Muhammad Mansha Vs the State” (2001 SCMR 199), the Ho’ble Supreme Court while dilating upon the spirit of Article 17 of the Qanun-e-Shahadat Order, 1984, held the following:-

“A bare perusal would reveal that the

language as employed in the said Article 17

(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness”.

In the Judgment Supra in Para No.7, the apex Court held that conviction can be recorded on the testimony of a single witness in the following words:-

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“Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. (Principles and Digest of the law of Evidence by M.Monir page 1458).

The Hon’ble Supreme Court in the judgment Supra while referring to C.D. Field on the law of Evidence (Page 4746) reproduced the following:-

“Thus evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant section 134 having enshrined the well-recognized maxim that ‘evidence has to be weighed and not counted’. Through the Legislature has placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time *M.Siraj Afridi P.S. D

evolved some rules and guidelines of

circumspection as to when such evidence can be or cannot be acted upon without

corroboration.(Pema Dukpa v State Sikkim.

1981 Cr. LJ 276).

Reference in this regard can also be made to case titled, “Dildar Hussain Vs Muhammad Afzaal alias Chala and 3 others” (PLD 2004 Supreme Court 663), and case titled, “Farooq Khan Vs the State” (2008 SCMR 917).

Deriving wisdom from the judgments of the apex court (Supra), non-examination of remaining eyewitnesses, namely, Hanif Shah and Akhtar Shah, by the prosecution would not damage the prosecution case.

15.It is borne out from the record that soon after the incident, appellant/accused went into hiding and remained fugitive from law for considerable long period, for which he has not furnished any plausible explanation. Proceedings under sections 204 and 87 Cr.P.C. had been initiated and completed against him. The unexplained disappearance of the appellant from the ordinary place of residence immediately after the occurrence, knowing that the deceased were none *M.Siraj Afridi P.S. D

else but their nephews, tantamounts to deliberate absconsion with guilty mind, therefore, it would be another circumstance to establish his culpability.

16.For what has been discussed above, we have reached to an irresistible conclusion that prosecution has proved the guilt of the appellant up to the hilt through cogent and confidence inspiring evidence and the learned Trial Court has rightly held him guilty of the offence.

17.Now the moot question before us would be the quantum of the sentence to be awarded to the appellant to meet the ends of justice. We are not in agreement with the learned Trial Court on the point of proof of motive because it appears from the record that the civil suit regarding disputed house was inter-se the deceased and the absconding co-accused Niazbin Shah, which was filed in the year 2007, but despite that the parties were living in the same Mohallah having adjacent houses, which means that their relationship were not so strained to prompt the appellant for such untoward incident. The occurrence seems to be the result of *M.Siraj Afridi P.S. D

sudden flare up during altercation/arguments without any premeditation. Besides, general role of firing has been attributed to the appellant and absconding co-accused. It is not certain from the evidence that whose fire shots proved fatal. The learned Trial Court while taking the statement of abandon PW Akhtar Shah, recorded under section 161 Cr.P.C.

to the extent of specification of role of each accused, has committed illegality as statement recorded under section 161 Cr.P.C. is not a substantial piece of evidence, which can only be used for the purpose of contradiction so as to bring out the truthfulness of a witness. Statement recorded under section 161 Cr.P.C. is otherwise inadmissible evidence. Such statement can be used for limited purpose of contradicting a witness at the trial. Statement under section 161 Cr.P.C. of a person who is not produced cannot be considered as a substantive piece of evidence. Thus, taking into consideration the sudden flare-up between the parties, non-specification of effective role to any of the two accused, as mitigating circumstance, the learned Trial Court ought not to have awarded the maximum penalty of death.

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18.Resultantly, conviction of the appellant recorded by the learned Trial Court in all the offences is maintained, however, we while modifying his sentence under section 302

(b)PPC, reduce the same from maximum penalty of death to imprisonment of life. His remaining sentence under section 302 (b) PPC i.e. payment of compensation and sentence in default thereof shall remain intact. Similarly, his conviction and sentences in other offences are also maintained. All the sentences shall run concurrently. Benefit of S.382-B Cr.P.C. is also extended in favour of the appellant-convict. With the above modification in the sentence of the appellant, this appeal is disposed of accordingly.

19.In view of the above, Murder Reference No.10-P/2013, sent by the learned Trial Court in terms of Section 374 Cr.P.C. for confirmation of death sentence of the appellant-convict, is answered in Negative. Announced.

JUDGE

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a *M.Siraj Afridi P.S. D

specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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