TANVIR BASHIR ANSARI, J.----Four persons namely Muhammad Ismail, Ejaz Ahmad, Sajjad Ahmad alias Shehzad and Muhammad Siddique were tried under sections 302/109, P.P.C. By the learned Additional Sessions Judge, Gujjarkhan for the murders of Muhammad Idrees and Mehrban Hussain.
The learned trial Judge vide his judgment, dated 16-7-1997 acquitted Muhammad Siddique, Ejaz Ahmad and Sajjad Ahmad alias Shehzad of the charge whereas the appellant Muhammad Ismail was convicted under section 302, P.P.C. And was sentenced to death on two counts. He was also ordered to pay compensation of Rs.50,000 to the legal heirs of each deceased and in default to undergo 6 months' simple imprisonment.
2. The convict/appellant has filed the instant appeal against his conviction and sentence whereas the learned trial Judge has sent a reference to- this Court for the confirmation of death sentence of the appellant. We propose to dispose of both these matters by this judgment.
3. The prosecution case in brief as stated by Abdul Hafeez complainant P.W.4 is that he being resident of Mouzia Ahdi was a Zamindar and. His sister Mst. Hameeda Begum was married with Muhammad Ismail (accused). Four children were born from this wedlock. She had come to the complainant's house out of family differences. She had filed a suit for dissolution of marriage against her husband Muhammad Ismail which was pending before the Court. Muhammad Ismail was annoyed by this suit. About some time back, Muhammad Ismail had fired upon the complainant with gun and, a case under section 324, P.P.C. Was pending before the Court. On the fateful day, he alongwith Mehrban Hussain (deceased) son of Shah Muhammad being his maternal cousin was going towards mosque to offer Jumma prayer at about 1-00 p.m. When Muhammad Ismail armed with 12 bore gun emerged from the front and raised Lalkara that he would avenge the taking of Mst. Hameeda from his house and having got instituted a suit for dissolution of marriage and fired a shot aiming at Mehrban Hussain which hit him on his right flank, Mehrban fell down on the ground. Muhammad Ismail then raised Lalkara that he would not leave Muhammad Idress (deceased) alive. Muhammad Shabbir P.W.5, Muhammad Bashir P.W.6 and Muhammad Rafique (given up P. W.) were coming at a distance of some paces and witnessing the occurrence, also raised alarm while Muhammad Ismail ran towards the house of the complainant.
The complainant and the P.Ws. Also followed Muhammad Ismail out of apprehension of Qatal of Muhammad Idrees by him. Within the view of the complainant, Muhammad Ismail entered his house through door and compound and fired a gunshot aiming at Mohammad Idrees landing on his abdomen, Idrees fell down on the ground in injured condition and succumbed to the injuries at the spot. Muhammad Ismail had committed Qatl-i-Amd of Muhammad Idrees and attempted to commit Qatl-i-Amd of Meharban Hussain in concert with and at the advice of his father Muhammad Siddique and his brothers Ejaz Ahmad and Shehzad Ahmad.
4. Khan Muhammad, S.-I. P.W.13 recorded the statement Exh.PB of the complainant and sent the same for registration of the case where formal F.I.R. Exh.PB/2 was recorded by Zahoor Ahmad, A.S.-I.
Khan Muhammad, S.-I. Proceeded to the spot. He prepared injuries statement of the dead body of Muhammad Idrees Exh.PK and inquest report Exh. PL. He handed over the dead body of Idrees to Liaquat Ali, LHC P.W.9 for autopsy. Mehrban Hussain was found in an injured condition at the spot.
He prepared his injuries statement Exh. P.M. And despatched him to the hospital under the escort of Muhammad Younis, Constable P. W.7. He inspected the spot and took down the first inspection notes. He collected blood--stained earth from the place where the dead body of Muhammad Idrees was lying in the house of Muhammad Rafique P. W and sealed it into a parcel vide memo.
Exh.P.C. He also collected two empties P.1 and P.2 from the spot and took the same into possession vide memo. Exh.P.D. Then he reached the street being the spot where Mehrban Hussain was injured.
He collected blood-stained earth from that spot and took into possession vide memo. Exh.P.E. All the recovery memos. Were attested by the recovery witnesses. On the same day, he received the information about the death of Mehrban Hussain deceased and proceeded to the hospital and prepared injuries statement of the dead body of Mehrban Hussain Exh.PO and inquest report of the dead body Exh.PN. He handed over the dead body to Liaquat Ali, L.H.C. P.W.9 for the purposes of post--mortem examination. Liaquat Ali, L.H.C., produced last-worn clothes of Muhammad Idrees deceased comprising of shirt P.6, Shalwar P.7, sleeper P.8/1-2, Bunian P.9 and a sealed parcel P.12 containing pellets as well as last-worn clothes of Mehrban Hussain deceased being shirt P.10, Shalwar P.11 alongwith a sealed parcel containing pellets P.13 which he took into possession vide memo. Exh.PH. On 31-3-1996, he arrested Ejaz Ahmad from the house of Ashiq Hussain and Muhammad Siddique accused from Mouza Ahdi. He also arrested Muhammad Ismail accused on the same day from outside of his house alongwith .12 bore double-barrel gun P.1/1 and five live cartridges P.2/1-5 and licence of gun P.3 which were taken ino possession vide memo. Exh.PA attested by the P.Ws. He handed over the case property to the Moharrir. Qamar-ud-Din Draftsman P.W.8 prepared the site plan Exh.PG, Exh.PG/1 as well as Exh.PF and Exh.PF/1. He arrested Sajjad Ahmad accused. He arranged for despatch of sealed parcels to the relevant offices/laboratories.
The site plan of place of recovery of P.1/1 was also prepared by him being Exh.PP. After completion of the investigation, the challan was submitted in the Court.
5. Formal charge under sections 302/ 109, P.P.C. Was framed against the accused persons. They pleaded not guilty and claimed trial.
6. The prosecution examined as many as fourteen (14) witnesses to prove its case, Mazhar Hussain, A.S.-I. P.W.1, Imdad Hussain, Constable P.W.2, Abdul Rehman's P.W.3, Abdul Hafeez complainant P.W.4, Muhammad Shabbir P.W.5, Muhammad Bashir P.W.6, Muhammad Younis P.W.7, Qamar-ud- Din Draftsman P.W.8, Liaquat Ali LHC P.W.9, Mehboob Hussain P.W.10, Dr. Asif Mehmood Malik P.W.11, Muhammad Ashraf, A.S.-I. P.W.12, Khan Muhammad, S.-I. P.W.13 and Mazhar Hussain, S.-I. P.W.14.
Learned D. D. A. Gave up Muhammad Rafique, Shehzad Mehmood and Fazal Rehman's P.Ws. And closed the prosecution evidence after tendering reports of Chemical Examiner Exh.PL/1, Exh.PM/1 and reports of Serologist Exh.PL/II, Exh.PM/II as well as the report of Forensic Science Laboratory Exh.PN/1.
7. Dr. Asif Mehmood Malik P.W.11 conducted the autopsy on the dead body of Muhammad Idrees and found two injuries on his person. In his opinion, death was caused by haemorrhage and shock due to internal abdominal bleeding caused by injury No.1 which was sufficient to cause death in the ordinary course of nature. Injuries were caused by fire-arm and were ante-mortem. The probable time between injuries and death was about within one hour and between death and post-mortem was from 12 to 36 hours. PM report is Exh.PI and its diagram is Exh. PI/1.
On the same day, he conducted the autopsy of Mehrban Hussain and found four injuries on his person. In his opinion, the death was caused by internal bleeding due to injury No. 1 leading to shock and hammorrhage which was irreversible. The injuries were ante-mortem. The pellets were discovered from the body and handed over to the police after sealing the same. The duration between injuries and death was probable within 1 to 2 hours and between death and post-mortem examination was about one and a half day. The P.M. Report is Exh. PG and its pictorial diagram is Exh. PG/1.
8. The accused were examined under section 342, Cr.P.C. They denied the prosecution case and controvted the same. In an answer to the question as to why the case against them, Muhammad Ismail appellant stated as under:-- "After my marriage with Mst. Hameeda Begum, I was living in a separate house due to my weak financial condition. Qari Muhammad Hanif brother of Mst. Hameeda Begum and Abdul Hafeez complainant wanted me to divorce my were Mst. Hameeda Begum, I did not agree to this, upon which, I was involved in false and trumped up criminal cases by the complainant, and his family in collusion with the local police. They also got case of dissolution of marriage and a case of maintenance filed against me in the Court of Family Judge, Gujjarkhan. I also filed a case for restitution; of conjugal rights. Muhammad Bashir P.W. Of this case appeared as a witness against me in family cases and was also cited as a witness in criminal cases falsely registered against me.
On the day of occurrence, fight took place between Mehrban deceased and Idrees deceased in the house of Muhammad Rafique father of Idrees deceased: During the fight, Mehrban deceased fired at Muhammad Idrees deceased, as a result of which he fell down and died in the house of his father Muhammad Rafique, I whereupon Muhammad Rafique father of Muhammad Idrees deceased in retaliation fired at Mehrban Hussain who after receiving the injury ran out from the house of Muhammad Rafique P.W. And fell in the street outside the house. The witnesses are false and inimically disposed towards me in order to save Muhammad. Rafique P.W., they falsely got me involved in this case due to enmity. The witnesses are inimical and they were not present at the time and the place of occurrence and that is why no independent witnesses have been cited. "
The accused opted not to appear to depose under section 340(2), Cr.P.C. Disproof of the allegations levelled against them in the prosecution evidence. They, however, opted to lead defence evidence. In defence evidence, they produced Muhammad Saeed, Havaldar of Army as D.W.1 and after tendering the copies of order and F.I.Rs. Closed their defence evidence.
9. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
10. The learned counsel for the appellant after analysing the prosecution evidence has criticised the same to be discrepant inimical and untrustworthy. He made reference to the statement of Muhammad Shabbir P.W.5 and stated that this witness is the real brother of Muhammad Siddiq accused who is the father of Muhammad Ismail, Ijaz Ahmed and Shahzad Ahmed co-accused. He referred to the statement in cross-examination of this witness which is as under:--- "It is correct that there was litigation over the question of partition of property between Siddiq accused and myself and others "
11. Referring to the statement of P.W.6 Muhammad Bashir, it was contended that even this witness was inimical towards the appellant as he Muhammad Bashir was a witness on behalf of Mst.
Hameeda Begum in the suit for dissolution of marriage. To the same effect reference was made to the following statement of P.W.6 in cross--examination:-- "It is correct that I appeared in the Union Council Narali relating to the matter of divorce on behalf of Mst. Hameeda Begum. "
12. It has been next contended on behalf of the appellant that the motive alleged in the F.I.R. And carried forward during the course of prosecution evidence was a very weak kind, of motive and that the prosecution could not succeed upon such a flimsy motive.
13. Sardar Latif Khan Khosa, Advocate, vehemently challenged the venue where Muhammad Idrees was alleged to have been murdered. He forcefully contended that the complainant of the F.I.R. Is Abdul Hafeez son of Muhammad Rafique. Regarding the murderous attack upon Muhammad Idrees he referred to the following extract from the F. I. R.
14. This version according to the learned counsel is adopted at the trial by the complainant P.W.4, wherein, in the murder of Muhammad Idrees has been stated to have taken place in his (Abdul Hafeez's) house. He then referred to the statement of P.W.5 who described the house where Muhammad Idrees was murdered in the Havely of Muhammad Rafique. The learned counsel also pointed out that Muhammad Rafique and Abdul Hafeez lived in separate houses which were at a distance of almost 100 yards. The learned counsel for the appellant thus concluded that such discrepant oral evidence could not be believed.
15. It was further submitted that two of the most important witnesses namely Muhammad Rafique and Mst. Hameeda Begum were not produced by the prosecution and withholding of such important witnesses shall be fatal to the case of the prosecution. In support of this contention, reliance was placed on the dictum laid down in Muhammad Younas v. The State (1992 SCMR 1592) and Muhammad Nazir v. Tariq and another (1992 SCMR 983). The counsel for the appellant, alternatively argued that in the present case even if the prosecution version and the motive is believed, it is certainly a case of loss of self-control on account of provocation and that these would amount to sufficient extenuating circumstances for reduction in sentence. The learned counsel places reliance upon Muhammad Sharif and another v. The State (PLD 1995 Lahore 593), Muhammad Iqbal v. The State 1995 PCr.LJ 1587 and Manzoor Ahmed alias Manzoor Hussain v. The State (1996 PCr.LJ 216).
16. On the other hand, Malik Rab Nawaz Noon, Advocate for the complainant refuted all the contentions-raised on behalf of the appellant and maintained that the quality of the prosecution evidence was such that the learned trial Court was justified in believing the same and awarding maximum sentence to the appellant. He referred to the eye-witness account which wholly tallied with the medical evidence. The evidence of motive was not only natural and proved by the prosecution evidence, it was also obliquely admitted by the appellant in his statement under section 342, Cr.P.C. According to the learned counsel, there was strong evidence of recovery. He referred to the evidence on the record as also to Exh.P.F. To explain the ambiguity which was, according to him attempted to be created by the learned counsel for the appellant in respect of the venue of the occurrence. He made reference to the rule laid down in Sakhawat v. The State 2001 SCMR 244 and Muhammad Sharif v. Muhammad Javed alias Jeda Tedi (PLD 1976 SC 452) to contend that if the guilt of an accused is proved beyond all shadow of doubt penalty of death is the normal sentence.
17. We have heard the learned counsel for the parties and extensively perused the record.
18. The occurrence took place at 1-00 p.m. On 29-3-1996, F.I.R. No.31 was registered at 3-00 p.m. On the same day under sections 302, 324, 109, P.P.C. At Police Station Jatli upon the complaint of Abdul Hafeez son of Muhammad Rafique P.W.4. Considering the course of events and the distance of 8 Kms. Of the police station from place of occurrence it was a promptly lodged F.I.R. The complaint Exh.P.B. Gives a coherent account of the occurrence.
19. The ocular account is rendered by P.W.4 complainant, Muhammad Shabbir P.W.5 and Muhammad Bashir P.W.6. Both Muhammad Shabbir and Muhammad Bashir have been cited as witnesses in the First Information Report. The eye-witness account given by these witnesses is consistent and cogent and nothing distracting there-from have been elicited during the cross- examination of the P.Ws. Neither the statement of P.W.5, who stated to have been engaged in litigation with Muhammad Siddique acquitted co---accused nor the statement of P.W.6, wherein, he stated to have deposed as a witness of Mst. Hameeda Begum in the suit for dissolution of marriage or before the Union Council Narali shall be sufficient to discredit their evidence to any extent. Apart from the marital relationship between the appellant and Mst. Hameeda Begum, the complainant party as well as the accused party were even otherwise inter-related to each other.
20. The medical evidence was produced through the statement of Dr. Asif Mehmood Malik, M.O.
Who appeared as P.W.11. He conducted the post-mortem examination on the dead body of Muhammad Idrees aged about 17 years. He found the following injuries:-
(1) A fire-arm entry wound was present in the mid line 5 c.m. Below the umblicus measuring 4 c.m. x 4 c.m. Directed downwards and backwards to the right hip, the intestinal portion were bulging out from the wound with multiple perforations. Balckening present on the bulged out of the small intestines. The wound edges on right half of mid line everted and of the left half were inverted edges.
(2) Lacerations 3 in number present closed to reach other on the right hip 11 point 5 c.m. In inferiorly and posteriorly from anterior, superior iliaspine. The lacerations were measuring 0.4 c.m. x 0.5 c.m.
21. Exh.P.1 is his post-mortem report while Exh.P.1/1 is the pictorial diagram.
22. P.W.11 also conducted post-mortem examination on the dead body of the second deceased Meharban Hussain aged about 21 years. He found the following injuries on the dead body:--
(1) Multiple fire-arm wound of entry with inverted edges and surrounding blackening 0.3 c.m. x 0.3 c.m. Situated on anterio lateral part of right side of abdomen in the area of 24 c.m. x 26 c.m.
(2) Two fire-arm wounds of entry close to each other situated on the right fore--arm lateral side 13 c.m. Proximal to right wrist-joint with edges inverted and surrounding blackening present.
(3) Abrasion 1 c.m. x half c.m. Present, 3 c.m. Distal to left knee.
(4) Abrasion half c.m. x half c.m. Over the back of the left elbow joint.
23. The ocular account is supported by the medical evidence.
24. According to the prosecution version Abdul Hafeez complainant alongwith Mehrban Hussain deceased Muhammad Shabbir P.W.5, Muhammad Bashir P.W.6 Muhammad Rafique son of Muhammad Din were going to offer Jumma Prayer on 29-3-1996 when at 1-00 p.m. Muhammad Ismail appellant appeared from the front and fired at Mehrban Hussain who fell down in an injured condition. Thereafter, Muhammad Ismail shouted that he would also not leave Muhammad Idrees and ran towards what was described as "my house" by the complainant Abdul Hafeez. It was in this house that Muhammad Ismail shot at Muhammad Idrees who died at the spot. Much capital was attempted to be made of this seeming controversy between this version and the statement of P.W.5 who stated that the murder of Muhammad Idrees took place in the Havely of Muhammad Rafque. The learned counsel for the appellant was at pains to assert that this was a very material contradiction in the prosecution evidence which should demolish its case.
25. A closer look at the evidence would, however, present no such controversy. It is in the evidence that Muhammad Rafique is the father of Abdul Hafeez complainant, Muhammad Idrees deceased and Mst. Hameeda Begum, Muhammad Rafique was married to Mst. Gulzar Begum from which wedlock Abdul Hafeez, Muhammad Idrees and Mst. Hameeda Begum had taken birth. At the time of occurrence, this Mst. Gulzar Begum, Muhammad Idrees deceased Abdul Hafeez and Mst.
Hameeda Begum were living in one and the same house which was known as "Havely" of Muhammad Rafque but which could also be described as "my house" by the complainant as well as "his house" while referring to Muhammad Idrees. Site plan Exh.P.F. Depicts the four boundaries of the house where Muhammad Idrees was murdered. The four boundaries as per Exh.P.F. Are as under:--
26. Muhammad Rafique had taken another were and was himself living in a separate house alongwith his second were. Nothing, therefore, turns upon the contention of the learned counsel for the appellant so far as it relates to the nomenclature of the house, wherein Muhammad Idrees was murdered as long as the identity of the said property is established on the record. P.W.13, the I.O.
Also found the dead body of Muhammad Idrees lying in the house in respect of which the site plan was later prepared.
27. We have also noticed the defence taken up by the appellant in his statement under section 342, Cr.P.C. In answer to question 12, the appellant has clearly indicated the primary cause of the dispute. In his own words: "Abdul Hafeez complainant wanted me to divorce my were Mst. Hameeda Begum .....They also got case of dissolution of marriage and a case of maintenance filed against me in the Court of Family Judge, Gujar Khan."
Regarding the sequence of events that led to the murders of Muhammad Idrees and Mehrban the appellant had the following to say:-- "On the day of occurrence fight took place between Mehrban deceased and Idrees deceased in the house of Muhammad Rafique father of Muhammad Idrees deceased during the fight Mehrban deceased fired at Muhammad Idrees deceased as a result of which he fell down and died in the house of his father Muhammad Rafique father of deceased Muhammad Idrees in retaliation fired at Mehrban who after receiving the injuries ran out from the house of Muhammad Rafique and fell in the street outside the house. "
28. We have observed that the appellant has taken a very specific stand in respect of the two murders. No such inference could be drawn through cross-examination or by means of any other evidence on the record and indeed none has been pointed out by the learned counsel for the appellant.
29. Apart from the ocular and medical evidence and evidence regarding motive, we have also been referred to strong evidence of recovery which is present on the record. Abdul Rehman's P.W.3 joined the police investigation on 31-3-1996. A .12 bore double-barrel gun P.1 alongwith 5 live cartridges P.2/1-5 and licence P.3 were recovered from the house of the appellant taken into possession through recovery memo. Exh.P.A. Which were duly attested by P.W.3. Even according to P.W.13 the gun Exh.P.1 was recovered on 31-3-1996 from the appellant from his house.
30. From the above stated evaluation of the evidence on the record, we are not persuaded to take a view different from one which has been expressed by the learned trial Court. We are also not impressed by the submissions made by the learned counsel for the appellant that there are any mitigating or extenuating circumstances in the case which could warrant a lesser sentence. It was a day light occurrence; where the appellant had committed double murder in cold blood. No case of provocation or loss of self-control has been made out. Death penalty is the normal punishment in such circumstances.
31. Resultantly, we find no merit in this appeal which is hereby dismissed.
32. The Murder Reference is answered in the affirmative.
North:House of Nazar Bhatti.
South:House of Mir Zaman Bhatti.
East:House of Gulzar Bhatti.
And West:Street and house of Ghulam Sarwar.