KHALIL-UR-REHMAN RAMDAY, J.- Six persons, namely, Abdul Ghafoor, Masood Khan, Mehmood Khan, Amir Khan, Mst. Sughran Bibi and Abdul Ghani were accused of the murder of Iqbal, Mst. Kishwar and Mst. Zainab and also of having attempted to kill Nawaz, Shah Jahan and Mst. Kaniz Bibi.
2. Abdul Ghani accused was declared a proclaimed offender and was proceeded U/S 512 Cr.P.C.
3. The remaining five accused were tried by a learned A.S J. Of Sialkot at Narowal who vide his judgment dated 20.1.1988 extended the benefit of doubt to Amir Khan and Mst. Sughran Bibi and finding the other three accused guilty of the charges, punished them as under:- U/S 302/34 P.P.C. ON THREE COUNTS.
Death to each convict on each count with a fine of Rs. 15,000/- each on each count or sufferance of three years R.I. In default of payment of fine. The entire amount of fine was directed to be paid in equal shares to the heirs of the deceased.
U/S 307/34 P.P.C. ON TWO COUNTS.
Seven years R.I. On each count with a fine of Rs.5,000/-on each count or sufferance of one year R.I.
In default of payment of fine.
4. Murder Reference No 62 of 1988 is a reference seeking confirmation of the death sentences imposed on the three convicts above-mentioned who, in turn, seek annulment of their convictions and sentences above-described through Crl. Appeal No.419 of 1988. Crl. Revision No.530 of 1988 filed by Shah Jahn complainant is directed against the acquittal of Mst. Sughran Bibi accused.
5. All these three matters are being disposed of together through this single judgment.
6. The three appellants, namely, Abdul Ghafoor, Masood Khan and Mehmood Khan and the absconding accused, namely, Abdul Ghani are real brothers inter se. They have another brother by the name of Lal Khan and Mst. Sughran Bibi and Amir Khan, the acquitted accused are the wife and son, respectively, of the said Lai Khan.
7. On the complainant side, Iqbal deceased and Shah Jahan injured complainant (PW-8) are real brothers. Nawaz injured (PW-9) is their father. Mst. Kaniz Bibi injured (given up P.W.) is their mother.
Mst. Zainab Bibi is an aunt of Nawaz P.W. Whereas Mst. Kishwar deceased is the wife of Shah Jahan complainant.
8. It may be mentioned here that Mst. Zainab Bibi deceased was the widow of one late Sultan Khan who was a paternal uncle of Abdul Ghafoor and other appellants and which Sultan Khan would figure in the motive part of the prosecution story.
9. Shah Jahan, the injured complainant had stated through the F.I.R., recorded in respect of the occurrence in question, that he was employed as a constable in the police department and was posted at police station Shah-Dara in Lahore and that he had come to his village on 19.9.1985 to attend the CHELUM of his relative Sultan Khan above-mentioned. He had further stated that on 21.9.1985, he went to take a round of his peddy crop alongwith his brother Iqbal deceased at about 2.00 p.m. Where they came across Abdul Ghafoor and Masood appellants who demanded that since Sultan Khan had died issueless therefore the land of the said Sultan Khan had devolved on them and two acres out of his land which was under cultivation with the complainant's father Nawaz P.W. And his brother Iqbal deceased, should be handed over to them.
10. The complainant claimed that he and his deceased brother informed Abdul Ghafoor and Masood appellants that the possession of agricultural land was always transferred after the harvesting of wheat crop and that they would vacate the land in question at that time.
11. This conversation then allegedly led to exchange of hot words and abuses and the two sides were separated by certain persons of the village who were present there. Abdul Ghafoor and Masood appellants are then stated to have gone away after threatening the complainant and his deceased brother for revenging that insult and his deceased brother for avenging that insult and also declaring that they would have the land in question vacated .
12. It was further alleged through this F.I.R, that Mst. Sughran, the acquitted accused, came to the house of the complainant at about 6.00 p.m., the same day and called out for Shah Jahan complainant who came out of the house alongwith his brother Iqbal deceased and saw Abdul Ghani absconding accused armed with, l2 bore gun, Abdul Ghafoor appellant armed with .12 bore gun and the remaining three accused armed with DAGGERS, present outside their house.
13. Mst. Sughran Bibi was stated to have then shouted that she had brought the two brothers out of their house and that her co-accused could take revenge of their insult.
14. Thereafter Abdul Ghani absconder is alleged to have fired at Iqbal deceased which hit him in his abdomen. Mst. Kishwar deceased rushed out of the house on hearing the report of the fire arm and fell on Iqbal deceased to save him but was fired at by Abdul Ghafoor appellant hitting her on her head.
15. Mst. Zainab deceased, the widow of late Sultan Khan then came to the spot and entreated Abdul Ghani accused and others who were her late husband's real nephews to spare the complainant party but was attacked by Amir Khan appellant with a Dagger which hit her near the wrist of her right hand. Thereafter Mehmood Khan and Masood Khan appellants were alleged to have given repeated blows on the person of Mst. Zainab deceased with their respective daggers and in the meantime, the complainant, his father Nawaz P.W. And his mother Mst. Kaniz (given-up P.W.), came out and were in the process of lifting Iqbal and Mst. Kishwar deceased when Abdul Ghani absconder fired shots at them which was followed by a shot fired by Abdul Ghani appellant which hit ali these three on different parts of their bodies.
16. Having done this damage to the complainant party, the accused persons disappeared from the place of occurrence.
17. The three deceased, namely, Iqbal, Mst. Kishwar and Mst. Zainab died at the spot whereas the remaining three victims, namely, Shah Jahan complainant, Nawaz (PW'-9) and Mst. Kaniz (given- up P.W.) survived despite the injuries received by them.
18. Shah Jahan complainant had disclosed that Sultan Khan, the late husband of Mst. Zainab deceased who was a real paternal uncle of the appellants had died issueless and that the appellants wanted to take forcible possession of two acres of land owned by the said Sultan Khan which was in possession of the complainant party and that this was the motive for the occurrence in question.
19. As a result of the postmortem examination, it was reported by Dr. Ghulam Safdar (PW-15) that Mst. Kishwar deceased had received a fire arm injury on her skull, Mst. Zainab deceased had received as many as 22 sharp edged incised wounds on various parts of her body whereas Iqbal deceased had received 8 fire arm injuries on his person.
20. The medico legal examination of the three injured victims conducted by Dr Akram (PW-11) disclosed that Shah Jahan complainant had received five fire arm injuries, his father Nawaz PW had received six fire arm injuries whereas his mother Mst. Kaniz had received one fire arm injury on her person.
21. All the accused persons were arrested on 5.10.1985 whereafter Masood Khan and Mehmood Khan appellants had allegedly led to the recoveries of blood stained Daggers P-13 and P-15 on the 14th and 18th of October, 1985 respectively whereas Abdul Ghafoor appellant had led to the recovery of a gun P- 14 on 17.10.1985.
22. Four crime empties were recovered from the spot on 22.9.1985 but no report of the Fire Arms Expert was brought on record by the prosecution in respect of these crime empties.
23. As against this prosecution version, the accused persons pleaded, through their statements recorded U/S 342 Cr.P.C., that the deceased and others had made an armed attack at the house of Abdul Ghani, the absconding accused, at night time and that he had defended himself against this attack.
24. The details of the defence claim, however, appeared through the statement of Fazil Khan (DW- 1) who claimed that 10/12 persons out of which Iqbal deceased, Nawaz P.W. And one Amanat had PISTOLS, one Saleem had a GUN and others were armed with SOTAS etc., had come to the house of Abdul Ghani accused at about EISHA prayer time and had declared in front of the house of Abdul Ghani P.O. That they would kill him and even snatch the house and the land from them. This D.W.
Had further claimed that thereafter these persons resorted to firing whereupon Abdul Ghani P.O.
Came out of his house with a GUN and started firing shots in retaliation. He fired four shots in all which hit Iqbal deceased, Mst. Kishwar deceased, Nawaz P.W., Shah Jahan complainant and Mst.
Kaniz Bibi. ; 25.' Fazil D.W. Further disclosed that after exhausting these four shots, Abdul Ghani P.O. Was left with no other ammunition and at that stage, Mst. Zanib .Bibi deceased stepped forward and started grappling with him. Abdul Ghani P.O. Then inflicted injuries on the person of Mst.Zanib Bibi deceased with a CHURRI. He went on to add that the complainant party had fired 18/20 shots at the house of Abdul Ghani P. O.'and further that the accused persons other than Abdul Ghani P.O. Were not present at the spot and had not participated in the occurrence.
26. As would appear from the record, the cause of the occurrence was the land left by the late Sultan Khan because he had died issueless and the appellants being his collaterals would obviously lay claim to the said land.
27. It is on record that no part of this land was with the appellants party. Two acres out of the same was with the complainant party and the remaining sixteen acres was with other persons.
26. It is also on record that the widow of the said Sultan Khan, namely, Mst. Zainab who is one of the deceased persons of the present occurrence, was living with the complainant party and was thus in their control and on their side.
27. This being the state of affairs, the complainant party would have no reason to attack Abdul Ghani absconder or his brothers and the motive would in fact be with the appellants parly to mount an attack on the complainant side. The defence claim to the contrary is, therefore, not reasonable and thus not believable.
28. The defence plea becomes further improbable because of the inclusion of at least three females amongst the victims of the occurrence in question out of whom, Mst. Kishwar and .Mst.
Zainab were amongst the three dead and Mst. Kaniz was amongst the three survivers of the injuries received by the complainant party.
29. It is not believable that the complainant party would plan an attack on the house of Abdul Ghani absconder with a strength of 10/12 persons armed with fire arms etc., and would yet decide to include their females, young and old amongst them.
30. The further assertion of the defence that 10/12 persons of the complainant party armed with fire arms and SOTAS etc., mounted an attack on Abdul Ghani and yet the lone Abdul Ghani who had only four cartridges with him managed to escape unhurt and in fact even managed to kill three of the assailants and profusely wounded the three others, is fanciful and implausible. This claim is negated even by the medical evidence which definitely demonstrates the use of more than one weapons against the victims of the occurrence i.e. Fire arms and sharp-edged weapons. Even amongst the fire arms weapons, injuries no. 7 and 8 received by Iqbal deceased, indicate two different types of fire arms used in the occurrence. Some of the injuries are the circular holes whereas the others are oval holes demonstrating the possibility of receiving all these injuries by pellets as well as bullets.
31. Having analysed the defence version, we hold that the same is not. Reasonable and plausible and consequently the same is rejected.
32. The prosecution case is supported by the ocular testimony of three witnesses, i.e. Shah Jahan (PW-8), Nawaz (PW-9) and Arshad Khan (PW-10).
33. As has been noticed above, Shah Jahan and Nawaz P.Ws, are the injured witnesses of the occurrence in' question. Their presence at the place of occurrence is not denied even by the defence. They are no doubt closely related to the other victims of the occurrence in question but it stands proved on record that prior to the present occurrence, the parties had no back-ground of any ill-will or animosity. They are thus independent witnesses of the occurrence.
34. Their testimony inspires confidence and is even corroborated by the evidence of motive and the medical evidence.
35. Having considered both the versions and having analysed the material available on record, we find and hold that the prosecution had successfully proved its case against the three appellants beyond any reasonable doubt.
36. Resultantly the conviction recorded against the three appellants and the sentences imposed on them by the learned trial Court through its judgment dated 20.1.1988 are maintained and CONFIRMED.
37. Criminal Appeal No.419 of 1988 is accordingly dismissed and having CONFIRMED the death sentences imposed on the three appellants, Murder Reference No. 62 of 1988 is answered accordingly.
38. The learned counsel for the complainant has not been able to point out any perversity or illegality, legal or factual, in the acquittal of Mst. Sughran Bibi accused. Criminal Revision No. 530 of 1988 is, therefore, dismissed.