' KHALIL-UR-REHMAN RAMDAY, J.--- Raheel, Waqar, Azeem, their mother Mst. Naseem Begum, their sister Mst. Robina and the husband of the said Mst. Robina, namely Aziz-ur-Rehman were tried by a learned Additional Sessions Judge at Lahore for the Qatl-e-Amd of Hafeez-urRehman and Khalil- ur-Rehman. Through his judgment, dated 4-5-1993, the said learned trial Judge acquitted Mst.
Naseem Begum and Mst. Robina but found the other three accused guilty of the said two murders; convicted each one of them under section 302/34, P.P.C. On two counts as Tazir and while he punished Raheel and Waqar accused with death, Aziz-ur-Rehman accused was ordered to suffer imprisonment for life. Each one of the three convicts was also directed to pay an amount of Rs,25,000 on each count to the heirs of the two deceased persons under section 544-A, Cr.P.C. Or to undergo six months' R.I. In default of payment of the same.
2. Murder Reference No,135 of 1993 seeks confirmation of the above-noticed sentences of death awarded to Raheel and Waqar Azeem while Criminal Appeal No,353 of 1993 filed by all the three above-named convicts calls in question the above-noticed conviction and punishments recorded against them. Both these matters are being disposed of together through this single judgment.
3. Before we proceed any further in the matter, it may be noticed here that Raheel and Waqar appellants are real brothers inter se. The acquitted accused, namely, Mst. Robina is their sister who is the wife of Aziz-ur-Rehman appellant. Mst. Naseem Begum is the mother of Raheel and Waqar appellants and is the mother-in-law of Aziz-ur-Rehman appellant. It may be added here that the two deceased persons of the present case, namely, Hafeez-ur-Rehman and Khalil-ur-Rehman were the real brothers of Aziz-urRehman appellant. Habib complainant of the present case is also a real brother of the two deceased persons and is thus, a real brother of Aziz appellant. All the said four brothers were residing together in the same house which is the place of occurrence.
4. The occurrence in question had taken place on 22-6-1991 at 11-45 a.m. In the house of the two deceased persons; the complainant as also of Aziz appellant being house No,95 situated in Street No,25 of Mohallah Shah Noor Park of Kot Khawaja Saeed about two and half kilometers from Police Station Shalimar of District Lahore and the said occurrence had been reported by Habib complainant to Ahmad Pervaiz S.-I. (P.W.17) at about 1-45 p.m. At Chowk Gujjar Pura.
5. Narrating the occurrence and the background leading thereto, Habib complainant had mentioned that he was residing in their house which is the place of occurrence alongwith his parents; that his elder brother Aziz appellant was occupying the upper portion of the house while his two younger brothers, namely, Hafeez and Khalil deceased who were unmarried were living on the ground floor with their widowed mother. He had added that the wife of his brother Aziz, namely, Mst. Robina used to have frequent quarrels with the complainant's mother and that they used to pacify their mother as also Mst. Robina; that two days prior to the occurrence the said Robina insulted the complainant's mother and even indulged in grappling with their mother; that Mst.
Robina telephonically informed her mother Mst. Naseem Begum accused and her brothers namely, Raheel and Waqar appellants and called them to her house who accordingly reached the place of occurrence at about 11-45 a.m. On the day of occurrence; that after entering their house the said Waqar and Raheel appellants started raising Lalkaras that they had come to avenge the insult of their sister, namely, Robina accused; that at this stage Hafeez and Khalil also came into the courtyard of the house who asked their brother Aziz appellant to ask the brothers of his wife not to insult their mother; that instead of saying anything to Raheel and Waqar appellant, Aziz appellant caught hold of the arms of his brother Khalil deceased; that Hafeez deceased went in to rescue his brother Khalil at which Mst. Naseem Begum accused gave Chhuris to her two sons, namely, Raheel and Waqar appellants and asked them to kill the, deceased persons. The complainant had further alleged that Raheel appellant inflicted repeated Chhuri blows on the person of Hafeez deceased' while Waqar appellant gave Chhuri blows on the person of Khalil deceased; that Mst. Robina gave injuries to Hafeez deceased with a fork; that these assailants tried to attack the complainant also who ran to the roof of the house and raised alarm as a result of which Raheel, Waqar, Mst. Robina and Mst. Naseem Begum ran away from the place of occurrence. The complainant had further disclosed that both the injured persons had been rushed to the Emergency Ward of Mayo Hospital where they were being treated for the injuries received by them.
6. Ahmad Pervaiz, S.-I. (P.W.17) visited the place of occurrence where he found blood-stained earth which he took into possession vide memo. Exh.P.A. He arrested all the accused persons including the appellants on 28-6-1991 and on that very day Mst. Robina accused allegedly led to the recovery of a fork (P.7) which was secured vide memo. Exh.P.F. On 1-7-1991 Raheel and Waqar appellants allegedly led to the recovery of blood-stained Chhuris (P.8 and P.9 respectively) which were seized vide memos. Exhs.P.M. And P.N. Respectively.
7. When confronted with the prosecution case under section 342, Cr.P.C. Aziz-ur-Rehman appellant claimed that on the day of occurrence, he heard noise of his wife and entered the room and saw that his two brothers, namely, Khalil and Hafeez deceased had caught hold of his wife Mst. Robina and had made her lie down on the cot; that his said brothers had torn off the clothes of said Aziz appellant's wife and were trying to commit Zina-bil-Jabr with her; that a Chhuri was lying on a table near the cot with which his brothers had frightened Mst. Robina; that Aziz appellant picked up that Chhuri and in order to save the honour of his wife, he waived the said Chhuri at his said brothers who started grappling with him; that during the course of said grappling his said two brothers sustained injuries and finally that his mother-in-law, namely, Mst. Naseem Begum and the two brothers of his wife, namely, Raheel and Waqar were not present at the place of occurrence at the relevant time and consequently, not involved in the occurrence in question.
8. All the other accused persons, including Raheel. And Waqar appellants adopted the explanation of the occurrence as offered by Aziz appellant. The said appellant, namely, Aziz also entered the witness-box under section 340, Cr.P.C. And made statement on oath which was to the same effect as the one made under section 342, Cr.P.C.
9. The defence plea offered by Aziz appellant and his co-accused persons does not appear to be reasonable or plausible explanation of the occurrence in question. The present occurrence had taken place at about midday when all the inmates of the house i.e, the husband of Mst. Robina, namely, Aziz appellant himself, Habib complainant and mother of Aziz appellant and the two deceased persons were all present in the house. In the circumstances, it is not believable that the two deceased persons would manage to frighten Mst. Robina and further manage to drive her into a room of the house whereafter the two deceased persons would tear off the clothes of Mst. Robina and would commit Zina-bil-Jabr with her. If despite being frightened by Chhuri, Mst. Robina could raise alarm after her clothes had been torn off then it is not understandable that why could she not raise alarm at any time before the said stage had reached. There is also no explanation as to why the mother of Aziz appellant and his brother Habib should have opted to take side with Hafeez and Khalil deceased as against Aziz appellant who was equally related to them especially when it was allegedly the two deceased persons who were at fault and who had stooped low to conduct themselves in a highly immoral manner.
10. In view of what has been noticed above, we find that the defence explanation of the occurrence in question is not reasonable and we consequently reject the same.
11. The prosecution case is supported by two eye-witnesses, namely, Habib complainant (P.W.7) and Siraj Khan (P.W.13). As has been mentioned above, Habib complainant is a real brother of Aziz appellant while Siraj P.W. Is the husband of a sister of the complainant who is also a sister of Aziz appellant. Habib complainant was admittedly an inmate of the house where the occurrence in question had taken place and thus, would be a natural witness of the occurrence in question. His presence in the house at the time of occurrence had not been denied even by Aziz appellant. The house of Siraj Khan P.W. Is adjacent to the place of occurrence who claimed to have rushed to the spot on hearing alarm emanating from the house of his in-laws and who had then witnessed the occurrence.
12. Both these eye-witnesses are, as has been noticed above, not only natural witnesses of the occurrence in question but were also independent witnesses of the same as nothing could be brought on record by the defence which could demonstrate any reason or motive on their part which could have prompted them to falsely implicate the appellants in the occurrence in question including Aziz appellant. Their testimony inspires confidence.
13. The only role attributed to Aziz appellant was that he had caught Khalil deceased from his arms.
He was not burdened with any injury on the bodies of the two deceased persons. Most of the injuries received by Khalil deceased were on his chest and abdominal area while some other injuries had C also been found on his thighs, shoulders and buttocks. There is thus, no possibility that Aziz appellant was not holding Khalil deceased when these injuries were being inflicted on his person. We would, therefore, give the benefit of doubt to Aziz appellant.
14. Resultantly, the conviction and punishment recorded against Aziz appellant under section 302/34, P.P.C. Are set aside and he is acquitted of the charges levelled against him. He is on bail after suspension of his sentences by this Court. The bail and surety bonds executed by and for him are cancelled and he is set at liberty.
15. Raheel and Waqar appellants were burdened with specific injuries inflicted by each one of them on the persons of Khalil and Hafeez deceased. These injuries had been found to exist on the bodies of the said two deceased persons, by the doctors who had medically examined them.
Consequently, no exception could be taken to the finding of guilt recorded by the learned trial Court against these two appellants.
16. Waqar Azeem appellant had claimed, while under examination under section 342, Cr.P.C. That he was 17 years of age. The prosecution had brought nothing on record to establish that he was an adult. It may be mentioned here that according to section 299(a) of P.P.C. "an adult means a person who has attained the age of 18 years". Therefore, we are compelled to hold that Waqar Azeem appellant was not an adult at the time of occurrence whose case thus, falls within the purview of section 306, P.P.C. According to the provisions of section 308, P.P.C., on poof of an allegation of Qatal-eAmd a person who is not an adult could be punished only with imprisonment extending upto 14 years besides being directed to pay Diyat for Qatl-e-Amd of which he is found guilty.
17. In this view of the matter, the conviction and punishment recorded against Waqar Azeem appellant under section 302/34, P.P.C. Are set aside. He is instead directed to suffer 14 years' R.I.
Under section 308, P.P.C. Read with section 306, P.P.C. For each of the two Qatl-e-Amd i.e, on two counts. These sentences of imprisonment shall run concurrently and he shall be allowed the benefit of the provisions of section 382-B, Cr.P.C. He is further, directed to pay Diyat which is fixed at Rs,2,51,000 for each Qatl-e-Amd i.e, on two counts and shall be kept in custody till the said amount of Diyat is paid by him as envisaged by section 331, P.P.C.
18. With respect to the punishment awarded to Raheel appellant, it was submitted that the occurrence in question was not the result of any pre-meditation on the part of the said appellant and was in fact the result of sudden flare-up emanating from an incident involving his sister.
Therefore, he was entitled to leniency in the matter of punishment.
19. Two young boys, namely, Khalil and Hafeez had been brutally murdered in the occurrence in question with a large number of injuries inflicted on their persons. Even if it be said that there was no pre-meditation involved on their part for committing the murders in question, the fact remains that Raheel and Waqar appellants had acted callously and cruelly in the matter of inflicting injuries on the bodies of the two deceased persons. Therefore, the case of Raheel appellant does not invoke any sympathy as a result of which no interference with the conviction and punishments recorded against him is justified. The conviction of Raheel appellant which shall be under section 302(b)/34, P.P.C. Is maintained and the sentences of death awarded to him on two counts are confirmed.
20. Murder Reference No,135 of 1993 and Criminal Appeal No,353 of 1993 are disposed of in the above terms. It is further added that the imprisonment ordered to be suffered by Raheel appellant in default of payment of compensation shall be simple and not rigorous.
Sentence of death awarded to Raheel appellant on two counts is confirmed.