' ZAFAR PASHA CHAUDHRY, J.--- Murder Reference No,108 of 1994 and Criminal Appeal No,252 of 1994 have been taken up together with Criminal Revision No,548 of 1994, as all the three arise out of common judgment dated 30-4-1994 passed by Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Faisalabad whereby the appellant Muhammad Shafique was convicted under section 302, P.P.C. And sentenced to death as Qisas. He was also ordered to pay Rs,20,000 as fine to the legal heirs of the deceased. However, co-accused of the appellant i,e, Muhammad Shafi and Muhammad Siddique were acquitted of the charges against them.
2. The prosecution case as revealed from F.I.R. Exh.P.C./1 recorded on the basis of statement Exh.P.C.
Made by Muhammad Anwar P.W.8 before Muhammad Hanif Khan S.-I./P.W.12 is that the complainant alongwith Muhammad SiddiqUe was present within the premises of District Courts, Faisablabad on 25-5-1992 at about 9-30 a.m. In the custody of the police to appear in Court in a case under section 13/20/65 of Arms Ordinance. Muhammad Hussain HC-705, Abdul Razzaq C- 4016 and Ghulam Ali C-1977 all equipped with rifles brought Muhammad Siddique alongwith other four co-accused in front of the waiting hall to await the co-accused who had to attend the proceedings before some other Magistrate. All were present over there. Muhammad Latif P.W.9 and Muhammad Ramzan were also present near the complainant and the deceased. Suddenly, Muhammad Shafi and. Muhammad Saddique were sighted. As the deceased and others were looking towards Muhammad Shafi etc, Muhammad Shafique appellant snatching this opportunity on a signal by Muhammad Saddique suddenly placed his carbine at the back of Muhammad Saddique deceased and fired a shot, as a result of which Muhammad Saddique fell down.
Muhammad Hussain H.C., Muhammad Latif and Muhammad Ramzan by overpowering Muhammad Shafique apprehended him at the spot alongwith carbine. Muhammad Saddique was removed to the hospital under the escort of Muhammad Hussain H.C. And Muhammad Ali Constable but he succumbed on his way. The occurrence was witnessed by Muhammad Hussain H.C, Abdul Razzaq Constable, Ghulam Nabi Constable, Muhammad Latif and Muhammad Ramzan aforesaid witnesses.
' The motive was stated to be that Muhammad Shafi and Muhammad Shafique appellant both father and son suspected that Muhammad Rafique son of Muhammad Shafi was murdered on 4- 6-1991 by Muhammad Saddique deceased, therefore, as a result of said grievance Muhammad Saddique was done to death while he was present in handcuffs in police custody within the premises of District Courts, Faisalabad.
' The investigation was conducted by Muhammad Hanif Khan S.-I./ P.W.12. On conclusion of the investigation he sent up Muhammad Sahfique appellant, his brother Muhammad Saddique and father Muhammad Shafi to face trail in the Court' of Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Faisalabad. The learned trial Judge on conclusion of the trial acquitted the co- accused of the appellant, however, the appellant was convicted and sentenced to death as noted above.
3. The prosecution in order to prove its case examined 12 witnesses. Dr. Mian Javed P.W.1 conducted the post-mortem examination of Muhammad Saddique deceased and noted the following injury on his person:--
(1) A fire-arm wound of enterance 2-1/2 c.m. x 2 c.m. With lacerated and blackened margins which were inverted also was present on the back of left side of chest 2 c.m. Away from midline and at the level of T.6/7. There was blackened area of 4 c.m. x 4 c.m. Around the wound. The wound was 23 c.m. Away from top of left shoulder and 11-1/2 c.m. From the superior angle of left scapular.
' The injury was ante-mortem, had been caused by fire-arm and was sufficient to cause death in ordinary course of nature.
4. Muhammad Anwar complainant P.W.8 furnished the eye-witness account of the occurrence. He made statement in line with the statement made by him in the F.I.R. Exh.P.C./1. He also proved the motive as he has already stated in the F.I.R. According to him Muhammad Saddique deceased was fired at by Muhammad Shafique within his view who subsequently succumbed to the injury received by him. This witness was cross-examined at length but nothing damaging to the prosecution case could be elicited by the defence. The next witness is Muhammad Latif P.W.9 who has been named in the F.I.R. He was present near the complainant and he also witnessed the occurrence. He made statement consistent with the statement of complainant and as such supported him on all material points. P.W.10 Muhammad Hussain A.S.-I. Who was on duty on 25-5- 1992 stated that he alongwith Abdul Razzaq Constable and Ghulam Ali Constable took Muhammad Anwar P.W.8 and Muhammad Saddique deceased alongwith other persons to the District Courts.
Muhammad Shafique stealthily approached the deceased and thereafter fired a shot by placing carbine at his back. The rest of the witnesses i,e, P.Ws.2 to 7 are all formal in nature. Similarly P.W.11 is also a formal witness who furnished the details of various steps taken during the investigation.
5. Muhammad Hanif Khan, S.-I. P.W.12 conducted the investigation. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. He took into possession carbine used by the appellant and secured the same vide memo. Exh.P.G. He also took into possession cartridges alongwith carbine through the same memo. After completing all other formalities he submitted challan against the appellant alongwith his two co-accused. The carbine (shot pistol .12 bore) alongwith one crime empty was sent to the Forensic Science Laboratory and it was found that the crime empty had been fired from the shot pistol .12 bore recovered from the appellant. The report was exhibited as Exh.P.M. Alongwith report of Chemical Examiner. Exh.P.K. And that of Serologist Exh.P. L.
6. On close of the prosecution case the appellant who was about 27 years of age was examined under section 342, Cr.P.C. And in answer to question No,11 he made the following reply:-- "My brother Rafique was married to Mst. Naziran who is the real sister of Anwar P.W. And cousin of Siddique deceased but she was not living with her husband after the marriage at the instance of Siddique deceased and Anwar P.W. As Siddique deceased had illicit relations with her and they had called my deceased brother Rafique to Faisalabad on the pretext of compromise and then murdered him to get rid of him because they considered him as a hurdle in continuing the relations between Siddique deceased and her and for that reason I had a grievance against them and for my self-protection used to keep a carbine with me. They had been appearing in the District Courts in Arms Ordinance for about a year before the present occurrence. I did not make any attempt to cause him harm and kill him, on the day of occurrence, Mst. Naziran had brought meal for both the accused in and had been chatting with Siddique deceased indecent manner and Siddique deceased when saw me passed sarcasting remarks upon me and challenged my family 'Ghairat'. On seeing this situation I lost self-control and under grave and sudden provocation I fired at the deceased. I did not commit his murder intentionally. I am innocent."
' The appellant therefore, admitted of having killed the deceased but explained that same had been done under provocation and out of 'Ghairat'.
7. The main contention raised by the learned counsel for the appellant is that the appellant committed the murder on account of provocation. The prosecution itself has come forward with the motive that the murder was committed because the appellant, his father and other family members suspected that Muhammad Rafique brother of the appellant had been murdered by Muhammad Siddique, as it was suspected that Muhammad Saddique deceased in the present case had illicit relations with the wife of Muhammad Rafique. The learned counsel, therefore, argued with vehemence that if a murder is committed out of sudden and grave provocation then extreme penalty of death is not imposed. In the present case the facts and circumstances as emerge from the prosecution case itself, the appellant committed murder out of Ghairat, therefore, the conviction under section 302., P.P.C. Is not maintainable and he at the best can l e convicted under section 302(C), P.P.C. And in no circumstances he is liable to be imposed the sentence of death.
8. It is further argued that in case it is not acceded that the appellant committed murder out of Ghairat the alternative plea is that the murder was committed to vindicate the family honour because brother of the appellant had been murdered by the deceased and he was facing trail for the same. Any person who commits murder to vindicate the family honour is not ordinarily awarded the sentence of death. In such an event alternate sentence of imprisonment for life which too is a legal sentence is ordinarily imposed. In support of this contention the learned counsel had cited a number of judgments holding that in case of a murder committed on account of sudden and grave provocation the extreme penalty of death is not awarded. Similarly, a number of judgments were cited to canvass that if a murder is committed to vindicate family honour sentence of death is not imposed.
9. The learned counsel appearing for the prosecution has supported the judgment and has argued that the appellant is not entitled to lesser penalty as has been contended by the appellant. By taking into account all the attending and ambient circumstances of the case the plea is not available to him and sentence of death as awarded by the learned trial Judge is proper and merits to be held and maintained.
10. We have heard the arguments and examined the record.
11. The prosecution in order to establish its case has produced the most relevant witnesses comprising Muhammad Anwar complainant P.W.8 Muhammad Latif P.W.9 and Muhammad Hussain, A.S.-I. P.W.10. Muhammad Hussain was present at the time of occurrence as he was guard incharge and the deceased was in his custody at that time. All the three witnesses have made consistent statements in line with each other and as such have supported the complainant on all material points. The prosecution, therefore, has successfully discharged its onus. The plea of sudden provocation or a Ghairat as has been raised by the learned counsel does not commensurate with the circumstances of the case. It is true that motive for the present murder is stated to be that brother of the appellant had previously been murdered wherein Muhammad Saddique deceased alongwith one Anwar was suspected to be the accused persons and they had been sent up to face trial in that case. Both were in custody and were present in handcuffs to attend the Court. It has also come on record that previous murder of appellant's brother had been committed because it was suspected that Muhammad Sadique had a liaison with the wife of appellant's brother Muhammad Rafique. With a view to hold that instant murder of Muhammad Sadique was result of provocation or Ghairat, various admitted factors squarely exist against the accused appellant. According to the appellant he happened to be present alongwith his brother and father and he saw that his brother's wife Mst. Naziran had brought meals for Muhammad Saddique deceased and they were chatting with each other in an indecent manner, as a result of which he got provoked and proceeded to kill him. Had it been true that Mst. Naziran was present and was chatting with the deceased then the first target of the appellant would have been Mst.
Naziran because grievance against her was more grave and strong but instead of doing any harm to Mst. Naziran the appellant killed Muhammad Sadique. He did not make even an attempt to fire a shot or do any other harm to her. There was no attempt even to apprehend her or to take her to task. Mst. Naziran did not appear in Court in defence of the appellant. Had it been true she would have been produced in Court in defence of the appellant.
12. Further, the prosecution has produced not only Muhammad Latif P.W.9 but Muhammad Hussain H.C. Has also been examined as P.W.11. Had there been any truth in appellant's statement, Muhammad Hussain or for that matter anyone else from police constables would have come forward to state about the facts which provoked the appellant. No such material has come on record. The next argument that the murder was committed to vindicate the family honour is also not convincing for the reason that the deceased Muhammad Saddique was still facing trial. The appellant instead of waiting for conclusion of the trial took the law in his own hands and proceeded to kill him in front of a large number of people. The Courts or the premises of the Courts do have a sort of sanctity. It is a place where people come to seek justice and the rival parties in spite of their longstanding enmities are supposed to behave and the remain calm in these premises. If people are permitted to settle their scores within the premisses of Courts then perhaps the whole system of law may collapse. We cannot remain oblivious of this fact and cannot ignore that the murder was committed while the deceased was in police custody and he had been brought to be produced in Court to face trial. The fact that in a number of cases, if the murder is committed to vindicate the family honour, the same has been treated as an extenuating circumstance but the same cannot possibly be accepted in view of these particular facts and circumstances. The appellant is a grown up person and at the time of alleged offence was 27 years of age. It cannot, therefore, be accepted that he was such an immature who acted in response to the exhortation of his father. We have, therefore, examined the case from C various possible angles but have not been able to convince ourselves to concede to the plea raised by the learned counsel for the appellant. The learned trial Judge as well discarded the defence plea and awarded the normal sentence of death to the appellant.
13. In view of above observations and discussion we fined the appellant is guilty of murder and he has been rightly convicted under section 302, P.P.C. His sentence of death as awarded by the learned trial Judge is quite appropriate. He has also been imposed the sentence of fine which is not permissible under the new law, therefore, the same is set aside. As the appellant is not under notice we are not in a position to award compensation to the legal heirs of the deceased. The appeal is, therefore, dismissed and the E sentence of death as imposed is upheld and maintained.
14. For the reasons recorded above, the criminal revision filed by the complainant also fails and is hereby dismissed.
' Sentence of death is not confirmed.