1. S. USMAN ALI SHAH, J.---Both the abovenoted criminal appeals by leave of this Court are directed against the judgment of the Lahore High Court dated 8-4-1985 passed in Criminal Appeal No.360 of 1983, whereby appeal of the appellants against their conviction and sentences was dismissed.
2. Muhammad Hayat son of Nawab, Muhammad Hanif son of Ghulam Muhammad, Muhammad Siddique son of Ali Muhammad, Rehmat Ali son of Ghulam Muhammad Mansha son of Taj Muhammad, Muhammad Rafique son of Haji Din Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Yaqoob son of Barkat Abdul Aziz son of Haji Din Muhammad, Bashir Ahmad son of Amiruddin and, Bashir Ahmad son of Haji Din Muhammad were tried by the learned Additional Sessions Judge, Lahore on the charges under section 302/148/332 read with section 149; P.P.C. Vide F.I.R. No.190 dated 5-7-1982, registered against them in Police Station Manga Mandi, Lahore. The learned trial Judge vide his judgment dated 15-6-1983 acquitted Muhammad Rafique son of Haji Din Muhammad, Abdul Aziz son of Haji Din Muhammad, Muhammad Hayat son of Nawab and Rehmat Ali son of Ghulam Muhammad by extending them the benefit of doubt. By the same judgment, however he convicted Bashir Ahmad son of Amiruddin, Bashir Ahmad son of Din Muhammad, Mansha son of Taj Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Yaqoob son of Barkat Ali, Muhammad Siddique son of Ali Muhammad and Muhammad Hanif son of Ghulam Muhammad and sentenced them under section 148, P.P.C. Ito two years' R.I. Each with a fine of Rs.500 each in. Default whereof to undergo six months' R.I. Each. All these seven accused were further sentenced to imprisonment for life each under section 302 read with section 149, P.P.C. And were also fined each to Rs.2,000 or to undergo one year further R.I. Each in default of payment of fine. They were also sentenced to two years' R.I. And a fine of Rs.500 each under section 332 read with section 149, P.P.C. In default of payment of fine they were to suffer further R.I. For six months each. All these sentences were, however, directed to run concurrently.
3. All the convicted accused submitted a joint appeal in the Lahore High Court and the learned Single Judge of the High Court vide his judgment dated 24-3-1985 by accepting the appeal of Bashir Ahmad son of Amiruddin, Mansha son of Taj and Muhammad Yaqoob son of Barkat Ali, set. Aside their convictions and sentences and directed their immediate release if not required in any other case. The appeal of Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Siddique son of Ali Muhammad and Muhammad Hanif son of 'Ghulam Muhammad was, however, dismissed. Their conviction under section 148, P.P.C. Was set aside and- instead they were convicted under sections 302/34, P.P.C. And 332/34, P.P.C. The sentences awarded to them by the trial Judge in these sections of law were, however, maintained: Dissatisfied with the conclusion of the learned Judge of the Lahore High Court Muhammad Sharif, Muhammad Hanif and Muhammad Ali preferred in this Court joint appeal through the Superintendent Central Jail, Kot Lakhpat, Lahore and Bashir Ahmad also filed a similar appeal separately.
4. Facts necessary for the disposal of the appeals in the brief are that Mst. Sakina (deceased) was the wife of Muhammad Yaqoob acquitted accused. She deserted the house of her husband about two days prior to the occurrence. Muhammad Yaqoob her husband lodged a report in police station Manga Mandi regarding her abduction by Muhammad Shafi and another her co-villagers. This report was registered in the F.I.R. No.93 dated 3-7-1982 at the said police station. Subsequently, the accused party came to know that the abductee alongwith her minor daughter were lodged in the Dar-ul-Aman in Lahore and that her statement was to be recorded in the Court of the Illaqa Magistrate which is situated in the Town Hall, Lahore. On 5-7-1982 accordingly she under the escort of Raja Gul Akhtar, S.I. (P.W.9) and Muhammad Ilyas constable (P.W.2) was brought in the Court premises for recording her statement. It has been alleged that when she reached the Court compound of the Magistrate in the company of the said two police officials quite a few number of her relatives, men and women, including almost all the accused approached her and asked her to depose before the Magistrate according to their wishes. From the evidence recorded in the case, according to some witnesses she agreed to give a statement in the manner suggested by the said relations while some have deposed that she refused to accede to their wishes by saying that She would make a statement in the way she liked. Her statement in any case was recorded by the Magistrate at 9-30 a.m. And since there was a huge gathering of her relatives, the two police constables did not deem proper to take the risk of taking the lady in presence of the said gathering and awaited their disbursement. After the said gathering disbursed the two police officials made the deceased lady sit in the rear seat of a hired'Tonga" of Abdus Sattar (P.W.7) and started proceeding towards Dar-ul-Aman. They reached near 'Chouburji' at about 11-30 a.m. And when the tongs took a turn on the road leading to Dar-ul-Aman, all of a sudden the eleven accused stopped the tonga by taking GUI Hklitar, S.I. (P.W.9) and Muhammad Ilyas (P.W.2) by surprise. Bashir son of Din Muhammad, Muhammad Sharif and Muhammad Siddique accused dragged Mst. Sakina down to the ground while she was sitting in the rear scat. In order to save herself from the clutches of these assailants she ran but was dropped face downwards on the heap of garbage whereafter Bashir son of Din Muhammad and Muhammad Sharif accused, -who were armed with Carbine, fired a shot each at her back followed by Muhammad Siddique accused who gave her dagger blows on her back with which he was armed. Gul Akhtar S.I. (P.W.9) in an attempt to save the deceased lady from the clutches of the accused also received a `Danda' blow on his left lower leg through hands of Hanif accused, Bashir son of Amiruddin accused also allegedly fired a shot in the direction of the police officials with a view to scare them as a result whereof Muhammad Ilyas F.C.
5. Got injured on his hand through the pellets. The other accused were all the time' raising `Lalkaras' out of whom Ratique, Hayat and Aziz were empty-handed and Yaqoob was armed with a dagger and Mansha accused armed with a Carbine was firing in the air. As a result of these injuries caused to the deceased lady she died on the spot and all the 11 accused left the scene of the occurrence.
6. Gul Akhtar, ST thereafter sent a complaint Exh.P.B. To police station, Mozang whereupon a case was registered by Muhammad Aslam, A.S.I. At 12-20 p.m. Through F.I.R. Exh.PB/1 under section 302/307/332/353/148, P.P.C. Read with section 149, P.P.C.
7. The accused at the trial claimed innocence and pleaded not guilty to the charges. With a view to establish its case the prosecution examined Muhammad Ilyas, F.C. As P.W.2, Gul Akhtar, S.I. As P.W 9, Abdus Sattar P.W.7 as eye--witnesses of the occurrence, Muhammad Anwar P.W.8 as witness for the motive and Agha Ali Nawaz P.W.10 and Muhammad Iftikhar Hussain P.W.14 in support of the various recoveries from the various accused.' Doctor Muhammad Anees P.W.3 and Doctor Muhammad Farooq P.W.4 proved the medical reports in respect of the deceased lady and Muhammad Ilyas F.C. And Muhammad Gul Akhtar S.I.
8. We have thoroughly scrutinized the conclusions arrived at by the trial Court as well as by the High Court. It is well settled and consistent view of this Court that as an ultimate Court we must give due weight and consideration to the conclusion of the Courts below, when we feel satisfied that they are reasonable and are not the outcome of any disregard of any accepted principle regarding the appreciation of evidence. In this case we noticed that the very slightest doubt in favour of the person charged in the case has been extended by the learned High Court and although as we gather from the prosecution evidence, the way and the manner in which the deceased lady in the company of the police officials was chased and was done to death in a cruel manner, whether some of the accused were unarmed or were not armed with deadly weapons, the question of their forming unlawful assembly and in the common object of that assembly having committed the murder, is quite debatable both ways but in the interest of safer dispensation of justice and to exclude even the slightest chance of punishing any innocent individual the learned Judge in the High Court has correctly and for sufficient reasons came to a definite conclusion in holding Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif, Muhamm6d Siddique and Muhammad Hanif appellants for murdering the deceased lady in furtherance of their common intention.
9. Muhammad Gul Akhtar. S.I. And Muhammad Ilyas F.C. Can in no words be doubted as interested witnesses nor can their presence on the spot, and witnessing the occurrence be doubted in any manner. Both these police officials confirmed the presence of a huge gathering in the premises of the Court of the Magistrate where the statement of the deceased lady wits being recorded and, therefore, even if we entirely believe their statements regarding the murder of the deceased by all the accused in the circumstances of the case it has to be seen whether all the persons who even did not participate in any manner to facilitate the murder of the deceased lady can be saddled to have the common object with the real culprits in committing the murder of the deceased, because it is totally unbelievable that all those who had gathered at the time when the statement of the deceased lady was recorded had so gathered with the common object of doing away with the life of the said lady. In these circumstances the learned Judge in the High Court appears to have been rightly influenced by these considerations and he rightly upheld the convictions of those accused who physically and practically. Participated in the facilitation and in the murder of the deceased lady. As we have observed earlier this Court is not supposed to interfere with the findings of the lower Courts, unless there is a serious defect in the process by which the impugned finding has been arrived at as was held by this Court in a case reported as Noora and another v. The State (PLD 1973 SC: 469) the relevant part whereof reads as under:- "As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammelled by the opinions of the Courts below."
10. In the instant case besides the ocular evidence furnished by Gul Akhtar S.I. And Muhammad Ilyas F.C., who in the liven circumstances are not only natural witnesses but arc also totally disinterested persons having no relationship or connection with the deceased lady nor having any animosity towards the accused: the medical evidence and the recoveries of various incriminating articles at the instance and pointation of the accused fully establish the case against them and we see no reason to disagree with the learned Judge in the High Court in upholding their convictions earlier recorded by the trial Court.
11. We are, however, constrained to remark that despite this Court's repeated observations regarding imposition of the normal penalty of death to those convicted for murders and to discredit the impression of marked tendency of inhibition or hesitation on the part of the trial Courts in awarding the said penalty, in this case both the trial Court and the learned Appellate Court failed to measure the actions of the accused/appellants in proper scales and failed to apply their minds reasonably in inflicting the normal penalty provided for such offences for obviously no reasons. The prosecution evidence in this case has sufficiently established that the accused party committed the murder of the deceased lady in a very cruel and gruesome manner. She was being taken in a 'Tanga' by police officials to the Darul Aman where she had been lodged. She had a minor daughter in her lap. She was waylaid by the accused party, dragged from the 'Tanga' and thereafter while she was in the process of fleeing away to protect herself from the clutches of a huge number of the accused persons, she was thrown face downwards on the heap of garbage and in a very callous manner she was fired at and was further given dagger blows. The accused in their conduct were all the-way out to extinct her life and gave her so many blows with deadly weapons to make themselves sure that there was no chance of her escaping the death. There can be no controversy that the normal penalty prescribed for the murder by the Divine Law as also the law of the land is death. A murderer is guilty of his action before The Almighty Allah. He is regarded as the murderer of humanity. A Judge is required to do justice on each and every aspect strictly in accordance with law and should not mould the alternatives to favour the guilty. It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful -- moreover we should not show mercy to those who themselves are proved to have acted mercilessly. Almighty Allah in verse 106 S. Iv has commanded:-- "We have sent down To the the Book in truth, That thou mightest judge Between men, as guided By Allah. So be not (used)
12. As an advocate by those Who betray their trust."
13. The commentators explain that the general' lesson is that the righteous man is faced with all sorts of subtle wiles: the wicked will try to appeal to his highest sympathies and most honourable motives to deceive him and use him as an instrument for defeating justice. He should be careful and cautious, and seek the help of God for protection against deception and for firmness in dealing' the strictest justice without fear or favour. To do otherwise is to betray a sacred trust: the trustee must defeat all attempts made to mislead him. In verse 29 S.Vii the Divine command reads:- Say: My Lord hath commanded Justice; and that ye set Your whole selves (to Him)
14. At every time and place Of prayer, and call upon Him Making your devotion sincere AS In his sight: Such as He created you In the beginning, so Shall ye return."
15. We are required that our devotion should be sincere, not as in other men's sight, but by presenting our whole selves, heart and soul, to God. Even so, it may not be enough; for the sight of our heart and soul may be faulty. We should call upon God to give us the light, by which our sincerity may commend itself to him as true sincerity "as in His sight". Our sincerity should be real sincerity, as in God's sight; for when we return to Him, we shall be stripped of all pretence, even such self deception as may satisfy us in this life.
16. In addition to our above passing reference to the overall framework of the Divine Law, our conclusion would also find support from the relevant specific subject of Injunctions of Islam. A little description thereof would be of some advantage here. Cases involving offences of human body are liable to the penalty, of Qisas or Diyat and in alternative to Tazir. In the matter of decision of Tazir, penalty in murder cases, there is further consensus on the award of death penalty as Tazir in appropriate cases. Similar are the agreed conclusions barring certain microscopic differences on the award of Qisas or death penalty as Tazir in matters of collective participation of a murder of a single person. A group of assailants is thus so liable either individually or collectively to the death penalty as the role of a member of the "Group" would so warrant in the light of the available evidence. Again in seeking inspiration and guidance from such Shariah provisions in the case in hand; we are not unmindful of the fact that the trial of the case was held under the then existing penal substantive and relevant procedural provisions. But here we would like to invite attention to the observation of this Court in the case "State v. Muhammad Bashir" PLD 1982 SC 139, where such a process of inspiration and guidance in murder cases from the relevant Quran and Sunnah law was approved. These are therefore, further circumstances which support oiir conclusion that the Courts below, should not have hesitated in awarding the normal penalty of death.
17. One may argue that since the deceased had deserted the house of her husband and was suspected of having eloped with Muhammad Shari and another, her co-villager, in such a situation family honour being involved, at the crucial time the accused had lost control and became violent thereby deprived of senses to measure their actions but this cannot be the case with all the accused in their common intention; particularly when the deceased at that time was not in the company of any of the alleged abductors nor has it been established through evidence that the deceased lady had cloped with the aforesaid Muhammad Shafi. Or someone else. Moreso as we gather from the evidence on record that the accused wanted the deceased to depose against said Muhammad Shari while giving her statement before the Magistrate and it was on her refusal to follow their line of action that the accused party proceeded ahead and by waylaying the 'Tanga' they committed the murder of a helpless and weak sex in a very aggressive and shameful manner as if they were to conquer an enemy bunker. Even otherwise this Court has never considered taking of private revenge a mitigating circumstance in the matter of awarding lesser penalty where once this Court comes to a firm view that the murder is committed in a cold-blood and cruel manner.
18. Reference with advantage may be made to Mokha v. Zulfiqar and 9 others (PLD 1975 C 10) and Ali Khan v. The State (198(1 SC M 8,474). We therefore, consider that in the matter of awarding sentences the two Courts below have not acted in accordance with the well-established and prescribed practice as required by the law. However, since there is no petition for the enhancement of the sentences before us we would not touch this aspect of the matter any more.
19. For the foregoing reasons there is no substance in both the criminal appeals which are hereby dismissed.