' SH. NAJAM UL HASAN, J.---Ashfaq Masih, appellant along with Ashir alias Chuni Masih, Iqbal Masih and Rasheed alias Toti Masih co-accused were tried by a learned Addl. Sessions Judge, Wazirabad in case FIR No, 101 dated 20-3-2006 under sections 302/34/120-B, P.P.C. Registered at Police Station Ahmad Nagar, Wazirabad. At conclusion of trial the learned trial Court acquitted Ashir alias Chuni Masih, Iqbal Masih and Rasheed alias Toti Masih vide judgment dated 6-3-2007 and convicted Ishfaq Masih, appellant under section 302(b), P.P.C. And sentenced him to death on three counts for the murders of Kashif Masih, Sufyan Masih and Mst. Zakia Bibi. The appellant was also directed to pay Rs,1, 00,000 as compensation under section 544-A, Cr.P.C. To legal heirs of each deceased or to undergo S.I. For six months in default of payment of compensation of each deceased.
2. Feeling aggrieved of the above mentioned conviction and sentence, Ashfaq Masih convict has filed Criminal Appeal No, 119-J of 2007 whereas the State has approached this Court by way of Murder Reference No, 178 of 2007 seeking confirmation of sentence of death awarded to the convict. Both these matters are being disposed of together through this single judgment.
3. Occurrence in this case took place at 3.00 p.m. On 20-3-2006 in a room of the house of the appellant situated at Kot Jaffar where Kashif Masih son of the complainant his friend Sufyian and Mst. Zakia daughter of Saleem Masih/sister of the appellant were allegedly murdered by Ishfaq Masih, appellant and the matter was reported to the police by Rasheed Masih, complainant (P.W.9) by way of statement (Exh.PA) on the basis of which formal FIR (Exh.PA/1) was registered at police station same day at 7.10 p.m.
4. Narrating the prosecution case in his statement Exh.PA Rasheed Masih, complainant stated that he was resident of Mauza Trigari. On 19-3-2006 his son Kashif Masih along with his friend Sufyian went to village Weeroki to see his paternal aunt. They did not return upon which the complainant telephonically contacted Weeroki and was informed that they had proceeded to village Kot Jaffar to see in-laws of Indhar Riaz. Upon this the complainant along with others reached at the house of the appellant at Kot Jaffar and found Chhohi, Iqbal and Toti, co-accused standing at door of house of the appellant. On hearing noise from inside the house the complainant and other witnesses entered the house and saw that Ishfaq, appellant was giving blows with his iron rod to Kashif, Sufyian and Mst. Zakia at their heads who died at the spot.
' Motive stated for the occurrence was suspicion of the appellant about illicit relations of Mst. Zakia with Kashif and Sufian, deceased.
5. Waqar Haider, A.S.I. (P.W.12) conducted investigation of this case. On receiving the FIR on 20-3- 2006 he reached the place of occurrence which was a room meant for cattle in the house of Ishfaq, appellant. The investigator prepared injury statements and inquest reports of the deceased persons. He also collected blood stained earth respectively from the places where dead bodies were lying. He dispatched the dead bodies to the mortuary for post mortem. He also got prepared scaled site plan. He arrested the appellant and other co-accused on 23-3-2006 except Rasheed Masih alias Chooni co-accused who was arrested on 31-3-2006. On 5-4-2006 the appellant while under custody made disclosure and then led to the recovery of iron rod (P.7) from the Dera of his house which was taken into possession by the investigator. After completion of investigation challan was submitted to Court.
6. Dr. Tehmina Sheraz Tosi P.W.5 performed post mortem on dead body of Mst. Zakia Bibi aged about 15/16 yeaRs, The dead body was looked pale, eyes and mouth closed rigor mortis and post mortem staning were present, wearing clothes. The doctor found following injuries on her person:
(1) Lacerated wound 05 x 01 cm x bone deep into skull fracture, 0.5 cm above left eye brow.
(2) Lacerated wound 05 x 01 cm x bone deep 3 cm right to just above medial end of right eye brow.
(3) Lacerated wound 05 x 01 cm x bone deep parallel and 2.5 cm right to injury No, 2.
(4) 01 x 02 cm bone deep, 02 cm from lateral canthus of left eye.
(5) 06 x 05 cm bone deep on left parietal bone 5 cm from left ear horizontal in shape.
(6) 06 x 01 cm bone deep forming vertical limb of T.
(7) 06 x 01 cm bone deep, 2 cm from injury No 6.
(8) 06 x 01 cm bone deep, 2 cm from injury No, 7 back on occipital region.
' On dissection scalp, skull, membranes and brain were found injured. Rest of organs were found healthy.
' The doctor opined that injuries Nos. 5 to 8 located on head led to excessive haemorrhage and intra cranial leading to shock and immediate death. Probable time between injures and death was 10-15 minutes and between death and post mortem about 16-20 houRs,
7. On the same day Dr. Sheraz Ahmad Tosi, P.W.6 performed post mortem on the dead body of Sufiyan aged about 17 yeaRs, The corpus was wearing white lined shirt with bunyan and green socks. Clothes were stained with blood. Bleeding was coming out through nose and mouth. The doctor found fbllowing injuries on the dead body.
(i) Lacerated wound 4-1/2 cm x 1 cm at right side of head, 3 cm above lateral side of right eye brow with injury of skull and brain matter was coming out
(ii) Lacerated wound 08 x 04 cm at the lateral side of head with injury of skull, reaching up to brain.
(iii) Lacerated wound 06 x 02 cm x bone deep starting from middle of left ear upto cheek with clinical depressed Injury to skull in area 14 cm x 15 cm including left eye orbit and its lateral side of head deforming left side of face and left lateral side of head.
(iv) Lacerated wound 06 x 02 cm x going deep with injury of skull reaching upto brain at back of head.
Scalp, skull, membranes and brain were found injured. Rest of the organs were healthy.
' In the opinion of doctor the injuries were ante mortem, led to neurogenic shock, haemorrhagic shock and death and were sufficient to cause death in ordinary course of life. Probable time that elapsed between injuries and death was 5-10 minutes and between death and post mortem about 15-20 houRs, ' On the same day this very doctor performed post mortem examination on the dead body of Kashif Masih aged 17/18 years wearing black brown sweater, white check shirt, blue jeans. Eyes and mouth were closed. There was bleeding through nose and mouth. All clothes except pent were blood stained. The corpus of having, following injuries:-
(i) Lacerated wound 5-1/2 cm x 1 cm piercing skull reaching upto brain, 1 cm above right eye brow and right side of forehead.
(ii) Lacerated wound 8 cm x 6 cm with injury of skull reaching upto brain at right side of head 10 cm above right ear.
(iii) Lacerated wound 5-1/2 x 1 cm x scalp deep at the back side of head.
' Scalp, skull, membranes and brain were found injured. Rests of organs were healthy.
' In the opinion of doctor the injuries were ante mortem. Injuries Nos. 1 and 2 led to neurogenic and haemorrhagic shocks and death which were sufficient to cause death in ordinary course of life.
Probable time that elapsed between injuries and death was 5-10 minutes and between death and post mortem about 15-20 houRs,
8. At the commencement of trial charge was framed against the accused persons to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as twelve witnesses. At the end of prosecution evidence, the accused were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence. In reply to the question, "Why this case against you and why the P.Ws. Deposed against you?" the appellant replied that he has been falsely involved and that he was not present at the spot and had reached there after arrival of the police. He did not produce any witness in defence. At the close of trial, the appellant was convicted and sentenced as his co-accused were acquitted as noted above.
9. Learned counsel for the appellant has mainly emphasized on the point that the occurrence took place in the cattle-shed of the appellant which was located in village Kot Jaffar whereas Kashif and Sufyan deceased were residents of Village Trigari which is at a considerable distance from the place of occurrence and one has to board a bus to reach there; that the occurrence took place at 3.00 p.m. On 20-3-2006 and the police station was statedly at a distance of hardly six miles from the place of occurrence but the FIR was registered in the police station at 7.10 p.m. i,e, after four hours of the occurrence, so it cannot be considered as promptly lodged FIR keeping in view distance of the police station from the place of occurrence; that four persons were shown as accused in this matter and three of them were acquitted by the learned trial Court while disbelieving evidence of eye-witnesses and only the appellant was convicted and in such circumstance the appellant deserves same relief and eye-witnesses were not worth reliance; that all the eyewitnesses were resident of Trigari and were not resident of the locality; that Rasheed Masih, complainant (P.W.9) was father of Kashif, deceased whereas Mehmood Ahmed was father of Sufyan, deceased and third deceased Mst. Zakia Bibi was a young girl of sixteen years of age and she was sister of the appellant; that all the three deceased received blunt weapon injuries on their face and head and all the three died at the spot; that it is the prosecution case that the complainant and even the eyewitness came to the place of occurrence whereas the deceased were already there; that Kahsif and Sufyan, deceased had not come back home after a day and it was informed that they had gone to Kot Jaffar at the house of in-laws of Indhar Riaz Masih who was neighbour of the complainant and he was friend of Kashif, deceased, so the complainant and the witnesses came there; that Mst. Riffat Bibi, wife of Indhar Riaz was resident of Kot Jaffar and the witnesses have admitted that Mst. Riffat Bibi was not related to the deceased or the complainant; that no reason for the deceased to go to the house of Mst. Riffat Bibi has been brought on record; that Mst. Zakia Bibi, deceased was young sister of Mst. Riffat Bibi, so in the given circumstance prosecution remained unable to give any cogent reason for the presence of deceased Kashif and Sufyan along with Mst. Zakia, deceased in the cattle-shed of the appellant at that time; that in evidence it has been brought on record that no other inmate of the house was present at home except the appellant. Learned counsel has strongly emphasized on the point that at the time of first inspection of the place of occurrence by the investigating officer and even in the inquest report of Mst. Zakia Bibi it is clearly mentioned that she was not wearing Shalwar rather her Shalwar was lying near the dead body and in column No, 23 of the inquest report it is clearly mentioned that Shalwar was lying near the dead body; that similarly Sufyan, deceased was not wearing his paints and this fact is also mentioned in his inquest report; that the investigating officer while appearing in Court as P. W.12 has also verified this fact; that such a circumstance leads to only one inference that the deceased were present there and apparently they were involved in committing zina when they were done to death; that the complainant and Mehmood Ahmad (P.W.10) are chance witnesses and their statements cannot be accepted for conviction of the appellant for capital punishment without having corroboration from some other independent source; that the recovery of iron rod from the appellant statedly blood stained is not sufficient to provide corroboration to the statements of the witnesses; that the appellant has taken a specific stance that in fact both the deceased Kashif and Sufyan were present along with Mst. Zakia, deceased and another unknown person and during scuffle third person killed all the three deceased; that the appellant was not present at that time and later on he came at the place of occurrence and as such the appellant is entitled to clean acquittal.
10. On the other hand, learned Deputy Prosecutor General submits that this is a case in which the occurrence took place in the broad day light and dead bodies were found in the house of the appellant; that the FIR was registered promptly within four hours at the police station; that in FIR name of the appellant was duly mentioned and he was the one who was assigned specific role of causing injuries to all the three deceased with iron rod which was later on recovered and found to be stained with human blood; that motive is fully proved as Mst. Zakia, deceased sister of the appellant was also killed in the same occurrence and when the police came at the place of occurrence she was not wearing Shalwar and even paint of one of the deceased Sufyan was found half removed so it appears that the appellant has killed all the three deceased and as such he is not entitled to any exception.
11. We have heard the arguments of learned counsel for the parties and have also gone through the record. The appellant is the main accused who was assigned role of causing injuries on the head and face of all the three deceased with an iron rod. Iron rod was later on recovered on his pointation and same was found to be stained with human blood. The occurrence took place in the cattle shed of the appellant. No doubt house of the appellant is at a considerable distance of more than ten miles from the house of deceased Kashif and Sufyan and their presence at the relevant time in the house of the appellant is also a circumstance which indicates something else. It is the prosecution case that the appellant suspected illicit relation of the deceased with his sister Mst.
Zakia Bibi. The complainant and eye-witnesses came to see the deceased and per chance at that time they saw the occurrence. It is the prosecution case that when the complainant and eye- witnesses came to the place of occurrence, the occurrence had already started and certain injuries had already been given to the deceased by the appellant and in their presence the appellant repeated the injuries and consequently, on seeing them he ran away along with weapon of offence. The occurrence was reported through written application at police station which was at a distance of 6 miles/10 kilometer from the place of occurrence. The defence remained unable to establish absence of complainant at the time of occurrence. Site plan indicates that co-accused of the appellant were standing at the door and they were not armed and had not given any injury to the deceased. Three of the co-accused were acquitted by the learned trial Court and there is no appeal against their acquittal.
12. It is the prosecution case that Indhar Riaz Masih was husband of Mst. Riffat and he was neighbour of Kashif, deceased and was having friendly relation with him. Mst. Zakia Bibi, deceased was sister of Mst. Riffat, wife of Indhar Riaz Masih and she was resident of Kot Jaffar where the occurrence took place. No reason for the deceased to be present in their house in the absence of other inmates of the house has been brought on record.
13. The police came at the spot immediately after receiving report and it is prosecution case that police arrived at the place of occurrence before 10.30 p.m. And at that time Mst. Zakia Bibi, deceased was not wearing her Shalwar. The doctor who conducted postmortem examination handed-over last worn clothes of the deceased Mst. Zakia Bibi which were taken into possession by the police and Shalwar was not mentioned in the list of her clothes. Even in column No,23 of her inquest report, it is mentioned that Shalwar was lying near the dead body. Likewise in the inquest report of Sufyan, deceased it is mentioned that his paint was also lying near his dead body meaning thereby that he was also half naked when he was done to death. The investigating officer while appearing in Court verified this fact. Keeping in mind this peculiar circumstance, present occurrence appears to be result of "Ghairat" and sudden provocation. However, it may be mentioned at this very juncture that the appellant never took this plea in his defence. The eye- witnesses stated that when they came at the spot the occurrence had already started and certain injuries had already been given to the deceased, so genesis of the occurrence is not known to the complainant and eye-witnesses and even to the prosecution but the thing remains that the appellant was the one who gave injuries to all the three deceased. He was brother of Mst. Zakia Bibi who was also done to death along with other two deceased. The occurrence took place in his house and he got recovered iron rod duly stained with human blood. Medical evidence corroborates the ocular account. The doctor observed that Mst. Zakia Bibi was a young girl of sixteen years of age but hymen was found old torn. This shows that Mst. Zakia deceased was a girl of easy virtue and of loose character. The suspicion of inter se illicit relations of the deceased was further aggravated from the circumstance that all the three deceased i,e, two young boys and his young sister were present in the cattle-shed, involved in such activity, as such the voluntary involvement of his sister in this matter, can easily be presumed by a man of ordinary prudence. So finding an opportunity to teach lesson to the deceased, he committed the murdeRs, The venom in the mind of the appellant can be gathered from the fact that he gave injuries only on the heads of all the three deceased to ensure death and gave such severe strokes with iron rod that skull bone was fractured. All these things put together especially in absence of any other motive lead to only one inference that the appellant is involved in this matter and he committed the murder out of "Ghairat" which was out raged when he saw his sister with two persons in such objectionable condition in their cattle shed and he gave injuries to all the three deceased who died there and then. However, we cannot award any benefit of "Ghairat" to the appellant to bring his case under section 302(c), P.P.,C. As section 302, P.P.C. Was amended on 11th of January, 2005 before this occurrence which took place on 20-3-2006. New amended section of 302(c), P.P.C. Vide Criminal Law (Amendment) Act, 2004 reads as under:-- "Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be."
' So at the time of occurrence the appellant was not entitled to exception as provided in section 302(c), P.P.C. And he was liable under section 302(b), P.P.C. As discussed above, no one can be given licence to kill his own young sister and two young unarmed boys in such a brutal way. So considering all these aspects of the case and going through the prosecution evidence, we are of the affirmed view that the prosecution has proved its case against the appellant as far as murder of three persons is concerned and he has rightly been convicted by the learned trial Court under section 302(b), P.P.C.
14. Having come to this conclusion, now we advert to the sentence awarded to the appellant. The appellant never took the plea during investigation or at trial while cross-examining the prosecution witnesses or even while appearing under section 342, Cr.P.C. That he had committed the murders out of sudden and grave provocation but in the interest of justice and in all fairness, one can understand the circumstance in which the three deceased were done to death. There are two sentences provided under Section 302(b), P.P.C. For the offence of Qatl-i-Amd. No doubt normal penalty for Qatl-i-Amd is death. But if there are extenuating circumstances leading to commit murder of the deceased then the courts feel reluctance to award normal penalty and rather have inclined to award life imprisonment. This is an ideal case in which prudent man in such circumstances shall lose his control and may react in such a way. If circumstances of case indicate that the occurrence took place in the manner when a person of ordinary prudence will lose self control and is not expected to act in rational way then such a circumstance may provide reason for mitigation in awarding lesser sentence. We are convinced that the appellant is involved in this matter but keeping in view the circumstances as mentioned above, the appellant deserves some leniency. Even otherwise presence of Kashif and Sufyan deceased, residents of Trigari situated at a considerable distance from the place of occurrence, in the cattle shed of the appellant along with his sister in an objectionable condition is a circumstance which shows that the deceased have themselves invited the trouble and contributed to the circumstances leading to the present occurrence and had provided opportunity to the appellant to commit the murder.
Thus in the circumstances imprisonment for life would meet the ends of justice.
15. The net result of above discussions and observations is that conviction of the appellant is upheld. However, sentence of death on three counts awarded to him his converted into imprisonment for life on three counts. The sentences of imprisonment for life on three counts shall run concurrently and benefit of section 382-B, Cr.P.C. Is also granted to the appellant. Since the deceased were admittedly involved in immoral act at the time of occurrence, so they cannot be declared Masoom-ud-Dam, as such their legal heirs are not entitled to compensation under section 544-A, Cr.P.C. Direction issued by the learned trial Court regarding payment of compensation by the appellant to the legal heirs of the three deceased is accordingly set aside.
With this modification in the sentences, Criminal Appeal No,119-J of 2007 is dismissed.
16. Since sentence of death on three counts awarded to the appellant has been converted into imprisonment for life on three counts, as such Murder Reference No,178 of 2007 is answered in negative and death sentence on three counts is not confirmed.