' KHAWAJA. MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,321 of 1998 directed against the judgment dated 4-4-1998 passed by learned Additional Sessions Judge, Jhang, whereby he convicted the appellants under sections 302(b)/149, P.P.C. And awarded them to death sentence with fine of Rs,25,000 each. They all were convicted under sections 449/149, P.P.C. And were sentenced to undergo life imprisonment with fine of Rs,25,000 each or in default in payment of fines in both sentences the appellants were ordered to suffer more two years' R.I. Each.
Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. The occurrence in this case took place on 16-10-1995 at about 1 a.m. During night in the area of Chak No,210-JB, Tehsil Chiniot, District Jhang situated at a distance of 5/6 k.Ms. From Police Station Langerana. Matter was reported to the police the same day at 1-30 a.m. (night).
3. The facts in brief, as narrated by Iftikhar Hussain, complainant in the F.I.R. Are that Mst. Ejaz Bibi deceased was the wife of Abbas appellant. Ghulam Shabbir deceased step-brother of Iftikhar Hussain complainant after seeking divorce of Mst. Ejaz Bibi, deceased from Abbas appellant married with her and out of the wedlock two minor sons namely Waqar Shabbir and Nisar Shabbir aged one year and the three months respectively, were born. In the meanwhile Abbas appellant continued raising demand for the return of Mst. Ejaz Bibi deceased but it was not possible for Ghulam Shabbir deceased to return Mst. Ejaz Bibi. In the meanwhile Abbas appellant persuaded his brother Fazal Elahi appellant and Fazal Dad and Khaliq Dad appellants to join him.
4. On the night of occurrence i,e, 16-10-1995 Ghulam Shabbir alongwith his wife and children was sleeping in a separate room while the complainant and his two sisters namely Kaniz' Fatima P.W.
And Fatima Bibi deceased, Bukhat Bhari, mother and Barkhurdar P.W. Another younger brother of the complainant had slept in the adjacent room. At about 1 a.m. During night on hearing noise of foot they woke up and saw all the appellants duly armed with guns present in the compound, who shouted Lalkara to bring out Ghulam Shabbir and Mst. Ejaz Bibi on which Mst. Fatima sister of the complainant came forward and made an attempt to stop them, whereupon Abbas appellant one after the other fired two shots hitting her on her head and other part of her body as a result of which she fell down. Thereafter, the accused/appellants entered into the room of Ghulam Shabbir and fired at Ejaz Bibi and Ghulam Shabbir and Waqar Shabbir deceased while Fazal Dad appellant gave a butt blow of the gun to Nisar Shabbir. The firearms hit the chest and face of Ghulam Shabbir deceased and Ejaz Bibi deceased sustained injuries on her left neck and chest, while Waqar Shabbir deceased sustained fire-arm injury on his chest. After satisfying themselves the appellants went out of the room and the P. Ws. Witnessed that two accused persons were standing on the roof of the Kotha and Jehangir co-accused was standing outside the Haveli. The appellants then proceeded to the Kotha, of father of the complainant namely Namdar deceased and raised Lalkara that they will kill his entire family. All the abovementioned four appellants entered into the Kotha of Namdar deceased and Abbas appellant fired shots at him hitting his abdomen and left ear and he succumbed to the iniuries at the spot. All the deceased died at the spot.
5. After getting information about the occurrence the police completed all the necessary formalities and then Muhammad Sadiq Inspector/S.H.O. Alongwith his subordinates went to the spot. He prepared injury statement Exh.P.D/3 and inquest report Exh.P.D/4 regarding dead body of Ghulam Shabbir. He inspected the dead body of Waqar Shabbir and prepared his injury statement Exh.P.E/2 and inquest report Exh.P.E/3. He inspected the dead body of Nisar Shabbir deceased and prepared his injury statement Exh.P.F/2 and inquest report Exh.P.F/3. He inspected the dead body of Namdar deceased and prepared injury statement Exh.P.G/3 and inquest report Exh.P.G/4. He inspected the dead body of Kaniz Fatima deceased and prepared her injury statement Exh.P.H/3 and inquest report Exh.P.H/4. Thereafter he inspected the dead body of Ejaz Bibi deceased and prepared her injury statement Exh.P.J/3 and inquest report Exh.P.J/4. He also secured the blood- stained earth from the places of murder of the deceased vide memo. Exh.P.O. He also secured crime empties P.12/1-24 vide memo. Exh.P.B. Last worn clothes of the deceased were also received by him vide memo. Exh.P.B. On 21-10-1995 he arrested Fazal Dad, Khaliq Dad and Abbas appellants and on 25-10-1995 Khalid Dad appellant while in police custody got recovered 12 bore gun P.9 vide memo. Exh.P.K. While Fazad Dad on the same day got recovered 12 bore gun P.10 vide memo. Exh.P.L.
Abbas appellant on the same day got recovered gun 12 bore P.1 vide memo. Exh.P.M. He also arrested Fazal Elahi and Jehangir accused on 1-11-1995. Ultimately challan was prepared against the abovesaid accused and they were sent to the judicial lock-up to face the trial.
6. Prosecution in order to prove its case has produced as many as 12 witnesses including Doctor, I.Os. Eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.Q. And report of Serologist Exh.P.R., the learned D.D.A. Closed the prosecution evidence. One C.W. Was also examined by the learned trial Court. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried.
7. Learned counsel for the appellants in support of this appeal submits that, as far as Fazal Elahi appellant is concerned, no role whatsoever, is attributed to him except his presence at the spot either in the F.I.R. Or before the learned trial Court, that he was also found innocent by the local S.H.O. And also by the Crime Branch. He submits that nothing incriminating was recovered from Fazal Elahi appellant and that the role of similar nature was attributed to Jehangir who has been acquitted by the learned trial Court. Learned counsel for the appellants submits that there is contlict between the ocular account and the medical evidence. Elaborating his arguments he submits that the eye-witnesses have given lesser number of injuries while there are more injuries on the person of the six deceased.
8. As far as Iftikhar Hussain P.W. Is concerned, he lives at his Dera on the ;and which he had forcibly taken from appellants Fazal Dad and Khaliq Dad, although, stand-point of Iftikhar Hussain was that he had taken the land from one Pappu Shah. Adds that Noor Bakhat her mother had stated before the Crime Branch that Iftikhar Hussain used to live at the said Dera.
9. Learned counsel for the appellants submits that the prosecution has failed to prove its case even against Fazal Dad because according to the F.I.R., Exh.D.E Ghulam Abbas appellant had registered a case vide F.I.R. No,507 of 1994 against Fazal Dad and Ghulam Shabbir deceased for the abduction of his wife Mst. Ijaz Bibi so there is no question of sharing the common intention between Ghulam Abbas and Fazal Dad. Adds that the statement made by the three eye-witnesses namely, Iftikhar Hussain, Kaniz Fatima and Noor Bakhat are full of contradictions that they are related witnesses and no independent witness had been produced by the prosecution. He has referred to the statement of Ghulam Abbas recorded under section 342, Cr.P.C. And specially reply to Question No,8 of said statement. He has also referred to F.I.R. Exh.D.F. Stating that Ghulam Abbas also lodged a case registered through F.I.R. Against Ghulam Shabbir deceased and his wife Ijaz Bibi deceased under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, as Mst. Ijaz Bibi was living as illegal wife of Ghulam Shabbir. He submits that it was Namdar deceased father of Ghulam Shabbir who after registration of case F.I.R. Exh.D.E. Got released Mst. Ijaz Bibi on bail and thereafter handed her to Ghulam Shabbir, his deceased son and out of said wedlock, two illegitimate children namely Waqar Shabbir and Nisar Shabbir were born. He submits that Ghulam Shabbir and Mst. Ijaz Bibi were living in adultery, Adds that in fact the case. If any, is against Ghulatn Abbas who under grave and sudden provocation committed the murder of the deceased because Ghulam Shabbir was having his wife with him illegally.
10. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that this is a case of promptly lodged F.I.R. Against the appellants with specific roles which they played and the weapons with which they were armed and that the motive has been proved by the prosecution, that the accused are not only related inter se but they are also closely related to the deceased. He submits that the three eye-witnesses produced by the prosecution are natural witnesses, that there is no reason to discard their statements, that the accused persons used to reside in the Ihata where the occurrence had taken place. They both support the judgment of the learned trial Court except against Fazal Elahi and admits that no role whatsoever is attributed to Fazal Elahi.
11. We have heard the learned counsel for the parties and also have gone through the F.I.R. And evidence recorded by the learned trial Court. First of all we would like to take into consideration the relationship between the parties. Fazal Dad and Khaliq Dad appellants are real brother inter se and first cousins of Ghulam Shabbir deceased. Ghulam Abbas and Fazal Elahi are also real brothers inter se and Azeem father of Fazal Dad and Khaliq Dad appellants is their maternal uncle.
12. As far as deceased persons are concerned. Ghulam Shabbir is husband of one Mst. Ijaz Bibi while two minor sons were born out namely Waqar Shabbir and Nisar Shabbir. Namdar deceased is father of Ghulam Shabbir deceased and Fatima Bibi deceased persons.
13. Three eye-witnesses produced by the prosecution are Iftikhar Hussain son of Namdar is brother of Ghulam Shabbir deceased, Kaniz Fatima alias Aziz Fatima is sister of Ghulam Shabbir deceased and also of Iftikhar P.W. Noor Bakhat P.W.11 is wife of Namdar and mother of Ghulam Abbas deceased. Occurrence had taken place in the house of the complainant party. They are most natural witnesses. The said occurrence had taken place at 1 a.m. (mid-night) on 16-10-1995 while the matter was reported to the police at Police Station at 1-30 a.m. On the same day (mid-night).
Names of the appellants, the weapons with which they were armed and the roles which they played are sufficiently mentioned in the F.I.R. In the site-plan Exh.P.C. At Point No,9 an electric bulb has been shown and the parties were related to each very closely as mentioned in the earlier paragraphs of this judgment. Six persons have been murdered in this case and they were very closely related and out of them two are minor sons of Ghulam Shabbir namely Waqar Shabbir and Nisar Shabbir having ages of one year and three months respectively. There is no conflict between the ocular account and the medical evidence. Number of accused persons also coincide with the number of injuries because there are 24 injuries with fire-arm on their persons. There is no material contradiction between the ocular account and the medical evidence. Twenty-four empty cartridges were recovered from the spot. Recoveries were also effected from. Fazal Dad, Khaliq Dad and Ghulam Abbas by the Investigating Officer, but for the reasons best known to him and in our view with ulterior motive he did not send the empty cartridges and the guns recovered from the appellants to the Fire-Arms Expert for comparison. Ocular account in this case as- mentioned by us is fully corroborated by medical evidence and the motive. As far as Fazal Dad, Khaliq Dad and Ghulam Abbas are concerned, the motive also lies with them and there was no question of their false implication in this case.
14. As far as contention of the learned counsel for the appellants that in Exh.D.E. The F.I.R., registered on the statement of Ghulam Abbas appellant the accused were Fazal Dad and Ghulam Shabbir deceased but the fact remains that not a single question was put to any of the P.Ws. That what was the result of that F.I.R. We are of the considered opinion that as Ghulam Shabbir married with Mst.
Ijaz Bibi, Fazal Dad had a grudge in his mind that he and Ghulam Shabbir had jointly abducted Ijaz Bibi and in this regard a case was registered by Ghulam Abbas against both of them but later on Ghulam Shabbir allegedly married with Mst. Ijaz Bibi, Fazal Dad did not get anything from the said abduction so he joined hands with Ghulam Abbas, Fazal Dad and Khaliq Dad who are also first cousins of Ghulam Shabbir. There is no question of false implication of Fazal Dad and Khaliq Dad so case against Fazal Dad, Khaliq Dad and Ghulam Abbas has been fully proved .By the prosecution and the conviction and sentence i,e, death sentence on six counts awarded to them by the learned trial Court is hereby maintained. This appeal to their extent is dismissed and the murder reference is replied in the affirmative.
15. Now we take up the case of Fazal Elahi appellant. No role whatsoever either in the F.I.R. Or before the learned trial Court the eyewitnesses have attributed to him towards any of the deceased person. No recovery was effected from him. He was also found innocent not only by the local S.H.O.
But also by the Crime Branch, Lahore. Even the learned State Counsel and learned counsel for the complainant have conceded the submissions of the learned counsel for the appellants which he made in favour of Fazal Elahi appellant about his innocence. We are also of the opinion that no case is made out against Fazal Elahi appellant so this appeal to his extent is accepted. Murder Reference to his extent is replied in the negative. He is ordered to be released forthwith if he is not required in any other case.
' Death sentence awarded to Ghulam Abbas, Fazal Dad and Khaliq Dad appellants by the learned trial Court is confirmed but death sentence awarded to Fazal Elahi appellant by the learned trial Court is not confirmed.