' TALAAT QAYYUM QURESHI, J.---On the request of Director Technical Education N.-W.F.P. Peshawar, land measuring 33 Kanals, 9 Marlas comprising Khasra Nos.107, 108 and 109 situated in revenue estate of Bag-e-Aram Tehsil and District Mardan was acquired for the construction of Government Commerce College Mardan. Notification under section 4 of the Land Acquisition Act was issued for acquisition of land measuring 60 Kanals comprising Khasra Nos.106, 107, 108 and 109 on 22-2-1982.
Subsequently the acquired area was reduced to 33 Kanals and corrigendum to this effect was issued on 15-1-1984. It is worth mentioning that land comprising Khasra No,106 was not included in the corrigendum. Since the land was urgently required. Therefore, the Additional Commissioner Mardan issued notificatin under section 17(1) of the Land Acquisition Act on 19-10-1983. Award No,35/4 was issued on 15-5-1984. The Land Acquisition Collector fixed Rs,1280/11 per Marla as compensation. 15% compulsory acquisition charges and interest at the simple rate of 6% was also awarded.
2. Mst. Taj Begum, the landowner was not satisfied with the compensation of her land. She filed Reference No,14/4 on 20-7-1984 under section 18 of the Land Acquisition Act, 1894 before the Collector which was referred to learned Land Acquisition Judge Mardan for determination. The learned Referee Judge vide judgment and decree dated 18-9-1994 enhanced the compensation from Rs,1280/11 to Rs,2,000 per Marla. The appellants being aggrieved with the judgment and decree whereby the amount of compensation was enhanced have filed the appeal in hand.
3. Mr. Muhammad -Waris Khan, learned Additional Advocate-General representing the appellants argued that the learned Referee Judge while deciding the case was influenced by judgment/decree passed in another case i,e, Objection Petition No,47/4 of 1994 decided on 20-4- 1994, whereby compensation at the rate of Rs,2,000 was fixed. Basing the impugned judgment on the above mentioned case, the learned Referee Judge also fixed Rs,2,000 per Marla and failed to take into consideration other factors and evidence available on record.
4. On the other hand Mr. Qamar Zaman, the learned counsel representing the respondent argued that the learned Court below had taken into consideration the fact that the acquired land was situated at Mardan-Nisatta Road and had the future potential values. The amount of compensation fixed in the same revenue estate in Case No,47/4 was also taken judicial note of, therefore, the amount of compensation is still on lower side was fixed.
5. It was also argued that the appeal was not maintainable because the same had been filed against a dead person.
6. We have heard the learned counsel for the parties and perused to record.
7. The argument of the learned Additional Advocate-General that the learned Referee Judge has based his findings only on another case i,e, Objection Petition No,47/4 of 1994 and has not considered any other factor while enhancing compensation has no force. The learned Referee Court has in fact taken into consideration that the acquired land is situated at main Mardan- Nisatta Road, therefore, had potential value. Another factor which was taken judicial note of was judgment passed in Objection Petition No,47/4 decided on 20-4-1994, whereby compensation at the rate of Rs,20,000 was fixed for the land acquired which was situated in the same revenue estate i,e, Bagh-e-Aram Mardan. There is no doubt while determining the amount of compensation, the Court has to advert to the evidence available on record by the parties and yardstick of compensation of another acquisition case could not be applied to a case without examining all the attending circumstances and the analogies applicable to the acquisition in question.
8. Keeping in view the above principle, we proceed to see as to whether there was any evidence available on record to show that the acquired land was situated at Mardan-Nisatta Road or not?.
Miraj Muhammad (P.W.3) General Attorney of the landowner stated that the acquired land was situated at Mardan-Nisatta Road and the entire frontpage of 33 Kanals, 9 Marlas was acquired and the land situated at the back was left to the owner. The price at the relevant time was between Rs,12,000 and 13,000 per Marla. The said land was in the middle of Abadi and was commercial in nature. The same was situated within the Municipal limits of Mardan. This witness was not cross- examined by the other side with regard to the situation of land and even the price stated. It is by now established law that if a witness is not cross-examined on a fact and his statement went unrebutted and unquestioned, such a statement as a matter of law and principle could be taken to be correct. Reliance in this regard is placed on Haji Din Muhammad through legal heirs v. Mst.
Hajira Bibi and others (PLD 2002 Peshawar 21). What to speak of rebuttal, Said Muhammad Ali (R.W.1) Principal Government Commerce College Mardan, who appeared from appellant's side, in his cross-examination admitted:-- "The acquired land is situated on Nisatta-Mardan Road, Fazl-eHay College Mardan is situated 3/4 Kilometres from the present Institution towards Nisatta side."
' The above evidence which is available on record was considered by the learned Referee Judge as one of the factors for determining compensation. So it cannot be held that the learned Referee Judge had not appreciated the evidence available on record and had only based his findings on the judgment passed in another case. At this stage another question which needs determination is as to whether in addition to the evidence available on record, could a Referee Judge take into consideration the amount of compensation fixed for the land situated in the same reveue estate or not. In number of judgments the august Supreme Court of Pakistan has laid down criteria for determining fair compensation. In Nisar Ahmad and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25) the august Supreme Court of Pakistan laid down many principles. Para
(xiii) of the said principles is quoted below for convenience:-- "(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula for compensation has been adopted, should be taken into consideration".
9. The perusal of (para xiii) of the above mentioned criteria laid down by the august Supreme Court of Pakistan shows that the Referee Court can while determining the compensation take into consideration the value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted. If the learned trial Court has taken into consideration the judgment passed in Objection Petition No,47/4 of 1994, it has not committed any illegality because, as mentioned above, in addition to taking into judicial notice, the above- mentioned judgment, the evidence available on record was also appreciated.
10. While dealing with the question of fixation of compensation in Nisar Ahmad Khan and others v.
Land Acquisition Collector Swabi and others (PLD 2002 SC 25), Province of Punjab through Collector Attock v. Engr. Jamil Ahmad Malik and 'others (2000 SCMR 870) and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) the august Supreme Court of Pakistan laid down the following criteria:- "(i) The data from which the market value of the land can be estimated is given in rule 13 of the North-West Frontier Province Circular No,54 issued presumably under section 55 of the Act.
(ii) The method to work out the market value in the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land
(iii) Subsection 0) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reasons of severing such land from his other land, acquisition injurionsly affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(iv) The best method of determination of the market price of the plots of land under the acqaisition is to rely on instances of sale of it near about the date of notification under section 4(1) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the issuances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sale cover the potential value.
(v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining that market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits.
(vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality has to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners.
(viii)In determining the question of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist.
(ix) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the producing of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The 'previous sales' of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out that the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of this land as a result of compulsory acquisition under the Act.
(xiii)The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration: (xiv)The phrase 'market value of the land' as used in section 23(1) of the Act means 'value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration."
' The Supreme Court of India has also laid down criteria or factors taken note of as plus and minus factors in case "Chimanal Hargovinddas v. Special Land Acquisition Officer, Poons and another"
(AIR 1988 SC 1652) in the following manner:-- "Plus factors:
(1) Smallness of size.
(2) Proximity to a road.
(3) Frontage on a road.
(4) Nearness to developed area.
(5) Regular shape.
(6) Level vis-a-vis land under acquisition.
(7) Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus factors:
(1) Largeness of area.
(2) Situation in the interior at a distance from the road.
(3) Narrow strip of land with very small frontage of compared to depth:
(4) Lower level requiring the depressed portion to be filled up.
(5) Remoteness from developed locality.
(6) Some special disadvantageous factor which would deter a purchaser."
11. There was increase of Rs,720 per Marla, the same was justified because firstly, the entire frontage of 33 Kanals, 9 Marlas was acquired leaving the back portions of the Landowners' property valueless. Secondly, the acquired land is situated at main Mardan-Nisatta Road and has great potential value for commercial purposes. Thirdly; Notification under section 4 was issued on 22-2- 1982, corrigendum on 15-1-1984 and Award was announced on 15-5-1984. Between 22-2-1982 to 15- 5-1984 there was tremendous increase of price of land in the area. Mutations Exh.P.W.3/7 and Exh.P.W.3/8 which were placed on file without any objection from the other side indicate the said increase. Fourthly, as per observations passed by the august Supreme Court of Pakistan in a very recent judgment Nisar Ahmad Khan and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25) the landowners are entitled to maximum possible benefit for the reason that such lands are acquired not by way of mutual negotiations but under. The State powers conferred on the public functionaries, Courts are, therefore, always liberal and generous in fixing the quantum of compensation based on different consideration. Fifthly, the acquired land is adjacent to Abadi of village as is clear from the statement of Attorney of the landowners (P.W.3) which has not been rebutted. Sixthly, land situated in the same revenue estate (Bagh-e-Aram) was acquired for construction of Training Institute for Disable Persons vide Award No,33/4 dated 7-5-1984. In the said case the Collector had fixed Rs,1345 per Maria but the learned Referee Court has enhanced the same to Rs,2,000, on objection petition No,47/4 filed by the landowners. When the compensation of land situated in the sane revenue estate having same kind had already been determined at the rate of Rs,2,000 per Marla, we fail to understand why the landowners having the same kind of land in the same revenue estate whose land was more valuable because entire frontage touching the main Mardan-Nisatta Road was acquired, should not be treated similarly.
12. Another aspect of the case is that the appeal in hand has been filed against dead person. Mst.
Taj Begum died during the objection petition filed by her. Her L.Rs, were impleaded by the learned Referee Court vide order dated 19-2-1994. In paragraph 2 of the impugned judgment and decree the learned Referee Judge has clearly mentioned that Mst. Taj Begum was dead and represented by her L.Rs, The perusal of the decree-sheet also shows that decree was passed in favor of L.Rs, Mst.
Taj Begum but the appeal in hand, as mentioned above, was filed against Mst. Taj Begum who had died way beck in the year 1994. The appeal in hand was filed on 20-12-1994, whereas an application (C.M. No,65 of 1998) under Order 22 read with Rule 4 and 11 of C.P.C. For bringing on record the legal heirs of deceased respondent was filed on 26-3-1998. The Additional Registrar of this Court vide order dated 11-5-1998 directed that the L.Rs, of deceased respondent be served. No doubt the appeal which had been tiled against dead person (Mst. Taj Begum) could be amended by bringing her legal representatives on record, but the appellants were negligent in bringing the L.Rs, of deceased respondent on record within the period of limitation for filing appeal. They did not bother to submit any application for condonation of delay and even did not care to give any satisfactory explanation for such omission. There is delay of three years, three months and six days, in bringing the legal heirs of deceased/respondent on record. The appeal would be deemed to have been filed on the day when the said L.Rs, were added. The legal heirs of deceased- respondent were impleaded long after expiration of period of limitation, therefore, the appeal in hand deserves dismissal on the ground of limitation alone. If any judgment in support of the above proposition is required, reliance can safely be placed on the Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others (PLD 1971 SC 82), wherein it was held:-- "It is not disputed that an appeal against a dead party can be amended by the brining his legal representatives on the record. Except Sind and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point. The contention of the respondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives or filing of the appeal after 1208 days and the said delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellants have not given any explanation for condoning the delay of 1208 days. Their only contention is that on the 19th October 1968, the Supreme Court sent a notice to the Attorney that Muhammad Haider All Khan Panni respondent died on the 3rd June 1968 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant, the mistake on their part was bona fide and the delay in correcting the cause title may be condoned. After hearing the learned counsel for the parties, I am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 'days. It is accordingly dismissed with costs."
13. Likewise in another case reported as Khushi Muhammad v. Rehmat Ali (PLD 1988 Lahore 418) dead person and the L.Rs, of the said person were not brought on record within the period of Limitation, the appeal was dismissed being barred by time. It was held:-- "Since, the instant case, legal representatives of the respondent were impleaded long after the expiration of the period of limitation, appeal before me deserves to be dismissed on the ground of limitation. It is accordingly, dismissed in limine."
14. The net result of the above discussion is that the appeal in hand is dismissed with no order as to costs.
Appeal dismissed.
2001 MLD 1875 [Lahore] Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ BASHIR AHMAD and 4 others---Appellants versus THE STATE---Respondent Criminal Appeal No,1008 and Murder Reference No,444 of 1998, heard en 27th May, 2003.
Penal Code (XLV of 1860)--- ----Ss.302(b)/324/148/149---Appreciation of evidence---F.I.R. Was promptly lodged and accused were nominated in the F.I.R. With specific role and it could not be said that the case against the accused persons was registered with deliberation and consultation---Presence of both the eye- witnesses at the spot who were injured and were medically examined, could not be doubted--- Doctor who examined eye-witnesses had opined that injuries on persons of said witnesses were result of firearm and that said injuries could not be self-inflicted or caused by friendly hands--- Even if some witnesses were not examined by prosecution, such non-examination was not fatal to the prosecution case, because it was the quality and not quantity of evidence which was required to prove the case of the prosecution---When prosecution case had been established by the injured witnesses, then there was no need to examine other witnesses---Presence of complainant and prosecution witnesses at the spot had been sufficiently explained and no material discrepancies appeared in their statements to discard their testimony---Mere mentioning of 'fire- arm' injury on the deceased instead of "blunt weapon" would not show that that the prosecution witnesses had not witnessed the occurrence---Motive of occurrence as alleged by the prosecution had not only been established, but was also admitted by the defence---Ocular account furnished by eye-witnesses had fully been corroborated by motive and by the medical evidence---Accused could not establish case of family honour which could be a mitigating circumstances for lesser punishment---Even otherwise nobody could be given a licence for killing on the pretext of family honour---Murders committed by accused persons being pre-planned and motivated to avenge, no circumstance existed to reduce the sentence---Conviction and sentence awarded to accused by Trial Court were maintained and senence recorded by trial Court to their extent was confirmed- --One of the co-accused was attributed injury on non-vital part of the body of the deceased which according to the doctor was not sufficient to cause death---Case of said accused being distinguishable, while maintaining his conviction, his death sentence was reduced to imprisonment for life accordingly. [pp. 1882, 1883, 1884, 1885] A, B, C, D & E Naseer Ahmad and 5 other v. The State 1984 MLD 1461; Karam Din and another v. Lal Khan and others 1987 SCMR 1763; Boota v. The State PLD 1981 SC 196; Allah Yar v. The State PLD 1997 SC 273; Nazir Ahmad v. Muhammad Din 1981 SCMR 415; Muhammad Akram Khan v. The State PLD 2001 SC 96 and Muhammad Saleem v. The State PLD 2002 SC 558 ref. Syed Zahid Hussain Bokhari for Appellants.
Malik Muhammad Akram Khan Awan for the Complainant.
Masood Sadiq Mirza for the State.
Dates of hearing: 21st, 26th, and 27th May, 2003.
' 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 MLD 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 SCMR 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 SCMR 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.