' ZAFAR PASHA CHAUDHARY, J.--- This judgment will dispose of Murder Reference No,172 of 1995 and Criminal Appeal No,458 of 1995. Both are directed against the judgment, dated 17-7-1995 passed by Mr. Parvaiz Mahmood Mian, Additional Sessions Judge, Lahore, whereby Muhammad Shoaib (40 years) appellant was found guilty for the murder of Saeed Ahmad and by convicting him under section 302, P.P.C., he was sentenced to death and also to pay a fine of Rs,20,000, in default to undergo R.I. For six months. He has also been ordered to pay Rs,20,000 as compensation to the legal heirs of the deceased Saeed Ahmad and in default to further undergo R.I. For six months.
Muhammad Ashraf (33 years) appellant has been found guilty for the murder of Saeed Ahmad by application of section 34, P.P.C. And convicted him under section 302, P.P.C. And sentenced to death on this count as well, to pay Rs,20,000 as fine and Rs,20,000 as compensation to the heirs of Saeed Ahmad deceased on this count and in default to undergo six months' R.I. For each default i.e, of fine as well as compensation.
' Muhammad Ashraf appellant was also found guilty for murder of Ashiq Ali deceased and convicted him under section 302,. P.P.C. And sentenced to death, also to pay a fine of Rs,20,000 and in default to undergo six months' R.I. And to pay Rs,20,000 as compensation to the legal heirs of Ashiq Ali deceased and in default to undergo six months' R.I. Muhammad Shoaib appellant has also been found guilty for the murder of Ashiq Ali by application of section 34, P.P.C. And convicted him under section 302, P.P.C. And sentenced to death on this count as well, to pay a fine of Rs,20,000 and in default to undergo six months' R.I. And also to pay compensation of Rs,20,000 to the legal heirs Ashiq Ali deceased and in default to undergo six months' R.I., as such, both the appellants have been convicted for murder of Saeed Ahmad and Muhammad Ashraf on two counts.
2. The brief facts of the case as revealed from Exh.C.W.2/B (F.I.R.) lodged by Mst. Rehmani P.W.3 that her son Saeed Ahmad deceased aged about 23 years had purchased green fodder from Hafiz Khalil. On the day of occurrence i.e, 2-1-1994 in the evening. Saeed Ahmad complainant's son alongwith Ashiq Ali (both deceased) in the accompany of Muhammad Arshad and Abdul Ghafoor had gone to cut fodder on the Tractor Trolly from the fields oT Hafiz Khali within the area of village Waseeman. The complainant alongwith Mehar Khan went to inquire about her son. She saw that Shoaib appellant armed with .12 bore gun, Muhammad Ashraf appellant armed. With .12 bore gun and Hassan Muhammad armed with Sota all three sons of Fajar Khan, residents of Dera Mangli, reached on their Tractor. Hassan Muhammad raised a Lalkara that Saeed Ahmad should not be spared and he be taught a lesson of abusing their girl, on which Muhammad Shoaib fired a shot from his gun hitting Saeed Ahmad deceased on his forehead who fell down. Ashiq Ali came forward to rescue, Hassan Muhammad again raised a Lalkara, on which Muhammad Ashraf appellant fired a shot hitting the right flank of Muhammad Ashraf. On raising alarm by the complainant and Mehar Khan, the accused-person made good their escape.
3. The motive was stated to be that Saeed Ahmad and Shoaib, etc., had a dispute on the flow of drain-water a few days earlier. On the day of occurrence as well, Saeed Ahmad and Shoaib's daughter had a dispute over the drain wherein abuses were exchanged.
4. Saeed Ahmad died at the spot whereas Ashiq Ali was removed to the Hospital. He succumbed to the injuries subsequently on the same day. It was alleged that the occurrence took place at the behest of Abdul Ghafoor.
5. Initially, the F.I.R. Had been lodged but being not satisfied with the police investigation, the first informant i.e, Mst. Rehmani instituted a private complaint wherein the accused-appellants i.e, Muhammad Shoaib, Muhammad Ashraf alongwith Hassan Muhammad and Abdul Ghafoor were summoned to face the trial. The learned trial Judge examined as many as nine witnesses produced by the complainant and remaining five witnesses who had been cited in the challan and were associated with the investigation were examined as C.Ws. Apart from them, Mst. Zahida and Noor Ahmad Nasim were examined as D.W.1 and D.W.2.
6. During course of trial, Dr. Abdul Hameed (P.W.6) was examined. He conducted the post-mortem examination on 3-1-1994 of Ashiq Ali aged 20/22 years and found the following injury on his person:-- ' A lacerated fire-arms wound 5.5 into 4.5 c.m. In size with collar of abrasion around oval shape with inverted margin was present on the right upper outer aspect of illiac bone 2.5 c.m. Below right anterior superior illacs spine and 15.5 c.m. Right to the mid line and 33 c.m. Below axilla.
' The injury was ante-mortem, caused by fire-arm and was sufficient to cause death in the ordinary course of nature.
7. On the same day i.e, 3-1-1994, autopsy of Saeed Ahmad aged about 23 years was conducted and the following injuries were noted on his person:- ' Injury No, 1 . A communicated complex wound gutter shape involving all the bones of the face, nose and skull (fractured) starting from left side and was 4.0 c.m. Above left side of chin and 6 c.m.
From left ear. Brain matter was badly crushed, lacerated and coming out of skull.
' Injury No,2. A bruise 4 x 3 c.m. In size was present on the front of left shoulder, 4 c.m. Below top of shoulder and 11 c.m. From midline and 4 c.m. Above left axillary fold.
' Injuries were ante-mortem. Injury No,1 had been caused by fire-arm and was sufficient to cause death in the ordinary course of nature.
8. Din Muhammad P.W.1, Mst. Rehmani P.W.3 and Muhammad Arshad P.W.4 furnished the eye- witness account of the occurrence. Mst.
Rehmani reiterated her statement as had been made by her in the and as such made a statement in the Court on oath on the same lines describing the incident as had been detailed above. Both the other witnesses i.e, P.W.1 and P.W.4 made statements similar and identical to that of Mst.
Rehmani, as such, supported and corroborated her statement in all material details. All the witnesses also stated abou' the motive which as noted above arose on account of abuses on cleaning the sludge water in the drain. Apart from the aforesaid witnesses, P.W.2 Muhammad Yousaf, Lambardar was also examined on the point of motive who, too, stated that the occurrence had taken place on account of dispute over 'cleaning of the sludged water. P.W.5 Qasim Ali identified dead bodies.'P.Ws.7 and 8, namely, Muhammad Yousaf, Patwari and Niamat Ali Constable, respectively, are formal witnesses. P.W.9 Ch. Farzand Ali, D.S.P. Conducted the investigation and on completion of the same recommended for sending up the accused-persons for trial. The C.Ws.1 to 3 are formal witnesses from police who performed various functions assigned to them during investigation. C.W.4 Muhammad Aslam, A.S.-1., conducted the necessary investigation. He also arrested the accused-persons Muhammad Shoaib, Muhammad Ashraf and Hassan Muhammad on 14-1-1994. On 23-1-1994, Muhammad Shoaib led to the recovery of gun P.9.
After completing the investigation, he submitted the challan against the accused-persons.
9. Amongst important documents brought on file are reports of Chemical Examiner Exhs.P.K. And P.L., report of Serologist Exh.P.M. And report of Forensic Science Laboratory Exh.P.N. As per report of Forensic Science Laboratory Exh.P.N, both the crime empties marked as C.1 and C.2 had been found to have been fired from the shot gun recovered from Muhammad Shoaib appellant.
10. On close of the prosecution case, Muhammad Shoaib accused examined under section 342, Cr.P.C. He denied the allegations levelled against him. He, however, admitted that the gun used in the occurrence was his licenced gun. Similarly, Muhammad Ashraf accused-appellant also denied the allegations made against him and adopted the written statement made by Shoaib vide Mark- DD. In support of the defence version, Mst. Zahida D.W.1 aged 15 years appeared. She stated that she had gone to fields to answer the call of nature. Saeed Ahmad tried to assault her criminally.
She however resisted and made a complaint to her mother. On the same day at about 2-00 p.m.
Saeed Ahmad while passing by the side of their house threatened her that she was saved in the morning but he will not spare her and take her away in the night. So, she narrated the incident to the mother who onward told it to Muhammad Shoaib appellant. According to the defence version, the occurrence was committed as a result of losing self-control. In the evening he rushed towards Saeed Ahmad deceased when he was carrying his licensed gun. They scuffled and a dispute ensued thereafter, as a result of which trigger of the gun was pulled by Saeed Ahmad as a result of which Ashiq Ali was injured. He picked up a Dattar and intended to injure the appellant (Muhammad Shoaib), therefore, to defend himself he fired a shot on which he (Saeed Ahmad) was injured. According to him, he alone was present at the time of occurrence. His brothers have been falsely implicated.
11. The learned counsel for the appellants initially tried to point out some discrepancies in the statements of the witnesses and laid great stress on the acceptability of the motive as set up by the prosecution. According to him, no dispute with regard to cleaning of the drain or removal of sludged water took place. In fact, as narrated by Muhammad Shoaib in his written statement Mark DD and also supported by his daughter Mst. Zahida D.W.1, the occurrence took place on account of incident assault made by Saeed Ahmad deceased on Mst. Zahida daughter of Muhammad Shoaib and niece of Ashrat He argued rather emphatically that the murder took place as a result of grave and sudden provocation, therefore, the conviction of the appellants under section 302, P.P.C. Is not maintainable. They be acquitted or at the best may be convicted under section 302-C, P.P.C. And be let off with the sentence of the imprisonment already undergone.
12. The learned counsel for the State, however, supports the impugned judgment and submits that double murder had been committed. The defence version as put up by the appellants is totally unbelievable, therefore, the same may outrightly be discarded. According to learned counsel for the prosecution, the prosecution had proved the case against the appellants beyond doubt. The witnesses have no false motive to falsely implicate the appellants.
13. We have heard the arguments and have examined the record. We find that as regards the accusation made by P.W.1, P.W.3 and P.W.4 who have furnished the ocular account, they all made consistent statements. They do not have any enmity or motive to falsely implicate the appellants.
All the three witnesses have supported each other on all material points. The statements of P.Ws.
Are not only supported or corroborated by each other but the statements are fully supported by the medical evidence as well. The F.I.R. Was lodged promptly because occurrence took place at the evening and the matter was reported by 7-00 p.m. Apart from the medical evidence, the case against Muhammad Shoaib appellant is supported by the report submitted by the Forensic Science Laboratory Exh.P.N. We, therefore, find that their evidence is confidence inspiring and safe reliance can be placed on their testimony. The learned trial Judge, therefore, has rightly recorded conviction of the appellants under section 302-B, P.P.C. As both of the appellants have mounted the assault jointly, therefore, both were acting in furtherance of their common intention as such application of section 34, P.P.C. Does not suffer from any illegality.
14. However, considering the quantum of sentence, we cannot remain oblivion of the fact that the motive set up by the prosecution that occurrence was a consequence of a dispute arising out of cleaning of sludged water, is not acceptable. The prosecution when sets up a motive, is supposed to prove the same satisfactorily. In the instant case, we are unable to believe the motive alleged by the P.Ws. At the same time, we find that the defence version put forward by Muhammad Shoaib appellant especially the part relating to the commission of actual murder appears io be totally unplausible and unacceptable. The fact that he flew into rage and thereafter tried to punish Saeed Ahmad deceased but he in return overpowered him and during scuffle the trigger was pulled as a result of which Ashiq Ali deceased received injury and thereafter on an attack intended to be made by Saeed Ahmad deceased, he fired at him in order to defend himself (Muhammad Shoaib), this part of story appears to be more a fiction than a fact. In this situation, when, with regard to motive neither the prosecution and also with regard to the igniting cause nor the defence has come forward with whole truth, we have to find out the cause of murders from the facts and circumstances as are available on record. We find, especially after going through the statement of Mst. Zahida D.W.1 that Saeed Ahmad deceased would have made some excesses towards her which were reported by her to the mother. That grievance appears to be a real motive for the commission of the present offence. The question whether this occurrence can be treated sufficient as a grave and sudden provocation, we do not consider the same as a grave provocation providing justification to commit murder of two persons. We, therefore, find that the murders were committed by both the brothers as a result of the insult and disgrace done to Mst. Zahida, therefore, the same were committed in order to vindicate the family honour which provides a sufficient mitigation for award of lesser sentence.
15. We, therefore, are of the view that imposition of extreme penalty of death in this case would not be justified. We, therefore, while maintaining the conviction as recorded by the learned trial Judge under section 302-B, P.P.C. And under section 302-B/34, P.P.C. Respectively modify the sentence of death to that of imprisonment for life to both of the appellants on two counts. As the sentence of fine cannot be imposed, the same is set aside. The amount of compensation as awarded by the learned trial Judge is not sufficient, we while keeping in view the background of murders, as noted above, order that Muhammad Ashraf appellant will pay Rs,2,00,000 (Rupees two lacs) as compensation to the heirs of deceased Ashiq Ali whereas Muhammad Shoaib appellant will pay Rs,1,00,000 (Rupees one lac) as compensation to the heirs of Saeed Ahmad deceased. This appeal is, therefore, dismissed and the conviction is upheld and maintained. The amount of sentence is altered and modified in the above terms. Benefit of section 382-B, Cr.P.C. Is extended.
' The sentence of death is not confirmed.
Sentence reduced.