MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal No.26 of 1987 and connected Murder Reference No.4 of 1987 arise from the judgment of leamed Sessions Judge, Bahawalnagar, whereby he on 1.2.1987 convicted Ahmad Alias Ahmad (52), Muhammad Sharif (20), Muhammad Hanif (18) and Muhammad Ashraf (16,17) appellants under section 302/34 and 449/34 P.P.C, on nine counts and under section 324/34 P.P.C, on two counts and sentenced them as under:- All the appellants to seven years R.I. Ahmad appellant to death and others to imprisonment for life.
Ahmad appellant to death and others imprisonment for life.
Ahmad appellant to death and others to inprisonment for life.
Muhammad Hanif to death and others to imprisonment for life.
Muhammad Hanif to death and others to imprisonment for life.
U/S 449/34 P.P.C.
U/S 302/34 P.P.C, for the murder of Mst. Zaina Mai (52)
U/S/302/34 P.P.C, for the death of Mst. Shahnaz.
U/S 302/34 P.P.C, for the death of Mst. Ghulam Fatima (30)
U/S 302/34 P.P.C, for the death Mst. Kalo Bibi (I6).
U/S 302/34 .P.P.C, for the death Mst. Sain Mai (l2).
Muhammad Hanif to death and others to imprisonment for life.
Muhammad Sharif appellant to death and others to imprisonment for life.
Muhammad Sharif to death and others to imprisonment for life.
Muhammad Ashraf and Muhammad Sharif appellants to death and others to imprisonment for life.
All the four accused to one year R.I. Each on two counts.
U/S 302/34 P.P.C, for the death of Mst. Shanhnaz U/S 302/34 P.P.C, for the death of Muhammad Shabhir (4).
U/S 302/34 P.P.C, for the death of Mst. Zarina. '
U/S 302/34 P.P.C, for the death of Muhammad Bashir.
U/S 324/34 P.P.C, causing simple injuries to Munir Ahmad P.W.9 and Mst. Sheeman. {{TABLE MISARRANGED}} It was directed that the sentences of imprisonment shall run concurrently. Neither any fine was imposed nor any compensation was awarded to the legal heirs of the deceased.
2. The occurrence took place on 23.10.1986 at about 11.00 P.M. Five women namely Mst. Bashiran, Mst.
Kalo, Mst. Zaina, Mst. Sain and Mst. Zarina Mai were killed in the house of Mansoor Ahmad P.W.7 situate in Basti Dulla Akuka. After killing the five aforesaid women, the appellant went to village Majid Shah at a distance of 7 acres from the house of Manzoor Ahmad and killed more four persons namely Mst .Ghulam Fatima, Mrf. Shahnaz, Shabhir and Bashir there and also caused fire- arm injuries to Munir Ahmad P.W. 9 and his wife Mst. Sheeman.
3. The back-ground of the occurrence allegedly was that about 20 years before the present occurrence, Ahmad appellant abducted Mst. Zaina Mai deceased, sister of Manzoor Ahmad P.W.7 (complainant) and in return Bashir deceased, abducted Mst. Ghulam Fatima, daughter of Ahmad accused about l2 years before the occurrence. Mst. Ghulam Fatima give birth to Mst. Shahnaz deceased and Shabhir deceased. No child was born from Mst. Zaina Mai. She continuously remained with Ahmad and it was only 2 months before the occurrence that she came to the house of her brother Manzoor Ahmad P.W.7 on account of her strained relations with Ahmad appellant.
3/4 days before the occurrence, the appellants approached Manzoor Ahmad. They not only asked him to return Mst. Zaina to them but also demanded that some other girl of their family be given to them in lieu of Mst. Ghulam Fatima, who was abducted by his (complainant's) brother Bashir.
Manzoor Ahmad complainant agreed to send back Mst. Zaina after some time but expressed their inability to give any young girl of their family in lieu of Mst. Ghulam Fatima On this Ahmad appellant was annoyed and he threatened the complainant with dire consequences, hence this occurrence.
4. As for the main occurrence, it has been stated that at the eventful time Manzoor Ahmad and Ahmad Yar P.Ws were sleeping in the house. On the barking of the dog they woke up and found Ahmad, Muhammad Hanif and Muhammad Sharif with daggers and Muhammad Ashraf carrying a pistol in his hand standing outside the room in which Mst. Zaina and Mst. Kalo Bibi were sleeping.
When they stepped into the room, Muhammad Ashraf fired shot threatening them not come to near. Ahmad, Muhammad Hanif and Muhammad Sharif appellants entered in the room.
Muhammad Ashraf remained outside. Ahmad inflicted dagger blow to Mst. Zaina deceased and Muhammad Hanif to Mst. Kalo Bibi deceased. After injuring them, they went into another room where Mst. Bashiran, Mst. Sain Mai and Mst. Zarina were sleeping. Ahmad inflicted dagger injuries to Mst. Bashiran, Muhammad Sharif gave dagger injury to Mat, Zarina. Muhammad Hanif caused dagger injury to Mst. Sain Mai. Muhammad Ashraf remained present outside this room and fired shot to threaten the witnesses. The appellants then left for the Jhuggies of Bashir deceased saying that they would teach him lesson for the abduction of Mst. Ghulam Fatima. Nanzoor Ahmad and Ahmad liar followed them to some distance. Reaching near the fhuggies of Bashir, the complainant and Ahmad Yar raised alarm whereon Munir Ahmad P.W. And his wife Mst. Sheeman came out of their Jhuggies. Muhammad Ashraf fired shots hitting them. They fell on the ground. Muhammad Ashraf and Muhammad Sharif then killed Muhammad Bashir with dagger. On alarm Mst. Fatima alongwith her son Shabhir an(j daughter Mst. Shahnaz came out of the Jhuggi when Ahmad inflicted dagger blow to Mst. Ghulam Fatima, Muhammad Hanif inflicted dagger blow to Mst.
Shahnaz and Sharif inflicted dagger blow to Muhammad Sharif deceased. A lantern was burning in the room where the murders took place. All the deceased succumbed to the injuries on the spot.
After killing nine persons and causing fire-arm wound to two witnesses, the appellants made good their escape.
5. On 24.10.1986, Dr. Irshad Ahmad P.W.10 medically examined Munir Ahmad P.W. And found two simple fire-arm wounds on his person. On the same day, he examined Mst. Sheeman Bibi (not produced) and found 3 simple fire-arm wounds on her person. On the same day, he conducted post-mortem examination on the dead-bodies of Mst. Kalo, Mst. Carina, Mst. Sain Mai and Mst.
Zaina Mai. He found 4 incised wounds on the deadbody of Mst. Kalo, 3 incised wounds on the body of Mst. Zarina, 3 incised wounds on the dead-body of Mst. Sain Mai and 3 incised wounds on the dead-body of Mst. Zaina Mai. All the injuries were antimortem. In his opinion, the cause of deaths was shock and haemorrhage due to the injuries found on their persons. The injuries were sufficient to Cause death in the ordinary course of nature. The deaths were immediate.
6. On the same day, Dr. Irshad Ali Bajwa P.W.1 conducted post-mortem examination on the dead- body of Mst. Ghulam Fatima, Mst. Shahnaz, Shabhir, Muhammad Bashir and Mst. Bashiran Bibi. He found 3 incised wounds on the dead-body of Mst. Ghulam Fatima, one incised wound on Mst.
Shahnaz Bibi, one incised wound on Muhammad Shabhir, one incised wound on Muhammad Bashir and 5 incised wounds on Mst. Bashiran Bibi. In his opinion, the deaths of all the 5 deceased were due to shock and haemorrhage as a result of injuries found on their persons, which were sufficient to' cause death in the ordinary course of nature. The injuries were caused by sharp- edged weapons.
7. On 24.10.1986, the police took into possession lanterns Ex. P21 and P22 from the house of Manzoor Ahmad P.W.7 and Kotha of Mst. Baslyran deceased, which were taken into possession vide memo Ex.PS & PS/1, respectively. The police also took into possession two crime empties Ex.P23/l&2 from the house of Manzoor Ahmad P.W. Vide memo Ex.PT. The police also took into possession two crime empties Ex.P24/l&2 from the Jhuggies of Munir Ahmad P.W. Vide memo Ex.PT/1. On 28.10.1986, Muhammad Sharif, Muhammad Hanif and Muhammad Ashraf got recovered blood-stained daggers Ex.P62,P63,P64 and P65 which were taken into possession vide memo Ex.PW, PW/1, PW/2&PW/3 respectively. On the same day Muhammad Ashraf got recovered pistol Ex.P66 which was taken into possession vide memo Ex.PW/4. On 24.10.1986, the police had also recovered blood- stained Chadar Ex.P48, Kurta P49, Turban Ex.P50 and Bunyan Ex.P51 of Ahmad appellant vide memo Ex PV. On the same day, the police had recovered blood-stained Shalwar Ex.P52, Shirt Ex.P53, Bunyan P.54 and Saluka P55 of Muhammad Sharif appellant vide memo Ex.PV/1. On the same day, the police took into possession Chadar Ex.P56, Kurta P57 and Bunyan P58 of Muhammad Hanif vide memo Ex.PV/2. On 28.10.1986, the police recovered blood-stained Chadar Ex.P59, kurta P60 and Romal P61 of Muhammad Ashraf Appellant vide memo Ex.PV/3. All the aforesaid memoranda were attested by Manzoor Ahmad P.W.7, Kaloo (not produced) and Rana Tahir Manzoor, Inspector, P.W.11.
8. To prove its case prosecution produced 11 witnesses. Manzoor Ahmad P.W.7, Ahmad Yar P.W.8 and Munir Ahmad P.W.9 have given the ocular account of the occurrence. They claim to have seen and identified the appellants causing injuries to the nine deceased and Muhammad Ashraf causing fire-arm injuries to Munir Ahmad P.W.9 and Mst. Sheeman (not produced). They have fully supported the motive as Adl as the previous background culminating in the main occurrence.
Manzoor Ahmad has supported the recoveries of blood-stained clothes, empties and weapon of offences from the appellants. Dr. Irshad Ali has proved the post-mortem examination reports of Mst. Ghulam Fatima, Mst. Shahnaz, Muhammad Shabhir, Muhammad Bashir and Mst. Bashiran deceased. Dr. Irshad Ahmad P.W.10 has proved the medicolegal reports of the injuries of Munir Ahmad P.W.9 and My/.Sheman (not produced). He has also proved the post-mortem report of Mst.
Kalo, Mst Zarina, Mst. Sain Mai and Mst. Zaina Mai. Serologist Report Ex.POO/1 reveals that the blood- stained clothes and the daggers recovered from the appellants were stained with human blood.
Forensic Science Laboratory Report Ex.PPP shows that the crime empties recovered from the two places of occurrence were fired from pistol recovered from Muhammad Ashraf appellant. The rest of the evidence is of formal nature.
9. When examined under section 342 Cr.P.C, the appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. Neither they gave evidence on Oath in disproof of the charges against them nor did they produce any witness in defence.
10. Believing the prosecution case, evidence produced by it and disbelieving the plea of false implication, the trial Court has convicted and sentenced the appellants as stated above.
11. Learned counsel for the appellants submitted that there was confusion and darkness, so, the identity of the appellants was doubtful; that the eyewitnesses are closely related and inimical and that the recoveries are fake; that according to the FIR Muhammad Ashraf was armed with pistol and as such, his conviction under section 302/34 P.P.C, for the murder of Muhammad Bashir was not justified. Learned counsel for the State has supported the judgment of the trial Court.
12. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statements of the appellants recorded under section 342 Cr.P.C, and the circumstances appearing in the case. We find that the names of the 3 eye-witnesses are mentioned in the promptly lodged FIR. The genuineness of the FIR is not open to doubt. Munir Ahmad P.W.9 is an injured witness. The occurrence took place in the house of Manzoor Ahmad P.W.7. Ahmad Yar lives nearby. So, the presence of the 3 eye-witnesses on the spot at the time of occurrence was quite natural. By the fact of injuries on his person, the presence of Munir Ahmad P.W. Is also established. Nine persons have lost lives and two have received fire-arm wounds. The eye-witnesses have named only four persons/appellants. In view of the large number of deceased persons, they could easily involve other members of the family of the appellants or their other enemies but they have not done so.
We are very much impressed by the straightforward manner in which they have given evidence.
The appellants were previously known to them and as such> they were in a position to identity them. The number of the injuries suffered by the nine deceased and two P.Ws is rather much less than the number of the offenders named by them. In view of the background of the occurrence, and the murder of Mst. Ghulam Fatima and Bashir both, the appellants were the persons who were expected to join the crime. The statements made by the eye-witnesses do not suffer from material contradictions/major discrepancies or dis-honest improvements. The incriminating recoveries arc also proved by the statements of truthful witnesses. Rana Tahir Mansoor, Inspector, has been very fair in the investigation. He has no motive to plant recoveries on the appellants. His evidence cannot/should not be discarded on account of the office he holds. The Serologist Report and Forensic Science Laboratory Report connect the appellants with the crime. We do not see any infirmity in the prosecution version of the occurrence or in the statements of the prosecution witnesses. The trial Court has properly appreciated the evidence. In the FIR, it has clearly been stated that Muhammad Ashraf had caused dagger blows to Muhammad Bashir deceased.
According to the FIR, he was seen carrying Pistol in the house of Manzoor Ahmad, i.e. The first place of occurrence. The possibility of his having concealed the dagger in his clotines at the time of first incident or of his having got dagger on way from the first incident to the place of second incident, cannot be excluded. The recovery of blood-stained dagger by him which has already been believed by us fully connects him with the murder of Muhammad Bashir. The appellants have failed to rebut the prosecution case and the evidence produced by it. So much so, they did not give evidence on Oath in disproof of the charges against them. For all these reasons, we are convinced that the appellants have rightly been convicted for the murder of nine persons and for causing injuries to the PWs. The submissions made by the learned counsel for the appellants are devoid of force and substance.
13. This brings us to the question of sentence. We have considered this question with utmost care on our part. We find that in the instant case, four persons concertedly and callously committed premeditated murder of nine persons including children, men and women (young and old). The trial Court came to the conclusion that this barbarous act was done by the appellants in furtherance of the common intention of all, but it sentenced each appellant to death for one murder only and the rest to imprisonment fol' life on eight counts with the direction that in case, the death sentence is not confirmed then imprisonments on all counts shall run concurrently. The trial Court neither imposed any fine nor did make any direction for the payment of compensation to the legal heirs of the deceased.
14. We have been told by the learned Addl. Advocate-General that on their own interpretation of the notification of amnesty dated 7-12-1988 by the President of Pakistan, the Jail Authorities have treated the condemned prisoners as life prisoners and the appellants are no more in the Death Cells. This will show that the appellants will virtually suffer imprisonment for 25 years in one murder which after remissions, etc, may be reduced to 15 years, although they have been convicted and sentenced for nine murders. The plain reading of the order of amnesty commutation dated 7-12- 1988 in the light of the observations made by the Supreme Court in Rashid's case (PLD 1977 Supreme Court 39) that "capital sentence imposed by a Court of Sessions remains inchoate until it is confirmed under section 374 of the Code of Criminal Procedure" will show that unless death sentence is confirmed by the High Court, it cannot be said that the accused/prisoner was awarded death sentence for the purpose of granting amnesty or commutation of death to imprisonment for life under sections 402 and 402-A of the Code of Criminal Procedure. Therefore, we are of the view that the general amnesty granted by the President of Pakistan on 7-12-1988 was available only to prisoners whose sentences have been confirmed by that day and the interpretation of the relevant notification dated 7-12-1988, by the Jail Authorities extending its benefit to the cases of prisoners awaiting confirmation of their death sentence was/is erroneous. Furthermore, the sentence of death passed by a Court of Sessions is never final and executable till it is confirmed^by the High Court, which while considering propriety of the confirmation of sentence recorded/passed by the Sessions Judge may either maintain it or modify/set aside the same. In other words, the occasion for the grant of amnesty or commutation will arise only if the sentence of death attains finality after its confirmation by the High Court. In all other cases, the commutation of death sentence to life will be premature.
15. Since long we have noticed the alarming tendency on the part of the Courts to award lesser penalty even in gruesome murders on artificial supposed and laboured reasons/circumstances.
Due to this laxity, the incidence of murders and other heinous crimes have shown upward trend in our Country. Indiscriminate direction under section 35 Cr.P.C, that the punishments of two or more offences in one trial, shall run concurrently has also contributed towards the rise in murders of more than one person and has made the criminals fearless in killing as many persons as they can in one occurrence. So the policy of deterrent punishment provided under the law has been totally defeated. Under section 35 Cr.P.C, when a person is convicted at one trial of two or more offences, the trial court is obliged to sentence him for proved offences, to separate punishments prescribed therefor. Such punishments when consisting of imprisonment will commence the one after the expiry of the other unless the Court directs that such punishments shall run concurrently. This means that the rule is that the sentences of imprisonment awarded in two or more offences tried at one trial shall run consecutively and the direction that such punishments shall run concurrently is an exception. The law vests discretion in the trial Court to make the sentences run concurrently.
The Courts should exercise judicial discretion in each case and pass adequate order after taking into consideration the pertinent circumstances of the case. It follows that the Courts cannot arbitrarily, as a matter of course or routine and without applying their mind to the gravity of the offences proved to have been committed by the accused, direct running of such sentences concurrently. The recording of the reasons for departure from the rule of awarding consecutive punishments in two or more offences tried at one trial is a condition precedent. However, unfortunately this implied legal requirement is not followed by the Courts and the provisions of section 35 of the Code of Criminal Procedure are being misused in favour of the offenders.
16. In the instant case, the appellants, in furtherance of their common intention, have killed nine persons and by virtue of section 34 PPC, each of them was/is liable for each murder in such a manner as if he alone had killed him. The trial Court has not only refrained from awarding the normal penalty of death on all counts but has also directed that the sentences of imprisonment on nine counts shall run concurrently and has, thus, virtually rendered a case of murder of nine persons to a case of murder of one person. The trial Court has not recorded any reason for the direction that the sentences of imprisonments awarded on eight counts shall run concurrently. We feel that an accused person must get every benefit which accrues to him under the law in the matter of conviction and sentence not only by way of grace or concession but as a matter of right.
But once the guilt of several accused in a case of single murder or murder of more than one person is proved then there should be no inhibition or hesitancy on the part of the Courts in awarding the normal penalty of death to all. The observations made by the Supreme Court in a case Shaheb Ali v. The State (PLD 1970 Supreme Court 447) may be quoted conveniently, "if several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstance.4, to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them, sternly and remorselessly in an equal manner." lt was also observed in the said case that "if on the facts of a given case, law and justice demands a heavier toll for the extinction of a single life at the hands of more than one culprit, it has to be exacted." In a case Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 Supreme Court 452), the Supreme Court of Pakistan has observed that "the marked prospensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility."
The up-shot of the above discussion is that there being satisfactory basis to uphold the convictions and sentences of the appellants, the appeal is dismissed and the sentences of DEATH awarded to the appellants are CONFIRMED.
Copy of this judgment will be sent to the Horn e Secretary, Government of Punjab Lahore and to the Inspector General, Prisons Punjab, Lahore.