' IJAZ AHMAD CHAUDHRY, J.---Through this consolidated judgment we intend to dispose of Murder Reference No,284 of 2001 sent by the learned trial Court for the confirmation of death sentence awarded to Muhammad Sarwar convict accused as well as Criminal Appeal No,75-J of 2001 filed by Muhammad Sarwar appellant, together as both these matters have arisen from the same judgment dated 29-3-2001, rendered by the learned Additional Sessions Judge Sargodha whereby he has convicted Muhammad Sarwar appellant under section 302(b), P.P.C. For committing the 'Qatl-i-Amd' of two deceased namely Muhammad Hayat and Mst. Sakina Bibi and sentenced him to death on two counts with the direction for payment of compensation of Rs,50,000 under section 544-A, Cr.P.C. To the legal heirs of both the deceased each or in default of payment thereof to further undergo six months' S.I. Each.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.P.R/1) are that on 29-9-2000 at about 7-30 p.m., after harvesting wheat Muhammad Hayat complainant (deceased) along with his daughters namely Mst. Sakina Bibi (deceased) and Mst. Shamim came to their house situated in Chak No,67-Alif/NB. His wife Mst. Sobhan and his sons-in-law namely Rab Nawaz and Ahmad Nawaz were already present in the house. In the meanwhile, Muhammad Sarwar appellant while armed with .30 bore pistol, entered into his house and raised a Lalkara that he had come to teach them a lesson for forbidding him from visiting their house and then fired four pistol shots consecutively which hit the complainant on his left upper arm; his daughter Mst. Sakina Bibi ran to the house of Muhammad Ramzan, a neighbourer of the complainant, Muhammad Sarwar, appellant followed her and in the house of said Muhammad Ramzan, the appellant tired with his pistol which hit on her chest upon which she fell down and died on the spot. Thereafter, the accused-appellant while brandishing pistol in the air fled away from the spot.
3. The motive behind the occurrence was alleged to be that Muhammad Sarwar appellant was 'Damad' (son-in-law) of the complainant who used to visit the house of Muhammad Hayat complainant. He had tried to develop illicit relations with Mst. Sakina Bibi (deceased) daughter of the complainant, whereupon the complainant and Mst. Sakina Bibi (deceased) had forbidden him from visiting their house. Due to the said grudge Muhammad Sarwar accused-appellant had injured Muhammad Hayat, complainant and also committed the 'Qatl-i-Amd' of Mst. Sakina Bibi deceased. Leaving the dead body of Mst. Sakina Bibi (deceased) under the guard of Rab Nawaz (P.W.9) and Ahmad Nawaz (P.W.10), Muhammad Hayat complainant in injured condition (deceased) proceeded to report the matter to the police who met with Gul Hameed, S.-I. (P.W.13) at Bus-stop Dharema where he made statement (Exh.PR) at 4-00 p.m. On 29-4-2000, before him in respect of the present incident, on the basis of which formal F.I.R. No,137 (Exh.P.R./1) was subsequently drafted by Muhammad Ashraf, A.S.-I. (P.W.12) at the Police Station the same night at 9-15 p.m. Under sections 302/324, P.P.C. Subsequently, on 11-5-2000, Muhammad Hayat complainant injured also succumbed to the injuries.
4. The investigation of this case was conducted by Gul Hameed, S.-I. (P.W.13), and during the investigation, the dead bodies of both the deceased namely Mst. Sakina Bibi and Muhammad Hayat were inspected, injury statements and inquest reports were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the places of occurrence were inspected, blood-stained earths were secured, rough site-plans of the places of occurrence were prepared, the dead bodies of both the deceased were sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 5-5-2000; recovery of pistol .30 bore from the appellant's possession was effected and after completion of the investigation report under section 173, Cr.P.C.
Was submitted in the Court. It is pertinent to note that Muhammad Hayat complainant (who died later on also got medically examined in injured condition on 29-4-2000 at 9-45 p.m. Through Dr. Muhammad Afzal Warriach (P.W.1)).
5. The learned trial Court after supplying the requisite documents required under section 265-C, Cr.P.C. To the appellant framed the charge against him on 7-11-2000 to which he pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the -guilt of the appellant produced as many as 13 witnesses.
Medical evidence was provided by Dr. Muhammad Afzal Warriach (P.W.1), Dr. Muhanunad Sarfraz (P.W.2) and Dr. Muhammad Imtiaz (P.W.3), while P.W.4, Sikandar Khan, F.C. On 15-5-2000 had been given two sealed parcels containing blood-stained earth for onward transmission to the Office of Chemical Examiner. P.W.5, Muhammad Aslam, P.C. Took the dead body of Muhammad Hayat deceased to mortuary for autopsy while Muhammad Saleem Draftsman (P.W.6) had prepared the site-plans (Exh.P.D. And Exh.P.K./1) on the pointing out of the P.Ws. And P.W.7, Allah Ditta had identified the dead body of Mst. Sakina Bibi at the time of its post-mortem examination at DHQ Hospital Sargodha while P.W.8, Muhammad Aslam took the complainant (Exh.P.R.) to the Police Station for registration of the F.I.R. The ocular account of the incident in question was provided by Rab Nawaz (P.W.9) and Ahmad Nawaz (P.W.10) while P.W.11, Khizar Hayat H.C. On 30-4-2000 had received two sealed parcels containing blood-stained earth from the Investigating Officer for onward transmission to the office of Chemical Examiner, these were further handed over by him to Sikandar Hayat Constable (P.W.4) on 15-5-2000. P.W.12 Muhammad Ashraf , A.S.-I. After receiving the complaint (Exh.P.R.) had drafted the formal F.LR. (Exh.P.R./1) while the investigation of this case was conducted by Gul Hameed, S.-I. (P.W.13), who deposed about the various steps taken by him during the investigation.
7. After the close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied the allegations and professed his innocence. However, he took the defence plea as under:--
(i) "In fact I was present in my house which is quite adjacent to the alleged place of occurrence. I saw a young boy namely Ijaz son of Riaz who is a nephew of both the P.Ws. He was carrying a Titter in a cage. Sakina deceased and her sister Shamim were also with him and these three were coming back after harvesting the wheat holding sickles in their hands. In my view, firstly said Ijaz entered in a room, after a short while Sakina deceased also followed said Ijaz. They both bolted the room inside. It was not tolerable to me because Sakina deceased was like my daughter. I had brought her up like father and even otherwise I was looking after my father-in-law and his children like a custodian, and I felt it insulting for myself and whole of the family. Sakina deceased was my sister-in-law as well as she was daughter of my Khala. I asked my father-in-law Muhammad Hayat deceased why he was ignoring this embarrassing situation while I and Muhammad Hayat deceased were loudly speaking both the P.Ws. Attracted to the spot as they were also living in the same premises. They also abused me and in response I also abused them and an altercation took place between me, Muhammad Hayat my father-in-law and P.Ws. As well. In the meantime Rab Nawaz P.W. Rushed towards his residential house and he took with him a .12 bore gun. Sakina deceased also came out of that room and she also picked sickle in her hand. Shamim her sister also picked sickle while Muhammad Hayat deceased picked up his hatchet. Said Ijaz fled away from the spot. During this altercation and exchange of hot words Muhammad Hayat deceased shouted at me that I should take care of my own sister who was abducted and later on murdered by her husband and also abused me. Ahmad Nawaz P.W. Too called me with bad name and taunted me that I myself am Beghairat and all they attacked upon me with their respective weapons. I felt imminent danger at their hands as all of them were going to kill me and in this critical and dangerous situation just to threaten the above mentioned assailants I fired without aim just to rescue myself with my licensed pistol which I keep with me for my personal safety and security due to enmity with Atta Muhammad etc.
(ii) Sakina Bibi deceased also attacked upon me with sickle as narrated earlier at the same place where the altercation had taken place and I also fired without aim just to rescue myself which incidentally hit Sakina. I never entered in the house of Muhammad Ramzan nor I chased and fired at her in the house of said Muhammad Ramzan and as such, no occurrence did take place in the said house. I had no intention to kill any person. I had only acted in my self-defence.
(iii) Muhammad Hayat received only single injury on his non-vital part of his body. He was recovered after treatment, then he himself ran away from the hospital without permission. He remained alright for 3/4 days with the P.Ws. In his own house and thereafter he was killed in some suspicious circumstances by the P.Ws.
(iv) Both the PWs. Were inimical and were not on speaking terms with me as I had objected and agitated upon illicit relations between Sakina deceased and said Ijaz Ahmad nephew of the P.Ws.
About six months prior to this occurrence so they were annoyed with me. In fact the whole occurrence had taken place in the circumstances and situation mentioned by me in answer to question No,2. The P.Ws. Planted the story as per F.I.R. With their mutual consultation and by the help of concerned police officials while suppressing the actual facts which had taken place on the fateful day. P.Ws. Have deposed falsely against me due to their personal grudge against me. Both the P.Ws. Are real brothers and paternal uncles of said Ijaz, and this fact has been admitted by the P.Ws. During cross-examination and the same was my first version before the police as stated in detail before the Court today."
' He did not make statement under section 340(2), Cr.P.C. On oath, but he produced Mst. Mehran Bibi as (D.W.1) and Faiz Muhammad as (D.W.2) in his defence, who deposed that Mst. Sakina Bibi was of bad character and the appellant had acted in `Ghairat'.
8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellant as detailed in para. 1 ante. Hence, both these matters before this Court.
9. The learned counsel for the appellant contends that the appellant had acted under grave and sudden provocation and also in self-defence; that it was a case of lesser punishment; that both the eyewitnesses had admitted their enmity with the appellant and they had not spoken the whole truth; that in the recovery memo. (Exh.P.M.) whereby blood-stained earth had been collected from the place where Mst. Sakina Bibi (deceased) had received injuries did not contain that it was house of Muhammad Ramzan, that the eye-witnesses also admitted that Ijaz was present at the place of occurrence before the incident which supports the defence plea and the same being more nearer to the truth is acceptable in toto and the death sentence could not be awarded to the appellant, who had acted in self-defence and due to `Ghairat' in a state of sudden provocation.
10. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that the prosecution had been able to prove its case beyond any shadow of doubt; that mere close relationship of the witnesses inter se and with the deceased is not sufficient to declare them interested witnesses, who had no previous enmity to falsely implicate the appellant in the present case by letting off the real culprit; that the appellant was previously known to the witnesses who repeatedly fired at the complainant and then chased Mst. Sakina Bibi deceased in the house of Muhammad Ramzan and there were no chances of his misidentity; that the F.I.R. Was got recorded with promptitude which eliminates the possibility of concoction of story and false implication of the appellant who was also Damad of the complainant; that the appellant himself had admitted his presence at the spot and also firing at both the deceased and the defence plea is not borne out from the record; that the convictions and sentences under section 302(b), P.P.C.
Recorded by the learned trial Court through the impugned judgment being based on the evidence on record are liable to be maintained and the appellant having committed murder of both the deceased through firing in a brutal manner without any justification is not entitled to any leniency in the quantum of sentence.
11. We have heard the learned counsel for the parties and perused the record with due care and caution.
12. The occurrence in the present case had taken place at 7-30 p.m.. On 29-4-2000 in the house of Muhammad Hayat complainant (deceased) father-in-law of Muhammad Sarwar appellant, situate in Chak No,67/Alif North, 8 kms. Towards West from Police Station Jhall Chakian and the matter was reported by Muhammad Hayat complainant while making his statement (Exh.P.R.) to Gul Hameed, S.-I. (P.W.13) at Bus-stop Dharema, the same night at 9-00 p.m. On the basis of which formal F.I.R. No,137 (Exh.P.R./1) was drafted by Muhammad Ashraf A.S.-I. (P.W.12) at the Police Station the same night at 9-15 p.m. under sections 302/324, P.P.C., and as such the F.I.R. Was got lodged with promptitude, in which name of the appellant as a single accused was recorded, who made firing on both the deceased. The names of the P.Ws. Were also recorded therein.
13. To prove the ocular account the prosecution had produced two brothers namely Rab Nawaz (P.W.9) and Ahmad Nawaz (P.W.10) while Muhammad Hayat complainant had died due to the injuries sustained by him. No doubt both the eyewitnesses were sons-in-law of Muhammad Hayat (deceased) and also brothers-in-law (Behnois) of Mst. Sakina Bibi deceased and Muhammad Hayat complainant (deceased) was even otherwise their maternal uncle but mere close relationship is not a ground to declare them as interested witnesses because Muhammad Sarwar appellant was also closely related to them. Though both of them stated that they were not on speaking terms with Muhammad Sarwar appellant but they had no serious enmity or ill-will to falsely implicate Muhammad Sarwar appellant in the present case while letting off the real culprits if the appellant had not participated in the said occurrence. Both of them were subjected to lengthy cross-examination. They were natural witnesses being residents of the same Haveli where the occurrence had taken place and they had explained their presence at the spot, which was even admitted by the appellant in his statement under section 342, Cr.P.C. Both the parties were closely related to each other and had no motive to falsely implicate the appellant in the present case in which two persons were murdered. The matter was reported immediately after the occurrence which is supported by the medical examination of Muhammad Hayat deceased/complainant the same night at 9-30 p.m. Through police by Dr. Muhammad Afzal Warriach (P.W.1) and thus no time was left with the P.Ws. To concoct the false story or to implicate the appellant falsely. It is also relevant to point out here that question of misidentity of the accused in the light of the lantern does not arise as he was previously known to the P.Ws. Being a close relative and he firstly made repeated fires at the complainant and then chased the other deceased, namely Mst. Sakina Bibi in the house of Muhammad Ramzan, where she had gone to take a shelter. There does not appear any reason to falsely implicate the appellant in a case entailing capital punishment while letting off the real culprit for committing murder of his close relatives, if the appellant had not participated in the incident. The ocular account furnished by the both the eye-witnesses is trustworthy and confidence-inspiring, which alone is sufficient to connect the appellant with the commission of the crime.
14. The ocular account is supported by the medical evidence as fire-arm injuries were observed by the doctors on the dead bodies of both the deceased and they died as a result of the said injuries.
15. Though the alleged recovery of 30 bore pistol from the appellant is inconsequential as no empty was recovered from the spot, yet the same alone is not sufficient to exonerate the appellant, who even otherwise had admitted the commission of the present occurrence with his licensed pistol in a different manner.
16. Now we take up the defence plea of the appellant reproduced above in para. No,7 ante, according to which he had committed the occurrence in `Ghairat', self-defence and sudden provocation. It has been argued on behalf of the appellant that Mst. Sakina Bibi deceased was sister-in-law of the appellant, who was brought up by him and the appellant on seeing her in a room with Ijaz had lost his control and having been provoked by the deceased who while armed with sickles had tried to attack upon the appellant, he (appellant) in the state of grave and sudden provocation had fired aimlessly, as a result of which his father-in-law namely Muhammad Hayat and Mst. Sakina Bibi had died, hence it was a case of lesser punishment. We have observed that in the F.I.R. It has been stated that the appellant was son-in-law of Muhammad Hayat complainant/deceased being married with his daughter Mst. Maqsoodan Bibi about 12/13 years ago and he had attempted to develop illicit relations with Mst. Sakina Bibi deceased whereupon he was restrained from visiting the house and due to the said grudge, he had committed the murders of both the deceased. The stand taken by the appellant is that Ijaz who was son of sister of Rab Nawaz (P.W.9) and Rab Nawaz (P.W.10), had developed illicit liaison with Mst. Sakina Bibi deceased and the appellant had brought Muhammad Hayat complainant to the house constructed by him after purchasing the plot and he could not tolerate this beghairate whereupon he had fired under grave and sudden provocation. We have perused the entire evidence produced by the prosecution. It is admitted position that Muhammad Hayat complainant-deceased along with Mst.
Sakina Bibi deceased, his wife and other sisters as well as sons-in-law was present in the same house and it cannot be accepted that in the presence of all the family members Ijaz a boy of 14/15 years and Mst. Sakina Bibi a girl of 14/15 years would go inside the room and bolt it from the inside.
The appellant was also closely related to them and we don't accept that all the family members would keep quite if the occurrence had taken place in the manner narrated by the appellant and both Mst. Sakina Bibi and Ijaz would dare to do adultery in the presence of the other family members at the start of the night hours as claimed by the appellant. The evidence of the two D.Ws.
Produced by the appellant in no way is sufficient to support the defence plea as they never claimed that they were present at the time of occurrence and it had not taken place in the manner narrated by the P.Ws. Even otherwise, this part of defence plea is not borne out from the record that the appellant on seeing Mst. Sakina Bibi with Ijaz in a room had acted in `Ghairat' as he had firstly fired at Muhammad Hayat complainant deceased and then after chasing Mst. Sakina Bibi, who on seeing the appellant in such a mood had rushed towards the house of Muhammad Ramzan, which was in front of the house of the complainant had tired at her in the courtyard of the house of said Muhammad Ramzan, who succumbed to the injuries at the spot. It is also strange that if the appellant had seen her with Ijaz in a room she would have been murdered in the said room and why said Ijaz was let off by the appellant. Mere non-mentioning of the house of Muhammad Ramzan in the recovery memo. (Exh.P.M.) of collecting blood-stained earth from the place of murder of Mst. Sakina Bibi is not sufficient to declare that she had not been attacked there as both the eye-witnesses consistently stated that she was fired at by the appellant in the house of Muhammad Ramzan.
17. So far as plea regarding exercise of right of self-defence is concerned, we have noticed that the appellant was not aggressed upon by the complainant party, but he himself had entered in the house of both the deceased while armed with fire-arm and made firing resulting into death of two innocent persons namely Muhammad Hayat complainant and Mst. Sakina Bibi, who were also closely related to him, but he himself did not receive any injury. In such circumstances, the defence plea raised by the appellant appears to be an afterthought story, which has rightly been discarded by the learned trial Court. Moreover, the appellant was not having any licence for murdering his sister-in-law aged about 14/15 years even if he had some suspicion about her character as her parents were alive and living in the same house who could have looked after Mst. Sakina Bibi their daughter better than the appellant who was only one of the brothers-in-law of said Mst. Sakina Bibi. Moreover, Muhammad Hayat father-in-law of the appellant was also murdered in the same incident by firing at him without any reason. In such circumstances we find no justification with the appellant for taking lives of two innocent persons.
18. For the foregoing reasons, we have no hesitation in holding that the prosecution had been able to bring home guilt to the appellant beyond any shadow of doubt. Resultantly, the conviction recorded by the learned trial Court under section 302(b), P.P.C. Is maintained. So far as quantum of sentence is concerned, we don't find any mitigating circumstances in the present case for withholding normal penalty of death provided by the Legislature for `Qatl-i-Amd awarded to him by the learned trial Court as he had murdered two innocent persons while firing upon them repeatedly, which shows him a desperate person. Thus, the death sentence awarded to the appellant by the learned trial Court is also maintained. This appeal stands dismissed accordingly.
19. Consequently, the death sentence awarded to Muhammad Sarwar, convict-appellant, is confirmed and Murder Reference No,284 of 2001 is replied in the affirmative.