ZAFAR PASHA CHAUDHRY, J.- Muhammad Afzal appellant, stands convicted under Section 302 PPC on two counts for the murder of Muhammad Bashir and Mushtaq Ahmed deceased. He was sentenced to death on two counts and find Rs.20,000/- on each count in default in payment thereof to undergo R.I. For three years on each count. He was also ordered to pay a compensation of Rs.50,000/- on each count to the legal heirs of deceased Muhammad Bashir and Mushtaq Ahmed. The appellant challenging his conviction and sentence find this Criminal Appeal No.930/1992. Murder Reference No. 479/1992 has also been submitted for confirmation of the sentence awarded by Mr. Nazeer Hussain Awan, learned Sessions Judge, Mianwali on 31.10.1992.
Both the Criminal Appeal and Murder Reference have been taken up together and are being disposed of by this judgment.
2. The prosecution case in brief as revealed from the statement of Ghulam Hussain PW-1 made at P/S Kundian District Mianwali vide Ex.PA, is that the complainant was a retired Cleaner Master. On 5.10.1998 at about 8.30 a.m. He left his house alongwith Muhammad Bashir his brother and Mushtaq Ahmed (both deceased) to proceed to Mianwali.- At about 8.45 a.m. When the complainant Ghulam Hussain alongwith Mushtaq Ahmed reached in front of the shop of Ramazan barber, Muhammad Bashir who was a few paces ahead of them reached the shop of Muhammad Nawaz.
In the meanwhile, Muhammad Afzal appellant armed with Churra reached there and raised lalkara that as to why his relation Mst. Halima widow of Muhammad Hanif had been forcibly married by him against the will of the relations. Simultaneously, he inflicted Churra blows on abdomen, left side of the chest, left side of head and thumb of the left hand. Bashir on receipt of the injuries fell down.
The complainant alongwith Mushtaq Ahmed came forward to apprehend Muhammad Afzal but he fled away towards North brandishing his Churra. He was chased upto few karams. Mushtaq Ahmed apprehended him and held him in Japha in front of a tyres shop located towards North. The appellant inflicted a Churra blow on the back of his left shoulder from over his body on which Mushtaq Ahmed fell down. Ghulam Ahmed and Roshan Khan PW-2 who were present nearby, after witnessing the occurrence reached the spot but Muhammad Afzal while waiving his Churra made his escape and fled towards North. Mushtaq Ahmed succumbed to the injuries there at the spot.
Bashir who was in precarious condition was carried in a wagon to Mianwali hospital. The matter was reported at the Police Station on the same day i.e. 5.10.1998 at 9.00 a.m. Vide F.I.R EX.PA.
3. The motive was stated to be that Bashir deceased about nine or ten years prior to the occurrence had forcibly married Mst. Halima widow of Muhammad Hanif against the consent of the elders, on account of which Muhammad Afzal had a strong grievance. Muhammad Bashir also subsequently expired in the hospital on account of the injuries caused by the appellant.
4. The statement was recorded by Muhammad Sarwar Khan SI/SHO PW 15. After recording EX.PA Muhammad Sarwar Khan SI/SHO proceeded to the 'spot. He prepared injury statement and inquest report EX.PL and EX.PM respectively of Mushtaq deceased and dispatched the dead body to the mortuary for his .'post mortem examination. He secured blood stained earth from the place of occurrence. On receipt of the information about the death of Muhammad Bashir, he visited the D.H.Q. Hospital. Mianwali where the dead body of Bashir deceased was lying. He prepared injury statement EX.PO and inquest report EX.PQ and c. ^patched his dead body for post mortem examination. After the post mortem examination he took into possession the last worn clothes of the deceased persons. He made a search for the accused person but he was not available. He got prepared a scaled site plan in duplicate from the Draftsman. He arrested the appellant on 14.10.1998. The appellant while in police custody led to the recovery of blood stained dagger P-7 which was sealed into a parcel vide memo EX.PG. On completion of the investigation he submitted challan against the appellant.
5. In order to prove its case, the prosecution examined fifteen witnesses. Dr. Muhammad Khan was examined as PW-14 who stated that Dr. Muhammad Mumtaz Khan, Medical Officer, D.H.Q. Hospital, Mianwali had left for America and as such was not available. He identified the hand-writing and signatures of the said Doctor on post mortem reports of both Mushtaq and Muhammad Bashir.
(>. PW-1 Ghulam Hussain is the complainant. He is the eye-witness. He reiterated the statement already made by him in EX.PA. He also deposed about motive. The next witness is Roshan Khan PW-
2. He made statement absolutely in line with the statement of the complainant. Both the witnesses were subjected to cross-examination but they stood the test of cross-examination. Nothing damaging or fatal to the prosecution could be elicited from their statements. PW-3 is a formal witness who testified the securing of blood stained earth. PW-4 identified the dead bodies of Mushtaq Ahmed and Bashir at the time of autopsy. PW-5 Mirza Zaheer- ud-Din is the Draftsman.
PW-6 Muhammad Aslam, Constable, PW-7 Sardar Khan, PW-8 Muhammad Iqbal, Constable, PW-9 Habib Ullah, Constable, PW-10 Shah Nawaz ASI and PW-11 Mati-ur-Rehman, H.C. Are formal witnesses and testified the various acts performed by them during the course of investigation. PW- 13 Muhammad Hassan, Constable is again a formal witness. PW-15 Muhammad Sarwar Khan, Inspector is the Investigating Officer. Various steps taken by him during investigation and the functions performed by him have already been detailed above. Thereafter,, the learned prosecutor tendered in evidence the reports of Chemical Examiner EX.PR and EX.PS and that of Serologist EX.PT and EX.PU and with that closed the case for the prosecution.
7. The appellant was examined under Section 342 Cr.P.C. He denied the various allegations levelled against him. He also denied the factum of recovery and in answer to Question No.7, as to why this case against him, he made the following reply:- "I was present at the shop of Muhammad Aslam Cobbler. Bashir and Mushtaq both deceased persons came there. There was a brawl in between myself and the deceased persons over the polishing of the shoes. Muhammad Bashir taunted at me saying that he had forcibly abducted and kept Mst. Halima his relative and that he had become our Damad. This fact provoked me. I lifted the appliance of the cobbler from his shop and thereafter I lost my temper and do not know the nature of the act committed by me."
8. The learned counsel for the appellant has argued that both the eyewitnesses i.e. Ghulam Hussain PW-1 and Roshan Khan PW-2 were chance witnesses and they were also inimical towards appellant, therefore, their testimony cannot be relied upon unless materially corroborated by some independent evidence; that according to the prosecution the occurrence took place near shops of Muhammad Ramazan, Barbar and Muhammad Nawaz, Sweet-meat dealer, since they were important witnesses the prosecution should have examined them, since the same has not been done the prosecution version becomes doubtful and not trustworthy ; that since the prosecution has not come forward with the true version of the incident, the defence version as has been put forward by the appellant in his statement should be relied upon. According to him if both the prosecution version and the defence version are placed in juxta position, the defence version sounds to be more reasonable than the prosecution version and lastly that the appellant acted under grave and sudden provocation, therefore, his case is covered by Section 302(c) PPC and does not call for imposition of extreme penalty of death. The learned counsel for prosecution opposed and controverted the submissions made by the learned counsel for the appellant. It is submitted and maintained that the appellant has committed double murder, therefore, he is not entitled to any leniency and the prosecution has established the guilt of the accused appellant beyond any shadow of doubt by producing independent witnesses who have no ill-will and malice against the appellant to falsely implicate him. They being truthful witnesses, their testimony should be explicitly relied upon and the conviction as well as the sentence recorded against him should be up-held and maintained.
9. We have considered the arguments and perused the record with the help of learned counsel for the parties.
10. The prosecution version has been furnished by Ghulam Hussain PW-1 and Roshan Khan PW-2.
Although both the witnesses are related to the deceased Muhammad Bashir yet nothing tangible has come on the record to hold that the witnesses have falsely implicated the appellant. Both the witnesses have made consistent statements and they have corroborated each other on all material points. Their evidence is also supported by the medical evidence. One extremely important aspect has not been adverted to by the learned counsel that the veracity of the witnesses cannot be doubted for the reason that they did not make any attempt to falsely implicate or rope in any innocent person. Two persons have been murdered and if the PWs wanted they could have involved more persons as accused, had they any malice or ill-will against the accused party. The version also finds support from the fact that the occurrence took place at 8.45 a.m. And the incident was reported at Police Station which is located very close to the place of occurrence only fifteen minutes thereafter i.e. At 9.00 a.m. Since the matter was reported without any loss of time, had the witnesses not seen the occurrence, there was no possibility of lodging report with such promptness. The report was made at the Police Station, that too indicate that the complainant and the PWs were present at the place of occurrence -and had witnessed the incident.
11. The argument that Muhammad Ramazan or Muhammad Nawaz shop keepers in the Bazar have not been examined as witnesses does not in any manner damage the prosecution case. It is common knowledge that normally people avoid to stand witnesses and do not come forward to make statement lest they may not earn enmity from either party. The enmities and party factions in between the various factions of the tribes is more deep and intense in Mianwali. Non production of these two witnesses ns such" does not in any manner create doubt in the prosecution case or no adverse inference can be drawn from that. On the contrary, it stands established that the incident was not un-witnessed. As it has occurred in open Bazar as such there is no chance of false implication of any innocent person. Passing through Bazar or to be present at the place of occurrence is routine matter with the inhabitants of the locality, therefore, presence of the complainant and Roshan Khan PW-2 cannot be accepted as un-natural and the witnesses cannot be treated to be chance witnesses.
12. The learned counsel, however, has argued with vehemence that both the versions if kept in juxta position, the defence version is more plausible and acceptable. According to him the motive as set tip by the prosecution cannot be accepted. Mst. Halima the relations of the appellant had married 9/10 years before, as such there was no occasion to commit murder on that score. Something must have immediately happened before the occurrence which according to. The appellant is that the deceased Bashir had taunted the appellant which provoked him and by losing self control he inflicted the injuries, to which ultimately both the deceased persons succumbed to. Before appraising the defence version one aspect has to be kept in mind that murder of Bashir Ahmed was committed at point No.1 in the site plan whereas Mushtaq Ahmed was injured and killed at point No.3 which is at quite a considerable distance. The distance in between the two points is about 149 feet. According to law the version put forward by an accused person under Section 342 Cr.P.C, has either to be accepted or rejected in toto. According to appellant's statement when he was present at the shop of Muhammad A si am* Cobbler, Muhammad Bashir and Mushtaq Ahmed both the deceased persons came there. A brawl in between the appellant and deceased persons over polishing of the shoes took place. Muhammad Bashir taunted that he had abducted Mst.
Halima, the deceased being her relation becomes his Damad, on which, the appellant got provoked and lost his self control. Even if this statement is accepted, taunt had been made only by Muhammad Bashir and he, could have a grudge only against Muhammad Bashir but not that he would follow Mushtaq Ahmed upto about fifty yards and thereafter to inflict injury on his person and kill him. The version, therefore, does not commensurate with the facts and circumstances of the case. It cannot be accepted as such in toto. Nevertheless, the fact remakes that even according to the prosecution the murder was committed as a sequal to the abduction of Mst.
Halima by Bashir deceased. Since the murder was committed to vindicate family honour, therefore, the same can be treated as a mitigating and extenuating circumstance for award of lesser penalty. Even if the defence version is not accepted the motive set up by the prosecution does furnish a ground for imposition of lesser penalty as far as the murder of Bashir is concerned.
13. While appraising the evidence and circumstances relating to murder of Mushtaq Ahmed deceased, we find that it is not possible to hold that there was any mitigating circumstance qua his murder. Although the learned counsel has argued that the injury was inflicted at the back of Mushtaq Ahmed while he was holding the appellant in his clasp. Since the appellant apprehended threat to his life, therefore, he was justified to inflict injury on Mushtaq Ahmed to get him released. It is, therefore, submitted that the intention of the appellant was not to commit the murder. He had a right to inflict injury to save his person. The learned counsel, however, seems to be unaware of provisions of Section 59 Cr.P.C, which authorises any person to apprehend an accused person who in his sight commits a cognizable offence. The appellant had committed the murder of Bashir, therefore, Mushtaq Ahmed after having witnessed the same had every right to catch hold of the appellant. No right to self defence was available against Mushtaq. Infliction of injury at the back of chest which is a vital part of the body was not at all justified. The injury was inflicted with such a force that it pierced through a vital organ of body and Mushtaq Ahmed succumbed to the same instantaneously at the spot. The contention that the appellant did not intend to commit the murder does not have much substance. The intention has to be inferred objectively froth the act committed by an accused person. If an accused inflicts an injury with such a force on a vital part then it would be inferred that he would have intended murder. This view is further justified by the fact that victim succumbed to the same then and there. The accused appellant committed two murders one after the other, therefore, there is no extenuating circumstance for imposition of lesser penalty qua the murder of M. Ishtaq Ahmed deceased.
14. The upshot of the above discussion is that the conviction of appellant qua the murder of Muhammad Bashir appellant under Section 302 PPC is up-held and maintained, however, his sentence of death is reduced to that of imprisonment for life. The conviction for the murder of Mushtaq Ahmed deceased under Section 302 PPC is maintained and in absence of any mitigating circumstance, the sentence of death awarded by the learned trial Judge is also up-held and confirmed. The remaining sentences i.e. Of fine of Rs.20,000/- or in default thereof to undergo three years R.I. On two counts and the award of compensation of Rs.50,000/- to the legal heirs of both the deceased persons on two counts are also up-held. The learned trial Judge has omitted to specify the sentence in default of payment of compensation. It is, therefore ordered to undergo SI for six months of each. Count for non-payment of compensation.
Murder Reference as well as Criminal Appeal are dispoded of in the above terms.