SARDAR MUHAMMAD RAZA, J.---Ghazanfar Abbas son of Ijaz Hussain Shah of Jalalpur Pimali, with reference to F.I.R. No,170 of 1993 dated 8-10-1993 of Police Station Basti Jalalpur Pirwala, District Multan, was tried under sections 302/324/109, P.P.C. For committing the murders of Allah Ditta, Mst.
Jewan Mai and Mst. Nazeer Mai. During the course of his attack he effectively attempted at the lives of Mst. Nasreen Mai and Fayyaz Hussain, a minor aged six years. The occurrence took place at 02- 00 hours after when the aforesaid Ghazanfar Abbas committed house-trespass.
2. The learned Additional Sessions Judge, Multan convicted him under section 449, P.P.C. And sentenced him to imprisonment for six years and a fine of Rs,20,000. Under section 324, P.P.C., having been convicted on two counts for causing injuries to Mst.Nasreen Mai and Fayyaz Hussain, he was sentenced to imprisonment for seven years and a fine of Rs,25,000 which, if realised, was to be paid to both the injured equally. Under section 302, P.P.C. And on three counts, he was convicted and sentenced to death along with payment of compensation of Rs,50,000 on each count under section 544-A, Cr.P.C.
3. He filed Criminal Appeal No,34 of 1997 against the judgment dated 12-1-1997 of the learned trial Court, which was heard alongwith Murder Reference No,24 of 1999 by an Hon'ble Division Bench of the Lahore High Court, Multan Bench. The High Court vide judgment dated 2-8-2001 dismissed the appeal, answered the murder reference in the affirmative and hence this petition for leave to appeal filed through the jail authorities.
4. The detail of occurrence is furnished by complainant Allah Wasaya son of Khan Muhammad. He alongwith Imam Bakhsh son of Qadir Bakhsh on 7-10-1993 at evening time had come to the house of his brother Allah Ditta in Basti Rehmania Colony, Jalalpur Pirwala. As, much time was spent in having chat at his brother's house and as it had become late, both decided to stay for the night.
Allah Wasaya and Imam Bakhsh put their cots in the veranda while Allah Ditta slept in the courtyard. Mst.Bakhto Mai wife of Allah Ditta, Mst.Jewan Mai the mother of Allah Ditta, Mst.Nazeer Mai wife of Riaz Hussain, Mst. Nasreen Mai daughter of Allah Ditta and Fayyaz Hussain aged six years son of Allah Ditta were also asleep on their cots in the veranda, when, at about 02-00 hours Allah Ditta wailed in alarm. Allah Wasaya and Imam Bakhsh got up and saw in the light of bulbs that Ghazanfar Abbas petitioner, a neighbour armed with a pistol was standing near Allah Ditta.
Within the view of the two witnesses, Ghazanafar Abbas alias Taindu fired two shots at Allah Ditta which hit him on the right shoulder and at the left hip. With the report of the fire shots all the inmates of the house woke up and stood aside out of fear. Thereafter, the petitioner opened fire at Mst.Jewan Mai, Mst.Nazeer Mai, Mst.Nasreen Mai and Fayyaz Hussain. They all fell injured and the petitioner alongwith fire-arm decamped from the spot by scaling over the wall. The people of Mohallah were also attracted to the hue and cry and with their help all the injured were taken to Civil Hospital, Jalapur Pirwala. Allah Ditta succumbed to his injuries at the hospital while Mst.Jewan Mai and Mst.Nazeer Mai died the next day. The report was lodged at 05-30 hours the same night which is incorrectly mentioned somewhere as 5-30 p.m.
5. Motive for the occurrence is alleged to the effect that one Mst.Suniya alias Guddi, the sister of Ghazanfar Abbas had been abducted two months prior to the occurrence and was rescued by the people of Eidhi Walfare Trust at Karachi. Therefrom, she was retrieved by the parents on telephonic message. Ijaz Hussain Shah the father of the abductee and Ghazanfar Abbas the brother of the abductee had suspected that Manzoor the son of Allah Ditta had abducted Mst.Surriya. They had been threatening the family of Allah Ditta of revenge which eventually was translated into reality. It was alleged in the F.I.R. That Ijaz Hussain Shah, in order to avenge the abduction of his daughter had also shifted his bag and baggage from the neighbourhood and it was under the abetment of Ijaz Hussain Shah that Ghazanfar Abbas committed the offences. Ijaz Hussain Shah who was involved under section 109, P.P.C. Stands proceeded against under section 512, Cr.P.C.
6. Apart from numerous other factors, the prosecution placed its main reliance on the ocular testimony of as many as three witnesses, namely, Mst. Nasreen Mai (P.W.2), Allah Wasaya complainanat (P.W.3) and Imam Bakhsh (P.W.4) who have categorically supported the first and prompt version given in the F.I.R. Although it had another witness in store, namely, Fayyaz Hussain minor who-was injured in the occurrence, yet being a minor he was abandoned as unnecessary and rightly so because under similar conditions three witnesses of eye account had already been examined by the prosecution who could least be shattered by the defence in cross.
7. The complainant family had five casualties; one dead and four seriously injured at such an odd hour of the night. They had to arrange for conveyance and other necessary jobs for the errand.
They first took the injured to the hospital where they were given necessary medical aid and thereafter lodged the report at 05-30 hours. In the circumstances, the F.I.R. Was lodged at the earliest possible. This leaves no room for concoction and deliberation particularly when there was none else to be deliberated with.
8. The convict/petitioner was arrested six days after the occurrence on 14-10-1993. This shows his abscondence as well though for a short time. At the time of his arrest a .30 bore pistol was recovered from body search. It matched with the empties recovered from the spot. This is another strong circumstance which the petitioner cannot wriggle out from.
9. The version of the eye-witnesses is supported by the post-mortem as well as the medico-legal reports where the injuries almost coincide with the narration given in the ocular account. The number of injuries almost correspond to the number of empties recovered from the spot in addition to an empty magazine of the pistol. Obviously, as many as 11 to 12 rounds could not be loaded in one magazine, and thus to complete his job, the assailant after emptying one magazine reloaded the pistol with another one. It was a matter of extreme hurry and thus the assailant had no time to keep the empty magazine. Naturally, in the heat of the moment, he had to throw it away.
10. Half-heartedly the learned counsel for the petitioner contended that Allah Wasaya complainant and Imam Bakhsh P.W. Not being the residents of the house were not the natural witnesses and hence their testimony should be taken out of consideration. We could not be persuaded to accept the argument because for a brother alongwith his friend or relative, it is not something unusual to pay a visit to the house of his real brother and, in the circumstances, to stay there for night. We believe that the witnesses are natural witnesses. The learned counsel had no answer when we posed a question as to how he would discard the ocular testimony of Mst.Nasreen Mai who was seriously injured in the occurrence and who furnished the most natural eye account. Rather, her statement in Court was more natural and worthy of credence when she said that she woke up only after the first shot which the assailant had fired at Allah Ditta deceased. We have no strong reason to'discard the statements of Allah Wasaya and Imam Bakhsh and not the slightest of reason to discard the ocular testimony of Mst.Nasreen Mai. The assailant being known to the family as neighbour was not a stranger for them and it was not difficult to identify him in the light of bulb and from such a close distance.
11. It a case of single charge. Though the father of the petitioner is also charged but he is for abetment alone and never asserted to be present on the spot. Such single charge is a rare phenomenon because in a single charge the substitution cannot be afforded, particularly when to substantiate the charge there are as many as three eye-witnesses examined in Court. The petitioner had failed to produce any defence.
12. With regard to the motive in question it was alleged with reference to questions Nos.3 and 4 of the statement of the accused under section 342, Cr.P.C., that the accused having denied, had no motive to kill. This renders all the more strength to the case of the prosecution that if the convict had no motive in his mind, there was no other enmity between the parties prior to the occurrence, thus the complainant party cannot be charged of having any motive to falsely implicate. Obviously there was motive to commit the offence and which is why the convict is singularly charged.
13. All that has been said above in connection with appreciation of evidence was for the only reason that the two Courts below had rightly appreciated the eye-witnesses as well as the circumstantial evidence on record. It did not need to be discussed because the learned counsel candidly conceded that he would not touch the merit of the case and would confine himself only to the quantum of sentence. His only submission was restricted to such issue. He reiterated that due to the past abduction of his sister, the petitioner had acted to redeem the honour of family, in what he termed as "Ghairat."
14. Regardless of whether honour killing, as such, is justifiable or not, we would refer only to the circumstances of the present case and would determine, as to, whether the plea of honour killing is at all genuine. It has come on record that the convict and his father had suspected Manzoor son of Allah Ditta of having had abducted Mst. Surriya, who was subsequently retrieved from Karachi. If so, the direct motive should have been at the most and if at all, available against Manzoor. It is not justified that a person in the name of honour should come out to exterminate the whole family as the convict has almost done in the instant case. He not only killed Allah Ditta who has nothing to do with the abduction of Mst.Surriya but also killed Mst.Jewan Mai and Mst.Nazeer Mai. He went on further to kill Mst.Nasreen Mai and Fayyaz Hussain as well but it was only their fortune that they survived. Such a desperate act and a blatant violation of law can in no circumstance be justified on the plea of unbridled sense of honour. We have no hesitation in holding, in the circumstances, that there exists no mitigating circumstance at all. In the instant case, the two Courts below have not only imposed a proper sentence but it was their duty to do so. All the convictions and sentences recorded and imposed against the petitioner including the death sentence on three counts are upheld, leave to appeal is refused and the petition is hereby dismissed.