' ABDUL HAFIZ CHEEMA, J.--Muhammad Sharif (50),
2. Bashir (40),
3. Altaf Hussain (25), the three brothers and sons of Ahman,
4. Mukhtar (20),
5. Zulfiqar (21)
6. Iqbal (24), the three brothers and sons of Sharif, appellant,
7. Asghar (20),
8. Muhammad Ali (21) brothers inter se and first cousins of Sharif, appellant and 9. Hadi Hussain (50) Phuphizad of Sharif, appellant, all residents of Chak No,215, Police Station Sadar, Faisalabad, were tried by the Additional Sessions Judge, Sheikhupura for the murders of Mokha (65), his son Nazar Muhammad alias Nazra (30) and Mst. Saleh Bibi (35) putative wife of Nazra, deceased and for murderous assault on Mazhar Iqbal (1-1/2 years) son of Nazra, deceased. Altaf, Bashir, Sharif, Asghar and Zulfiqar, the five appellants were convicted under section 302/149, P.P.C. And were awarded death sentence on three counts and fine of Rs,20,000 each, in default of payment of this fine to undergo R.I. For two years each, plus an amount of Rs,25,000 to be paid as compensation on each count to the heirs of three deceased, in default of payment of this compensation they were ordered to undergo further R.I. For six months on each count. Under section 324, P.P.C., Bashir appellant was convicted and sentenced to undergo R.I. For two years. Each of the aforesaid appellants was equally convicted under section 148, P.P.C. And sentenced to undergo R.I. For one year. Out of nine, four accused namely, Muhammad Ali, Mukhtar, Iqbal and Hadi Hussain were, however, afforded benefit of doubt and acquitted of the charges against them. No appeal or revision qua their acquittal is before us. The convicts have appealed against their conviction and sentences whereas the learned Additional Sessions Judge has made a reference under section 374, Cr.P.0 for confirmation of the death sentences. We propose to dispose of both, the appeal and the reference through this judgment.
2. The occurrence in this case allegedly took place on 13-10-1987 at about 6.00 a.m near Basti Rehmanpura in the area of Chak No,21, Police Station Syedwala, District Sheikhupura and the report was lodged by Mst. Moondan (P.W.7) daughter of Mokha and sister of Nazra, deceased. She had set out for police station, which is stated to be at a distance of seven miles but soon after her departure, she came across Zafrullah Khan (P.W.10) Inspector Syedwala, who was on way back to police station after holding `Nakabandis' at certain places. She reported the matter to him, who recorded complaint Exh.PS and sent it to Police Station for registration of a formal case, which was recorded by Hassan Ali, A.S.I. (P.W.11) vide F.I.R. Exh.PS/1.
3. The prosecution version, which can be gathered from the initial report Exh.PS and other relevant material on record, briefly, is that Mokha, deceased (65) had a son Nazar Muhammad (deceased), who was employed in police as a Constable. About ten years prior to the occurrence, he abducted Mst. Saleh Bibi, deceased, whose parents were dead and she was being looked after by Sharif and others, her Mamoonzad. She was, however, restored to Sharif and others with the help of the respectables of the area. They then managed to marry her to one `Irshad'. She lived with Irshad for about seven years but again about three years prior to this occurrence eloped with aforesaid Nazra, deceased. She continuously lived with him and gave birth to a child named Mazhar Iqbal, injured. At the time of occurrence, she was pregnant of 7/8 months. About this subsequent abduction, Irshad had lodged an F.I.R. Against Nazra, Mst. Saleh Bibi and Mst. Moondan (P.W.7), the sister of Nazra aforesaid at Police Station Lundianwala, District Faisalabad. The accused of this abduction case attended the Court of Additional Sessions Judge, Jaranwala on 24-9-1987 where Altaf and Bashir appellants threatened them to restitute Mst. Saleh Bibi to them, failing that they shall themselves decide the matter before the next date of hearing. Such threats had even earlier been extended to them on previous occasions. The case was, however, adjourned by the Court to 13-10-1987, when this occurrence took place. On 13-10-1987, Nazar Muhammad, Mokha, Saleh Bibi, Moondan Bibi (P.W.7), Jannat Bibi (P.W.8), Zulfiqar (P.W.9) and few other well wishers of the party set out for Jaranwala from Chak No,21 to attend the Court. All the accused equipped with fire-arms and hatchet were sitting in an ambush in a mosque near Mohallah Rehmanpura in the area of Chak No,21 at about sunrise time. The accused launched a full-fledged offensive attack with their respective weapons, which resulted in the triple murder of Mokha, Nazra and Mst. Saleh Bibi and injuries to Mazhar Iqbal, one and a half years old son of Nazra from Saleh Bibi. After the occurrence was over Mst. Moondan Bibi (P.W.7) lodged the initial report with Inspector Zafrullah (P.W.10).
4. The Inspector visited the spot, prepared rough site plans and other necessary documents including injury statements and inquest reports, despatched the dead bodies to mortuary, took up the investigation of the case, recorded the statements of the witnesses, effected the recoveries and after completion of the investigation, submitted the challan.
5. In order to prove its case, prosecution had examined 11 witnesses in all.
6. Dr. Naveed Ahmed, (P.W.1) Medical Officer Tehsil Headquarter Nankanasahib, conducted the post-mortem examination on the dead body of Mokha on 14-10-1987 at 10-00 a.m. On the same date, he performed autopsy on the dead body of Nazar Muhammad son of Mokha at 11-00 a.m.
Whereas on the same date at 11-45 a.m. Post-mortem on the dead body of Mst. Saleh Bibi was conducted by him.
' On the dead body of Mokha he found the following three fire-arm injuries:--
(1) Multiple lacerated fire-arm wounds 1/2 cm x 1/2 cm each on the back and lateral side of right lower chest.
(2) Multiple lacerated fire-arm wounds on lateral side and back of right arm and elbow. A post- mortem cut was given to explore the pellets.
(3) Multiple lacerated fire-arm wound on right side of head just behind the right ear.
' According to the doctor the death was the consequence of injuries Nos.1 and 3, which were sufficient to have resulted in death of a person in the ordinary course of nature.
' As for Nazra deceased, the only mortal injury was multiple lacerated fire-arm wounds 1/2 c.m. x 1/2 c.m. Each on forehead and right side of the face. According to him, this injury alone was sufficient to cause the death of a person in the ordinary course of nature. Likewise he found the following two injuries on the dead body of Mst. Saleh Bibi:--
(1) A lacerated wound 6 cm x 6 cm on right temporal region of head which was through and through, bone was found fractured and the injury was caused with fire-arm.
(2) Lacerated fire-arm wound on medial side of palm and back side of right hand which was bone deep and the two medial metacarpel bones. Were found fractured. There was blackening around the wound.
' In the opinion of doctor the death occurred due to injury No,1, which was sufficient to cause death of a person in the ordinary course of nature.
' Mazhar Iqbal, injured, was also examined by the said doctor and he found one injury consisting of multiple lacerated wounds with multiple laceration on the right lower leg lateral side and on lateral side of dorsum of right foot.
' According to the opinion of the doctor this injury was also caused with fire-arm within 24 hours.
7. Mst. Moondan (P.W.7), Mst. Jannat Bibi (P.W.8) and Zulfiqar (P.W.9) provided the ocular account of the occurrence. Zafrullah Inspector (P.W.10) had investigated this case. Hassan Ali, A.S.I., P.S. Syedwala (P.W.11) had recorded the formal F.I.R. Exh.PS/1 on the basis of complaint Exh.PS whereas Mehmood Ahmed, Constable No,846 (P.W.2), Lal Hussain Constable No,160 (P.W.3) and Siraj Ahmed, Constable No,45 (P.W.4), all posted at Police Station Syedwala performed formal and the allied duties in respect of the carrying of the sealed parcels for their analysis to Chemical Examiner etc., whereas Sardar (P.W.5) son of Bahawal, a cultivator of Chak No,21, District Sheikhupura, had witnessed the incriminating recoveries. The reports of the chemical examiner Exhs.PX, PY and PZ were positive and the earth was found to contain blood whereas reports of Serologist Exhs.PX/1 and PZ/1 were likewise positive and the blood was found to be of human origin. The crime empty recovered from the spot and marked as C-2 was fired from the pistol .12 bore alleged to have been recovered from Altaf Hussain appellant by the Technical Services Crime Branch vide report Exh.PAA.
The rest of the crime empties sent to Forensic Science Laboratory, did not match with the fire-arm allegedly recovered from the other accused.
8. Mst. Moondan (P.W.7) who was an accused alongwith others in the abduction case pending in the Court of Additional Sessions Judge, Jaranwala, reiterated her version in the complaint and claimed that Hadi Hussain (acquitted accused) raised Lalkara that the deceased and others ought not be spared. Bashir appellant fired with his gun which hit Nazra on his face and Mazhar lqbal, minor, on his right lower leg and on lateral side of dorsum of right foot. Asghar and Iqbal (acquitted accused) fired which hit Mokha who fell down. Muhammad Ali gave hatchet blow to Mokha on his head. According to her Sharif appellant fired which hit Mst. Saleh Bibi on the right side of head while Mukhtar accused fired which landed on her right hand.
9. Mst. Jannat Bibi (P.W.8) who is the real sister of Mst. Moondan Bibi and daughter of Mokha and so also sister of Nazra, deceased, had made almost a similar statement. Next was the statement of Zulfiqar (P.W.9) husband of Mst. Jannat Bibi. According to him, he owned two acres of land in the village. Peer Ali, P.S. Chuchak in District Okara. On account of old age and the absence of his son Nazra, being in police, his father-in-law Mokha, deceased was not in a position to manage his lands, as such asked him to shift to his village Chak No,21,P.S. Syedwala. Accordingly about a year prior to the occurrence, he had shifted to Chak No,21, P.S. Syedwala to assist his father-in-law in his agricultural pursuits. He lent solid support to the prosecution.
10. Zafarullah Khan, Inspector (P.W.10) had investigated the case. According to him, the accused while in custody led to the recovery of their respective weapons, which were effected by him in presence of Sardar (P.W.5) as per pointation of the accused.
11. In their statements under section 342, Cr.P.C. Muhammad Sharif appellant, conceded the relationship of the accused inter se except that of Hadi Hussain (acquitted accused) about whom he denied that he was their Phuphizad. He also conceded that he was Mamoonzad of Mst. Saleh Bibi. He denied the initial part of the prosecution story qua the elopement of Mst. Saleh Bibi with Nazra about ten years ago. However, he admitted that after her marriage with Irshad she eloped with Nazra and lived with him as wife despite being married to Irshad and Irshad had indeed lodged a case with Lundianwala Police against Mst. Moondan, Mst. Saleh Bibi and Nazra. When asked as to why this case has been made against him and his associates, he took up the following plea:-- "This was unwitnessed occurrence. I have been falsely involved in this case due to enmity. I had produced ample evidence before the Investigating Officer during the investigation. I was found innocent and was placed in Column No,2 of the challan."
Bashir, Asghar, Zulfiqar appellants and Hadi Hussain also made similar statements. Rest of the accused, however, denied their participation and claimed that they have been implicated due to enmity.
12. It was contended by learned counsel for the appellants that the prosecution story was false and cooked-up. Mokha had his own enemies and they were killed by them. Since there was enmity between the complainant and the accused party, they have, therefore, been roped in to settle their earlier accounts. According to him Mst. Moondan was a married woman and lived in village Bakhshu in the area of P.S. Chuchak, District Okara, which is at least a distance of 18 miles from Jaranwala. How come that a married woman is present in the house of her father and accompanies the accused to the Court of Session in Jaranwala and then it is she who lodges the report. Although the occurrence was allegedly witnessed by a number of persons, yet it was obvious that so far as Moondan (P.W.7) was concerned, she was an imported witness to ensure that being daughter of Mokha and sister of Nazra, deceased, she would render unflinching support to the prosecution story.
13. This objection, on the face of it, appears to be without any substance inasmuch as she was admittedly named in the F.I.R. Lodged by Irshad against her brother Nazra for the abduction of Mst.
Saleh Bibi and she had been appearing in that case in the Court of Additional Sessions Judge, Jaranwala. In answer to a question from the learned defence counsel in the trial Court, she conceded that in that case, she was indeed arrested from village Bakhshu. When she was an accused person and her village was not very far off from her parents and native village, it was but natural and in keeping with the tradition of the villagers particularly that of the tribe to which she belonged to come to her parents and then to proceed alongwith other accused to the Court for putting in appearance. There is nothing on record to indicate that she was not present and had come to the house of her father after the occurrence. Since she was an accused in that case, her presence with her father and brother in her native village was not something unusual. She was indeed present and had very much witnessed the occurrence. Learned counsel further pointed out that if she had been present at the scene what had prevented the accused, who were nine in number and armed with deadly weapons, to finish her off also to wipe out any evidence which could secure gallows for them in future. This plea is equally devoid of any force. The reason being that in order to avenge the disgrace meted out to them at the hands of Nazra in the case of abduction or elopement of Mst. Saleh Bibi they had already slain three persons and it appears that they made their escape good realising that further blood-shed would not be advisable on their part and even otherwise they had killed the male members of the family of Mokha and Nazra and what had left in the family to counter them in future. So, therefore, this arguments fails to render any assistance to the accused.
14. It was further emphasised by the learned counsel for the appellants that Mst. Jannat Bibi and Zulfiqar (P.W.8) and (P.W.9) the wife and the husband were the residents of village Peer Ali, Police Station, Chuchak, District Okara and being not involved in any case, their presence was highly doubtful. We are afraid this objection equally carries no weight, in the face of clear and unequivocal stand taken by Mst. Jannat Bibi and Zulfiqar (P.Ws.8 and 9). Zulfiqar is clear that Nazra was involved in this case and Mokha, his father-in-law (also his Mamoon) was a man of 65 years of age. Besides he had only two acres of land in the village. Peer Ali. Therefore, on the request of his father-in-law and Mamoon, he thought it advisable to shift to Chak No,21, P.S. Syedwala, District Sheikhupura to look after his interest. The validity of the explanation rendered by him was not questioned by the defence through cross-examination and appears to have been accepted by them. So, therefore, Mst. Jannat Bibi and Zulfiqar appear to have started residing in Chak No,21, P.S. Syedwala, District Sheikhupura, where Mokha held a substantial holding.
15. It is noteworthy that in order to express solidarity with those, involved in criminal case their near ones do assemble in the house prior to the dates of appearance in the Courts of law and if that is not done they go to the Courts to express their affiliation/affection with them. This is particularly customary with the old inhabitants of these areas. So, presence of Mst. Jannat Bibi and her husband alongwith her father and father-in-law respectively was not something unexpected, or unusual. So, therefore, all the three eye-witnesses had witnessed the occurrence and they had deposed substantial truth. The fact that Nazra, Mst. Moondan and Mst. Saleh Bibi had to appear in the Court of Additional Sessions Judge, Jaranwala, in the first instance on 24-9-1987 and then on 13-10-1987 is proved beyond any reasonable doubt through P.W.7, P.W.8 and P.W.9 and so also through Zafrullah Khan Inspector/I.O., who claims that he had verified about the pendency of the case and about the dates of appearance of these accused. He was not questioned on this aspect by the defence, as such it is obvious that this fact has been established by the prosecution beyond any reasonable doubt.
16. It was next contended that Mst. Moondan (P.W.7) had claimed that Muhammad Ali (acquitted accused) gave hatchet blow to Mokha on his head whereas medical evidence shows that there was no sharp-edged injury on the person of Mokha. Hatchet Exh.PQ was not blood-stained either.
All this, therefore, shows that these witnesses had not spoken the truth and had not seen the occurrence. We are afraid the learned counsel is pushing this point too far. It is true that the medical evidence shows that the injuries on the head of Mokha were not with any sharp-edged weapon but the learned counsel could not get it clarified from the mouth of witnesses that the assailant used hatchet from its right side and not from its blunt side. This, therefore, is not infirmity.
And if at all it may be so termed no damage is caused to the prosecution case. However, it is noteworthy that according to Mst. Jannat Bibi (P.W.8), Asghar and Iqbal fired which hit Mokha on the back. Iqbal was acquitted by the trial Court. It is thus doubtful who out of the two accused caused the injury. Benefit of doubt should, therefore, go to Asghar appellant who, therefore, deserves acquittal. According to Mst. Moondan (P.W.7) Mukhtar accused fired which hit Mst. Saleh Bibi on her head whereas according to Mst. Jannat Bibi (P.W.8) Zulfiqar appellant gave this injury.
Mukhtar accused has been acquitted, therefore, it is clear that Zulfiqar appellant cannot be attributed this injury. Doubt stands created so far as the part taken by Zulfiqar is concerned. Benefit of doubt, therefore, clearly accrues to him. He, therefore, is clearly entitled to acquittal on the basis of benefit of doubt. As for the part played by Sharif, Bashir and Altaf appellant, there is no doubt that the prosecution has proved their guilt beyond any shadow of doubt. They were, therefore, rightly convicted.
17. As for the quantum of sentences we are of the view that in the given situation penalty of death sentence is not warranted in law. This indeed is not a case of grave and sudden provocation. It is, however, noteworthy that a Police Constable abducts a married woman or she elopes with him deserting her husband, lives in adulterous intercourse for a sufficiently long time, gives birth to a child who, at the time of occurrence, was 1-1/2 years old and becomes again pregnant from such a sinful connection. This certainly afforded a provocation to Sharif and others who were Mamoonzads of the abductee. It is on record that when in the first instance she was recovered from Nazra Constable, she was restored to Sharif and others. Subsequently it were Sharif and others who managed her marriage with Irshad. As such their family honour had been attacked and injured to an alarming extent and this brought shame to them which continuously egged them on to`avenge their grievance and to restore and inhabilitate their family honour. The accused had not merely killed Nazra, the abductor, rather they had despatched Mst. Saleh Bibi to death alongwith Mokha, father of Nazra who had been rendering help and protection to his son and to the abductee. So, therefore, it is obvious that the crime was committed in order to avenge their family disgrace. This, therefore, certainly provided a mitigating circumstance. In support of this view reference may be made to Abdur Rashid v. The State 1989 SCM R 165. The State v. Gulzar Masih 1988 SCM R 1068, Muhammad Afzal v. The State and another 1987 SCM R 1864, Ahmed etc. v. The State 1982 SCM R 1049, Boota v. The State PLD 1981 SC 196 and Qambar Ali v. The State PLJ 1974 Cr.C. (Lah.)
474. We are, therefore, of the view that instead of awarding death penalty, imprisonment for life to three of the appellants would meet the ends of justice in this case. We, therefore, convert the death sentence to imprisonment for life to each of the three appellants on three counts each, namely, Muhammad Sharif, Bashir and Altaf Hussain and acquit Asghar and Zulfiqar appellants affording them the benefit of doubt. The sentences of fine and that of compensation and sentences in default of their payment on each count shall, however, remain intact. The sentences shall run concurrently.