' MUHAMMAD AKRAM QURESHI, J.---Four persons namely Ghulam Mustafa, Mst. Shabana Bibi, Murad Ali and Waris Ali were tried by the learned Addl. Sessions Judge, Sheikhupura in case F.I.R. No, 274 dated 18-4-2003 for an offence under sections 302/109/34 P.P.C. Registered at Police Station, Sadar District Sheikhupura for the murder of Nazir Hussain. The learned Addl. Sessions Judge vide judgment dated 24-12-2003 convicted Ghulam Mustafa appellant under section 302 (b) P.P.C. And sentenced to death. He was ordered to pay compensation to the tune of Rs,50,000 to the legal heirs of the deceased under. Section 544-A, Cr.P.C. Mst. Shabana Bibi was convicted under section 302(b), P.P.C. And sentenced to undergo imprisonment for life. She was directed to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof both the appellants were ordered to undergo 2 years' R.I. Each. Benefit of section 382-B, Cr.P.C. Was also extended in favour of appellant Shabana Bibi. Co-accused Waris and Murad Ali were acquitted of the charge.
' Appellants Ghulam Mustafa and Mst. Shabana Bibi have filed Crl. Appeal No, 2305 of 2003 and Criminal Appeal No,25-J-2004 respectively against their conviction and sentence whereas the learned trial Court has sent a reference (M.R. No,143 of 2004) for the confirmation of death sentence awarded to the appellant Ghulam Mustafa. Muhammad Idrees complainant has filed Criminal Revision No, 86 of 2004 for enhancement of sentence awarded to the appellants/ respondents. We propose to dispose of all these matter by this single judgment.
2. Briefly the facts of the prosecution case as narrated by P.W.5 Muhammad Idrees complainant in complaint Exh. PC are that he was a cultivator. His niece Mst. Shabana Bibi d/o Nazir Hussain was having illicit relations with Ghulam Mustafa, which was in the knowledge of general public of the village. His brother Nazir Hussain and other inmates of their house forbade Mst. Shabana Bibi and Ghulam Mustafa from this bad act but of no avail. Thereafter, his brother fixed date of marriage of Mst. Shabana Bibi on 18-4-2003. On 18-4-2003 at 7-30 a.m. His niece Mst. Shabana Bibi went in fields for easing purposes. She had not returned for sometime. Thereafter it came in their knowledge that she had gone to the house of Ghulam Mustafa. He along with his brother Nazir Hussain, P.W.6 Farzand Ali and P.W.7 Muhammad Khalid went in house of Ghulam Mustafa to bring the girl back. His brother Nazir Hussain was ahead of them. They reached in front of house of Ghulam Mustafa, the door was opened and when his brother entered in the door Ghulam Mustafa armed with .44 bore rifle, Murad Ali armed with .30 bore pistol, Shahbaz armed with .30 bore pistol were present there. On seeing them, Mst. Shabana his niece raised a lalkara that they had come and kill them. On this Ghulam Mustafa fired with his gun, which hit on chest of his brother Nazir Hussain who fell on the ground and started vibrating and succumbed to the injuries at the spot.
Accused while firing in the air ran away.
' Motive behind the occurrence was that Ghulam Mustafa was having illicit relations with Mst.
Shabana Bibi who has sent a message that he will not permit marriage of Shabana Bibi to be held.
Due to this reason, Ghulam Mustafa etc. While in consultation and common intention of each other committed Qatl of his brother Nazir Hussain.
3. The accused were charge-sheeted, to which, they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as may as 13 P.Ws. In all and also tendered documentary evidence.
4. The accused in their statements recorded under section 342, Cr.P.C. Denied the occurrence and recovery. They professed their innocence. In answer to question, why this case against you and why the P.Ws. Deposed against you, Ghulam Mustafa appellant replied as under:-- "On 18-4-2003 he along with his mother, two sisters, brothers, nephew and sister-in-law were present at home; and taking breakfast in their courtyard. The outer door of the house was opened.
Suddenly, Mst. Shabana Bibi entered in their house after running and shut the outer door of . The house and locked and said that her father want to give her hand to an addict person without her consent, whom she dislikes. Her father armed with Bughda, her brother Shabbir armed with rifle, Munir armed with pistol etc. Were chasing to her. For the sake of God, give her shelter. Meanwhile, his house was encircled and the voice of lalkaras came that Shabana and his family members be killed. Due to afraid, they entered in a room and locked the door inside. Shabana's father with other etc., entered in their house after jumping over the walls. Nazir Ahmad started cutting door of the room with Bughda. Meanwhile, Shabbir tried to kill Shabana and his father Nazir Hussain tried to forbade him but unfortunately the fire of Shabbir hit Nazir Hussain, who died at the spot. When Shabbir and others saw this incident they left the dead body and went away. His relatives gave intimation of this incident to police. Again Shabbir, Idrees, Farzand etc. Armed with weapons and Kerosene oil came in our house and started firing. Meanwhile the police came. Shabbir and others went away. Police brought them out of the room and took them to police, station. Shabbir killed his father. All the P. Ws. Gave false evidence to save Shabbir Hussain.
' He has no illict relations with Shabana Bibi".
' The accused however, did not appear in rebuttal to the allegations levelled against them by the prosecution witnesses as required under section 340 (2), Cr.P.C. And also did not produce any defence evidence except Mst. Shabana Bibi.
' Appellant Mst. Shabana Bibi stated as under:-- "Police brought her to police station and she was kept there during night on 18-4-2003. On the next date, she was handed over to Mst. Zahida Shahaeen. Thereafter, Zahida Shaheen managed ziadati/zina with her from some unknown person. Thereafter, she brought her to police station and thereafter she was medically examined_ from D.H.Q. Hospital. She had not illicit relations with Ghulam Mustafa accused. She deposed that on 18-4-2003 her marriage was going to be held and as she was not happy on said marriage, so she came out of her house. As door of house of accused was opened, so, she entered in their home. Her father and other while duly armed with their respective weapons while chasing her came there. She along with inmates of house of Ghulam Mustafa took shelter in a room. Her father started cutting door of room. Her brother Shabbir tried to fire at her but mistakenly fire hit on her father who succumbed to the injuries at the spot. She opted to produce defence evidence as well as to appear on oath as a witness under section 340(2), Cr.P.C. In her defence evidence while appearing under section 340(2) Cr.P.C. She deposed all the story mentioned by her in answer of question No, 7 of her statement recorded under section 342, Cr.P.C."
5. Learned counsel for the appellants contends that the registration of this case at the given time is highly doubtful. According to prosecution, present incident was within the books of the police at 9- 00 a.m. The ocular account was statedly available. The postmortem examination of the deceased could have been conducted in the early hours of the day; that the autopsy was delayed till 6-00 p.m. On 18-4-2003; that as a matter of fact the first information report and other relevant documents, were not ready and prepared by the late hours of the day and due to this reason, the postmortem examination of the deceased was delayed; that it is an unwitnessed occurrence. No one saw it and after the incident, the close kiths and kins of the deceased sat together and cooked up a false story on the basis of which, the present F.I.R. Was got lodged; that P.W.5 Muhammad Idrees and P.W.6 Farzand Ali were not present at the spot; that the occurrence took place in Mauza Ladhaikay Maliyan falling within the area of Police Station Saddar, District Sheikhupura. Learned counsel has drawn our attention towards the F.I.R. Where the residence of Farzand Ali is mentioned as Lahore but while appearing as P. W, he showed himself to be resident of Ladhaykay Maliyan, Police Station Saddar, Sheikhupura; that both the witnesses have made material improvements in their deposition and fabricated many material discrepancies therein; that after coming to know the fact that Mst. Shabana has gone to the house of Ghulam Mustafa appellant, Muhammad Idrees, Nazir Hussain deceased and his relatives must have enraged; that in order to avenge their insult, they had gone to the house of the appellant that the occurrence took place in the house of Ghulam Mustafa appellant. Mst. Shabana was also there; that motive of assault was with Muhammad Idrees complainant etc. It has come on record that Nazir Ahmad, father of Mst.
Shabana when went to the house of Ghulam Mustafa was accompanied by Shabbir, Munir etc. Shabbir, brother of Mst. Shabana tried to kill her but his father Nazir Hussain forbade him but unfortunately, fire of Shabbir hit Nazir Hussain who died at the spot; that the story narrated by the P.Ws. Is incorrect and they have not come forward with the true version; that the story put forth by Ghulam Mustafa and affirmed by Mst. Shabana D.W.1 is more plausible and appeals the mind of a person of ordinary prudence; that the complainant party have failed to offer any explanation as to why they entered the residential house of Ghulam Mustafa; that if some offence has been committed by Ghulam Mustafa and Mst. Shabana, the information could have given to the police and the culprits got apprehended; that the ocular account of the present case is not supported by the medical evidence; that the weapon was planted upon Ghulam Mustafa on 1-5-2003 and that as per provisions of section 103, Cr.P.C. The respectables of the locality were required to be associated in the recovery proceedings but the police violated these provisions and cited close relatives of the deceased as P.Ws.; that as a matter of the fact no recovery was effected from Ghulam Mustafa appellant and that the weapon was planted upon him and that the recovery of empties of .44 bore were also fabricated and that on the basis of bogus evidence, a positive report was secured from the office of Forensic Science Laboratory that the investigation of present case is defective and the investigation officer had been fabricating evidence; that the prosecution case is full of dents and doubts and that believing the defence version, the appellants be acquitted in this case.
6. Conversely, learned Addl. P.-G. Assisted by the learned counsel for the complainant has vehemently opposed this appeal stating that appellants are nominated in the F.I.R. Specific role has been attributed to them. Weapon of offence and the role assigned to the appellants is also detailed therein; that on the day of occurrence, Mst. Shabana was to be married who was abducted by Ghulam Mustafa. His close kiths and kins went to bring her back, they were assaulted by Mst. Shabana and her companion Ghulam Mustafa and unfortunately, father of Mst. Shabana was murdered; that the defence story narrated by Ghulam Mustafa and Mst. Shabana is not supported by the medical evidence; that after the occurrence, Mst. Shabana and Ghulam Mustafa fled away and did not surrender before the police for some time and that afterwards, they manoeuvred a false story under legal advise which is not supported by the medical evidence; that had Nazir Ahmad deceased forbidden his son Shabbir not to fire at the appellants, the fire shot must have hit him from very close range and that there should have been tattooing, blackening or charring on his person; that the defence version is infirm and has been created just to save themselves; that it is in unfortunate incident in which, first of all, the respect and honour of the family of Nazir deceased was smashed and subsequently, his life was taken away; that the unfortunate family was spoiled; that the appellants are not entitled to any leniency; that the ocular account of the present case is proved by P.W.5 Muhammad Idrees and P.W.6 Farzand Ali. Learned counsel points out that the evidence of both the witnesses is supporting each other and no material discrepancy or improvement could be pointed out by the defence; that both the witnesses were subjected to lengthy cross-examination but nothing could be extracted from their evidence; that evidence of both the eyewitnesses is supported by the medical evidence. As per prosecution evidence, Ghulam Mustafa was armed with a .44 bore rifle. Four empties of .44 bore rifle were recovered, which were seized by the police vide recovery memo Exh. PD. The empties were timely sent to the office of Forensic Science Laboratory. Subsequently, the weapon was secured from the custody of the appellant which was also sent to the office of Forensic Science Laboratory. A comparison was made and it was found that the empties secured from the spot of incident were fired from the weapon recovered from the custody of the appellant. The report of the Fire-arm Expert Exh. PO is supporting the ocular account of this case. The investigation of the present case is also honest. There is nothing on record that the Investigating Officer has fabricated any piece of evidence. His evidence is worthy of reliance; that the learned trial Court has rightly convicted the appellants and sentenced them accordingly.
7. We have heard the arguments of learned counsel for the parties and perused the record.
8. Motive part of the present incident is admitted by both the parties. It is on record that on the day of occurrence, the marriage of Mst. Shabana was to be held. She went outside to ease herself from where she was taken to his house by Ghulam Mustafa appellant. When Mst. Shabana did not return home, her father and brothers went to the house of Ghulam Mustafa appellant to take her back.
P.W.5 Muhammad Idrees and P.W.6 Farzand Ali have proved that when these witnesses went to the house of Ghulam Mustafa, they were assaulted and injuries were caused on the person of Nazir deceased. There is nothing on record that any of the witnesses was armed with any weapon or he or they assaulted the appellants or any of the person residing in their house. The arrival of Nazir deceased and his companion at the venue of incident was natural. The honour and respect of Nazir deceased was being smashed, therefore, it was his natural duty to protect and restore it. His arrival at the venue of incident is natural. The defence version that the deceased was armed with Bugda and he was breaking the door of the room where Mst. Shabana was present is not borne out from the record. Simultaneously, the version of the defence that Shabbir brother of Mst. Shabana was about to fire at Ghulam Mustafa appellant, which was resisted by Nazir Ahmad deceased and during this period; the fire shot by Shabbir hit the deceased is also contrary to the record. Had Shabbir and Nazir close to each other, the fire shots statedly received by Nazir would have been surrounded by blackening, charring and tattooing. A perusal of the postmortem report indicates that no tattooing, charring or blackening was noticed. It appeared that both the appellants surrendered before the police subsequently and in the meanwhile, they received legal advice pursuing which, they falsely set up a story. The storynarrated by the defence cannot be accepted.
Contrary to this, both the eye witnesses are independent. They have no enmity against the appellants. Both the witnesses have narrated a clear incident of present case from which the guilt of Ghulam Mustafa appellant is apparent. Their statements are free from any material discrepancy or improvement. The witnesses have taken up a specific stand before the Investigating Officer and their stand remained the same before the learned trial Court. In view of their crystal clear evidence and the fact that it is well-supported by the medical evidence, the guilt of Ghulam Mustafa appellant is clear from it. The ocular account of the present case is well supported by the recovery of .44 bore rifle from the appellant. It was taken into possession by the police vide memo Exh.PF. On the day of incident, four empties of .44 bore rifle were also secured by the police from the venue of incident, which were taken into possession by the police vide memo Exh. PD. The empties seized from the spot of incident were sent to the office of Forensic Science Laboratory on 22-4-2003 whereas, the weapon was recovered on 1-5-2003 and sent to the office of Forensic Science Laboratory on 8-5-2003. The report of the Forensic Science Laboratory Exh. PO is positive. The appellant has not been able to shatter this evidence. The prosecution evidence qua Ghulam Mustafa appellant has been fully proved on record. The conduct of Ghulam Mustafa appellant is such that he is not D entitled to any leniency. We are, therefore, of the view that the conviction and sentence passed by the learned trial Court is adequate. Therefore, his conviction and sentence is maintained. Death sentence awarded to Ghulam Mustafa appellant is confirmed.
9. The Murder Reference is answered in the affirmative.
10. As far as Mst. Shabana is concerned, a proverbial lalkara is attributed to her. Said lalkara is not supported by any other.Evidence. Mst. Shabana was the root- cause of present incident. Because of her, Nazir Ahmad, her father lost his life and the respect and honour of his family shattered. It appears that aggrieved of this situation, the complainant party implicated her. The role assigned to her could not be substantiated on record. We are of the view that Mst. Shabana has not played any role in the present incident. Resultantly, the appeal (Crl. A. No, 25-J of 2004), to her extent, is accepted. Her conviction and sentence is set aside. She is on bail. Her bail bonds stands discharged.
11. In view of our discussion made above, Criminal Revision (Crl. Rev. No, 86 of 2004) filed by the complainant is without substance, which is dismissed.