This judgment will disposed of Criminal Appeal No. 1391 of 2004 filed by Fayyaz Ahmad, Tariq and Nisar Ahmad, appellants, who were convicted under Section 302(b) PPC and sentenced to imprisonment for life each and to pay compensation Rs. 100,000/- each or in default six months RI each with benefit of Section 382-B Cr.P.C. by learned Addl. Sessions Judge, Faisalabad vide his judgment dated 12.8.2004.
2. Brief facts of the case, as disclosed by Alamgir Masih complainant are that on 13.9.1999 at 4.00 p.m. in the evening he alongwith his brothers Riaz Masih and Rafique Masih were present in their house, where Khawar, Shahzad and Fayyaz sons of Noor Nazbi, Tariq and Shahzad sons of Akbar came there and took Riaz Masih brother of the complainant alongwith them. The complainant along with his brother Rafiq Masih and one Shaukat Masih followed them and accused took Riaz Masih to their agricultural land situated in the village They put off shalwar and Qameez of Riaz Masih and all the accused tied the feet of Riaz Masih with the clothes and hanged him upside down on a tree and the accused Khawar, Nisar, Fayyaz started beating him with sota, they put on fire to the clothes of Riaz Masih and used to put the same on various parts of his body to which his right upper arm and shoulder were burnt. The above said PWs came forward beseeched and rescued said Raiz Masih who became unconscious and when they were bringing said Riaz to their house on a cart he died in the way.
3. The motive as alleged was that Fayyaz Ahmad and Nisar Ahmad accused have a suspicion that Riaz Masih had developed illicit relations with their sister.
4. Investigation of the case was taken over by Khalid Hussain SI PW.12. He recorded the statement of the complainant Ex. PD, sent the same to the Police Station for registration of formal FIR, prepared inquest report Ex. PC and injury statement Ex. PB, went to the Place of occurrence, recorded the statements of PWs under Section 161 Cr.P.C., took into possession Ash vide memo Ex. PK. He arrested Shahzad, Tariq, Fayyaz and Khawar on 9.10.1999. On 11.10.1999 Khawar accused led to the recovery of sota which was taken into possession vide memo Ex. PF. On the same day Fayyaz Ahmad accused also led to the recovery of sota which was taken into possession vide memo Ex. PG. Thereafter the investigation was conducted by Lal Muhammad Khan Inspector. On 29.3.2000 he arrested Nisar Ahmad accused. After completion of remaining formal investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, DDA closed the prosecution case, then, the statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded their innocence.
6. After having read the entire prosecution evidence, statement of the appellant recorded under Section 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellants submits that according to eye-witnesses on beseeching by them the accused persons left the deceased alive; that according to doctor mode of death was asphyxia and cause of death was blunt trauma to the chest; that doctor who conducted the post-mortem examination gave the time between injury and death immediate but eye-witnesses had stated that deceased died after covering 1-1/2 square; that had the eyewintesses been present at the spot this occurrence could not have taken place; that the eye-witnesses were not present at the spot according to learned counsel, they have not seen the occurrence; that one witness had stated that he did not make any statement during the course of investigation before the police. He has relied upon PLJ 1994 Cr.C.
Lahore 473 and 1996 SCM R 1553 relevant at page 1554. Lastly learned counsel submits that if the Court is not satisfied with the arguments of acquittal of the appellants, no case under Section 302(b) PPC is made out and maximum it is a case under Section 302(C) PPC because motive given in the FIR was that the appellants had a suspicion against the deceased that he had illicit relations with their sister.
7. On the other hand learned State counsel submits that it was a day light occurrence; that FIR was promptly lodged; that the eye-witnesses and accused are resident of same village; that there is no material discrepancies in the statements of the eye-witnesses; that evidence of the PWs was recorded after 4-1/2 years and there was minor contradictions in their statements; that there is no motive for false implication of the accused; that relationship of PWs with the deceased is no reason for discarding their testimony; that there is no previous enmity between the parties and he supports the judgment passed by learned trial Court.
8. I have heard learned counsel for the parties. On one hand there is eye-witnesses account who had implicated the appellants in this case and on the other hand there is a denial on the part of the appellants that they had not committed the murder of the deceased. Most important point in this case in my opinion is motive of the case which is as under: "The motive as mentioned in the complaint is that Nisar Ahmad and Fayyaz Ahmad have a suspicion that Riaz Masih had illicit relations with their sister."
9. I am of the opinion that both the parties have concealed their actual design and role from the.
Court. They have not approached the Court with clean hand. They did not come forward with true version and in order to get guidance I rely upon Syed Ali Bepari vs. Nibran Mollah and other's (PLD 1962 SC 502) a full Bench judgment of Honourable Supreme Court. Head note-C is very important for the just decision of this case, in which, it was held that Incompleteness of tale should not deter Court from diawing proper inferences from evidence and circumstances.
10. While drawing my inference from the circumstances and facts of this base, I may state here that the appellants committed the murder of the deceased as he was having illicit relations with their sister in our society it has become a family honour especially in the villages of this country. Both the appellants namely Fayyaz Ahmad and Nisar Ahmad had taken part in this occurrence who are real brothers of said lady with whom the deceased had illicit relations, they alongwith their co- accused had committed the murder of deceased under grave and sudden provocation. The place 'of occurrence is dera of appellant party. The conduct of eye-witnesses is most unnatural. They did not try to interfere when the appellants had allegedly given, beating to the deceased; they even did not try to interfere while according to prosecution witnesses the deceased was being hanged on a tree. One prosecution witness namely Shaukat Masih' was examined by the Investigating Officer four months after the occurrence. PW.7 never made a statement and according to his statement he is real brother of the deceased. The number of injuries on the person of the deceased also suggests that it was a case of grave and sudden provocation so while maintaining the conviction and sentence awarded to the appellants, it is converted from life imprisonment under Section 302(b) PPC to Section 302(C) PPC and awards them 10 years R.I. with benefit of Section 382-B PPC.
11. As far as compensation to the legal heirs of the deceased is concerned, no compensation in such like cases can be awarded in view of judgment of Honourable Supreme Court of Pakistan in a case titled Mairaj Begum us. Ejaz Anwar and others (PLJ 1982 SC 435). With this observation instant appeal stands disposed of.