' MUHAMMAD NAWAZ ABBASI, J.--- The appellant namely Shaukat Hayat son of Muhammad Nawaz aged .30 years was tried by the learned Additional Sessions Judge, Rawalpindi for the charge under sections 302/324/452, P.P.C. For the allegation of committing the murder of Mst. Farzana Mareen and causing injuries to her sister and brother namely Mst. Robina Bibi and Saghir Ahmad.
The learned trial Judge having found the appellant guilty of the charge vide judgment, dated 30-1- 1995 sentenced him in the following manner:--
(i) Under section 302, P.P.C. Sentenced to death with a direction to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
(ii) Under section 324, P.P.C. Read with section 337-F(iii), P.P.C. For causing injuries to Mst. Robina Bibi, the sentence of two years' R.I. With a direction to pay an amount of Rs,10,000 as Daman to the injured.
(iii) Under section 324, P.P.C. Read with section 337-D, P.P.C. For causing injuries to Saghir Ahmad P.W., the sentence of seven years' R.I. As Ta'zir with a direction to pay a fine of Rs,60,000 as Arsh to the injured.
(iv) Under section 452, P.P.C. For committing house trespass, the appellant was sentenced to R.I. For five years with a fine of Rs,5,000 and in default of the payment of fine to undergo imprisonment for a term of six months.
2. The different sentences of imprisonment awarded to the appellant were directed to run concurrently with benefit of section 382-B, Cr.P.C.
3. Learned Additional Sessions Judge has sent Murder Reference bearing No,60 of 1995 under section 374, Cr.P.C. For the confirmation of death sentence awarded by him to the appellant whereas the appellant has challenged his conviction and sentence through Criminal Appeal No,19 of 1995. The murder reference and the criminal appeal are disposed of together through this single judgment.
4. The brief facts of the case as contained in the statement (Exh.P.A.) lodged by Mohabbat Khan, father of Mst. Farzana Mareen, on the basis of which a case through F.I.R. (Exh.P.A./1) was registered at Police Station Taxila on 6-8-1994 are as under:-- ' "The complainant Mohabbat Khan, a permanent resident of Dhoke Jhando, located in the area of Police Station Taxila after having shifted his residence to Street No,17, Mohalla Jameelabad was living with his family consisting of his wife namely Mst. Gohar Khanum alias Razia Begum, Saghir Ahmad and Saifur Rehman sons of Mst. Farzana Mareen, Mst. Robina Bibi and Mst. Tahira Bibi, unmarried daughters. Mst. Farzana was employed in Airport Security Force and was posted at Islamabad Airport during the days of occurrence. On the fateful day i.e, 6-8-1993 the complainant alongwith the deceased, injured witnesses and other family members was present in his house when at about 7-30 a.m. Shaukat Hayat accused son of his sister armed with pistol while raising Lalkara that he would teach a lesson to the complainant and his family members for not giving the hand of Mst. Farzana to him' trespassed into his house and simultaneously fired five successive shots with pistol at Mst. Farzana as a result of which she sustained injuries on her chest, face and left hand and succumbed to the injuries at the spot. Mst. Robina Bibi, her younger sister and her brother Saghir Ahmad when tried to intervene and overpower the accused, they were also fired at by the accused. Saghir Ahmad sustained injury on head whereas Mst. Robina Bibi on left arm at the hand of accused.
' On the alarm raised by Mohabbat Khan and his wife Mst. Gohar Khanum, mother of the deceased, the accused ran away from the spot with the weapon of offence. The two injured namely Mst.
Robina Bibi and Saghir Ahmad were taken to the Civil Hospital for providing medical aid and Mohabbat Khan lodged the report at the police station."
5. Mian Muhammad, Inspector/S.H.O. P.W.12 while reaching the place of occurrence prepared the injury statement (Exh.P.L.) and inquest report (Exh.P.M.) of the deceased and despatched the dead body to the 'mortuary for post-mortem examination. During the cite inspection he secured blood- stained earth, lead pieces and three empty cartridges through recovery memos. Exhs.P.H. And P.J.
Respectively. The S.H.O. After recording the statements of the witnesses under section 161, Cr.P.C.
Proceeded to the hospital. Tariq Mahmood P.W.5 produced the last-worn clothes of the two injured persons alongwith their medico-legal reports Exh.P.D. And Exh.P.E. Before the Inspector who took the same into possession through separate memos. He also took into possession last-worn clothes of the deceased and handed over these items to the Moharrir of the police station. The Inspector/S.H.O. Got prepared site plans Exh.P.K. And Exh.P.K./1 from Muhammad Ishaq P.W.11 and arrested the accused on 15-8-1993 who while in custody led to the recovery of .30 bore pistol P.1, magazine P.2 and live bullets P.3/1-6 near the outer gate of the Hveli of his residential house situated in Dhoke Maliaran which were taken into possession through recovery memo. Exh.P.F. In presence of the witnesses. The Investigating Officer after completing the investigation submitted the challan against the appellant to face the trial.
6. Dr. Imtiaz Haider P.W.6, Medical Officer, Civil Hospital Taxila, medically examined Mst. Robin Bibi injured witness and found the following injuries on her person:--
(1) A wound measuring 1.5 x 1 c.m. On outer side of lower part of left arm 6 c.m. From knuckle of elbow. There was slight charring of irregular margins of the wound which was muscle deep. It was an entry wound of a fire-arm injury but there was no exit wound.
(2) A wound measuring 1 c.m. x 1 c.m. On outer side of upper part of left fore-arm about 6 c.m.
Below the injury No,l. Margins of the wound were irregular and charred. The wound was muscle deep. It was an entry wound of a fire-arm injury but no exit wound was present.
7. On the same day and time Dr. Imtiaz Haider P.W.6 also medically examined Saghir Ahmad injured witness and found the following injuries on his person:--
(1) A wound measuring 1 x 1 c.m. With charred and irregular margins locating on left iliac fossa at 4 c.m. Above anterior superior iliac spine. It was 10 c.m. Left to umbilicus. It was an entry wound.
(2) An exit wound measuring 1.5 x 1.5 c.m. Locating about 8 c.m. Left to the back bone and 8 c.m.
From upper most part of iliac bone.
8. Dr. Shahzad Waseem, P.W.9 conducted the post-mortem examination on the dead body of Mst.
Farzana daughter of Mohabbat Khan on 6-8-1993 and found the following injuries on her person:-
(1) Fire-arm wound of entrance 1.5 c.m. x .15 c.m. On posterior side of right side of chest 8 c.m.
Lateral to mid line and 6 c.m. Below lower border of scapula with fire-arm wound of exit 3 c.m. x 3 c.m. Middle of chest anterior side 5 c.m. Below neck.
(2) Fire-arm wound of entrance 1.5 c.m. x 1.5 c.m. On the mid line of right breast at lower border with fire-arm wound of exit.
(3) Fire-arm wound of entrance injuring right side of lower, lip, right side of lower jaw injured. All the teeth of right side of lower jaw broken except right lower frontal and lateral incisor. Metallic body recovered from the jaw.
(4) Fire-arm wound of enterance 2 c.m. x 2 c.m. With blackening of surrounding on left elbow at lateral side with three exist wounds on medial side of left elbow.
(5) Fire-arm wound of enterance 1.5 c.m. x 1.5 c.m. On posterior side of left hand with fracture third metacarpal bone.
' The doctor opined that the death was the result of injury No,1 which was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem which were caused with fire-arm and the probable time between the injuries and the death was immediate.
9. The prosecution in order to establish the charge against the accused examined fourteen witnesses in all including the eye-witnesses and the doctor in addition to tendering in evidence the report of Chemical Examiner Exh.P.O. Report of the Serologist Exh.P.P. And that of Forensic Science Laboratory Exh.P.Q.
10. The appellant in his statement under section 342, Cr.P.C. While denying the charge has pleaded innocence and false implication, and wither produced any evidence nor availed the opportunity of making a statement under section 340(2), Cr.P.C.
11. Learned counsel for the appellant has raised the following contentions:--
(a) that the seats of injuries on the person of the deceased and the injured witnesses as located by the doctors would show that the same were caused from different direction and lead to an inference that the occurrence did not take place in the manner as suggested by the prosecution.
(b) that according to the prosecution story appellant raised Lalkara that Mohabbat Khan and his family would be taught a lesson and that Mohabbat Khan was the main target but neither he sustained any injury in the occurrence nor made an attempt to secure his daughter. His presence at the house and of witnessing the occurrence as claimed by him was highly doubtful.
(c) that the injuries on the person of Mst. Robin Bibi and Saghir Ahmad cannot be itself a proof of their being truthful. They being interested witnesses would not be relied upon unless their testimony is found corroborated by an independent evidence but the same being not available it is not safe to believe them and to maintain the conviction and sentence awarded to the appellant by the learned trial Court.
(d) Learned counsel, however, in the alternative argued that in the light of the suggestion put to the complainant on behalf of the appellant in the cross-examination 'that the deceased being engaged with the appellant was seen by him in her house with a stranger, the appellant having not tolerated the company of the deceased with -a stranger under grave and sudden provocation committed the offence' it was not a case punishable under section 302(a) or (b), P.P.C.
12. Conversely, the learned counsel for the complainant has forcefully argued that the prosecution story was supported by the two independent and natural witnesses and that appellant having not taken the plea of grave and sudden provocation either during the investigation or at the trial in his statement under section 342, Cr. P.C. Could not get the benefit of suggestion put by the learned defence counsel to Mohabbat Khan complainant of the case and took plea that he while under grave and sudden provocation committed the crime. The learned counsel thus, argued that the suggestion in question cannot even be considered as a mitigation in favour of the appellant for the purposes of lesser punishment.
13. The learned State Counsel while adopting the argument of the learned counsel for the complainant has supported the conviction and sentence awarded to the appellant.
14. We have heard the learned counsel for the parties at length and thoroughly examined the record with their assistance. The appellant is son of real sister of Mohabbat Khan complainant who was engaged with Mst. Farzana Mareen deceased, the daughter of the complainant but due to immoral activities of the appellant this engagement was withdrawn. The motive set up by the prosecution is that the accused being aggrieved of his disengagement with the deceased by her parents was revengeful towards the family of the complainant and in consequence thereto caused the death of Mst. Farzana Bibi and injured her younger sister and brother.
15. The examination of the statement of Mst. Robina Bibi P.W.4 and Saghir Ahmad P.W.8, the inmates of the house, would show that they were fired at when they made an attempt to overpower the appelrant. They being natural witnesses have narrated the occurrence in the manner in which it happened without any improvement and have fully corroborated each other. They have also corroborated the story of F.I.R. As reported by Mohabbat Khan P.W.3, their father on each material point without any addition or omission. Admittedly there was no enmity of the complainant and inmates with the accused to suggest his false implication or to doubt the truthfulness of their statements who have qualified the test of lengthy cross-examination. Learned counsel for the appellant has laid much stress that as per report of Forensic Science Laboratory the empties recovered from the spot were not found matched with the weapon of offence recovered from the appellant, therefore, the discrepancy in this important and independent piece of evidence would create a serious doubt in favour of the appellant. The contention has no substance. Out of three crime-empties recoveries from the place of occurrence on the day of occurrence, as per report of Forensic Science Laboratory two were found to have been fired from the pistol recovered from accused and, therefore, the discrepancy to the extent of one empty would not materially affect the injured eye-witnesses who had no reason to falsely involve the appellant, their real cousin, through substitution. Mst. Robina Bibi is a student of third year, who, in, a most natural and straightforward manner while narrating the story corroborated her brother Saghir Ahmad and father of Mohabbat Khan on each material point. Thus, even with the exclusion of evidence of recovery etc., the guilt of the appellant is proved beyond doubt through the ocular account of natural witnesses. However, in the present case the recovery of weapon of offence with positive report of Forensic Science Laboratory and the motive as given by the prosecution which has been established through the evidence of Mohabbat Khan would be another strong evidence against the appellant. The contention of the learned counsel that presence of Mohabbat Khan was doubtful would also be of no substance. The house where the occurrence took place was divided into two portions through constructing a wall in the courtyard and Mohabbat Khan at the relevant time was present in the adjoining portion of the house to the portion where the occurrence took place and on the hue and cry while rushing to the spot witnessed the occurrence. However, even without his statement, the evidence of Mst. Robina Bibi and Saghir Ahmad, the most natural and injured witnesses alone would fully establish the charge against the appellant.
16. The learned counsel in the light of the suggestion put to the complainant submitted that the appellant being a young man while noticing a stranger with his fiancee in her house became emotional and having lost the patience and self-control fired at the deceased has not committed an intentional murder. The evidence would show that except a bare suggestion through a question put by the learned defence counsel to Mohabbat Khan complainant; P.W.3, the plea of grave and sudden provocation neither was spelt out from the prosecution evidence nor defence produced any evidence in support of this plea of grave and sudden provocation. The appellant neither pleaded the same in his statement under section 342, Cr.P.C. Nor made a statement in this behalf under section 340(2), Cr.P.C. And put any question to the injured witnesses in the cross- examination. This is noticeable that except the injured witnesses, the deceased and the accused, the presence of any other person in the house of complainant at the time of occurrence was neither suggested to the injured witnesses nor was proved. If a stranger was seen by the appellant with the deceased in her house, the appellant would not have spared him, but it was strange that he instead of causing any damage to the said stranger took the life of the deceased. This is also noticeable that no such suggestion was put to any of the injured witnesses that in addition to the inmates of the house a stranger was also present in their house at the time of occurrence.
Therefore, the contention raised by the A learned counsel for the appellant that probably it was a case of grave and sudden provocation is not supported by any direct or circumstantial evidence.
We may observe that the appellant while putting suggestion to the complainant in the following manner has admitted the occurrence:-- ' "It is incorrect to suggest that the accused doubted the character of my daughter after her enlistment in the A.S.F. And asked her and myself to mend the ways. It is also incorrect that when the accused entered my house he saw another man present in our house and started firing."
17. The capability of appellant is, thus, also proved from his admission. There being no evidence available on record to suggest the presence of any stranger at the house of the appellant the occurrence was found beyond doubt to be pre-meditated falling within the mischief of section 302(b), P.P.C. And the ocular account of unimpeachable character being corroborated by the evidence of recovery of crime weapon, motive and admission of appellant would establish the guilt of appellant under section 302(b), P.P.C. Beyond doubt. Consequently, his appeal fails.
18. The appellant being maternal-cousin of the deceased was engaged with her but after refusal of deceased to marry with the appellant and his disengagement with the deceased, he developed grudge against the innocent girl and in vengeance of grudge the appellant done to death the girl in her own house in presence of her parents and family members. The brutal act of taking the life of the deceased by the appellant on his failure to get her hand would not permit to show any leniency in favour of the appellant in the matter of sentence on the ground that the parties were closely related inter se and there was no previous enmity between them. The act of the appellant of firing successive shots at the deceased and also making an attempt at the life of younger brother and sister of the deceased on their intervention would aggravate the propensity of offence and thus, we do not find any extenuating circumstance or mitigation in his favour for lesser penalty. We, therefore, while maintaining the conviction and sentence awarded to the appellant by the learned trial Judge dismiss this appeal and confirm the death sentence.
' The murder reference is answered in affirmative and the appeal is accordingly dismissed. 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.