RAO IQBAL AHMED KHAN, J.- On the basis of first information report (Ext. PD) got recorded by Muhammad Naseem son of Ghulam Hassan, on 7.12.1990 at about 8.45 P.M., at police station Industrial Area, District Islamabad, regarding the commission of crimes punishable under Sections 302/324/148/149 PPC, formal HR No. 213 (Ext. PD/1), was recorded and as a consequence investigation having been conducted and report under section 173 Cr.P.C., having been submitted against accused Noor Elahi, Muhammad Yaqoob, Muhammad Arshad, Muhammad Khalil, Muhammad Afzal and Rab Nawaz, for the murders of Muhammad Pervaiz, brother of the informant and Wasif Mahmood, a relation of the informant, the trial was held by learned Additional Sessions Judge, Islamabad and vide judgment dated 21.3.1992. Muhammad Yaqoob accused appellant was held to be guilty of murder of Wasif Mahmood and convicted under Sections 302/34 PPC and sentenced to death subject to confirmation of death sentence by this Court and a fine of Rs.
25,000/- and in default to undergo two years R.I. He was also convicted under Sections 302/34 PPC for causing the death of Muhammad Pervaiz and sentenced to death, subject to confirmation by this Court and a fine of Rs. 25,000/- and in default whereof to under gone two years R.L The said accused was further convicted for making murderous assault on the complainant and convicted under sections 324/34 PPC and sentenced to ten years R.L, and a fine of Rs. 10,000/- and in default of payment of fine to undergo one year R.L, further. Muhammad Yaqoob, accused was further convicted for launching murderous assault on Ayaz, PW and sentenced to ten years R.I., with a fine of Rs. 10,000/- and in default of payment of fine to further undergo R.L, for one year.
2. The accused Noor Elahi was convicted under sections. 302/34 PPC for the same crimes that of causing murder of Wasif, to life imprisonment and a fine of Rs. 25,000/- and in default of payment of fine to further undergo two years R.I. He was also convicted for the murder of Muhammad pervaiz and sentenced to life imprisonment and a fine of Rs. 25,000/- and in default of payment of fine to two years R.I. He too was convicted under sections 324/34 PPC for causing murderous assault on Muhammad Naseem, complainant and fine of Rs. 10,000/- or in default of payment of fine one year R.I. He was also convicted for causing murderous assault on Muhammad Ayaz PW and sentenced to five years R.L, and a fine of Rs. 10,000/- and in default of payment of fine to undergo one year R.I.
3. The fine imposed against Muhammad Yaqoob convict-appellant for murdering Wasif and Pervaiz, if recovered, was ordered to be paid to the extent of half as compensation to the legal heirs of the accused in equal share and fine imposed for causing injuries to Naseem and Ayaz, PWs, if realised was ordered to be paid to the extent of half as compensation to both the said PWs in equal share.
4. The convicts-appellants find this appeal against the said conviction and sentences and the learned Sessions Judge has submitted Murder Reference No. 207/92 for confirmation of the death sentence.
5. There is also a Criminal Revision No. 71/92 for enhancing the sentence of Noor Elahi, convict- appellant from life imprisonment to death and for awarding of compensation as against both the convicts under Section 544-A Cr.P.C., to the heirs of the two deceased.
6. Accused Arshad, Khalil, Afzal and Rab Nawaz were acquitted.
7. Learned counsel for the appellant stated that Noor Elahi, convict- appellant died in November, 1997. Therefore, the appeal to the extent of Noor Elahi has abated and so the revision for enhancement etc., of sentence awarded to Noor Elahi. As regards the revision pertaining to Yaqoob, convict-appellant, no body has come to pursue the same as, as per order dated 23.6.1997, learned counsel for the complainant Mr. Ilyas Siddiqui, Advocate, was recorded to be busy before the august Supreme Court; but this conduct was not appreciated as it was expected of him that he would send intimation well in time to this Court. Nevertheless, on payment of Rs. 1,000/- as cost, the case was adjourned to 18.3.1998. Again, learned counsel for the complainant/revision petitioner, was not available, therefore, the case could not be heard and adjourned to 14th May, .1998. On that day, learned counsel for the complainant could not come to attend this revision. The case was thence adjourned to three more dates and ultimately heard on 11th and 12th August, 1998, but the learned counsel for the complainant/revision petitioner did not appear. The revision petition is, therefore, dismissed for that reason.
8. Prior to this judgment by the learned Trial Court, learned Judge for Speedy Trial had held the trial and convicted the appellants on-29.9.1991, but the August Supreme Appellate Court, vide judgment dated 30.10.1991, set aside the judgment delivered by the learned Court for Speedy trial and ordered the trial of the accused before the learned Additional Sessions Judge, Islamabad, before whom it was originally pending for trial.
9. We propose to dispose of the appeal and the Murder Reference vide this judgment.
10. The facts of this case are that the complainant's brother Muhammad Ayaz had taken house No. 783 situated in Sector-1-10/4, Islamabad on root from Noor Elahi-convict-appellant (now deceased) and the same was occupied by his family and he himself was working in Dubai. Noor Elahi insisted on vacating the house some days prior to the occurrence. The root had been paid, as per FIR, upto lst of December, 1990. Never the less, the tenants sought 5-6 days time more to vacate the bungalow.
11. On the day of occurrence, while they (complainant's family) were shifting their luggage, the owner Noor Elahi, his son Yaqoob and another person (not known to the complainant) came to the house whereupon the complainant's family told them that they (complainant's family) were vacating the house themselves and that they (accused group) had entered the bungalow with their men without any justification. This was taken ill by Noor Elahi and his son and they extended threats of dire consequences and left; that by the evening the entire luggage was removed from the bungalow; that at about 5.45 p.m., complainant alongwith Wasif Mahmood (since murdered), Muhammad Ayaz PW., son of Muhammad Iqbal, Muhammad Nasir son of Muhammad Bashir, Amar Iqbal son of Muhammad Iqbal, relations, Muhammad Pervaiz (since murdered) younger brother were standing in front of bungalow No. 849 Sector-I/10-4 on the left side of the road; that Noor Elahi son of Waris (now deceased) his son Muhammad Yaqoob (appellant) armed with piste] alongwith for unknown persons came raising ' Lalkaras' and Noor Elahi in a loud voice exhorted his son Yaqoob that all of them be killed; that Muhammad Yaqoob took out pistol from his Dub (fold of loin cloth) and first find at Wasif hitting him at his chest and then find on the person of Pervaiz which hit him on his belly. Both Wasif and Muhammad Pervaiz fell on the ground on receipt of the fire injuries and thence Yaqoob find one after the other and one bullet hit him on the front-right-side and one hit Muhammad Ayaz on his left shoulder; that afterwards the assailants left the place raising 'Lalkaras'. The complainant and Muhammad Pervaiz were taken to General Hospital, Rawalpindi whereas Wasif Mahmood and Ayaz were taken to Holy Family Hospital Rawalpindi hy their relations that Muhammad Pervaiz and Wasif both died in the .Hospital due to the said injuries inflicted by the accused.
12. The learned trial Judge put the substance of accusation to the accused for having caused the murder of above said person and having committed crimes under Sections 302/149 PPC and Sections 324/34 PPC but they pleaded not guilty to the charge and claimed trial.
13. At the trial, the prosecution produced Dr. Muhammad Shahbaz. C.M.O.. Holy Family Hospital.
Rawalpindi, who had medically examined Muhammad Ayaz injured eye-witness and proved the injuries on his person. The injuries on the person of Ayaz were as follows:- "(1) Wound of entry at left chest on Posterior aspect edges inverted about 1 c.m. Diameter circular in shape-17 c.m. Left lateral to vertebral column and about 4 c.m. Above the tip of left scapula-blood slight coze.
(2) Wound of exit at anterior side of the chest wall on left side edges everted 11 c.m. Above left nipple in the same line-circular in shape blood cozing.
(3) No surgical emphysema.
Injury was caused with fire arm within 1/2 hour. The injuries were kept under observation, which were however, later on declared simple as per report received from Registrar Surgical Unit. They copy of MLR was delivered to the Police. Ex. P.A. Is the correct carbon copy of the MLR which is in my hand writing and bearing my signature."
14. Dr. Haroon ljaz, General Hospital Rawalpindi, who had medically examined Muhammad Naseem son of Ghulam Hussain injured eye-witness- complainant appeared as PW. 2 and proved injuries on his person, which were as under:-
(1) A wound of entry at left 7th intercoastal space. 5 cm in diameter, 2.5 cm from mid axillary line with blackening around 2.5 cm in diameter with corresponding blackening of shirt and vest. Wound of exit at left side back medial to left angle of scapulae. 6 cm in diameter.
The injury was kept under observation, the patient was referred to Surgical Unit 1 for treatment. The injury was caused with fire arm within duration of 3 hours,"
This injury was declared grievous on 22.1.1991. The copy of MLR Ext. PB was sighed by him.
5. Dr. Muhammad Arshad Khan, PW conducted postmortem examination on the dead body of Muhammad Pervaiz son of Khulam Hussain and Wasif Mehmood son of Mehmood-ul-Hassan. Is deposition about dead body of Pervaiz is as follows:- "EXTERNAL APPEARANCE Young adult of average physique and height consistent with the age, hypostasis on the back with contact flattening on shoulder back and buttocks. Rigour mortis fully and completely developed, wearing Cream colour Jarsi, Grey and green sweater, light blue Shalwar and Qamiz; all these clothes were cut in the Hospital.
INJURIES Wound of entry 0.4 c.m., diameter; no blackening and charring on the front of chest, left side.
Distance from the left nipple 7 c.m. And mid line of the chest 3.5. c.m.
2. Incise wound 3 c.m. x 1.5 c.m. On left lateral side of the chest. Distance from left nipple 9 c.m.
3. Wound of exit 0.7 c.m. On right lumber back. Distance from spine 9 c.m. And right iliac crest 11 c.m.
INTERNAL EXAMINATION 6th rib just near to the sternum from left side fractured.
(2) Left heamothrox about 1500 c.c. Blood. Left lung lower lobe perforated through and through.
Hemopericardium, base of paricardium ruptured, apex of heart bruised. Heamoperconium, diaghram perforated, liver, dons. 1 surface of left lobe perforated. The visceral surface of right lobe shattered. Right kidney shattered. Rest of the viscera were healthy.
OPINION In my opinion, the cause of death is due to die injuries on vital organs, lung, heart, liver and kidney and such injuries mentioned are sufficient in ordinary course to cause death and the injuries mentioned were ante mortem.
REMARKS Photographs of the injuries taken during the post mortem examination. Probable time between injury and death was immediate. Time between death and post mortem examination was 17 to 18 hours. Clothes Jarsi P.I, P.2, Sweater P.3, 'Shalwar' P.4 and Shirt P.5 were handed over to police. P.I, P.2, P.3 and P.5 were found having bullet holes which were encircled; P.M. No.' was given on them and signed by me. Ext. P.G., is the correct carbon copy of my Post Mortem report; Photographs of the dead body of Pervaiz are P.H., P.H/1 to Ext. P.H/3, which were taken during the post mortem. Later on, on inquiry by the police, regarding injury No. 2 of Muhammad Pervaiz deceased, 1 opined that injury No. 2 was due to the therapeutic incision. My report regarding this query is Ext. P.J".
I6. On the same day same doctor conducted postmortem examination on the dead body of Wasif Mehmood son of Mehmood-ul-Hassan. He deposed as follows:- EXTERNAL APPEARANCE Young man of good health and physique. Black beard and mustaches. Hypostasis on the back, which contact flattening on shoulder backhand buttocks. Rigour mortis completely developed.
INJURIES
(1) Wound of entry 0.5 c.m. Diameter on the right chest 7 c.m. From the spine 8 c.m, from the male of scapula. No burning, no blackening,
(2) Wound of exit T c.m. Diameter on chest front at Upper third of sternum. Distance from right nipple 11.5 c.m. And from left nipple 11 c.m. And 5 c.m, from the angle of manubrium.
INTERNAL EXAMINATION 4th rib cartilage fractured on left side of sternum. Right heamothorax about 1500 c.c. Blood. Left heamothrax 400 c.c. Blood. Right lung perforation at lower lobe, track through the lung exit at hilum.
Left lung bruised medial edge Upper and of pericardium ruptured and aorta ruptured.
Rest of the viscera healthy.
OPINION In my opinion, the cause of death is due to the injury mentioned as it injured vital organ (both lungs, pericardium and aorta). This injury is sufficient to cause death. Injury mentioned is ante- mortem. Photographs taken during the postmortem examination and handed over to the Police.
The clothes of the deceased were bearing bullet holes, which were encircled and signed by me and handed over to the police. Probable time between injury and death was immediate. Time between death and post mortem was 17 to 18 hours. Ext.PK is correct carbon copy of my post mortem report which is in my hand and bearing my signature. Photographs Ext. P.L.. Ext.PL/1 and Ext.PL/2 of dead body of Wasif Mehmood were taken during postmortem examination".
17. Muhammad Naseem. Complainant eye-witness appeared as PW. 8 fully corroborated his statement Ext.PD and another eye-witness PW.9, who too proved it. Allah Bakhsh, ASI, who had recorded formal FIR Ext.PD/1 on the basis of statement Ext.PD. Appeared as PW.3.
18. Muhammad Asghar, S.I, in whose presence Wood alongwith empties Ext. P. 11/1-4 were taken from the spot appeared as PW.6. The Memo., prepared was Ext.PN. He also joined the investigation on 8.12.1990 once again and Yaqoob and Noor Elahi were arrested in his presence and they led to the recovery of pistol Ext. P. 12 and licence P. 13 from the house of one of his relative Nazir. The Pistol was made into sealed parcel and memo prepared regarding that was Ext.PO. Muhammad Munir.
PW.7, had prepared the injury statements of Muhammad Nasim and Pervaiz, PWs, Ext.PQ and Ext.PR.
19. Nusrat Ali, Constable No. 1311 appeared as PW.9 and had taken blood-stained vest Ext. P.15 of Nasim injured and his shirt Ext. P. I6 which he handed over to Muhammad Saqlain vide Memo. Ext.PS on 7.12.1990. On the same day. He had taken blood-stained clothes Ext. P. 17, Coat Ext. P. 18, shirt Ext.
P. 19 of Ayaz injured PW and the same were handed over to S.L, Saqlain and regarding that memo., was prepared which is Ext.PT signed by him.
20. Muhammad Saqlain Shah, S.L, deposed in the Court as PW.
11. The of facial had, on the information of the occurrence, gone to the hospital where he recorded the statement of Nasim PW Ext.PD.
21. Muhammad Nazir, Inspector Police had collected the blood-stained soil and also recorded the statement of Amar Iqbal, Nasir and Raja Asghar, S.I. He also had prepared the rough sketch of the spot of occurrence and recoveries which is Ext.PO/1. He was also a witness to the preparation of the notes by the draftsman on 10.12.1990 and thereafter, on 21.12,1990 which are Ext.PY/PY/1 and on which the red notes were in his hand and bore his signatures.
22. Draftsman appeared as PW. 14,23. PW. 15, Farrukh Nadeem, Tehsildar, Islamabad, had conducted identification parade in this case.
24. The learned Prosecutor had given up Aamer Iqbal, Muhammad Nasir, Muhammad Ehsan, Zafar Iqbal, ASI, as Unnecessary. He, however, tendered in evidence report of the Chemical Examiner PAA and PBB and that of the Serologist Ext. PCC and PDD and that of Forensic Science Laboratory Ext. PEE and plan of the house No. 849 Ext.PFF.
25. In his statement under Section 342 Cr.P.C., Yaqoob accused stated that he had find only one shot on each one of them (deceased) under sudden and grave provocation on seeing his old father being caught hold of and slapped by Wasif;
26. In the light of the statement of the accused, learned counsel for the appellant confined his arguments to the plea of sudden and grave provocation and on that basis prayed that it was not a case of capital punishment. He contended that
(i) the PWs and others had disgraced his father (ii) he (appellant) apprehended attack by the complainant party and had they been successful in snatching the pistol from the appellant they would have killed the appellant.
27. Learned counsel, no doubt, conceded that the appellant exceeded the right of private-defence but maintained that he should not have been punished to death he having acted under sudden and grave provocation and in such like case the Courts awarded sentence of few years. To support him, learned counsel for the appellant placed reliance on 1992 SCM R 2047 and 1996 S.C. 274.
28. We have minutely gone through the entire record and perused case law referred to by the learned counsel. 1996 S.C., 274 relates to a case where the husband had seen the deceased engaged in sexual act with his wife and, therefore, done him to death. Such was not the case here hence that is not applicable to the facts of this case. The facts of the other case law are also not identical with the facts, of this case. The plea of the learned counsel that actually the grievance in this case was to the complainant party as they were asked to vacate the house and as such there was no occasion for the landlord (accused) group to attack them, is not convincing as, as per the contents of the FIR, the tenants i.e., complainant group had taken exception to the entry of the owners in the house when the tenants family was shifting the luggage and as per the complainant they had started vacating the house themselves. The tenants having taken exception to the entry of the owners in the house resulted in resentment to the accused group whereupon threats of dire consequences on behalf of the owners to the tenants were made and after the house was vacated the accused group pursuant to the said threat attacked the complainant party. The reasoning assigned by the learned counsel for the appellant that since the house was got vacated by the accused group from complainant, they (complainant group) had planned to attack the accused party for that reason is not convincing as once the house was vacated by the tenants they had no reason to fight with the landlords. Besides, it is apparent from the fact that the appellants was duly armed with fire-arms, therefore, it were the accused group who had planned the attack on the complainant group and if the intention of the complainant party was to attack the accused group, they should have made some preparation for that which was missing here. Since they were empty-handed, whereas the landlord group i.e., accused group were duly armed, it is indicative of the fact that it were the appellants who had planned to attack the complainant and his companions. The number of persons injured, i.e., two PWs eye-witnesses and two deceased and the nature of injuries inflicted on them also demonstrates amply as to what the intention of the appellants-accused group was. The accused did not appear as his own witness i. e., was not prepared to make statement on oath, nor was their any defence desired to be produced. We are, therefore, not convinced of the arguments advanced by the learned counsel for the appellant that it was a case of grave and sudden provocation and, therefore, appellant did not deserve the punishment awarded i.e., death sentence. His plea, therefore, that the punishment be reduced from death to some years sentence is not at all sound. Perusal of the testimony of expert witnesses i.e. Doctors reproduced earlier makes it quite manifest that it was a pre-meditated and planned attack by the accused which resulted in death of two human beings and injuries to two human beings. The case of the prosecution is established beyond any shadow of doubt. Learned trial Judge, therefore, rightly convicted the appellant. There was no mitigating circumstance at all. It was manifestly a case of serious nature involving two murders and injuries to two persons, therefore, we are not persuaded to agree to the reasoning of the learned counsel for the appellant.
Consequently, the conviction and sentence is upheld and appeal is dismissed. Death sentence CONFIRMED.
As per earlier observation Criminal Revision also dismissed for the reason given. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.