ZAFAR IQBAL and Others vs The STATE

' GULZAR AHMED, J.---The appellants Muhammad Idrees his three sons Asghar Iqbal, Zafar Iqbal, Munawar Iqbal and his son-in-law Iftikhar son of Abdul Majeed were convicted by the learned Sessions Judge, Gujranwala vide judgment dated 15-7-2003 under sections 302(b) and 149, P.P.C.

And sentenced to death and were ordered to pay compensation of Rs.100,000 each to the legal heirs of the deceased persons under section 544-A, Cr.P.C. And in default whereof to undergo six

(6) months imprisonment. They were also convicted under section 148, P.P.C. And sentenced to suffer three years' R.I. Each. The remaining accused, namely, Abdul Majeed, Mst. Maqsoodan, Nisar Ahmed, Zulfiqar Ahmed and Abdul Khaliq @ Khalid were given benefit of doubt and acquitted of the charge under sections 109/302, P.P.C. The appellants had challenged the judgment of the learned trial Court by filing Criminal Appeal No.1424 of 2003 in the Lahore High Court, Lahore. The learned Division Bench of the Lahore High Court, Lahore vide impugned judgment dated 4-6-2009 dismissed the said appeal and the Murder Reference No.676 of 2003 was answered in affirmative.

2. Vide order dated 10-9-2009, this Court has granted leave to appeal to reappraise the evidence in the interest of criminal justice.

3. Facts of the matter are that Mst. Maqsoodan Bibi, complainant (P.W.3) wife of Jaffar Hussain (deceased) and mother of Abdaal Hussain and Abrar Hussain (deceased) reported to the police that she was resident of Mouza Mian Ali Dogran, however for the last about three years she along with her husband and family were living in the house of Muhammad Idrees, who was the elder brother of her husband in Mian Kot Kalian. The deceased persons used to cultivate land in Mian Kot Kalian on Hissa Batai from Abbas Shah. She also stated that since due to domestic quarrel with Muhammad Ashraf son of Ashiq Ali Dogar about three years before her faith (elder brother of her husband) had brought them to his house in Mian Kot Kalian and had engaged Mst. Shabana his daughter with Abdaal Hussain. However, subsequently refused her hand to Abdaal Hussain and later on married Mst. Kalsoom Bibi, his younger daughter to. Abrar Hussain and the said marriage took place a year before and Mst. Kalsoom Bibi was living happily in their house while Muhammad Idrees gave the hand of his daughter Mst. Shabana to Iftikhar Hussain son of Abdul Majeed and the marriage took place about 18/20 days prior to the occurrence. She stated that Abrar Hussain was beaten up by the sons of Abdul Majeed, namely, Iftikhar and Zulfiqar on the occasion of the said marriage, whereafter her husband Jaffar Hussain had given beating to Iftikhar Hussain, who was Bhanja/nephew of Jaffar Hussain. The matter was being patched up through, negotiations with the intervention of the relatives when Abdul Majeed, his wife Mst. Maqsoodan and his sons namely Iftikhar and Zulfiqar, Muhammad Idrees and his sons namely Zafar Iqbal, Munawar Iqbal and Asghar Iqbal and the other relatives namely Nisar and Khalid, planned to teach lesson to Jaffar Hussain for beating Iftikhar and on the next morning her husband and two sons went to the Dera while she in the company of Muhammad Arif (her Daiver) and Mazhar Hussain, P.Ws. Along with her daughter Mst. Javeria Bibi were going to the Dera at about 7-00 a.m. For taking breakfast for her husband and two sons. Her husband was coming towards the village with milk from the Dera whereas Muhammad Idrees armed with rifle, Khalid son of Abdul Majeed armed with rifle, Zafar son of Muhammad Idrees armed with hatchet, Asghar son of Muhammad Idrees armed with rifle, Iftikhar son of Abdul Majeed armed with rifle, Munawar son of Muhammad Idrees armed with rifle ambushed the husband of the complainant by concealing themselves in the Shatala crop on the pretext of harvest and then stopped Jaffar Hussain on the road. Muhammad Idrees fired with rifle, which hit on the head of the husband of the complainant near the ear. Second fire was made by Iftikhar son of Abdul Majeed, which hit on the head of Jaffar Hussain and he fell down. Zafar inflicted two hatchet blows on the head of Jaffar Hussain, which resulted into opening of his skull and when the complainant and the prosecution witnesses requested the appellants and others to leave Jaffar Hussain, all the appellants and co-accused went towards the Dera of the complainant party and then Asghar fired with his rifle on Abdaal Hussain on his left ear and made exit from the other side. Munawar Iqbal fired, which hit Abrar Hussain on his neck, which went out of the right side of the ear, whereafter appellant Iftikhar fired with his rifle, which hit Abdaal Hussain near the left side of chest and made exit on the right flank. Both Abdaal Hussain and Abrar Hussain fell on the ground and died at the spot. On the same day of occurrence i.e. 19-4-2000 at 8-50 a.m., F.I.R. No.175 was registered under sections 302, 148, 149 and 109, P.P.C. At Police Station Alipur Chatha, District Gujranwala.

4. Learned counsel for the appellants has contended that deceased Jaffar Hussain had enmity with certain persons in his village Mouza Mian Ali Dogran on account of which his elder brother Muhammad Idrees (appellant No.4) shifted Jaffar Hussain (deceased) along with his family in his own house in Mian Kot Kahan. He contended that the appellants have not committed the murder of deceased Jaffar Hussain and his two sons Abdaal Hussain and Abrar Hussain. He contended that the evidence of P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi was not reliable as both are closely related to the deceased and that there was no independent corroboration of their evidence and even P.W. Muhammad Arif had not supported the case of prosecution while P.W. Mazhar Hussain has not been produced. He contended that there was an improvement in the evidence of P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, as accused Khalid who was not ascribed any role in the F.I.R. Was stated to have caused fire arm injury to both the deceased Abdaal Hussain and Abrar Hussain. He contended that there being enmity between the complainant party and the appellants, they have been falsely roped in the crime.

5. On the other hand, learned Deputy/Prosecutor-General, Punjab, has contended that P.Ws. Have no reason to falsely implicate the appellants, who are their close relatives. He further contended that crime empties, which were recovered from the scene of offence matched with the recovered crime weapons. The hatchet was found smeared with human blood and the ocular evidence being straightforward did not require any corroboration and both the courts below in their judgments have believed the ocular account furnished by both the P.Ws. Mst. Maqsoodan Bibi and Mst.

Javeria.

6. We have considered the submission of the Learned counsel and have gone through the record.

7. It is a case where three persons namely Jaffar Hussain and his ' two sons Abdaal Hussain and Abrar Hussain were done to death. The occurrence was witnessed by P.Ws. Mst. Maqsoodan Bibi and Mst. Javeria, Muhammad Arif and Mazhar Hussain. The offence took place on 19-4-2000 at 7- 00 a.m. F.I.R, of which was lodged by P.W. Mst. Maqsoodan Bibi, complainant on the same day at 8- 50 a.m. While the police station was at the distance of 5 miles from the place of occurrence. P.W.

Mst. Maqsoodan Bibi, the complainant is widow of deceased Jaffar Hussain and mother of deceased Abdaal Hussain and Abrar Hussain. P.W. Mst. Javeria is the daughter of deceased Jaffar Hussain .And sister of deceased Abdaal Hussain and Abrar Hussain. P.W. Muhammad Arif is the brother of deceased Jaffar Hussain. P.W. Mazhar _Hussain is not shown to have any relation with the complainant party. Appellants Nos.1, 2 and 3 are sons of appellant No,4 Muhammad Idrees and are the nephews of P.W. Mst. Maqsoodan Bibi, complainant. Muhammad Idrees is the Jaith of complainant P.W. Mst. Maqsoodan Bibi, being elder brother of her deceased husband Jaffar Hussain. Appellant No.5 is the nephew and son-in-law of Muhammad Idrees. He is the son of Abdul Majeed and Mst. Maqsoodan, the latter being the sister of deceased Jaffar Hussain, appellant Muhammad Idrees and P.W. Muhammad Arif. From the above, it, appears that both complainant party and the appellants are very closely related to each other.

8. The conflict as described by P.W. Mst. Maqsoodan Bibi, complainant, was that appellant No.4, Muhammad Idrees has agreed to marry his daughter Mst. Shabana to the son of complainant Abdaal Hussain (deceased). Subsequently, appellant No.4, Muhammad Idrees refused to marry his daughter Mst. Shabana to Abdaal Hussain (deceased) and later on married his younger daughter Mst. Kalsoom to another son of the complainant Abrar Hussain (deceased). Mst. Shabban was married to appellant No.5, Iftikhar and on the day of such marriage, Abrar Hussain (deceased) was beaten by Iftikhar and Zulfiqar (both sons of Abdul Majeed) on account of which deceased Jaffar Hussain gave beating to Iftikhar. An effort was made to patch up the matter between the two parties but it seems that the appellants did not agree for the same and rather it appears to have gained more heat: The motive part was explicitly stated in the evidence of both the P.Ws. Mst.

Javeria and Mst. Maqsoodan Bibi, complainant, and the trial Court as well as the High Court had believed the motive part. Learned counsel for the appellants did not show us any material from the record, which may discredit these P.Ws. On the aspect of motive.

9. In the ocular account furnished by P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, the complainant, they have supported the prosecution version practically on all material aspect of the incident inasmuch as both the eye-witnesses have ascribed specific role to each of the appellants of causing injury to each deceased and they have also stood the test of cross-examination and nothing could be extracted from them, which may diminish the worth of their evidence or create doubt regarding the veracity of their evidence. It may be noted that both these P.Ws. In their evidence have explained as to how they came to be present at the place of occurrence i.e., they were taking breakfast for the deceased at the Dera of Jaffar Hussain and this explanation on their part seems to be quite inconsonance with the village life and was not an extra-ordinary circumstance, which may put a prudent mind on an inquiry about its possibility or not. The explanation of presence of these P.Ws. At the place of occurrence has been believed by the learned trial Court so also by the learned High Court and there seems to be no valid or justifiable reasons forthcoming from the record to disbelieve this aspect of the matter nor it was shown by the learned counsel for the appellants.

10. Having considered the evidence of P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, the complainant, who are eye-witnesses of the incident, we too are in agreement that both these P.Ws. Have given account of the incident as described in the F.I.R. And have corroborated each other on every material aspect of the case. No doubt both these eyewitnesses have introduced in their evidence accused Khalid to have caused fire-arm injury to deceased Abdaal Hussain and Abrar Hussain, which fact was not stated in the F.I.R. And such part of the evidence of these P.Ws. Was not believed by the learned trial Court, who was acquitted of the charges against him. Similarly, the trial Court has also not believed conspiracy part of evidence of these P.Ws. And thus acquitted Abdul Majeed, Mst. Maqsoodan, Nisar Ahmed and Zulfiqar Ahmed from such charges. The fact that these P.Ws.

Have implicated Khalid and also other accused of conspiracy for committing offence having not been believed by the trial Court will not cause any dent in the prosecution version as to the extent of the appellants both P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, the complainant have taken consistent stand of accusing the appellants in causing the murder of the three deceased with specific role assigned to each of the appellants. Mere relationship of these two P.Ws. With deceased cannot render their evidence unreliable unless it is established that they had motive to implicate the appellants falsely. These P.Ws. Equally were closely related to the appellants and nothing was brought on record to remotely infer that there could be false implication. Even otherwise also it cannot be imagined as to why these P.Ws. Will give up the real culprits of killing their near and:'.Ear ones and implicate their own close relatives more particularly when appellant Mohammad Idrees has been the benefactor of complainant party and has also given his daughter Mst. Kalsoom in marriage to the son now deceased Abrar Hussain of the complainant P.W. Mst.

Maqsoodan Bibi.

11. The medical evidence is given by P.W. Dr. Muhammad Yousaf Chaudhry, (BTO) THQ Hospital, Wazirabad, district Gujranwala, who conducted post mortem of the three deceased on 20-4-2000 at 11-55 a.m. And has produced the post mortem report as Exh.PM, Exh.PN and Exh.PO. The Doctor in his evidence described the injuries on the bodies of the deceased which materially lend support to the injuries as described by the two eye-witnesses, namely, P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, complainant. P.W. Muhammad Arif was also produced and in his examination-in-chief which was recorded on 18-4-2002, he has fully supported the prosecution case, however, in his cross- examination which took place on 19-3-2003 i.e. Almost after about one year, he did not stick to his earlier evidence rather gave major concession to the accused party on account of which the trial Court discarded his evidence from consideration being not a reliable witness. Non-production of P.W. Mazhar Hussain could not be considered to be fatal to the case. P.W, Maqsoodan Bibi, complainant, has stated that she did not have confidence in P.W. Mazhat Hussain and this could be the apparent reason for his non-production in Court by the prosecution. The prosecution version is that P.W. Mazhar Hussain was an eye-witness of the offence and in case, if he was not produced by the prosecution, he could have been well produced by the defence side to give evidence contrary to the prosecution story and also to state that whether he was present at the time of occurrence or not. Whether he has witnessed the occurrence or not. This, however, was not done by the defence side as no evidence in defence was led in the case.

12. Recoveries of fire arm weapon as well as hatchet were made from the appellants except appellant Iftikhar. Two empties were also recovered from the place of occurrence so also blood- stained earth and the blood-stained clothes of the deceased. The reports of FSL, Chemical Examiner and Serologist were produced as Exh.PX, Exh.PY, Exh.PZ, Exh.PAA, Exh.PBB, Exh.PCC, Exh.PDD, Exh.PEE and Exh.PFF, which establish that two crime empties recovered from the place of occurrence were fired from the recovered .44 bore rifle and 8 mm bore rifle and that the blood stained earth and the hatchet were stained with human blood .7 mm rifle was also recovered but no empty of it was recovered from the place of occurrence. Sufficient corroboratory evidence has come on record to connect the appellants with the commission of crime i.e. Murder of three persons and thus we are not inclined to agree with the submission of the learned counsel for the appellants that the offence of murder of three persons was not committed by the appellants. The theory of conspiracy has been disbelieved by the Court below, however, the motive part has been believed.

13. In their statements under section 342, Cr.P.C., all the appellants have taken a ditto stand that there was no altercation between the complainant and accused party on the eve of marriage of Mst. Shabana with appellant Iftikhar and that it was a night time occurrence and the reason for deposing of P.Ws. Against them was on account of enmity and they have not committed the murder of deceased. None of the appellants appeared as their own witness nor did they produce any evidence in defence. There is nothing on record to support the version of the defence, as stated in their statements under section 342, Cr.P.C.

14. The, occurrence took place on 19-4-2000 at 7-00 a.m. And its F.I.R. Was lodged on the same day at 8-50 a.m. The Police Station is at about 5 miles away from the place of occurrence, therefore, there is no delay in lodging the F.I.R. Nor there is any apprehension of misidentification of the appellants. The post-mortem examination of the deceased was conducted on the next date at about 11-55 a.m., thus there was no delay in conducting the post-mortem of the deceased. The medical evidence as well as recovery of crime weapons materially support the ocular account furnished by P.Ws. Mst. Javeria and complainant Mst. Maqsoodan Bibi, the reports of FSL, Chemical Examiner and Serologist also lend support to the prosecution version. Thus it is established on a record that the appellants have committed the crime in the case in which three persons have been murdered.

15. The question of awarding of sentence is required by law to be adverted to in every, criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although .7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered .7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellants after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely, 'Abdaal Hussain and Abrar Hussain. C This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery.

16. In the case of Mst. Bevi v. Ghulam Shabbir and another (1980 SCM R 859), this Court has held that in some cases the principle underlying the concept of benefit of doubt can in addition to the _consideration of question. Of guilt or otherwise, be pressed also in matter of sentence. Similar view was also expressed by this Court in the case of Mir Muhammad alias Miro v. The State (2009 SCM R 1188). In the case of Israr All v. The State (2007 SCM R 525), a judgment of a learned Shariat Appellate Bench of this Court apart. From other sentences the appellant was awarded death sentence under section 12 of Offence of Zina (EON) Ordinance, 1979. The Court in this case has observed as follows:-- "This bring us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence. We have examined this question in the light of all the circumstances surrounding the guilt. We find mitigating/extenuating circumstance in favour of the appellant for lesser penalty in as much as, the prosecution had failed to connect the convict with the circumstances of photographs recovered from the spot and the photographs recovered from the bag of the convict because there was no photograph of the deceased in the said photographs as mentioned above.

Photograph of one Hafeez was found who was not associated by the police in the investigation.

The benefit of doubt can be pressed also in matter of sentence as law laid down by this Court in Mst. Bevi's case 1980 SCMR 859."

17. The Court further observed in para 8 of its judgment as follows: -- "It is pertinent to mention here that this provision does not spell )ut the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior courts to lay down guidelines for awarding either of the punishment. Unamended section 302, P.P.C.

Shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta' case PLD 1976 SC 300. Now after the said amendment in ,.'ection 302, P.P.C. Will be little different as a Judge while warding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons. The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced and enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time :o time since .1990 in view of section 338-F of P.P.C.

As in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end."

18. In the case of Haroon-ur-Rahman alias Noni and others v. The State (1994 SCM R 1155), the circumstances that no recovery was made from one of the appellant was considered for extending of benefit of doubt to- him. In the case of Muhammad Yaqoob v. The State (2009 SCM R 1273), it was observed that although the accused was stated to be armed with .222 rifle and crime empties of the same calibre were also recovered from the spot, yet during investigation a .7 mm licenced rifle was recovered from him, which to some extent weighed against the prosecution and a circumstance akin to the mitigating circumstance in his favour. Furthermore in the case of Khawand Bakhsh and others v. The State and others (PLD 2000 SC 1), where number of criminal appeals were being considered from the judgment of Special Judge for Suppression of Terrorist Activities Court, who has awarded death sentence under section 302 read with section 120/B/34, P.P.C. And the High Court, while setting aside the conviction and sentence of one of the appellant maintained the conviction and sentence of the other accused. This Court has observed as follows:- - "However, the case of Khair Jan (appellant No.3 in Criminal Appeal No.249 of 1996) appears to be distinguishable from Khawand Bakhsh and Sabz Ali appellants because the rifle recovered from him was not found to have matched with any of the crime empties recovered from the spot but was only found to have been fired without specifying the period its use, therefore, considering it to be an extenuating circumstance, we think that the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder."

19. As regards the question of motive being only against Jaffar Hussain deceased but his two sons namely, Abdaal Hussain and Abrar Hussain deceased were also made victim of the said motive, this factor will give to an inference that the immediate motive behind the occurrence remained shrouded in mystery. In the case of Hasil Khan v. The State and others (2012 SCM R 1936), this Court has observed as follows:-- "However, coming to the question of enhancement of sentence by the learned High Court, we find that the learned High Court did not appreciate that the motive alleged in the F.I.R. Was rather weak and there was no reason why Saeed Bakhsh, deceased, should have been the victim of the said motive part of the prosecution story. Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. To the appellant."

20. All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b), P.P.C., rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence from death to life imprisonment and maintaining other sentences with benefit of section 382-B, Cr.P.C., this appeal is partially allowed in the above terms.