' ZAFAR PASHA CHAUDHARY, J.--- Murder' Reference No,305 of 1995 and Criminal Appeal No,762 of 1995 are being disposed of through this common judgment as both pertain to the case F.I.R. No,498 registered with Police Station Peoples' Colony, Faisalabad under sections 302/324/34/ 337- L(ii)/337-A(ii)/337-D, P.P.C. Three persons namely Nasir Mahmood, Muhammad Rizwan and Muhammad Ramzan were sent up to face trial in the Court of Mr. Pervaiz Ali Chawla, learned Additional Sessions Judge, Faisalabad who on conclusion of the trial acquitted Muhammad Rizwan of the charges against him. However, Nasir Mahmood was convicted under sections 302/34, P.P.C.
On two counts for the murders of Mst. Shafqat Bibi and Muhammad Afzal. He was sentenced to death on two counts. He was also convicted under sections 337-L(ii)/34, P.P.C. For causing injuries to Mst. Sarwari and sentenced to serve two years' R.I. He was further convicted under sections 337- A(ii)/34, P.P.C. For causing injuries to Mst. Naheed Akhtar and sentenced to suffer three years' R.I.
Conviction was also recorded for causing injuries to Atta Ullah P.W.9 under sections 337A(ii)/34, P.P.C. And sentenced to undergo R.I. For three years' also convicted under sections 337-D/34, P.P.C.
For causing injuries to Mst. Musarat Begum and sentenced to undergo R.I. For seven years and to pay Arsh Rs,70,000 to the injured.
' Muhammad Ramzan was convicted under sections 302(b)134, P.P.C. For murders of Mst. Shafqat and Muhammad Afzal on two counts. As he had caused no injury to the deceased, therefore, he was sentenced to serve imprisonment for life on two counts. He was also convicted under sections 337-L(ii)/34, P.P.C. For causing injuries to Mst. Sarwari Bibi and sentenced to serve R.I. For two years, convicted under sections 337-A(ii)/34, P.P.C. For causing injuries to Mst. Naheed Akhtar and sentenced to three years' R.I. Convicted under sections 337-A(ii)/34, P.P.C. For causing injuries to Atta Ullah P.W. And sentenced to serve three years' R.I. He was also convicted under sections 337- D/34, P.P.C. For causing injuries to Mst. Musarat Begum and sentenced to undergo seven years' R.I.
And also to pay Arsh Rs,70,000 to Mst. Musarat Begum.
' All the sentences awarded to both the accused appellants were ordered to run concurrently.
2. The fourth accused namely Ehsan alias Billa had been attributed fire shots to Mst. Shafqat and Muhammad Afzal but he became absconder from law and was declared as a proclaimed offender who has not surrendered till today.
3. Brief facts as revealed from the statement of Atta Ullah Khan P.W.19 vide F.I.R. Exh.P.D./1 are that he was resident of Bishan Singhwala and worked as a Property Dealer, in the same house Muhammad Afzal and Mst. Sarwari Bibi also reside who are his relatives. The complainant had three daughters namely Mst. Shafqat, Mst. Naheed Akhtar and Mst. Firdoos Bibi and a son namely Karamat. Mst.
Shafqat Bibi was married to Nasir Mahmood appellant about three years prior to the occurrence.
She has two daughters aged about two years and one and a half months. Mst. Shafqat Bibi's relations became strained with her husband and she had come to the house of the complainant about 5/6 months prior to the occurrence. On 10-12-1992 at about Esha Vaila Nasir Mahmood came to the house of the complainant to take Mst. Shafqat Bibi (his wife) with him but she refused to accompany him. On 11-12-1992 at the time of Fajjar Vaila i.e, about 5-15 a.m. All the inmates of the house were awake to offer the morning prayer and also to milk the buffaloes, the main gate of the house was open and the electric bulb was on in the courtyard. In the meanwhile, a wagon stopped in the street in front of complainant's house from which Nasir Mahmood, Ehsan alias Billa (proclaimed offender) both of them armed with carbines, Muhammad Rizwan their father armed with Sota entered the complainant's house. Nasir Mahmood dragged Mst. Shafqat Bibi out of her residential room. Mst. Shafqat Bibi (deceased) was not willing to accompany him and tried to get herself released from his grip. Mst. Naheed Akhtar another daughter of the complainant intervened but Nasir Mahmood inflicted a butt blow on her head. Mst. Shafqat Bibi after getting herself released ran towards the house of her maternal uncle Muhammad Afzal. Nasir Mahmood intercepted her and fired a shot from his carbine hitting on her upper arm and breast. She fell down. The complainant came forward to rescue but Muhammad Ramzan appellant inflicted a Sota blow on his head. On hearing the alarm Muhammad Afzal and Muhammad Aslam both brothers, Mst. Sarwari Bibi and Musarat Bibi got attracted to the place of occurrence. They tried to apprehend the assailants whereon Ehsan alias Billa (proclaimed offender) fired a shot from his carbine hitting the head of Muhammad Afzal who fell down. Nasir Mahmood fired a second shot from his carbine on Mst. Musarat Begum injuring her right upper arm and breast. Muhammad Ramzan also gave Sofa blows to Mst. Sarwari Bibi, on middle finger of right hand. Thereafter, the assailants boarded their Wagon No,888-998/KAR, wherein Rizwan co-accused was holding the steering wheel, engine had been started, all the assailants made their escape in that Wagon.
4. Mst. Shafqat Bibi and Muhammad Afzal succumbed to the injuries at the spot. Mst. Musarat was in a serious condition. She was removed to Civil Hospital for treatment.
5. The statement of the complainant was recorded by Akhtar Ali Inspector/S.H.O. P.W.23 on 11-12- 1992 at 6-30 a,m. After recording the statement the S.H.O. Proceeded towards the place of occurrence, initiated formal- investigation and performed various formalities by collecting bloodstained earth, prepared inquest report and despatched the dead bodies to the hospital. He collected empty cartridge P.11 from the place of occurrence and secured the same into possession vide memo. Exh.P.O. He recorded statements of P.Ws. Under section 161, Cr.P.C. And got the site plan prepared. After his transfer the investigation was taken away from him.
6. The prosecution in support of its case examined 23 witnesses which included Dr. Muhammad Anwar Sulehri P.W.2 who medically examined Mst. Musarat Begum P.W.22 on 11-12-1992 at 7-10 a.m.
And noted the following injuries on her person:-
(1) A fire-arm wound of entry with lacerated inverted black margins in an area 7 c.m. x 4 c.m. On front of right arm in the upper and middle parts with multiple fire-arm exit Would with everted margins each measuring about 3/4 c.m. x 3/4 c.m. On inner side of right arm in an area 6 c.m. x 3 c.m. Upper part.
(2) Multiple fire-arm wound of entry with inverted margins each measuring about 1 c.m. x 3/4 c.m.
In an 7 c.m. x 7 c.m. On right upper quadrant of right breast, blackening on the margins present with multiple fire-arm wound of exit with everted margins and fire- arm wound of grazing in an area 17 c:m. x 7 c.m. On left upper quadrant of right breast, right middle portion of left breast and middle part front of chest.
7. On the same day, he examined Atta Ullah Khan complainant P.W. 19 and found the following injuries on his person:--
(1) A lacerated wound 2-1/2 c.m. x 1/2 c.m. Bone deep on left side top of head.
(2) An abrasion 1/2 c.m. x 1/2 c.m. With swelling 6 c.m. x 4 c.m. On back of left elbow.
8. Dr. Abdul Rehman P.W.14 conducted post-mortem examination of Mst. Shafqat Bibi deceased and found the following injuries on her dead body:---
(1) A fire-arm wound 8 c.m. x 8-1/2 c.m. On inner side of left arm with burning and blackening of the edges. Margins of the wound were inverted, 13 c.m. From top of left shoulder. The skin, subscutaneous tissues half of bicepes muscles were blown.
(a) Four circular fire-arm wounds each 1/2 x 1/2 c.m. Blackened and inverted margins on upper and outer chest left side, 10 c.m. Below-top of left shoulder in area of 4 x 3 c.m.
(b) A fire-arm wound 2-1/2 x 2 c.m. On upper part of chest, 4-1/2 c.m. Below left clavical and 6 c.m.
From mid line. First rib, 2nd rib, sternal fractured. On exploration of the thorasic cavity, right plaura, right lung was pierced through and through. Left plaura and left lung, upper lobe and lower lobe pierced. The thorasic cavity was full of blood. There was no exit wound. One pellet was recovered from 4th, 5th, 6th, 7th, 8th intercostal spaces left side back of chest one pellet was recovered from front of right chest subcutaneously. Five pellets were sealed in a packet and handed over to the police.
9. He also conducted the post-mortem examination of Muhammad Afzal Khan deceased on the same day and observed the following injury on his dead body:---
(1) A fire-arm wound 4 x 4 c.m. On top of head with burnt hair and blackening around the edges.
Edges of the wound were inverted. Skull bones were fractured in fragmant. Blood with shattered pieces of bones and brain was draining out from the wound.
' Injury had been caused with fire-arm, was ante-mortem and was sufficient to cause death in ordinary course of nature.
10. Atta Ullah complainant P.W.19, Mst. Sarwari Bibi P.W.20, Mst. Naheed Akhtar P.W.21 and Mst.
Musarat Begum P.W.22 furnished the eyewitness account of the occurrence. All the four P.Ws. Are resident of the house of complainant and were injured in the incident. They fully supported the prosecution version as had already been given by Atta Ullah complainant in the F.1.R. All the witnesses supported each other on all the material points and as such lend corroboration to each other. The presence of witnesses in the house being resident of the same house and also being injured in the occurrence stands fully established. All the witnesses were subjected to fairly lengthy cross-examination but they successfully stood the test of cross-examination and their testimony could not be discredited.
11. The learned Prosecutor tendered in evidence reports of Chemical Examiner Exh.P.KK. And that of the Serologist Exh.P.LL. And also Forensic Science Laboratory Exh.P.MM. And .With that closed the case for prosecution.
12. The appellants were examined, under section 342, Cr.P.C. They all denied the allegations against them and pleaded that they have been falsely implicated on account of enmity between the two families. Nasir Mahmood appellant in answer to question No,8, put forward the defence plea in the following words:--- ' "I am innocent. The complainant party had a quarrel between themselves and in that quarrel they injured one another and also killed Mst. Shafqat Bibi deceased who wanted to live separately, but my means did not allow me to fulfil her desire. She came to her parents alongwith the children: I had gone on the previous night of the occurrence to the house of complainant, the maternal aunt of Mst. Shafqat Bibi deceased had promised to send Mst. Shafqat Bibi after 3/4 days after satisfying her to accompany me. Muhammad Afzal Khan deceased opposed to the sending back of Mst.
Shafqat Bibi, whereas Atta Ullah P.W. And Afzal Khan, picked up the tight. Afzal gave a Sota blow to Atta Ullah. During this incident, Mst. Naheed Akhtar also suffered injuries, upon which Atta Ullah flew into rage and he fatally fired on Afzal Khan deceased and also fired at Mst. Shafqat Bibi saying that he would settle the matter altogether. The present prosecution story has been concocted in collusion with the police. The witnesses have deposed falsely against me."
13. No defence evidence was produced nor any of the accused appeared as his own witness as prescribed under section 340(2), Cr.P.C.
14. The learned trial Judge holding that prosecution has proved its case' beyond doubt discarded the defence version and proceeded to convict the appellants and passed the sentence as detailed supra.
15. The learned counsel on behalf of the appellants initiated his arguments with the submission that the prosecution version was inconsistent and self-contradictory. He, therefore, although half- heartedly, supported the defence version 'as put forward by Nasir Mahmood appellant. However, realising that the defence version being totally unacceptable and the prosecution evidence being confidence inspiring and the same could not be disbelieved or rejected, took up his alternative plea of lesser punishment qua Nasir Mahmood appellant and pleaded that Muhammad Ramzan appellant being father and elder of the family had been falsely implicated. In support of his arguments he laid much stress on the fact that appellants had no intention to commit murder..
Nasir Mahmood and his companions had in fact gone to the house of complainant to take his wife Mst. Shafqat Bibi with them. It is pointed out that father of Mst. Shafqat Bibi i.e, Atta Ullah was willing to send her daughter. Alongwith Nasir Mahmood, therefore, an earnest and genuine effort was being made to take Mst. Shafqat Bibi alongwith them. It is next contended that there was no pre- planning or premeditation for committing any murder. The incident took place as a sudden Clare- tip on account of denial of Mst. Shafqat Bibi not to accompany her husband and also on account of interference of Muhammad Afzal her maternal uncle who did not want that Mst. Shafqat Bibi should join her husband. As, according to the learned counsel the incident was result of a sudden flare-up, imposition of extreme penalty of death was not justified. Argument was also advanced to canvass that section 34. P.P.C. Was not attracted because Nasir Mahmood or his co-accused were not acting in furtherance of their common intention. If at all there was a common intention the same was to take Mst. Shafqat, Bibi back to the house of -appellant and there was no common intention to commit murders of any of the deceased persons or to cause injuries to any of the P.
Ws. As Mst. Shafqat Bibi refused to accompany her husband unjustifiably and Muhammad Afzal intervened and resisted the effort of Nasir Mahmood, merely out of stubbornness appellant or his co-accused resorted to firing after loosing self-control. Although two persons have been murdered and four injured yet if the incident is viewed with the background as highlighted by the learned counsel, it was contended that award of sentence of death was rather unjust and excessive.
16. The learned counsel during the course of argument raised another argument as well, although not very vigorously, that Nasir Mahmood being husband of Mst. Shafqat Bibi had two daughters from her who are Wali of the, appellant, therefore, the murder. Of Mst. Shafqat Bibi at his hands does not constitute offence under section 302., P.P.C. And the same is covered by definition of section 306, P.P.C. Whereof sentence has been prescribed under section 308, P.P.C. The learned counsel has referred to ingredients of sections 306 and 308, P.P.C. As well.
17. The argument may on the face of it look attractive and convincing but to our mind the same cannot hold field. In our view as we understand and interpret sections 302 and 308, P.P.C., if an offender by joining hands with other co-accused commits murders of more than one persons and one of the murders squarely attracts section 302, P.P.C., even if one of the murders may be covered by provisions of section 306 or 308, P.P.C. But on account of application of section 34, P.P.C. The lesser sentence as provided by section 308, P.P.C. Cannot be imposed. The principle and philosophy underlying the provisions of sections 306 and 308, P.P.C. Appear to be, if an offence is committed and the heirs of the deceased or Wali are also heirs and Wali of the offender then in that event benefit of section 306, P.P.C. May be extended. As in the instant case, Nasir Mahmood appellant by joining hands with his co-accused i.e, father and brother committed murders, not only of Mst. She-gat Bibi but also of Muhammad Afzal her maternal uncle and all the accused persons acted in furtherance of their common intention, therefore, it would be improper and unjust to convict the main accused under section 308, P.P.C. And to convict his co-accused under section 302, P.P.C. In a situation, as is prevailing in the present case, the prayer that on one count the conviction of Nasir Mahmood alone be recorded under section 308, P.P.C. And not under section 302, P.P.C., appears to be wholly unjustifiable. Conviction has been recorded under section 302(b), P.P.C. Read with section 34, P.P.C. As Tazir, therefore, there is no 'question of eliminating the Qisas because the sentence has been awarded as Tazir.
18. As regards the plea that section 34, P.P.C. Is not applicable, we are not pursuaded to accede to the submission. All the accused persons if had no common intention then they would not have accompanied together by arming themselves with fire-arm weapons and Sota. Had the intention been of bringing back Mst. Shafqat Bibi, there was no occasion with the appellants and co- accused to have armed themselves with weapons like carbine etc. The very fact that all the accused persons came together and they carried the arms and after reaching the house of the complainant Mst. Shafqat Bibi was forcibly dragged out of her residential room and on her refusal to accompany, she was fired at-. When her maternal uncle Muhammad Afzal tired to rescue, he too was fired at. Not only two deceased persons were subjected to attack, the other witnesses when they came forward to help or intervene were not spared and injuries were inflicted on them as well. The conduct of the accused persons and the injuries caused by them do not leave any doubt that they were both acting in furtherance of their common intention. Apart from the conduct and behaviour of the accused persons, the time chosen by them i.e, dark hours of Fajjar Vaila in the cold month of December also indicates the common intention of the accused persons that in the event of any refusal or resistance they would not spare the inmates. If the only purpose had been of taking away Mst. Shafqat Bibi the accused persons would have chosen a proper time and not early dark hours of winter. All the accused persons actively participated in the commission of the crime. The entire incident i.e, murders of two deceased persons and injuries on four prosecution witnesses is part of one and the same transaction. Active participation of 'each of the appellant in commission of murders or injuries fully establish that they were all pursuing the errand with common intention.
19. As noted above the argument had been raised that implication of Muhammad Ramzan who is elderly person and father of Nasir Mahmood appellant appears to be doubtful, therefore, he should not have been convicted. Muhammad Ramzan not only accompanied, the assailants but also participated in the infliction of injuries. All the eye-witnesses have madeconsistent statements whereby he has been fully implicated. We find that the c depositions of witnesses merit full credence. The argument of false implication of Muhammad Ramzan is, therefore, repelled.
20. In view of what has been discussed above, the conviction and sentence as recorded by the learned trial Judge is fully maintainable and does not suffer from any illegality or infirmity. The same is accordingly upheld and maintained.
21. Criminal Appeal No, 762 of 1995 is hereby dismissed.
22. Murder Reference is answered in affirmative.
Sentence of death to Nasir Mahmood appellant is hereby confirmed.