' IJAZ AHMAD CHAUDHRY, J.--- Muhammad Akram and Muhammad Afzal were convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 20-7-2000 handed down by the learned Additional Sessions Judge, Gujrat and they were sentenced to death for committing the Qatl-i- Amd of Muhammad Arif and Mst. Razia Bibi as well as Muhammad Asif and Mst. Zobia Bibi respectively. They were also directed to pay Rs, 1,00,000 each as fine which on realization was to be paid to the legal heirs of the deceased or in default of payment thereof to undergo R.I. For five years each. Through the same judgment Muhammad Shabbir and Sharif were acquitted of the charges by extending them the benefit of doubt. The appellants have challenged their convictions and sentences before this Court through the present appeal while Muhammad Altaf complainant filed Criminal Appeal No,1239 of 2000 against the acquitted accused, which have been heard by us along with Murder Reference No,663 of 2000 seeking confirmation of the sentences of death passed by the learned trial Court against the appellants. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution case as per complaint (Exh.P.E.) got recorded by Allah Ditta (P.W.3), resident of Chopala, Tehsil and District Gujrat, to Muhammad Aslam (P.W.15) Police Station Jalalpur Jattan is that on the day of lodging the complaint he was sitting in the house of his sister's husband namely Ali Muhammad, when 'Muhammad Arif, Muhammad Asif sons of Ali Muhammad, Mst. Razia Bibi wife of Muhammad Arif, Khalida Bibi wife of Muhammad Bashir and Zaiba Parveen minor daughter of Muhammad Yousaf were present in the house. Muhammad Nawaz, resident of Mahiwaal, who was husband of daughter of brother-in-law of the complainant also came to his house and that when they were talking with each others, at about 8-00 a.m. Muhammad Afzal and Muhammad Akram appellants while armed with automatic mausers came there and raised a Lalkara that they would not leave anybody alive, upon which Muhammad Afzal appellant fired a burst from his mauser which hit Muhammad Asif on his neck, arms, shoulder and on the ear, who fell down in the courtyard having sustained injuries. Then Muhammad Arif ran towards street outside and while going in the street, Muhammad Akram appellant fired a burst from his mauser, which hit on his belly, chest, right back side, left arm and on the right side of the head, who fell down in the street after receiving injuries. Thereafter Mst. Razia Bibi and Mst. Zaiba Bibi due to fear went inside the room and Muhammad Akram after going inside the room fired a burst which hit Mst. Razia Bibi on her belly, chest and legs etc. Who due to the injuries fell inside the room, while Muhammad Afzal appellant fired at Mst. Zaiba Bibi a minor aged about three years, which hit her on her chest and after receiving the injuries she fell down in the room. The complainant further alleged in the F.I.R.
That afterwards the appellant Muhammad Afzal and Muhammad Akram while firing fled away towards school with the intention to kill Muhammad Altaf nephew of the complainant but they could not lay hands upon him. Thereafter Muhammad Sharif, (acquitted accused), Muhammad Bashir and Muhammad Shabbir (acquitted accused) residents of the village while armed with fire- arm weapons also came at the spot and while firing raised slogans of their victory. After leaving the place of occurrence by the accused the complainant along with his companions took care of the injured and found that Muhammad Arif, Muhammad Asif, Razia Bibi and Mst. Zaiba Parveen had expired due to the injuries sustained by them.
3. The motive behind the occurrence was that about three months prior to the occurrence Muhammad Asif sister's son of the complainant had contracted marriage with Mst. Razia Bibi sister of Muhammad Akram appellant without the consent of her parents but thereafter the matter ended through compromise and hand of the sister of Asif was given by the brotherhood of the parties but the accused/appellants still nourished the said grudge and due to the said reason, all the accused/ appellants in furtherance of their common intention while armed with fire-arm weapons had committed the murders of Muhammad Arif, Muhammad Asif, Mst. Razia Bibi and Mst.
Zaiba Parveen.
4. After the registration of the case Muhammad Aslam S.-I. (P. W.15) conducted the investigation and prepared inquest report of Mst. Razia Bibi Exh.P.W. And inquest report of Asif deceased Exh.P.X., inquest report of Zobia alias Zubaida Exh.P.Y. And inquest report of Muhammad Arif Exh.P.Z. He also prepared the injury statement 'of Razia Bibi Exh.P.W.1, application for post-mortem Exh.P.W./2, injury statement of Asif deceased Exh.P.S./1 and application for post-mortem Exh.P.S./2, injury statement of Mst. Zubaida Exh.P.Y./1 and postmortem application Exh.P.Y./2, injury report of Arif Exh.P.Z./1, and application for the post-mortem Exh.P.Z./2. He then sent the dead bodies to the mortuary for post- mortem examination through Nabi Ahmad (P.W.7) and Saqlain Ahmad constables. On 18-5-1995 he prepared the site plans and took the blood-stained earth through cotton from the room where the dead body of Mst. Zubaida was lying vide recovery memo. Exh.P.D., and blood-stained cotton from the room where the dead body of Razia Bibi was lying vide memo. Exh.P.C. And blood-stained earth from the place where the dead body of Asif was lying vide memo. Exh.P.B and blood-stained earth from the place where the dead body of Arif was lying vide recovery memo. Exh.P.A. He arrested Muhammad Akram appellant and Muhammad Shabbir (acquitted accused).
Muhammad Akram appellant led to the recovery of .30 bore pistol from the graveyard of the village which is P.10 and took the same into possession vide memo. Exh.P.O. On the same day Muhammad Bashir got recovered .12 bore gun buried in the courtyard of the house P.11, which was taken into possession vide memo. Exh.P.Q. Muhammad Saqlain constable produced last-worn clothes of Asif deceased after the post-mortem which were shirt P.10, Shalwar P.11 and same were taken into possession vide memo. Exh.P.M. Naibi Ahmad Constable (P.W.7) produced the last-worn clothes of Muhammad Arif deceased viz. Shalwar P.1, shirt P.2, vest P.3 which were taken into possession vide memo. Exh.P.J. Naib Ahmad constable also produced before him the last-worn clothes of Zobia alias Zubaida viz. Shirt P.5, Shalwar P.4 and one phial of pellets which were taken into possession vide memo. Exh.P.K. Muhammad Afzal Constable (P.W.8) produced before the Investigating Officer last-worn clothes of Razia Bibi deceased shirt P.7, Shalwar P.8 and one phial containing one bullet which were taken into possession vide memo. Exh.P.L. He got prepared the site plans by Akhtar Naqqash Draftsman (P.W.10) which are Exh.P.N. And Exh.P.N./1. He obtained the warrants of arrest of Muhammad Sharif and Afzal through an application Exh.P.AB. Warrants Exh.P.AB/1 of Akram and Sharif Exh.P.AB/2. He also obtained the proclamation of Sharif and Afzal through an application Exh.P.AC., proclamation of Sharif is Exh.P.AC./1 and proclamation of Afzal is Exh.P.AC./2 and submitted the challan to the Court.
5. On receipt of report under section 173, Cr.P.C. The learned trial Court supplied copies of the documents required under section 265-C, Cr.P.C. To the appellants and charge was framed against them which were denied by them and they claimed to be tried.
6. The prosecution in order to prove the guilt of the appellants and their co-accused produced as many as 19 witnesses. The ocular account was furnished by Allah Ditta complainant (P.W.3) and Mst. Khalida Bibi (P.W.4) while the medical evidence was adduced by Dr. Khurshid Ahmad (P.W.5) and Dr. Hamid Rafique (P.W.12). Dr. Khurshid Ahmad (P.W.5) on 18-5-1995 had conducted the post- mortem examination on the dead body of Muhammad Asif deceased. On the same day at about 4-45 p.m. He also conducted the post-mortem examination on the dead body of Mst. Razia Bibi. On 19-5-1995 at about 9-00 a.m. He conducted the post-mortem examination on the dead body of Muhammad Arif and Mst. Zubaida Bibi, deceased while the investigation was conducted by Muhammad Aslam (P.W.15). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statements of the appellants and their co- accused were recorded under section 342, Cr.P.C. In which they had denied the allegations and professed their innocence. On a question that "why this case against you and why the P.Ws. Have deposed against you?" Muhammad Akram appellant made the following reply:-- "I am innocent. P.Ws. Are interested and inimical towards me.
' They were not present at the time of occurrence. I permanently reside in Mohallah Shah Di Khoi, Lahore along with my mother and sisters. Muhammad Asif deceased who is my first cousin abducted my sister Razia with the help of Arif deceased from Lahore and brought her to village Chopala, District Gujrat. I came to village Chopala in search of my said sister and entered the house of Asif deceased and found my sister lying in between Asif and Arif deceased on a cot. Arif and Asif were kissing and embracing my sister. On seeing them I lost my self-control and under grave and sudden provocation and Ghairat I fired shots at them by which my sister Razia, Arif and Asif deceased sustained injuries and subsequently succumbed to the said injuries. Zobia child deceased was playing near the above-said deceased, who also sustained injuries by my fire-shots accidentally. I narrated the real facts before the police but police in collusion and in connivance with the complainant party concocted a false story and falsely involved us in this case. Other co- accused were not present at the time of occurrence."
' However, the appellants did to opt to make statements under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
8. Moreover on 29-6-2000 Muhammad Rafique S.-I./C.I.A., Gujranwala was examined as C.W.1 who stated that on 23-7-1996 while posted in C.I.A. Gujrat as A.S.-I., he had arrested Sharif acquitted accused and recovered .12 bore gun P.12 along with 9 cartridges Exh.P.17/1-9 which were taken into possession vide memo. Exh.P.T. On the same day he also recovered .30 bore pistol P.15 from the possession of Muhammad Afzal appellant which was loaded and on unloading 8 pellets were recovered from it which are P.16/1-8 and the same were taken into possession vide memo. Exh.P.U.
He arrested the above-said accused/appellant on 24-74997 who were proclaimed offenders.
9. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through this appeal while Criminal Appeal No,1239 of 2000 was filed against the acquitted accused.
10. Learned counsel for the appellants at the very outset does not challenge the conviction and prays for reduction of sentence as the sister of Muhammad Akram appellant had been abducted by the deceased Muhammad Asif and without contracting marriage she was kept and under grave and sudden provocation the appellants had no alternate except to take revenge. It is also contended that in such circumstances the conviction under section 302(b), P.P.C. May be converted to section 302(c), P.P.C. And the sentence may be reduced to imprisonment for five years. Relies upon 1998 PCr.LJ 1110 and 2006 PCr.LJ 497. It is next contended that Muhammad Aslam Investigating Officer (P.W.15) also admitted during investigation that the Nikahnama was not produced and the story of the prosecution that Asif deceased had contracted marriage against the wishes of the parents of Mst. Razia Bibi has been found false. In the alternate it is contended that if the conviction is maintained under section 302(b), P.P.C. Even then as the murder had been committed due to the family honour and the real sister had been murdered by the appellant Muhammad Akram, the sentences may be reduced to imprisonment for life at least.
11. Learned counsel for the complainant and the State on the other hand have opposed the prayer of the learned counsel for the appellants for reduction of sentence on the ground that four innocent persons were killed in their house in a gruesome manner while firing and even prior to this occurrence Muhammad Akram appellant after calling in his house for effecting compromise on the preceding night of the occurrence had committed the murders of two brothers of deceased Arif and Altaf, namely, Yousaf and Younas along with their father Ali Muhammad who had gone to the place of occurrence from Lahore while is armed with weapons and it was a pre-planned murder, hence it is not a case of lesser punishment and the convictions and sentences may be maintained.
12. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. The occurrence in the present case had taken place on 18-5- 1995 at 8-00 a.m. Within the area of village Chopala, 15 kilometers away from Police Station Saddar Jalalpur Jattan District Gujrat. The matter was reported to the police through the statement of Allah Ditta (P.W.3) made before Muhammad Aslam S.-I. (P.W.15). Allah Ditta complainant (P.W.3) is the maternal-uncle of the deceased Arif and Asif and was residing in the same village, whose house was adjacent to the house of the deceased. In the statement under section 154, Cr.P.C. He had given the details of the incident and it was specifically alleged that Muhammad Akram and Muhammad Afzal appellants were armed with Mausers. Muhammad Afzal had fired at Muhammad Asif deceased hitting on his neck and other parts of the body while Muhammad Akram appellant had fired at Arif hitting on the different parts of his body. Then Mst. Razia Bibi was also murdered by Muhammad Akram while firing at her hitting on her chest etc. Muhammad Afzal appellant also fired at Zobia alias Zubaida Bibi aged about three years who also died.
13. The motive of the occurrence also has been mentioned in Exh.P.E. That about three months ago Muhammad Asif deceased had contracted marriage with Mst. Razia Bibi sister of Muhammad Akram appellant against the wishes of the parents of Mst. Razia Bibi. It was also claimed that the matter was got patched up but the appellants had nourished the grudge and thus, committed the murders. The F.I.R. Was got lodged without any delay in which the details of the incident have been duly mentioned regarding the roles of the appellants played by them during the incident. The factum of prompt registration of the F.I.R. After the incident is further supplemented by the medical evidence as the postmortem examination of the two deceased namely Asif and Mst. Razia Bibi had been conducted by Dr. Khurshid Ahmad (P.W.5). The same day at 4-45 p.m. Thus, it can be said that the prosecution had not caused inordinate delay for concocting a story to falsely implicate the appellants in the present case.
14. To prove the ocular account the prosecution produced Allah Ditta complainant (P.W.3) and Mst.
Khalida Bibi (P.W.4). Allah Ditta (P.W.3) is paternal-uncle of both the deceased. Muhammad Asif and Muhammad Arif deceased were real brothers while Mst. Khalida Bibi (P.W.6) is their real sister.
The appellants are collaterals of the deceased and father of the appellants had shifted to Lahore, who had started his service at Lahore while living with his children there. Muhammad Asif deceased had also gone to Lahore and after developing intimacy with Mst. Razia Bibi sister of Muhammad Akram appellant, he had contracted marriage, according to the prosecution case, against the wishes of the parents of Mst. Razia Bibi. The house of Allah Ditta was adjacent to the house of the place of occurrence while Mst. Khalida Bibi also resided in the same locality and between the place of occurrence and her house there was only one house. The presence of both the eye-witnesses at the spot is established without any doubt, who had made consistent statements regarding the participation of the appellants in the present incident, the, manner in which the occurrence had taken place and the nature of injuries caused by both the appellants to the deceased. Both the P. Ws. Were subjected to lengthy cross-examination but the defence failed to cause any dent in their statements. They were natural and independent witnesses while the appellants are also closely related to them and there does not appear any reason to falsely implicate the appellants in the present case by the complainant party by letting off the real culprits when according to the complainant the matter had been patched up subsequently. The presence of Asif deceased along with Mst. Razia Bibi deceased in the house of former's parents house supports the prosecution version that the matter of contracting marriage with Razia Bibi by Asif after abducting her had been settled between the parties subsequently, otherwise they could not live in the said house, which was easily accessable by the relatives of Mst. Razia Bibi. Mere non- production of Nikahnama during the investigation is not sufficient to support the defence plea that Mst. Razia Bibi had been kept in the house as a keep without contracting marriage because it cannot be expected that the parents could allow their sons to continue such relation with a girl of their own family while living in the same house. It has been established through the ocular account that the appellants Muhammad Akram and Muhammad Afzal while armed with Mausers had appeared at the spot and fired at the persons of the four deceased resulting in their deaths.
15. The ocular account is fully supported by the medical evidence regarding the nature of the weapons used during the incident and the receiving of the fire-arm injuries. Even both the eye- witnesses remained consistent regarding the locale of the injuries sustained by the four deceased and we find that they were Independent witnesses having no motive to falsely implicate the appellants in the present case. The defence plea that Razia Bibi real sister of Muhammad Akram appellant after her abduction had been kept in the house of their parents by both the deceased brothers as a keep is not borne out from the record and thus, claim of Muhammad Akram appellant that on seeing them in an objectionable position he" had acted in the heat of passion seems to be afterthought story, which has rightly been disbelieved by the learned trial Court. It has been held by the august Supreme Court of Pakistan in Sultan Khan v. Sher Khan and others PLD 1991 SC 520 that if other sufficient evidence is available on the record, the exculpatory part of the statement of the accused having been proved false can be taken out of consideration. The bald statement of Muhammad Akram appellant that he had alone committed the occurrence is not sufficient to exonerate Muhammad Afzal appellant from commission of the occurrence who was attributed causing of specific injuries to the two deceased persons. Moreover, the manner in which the occurrence had taken place also shows involvement of more than one accused. Even otherwise Muhammad Afzal appellant had failed to show any good ground for false implication in the present case, if he had not accompanied Muhammad Akram appellant at the time of incident and had not participated in the occurrence as he was related to the complainant party as well and there was no previous enmity with him or the other family members. It was a daylight occurrence committed in the house of both the deceased men in which their real sister and a baby were also murdered and presence of the other relatives, who were residing in the same locality as discussed above in the house of the deceased at the time of occurrence cannot be doubted at all, which is further supplemented by the registration of prompt F.I.R. And timely conducting of post-mortem examination of the two deceased persons. Thus, we have no hesitation in holding that the prosecution had been able to bring home charge of Qatl-e-Amd to both the appellants beyond any shadow of doubt and the learned counsel for the appellants was right in not challenging their convictions recorded by the learned trial Court under section 302(b), P.P.C. Which being based on the evidence on record is maintained.
16. So far as quantum of sentence is concerned, we do not find any mitigating circumstances to withhold normal penalty provided for committing Qatl-i-Amd. The first contention raised by the learned counsel that Muhammad Akram appellant alone had committed this occurrence in a state of grave and sudden provocation on seeing his sister in an objectionable position with the two deceased brothers has already been found false by us and cannot be taken into consideration for lesser sentence. The other contention that at least the appellants had acted to save their family honour is also without any basis. If Mst. Razia Bibi sister of the appellant Muhammad Akram was abducted/eloped with Asif as per contents of the F.I.R. And they had contracted marriage against the wishes of her parents, it did not provide a licence to the relatives of the lady to commit their murder by taking the law in their hands as the aggrieved party had a right to agitate the matter by adopting the legal procedure and recourse to law. The taking of law in hands and murders of persons cannot be encouraged. In the present case not only Muhammad Asif was murdered along with his wife Mst. Razia Bibi but his brother Arif and baby Zobia alias Zubaida were also murdered through firing. The appellants admittedly were residents of Lahore, who had committed the offence in a gruesome manner after arranging the weapons and travelling to the far off village which shows their premeditation for the occurrence. Though the learned counsel for the complainant during the arguments has contended that Muhammad Akram appellant before the instant occurrence had also committed murders of two other brothers and father of Muhammad Asif and Arif deceased to show him desperate and criminal bent of mind yet we cannot take notice of it as no evidence has been brought in this regard on the record of this case. Both the appellants do not deserve for any leniency and the death sentence awarded to both of them by the learned trial Court is maintained/ confirmed. Resultantly, Criminal Appeal No,1131 of 2000 filed by Muhammad Akram and Muhammad Afzal is dismissed and the impugned judgment of conviction and sentence is maintained with the slight variation that the sentence of fine of Rs,1, 00,000 each awarded to the appellants is converted to compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment thereof they shall undergo only S.I. For six months each.
16-A. So far as Criminal Appeal No,1239 of 2000 filed by Muhammad Altaf against the acquittal of Muhammad Shabbir and Sharif co-accused is concerned, we have observed that the learned trial Court had given valid reasons for their acquittal. They were allegedly attributed only ineffective firing and that too while coming to the spot after the main occurrence had already been committed by the aforesaid convicts and admittedly the said respondents/accused had not taken part therein. No empty was recovered from the spot to supplement the role of ineffective firing attributed to them. They are close relatives of the appellant Muhammad Akram and also residing in the same vicinity. The prosecution has failed to adduce any evidence that they had any prior intimacy with the convicts for the commission of this occurrence. It also does not appeal to mind that why the acquitted accused/ respondents had come at the spot only to show their involvement after the main occurrence in which they had not participated. In such circumstances we find that no illegality or material irregularity had been committed by the learned trial Court by acquitting the respondents Muhammad Shabbir and Sharif as chances of their false implication in the present case being relatives of the main accused cannot be ruled out. We find no merit in this appeal against the acquittal of the respondents, namely, Muhammad Shabbir and Sharif, which is dismissed accordingly.
17. As a result of the above discussion Murder Reference No,663 of 2000 is replied in affirmative and the death sentence awarded to Muhammad Akram and Muhammad Afzal appellants by the learned trial Court through the impugned judgment is hereby confirmed.