' KHALIL-UR-REHMAN RAMDAY, J.--- One Qazi Muhammad Latif was tried by a learned Additional Sessions Judge of Gujranwala on the charge of murdering his brother Muhammad Bashir, his sister Mst. Sahib Bibi and his neighbour Mumtaz Hussain. He was found guilty of all the said charges through a judgment, dated 2-10-1989 of the said learned Court and on each count, he was sentenced to death with a fine of Rs,20,000 or two years' R.I. In default and with a further direction to pay Rs,20,000 as compensation, to the heirs of the each deceased or to suffer six months' R.I. In default of payment of the said compensation.
2. Murder Reference No,291 of 1989 seeks confirmation of the said sentences of death while, through Criminal Appeal No,739 of 1989, the said convict impugns the abovenoted convictions and sentences recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 25-5-1985 at about 11-00 a.m. In the house of Muhammad Bashir deceased, Mst. Sahib Bibi deceased and the appellant, situate in Mauza Rahgo Syedan about six miles from Police Station Vehnike Tarar of District Gujranwala. The same had been reported at the said police station by one Asghar All who is a brother of Mumtaz Hussain, the third deceased of the present occurrence.
4. He had reported at the police station that his house was opposite to the house of Bashir and Mst.
Sahib Bibi deceased persons and that on the day of occurrence, he was sitting in his house alongwith his brother Mumtaz Hussain deceased, his nephew Shah Nawaz P.W. And one Abid Hussain at about 11-00 a.m. When they heard alarm from the house of Bashir deceased. Asghar complainant had further claimed that they rushed to the house of Bashir deceased and found Latif appellant standing there with a .12 bore gun in his hand who was declaring that he would teach a lesson to Bashir deceased for doing Rishtas against his will. Asghar complainant had added that Latif accused then fired a shot hitting Bashir deceased whereafter, Latif accused fired a second shot at his sister Mst. Sahib Bibi who was also standing nearby as a result of which, she also fell down and that in the meantime, Mumtaz Hussain deceased tried to catch Latif accused at which, Latif accused fired shots at Mumtaz Hussain deceased also who also fell down injured. According to the complainant, Bashir and Mst. Sahib Bibi deceased had succumbed to the injuries at the spot while Mumtaz Hussain deceased died near his Dera while being carried from the spot.
5. The complainant had disclosed that Bashir deceased wanted the daughter of one Muhammad Sharif for himself, in marriage, and wanted to give the hand of his sister Mst. Sahib Bibi deceased to a son of the said Sharif but Latif accused was not agreeable to this arrangement and that it was on account of this grievance that Latif accused had done Bashir and Mst. Sahib Bibi deceased to death and had also murdered Mumtaz Hussain deceased who had tried to intervene, as abovementioned.
6. After the occurrence, Latif appellant could not be arrested for three years and it was finally on 6- 5-1988 that Ghulam Rasool A.S.I. (P.W.12) could manage to apprehend him. Warrants issued for the arrest of Qazi Latif appellant and the report made thereon by Muhammad Suleman F.C. (P.W.13) is Exh.P.W.13/1 while the proclamation issued under section 87 of the Cr.P.C. In respect of Latif appellant and the report of publication of the said proclamation are Exh.P.W.13/2.
7. Three crime empties P.13 to P.15 had been found at the place of occurrence by Muhammad Ramzan S.I./S.H.O. (P.W.11) during the course of the spot inspection. The same had been sent to the Forensic Science Laboratory. At the time of his arrest, Latif appellant was found in possession of a gun P.9 which was taken into possession vide Exh.P.F. And was also sent to the Forensic Science Laboratory. As per report Exh.P.P. Of the said laboratory, one of the crime empties was found not to have been fired from gun P.9 while it was reported about the other two empties that they lacked sufficient identifiable data and nothing could therefore, be said as to whether these two crime empties had or had not been fired from the gun in question.
8. When confronted with the prosecution case, the appellant denied his participation in the occurrence in question. He claimed that he had left his village about six months prior to the occurrence and did not know of the occurrence in question till he returned to his village and on coming to know of the occurrence and his false implication in the same, he had presented himself to the police and had been accordingly arrested. He had added that Mumtaz Hussain deceased was a man of bad character who was a rapist and a drunkard and who also used to violate the honour and modesty of poor women of the village. He had added that he always took up cudgels against the nefarious activities of Mumtaz Hussain deceased which had twice resulted in physical quarrel also. He had further pleaded that the occurrence in question had taken place at the dead of the night and that he had been accused of the commission of the offences in question at the instance of a brother and a son of Mumtaz Hussain deceased on account of enmity. The appellant had reiterated this version when he had made a statement on oath as required by section 340 of the Cr.P.C.
9. Acquittal of Latif appellant in respect of the murders of Bashir and Mst. Sahib Bibi was sought on the ground that the heirs of the said two deceased persons had granted UFW to Latif appellant and his acquittal in respect of the murder of Mumtaz Hussain deceased was canvassed on the ground that the two eye-witnesses were interested and inimical; that the medical evidence ran counter to the ocular testimony; that the prosecution had failed to prove the motive alleged by it and further that the prosecution had not been able to establish that the appellant had absconded after the occurrence.
10. As has been mentioned above, Muhammad Bashir deceased was the real brother of Latif appellant while Mst. Sahib Bibi deceased was his real sister. Inayat Hussain and Zak Ahmad who are the real brothers of Bashir and Mst. Sahib Bibi deceased persons appeared before us whose statements were recorded by us on oath, after they had been identified by Mr. Inayat Ullah Cheema, Advocate. Both of them deposed before us that they were the real brothers of Bashir deceased and Mst. Sahib Bibi deceased and of Latif appellant. They had added that the parents of the said two deceased persons were not alive; that besides them, they said two deceased persons had left behind only one other brother, namely, Sharif but he had also died in the meantime. They added that they had granted UFW to their brother Latif appellant for the murders of their brother Bashir deceased and their sister Mst. Sahib Bibi deceased, being the only surviving heirs of the said deceased persons.
11. We are satisfied with the voluntary nature of the UFW granted by the heirs of the said two deceased persons. Nothing exists on record which could persuade us not to act upon this UFW or to punish the appellant by way of Tazeer in respect of the said two murdeRs,
12. Consequently, Latif appellant is acquitted in respect of the charge of the murders of Bashir and Mst. Sahib Bibi deceased persons. His convictions and the sentences recorded against him on the said two counts are, thus, set aside.
13. This brings us to Latif appellant's conviction for the murder of Mumtaz Hussain deceased.
14. According to the medical evidence semi-digested food was present in the stomach of Mst.
Sahib Bibi deceased as also in the stomach of Mumtaz Hussain deceased. According to the opinion of Dr. Sadiq (P.W.5), Mst. Sahib Bibi and Mumtaz Hussain deceased could have taken their last meals about two to four hours before their death whereas, Bashir deceased had perhaps had his last meals about eight hours before his death. From this, it was argued that the occurrence had taken place sometime in the darkness of the night and not at the alleged time of occurrence. It is true that the day of occurrence was the fourth of Ramaz an but we have not been able to appreciate any nexus between the above-noticed opinion of the doctor and the submission being made by the learned counsel for the appellant. The question whether all the three deceased persons or anyone of them was or was not fasting on the day of occurrence, is not something which could be proved either through evidence or inferred from any facts and circumstances. This was a matter known only to the three deceased persons who are no more. In the circumstances, it is not possible for us to discard the entire prosecution case only on the basis of the opinion of the doctor regarding the contents of the stomach, especially when the said opinion does not appear to be destructive of the ocular testimony in any manner whatsoever. It had been stated by the two eye-witnesses that each of the three deceased persons was at a distance of about one or one and a half Karams from the appellant at the time of the firing of the respective shots. Blackening and tatooing etc. Was found on the wounds of entry on the bodies of all the three deceased persons.
This finding of the doctor is perfectly in accord with the ocular testimony and no discrepancy exists between the same on the said account.
15. It.Had not been disputed by the appellant that the house opposite the house of the appellant party i,e. The place of occurrence did belong to Asghar Ali complainant. No reason thus, exists to doubt the presence of the two eyewitnesses in their said house at the time of occurrence. Except a bald and vague assertion by the appellant that the two eye-witnesses were inimical towards the appellant, no enmity or ill-will of any kind had even been suggested to the said witnesses. It is true that Asghar Ali and Shah Nawaz P.Ws. Are closely related to Mumtaz Hussain deceased but then they had no motive to falsely implicate the appellant in the occurrence in question and in addition thereto, they are the witnesses of the vicinity of the place of occurrence. The submissions made by them do not demonstrate any weakness or infirmity which could militate against their credibility.
16. The occurrence in question had taken place on 25-5-1985 while the appellant was apprehended on 6-5-1988 i,e. After almost three years of the said occurrence. The appellant's explanation that he had left his house about six months prior to the occurrence and did not know, for almost three and a half years, about whatever was happening to the members of his family, does not inspire confidence. The issuance of the warrants of arrest and the proclamation stands proved on record and the mere fact that the proclamation did not mention the actual date on which the appellant was required to appear before the Court issuing the said proclamation is, we are afraid, not by itself sufficient to hold that the appellant had not absconded. It may be pointed out that even members of his own family i,e. His brothers had not appeared either before the I.O. Or even before the learned trial Court in his defence.
17. In the presence of this kind of evidence which is available on record, no exception can be Laken to the appellant's conviction under section 302, P.P.C. For the charge of the murder of Mumtaz Hussain deceased.
18. The appellant had acted in a cruel and brutal manner having murdered his own real brother and his own real sister on account of a minor family dispute and for not even having spared a neighbour who had tried to intervene only on humanitarian grounds. The appellant deserves no sympathy and no mitigating circumstances thus, exist on record which could justify alteration of death sentence awarded to the appellant.
19. The sentence of death awarded to Qazi Latif appellant on the charge of the murder of Mumtaz Hussain deceased is, therefore, confirmed.
20. As has been mentioned above, Qazi Latif appellant is acquitted of the charge of the murders of Bashir deceased and Mst. Sahib Bibi deceased on account of UFW granted to him by the heirs of the said deceased persons.
21. Murder Reference No,291 of 1989 and Criminal Appeal No,739 of 1989 are accordingly disposed of in the above terms.