' GHULAM SARWAR SHEIKH, J.--- This judgment will dispose of murder reference as well an appeal under section 25 of Anti-Terrorism Act, 1997 against judgment, dated 13-11-1997 of Special Court constituted under said Act whereby appellants Muhammad Kabeer, Muhammad Afzal and Yasin were convicted under section 302/34, P.P.C. For double "Qatl-e-Amd" of Rustom and Mst.
Shamshad Bibi, Muhammad Kabeer and Muhammad Afzal were awarded death penalty on two counts with fine of Rs,50,000 on each count, in default whereof to suffer two years' R.I. Each. It was further directed that amount of fine, if realised, be paid to heirs of both the deceased. Yasin appellant was, however, sentenced to imprisonment for life on each count.
2. Facts of the case as reflected by F.I.R. Exh.P.G. Lodged by Gul Muhammad P.W.9, in brief, are that his brother Rustam, deceased, while working as tractor-driver with Muhammad Afzal appellant a resident of village Sanjar was suspected by Muhammad Kabir appellant for his illicit liaison with his niece Shamshad Bibi alias Guddo daughter of Mehmood Akhtar. Accosting Muhammad Kabir and Muhammad Afzal, appellants first informant vouched for innocence of Rustam, who, too accompanied him. But as they were not mollified, Rustam left the job of Muhammad Afzal about 20 days prior to occurrence.
3. On 3-4-1997 at Isha prayer's time, appellant Yasin of same village fetched the complainant and Rustam from their house on the pretext that they were to prove innocence of Rustam in a Panchayat convened at Dera of Sh. Muhammad Iqbal, where, Muhammad Afzal and Muhammad Kabir, appellants were stated present. Rustam and Gul Muhammad alongwith Muhammad Azam and Muhammad Sadiq P.Ws. Preceded with Yasin to Dera situated about one kilometre away from their house. Near the Dera, they came across appellants Muhammad Kabir and Muhammad Afzal, each armed with rifle, while they too were going towards Dera with Mst. Shamshad Bibi. Yasin exclaimed the arrival of Rustam, upon which, Muhammad Kabir exhorted that he (Rustam) be not spared and he taught a lesson for illicit relations/intimacy with Mst. Shamshad Bibi. Muhammad Afzal fired a shot from his rifle hitting Rustam on his left wrist, whereas a similar shot fired by Muhammad Kabeer pierced his chest and another upon his back. Thereafter, Muhammad Kabeer transfixed a bullet into chest of Shamshad Bibi. First informant and his companions stepped forward to rescue the victims, but, were threatened of dire consequences by the assailants.
Occurrence was also witnessed by Sh. Muhammad. Iqbal and Mst. Sahib Khatoon his wife.
4. Rustam and Mst. Shamshad Bibi could not survive from their injuries and expired at the spot. All the accused took to their heels with their respective weapons, whereas, Gul Muhammad went to Police Station Fort Abbas, where, he made his statement Exh.P.G. To S.-I./S.H.O. Abdul Hameed P.W.13 at 12-15 midnight.
5. Abdul Hameed, S.-I./S.H.O., P.W.13 visited the spot, prepared injury statement Exh.P.A./4 and inquest report Exh.P.A./3 of Rustam and similar documents qua Mst. Shamshad Bibi respectively as Exh.P.B. And Exh.P.B./1. He sent dead body of Rustam under escort of Allah Wadaya Constable and that of Mst. Shamshad Bibi was escorted by Abdul Ghaffar Constable to morgue.
6. He then secured blood-stained earth from two places under the dead bodies of Rustam and Mst.
Shamshad Bibi, made it into sealed parcels and took it into possession vide memo. Exh.P.J. And Exh.P.K. Respectively. Three empties P.5/1 to 3 of .7 mm rifle recovered from the spot were also made into sealed parcel and taken into possession through memo. Exh.P.H. A pair of lady shoes was also taken into possession from the venue of the incident. Rough sketch whereof is Exh.P.O. Allah Wadaya, Constable handed over last-worn clothes Shalwar P.1, Qamiz P.2, both blood-stained, of Rustam. Same were taken into possession by means of memo. Exh.P.E. On 5-4-1997 the Investigating Officer took into possession last-worn clothes Shalwar P.3, shirt P.4 of Mst. Shamshad Bibi alongwith 6 sealed Jars and a sealed envelope by virtue of memo. Exh.P.P. When these articles were produced by Abdul Ghaffar, Constable. All the sealed parcels were duly deposited with Moharrir of police station for safe custody.
7. Investigating Officer arrested Muhammad Kabeer, Yasin and Muhammad Afzal on 9-4-1997 and recovered .7 mm rifle P.6 at the instance of Muhammad Kabeer from his residential house on 13-4- 1997. It was made into a sealed parcel and taken into possession vide memo. Exh.P.L. Sketch of rifle drawn on memo. Is Exh.P.L./1 whereas the site plan of this recovery is Exh.P.L./2. On 20-4-1997, Muhammad Afzal accused led to the recovery of rifle P.7 from under a "Karian" tree wherefrom it was dug out by him and after making into a sealed parcel was taken into possession through memo. Exh.P.M. Sketch of this rifle drawn on the memo. Is Exh.P.M./1. Two live cartridges P.8/1-2 recovered alongwith this rifle were also taken into possession. Site plan of this recovery is Exh.P.M.12.
On the same day, Yasin, accused led Police to the recovery of a carbine P.9 alongwith two cartridges P.10/1-2. Those were dug out by him from under a Sheesham tree and were taken into possession vide memo. Exh.P.N. Site plan of place of recovery is Exh.P.N./1. These parcels were also deposited in Malkhana, statement of P.Ws. Were recorded and upon completion of investigation final report under section 173, Cr.P.C. Was submitted in Court.
8. Appellants pleaded not guilty to the charge and claimed trial. Prosecution examined 13 witnesses against them besides tendering into evidence report of Chemical Examiner Exh.P.P. Of Serologist Exh.P.Q., of Forensic Science Laboratory Exh.P.R. And of Chemical Examiner Exh.P.S. And closed its case.
9. While examined under section 342, Cr.P.C. Accused denied the allegations and circumstances figuring them in the prosecution evidence. In addition thereto, Muhammad Kabeer appellant advanced following plea:-- "I am the real paternal-uncle of Mst. Shamshad Bibi deceased. At the night of occurrence carrying the rifle, licensed in name of my brother Shabbir for myself protection, I was going to the house of my real sister Mst. Sahib Khatoon. When I reached near house of my sister Mst. Sahib Khatoon, I saw Shamshad Bibi and Rustam deceased in a compromising position present in wheat crops. Under the grave and sudden provocation I killed both the sinners with the said rifle by firing shots. My sister Sahib Khatoon and her husband Sh. Iqbal and father of Sh. Iqbal named Sh. Ahmad Baldish attracted to the spot as a result of firing. I told them this real story which is above mentioned. Gul Muhammad Kharak (complainant) Azam P.W. And Sadiq Kharak P.W. Were not present at the time.
Afzal and Yasin accused were also not present at the spot at the time they both are absolutely innocent. Sh. Abdul Hameed S.H.O. Arrested me on 4-4-1997 on Friday from my Dera S.H.O. Took into possession licensed rifle of my brother Shabbir at the same time. Afzal and Yasin accused were arrested on the same day by S.H.O. My paternal-cousin Sh. Muhammad Sadiq filed applications to the higher Police Officers. Sh. Sadiq also moved in High Court a writ petition as a result bailiff raided at Police Station Abbas Nagar and due to said grudge S.H.O. Made a false case and investigation on wrong directions. P.Ws. Are closely related inter se. They deposed against me due to enmity and to turn a case of grave and sudden provocation into Qatl-e-Amd."
10. Under section 342, Cr.P.C. Appellant Muhammad Afzal made following statement:-- "Rustam deceased was my employee as Tractor driver. I had expelled him from the job because of illicit relations between Shamshad Bibi and Rustam. At the time of expulsion Rustam was given shoe beating by me. P.Ws. Are related inter se. They deposed against me due to enmity and my relationship with Muhammad Kabir and to turn the case of grave and sudden provocation into case of Qatl-e-Amd. My real brother Sh. Sadiq filed applications to higher Police Officers and also moved in High Court a writ petition. As a result bailiff raided at Police Station Abbas Nagar. Due to said grudge S.H.O. Investigated on wrong direction and implicated me falsely. No recovery was effected from me."
11. None of the accused opted to be examined on oath to disprove the allegations as envisaged by section 340(2), Cr.P.C. Except for Yasin, appellants did not lead any evidence in defence. Sh. Sadiq real brother of Muhammad Afzal appellant,. Brother-in-law of Muhammad Kabeer appellant and uncle of Shamshad Bibi deceased appeared as D.W.1 alongwith Sh. Iqbal D.W.2, another uncle of Mst. Shamshad Bibi. Sh. Sadiq D.W.1 testified that a Thanedar arrested Yasin, Muhammad Kabeer and Muhammad Afzal appellants on 4-4-1997 from Kabir's Dera, took into possession of rifle, licensed in name of Shabbir, a real brother of Muhammad Kabeer appellant and demanded Rs,50,000 as illegal gratification for release of Muhammad Afzal and Yasin, when, he was told that murders in fact were committed by Muhammad Kabeer appellant, all alone, under the impulse of sudden and grave provocation on seeing Rustam and Mst. Shamshad Bibi in compromising position; money was not given and a writ petition was filed against Thanedar in High Court. A bailiff deputed for the purpose saw the appellants in police lock-up and they told him that they had been arrested by S.H.O. On 4-4-1997.
12. Muhammad Iqbal D.W.2 deposed that Mst. Shamshad Bibi was niece of his wife, the house of her father was one mile away from his house, she had been residing often in his house, and on fateful night had gone outside to attend the call of nature, when he, his father Ahmad Bakhsh and his wife Sahib Khatoon heard report of a gun fire and rushed to the scene to see Mst. Shamshad Bibi and Rustam lying shot dead near wheat crop with Muhammad Kabeer appellant standing nearby with a rifle in his hand and confessing that he had shot them dead, having seen there in compromising position. D.W.2 accompanied dead bodies to morgue and reported the incident to Police, but, F.I.R.
Was not recorded on his statement.
13. Upon culmination of trial the learned Trial Court convicted and sentenced the appellants as indicated above. Hence this appeal.
14. Learned counsel for the appellants has lambasted the verdict by contending that trial conducted by an unconstitutionally and unlawfully constituted Court is coram-non-judice; judgment delivered by it, has failed to attain terminus ad quem, thus case be sent for retrial to Sessions Court under section 23 of Act, judgment is devoid of reasoning and does not conform to the requirements of section 367, Cr.P.C. Eye-witness account has not been properly evaluated and appreciated, medical evidence runs counter to ocular account and has not been properly sifted ocular account is highly improbable inasmuch as the deceased and the complainant would never dare to go to the Dera of Sh. Muhammad Iqbal their enemy at night; the conduct of witnesses at the time of occurrence as portrayed is highly unnatural, improbable and unbelievable; the eye- witnesses do not conform to the standard laid down by section 17 of Qanune-Shahadat Order; the investigation conducted by S.H.O. Against whom Sh. Muhammad Sadiq D.W.1 filed a writ petition after the occurrence is dishonest; recoveries have been planted and crude attempt has been made to place half truth before the Court; report of Fire-arm Expert and that of Serologist support the defence version and demolish the prosecution case; it is proved that Muhammad Kabeer appellant as per chance saw Rustam deceased in compromising position with his niece Mst.
Shamshad Bibi and losing self-control, shot them dead under impulse of sudden and grave provocation and thus committed no offence.
15. Conversely learned A.A.-G. Has asserted that validly constituted Court conducted a fair and impartial trial; rightly believed eye-witnesses account which, stands duly corroborated by medical evidence as well as recoveries and motive and awarded sentences to the appellants keeping in view the circumstances of the case.
16. We have considered the arguments in light of record perused and scanned with able assistance of learned counsel for the parties.
17. Learned counsel for appellants has failed to impress me as to how the learned Trial Court is not properly established. It is a Court duly constituted under the Act and its decision in a properly conducted trial shall not become coram-non-judice merely because the appellants challenged its constitution in an Intra-Court appeal after failing in a writ petition. Also we cannot see eye to eye with contention of learned counsel that judgment does not conform to the requirements of section 367, Cr.P.C. Learned Trial Court has given reasons for its decision, the standard of reasons is a matter of evaluation and may differ with man to man and from case to case. No hard and fast rule in this regard can even be laid down nor it can be requirements of section 367, Cr.P.C. Thus, no. Judgment can be termed to be coram non judice on this score. Therefore, objections raised about jurisdiction of the Court and standard of its judgment are overruled.
18. This bring us to decide the appeal on merits in wake of the evidence on record and law on the subject.
19. Prosecution evidence can be classified into following categories:--
(i) Eye-witness account. (ii) Medical evidence. (iii) Motive. (iv) Recoveries and (v) Investigation.
20. Ocular account has been furnished by Gul Muhammad P.W.9 the complainant and Muhammad Azam P.W.10. Gul Muhammad reiterated the incident as narrated by him in F.I.R. Exh.P.G.
Muhammad Azam P.W.10 corroborated him by testifying that on the fateful night he accompanied by Gul Muhammad P.W.1, Rustam his brother since deceased and Yasin appellant was proceeding to the Dera of Muhammad Iqbal where Panchayat as stated by Yasin was convened and Rustam and Gul Muhammad were summoned to vouch for the innocence of Rustam qua his alleged affair with Mst. Shamshad Bibi. When they were about a Bigha away from the Dera, they saw Muhammad Kabeer and Muhammad Afzal appellants each armed with rifle coming towards them with Mst.
Shamshad Bibi caught by collar of her shirt. P. Ws. Then detailed as to how the occurrence took place and corroborated Gul Muhammad complainant on all salient features of the incident. Both these eye-witnesses successfully withstood the test of cross-examination. Medical evidence has been furnished by Dr. Muhammad Zahid P.W.1 and lady doctor Rizwana Kausar and it corroborates eye-witness account. Dr. Muhammad Zahid on 4-4-1997 vide post-mortem report Exh.P.A.
Conducted autopsy upon dead body of Rustam and observed fire-arm wound on his chest; left side of lower back in lumber region and on poster-medial aspect of left fore-arm. Blackening noted around the wounds indicates that shots were firmed from close range as stated by eye- witnesses, Dr. Muhammad Zahid P.W.1, on the same day referred the dead body of Mst. Shamshad Bibi to B.V. Hospital, Bahawalpur libr post-mortem examination by a Lady Doctor there. Dr. Rizwana Kausar P.W.6 on 5-4-1997 vide post-mortem report Exh.P.D. Performed autopsy upon the dead body and observed ante-mortem entry fire-arm wounds on postero lateral aspect of right middle arm with burning and tattooing around and a similar entry wound on chest. She also observed multiple abrasions on the antero medial aspect of both upper thighs besides multiple abrasions on both sides on the chest near breast.
21. In the opinion of both the doctors, the injuries in both the cases, were sufficient to cause death in ordinary course of nature and, thus, medical evidence prove Qatal-e-Amd of Rustam and Mst.
Shamshad Bibi. Nature of the injuries indicates that same were caused by a rifled weapon fired from close range and which caused blackening and tattooing around the wounds. This fact has been affirmed by Dr. Muhammad Zahid P.W.1 in cross-examination, who, stated "It is correct that all the injuries present on the dead body were caused by same weapon and same range".
22. According to both the eye-witnesses it was Muhammad Kabeer, who, initiated the occurrence by raising a Lalkara. Motive is also attributed to him as Mst. Shamshad Bibi is his niece and it was he, who, had been suspecting her liaison with Rustam as mentioned in F.I.R. He was bringing her niece to the Dera of Sh. Muhammad Iqbal in a Panchayat and met Gul Muhammad, the complainant, Rustam, the deceased, and Muhammad Azam P.W.10 on the way. He was armed with a rifle. The injuries on the person of both the deceased suggest that those were caused by one and the same weapon. His flaring up at seeing Rustam, though incidentally, on way to Dera of Sh.
Muhammad Iqbal, was quite natural. He, therefore, to avenge the family honour fired from his rifle upon both the deceased and caused their death in sight of witnesses. To his extent the eye-witness account is corroborated by motive and recovery of rifle Exh.P.5 to which the empties recovered from the place of occurrence matched. No such corroboration is forthcoming against other two accused. None of them has a direct motive and even weapons recovered from them have not been proved to be connected with commission of offence. So for safe administration of justice benefit of doubt must be extended to them. Both accordingly, are acquitted.
23. Defence version taken by Muhammad Kabeer appellant is neither probable nor confidence inspiring. Sh. Muhammad Iqbal D.W.1 is closely related to him as being his brother-in-law. He admitted that Mst. Shamshad Bibi's house was one mile away from the place of occurrence. His statement that she often had been residing with his wife, her aunt is just a crude attempt of an over-zealous relative to save his brother-in-law. His statement as well as defence version taken by Muhammad Kabeer accused has been belied by medical evidence and report of Chemical Examiner Exh.P.P. Vaginal swa bs taken by Lady Dr. Rizwana Kausar P.W.6 from dead body of Mst.
Shamshad were found to be not stained with semen. Scratches on her thighs and chest do not conform to the allegation of Zina-bil-Raza alleged by Muhammad Kabeer appellant as signs of struggle in such cases are a rare phenomenon. In case of Zina-bil-Raza in a wheat crop scratches if any, would be on back of thighs or chest and not on front side as noted in medical evidence.
Similarly filing of a writ petition against Police by Muhammad Sadiq D.W.2 an other close relative of the accused after registration of case does not make investigation dishonest or unfair. Thus, in our view, the prosecution has proved beyond any shadow of doubt that Muhammad Kabeer appellant committed double Qatl-e-Amd of Rustam and Mst. Shamshad Bibi and this fact has not been denied by him.
24. Now we come to the quantum and nature of sentence. Keeping in view the motive set up by prosecution itself that involves family honour, awarding of capital punishment to appellant Muhammad Kabeer is not called for and in our view imprisonment for life will serve the ends of justice in these mitigating circumstances. We, therefore, do not confirm his death sentence and reference is answered accordingly. Muhammad Kabeer is, therefore, sentenced to imprisonment for life on each count for Qatl-e-Amd of Rustam and Mst. Shamshad Bibi. He shall pay Rs,25,000 as compensation to legal heirs of each deceased and the same shall be recovered as arrears of Land Revenue. Benefit of provisions of section 382-B, Cr.P.C. Shall be extended, while computing the period of his sentence, to run concurrently.
25. Appeal, thus, is partly accepted, with modification of sentence to Muhammad Kabeer appellant and acquittal of Yasin and Muhammad Afzal appellants.