' MUNAWAR AHMED MIRZA, J.---This petition for leave to appeal is directed against common judgment, dated 12th August, 1998 passed by Lahore High Court, Rawalpindi Bench in Criminal Appeal No,54 of 1992, Murder Reference No,207 of 1992 and Criminal Revision No,71 of 1992.
2. Occurrence had taken place on 7th December, 1990 at 5-45 p.m. In the area of Sector 1-10/4 about 3 k.Ms. On south-western side from Police Station Industrial Area, Islamabad. Formal F.I.R.
No,213 was registered with said police station under section 302/307/148/149, P.P.C. At 8-45 p.m. On the basis of Fard-e-Bian (Exh.P.D.) of P.W.8 Muhammad Nasim recorded by P.W.11 S.I. Muhammad Saqlain Shah.
3. Facts shortly stated are that brother of complainant namely Muhammad Ayaz, who was employed at Dubai had obtained House No,783, situated in Sector 1-10/4, Islamabad, from Noor Elahi father of petitioner. The landlord was pressing above tenant to vacate the premises. After negotiations complainant and family of his brother agreed to vacate the house by 1st December, 1990. On said date landlord approached and pressed for vacating the house. However, with great difficulty six more days were allowed for said purpose. It is the case of prosecution that on the day of occurrence, the occupants were shifting their luggage when during day time landlord Malik Noor Elahi alongwith petitioner and another person came there and without permission entered the house. The members of the family objected telling them that they should have obtained permission because womanfolk and children were still inside whereupon petitioner and his father Noor Elahi were annoyed and threatened them of dire consequences. However, much before evening, the occupants vacated the house of petitioner's father. At about 5-45 p.m. Complainant alongwith his relations Wasif Mehmood, Muhammad Ayaz son of Iqbal, Muhammad Nasir Aamar Iqbal and his brother Muhammad Pervez, were standing outside the House No,849 Sector 1-10/4 where family of his brother had just shifted that petitioner Muhammad Yaqoob armed with pistol alongwith his father Noor Elahi and four other persons arrived there raising Lalkaras. Noor Elahi cried out that they should all be killed. Petitioner took out loaded pistol from his bandoleer and fired first shot upon Wasif Mehmood which struck on his chest. He fired second shot at Muhammad Pervez hitting his abdomen. Both Wasif Mehmood and Pervez fell down on receiving fire-arm injuries. Thereafter, petitioner also fired at the complainant on right rib and fourth fire shot hitting Muhammad Ayaz son of Muhammad Iqbal on his left shoulder. They all raised cries which attracted few people but all the accused managed to escape issuing threats. Complainant and Muhammad Pervez were removed in an injured condition to Rawalpindi General Hospital, whereas Wasif Mehmood and Muhammad Ayaz were shifted to Holly Family Hospital, Rawalpindi.
Muhammad Pervez brother of the complainant and Wasif Mehmood succumbed to injuries in the hospital. Si Muhammad Saqlain Shah on receiving information reached Rawalpindi General Hospital where statement of complainant (Exh.P.D.) was recorded which was forwarded for registration of F.I.R., to Police Station Industrial Area. During investigation apart from petitioner, his father Noor Elahi, the co-accused Muhammad Arshad, Muhammad Khalil, Muhammad Afzal and Rab Nawaz were also interrogated. On 8th December, 1990, petitioner led to the recovery of his licensed pistol vide Exh.P.D. After completion of investigation the above six accused were sent up for trial before Additional Sessions Judge, Islamabad.
4. At the commencement of trial, petitioner Muhammad Yaqoob, his father Noor Elahi, and abovenamed four co-accused were indicted for willfully causing murders of Muhammad Pervez and Wasif Mehmood besides launching murderous attack upon complainant Muhammad Nazism and Muhammad Ayaz. The all refuted the charges and pleaded not guilty.
5. Prosecution examined 15 witnesses to substantiate accusations against petitioner Muhammad Yaqoob and five co-accused. On completion of prosecution side statements of petitioner and other co-accused were recorded under section 342, Cr.P.C. By the trial Court on 8-3-1992. Petitioner denied most of the accusations. However, while answering question No,8 he admitted recovery of licensed pistol Article (P.12) and Licence Article (P.13). Whereas replying question No,10 he gave explanation by narrating circumstances in which while exercising right of self-defence he was compelled for firing pistol shots. Questions Nos.8 and 10 alongwith replies from the statement of petitioner recorded under section 342, Cr.P.C. Are reproduced below:-- Q.8.--Does pistol P.12 and the licence P.13 belong to you? Ans. Yes.
Q.10.--Why this case against you and why the P.Ws. Have deposed against you?
Ans.--True facts are that the house was rented by my father to Ayaz (not P.W.) on 25-4-1990 with the precondition that he will vacate the same at all costs on 25-10-1990. Six months advance rent was paid to my father. On 25-10-1990 again on the request, time was given to vacate the house on 30-11-1990. It was still not vacated. On 30-11-1990, Muhammad Nasim complainant promised to vacate the house within 5-6 days. My father still agreed and told them that he will not charge even the rent of these 5-6 days. On the day of occurrence, at about 2-30 p.m. Myself and my father visited the house and found Nasim and Ayaz P.Ws. Sitting in the house and having chat. My father told Nasim that on 30-11-1990, he had made a firm promise to vacate the house within five or six days but the same is not being fulfilled and that we are hard pressed for the house for personal use. Nasim was evasive, upon which my father told him that if they could not keep up their words, they are forcing us to keep the luggage of house on the road. On hearing this, an altercation took place between Naseem, Ayaz P.W. With me and my father. Anyhow, Naseem brought Suzukis and started shifting the luggage to some other house. We stayed there so that in the background of bitterness created they may not damage or remove the fixtures of house. After the entire luggage of house was shifted we checked the whole house with few required repairs etc. Thereafter, we closed the doors of the house and proceeded to our house at Pindora. When at 5-30 p.m. We reached near Pir Wadahi Road, we were suddenly confronted by Naseem, Ayaz P.Ws. And Wasif and Pervez deceased. They raised Lalkara that we should have the taste of getting the house vacated and insulted Naseem and Ayaz P.Ws. Wasif caught hold of beard of my old and respectable father and alongwith Ayaz started slapping and giving fist blows to him. I took out my licensed pistol which was in the bandolier tied around my waist under my shirt and warned them to leave my father. Naseem and Pervez rushed toward me. Naseem tried to snatch the pistol and it went off in that process. Still the other three tried to snatch the pistol and 1 started running hither and thither and finding no escape and also apprehending that they might not succeed in snatching the pistol and killing us I fired only one shot upon each of them. Had I not done so they would have killed us both by snatching the pistol. I also acted under sudden and grave provocation in seeing my old father being molested by them. I never intended to kill. After the occurrence my father and myself alongwith pistol went to the police station and informed Sauqlain Shah, S.1. About the occurrence and we were made to sit at the police station."
6. Accused Noor Elahi adopted the statement given by his son petitioner Muhammad Yaqoob about above occurrence. Remaining four co-accused had expressly denied their involvement and accusations made against them. Petitioner and all the other co-accused, however, declined to give statements on oath as envisaged under section 340(2), Cr.P.C. They also did not lead any defence evidence.
7. Learned trial Court on the appraisement of evidence found petitioner Muhammad Yaqoob and his father Noor Elahi guilty for the offence under section 302/34, P.P.C. Thus, by means of judgment, dated 21-3-1992 trial Court awarded death penalty to petitioner Muhammad Yaqoob, subject to confirmation by the Lahore High Court, whereas his father Noor Elahi was sentenced, to life imprisonment. The other four co-accused namely Arshad, Khalil, Afzal and Rabnawaz were acquitted of the charges by granting them benefit of doubt. .
8. Feeling aggrieved from above conviction and sentence petitioner Muhammad Yagoob and his father co-convict Noor Elahi filed Criminal Appeal No,54 of 1992 before Lahore High Court, Rawalpindi Bench, Murder Reference No,207 of 1992 seeking confirmation of death sentence awarded to petitioner Muhammad Yaqoob also came up for hearing alongwith said appeal.
Complainant had filed Criminal Revision No,71 of 1992 praying for enhancement of sentence awarded to co-convict Noor Elahi by the trial Court.
9. It is pertinent to mention here that during pendency of above matters co-convict Noor Elahi died in November, 1997, therefore, appeal to his extent abated and revision petition seeking enhancement of sentence automatically became infructuous. However, appeal against petitioner and Murder Reference were eventually decided by common judgment, dated 12-8-1998 whereby appeal filed by petitioner was dismissed confirming the death sentence awarded to him. Operative portion of judgment is reproduced below:-- "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 P.Ws. 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.
' 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 PLD 1996 SC 274.
' We have minutely gone through the entire record and perused case-law referred to by the learned counsel. PLD 1996 SC 274, relates to a case where the husband had been 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, per contents of the F.I.R., 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 appellant was duly armed with fire-arms, therefore, it were accused ' 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 P.Ws. Eyewitnesses 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 there 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 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 premeditated 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 pursuaded 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."
10. The above conviction and sentence has now been assailed through present petition for leave to appeal before this Court.
11. Mr. Sardar Muhammad Ghazi, Advocate Supreme Court, appearing for the petitioner strenuously urged that true factual position has been explained by the petitioner in his statement under section 342, Cr.P.C. Which display compelling circumstances and grave provocation under which petitioner acted and resorted to firing in order to protect his life and that of his father. He, therefore, pressed hard for reduction in the sentence. To supplement his submissions learned counsel relied on the observations in case (i) PLD 1996 SC 1 (Abdul Haq v. The State); PLD 1996 SC 274 (Ali Muhammad v.
Ali Muhammad and another), and (iii) 1972 SCMR 2047 (The State v. Muhammad Hanif).
12. We have carefully perused the entire record in the light of above submissions.
13. It may be seen that in this occurrence two persons namely Muhammad Pervez and Wasif Mehmood had lost their lives on account of fire-arm injuries caused by the petitioner. Besides complainant Muhammad Nasim and P.W. 9 and Muhammad Ayaz son of Iqbal have also suffered fire-arm injuries. Petitioner obviously has not led any evidence to support facts narrated by him in his statement under section 342, Cr.P.C. Therefore, in order to ascertain real situation aforesaid statement of petitioner needs to be placed in juxtaposition with respondent prosecution evidence including ocular version. With whatever angle the case of petitioner is examined there appears hardly any justification at least for repeating fire shot. Even if extremely favourable assumptions are drawn admittedly all amongst complainant party were empty-handed, therefore, no conceivable assumptions could possibly exist of being attacked when he possessed loaded pistol and parties did not have deep-routed enmity. At best deceased Wasif allegedly held the beard of petitioner's father, therefore, by no stretch plea of provocation could be extended for injuring others. Learned counsel referring afore-quoted judgments endeavoured to argue that provocation caused to petitioner had temporarily deprived him of self-control, therefore, capital sentence was not warranted.
14. On thorough reappraisal of the evidence and circumstance we are satisfied that principle relating to provocation enunciated in cases (i) PLD 1996 SC 1 and (ii) PLD 1996 SC 274 has no applicability to the facts of present case. It may further be seen that theory of self-defence, which was projected during arguments with great emphasis, does not even emanate from the circumstances narrated by the petitioner himself in his 342, Cr.P.C. Statement. Considering the evidence in its entirety the conduct of petitioner appears to be aggressive and reckless.
Prosecution evidence profoundly establishes that petitioner, in a trigger happy manner had sprayed pistol bullets which cost precious lives of two innocent persons namely Muhammad Pervez and Wasif Mehmood, besides firearm injuries to complainant and P.W. Muhammad Ayaz.
Facts and legal aspects were duly assessed by both the Courts below while examining question of petitioner's involvement in the offence and quantum of sentence. Mere bald plea of losing self- control or temporary mental imbalance cannot be legitimately entertained in the facts of present case, otherwise it would drastically affect settled principles concerning administration of criminal justice. Generally speaking every ruthless and wanton act is suggestive of abnormality of conduct which, therefore, cannot be excusable or deemed to constitute extenuating circumstance for claiming lesser penalty.
15. For the foregoing reasons we are satisfied that concurrent findings of both the Courts below as regards merits and quantum of sentence awarded to appellant are not open to exception.
Consequently leave is declined and petition directed to be dismissed.
Leave to .