' KHALIL-UR-REHMAN RAMDAY, J.---One Nazir his brother Amir; their cousins Gulzar and Siddique and their maternal uncle Zulfiqar were tried by a learned Additional Sessions Judge at Chiniot for the murders of Dost Muhammad alias Dosa and Manzoor. Through his judgment, dated 18-7-1993 the said learned trial Judge acquitted Amir, Gulzar, Siddique and Zulfiqar. He, however, found Nazir guilty of the said charge; convicted him under section 302, P.P.C. On two counts and punished him with death on each count and a fine of Rs,50,000 or two years' R.I. On each of the said counts. Half of the amount of fine was directed to be, paid to the heirs of the deceased, under section 544-A, Cr.P.C.
2. Murder Reference No,59 of 1993 seeks confirmation of the said sentences of death awarded to Nazir convict who filed Criminal Appeal No,488 of 1993 to impugn the above-noticed conviction and punishments recorded against him. Ata Muhammad, complainant approached this Court with Criminal Revision No,388 of 1993 to call in question the acquittal recorded in favour of the above- named four acquitted accused persons. All these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 12-2-1991 at about 2-00 p.m. Inside/immediately outside Police Station Saddar, Chiniot falling within the jurisdiction of Police Station City, Chiniot and about three furlongs from the said Police Station City and the said occurrence had been allegedly reported at the said Police Station City, Chiniot at about 3-00 p.m. By Ata Muhammad complainant where an F.I.R. Bearing No,56/1991 was recorded by Muhammad Hayat, S.-I. (P.W.9).
4. Narrating the occurrence and the background leading thereto, Ata Muhammad complainant had mentioned that a cousin of his, namely, SHAHOO had got murdered in respect of which murder a case bearing F.I.R. No,543, dated 20-11-1990 stood registered at Police Station Saddar, Chiniot; that on the day of the present occurrence he had gone to Police Station Saddar, Chiniot along with Sardar P.W., Manzoor deceased, Dosa deceased, Nazir accused of the present case and one Allah Yar; that they were all sitting at a Restaurant in front of the said Police Station, Saddar when Zalfiqar and Amir accused also came there who called Nazir accused and started talking to him a little distance away from where they all were sitting; that after Amir and Zulfiqar accused had a talk with Nazir accused, the said Nazir accused called Dosa and Manzoor deceased to him and to them that they were trying to falsely implicate Nazir accused in the abovementioned murder case of Shahoo which led to an altercation and exchange of abuses between three of them and that Nazir accused thereafter went towards Police Station Saddar and picked up a Kassi lying on the outer wall of the said Police Station and inflicted a blow on the head of Manzoor deceased who ran into the Police Station to save himself and fell injured in the courtyard of the mosque of the said Police Station, Saddar and died there. Ata complainant had further alleged that Dosa deceased then tried to intervene and apprehend Nazir accused and was also given Kassi blows on different parts of his body by the said Nazir accused who also fell injured. The complainant had further mentioned that Nazir accused then managed to run away from the place of occurrence; that Manzoor deceased had died at the very place of occurrence while Dosa deceased was rushed to the Civil Hospital of Chiniot from where he was referred to Allied Hospital at Faisalabad.
5. The reason alleged for this double murder was that Manzoor and Dosa deceased were trying to demonstrate that Nazir accused was the actual culprit of the abovementioned murder case of SHAHOO and that it was on account of this grievance that at the instance of Zulfiqar and Amir accused, Nazir had done both the deceased persons to death.
6. Muhammad Hayat, S.-I. (P.W.9) visited the place of occurrence where he collected blood-stained earth from the place where Manzoor was lying injured and the place where injuries had been inflicted on the person of Dosa deceased, vide memos. Exhs.P.B and P.C. Respectively. He also found a blood-stained KASSI (P.1) lying at the place of occurrence which he secured vide memo. Exh.P.A.
He allegedly arrested Nazir accused on 25-2-1991 while Amir and Zulfiqar were allegedly arrested by him on 22-3-1991. The said I.O. Claimed to have arrested Siddique and Gulzar accused on 11-4- 1991. Nothing was recovered from the person or at the instance of any of the above-mentioned accused persons.
7. When confronted with the prosecution case under section 342, Cr.P.C., all the above mentioned accused persons including Nazir appellant denied their involvement in the murders in question.
Nazir appellant pleaded that the occurrence in question was an unseen occurrence in which he had been falsely, involved. The defence produced one Zulfiqar Ali, Inspector Range Crime Branch of Faisalabad who entered the witness-box as D.W.1. According to him all the four acquitted accused persons were innocent. He had added that during the course of investigation it had transpired that both the deceased persons of the present case and Nazir appellant had been made to join the investigation of the abovementioned murder case of SHAHOO deceased; that according to his investigation the occurrence had taken place in a plot within the four-walls of the building of Police Station, Saddar Chiniot and further that the occurrence had not gone un-witnessed.
8. Before we proceed any further in the matter, some relationships which appear on the record may be noticed.
9. Ata Muhammad complainant is the brother of Dosa deceased of the present case. SHAHOO deceased of the earlier abovementioned motive case was a cousin of Ata Muhammad complainant and Dosa deceased The other eye-witnesses namely, Sardara P.W. 3 is also a first cousin of the complainant and of Dosa deceased.
10. On the appellant's side Nazir appellant and Amir accused are real brothers inter se---Gulzar and Siddique accused of the present case are their cousins and Zulfiqar accused of the present case is maternal uncle of the other four accused persons including Nazir appellant.
11. The complainant party and the appellant party of the present case are also related to each other inasmuch as Gulzar and Siddique accused are MAMOON ZAD of Dosa deceased and Ata Muhammad complainant while Zulfiqar is a PHOOPHI ZAD of the said complainant and the said deceased.
12. It may also be added here that it was declared by both the eye-witnesses while under cross- examination that no enmity existed' between Nazir appellant and the two deceased persons nor was there any real animosity between the two eyewitnesses of the present case and Nazir appellant.
13. The occurrence in question had taken place in broad daylight inside the Police Station of immediately outside thereof where some tea stalls etc. Also existed. Therefore, whether the occurrence had taken place within the four-walls of Police Station Saddar, Chiniot or whether it had taken place at the gate of the said police station there was no question of the occurrence having gone un-witnessed or the culprit having escaped unidentified. As has been noticed above SHAHOO deceased of the earlier case was a cousin of Ata Muhammad complainant of the present case and Dosa deceased of the present case who was one of the suspects of SHAHOO's murder case was a brother of the said Ata Muhammad complainant. The other eye-witness of the present case, namely, Sardara P.W.3 was also a cousin of abovementioned Dosa deceased of the present case and his brother Muhammad was the complainant of SHAHOO's murder case. It is also on record that the investigation of SHAHOO's murder case was in progress during the days of the present occurrence. Therefore, the claim of the two eye-witnesses that they were present at the Police Station or immediately outside thereof, was not open to any serious exception. It may be added here that no one stood nominated as culprit in the F.I.R. Of . HAHOO's murder case.
14. Nazir appellant of the present case and both the deceased persons, namely, Manzoor and Dosa of the present case were the suspects of Shahoo's murder case. Not only that the two parties of the present case had no previous enmity with each other but, as has been noticed above, they were even related inter se.
15. In view of the fact that the two eyewitnesses had a reasonable explanation of their presence at the place of occurrence; that they had no motive to falsely implicate Nazir appellant in the present murder case; that the occurrence in question had taken place in broad daylight and finally that the said occurrence had taken place at a venue which was not a deserted area, we find that no exception could be taken to the finding of guilt as recorded by the learned trial Judge against Nazir appellant.
16. Certain other facts had also come on record during the course of the trial such as the occurrence having taken place in a plot within the four-walls of Police Station Saddar of Chiniot; Nazir appellant and the two deceased persons having been in custody of the police of Police Station Saddar, Chiniot in connection with SHAHOO's murder case since about one and a half months prior to the present occurrence; Nazir appellant and the two deceased persons being at work inside Police Station Saddar immediately before the occurrence and Nazir appellant having been arrested at the very spot after the murder of Manzoor and Dosa deceased. These facts may not be strictly in line with the prosecution case as set up but they are certainly not offensive of the prosecution case in a manner which could cast doubts about the guilt of Nazir appellant. These facts and circumstances in fact further strengthen the case against the said appellant. Needless to add here that in view of Ali Bepari's case (PM 1962 SC 502), we take even these facts into consideration and hold that they are definite further pointer, towards the quilt of Nazir appellant.
17. Consequently, we maintain the appellant's conviction for the murder of Dosa deceased as also for the murder of Manzoor deceased.
18. This brings us to the question of confirmation or otherwise of the sentences of death awarded to Nazir appellant for the said two murders.
19. It was vehemently argued by the learned counsel for the appellant that the occurrences in question was a sudden affair which did not admit of any premeditation on the part of the appellant that the weapon of offence was a KASSI which was available to the appellant at the time of occurrence and with which KASSI he was doing work at the relevant time; that no previous and enmity existed between the appellant and the two deceased persons which could have led to a planned-assault by the appellant on them and that in the circumstances imposition of a penalty of death on the appellant would be unjust.
20. We may not have any serious cavil with the facts pleaded for seeking mitigation in the matter of punishment of the appellant but we cannot ignore the fact that the appellant had acted brutally, callously and in sheer cold blood by mounting an assault on the two deceased persons and he had not remained contended by taking the life of one of the two deceased persons but had gone on to persist with his callousness and had killed even the other deceased person. We, therefore, find that the appellant did not deserve any sympathy or mercy.
21. Resultantly, WE CONFIRM THE SENTENCES OF DEATH AWARDED T O NAZIR APPELLANT ON TWO COUNTS i,e, a sentence of death for the murder of Dosa deceased and a sentence of death for the murder of Manzoor deceased.
22. The occurrence in question having taken place after the provisions of section 302, P.P.C. As they stand today had come into force therefore, his conviction would be under section 302(a), P.P.C. And the punishment of death would be by way of QISAS.
23. The provisions of section 302, P.P.C. As they stood on the day of occurrence did not envisage imposition of any punishment of fine, therefore, the said punishments of fine as imposed on the appellant for the said murders are set aside. An order under section 544-A, Cr.P.C. Should ordinarily have been passed but since no notice was issued to the appellant for the purpose, therefore, we are not passing any such order at this stage.
24. Murder Reference No,259 of 1993 and Criminal Appeal No,488 of 1993 are disposed of in the above terms.
25. It could not be shown before us that the acquittal recorded in favour of the abovementioned acquitted accused persons was either perverse or arbitrary. Therefore, Criminal Revision No,388 of 1993 is dismissed.
26. Before we part with this judgment we feel compelled to notice the conduct of some police officers who were concerned with this unfortunate episode.
27. It had been categorically stated by Ata Muhammad complainant P.W.4 and Sardara P.W.3 that the two deceased persons as also Nazir appellant of the present case had been in police custody for more than one and a half months as suspects of SHAHOO's murder case i,e, case F.I.R. No,543, dated 20-11-1990 of Police Station, Saddar, Chiniot. Abdul Hameed, S.-I. Of Police Station Saddar, Chiniot was investigating this case. This conduct on the part of the said Abdul Hameed, S.-I. Was illegal and unauthorised. It had also come on record that the police officials of Police Station, Saddar, Chiniot had given KASSIS to the two deceased persons and Nazir appellant and they were being made to work in the premises of Police Station Saddar, Chiniot. Had this Kassi not been available with Nazir appellant the two innocent persons might not have lost their lives. As declared by Inspector Zulfiqar Ali of the Range Crimes of Faisalabad (D.W.1), the occurrence in question had in fact taken place in a plot inside the four-walls of Police Station Saddar, Chiniot. This corroborates the claim of Ata Muhammad complainant (P.W.4) that the appellant and the two deceased persons were working there with KASSIS when the occurrence in question had taken place.
28. Muhammad Hayat, S.-I./I.O. (P.W.9) of Police Station City Chiniot apparently in collusion with the police of Police Station Saddar, Chiniot tried to shift the venue of occurrence from inside the police station to outside the same in order to eliminate the culpability or any liability falling on the shoulders of the police of Police Station Saddar, Chiniot. It was categorically declared on Oath by Ata Muhammad complainant of the present case that Nazir appellant had been apprehended at the very place of occurrence immediately after the present case by Muhammad Hayat, S.-I. And the said appellant was in the custody of Police Station Saddar, Chiniot. Muhammad Hayat, S.-I. Had again distorted facts to protect the concerned police officials of Police Station Saddar, Chiniot.
29. But for the above-noticed illegal and unauthorized acts of Abdul Hameed, S.-I of Police Station Saddar, Chiniot and the negligent conduct of the officials of the said Police Station, these two murders might not have taken place. The responsibility lies not only with the said Abdul Hameed, S.-I but also with the then S.H.O. Of Police Station Saddar, Chiniot who is overall In-charge of the Police Station and is responsible for whatever is going on in a Police Station. Muhammad Hayat, S.-I of Police Station City Chiniot distorted facts and made false statements in order to cover up the above-noticed negligent conduct of the police of Police Station Saddar, Chiniot and their illegal and unauthorized acts.
30. A copy of this judgment shall be sent to the Inspector-General of Police, Punjab who is directed to take up proceedings against the above-noticed police officials and then to report the action taken by him to the Registrar of this Court for the information of this Bench within one month.