MUHAMMAD FARRUKH MAHMUD, J.---Mukhtar alias Sadri, Zulfiqar Ali and Abbas, appellants, along with their co-accused, namely, Khadim Hussain, Riaz, Zia Ullah alias Bhagga, Zubair Khan, Akhtar and Hayat, were tried by the learned Additional Sessions Judge, Sheikhupura, in lieu of case F.I.R.
No,321 registered at Police Station on 3-8-1999 for offences under sections 302/148/149, P.P.C. For having committed the double murder of Ghulam Abbas and Ihsan Ullah. Vide judgment dated 27- 2-2001, the learned trial Judge, while acquitting the aforesaid co-accused, convicted each of the appellants for offence under section 302 (b), P.P.C. Read with section 34, P.P.C. And sentenced each of them to death plus payment of Rs,50,000 each as compensation to the legal heirs of the each deceased, in default in payment whereof to undergo S.I. For six months each.
2. Mukhtar alias Sadri, Zulfiqar Ali and Abbas, convicts-appellants, have challenged their above noted convictions and sentences through the instant appeal. Murder Reference No,533 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellants has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution case as per F.I.R. Exh.PJ registered by Atta Muhammad, Inspector/P.W.9, at the instance of Tasawar Abbas, complainant/ P.W.3, are that four years ago, Farzana daughter of Ahmad was married with Zulfiqar. One year prior to the occurrence, on account of estrangement of relations between the two, she filed a suit for dissolution of marriage at Mandi Baha-udDin. The complainant party wanted to take the hand of Mst. Farzana for Ihsan On 3-8-1999, in order to get divorce from Zulfiqar through Panchayat, the complainant along his brothers Ihsan Ullah and Ghulam Abbas, Muhammad Aslam, Riaz Ahmad and Haji Muhammad Sharif went to Purani Abadi Khanqah Dogran. The members of the Punchayat Haji Muhammad Sharif/P.W.4 etc. Decided that the complainant party would pay Rs,25,000 to Zulfiqar, who, in turn, would divorce Farzana. After this decision, at 5-00 p.m. When they were on their way back and passing through a street, Mukhtar alias Sadri armed with .7mm rifle, Zulfiqar armed with .12 bore double barrel gun, (both appellants), Riaz empty-handed, Abbas (appellant) armed with .12 bore single barrel gun, Zubair Khan, Akbar, Khadim and Hayat (the four empty-handed), while raising Lalkara, came there. Mukhtar alias Sadri/appellant fired at Abbas, hitting on the left side of his chest. The fire-shot by Zulfiqar hit Abbas on his left knee. Abbas fell on the ground. Then Zulfiqar/ appellant fired hitting Abbas (deceased) on the back of his right shoulder. Mukhtar fired hitting Ihsan Ullah on his chest. In order to save his life, Ihsan Ullah entered into a room of the house of Sardar and bolted the room from inside. The appellants Zulfiqar and Abbas son of Ahmad broke out the door and dragged out Ihsan Ullah (deceased) from the room. Abbas/appellant fired at Ihsan Ullah hitting him on the left side of his abdomen. The fire-shot by Zulfiqar/appellant hit Ihsan Ullah on his buttock and underneath the penis. The accused, while resorting to aerial firing decamped from the scene of occurrence. Thereafter the complainant/ P.W.3 and Mst. Kausar, wife of Abbas and sister of the Complainant Riaz/P.W.2, Haji Muhammad Sharif/P.W.4, And Muhammad Aslam attented to both the injured Ihsan Ullah and Ghulam Abbas who had succumbed to the injuries.
' The motive behind the occurrence was the divorce of Mst. Farzana.
4. On 3-8-1999, after recording F.I.R. Exh.PJ at the instance of Tasawar Abbas/complainant, Atta Muhammad, retired Inspector/P.W.9, went to the place of occurrence, prepared injury statements of both the deceased Ghulam Abbas and Ihsan Ullah (Exhs.PB and PC) and inquest reports (Exhs.PD and PH) and got the postmortem examination of the deceased. He also secured two empties of .7mm P.1/1-2 and took the same into possession vide memo. Exh.PM. He prepared the rough site- plan of the place of occurrence (Exh.PT). He secured blood-stained earth from the places where the dead bodies were lying and sealed the same through memo. Exhs.PK and PL. He got prepared the scaled site-plan of the place of occurrence (Exhs.PI and PI/1) from Muhammad Riaz, Draftsman/P.W.2.- The investigation was then entrusted to Abdul Munaf, A.S.-L/ P.W.7. On 20-8-1999, Mukhtar, Zulfiqar and Abbas, appellants, were arrested. On 26-8-1999 Mukhtar/appellant led to the recovery of .7 mm rifle P.10, which was taken into possession vide memo. Exh.PQ. On the same date, Zulfiqar/appellant led to the recovery of .12 bore double barrel gun P.11 which was taken into possession vide memo. Exh.PR. On the above noted date, Abbas appellant led to the recovery of .12 bore single barrel gun P.12 which was. Taken into possession through memo. Exh.PS. After completion of investigation, the appellants were sent up to face trial.
5. To prove its version at the trial, the prosecution produced nine witnesses. Ocular account was furnished by Tasawar Abbas/P.W.3 and Muhammad Sharif/ P.W.4. In addition to that, they also stated about the motive. On 4-8-1999 Dr. Sohail Khizr/P.W.1 conducted post-mortem examination on the dead body of Ghulam Abbas. He found the following injuries on his person:--
(i) One lacerated fire wound of entry 2 x 2 c.m. On the front and upper outer most part of left chest 6 c.m. From left nipple making an exit wound 2.5 x 2 c.m. At the back and mid part of right chest.
The injury damaged skin muscles, fractured third rib on left side. Damaged left lung, heart, right lung 7th rib of right side.
(ii) Fire-arm wound of entry 1 x 1 c.m. On the outer side of left wrist joint making an exit wound 1.2 x 1.2 c.m, at the radial side of left wrist joint. The injury damaged skin muscles and fractured the radius bone.
' In the opinion of the doctor, the death occurred due to severe haemorrhage and shock leading to cardio-respiratory failure. All the injuries were collectively, while Injury No,1 was individually, sufficient to cause death in the ordinary course of nature. Duration between the injuries and death was immediate, while it was 18 to 24 hours between the death and post-mortem examination. On the same day, the doctor also conducted post-mortem examination on the dead body of Ihsan Ullah and found the following injuries on his person:--
(i) Fire-arm wound of entry 1 x 1 c.m. At the front and upper part of left arm making an exit wound 1.5 c.m. At the inner and upper part of left arm making re-entry l x 1 c.m at the outer and upper middle part of left chest. The injury damaged 6th rib of left side. Bullet was removed from 8th thoracic vertebra. Bullet did not enter in the chest cavity. Injury damaged skin muscles and left arm, skin muscle and left chest, fractured 6th rib.
(ii) Fire-arm wound of entry 1 x 0.7 c.m. On outer and lower part of left abdomen 12 c.m. From umbilicus making exit wound 1.5 x 1.5 cm. On the upper and medial side of left buttock. The injury damaged skin muscles, major blood vessels, small and large gut mestesty, fractured left hip bone.
' In the opinion of the doctor, the cause of death was severe haemorrhage and shock leading to cardio-respiratory failure. Both the injuries were collectively, while Injury No,2 individually, sufficient to cause death in the ordinary course of nature. Duration between the injuries and death was immediate, while between the death and post-mortem it was 18 to 24 hours. Atta Muhammad, retired Inspector/P.W.9 stated about the registration of the case and the investigation thereafter.
Abdul Munaf, A.S.-I./P.W.7, also investigated the case partly. The rest of the prosecution evidence, being formal in nature, need not be discussed.
6. In their statements recorded under section 342, Cr.P.C., the appellants pleaded their innocence and false implication. Mukhtar alias Sadri/appellant took the plea of alibi S in the following words:-- ' "I am innocent. At the time of occurrence I was driving the tractor trolley of one Rauf Gondal resident of Khanqah Dogran and was away from the place of occurrence about 3-4 miles and were loading the earth. I received information of the present occurrence while I was 3/4 miles away from the place of occurrence."
' However, Zulfiqar and Abbas, appellants, made somewhat similar statements but different than Mukhtar. The statements of Zulfiqar in reply to question "Have you anything else to say" is to the following effect:- ' "I am innocent. After the Panchayat Abbas deceased asked Ahsan Ullah deceased that they had succeeded to take woman in consideration of Rs,25,000 whereas in such amount an ass cannot be purchased. On this altercation took place. I and Abbas son of Ahmad grappled with Ahsan Ullah and Abbas deceased. Two unknown persons made firing in the Panchayat resulting into the death of Ghulam Abbas and Ehsan Ullah deceased. I have been falsely involved in this case."
' However, none of the appellants either appeared as a witness in his defence as contemplated by section 340(2), Cr.P.C. Or produced any witness in defence.
7. Learned counsel for the appellants submits that both the eye-witnesses were chance witnesses; that one who is the complainant, is brother of one of the deceased, while the other Haji Muhammad Sharif is employer of one of the deceased; that both the witnesses involved a number of persons, of whom seven were acquitted by the learned trial Court; that no independent witness from the place of occurrence has been produced; that the medical evidence belies the statements of P.Ws. Vis-a-vis Zulfiqar and Abbas, appellants; hence, they cannot be believed as against Mukhtar; that the motive as set down in the F.I.R. Would not advance the prosecution case, as after settling the issue, there was no need to fire upon the complainant party; that no empty of '.12 bore gun was recovered from the spot although it was alleged that Zulfiqar and Abbas were armed with .12 bore guns and had used the same during the occurrence; that in any case, it was not a case of capital punishment as after the settlement of the issue, the complainant party was teasing and taunting remarks which provoked the appellants.
8. Conversely, the learned counsel for the complainant submits that the presence of the witnesses is established, as both of the accused admitted that Panchayat was convened on that day to resolve the issue of Farzana's divorce; that question of identity of the assailants is not involved, as the parties knew each other very well; that F.I.R. Was lodged promptly; that the ocular account is supported by the medical evidence to the extent of Mukhtar as well as the factum of tallying of empties with the weapon recovered at the instance of Mukhtar; and that the appellants have acted in a cruel manner taking the lives of two innocent persons. The learned counsel appearing on behalf of the State have adopted the line of arguments of the learned counsel for the complainant. They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. Tasawar Abbas/P.W.3, who is brother of both the deceased, and Haji Muhammad Sharif/P.W.4, have furnished the ocular account and have also stated about the motive. Both of them along with the deceased and other P.Ws., who were not produced, travelled from Mandi Baha- ud-Din to the place of occurrence which was a Purani Abadi of Khanqah Dogran. The occasion was that Farzana, who was married with Zulfiqar-appellant four years prior to the occurrence, had left the house of her husband and had filed a suit seeking dissolution of marriage in Mandi Baha-ud- Din. It is in evidence that she was living with the complainant party. The complainant party in order to obtain divorce from Zulfiqar, as they intended to marry Farzana with Ihsan Ullah deceased, went to Purani Abadi Khanqah Dogran. Haji Muhammad Sharif accompanied the complainant party, as a Panchayat was to be convened. During Panchayat, it was decided that twenty five thousands rupees would be paid to Zulfiqar as expenses and thereafter he would divorce Mst. Farzana. The Panchayat ended at about 2-00 p.m. Then the complainant party went to the house of Ahmad Buttar and in order to go to Mandi Baha-ud-Din, they left the house of Ahmad Buttar at about 5-00 p.m. When they were surprised by the accused while they had covered a distance of about three acres. Ten persons were named as accused in the F.I.R., out of whom* the appellants were saddled with the responsibility of firing. The learned trial Court acquitted seven of-the accused, who, allegedly had raised Lalkara and convicted all the accused who were assigned the role of firing.
The presence of the P.Ws, at the spot is established by the facts that two of the members of the complainant party died at the spot; the matter was reported to the police within forty five minutes by P.W.3; A it could not be done if he would not have been present at the scene of occurrence and from the fact that the appellants, Zulfiqar- who is husband of Farzana and Abbas-who is brother of Farzana, admitted the convening of the Panchayat. However, both the witnesses have given exaggerated account of the occurrence and it is necessary to sift the grain from the chaff.
11. As per F.I.R., Abbas deceased received fire on the left side of chest which was caused by Mukhtar appellant by his rifle. Then Zulfiqar appellant fired with his gun which hit Abbas deceased on his left knee. Abbas fell on the ground. However, Zulfiqar allegedly caused another fire with his gun which hit Abbas on his back under right shoulder. The appellant Abbas son of Ahmad was not assigned any fire on Abbas deceased. As against the statement of P.Ws., Dr. Sphail Khizar, who had conducted the post-mortem examination on the dead body of Ghulam Abbas, found one injury on the front and outer and upper most part of left side of chest. The injury caused an exit wound on the back mid part of right chest. Injury No,2 was on the outer side of left wrist joint making an exit wound at the radial side of left wrist joint. It is manifest that the injuries attributed to Zulfiqar do not find support from the medical evidence It appears that as the exit wounds were on the back of mid part of right chest, the same injury was attributed to Zulfiqar. In addition to that, there was no blackening, burning or charring around the wound, which would have been there in case Zulfiqar had fired from such a close range. The witnesses tried to improve their statements by stating that the fire caused by Zulfiqar landed on the left wrist but they were confronted by their earlier statements.
12. Now coming to Ihsan Ullah deceased; according to F.I.R,, Mukhtar was the first to fife with his rifle on Ihsan Ullah which hit on the chest. After receipt of injury Ihsan Ulalh went inside the house of Ahmad, entered a room and locked the same from inside. Zulfiqar and Abbas, appellants, broke the door, took Ihsan out of the room and thereafter Abbas fired which hit on the abdomen of Ishan Ullah. Then Zulfiqar fired with his gun which hit Ihsan Ullah on buttock and underneath the penis.
According to P.W.4, Ishan Ullah was dragged out of the room and was fired from a distance of 4/5 feet. Perusal of postmortem report reveals that Ihsan Ullah sustained only two injuries and not three as claimed by the witnesses. Injury No,l which was attributed to Mukhtar was in accordance with the statements of the P.Ws., while describing Injury No,l, the doctor mentioned that bullet was removed from the body, which makes it clear that the injury was caused by a rifle and was not a gun shot wound. Injury No,2j which was an entry wound, was on outer and lower part of left abdomen l2 c.m. From umbilicus making an exit wound on the upper and medial side of left buttock. So the injury, which was exit wound, was attributed to Zulfiqar. Furthermore, no blackening or tattooing was present around the wound to justify, the statements of the P.Ws, that Injury No,2 was caused from a distance of 4/5 feet. The doctor was not able to give any opinion whether Injury No,2 was the result of a bullet or the result of a rifle. The prosecution has implicated two persons Zulfiqar and Abbas for one injury. So it cannot be said which of the two caused the injury nor it can be said with certainty that the injury was not caused by a rifle. Neither any broken door was taken into possession by the Investigating Officer nor was any l2 bore empty recovered from the spot. The circumstantial evidence does not support the prosecution case against Zulfiqar and Abbas appellants. It is salutary principle of law that benefit of doubts is to be given to the accused and one doubt genuinely arising out of the circumstances of the case would be enough for acquittal.
13. For what has been said above, while extending benefit of doubt to Zulfiqar and Abbas, appellants, we allow this appeal to their extent and set aside the judgment passed by the learned trial Court accordingly. Zulfiqar and Abbas are acquitted of all the charges. They would be released forthwith, if not required in any other case. Their death sentence is NOT confirmed. The Murder Reference to their extent is answered in the negative.
14. As far as Mukhtar appellant is concerned, the ocular account is fully supported by the medical evidence and is corroborated by the factum of tallying of empties of .7mm with the rifle recovered at his instance. Perusal of report of Forensic Science Laboratory Exh.PV reveals that the empties and the recovered rifle were not sent together, rather the empties were sent much earlier than the recovery of the rifle. This fact rules out any fabrication on the part on the Investigating Officer. In his statement recorded under section 342, Cr.P.C., Mukhtar appellant took the plea of denial and alibi.
According to him, at the time of occurrence he was driving the tractor of Rauf at a distance of 3-4 miles from the spot and was loading the earth. In support of his plea, neither he himself appeared as a witness nor did he produce any defence witness nor the same is borne out from the circumstances of the case. The defence plea, being devoid of any substance, is rejected. Learned counsel for the appellants, has argued that it was not a case of capital punishment, as the real motive was suppressed by the prosecution. According to him, there was no need to launch attack at the complainant party when the matter had been settled. We are afraid, we cannot agree with the learned counsel, as Mukhtar appellant, while armed with a rifle, took the lives of two innocent persons through repeated fires. It was observed by the Honourable Supreme Court in the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427) that insufficiency of motive or the motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment. The apex Court had followed its own judgment passed in the case of Saeed Akhtar and others v. The State reported as 2000 SCM R 383.
15. In view of the circumstances noted above, this appeal is dismissed to the extent of Mukhtar alias Sadri-appellant. The judgment passed by the learned trial Court qua him is maintained. His death is confirmed. The Murder Reference to his extent is answered in the affirmative.