' M. NAEEMULLAH KHAN SHERWANI, J.---The way in which the instant appeal arises is this.
Muhammad Yaqoob alias Uncle son of Nabi Bakhsh was tried by a learned Additional Sessions Judge at Lahore for committing mactation of Mst. Fauzia Nazir and Mst. Razia Sultana. The learned trial Judge by virtue of his judgment, dated 13-9-1997 found him guilty of the said charge, convicted him under sections 308, P.P.C. And sentenced him to rigorous iMprisonment for fourteen years as Ta'zir on two counts with further direction to pay Diyat amount of Rs,2, 50,000 under each count. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was, however, accorded to him.
2. The convict, namely, Muhammad Yagoob alias Uncle, by filing Criminal Appeal No, 166/J of 1998 has called in question conviction and sentence passed against him by the said learned Judge. The complainant being dissatisfied with punishment awarded to the convict has filed Criminal Appeal No,595 of 1997 seeking his conviction under section 302, P.P.C. And punishment to the maximum extent provided under the law, which was admitted to regular hearing and notice was issued to the convict.
3. Occurrence of the, alleged incident took place on 17-9-1992 at 10-15 a.m. In House No,23, Street No,26, Ponchh Road, situate at a distance of two kilometers from Police Station Lyton Road, Lahore.
The matter stood reported by Muhammad Farooq complainant (P.W.2), to Shahzada Saleem, S.- I./S.H.O. (P.W.12) on the sme day at 10-50 a.m. When he was available on patrol duty in Aria Nagar, Ponchh Road, who as per his dictation reduced into writing complaint (Exh.P.A.) and dispatched the same-to the police station through a constable for formal registration of a case. On receipt thereof, Muhammad Sharif, S.I. Drew up F.I.R. On the same day at 11-55 a.m. Without any addition or subtraction on his part.
4. Muhammad. Farooq complainant (P.W.2) puts the matter succinctly by stating in complaint (Exh.P.A.) that he along with his family members is residing in House No,23, Street No,26, Aria Nagar, and Ponchh Road, Lahore and is a wagon driver. On the fateful day at about 10-15 a.m., he, his cousin Abid Latif, mother Mst. Razia Sultana, brother's wife Mst. Rozina and sister Mst. Shehnaz were sitting in a room of the house. His other sister Mst. Fauzia Nazir was available in the courtyard near kitchen of the house. All of a sudden, his brother-in-law (sister's husband), namely, Muhammad Yaqoob appellant, while carrying a mauzer in right hand and a dagger in left hand entered the house. He at the very outset fired a shot through his mauzer hitting back of left ribs of Mst. Fauzia, who fell prone. When the complainant and his companions stepped forward to save Mst. Fauzia, the appellant asked that 'if anybody draws near him, he will be done to death'. Due to fear, the witnesses did not go near him. Then the appellant cut throat of Mst. Fauzia after catching hold of her hairs. He also caused injuries on her abdomen and left wrist. Thereafter he started running. The complainant along with his mother and other witnesses gave him a chase. The appellant on catching sight of them fired a shot through his mauzer, which struck right shoulder of Mst. Razia Sultana, who fell on the ground in front of house of Abdul Rashid Contractor. The appellant also delivered her dagger blows, when she was lying on the ground. Thereafter, he while firing and issuing threats of life to the witnesses ran towards Chauburji Quarters, where a Yellow Cab Taxi was available, in which Amjad and Sohail were already sitting. He boarded that Taxi and became successful in levanting from the spot. Shahbaz Latif and Shaukat Ali P.Ws. Residents of Arjun Street saw Muhammad Yaqoob appellant, Amjad and Sohail while going in the Taxi. Mst. Razia Sultana was shifted to the Services Hospital in an injured condition by Abid Lateef, cousin of the complainant, whereas Mst. Fauzia Nazir succumbed to her injuries at the spot.
' Reason behind the outbreak of this incident was that about nine months before the appellant had injured his wife Mst. Fauzia Nazir. A case with regard to the said occurrence was pending adjudication before a Court. Mst. Fauzia Nazir had also instituted a suit for dissolution of marriage.
Dispute with regard to maintenance of children between the spouses was also there. The appellant used to make demand of withdrawal of cases and handing over custody of the children to him. The appellant had killed Mst. Fauzia Nazir and injured Mst. Razia Sultana on the instigation of Amjad and Sohail. Complainant was to leave for the police station, when Shahzada Saleem, S.-I./S.H.O. (P.W.12) reached the spot and reduced into writing complaint (Exh.P.A.) as per his dictation. That is how, the complainant set the police machinery into motion by getting the above said case registered against the alleged wrong doers.
5. Succeeding registration of case, Shahzada Saleem, S.-I./S.H.O. (P.W.12) took over the uphill'task of investigation, He inspected the venue of occurrence and prepared sight plan thereof (Exh.P.N.). He then inspected dead bodies of Mst. Fauzia Nazir and Mst. Razia Sultana, who also breathed her last in the Hospital, prepared their inquest reports (Exhs.P.O. And P.P.) and dispatched them to the mortuary for autopsy purpose under the escort of Muhammad Jamil, constable (P.W.3) and Muhammad Masood Ahmad, constable (P.W.4), respectively. Thereafter, he collected blood- stained soil from the places, where Mst. Fauzia Nazir and Mst. Razia Sultana received injuries, made the same into separate sealed parcels and prepared seizure memos. Exhs.P.D. And P.E., duly attested by Javaid Latif (P.W.7) and Muhammad Riaz P.W. (not produced). He also collected two empties of .30 bore pistol (P.9 and P.10) from the street in front of house of Abdul Rashid Contractor and one empty from courtyard of house of the complainant. Seizure memos. (Exhs.P. G. And P.F.), respectively, were prepared in lieu thereof, which were duly attested by the same set of witnesses.
He recorded statements of the relevant witnesses under section 161, Cr.P.C. The appellant was arrested in Karachi being a suspect after three/four days of the occurrence and during investigation he disclosed about commission of the crime in question. Farman Ali, A.S.-I. (P.W.13) was sent to Karachi, whO arrested the appellant on 21-9-1992 and produced him before the IIlaqa Magistrate on 23-9-1992. He was subjected to interrogation by the Investigating Officer, during course of which he got recovered pistol (P.11) along with one live bullet (P.12) and Chhurri (P.13), which were secured through memos. Exhs.P.H. And P.J. , duly attested by Javaid Latif (P.W.7) and Muhammad Shafique P.W. (not produced). He handed over case property to the Muharrir of the police station for keeping the same in safe custody and onward transmission to the relevant quarters. After completion of investigation, he prepared challan and submitted the same before the Court for trial of the accused in accordance with law.
6. On receipt of challan, the trial Court carefully examined the same and found it fit for holding the desired trial. After fulfilling all the legal formalities, charge was framed and put to the accused, to which they pleaded not guilty and claimed to be tried.
7. Now the only option with the trial Court was to proceed with the trial and nothing short of it. The prosecution was invited to adduce the best possible evidence available at its end to bring home guilt to the under trial. In order to achieve the noble object of proving charge against the appellant, prosecution ventured to produce as many as fourteen witnesses. We would like to make a brief reference to the relevant witnesses, whose evidence is of great significance, which would enable us to analyze the same.
' Mst. Rozina Shafiq (P.W.1) and Muhammad Farooq complainant (P.W.2) are eye-witnesses of the occurrence. They devoted their full attention to narrate all the relevant facts pertaining to the occurrence, which were observed by them. Javaid Latif (P.W.7) was associated with the recovery proceedings by the Investigating Officer. In his presence, the appellant led the police party to the recovery of pistol .30 bore and Chhurri (P.11 and P.13), which were taken into possession by the 'Investigating Officer through memos. Exhs.P.H. And P.J., respectively.
' Dr. Muhammad Saleem (P.W.11) conducted post-mortem examination on dead body of Mst.
Fauzia Nazir and observed eight injuries on her person. According to him, she died due to cutting of vital vessel of neck (carotid) and puncturing of right lung (lower lobe). Injuries Nos.1 and 3 were declared sufficient to cause death in the ordinary course of nature.
' He also performed autopsy on dead body of Mst. Razia Sultana and observed three injuries in all on her person. According to him, she died due to excessive haemorrhage and shock resulting from injuries Nos.2 and 3, which were sufficient to cause death in the ordinary course of nature.
' Evidence of remaining witnesses is almost of a formal nature, which too shall be considered by us, if need be.
8. When no further evidence was required to be produced by the prosecution, learned prosecutor after tendering in evidence reports of the Chemical Examiner (Exhs.P.T. P.U. And P.V.), Serologist (Exhs.P.T./1, P.U./1 and P.V./1) and report of Forensic Science Laboratory (Exh.P.W.) declared the prosecution case close.
9. At this stage of the trial, the appellant was called upon to make his detailed statement to controvert accusations brought against him. He made his statement under section 342, Cr.P.C. And alleged his false involvement in the case due to suspicion. He denied the charge being naive and illogical one. He proclaimed his absolute innocence in the matter. He did not opt to make statement on oath under section 340(2), Cr.P.C. To rebut allegations in their entirety. He did not produce evidence in defence.
10. After hearing both the sides, the learned trial Judge indulged into most daunting task of appraisal of evidence. After being fully satisfied with regard to guilt of the appellant, he passed the impugned judgment.
11. Learned counsel for the convict appellant during course of arguments highlighted following points for our consideration:---
(i) That it was an unseen incident. Eye-witnesses are not only related inter se, but also closely 'related to the deceased. They were not present at the spot. Their statements do not deserve to be believed.
(ii) That recoveries of pistol (P.11) and Chhurri (P.13) are doubtful. They have been foisted upon the appellant to create corroboration in the case. Moreover, Javaid Latif (P.W.7) is a cousin of the complainant.
12. On the other hand, learned counsel for the complainant (appellant in Criminal Appeal No,595 of 1997) submitted that prosecution has produced natural eye-witnesses of the occurrence, who are inmates of the house of complainant that first information report stood recorded within a short span of thirty five minutes, so chances of fabrication of a false story are very rare; that prosecution version is fully supported by motive, medical evidence and recoveries; that the respondent/convict committed an atrocious crime of killing two innocent ladies and was wrongly held guilty under section 308, P.P.C. He prayed that acquittalof the convict respondent under section 302, P.P.C. May be set aside and he be convicted under section 302(b), P.P.C. For committing murders of Mst.
Fauzia Nazir and Mst. Razia Sultana. He placed reliance on the cases, Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCM R 2203 and Muhammad Akram v. The State 2003 SCM R 855.
13. We have consciously heard and soberly considered respective arguments of learned counsel for both the sides. We have also carefully gone through the evidence in its entirety for its weightment according to settled principles of law regarding appreciation of evidence.
' Occurrence of the alleged incident took place on 17-9-1992 at 10-15 a.m. In the area of Street No,26, Ponchh Road, situate at a distance of approximately two kilometers from the police station. The matter was reported by the complainant to Shahzada Saleem, S.-I./S.H.O. (P.W.12) on the same day at 10-50 a.m., who after taking down statement of the complainant (Exh.P.A.) dispatched the same to the police station for formal registration of a case. On the basis thereof, F.I.R. No,257, under sections 302/324/34, P.P.C. Stood recorded at the police station on the same day at 11-05 a.m. This circumstance sufficiently proves that the complainant side had no time to enter into deliberations and consultations with each other to fabricate a fictitious tale of occurrence. There is no possibility of introducing false facts by the complainant in this F.I.R. The convict/appellant happens to be husband of Mst. Fauzia Nazir, sister of the complainant. There was absolutely no chance of mistaken identity. All the witnesses had no earthly reason with them to entangle him wrongly in this case. Witnesses do not seem to possess any reason for substituting the appellant for the actual culprit.
14. We deem it somewhat essential to dilate upon synopsis of the evidence. On the fateful day, complainant, his cousin Abid Latif, mother Mst. Razia Sultana, brother's wife Mst. Rozina and Sister Mst. Shehnaz, were available in a room of the dwelling house of complainant. Mst. Fauzia Nazir was then standing in the courtyard of the house. Muhammad Yaqoob appellant irrupted into house from outer gate. He was carrying a mauzer and a dagger simultaneously. He immediately shot down Mst. Fauzia Nazir. Shot made by him through his mauzer struck back side of his left ribs, who fell prone in injured condition. Next thing to be done by him was to plunge knife into her abdominal region and whacked injuries on her neck and left arm. She succumbed to her injuries at the spot.
The appellant after achieving his ignoble design decamped from the spot. The witnesses gave him a chase. He extended threats of dire consequences, if anybody drew near him. Mst. Razia Sultana took the lead in apprehending him. He fired at Mst. Razia Sultana, which hit her left shoulder and thereafter delivered further dagger blows on her person. On receipt of injuries, she fell down. Abid Latif took her to Hospital for management of her injuries in a rickshaw. She did not survive first effects of injuries. The appellant then successfully levanted from the spot by resorting to aimless firing.
' Reason for killing Mst. Fauzia Nazir was that the appellant used to demand money from her, but she gave him a flat refusal. In the first information report, however, it was alleged that the appellant did not maintain her and she had instituted a suit for dissolution of marriage against him. It is alleged by the complainant in the F.I.R. That about eight/nine months earlier, the appellant inflicted injuries on her person and a criminal case was got registered against him, which was pending adjudication so far.
' From all these facts and circumstances, it is well-understood that tense atmosphere was prevailing within the spouses and the present occurrence errupted like a Volcano, when he quietly stepped into the house and dispatched her to the next world by inflicting serious wounds. He was so violent that he did not spare even his mother-in-law and killed her as well in a brutal and barbaric manner. All the witnesses have made consistent statements with regard to his participation in the crime as described by the complainant in the first information report. Presence of eye-witnesses at the spot during course of occurrence cannot be doubted by any stretch of imagination. All the witnesses have in a clear-cut manner described the manner, mode and place of occurrence. Ideally specific allegations of causing wounds on both the deceased are levelled against him. We are of the considered view that the appellant is cent percent guilty in the matter of double murder.
15. The appellant adopted a strange version, which requires to be reproduced in extenso:--- "I have been falsely involved in this case. Mst. Fauzia was involved in prostitution and her mother Mst. Razia Sultana deceased had been using her as a tool for income which was not acceptable to me and I refrained them from their such activities. For the said reason, the P.Ws. Implicated me on the basis of suspicion."
' This plea is to b. Taken as absurd, ridiculous and fantastic one. Fringed, feigned and surreptitious type of accusations were brought against wife and mother-in-law by the appellant. We have seriously taken notice of the scandalous, false and frivolous plea raised by the appellant in his defence. He left no stone unturned to defame his in-laws to the maximum extent.
16. During course of arguments, learned counsel for the appellant pointed out that appellant allegedly made a shot with his pistol striking Mst. Razia Sultana at her right shoulder and Doctor, who performed autopsy on her dead body observed following injury on her "2. An incised wound (stab wound) 2-1/2 c.m. x 1 c.m. x chest cavity deep on the back of right scapular region at the same level as was injury No,1-B, 3 c.m. Away from midline, obliquely."
' Total number of injuries borne by Mst. Razia Sultana deceased is three. According to opinion of the examining doctor, all these injuries had been caused by the use of a sharp sided weapon. On this basis, she developed an argument that as no fire-arm injury could be discovered by the doctor on the person of Mst. Razia Sultana, so ocular account is in serious conflict with the medical evidence.
' We have seriously taken notice of this discrepancy between the ocular account and the medical evidence. To resolve this controversy, we would like to refer few lines from "Glaster's Medical Jurisprudence and Toxicology, 13th edition". At page 276, it is mentioned as under:--- "Occasionally medium range gun shot wounds can be confused with penetrating stab wounds."
' We know that stab wounds are incised wounds, which enter into body cavity. The examiner by careful inspection with a hand lens can nearly always make a distinction. We have carefully studied the nature and dimension of injury No,2 and also dissection notes. It can safely be inferred that this injury was a stab wound as it had entered body cavity of the deceased. Possibility of doctor of having made a wrong assessment of this injury thus cannot be ruled out altogether.
Opinion furnished by an expert is required to be tested by the Judges. We are not inclined to accept this argument as correct.
17. The learned trial Judge has adopted quite an erroneous view of law while convicting the appellant in the aforementioned manner. In the instant case, Qisas is not available, so this Court has the authority to award appropriate punishment to the appellant keeping in view the peculiar circumstances of the case.
18. Accordingly, by setting aside conviction of the convict/appellant under section 308, P.P.C. We convict him under section 302(b), P.P.C. And award him death sentence on both counts. He shall be hanged by neck till he be dead. He is also directed to pay Rs,50,000 each to legal heirs of the both the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. And in case of non-payment thereof, he shall suffer simple imprisonment for six months under each count.
19. In these circumstances, Criminal Appeal No,166/i of 1998 is dismissed and Criminal Appeal No,595 of 1997 is allowed.
Sentence enhanced.