JUDGMENT SAJJAD AHMED SIPRA, J. - This criminal appeal has been directed against the judgment dated 10.12.1991, whereby the learned Additional Sessions Judge, Chiniot, had convicted the appellants under section 311 PPC for the murder of Zafar Abbas deceased and sentenced them to undergo R.I. For ten years each. They were also extended the benefit of section 382-B, Cr.P.C.
2. The brief facts of the present case are that Mst. Ghulam Sughran, sister of Altaf Hussan complainant PW.1 was married with Pir Shah about 35 years ago and Zafar Abbas deceased was bom out of the said wedlock. She died six months after the birth of Zafar Abbas deceased.
Thereafter Pir Shah contracted second marriage with Mst. Allah Jawa, out of whom Shah Nawaz and Shah Behram appellants, and Shah Sardar and two daughters were born. Shera appellant is material uncle of the other two appellants. The complainant took Zafar Abbas deceased to his house after the death of his mother and brought him up. Pir Shah, father of Zafar Abbas deceased was the owner of agricultural land. On demand of his share out of the said land by the deceased, his father Pir Shah and step-brothers/appellants refused tb give him his share. About seven days prior to the occurrence, when Zafar Abbas deceased demanded transfer of his share of land from his father, appellants Shah Nawaz and Shah Behram, quarrelled with him. The complainant and Haq Nawaz (not produced) intervened and separated them. The said two appellants threatened the deceased of dire consequences. On 26.10.1989 at about 5.15 p.m, PW.l Altaf Hussan complainant, PW.2 Karim Bakhsh, Maqbool Hussan PW (given up as unnecessary) and Zafar Abbas deceased were proceeding towards their house from the agricultural land and when they reached near the village, appellants Shah Nawaz, Shah Behram and Sheru, all armed with, 12 bore guns, appeared from the opposite side and raised lalkara that they will teach a lesson to the deceased for demanding land. Sheru appellant fired a shot hitting Zafar Abbas deceased on the left side of his chest. Then Shah Behrain appellant opened a fire at the deceased which landed on his chest.
On the receipt of injuries, Zafar Abbas deceased fell down. Shah Nawaz-appellant came near and fired at the deceased hitting him on his left-side near left ear. Zafar Abbas deceased succumbed to his injuries at the spot. Besides the complainant the occurrence was witnessed by Karim Bakhsh PW.2 and Maqbool Hussan PW (given up).
The motive as stated by the complainant was that Zafar Abbas deceased had demanded his share in the land of his father. The complainant lodged the FIR Exh.PA.
3. To prove its case, the prosecution had produced at the trial PW.l Altaf Hussan complainant, who narrated the facts and corroborated the same as described by him in The FIR Exh.PA, whereas PW.2 Karim Bakhsh, the other eye-wifness had corroborated the statement of PW.l PW.3 Muhammad Aslam had joined the investigation and in his presence the Investigating Officer had taken into- possession blood-stained earth from the spot vide memo Exh.PB, which was attested by him and Noor Muhammad PW (given up). PW.4 Mumtaz Hussan had identified the dead body of deceased Zafar Abbas in the hospital at the time of post-mortem examination. PW .5 Muhammad Ashraf constable had escorted the dead body of Zafar Abbas to the mortuary at Bhowana, received blood stained clothes P.I, P.2, P.3 and P.4/1-2 of the deceased from the hospital and produced the same before Muhammad Aslam Inspector/SHO, who had taken them into possession vide memo Exh.PC, attested by him.
4. PW.6 Dr. Nasir Mehmood on 27.10.1989 had conducted the post-mortem examination on the dead body of Zafar Abbas and found the following injuries on it.
1. A lacerated wound 15 cm x 6 cm extending from right ear to the forehead, above the nasal.
Bones, brain material come out. Multiple fracture of soli bone seen. Blood coming from right ear.
Margins everted and skull deep wound. Above mentioned skull portion depressed. One pallet and one wed plastic container recovered from the skull.
2. An hovel inverted margin wound 3 cm x 2 cm in front of left ear, margins slightly blackened.
Route of entry.
3. Inverted margin lacerated wound slightly blackish above margin 0.9 x 0.2 cm size, route of entry behind the left ear.
4. Ovel inverted margin swelling 5 cm x 0.3 cm on the posterior later surface of left side of neck.
Route of entry
5. A lacerated inverted margin wound 0.8 cm x 0.2 cm on interior lateral surface of left side of neck.
6. A lacerated inverted slightly blackish coloured margined wound 4 cm below the left shoulder.
Size 4.5. Cm x 4 cm ovel deep to muscle and bone on interior upper chest. Bleeding from the wound. Route of entry.
7. A lacerated wound inverted margin blackish colour 2.2 cm x 2 cm medial to left nipple muscle and bone deep, bleeding from wound on pressure.
8. Three ovel everted margin open 1 .Cm x 1.2 cm,' 1.00 cm x 1.2. Cm and 0.8 cm 1 cm on upper left back chest 12 cm below the chest.
9. Three ovel everted margin open 0.6. Cm x 0.4 cm, 1 cm x 0.6 cm, 0.8 cm 'x 1cm on the middle back of chest. In the opinion of the doctor the cause of death was injury to skull, i.e. Skull raptured and brain material came out i.e. Injuries No.1 and 2. Both fire arm injuries to chest were also sufficient to cause death. All the injuries were grievous and caused by fire arm. Injuries No.2, 6 and 7 were sufficient to cause death. All the injuries were ante-mortem. The probable time between injuries and death was immediate, and between death and post-mortem was about 18 hours. Exh.PD is the post mortem report.
5. PW.7. Zafar Hayat H.C. Had delivered the parcel of blood- stained earth to the office of the Chemical Examiner, Lahore. PW.8 Ch. Khurshid Alam Cheema. D.S.P, had partly investigated the case and found all the three appellants guilty. PW.9 Muhammad Zubair retired Patwari had prepared site plans Exh.PE and Exh. PE7 of the spot. Ghulam Haider SI PW.10 joined the investigation and in his presence Shah Behram appellant while in police custody got recovered gun P.5 from his Dera, vide memo Exh.PF, attested by him and other witnesses. PW. Ll. Ghazanfar Hayat, D.S.P, had partly investigated the case on the direction of D.I.G. Faisalabad Range and found the appellants guilty, and they were accordingly challaned. PW.12 Ahmad Khan AS1 on 26.10ai989 had received one sealed parcel from the Investigating Officer for safe deposit in the malkhana and then on 20.11.1989 he handed over the same to Zafar Hayat F.C. For onward transmission to the office of Chemical Examiner, Lahore. He had deposed that,so long the parcel remained in his custody, none had tampered with it.
6. PW.13 Muhammad .Aslant Khan SHO on 26.10.1989 recorded the FIR Exh.PA on the statement of Altaf Hussan PW.1. After registration of the case he proceeded to the spot, examined the dead body of deceased Zafar Abbas, prepared injury statement Exh.PG and inquest report Exh.PH and sent the dead body to the hospital for autopsy. He secured blood stained earth from the place of occurrence, made it into sealed parcel and took into possession vide memo Exh.PB attested by Noor Muhammad Aslam PWs. He also recorded the statements of the recovery witnesses. He had taken into possession the last worn clothes P.I to P.4/1-2 vide memo Exh.PC attested by Muhammad Ashraf F.C. On 19.1.1.1989 he had arrested the appellants. On 29.11.1989 Shah Behram appellant while in police custody led to the recovery of gun P.5 from his Dera, which was taken into possession vide memo-Exh.PF. PW.13 had also prepared the site plan of the place of recovery of gun Exh.PF/1. He also got prepared site plans from Muhammad Zubair Patwari PW.9 which are Exh.PE and Exh.PE/1.
7. The learned trial Court had also examined Mian Faiz Ahmad Chishti, Nikah Khawn as CW.l, Mst.
Farhat Diba, alleged widow of Zafar Abbas deceased, as CW.2 and Muhammad Sharif, Secretary Union Council as CW.3, on the application of Mst. Farhat Diba CW.2, who had claimed to be the widow of Zafar Abbas deceased, and had produced Nikah Nama, Exh.CW.I/A. However, CW.1 Mian Faiz Ahmad Chishti, in his statement had denied having performed the nikah of CW.2 Mst. Farhat Diba with Zafar Abbas deceased .CW.3 Muhammad Sharif, Secretary Union Council concerned had shown Nikah Register to the learned trial Court and had deposed that there was no entry regarding the nikah of Zafar Abbas deceased with Mst. Farhat Diba, claimed to be performed on 20.10.1988.
8. The prosecution had given up Maqbool Hussan, Noor Muhammad, Zain in Hussan, Sheru, Aslam Chadhar, Fateh Muhammad and Munir Ahmad Inspector PWs, as being unnecessary and had tendered in evidence reports of Chemical Examiner and Serologist as Exh.PI and Exh.PJ respectively.
9. In their statements under section 342 Cr.P.C, the appellants had denied the charge and claimed to be innocent. In reply to a question, "why this case against you and why the PWs deposed against you? "Shah Behram appellant had deposed that after the death of mother of Zafar Abbas deceased, Altaf Hussan complainant PW.1 picked up a dispute with his father to marry the second sister of Altaf Hussan and his brothers developed enmity With the brothers of the appellant and his father Pir Shah. They also attacked and injured Pir Shah. The deceased was brought up by the father of the appellants, who got him educated upto B.A. Thereafter, Pir Shah gave possession of 12 killas of land to the deceased which remained with him till his death. The deceased used to take total income out of the fields and he had separate bank account. He also claimed that their father provided huge amount to the deceased for construction of his separate dera. He admitted that the deceased was the only son from his own mother. Their father owned 45 killas of land and as per custom and. Shariat, the mutation of land is to be performed after the death of actual land owner.
Therefore, there was no dispute about landed property between the deceased and the appellants.
He had further stated that Altaf Hussan PW.1 and his family members were inimical towards them and as the said PW possessed no property,' he had twofold motive against them; one to grab the property of the deceased and the other to prosecute them for his murder. He also deposed that PW.1 had gone to the extent of preparing a forged nikah-nama of his minor daughter to achieve the motive. He had deposed that the deceased was murdered by Sultan Mirasi 0n the abetment of Altaf Hussan PW. 1, who was not present at the time of occurrence and had gone to Nasirpur Ranjha. Shah Nawaz appellant had also relied upon the statement of Shah Behram appellant, whereas Sheru appellant had deposed that being friend, he was involved falsely in this case alongwith his co-accused. The appellants had produced in their defence DW.I Irshad Hussan and DW.2 Zafar Ullah Khan. They, however, did not get recorded their statements under section 340(2)
Cr.P.C. DW.I Irshad Hussan in his statement had supported the plea taken up by Sheri appellant, to the effect that on 23.10.1989 Sheru appellant came to him to realize the amount of sale price of his bullock, for which he had stood surety, and that he remained with him at Jhang from 23.10.1989 to 28.10.1989. DW.2 Muhammad Zafar Ullah Khan MHC had produced a register to show that FIR No.156 was registered on 13.10.1963 against PW.l Altaf Hussan complainant and others for having inflicted injuries to Pir Shah, father of the appellants.
10. Pir Shah, father of Zafar Abbas deceased appeared before the trial Court and stated that the deceased was unmarried, and he was his sole legal heir. Appellants Shah Behram and Shah Nawaz are also his real sons, while appellant Sheru is not related to Him or to other appellants. He is the only bereaved person of the present occurrence and that he has forgiven all the three appellants.
He did not claim any Qisas from any of the appellants and submitted an application alongwith an affidavit before the trial Court praying that compromise be allowed and the appellants be acquitted.
11. However, the learned trial Court did. Not accept the said compromise effected by Pir Shah, father of the deceased Zafar Abbas, with the appellants, waiving his right of Qisas, for the reason that in the instant case, the appellants had committed a calculated and brutal murder of Zafar Abbas, who was step brother of two of the appellants, namely, Shah Behram and Shah Nawaz; and that the brutal murder was committed only to deprive the deceased of his share of inheritance in the property of their father and had consequently convicted and sentenced the appellants under the provisions of section 311 PPC, as stated above, which section has been referred to in the impugned judgment by having been reproduced in its entirety. The appellants were extended the benefit of Section 382-B, Cr.P.C.
12. The learned counsel for the appellants, the State and the petitioner in the Criminal Revision petition, directed to be heard alongwith the present criminal appeal, were heard at length and the record of the case perused with their assistance.
13. The Court is constrained to observe that after going through the entire evidence on the record, the case against the appellants as charged stands proved beyond reasonable doubt on the basis of the evidence on the record. However, as the entire emphasis in the present criminal appeal has been laid on the ground urged before the Court to the effect that as the only legal heir of the unmarried deceased Zafar Abbas, namely, Pir Shah, his real father, had forgiven the appellants in the name of Allah without claiming any Badal -e-Sulah and had thus given up his right of Qisas, therefore, the learned trial Court had no other option but to acquit the appellants of the offence charged in accordance with the provisions of section 309 PPC.
14. The Court has given its anxious consideration to the submissions made, he learned counsel for the appellants argued of that one the legal heir of the deceased had submitted before the trial Court that he had compromised the matter with the appellants, the learned trial Court had no other option but to acquit the appellants. In this respect referred to Usman and another vs . The State (NLR 1993 Criminal 289), wherein it was held that once a compromise is allowed, the Court has no other option but to acquit the accused; which case is however distinguishable with the instant case, as herein no compromise was allowed and instead the learned trial Court had recourse to the provisions of section 311 PPC to convict and sentence the appellant/accused vide the impugned judgment. Furthermore even the learned counsel for the appellants was forced to concede that under the peculiar circumstances of the instant case, the learned trial Court was empowered to convict and sentence the accused under section 311 PPC despite a compromise effected with the said accused by the legal heir of the deceased. Here it may be noted that the learned counsel has the appellants had recourse to refer to numerable cases, which were, however, not relevant to the instant case.
15. The Court has given its anxious, consideration to all the facts and circumstances of the instant case and firmly hold that no irregularity or illegality has .Been occasioned in the instant case by the learned trial Court by not acquitting the appellants pursuant to the compromise effected as claimed by the legal heir/real father of the deceased herein, as the law specifically provided alternate provisions in the penal law vide section 311 PPC for convicting and sentencing the accused under the peculiar facts and circumstances of the case, and following the exercise of discretion the learned trial Court convicted and sentenced the accused/appellants under the provisions of the said section of the Pakistan Penal Code, despite the compromise effected between the legal heir/father of the deceased and the accused. The Court may record here that they said real father/legal heir of the deceased had appeared before the Court on one of the initial dates when the present criminal appeal was taken up for proceedings and while reiterating that he had compromised the matter with the appellants had very frankly conceded that he had been placed in a very unfortunate position, as one of his sons i.e. The deceased Zafar Abbas, has been killed two of his other sons and his brother-in-law, the third appellant, are behind the bars as a result of their role in the said unfortunate occurrence, and that being helplessness he has no other option but to forgive the accused/appellants and contend for their acquittal accordingly. In the instant case, the learned trial Court had rightly held that the murder of the deceased Zafar Abbas had taken place to deprive him of his share of inheritance in the property that would have devolved on him through his real father Pir Shah and his only legal heir at present, and that thus at least two of the appellants namely, Shah Behram and Shah Nawaz, had been guilty of fratricide, whereas the third appellant, as their maternal uncle, was fully involved in the commission of the heinous crime in question. Therefore, it is hereby held that under the facts and circumstances highlighted, the instant case had been rightly dealt with by the learned trial Court under the provisions of section 311 PPC and as such conviction and sentence awarded to the appellants vide the impugned judgment does not call for any interference.
16. Pursuant to the above discussion, the present criminal appeal being devoid of merits, is hereby dismissed; and taking into consideration .That the conviction and sentence awarded to the appellants, under the provisions of section 311 PPC, has been maintained, the Court finds no merits in the criminal revision petition; directed to be heard alongwith the captioned criminal appeal, and the same is also dismissed.