' ALI NAWAZ CHOWHAN, J.---Abdul Ghafoor, Muhammad Luqman Ghafoor and Muhammad Imran Ghafoor appellants in Criminal Appeal No.23 of 1999 were convicted under section 302(b), P.P.C. By the learned Sessions Judge, Islamabad vide judgment dated 30-1-1999 in case F.I.R. No.111, dated 25-4-1996 registered at Police Station Margalla Islamabad and sentenced to death on two counts for committing Qatl-e-Amd of Ali Amin and Khalid Amin deceased with further direction to pay Rs.1,00,000 each to the legal heirs of the deceased. All the appellants were further convicted under section 324/34, P.P.C. And sentenced to seven years' R.I. Each for attempting on the life of Tariq Amin, Umar Amin and Yousaf Amin with direction to pay fine of Rs.20,000 each or in lieu thereof to further undergo three months' S.I. Fine if realized half of it was directed to be paid to the injured persons. It was further ordered by the learned trial Court that Abdul Ghafoor accused if acquitted from capital punishment, his sentences of imprisonment shall run concurrently while the imprisonments awarded to Imran Ghafoor and Luqman Ghafoor accused shall run consecutively.
Benefit of section 382-B, Cr.P.C. Was given to all the accused. Umar Amin complainant has filed Criminal Revision No.28 of 1999 for maintaining the conviction and sentence under section 302(b)13241341458, P.P.C. And for enhancement of compensation from Rs.One lac to Rs.Five lac under section 302(b), P.P.C. The learned trial Cou t has also sent Murder Reference No.57 of 1999 for confirmation of death sentence awarded to the appellant. All these matters are being disposed of through this single judgment.
2. Umar Amin complainant while making his depositions in Court as P.W.7 narrated the prosecution story as under:-- "On 25-4-1996 at about 8 p.m. Or 8-15 p.m. I was present at my House No.407 Street 43, Sector G- 9/I, Islamabad. My father Tariq Amin and my elder brother Khalid Amin were also sitting with me.
We were watching T.V. Abdul Ghafoor and his sons Luqman and Imran entered our room. Abdul Ghafoor accused is husband of a real sister of my mother. All the three accused are today present in Court. All the accused were armed with daggers (Chhuras). All the three accused attacked my father Tariq Amin P.W. Who was sitting on a bed. They had attacked him with daggers. When Khalid Amin deceased tried to come to the rescue of my father Tariq Amin P.W. Imran accused, while turning back, attacked him and caused a dagger blow on his left thigh. Khalid Amin fell down.
Luqman accused inflicted a dagger blow on the left side of my chest. Abdul Ghafoor accused inflicted a dagger blow under my left arm-pit. Imran accused inflicted a dagger blow on my left cheek. Imran hurled another blow which I took on my palm of my left hand. In the meantime, while hearing alarm, my elder brother Yousaf Amin P.W. Came down from upper portion of the house. He had come down running. All the accused attacked Yousaf Amin and caused him dagger blows. In the meantime, Ali Amin deceased, my elder brother, while coming through the main outer door of the house, entered the lounge. Imran accused inflicted a dagger blow on the chest of Ali Amin deceased. Abdul ,Ghafoor accused also inflicted a dagger blow to Ali Amin deceased who fell down. Luqman accused secured Ali Amin deceased, after he had fallen down and slaughtered, his neck with dagger. After hearing the alarm my sister Mst. Aiysha Tariq and mother Mst. Nusrat Tariq P. Ws. Who were in the kitchen also rushed to the spot. Abdul Ghafoor accused inflicted a dagger blow on the neck of my mother Mst. Nusrat Tariq P.W. When Mst. Nusrat Tariq P.W. Turned back, Imran accused inflicted a dagger blow on her back. Luqman accused inflicted a dagger blow on the left hand of Mst. Aiysha Tariq P.W. Again said, it was on left arm. The accused had also received injuries on their hands with their daggers, during the occurrence. On the alarm of my sisters Mst.
Rabia and Amna Tariq P.Ws. All the accused ran away with their daggers. Ali Amin and Khalid Amin succumbed to the injuries shortly thereafter at the spot."
' The motive part of the story was narrated by him as under:- "My father Tariq Amin P.W. Had started business jointly with Abdul Ghafoor accused. After some time, Tariq Amin P.W. And Abdul Ghafoor accused, with mutual consent, finished the partnership.
Abdul Ghafoor accused demanded from my father Tariq Amin P.W. Some outstanding amount forcibly. The afore-described occurrence had taken place today on the refusal of my father to pay anything to Abdul Ghafoor accused."
' The relevant excerpts from the cross-examination of Umar Amin are relevant and are reproduced below:-- "All the accused remained in my sight till they left the scene of the occurrence. We were nine members of our family in the house at the time of the occurrence. None of us caused any injury to any of the accused nor did we offer any resistance. Volunteered:-- We had no opportunity to offer resistance. Two of .Us had received injuries before I had received injuries. Two persons, who had received injuries before me, were caused injuries one after the other. Before that, I was not held or secured by any of the accused. It is correct that I neither offered any resistance nor did I make any attempt to my father Tariq Amin and elder brother Khalid Amin when the injuries were caused to them. I also did try to run away. Volunteered:--The assault was so sudden that I had had no opportunity to come to the rescue of my father and brother or to run away. Four other members of my family, mentioned above, were assaulted and were given injuries after I had received injuries.
The said four members of the family had received injuries in other spots of the house. During all this period, I was in my senses."
"Both of them rushed out of the house as soon as them was hue and cries. The whole occurrence had lasted for two to four minutes. This also included the cutting of telephone wires and raising of the Lalkaras."
' Muhammad Tariq Amin P.W.8 and Yousaf Amin P.W.11 supported the complainant.
3. Dr. Abdul Hannan P.W.6 conducted post-mortem examination on the dead body of Ali Amin deceased and found the following injuries on his person:-- "(1) An incised wound measuring 6 c.m. x 3 c.m. On the middle 1/3rd of the right arm anteriorly, 5 c.m. Below the right shoulder.
(2) An incised wound on the right elbow, posteriorly, measuring 2 c.m. x 1 c.m.
(3) An incised wound on the ventral aspect of the right fore-arm, measuring 3 c.m. x 1 c.m. Which is 4.5 c.m. Below the cubital tissues.
(4) An incised wound just below wound No.3, measuring 2 x 1 c.m.
(5); An incised wound on the h.Ner aspect of right arm, measuring, 4 x 1.5 c.m.
(6) An incised wound on the inner aspect of the middle 1/3rd of the right arm, measuring 2 c.m. x 1 c.m.
(7) An .Incised wound on the right side of the middle and upper 1/3rd of the neck triangularly measuring 9 c.m. x 2 c.m.
(8) An incised wound on the right side of the middle 1/3rd of the neck, just below wound No.7, measuring 8 c.m. x 1.5 c.m.
(9) An incised wound on the anterior aspect of right side of the chest, measuring 4 c.m. x 2.5 c.m.
Just below the right nipple.
(10) An incised wound on the laterial aspect of right lumber-region, measuring 3 c.m. x 2 c.m., which is 12 c.m. Away from umbilicus.
(11) An incised wound on the left cheek, measuring 6 c.m. x 2 c.m. Which is 6 c.m. Away from the nasal bridge.
(12) An incised wound on the middle 1/3rd of the dorsal aspect of the left leg, measuring 1 c.m. x 1 c.m.
' According to the doctor death occurred due to rupture of the right jugular vein and right carotid artery which resulted in severe blood loss leading to haemorrhage and shock. Probable time between injuries and death was 5 to 7 minutes and between death and post-mortem examination was about 12 hours. Exh.P.L. Is the postmortem report.
' The same doctor on the same day conducted post-mortem examination on the dead body of Khalid Amin deceased and found the following injury on his person:-- "(1) An incised wound measuring 4 c.m. x 1.5 c.m. On the inner aspect of the upper 1/3rd of left thigh, penetrating deeply, 11 c.m. In superior medial direction."
' According to the doctor the death occurred due to rupture of the femoral artery and femoral vein resulting in the primary haemorrhage and shock leading to death. The injury was sufficient to cause death in the ,ordinary course of nature. Probable time between the injury and death was about 7 to 8 minutes and between death and post-mortem examination was about 1 hour. Exh.P.M.
Is the post-mortem report.
4. Dr. Muhammad Naseer P.W.9 medically examined Umar Amin, Tariq Amin, Yousaf Amin, Mst.
Nusrat Amin, Aiysha Tariq, Abdul Ghafoor, Luqman and Imran Ghafoor. The Medico-legal reports of these injured persons are Exh.P.O., Exh. P . Q . , Exh. P . R., Exh. P. S . , Exh. P . T . , Exh. P . U . , Exh . P . V .
And Exh. P. W.
5. Jamshed Khan, A.S.-I. P.W.1 is the witness of recovery of cash amount from Abdul Ghafoor accused which was taken into possession by the Investigating Officer vide memo. Exh.P.A. Abdul Sattar A.S.-I. P.W.2 deposed about the safe custody of sealed parcels containing blood- stained earth and pistol etc., in the Malkhana of the Police Station. Dawood Usman P.W.3 witnessed the recovery of blood-stained Chhuri on the pointation of Abdul Ghafoor, pistol along with a magazine containing 8 live cartridges and blood-stained Chhuri on the pointation of Luqman, blood-stained Chhuri on the pointation of Imran which were taken into possession by the Investigating Officer vide memo. Exh. P . B . , Exh. P. C . And Exh. P. D. Muhammad Shahid Shafi P.W.4 is the witness of recovery of blood-stained bed sheet, blood and blood-stained telephone set which were taken into possession by the Investigating Officer vide memos.
' Exh. P. E., Exh. P . F. And Exh . P. G. Muhammad Alamgir P.W.5 is the witness of recovery of blood- stained shirt vest and trousers of All Amin deceased, bloodstained trousers, shirt and under-wear of Khalid Amin deceased, blood-stained.Shirt of Tariq Amin, blood-stained shirt and trouser of Yousaf Amin, blood-stained trouser and vest of Umar Amin and bloodstained Dopatta of Mst.
Nusrat taken into possession by the Investigating Officer vide memos. Exh . P. H. , Exh. P. J . And Exh.
P. K .
6. Muhammad Akram, Draftsman P.W.10 prepared site place Exh.y.x. Of the place of occurrence.
Tahir Yqbal, S.-I. P.W.12 drafted formal F.I.R. Exh.P.N./1 on the basis of written application of Umar Amin. Salamat Ali, constable P.W.12 transmitted the sealed parcels containing Chhuris, blood- stained earth and bloodstained clothes to the office of Chemical Examiner, Lahore. Nazar Hussain, A.S.-I. P.W.14 arrested Abdul Ghafoor, Luqman and Imran accused. Habib Ullah Khan Niazi, Inspector/ S.H.O. P.W.15 recorded statement of Umar Amin Exh.P.N. Prepared injury statements Exh.P.AA., Exh . P. BB . , Exh . P. CC . , Exh . P . DD . And ' Exh.P.EE. And Umar Amin, Tariq Amin, Nusrat Tariq, Ayesha Tariq and Yousaf Amin injured, prepared inquest reports Exh .P. FF . And Exh P . GG. Of Khalid Amin and Ali Amin deceased and after formal investigation submitted the challan. Report of Serologist is Exh.P.KK. And that of Chemical Examiner is Exh.P.LL.
7. The accused were examined under section 342, Cr.P.C. They neither opted to appear as their own witnesses under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
8. Basically the case of the appellants side was for mitigation on the grounds, inter alia, that all the three accused also received injuries and this showed that some sort of fight ensued prior to the occurrence; that Luqman was carrying a pistol in his hand but he did not use the pistol and this reflects his intention of not desiring to kill. It is said that Luqman and Imran were youngsters and were under the influence of their father who was commanding the episode.
9. Learned counsel also drew the attention of this Court towards the private complaint giving part of the story of the accused but it is still pending and has not been activated and there is no plea for hearing it along with this case.
10. Learned counsel for the complainant side vehemently opposed the plea for lesser sentence.
11. We have heard the parties and have perused the record.
12. In this case the venue of the occurrence was the house of the complainant side where the appellants side had emerged after having come all the way from the twin city of Rawalpindi several miles away and having prepared themselves and while armed with daggers which must be visible to the other side.
13. Ali Amin deceased was said to be 18 years of age and his real brother Khalid Amin was 20 years of age. Their injured father Tariq Amin also received injuries. Mst. Ayesha Tariq unmarried sister of the deceased and Mst. Nusrat their mother were amongst the injured. All the eyewitnesses were injured by the accused side. Injured eye-witnesses are natural witnesses as they were also inmates of the house where this gruesome episode had taken place.
14. We also find that there is no previous animosity between the parties so as to suggest the possibility of false attribution of roles during the episode or of widening the net. The prompt F.I.R.
Mentions about the roles of the accused.
The complaint about which a mention was made is not a part of our record nor was it brought as a part of the record but we have learnt that the said complaint was submitted eight months after the challan. We do not find any fact shown as an alternate version in the complaint ever put to Umar Amin the star injured witness for obtaining any explanation with respect to the alternate version.
Whereas we also find that the injuries suffered by the appellants were of a minor nature which were naturally possible in skirmishes during their onslaught and aggression. The recoveries of blood-stained daggers were also prompt. Regarding their own injuries the appellants merely produced their M.L.Rs. But offered no explanation.
16. Now whether Luqman and Imran appellants were of such an age that they could be commanded by their father for commission Of the episode? They were not in their early adolescence at the time of the episode. In fact they were in their early 30's. They had the sense and the understanding and, therefore, could not be said to be under the command of their father. In this connection reference may also be made to the case of Muhammad Ilyas v. Muhammad Sufian PLD 2001 SC 465.
17. We have already said that the witnesses were natural, their testimonies have remained unimpeached, we do not find any alternate version to the occurrence, the prosecution story is established to the hilt with respect- to the accusations made, the plea for lesser sentence has no basis and, therefore, we find that this appeal fails and is dismissed. The order of conviction and sentence as given by the trial Court is upheld. Murder reference is answered in the affirmative.
18. As we have upheld the sentence in this case as given by the learned trial Court having agreed with the trial Court we do not find any ground for proceeding with the revision petition which is dismissed.