' TASSADUQ HUSSAIN JILANI, J.--- This judgment shall dispose of Criminal Appeal No,254/J of 2000 filed by Mirza Khan son of Aman Ullah, Ajmal Khan son of Aman Ullah Khan, Aman Ullah Khan son of Haqnawaz Khan and Criminal Revision No,756 of 2000 filed by the complainant seeking enhancement of the sentences awarded to appellant Aman Ullah and co-convict Mst. Mohlat Bibi.
2. The appellants Mirza Khan son of Aman Ullah Khan, Ajmal Khan son of Aman Ullah Khan and co- convict Mst. Mohlat Bibi wife of Aman Ullah Khan were tried (in a case registered vide F.I.R. No,46, dated 5-4-1996, under section 302/34, P.P.C. Police Station Musakhel) for the murders of Ahmadt Khan (father of P.W.1), (2) Muhammad Akbar (cousin of P.W.1), (3) Mst. Hayat Bibi (mother of P.W.1),
(4) Mst. Hajran Bibi (wife of Akbar deceased) and Mst. Sarwar Bibi (mother of Akbar deceased).
3. The learned tri I Court vide its judgment dated 9-9-2000 convicted and sentenced t em in the following terms:--
(1) Mirza Khan and A 1 Khan appellants ' Under section 302(b) read with section 109/34, P.P.C. Both the appellants were convicted and sentenced to death,on five counts each. They were also directed to pay Rs,1,00,000 each to be paid to all the legal heirs of the deceased under section 544-A, Cr.P.C. On five counts each. In default whereof each one of them was directed to further undergo S.I. For six months each. The amount of compensation was directed to be recovered as arrears of Land Revenue.
(2) Aman Ullah Khan appellant ' Under section 30 (b) read with section 109/34, P.P.C. He is convicted and sent nced to life imprisonment, on five counts. He is also directed is pay Rs,1,00,000 each to be paid to all the legal heirs of deceased under section 544-A, Cr.P.C. On five counts each. In default whereof he was directed to further undergo S.I. For six months each. The amount of compensation was directed to be recovered as arrears of Land Revenue. Benefit of section 382-B, r.P.C. Was also awarded. All sentences were directed to run concurrently.
(3) Mst. Mohlat Bibi appellant ' Under section 302(b) read with section 109/34, P.P.C. She is convicted and sentenced to ten years on five counts. She is also directed to pay Rs, 1 lac each to be paid to all the legal heirs of deceased under section 544-A, Cr.P.C. On five counts each. In default whereof she was directed to further undergo S.I. For 6 months. Amount of compensation was directed to be recovered as arrears of Land Revenue. Benefit of section 382-B, Cr.P.C. Was also awarded. All sentences were directed to run concurrently.
4. The prosecution story as given in the F.I.R. Exh.P.A., registered on the statement of Mst. Chando Bibi (P.W.1) complainant daughter of Ahmad Khan deceased briefly stated is that about 5 years prior to the occurrence she got married to Mirza Khan, appellant, that from the said wedlock there was a baby boy aged 4 years, that there was separation on account of strained relations and she was residing with her parents. During this period Mirza Khan, appellant tried to effect compromise; persuaded her to live with him to which she agreed but she could live with him for only one month and prior to- Eid-ul-Fitr the appellant turned her out of his house and she joined her parents again.
On the fateful day at about Dupairwaila Mirza Khan, appellant gave a bat blow on the head of Mst.
Hajran Bibi, deceased. Hearing about this incident she alongwith her father Ahmad Khan, her mother Mst. Hayat Bibi went to the house of Muhammad Akbar and found that Muhammad Akbar, Mst. Hajran Bibi and Sarwar Bibi were already present there. They asked about the cause of the afore-referred incident. When at about 3-00 p.m. Mirza Khan armed with .12 bore shot gun, Ajmal armed with kalashnikov who lived in the house adjacent to Muhammad Akbar's house entered the house by scaling over the wall whereas Mst. Mohlat Bibi and Amanullah appellant and latter armed with gun remained near the wall of the house. Mst. Mohlat Bibi raised Lalkara that all the inmates of Muhammad Akbar's house be done to death. Muhammad Akbar, Ahmad Khan and Hayat Bibi attempted to enter the adjoining room in order to save themselves when Mirza Khan and Ajmal Khan appellants fired at them in consequence of which both fell down. Mst. Hajran Bibi, Mst. Sarwar Bibi also attempted to run away and their effort was also thwarted by Aman Ullah Khan and Mirza Khan appellant who fired at them and they too fell down. The complainant saved herself by entering another room. Ahmad Khan, Hayat Bibi, Sarwar Bibi and Mst. Hajran Bibi died at the spot whereas Muhammad Akbar who was shifted to hospital succumbed to the injuries there and died.
P.W.11 Muhammad Nawaz, S.-I. Having recorded F.I.R. Went to the place of occurrence, prepared injury statement and inquest reports of the deceased, shifted Muhammad Akbar who was seriously injured to the D.H.Q. Hospital, Mianwali and thereafter, escorted four dead bodies to the mortuary alongwith Atta Ullah, constable. As they reached the hospital Akbar Khan deceased had already died. His injury statement and inquest report were also prepared. He revisited the place of occurrence and secured blood-stained earth from the place of occurrence through recovery memos. Exh.P.B., recorded the statement of the prosecution witnesses under section 161, Cr.P.C. And supplementary statement of Mst. Chando Bibi on 6-4-1997. From the hospital he also secured blood-stained clothes of all the deceased which were taken into possession vide memos. Which are part of the record, on 8-4-1996 he got prepared site plan of the place of occurrence Exh.P.C. He arrested Aman Ullah Khan, appellant on 9-4-1996 who got recovered rifle P.14 alongwith magazine containing four five bullets. .This was taken to possession vide memo. Exh.P.K. On 9-4-1996 he arrested Mst. Mohlat Bibi. He moved Illaqa Magistrate for issuance of non-bailable warrants of arrest of Mirza Khan and Ajmal Khan appellants as they were fugitive to law and after observing the requisite procedural formalities the concerned Magistrate issued proclamation Exh.P.Z. (with regard to Ajmal Khan appellant) and Exh.P.AA. (in respect of Mirza Khan appellant). Muhammad Ajmal Khan appellant was arrested by P.W.11 Abdul Jabbar, S.-I. On 18-6-1990 and that at the time of his arrest he was carrying kaslashnikov and five loaded magazines which too were recovered from him. However, Ajmal Khan and Mirza Khan appellants were formally arrested in the instant case by Muhammad Aslam, P.W.13 on 5-7-1999. During the investigation he led to recovery of gun P.18 alongwith five cartridges P.1-5 which were taken into possession vide memo. Exh.P.CC. The site plans of the place of recovery was prepared vide memo. Exh.P.CC./1. The supplementary challan qua this appellant was also submitted in Court by this witness.
5. During trial the prosecution examined 17 witnesses including doctor and the Investigating Officer.
The medical evidence in the instant case was furnished by 'Dr. Mehr Khan, P.W,9 who conducted postmortem examination of Mst. Sarwar Bibi wife of Saadullah Khan and found the following injuries on her person:-
(i) An entry wound of fire-arm 1/2 c.m. x 1/2 c.m. Over in front of left breast, 5 c.m. Just above the left nipple.
(ii) An exit wound of fire-arm 2 c.m. x 1-1/2 c.m. Over the outer part of front of right chest, 9 c.m.
Below and outer to right nipple and 15 c.m. From midline.
(iii) An entry wound of fire-arm 1 c.m. x 1-1/2 c.m. Over the outer side of the upper and the right leg, 5 c.m. Below the right knee-joint.
(iv) An exit wound of fire-arm 2 c.m. x 2-1/2 c.m. Over the inner side of the right thigh, 6 c.m. Above the right knee-joint.
' The cause of death according to doctor was injuries Nos.1 and 2.
' He also conducted post-mortem examination of Mst. Hajran Bibi wife of Muhammad Akbar Khan and the injuries found on her person are as under:--
(1) An entry wound of fire-arm 1/2 c.m. x 1/2 c.m. On the right side of abdomen, 10 c.m. Above the right ante superior iliac spine and 18 c.m. To the right slight above the umbilicus.
(2) An exit wound of fire-arm 4 c.m. x 3 c.m. With loop of intestine coming out just 3 c.m. To the left of the umbilicus.
(3) An entry wound of fire-arm 2 c.m. x 1 c.m .Over the back of left mid-night.
(4) An exit wound of fire-Arm 3 c.m. x..2 c.m. Over the front of upper 1/3rd of the left thigh, 5 cam.
Below the inginal ligament.
(5) A grazing wound of fire-arm is present over the over tip of right side of middle finger.
(6) An entry wound of fire-arm 1-1/2 c.m. x 14/2 over the outer side of lower and left arm.
(7) An exit wound of fire-arm 2 x 1 c.m. On the inner side of middle part of left arm.
' The cause of death according to doctor was injuries Nos.1 to 3.
6. P.W.17 Dr. Sher Ali Khan Niazi conducted the post-mortem examination of Mst. Hayat Bibi wife of Ahmad Khan and found the following injuries on her person:--
(1) An entrance fire-arm wound 1/2 c.m. x 1/2 c.m. Elliptical on front of right chest, 8 c.m. Right from midline 9 c.m. Below clavicle.
(2) An exit fire-arm wound 112 c.m. x 1/2 c.m. On front of it. Chest, 5 c.m. Below apex of axilla.
' Injury No,2 was declared to be the cause of death according to this witness. He also conducted the post-mortem examination of Ahmad Khan son of Rab Nawaz and the injuries found on his person are as under:--
(1) An entrance fire-arm wound 1 c.m. x 1 c.m. On back of its hand. It was muscle deep. Metallic foreign deep body were recovered.
(2) An entrance fire-arm wound 1.2 c.m. x 1 c.m. On external side of it. Fore-arm 6 c.m. Above it, wrist-joint.
(3) An exit fire-arm wound 1.2 c.m. x 1.2 c.m. On inner side of it. Fore-arm, 6 c.m. Distal to it. Elbow- joint.
(4) An entrance fire-arm wound 1 c.m. x 1-1/2 c.m. On inner side of it. Fore-arm, 4 c.m. Distal to it.
Elbow joint. A foreign body was recovered from left arm.
(5) An entrance fire-arm wound 1 c.m. x 1/2 c.m. On front of it, chest on medial part of it, clanicle edges burnt.
(6) A fire-arm grazing wound 2 c.m. x 1/2 c.m. On front of chin. It was skin and muscle deep. Edges burnt.
(7) An entrance fire-arm wound 1/2 c.m. x 1/2 c.m. On lateral wall of left chest. The edges were burnt. It was 14 c.m. Below apex of axilla. It was mid axillary line.
(8) A slit like entrance fire-arm wound 0.8 c.m. x 0.5 c.m. On lateral wall of chest, 13 c.m. Below nipple, 4 c.m. Front of injury No,7. The edges were burnt.
(9) An exit fire-arm wound 2 c.m. x 1 c.m. On back of left lower chest, 7 c.m. Away from midline.
(10) An entrance fire-arm wound 1/2 c.m. x 1/2 c.m. x edges burnt and blackened on top of right shoulder 9 c.m. Away from midline. Callictriely all entrance fire-arm wounds edges were burnt.
' The cause of death according to doctor was injuries Nos.5, 7, 8, 9 and 10 in ordinary course of nature.
' The post-mortem examination of Muhammad Akbar Khan son of Saad Ullah Khan was also conducted by P.W.17 Dr. Sher Ali Khan Niazi and he found the following injuries on his person:--
(1) An entrance fire-arm wound 0.8 c.m. x 0.8 c.m., circular in shape on it. Side of forehead, 6 c.m.
Above it, eyebrow, 10 c.m. In front of it, ear. The edges were burnt and blackened.
(2) An exit fire-arm wound 3 c.m. x 1 c.m. Slit like, 10 c.m. Behind it, ear, 1.5 c.m. Left from midline.
(3) An entrance fire-arm wound 2 c.m. x 1 c.m. x irregular in shape, 10 c.m. Lateral from left nipple and 10 c.m. Below apex of axilla on mid axillary line. The edges were burnt and blackened.
' (4) An incised wound 4 c.m. x 1/2 c.m. On back of right hand in line of index finger x muscle deep.
' The cause of death according to doctor was injuries Nos.1 to 3.
7. P.W.1 is Mst. Chando Bibi, the complainant of the instant case. She made statement in COurt consistent with the story given in the F.I.R. Her statement was corroborated by P.W.2 Sohail Akbar who is son of Muhammad Akbar deceased. He was young boy at the time of recording of his statement and he was student of 9th class. P.W.3 is Mati Ullah Khan, Constable who was given five sealed parcels containing bloodstained earth in respect of Ahmed Khan, Akbar Khan, Hayat Bibi, Hajran Bibi and Sarwar Bibi for onward transmission to the office of Chemical Examiner. P.W.4 is Abdul Sattar. He is a witness of memos. Vide which the afore-referred blood-stained earth was taken to possession. P.W.5 is Abdul Karim. He too is an eye-witness. He is brother of Hayat Bibi deceased. It is in evidence that he resided at a place which is at a distance of 9/10 Kms. From the place of occurrence and the reason given for his visit to the place of occurrence was that he went to offer his Jumma prayer. He, however, in cross-examination conceded that in the village which he lived there was mosque as well. P.W.6 is Muhammad Shafique, Draftsman. P.W.7 is Rab Nawaz Khan who identified the dead bodies of Ahmad Khan, Muhammad Akbar Khan, Mst. Hajran Bibi, Mst.
Hayat Bibi and Mst. Sarwar Bibi. P.W.8 is Atta Ullah, Constable. He took the dead bodies of all the deceased persons to mortuary for post-mortem examination. P.W.10 is Muhammad Iqbal, A.S.-I.
Who received five parcels containing blood-stained earth of the place where five persons were done to death. He handed over these parcels to Mati Ullah, Constable P.W.3 for onward transmission to the office of Chemical Examiner. P.W.11 is Muhammad Nawaz, S.-I. Whose statement has already been discussed above. P.W.12 is Naveed Murtaza. He only arrested Ajmal Khan with kalashnikov. P.W.14 is Muhammad Naveed Ahmad, Constable who in his presence on the pointation of Mirza Khan appellant .12 bore gun was recovered alongwith four live cartridges by Muhammad Aslam, S.-I. P. W.13. P. W.15 is Nawab Khan who got recovered rifle P.14 at the pointation of Aman Ullah Khan, appellant. P.W.16 is Abdul Jabbar, S.-I. Who arrested the appellants for the first time.
8. All the appellants when examined under section 342, Cr.P.C. Denied the prosecution story. Mirza Khan, appellant, however, gave his different version which is,as under:-- "Mst. Chando Bibi complainant is my wife. I was serving in Pakistan Army at the time of marriage with Mst. Chando Bibi. My marriage with Chando Bibi took place 4/5 years before the occurrence.
Being Army employee, I remained in service and after a long interval, I got vacations. Mst. Chando Bibi aforesaid is being a woman of bad character. During my absence she developed illicit relations with Akbar Khan. Deceased who is my neighbourer. On the day of occurrence I came on leave. Reaching home. After a short time. I came out of the house and I was standing at the street in front of my house where I listened this rumour that my wife has illicit relations with aforesaid Muhammad Akbar Khan deceased and I heard also this fact that she is living with Muhammad Akbar as his wife. At that time my brother Muhammad Ajmal was in Karachi in connection with labour. My brother and my father Aman Ullah were also not present at home at that time. I went to the house of Akbar Khan deceased. I entered into the courtyard. Seeing there Mst. Chando Bibi complainant sitting with Akbar Khan, deceased at same cot. Muhammad Akbar deceased was molesting her. I wanted to forbid Muhammad Akbar to remain away from bad habits. No P.W. Was present at that time. After talking and complaining him, he became enraged and took the loaded kalashnikov which had already with him at that time. The other deceased intervened there. During this scuffle, the kalashnikov went off and burst it all the four deceased including Muhammad Akbar.
I am innocent.
9. Learned counsel appearing for defence in support of this appeal made the following submissions:-
(i) That the prosecution has failed to prove motive part of this story because when the post- mortem of Mst. Hajran Bibi is conducted he found no head injury on her person.
(ii) That the motive alleged in the F.I.R. Is too weak to have led murders of five persons.
(iii) That there is no independent witness to support the prosecution case, although the occurrence took place in a broad daylight.
(iv) That there is no corroboration of the ocular account, there was no recovery of empties and the belated recovery of weapon of offence from Mirza Khan and Ajmal Khan appellants is of no avail to the prosecution.
(v) That Aman Ullah, appellant is 70 years of age, Mst. Mohlat Bibi is also a woman and it is repellent to common sense that they would join hands for committing such a gruesome act of live murders.
10. Learned counsel for the complainant assisted by learned State Counsel has supported the judgment of the learned trial Court. They contended that it was a broad daylight occurrence, the F.I.R. Was lodged promptly, that thefe is no reason why the complainant should falsely implicate the appellants. That all the witnesses were consistent insofar as role attributed to all the appellants is concerned.
11. Heard.
12. The occurrence which is subject-matter of this case was a broad daylight occurrence. The F.I.R.
Was promptly lodged. All the accused were specifically named and the complainant Mst. Chando Bibi P.W. I explained her presence at the house of Muhammad Akbar deceased alongwith her mother and father. While appearing in Court she made statement consistent with the version given in the F.I.R. Exh.P.A. Insofar as the role attributed to the appellants was concerned. Her statement was corroborated by P.W.2 Sohail Akbar who is son of Muhammad Akbar deceased. He is a natural witness of 'the occurrence who saw his father, his mother and other close relatives being murdered by the appellants. Both P.W.1 and P.W.2 were subjected to lengthy cross-examination but nothing could be brought on record to indicate that they were either not witnesses of the occurrence or they were deposing on account of any enmity. Both these witnesses, it may be pointed out. Are closely related to the appellants. Aman Ullah Khan, appellant is the real maternal-uncle of Muhammad Akbar, father of P.W.2. Mirza Khan and Ajmal Khan appellants are real sons of Aman Ullah appellant and Mst. Mohlat Bibi co-convict is wife of Aman Ullah appellant as also the mother of Mirza Khan and Ajmal Khan appellants. Thus, with this inter se relationship, it is not expected that these witnesses would falsely depose against the appellants. However, the presence of Abdul Karim P.W.5 is not free from doubts as firstly he admitted in cross-examination that he lived at a place which was at a distance of 9/10 mm. From the place of occurrence and secondly his explanation for being at the spot is not tenable. He stated that he came to the spot to offer his Jumma prayer. However, he did not deny in his cross-examitiation that in the village where he lived there was a big mosque. The statements of P.W.1 and P.W.2 stand corroborated by the medical evidence qua the duration of injuries received, time of death and the kind of weapon used. There are two types of injuries. There is a set of injuries which could be caused by gun while other were caused by kalashnikov. Yet another important circumstance which has immense corroborative value is the absconsion of Mirza Khan and Muhammad Ajmal appellants. It is in evidence that they remained fugitive to law and were apprehended after a period of more than 3 years. This piece of evidence was specifically put to both of them and they could not offer any tenable explanation whatsoever. When the absconsion is proved on record, through proceedings under sections 87-88, Cr.P.C. And if no explanation which appeals to reason is put forward by the accused then this circumstance coupled with other evidence on record weighs rather heavy against the accused.
This is in line with the law laid down by the August Supreme Court in Mst. Roheeda v. Khan Bahadur and another 1992 SCM R 1036 the august Supreme Court observed, at page 1042 as under:-- "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case, the accused/respondent No,1, Jehanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
The argument of the learned defence counsel that since the motive has not been proved or the motive is weak and, therefore, the benefit of this infirmity should be given to the appellants is fallacious in the facts and circumstances of this case as the lack of motive or his weakness is never fatal for the prosecution if the case otherwise stands proved through direct evidence with regard to the occurrence. This is fi line with the law laid down by the august Supreme Court Imtiaz v. State 2001 SCM R 1334 wherein at page 1338 it was held as under:-- "It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case 'but must rest on the examination of entire evidence' in view of principles in Woolmingtin's case 1935 AC '462. Reference may be made to Talib Hussain v. State 1995 SCM R 1776, so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution. Reference may be made to State v.
Sobharo 1993 SCM R 585."
The occurrence has partly been admitted by Mirza Khan, appellant and he raised plea of grave and sudden provocation. This plea in the facts and circumstances of this case is merely an attempt to hide his own guilt and cannot be accredited with truth for the following reasons. Firstly, he did not pick up courage to make statement on oath, secondly he did not lead any defence to prove it. Thirdly it is repellant to common sense that his wife Mst. Chando Bibi P. W.1 would be sitting with Muhammad Akbar, deceased in the presence of her father and mother and other relatives who were done to death. Fourthly if it was Mst. Chando Bibi P.W.11 whose conduct had provoked the appellant Mirza Khan then she should have been the first victim and she would not have been allowed to free and hide in a room and lastly the grievance of provocation if any could be against Muhammad Akbar and Mst. Chando Bibi, why the other four were done to death in the manner as alleged. Having repelled the defence plea, we are of the view that the prosecution has proved its case beyond reasonable doubt against Mirza Khan, Ajmal Khan and Aman Ullah Khan, appellants.
The case of Mst. Mohlat Bibi, co-convict is, however, distinguishable and is not free from doubt. She is an old woman. Admittedly, she was not armed with fire-arm. No motive was attributed or her either in the F.I.R. Or during the trial. She was attributed role of proverbial Lalkara only. There is little in evidence to suggest that the said Lalkara was taken as a command. There is no evidence of pre- concert or conspiracy either which could saddle her with the criminal liability. In these circumstances her conviction cannot be sustained.
13. Criminal Revision No,756 of 2000 seeking enhancement of the sentences of Aman Ullah and Mst.
Mohlat Bibi has merit. We have already discussed the case of Mst. Mohlat Bibi it the foregoing paragraph and her very conviction has been found to be bad in law. So far as enhancement of sentence to Aman Ullah is concerned he was awarded the sentence of life imprisonment Primarily on account of old age. In his statement under section 342, Cr.P.C. He was shown to be 75/80 years of age. There is no cavil to the proposition that the old age by itself would not be a mitigating circumstance, however, there are other factors which the Court would like to keep in mind while maintaining the sentence awarded by the learned trial Court. Unlike Mirza Khan appellant.
Amanullah admittedly. Is not connected with the motive part of the prosecution story. He played no role in the first limb of the occurrence. He did not initiate the attack. Only one fire on two persons alongwith Mirza Khan appellant is attributed to him in the 2nd limb of the occurrence. His old age lack of motive and single fire having been attributed to him are circumstances which would weigh with the Court to maintain the lesser sentence. Even otherwise, in a criminal revision this Court has to examine the legality of the sentence awarded. The learned trial Court has in its discretion passed a sentence of life imprisonment which is legal and this Court in its revisional jurisdiction would not like to interfere in the facts and circumstances of this case.
14. For what has been discussed above, we are of the considered view that the prosecution has proved its case beyond reasonable doubt against Mirza Khan. Ajmal Khan and Aman Ullah appellants to. Sustain conviction on a capital charge. Criminal Appeal No,2541 of 2000 is therefore.
Dismissed. For reasons given in para. 13 above Criminal Revision. No,756 of 2000 is also dismissed.
However, although. Mst.Lat Bibi has not filed an appeal but having read the entire evidence on record and for the reason given in para. 12 above the conviction to her extent warrants interference.
The impugned judgment to the extent of Mst. Mohlat Bibi is set aside and she is acquitted. She shall he released forthwith unless detained in any other case. The Deputy Registrar (Judicial) of this Court shall send a copy of this judgment to Superintendent concerned District Jail where she is lodged.