MUHAMMAD AMIR MALIK, J.- Sardar Khan (38 years) appellant has challenged his conviction and sentence recorded by learned Addl. Sessions Judge, Gujranwala, under Section 302/307 PPC, vide his judgment dated 22.11.1987. He was held guilty for the murders of Din Muhammad (50 years) and his sister Mst. Sharifan Bibi (55/56 years) and attempted murder of Arshad Hussain (13 years) PW.8, and sentenced to suffer death and a fine of Rs.2,000/- or in default thereof one year's R.I. As well as compensation of Rs.5,000/- or in default thereof six months R.I. On two counts as well as 4 years R.I.
And a fine of Rs.1,000/- or in default thereof six months R.I. And compensation of Rs.2,000/- or in default thereof 6 months R.I. The matter is also before us on Reference under Section 374-Cr.P.C. For the confirmation of the death sentence.
2. Mst. Sharifan deceased was the sister of Din Muhammad deceased Their sister Mst. Khurshid Bibi (given up PW) was married to the appellant. Din Muhammad deceased shifted to Muhallah Syed Pak, Neewin Abadi, Dulley Gujranwala at the instance of the appellant about a year before the present occurrence. Din Muhammad deceased, started cultivating the land of Ch. Abdul Qadir, Advocate son of Ch. Saeed Ahmad.
3. The occurrence took place at 11.30 a.m. On 24.7.1986 in the fields of village Rajkot at a distance of 4 miles from Police Station Sadar, Gujranwala.
4. Tahir Mahmood Inspector (PW.12) on coming to know of the occurrence on telephone from an advocate reached the spot and there recorded the statement (Ex.PA) of Mst. Azra Perveen (PW.9) wife (Now widow) of Dip Muhammad deceased at 12.30 p.m. On its basis formal F.I.R. (Ex. PA/1) wap registered at 1.00 p.m. In the police station by Muhammad Ashraf A.S.I. (PW.1).
5. As per the F.I.R, the occurrence took place in the following manner: Mst. Sharifan deceased and Mst. Khurshid Bibi PW (the wife of the appellant) were living with their brother Din Muhammad deceased. At the fateful time Din Muhammad and his son Arshad Hussain (PW.8) were working in the fields. Mst. Azra Perveen wife of Din Muhammad, Mst. Khurshid Bibi and Mst Sharifan Bibi deceased, came to the fields with meals. In the meantime the appellant armed with l2 bore gun also came there. He asked his wife Mst Khurshid Bibi as to why she had come to the fields and started abusing and beating her. She ran and the two deceased tried to catch hold of the appellant. He was infuriated and threatened that he would not leave them alive. He fired and hit Din Muhammad deceased. His second shot hit Din Muhammad deceased ana Arshad Hussain PW, while the 3rd shot struck Mst. Sharifan Bibi deceased. The appellant ran away from the spot.
Mst. Sharifan and Din Muhammad expired at the spot.
6. Motive given in the F.I.R, is that appellant used to beat and turn out his wife Mst. Khurshid Bibi from his house and she fearing the appellant, used 10 come to her brother Din Muhammad deceased. The appellant used to ask Din Muhammad deceased as to why he kept his wife Mst.
Khurshid in his house.
7. Dr. Ikram Ullah Warriach (PW. Ll) performed the post-mortem examination on the dead bodies of Din Muhammad and Mst. Sharifan Bibi on 25.7.1986 at 10.00 a.m. And 11.00 a.m. Respectively. On the person of Din Muhammad, he observed the following injuries:
1. Lacerated wound 1/4 cm x 1/4 cm going deep back of left shoulders.
Margins were rounded blackish and inverted.
2. Lacerated wound 1/4 cm x 1/4 cm x going deep right side of fore-arm. Margins were rounded blackish and inverted.
3. Lacerated wound X cm x X cm going deep back of chest left side in the area of 30 cm. x 20 cm.
Margins were rounded, blackish and inverted.
4. Lacerated wound 1/4cm x 1/4 cm going deep back of abdomen left side. Margins were rounded, ^Jackish and inverted.
5. Lacerated wound X cm x X cm going deep back of abdomen left side 4 cm x injury No. 4. Margins were rounded, blackish and inverted.
6. Lacerated wound 1/4 cm x 1/4 cm going deep on left axilla. Margins were rounded, blackish and inverted.
7. Lacerated wound 1/4 cm x 1/4cm going deep below left axilla 6 cm from injury No.6. Margins were rounded, blackish and inverted.
8. Lacerated wound 1/4 cm x 1/4 cm going deep left side of chest. 11 cm from left nipple. Margins were rounded, blackish and inverted.
9. Lacerated wound 1/4 cm x 1/4 cm going deep left side of abdomen upper part. Margins were rounded, blackish, and inverted.
10. Lacerated wound 1/4 cm x 1/4 going deep on left cheek. Margins were rounded, blackish and inverted.
11. Lacerated wound 1/4 cm x 1/4 cm going deep on the nose. Margins were rounded, blackish, and inverted.
The time between the injuries and death was immediate and between death and postmortem was about 23 hours.
The death, in the opinion of the doctor, was due to haemorrhage and shock due to injuries No.6 and 7 which were sufficient to result in death in the ordinary course of nature.
8. On the body of Mst. Sharifan, he found a "Lacerated wound 6 cm x 2 cm x going deep below the left clavial." Margins were rounded, blackish and inverted. Her death was immediate and the time between the death and post mortem was stated to be 24 hours. The injury was ante-mortem and by fire arm. It was sufficient to cause death in the ordinary course of nature.
9. Arshad Hussain (PW.8) was medically examined by Dr. Muhammad Akhtar Lang (PW.7) on the very day of occurrence at 3-30 p.m. And was found to have following injuries on his person:
1. A lacerated wound 0.3 cm x 0.3 cm circular in nature, black margins on the lower part of the right chest.
2. A lacerated wound 0.3 cm X 0.3 cm x going deep on posterior part of left lower abdomen 3 cm from back bone.
Both the injuries were by fire arm and were kept under observation. X-Ray of lower abdomen was advised. On receipt of the X-Ray report the injuries were declared simple.
10. In his statement under Section 342-Cr.P.C. The appellant admitted that Din Muhammad and Mst. Sharifan deceased were the brother and sister of his wife Mst. Khurshid Bibi, who was married to him 13/14 years before the occurrence. He also staled that he and Mst. Khurshid had five issues and lastly she resided in his house in Neewin Abadi, Dhullay. He denied that he used to maltreated Mst. Khurshid Bibi, that she used to desert her and live with her brother Din Muhammad or that even on the day of occurrence she was living with him (Din Muhammad deceased). When asked "Why this case against you? " he replied:" I have been falsely implicated against facts. The real fact are that I am a licence holder and as such, on 24.7.1986 at about 11.30 in the day was present in the fields in the area of village Rajkot for shooting and in the sequence I saw in the Makki fields nearby the dera of Rana Abdul Qadir that a woman entered the said field who was then followed by a male. On seeing them I also went towards the said field so entered the same and then saw that the woman concerned was my wife Mst. Khurshid and the male was Shera Gujjar and they were then in a comprising position. My wife was not having the Shalwar even and I then lost the self control and so challenged them at which Shera Gujjar ran towards on direction and my wife ran towards the other direction where Din Muhammad and Mst. Sharifan now the deceased persons of this case were working in this field. I was chasing my wife and then Din Muhammad and Sharifan Bibi fell over her for her safely and I then fired the shots which hit Din Muhammad and Sharifan and they died of the injuries. Some stray pellet might have injured Arshad PW. I then to the P.S. Alongwilh my gun and gave my version of occurrence there. Azra Perveen PW was not present there and the Police then concocted the present false version against me. I had no enmity against Din Muhammad, Sharifan and Arshad PW. I had infact got settled Din Muhammad and Sharifan in this village. My 4 issues are with me and the last one is with my wife is aged about two years." He also made statement on Oath under Section 340 Cr.P.C.
11. The date, time and place of occurrence are admitted. It is also an admitted fact that the two deceased and Arshad PW were injured due to the firing of the appellant. The plea is of grave and sudden provocation.
12. Learned counsel for the appellant submitted that in the circumstances of the case the plea has been correctly raised by the appellant. Learned counsel for the State, however, supported the judgment delivered by the learned trial Judge. After having beard both the learned counsel and having perused the record, we find no force in the submissions made by the learned counsel for the appellant.
13. The ocular account of the occurrence is given by Arshad Hussain and Mst. Azra Perveen (PWs. 8 & 9), the son and widow of Din Muhammad deceased. Both supported the version given in the F.I.R, that when Din Muhammad deceased and Arshad Hussain were working in the field, Mst. Azra Perveen complainant Mst. Sharifan deceased and Mst. Khurshid Bibi reached there. Sardar appellant also came there carrying a gun and started abusing Mst. Khurshid as to why she had come to the fields. They have also deposed that he attempted to fire at Mst. Khurshid Bibi, after abusing her, whereupon the two deceased intervened and attempted to catch hold of the accused who threatened them and opened fire at them. According to them three shots were fired, the lst shot hit Din Muhammad, the 2nd struck Din Muhammad and Arshad PW and the 3rd one injured Mst. Sharifan deceased. Both the deceased expired at the spot. Arshad admitted in cross- examination that the appellant had 3 sons and two daughters, two sons and two daughters were residing with him and the last issue was born in their (complainant family's) house. Mst. Azra Perveen (PW.9) stated that the infant was born 2/3 months before the occurrence and denied that he was born about 1h years before the occurrence. She candidly admitted that the appellant had infact arranged lease of land in their favour and got them shifted from Jandayala Sher Khan. She further told that on being brought to Gujranwala they started residing in Syed Pak, but in separate house from the appellant. She also deposed that Mst. Khurshid did not resort to suit for dissolution of marriage when she was deserted by the appellant. Both are independent and dis-interested witnesses. Previously there was no ill will between the complainant family and the appellant and rather, as observed above, it was he who had got the land leased to the complainant family and shifted them to the place of occurrence from Jandayala Sher Khan ( a year before the occurrence as per the F.I.R).
14. Mst. Azra seems to be a simple straight forward lady. She made a forth-right statement and told in cross-examination that she did not send any one to the police station, the police arrived and recorde her statement over there, examined her son Arshad Hussain (PW.8) and the dead bodies.
She also told that Mst. Khurshid was not examined by the police in her presence.
15. Tahir Mahmood Inspector (PW.12) recovered three crime empties (Ex.PG) from the spot, scaled them into parcels, and sent the same to Forensic Expert in due course. Two of these have matched with the licensed 12 bore shot gun recovered/produced by the appellant while the 3rd could not be compared being without percussion cap. The report of the fire Arms expert is Ex.PS. This also support the eye-witness account that three shots were fired at the spot.
16. As per the statement of the appellant at the close of the trial, a woman was seen entering the maize field near the Dera of Rana Abdul Qadir in village Raj Kot, followed by a man, when he, the appellant, was out on a shoot with his licensed gun. On seeing them he went towards the field, entered and saw his wife Mst. Khurshid co-habiting with Shera Gujar. The Gujar, on seeing him, ran away in one direction and his wife ran to the other where Din Muhammad and Mst. Sharifan were working in the field. He was chasing his wife when the two deceased fell over her and he fired resulting in injuries to the two deceased and some stray pellet hit Arshad Hussain PW. If he was so enraged as to have fired at Din Muhammad and Mst. Sharifan Bibi finishing them at the spot, how Mst. Khurshid, who was under them, could have escaped the wrath? The version cannot be accepted. Much stress has been laid by the learned counsel for the appellant, that Mst. Khurshid had not been produced and seemed to have not even been examined by the investigator. She was cited as a witness and given up at the trial. The reason is not far to seek. She was the sister of the two deceased, the wife of the appellant and mother of his 5 children. She was thus in a very tight situation. Her non-production does not advance the case of the appellant in any manner.
17. The result is that we do not find any weight in the submissions made by the learned counsel for the appellant, nor do we find any extenuating circumstance calling for lesser penalty.
18. The appeal, therefore, fails and is hereby dismissed. The death sentence on two counts is confirmed.