Tariq Shamim, J.--This judgment shall dispose of Criminal Appeal No, 1798 of 2003 filed by Kamil Shah, Shukar Shah and Asghar Shah, appellants, Criminal Appeal No, 437-J of 2003 Med by Kamil Shah and Shukar Shah, appellants through Jail and Murder Reference No, 526 of 2004 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to Kamil Shah and Shukar Shah, appellants, as all these matters arise out of the same judgment dated 30.9.2003.
3. The appellants have. challenged the judgment passed by the learned Additional Sessions Judge, Faisalabad, in case bearing F.I.R. No, 197/1996, dated 14.6.1996, registered with Police Station Satiana, District Faisalabad, for offence under Sections 302, 324, 148 and 149 P.P.C., whereby he convicted the appellants as under:-- Kamil Shah: U/S. 302(b)/149 P.P.C:Sentenced to death on four counts with a direction to pay a sum of Rs,50,000/- for each murder as compensation u/S. 544-A Cr.P.C. to the legal heirs of Muhammad, Munawar Hussain, Mst. Zubaida Bibi and Haider Ali, deceased.
Rigorous imprisonment for three years under Section 148 P.P.C.
Shukar Shah: u/S. 302(b)/149 P.P.C.:Sentenced to death on four counts with a direction to pay a sum of Rs,50;000/- for each murder as compensation u/S. 544-A Cr.P.C. to the legal heirs of Muhammad; Munawar Hussain.
Mst. Zubaida Bibi and Haider Ali, deceased. Rigorous imprisonment for three years under Section 148 P.P.C.
Asghar Shah: u/S. 302(b)/148 P.P.C:Imprisonment for life on four counts with a direction to pay Rs,50,000/- for each murder as compensation u/S. 544-A Cr.P.C. to the legal heirs of Muhammad, Munawar Hussain, Mst. Zubaida Bibi and Haider Ali, deceased. Rigorous imprisonment for three years under Section 148 P.P.C. All the sentences were ordered to run concurrently.
Benefit of Section 382-B Cr.P.C. was extended to him.
3. Briefly stated the facts of the case as per F.I.R. (Ex.PB/1) recorded by Khan Tahir, complainant (PW-4) are that on 14.6.1996, at about 4:30 a.m., Khan Tahir, complainant along with his father Muhammad, his mother Mst. Roshan Bibi, his brother Munawar Hussain, Mst. Zubaida Bibi wife of Munawar Hussain, their minor son Haider Ali and Yousaf brother of the complainant, was sleeping in the compound of their house when Kamil Shah appellant armed with .12 bore gun, Shukar Shah armed with rifle, Mahboob Shah armed with . 12 bore gun, Tahir Shah armed with rifle, Farzand armed with . 12 bore gun, Akbar Shah armed with rifle, Asghar Shah armed with rifle and Muhammad Nawaz armed with rifle entered the compound after scaling over the wall. Kamil Shah appellant raised a lalkara that Munawar Hussain be taught a lesson for abducting Mst. Zubaida Bibi whereupon Khan Tahir complainant (PW-4) and Yousaf PW got up. Karnil Shah appellant fired a shot with his .12 bore gun which hit Haider Ali infant on his mouth. Second shot was fired by Akbar Shah which landed on the left side of face of Mst. Zubaida Bibi. Farzand Shah fired a shot with .12 bore gun which landed on the left shoulder of Haider Ali. Mahboob Shah fired a shot which hit Haider Ali on his right wrist and left arm. Shukar Shah appellant fired a shot with his rifle which hit Munawar Hussain on his back. Tahir Shah fired a shot with his rifle which hit Muhammad on the left side of his chest. Asghar Shah appellant fired a shot with rifle which hit Muhammad on his right cheek. Nawaz Shah fired a shot with his rifle which landed on the right side of chin of Muhammad.
Mst. Roshan Bibi, mother of the complainant, saw the occurrence from behind the door of a room where she had concealed herself from the accused. The occurrence was also witnessed by Shameer Hussain (PW5), cousin of the complainant and Munawar Hussain, who was attracted to the place of occurrence on the hue and cry raised by Khan Tahir complainant. The accused fled away after the occurrence. Thereafter, the complainant along with Shameer Hussain (PW-5) and Muhammad Yousaf PW attended to the injured persons. Muhammad, Munawar Hussain and Haider Ali succumbed to the injuries whereas Mst. Zubaida Bibi was shifted to the hospital at Jaranwala in an injured condition where she also succumbed to the injuries.
4. After investigation, report under Section 173 Cr.P.0 was submitted in the learned trial Court. The prosecution in order to prove its case produced Aurangzeb, Draftsman (PW-1), Umar Draz Constable (PW-2), Muhammad Afzal Head Constable (PW-3), Khalid Mahmood (PW-6), Ahmad Ali (PW-7), Dr. Nasir Mahmood (PW-8), Zulfiqar Khan Constable (PW-9), Dr. Tahir Mahmood (PW-10), Ghulam Abbas Inspector/S.H.O. (PW-11), Muhammad Ramzan Constable (PW-12) and Muhammad Yaqoob, Sub Inspector, F.I.A. (PW-13) including Khan Tahir, complainant (PW-4) and Shameer Hussain (PW-5) as eyewitnesses of the occurrence. At the conclusion of the prosecution evidence the appellant was examined under Section 342 Cr.P.C. The learned ADA after tendering necessary documents closed the prosecution evidence. The appellants in their statements under Section 342 Cr.P.C. denied the case of prosecution. In response to the question as to why the case against him and why the witnesses had deposed against him, Kamil Shah, appellant, replied as under:-- "In fact, it is a blind murder. The alleged occurrence took place at night. The deceased Munawar Hussain had abducted my daughter and I had allegedly committed the murder of grandfather/Dada of the complainant. So due to this enmity and suspicion, we have been entangled in this case. But later on it became crystal clear in the investigation that one Yousaf Sahi proclaimed offender along with unknown persons committed these murders. Dawood, the real brother of Yousaf Sahi was murdered by one Munsha, who was relative of the deceased. (Munawar Hussain and Muhammad) deceased persons used to support said Munsha. The PWs are related to the complainant. So due to this relationship, they have deposed falsely against us."
In response to the question as to why the case against him and why the witnesses had deposed against him, Asghar Shah, appellant, replied as under:-- "In fact, it is a bind murder. The alleged occurrence took place at night. Furthermore, in this regard, I also rely upon the statement of my co-accused Kamil Shah."
5. The appellant neither opted to appear as their own witnesses in disproof of the allegations levelled against them as required u/S. 340(2) Cr.P.C. nor did they adduce any defence evidence.
The learned trial Court after hearing the learned counsel for the parties, convicted the appellants and sentenced them as stated earlier, which has been assailed through this criminal appeal..
6. The learned counsel for the appellants contended that the occurrence was an un-witnessed one as it had taken place at night; that the story narrated by the prosecution witnesses was not plausible; that if the eyewitnesses were present at the place of occurrence, they would not have been spared by the accused; that the motive could not be proved at the trial by the prosecution; that since the empties sent for matching with the guns recovered from Mahboob Shah, Akbar Shah and Asghar Shah appellant did not match, therefore, the recovery of weapons was of no avail to the prosecution; that in view of the injuries suffered by the deceased in the occurrence it could be said that only two persons had committed the crime; that no source of light was mentioned by the witnesses in their statements; that neither any light bulb nor the ladder allegedly used by the appellants was taken into possession by the police; that the case of the prosecution was dented by the opinion given by the police during investigation qua innocence of, some accused; that Asghar Ali appellant was convicted by the learned trial Court although with similar role Mahboob accused was acquitted; that it was a case of two versions, one put forth by the prosecution and the other which had cropped up during the investigation, thus, creating doubt; that Mst. Zubaida Bibi, the daughter of Kamil Shah appellant, was abducted twice by Munawar Hussain deceased on account of which the appellants Kamil Shah and Shukar Shah were entitled to a lesser sentence and that Kamil Shah was an old man of 72 years of age, therefore, sentence of death was not warranted.
7. Conversely, the learned Deputy Prosecutor-General appearing on behalf of the. State contended that 18 crime empties were taken into possession by the police on spot inspection which were of three different bores, thus, evidently the murders had been committed by three or more persons and not by two persons as stated by the learned counsel for the appellants; that no mitigating circumstance was available to Kamil Shah and Shukar Shah appellants for awarding a lesser sentence; that the occurrence took place at 4:30 in the morning in the month of June when there was sufficient light and since the appellants were known to the complainant party prior to the occurrence, there was no question of identification; that the case of Mahboob Shah (acquitted accused) was different from Asghar Shah appellant inasmuch as Mahboob Shah had caused injuries to Haider Ali deceased on the right hand and left arm whereas Asghar Shah had caused a firearm injury on the right cheek of Muhammad deceased; that the motive behind the murders was fully proved at the trial by the prosecution; that the medical evidence was in line with the ocular account and that the judgment of the learned trial Court was based on proper appraisal of evidence, therefore, no interference is called for in the same.
8. We have heard the learned counsel and gone through the record with their assistance.
9. At the trial the motive put forth by the prosecution was that Munawar Hussain, deceased, had abducted Mst. Zubaida Bibi, deceased, the daughter of Kamil Shah appellant and had contracted marriage with her. The appellants and their co-accused were annoyed because of the said abduction and on account thereof they committed the murders of Munawar Hussain, Mst. Zubaida Bibi, Haider Ali, their minor son, and Muhammad, father of Munawar Hussain. In support of the motive Khan Tahir, the complainant of the F.I.R. (PW-4) and Shameer Hussain (PW5) deposed at the trial. It is an admitted fact that Mst. Zubaida Bibi, deceased, was the daughter of Kamil Shah appellant, sister of Shukar Shah and cousin of Asghar Shah who had been abducted by Munawar Hussain deceased and after contracting marriage they were living together. From the wedlock, Haider Ali deceased minor son was also born. The motive behind the murders of the deceased had been accepted by Kamil Shah in his statement recorded under Section 342 Cr.P.C. coupled with the fact that both the witnesses had given a consistent account of the motive aspect of the case, we hold that the prosecution had succeeded in proving the motive against the appellants.
10. In the course of investigation .8 MM rifle P-3, carbine . 12 bore P-4 and .7 MM rifle P-6 were recovered on the pointation of Shukar Shah, Mahboob Shah and Asghar Shah respectively. The weapons were despatched to the Forensic Science Laboratory for expert opinion. According to the report Ex.PFF, the empties recovered from the spot did not match with the weapons recovered from the accused, therefore, the recovery of weapons is not of much help to the prosecution.
11. Now adverting to the ocular account, the same was furnished by Khan Tahir, complainant and son of Muhammad deceased, (PW-4), who deposed that on 14.6.1996, at about 4:30 a.m. while he along with his father Muhammad, his mother Roshan Bibi, his brother ` Munawar Hussain, wife of Munawar Hussain namely Mst Zubaida Bibi, their minor son Haider Ali and his brother Yousaf, was sleeping in the compound of their house when Kamil Shah appellant along with Shukar Shah, Asghar Shah and others entered the compound after scaling over the exterior wall. Kamil Shah appellant raised lalkara that Munawar Hussain shall be taught a lesson for abducting Mst. Zubaida Bibi whereupon Mst. Roshan Bibi and the PWs also got up. Kamil Shah appellant fired a shot with his .12 bore gun which hit Haider Ali infant on his mouth, second shot was fired by Akbar Shah accused (since P.O.) which landed on the left side of face of Mst. Zubaida Bibi. Mahboob Shah (acquitted accused) fired a shot from his .12 bore gun which hit Haider Ali on his right wrist and left arm.
Farzand Shah fired a shot with .12 bore gun which landed on the left shoulder of Haider Ali. Shukar Shah appellant fired a shot with his rifle which hit Munawar Hussain on his back. Tahir Shah (since dead) fired a shot with his rifle which hit Muhammad on the left side of his chest.' Asghar Shah appellant fired a shot with rifle which hit Muhammad on his right cheek. Nawaz Shah (Since dead) fired a rifle shot which landed on the right side of chin of Muhammad deceased. Mst. Roshan Bibi .
(given up PW) saw the occurrence from behind the door of a room where she had concealed herself from the accused. The occurrence was also witnessed by Shameer Hussain (PW-5) cousin of the complainant and Munawar Hussain deceased who was attracted to the place of occurrence on the hue and cry raised by Khan Tahir complainant. Khan Tahir (PW-4) is the brother of Munawar Hussain deceased and son of Muhammad deceased, therefore, his presence at the place of occurrence at the relevant time is natural. His presence at the place of occurrence cannot be doubted as the defence did not take any pain to prove that this witness was residing at another Ihata. Similarly, Shameer (PW-5) also witnessed the occurrence who woke up on hearing the noise from the compound of Muhammad deceased while standing behind the intervening wall between the houses which was low in height. Khan Tahir (PW-4) and Yousaf also saw the occurrence from the compound of Shameer PW after having jumped over the intervening wall. This obviously explains why Khan Tahir (PW4) and Shameer (PW-5) escaped injury in the occurrence. Insofar as mother of Khan Tahir namely Mst. Roshan Bibi is concerned, being in the room and behind the door she was not in the view of the appellants and their co-accused. Both the eyewitnesses have furnished a consistent and detailed account of the occurrence and despite being subjected to lengthy cross-examination nothing favourable could be extracted by the defence. The statements made by these witnesses have been found by us to be convincing and credible. The strong motive behind the murders of four deceased coupled with the credible account furnished by the eyewitnesses, is sufficient to prove that the appellants along with their co-accused in order to take revenge of abduction of Mst. Zubaida Bibi with common intention entered the house of the complainant and committed the murders of the deceased. It was vehemently argued by the learned counsel for the appellants that without independent corroboration the evidence of the eyewitnesses should not be accepted which, according to him, was not forthcoming from any quarter. We are afraid the argument is without any substance inasmuch as apart from strong motive available to the appellants for committing the murders of the deceased the medical evidence furnished by Dr. Nasir Mahmood (PW-8) and Dr. Tahir Mahmood (PW-10) is also in consonance with the ocular account and has provided independent support thereto. Dr. Tahir Mahmood (PW-10) found the following injuries on the dead bodies of Munawar Hussain, Haider Ali, Muhammad son of Meer and Mst. Zubaida Bibi:-- Munawar Hussain, deceased:--
1. A fire-arm lacerated wound 2/3 cm x 2/3 cm on right side of heard upper and frontal part, 14 cm supero anterior to the right ear (wound of entry).
2. A fire-arm lacerated wound 1 cm x 2/3 cm on inner side of left eye-brow (wound of exit).
3. A fire-arm lacerated wound 3 cm x 1.25 cm on back of right side of chest, middle and lateral part (wound of entry).
4. An abrasion 1 cm x 1 cm'on front of right shoulder. Haider Ali, deceased:--
1. A fire-arm lacerated wound 7 cm x 4 cm involving chin, right 2/3 of lower lip, right half of upper lip and right cheek up to 2 cm below from right eye. Muscles and blood vessels were found lacerated in the corresponding area of injury and mandibular bone was also found ruptured (wound of entry and exit wound).
2. A fire-arm lacerated wound 9.5 cm x 8 cm on front of left shoulder and front of left upper arm upto 3 cm above from the front of left elbow. Muscles and blood vessels were found lacerated and left humerus bone was found fractured (wound of entry).
3. Five fire-arm lacerated wounds each measuring 1.5 cm x 1 cm in an area of 7 cm x 5 cm on inner side of left upper arm (exit wound).
4. A fire-arm lacerated wound 2 cm x 1 cm on front of left elbow (entry wound).
5. A fire-arm lacerated wound 2 cm x 1.5 cm on inner side of left elbow (exit wound).
6. A fire-arm lacerated wound 1 cm x 1 cm on front of left forearm middle part (entry wound).
7. A fire-arm lacerated wound 1.5 cm x 1 cm on inner side of left forearm middle part (exit wound),
8. A fire-arm lacerated wound 1 cm x 1 cm on front of left forearm, lower part (entry wound).
9. A fire-arm lacerated wound 3.5 cm x 2 cm into muscles deep on back of left shoulder (entry wound and exit wound).
10.A fire-arm lacerated wound 6.5 cm x 3.5 cm on back and inner plus outer side of right forearm lower part just above the right wrist. Muscles and blood vessels were found lacerated and right ulna bone was fractured in the corresponding area of the injury (wound of entry and exit wound).
Muhammad, deceased:--
1. A fire-arm lacerated wound 4 cm x 2 cm on front of left chest upper part, 10 cm supro medial to left nipple (wound of entry).
2. A fire-arm lacerated wound 2.5 cm x 2/3 cm into skin deep on right side of chin (wound by touching the pellete).
3. A fire-arm lacerated wound 5 cm x 1 cm x muscles deep on right cheek oblique in position in the line of Injury No, 2 (wound by touching the pellete). Mst. Zubaida Bibi, deceased:-- 1-A. A fire-arm lacerated wound 12 cm x 5 cm on left side of face lateral to left eye. Skin and muscle tissues were damaged. Bleeding was around the wound.
As stated earlier, the medical evidence is conclusive as to the time of occurrence, the locale of injuries as well as the weapons used. It is once again reiterated that contrary to what had been argued by the learned counsel for the appellants the prosecution has succeeded in proving its case against them through credible eyewitness account fully supported and corroborated by the evidence of motive and the medical evidence. It was also argued by the learned counsel for the appellants that in view of abduction of Mst. Zubaida Bibi by Munawar Hussain deceased which was duly put to the witnesses the appellants Kamil Shah and Shukar Shah were entitled to a lesser sentence. We are afraid the argument is devoid of any merit inasmuch as it has been held by the honorableSupreme Court that murder based on "Ghairat" does not furnish a valid mitigating circumstance for awarding a lesser sentence. In the case of Muhammad Akram Khan u. The State (PLD 2001 SC 96) the Apex Court observed as under:-- "Legally and morally speaking, nobody has any right nor can anybody be allowed to'take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom of usage in that respect is void under Article 9(1) of the Constitution."
Even otherwise, it has been observed by us that the appellant Kamil Shah had admitted that his daughter had been abducted by Munawar Hussain deceased but he had failed to specifically assert this plea before the learned trial Court although in cross-examination the witnesses were put a number of questions in support of the said plea. Consequently, the same, in our view, is not of much benefit to the appellants particularly as stated earlier, the concept of "Ghairat" has been excluded from being considered as an extenuating circumstance for awarding a lesser sentence. It was also argued by the learned counsel that Mahboob Shah, co-accused of the appellants, was acquitted by the learned trial Court whereas Asghar Shah appellant with similar role had been sentenced to life imprisonment which, according to the learned counsel, was uncalled for in the circumstances. We have gone through the statements of the eyewitnesses as well as the Medical Officers.
Mahboob Shah was attributed injuries on the right hand and left arm of Haider Ali deceased whereas Asghar Shah is attributed fire-arm injury on the right cheek of Muhammad deceased which is a vital part of the body. It was also argued by the learned counsel for the appellants that the witnesses had not disclosed the source of light in which they had seen the occurrence. It is pointed out that the occurrence took place in the month of June at 4:30 a.m. when there is sufficient light in which the witnesses had seen the occurrence. Further, the F.I.R. was lodged with reasonable promptitude which excludes the possibility of deliberation and consultation as well as false implication. Needless to add that the appellants were previously known to the complainant party, therefore, the question of misidentification also does not arise. It was also stated by the learned counsel for the appellants that in fact the murders had been committed by one Yousaf Sahi (a proclaimed offender) and his companions and not by the appellants. We are afraid this contention is neither valid nor supported by the record. All suggestions put to the witnesses regarding the murders having been committed by Yousaf Sahi have been denied. Although the Investigating Officer Muhammad Yaqoob (PW-13) in cross-examination admitted that in his investigation Yousaf Sahi was also found to be involved in the murders, however, it has not been stated by the witness anywhere that the murders had been committed by Yousaf Sahi alone and not by the appellants. We do not exclude the possibility of Yousaf Sahi being in league with the appellants on account of enmity with the deceased and the complainant but his involvement would, however, have to be behind the scene. It is manifest from the facts of the case that the deceased were murdered in a brutal manner by the appellants and no mercy was shown even to the minor infant Haider Ali who was only a few months old at the time of his murder. The appellants had committed the murders in order to take revenge of abduction of Mst. Zubaida Bibi by Munawar Hussain deceased and in the process had eliminated the entire family with a design.
12. It was lastly argued by the learned counsel on behalf of Kamil Shah appellant that since he was 72 years of age, therefore, sentence of death awarded to him by the learned trial Court was on the harsher side. We have gone through the statement of Kamil Shah appellant recorded under Section 342 Cr.P.C, according to which his age is mentioned as between 60 and 65 years on 2.12.2000 which obviously implies that at present he would be well over 70 years old. Consequently, while relying on the judgment of the honourable Supreme Court of Pakistan in the case of Muhammad Sadiq v. The State (2008 SCM R 171) and taking support from the cases of Muhammad Ibrahim v. The State (1979 P.Cr.L.J. 275) and Muhammad Aslam Shah v. The State (PIA 1993 Cr1. C.
276), we are inclined to reduce his sentence from death to imprisonment for life. As regards Shukar Shah appellant we have not been able to find any mitigating circumstance for awarding a lesser sentence.
14. In view of the above discussion, while maintaining the conviction under Section 302(b) P.P.C. we convert the sentence of death awarded to Kamil Shah appellant to imprisonment for life. The sentence of compensation is maintained. Benefit of Section 382-B, Cr.P.C. is extended to him.
Insofar as Shukar Shah and Asghar Shah appellants are concerned, their convictions and sentences are maintained. The death sentence awarded to Shukar Shah appellant is CONFIRMED.
The murder reference to the extent of Shukar Shah appellant is answered in the AFFIRMATIVE whereas to the extent of Kamil Shah appellant is returned in the NEGATIVE.