' FAZAL-I-HAQ ABBASI, J.---Through this judgment, we intend to dispose of Criminal Appeal NO.770 of 2010, filed by Sher Hakeem, Murder Reference No,29 of 2010, sent by the trial Court and Criminal Appeal No,823 of 2010, filed by Zar Niaz Khan and another, against the acquittal of Sher Babu and two others, as all arise out from the judgment dated 9-9-2010, passed by learned Additional Sessions Judge, Chitral.
2. On 27-7-2009 at 1635 hours, Sabir Rehmat son of Zar Niaz, lodged a report that he was present in his house, when at about 10-00 a.m. Sher, Hakeem, Sher Babu sons of Sher Nawaz came and took Shakir Ahmad, his younger brother, along with them to their house. Thereafter, at about 11-30 a.m., he while going to his shop, situated at Phoot Tareech, when reached near the primary school, heard the report of three fire shots, on which reached the house of Sher Hakeem and-found him present armed with .12 bore shotgun, while dead body of Shakir Ahmad, besmeared with blood, was lying in the garden, situated in front of the house of Sher Hakeem. He came to know that Sher Hakeem at the instance of Sher Babu, Sher Niat and Sardar Nabi, after murdering Shakir Ahmad, has committed the murder of Safia Bibi, his wife, in the cattle shed of Sher Niat by firing at them and decamped. Occurrence was witnessed by Shahbaz Ullah and Shams-Ullah besides other co- villagers. Motive was stated to be the dispute Over the legacy of mother of Shakir Ahmad. Report was recorded by Pansin Nawaz ASI, P.W.24, in shape of Murasila, Exh.PA, which was read over to the complainant, who signed the same in token of correctness, and the Murasila was sent to Police Station through Said ur Rehman, F.C, P.W.12, for registration of the case, as such; case vide F.I.R.
No,45 dated 28-7-2009 under sections 302/109/34, P.P.C. Was registered at Police Station, Morkoh, District Chitrial.
3. After registration of the F.I.R., investigation was carried out by Muhammad Rasool Khan, SI, P.W.25, who proceeded to the crime spot, prepared the site plan, Exh.P.W.25/1, at the pointation of eye- witnesses. During spot inspection, he took into possession blood-stained earth, Exh.P-12, from the place of Shakir Ahmad deceased, sealed the same into parcel No,2, two empty shells of .12 bore, Exh.P-13, from the place of Sher Hakeem accused,sealed the same in parcel No,3. From the cattle shed he took into possession one plastic wad, Exh.P14, five pellets, Exhs.P-15 to P-19, sealed the same in parcel No,4, blood-stained dung, Exh.P20, from the place of Safia Bibi deceased, sealed in parcel No,5 and two empty shells of .12 bore, Exh.P-21, from the place of Sher Hakeem accused, sealed the same into parcel No,6, through memo Exh.P.W.19/1, in presence of the marginal witnesses and recorded their statements. The Investigating Officer took into possession .12 bore shotgun, Exh.P-10, having an empty shell, Exh.P-1, in its chamber produced by Sher Hakeem and sealed the same in parcel No,1 through memo Exh.P.W.18/1, in presence of marginal witnesses, arrested Sher Hakeem through card of arrest Exh.P.W.25/5. During search, from an Almirah, in guest room of the accused, took into possession 18 cartridges of .12 bore, Exhs.P3 to P-21. As the shotgun and the cartridges were unlicensed, he added section 13 of Arms Ordinance in the charge. He also arrested Sher Babu, Sardar Ahmad and Sher Niat accused and issued their cards of arrest.
4. Shirt, Exh.P-1 and Banyan, Exh.P-2, both blood stained, having corresponding cut marks, belonging to Safia Bibi deceased, produced by lady doctor after post mortem examination, were taken into possession by Sher Hassan, H.C, P.W.10, and sealed.In parcel No,8, in presence of witnesses through memo Exh.P.W.10/1. Shirt, Exh.P-3 Banyan, Exh.P-4 and Shalwar, Exh.P-5, all blood- stained, having corresponding cut marks belonging to Shakir Ahmad deceased, were taken into possession and sealed into parcel No,7 through memo Exh.P.W.15/1 in presence of the witnesses.
5. Ali Haidar, H.C, P.W.19, is the witness to recoveries. He also - took into possession, two wads of .12 bore cartridge, Exh.P-a, b, three pellets Exh.P, c, d and e, extracted from the dead body of Shakir Ahmad during Post Mortem Examination and three X-ray films, Exh.P-f, g, h, through memo Exh.P.W.14/1. On 29-7-2009, Muhammad Rasool Khan, S.I, P.W.25, applied and obtained three days police custody of the accused. On 30-7-2009 he took into possession, post mortem report of Safia Bibi along with a cartridge wad P-7, a phial containing pellets P-8 extracted from her body and uterus contents sealed in a bottle, P-9, produced by Muhammad Hassan, F.C, and sealed the same in parcels Nos.9 and 10 through memo Exh.P.W.16/1, in presence of the witnesses. He also drafted applications Exh.P.W.25/8 for chemical analysis and Exh.P.W.25/9, Exh.P.W.25/11 for opinion of the arms expert. Reports are Exh.P.W.19/3 and Exh.P.W.19/4.
6. On 1-8-2009 all the accused were sent to Judicial lock up. On 3-8-2009 Sher Hakeem accused was produced by All Haider, H.C, P.W.21, before the court of Abdul Ghaffar Khan, Judicial Magistrate, P.W.23, before whom the accused made confessional statement Exh.P.W.23/4.
7. After completion of the investigation, complete challan was submitted. Learned trial court after compliance of the legal formalities, framed the formal charge on 28-8-2009. In answer to charge Sher Hakeem stated that both the deceased admitted their illicit relationship with each other before him and after satisfaction he murdered both of them. However, the remaining accused claimed innocence. Learned trial Court recorded the statements of twenty five prosecution witnesses and statements of the accused. In statement under section 342, Cr.P.C. Sher Hakeem accused took the same plea as in answer to charge. All the accused made statements in terms of section 340(2), Cr.P.C. Learned trial Court after hearing arguments of the parties, convicted Sher Hakeem accused under section 302(a), P.P.C. And sentenced him to death as Qisas for the murders of Shakir Ahmad and Safia Bibi. He was also convicted under section 13 of Arms Ordinance and sentenced to three years' R.I. And a fine of Rs,10,000 or in default of payment of fine to suffer further S.I for two months. Rest of the accused were acquitted vide judgment dated 9-9-2010.
8. Feeling aggrieved Sher Hakeem has filed Criminal Appeal No,770 of 2010. Learned Additional Sessions Judge, Chitral has sent Murder Reference No,29 of 2010 for confirmation of death sentence awarded to Sher Hakeem accused. Zar Niaz Khan, father of deceased Shakir Ahmad, and Mulki Shah, father of Safia Bibi deceased, have filed Criminal Appeal No,823 of 2010 against the acquittal of Sher Babu and two others.
9. Learned counsel for Sher Hakeem appellant in Criminal Appeal No,770 of 2010 contended that proof of qatl-e-amd liable to Qisas as provided under section 304, P.P.C. Is lacking. He argued that as the appellant has got three children who are the legal heirs of Safia Bibi deceased and are descendant of the appellant, as such, he cannot be awarded death sentence in view of sections 306, 307 and 308, P.P.C. Learned counsel argued that the confessional statement was the result of torture, threat and inducement as the accused remained in custody of police for three days and the confession was retracted by filing appeal against conviction. He averred that motive alleged by the prosecution was not proved and the crime articles were sent with delay as such no reliance can be placed on the same. In the alternative learned counsel for the appellant argued that if the court comes to the conclusion that the offence was committed by the appellant, then the same was committed under grave and sudden provocation as according to the plea taken by the appellant, both the deceased admitted their illicit relationship before him, in that case the appellant deserves leniency in matter of sentence and his ease falls under section 302(c), P.P.C.
10. On the other hand learned counsel for the complainant/ respondent, in Criminal Appeal No,770 of 2010 and appearing as counsel for appellants in criminal appeal No,823 of 2010 filed against the acquittal of Sher Babu and others argued that murder of Shakir Ahmad was committed in a pre- planned manner and Mst. Safia Bibi was murdered in order to give it a colour of "ghairat". He submitted that prosecution case is supported by ocular account, Medical evidence, recoveries and the confessional statement of Sher Hakeem appellant. He averred that prosecution proved its case to the hilt; therefore; appeal filed by Sher Hakeem is liable to be dismissed. He prayed that appeal filed by the fathers of both the deceased against acquittal of the co-accused be accepted and they be convicted and sentenced in accordance with law.
11. Learned AAG appearing on behalf of the State argued that the case against Sher Hakeem appellant stands proved, therefore, the appeal filed by him is liable of be dismissed.
12. Arguments heard and record perused.
13. Perusal of the record shows that ocular account furnished by Sabir Rehmat, P.W.1, and Mst. Latifa Bibi, P.W.2, went unchallenged. Even no suggestion regarding their non-presence at the time of occurrence was put to them, rather it was suggested that murders of Shakir Ahmad and Mst. Safia Bibi were committed by Sher Hakeem after their admission of illicit relationship between them. Mst.
Latifa P.W.2, stated that Sher Hakeem inquired from her, whether Shakir Ahmad disclosed anything to her regarding his wife or she saw anything wrong in her, to which she replied that neither Shakir Ahmad told anything nor she had seen any fault of his wife. This negates the version advanced by Sher Hakeem that both the deceased admitted their illicit liaison with each other. P.W.2 stated that Sher Hakeem fired at Shakir Ahmad with which he was hit and injured on abdomen, and was saying that he is innocent and Allah will take revenge from them. Thereafter Sher Hakeem fired two more shots at Shakir Ahmad as a result he died at the spot. In the meantime wife of Sher Hakeem ran towards cattle shed. She was chased by Sher Hakeem and murdered in the cattle shed.
13A. Sher Hakeem, appellant, was arrested on the day of occurrence and weapon of offence, i,e,, shotgun was recovered from him. He was sent to judicial lock up on 1-8-2009 and he made a confessional statement on 3-8-2009. Abdul Ghaffar Khan, Judicial Magistrate, P.W.23, stated that Sher Hakeem accused made confessional statement voluntarily before him which was recorded in shape of Exh.P.W.23/4. C No suggestion was put to the P.W. That either the confession was not made voluntarily or that the same was result of inducement, promise or threat. Sher Rakeem in his statement under section 340(2), Cr.P.C. Stated that certain omissions in his statement were made by the Judicial Magistrate but nothing in this regard was suggested to him nor he was D cross- examined on the said omission. The confessional statement was not retracted at any stage. On one hand Sher Hakeem in his confessional statement stated that Mst . Safia Bibi fifteen days prior, admitted before him that Shakir Ahmad committed forcible intercourse with her but on the other he stated that Shakir Ahmad, by saying that he will commit suicide; because a wrong allegation was levelled against him, went out and he also went behind him and fired three shots at him with which he died and thereafter he fired three shots at his wife and murdered her. It appears that he is trying to blow hot and cold in the same breath.
14. Motive for the occurrence was proved by Sabir Rehmat, P.W.1, Mst. Khalida Bibi, P.W.5, and Zar Niaz, P.W.6. They were not cross-examined on material points. Weakness or absence of motive or failure to prove the same cannot be termed as fatal to the prosecution case.
15. Delay in sending the crime articles to the laboratory is of no consequences in absence of any suggestion of fabrication, manipulation or tampering with the same.
16. Plea of grave and sudden provocation was neither advanced by the appellant in his confessional statement nor at the time of framing of the formal charge. The appellant fired three shots at Shakir Ahmad deceased and thereafter chased Mst. Safia Bibi and fired three shots at her.
Conduct of the appellant at the time of occurrence remained so grave and desperate that he cannot claim any leniency on the pretext of grave and sudden provocation, which is not even palpable from the evidence on record.
17. Provision of sections 304, 306, 307 and 308, P.P.C. Are confined only to the cases liable to Qisas and not for the punishment as Ta'azir. Extension of benefit of aforesaid sections would amount to grant of license of killing of innocent persons by their Walis. In case of Faqir Ullah v. Khalil uz Zaman reported in 1999 SCM R 2203, it was held:- "In cases where Qisas is not available, the shariah has given authority to the State and the courts to award appropriate punishment to the offender keeping in view the circumstances of the case.
Such punishment may reach up to life imprisonment or death by way of Ta'azir."
18. Multiple fire arm injuries were found on the dead bodies of Shakir Ahmad and Mst. Safia Bibi by Dr. Shah Nadir Khan, P.W.20, and lady doctor Salma Hassan and the pellets were also recovered.
19. Ocular account furnished by Sabir Rehmat, P.W.1, and Mst. Latifa Bibi, P. W:2, is supported by the medical evidence, recoveries, positive reports of the experts, motive and the confessional 'statement of Sher Hakeem appellant. Although. Punishment as Qisas under section 302(a), P.P.C. Is not warranted under the law yet 302(b), P.P.C. Also provided the punishment of death as Ta'azir.
20. The appellant committed the brutal murders of two innocent persons, he is not entitled to any leniency and deserves normal penalty as ta'zir under, section 302(b), P.P.C.
21. In view of the above, appeal filed by Sher Hakeem is dismissed and the Murder. Reference sent by the trial court is answered in affirmative.
Coming to the appeal filed by Zar Niaz and another against the acquittal of Sher Babu and two others, except their presence at the spot no overt act was attributed to them nor any instigation or abetment on their part has been proved. Therefore, they were rightly acquitted by the trial Court.
Appeal filed against them is dismissed.