' ASIF SAEED KHAN KHOSA, J.---Malik Muhammad Ashraf appellant was convicted on three counts of an offence under section 302(b), P.P.C. Vide judgment dated 2-4-2001 handed down by the learned Additional Sessions Judge, Lahore and was sentenced to death on each count and to pay a sum of Rs,50,000 to the heirs of each deceased on each count or in default of payment thereof to undergo rigorous imprisonment for six months on each count. The appellant has challenged his convictions and sentences before this Court. Through the present appeal which has been heard by us along with Murder Reference No,454 of 2001 seeking confirmation of the sentences of death passed by the learned trial Court against the appellant. 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. Safdar All complainant was a resident of Chah Janewala, Pakki Thathi, Samanabad, Lahore and his parents also used to reside with him at the said address. The complainant was running a General Store which was situated adjacent to his house. The complainant's father namely Malik Muhammad Ashraf, the present appellant, was a retired Head Constable of Police. About 7/8 years prior to the present occurrence the complainant's father, the present appellant, had quarreled with the complainant's mother and had shifted his residence to a house situated at Thokar Niaz Baig which house had been constructed by him.
About one year prior to the present occurrence the complainant's father had sold his house at Thokar Niaz Baig and after assuring the complainant's mother that he would not quarrel with her any more he had started living with the complainant's family and his mother again. The complainant's father had given a sum of Rs,60,000 to the complainant's mother for keeping in safe custody. After resuming his residence with the complainant and his family the appellant did not desist from his old habits and he once again started quarrelling with the complainant's mother and then he started demanding return of the money given by him to the complainant's mother. At about 9-00 p.m. On 23-7-1996 the appellant once again demanded return of money from the complainant's mother but the complainant's mother told him that she had already spent that money whereupon the appellant threatened the complainant's mother that he would deal with her appropriately and he went to his own room. During the same night at about 1-00 a.m. On 24-7-1996 the complainant, his mother namely Mst. Roqiyya Bibi, the complainant's son namely Muhammad Zaman, the complainant's niece namely Mst.Hina and the complainant's maid servant namely Mst.
Shehnaz Bibi were present in a room of the complainant's house along with the complainant's neighbour namely Qamar Gulzar and they were all watching television together. Suddenly the appellant entered the said room with a gun .12 bore in his hands and told the complainant's mother namely Mst. Ruqiyya Bibi that she would be taught a lesson for not returning the money.
The appellant then fired from his gun hitting Mst. Roqiyya Bibi on her chest. The second short fired by the appellant his Mst. Roqiyya Bibi on the left side of her back and upon receipt of those injuries Mst. Roqiyya Bibi died at the spot. Thereafter the appellant proclaimed that he would not spare anybody alive so that nobody could provide evidence against him. Upon hearing the appellant saying that the complainant and others started running away. The complainant's son namely Muhammad Zaman went to a different room but the appellant chased him to that room and fired at him hitting him on his right flank and upon receipt of that injury the complainant's son namely Muhammad Zaman also died there and then. The complainant's maidservant namely Mst.
Shehnaz Bibi also ran to a different room of the house but the appellant went to that room and fired at Mst. Shehnaz Bibi which fire hit her on her chest and upon receipt of that injury Mst. Shahnaz Bibi also died at the spot. The complainant, his niece namely Mst. Hina and his neighbour namely Qamar Gulzar ran out the house and bolted it from outside and, thus, they saved themselves. The complainant then proceeded to report the matter to the police and on his way he met a police officer before whom he submitted an application seeking registration of an F.I.R. In respect of the above mentioned incident at 1-30 a.m. On 24-7-1996. On the basis of the said application of the complainant formal F.I.R. No,113 was subsequently registered in respect of the said incident at Police Station Millat Park, Lahore at 1-50 a.m. On 24-7-1996 for an offence under section 302, P.P.C.
3. The investigation of this case was conducted by Muhammad Bashir, S.-I. (P.W.11) and Abrar Hussain Rizvi, S.-I./ S.H.O. (P.W.14). During the investigation the place of occurrence was inspected, blood-stained cotton and twelve crime empties were secured, injury statements and inquest reports were prepared, the dead bodies were sent to the mortuary for autopsy, a rough site-plan of the place of occurrence was prepared and the 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 was arrested and a gun .12 bore was recovered at his instance. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of trial the learned trial Court framed a charge with three heads under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced fourteen witnesses in support of its case against the appellant. Safdar Ali complainant (P.W.3) and Mst. Hina (P.W.4) furnished the ocular account of the incident in question and Safdar Ali complainant (P.W.3) also deposed about the motive. Abdul Sattar, FC (P.W.7) stated about recovery of a gun .12 bore at the instance of the appellant during the investigation of this case. The medical evidence was provided by Dr. Aamir Bashir (P.W.5), Dr, Ijaz Ahmad (P.W.8) and Dr. Tahir Qadir Khan (P.W.10). Muhammad Bashir, S.-I. (P.W.11) and Ibrar Hussain Riazvi, S.-I./S.H.O. (P.W.14) stated about the various steps-taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. And did not produce any witness in his defence.
7. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced him 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 one of eye-witnesses produced by the prosecution had turned hostile and the other two eye-witnesses produced by the prosecution had suppressed the real facts of this case. He has also argued that the motive set up by the prosecution had remained far from being established and the recovery of a gun .12 bore at the instance of the appellant during the investigation of this case did not provide the requisite corroboration to the ocular account. He has further argued that the medical evidence had contradicted the ocular account. He has, however, conceded that the presence of Safdar All complainant (P.W.3) at the scene of the crime at the relevant time was quite believable and the presence of Mst. Hina (P.W.4) at the spot was also acceptable and, therefore, it may be difficult for the appellant to deny his liability for the alleged murders but, according to him, the circumstances of this case were such that the appellant did not deserve a capital sentence on each count. He has, thus, maintained that it would serve the interests of justice well if the sentences of death passed by the learned trial Court against the appellant are reduced to imprisonment for life on each count. As against that the learned counsel for the State have maintained in unison that the appellant had brutally murdered, his own wife and a grandson as well as a maidservant inside the house of the complainant during the middle of a night and he had advanced no plausible explanation or justification for the said murders. They have, thus, canvassed 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 at some length and after going through the record of this case from cover to cover with their assistance we have straightaway observed that Malik Muhammad Ashraf appellant was the husband of Mst. Roqiyya Bibi deceased and a grandfather of Muhammad Zaman deceased whereas Mst. Shehnaz Bibi deceased was a maidservant in the house where the appellant resided. Both the eye-witnesses produced in this case by the prosecution, i.e,, Safdar Ali complainant (P.W.3) and Mst. Hina (P.W.4) were not only very closely related the deceased but they were also equally closely related to the present appellant. Safdar Ali complainant (P.W.3) is a real son of the present appellant besides being the father of Muhammad Zaman deceased, a son of Mst. Roqiyya Bibi deceased and the master of Mst.
Shehnaz Bibi deceased. Mst. Hina (P.W.4) is a daughter of a sister of Safdar Ali complainant (P.W.3) and she is also a daughter of the present appellant. She was also a first cousin of Muhammad Zaman deceased. Safdar Ali complainant (P.W.3) was nothing but a natural witness of the occurrence in issue because the occurrence had taken place inside his own house. The tune of occurrence was such that the complainant was likely to be present inside that house during the occurrence. There is absolutely no reason available on the record to suggest as to why Safdar Ali complainant (P.W.3) would be interested in falsely implicating his own father, i.e, the present appellant in the present case of triple murder. Mst. Hina (P.W.4) is a child B witness. Her parents resided in a house situated 2/3 houses away from the house of the complainant where the present occurrence had taken place. It is neither unusual nor unnatural for a grandchild to spend a night at the house of her grandparents, especially when the houses of the grandchild and the grandparents are situated close to each other in the same vicinity. This witness had absolutely no reason to falsely incriminate her grandfather, i.e, the present appellant for committing the triple murder in issue. Safdar Ali complainant (P.W.3) had made a consistent statement before the learned trial Court regarding the main occurrence and some discrepancies to be found in the statement made by Mst. Hina (P.W.4) were easily explainable with reference to her tender age. Both the said eye-witnesses had categorically pointed their accusing fingers towards the present appellant as the sole perpetrator of all the three murders committed in this case. Qamar Gulzar (P.W.1) was an outsider and he had refused to depose against the appellant before the learned trial Court. His hesitation in that regard was quite understandable because most probably he did not want to get involved in the whole affair. The statement made by Safdar Ali complainant (P.W.3) and Mst. Hina (P.W.4) before the learned trial Court regarding the main incident had inspired the confidence of the learned trial Court and they have also impressed us with their forthrightness and straightforwardness vis-a-vis involvement of the present appellant in the murders in question.
10. Being a real son of the present appellant and Mst. Roqiyya Bibi deceased Sardar Ali complainant (P.W.3) was in a good position to personally know the background of bitterness between the appellant and his wife namely Mst. Roqiyya Bibi deceased. The appellant's leaving the house of the complainant and living separately from his wife namely Mst. Roqiyya Bibi deceased for some time in the past, return of the appellant to the house of the complainant and resumption of his living with his wife namely Mst. Roqiyya Bibi deceased and the details of the monetary disputes between the appellant and Mst. Roqiyya Bibi deceased were circumstances which had to be in the knowledge of the complainant. Due to his very close relationship with the present appellant and his wife namely Mst. Roqiyya Bibi deceased the complainant's personal involvement in and knowledge about the entire issue between the present appellant and his wife namely Mst. Roqiyya Bibi deceased were not beyond contemplation. Even the utterances of the appellant before firing at Mst. Roqiyya Bibi deceased deposed about by Mst. Nina (P.W.4) had also confirmed existence of a monetary dispute between the appellant and his wife namely Mst. Roqiyya Bibi deceased. In these circumstances we have felt sanguine that the prosecution had succeeded in establishing the motive set up by it and the same had provided corroboration to the ocular account.
11. The gun .12 bore recovered in this case at the instance of the present appellant had matched with twelve crime empties recovered from the place of occurrence and the report of the Forensic Science Laboratory in that regard had been received in the positive. Although the gun and the crime-empties had been sent to the Forensic Science Laboratory together yet we have noticed that the two had been recovered within a short span of time and there is nothing available on the record of this case to suggest that the crime-empties had been manufactured after the present occurrence. Such an important piece of evidence cannot be brushed aside by us merely on the basis of conjectures or surmises, especially in the circumstances of the present case.
12. The medical evidence produced by the prosecution had provided ample support to the ocular account inasmuch as the crate and time of occurrence, the weapon used and the locale of the injuries stated by the eye-witnesses had all been substantially confirmed by the medical evidence.
In the over all assessm ent of the evidence available in this case slight contradictions between the ocular account and the medical evidence have not been found by us to be of such magnitude or character that they could detract us from the main strength of the prosecution's case against the appellant.
13. The stand taken by the appellant before the learned trial Court through his statement recorded under section 342, Cr.P.C. Was vague, ambiguous and quite evasive and the appellant had tailed to adduce any evidence in support of the said stance and, thus, he had miserably failed to dislodge the prosecution's case against him.
14. For what has been discussed above we have felt convinced that the prosecution had succeeded in establishing the appellant's guilt to the hilt. The appellant had not only murdered his old wife but had also murdered his innocent grandson and a minor maidservant by firing at them.
The savagery and brutality perpetrated by him, thus, calls for no mercy or sympathy in the matter of sentence. It is trite that mere old age of a proven murderer is not a valid or sufficient mitigating factor all by itself for withholding from him the normal sentence of death in such cases. This appeal is, therefore, dismissed and the convictions and sentences of the appellant recorded by the learned trial Court are upheld and maintained. It is, however, clarified that in case of the appellant's failure to pay compensation to the heirs of the deceased on each count he shall undergo simple imprisonment for six months on each count instead of rigorous imprisonment for six months on each count as ordered by the learned trial Court.
15. Murder Reference No,454 of 2001 is answered in the affirmative and the sentences of death passed by the learned trial Court against Malik Muhammad Ashraf appellant are confirmed.