MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal filed by Sajjad Hussain alias Shahzad appellant through jail authorities as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions Judge, Lahore in a case registered vide FIR No,168/02 dated 21.06.2002 under sections 302/34, P.P.C.
Registered at Police Station, Ghazi Abad, Lahore vide impugned judgment dated 01.11.2006 and sentenced as follows:-- ' SAJJAD HUSSAIN, APPELLANT.
(i) Death on five counts under section 302(b), P.P.C. As Tazir and to pay Rs,50,000 as compensation to the legal heirs of each deceased as required under section 544-A, Cr.P.C.
(ii) Ten years RI. Under section 324, P.P.C. For causing injury on the leg of Mst. Iqra with fine of Rs .50 ,000/- .
2. Nadeem Ahmad, complainant (PW,05) got recorded his statement (ExhPE) before Muhammad Ishtiaq, Inspector (PW-13) on 21.06.2002 at 10:40 a.m., on the basis of which formal FIR Exh-PE/1 was chalked out.
3. The rueful story spelt out by Nadeem Ahmad (PW.05) in FIR Exh.PE/1 is that he resides in the area of Badami Bagh; Lahore. On the day of occurrence i,e, 21.6.2002 at about 10.15 A.M., he along with his Taya/paternal uncle namely Shoukat Ali @ Shoki came on rickshaw to see his sister Mst. Lubna Bibi (deceased) at Ghazi Abad, Lahore. When they reached the house situated in street No,11, Pakora Stop and found gathering of adult males and females of the locality. When complainant along with his Taya was climbing the upstairs of the house of his sister, at that time, one neighbourer Ahmad Ali also reached at upper storey, who tried to apprehend Shahzad (appellant) while unloading rifle 222 bore but the appellant took flight while brandishing his 222-bore rifle. When entered the room, found Mst. Lubna Bibi (sister), Ghulam Rasool alias Kala (paternal cousin) and Nawaz Shahzad (nephew) to be dead, whereas found Mst. Iqra, Mst. Mehwish alias Saira and Mst. Sumbal in injured conditions. Subsequently Mst. Sumbal and Mst. Mehwish alias Saira also succumbed. On seeing the complainant, Mst. Iqra shouted that "Mamoon Bacha lo Papa nay mara hay". Hence, instant FIR. It is pertinent to mention here that subsequently injured Mst. Sumbal and Mst. Mehwish also died.
4. The investigation in this case was carried out by Muhammad Latif, SI. He while appearing as PW- 16 deposed that on 21.06.2002, he reached at the place of occurrence, took into possession eight empties of rifle 222 bore P-21/1-8, took the same into possession vide recovery memo Exh-PW, took into possession three blood imbrued tumblers vide recovery memo ExhPB, then he sent the dead bodies of deceased persons to the mortuary for postmortem examination through Amjad Ali and Muhammad Saleem constable, secured blood of deceased Mst. Mehvish alias Saira through cotton, made it into a sealed parcel and took the same into possession vide recovery memo Exh- PR, secured blood of deceased Nawaz Shahzad through cotton, made it into a sealed parcel and took the same into possession vide recovery memo Exh-PS" secured blood of deceased Mst.
Sumbal Shahzad through cotton, made it into a sealed parcel and took the same into possession vide recovery memo Exh-PT, secured blood of deceased Mst. Lubna through cotton, made it into a sealed parcel, took the same into possession vide recovery memo Exh-PU, secured blood of deceased Ghulam Rasool through cotton, made it into sealed parcel, took the same into possession vide recovery memo Exh-PV, recorded the statements of PWs and prepared rough site plan of place of occurrence Exh-PX.
' On 22.06.2002 Amjad Ali and Muhammad Saleem constables produced before him the last worn clothes of deceased Nawaz Shahzad, took the same into possession vide recovery memo Exh-PK, last worn clothes of deceased Mst. Lubna vide recovery memo Exh-PL, that of Ghulam Rasool vide recovery memo Exh-PM, that of Mg. Mehvish vide recovery memo Exh-PN and that of Saleem Sajjad vide recovery memo Exh-PO and recorded the statements of the PWs. On 21.06.2002, he also prepared inquest report of deceased Mehvish Exh-PY, that of deceased Ghulam Rasool Exh-PZ, that of deceased Mst. Lubna Exh-PAA, that of deceased Nawaz Shahzad Exh-PBB and that of deceased Mst. Sumbal Shahzad ExhPCC. On 23.06.2002, he along with draftsman visited the place of occurrence, who on his direction and on the pointing out of the PWs took rough notes and on 25.06.2002 he handed over to him scaled site plan Exh-PC and Exh-PC/1. On 01.07.2002 he arrested the appellant and obtained his physical remand from the court of learned Illaqa Magistrate. On the same day, the appellant on his disclosure and pointing out got recovered rifle 222-bore P1, which was used in the commission of offence, took the same into possession vide recovery memo Exh- PD/1 and also prepared rough site plan of place of recovery Ex.h-PD/1 and after usual investigation, challaned the appellant.
5. Learned trial court after observing all the pre-trial procedural formalities, indicted the appellant to which he pleaded non-culpabilis and claimed trial. Thereafter, the prosecution was directed to lead its evidence to substantiate the charge.
6. At the trial, prosecution, in order to prove its case, produced 16 witnesses in all.
7. Dr. Muhammad KhaIid, Assistant Professor, Department of Forensic Medicine, KEMC, Lahore (PW.11) deposed that he on 22.6.2002 at 2.30 PM conducted post mortem examination on the dead body of deceased Ghulam Rasool and observed as follows:-- 'INJURIES 1-A An irregular lacerated wound 3.5 x 2.5 cm x going deep with inverted margins and having collar of abrasion situated over the left cheek 1 cm outer to the corner of mouth and 3.5 cm from chin (entry wound).
1-B A lacerated wound 2 x 1.5 cm with everted margins situated on the back of the left side of the neck 3 cm from midline and 3 cm above base of the neck (exit wound).
2. A lacerated wound 1.5 cm x 1 cm x going deep with inverted margins and having collar of abrasion situated on the right side of the abdomen 7 cm below costal margins and 8 cm above and lateral to the umbilicus (entry wound)
'REMARKS ' The injuries stated above were ante-mortem and were caused by firearm weapon. The cause of death in this case was damage to the major blood vessels of the neck and damage to the vital organs of the abdomen along with its major blood vesseles leading to severe haemorrhage, shock and death and these injuries were sufficient to cause death in ordinary course of nature.
' Probable time that elapsed between injury and death was within 15 minutes and between death and post mortem was 24 to 36 houRs, ' Exh.PF was the correct carbon copy of the post-mortem report, and Exh.PF/1 and Exh.PF/2 were the sketches of injuries, the same bore his signatures.
8. Di. Nasreen Ishaq, Demonstrator, KEMC, Lahore (PW.12) deposed that she on 22.6.2002 conducted post mortem examination on the dead body of deceased Lubna Bibi wife of Shehzad Rehman and observed as follows:-- 'INJURIES.
1-A A fire arm wound of entry 0.5 x 0.8 cm. Lacerated wound with collar of abrasion was present on front of right chest at medial and right clavicle 1 cm to the right of midline.
1-B A firearm wound 1.5 x 2.5 cm. Wound of exit, was present at the back of left chest 14 cm to the left of midline and 4.5 cm above lower leg of scapula.
2-A 2 x 1 cm lacerated wound of entry with collar of abrasion was present on back of right thigh 24 cm, above knee and 22 cm below posterior superior iliac spine.
2-B 4 x 4 cm open gaping lacerated wound of exit was present on back of left thigh 13 cm above knee and 11 cm below and at 5 0" clock position from injury 2-A.
'REMARKS ' The injuries stated above were ante-mortem and were caused by firearm weapon. The cause of death in this case was injury to vital organ of chest, leading profuse haemorrhage, shock as a result of injury No,1-A and B, which was sufficient to cause death in ordinary course of nature.
' Probable time that elapsed between injury and death was within 15 minutes and between death and post mortem was 24 to 36 houRs, ' Exh.PG was the correct carbon copy of the post-mortem report, and Exh.PG/1 and Exh.PG/2 were the sketches of injuries, the same bore his signatures.
'On the same day, she also conducted the post mortem examination on the dead body of Mehwish and observed as under:-- 'INJURIES: 1-A A firearm wound of entry 1 x 0.8 cm lacerated wound with collar of abrasion was present on front of left lower chest 6 cm below left nippre and 6 cm to the left of midline.
2-A 1 x 0.5 cm lacerated wound of entry was present on front of lower right abdomen 2 cm to the right of midline and 5 cm below at 7 0' clock position from umbilicus.
3. A stitched wound with 14 silk stitches, 16 cm long was present on right hipochandrium extending from midline up till the anterior auxiliary line at lower margins of right chest.
'REMARKS; ' The above stated injuries were ante mortem and were caused by firearm while injury No,3 was surgically intervened. The cause of death in this case was injury to vital organs of abdomen, leading profuse haemorrhage, shock and death.
' Probable time between injuries and death was hospital death and between death and post mortem was 26 and 45 minutes.
' Exh.PH was the correct carbon copy of post mortem report and Exh.PH/1 and Exh.PH/2 were the pictorial diagrams showing the seats of injuries.
'On the same day, she also conducted the post mortem examination on the dead body of Sumbal daughter of Shehzad and observed as under:-- 'INJURIES: 1-A A firearm wound of entry 1 x 0.8 cm lacerated wound with collar of abrasion and inverted margin was present at the back of right chest 4 cm to the right of midline and 4.5 cm below shoulder.
1-B 3 x 2 cm lacerated wound of exit was present at right maxilla, 7 cm to the right of midline anteriorly.
2. Re-entry exit (grazing of right arm) 10 x 4 cm lacerated grazed wound was present at the back of arm, lacerating muscles only.
' REMARKS: ' The above stated injuries were ante mortem and were caused by firearm. The cause of death in this case was injury to right chest, leading to haemorrhage, shock and death.
' Probable time between injuries and death was within 30 minutes and between death and postmortem was 24 and 36 houRs, ' Exh.PJ was the correct carbon copy of post mortem report and Exh.P.J/1 and Exh.PJ/2 were the sketches of injuries, the same bore her signatures.
' Dr. Iftikhar Ahmed, Demonstrator (PW.17) deposed that on 22.6.2002, he conducted the post mortem examination of Nawaz Shahzad son of Muhammad Shehzad and observed infra:- 'INJURIES: 1-A A lacerated wound 0.5 x 0.5 cm on the back of right chest just adjacent to posterior midline, 3 cm below neck, margins were inverted.
1-A A lacerated wound 3 x 1 cm on the front of right chest, 3 cm below and medial to right nipple just adjacent to anterior midline, margins were-everted.
'REMARKS: ' The injury stated above was ante mortem and was caused by firearm weapon. The cause of death in this case was damage to vital organs of thorax, lung, heart and abdomen, liver under injury No,1 leading to severe haemorrhage, shock and death. This injury was sufficient to cause death in an ordinary course of nature.
' Probable time between injury and death was immediate and that between death and post mortem was 24 to 36 houRs, ' Exh.PD was the correct carbon copy of post mortem report and Exh.PDD/1 and Exh.PDD/2 were the diagrams showing the local of injuries, the same bore his signatures.
9. Learned DDA renounced PW namely Shoukat alias Shauki and Mobarak Ali as being won over and thereafter by tendering in evidence report of Chemical Examiner Exh.PEE and that of Serologist Exh.PGG and report of Forensic Science Laboratory Exh. PFF, closed the prosecution case.
10. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. Wherein he gainsaid the charges and professed his innocence. He neither opted to make statement on oath as required under section 340(2), Cr.P.C. Nor opted to produce evidence in his defence. He while answering to the question "why this case was against you and why the PWs have deposed against you?" stated as follows:-- "Deceased Ghulam Rasool had illicit relations with my wife Mst. Lubna and he used to visit my house in my absence. I forbade him as well as My wife many times from this illicit act but neither he nor my wife stopped themselves from indulging this illegal act.
' On the fateful day when I came back to my home after finishing my work I saw both Ghulam Rasool and Mst. Lubna deceased lying on the same cot in an objectionable condition which got me furiated so I killed both of them due to "Ghairat". All the PWs are related inter se. No independent witness has been produced by the prosecution and police at the asking of complainant and PWs managed a false story against me".
11. At the conclusion of trial, the appellant was convicted and sentenced as mentioned op-cit. Hence, instant murder reference as well as appeal.
12. To seek acquittal, learned counsel for the appellant has argued that as per prosecution's own case, nobody saw the incident of firing being made by the appellant at the deceased persons; so far as the evidence of Mst. Iqra injured PW is concerned, she was of six years at the time of occurrence and she was not declared a competent witness as envisaged under Article 3 of the Qanun-e-Shahadat Order, 1984; she being minor was susceptible on indoctrinated and deposed a none independent parrot like statement, the same does not ring true, lacking its intrinsic values and being not corroborated by independent evidence, cannot be believed and relied upon, whereas the remaining PWs i,e, the complainant examined as PW-5 and Amjad Ali as PW-9 do not claim that in their presence, the appellant caused fire shot injuries to the deceased persons.
Learned counsel has further argued that the appellant in his statement recorded under section 342, Cr.P.C. Has pleaded Ghairat and family honour on seeing his wife Mst. Lubna in an objectionable position with Ghulam Rasool alias Kala, deceased, got furiated and could not compose himself so as being gutted owing to demi monde character of Mst. Lubna, his wife, made fire shots with his licensed rifle at her wife her paramour Ghulam Rasool alias Kala and 'thenceforth in the posthaste manner at his own offsprings, Nawaz Shahzad aged about two years, Mst. Iqra aged about six years, Mst. Mehvish alias Sayra aged about four years and Mst. Sumbal aged about seven years, out of whom, Mst. Iqra survived noticing them to be procreation of his dirty wife, this plea/ version of the appellant has been found corroborated by the statement of Mst. Iqra (PW-8), who had admitted explicitly that Ghulam Rasool alias Kala had been visiting the house of the appellant for the last about 2/3 years and also used to stay there even during nocturnally, in these circumstances, when plea of the appellant verisimilitude to the truth, then he has to be given its benefit in his acquittal. Lastly as an ace, it has been submitted that the recovery of weapon of offence does not advance the prosecution case, as it was the licensed rifle of the appellant, who also produced its license along with it to the investigating officer and on account of non-denying the incident, positive report of the ballistic expert does not mar the plea of the appellant and thus, has prayed for acceptance of appeal.
13. Learned Additional Prosecutor General while defending the impugned judgment in a punditry way has argued that the incident took place intramural house of the appellant, who committed murders of five persons inclusive his son, three minor children and caused injury to Mst. Iqra (minor) PW-8, who has supported the prosecution case mauger as being a minor but was examined after declaring her to be a competent witness through a questionnaire and she persistently remained consistent to the accusation during her cross-examination; the occurrence has not been denied; the recovery of the weapon of offence has also not been denied; on locational inspection eight spent crime empties of 222 caliber rifle were also taken into possession; report of the Forensic Science Laboratory, Lahore Exh-PFF being positive corroborates the prosecution version and on account of application of principle of res-ipsa loquitur, (the thing speaks for itself e.g. No proof is required) and that the appellant deserves no leniency as he acted relentlessly and thus, has prayed for dismissal of appeal.
14. Arguments heard assiduously. Record has also been scanned with eagle eyes.
15. As per prosecution's own case on 21.06.2002, the hapless incident took place at 10:40 am and the matter was reported to the police by Nadeem Ahmad (PW-5) brother of Mst. Lubna Bibi, deceased to the police. The place of occurrence has been noticed 2-1/2 Kilometers distantial to the police station.. Spatial reckoning proves that no element of deliberation and consultation penetrated while reporting the matter to the police in a promptitude manner. Except Mst. Iqra (PW-8), none of the remaining private witnesses including Nadeem Ahmad, complainant (PW-05) and Amjad Ali (PW-9) saw the incident being caused by the appellant upon the deceased persons but Mst. Iqra real daughter of the deceased, who has been noticed as sexennial, has competently testified against the appellant. No element of influence or susceptibility has been brought on the record in order to establish indoctrination for her to depose falsely. The medical evidence shows that all the deceased inclusive of injured Mst. Iqra sustained fire shot injuries on their bodies. Ghulam Rasool alias Kala (alleged paramour deceased) was the Tayazad brother (paternal cousin) of the appellant. After the occurrence, the appellant was seen along with his weapon by (PW-05)
Nadeem Ahmad and Amjad Ali ( PW-09), whose statements have been corroborated by the statement of Mst.Iqra (PW-08) but partway cross-examination, done by the defence, the appellant remained fizzled out in eliciting anything in his favour except (PW-08) admitted categorically that deceased used to visit her house to spend night which was not acceptable to the appellant. The appellant in his statement recorded under section 342, Cr.P.C. Has explained the befalling of misadventures incident, while answering to question No, 9 in following words:-- 'Deceased Ghulam Rasool had illicit relations with my wife Mst. Lubna and he used to visit my house in my absence. I forbade him as well as my wife many times from this illicit act but neither he nor my wife stopped themselves from indulging this illegal act.
' On the fateful day when I came back to my home after finishing my work I saw both Ghulam Rasool and Mst. Lubna deceased lying on the same cot in an objectionable condition which got me furiated so I killed both of them due to "Ghairat". All the PWs are related inter se. No independent witness has been produced by the prosecution and police at the asking of complainant and PWs managed a false story against me".
16. The appellant has not denied the incident. His version has been found supported by the statement of PW-8 Mst. Iqra. His plea seems to be probable, reasonable and acceptable as being vertye. In order to explore the truth, his plea recorded by the investigating officer in police diaries has also been gone through by virtue of section 172, Cr.P.C. His first plea is the same, as he has made in his statement recorded under section 342, Cr.P.C. That Mst. Lubna being his wife and Ghulam Rasool alias Kala were seen by him at the time of occurrence in an objectionable position, then he could not control/ compose his senses and out of rage being gutted over it, caused fire shot injuries with his licensed rifle to his wife Ms. Lubna Bibi and Ghulam Rasool and perhaps in the same breath considered his own children, Nawaz Shahzad deceased, Mst. Iqra (injured PW-8) sexennial daughter, Mst. Mehvish alias Saira quadrennial daughter and Mst. Sumbal septennial daughter were also caused injuries, otherwise he had absolutely no motive to commit their murders and to cause injuries to Mst. Iqra PW-8 and if he intended to cause their death, he could have assassinate them at any time, as of being minors living with him. Measuring of rage through a scale perhaps is very difficult because it varies from man to man and differs from situation to situation. It has been noticed very unfortunate that Mst. Lubna Bibi deceased wife of the appellant and her paramour were seen in an objectionable position by the appellant, when other deceased and the injured were also present in the house. Both the major deceased have been found contemporaries so far as their ages are concerned. Ordeal of Almighty Allah is that:-- 34: Men are the support of women as God gives some more means that others, and because they spend of their wealth (to provide for them). So women who are virtuous are obedient to God and guard the hidden as God has guarded it. As to women you feel are averse, talk to them suasively, then leave them alone in bed (without molesting them) and go to bed with them (when they are willing). If they open out to you, do not seek an excuse for blaming them. Surely God is sublime and great. {{URDU TEXT}} Of course, ambient circumstances, compelled the appellant to get rid of his wife, her alleged paramour and his own children in order to absolve himself from opprobrium life and odium living.
These circumstances, have pursued the Court to convict the appellant under Section 302(c), P.P.C.
And his sentence of death on five counts is commuted to sentence of imprisonment of twenty five years on five counts, whereas the amount of compensation on five counts is set aside, by extending him the benefit of section 382-B, Cr.P.C. His conviction under section 302(b), P.P.C. And death sentence on five counts is set aside accordingly. However, his conviction under section 324, P.P.C. For causing injury to injured Mst. Iqra is maintained but quantum of sentence is reduced from ten years rigorous imprisonment to five years rigorous imprisonment whereas the amount of fine qua the injured is reduced to Rs,10,000 from Rs,50,000. All the sentences are ordered to run concurrently. With this modification in the quantum of sentence inflicted upon the appellant, instant appeal is dismissed. Resultantly death sentence inflicted upon the appellant is NOT CONFIRMED and murder reference is answered in the NEGATIVE.