' ASIF SAEED KHAN KHOSA, J.---Jaafar son of Fareed, aged 40 years, and Zulfiqar son of Sher Muhammad, aged 24 years, were convicted by the learned Additional Sessions Judge, Chichawatni vide judgment dated 13-6-1995 for an offence under section 302(b)/34, P.P.C. And were sentenced to death each as Ta'zir. They were also ordered to pay a sum of Rs,50,000 each to the heirs of Mst. Daulat Bibi deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo R.I. For six months each. Both of them were also convicted for an offence under section 324/34, P.P.C. And were sentenced thereunder to R.I. For ten years each and to pay a fine of Rs,10,000 each or in default of payment thereof to undergo further R.I. For two years each. For the said offence they were also ordered to pay a sum of Rs,10,000 each to Mst.
Sughran Bibi P.W. By way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo further R.I. For six months each. It was further ordered that in case the sentences of death passed against the convicts were not confirmed by the Lahore High Court and the same were converted to some other punishments then all the sentences of imprisonment passed against them would run concurrently. The benefit under section 382-B, Cr.P.C. Was extended to the convicts. Through the same judgment the learned trial Court had acquitted the convicts' co- accused Muhammad Ameen. Jafar and Zulfiqar convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,152 of 1995. Mst. Sughran Bibi, the injured witness as well as daughter of the deceased, has filed Criminal Revision No,162 of 1995 before this Court seeking .Nhancement of compensation and fine ordered against the convicts. We have heard the convicts' appeal and the witness's revision petition alongwith Murder Reference No,164 of 1995 seeking confirmation of the sentences of death passed against the convicts and we propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R was that Muhammad Anwar complainant and Mst.
Daulat Bibi, his widowed Chachi as well as Khala, were residing near Bangla Parrie in Chak No,44/12-L situated within the area of Police Station Sadar, 'Chichawatni, District Sahiwal. They had adjoining houses and they used to cultivate the agricultural land of one Muhammad Yousuf. At about 2-00 p.m. On 10-11-1993 Muhammad Anwar complainant and his brother Muhammad Akram were sitting on the Katcha road in front of their house whereas their Chachi and Khala Mst. Daulat Bibi and his daughters Mst. Sughran Bibi and Mst. Taslim Akhtar were sitting on that Katcha road in front of their own house while peeling off Sarkanda sticks. Suddenly Jaafar, armed with a .12 bore gun, Zulfiqar, armed with a .12 bore pistol, and another unknown yound man, armed with a .12 bore gun, came there. Jaafar and the unknown person were riding on a mare whereas Zulfiqar was walking with them. Upon reaching there Jaafar alighted from the mare and raised a Lalkara that Mst. Daulat Bibi would be taught a lesson for not Letting her daughter Mst. Sughran Bibi go back to her matrimonial home. Upon that Mst. Daulat Bibi and Mst. Sughran Bibi stood up and, putting their hands together, beseeched the assailants. Zulfiqar then fired a shot from his pistol which hit Mst.
Sughran Bibi on the right side of her face. Jaafar fired from his gun which also hit Mst. Sughran Bibi on the right side of her face. Jaafar then fired at Mst. Daulat Bibi hitting her at her left cheek. Upon receipt of those injuries both the ladies ran from there but they were followed and felled by Jaafar and Zulfiqar in the nearby field of Barseem. Jaafar then fired at the fallen Mst. Sughran Bibi which hit her on her front chest. Thereafter, Zulfiqar fired at the fallen Mst. Daulat Bibi which also hit her on her front chest. Upon hearing the noise and the fire-reports Abdul Razzaq, who was feeding his cattle nearby, also came there and saw the whole incident. When the witnesses tried to go near they were threatened and warded off by the unknown companion of Jaafar and Zulfiqar riding on the mare. Thus, the witnesses could not go near the victims or the assailants. Thereafter, Jaafar and Zulfiqar went away from the scene of the crime with their unknown companion on the galloping mare. After the assailants' departure the witnesses found out that Mst. Daulat Bibi had already succumbed to her injuries at the spot and Mst. Sughran Bibi was seriously injured. The complainant's brother Muhammad Akram immediately took Mst. Sughran Bibi to Civil Hospital, Chichawatni for medical treatment and the complainant, leaving Abdul Razzaq, Mst. Taslim Akhtar and others to guard the dead body of Mst. Daulat Bibi at the spot, proceeded to lodge a report with the police. The motive set up in the F.I.R. Was that about 16/17 years ago Mst. Sughran Bibi was given in marriage to Jaafar but due to family and domestic disputes she came back and started living with her mother Mst. Daulat Bibi and despite Jaafar's insistence refused to live with him. According to the F.I.R. It was due to that grievance the accused party had committed the murder of Mst.
Daulat Bibi and launched a murdeious assault on Mst. Sughran Bibi.
' Upon the statement of Muhammad Anwar complainant F.I.R. No,280 (Exh.PR) was recorded at Police Station Chichawatni by Rab Nawaz Tariq, Inspector/S.H.O. (P.W.10) at 4-00 p.m. On the same day for offences under section 302/324/34, P.P.C.
4. After recording the F.I.R. Rab Nawaz Tariq, Inspector/S.H.O. (P. W.10) took up the investigation of this case and proceeded to the place of occurrence. At the place of occurrence he recorded his inspection notes, prepared injury statement (Exh-PB/3) and inquest report (Exh-PB/4) in respect of Mst. Daulat Bibi deceased. He then sent the dead body to the mortuary for autopsy. He secured blood-stained earth from the places of injuries of Mst. Daulat Bibi deceased and Mst. Sughran Bibi vide recovery memos. Exh.-PJ and Exh-PK respectively. He secured four crime-empties from the spot vide recovery memo. Exh-PL and also prepared a rough site-plan (Exh-PS) of the place of occurrence.
5. Dr. Muhammad Saleem (P.W.1) medically examined Mst. Sughran Bibi at 4-00 p.m. On 10-11-1993 and found three injuries on her person which had been caused within a duration of 1 to 4 hours of the examination. Injuries Nos. 1 and 2 were caused by fire-arm whereas injury No, 3 was caused by a blunt weapon. He issued the medico-legal examination report (Exh-PA) in that respect.
6. Post-mortem Examination (Exh-PB) of the dead body of Mst. Daulat Bibi deceased was conducted by the same doctor at 8-00 a.m. On 11-11-1993. He found five injuries on the dead body which were all ante-mortem and caused by fire-arm. In his opinion the cause of death was shock and haemorrhage due to injuries Nos. 1,
3. And 4 which were individually and collectively fatal and sufficient to cause death in the ordinary course of nature. Probable time elapsing between injuries and death was immediate and that between death and postmortem examination was between 16 to 24 hours
7. After the Post-mortem Examination of Mst. Daulat Bibi deceased Rab Nawaz Tariq, .Inspector/S.H.O. (P.W.10), the Investigating Officer, secured the last-worn clothes of the deceased on 11-11-1993 vide memo. Exh.PC. On 12-11-1993 he went to Nishtar Hospital, Multan and recorded the statement of injured Mst. Sughran Bibi. He then got a formal site-plan (Exh-PQ) of the place of occurrence prepared from a Revenue Patwari. On 7-12-1993 he arrested Jaafar and Zulfiqar accused and recovered a .12 bore gun (P6) alongwith a licence (P7) and six live cartridges (P 9- A/1-6) from Jaafar accused's residential house vide recovery memo. Exh-PM. On the same day Jaafar accused also led to the recovery of a mare from near his house which was taken into possession vide recovery memo. Exh-PN. On that very day Zulfiqar accused led to the recovery of a .12 bore pistol (P8) alongwith four live cartridges(P 9/1-4) from a deserted place near a small graveyard of that village which were secured vide recovery memo. Exh-PO. On 10-12-1993 the said Investigating Officer arrested Muhammad Ameen accused and subsequently got a test identification parade held on 8-1-1994 for the purposes of his identification by the eye-witnesses.
Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
8. At the commencement of the trial the learned trial Cour t framed a charge with two heads under sections 302/34 and 324/34, P.P.C. Against the three accused persons to which they pleaded not guilty and claimed a trail.
9. During the trial the prosecution produced as many as 11 witnesses in support of its case against the accused persons. Mst. Sughran Bibi (P.W.-4), Mst. Taslim Akhtar (P.W.-5) and Abdul Razzaq (P.W.-6) furnished the ocular account of the incident. Muhammad Anwar complainant and his brother Muhammad Akram, who were eye-witnesses of the occurrence according to the F.I.R., were given up by the prosecution as having been won over by the accused party. They were, however, examined by the learned trial Court as C.W. 1 and C.W. 2 respectively. Mst. Sughran Bibi (P.W. 4) and Mst. Taslim Akhtar (P.W. 5) also deposed about the motive. Dr. Muhammad Saleem (P.W.1) provided the medical evidence. Ghulam (P.W.7) deposed about the recoveries of weapons of offence effected from Jaafar and Zulfiqar accused. Rab Nawaz Tariq, Inspector (P.W.-10) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In their statements recorded under section 342, Cr.P.C. All the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Jaafar accsued, however, admitted that Zulfiqar accused was his cousin and that 15/16 years before the occurrence Mst. Sughran Bibi P.W. Was married to Jaafar accused in exchange of Mst. Amiran Bibi, sister of Zulfiqar accused, who was given in marriage to an uncle of Mst. Sughran Bibi P.W. And that both the ladies remained in the houses of their respective husbands for about one year after their marriages but returned to the houses of their parents thereafter having strained relations with their husbands and also that ever since none of those two ladies had gone back to their respective husbands. Jaafar accused claimed that gun (p.6) was his licensed gun which had been taken possession of by the police from his house soon after the registration of the case. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Jaafar accused stated as follows: ' "The P.Ws. Have made false statements due to enmity. I and my co-accused have been falsely implicated in this case at the instance of Abdul Razzaq P.W. Who was carrying on with my wife. My mother-in-law Mst. Daulat Bibi deceased and my wife Sughran Bibi were putting up with Abdul Razzaq P.W. All the relatives of the deceased and Sughran Bibi were fed up with them because of their immoral character. Mst. Daulat Bibi deceased was living on ill-gotten money undown on account of illicit relations. Mst. Sughran Bibi with Abdul Razzaq P.W. Mst. Sughran Bibi wanted to get divorce from me but I refused to divorce her. She wanted to marry Abdul Razzaq P.W. Who had already divorced his wife. The P.Ws. Were not present at the spot at the time of occurrence. It was an unwitnessed occurrence, which took place after sunset. Many relatives of Sughran and Daulat Bibi were joined as suspects. They, however, let off and the police investigated the case dishonestly and falsely challaned I and my co-accused in this case in connivance with the complainant party. I am innocent. I was not present at the time of occurrence at the spot."
' Zulfiqar accused also admitted the factum of the exchange marriages and the strained relations due to their breakdown. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Zulfiqar accused adopted the answer to that question given by Jaafar accused. All the three accused persons, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defence.
11. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Chichawatni convicted and sentenced Jaafar and Zulfiqar accused as noticed above and acquitted Muhammad Ameen accused. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
12. We have heard the learned counsel for the appellants, the learned Assistant Advocate-General for the State and the learned counsel for Mst. Sughran Bibi P.W. And have also gone through the record of this case with their assistance.
13. The learned counsel for the appellants has argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. He has maintained that Muhammad Anwar complainant (C.W.1) and Muhammad Akram (C.W.2) had not supported the prosecution's case and that the eyewitnesses produced by the prosecution did not inspire confidence. He has also argued that the eye-witnesses produced by the prosecution had also failed to receive material corroboration from any independent source. In the alternative he has submitted that, at any rate, the peculiar circumstances of this case did not warrant a sentence of death against the appellants. As against that the learned Assistant Advocate-General appearing for the State and the learned counsel for Mst. Sughran Bibi P.W. Have argued that the prosecution had successfully proved the guilt of the appellants to the hilt and that there was no mitigating circumstance available on the record so as to warrant reduction of the sentence of death passed against the appellants. The learned counsel for Mst. Sughran Bibi P.W. Has, however, stated that he has instructions not to press Mst. Sughran Bibi's revision petition seeking enhancement of compensation and fine ordered by the learned trial Court against the appellants.
14. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. It was a case of a daylight occurrence and three eye- witnesses had deposed against the appellants quite consistently. Mst. Sughran Bibi (P.W.4) had the stamp of injuries on her person to vouchsafe her presence at the place of occurrence during the incident. The fire-arm injuries sustained by her at her chest and face are such that they could, by no stretch of imagination, be termed as self-inflicted. It is true that Mst. Sughran Bibi (P.W.4) was not enjoying the best of relations with Jaafar and Zulfiqar appellants but the fact remains that Jaafar was still her husband and Zulfiqar's sister was still the wife of Mst. Sughran Bibi's uncle. In the circumstances of this case we are not ready to believe that Mst. Sughran Bibi would go to the extent of falsely substituting the present appellants for the actual culprits who had given serious fire-arm injuries to her and had murdered her mother within her sight. Immediately after the incident Mst. Sughran Bibi (P.W.4) had been transported to the hospital where she had arrived at 3- 45/4-00 p.m. And the F.I.R. Had also been lodged at 4-00 p.m. At the police station which was about ten Kilometres away from the place of occurrence. It had also come in the evidence that the police had in fact reached the place of occurrence at about 5-00 p.m. On that day.All this not only convinces us of the prompt lodging of the F.I.R. But also obviates the possibility of deliberations on the part of the complainant party for the purposes of false implication of the, appellants.
15. We have also found Mst. Sughran Bibi (P.W.4) and Mst. Tasleem Akhtar (P.W.5) to be quite natural witnesses as both of them resided in the same house with their mother Mst. Daulat Bibi deceased and the occurrence in question had undeniably taken place just outside their house. It was not even suggested by the defence that these witnesses did not live in that house. In this context we are also not unmindful of the fact that Mst. Taslim Akhtar (P.W.-5) was admittedly unmarried and she had no other closer relative to live with except her mother and sister. We have also taken note of the fact that the occurrence had taken place in the second week of November when people in the, villages usually sit outside and work in the sun. This is exactly what had been claimed by these witnesses. To us that acceptable claim had further confirmed their proximity with the d ceased as well as the place of occurrence. Although Mst. Taslim Akhtar (P.W.5) was a daughter of Mst. Daulat Bibi deceased and a sister of Mst. Sughran Bibi (P.W.4) yet she had no personal grudge against or animosity towards the appellants so as to falsely implicate them on the charge of murdering her mother and injuring her sister. The venom towards the appellants attributed to Mst. Sughran Bibi (P.W.-4) by the defence was either non-existent or surely less poisonous to her exte t. For all these reasons we have felt no reluctance whatsoever in placing implicit reliance on these two ladies as regards the main incident is concerned. They had made consistent and straightforward statements which have inspired our full confidence.
16. As regards Abdul Razzaq (P.W. 6), another eye-witness produced by the prosecution, it is noteworthy that he was an independent as well as a natural' witness of the occurrence. He lived in the neighbourhood of the complainant party and had also taken some land on lease nearby. He was not related to either party to this case and, thus, had no ostensible reason to falsely depose against the appellants. Although the defence had tried to suggest his interest in the whole affair yet those suggestions had failed to travel beyond mere verbal accusations which had effectively as well as emphatically been denied by all the relevant prosecution witnesses. However, due to his history of involvement in criminal cases and having remained in jail twice, we have felt ourselves a bit hesitant and slow in placing whole hearted reliance on his testimony.
17. Adverting to Muhammad Anwar complainant (C.W.1) and Muhammad Akram (C.W.2) we have noticed a deliberate attempt on their part to suppress the truth. Without in any manner condoning their conduct we have found the same to be understandable in the circumstances of this case.
Soon after the occurrence Muhammad Anwar complainant (C.W.1) proceeded to lodge a report in that respect with the police and that was a good thing that he did. Immediately after the occurrence Muhammad Akram (C.W.2) took the injured Mst. Sughran Bibi (P.W.4) to the hospital and that was truly good of him. Dr. Muhammad Saleem (P.W.1) had confirmed the fact that Mst.
Sughran Bibi was brought to the hospital by C.W.2. After all this was the least that these C.Ws. Could do at that time for their murdered Khala/Chachi and their seriously injured first cousin. But subsequently that milk of human kindness appears to have dried up in the C.Ws. And considerations for truth and justice were then overtaken by considerations to save the skins of their other close relatives, i.e, the appellants. It had come on the record that both the said C.Ws. Were not just the cousins of Mst. Sughran Bibi but they were also the cousins of Jaafar appellant. Apart from that they had some other relationship with Jaafar and Zulfiqar appellants also. Thus, their subsequent denials before the learned trial Court in respect of witnessing the occurrence or to have lodged the F.I.R. Are understandable, but surely not acceptable. It had been admitted by them that they had never complained before any authority qua a false F.I.R. Having been registered showing them as the complainant and eye-witnesses of the occurrence or regarding false implication of the appellants in the offence iri question. Thus, we have found that the prosecution was quite justified in giving up these C.Ws. As having been won over----won over not by greed or gain but by considerations of affinity and, if we may say so injustice.
18. The motive set up by the prosecution had provided ample corroboration to the ocular account in this case. The background of strained relations between the complainant party and the appellants on account of failed exchange-marriages between Jaafar appellant and Mst. Sughran Bibi on the one hand and between Mst. Amiran Bibi (Zulfiqar appellant's sister) and an uncle of Mst.
Sughran Bibi on the other hand was something which was admitted by both the parties to the case. Jaafar appellant and Zulfiqar appellant were not only cousins inter se but a sister of Jaafar appellant was also married to a brother of Zulfiqar appellant. Thus, community of interest and motivation between the two appellants was beyond doubt.
19. The recovery of a licensed gun from Jaafar appellant and its subsequent matching with a crime-empty recovered from the spot soon after the occurrence had also gone a long way in providing corroboration to the ocular account. The pistol recovered from Zulfiqar appellant during the investigation of this case had, however, remained unmatched with any crime empty. We have also noticed that Jaafar appellant had taken a stand that his licensed gun had in fact been recovered from him by the Police soon after registration of the F.I.R. But the same had been shown to have been recovered on a later date. That stand taken by Jaafar appellant further confirms that the complainant party knew from the beginning that Jaafar was one of the culprits who had perpetrated that offence, the recovered gun indeed belonged to him and that its subsequent matching with a crime-empty duly connected Jaafar appellant with the offence in question. In this context we have noticed that the crime-empties recovered from the spot soon after the occurrence had in fact been sent to the Forensic Science Laboratoty much before the recovery of that gun from Jaafar appellant and the defence had completely failed to disprove that assertion- by the prosecution. We have, therefore, found the said recovery from Jaafar appellant to be of substantial corroborative value.
20. The medical evidence produced by the prosecution has also furnished F full support to the ocular account as the same has confirmed the eye-witnesses statements about the time of occurrence, the weapons used, the seats of injuries and the distances from which those injuries had been caused.
21. For the reasons mentioned above we are convinced that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. Thus, we are minded to uphold their convictions recorded by the learned trial Court for offences under sections 302(b)/34 and 324/34, P.P.C.
22. We have also given our anxious consideration to the question of sentences to be passed against the appellants for the offences committed by them. In this context we have looked far and wide but could not find any factor or circumstance serving as a ground for mitigation of sentence under section 302(b)/34, P.P.C. As far as Jaafar appellant is concerned. He had committed a cold- blooded murder of his mother-in-law and had launched a murderous assault on his wife without any immediate provocation. He acted cruelly and brutally and targeted helpless ladies. Thus, in our view the wages of his crime of murder ought not to be anything less than death. The sentence of death passed against him by the learned trial Court is, therefore, upheld and confirmed. The order of the learned trial Court regarding payment of compensation by him is also maintained with the modification that in case of default of payment of the same he shall suffer six months' S.I. Instead of R.I. Jaafar appellant's conviction, sentence and order regarding payment of compensation under section 324/34, P.P.C. Are also upheld with the modification that in case of default of payment of compensation he shall suffer six months' S.I. Instead of R.I.
23. However, as regards Zulfiqar appellant's sentence under section 302(b)/34, P.P.C. We have noticed that although he also shared the motive with his co-convict Jaafar appellant yet his nexus with the motive was slightly remoter than that of Jaafar appellant. We have also found that the pistol recovered from his possession during the investigation of this case had not matched with any crime-empty recovered from the place of occurrence. Thus, despite being convinced of his participation in the offence in question, we, by way of abundant caution and deeming it to be in the interest of safe administration of criminal justice, set aside the sentence of death passed against him by the learned trial Court and substitute the same with a sentence of imprisonment for life. The order of the learned trial Court regarding payment of compensation by him is also maintained with the modification that in case of default of payment of the same he shall suffer six months' S.I. Instead of R.I. Zulfiqar appellant's conviction, sentence and order regarding payment of compensation under section. 324/34, P.P.C. Are also upheld with the modification that in case of default of payment of compensation he shall suffer six months' S.I. Instead of R.I. His sentences of imprisonment shall run concurrently. He shall also be extended the benefit under section 382-B, Cr.P.C.
24. For what has been observed above Criminal Appeal No,152 of 1995 is hereby dismissed to the extent of the appellants' convictions under sections 302(b)/34 and 324/34, P.P.C. And partly allowed to the extent of their sentences in the terms mentioned above. The learned counsel for Mst.
Sughran, Bibi P.W. Has not pressed her Criminal Revision No,162 of 1995 and the same is, therefore, dismissed as having not been pressed.
25. As the sentence of death passed by the learned Trial Court against Jaafar appellant has been upheld and confirmed by us, therefcre, Murder Reference No,164 of 1995 is hereby answered in the affirmative to his extent. However, as the sentence of death passed by the learned Trial Court against Zulfiqar appellant has not been confirmed by us, therefore, Murder Reference No,164 of 1995 is hereby answered in the negative to his extent.
' Death sentence of Jaffar appellant is Confirmed.
' Death sentence of Zulfiqar appellant is Not Confirmed.