MANSOOR ALAMGIR QAZI, J.- Sifarish Ali 44 years, Ghulam Murtaza 30/31 years, Ghulam Mustafa 28/29 years alongwith Anwar and Muhammad Khan were arraigned for trial before the learned Additional Sessions Judge, Faisalabad in a case FIR No. 60/91 registered at Police Station Otak Jhumra under Sections 302/148/149 PPC. Through the judgment dated 11.10.1992, Anwar and Muhammad Khan accused were acquitted while Sifarish was convicted under Section 302 (b) PPC for the murder of Suleman aged 25 years while Ghulam Murtaza and Ghulam Mustafa appellants were convicted under Section 302{b)/34 PPC for the murder of Muhammad Yousaf aged 35 years.
All of them were sentenced to death and in case death sentence was not confirmed, they were ordered to pay Rs. 30,000/- each to legal heirs of each deceased under Section 544-A Cr.P.C, respectively or in default to undergo six months R.1, each. They were also sentenced to pay a fine of Rs. 10.000/- each and in default of payment thereof, to undergo R.I. For 2 years each.
2. Feeling aggrieved the convicts preferred Criminal Appeal No. 869/92 and the State has preferred Murder Reference No. 398 of 1992. Both these matters have been taken up today and will be disposed of through this single judgment. '
3. The unfortunate occurrence took place on 19.2.1991 at 8.30p.m. In the house of Muhammad Khan the acquitted accused who is brother of one Thoba. Mst. Gujri sister of Muhammad Yousaf and Suleman is married to said Thoba. The place of occurrence is situated in the area of Chak No. 45/JB at a distance of 14 miles from Police Station Chak Jhumra.
4. Muhammad Younas (PW. 7) got this statement (Ex. P-H) recorded at 9.30 p.m. The same day at Bangla Bairanwala and the same was recorded by Nazar Hussain, Sub-Inspector (PW-9). It was sent to the Police Station Chak Jhumra where on the basis of statement (Ex.PH) formal FIR (Ex.P-H/1) at 10.15 p.m. Was recorded by Muhammad Sajid (PW-3).
5. The facts as narrated by Muhammad Younas complainant are that Muhammad Yousaf and Muhammad Suleman deceased of this case are his real brothers and he has to sisters. About seven months before the. Occurrence Muhammad Yousaf was married to Mst. Bano daughter of Khan and in exchange Mst. Gujri sister of the complainant -was married to Thoba and that due to the quarrel in the family Mst. Bano left the house of Muhammad Yousaf her husband and went to the house of her brother Muhammad Khan. On the day of occurrence at 8.30 p.m. Alongwith Suleman (deceased), Muhammad Yousaf(deceased), Muhammad Yar his uncle, Ghulam Ali and his mother Mst. Sardaran went to fetch their sister Mst. Gujri from the house of Thoba At that time an electric bulb was alight. Sifarish Ali, Murtaza and Mustafa all armed with 12-bore guns, Anwar and Muhammad Khan empty- handed emerged out of a Kotha of Muhammad Khan. Anwar and Muhammad Khan raised Lalkara upon which Sifarish Ali fired at Suleman which hit him op the fore- head, nose and the right eye and came out from the back of the head. Mustafa accused fired which hit Muhammad Yousaf deceased^ on the right side of chest, below the right arm-pit.
Murtaza fired at Muhammad Yousaf which hit him on the. Left upper arm. On receipt of injuries Suleman fell in the court-yard while Muhammad Yousaf on receipt of shot rushed outside the house and fell in front of the main door of the house in bazar. Both the deceased succumbed to the injuries at the spot. The accused ran away after firing shots in the air.
6. Motive as narrated in the FIR is that Muhammad Khan was not willing to give the had of Mst. Bano in marriage to Muhammad Yousaf deceased, Sifarish Ali. Ghulam Mustafa, Murtaza and Anwar were also angry over this marriage and for this reason the accused had assaulted the deceased.
7. After arrival at the spot the investigating officer Nazar Hussain (PW-9) prepared injury statement (Ex.P-B) and inquest report (Ex.P-C) in respect of dead body of Suleman deceased. He also prepared injury statement (Ex.P-E) and inquest report (Ex.P-F) in respect of Muhammad Yousaf deceased and despatched both the dead bodies for post-mortem examination under the escort of Muhammad Hanif, Head Constable (PW-5).
8. In the course of inspection of the spot he collected blood-stained earth from the place of murder of Suleman (deceased) which was made into a sealed parcel and taken into possession vide recovery memo. (Ex.P-O). He also collected blood-stained earth from the place of murder of Muhammad Yousaf, made it into a sealed parcel and took it into possession vide. Recovery memo.
(Ex.P-P). Muhammad Younas (PW-7), Nazar Hussain (PW-9) and Muhammad Nawaz (not produced) attested the recovery memos. (Ex.P-0 and Ex. P-P). All the accused except Muhammad Anwar were arrested on 23.3.1991 while Muhammad*Anwar was arrested on 26.3.1991. They were arrested by Nazar Hussain (PW-9) the investigating officer. On 26.3.1991, while in police custody Sifarish Ali accused got recovered .12-bore gun (Ex.P-9) from inside the petti lying in his residential house, it was taken into possession vide memo. (Ex.P-L). Ghulam Murtaza while in police custody led to the recovery of .12-bore gun (Ex.P-10) from a room of his residential house fr6m inside a Jisti Petti. It was taken into possession vide recovery S memo. (Ex.P-M). Ghulam Mustafa accused while in custody led to the recovery of .12-bore gun (Ex.P-11) from his residential house from a Jisti Petti.
The gun was recovered and he also produced licence for this gun, which were taken into possession vide recovery memo. (Ex. P-N). All these recoveries were attested by Nazar Hussain (PW-9), Mehnga (PW-6) and Ahmad Hassan (not produced).
9. On 20.2.1991 at 8.30 a.m. Dr. Iqbal Ahmad Javid, D.M.S. District Headquarters Hospital, Faisalabad (PW1) performed autopsy on the dead body of Suleman deceased and found the following injuries on his person:-
(1) Seven, circular, lacerated wounds of fire-arms of entrance on the forehead, nose, right eye, right eye-brow, left cheek, in a diameter of 5" x 3- 1/2". One wound was just on the right side of the mid line of fore head three wounds were on the nose, one on the right eye, one on the right eye-brow and one was on the left cheek, close to the nose, each would was 1/3" x 1/3" x probe passed deep in to the scalp cavity The edges of all the wounds were inverted and ecchy-mosed.
(2 ) A wound of fire-arm exit on the back surface of the middle of the head on the mid-line 2" x 1/2" x fracture of the occipital bone. The edges of the wound were everted.
In his opinion death was sudden due to shock and haemorrhage caused by injuries Nos. 1 and 2.
Each injury was sufficient to cause death in the ordinary course of nature. Both the injuries were accused by fire-arm and were ante-mortem. The time between the injuries and death was immediate while that between death and the post-mortem was 12 hours.
10. On the same day at 10.30 a.m. He performed autopsy on the dead body of Muhammad Yousaf and found the following injuries on his person:-
(1) Four circular lacerated wounds of fire-arms entrance on the front of right side of chest 2-1/2" above the right nipple and 4" lateral to the mid line in a diameter of 4" x 2-1/2. Each wound was 1/3" and probe passed deep into the right side of the chest cavity , The edges of all the wounds were inverted and ecchymosed. Corresponding perforation was seen in the sweater, kuna and bunyan, which were all blood-stained.
(2) Six wounds of fire-arm of entrance on the lower part of the outer aspect of the left arm and the adjoining portion of the outer aspect of the left fore-arm. Three wounds were on the left arm and three wounds were on the left fore-arm, in a diameter of 6" x 3". Each wound was 1/3" x 1/3" x fracture of the left humerus bone. The skin surrounding the wounds were blackened, scortched and tatooed. The edges of all the wounds were inverted and ecchymosed. One wad was also recovered from this injury. The corresponding perforation was seen on the kurta, which was blood-stained.
(3) Six wounds of fire-arm of exit on the inner side of the left arm each wound was 1/2" x 1/3". The edges of all the wounds were everted. Corresponding perforation was also seen in the kurta which was also blood-stained.
(4) Five circular lacerated wounds of fire-arm entrance on the outer aspect of the left side of the chest, three inches below the left arm-pit, 3-3/4" away and lateral to left nipple, with inverted and ecchymosed edges each 1/3" x 1/3" x probe passed deep into the left side of chest cavity. This injury was corresponding to injury No. 3. In my opinion the five pellets which came-out from the wound of exit, i.e. Injury No. 3, have reentered into the outer aspect of the left side of the chest.
In his opinion the death was sudden, due to shock and haemorrhage caused by injury Nos. 1 to 4.
These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm. Time between the injuries and death was immediate and that between death and post-mortem was 14 hours.
11. The report of the Chemical Examiner (Ex.P-Q) and that of. The Serologist (Ex.P-R) were tendered in evidence and the prosecution closed its case.
12. The accused were examined under Section 342 Cr.P.C. Sifarish Ali, appellant in answer to question No. 2 has admitted that he is real brother of Muhammad Anwar co-accused and step- brother of Ghulam Mustafa and Ghulam Murtaza appellants while Muhammad Khan co-accused was his Khalazad. In answer to question No. 8 he has given a detailed answer which is as under:- "The case against me is false. I alongwith Bano and Muhammad Khan were present in the house of Muhammad Khan co-accused at the time of present occurrence. Mst. Bano about twenty days prior to the present . Occurrence was missing from the house of her husband and at Sargodha with Mr. Bata, cousin of mine. She was returned by one Nawazish Shah of Mauza Ali Lakkan. The complainant, and her husband Yousaf deceased. Mst. Sardaran the mother-in-law of Mst. Bano apprehended (though genuinely) that there was my had in getting her missing."On the day of occurrence. Yousaf and Suleman armed with guns attacked me and Mst. Bano to kill. I alone acted in self-defence. Yousaf received second shot outside the house from some unknown person. Rest of the accused except Muhammad Khan were not in the premises of the place of occurrence. Rest of my statement is the same, which has been suggested to complainant Muhammad Younis P.W.
During the cross-examination. Anyhow, Mst. Bano has waived her right of Qisas. The P.Ws, have deposed against me falsely with clear motive. The P.Ws. Muhammad Younis, Muhammad Yar, Mst.
Sardaran and Ghulam Ali were not with Muhammad Yousaf and Suleman deceased at the time of present occurrence".
Ghulam Murtaza and Ghulam Mustafa have denied their presence and have submitted that they had been falsely implicated in the case due to their relationship with Sifarish Ali appellant. None of- the accused produced defence evidence nor opted to appear as their on witness under Section 340 (2) Cr.P.C, to disprove the allegations levelled against them.
13. Order dated 5.10.1992 of the trial Court' indicates that Mst. Band widow of Muhammad Yousaf deceased waived her right of Qisas with respect to her deceased husband. Mst. Bano happens to be the sister of Thoba and Muhammad Khan. Muhammad Khan is the acquitted accused.
14. With the assistance of learned counsel for the appellant we have gone through the entire evidence recorded by the trial Court and have perusal the record of the case. Learned counsel for the State and that of the complainant have also been heard at length.
15. It is an admitted position that the accused are closely related to each other and to the deceased. There is no denying to the fact that Mst. Gujri sister of the deceased is married to Thoba brother of Muhammad Khan accused and their sister is married to Yousaf deceased. The place of occurrence being in common courtyard of the Haveli of Thoba and Muhammad Khan accused. It is also established on record that the parties have no previous enmity with each other except that Mst. Bano wife of Yousaf deceased had left the house of her husband due to some family quarrel.
Both the parties live one acre apart in the same village.
16. Muhammad Yar PW is uncle of the deceased and he is married to the sister of Anwar accused and his niece is married to Ghulam Mustafa accused/ Hence he is a person who was elder among both parties and thus commanded respect and an effective say in both families.
17. The learned counsel for the appellants has argued that the deceased did not go that innocently as suggested by the complainant party. To elaborate his contention he has argued that wife of the accused had gone to her parental house and sister of the deceased was not agreeing to leave the house of her husband, hence the grouse lay with the deceased and thus they had gone armed with guns which were later on planted on Sifarish Ali and Ghulam Murtaza, Controverting these arguments we find that there is no evidence on record to show that the deceased had prearranged this meeting which culminated in this unfortunate incident. Secondly under these circumstances if the deceased had gone armed then instead of the fact they being dead it would have been one or to persons on the accused side who would have been done to death. Lastly, if the deceased had such designs then they would not have taken their mother Mst. Sardaran (given up PW) and Muhammad Yar (PW-8) their uncle, their brother Muhammad Younas (PW-7) and cousin Ghulam Ali (given up P.W). From the constitution of this assembly of persons reflects that they had gone there innocently, with peaceful intentions, to amicably sort out the misunderstanding so that both the marriages should survive.
18. The marriages had taken place about seven months prior to this occurrence and no untoward occurrence had taken place although as the prosecution suggest the appellants and Muhammad Khan accused were not willing to give the had of Mst. Bano to Yousaf deceased, if this were true then Sifarish Ali appellant would have given the first shot to Yousaf deceased to eliminate the root but from the evidence it appears that he fired the first shot at Suleman deceased. Hence we are of the view that the motive as suggested by the prosecution cannot be accepted. It is incomprehensible that this peaceful amicable mission became volcanic and culminated in these murders. Both sides are silent and have not stated any specific reason. Thus it is shrouded in mystery as to what preceded between the parties to trigger the occurrence and the fact that after receipt of shot Yousaf deceased ran towards the main entrance and after receipt of second shot fell "dead outside in the bazar is a fact which indicates that he in spite of being hurt wanted to avoid the accused and to save his life ran outside which negates the version of the accused.
19. Learned counsel for the appellant has tried to raise much dust on the non-production of Mst.
Sardaran, mother of the deceased in the witness-box and has suggested that we should draw an inference that she was not supporting the prosecution. We have with smile heard this point being raised. It is beyond comprehension that a mother who has lost to adult sons in prime of life would not like and leave no stone unturned to see the murderers of her sons receive punishment. It is choice of the complainant and prosecutor to produce as many and which witnesses to prove the charge. Burdening the record by repetition of same type of evidence would not help prove the charge. It is the quality of evidence and not quantity of evidence which puts the noose around the neck of the accused. In place of the mother the uncle has appeared and supported the case for the prosecution even though he was more related to the accused side. Hence this argument is strongly repelled as being against natural-human conduct and nature and being an insult to the maternal love and instinct of a mother. Most probably this was an attempt through frustration when there was nothing better to lay hands on.
20. Lastly in order to establish the plea of self-defence the learned counsel had advanced and stated that PW-7 and PW-8 should not be believed as they were not at the spot. Had they been there they would have received some injury and that their evidence is contradictory to medical evidence.
21. As already discussed we have held 'that these to witnesses were members of the party who had gone with -the deceased. To further substantiate it we are of the view that since it was their ow n family matter which was to be sorted out they could not ask outsiders to' accompany them as it would have under mined their on family dignity and a personal family matter would have become public Hence it was reasonable to take their, on family members to. Patch up the misunderstanding or to decide it amicably.
22. With the assistance of learned counsel for the complainant once again the evidence of both PWs. Has been read in line with the medical evidence and we find no contradiction whatsoever to disbelieve the testimony of PW-7 and PW'-8. As far as the PWs receiving no injury we would just say it was purely their goodluck.
23. The version given by Sifarish Ali is incomprehensible and an incomplete one. Neither it is substantiated from the record of the ease nor an, iota evidence is available to believe the same. He has staled that the second shot at Yousaf deceased was fired at by some unknown person. Further he says that the to accused were armed with guns and they fired at him but he has no injury on him. Such incomplete and vague statements made orally without any substance or fooling are not acceptable and meet the face it deserves and we are not inclined to fall for such a version.
24. From all what has been said and discussed above we are of the view that since the facts involve a family dispute and a female question is involved, the motive not been proved beyond doubt it is not a case where-sentence of death should be imposed or confirmed.
25. Hence for reasons enumerated above we dismiss the appeal of the appellants, maintain their conviction under Section 302 (b) PPC. However, the sentence of death awarded to each appellant is converted to imprisonment for life. The order awarding compensation is maintained. Sentence of fine is set aside as there being no provision under the new amended law.
26. The convicts shall be entitled to the benefit of Section 382-B, Cr.P.C. The Murder Reference is answered in the NEGATIVE, With these observations and modifications, the appeal and Murder Reference are disposed of.