' HAMID ALI MIRZA, J.--- This jail petition filed by (i) Mirza Khan and (ii) Ajmal Khan, petitioners/convicts is directed against the judgment, dated 28-3-2002 in Criminal Appeal No,254- J of 2000 passed by learned Division Bench of the Lahore High Court, Lahore, whereby the appeal in respect of the petitioners/convicts was dismissed maintaining conviction under section 302(b), P.P.C. And sentence of death passed by learned Additional Sessions Judge-II/Special Judge S.T.A.
Court, Mianwali as per judgment, dated 9-9-2000 and murder reference with regard to said petitioners/convicts of trial Court was also affirmed.
2. Brief facts of case are that Mst. Chando Bibi, complainant was married with petitioner/convict Mirza Khan, five years prior to the occurrence and from the said wedlock, said Mirza Khan was blessed with a son. The complainant was residing with her parents as a result of strained relations with her husband Mirza Khan, who tried for conciliation and in consequence thereof returned to petitioner/convict and remained with him for one month, however, prior to the occurrence, she again returned to her parents house when on 5-4-1996 at about noon time petitioner/convict inflicted bat blow upon Mst. Hajran Bibi wife of Muhammad Akbar, a "Phuphi Zad" of the complainant. On receiving the said information the complainant came to the house of Muhammad Akbar along with her father Ahmad Khan and mother Mst. Hayat Bibi. The said Muhammad Akbar, his wife Mst. Hajran Bibi and Mst. Sarwar Bibi, the mother of the said Muhammad Akbar were present in their home when the complainant and others were enquiring about the reason whereby the petitioner/convict had inflicted bat blow upon Mst. Hajran Bibi on her head. At about 3-00 p.m. The petitioner/convict armed with.12 bore shot gun and Ajmal Khan armed with a kalashnikov and Amanullah Khan armed with .12 bore gun, co-accused, entered into the house of Muhammad Akbar by scaling over the wall between their houses when their mother Mst. Mohlat Bibi was empty-handed stood by the side of the partition wall in their house. Mst.
Mohlat Bibi raised Lalkara that all the said persons, namely, Muhammad Akbar and others are done to death. On hearing the said Lalkara, Muhammad Akbar, Ahmad Khan and Mst. Hayat Bibi ran to room to save their lives but the petitioners/convicts fired at them near the outer gate of the room consequently they fell down after receiving injuries. Mst. Hajran Bibi and Mst. Sarwar Bibi ran towards the main gate to go outside their Haveli in order to save their lives but co-accused and the petitioner Mirza Khan fired at them, resultantly both ladies fell down after receiving injuries.
However, the complainant Mst. Chando Bibi saved her life by entering into the adjacent room. The said injured Ahmad Khan, Mst. Hayat Bibi, Mst. Sarwar Bibi and Mst. Hajran Bibi succumbed to their injuries on the spot whereas injured Muhammad Akbar was taken to District Headquarter Hospital Mianwali but he also succumbed to his injuries immediately after reaching there.
3. After registration of F.I.R. And completion of usual investigation, police submitted charge-sheet against the present petitioners and co-accused Amanullah Khan and Mst. Mohlat Bibi. The trial Court framed the charge against the petitioners and co-accused to which they denied, consequently they were tried for the commission of charged offences. The prosecution examined as many as 16 P.Ws. And after recording 342, Cr.P.C. Statements of the petitioners/convicts and co- accused, they did not lead evidence in their defence, and after hearing the arguments of counsel for the parties, the trial Court convicted the petitioners Mirza Khan and Ajmal Khan and co- accused Amanullah Khan and Mst. Mohlat Bibi under section 302(b), P.P.C. Read with section 109/34, P.P.C. As Ta'zir and sentenced the petitioners Mirza Khan and Ajmal Khan to death on five counts, co-accused Amanullah Khan to life imprisonment on five counts and Mst. Mohlat Bibi, to ten years' R, I. On five counts when co-accused Amanullah and Mst. Mohlat Bibi were given benefit of section 382-B, Cr.P.C. And their sentence was also ordered to run concurrently. The petitioners and co-accused were also ordered to pay compensation of Rs,one lac each under section 544-A, Cr.P.C. To the legal heirs of each of the deceased persons and in default, the petitioner/convicts and co-accused, to suffer S.I. For six months each when compensation so ordered was to be recovered as arrears of land revenue. The petitioners/convicts and co-accused Amanullah preferred Criminal Appeal No,254-J of 2000 before the Lahore High Court which was heard by learned Division Bench of the Lahore High Court, Lahore which learned Bench dismissed the appeal of the petitioners/convicts and co-accused Amanullah so also Criminal Revision No,756 of 2000 filed by the complainant was dismissed, however, co-accused Mst. Mohlat Bibi who though had not appealed against but her conviction and sentence were set aside by the learned Division Bench in view of para.12 of the impugned judgment, thereby acquitted her.
4. We have heard learned counsel for the petitioners/convicts and perused the record minutely.
5. Contentions of learned counsel for the petitioners/convicts are that all the alleged eye-witnesses are related to the deceased and interested, who have falsely implicated the petitioners/convicts and further there was no dispute with regard to return of cricket ball which was alleged to have fallen in the courtyard of the petitioners/convicts and on demand of it by Mst. Hajran, and that petitioners/convicts were abused. He further submitted that in fact complainant and P. Ws.
Attacked, when petitioners/convicts were raising boundary wall of their house. He further contended that learned Division Bench and the trial Court have misread the evidence and have not considered the petitioner/convicts version in juxtaposition to that of prosecution.
6.. We do not find merit and substance in the said contentions.
7. The prosecution has examined as many as sixteen witnesses out of which three viz. P.W.1 Chando Bibi, P.W.2 Sohail Akbar and P.W.5 Abdul Karim are the eye-witnesses of the occurrence. Besides above said ocular testimony of above said witnesses, trial Court as well as learned Division Bench of the High Court had taken into consideration, the corroborative value of absconsion of petitioners/convicts Mirza Khan and Ajmal Khan who could not account for more than three years period and they remained fugitive from justice after having been declared absconders after the occurrence by the Court under sections 87 and 88 Cr.P.C.
8. The incident occurred in the day time at about 3-00 p.m. Wherein five persons, namely, Ahmad Khan, Mst. Hayat Bibi, Mst. Sarwar Bibi, Mst. Hajran Bibi and Muhammad Akbar were killed with fire- arms in the house of Muhammad Akbar deceased. The F.I.R. Was promptly lodged by Mst. Chando Bibi, the wife of petitioner/convict Mirza Khan in whose presence the entire occurrence took place wherein her father Ahmad Khan, mother Mst. Hayat Bibi, Mst. Sarwar Bibi, Mst. Hajran Bibi and Muhammad Akbar were killed. P.W.1 Mst. Chando Bibi has fully corroborated the contents of the F.I.R.
And has implicated the petitioners Mirza Khan and Ajmal Khan in her deposition in the following terms:-- "We were just talking about the said incident while sitting in the courtyard of the house of Akbar Khan, when in our vision.
' Mirza Khan armed with .12 bore gun and Ajmal Khan armed with a kalashnikov entered into the house of Akbar Khan by scaling the wall in between the house of Akbar Khan and their own house.
The house of Mirza Khan, etc. Accused is adjacent to the house of Akbar Khan and is separated through a wall of small height. ... On hearing the said Lalkara, my parents Ahmad Khan, Mst. Hayat Bibi and Phuphizad Akbar Khan ran towards the residential room to save their lives. As soon as the said three persons i,e, my parents and said Akbar entered into a residential room of the house of Akbar Khan, Mirza Khan and Ajmal Khan who were near to the door of the house started firing at them and killed them. The fires hit all the said three persons and they fell down after receiving injuries. The said Mst. Hajran Bibi and my Phuphi Mst. Sarwar Bibi the mother of the said Akbar Khan and also the sister of my father Ahmad Khan and Amanullah Khan accused ran towards the main gate of the house to save their lives, but Amanullah Khan and Mirza Khan fired at them. The fire hit them and they also fell down upon the ground. I took shelter in other room of the said house.
Ahmad Khan my father, my mother Mst. Hayat Bibi, my Phuphi Mst. Sarwar Bibi and the said Mst.
Hajran Bibi succumbed to the injuries on the spot, however, Akbar Khan was still alive. He was fetched to the D.H.Q. Hospital Mianwali, but he also succumbed to the injuries immediately after reaching the hospital."
' P.W.1 Mst. Chando was cross-examined at length by the learned defence counsel but her testimony could not be shaken and she could not be discredited. On the contrary learned defence counsel instead of making suggestions in the negative made suggestions in the affirmative giving strength to the prosecution case with regard to petitioners implication in the occurrence, viz. He suggested in the cross-examination "the fire made by Mirza Khan had hit my father Ahmad Khan.
The fire made by Ajmal Khan hit my mother Mst. Hayat Bibi and my brother Akbar Khan received one fire each from Ajmal Khan and Mirza Khan, accused". ... "My parents Ahmad Khan and Mst.
Hayat Bibi and my brother/Phuphizad Akbar Khan were murdered in one room". P.W.2 Sohail Akbar the son of deceased has also fully corroborated P.W.1 Mst. Chando Bibi and no material contradiction and discrepancy affecting the merits of the case could be brought. His testimony in the cross-examination could not be shaken by the defence in spite of lengthy cross-examination.
He was also made suggestion in the affirmative in the cross-examination with regard to entering of Mirza Khan and Ajmal Khan in the house of Muhammad Akbar as the main gate was closed and with regard to the fact that he was present in front of Katcha room. He denied that he was not present at the time of occurrence and he did not witness the incident. On the contrary the defence clarified in the cross-examination about the non-recovery of empties from the place of occurrence as the petitioner Mirza Khan had asked his brother Ajmal Khan and his father Amanullah to collect the empties so that there remained no clue of occurrence. Despite detailed cross-examination of P.W.2 his testimony could not be shaken on the point of petitioners implication in the commission of crime. So far P.W.5 Abdul Karim, learned trial Court has believed his presence at the place of occurrence at the relevant time on account of his explanation furnished in his testimony whereas learned Division Bench of the High Court has observed at page 13 of the impugned judgment:-- "The presence of Abdul Karim is not free from doubts as firstly he admitted in cross-examination that he lived at a place which was at the distance of 9/10 K.M. From the place of occurrence and secondly his explanation for being at the spot is not tenable. He submitted that he came to the spot to offer his `Juma' prayer. However, he did not deny in his cross-examination that in the village where he lived there was a big mosque."
' We have gone through the deposition of P.W.S.Abdul Karim wherein he has deposed:-- "On 5-4-1996 I along with my brother Muhammad after offering `Juma' prayer were coming towards Wan Chowk". ..."when we all the three reached near to the house of Muhammad Akbar Khan we heard noise from inside the house of said Muhammad Akbar Khan."
' In the cross he has stated:-- "I have narrated in my statement before the police about the time of 3-00 p.m. When we were coming to Wan Chowk after Juma prayer we heard noise from inside of the house of Muhammad Akbar (deceased)"... "It is correct that place of occurrence is at the distance of 9/10 K.M. From my house towards south-west from the place of occurrence." ... "There is no mosque at our Dera and nearest Mosque is at a distance of about 500/600 meters at the Dera of Lumberadar Khelan Wala."
' We find that there is no such suggestion in the cross-examination that there was a big mosque in the village of P.W.5 so that he could either affirm or deny the same therefore, such observation of learned Division Bench with respect are based on misreading of evidence. Mere fact that said P.W.
Did not offer his Juma prayer in the mosque which was at a. Distance of about 500/600 meters away from his Dera would not negate his testimony which otherwise has been found to be true.
Juma prayer having not been offered in his village's mosque cannot be made as a rule to discredit P.W.5 Abdul Karim when his testimony is consistent, confidence inspiring and unimpeachable. It often happens that people go and offer prayers at far off mosques keeping in view other personal engagements near mosques which are at some far off distances so that they could attend to their other work as well. Sometimes people offer Juma prayers in bigger mosque because many people gather there. There is no suggestion in the cross-examination that he along with his brother was not coming to Wan Chowk after offering Juma prayer. Learned trial Court has rightly placed reliance upon the testimony of P. W.5 Abdul Karim whose evidence has fully corroborated the testimony of P.Ws.1 and 2 implicating the petitioners/convicts with the commission of crime.
9. Ocular testimony of P.Ws.1, 2 and 5 is corroborated by medical evidence as well in respect of duration of injuries, time of death and nature of weapon used, considering the testimony of P.W.9 Dr. Mehr Khan who conducted post-mortem examination upon the deceased Mst. Sarwar Bibi and found four injuries on her person when two were entry wounds while two were exit wounds having been made by the fire-arm. He also conducted post-mortem examination upon dead body of Mst.
Hajran and found having seven injuries out of which injury Nos.1, 3 and 6 were entry wounds while 2, 4 and 7 were exit wounds and the fifth was grazing wound of fire-arm and all injuries were said to, have been caused by fire-arm. P. W.17 Dr. Sher Ali Khan Niazi, who conducted postmortem examination upon the dead body of Mst. Hayat Bibi, found two injuries one was entrance wound and another was exit wounds of firearm upon her person. He also conducted post-mortem examination upon the dead body of Ahmad Khan and found ten injuries on his person which were caused by fire-arm. He had also conducted post-mortem examination upon the dead body of Muhammad Akbar Khan who had four injuries on his person which were caused by fire-arm. The said witnesses were cross-examined by the defence counsel but their testimony could not be discredited and shaken. Medical evidence B corroborated the ocular version with regard to duration of injuries, locale and the nature of weapon used as deposed in the ocular testimony of the said prosecution witnesses.
10. The next piece of circumstantial evidence is of absconsion of petitioners/convicts Mirza Khan and Ajmal Khan who remained absconder from the date of the incidence viz. 5-4-1996 till they were arrested on 18-6-1999 and on 5-7-1999 respectively and thus, remained fugitive from justice and they could not satisfactorily explain for the said period of their absconsion which circumstance has corroborative value keeping also in view the confidence inspiring and unimpeachable ocular evidence on record. Reference may be made to the decision of this Court in Mst. Rasheeda v. Khan Bahadur and another 1992 SCM R 1036 at page 1042, wherein this Court has observed as under:-- "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case, the accused/respondent No,1, Jehanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case:"
11. So far the motive for the commission of crime, prosecution case has been that on the day of occurrence children of Muhammad Akbar (deceased) were playing cricket and ball of the same fell in the courtyard of the petitioners' house which when demanded by Mst. Hajran Bibi deceased was refused on which there was exchange of hot words between the petitioners and Mst. Hajran Bibi who had also abused them consequently in order to avenge the said insult the petitioner inflicted bat blow upon Mst. Hajran who called Ahmad Khan, Mst. Hayat Bibi and Mst. Chando Bibi in her house when the cause of incident was being discussed, the petitioners/convicts and co- accused entered into the house by scaling over the wall and the occurrence took place as narrated in the F.I.R. Co-accused Amanullah in his statement under section 342, Cr.P.C. Has also admitted in answer to question No,1 that cricket ball fell in their courtyard for which Mst. Hajran Bibi made demand which was refused as a result of which petitioner Mirza Khan inflicted bat blow on the head of Mst. Hajran Bibi. In view of the above evidence on record the prosecution proved the motive for the commission of offence which led to five murders. However, it may also be observed, even if we assume that the prosecution has not proved the motive or the motive stated was a weak but the same would not affect the prosecution case considering that proof of motive is not legal requirement in presence of other convincing unimpeachable ocular version coupled with circumstantial evidence viz. Medical and absconsion. Reference may be made to the decision of this Court in Imtiaz Ahmad v. The State 2001 SCM R 1334 at page 1338 wherein this Court has observed:-- "It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case "but must rest on the examination of entire evidence" in view of principles in Woolmingtin's case 1935 AC 462. Reference may be made to Talib Hussain v. State 1995 SCM R 1776, so also even in case of week motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution."
12. The ocular testimony of all the three witnesses is confidence inspiring and unimpeachable implicating the petitioner with the commission of crime who have also no animus against them. It is daytime occurrence, which has been reported with promptitude whereby five persons were killed in brutal manner by the petitioners/convicts which is fully corroborated by medical evidence and evidence of motive. It may not be out of place to mention here that Mirza Khan under his 342, Cr.P.C. Statement in answer to question No,6 has stated as under:-- "I entered into the courtyard. Seeing there I found Mst., Chando Bibi complainant sitting with Akbar Khan deceased at same cot. Muhammad Akbar deceased was molesting her I wanted to forbid Muhammad Akbar to remain away from bad habits. No P.W. Was present at that time. After talking and complaining him, he became enraged and took the loaded kalashnikov which had already with him at that time. The other deceased intervened there. During this scuffle, the kalashnikov went off and burst hit all the five deceased including Muhammad Akbar."
' The trial Court at page 31 of the judgment on the point of above defence plea that the kalashnikov went off and burst hit all the five deceased, has observed as under:-- "In view of above stand taken by Mirza Khan accused and the learned counsel for the accused persons, the presence of Mst. Chando Bibi stands admitted on the spot. Mst. Chando Bibi while appearing as P.W.1 has fully supported the prosecution story as taken by her in the F.I.R. Exh.P.A. In the same way presence of Sohail Akbar P.W.2 was also natural one because he is a student and it was a public holiday on the day of occurrence (as it used to be before the month of February, 1997). The contention of the learned counsel for the accused that the evidence of Sohail Akbar P.W.2 cannot be considered because of non-availability of his name in the F.I.R., is not tenable due to the reason that for believing the testimony of a witness the only thing is to be considered is as to whether the occurrence was witnessed by him and nothing else and as discussed above, his presence on the spot and witnessing of the occurrence stands proved beyond any shadow of doubt."
13. Learned Division Bench of the High Court at page 16 of the impugned judgment has observed:- "The occurrence has partly been admitted by Mirza Khan, appellant and he raised plea of grave and sudden provocation. This plea in the facts and circumstances of this case is merely an attempt to hide his own guilt and cannot be accredited with truth for the following reasons. Firstly, he did not pick up courage to make statement on oath, secondly he did not lead any defence to prove it, thirdly it is repellent to common sense that his wife Mst. Chando Bibi P.W.1 would be sitting with Muhammad Akbar, deceased in the presence of her father and mother and other relatives who were done to death, fourthly if it was Mst. Chando Bibi P. W.1 whose conduct had provoked the appellant Mirza Khan then she should have been the first victim and she would not have been allowed to free and hide in a room and lastly the grievance of provocation if any could be against Muhammad Akbar and Mst. Chando Bibi, why the other four were done to death in the manner as alleged."
14. The prosecution evidence when kept in juxtaposition with the defence version it would appear that the version of the prosecution is much more reliable, confidence inspiring and unimpeachable leaving no room of doubt to infer that the petitioners/convicts are not guilty for commission of said crime. No exception could be taken to the reasonings of the learned Division Bench of the High Court and the conclusion reached maintaining the judgment of the trial Court to the extent of petitioners hence no interference is required by us, considering that the evidence has been legally, properly scrutinized and assessed and there has been no misreading and non-reading of evidence on record.
15. Accordingly finding no merit in this petition, leave to appeal is declined and the petition is dismissed.