JUDGMENT ASIF SAEED KHAN KHOSA, J.- Mazhar Hussain appellant was convicted on two counts of an offence under Section 302(a), PPC vide judgment dated 20.7.2000 handed down by the learned Additional Sessions Judge, Shorkot, District Jhang and was sentenced to death on each count.
Through the same judgment the learned Trial Court had also convicted the appellant's brothers and co-accused namely Nazar Hussain and Allah Ditta for an offence under Section 302(c), PPC and they were sentenced to rigorous imprisonment for seven years each. The benefit under Section 382-B, Cr.P.C, was extended to them. We have been informed that the said convicts had not challenged their convictions and sentences before this Court through any appeal and the State or the complainant party had never sought enhancement of their sentences through any revision petition. The father of the present appellant namely Ghulam Muhammad was also an accused person in the present case but he had died before the Trial Court. Mazhar Hussain appellant has assailed his convictions and sentences before this Court through the present appeal which has been heard by Us alongwith Murder. Reference No. 501 of 2000 seeking confirmation of the sentences of death passed by the learned Trial Court against him. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Haq Nawaz complainant was a resident of Mohallah Samanabad, Jhang- Sadar where he had taken up temporary residence alongwith the members of his family and he used to work as a typist in the District Courts at Jhang. The permanent residence of the complainant and his agricultural land were situated in square No. 107 in Mauza Ranjeet Kot where his other brothers and relatives also resided. The complainant had come to his permanent residence in village Ranjeet Kot in the afternoon of '28.10.1999. At about 10.00/11.00 p.m. On 28.10.1999 the complainant and his brothers namely Muhammad Nawaz and Ahmad Nawaz alongwith one Ghulam Farid and the members of the complainant's family were sitting in the courtyard of their Dhari and were talking to each other. The Dhari of the complainant party had no door. 0n that occasion Ghulam Muhammad accused, a relative of the complainant, came there and he too started talking to the complainant party. During that conversation Ghulam Muhammad accused raised ah objection against the Nikah of Mst. Bibi widow of Rab Nawaz with Ahmad Nawaz and said that the complain&nt party had committed a mistake by giving Mst. Bibi in the marriage of Ahmad Nawaz. He further said that he as well as his sons were seriously aggrieved of the said marriage. The complainant retorted by telling Ghulam Muhammad accused that the matter of the said marriage was a private matter of the complainant party and Ghulam Muhammad accused had no business to raise an objection in that regard. Ghulam Muhammad accused then responded by saying that the result of the said marriage would be diestrous for the complainant party, In the meanwhile Mazhar Hussain appellant and his two brothers and co- accused namely Nazar Hussain and Allah Ditta, all armed with a gun .12 bore each, entered the Dhari of the complainant party while raising lalkaras and asked about the whereabouts of Mst. Bibi and Ahmad Nawaz. At that time Mst. Bibi was lying on a cot. Mazhar Hussain appellant and his brothers and co-accused namely Nazar Hussain and Allah Ditta then fired 3/4 shots from their respective guns hitting Mst. Bibi on her chest. A minor girl namely Mst. Samina, aged about 7/8 years, was lying at that time on a cot placed near the cot of Mst. Bibi and the said minor girl was fired at by the appellant and his co-accused. Mazhar Hussain appellant's fire hit that minor girl on her right flank, Nazar Hussain accused fire hit her on the left side of her chest and Allah Ditta accused fire hit her on her left arm. The complainant's brother namely Ahmad Nawaz started beseeching the appellant and his co-accused but Mazhar Hussain appellant fired at him hitting him on the back of his' neck. Nazar Hussain accused then fired at Ahmad Nawaz and that fire also hit him on his neck. Allah Ditta accused then fired at Ahmad Nawaz hitting him oh his right shoulder. Mazhar Hussain appellant fired at Ahmad Nawaz again and- this time his fire hit Ahmad Nawaz on his left shoulder. Mazhar Hussain appellant once again fired at Ahmad Nawaz and this time also his fire hit Ahmad Nawaz on his left shoulder. During this while Mst. Parveen Akhtar, aged about 17 years, also appeared at the spot and Mazhar Hussain appellant fired at her hitting her on her right shoulder. Na?Ar Hussain accused also fired at Mst. Parveen Akhtar and his fire hit her on her left upper arm. Allah Ditta accused also* fired at Mst. Parveen Akhtar and two shots fired by him hit he: right arm. Mazhar Hussain appellant fired at Mst. Parveen Akhtar again and this time his fire hit her on her chest below her right shoulder. Throughout this occurrence the complainant, Ahmad Nawaz and Ghulam Farid kept on raising hue and cry and continued beseeching the appellant and his co-accused but the appellant and his co-accused never paid any heed to them and after the occurrence they left the spot towards a pacca road while firing indiscriminately. Mst. Bibi and Mst.
Samina succumbed to their injuries and died at the spot whereas Ahmad Nawaz and Mst. Parveen Akhtar became unconscious after receiving fire-arm injuries on different parts of their bodies. The said injured victims were removed to a hospital at Ahmadpur Sial and were admitted thereat for medical treatment whereas the two dead-bodies were left at the spot in the care of the complainants' relatives. The motive set up in the F.I.R, was that Mst. Bibi had inherited five and a half acres of land upon the death of her husband namely Rab Nawaz, a brother of Haq Nawaz complainant and Ahmad Nawaz P.W., and Mazhar Hussain appellant and his co- accused wanted to usurp that property by arranging a marriage between Mazhar Hussain appellant and Mst. Bibi.
According to the F.I.R. Mst. Bibi was not agreeable to the said proposal of marriage, it was mentioned in the F.I.R, that with the consent of Mst. Bibi her marriage was solemnized with the complainant's brother namely Ahmad Nawaz about two weeks prior to the present occurrence and that Mazhar Hussain appellant and his co-accused were aggrieved of the same. According to the F.I.R.. Mazhar Hussain appellant and his two brothers and co-accused had sent their father, namely Ghulam Muhammad to the house of the complainant party at the fateful time and had then murdered Mst. Bibi and Mst. Samina with fire-arms and had injured Ahmad Nawaz and Mst.
Parveen Akhtar with an intention to kill them, it was alleged in the F.I.R, that Ghulam Muhammad accused had abetted his three sons in committing the said murders and injuring of two persons.
Haw Nawaz complainant went to Police Station, Ahmadpur Sial, District Jhang in order to report the matter to the police and on the basis of bis statement F.I.R. No. 175 was registered at the said Police Station at 12.30 a.m. On 29.10.1999 for offences under Sections 302/324/34, PPC.
3. The investigation of this case was conducted by Muhammad Siddique, Inspector and then by Fazal Khan, DSP (DW.1). During the investigation injury statements and inquest reports were prepared, the dead-bodies were got subjected to post-mortem examination, the place of occurrence was inspected, blood-stained earth was secured therefrom, eighteen crime empties were recovered from there, a rough site plan thereof was prepared and statements of witnesses were recorded. After the postmortem examination of the dead-bodies the last worn clothes of the deceased were secured and later on a formal site plan of the place of occurrence was got prepared, the appellant and his co-accused were arrested and a gun ,12 alongwith twelve live cartridges were recovered from the appellant's possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned Trial Court framed a charge with two heads under Sections 302/34 and 324/34, PPC against the appellant and his co- accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant and his co-accused. The ocular account of the incident in question was furnished by Haw Nawaz complainant (P.W.9), Mst. Parveen (P.W.10) and Ahmad Nawaz (P.W.11). Haq Nawaz complainant (P.W.9) and Ahmad Nawaz (P.W.11) also deposed about the motive. Imtiaz Hussain, AS1 (P.W.7/P.W.12) stated about recovery of a gun .12 bore alongwith twelve live cartridges from ' the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Manzoor Hussain (P.W.1), Lady Dr. Saira Bano (P.W.4) and Dr. Muhammad Zafar Iqbal Khan (P.W.8). Muhammad Siddique, inspector had investigated this case but he had died before the trial and the various steps taken by him during the investigation of this case were proved by Imtiaz Hussain, AS1 (P.W.12). The remaining evidence produced by the prosecution was more or less formal in nature.
6., In their statements recorded under Section 342, Cr.P.C, the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under Section 340(2), Cr.P.C, but they produced two witnesses in their defence. Fazal Khan, DSP (DW.1) had partly investigated this case and had declared the appellant's co- accused innocent whereas Sadiq (P.W.2) had deposed in support of the plea of alibi advanced by the appellant's acquitted co- accused.
7. Upon conclusion of the trial the learned Trial Court found the prosecution's case against the appellant and his co-accused to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance, it has been argued by the learned Counsel for the appellant that the occurrence in this case had taken place during a night and no source of light was available at the place of occurrence during the incident in issue, it has also been argued by him that, the eye- witnesses produced in this ease by the prosecution were related and inimical witnesses; they had made significant improvements during the trial; and they had failed to receive any independent corroboration or support. He has, thus, maintained that the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to be acquitted by this Court. He has gone on to submit in the alternative that the circumstances of this case were such that the appellant did not deserve a capital punishment. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his convictions and sentences recorded by the learned Trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the F.I.R, in this case had been lodged with reasonable promptitude and Mazhar Hussain appellant had been specifically nominated therein as the principal perpetrator of the alleged offences. The motive set up in the F.I.R, was that Mst. Bibi deceased had inherited five and a half acres of .Agricultural land from her first husband namely Rab Nawaz [brother of Haq Nawaz complainant (P.W.9) and Ahmad Nawaz (P.W.10)] and after the death of Rab Nawaz the accused party wanted Mst. Bibi deceased to get married to the present appellant in order to usurp the agricultural land inherited by her from Rab Nawaz but Mst. Bibi deceased was not agreeable to the said matrimonial proposal, ithad further been mentioned in the F.I.R, that with her consent Mst. Bibi deceased had got married to Ahmad Nawaz (P.W.11) two weeks prior to the present occurrence and the accused party felt aggrieved of the said development. Most of the above-mentioned factual aspects pertaining to the motive had been admitted by the appellant in his statement recorded under Section 342, Cr.P.C, and he had gone on to state there was "family enmity" between the parties due to "landed property", In order to prove its case against the appellant the prosecution had produced three eye-witnesses before the learned Trial Court, i.e. Haq Nawaz (P.W.9), Mst. Parveen (P.W.10) and Ahmad Nawaz (P.W.11). All the said eye- witnesses were quite natural witnesses inasmuch as they were resident of the same house wherein the occurrence in issue had taken place and the time of the occurrence was such that all the said eye-witnesses were ordinarily expected to be present in the said house at such a time. Mst.
Parveen (P.W.10) and Ahmad Nawaz (P.W.11) had the stamps of injuries on their persons so as to vouchsafe their presence during the occurrence in question. All the above-mentioned eyewitnesses had; made consistent statements before the learned Trial Court regarding the main occurrence and there was no ostensible reason for them to falsely implicate the appellant in a case of this nature, it may be relevant to mention here that the parties to this case were even otherwise related to each other and, thus, the question of false implication of the appellant in a case like this was quite remote. The medical evidence had confirmed the date and time of occurrence, the weapon used by the appellant, the locale of the injuries caused by him and the direction of the fires shot by him as stated by the eye-witnesses. Slight variations in locales of some of the injuries stated by these witnesses were quite explainable because the occurrence in this case had taken place during a night and many accused persons were firing at the complainant party at the relevant time, In the overall assessment of the medical evidence we have found the same to be quite supportive of the ocular account furnished in this case. During the investigation a gun .12 bore had been recovered from the appellant's possession and as many as twelve crime empties recovered from the place of occurrence had subsequently matched with the gun recovered from the appellant's possession. Although the crime empties had been sent to the Forensic Science Laboratory after recovery of the gun from the appellant's possession yet no evidence or material was made available by the defence on the record to show false manufacturing of the crime empties after recovery of the gun. Such an important piece of evidence cannot be thrown out by us on the basis of mere conjectures.
10. After going through the record of this case from cover to cover and after hearing the learned counsel for the parties at some length we have entertained no manner of doubt that the ocular account furnished in this case by three eye-witnesses, including two injured witnesses, who were all quite natural witnesses had found sufficient corroboration from the motive and recovery and had also received ample support from the medical evidence and prompt lodging of the F.I.R, wherein the appellant had been duly nominated as the principal perpetrator of the relevant offences, it may be pertinent to mention here that same heirs of Mst. Bibi deceased and Mst.
Samina deceased and even Ahmad Nawaz (P.W.11) had entered into a compromise with the brothers and co-accused of the present appellant namely Nazar Hussain and Allah Ditta before the learned Trial Court but they had refused to enter into a compromise with the present appellant.
Even the statement made before the learned Trial Court by Fazal Khan, DSP (DW.1) shows that it had never been disputed by the parties during the investigation of this case that it was the present appellant who had murdered Mst. Bibi and Mst. Samina deceased and had launched murderous assault upon Mst. Parveen (P.W.10) and Ahmad Nawaz (P.W.11) and it was maintained by the accused party before the said witness that the appellant's brothers and co-accused namely Nazar Hussain and Allah Ditta had not participated in the occurrence in issue. All this further confirms our conclusion that the prosecution had succeeded in establishing the appellant's guilt to the hilt.
11. We have also adverted to the question of sentence to be passed against the present appellant and in this context we have observed that the appellant was directly connected with the motive and he had not only opened the assault in the main occurrence but had also fired at all the deceased and; the injured victims in the present case. He had not even spared the womenfolk of the complainant party and had murdered Mst. Bibi and Mst. Sarhina (aged about 7/8 years) and had also injured Mst. Parveen (P.W.10) who was also a minor girl aged about 17 years. It is, thus, apparent that the appellant is a desperado and it shall be extremely hazardous to let him loose on the society. The normal wages of a crime of murder is death and in the peculiar circumstances of this case the appellant deserves no less.
12. For what has been discussed above this appeal is dismissed with a slight modification that instead of two counts of an offence under Section 302(a), PPC the appellant's conviction on both the said counts shall be treated as that for an offence under Section 302(b), PPC. The sentence of death passed by the learned Trial Court against the appellant on both the said counts is upheld and maintained. We have observed that the learned Trial Court had failed to convict the appellant for the murderous assault upon and injuries caused to Mst. Parveen (P.W.10) and Ahmad Nawaz (P.W.1!) but no appeal or revision petition in that regard has been filed before this court by the complainant party or the State. The learnership Court had also omitted to pass any order regarding payment of compensation by the appellant to the heirs of Mst. Bibi deceased and Mst.
Samina deceased but even that omission has not been assailed before this Court by the complainant party. We are not sure as to whether we can pass any order in that regard in an appeal against conviction and apparently the provisions of Section 423, Cr.P.C, do not allow the same.
13. Murder Reference No. 501 of 2000 is answered in the affirmative and the sentences of death passed by the learned Trial Court against Mazhar Hussain appellant are confirmed.