Ch. Mushtaq Ahmad, J.--Appellant Safdar Hussain has challenged his conviction and sentence through the above cited criminal appeal. He alongwith two others was tried by learned Additional Sessions Judge, Lodhran in private complaint filed by Jafar Hussain Shah under Sections 302, 324, 109, 34, PPC arising out of State case vide FIR No, 114 dated 11.4.2007 registered under Sections 302, 324, PPC at PS City, Lodhran. State has sought confirmation of death sentence awarded to the appellant through Murder Reference No, 122 of 2010. We propose to dispose of both these matters through this consolidated judgment.
2. Learned Additional Sessions Judge, Lodhran vide his judgment dated 26.4.2010 convicted the appellant under Section 302(b), PPC as Ta'zir and sentenced to Death on two counts for causing Qatl-i-Amd of two daughters of complainant, namely, Khadija Bibi and Siddiqa Bibi with payment of Rs, 4,00,000/- as compensation to the legal heirs of both deceased in terms of Section 544-A, Cr.P.C. He was also convicted u/S. 324, PPC and sentenced to 10-Years R.I. With fine of Rs, 50,000/- for launching murderous assault on the life of injured PW-3 Qamar Hussain. He was further convicted u/S. 337-A(i), PPC and sentenced to 3-Years R.I. As Ta'zir with Daman of Rs, 50,000/-for causing injury declared as 'Ghair Jaifah' on the person of PW-3. The remaining accused, namely, Ali Raza and Mureed Hussain were acquitted by extending them benefit of doubt.
3. Brief facts as disclosed in private complaint (Exh.PB)are that on 6.3.2007 he along with Abid Hussain was in Lodhran City while his daughters, namely, Khadija Bibi (pregnant of 18 to 20 weeks) and Siddiqa Bibi along with her brother Qamar Hussain came for shopping in Lodhran City to whom complainant and said Abid Hussain saw while de-boarding from Mazda Van; that they too started walking behind them at a distance of 50/60 feet; that on the same day at 12.30 p.m. As soon as they reached near main gate of Girls College, Lodhran whereas complainant and Abid Hussain were also reached there near stadium gated when all of a sudden Safdar Hussain and Raza All both armed with Pistols emerged from broken wall of stadium; that Safdar Hussain fired at complainant's son Qamar Hussain which hit on his left arm and he fell down. When Siddiqa Bibi (deceased) tried to run away appellant repeated fire shot which hit on her back and she too fell on the ground. Then, Safdar Hussain, (appellant) started indiscriminate firing out of which some fire shots hit Khadija Bibi (deceased) on left side of her neck near eye, on right arm and chest. After receiving multiple fire shots she also fell on the ground smeared in blood. The entire occurrence was witnessed by PW-2 and PW-4 from main door of the stadium. Thereafter accused decamped from the place of occurrence with their weapons.
4. On the above information, I.O. Investigated the case and submitted report under Section 173, Cr.P.C. However being dissatisfied over police investigation Jafar Hussain, complainant filed private complaint. Prosecution in order to prove charge produced as many as 10 witnesses.
5. After tendering in evidence reports of F.S.L (Exh.PN) prosecution closed its evidence on 19.4.2010.
Thereafter statement of appellant under Section 342, Cr.P.C. Was recorded in which he simply denied the charge and professed his innocence.
6. Learned trial Court after hearing arguments, recorded conviction and awarded sentence to the appellant as mentioned in the opening paragraph of this judgment.
7. Learned counsel for the appellant argued that the prosecution failed to prove the motive; that there is material contradictions between ocular account and the medical evidence; that complainant made dishonest improvements in the private complaint just to cover the lacunas; that the story introduced in State case was entirely different as alleged in the private complaint coupled with the fact that he graduated number of accused from one to three; that the eye- witnesses could not establish their presence at the place of occurrence at the relevant time and that recovery of .30 bore pistol is planted upon the appellant.
8. Conversely, learned law officer assisted by learned counsel for the complainant submitted that prosecution has proved its case by direct evidence furnished by the eye-witnesses including injured PW-3 Qamar Hussain; that defence has failed to prove any animosity or ill will against the appellant to falsely implicate him; that learned trial Judge after due appreciation of evidence convicted the appellant which finding is in line with ocular account supported by medical evidence.
This appeal is liable to be dismissed.
9. Arguments heard. Record perused.
10. Ocular account was furnished by PW-2 Jafar Hussain Shah, (complainant), injured PW-3 Qamar Hussain and PW-4 Syed Abid Hussain Shah. All the three witnesses with one voice categorically and in a straight forward manner stated that on the day of occurrence at 12.30 p.m. Safdar Hussain, accused duly armed with 30 bore Pistol emerged from broken wall of Stadium near Girls College, Lodhran and fired at PW-3 Qamar Hussain which hit on his left arm and he fell down. When Siddiqa Bibi (deceased) tried to run away appellant repeated fire shot which hit on her back and she too fell on the ground. Then, Safdar Hussain, appellant started indiscriminate firing out of which some fire shots hit Khadija Bibi (deceased) on left side of her neck near eye, on right arm and chest. After receiving multiple fire shots she also fell on the ground smeared in blood. The entire occurrence was witnessed by PW-2 and PW-4 from main door of the stadium. Thereafter accused decamped from the place of occurrence with his weapon. No doubt it was a day light occurrence. Present appellant was son-in-law of complainant so mistaken of identity is not involved in this case. All the three witnesses including injured PW-3 who was the star witness of the incident explained their presence at the place of occurrence at the relevant time. PW-3 in his examination chief stated that on the fateful day he along with sisters, Khajida and Siddiqa came to Lodhran City for purchasing articles and when they were crossing the main gate of Girls College, Lodhran present appellant open fire upon them due to which his both sisters had died whereas he got injured. At that time PW-2 and PW-4 were at a distance of 50 feet from the deceased from where they witnessed the incident. So, their testimony cannot be doubted on any stretch of imagination. Defence put so many questions regarding receipt and locale of injuries received by both the deceased, mode of occurrence and their presence at the spot but the witnesses remained firm on their stand. During arguments learned counsel for the appellant raised objection that all witnesses were closely related although occurrence took place in a broad day light among so many people but none came forward to support prosecution version. In this case two ladies were murdered on a public road whereas the third one got injured by the appellant in such like heinous offences people often avoid to become witness on the cost of enmity with accused persons. So, mere relationship of witnesses is insufficient to discard their testimony unless element of enmity with the accused to falsely implicate is brought on record. Medical evidence in this case was furnished, by PW11 Dr.Shahida Zareen who on 6.3.2007 conducted autopsy on dead body of Siddiqa Bibi and found one entry wound from back of the deceased making its exit from front of chest. She opined that it was a bullet injury which was sufficient to cause death of the deceased. This injury was specifically attributed to the present appellant. On the same day at 3.30 p.m. PW-11 conducted autopsy on dead body of Khadija Bibi (wife of present appellant) and observed same injuries as alleged by the prosecution witnesses in their statements as well as in complaint (Exh.PB). Doctor further opined that deceased lady was pregnant about 18-20 weeks and on dissection uterus foetus of about 18 weeks was recovered from her body as dead. All these injuries were specifically attributed to the appellant. During cross-examination she stated that deceased Khadija was fired by more than one persons according to duration of causing injuries and its time but to the very next she denied the suggestion that she had stated so just to strengthen the prosecution case. On the same date PW-8 Dr.Riaz Ahmed examined injured Qamar Hussain and observed three injuries out of them Injury No, 2 was on back of left elbow which too was attributed to the present appellant. Same was the deposition of eyewitnesses. So, medical evidence is in line with ocular account.
11. During interrogation appellant got recovered .30 bore Pistol (P1) but in absence of crime empties the report of FSL is in consequential. However, injury statements as well as inquest reports of both deceased ladies fully corroborate prosecution, case qua date, time and venue of the occurrence.
12. As far as quantum of sentence is concerned, it has come in evidence that present appellant who was husband of deceased lady Khadija Bibi was adamant to bring her home as she came to the house of her parents after having dispute with appellant on account of his secretly solemnizing marriage with one Manzooran Mai. Besides this, appellant also gave her beating due to which eight days prior to the occurrence she left the house of appellant along with her two minor children.
Except statement of PW-2 complainant there is no evidence available on record to support allegations qua maltreatment to Khadija Bibi by the appellant, depriving her from gold ornaments and solemnizing second marriage without her consent. Regarding motive PW-3 Qamar Hussain Shah did not utter a single word. Moreover, appellant is father of his two children left by deceased Khadija Bibi. Record further shows that appellant was inclined to take his wife. Khadija Bibi to his home but she refused, it aggravated the situation which ultimately led to unfortunate incident. In this backdrop, in our view, death penalty was not warranted and alternate sentence of imprisonment for life was sufficient to meet the ends of justice. Therefore, we are inclined to convert death sentence of appellant on two counts into imprisonment for life on each count. However, remaining sentences under Sections 324, 337-A(i), PPC along with amounts of compensation shall remain intact. All the sentences shall run concurrently with benefit of Section 382-B, Cr.P.C. With above modification, Criminal Appeal No, 475 of 2010 is dismissed.
13. As a sequel to the above, Murder Reference No, 122 of 2010 for confirmation of death sentence on two counts to convict Safdar Hussain is answered in Negative.