' IJAZ AHMAD CHAUDHRY, J.---By virtue of judgment dated 27.4.2002 passed by the learned Additional Sessions Judge, Gujranwala, on conclusion of trial in case FIR No, 9, dated 16.1.2000 registered at PS Kot Ladha, District Gujranwala Shahbaz Ahmad and Nasrullah alias Nasru appellants were convicted and sentenced as under:-
(i) for committing qatl-i-amd of Nazar Muhammad deceased under section 302(b)/34, PPC as Taz'ir and sentenced to death with direction to pay Rs, 1,00,000/- each by way of compensation to the - heirs of Nazar Muhammad deceased under section 544-A, Cr.P.C. Or in default of payment thereof to undergo six months' R.I.;
(ii) for committing qatl-i-amd of Mst. Shahida Parveen deceased under section 302(b)/34, PPC as Tazir and sentenced to death with direction to pay 'Rs, 1,00,000/- each by Way of compensation to the heirs of Mst. Shahida Parveen deceased under section 544-A, Cr.P.C. Or in default of payment, thereof to undergo six months' R.I.;
(iii) for committing qatl-i-amd of Mst. Humaira Bibi deceased under section 302(b)/34, PPC as Taz'ir and sentenced to death with direction to pay Rs, 1,00,000/- each by way of compensation to the heirs of Mst. Huinaira Bibi deceased under section 544-A, Cr.P.C. Or in default of payment thereof to undergo six months' RI;
(iv) for attempting to commit qatl-i-amd of Mst. Shanila Bibi under section 324/34, PPC and sentenced to 10 years' R.I. With direction to pay Rs, 20,000/- each as fine or in default of payment thereof to undergo two years' R.I.; and
(v) for attempting to commit qatl-i-amd of Mst. Sana Bibi under section 324/34, PPC and sentenced to 10 years' R.I. With direction to pay Rs, 20,000/ each as fine or in default of payment thereof to undergo two years'' R.I.
' However, all the above-said sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to them: ' Shahbaz Ahmad and Nasrullah alias Nasru appellants have challenged their convictions and sentences before this Court by filing Criminal Appeal No, 780 of 2002 and Criminal Appeal No, 778 of 2002, respectively and both these matters have been heard by us alongwith Murder Reference No, 689 of 2002 sent by the learned Trial Court under section 374, Cr:P.C. Seeking confirmation of death sentence awarded to Shahbaz Ahmad and Nasrullah alias Nasru appellants and as common questions of law and facts are involved, all these matters are being decided jointly through this single judgment.
2. Precisely the facts of the prosecution case unfolded in the F.I.R. (Ex. PQ) got lodged by Mst.
Samina Bibi complainant (not produced) are that the marriage ceremony of her cousin namely, Mst. Shanila Bibi (PW-1) was to take place on 20th January, 2000 and she alongwith her maternal aunt Mst. Fatima Bibi (PW-11) had come from Haiderabad to Nokhar to attend the said marriage. At about 8:15 p.m. They were talking about the marriage in the house, when Shahbaz Ahmad appellant son of Nazar Muhammad deceased who was known to her previously armed with pistol alongwith an unknown person armed with pistol came there from the door which was open.
Shahbaz Ahmad appellant asked about Nazar Muhammad deceased from her and she replied that he was sitting in the kitchen. Shahbaz Ahmad appellant entering the kitchen started firing at Nazar Muhammad deceased which hit on his neck on front side, right eye and right thumb. Mst.
Slaanila Bibi (PW-9) was also present 'in the kitchen who was' injured by Shahbaz Ahmad appellant and the unknown person with firing. Then Shahbaz Ahmad appellant and the unknown person went to the drawing room and injured Mst. Shahida Parveen deceased step-mother of Shahbaz Ahmad appellant and Mst. Humaira deceased. Nazar Muhammad, Mst. Shahida Parveen and Mst. Humaira succumbed to their injuries while Mst. Sana Bibi (PW-10) was also injured in the drawing room by Shahbaz Ahmad appellant and the unknown person, who could be identified on coming before them.
3. The motive behind the occurrence was alleged to be that Shahbaz Ahmad appellant had been demanding half share of land from his father, whereas his father had given him one-third share.
Thereupon quarrel had taken place on different occasions and the biratheri had tried to patch up the matter but could not succeed. Due to that grudge Shahbaz Ahmad appellant aiongwith his unknown companion while armed with fire-arm weapons had murdered Mst. Shahida Parveen, his step-sister Mst. Humaira and his father Nazar Muhammad while Mst..Sana and Mst. Shanila were injured seriously.
4. The investigation of this case was conducted by Baqir Hussain, Si (PW-12) and Manzoor Khaliq, S.I.
(PW- 14) and during. The investigation, statement of the complainant was recorded, dead-bodies of Nazar Muhammad, Mst. Humaira and Mst. Shahida Parveen deceased were inspected, injury statements and inquest reports were prepared, statements' of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrences was inspected,., blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead-bodies of the deceased were sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site- plan of the place of occurrence was got prepared, the appellants were arrested on 25.2.2000 who led to the recovery of pistols' 30 bore and after completion of the, investigation a, challan was submitted in the Court.
5. At the commencement of the trial the learned Trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants framed a charge against them on 14.7.2001 to which they pleaded not guilty and claimed for a trial.
6. During the trial the prosecution produced as many as thirteen witnesses in support of its case.
The ocular account of the incident in question was furnished by Mst. Shanila Bibi (PW-9). Mst. Sana Nazar (PW40) and Mst. Fatima Bibi (PW11) who also deposed about the motive while PW-1 Muhammad Mansha had identified the dead-bodies, of Nazar Muhammad. Mst. Humaira and Mst.
Shahida Parveendeceased at the time of post-mortem examination. The medical evidence was provided by Dr. Sohail Anjurn (PW-2), Dr. Zareen Abid (PW-3) and Dr. Muhammad Fiaz (PW8), while PW-5 Abdul Majeed, Constable had escorted the dead-bodies of Nazar Muhammad, Mst. Shahida Bibi and Mst. Humaira Bibi deceased to Civil Hospital, Gujranwala for post-mortem examination.
PW-6, Masood Ahmad Bhatti, Draftsman on the pointing out of the eye-witnesses and on the instructions of the police had prepared scaled site plan Ex. PJ and Ex. PJ/1. PW12 Baqir Hussain, S.I.
And PW-13 Manzoor Khaliq, SA. Had stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C., the appellants had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Why this case against you and why the PWs deposed against you?" Shahbaz Ahmad appellant replied, as under:- ' "My step-brother Riaz who is S.I. In Police department has falsely involved me in this case only to deprive me from inheritance of my father's property. He, in connivance with Manzoor Khaliq, S.I., concocted a false story on following day of occurrence after getting the PWs medically examined and falsely involved me in this case. PWs being under influence of my step-brother Riaz, S.I. Have falsely deposed against me. Originally it was an unwitnessed occurrence committed by some dacoits in the darkness of night. 'I had no connection with the present occurrence.
' In reply to the aforesaid question, Nasrullah alias Nasru appellant replied as infra:-- ' "I have been falsely involved in this case. The story narrated in FIR is concocted. The real facts of the case are that on the fateful night, dacoity was committed by unknown person and during dacoity present occurrence took place. The complainant and' PWs are related inter se. I was not present at the spot and have been involved in this case falsely due to my friendship with Shahbaz accused."
' However, neither they opted to make statements on oath under section 340(2), Cr.P.C., nor they produced any evidence in their defence.
8. Upon conclusion of the trial the learned Trial Court, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced as mentioned and detailed above. Hence, all these matters before this Court.
9. Learned counsel for Nasrullah alias Nasru appellant contends that name of Nasrullah alias Nasru was not mentioned in the FIR; that there are contradictions in the statements of the eye-witnesses regarding the manner in which the FIR was recorded; that it was a night occurrence, but there . Was no source of light mentioned in the statements of the PWs and in the site plan; that medical evidence is in contradiction with the ocular account regarding the distance of the assailants from the deceased and the manner in which injuries had been received by the deceased and the injured PWs; that there was no eye-witness of the incident of drawing room in which two deceased namely, Mst. Shahida Parveen and Mst. Humaira Bibi had received injuries; that the recovery from the appellants was inconsequential as no empty had been recovered from the' spot; that the appellants had no motive to commit the murder of the deceased; lastly it is contended that the circumstances and the roles ascribed to Nasrullah alias Nasru appellant is sufficient mitigating circumstance for lesser punishment.
10. Learned counsel for Shahbaz Ahmad appellant contends that FIR was not lodged with promptitude; that ' medical evidence is in contradiction with the ocular account; that the prosecution has failed to prove the case against the appellant beyond any shadolof doubt; that the eye-witnesses made statements in contradiction with each other and they were duly confronted with their previous statements; who are not worthy of reliance and that the recovery of weapon from the appellant was legally inconsequential.
11. Learned counsel who was appointed as defence counsel for Nasrullah alias Nasru appellant at State expense contends that involvement of the appellant was doubtful and it is the golden principle that it is, better to acquit 100 guilty persons rather than to connect a simple innocent person; that mere heinousness of the offence is not sufficient to convict the appellants, and that the prosecution has to stand on its own legs but in the `present case prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt, who are entitled to Acquittal.
12. 'On the other' hand, learned Deputy Prosecutor General opposes the appeals on the grounds that presence of the injured eye-witnesses at the spot was not at all doubtful; that Shahbaz Ahmad appellant was step-brother of the injured PWs; that Nasrullah alias Nasru appellant was also related to them and in such circumstances they had no motive to falsely involve the appellants in the present case if they had not participated in the occurrence; that the prosecution has succeeded in proving case against the appellant beyond any shadow of doubt, hence, the conviction and, sentences recorded by the learned Trial Court may be maintained.
13. We have heard learned counsel for the parties at length and also gone through the record with their able assistance with due care and caution.
14. Occurrence in the present case had taken place at 8.15 p.m. In the house of Nazar Hussain deceased situated in village Nokher about three miles away towards East from Police Station Kot Ladha District Gujranwala and the statement of Mst. Samina Bibi (not produced) was recorded on the same night at 9.30 p.m. At the spot. Mst. Samina Bibi (not produced) had made statement under section 154, Cr.P.C. She was resident of Dhok Syedan Bashomola Sadar, Rawalpindi who was present at the spot due to the reason that Shanila Bibi (PW-7) was her `Khalazad' sister and her marriage was to take place on 20th January, 2000. She knew Shahbaz Ahmad appellant but did not mention the name of Nasrullah alias Nasru appellant and had mentioned that an unknown person (whose description had been given) had accompanied him. It is also in the evidence that supplementary statement of the complainant was recorded on the same night at the spot and statement of Mst. Fatima Bibi (PW-11) was also recorded at the spot and both of them in their statements recorded before the police immediately after the incident had mentioned the name of Nasrullah alias Nasru appellant as co-accused of Shahbaz Ahmad appellant. The dead-bodies of the three deceased were sent to mortuary for autopsy after completion of Karwai of the police; injured PWs were shifted to Mayo Hospital, Lahore where they were medically examined and their statements were recorded after 2/3 days of the incident as they were admitted in Mayo Hospital, Lahore. The non-mentioning Of the name of Nasrullah alias Nasru appellant in the FIR is not much material as Mst. Samina Bibi its author was resident of Rawalpindi while Nasrullah alias Nasru appellant was remotely related to them and there was every possibility that she would not know him. Even otherwise if the prosecution had any intention for false implication of the accused, it was very' easy to get recorded the name of Nasrullah alias Nasru appellant as well in the FIR or other persons, could also be nominated keeping in view the number of the deceased, injured persons and the injuries 'received by them. Hence, non-mentioning the name of Nasrullah alias Nasru appellant in the FIR alone is not sufficient to exonerate him.
15. To prove the ocular account, the prosecution produced three eye-witnesses. PW-9 Mst. Shanila Bibi and PW-10 Mst. Sana Nazar were real as well as step-sisters of Shahbaz Ahmad appellant. It is found in the evidence that Nasrullah alias Nasru appellant was `Daiwar' of real sister of Shahbaz Ahmad appellant and step-sister of these two PWs. So both the appellants were known and related to both the eyewitnesses. Both the eye-witnesses in their statements recorded under section 161, Cr.P.C. Had clearly stated that at 8:15 p.m. At the time of incident both of them were armed with pistols entered in the house and asked about Nazar Muhammad their father and father of Shahbaz.
Ahmad appellant who was sitting in the kitchen and Shahbaz Ahmad appellant fired at him and also injured both of 'them in the kitchen while after firing in the kitchen committed the murder of Nazar Muhammad and causing injuries to both these witnesses they want to the drawing room which was at a distance of 10/15 feet and fired at Mst. Shahida Parveen and Mst. Humaira deceased. Mst. Shahida Parveen deceased was wife of Nazar Muhammad deceased and step- mother of Shatibaz Ahmad appellant while Mst. Humaira deceased was step-sister of Shahbaz Ahmad 'appellant and both of them were murdered while appearing in the Court Mst. Shanila Bibi (PW-9) in the examination-in-chief has categorically stated. That they were present in the kitchen and Nasrullah alias Nasru and Shahbaz Ahmad appellant present in Court armed with pistols 30 bore came in the house and then in the kitchen. Nasrullah 'appellant fired with his pistol on his father Nazar Muhammad deceased which hit him on his left eye. Nasrullah appellant fired two shots on her with his pistol which hit her on the different parts of her body. He fired three shots on his father which hit him oh his left ear, on his chest and third on other part of his body. Then the accused fled away from the spot. However, during the cross examination she was confronted with her previous statement that it was Shahbaz appellant who had fired at Nazar Muhammad deceased. She also stated during the cross examination that she did not see Shahbaz Ahmad appellant at the time of occurrence while Nasrullah appellant had a chadar on his body of red colour, but his face was not muffled. We have considered her statement with due care and caution and noticed that she was a household lady and fully supported the prosecution story in the examination-in-chief. Only because she could not make rational answers during the cross- examination her evidence cannot be discarded whose presence at the spot was stamped by the injuries on her body and she was resident of the same house. As such she was a natural witness, who was confident that Shahbaz Ahmad and Nasrullah alias Nasru appellants had participated in the incident and made indiscriminate firing as a result of which three persons died and two had received serious injuries.
16. Similarly, Mst. Sana Nazar (PW-10) also received injuries, who stated that Shahbaz Ahmad and Nasrullah alias Nasru appellants came there while armed with pistols. Firstly Shahbaz appellant fired at her father which hit him on his eye. Then Shahbaz fired at Mst. Shanila Bibi who became injured, who again fired three shots on her (PW-10) with his pistol which hit on her left and right side of chest and the third on her right thumb. PW-10 further stated that after injuring them they went into the drawing room and inflicted fire-arm injuries On the person of her mother Mst. Shahida Parveen and her. Sister Mst. Humaira Bibi. They both were injured by Nasrullah appellant and then they fled away. PW-10 was also resident of the same house, who was also injured during the occurrence and she was a natural witness.
17. No doubt Mst. Fatima Bibi (PW-11) another witness was resident of Haiderabad, who fully explained her presence at the spot that she had come there to attend the marriage ceremony of Mst. Shanila daughter of her sister: She fully supported the prosecution story that both the appellants while armed with pistols came there and asked from them about Nazar Muhammad deceased. They told them that he was in kitchen. Both 'the appellants went there and fired at them.
Then both the appellants again came in bed room and Shahbaz Ahmad appellant fired two shots, on the person of Parveen which hit her on he chest and near her neck. Shahbaz again fired two shots on Mst. Humaira deceased which hit her on her face and on her chest. Mst. Humaira, Parveen and Nazar died at the spot while Mst. Shanila and Mst. Sana became seriously injured.
18. After perusal of the statements of PWs-9, 10 & 11, C no doubt some discrepancies are noticed about attribution of injuries to the. Appellants on the persons of the deceased and the injured. but there is no contradiction or discrepancy regarding participation of both the appellants in the present incident which had taken place in The residential house. As discussed above, PW-9 Mst.
Shanila Bibi and Mst. Sana Nazar (PW-10) were the natural witnesses and presence of PW-11 Mst.
Fatima Bibi also stood established on the record as her statement was recorded by the Investigating Officer under section 161, Cr.P.C. On the same day and according to the customs the coming of the close relatives for participation in the marriage ceremony is quite natural. All of them had no enmity to falsely involve Shahbaz Ahmad and Nasrullah alias Nasru appellants in the present case if they had not been participated in the incident by letting off the real culprits.
Shahbaz Ahmad appellant is step-brother of PW-9 Mst. Shanila Bibi and PW-10 Mst. Sana Nazar and also related to PW-11 Mst. Fatima Bibi. They had no motive to falsely implicate him in the present case. Similarly, Nasrullah alias Nasru appellant was also related to the PWs and there was also no. Motive with the witnesses to falsely involve him in the present case. Incident had taken place inside the house and best evidence has been produced by the prosecution. They were purely household ladies and panic had created before their eyes as their close relatives had been murdered and they also received fire-arm injuries. The minor discrepancies in their statements inter se cannot he made basis for discarding their evidence. The non-mention of the source of light is also not, fatal to the prosecution case. It was not case of the defence that there was no electricity installed in the house. The time of the occurrence, the activities of the inmates, who were talking to each other and cooking was being made and there was gathering in the housc for celebration of marriage ceremony in the coming .2/3 days, it cannot be expected that there was no light on in the house. Moreover, both the appellants were previously known to the PWs and there was no chance of their misidentity.
19. The ocular account in this case has been furnished by the natural witnesses and two out of them were also injured. All of them are household ladies and appeared in the Court for the first time, who made natural statements and unanimously stated that both the appellants while armed with fire-arms entered in the house and committed this occurrence. The number and nature of the, injuries sustained by the three deceased and two injured PWs at different places in the house show that more than one assailants were involved. After carefully perusing the evidence of PWs-9 to 11, we do not find any reason for false implication of the appellants by letting off the real culprit. The defence of Shahbaz Ahmad appellant that he had been falsely implicated to grab his property is not believable as according to the defence version itself half of the property had already been transferred in favour of the said appellant and such property could not be taken back. Moreover, some of heirs of the deceased also pardoned him,. Which also shows that there was no intention for his false implication. We have no hesitation in declaring that the ocular account in this case is trustworthy, independent corroboration to it
20. The motive part of the incident is also proved on the record due to the statements of these witnesses as the deceased was real, father of Shahbaz Ahmad appellant and ' Mst. Parveen was step-mother of Shahbaz Ahmad appellant while marriage of step-sister of Shahbaz Ahmad appellant was going to take place. Shahbaz appellant had been demanding more share from the agricultural land owned by Nazar Muhammad deceased which was not being given to him and he suspected that his father Nazar Muhammad deceased would make expenses over the marriage of his step-sister. The PWs were related to Shahbaz Ahmad appellant and directly related to the motive. The time chosen for this occurrence also supports the motive as there was marriage ceremony to have taken place after 2/3 days and coming of the appellants to make demand for more share in the agricultural land was not imaginary story.
21. The recovery of weapon from the appellants was legally inconsequential as no empty was recovered from the spot and it has not been proved on the record that the pistols allegedly recovered from the appellants were the same pistols . Which were used during the incident.
22. Medical evidence also proves that the three deceased and two injured witnessed had received, fire-arm injuries and we do not find any discrepancy in the medical evidence and the ocular account. The mere opinion of the doctor during the cross-examination that the direction of injury No, 2 on the body of Nazar Muhammad deceased was obliquely from downward to upward and there was possibility that the deceased was at a higher level than the assailants at the time of receiving injury is not sufficient to cast any doubt in the ocular account and the medical evidence.
It cannot be expected that the PWs would have noticed the each and every movement of the victims and the assailants at the time of firing, who are not statutes, but would move each and every moment. We do find that the medical evidence in this case is fully in line with, the ocular account.
23. As a result of above discussion, we have no hesitation in holding that the prosecution had been able to prove the case against both the appellants beyond any shadow of doubt, who had participated in the occurrence and made indiscriminate firing in furtherance of their common intention resulting into death of three innocent persons and causing of injuries to two injured PWs.
They had acted in a brutal manner and we do not find any mitigating circumstance to withhold the normal penalty of death against the appellants. The learned Trial Court was quite justified in awarding the aforesaid convictions and sentences against the appellants through the impugned judgment which-are maintained. We do not find any merit, in both these appeals which are dismissed. However, in default of payment of compensation the appellants will undergo S.I. For six months instead of R.I. As the same has not been provided in the law. Similarly in default of payment of tine awarded under section 324/34, PPC, they will undergo six months' S.I. Each instead of 2 years'
R.I.
24. Consequently, Murder Reference No, 689, of 2002 seeking confirmation of death sentence awarded to Shahbaz Ahmad and Nasrullah alias Nasru appellants by the learned Trial Court is replied in the affirmative and sentence of death is hereby confirmed.