' NAZIM HUSSAIN SIDDIQUI, J.--- This judgment will dispose of Criminal Petitions Nos.850-L and 981-U of 2002, wherein judgment dated 24-10-2002 of a learned Division Bench, Lahore High Court, Multan Bench, delivered in Criminal Appeal No,137 of 1997 and Criminal Revision No,64 of 1997 has been impugned.
2. In Criminal Petition No,850-L of 2002, the petitioner is Ghulam Mustafa, who has impugned his conviction and death sentence. In Criminal Petition No,981-L of 2002, petitioners, namely, Nazir, Manik, Ghulam Rasool and Ahmed Bukhsh have challenged their convictions and prayed for the acquittal.
3. Above petitioners were convicted by learned Judge, S.T.A. Court, Dera Ghazi Khan, vide judgment dated 30-4-1997 and were sentenced as follows:-- "Ghulam Mustafa, death and to pay fine of Rs,40,000 or in default three years' S.I. Under sections 302(b)/149, P.P.C. Two years' R.I. Under sections 148/149, P.P.C. Five years' R.I. Under sections 452/149.
Five years' R.I. Under sections 307/149, P.P.C. And Rs,10,000 as compensation or in default six months'
S.I.
' Nazir Manik, Ghulam Rasool and Ahmed Bakhsh, appellants imprisonment for life and to pay a fine of Rs,40,000 or in default three years' S.I. Under sections 302(b)/149, P.P.C. Two years' R.I. Under sections 148/149, P.P.C. Five years' R.I. Under sections 148/149, P.P.C. Five years' R.I. Under sections 307/149, P.P.C. And Rs,10,000 as compensation, or in default six months' S.I. With the benefit of section 382-B, Cr . P. C .
4. The occurrence took place on 7-6-1990 at 2-00 p.m. Within the jurisdiction of Police Station B.M.P.
Post Satta Qaisrani, District D.G. Khan, F.I.R. Was lodged by Muhammad Azeem complainant on said date at said police station at 3-00 p.m. It was recorded by Iftikhar Ahmed Zaid Defedar. In this incident, four persons namely, Allah Ditta, Abdul Aziz, Mst. Hanifan Bibi and Muhammad Moosa were killed and Faizoo, Mst. Tagoo and Muhammad Azeem sustained injuries.
5. The motive, as set up in F.I.R., is that 10/11 months prior to the occurrence, Mst. Rashida daughter of Nourang had married Abdul Aziz son of the complainant and this annoyed the accused persons.
6. The prosecution case, in brief, is that on the aforesaid date and time Nourang, Iqbal, Nazir, Manik, Ghulam Farid, Saidullah, all armed with fire-arms, Ghulam Mustafa (petitioner in Criminal Petition No,850-L of 2002) duly armed with a kalashnikov, Ghulam Rasool, Ahmed Bukhsh, all armed with rifles. Mst. Hanifan, Mst. Fatima, Mst. Amina, Mst. Sharifan, Mst. Hafeezan and Mst. Ameeran armed with Sotas entered into the house of the complainant, who along with other inmates of the house was sitting in the Kotha. They started firing and as a result of it Allah Ditta, Abdul Aziz and Mat.
Hanifan Bibi were killed on the spot. Muhammad Moosa had also sustained serious injuries and succumbed to his injuries, while he was being taken to the hospital. Faizoo and Mst. Tagoo sustained injuries but Haq Nawaz and Jehangir escaped unhurt.
7. On completion of investigation, charge-sheet was submitted against 12 persons and out of them seven were acquitted and five as mentioned earlier, were convicted. The petitioner and co- accused pleaded not guilty and claimed to be tried.
8. At trial, the prosecution examined, as many as 10 witnesses, namely, Dr. Nazir Begum, W.M.O.
P.W.1, Dr. Sher Muhammad P.W.2, Azhar Rafiq Patwari P.W.3, Muhammad Azeem P.W.4, Mst. Tagoo Mai P.W.5, Faiz Muhammad (Faizoo) P.W.6, Haq Nawaz P.W.7, Azaz Alam Sawar, P.W.8, Iftikhar Ahmed P.W.9 and Sardar Subah Sadiq P.W.10.
9. Leaned counsel appearing in Criminal Petition No,981-L of 2002, which is time-barred by 38 days, has not pressed it, as such, it is dismissed, as not pressed. It is significant to point out that the convictions and sentences of the petitioners of this petition were maintained by High Court and during pendency of their appeal before High Court, they had served out their full terms of sentences and it being so their appeal stood disposed of, as infructuous in view of law laid down by this Court in the case reported as Amir Khan and others v. The State and others 2002 SCM R 403.
Accordingly, they were released by High Court.
10. Learned High Court, while dealing with the case of petitioner, Ghulam Mustafa, observed as follows:-- "Next is the turn of Ghulam Mustafa, appellant, who has been awarded death sentence. According to the F.I.R. And statements of the witnesses he was armed with a kalashnikov, 32 crime empties of kalashnikov were recovered from the spot and those matched with the weapon, of offence recovered on the pointation of Ghulam Mustafa, appellant. Mst. Rashidan, who had married with Abdul Aziz son of the complainant was real sister of Ghulam Mustafa, appellant, so the motive also laid with him. It is a case of strange type of family honour in which four innocent persons were murdered and two were injured. Mst. Rashidan sister of Ghulam Mustafa, appellant had married 10/11 months prior to the occurrence, the matter was compromised after receipt of Rs,35,000 then she was taken back to the house of her parents and detained there. She getting an opportunity joined her husband, so by no stretch of imagination, it could be called a case of family honour.
There is thus, no mitigating circumstance in favor of the appellant to award lesser punishment and it is settled that in the absence of any mitigating circumstance, normal penalty of death is awarded. Resultantly, the conviction and sentence recorded against Ghulam Mustafa appellant by the learned trial Court is maintained in toto. Appeal to his extent is dismissed. His death sentence is confirmed."
11. It is contended on behalf of petitioner, Ghulam Mustafa that both trial Court and High Court failed to appreciate the evidence brought on record and reached wrong conclusion. Learned counsel also argued that the evidence of recovery of incriminating articles was not discussed by both the Courts below, especially important contradictions, improvements and demerits were not examined in their true perspective. Also, it is urged that according to the P.Ws. All the accused started firing discriminately, as such, it could not be ascertained, as to who was killed and by whom. A plea has also been taken that the case of the petitioner is identical to that of Nazir, Manik, Ghulam Rasool and Ahmed Bukhsh (petitioners in Criminal Petition No,981-L of 2002), who were awarded life imprisonment, while the petitioner was sentenced to death.
12. The petitioner along with co-accused was named in the F.I.R. Three eye-witnesses namely, Muhammad Azeem, Mst. Tagoo and Faizoo, fully implicated the petitioner and held him and co- accused responsible for causing death of the above-named deceased. All the eyewitnesses were subjected to lengthy cross-examination but their testimony remained unshattered. F.I.R. Was lodged promptly and strong motive was established. Mst. Rasheeda Bibi, who married according to her choice and because of her the incident took place, is the sister of the petitioner. It was a broad- daylight occurrence and 32 crime-empties recovered from the spot, were fired by the petitioner from the kalashnikov. Four persons were murdered brutally under a pre-planned strategy. Under the circumstances, death penalty was rightly awarded to petitioner Ghulam Mustafa by trial Court and affirmed by High Court.
13. In consequence, leave to appeal is refused and Criminal Petition No,850-L of 2002 is also dismissed.