' MUHAMMA D FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No,142-J of 2002 filed by Subha Sadiq @a Suba and Criminal Appeal ; No,143-J of 2002 filed by Muhammad Aziz, who along with Muhammad Abbas and Maqsood Ahmad faced trial in complaint case titled Mst. Iqbal Bibi v. Suba Sadiq alias Suba etc. ' During investigation of case F.I.R. No,241, registered at Police Station Chuchak, , District Okara, on 18-6-2000 for offences under section 302/34, P.P.C. Muhammad Abbas and Maqsood Ahmad were declared innocent by the Investigating Officer and the complainant feeling dissatisfied with the investigation filed complaint against all the four accused named in the F.I.R. On 14-12-2000. The learned Additional Sessions Judge, Okara, after conclusion of trial, vide judgment dated 27-3-2002 while acquitting Muhammad Abbas and Maqsood Ahmad, convicted Subha Sadiq and Muhammad Aziz-appellants under section 302(b)/34, P.P.C. And sentenced them to death with compensation of Rs,1,50,000 each or in default six months' S.-I. Each.
2. Murder Reference No,219 of 2002. For confirmation or otherwise of death sentence of appellants shall also be disposed of through this single judgment.
3. Briefly, the facts of the case as mentioned in private complaint are that Mst. Iqbal Bibi- complainant was resident of Chak Alwardi District Pakpattan, as she was married with Madad Ali resident of the said Chak. On the fateful night she along with her husband had come to her parents in village Mitha Bhatti District Okara. At about 2-30 a.m. While the light was on and the complainant was feeding her baby, Subha Sadiq alias Suba armed with .30 bore pistol, Muhammad Aziz alias Matto armed with .12 bore gun, Maqsood Ahmad armed with Carbine and Muhammad Abbas armed with .30 bore pistol (all residents of the village and closely related to the complainant party) reached there and Subha Sadiq caused fire at Muhammad Aslam father of the complainant which hit him on his belly and exited from back, Muhammad Aziz fired at Muhammad. Saleem brother of the complainant, which landed on his chest, Muhammad Abbas fired repeatedly with his 30 bore pistol at Mst. Fatima Bibi mother of the complainant, which landed on different parts of tier body.
She succumbed to the injuries at the spot. Muhammad Aslam and Muhammad Saleem father and brother of the complainant ran away to save themselves. Muhammad Saleem entered into the house of his step-brother Muhammad Abbas and Muhammad Aslam father of the complainant followed by all the accused, who captured him in the street, and Maqsood Ahmad fired on him which landed on the right side of his forehead and exited from the back of his head. Subha Sadiq also caused fire at him which hit on his right thigh. Muhammad Aslam died at the spot. The hue and cry raised by the complainant party attracted the residence of the village. Thereafter the accused ran away from the spot. Muhammad Saleem, who was seriously injured, was shifted to Civil 'Hospital, Okara, but he died on the way.
4. The motive behind the occurrence was that Muhammad Aslam-deceased father of the complainant sold a piece of land from joint Ahata 20/25 days prior to the occurrence to one Haji Muhammad Sadiq resident of the same village, which caused annoyance to the accused. For that reason the accused had committed the offence although they had already filed a civil suit against Muhammad Aslam and others in that regard.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Amin S.-1./C.W.1, who conducted thorough investigation, arrested the accused and after effecting recovery of weapons used during the occurrence, sent them to face trial..
6. At the trial, the prosecution in order to prove its case produced 16 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PBB and Exh.PCC and that of Forensic Science Laboratory Exh.PDD closed its case.
7. Subha Sadiq-accused in his statement recorded under section 342, Cr.P.C. In reply to question "why this case against you and why the P. Ws. Have deposed against you?" stated as under:- ' "The P. Ws.. Have deposed falsely. The real facts of this case are that I and Aziz accused had murdered the deceased person. Muhammad Abbas and Masood co-accused were not along with us. The reason of this occurrence is that Muhammad Aslam deceased was married with Mst.
Hanifan Bibi daughter of Ghulam Fatima deceased. During this marriage, Muhammad Aslam deceased developed illicit relations with his mother-in-law/aunt in the life time of his uncle Ghulam husband of Ghulam Fatima deceased. There was no Nikah solemnized between Aslam and Ghulam Fatima deceased. Iqbal Bibi P.W. And Muhammad Saleem deceased illegitimate children of Muhammad Aslam deceased. At last I and Aziz accused from our Brothery got Ghariat' and removed this evil from earth under grave and sudden provocation and to save the prestige and honour of our Brothery. I and Aziz accused surrendered before police along with our weapons immediately after the occurrence voluntarily.
' We had not murdered the deceased persons due to dispute of Ahata measuring 10 Marlas. Abbas and Maqsood accused are innocent".
' While on the same question Muhammad Aziz-accused in his statement under section 342, Cr.P.C.
Replied as under:- ' "The P.Ws. Have disposed falsely. The real facts of this case have been stated by my. Co-accused Subha Sadiq alias Subha in his statement under section 342, Cr.P.C. I also rely on his statement. The reason of the occurrence is that Muhammad Aslam deceased was married with Mst. Hanifan Bibi daughter of Fatima deceased. During this marriage, he developed illicit relations with Mst. Fatima Bibi deceased. There was no Nikah between Muhammad Aslam and Fatima Bibi deceased and Iqbal Bibi P.W. Along with her brother Muhammad Saleem deceased were illegitimate children of Muhammad Aslam deceased. I and Subha Sadiq co-accused from our Brothery got Ghariat and removed this evil from the earth under grave and sudden provocation with a view to save the prestige and honour of our Brothery. I along with Subha Sadiq co-accused surrendered before the police along with our weapons immediately after the occurrence voluntarily. Abbas and Maqsood accused are innocent. We had not murdered the deceased due to the dispute of Ahata."
' They did not appear as witness under section 340(2), Cr.P.C. Mansab Ali and Muhammad Nadeem appeared as D.Ws.1 and 2. In the instant case Muhammad Amin, S.-I. And Muhammad Nawaz. Khan also prepared as C.Ws.1 and 2. After conclusion of trial, the learned trial Court while acquitting Muhammad Abbas and Maqsood Ahmad convicted and sentenced the appellants as stated above.
8. The learned counsel for the appellants has contended that Muhammad Aslam and Mst. Fatima Bibi deceased were living a sinful life, hence the appellants killed them and their son due to grave provocation, thus the appellants did not deserve capital punishment.
9. On the other hand, the learned Additional Prosecutor General submits that the circumstances of the case do not support the case of the appellant that it was a case of grave and sudden provocation; and that the appellants took the life of three innocent persons and deserve no leniency.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. The occurrence took place at 2-30 a.m. During night, while the deceased were sleeping in their house. In order to prove its case the prosecution produced three witnesses namely Mst. Iqbal Bibi P.W.1, daughter of Muhammad Aslam-deceased, her husband Madad Ali P.W.6 and Manzoor Hussain P.W.2. Undeniably Mst. Iqbal Bibi and Madad Ali were residents of Chak Alwardi, Police Station Chak Baidi, District Pakpattan, while the occurrence took place in the Chak Mitha Bhatti, within the territorial jurisdiction of Police Station Chochak, District Okara. According to Mst.
Iqbal Bibi, she and Madad Ali went to the house of the deceased in the evening proceeding to the night of occurrence. There was no special occasion for visiting the house of parent on that particular day. Mst. Iqbal Bibi and Madad Ali have contradicted each other on all material points.
Most importantly had they been there at the time of occurrence the accused would not have spared either Mst. Iqbal Bibi or her husband Madad Ali, as according to the plea of the appellants Muhammad Aslam and Mst. Fatima Bibi were living a sinful life and Muhammad Saleem and Mst.
Iqbal Bibi were their illegitimate children. They killed brother of Mst. Lqbal Bibi so they would not have spared her. Mst. Iqbal Bibi also could not satisfactorily replied as to how she come to know about the death of Muhammad Saleem prior to registration of case, as Saleem had been taken to Civil Hospital, Okara after he was wounded. According to Madad Ali, the accused remained present for about 1/2 hour or one hour while according to Mst. Iqbal Bibi the accused remained present for two hours, which means that the accused remained present at the spot till 4-30 a.m. Then the case could not be registered at 4-05 a.m., as according to P.Ws. They went to the police station after the accused left. It appears that Mst. Iqbal Bibi and Madad Ali were not present at the time of occurrence and they were called after death of parent and brother of Mst. Iqbal Bibi. However, it is established that Manzoor Ahmad P.W. Lived nearby though he was remotely related to Madad Ali but he had no previous grudge, ill will or enmity against, the appellants so as to depose against them. The place of occurrence was the courtyard, without boundary walls, and the occurrence could be witnessed from outside by Manzoor Ahmad, whose house was at a distance of 200 feet from the house of the deceased.
' His presence is admitted, as it was suggested to him during cross-examination that only two accused Subha Sadiq and Aziz were present at the spot, while Abbas and Maqsood (acquitted co- accused) were not there. So his presence and presence of the appellants has not been denied or challenged.
11. As far as the medical evidence is concerned, it supports the prosecution case that all the deceased lost their lives due to injuries caused by the accused.
12. According to prosecution, the motive behind the occurrence was that Muhammad Aslam and Muhammad Saleem, father and brother of the complainant, had sold 10 Marlas of land from joint Ahata to Haji Muhammad Sadiq, which' caused annoyance to the accused, who filed case against Muhammad Aslam. In support of motive copy of plaint Exh.PB titled "Muhammad Abbas and Subha v. Muhammad Aslam and others" was placed on record of the case. After filing of case there was no justification for launching murderous assault upon Muhammad Aslam and his other family members. Perusal of plaint further reveals that the disputed land was in possession of the accused and their prayer was that respondents be restrained from stopping them to utilize their land. In the circumstance in our view the prosecution failed to prove motive behind the occurrence. However, it is settled law that' absence of motive or weakness of motive would be of no consequence when killing is otherwise proved. Reliance is placed on the case of Syed Hamid Mukhtar Shah v.
Muhammad Azam and 2 others 2005 SCM R 427.
13. On the other hand according to plea taken by both the accused Muhammad Aslam was previously married with Mst. Hanifan daughter of Mst. Fatima Bibi and during existence of marriage he developed relationship with Mst. Fatima Bibi and Mst. Iqbal Bibi-complainant and Muhammad Saleem-deceased were illegitimate children of Muhammad Aslam and Mst. Ghulam Fatima- deceased, However, there is nothing on record to prove that Muhammad Aslam was previously married with Mst. Hanifan Bibi.. During cross-examination Mst. Iqbal Bibi denied that Mst. Fatima Bibi was mother-in-law of her father Muhammad Aslam. She also denied that her father married with Mst. Hanifan. It appears that cause of annoyance was the second marriage of Mst. Fatima- deceased with Muhammad Aslam.
14. Both the appellants admitted that they murdered Muhammad Aslam, his wife Mst. Fatima and his son Muhammad Saleem. According to them, Muhammad Aslam-deceased had developed illicit relations with his mother-in-law/aunt in the lifetime of his uncle, husband of Mst. Fatima- deceased and no Nikah was solemnized between Muhammad Aslam and Mst. Fatima-deceased.
According to them, Muhammad Aslam-deceased was married with Mst. Hanifan daughter of Mst.
Fatima and that Mst. Iqbal Bibi and Muhammad Saleem were illegitimate children of Muhammad Aslam. According to accused, they, from their Brothery got Ghariat and removed this evil from earth under grave and sudden provocation to safe the prestige and honour of their Brothery. In the presence of grown up children it cannot be said to be a sudden provocation. There is no documentary or other reliable evidence available on record that Mst. Hanifan was married with Muhammad Aslam. Mst. Hanifan was never produced and only suggestion was given to P.W.6 that Muhammad Aslam-deceased had disposed of Mst. Hanifan in Sindh Province. In that case the accused, who were related to Mst. Hanifan would not have spared Muhammad Aslam and must have filed a case against him. No other independent witness was produced to establish that any marriage had taken place between Mst. Hanifan and Muhammad Aslam. At the time of death Muhammad Aslam and Mst. Fatima both were more than 60 years of age while their daughter Mst.
Iqbal Bibi was about 27 years and Muhammad Aslam was about 24/25 years of age. It means that Mst. Ghulam Fatima and Muhammad Aslam were living together as husband and wife for about 28 long years and during all that period the accused did not feel any provocation. During cross- examination it was suggested to Mst. Iqbal Bibi that the appellant had committed the murder under provocation, she aptly remarked "that the accused got Ghariat after 90 years".
15. Upshot of the whole discussion is that it stands proved that both the appellants committed the murder of three innocent persons in a heartless manner. No mitigating circumstance exists in their favour. The learned trial Court has rightly inflicted normal penalty of death upon the appellants.
Resultantly both these appeals are dismissed and the convictions and sentences awarded to both the appellants are maintained.
16. Consequently, sentences of death are confirmed. Murder Reference is answered in the affirmative.