1. ' TARIQ MEHMOOD, J.--- Judgment, dated 21st June, 2000, passed by learned Sessions Judge, Usta Muhammad has been assailed in the instant appeal whereby; appellants have been found guilty for murder of Abdur Rehman and Mst. Murad Bibi and sentenced to suffer imprisonment for life.
2. ' They have also been ordered to pay Diyat amount of Rs,2,70,000 each for legal heirs of deceased Abdur Rehman and deceased Murad Bibi (to be paid by appellants in equal shares). They have further been ordered to pay a fine of Rs,50,000 each. Benefit of section 382-B, Cr.P.C. Has been extended. Hence this appeal by the convicts. Murad Bukhsh complainant and brother of Abdur Rehman has also filed a revision petition seeking enhancement of sentence of accused.
3. ' The case of prosecution, in brief, as reflected from F.I.R. No,44 of 1999 (Exh.P./1-A) registered at Police Station Usta Muhammad, dated 19th March, 1999, pursuant to complaint made by Murad Bukhsh (P.W.1) is to the effect that he is residing with his younger brother Abdur Rehman at Dera Allahyar. They are related to convict Muhammad Khan Lango and were on visiting terms. It was alleged that prior to the incident accused Muhammad Khan twice visited their house and persuaded Abdur Rehman to accompany him as he would get him employed. Alleging further that on 19-3-1999, at about 4 p.m. Accused Muhammad Khan came at their residence at Dera Allahyar for the purpose aforesaid and deceased Abdur Rehman accompanied with Muhammad Khan and Khairo son of Din Muhammad proceeded to Usta Muhammad. It was also alleged that Abdur Rehman took Rs,30,000 and two photo copies of I.D. Card with him. It was the case of complainant that at about 9-30 p.m. He was informed that his brother was murdered by Muhammad Khan in league with Khairo on the allegation of Siyah Kari with his wife Mst. Murad Bibi and both have been done to death. On receipt of information complainant alongwith Muneer Ahmed and Noor-ud-Din reached Usta Muhammad. About motive, the complainant deposed that about 7/8 years ago accused Muhammad Khan had a quarrel with Dil Murad Lango and the grievance of Muhammad Khan was that they were on the side of Dil Murad. In this background complainant alleged that accused Muhammad Khan alongwith his brother Muhammad Siddique and relative Khairo as a result of planning, unjustifiably murdered his brother Abdur Rehman with his wife Murad Bibi on false accusation of Siyah Kari.
4. ' After registration of case, police proceeded towards the place of incident. Muhammad Aslam Qazi took up the investigation, inspected the site of murder and prepared various memos. Statements of witnesses were also recorded: Dead bodies were sent to hospital and after post-mortem, the same were handed over to their legal heirs. Empties were also picked up from the place of incident.
5. Blood-stained clothes of deceased and bloodstained earth beneath dead bodies were also secured. Accused were arrested alongwith crime weapon. Dr. Saleem Raza, examined the deceased and found the following injuries on the body of Abdur Rehman:-- External iniuries
(1) A fire-arm wound of entrance on the occipital region of skull 1/2 in diameter. Blackening was not present.
(2) A fire-arm wound of exit on right side of the upper jaw 2" in diameter.
(3) A fire-arm wound of entrance on the lateral side of the right lip-joint size 1/2" in diameter.
6. Blackening was not present.
(4) A fire-arm wound of exit on the medial side of the upper part of right thigh, 3" in diameter with a gross fracture of femur boner.
(5) A fire-arm wound on the testes (both ruptured).
7. Internal injuries ' Abdomen. Mouth pharynx and esophagus. Damaged. Organs of generation. Both testes ruptured.
8. Scalp, skull and vertebrae.
9. ' Thorax. Injured except vertebrae. Brain damaged.
10. Opinion ' From the external as well as internal examination of the dead body I am of the opinion that death was resulted due to haemorrhage and shock, produced by the abovementioned injuries which were ante-mortem in nature and homicidal in character. Those injuries appear to have been caused by the discharge of fire-arm.
11. ' Probable time between injury and death. Instantaneous. Probable time between death and post- mortem. 10 to 14 hours.
12. ' Post-mortem of Mst. Murad Bibi was also conducted and following injuries were found on her person:-- External injuries
(1) A fire-arm wound of entrance on the left cheek 1/4" in diameter. Blackening was present.
(2) A fire-arm wound of exit on the right side of the neck just below the ear 4" in diameter.
(3) A fire-arm wound of entrance on the left side of the chest on mid axillary line at the level of 8th intercostal space. 1/4" in diameter. Blackening was present.
(4) A fire-arm wound of exit on the right side of the chest at the level of 8th intercostal space 2" in diameter.
13. Internal injuries ' Abdomen. Mouth. Pharynx and esophagus. Damaged.
14. ' Diaphragm. Damaged.
15. ' Thorax. Walls, ribs and cartilages. Damaged. Pleurae, lartax and tracheae. Right lung, left lung and blood vessels. Damaged. Other organs were found healthy.
16. Opinion ' From the external as well as internal examination of the dead body, I am of the opinion that death was resulted due to haemorrhage and shock, produced by the abovementioned injuries which were ante-mortem in nature and homicidal in character. Those injuries appear to have been caused by the discharge of fire-arm.
17. ' Probable time between injury and death. Instantaneous. Probable time between death and post- mortem. 10 to 14 hours."
18. ' After finalization of investigation, challan was submitted in the Court of learned Sessions Judge, Usta Muhammad against appellants (hereinafter referred to as learned trial Court). At the commencement of trial, learned trial Court framed charge under sections 302/109/34, P.P.C.
19. Against the appellants to which they pleaded not guilty, whereupon prosecution examined eight witnesses:-- ' P.W.1 is complainant Murad Bukhsh who furnished last scene evidence and motive behind the crime. He also produced F.I.R. Exh.P./1-A.
20. ' P.W.2 is Doctor Saleem Raza, who conducted post-mortem of both the deceased and produced reports Exh.P./2-A and Exh.P./2-B.
21. ' P.W.3 is Muhammad Amin, the eye-witness.
22. ' P.W.4 Lal Bukhsh, he is witness to inventory of blood-stained clothes of deceased and produced memos. Exh.P./4-A and Exh.P./4-B.
23. ' P.W.5 is Muneer Ahmed. He has also furnished the evidence of last seen. Besides, he is witness to memo. Of site inspection Exh.P./5-A, inventory of securing blood-stained earth of deceased Abdur Rehman Exh.P./5-B and deceased Murad Bibi Exh.P.5/C. In his presence three empties of 7 m.m. Rifle were also picked up from the spot vide memo. Exh.P./5-D. Rs,3,070 alongwith two photo copies of I.D. Card were also recovered from the pocket of deceased Abdul Rehman vide memo. Exh.P./5-E.
24. ' P.W.6 is Wahid Bukhsh, who produced inventory Exh.P./6-A in respect of 7 m.m. Rifle alongwith photo copy of its licence in the name of accused Muhammad Khan.
25. ' P.W.7 is Ishtiaq Ahmed --- Judicial Magistrate who recorded statement of Ghulam Ali (not produced) and P.W. Muhammad Amin under section 164, Cr.P.C.
26. ' P.W.8 is Safdar Ali. It may not be irrelevant to point out that Muhammad Aslam Qazi --- the Investigating Officer died in an encounter with dacoits, therefore, he appeared on his behalf as he had worked with said Investigating Officer. He produced various documents and identified the signature and handwriting of deceased . Investigating Officer. He also tendered F.S.L. Report and Report of Ballistic Expert as Exh.P./8-H and Exh.P./8-J.
27. ' The accused disputed and denied the incriminating pieces of evidence in their statements under section 342, Cr.P.C. However, they opted not to appear as their own witness within the purview of section 340(2), Cr.P.C. Defence produced three witnesses namely Professor Abdul Aziz, D.W.1, Muhammad Murad, D.W.2 and Shah Murad D.W.3. At the conclusion of trial, the learned trial Court convicted and sentenced the appellants as mentioned hereinbefore.
28. ' We have heard Mr. Nazir Ahmed, learned counsel for appellants, Mr. Anwar-ul-Haq, Advocate on behalf of Mr. Mohsin Javed, learned counsel for complainant and learned Assistant Advocate- General for the State, have also gone through the record of the case.
29. ' The learned counsel for appellants has argued that there is no evidence on record to connect the appellants with the commission of alleged offence except the statement of P.W. Muhammad Amin.
30. He maintained that actually he is not an eye-witness, in that, his statement was recorded after seventeen days, without any explanation, despite the fact that he was real nephew of deceased, and if his statement is excluded from consideration, there is no legal evidence on record to maintain conviction. Learned counsel further submitted that in such eventuality recovery of weapon, even if believed, and Report of Ballistic Expert would not be sufficient to maintain the conviction. Learned Assistant Advocate-General, on the other hand supported the impugned judgment and argued that conviction can be maintained even on the basis of solitary statement and that close relationship by itself is no ground to exclude his statement from consideration. Mr. Anwarul-Haq while adopting the arguments of learned Assistant Advocate-General added that there was no justification to award lesser punishment, and in any case, no reason has been assigned. In reply, Mr. Nazir Ahmed, learned counsel for convicts (who have been served with notice of enhancement through Superintendent Jail) has maintained that convicts deserve acquittal.
31. ' We have considered the contentions of learned counsel for parties in the light of the record, which has been gone through carefully including the impugned judgment.
32. Ocular evidence ' P.W.3 deposed that incident took place on 19th March, 1999 at about 8-30 p.m. He alongwith Ghulam Ali (not produced) were sitting in the hostel. They heard fire shots from the house of accused Muhammad Khan (a Chowkidar of hostel). They rushed and saw accused Muhammad Khan and Khair Muhammad armed with shot guns. Accused Muhammad Khan shot Abdur Rehman dead, whereas accused Khair Muhammad hit the deceased with the butt of shot gun.
33. Accused Muhammad Khan warned them and kept them away. Stating further that accused Muhammad Khan dragged his wife from inside the house and shot her dead with rifle. According to witness, they hired a taxi to inform the relatives of deceased Abdur Rahman but by the time they reached, they had the knowledge. Also that his statement was recorded by police, as well as Judicial Magistrate. In cross-examination he admitted that he was not regular student of college.
34. He passed Matriculation Examination in 1994 and went to College on the eventful day (19th March, 1999) to fill up the form. He claimed that they were residing with one Sumundar Khan, a student of first year and residing in hostel. The house of Muhammad Khan was at a distance of 50/60 paces.
35. Incident took place inside the house and the same was not visible for a person, sitting in the lawn.
36. He claimed that his statement was recorded after two/three days of the incident and denied that same was recorded after seventeen days, however, he maintained that Judicial Magistrate recorded his statenient after two/three days of the incident. Again said that Magistrate recorded statement, two/three days after the statement recorded by police. He admitted that deceased was his uncle and so is the complainant Murad Bakhsh. Shahnawaz is his cousin. They all reside at Jhat Pat (Dera Allah Yar). He also admitted that he was student of Elementary College, Quetta and Identity Card so issued was valid upto 28th February, 1999 and that Samadar Khan was not present with them. It may also be noted that Professor Abdul Aziz, Principal of College was produced as D.W.1. According to him Samundar Khan was not a hostler. And that from 20th to 22nd March College was closed due to Local Bodies Elections.
37. ' It may be seen that eye-witness lived at a distance of sixteen miles from place of occurrence and failed to justify his presence on the spot. He was a chance witness and had not satisfactorily accounted for his presence. He had no business to be present at the place of occurrence at the relevant time. Samundar Khan was neither produced nor was residing in the hostel so his statement that he was living with Samundar Khan is not getting any support, specially when Principal (D.W.1) has stated that College was closed till 23rd March, 1999 (23rd being a holiday) and that Samundar Khan was not a hostler. P.W.3 also admitted that Samundar Khan was not with them.
38. ' His explanation that he went there to fill up the form is neither confidence-inspiring nor appeal to reasons, particularly in the absence of further details. He is real nephew of deceased Abdur Rahman and complainant Murad Baldish. His statement under section 164, Cr.P.C. Was recorded by Judicial Magistrate (P.W.7) on 6th April, 1999 and even if his statement is believed that same was recorded after two/three days of police statement, he gave statement to police on 15th or 16th day of incident, which itself robs it of its credibility. No explanation has been furnished of this inordinate delay, particularly when deceased was his real uncle. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. (or 164, Cr.P.C.) is recorded with delay, without offering any plausible explanation. The witness has neither successfully established his presence at the place of incident nor there is any corroboration to his statement in order to make it admissible. The same is ruled out of consideration. Also his statement is not getting support from medical evidence, particularly against accused Khairo and the fact that rifle instead of shotgun was used in the commission of offence, Last seen/circumstantial evidence ' Thus, we are left with last seen/circumstantial evidence against the accused. Murad Bakhsh (P.W.1) deposed that he alongwith his brother Abdur Rahman were present in their house. Prior to day of incident, accused Muhammad Khan twice visited their house and told deceased Abdur Rahman that he would manage a job for him. On the day of incident, accused visited their house for the purpose aforesaid and asked deceased Abdur Rahman to accompany with him. According to witness, he also deposed that Muhammad Siddique, his brother would also help them in the matter. Alleging further that at about 4-00 p.m. His brother accompanied by accused Muhammad Khan proceeded to Usta Muhammad and also took Rs,30,000 with him. At about 9-00 p.m. His nephew Shahnawaz came and asked about Abdur Rahman. And then told him that he had received a call from Usta Muhammad that Abdur Rahman had been killed on the accusation of Siah Kari with Murad Bibi, wife of accused Muhammad Khan. He also disclosed about motive. In cross-examination, he explained that accused Muhammad Khan visited his house even two/three days prior to incident. They were on visiting terms. His brother told him that he was also taking money with him. Also that Muhammad Khan informed him that Muhammad Siddique and Khair Muhammad alias Khairo were also with him.
39. ' It may be seen that the statement of witness has three parts. Firstly, and most important is "last seen evidence", secondly receipt of information of murder through Shahnawaz, and thirdly motive.
40. But it is important to point out that statement of P.W.1 regarding "last seen evidence" has not been seriously and effectively challenged, in cross-examination. This part of statement is very brief, appears to be straightforward, natural, truthful and confidence-inspiring, particularly in the absence of any challenge as hereinbefore mentioned. Now as far as so-called improvements in his statements are concerned, these are not related to last seen evidence. It may also be noted that witness was honest enough to say that his brother told him that he was taking money with him or that Muhammad Khan informed him that accused Khair Muhammad and Muhammad Siddique (discharged by police) were with him or that Muhammad Khan told him that Muhammad Siddique would help them in getting a job. The improvements, if any, are in relation to news of murder received by him, taking of money or stated association of Khair Muhammad and Muhammad Siddique. And as these do not in any way effect his statement qua "last seen" against Muhammad Khan, therefore, his statement is important incriminating piece of evidence and is a reliable witness, particularly when the so-called improvements have not been even proved. Thereis also no reason, why should he falsely implicate him.
41. ' P.W.5 Munir Ahmed has also furnished last seen evidence. According to him, on the day of incident accused Muhammad Khan and Khair Muhammad visited their house and took his father on the pretext of service. And his father proceeded to Usta Muhammad at 4-00 p.m. In the company of accused Muhammad Khan and Muhammad Yaqoob (alias Khairo). However, on receipt of information that his father had been killed by accused in collusion with Khair Muhammad on the accusation of Siah Kari with Murad Bibi, they proceeded to Usta Muhammad. Report was lodged by Murad Bakhsh, his uncle. Now it is important to point out that his arrival at Usta Muhammad cannot be disputed, in that, he is witness to various inventories including taking into possession of three empties from the place of incident. He denied the suggestion that accused did not visit his house on the day of incident. We have carefully gone through the statement of P.W.5 and are of the view that witness is trustworthy and reliable. The only portion of statement, which cannot be safely relied upon is the portion, wherein he has also stated that on the day of incident, Muhammad Yaqoob also visited his house. It may be noted that this portion of statement is not getting any support from the statement of his uncle (P.W.1), who has stated that Muhammad Khan told him that accused Khair Muhammad was also with him. Settled principle of appreciation of evidence is that maxim "falsus in uno falsus in omnibus" is not applicable in Pakistan for discarding the evidence of a witness as a whole and hence, so much of the evidence, which is credible can be accepted.
42. Besides, there is statement of D.W.2 Muhammad Murad and D.W.3 Shah Murad to the effect that accused Khair Muhammad was on duty as Chowkidar at Government Girls College, Dera Allah Yar, at a distance of 16 miles from the place of incident. It appears from the evidence that as accused Khair Muhammad had visited the house of deceased on previous occasions and as accused Muhammad Khan statedly told to Murad Bakhsh that he was also with him, therefore, he was also wrongly implicated. Accordingly, we conclude that accused Muhammad Khan visited the house of deceased and persuaded him to accompany him on the pretext of getting a job. And that they both left the house of P.W. Murad Bakhsh and P.W. Muhammad Munir at about 4-00 p.m. For Usta Muhammad.
43. ' Now it may be seen that incident took place at about 8-30 p.m. 16 miles away (1 to 1-1/2 hours' journey) at Usta Muhammad. The place of incident is house of accused Muhammad Khan, who was a Chowkidar of hostel. It has come on record through the evidence of D.W.1 that College was closed and hostel was lying vacant due to Local Government Elections from 20th March, 1999 and 22nd March, 1999 (23rd March, being a public holiday).
44. ' The value of the circumstantial evidence or last seen evidence has been examined by the Honourable Supreme Court in a case reported in PLD 1996 SC 305 and rule was laid down in the following words:- "From the above reports, it is evident that the circumstances, namely, that the deceased was last seen with the accused person is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the accused persons with the commission of offence."
45. ' It is further observed in the said judgment:-- ' "I may observe that while appraising the circumstantial evidence, the Court is to keep in mind the location of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about' the incident, the simpliciter denial on the part of the accused will now be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of the accused's innocence.
46. ' I may further observe that in criminal cases though the Courts are supposed to follow the well- settled principles of criminal jurisprudence, namely, that an accused person is presumed to be innocent, that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible, the view which favours the accused person should be preferred; and that all benefit of doubts should be extended to the accused, but at the same time, the Courts should also take notice of the changing circumstances of the present days.
47. Even in case where eye-witnesses are available, they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won-over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities."
48. ' Applying to above principles it may be seen that accused was in the company of Muhammad Khan. He was taken away from his residence at Dera Allah Yar on the pretext of getting a job. After travelling they reached the house of Muhammad Khan at Usta Muhammad which must have been consumed 1 to 1-1/2 hours. Abdur Rehman was found dead outside the house of Muhammad Khan, a Chowkidar of College. His wife was also found dead inside the Main Gate. Accused Muhammad Khan was arrested after a short time alongwith his licensed rifle. In the circumstances, it was necessary for the accused Muhammad Khan to give a reasonable explanation of circumstances which led to the death of two deceased inside and outside his house or at least to give an explanation, as to what happened after they left the house of P.W.1 and P.W.5 from Dera Allah Yar.
49. At the cost of repetition, it may be stated that statements of both the P. Ws. That deceased Abdur Rehman was last seen alive in the company of accused Muhammad Khan has not been shattered in cross-examination. It may also be noted that the accused has either denied or shown his ignorance about the incriminating pieces of evidence in his statement under section 342, Cr.P.C. It would be appropriate to reproduce some of the questions and answers:-- ' Q.No,1.--- Is it a fact that on 19-3-1999, you went to Dera Allah Yar, and told (deceased) Abdul Rahman to accompany you to Usta Muhammad for the purpose of getting Government service to him with the help of your brother Muhammad Siddique?
50. ' Ans. I do not know.
51. ' Q.No,2.--- Is it a fact that at the time when you took Abdul Rahman with you, P.W. Murad Bakhsh complainant was also present and at the time of departure, Abdul Rahman took with him Rs,30,000 (thirty thousand) and two photostat copies of Identity Card at about 4-00 p.m.?
52. ' Ans. I do not know.
53. ' Q.No,5.--- Is it a fact that crime weapon Rifle No,A-9932 was recovered from your possession which was produced in Court vide memo. Exh.P./6-A?
54. ' Ans. It is not correct.
55. ' His simple denial and ignorance were not sufficient in view of the statement of P.W.1 and P.W.5, particularly when deceased were done to death in front and inside his house.
56. ' Accordingly we hold that the circumstances that the deceased Abdur Rehman was last seen alive at Dera Allah Yar with the accused person and his dead body was found outsiae his house in the premises of Government College, Usta Muhammad, where he was living as Chowkidar and dead body of his wife was found inside the house, yards away in a reliable piece of evidence, if corroborated by other pieces of evidence, which are interlinked and which clearly connect the accused persons with the commission of offence. In this case the prosecution produced recovery of licensed rifle of accused (crime weapon), empties picked up from the spot and the motive, which would be dealt with separately.
57. Recovery empties picked up at the spot and Ballistic Expert Report ' Wahid Bakhsh (P.W.6) deposed that on 19th March, 1999, he was posted at Police Station Usta Muhammad. On receipt of information about the incident, he accompanied by Muhammad Aslam, S.H.O. And others arrived at the place of incident and when they reached near Irrigation Colony, arrested accused Muhammad Khan. A rifle (crime weapon) was recovered from him alongwith copy of its licence, which was taken into possession vide Inventory Exh.P./6-A. He identified the rifle as Article P/18 and also produced in Court its licence as Article P/19, which were taken into possession from accused. In cross-examination he explained that at the time of arrest, accused was alone and was running in Irrigation Colony. Inventory was prepared at the spot. The prosecution witness was cross-examined, but his testimony has not been impeached nor discredited nor the defence was able to rebut the prosecution evidence. In our considered opinion, the learned trial Court rightly found that recovery of rifle was effected from the accused. It is important to point out at this stage that Article P/18 is a licensed rifle in the name of accused Muhammad Khan and copy of its licence recovered from accused was also produced as Article P/19. In cross-examination it was not disputed that rifle so produced was a licensed rifle of accused Muhammad Khan. Similarly place of incident was inspected in presence of Munir Ahmed (P.W.5) and three used cartridges of .7 m.m. Rifle were picked up from the place of incident. The same were taken into possession vide Exh.P/5-D. The only question put to P.W.5 in cross-examination was that he did not affix any mark of identification on three empty cartridges, recovered from the spot, however, the witness explained that empties were of a rifle. These empties and recovered rifle were sent to Ballistic Expert and report was in positive (Exh.P/8-J). The same was not challenged, when tendered by P.W.8 and even no challenge was thrown at the time of arguments. However, the accused in his statement under section 342, Cr.P.C. Has disputed the recovery of rifle from him and showed his ignorance about the recovery of three empties picked up from the spot and report of Ballistic Expert. It may be seen that according to Marg Report (Exh.P/8-B and Exh.P/8-C) injuries to deceased were result of four shots. Three used cartridges were picked up from the spot and as it was not reloaded, therefore, fourth used cartridge was not found. There is sufficient evidence on record to prove that rifle was recovered from the possession of accused, empties were picked up from the place of incident and as there is report of Ballistic Expert that these used cartridges were fired from the licensed rifle Article P/18, therefore, these pieces of evidence furnished sufficient corroboration of the fact that accused committed the murder of Abdur Rahman and Murad Bibi, hence appropriately, in our considered opinion, the learned trial Court rightly relied upon these pieces of evidence.
58. Motive ' P.W.1 deposed that about 5/6 years ago one Dil Murad fractured the leg of Muhammad Khan and the grievance of accused was that they Were on the side of Dil Murad. According to him, due to this ill-feeling, the accused had unjustifiably killed his brother. Now it is important to point out that this piece of evidence was not at all challenged by defence in cross-examination. The only improvement/contradiction brought on record was that he did not depose about the fracture of accused's leg. However, it may be explained that the same motive with sufficient details was alleged even in F.I.R. Exh.P./1-A. It may be added that prosecution was under no obligation to prove the motive but since we are looking for corroboration of circumstantial evidence, therefore, it is concluded that, same is corroborated by the motive alleged and proved by the prosecution, which leads additional support to our finding.
59. ' For the reason hereinbefore mentioned, in our view prosecution has successfully proved its case through reliable witnesses (P.W.I and P.W.5). The strong circumstantial evidence appearing against accused Muhammad Khan is supported by the recovery of the rifle which matched with the empties recovered from the spot and motive. After appraisal of evidence and considering all the facts and circumstances of the case, we are satisfied that factually accused Muhammad Khan had committed this cold-blooded double murder and he has not been able to claim his innocence on any hypothesis, despite fair trial. His simple plea of denial up to Court of appeal was not enough.
60. ' Before dealing with question of quantum of punishment, we may point out that learned counsel for appellants during course of argument claimed clean acquittal and did not offer any argument for lesser punishment, despite the fact that notice for enhancement has also been issued. However, we at our own while writing judgment noted that site inspection note (Exh.P./5-A) indicates that deceased Abdur Rehman and deceased Murad Bibi, were half naked. Also that there was no corresponding hole of injury No,4 on the trouser of Abdur Rehman. Site plan (Exh.P./8-A) is also to the same effect. However, after careful consideration of the case we are of the view that actually Abdur Rehman died instantaneously due to injuries Nos.1 to 3 (which is/may result of one shot as indicated from Report Marg Exh.P./8-B) and injury No,4/5 was caused to him, after taking of his trouser. Similarly the trouser of Murad Bibi was also taken off in order to give colour of Siyah Kari to this brutal murder. We also noted that according to medical evidence shot was fired, (injuries Nos.1 and 3) at the deceased Abdul Rahman from a distance, in that, blackening was not present and deceased was killed at some distance from appellant's house as indicated from the site plan. And as against this, lady was done to death inside the house and from a close range, in that, there is blackening (injury Nos.1 and 3). It is a premeditated and cold-blooded murder and nobody is allowed to take law in his hand in the name of so-called "Ghairat". This is not only against Injunction of Islam but law and Constitution too. Illegal century old customary practice cannot be preferred over the dictates of Allah as revealed in Surah Al-Noor, Hadith of Holy Prophet (p.b.u.h.) in Owamer Lil Jani's case and Constitution/law. Life cannot be taken away in Islam or law on the basis of mere accusations or rumours or otherwise. Siah Kari has nothing to do with the teaching of Islam. The Honourable Supreme Court in the case of Abdul Zahir v. The State 2000 SCM R 406 has laid down that by and large all the cases of grave and sudden provocation would not ipso facto fall within the purview of section 302(c), P.P.C. Particularly those of Qatl-e-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of "Siyah Kari". In this context their Lordships not only made reference of observations of Maulana Muhammad Taqi Usmani, J.
61. Reported in PLD 1989 SC 633 but also referred to an Article authored by Professor Rafiullah Shahab, a religious scholar, published in Daily "The Nation". The learned Scholar after referring Verse 35 of Surah Al-Ahzab, Verse 228 of Surah Al-Baqrah, Surah Al-Noor and Hadith of Holy Prophet (p.b.u.h.) has opined that husband cannot divorce his wife even on the charge of immorality. He has to prove the charge in an Islamic Court and those who accused their wives and have no witnesses except themselves, let them testify four times bearing Allah to witness that he is of those who speak the truth. It would be highly instructive to reproduce Surah XXIV (Nur), Verses 4 to 9 from the Holy Book:--
4. And those who launch A charge against chaste women, And produce not four witnesses, (To support their allegation), - Flog them with eighty stripes; And reject their evidence Ever after : for such men Are wicked transgressors.
5. Unless they repent thereafter And mend (their conduct): For Allah is Oft-Forgiving, Most Merciful.
6. And for those who launch A charge against their spouses, And have (in support) No evidence but their own,- Their solitary evidence (Can be received) if they Bear witness four times (With an oath) by Allah That they are solemnly Telling the truth.
7. And the fifth (oath) (Should be) that they solemnly Invoke the curse of Allah On themselves if they Tell a lie.
8. But it would avert The punishment from the wife, If she bears witness Four times (with an oath) By Allah, that (her husband) Is telling a lie.
9. And the fifth (Oath) Should be that she solemnly Invokes the wrath of Allah On herself if (her accuser) Is telling the truth."
62. ' The learned author concluded in the following words:- ' "Thus, while killing accused women is not Islamic by any standard. The believers are not even allowed to divorce them without establishing their accusation. We profess our love for Islam and demand its enforcement in the country, but ignore clear Qur'anic Injunction about the rights of woman. Dozens of innocent women are slaughtered in the name of honour in our society. Almighty Allah eliminated the evil of Jahilliah period, and thus, no case of 'honour' killing was reported in the early period of Islam."
63. ' We think that observations of Honourable Supreme Court that by and large all the cases of grave and sudden provocation would not ipso facto fall under section 302(c), P.P.C. Particularly those of wife, sister and other female relatives on the allegation of "Siyah Kari" were made due to most unfortunate and shocking practice of Double murder in the name of so-called Honour Killing, specially in this part of country. The Honourable Supreme Court in a recent case reported as PLD 2001 SC 96, observed as under:-- ' "Legally and morally speaking, nobody has any right nor can any body be allowed to take law in his own hands to take the life of anybody in the name of 'Ghairat'. Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-e-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution."
64. ' Similar view was taken in the case of Rasool Bakhsh v. State reported as 2000 SCM R 731. Relevant portion is reproduced below:-- ' "Therefore, there was no justification for any concession other than the one already allowed to the appellant. Even otherwise, murder cannot be condoned on the ground of Siah Kari. Notwithstanding such allegations, murder is to be punished with death unless there are mitigating circumstances to justify imprisonment for life. The appellant in this case has already been dealt with leniently by receiving the lesser punishment of imprisonment for life."
65. ' We can hardly believe that a person who had accompanied with accused and had come all the way from Dera Allah Yar in search of a job, at a persuation of accused could so instantly and easily develop an illicit relationship with a woman, particularly at odd hours (8-30 p.m.) when accused was supposed to be present at his residence being a Chowkidar. On the basis of evidence available on record, we are of the view that it was a premeditated and cold-blooded murder and wife was done to death to give it a colour of "Honour Killing", although the same does not have any sanction either in law or in Islam and so-called customs cannot be preferred. It is the duty of Court to see probabilities and possibilities. However, at trial since it was realised that there was no eye- witness of the incident, therefore, simple plea of denial was raised, instead of so-called plea of grave and sudden provocation.
66. ' Reverting to the question of sentence, we find that there is no mitigating circumstance in the case to justify awarding of lesser sentence. It is amazing to note that even trial Court has concluded that it was a cold blooded murder and an attempt has been made to give false colour of Siah Kari, but in spite of it, lesser punishment has been awarded under section 302(b), P.P.C. This is against law as normal punishment is death. Besides, neither there is anything on record nor even argued that some Wali is direct descendant of offender (relating to murder of Murad Bibi).
67. ' In the result, Criminal Appeal No,(S)91 of 2000 to the extent of Muhammad Yaqoob son of Din Muhammad, Caste Brahvi, alias Khair Muhammad or Khairo is allowed and he is acquitted of the charge. He should be released forthwith, if no#Ht required in connection with any other case. But, appeal filed by Muhammad Khan son of Khalique Dad, Caste Lango Brahvi, is dismissed. However, Criminal Revision No,(S)32 of 2000, for enhancement of his (Muhammad Khan) sentence is allowed and the sentence of imprisonment for life awarded by the learned Sessions Judge, Usta Muhammad, is converted into sentence of Death (he be hanged by the neck till his death). The revision against Muhammad Yaqoob stands dismissed, as he has already been acquitted.
68. Directions of payment of Diyat and fine are set aside. 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.