' RAJA MUHAMMAD SABIR, J.--- Appellant Abdul Latif Constable was convicted by the learned Sessions Judge, Dera Ghazi Khan in case F.I.R. No,100 of 1994 registered under section 302/324, P.P.C.
At Police Station Taunsa Sharif for triple murder of Jan Muhammad, Abdul Majeed and Liaquat Ali and causing injuries to Mst. Sakina Bibi (P.W.9) and Abdul Rehman, minor. The appellant was sentenced to death for the murder of Jan Muhammad deceased under section 302(a), P.P.C. As Qisas and a fine of Rs,50,000 to be paid by him to the heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default to undergo S.I. For six months. Some of the Legal Representatives of Abdul Majeed deceased pardoned the appellant/accused and waived their right of Qisas, whereas, his wife and minor son did not compound the offence, therefore, he was found guilty for the said murder under section 302, P.P.C. And sentenced to 14 years' R.I. As Ta'zir under section 311, P.P.C. With a fine of Rs,50,000 to be paid by him to the legal hairs of the deceased under section 544-A, Cr.P.C. Or in default to undergo six months' S.I. Similarly, some of the Legal Representatives of anther deceased Liaquat also pardoned the appellant/accused and waived their right of Qisas, whereas, other Legal Representatives declined to do so, the appellant was also found guilty 'for the murder of Liaquat Ali, convicted under section 302, P.P.C. And sentenced to R.I.
For 14 years under section 311, P.P.C. With a fine of Rs,50,000 to be paid by him to the L.Rs, of the deceased or in default to undergo six months' S.I. The appellant was also found guilty of the offence under section 324, P.P.C. For causing injuries to Mst. Sakina and sentenced to undergo R.I. For ten years and a fine of Rs,15,000, or in default to undergo for further period of one year's R.I. It was also ordered that the amount of fine, if recovered, be paid to the injured P.W. As compensation under section 544-A, Cr.P.C.
' The appellant has filed Criminal Appeal No,434 of 1998 and the trial Court sent Murder Reference No,479 of 1998 for confirmation of death sentence.
2. Briefly, the facts of the ease as alleged by the complainant Nazar Hussain in the F.I.R. Are that on the day of occurrence i,e, 6-9-1994, he alongwith his brother Abdul Majeed (deceased), Mst. Sakina Bibi wife of Abdul Majeed and their son Abdul Rehman were present at Pull Qamber waiting for bus; that at about 7-00 p.m., Bus No,KUT-487 came from Taunsa Sharif side and the passengers started boarding it; that Abdul Majeed boarded the bus and sat on left second last seat, whereas, his wife and son Abdul Rehman occupied right third last seat while he was till standing near the bus when Abdul Majeed Constable who was on his duty at the Check Post of aforesaid Pull Qamber reached there in his uniform armed with his official rifle and started firing with the said rifle on Jan Muhammad who was boarding the bus, that Jan Muhammad, due to firearms, fell inside the bus, that Abdul Latif appellant also made firing inside the bus through its window by which, Abdul Majeed, his wife Mst. Sakina and son Abdul Rehman and one Liaquat Ali sustained injuries; that Abdul Majeed succumbed to the injuries at the spot, whereas, Jan Muhammad, Mst. Sakina and Abdul Rehman were shifted to Shadan Ludan Hospital and Liaquat Ali was taken to Kot Adu Hospital; that Jan Muhammad and Liaquat died in respective hospitals. The appellant was overpowered by Ghulam Hussain, Head Constable/in-charge of the Check Post, Pull Qamber and confined at the said post.
' The motive, as alleged in the F.I.R. Was that sometimes back, Jan Muhammad deceased had murdered real brother of the appellant but was subsequently acquitted by the High Court which prompted him to commit the murder.
3. The appellant was found guilty during the investigation and charge under sections 302/324, P.P.C. Was framed against him. He pleaded not guilty and claimed trial. The prosecution examined 18 witnesses in support of its allegation.
' Dr. Musa Kaleem appeared as P.W.1 and stated that on 7-9-1994 at about 11-00 a.m. He conducted the post-mortem examination on the dead body of Abdul Majeed son of Ghulam Muhammad deceased. According to him, injury No,1 was ante-mortem and was caused by firearm and the death occurred due to the damages to the vital parts of the body and severe haemorrhage and shock due to rupture of major blood vessel. He proved post-mortem report (Exh.P.1), diagram of injuries (Exh. P. A .1).
' Dr. Yousaf Aziz appeared as P.W.2 and stated that on 7-9-1994 he conducted post-mortem examination on the dead body of Jan Muhammad deceased. According to him, the cause of death was injury No,1 which injured the liver, kidney and intestine and haemorrhage and shock was the immediate way which proved fatal for death of abovesaid deceased. He proved post-mortem examination report (Exh.P.C.), diagram of injured (Exh.P.C./1) and inquest report (Exh.P.D.). On the said day, the same Medical Officer, examined Mst. Sakina wife of Abdul Majeed and found a lacerated wound 2-1/2 x 1 c.m. Going deep situated from left shoulder. The injury was kept under observation and the weapon was declared as fire-arm. He proved the carbon copy of M.L.C. Report (Exh.P.F.). He stated that Exh.P.G. Is the result of injury and his report in this regard is Exh.P.G./1.
' Dr. Khalid Mahmood appeared as P.W.12 and stated that Liaquat Ali son of Muhammad Shafi remained admitted in Rural Health Centre Hospital. Fatehpur, District Layyah from 8-11-1994 to 28- 12-1994 and then he was discharged from the hospital. He proved medical certificate (Exh.P.Q.). Dr. Bashir Ahmad Saharan appeared as P.W.15 and stated that on 6-9-1994, he while posted at T.H.Q.
Hospital Kot Adu examined Liaquat Ali injured and found two injuries on his person. Injury No,1 was kept under observation. He also proved M.L.C. (Exh.P.Q.) and his note on it as Exh.P.Q./1. Dr. Ghulam Haider Khan Qaiserani appeared as P.W.16 and stated that on 20-10-1994, during his posting at Nishtar Hospital Multan, he alongwith other doctors conducted the operation of Liaquat Ali. He found four injuries on his person. He identified discharge slip (Exh.P.R.) issued by Dr. Azmat Rasool and stated that complete details about the injured had been given in the said discharge slip. Dr. Aurangzeb appeared as P.W.17 and stated that confirmed that on 9-9-1994, Dr. Raheel was posted in Nishtar Hospital, Multan. He also identified the handwriting of Dr. Raheel on Exh.P.S., Exh.P.S./1 and Exh.P.S./2.
' Abdul Karim, H.C./694 appeared as P.W.3 and proved the registration of F.I.R. (Exh.P.J./1). He also stated that he kept the case property in Malkhana for safe custody and that he delivered the bloodstained earth to Ijaz Ahmad, Constable on 13-9-1994 for onward transmission. Ijaz Ahmad, Constable (P.W.4) stated that he was given the parcel of blood-stained earth on 13-4-1994 which he delivered in the relevant office. Muhammad Aslam, H.C./646 proved the copy of F.I.R. No,60 of 1989 (Exh.P.K.) Muhammad Aslam, Patwari, Halqa appeared as P.W.6 and stated that he had prepared the site plan (Exh.P.L., Exh.P.L./1 and Exh.P.L./2) on the pointation of the P.Ws. And direction of the police. Imam Bakhsh, Constable (P.W.7) deposed that on 7-9-1994, he escorted the dead body of Jan Muhammad deceased to the mortuary for post-mortem examination. He also handed over relevant papers and last-worn clothes of the aforereferred deceased which he produced before the Investigating Officer who took the same into possession vide memo. (Exh.P.L.). Ghulam Hassan alias Ghulam Hussain, H.C./602 appeared as P.W.11 and deposed that on 6-9-1994, he was posted as Incharge, Police .Check Post Pull Qamber. He also stated that Abdul Latif (appellant) and Riaz Ahmad Constable were on usual duty armed with semi-automatic rifles. According to him at about 7-00 a.m., he heard firing made by Abdul Latif accused with his official rifle. He deposed that fire shots hit Jan Muhammad, Abdul Majeed and Mst. Sakina and two unknown persons, out of which Abdul Majid succumbed to the injuries at the spot; that he overpowered the accused and confined him in a room of the Check Post. Ghulam Abbas, H.C. Appeared as P.W.13 and stated that he escorted the dead body of Abdul Majid to the hospital for post-mortem examination and that he produced the last-worn clothes of the deceased (P.9 to P.11) to the Investigating Officer. Malik Nazir Ahmad, S.-I. (P.W.14) deposed that on 13-9-1994, he was posted as S.H.O. Of Police Station Taunsa Sharif when Meraj Din, real brother of Liaquat Ali deceased produced before him Medical Certificate (Exh.P.O.) regarding the death of Liaquat Ali deceased that on receipt of said certificate, he submitted supplementary challan against the accused. Nazar Hussain complainant appeared as P.W.10 and stated that Abdul Latif accused while posted as Constable at Pull Qamber fired at Jan Muhammad deceased with his official rifle. He also stated that the accused fired two shots hitting Jan Muhammad and Liaquat Ali; that Abdul Majid deceased tried to stand up but Abdul Latif accused also fired a shot at him causing injuries to his wife Mst. Sakina. According to him, S.H.O.
Came to the spot where he recorded his statement (Exh.P.K.) which, he thumb-marked as token of its correctness Waris Ali, S.-I./S.H.O. Police Station Tanusa Sharif appeared as P.W.18 and narrated the details of the investigation, conducted by him.
' The prosecution closed its case after tendering in evidence report of the Chemical Examiner (Exh.P.BB), report of the Serologist (Exh.P.DD) and report of Forensic Science Laboratory (Exh.P.EE).
' In his statement under section 342, Cr.P.C., the accused/ appellant stated that on 6-9-1994 at about 7-00 p.m. He was present on his duty at Check Post Pull Qamber armed with his rifle when he saw Jan Muhammad deceased sitting in a bus which came there. He also stated that Jan Muhammad deceased stretched his moustaches with one hand, ironically coughed, spited at his face and then removed his loin cloth and showed his penis to him, whereupon, he lost his control over himself and fired at him with his official rifle under grave and sudden provocation causing injuries to Jan Muhammad deceased. He did not opt to produce defence evidence or to make statement on oath under section 340(2), Cr.P.C. Trial Court relied upon his confession and convicted him as indicated above.
4. Learned counsel for the appellant has not challenged the conviction, however, he submits that it is a case of lesser penalty as his brother was killed by Jan Muhammad deceased in the year 1989 who was subsequently acquitted by the High Court and on the day of occurrence, appellant came across the deceased Jan Muhammad suddenly while sitting in a bus and on seeing him, the accused lost control over himself and to avenge the murder of his brother, he fired at the deceased with his official rifle, therefore, in the given circumstances of the case, death sentence is not justified. In support of his contentions, he relied upon Ajun Shah v. The State PLD 1967 SC 185, Muhammad Aslam alias Chhachhi v. The State 1982 SCM R 1029 and Muhammad Aslam v. The State PLD 1985 SC 257. He has further argued that the appellant, in his statement under section 342, Cr.P.C. Stated that he was present at the Check Post Pull Qamber on his duty when at about 7-00 p.m., Jan Muhammad deceased sitting in the bus stretches his moustaches with one hand, ironically coughed, spited at his face and also showed him his penis after removing his loin cloth, that the appellant told this fact to the Investigating Officer at the time of his arrest at the very first opportunity that he had committed the offence under grave and sudden provocation, therefore, on this ground also, maximum penalty is not warranted.
5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellant being the member of a disciplined force was on his duty with official rifle when he took law in his own hands and committed triple murder of innocent persons besides causing injuries to Mst. Sakina and Abdul Rehman by firing many shots, that the plea of grave and sudden provocation or private revenge, in the given circumstances of the case is not available to the appellant; that private revenge is not a ground for mitigation as held by the Honourable Supreme Court in Ghulam Mustafa v. State PLD 1995 SC.488. He further submits that case of Ajun Shah PLD 1967 SC 185 wag distinguished by the Honourable Supreme Court in Ghulam Abbas v.
Mazher Abbas and another PLD 1991 SC 1059 and reaffirmed in its latest judgment in Ghulam Mustafa case, referred above, that the private revenge is no more a ground for mitigation in sentence.
6. We have heard learned counsel for the parties and gone through the judgments referred by them in the case of Ajun Shah PLD 1967 SC 185, the accused belonged to a Frontier Province where vengeance of murder of father is a matter of tradition and even family duty. In the aforesaid case, the Honourable Supreme Court reduced the sentence of transportation on account of tribal traditions of the accused. According to the facts of the said case, Hikmat Shah, brother of the accused was murdered in June, 1945 and the deceased Fazal Raziq and others were charged for the offence, but they were acquitted in October, 1945, father of the accused namely Syed Qadir Shah was murdered and again Fazal Rafiq was charged with the offence but he was acquitted. At the time of the murder by the accused in the said case, he was aged 28 years, so at the time of murders of his brother and father, he was only 8 years old. It was held by the Honourable Supreme Court that he belonged to Frontier Province where it is a matter of tradition and even family duty to avenge the murder of a father; such murders are committed in that area out of a sense of honour and self-respect. It was also held that since he was a boy, his mind had become obsessed with one thought to do away with the alleged murder of his father and brother, that such feeling was gaining intensity from day to day and when he saw the deceased in a tonga, he lost his balance of mind. In the given circumstances, the private vengeance was considered as mitigating circumstance and sentence of the accused was reduced to life imprisonment in the cases of Muhammad Aslam alias Chhachhi 1982 SCM R 1028 and Muhammad Aslam PLD 1985 SC 257, reliance was placed on aforereferred Ajun Shah's case. However, the Honourable Supreme Court, in the case of Ghulam Abbas PLD 1991 SC 1059 distinguished Ajun Shah case: It was observed at page 1062 of the said judgment as under:-- "It will be of advantage to note what the learned Judges in the case of Ajun Shah also thought to be an element of revenge in cases like the present one. It was held that the convict in that case whose sentence of death had also been confirmed by the High Court, was product of environment and the circumstances in which he committed the act of murder were such that he had not only treated it as a matter of honour and tradition but also of 'family duty to avenge the murder'. In that very case a further caution was given that the honourable Judges should not be deemed to have suggested even 'for a moment that private revenge can be regarded as a mitigating circumstance'. What they took pains to emphasize was that 'the question of sentence in each case must depend upon the facts of the case' and that in the particular case (Ajun Shah) the criminality was not of a kind which could be visited with extreme penalty. The Supreme Court also visualized that if the circumstances noticed by the Supreme Court and mentioned in their judgment had been brought to the notice of the learned Judges of the High Court 'perhaps they would not have confirmed the sentence of death'. Accordingly the sentence was reduced to the-lesser of the two penalties."
' In the- case of Ghulam Mustafa PLD 1995 SC 488, referred by the learned counsel for the complainant, the entire case-law on this question was analysed by the Honourable Supreme Court in para. 14 which reads as under:-- "Learned counsel for the appellant requested for reduction of sentence on the ground that if this Court considers that prosecution has proved its case, then it calls for lesser sentence on the ground that the murder was committed for avenging family honour and in support reliance is placed on the cases of Ajun Shah v. The State PLD 1967 SC 1$5 and Muhammad Aslam v. The State PLD 1985 SC 257. In the first mentioned case, Ajun Shah's sentence was reduced from death to one of transportation for life on mitigating circumstances to the effect that murder was committed in North-West Frontier Province and at the time of murder the appellant was twenty-eight years old and took revenge of the murder of his father and brother which took place in 1945 when he was a child of eight years. In the case of Muhammad Aslam (supra) sentence was reduced from death to imprisonment for life on the ground that the appellant took revenge of murder of his father which took place 12/13 years ago in the Province of Punjab and at the time of incident in the case under consideration, appellant was hardly fifteen years old. In this case reliance was placed on the case of Ajun Shah. The question for reduction of sentence from death to life imprisonment on the ground of family honour came up for detailed consideration of this Court in the case of Ghulam Abbas v.
Mazhar Abbas PLD 1991 SC 1059 wherein it was held that notwithstanding the fact that an element of private revenge was involved, this would depend upon circumstances of each case to determine the very delicate balance between whether family honour and duties overtook the human thought and action and whether the private revenge predominantly overtook such thought and action. For that purpose, the Court has to see other attending circumstances as to at what stage reduction is asked for and in which forum and for what reasons. The case of Ajun Shah (supra) was distinguished. The trial Court has sentenced the respondent to death which was reduced to life imprisonment by the High Court and complainant as petition in this Court sought enhancement of sentence by way of restoration of death sentence. Motive stated in the F.I.R. Was that the deceased was tried and acquitted in the case of murder of the uncle of the respondent which fact was not disputed and after considering the attending circumstances, it was held that it was a fit case in which leave for enhancement of sentence from life imprisonment to death should be refused."
7. Ajun Shah case was distinguished by the Honourable Supreme Court in cases Ghulam Abbas PLD 1991 SC 1059 and Ghulam Mustafa PLD 1995 SC 488 referred above. The traditions of Dera Ghazi Khan District are not identical with the Frontier region. The crime rate has increased in this part of the country on account of private revenges. If this plea is accepted it will encourage the criminality of the people to take their own hands without depending on decisions of the Courts and public will loose confidence in Judicial System which may lead to anarchy.
8. The appellant in the instant case being a police constable was on duty with his official rifle at the time of occurrence. He made three shots murdering Jan Muhammad, who was involved in the murder of his brother and acquitted by the Court, alongwith innocent passengers Abdul Majeed and Liaquat. He also caused injuries to Mst. Sakina Bibi (P.W.9) and Abdul Rehman. The appellant a police official while on duty was supposed to protect life and public property but he took the law into his own hands without caring about his uniform, misused his official rifle and killed aforementioned. Persons in cold-blooded and brutal manner. He has not stated in his statement under section 342, Cr.P.C. That he has killed Jan Muhammad to take revenge of his brother, murdered about five years prior to the instant occurrence. The conduct of the appellant was cruel and brutal and as such, he does not deserve any mitigation in sentence.
9. The other plea of the appellant of grave and sudden provocation raised in his statement under section 342, Cr.P.C. Is equally meritless. The trend of cross-examination shows that Jan Muhammad deceased killed the brother of the appellant in the year 1989 and in order to avenge said murder appellant availed the opportunity when he came across the deceased near the place of his duty. In his said statement he has not taken the plea of revenge of his brother. He claimed that immediately after his arrest, he stated before the Investigating Officer that the incident took place in the manner, stated by him in his aforesaid statement. He has not made any statement on oath himself in support of this version nor any witness was produced in defence to substantiate it.
There is no material on record to believe that Jan Muhammad deceased provoked him in the manner, alleged by the appellant. The defence plea raised by him in, his statement under section 342, Cr.P.C. Is not spelt out from evidence on record and as such is unbelievable.
10. In the given circumstances of the case, we are clearly of the view that the appellant is not entitled to any mitigation. The sentence, awarded by the trial Court, warrants no interference. The appeal has no merit and is dismissed.
11. The Murder reference is answered in affirmative and death sentence, awarded to the convict is hereby confirmed. /Order accordingly.