' HASNAT AHMAD KHAN, J.--- Mumtaz Ahmad appellant along with Abdul Ghaffar and Abdullah, were tried by learned Additional Sessions Judge-II, Muzaffargarh, in the case F.I.R. No,77 of 2000, dated 6-3-2000, registered at Police Station Shehr Sultan, District Muzaffargarh, for the offences under sections 302/324/109, P.P.C. After the conclusion of the trial, the said learned Additional Sessions Judge found the appellant guilty of murdering Abdul Ghafoor, son of the complainant.
Consequently, the appellant was convicted and sentenced vide judgment, dated 19-2-2003 as under:--- Under section 302(b), P.P.C.
' Death sentence and under section 544, Cr.P.C. To pay Rs,1,00,000 as compensation, to be paid to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo six months' R.I. Extra, Under section 324, P.P.C.
' 10 years' R.I. For attempting on the life of Abdul Hameed, P.W.3 with a fine of Rs,5,000 in default whereof to suffer 2 months' S.I.
Under section 337-F(iv), P.P.C.
5 years' R.I. As Tazeer and to pay Rs,25,000 as Daman in default whereof to be dealt with under section 337-Y(2), P.P.C.
Under section 324, P.P.C.
10 years' R.I. For attempting on the life of Abdul Hafeez, P.W.2 with a fine of Rs,5,000 in default whereof to suffer 2 months' S . I.
Undet section 337-F(iii), P.P.C.
' 3 years' R.I. For causing injuries to Abdul Hafeez, P.W.2, as Tazeer and to pay Rs,10,000 as Daman in default whereof to be dealt with under section 337-Y(2), P.P.C.
' However, Abdul Ghaffar and Abdullah, co-accused were acquitted of the charge while extending the benefit of doubt to them.
2. Aggrieved by the judgment of the learned trial Court, the appellant challenged his conviction and sentence through Criminal Appeal No,100 of 2003, while the trial Court sent a Reference (Murder Reference No,154 of 2003) for the confirmation or otherwise of the death sentence, awarded to Mumtaz Ahmad, the appellant. This consolidated judgment will dispose of both the aforesaid matters.
3. Pithily, the prosecution's story, as narrated by the complainant-Muhammad Abdullah (P.W.1), father of the deceased, through his statement, which later on culminated into F.I.R. (Exh.P.A.), was/is to the effect that on the fateful day at about 4-30 p.m., when the complainant along with his son Abdul Qayyum Abdul Ghani son of Wali Muhammad and Abdul Sattar son of Mian Abdul Rehman after saying Asar prayer reached on Pull Kallarwali at G.T. Road, they saw Abdul Ghafoor (deceased), Abdul Hafeez (P.W.2) son of Abdul Hameed and Abdul Hameed (P.W.3) travelling towards Basti Tauheedabad on a motorcycle; Abdul Ghaffar was driving the motorcycle; when they reached near Masjid Farooqia, Mumtaz Ahmad, accused-appellant, armed with a .12 bore repeater, emerged at the scene and after raising a Lalkara shot at Abdul Ghafoor which hit between his left shoulder and chest; that fell down from motorcycle; Mumtaz, accused-appellant made second fire at Abdul Hameed (P.W.3) which hit him on the front side of his belly then the accused made third fire on Abdul Hameed, injured P.W. Which hit him on the front side of his right armpit; Abdul Hafeez, injured P.W. Fell over his father to save him then Mumtaz, accused-appellant, fired at him which hit on the right thigh of Abdul Hafeez; thereafter Mumtaz Ahmad, accused- appellant, made firing on the injured P.Ws. Which hit on different parts of the bodies of the injured P.Ws.; on their raising hue and cry the accused decamped from the spot along with his fire-arm and the complainant alleged that he along with Abdul Qayyum, Abdul Ghani and Abdul Sattar, P.Ws. Stepped forward to lift the injured up but his son Abdul Ghafoor had succumbed to his injuries.
' The motivating factor behind the occurrence is stated to be that Mumtaz Ahmad-appellant suspected illicit relations of Baseer Ahmad, the son of Abdul Hameed, injured P.W., with his (appellant's) sister Mst. Khalida.
4. After completing the investigation the Investigating Officer found the appellant guilty and challaned him to face the trial. The appellant denied the charges and claimed to be tried.
5. During the trial, the prosecution, in support of its case, produced as many as 14 witnesses.
' Muhammad Abdullah-complainant entered into the witness-box as P. W.1 and furnished the ocular account of the occurrence. Abdul Hafeez and Abdul Hameed, injured P.Ws./eye-witnesses, appeared as P.Ws.2 and 3 respectively and supported the version of the complainant. Abdul Sattar, an other eye-witness appeared as P.W.4 and supported P.W.1 as well as the injured P.Ws. He also proved the recovery of Exh. P. B . , Exh. P.0 . , Exh. P. D . , Exh. P. E. , Exh. P.1/1-3 and Exh. P. F . Hafiz Tariq Hussain, P.W.5 tried to prove that the offence was committed on the instigation and abetment of co-accused Abdul Ghaffar and Abdullah. Abdul Rahim, P.W.7, proved the recovery of crime weapon P.7 through recovery memo. Exh.P.H. Nazar Hussain, A.S.-I. Appeared as P.W.7 and stated that on 6- 3-2000 he had escorted the dead body of Abdul Ghafoor to the mortuary for autopsy. He also took injured P.Ws. To R.H.C. For their medical examination. Dr. Sajid Saeed, who had conducted the autopsy on the dead body of the deceased, came forward as P.W.8 and furnished the detail of the injuries, observed by her on the corpse of deceased as under:---
(1) An oval shaped lacerated wound 1 c.m. x 1 c.m. x in front of left shoulder 10 c.m below the tip of shoulder joint. Edges were inverted and blackening was positive.
(2) An oval shaped lacerated wound 1/2 c.m x 2 c.m. Present 3-12 c.m. Below the injury No,1 Edges were inverted and blackening was present.
(3) An oval shaped lacerated wound 1/2 c.m. x 1/2 c.m. Was present below the injury No,2 with edges inverted and blackening positive.
(4) An oval shaped lacerated wound 1 c.m. x 1 c.m. Was present 1/2 right to injury No,3. Edges were inverted and blackening was positive.
(5) An oval shaped lacerated wound 1 c.m. x 1 c.m. Lying 1 can. Below the injury No,3. Edges were inverted and blackening was positive.
(6) An oval shaped lacerated wound 1 c.m. x 1 c.m. Was present 21/2 c.m. Below the injury No,3.
Edges were inverted and blackening was positive.
' According to his opinion, death occurred due to haemorrhagic shock and respiratory failure; all the injuries on the body were collectively responsible for it and were ante-mortem and caused by fire-arm weapon. He further opined that the said injuries were sufficient to cause death in ordinary course of nature.
' The said doctor also medically examined Abdul Hameed and Abdul Hafeez, injured P.Ws. And gave the detail of their injuries.
' Zahoor Ahmad, S.-I., who besides recording the statement of the complainant Exh.P.A., had investigated the case, appeared in the witness-box as P.W.14 and provided the detail of recovery memos. And the investigation conducted by him.
' Rest of the witnesses being formal in nature need not be discussed.
6. After tendering into evidence the reports of F.S.L. And Chemical Examiner (Exhs.P.S. And P.R.) and that of Serologist (Exh.P.T.), the learned D.D.A. Closed the prosecution's evidence.
7. The appellant made his statement under section 342, Cr.P.C. While responding to question No,15, Mumtaz Ahmad-appellant stated as under:- - "Abdul Ghafoor deceased and injured P.Ws. Abdul Hameed and Abdul Hafeez were persons of dubious chlracter. They were wont to cause harm to the persons while passing near the Abadi and used to make objectionable gestures and raise objectionable voices so the general public of the locality was annoyed with their nefarious activities. Hence someone from the locality had launched attack upon them as a result of which present occurrence had taken place. We had got registered criminal cases against them due to which I was not on speaking terms with them. Due to this grudge, I have been falsely involved in this case. The P.Ws. Are related inter se so have deposed falsely againstme."
' The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C.
8. After the conclusion of the trial Mumtaz Ahmad-appellant was convicted and sentenced to death as mentioned above.
9. In the peculiar circumstances of the case, learned counsel for the appellant contends that instead of seeking for acquittal of the accused, he would pray for commutation of the death sentence 'awarded to the appellant into that of life imprisonment on the ground that according to the prosecution's own showing, the appellant committed the crime in order to vindicate and rehabilitate his family honour.
10. Conversely, learned D.P.-G. Has opposed the prayer made by the learned counsel for the appellant by contending that it was Abdul Baseer, the son of Abdul Hameed, injured P.W., who had illicit relations with appellant's sister Mst. Khalida, therefore, he had no justificatioh to eliminate Abdul Ghafoor (deceased).
11. Having heard the respective learned counsel for the parties and going through the record, we find that learned counsel for the appellant is quite justified in not challenging the conviction awarded to the appellant, for, the unfortunate occurrence, which took place in broad daylight, was reported to the police within half an hour. Besides, there are two injured witnesses,. Namely, Abdul Hameed and Abdul Hafeez, who appeared in the witness-box as P. W.3 and P.W.2, respectively and fully supported the prosecution's version. Their statements were further corroborated by the statements of Abdul Sattar, complainant of this case, who came forward as P.W.4. All the eye- witnesses faced the test of cross-examination quite successfully and the cross-examiner failed to shatter their evidence. The, medical evidence synchronizes with the prosecution version. It is true that on the basis of same evidence, two co-accused were acquitted by the learned trial Court but allegation against them was that the abetment only. Besides, the ocular evidence as mentioned above, got full support from all the other attending circumstances, therefore, the conviction awarded to the appellant on all the counts is maintained.
12. Insofar as quantum of sentence is concerned, we find that according to the prosecution's own showing Mumtaz Ahmed-appellant suspected illicit liaison between her sister Mst. Khalida and Abdul. Baseer son of Abdul Hameed, the injured P.W. At the time of triggering' the legal machinery into motion, the complainant of the case himself alleged that the deceased along with other injured eye-witnesses was waylaid by the appellant, who caused fire-arm wounds to all of them to vent his anger for suspecting his sister's illicit relations with the son of Abdul Hameed, injured P.W.
Admittedly barring the said motive, there was no enmity between the parties. During the cross- examination, Muhammad Abdullah-complainant conceded to the suggestion that Mumtaz Ahmed appellant was a Hafiz-e-Qur'an. He further conceded that 15 days prior to the occurrence, Mumtaz- appellant had made a complaint to him against the conduct of said Abdul Baseer by claiming that he had developed illicit relations with his sister. However, according to Muhammad Abdullah (P.W.1) he established contact with Abdul Baseer and his father but they denied the said allegations. The said statement reveals that even before the occurrence the appellant had been crying his heart out by agitating the matter against Abdul Baseer with his elders but as stated by Abdullah (P.W.1), he exonerated said Abdul Baseer from the said allegation. However, Abdul Hafeez, the injured P.W., who is real brother of the said Abdul Baseer admitted during the cross-examination that they had come to know about the suspicion of liaison of Abdul Baseer and appellant's sister Khalida but he (Abdul Hafeez) denied the suggestion that they used to cut jokes with the girls of the vicinity where occurrence took place and that the inhabitants of the locality were not happy with them. Abdul Hameed injured P.W. The father of Abdul Baseer during his examination-in-chief narrated the story of motive in the following terms:- "The motive of the occurrence is that accused Mumtaz suspected that my son Abdul Baseer had illicit relations with his sister Mst. Khalida."
' He further went on to say as under:--- "15/20 days prior to the occurrence, accused Mumtaz had told Abdullah-complainant that they had suspicion as to illicit relations of Abdul Baseer with his sister Mst. Khalida. Abdul Baseer also lives in Basti Tauheedabad."
13. A perusal of the said statement would reveal that Abdul, Baseer's elders including the complainant had been approached by the appellant who complained to them regarding the illicit relations of Abdul Baseer with the appellant's sister. The aforesaid circumstances suggest that having been disappointed by the discouraging attitude of the elders of B Abdul Baseer, the appellant decided to take a drastic action to vent his anger by eliminating said Abdul Baseer's father, who on the day and time of occurrence was found by the appellant in the company of Abdul Ghafoor deceased and Abdul Hafeez, injured P.W. Abdul Ghafoor deceased was the son of the complainant who was approached by the appellant for dissuading and restraining Abdul Baseer from carrying on with his (appellant's) sister. Abdul Ghafoor deceased was paternal-uncle of said Abdul Baseer. The weapon of offence selected by the appellant, coupled with the number and gravity of the injuries caused by him, reveals that he had developed serious hatred and wrath against Abdul Baseer and his family members. The number of injuries sustained by Abdul Hameed, injured P.W., suggest that, in fact, the appellant wanted to kill him but Abdul Ghafoor, who was accompanying him on the motorcycle, received the first shot made by the appellant.
14. At the cost of repetition, it is observed that barring the said motive, the appellant had no enmity whatsoever against the complainant party. It appears that the offence was committed by the appellant, who at the time of occurrence was 22 years old, in order to vindicate and rehabilitate his family honour. In the rural areas of Punjab and especially in the southern Punjab the people do not swa llow such kind of insult touching the honour of their womenfolk. It appears that the appellant after exhausting all peaceful avenues, in utter disappointment and exasperation committed the crime. In similar circumstances, accused/convict, who had killed real brother of abductor of his sister, was awarded lesser sentence by Honourable Supreme Court in the case of Boota v. The State PLD 1982 SC 196. In the said case, the Honourable Supreme Court held as under:- "The circumstances relating to the abduction did support a reasonable possibility that the deceased and his family members were conniving at the failure/refusal of Yara to restore appellant's sister. And further that there was enough material for the appellant to suspect them in this behalf."
' In another case of Muhammad Sher and others v. The State 1985 SCM R 1688 in a case of murder of six people, the death sentence of the convicts was reduced by the Honourable Supreme Court.
Paragraph 4 of the said judgment is reproduced as under:- "(4) The motive for the occurrence is stated to be that about 8 years prior to the present occurrence Fareed and Raja had been murdered and in that case Allah Ditta and Fareed (both deceased) and two others namely Murad and Chiragh had been challaned. About 6 years prior to the occurrence Falak Sher, Mahmood Sher, Khan and Asghar fired at Fareed and his wife and in that occurrence wife of Fareed was injured and Murad Kumhar had been murdered. Now, 15/16 days before the occurrence Allah Ditta (deceased) enticed away Mst. Haleema daughter of Fazil who was real sister of Alam Sher, Ahmad Sher and Muhammad Sher accused and wife of Ghulam Abbas accused. Alam Sher, Muhammad Sher and Ghulam Abbas made attempts to get Haleema back through negotiations but Allah Ditta refused to do so. The accused persons were deeply aggrieved by the aforesaid abduction and consequently committed the offence in question."
' In yet another case of triple murder, reported as Muhammad Sharif and others v. The State and others PLD 1995 SC 593, the death sentence was reduced by a Division Bench of this Court while holding as under:--- "(17) As for the quantum of sentences we are of the view that in the given situation penalty of death sentence is not warranted in law. This indeed is not a case of grave and sudden provocation. It is, however, noteworthy that a police constable abducts a married woman or she elopes with him deserting her husband, lives in adulterous intercourse for a sufficiently long time, gives birth to a child who, at the time of occurrence, was 1-1/2 years old and becomes again, pregnant from such a sinful connection. This certainly afforded a provocation to Sharif and others who were Mamoozads of the abductee. It is on record that when in the first instance she was recovered from Nazra Constable, she was restored to Sharif and others. Subsequently, it were Sharif and others who managed her marriage with Irshad. As such their family honour had been attacked and injured to an alarming extent and this brought shame to them which continuously egged them on to avenge their grievance and to restore and rehabilitate their family honour. The accused had not merely killed Nazra, the abductor, rather they had dispatched Mst. Saleh Bibi to death along with Mokha, father of Nazra who had been rendering help and protection to his son and to the abdcutee. So, therefore, it is obvious that the crime was committed in order to avenge their family disgrace. This therefore, certainly provided a mitigating circumstance. In support of this view reference may be made to Abdur Rashid v. The State 1989 SCM R 165, The State v. Gulzar Masih 1988 SCM R 1068, Muhammad Afzal v. The State and others 1987 SCM R 1864, Ahmed and others v. The State 1982 SCM R 1049, Boota v. The State PLD. 1981 SC 196 and Qambar Ali v. The State PLJ 1974 Cr.C. (Lah.) 474, We are, therefore, of the view that instead of awarding death penalty, imprisonment for life to three of the appellants would meet the ends of justice in this case. We, therefore, convert the death sentence to imprisonment for life to each of the three appellants on three counts each, namely, Muhammad Sharif, Bashir and Altaf Hussain and acquit Asghar and. Zulfiqar appellants affOrding them the benefit of doubt."
15. In view of the said backdrop and while pinning our faith on the aforesaid cases, we conclude that the appellant has become able to show that a mitigating circumstance does exist for commuting the death sentence awarded to him into that of imprisonment for life. Consequently, the death sentence awarded to the appellant under section 302(b), P.P.C. Is converted into that of life imprisonment wi benefit of section 382-B, Cr.P.C. The amount of compensation woul remain intact in the terms of judgment handed down by the learned trial Court. The conviction and sentences awarded to the appellant under other heads shall remain intact. However, all the sentences awarded to appellant shall run concurrently. Murder Reference is answered in. The negative.