' BASHIR A. MUJAHID, J.---Bashir Ahmad, Manzoor Ahmad sons of Allah Ditta, Manak son of Muhammad Khan, Manak son of Fateh Muhammad alias Fatta and Zubair son of Shana have challenged judgment dated 3-11-1998 passed by the learned Additional Sessions Judge, Sargodha whereby Bashir Ahmad, Manzoor Ahmad and Manak son of Muhammad Khan were convicted under section 302(b), P.P.C. And sentenced to death on two counts with a fine of Rs,50,000 each on two counts as compensation, to be paid to the legal heirs of deceased or in default to undergo two years' S.-I. They were also convicted under sections 324 and 149, P.P.C. And sentenced to 7 years' R.I.
With a fine of Rs,5,000 each or in default to undergo 6 months' S.I. They were also convicted under section 148, P.P.C. And sentenced to one year's R.I. Or in default to undergo three months' S.I. Manak son of Fateh Muhammad and Zubair were convicted under sections 324 and 149, P.P.C. And sentenced to 7 years' R.I. With a fine of Rs,5,000 each or in default to undergo 6 months' S.I. They were also convicted under section 148, P.P.C. And sentenced to one year's R.I. With a fine of Rs,5,000 or in default to undergo three months S.I. Each. The amount of fine, if realised, was ordered to be paid to Muhammad Inayat and Muhammad Sharif, P.Ws. Through the same judgment Umar Hayat and Noor were acquitted of the charges.
2. Briefly, facts of the case are that F.I.R. No,12.Exh.P.A./1 dated 10-9-1997 under sections 302, 324, 148 and 149, P.P.C. Was registered at Police Station Midh Ranjha District Sargodha on the statement Exh.P.A. Of Sultan Ali P.W.1 recorded by Gul Hameed S.-I. P.W.11 on the same day at 7-30 p.m. At Dodha Petroleum Service about the occurrence which took place at 4-00 p.m. In, the area of Rattapur Rehan. Dakhli Behk Lurka with the allegations that Sultan Ali complainant P.W.1 alongwith Ahmad, Manzoor Ahmad (both deceased), Inayat, Sharif, Azam and Anwar P.Ws. Were present in the shop of Abdul Ghafoor, in the Abadi of village Chah Miran. The shop had two doors, one opening towards the north into the courtyard of Abdul Ghafoor, while the other door opens in the street towards South when 11 persons including the appellants namely Bashir Ahmad, Manzoor, Manak son of Fateh Muhammad, Manak son of Muhammad Khan, Zubair, Umar Hayat, Noor, Umra son of Ahmad (since dead) and three unknown persons armed with deadly weapons arrived at the spot and raised lalkara. Bashir accused fired from his .12 bore gun at Ahmad (deceased) hitting him on his chest, Umra son of Ahmad accused (since dead) fired at Manzoor Ahmad (deceased) hitting him on his left leg. Manzoor Ahmad, injured ran towards the courtyard of Abdul Ghafoor from the back door of the shop. Manzoor Ahmad accused fired at Ahmad deceased hitting on his right buttock. Ahmed fell down in the shop. Sultan Ali complainant and his companions ran away through the back door of the shop into the courtyard of Abdul Ghafoor. Meanwhile Manak son of Fateh Muhammad fired at Inayat, P.W. Who had already reached in the open street after crossing the said courtyard. The said shot hit Inayat on his left thumb. Manzoor (deceased) who had entered the courtyard of the house of Sheikh Ahmad, P.W. After passing to the said street fell there.
Manak son of Muhammad Khan accused fired from close range at Manzoor and the shot hit him on his chest in the front. All the accused persons and their three companions reached the said courtyard of Sheikh Ahmad and resorted to firing at the complainant and his companions, as a result whereof Sultan Ali, Muhammad Inayat and Muhammad Sharif P.Ws. And Manzoor Ahmad (deceased) had received fire-arm injuries. The accused raising lalkaras fled away. Ahmad and Manzoor died at the spot.
Motive for the alleged occurrence was that criminal case was registered on behalf of the accused party against Ahmad deceased and his sons under section 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. Gul Hameed S.-I. P.W.11 after recording statement of complainant Exh.P.A. Sent the same for registration of formal F.I.R. He prepared the injury statement Exh.P.P. Of Sultan Ali complainant P.W.1.
He himself arrived at the spot and took into possession dead body of Ahmad deceased and prepared injury statement Exh.P.R. And inquest report Exh.P.S. He also prepared injury statement Exh.PU and inquest report Exh.P.V. Of Manzoor Ahmad and despatched the dead bodies for post- mortem examination. He also prepared injury statement Exh.P.L. Of Muhammad Inayat, Exh.P.N. Of Muhammad Sharif. He also collected blood-stained earth of Ahmad deceased vide memo. Exh.P.G., Manzoor Ahmad vide memo. Exh.P.H. And sent the same for chemical examination. He recorded the statements of P.Ws. Under section 161, Cr.P.C. Thereafter, investigation of the case was taken over by Muhammad Iqbal S.-I./S.H.O. P.W.12, who on 28-1-1997 arrested Manak son of Muhammad Khan, Zubair, Manak son of Fateh Muhammad, Manzoor son of Allah Ditta and Bashir Ahmad appellants.., They while in police custody led to the recovery of weapons of offence. After completion of investigation challan against the appellants was submitted while placing Umar Hayat son of Muhammad Khan, Noor and Umra son of Ahmad (since dead) in column No,2.
4.. The trial Court framed the charge which was denied by the appellant and they claimed trial.
5. During trial prosecution produced as many as 15 witnesses to prove the guilt of the appellants/accused.
6. The medical evidence was furnished by Dr. Allah Bakhsh Nathoka, Medical Officer P.W.-9 who on 11-1-1997 medically examined Muhammad Inayat son of Shah Nawaz and found the following injuries on his person:-- "A crushed wound 4 cm x 4 cm on the thumb of left hand cutting it at its base. Muscles were cut with blackening around the wound. There was a swelling 5 cm x 5 cm on the surface of left hand just below the wound.
' On the same day he examined Muhammad Sharif and found the following injuries on his person:-
(1) A circular wound 5 cm x.5 cm on the outer aspect of right thigh 22 cm above the right knee joint with blackening around the wound;
2. A circular wound 1 cm x 1 cm on the outer aspect of right thigh, 1.5 c.m. Above and anterior to injury No,1 with blackening around the wound. Corresponding cuts were present on 'dhoti'.
' On the same day he also examined Sultan Ali complainant and found following injuries on his person:-- "1. An abrasion .75 cm x .5 cm on front of right leg 2 cm below right knee joint."
7. Dr. Amjad Iqbal , Medical Officer P.W.-10 on 11-1-1997 conducted the post-mortem examination of Ahmad son of Wali Muhammad and found following injuries on his person:--
1. Wound of entry with inverted margins going into 2 x 2 cm on front and right side of sternal angle on chest with fracture of second rib and sternum surrounded by small punctate wound of entry in an area of 24 cm x 20 cm on the front of chest. Burning and blackening was present around the margins.
2. Wound of entry with inverted margins going into 4 cm x 3 cm on the left side of abdomen 5 cm below the left costal margins and 4 cm left to mid line. Burning and blackening was present on the margins.
3. Wound of entry with inverted margins going in 4 1/2 cm x 3 cm on the lateral side of right buttock 4 cm back and below the anterior superior iliac spine. Burning and blackening was present around the margins;
4. Wounds of exit with everted margins four in number 3/4 cm x 3/4 cm each on the back of right chest lower part in an area of 10 cm x 7 cm.
5. Wounds of exit with everted margins six in number, 3/4 cm 3/4 each on the back of right buttock upper part in an area of 8 cm x 5 cm.
' In the opinion of the Doctor injuries No,1 & 2 were fatal and were sufficient to cause death in ordinary course of nature. Injury No,3 was not fatal separately.
' On the same day he conducted post-mortem examination of Manzoor Ahmed son of Wali Muhammad and found following injuries on his person:--
1. Wound of entry with inverted margins 9 cm x 5 cm going in on front of left chest on the mannary area. Burning and blackening was present on the margins. The main wound was continued in furrours indicating the track of pellets in the skin which were four in number.
2. Wound of exit with everted margins 1 1/4 cm x 1 cm on front of right chest 6 cm above the right nipple.
3 Wound of exit with everted margins 3/4 cm x 3/4 cm x 2 cm above to injury No,2.
4. Wound of entry with inverted margins seven in number 1 x 3/4 cm each going in on the right side of umbilicus in an area of 10 c.m. x 4 cm. Burning and blackening were present on the margins.
5. Wound of entry going in with inverted margins 1 1/2 cm x 1 cm on the anterior-lateral aspect of right abdomen 1 cm above the anterior, superior iliac spine. Burning and blackening were present.
6. Wound of'entry with inverted margins 1 cm x 3/4 cm going in on the anterior-lateral aspect of right thigh 3 cm below the anterior superior iliac spine. Burning and blackening were present.
7. Numbrous small punctured wounds of entry with inverted margins in an area of 22 c.m. x 17 cm on the lateral side of left buttock and upper part of left thigh. Little burning and blackening were present.
8. Wounds of entry with inverted margins four in number 3/4 c.m. x 3/4 c.m going in on the antereio-medial aspect of left leg middle part in an area of 7 cm x 3 cm. Burning and blackening were present.
9. Wounds of exit with everted margins four in number 1 cm x 3/4 cm each on the posterior aspect of left leg middle part in an area of 11 cm x 5 cm.
8. The ocular account was furnished by Sultan Ali complainant P.W.-1. He supported the version of the F.I.R. And narrated the motive for the occurrence. He claimed that he was injured in the same occurrence and was medically examined by P.W.-9. Muhammad Inayat P.W.-2 was also injured in the same occurrence and he was examined as eye-witness of the same occurrence. He supported the prosecution story as narrated by Sultan Ali complainant P.W.-1. Muhammad Sharif P.W.-3 was also injured in the same occurrence and was medically examined by Allah Bakhsh Nathoka P.W.-9.
He narrated the prosecution story as an eye-witness of the occurrence. Muhammad Hanif H.C.
P:W.-4 is the author of the F.I.R. Exh.PA/1. He kept the sealed parcels of blood-stained earth in Malkhana of the police station and.Handed over the same to Muhammad Riaz, FC for onward transmission to the office of Chemical Examiner, Lahore. Muhammad Riaz FC P.W.-5 received the sealed parcels of blood-stained earth and deposited the same in the office of Chemical Examiner, .Lahore intact. Muhammad Hayat P.W.-6 identified the dead bodies of Manzoor and Ahmad deceased. Muhammad Zaman FC, P.W.-7 attested the memo. Exh.PG, PH, PJ, PK. His statement under section 161 Cr.P.C. Was also recorded by the Investigating Officer Muhammad Saleem, Draftsman P.W.-8 prepared the site plans Exh. PI and PIll.
9. Prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.PY and that of Serologist Exh. PZ.
10. Statements of appellants were recorded under section 342 Cr.P.C. They denied the allegations and claimed innocence and false involvement. In reply to the question "why this case against you and why the P.Ws. Have deposed against you", they replied as under:- "The P.Ws. Have made false statements due to enmity, We all the accused were roped in this case so as to pressurise us to withdraw the said Hudood case."
They did not opt to appear their own witnesses under section 340 (2) Cr.P.C. Or to produce defence witnesses.
11. Trial culminated into conviction and sentence as stated above.
' Hence this appeal. Complainant has filed Criminal Revision No, 112 of 1999 for enhancement of compensation. Trial Court has also sent a Murder Reference for confirmation of death sentence. As all the matters are outcome of same case, therefore, are being decided together. Criminal Appeal No,87 of 1999 filed against acquitted co-accused already stood dismissed on 9-10-1999 by a Division Bench of this Court.
12. Learned counsel' for the appellants has raised the following contentions in support of his appeal:--
(i) F.I.R. Is not prompt as the occurrence took place at 5 P.M. And report was got recorded at 7 p.m., even that was not at the police station and presumption is that case was registered after deliberations and consultations;
(ii) Those recovery memos. Prepared by the Investigating Officer did not bear the names of the accused.
(iii) That the medical evidence does not fully support the prosecution case as the stand of Sultan Ali complainant is that he was injured by fire-arm injury while as per statement of the Doctor he received blunt weapon injury;
(iv) That the injury on the complainant, if doubtful and fabricated then the other P.Ws., who have supported the complainant cannot be believed as they are not truthful witnesses and that the injuries on the eye-witnesses do not mean that they speak whole truth. Reliance has been placed on "Naseer Ahmad and 5 others v. The State" (1984 M LD 1461);
(v) That there is no corroboration to the oral testimony of the witnesses;
(vi) That admittedly from the motive of the occurrence it was a case of family honour and the death sentence awarded by the learned trial Court is not sustainable under the law. Reliance has been placed on "Karam Din and another v. Lal Khan and others" (1987 SCM R 1763), "Boota v. The State" (PLD 1981 SC 196)," "Allah Yar v. The State" (PLD 1997 SC 273), and "Nazir Ahmad v. Muhammad Din" (1981 SCM R 415).
13. Conversely, the appeal has been opposed by the learned counsel for the complainant and State.
14. Heard, Record perused.
15. The occurrence took place at 4.00 p.m. On 10-1-1997 and statement Exh. PA of Sultan Ali P.W.-1 was recorded by Gul Hameed S.-I. P.W.-11 at 7:30 P.M. At Dodha Petroleum Service thereafter formal F.I.R. Was registered at the Police Station same night and the appellants are nominated accused in the F.I.R. With specific role. According to Gul Hameed S.-I. P.W.-11 he prepared injury statement of complainant and thereafter he himself arrived at the place of occurrence at 8-30 P.M. And undertook the investigation and prepared the site-plan and recovery memos. In which Sultan Ali P.W.-1, Muhammad Inayat, P.W.-2 and Muhammad Sharif, P.W.-3 have been specifically indicated which shows that the P. Ws. Were present at the spot also on the arrival of Investigating Officer, Therefore, we do not find that F.I.R. Was delayed or the case was registered with deliberations and consultations. The names of the eye-witnesses were duly mentioned in statement Ex.P.A. Of the complainant. They were available at the spot and both Muhammad Inayat P.W.-2 and Muhammad Sharif P.W.-3 associated themselves in the investigation. Both of them were injured and were medically examined through the police and injury of Muhammad Inayat as described by the Doctor was "A crushed wound 4 cm x 4 cm on the thumb of left hand cutting it at its base. Muscles were cut with blackening around the wound. There was a swelling 5 cm x 5 cm on that surface of left hand just below the wound."
' In the opinion of the doctor the injury was the result of fire-arm. Likewise injuries on Muhammad Sharif P.W.-3 were result of fire-arm and nature of injuries is such that those cannot be self-inflicted or caused by friendly hands, therefore, their presence at the spot cannot be doubted. They are neutral, independent, truthful witnesses and their evidence is confidence-inspiring. The argument of learned counsel that two witnesses namely Ahmad, owner of the house, and Abdul Ghafoor shopkeeper where the occurrence took place were not examined is not fatal to the prosecution case as it is tendency in our society that neutral persons avoid to become witnesses due to fear of life. Furthermore, it is quality and not the quantity of evidence required to prove the case by the prosecution. When prosecution case has been established by the injured witnesses then there was no need to examine other witnesses who had seen the occurrence. The presence of the complainant Sultan Ali P.W.-1, Muhammad Inayat P.W.-2 and Muhammad Sharif, P.W.-3 at the spot has been sufficiently explained. There is no material discrepancies in their statements pointed out by the learned counsel for the appellants to discard their testimony. Mere mentioning of 'fire-arm' injury on Sultan Ali instead of 'blunt weapon' will not show that they had not witnessed the occurrence.
16. The motive for the occurrence as alleged by the prosecution has not only been established but is also admitted by the defence in the statements of the appellants under section 342, Cr.P.C.
Wherein it has been stated by the accused that due to case got registered by the accused party against Ahmad deceased and his two sons Ashraf and Afzal, they have been falsely implicated.
The defence plea that they have been implicated falsely due to this case is not believable. The complainant has no reason to substitute the appellants by letting off the real culprits.
' The ocular account furnished by the eye-witnesses has been fully Corroborated by the motive and has been further corroborated by the medical evidence as injury No,1, which proved fatal on Ahmad deceased was specifically attributed to Bashir Ahmad appellant. Similarly, injury No,1 at Manzoor Ahmad deceased was specifically attributed to Manak son of Muhammad Khan accused.
Injury attributed to Manzoor accused caused to Ahmad is also available on his body.
' The argument of the learned counsel for the appellant that it was a case of family honour which is a mitigating circumstance for lesser punishment has also not impressed us as Mst. Ameeran Bibi, the victim of case under Hadood Ordinance was niece of Manak a cousin of Bashir Ahmad and Manzoor Ahmad. They had no direct relations with the victim and the occurrence also took place long before the present occurrence and ended into conviction of the accused. The latest trend of the superior Courts of the country is that nobody can be given a licence for killing on the pretext of family honour. Reliance can be placed on "Muhammad Akram Khan v. The State" (PLD 2001 SC 96) wherein it has been held as under:-- "Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take life of anybody in the name of "Ghariat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution".
' In the case of "Muhammad Saleem v. The State" (PLD 2002 SC 558) it has been held as under:-- "On the overall assessm ent of the evidence in the light of the precedent case-law, legal position appears to be that where prosecution has established the guilt of the accused by satisfactory and reliable evidence on the touchstone of Tazkiyae-Shahood, normal penalty for Qatl-i-Amd is Qisas i,e, penalty of death in which the Court is left with no option. However, if the witnesses do not qualify the standard of competent witnesses, as prescribed by Islamic Injunctions, .Conviction can be recorded under clause (b) of section 302, P.P.C. By way of Tazir i,e, death or imprisonment for life, depending on the facts and circumstances of each case. If the prosecution case is proved to its hilt, normal penalty of death must be awarded but in case with extenuating circumstances, Court is required to judiciously consider the award of life imprisonment, which is also a sentence for Qatl- i-Amd recognized by law as Tazir. The facts of every case may vary, therefore, no hard and fast rule of universal application can be laid down but suffice it to say where the accused is able to demonstrate that he was deprived of his capability of self-control or that he was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to serious provocation, Court may be justified in mitigation of sentence. No doubt, wider discretion is conferred upon the Court, under all circumstances it must be exercised in a judicious manner and not at the whims of the Court in an arbitrary manner."
17. The case-law referred to by the learned counsel for the appellants is not relevant to the facts and circumstances of this case. We find that these were pre-planned and calculated murders in revenge, so, we do not consider it as mitigating circumstance to reduce the sentence. Resultantly, after re-appraisal of evidence, we find that Bashir Ahmad and Manak son of Muhammad Khan appellants have been attributed fatal injuries to both the deceased, therefore, their appeals are dismissed. Their conviction and sentence is maintained. The death sentence recorded by the trial Court to their extent is confirmed.
17a. As far as case of Manzoor Ahmad is concerned, it is distinguishable from his co-accused. He has been attributed injury on the thigh of Umar deceased which is on non-vital part of the body and according to the doctor, injury No,3 individually was not sufficient to cause death, therefore, while maintaining his conviction we reduce the sentence to life imprisonment. Benefit of section 382-B, Cr.P.C. Will also be available to him. Murder Reference against Bashir Ahmad son of Allah Ditta and Manak son of Muhammad Khan is answered in affirmative while to the extent of Manzoor son of Allah Ditta is answered in negative.
18. Criminal revision for enhancement of fine and sentence under sections 324, 148, 149, P.P.C. Is also dismissed. #EndJudgment