' AJMAL MIAN, J.---By this common judgment we intend to dispose of the above two appeals.
Criminal Appeal No,262 of 1993 has been filed by the three convicts against the judgment dated 1- 7-1992 of a Division Bench of the Lahore High Court in Criminal Appeal No,687 of 1989, whereby appellants Nos.1 and 3's appeal against the award of death sentence and fine of Rs,50,000 or in default to undergo R.I. For two years by the learned Additional Sessions Judge, Lahore, was rejected and Murder Reference No,217 of 1989 made by the learned Additional Sessions Judge for confirmation of death sentences was accepted and appeal filed by appellant No,2 was allowed to the extent of converting death sentence into life imprisonment and murder reference in respect of him was rejected. Whereas Criminal Appeal No,263 of 1993 has been filed by the complainant, Mst.
Barkat Bibi, against the reduction of sentence in respect of appellant No,2 and against the non- grant of compensation in terms of section 54-A Cr.P.C.
2. Leave to appeal was granted to the above three convicts/appellants to consider, whether their convictions and sentences were sustainable in view of the fact that the occurrence had taken place in the latter part of the night and the testimony was by interested persons; whereas leave was granted to the complainant only to consider the question, whether the order of payment of fine amount to the legal heirs of the deceased could be considered as compliance of the provisions of section 544-A, Cr.P.C.
3. The brief facts are that the incident had taken place at about Sehrivela on 5-5-1987 in the Dera of Allah Ditta deceased, in which not only Allah Ditta was murdered but his two sons, namely, Rashid Ahmad and Faqir Muhammad were also murdered. The motive alleged was that Rashid Ahmad deceased and Faqir Muhammad deceased, both sons of Allah Ditta deceased, one day prior to the incident, were repairing Watt when appellant No,1, Talib Hussain, reached the spot and asked the two deceased to desist from touching the said Watt otherwise they would cover the said Watt with the dead bodies of the complainant party. The deceased stopped repairing above Watt and returned to their Dera and thereby saved the situation. However, on the following day, namely, on 5-5-1987 at Sehrivela, when P.W.1 Mst. Barkat Bibi, wife of Allah Ditta deceased was preparing Sehri as it was holy month of Ramazan, three appellants entered into the Dera of Allah Ditta deceased, where besides Allah Ditta, his son Rashid Ahmad and his son-in-law Ata Muhammad, were sleeping. The appellants fired upon Allah Ditta resulting into his death. (The appellants Nos.1 and 2 were armed with .12 bore guns and appellant No,3 was armed with a Carbine). On account of the above commotion, Rashid Ahmad and Atta Muhammad got up and ran towards the fields but the appellants chased them and killed Rashid Ahmad. In the meantime, Allah Ditta's second son, Faqir Muhammad, who was sleeping in the house which was situated at about three Killas, also came for getting milk, was also killed. P.W.1 Mst. Barkat Bibi, while going towards village Awan Dhaiwala, met at the crossing of Chowk Talwara Road and the Katcha path going towards village Awan Dhaiwala, P.W.13 Walayat Hussain Shah, Inspector/S.H.O. Of Police Station Manawan, and reported the matter to him, who recorded the same which is contained in Exh.PA. The same was transmitted in the relevant register and recorded as F.I.R. (Exh.PA/1). P.W.13 Walayat Hussain Shah, I.O. Visited the place of occurrence on the same day and found five crime empties (P.1 to P.5) scattered near the place where Allah Ditta was murdered. He also found four crime empties (P.6 to P.9) and another set of four crime empties (P.10 to P.13) from near the two places where Rashid Ahmad and Faqir Muhammad were murdered. He prepared the memos. Of the same as Exhs.PC, PE and PG. The above crime empties were despatched on 13-5-1987 to Forensic Science Laboratory through P.W.9 Muhammad Sultan F.C. Appellants Nos.1 and 2 Talib Hussain and Khadim Hussain were arrested by P.W.13 Walayat Hussain Shah on 8-5-1987; whereas appellant No,3 Akhtar alias Choor was arrested on 26-5-1987 by him. It seems that at the time of arrest, on personal search of appellant No,1, Talib Hussain, a key (P.14) was found, which was recovered and a memo. Thereof was prepared (Exh.PH). Appellant Talib Hussain led to his Dera on 22-5-1987, the lock of which was opened with the above key and from where a gun (P.13) was recovered, which was seized against memo. (Exh.PI). On the same day, appellant. No,2 Khadim Hussain also led to the same Dera, from where a gun (P.16) was recovered at his instance. Whereas appellant No,3 Akhtar on 1-6-1987 led to the recovery of Carbine (P.17) in a field of maize crop belonging to appellants Talib Hussain and Khadim Hussain, which was seized against memo. Exh.PK.
4. The prosecution produced as many as 13 witnesses which included two eye-witnesses, P.W.1 Mst.
Barkat Bibi (the complainant and the widow of Allah Ditta deceased and mother of deceased Rashid Ahmad and Faqir Muhammad) and P.W.2 Ata Muhammad, son-in-law of deceased Allah Ditta. The prosecution also produced medical evidence and positive report of the Forensic Science Laboratory.
5. The learned Additional Sessions Judge, Lahore, by his judgment dated 25-9-1989 convicted all the three appellants and awarded the aforesaid sentences. The appeal filed by the appellants and the reference made by the learned Additional Sessions Judge were disposed of in the above terms through the judgment under appeal. After that, the appellants/convicts filed Criminal Petition No,364/L of 1992, whereas the complainant filed Criminal Petition No, 349 of 1992, which were granted to consider the above questions.
6. In support of the above appeals, Mr. RA. Awan, learned Advocate of Supreme Court appearing for the appellants, has vehemently reiterated the arguments which were advanced before the learned Judges of the Division Bench of the High Court, namely, that the two eye-witnesses were interested and, therefore, their testimony was not sufficient to record conviction and to award the above sentences.
7. The above contention has not impressed us. We are inclined to agree with the High Court that though there was a dispute in respect of Watt but there was no deep-rooted enmity between the parties as to prompt P.W.1 Mst. Barkat Bibi, widow of Allah Ditta deceased aged about 65 years, to implicate the appellants falsely. It is an admitted position that appellants Nos.1 and 2 and the complainant party are related inasmuch as father of appellants Nos.1 and 2, Ali Muhammad, was a cousin of Allah Ditta. Both the parties have Deras adjacent to each other. P.W.1 Mst. Barkat Bibi's statement that in fact she had brought up appellants Nos.1 and 2 Talib Hussain and Khadim Hussain was not challenged in the cross-examination.
8. Even if we were to take a view that they were interested witnesses, their testimony stand corroborated by the recovery of the above fire-arms and D the matching of the same with the empties which were admittedly despatched to the Forensic Science Laboratory prior to the recovery of the above fire-arms from the appellants.
9. Then it was contended that the incident had taken place at Sehrivela and, therefore, there was pitch dark night in view of the fact that it was fifth of Ramazan and because of that it was not possible to identify the accused.
10. The above contention might have some force, if the incident would not have taken place in the holy month of Ramazan, Mst. Barkat Bibi's statement that she was preparing Sehri and there was a lantern, seems to be truthful and natural. Even otherwise, in view of the close relationship between the parties and the location of their Deras adjacent to each other, there was no possibility of mistaken identity.
11. It was next contended by Mr. Awan that the Investigating Officer had not recovered the alleged lantern from Allah Ditta's Dera and, therefore, it adversely reflects on the veracity of the prosecution version.
12. If the incident would not have occurred in the holy month of Ramazan at Sehrivela, the above contention might have some force but since we are inclined to agree with the two Courts below that the incident had taken place at the time of Sehri when P.W.1 Mst. Barkat Bibi was preparing Sehri, the presence of a lantern cannot be doubted. The omission to recover the same by the Investigating Officer cannot be treated as fatal to the prosecution case.
13. It was also contended by Mr. Awan that there was conflict between the ocular testimony of the two alleged eye-witnesses as to the number and location of the fire-arms shots on the one hand and the medical evidence on the other hand.
14. The above contention has been effectively dealt with by the High Court. Minor discrepancy cannot nullify the testimony of the above eyewitnesses particularly keeping in view that the age of P.W.1 Mst. Barkat Bibi was about 65 years.
15. In the last it was vehemently contended by Mr. Awan that since the motive alleged was too weak to prompt the killing of three persons by the appellants, the facts of the case do not warrant the award of maximum penalty of death to appellants Nos.1 and 3. In support of his above contention, he has referred to the following cases:--
(i) Muhammad Iqbal and another v. The State (1984 SCM R 1184);
(ii) Muzammal Din and another v. Nur Hussain and others (1985 SCM R 495);
(iii) Abbas Hussain and another v. The State and another (1992 SCM R 320);
(iv) Muhammad Ishaque Khan and others v. The State and others (PLD 1994 SC 259);
(v) Abdul Aziz v. The State and others (1994 SCM R 35);
(vi) Muhammad Siddique v. The State (1994 SCM R 88);
(vii) Muhammad Bashi v. Khalid Mehmood and another (1994 SCM R 1096); and (viii)Muhammad Din alias Manni and another v. The State (1994 SCM R 1847).
16. In the above cases mentioned at serial numbers (i), (iv), (vi) and (vii), this Court had reduced the sentence from death to imprisonment for life not on the ground that the motive alleged was weak but on the grounds that the motive was not proved or that something might have happened immediately preceding to the incident which was not brought on record. Whereas in the case at serial number the Supreme Appellate Court, while dealing with an appeal against the conviction under section 302/34, P.P.C., recorded by the Special Court under the Speedy Trials Ordinance, 1991, held that since actual immediate cause of occurrence had not been clarified by either of the parties, imposition of death sentence was not warranted. In the remaining cases, this Court had not interfered with the reduction of death sentence to that life imprisonment by the High Court on similar grounds.
17. We may observe that there is a marked distinction between a case in which prosecution alleges a motive but fails to prove it and a case in which no motive is alleged or the alleged motive is too weak. In the former case, the superior Courts after taking into consideration the facts of the cases concerned, have reduced the sentence of death into imprisonment for life, whereas in the latter category of cases, the above rule has not been followed. We may point out that there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If above normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. In the present case, the appellants, though related to the deceased, trespassed into their Dera at Sehri time in the holy month of Ramazan and killed three male members of the family. If the incident would have taken place during day time in a Bazar or in the field, one could assume that something might have happened immediately before the occurrence of the incident, which prompted the killing of the deceased, but in a case where the accused launched a premeditated attack by trespassing into the Dera of the deceased and that too at Sehri time, one cannot presume that something might have happened immediately preceding to the incident. We are, therefore, of the view that it is not a fit case where this H Court should interfere with the imposition of the sentence by the two Courts below.
18. As regards Criminal Appeal No,263 of 1993, it may be observed that a fine imposed alongwith sentence of death or imprisonment for life in a murder case under old section 302, P.P.C. Or under amended section 308, P.P.C. Cannot be equated with the amount of compensation payable to the legal heirs of the murdered deceased under section 544-A, Cr.P.C. It is true that the Court may order for payment of the amount of fine or part thereof to the legal heirs of the deceased but under section 544-A, Cr.P.C. The Court is bound while convicting a person for the commission of death or hurt or injury etc. To award compensation to the legal heirs of the deceased or to the injured unless it records reasons in writing for not granting. In the present case, the trial Court ordered the payment of the entire fine amount, namely, Rs,50,000 on each count by each of the accused to the legal heirs of the three deceased. As observed hereinabove, the trial Court was bound to apply its mind to section 544-A, Cr.P.C. For awarding compensation to the legal heirs, but it failed to do so.
This omission was not noticed by the High Court.
19. This Court could have rectified the above irregularity but we feel that it is not a fit case in which this Court should award compensation under section 544-A, Cr.P.C. At this stage keeping in view the facts that we have affirmed death sentences awarded to appellants Nos.1 and 3 and the trial Court has ordered the payment of the entire amount of fine imposed on each of the three counts to the legal heirs of the three deceased.
20. The upshot of the above discussion is that both the above appeals have no merit and, therefore, they are dismissed.