ATA-UR-REHMAN, J.---We are disposing of the above appeal and reference for confirmation arising out of judgment dated 29-3-2000 in Sessions Case No,449 of 1991 (State v. Muhammad Mithai and others) whereby the appellant No,1 was convicted and sentenced to R.I. For 14 years and fine of Rs,1,70,000 under section 308, P.P.C. For committing Qatl-eAmd of his wife Mst. Shehzadi and for Qatl-e-Amd of Qadir Bux convicted under section 302, P.P.C. To death as Qisas; whereas appellant No,2 was convicted under section 302(a), P.P.C. To death as Qisas for Qatl-e-Amd of both Qadir Bux and Mst. Shehzadi. The remaining three accused namely Gul Hassan, Mushtaque and Manzoor were acquitted.
2. According to F.I.R. No,176 of 1990, which is lodged by P.W.1 Hussain Bux, he and his brother Qadir Bux owned a hotel at Military Road; they resided in the neighbourhood .Of the appellants at Adam Shah Colony, Sukkur; the children of appellant No,1 and Qadir Bux had quarrelled 2/3 months back; this dispute however, was compounded through Manzoor Maher but the appellant No,1 had grudge against Qadir. On 17-11-1990 at 18-30 hours he and Qadir after leaving Gul Hassan, their brother-in- law at the hotel were on their way to their house, the appellant No,1 armed with gun called Qadir as Karo and fired at him; Qadir fell down; the .Brothers of appellant No,1 namely appellant No,2, Gul Hassan, Mushtaque and Manzoor came there and on his directions carried Qadir Bux to the house.
The P.W.1 rushed back to the hotel and narrated the incident to Gul Hassan and Haji; all of them ran to the house of appellants; they heard the gun fire and cries from the house. The door of the house was closed. After some time there was silence. On opening the door they found that accused had escaped and dead bodies of Qadir Bux and Shehzadi wife of appellant No,1 were lying with fire- arms and Toka injuries. P.W.1 left the witnesses at the dead bodies and went to police station for lodging F.I.R. During investigation the Police arrested the two appellants and their brothers and also recovered the crime weapon on the pointation of the two appellants. After completing the investigation, the challan was submitted; charge was framed on 19-8-1992 under sections 147, 148, 149 and section 302, P.P.C. To which all five accused pleaded not guilty and claimed to be tried.
3. Prosecution examined twelve (12) witnesses. After prosecution closed its evidence, the appellants and co-accused were examined under section 342, Cr.P.C. All accused denied prosecution story and claimed that they have been falsely implicated in the case. The appellant No,1, stated that on the day of incident he saw in his house the two deceased in naked position; he got provoked and killed both of them. He also produced a copy of the Constitution Petition No,429 of 1990 as Exh.30-A filed by him in the High Court, at Sukkur Bench wherein paras.(3) aid (4) he narrated as under:
(3) That on 17-11-1990 after sunset time the petitioner closed his shop and came to his house. The door was bolted from inside with chain which he opened while standing outside as it is so open and when he proceeded further in the courtyard he found his wife Shehzadi and neighbour Qadan alias Qadir Bux Mehar in objectionable position.
(4) That on this ugly sight the petitioner was gravely and suddenly provoked and he picked up a hatchet and caused hatchet blows to both Karo and Kari but Qadan managed to step out of the house and, therefore, the petitioner took his licensed double-barrel gun and chased him and in the street at some distance from his house fired at Qadir and dragged him inside the house where Mst.
Shehzadi lie injured with hatchet injuries. He caused fire-arm injuries to Mst. Shehzadi as well and there he finished both of them by causing more injuries.
4. After hearing the counsel the trial Court passed impugned judgment.
5. We heard Mr. Halepota for the appellants and Mr. Akhtar for the State and examined the record.
6. The prosecution case depends on the motive, ocular medical evidence and recoveries of the crime weapons.
7. The P.W.1 stated that incident took place due to previous enmity between appellant No,1 and Qadir Bux, the deceased, as two and half months back there was a dispute over the children between the parties. In cross the defence had suggested that Qadir was a Karo with Mst. Shehzadi, wife of Mithal and so Mithal killed both of them. There is no corroboration to the evidence of P.W.1 as to the alleged motive and the same is not proved. It is therefore, not relied upon and rejected.
8. There are three sets of eye-witnesses in this case. One P.W.1 Hussain Bux, the complainant and brother of deceased Qadir Bux who was accompanying him at the time when the incident took place. The second is of P.W.3 and P.W.4 who were sitting at the hotel when P.W.1 came there and narrated incident and then all of them rushed to the place of incident. The third is of P.W.2 and P.W.5,who were sitting in the house of deceased Qadir Bux and on hearing the fire shots and cries came out of the house and saw the incident.
9. According to P.W.1 while he and Qadir were on their way to their house, the appellant No,1 armed with gun appeared and gave Hakkal to Qadir and fired at him hitting on his chest and he fell down; but he stood up and tried to run away but appellant No,1 again fired at him causing injury on his leg. He stated that appellant No,1 called his aforesaid brothers who were hiding empty-handed in the adjoining street appeared and took Qadir in their house. P.W.1 ran back to hotel and narrated the incident to P.Ws.3 and 4 and all three came to the house of the appellant. They found the door locked from inside and witnessed that all accused persons were causing injuries to Qadir Bux who was raising cries; appellant No,1 fired at him and he died; thereafter accused ran away from other side of the house. He left the P.Ws. At the door and went to the police station where he lodged the F:I.R. Exh.11-A. Police came on the spot and one constable by scaling the wall went inside and opened the door. They found the two dead bodies of Qadir Bux and Mst.Shehzadi wife of appellant No,1. In cross-examination he stated that it took about 20 minutes for removing injured Qadir Bux from the place. Of first firing to the house of the appellant No,1. He stated that no other person witnessed the firing made by the appellant No,1 and injuries sustained by Qadir Bux; and that no other person saw accused taking Qadir Bux to the house of appellant No,1 and committing Qatl-e- Amd inside the house except by two P.Ws.; and that he shouted for help but no one came out from the surrounding houses; and that when accused entered the house of the appellant No,1 he returned to the hotel and narrated the facts to P.Ws.3 and 4; he denied the suggestion that he was sitting in the hotel from where he was called by the S.H.O.; but admitted that when he reached at Police Station the appellant No,1 was already in the lock-up; he denied the suggestion that Qadir and Shehzadi were killed by appellant No, 1 as Karo Kari.
10. Before discussing up P.Ws.3 and 4, we take up the evidence of P.Ws.2 and 5; according to them they were sitting in the house of Qadir Bux; on hearing the gun-shot report they came out and found Qadir:Bux lying injured in the street; all the accused persons were standing over there; appellant No,1 was armed with gun and others were empty-handed; they took Qadir Bux inside their house and closed the door. According to P.W.2 he heard the cries of Qadir Bux and also gun- shot reports; thereafter accused persons ran away; P.W.4 also came there on cries and gun-shot reports; P.W.1 also came there running from hotel on thecries of Qadir and gun-shot reports; P.W.1 kicked open the door and they all four entered the house and found Qadir Bux and a lady lying dead with injuries on their bodies his statement was recorded under section 161, Cr.P.C. And also under section 164 Cr.P.C, which he produced as Exh.12/A. P.W.5 stated that he and P.W.2 witnessed through the space of the door accused murdering Qadan and one lady; P.W.1 also witnessed the incident; he informed P.W.1 about the incident thereafter he i,e, P.W.1 went to the police station and brought the police; one constable opened the door of the house by climbing the wall; on entering the house they found Qadir and the lady lying dead; the accused ran away by climbing the roof of the house of their maternal uncle; he denied that his statement was recorded under section 164, Cr.P.C. But admitted that his signatures were obtained by the Police in the office of the F.C.M. He produced the same as Exh.16/1. In cross-examination P.W.2 admitted that the locality consists about 200/300 houses; admitted that about 100 persons from neighbouring houses came out in the street on the report of gun-shots and cries; when he and P.W.5 came out they saw deceased Qadan lying injured on the ground; P.W.1 and P.W.4 came running from hotel after 3/4 minutes of his arrival at the place where injured was lying; the P.Ws. And the persons who had collected in the street were available till the police came with the P.W.1. He denied that the two victims were killed by the appellant No,1 on the basis of being Karo Kari. The P.W.5 also in the cross-examination, stated that he had heard after incident that the appellant No,1 had murdered the two persons as Karo Kari.
11. The evidence of three witnesses i,e, P.W.1. P.W.2 and P.W.5 who claimed to be eye-witnesses of the actual incident is material for the decision of this case. While examining the evidence of these witnesses, it is found that P.W.1 in the cross stated that no one had seen the actual incident except the two witnesses. It is however, not clear as to which "two" witnesses he referred. They may be either P.Ws.2 and 5 and or 3 and 4. If we examine the evidence of P.W.1 vis-a-vis the evidence of P.Ws.2 and 5 it is revealed that all three claimed to be present at the place of incident and seen the offence committed by the appellant. It is, however, strange that in their evidence neither P.W.1 nor P.Ws.2 and 5 have shown presence of each other at the place of incident. The P.W.1 in his evidence not even remotely tells about the presence of the. P.Ws.2 and 5. However, P.W.2 stated that P.W.1 and P.W.4 came there on hearing cries and gun-shots P.W.5 stated that after Qadir was taken inside the house P.W.1 came and witnessed the incident. P.W.1 stated that he remained there for about 20 minutes till Qadir was taken from the street to the house and no one had seen the incident except the two witnesses clearly show that he is not referring the P.Ws.2 and 5 but P.Ws.3 and 4. Either the P.W.1 is telling a lie or the P.Ws.2 and 5. The result is that the presence of all the three witnesses at place of incident is doubtful.
12. The P.Ws.3 and 4 who admittedly were sitting at the hotel when P.W.1 came there and informed them that Qadir Bux was being assaulted by appellant and his brothers. In view of our finding to the veracity of the evidence of P.W.1, mentioned hereinabove, the evidence of P.Ws.3 and 4 is also rendered doubtful.
13. It is admitted that all P.Ws. Are inter related to each other. In spite of the fact that there had been number of people in that locality no independent witness was procured by the police and there is no explanation to that effect. Once the evidence of the P.Ws.1 to 5 is rejected it is not established as to what happened in and out of the house of the appellant and what specific role has been played by each of them.
14. The P.Ws.9 and 10 as Exhs.22 and 23 Dr. Allah Dino, the Medical Officer, who conducted the post- mortem of the two dead bodies was examined and he produced Exhs.22/A and 23/A.
15. On examination of dead body of Qadir Bux he found as under:-- EXTERNAL EXAMINATION 1.2 Lacerated punctured wound of size 1/2 c.m. In diameter, one on right side of face and other on right side of neck, 4 c.m. Apart from each other.
1.3 Lacerated punctured wounds on right side of chest, of size 1 c.m. In diameter, 2 c.m. Apart from each other.
2. A lacerated would 3 c.m. Into 5 c.m. On right fore-arm.
3. 5 incised wounds of size 2 c.m. Into 5 c.m. On right thigh backside, 5 c.m. Apart from each other.
4. An incised wound 10 c.m. Into 2 c.m. On right leg muscle deep:
5. An incised wound 10 c.m. Into 2 c.m. Backside of right thigh.
6. An incised wound 4 c.m. Into 5 c.m. On backside of left thigh.
7. An incised wound 8 c.m. Into 2 c.m. On left leg.
INTERNAL EXAMINATION "Walls ruptured; pleura right lung congested and ruptured. Blood vessels ruptured on affected side.
Stomach contained some digested food. Right tibia, left tibia left fibula right ulna and radires fractured."
OPINION After external and internal examination, he is of the opinion that death has occurred because of shock and haemorrhage due to damages to vital regions mentioned above. Injuries were antimortem in nature and appear to have been caused by discharge from fire-arm (Injuries Nos.1, 2 and 3), rest by sharp cutting weapon (Injuries No,4, 5, 6, 7 and 8). The injuries No,1 and 2 individually and all collectively are sufficient to cause death in the normal course of life. The time between injuries and death was instantaneous.
16. In cross he admitted that while conducting the pos:-mortem of deceased Qadir he did not see any mark of abrasion on his person.
17. On examination of dead body of Mst. Shehzadi, he. Found as under:--- EXTERNAL EXAMINATION Injury No,1 A lacerated punctured wound of 1/2 c.m. In diameter at right hypocboudrien region.
Injury No,2 A lacerated punctured wound of 1 c.m. In diameter at left hypocboudrien region.
Injury No,3 A lacerated wound of size 4 x 10 c.m. At right fore-arm with blackening.
Injury No,4 A lacerated punctured wound of size 1 and 1/2 c.m. In diameter at back of right side of chest.
Injury No,5 An incised wound at right thigh on interior surface of size 1 c.m. x 2 c.m.
Injury No,6 An incised wound of 1/2 c.m. x 3 c.m. On right leg on posterior surface.
Injury No,7 An incised wound at left thigh back, of size 1/2 c.m. x 3 c.m. Injury No,8 An incised wound of 1 c.m. x 1 c.m. On left leg on posterior surface.
INTERNAL EXAMINATION The wall of thorax ruptured with pleurae and right lung ruptured and perforated. Blood vessels ruptured at side of injuries. The abdominal walls and peritoneum ruptured. Stomach contained some digested food. Small intestine and large intestine perforated. Both kidneys damaged."
18. He opined that the death was caused due to shock and haemorrhage, and damage of vital organs mentioned above; injuries were ante-mortem, appeared to have been, caused from fire- arm (injuries Nos.1, 2, 3 and 4). Injuries Nos.5, 6, 7 and 8 have been caused by sharp cutting weapon.
The injuries Nos. 1, 2 and 4 are sufficient to cause death in the normal course; the death is instantaneous. Time between death and post-mortem is about 4 to 5 hours. The evidence was not questioned in the cross-examination.
19. In view of the evidence of P.Ws.9 and 10 it is established that the two persons died of unnatural death.
20. The prosecution examined P.W.6, Mumtaz Exh.16 was Mashir of place of Wardat and dead bodies as Ex11.16/A, Mashir of arrest and personal search of appellant No,1 at Exh.16/B, Mashir of arrest and personal search of Gul Hassan at Exh.16-C,. Mashir of arrest and personal search of appellant No,2, Exh.16/D. According to his evidence when he was made a Mashir per Exh.16/B appellant No,1 was already available at the Police Station he signed the Mashirnama at the police station. He acted as Mashir of arrest of Wazir as well who according to him was already available at Police Station. P.W. Ghulam Nabi the co-Mashir was not produced in the Court.
21. P.W.7, Exh.18 is Rub Dino the Tapedar who inspected the site and gave the details of the surroundings and location of the dead bodies. He was cross-examined as to the number of houses.
Surroundings of place of incident.
22. P.W.8 Ghulam Sarwar Exh.20 is a police constable who acted as a Mashir for the recovery of crime weapons namely gun and Toka on the pointation of appellants Nos: 1 and 2 respectively and he produced Ex-20-A. In examiantion-in-chief he stated that appellant No,1 produced one gun from the street adjacent to his house; the appellant No,2 produced one Toka from the same place.
He admitted that the area where weapons alleged to have been recovered is thickly populated area. He denied that no recovery was made from the two appellants. From his evidence it appears that the recovery was made at one and the same time and can be said a joint recovery.
23. The other witness who appeared in support of recovery of crime weapon is P.W.12 Syed Pervaiz Ali Shah, the Inspector of Police Exh.25. He stated that he arrested the appellant No,1 on 18-11-1990 from near Shikarpur Phattak in presence of Mashirs Mumtaz and Ghulam Nabi. He relied upon the Exh.16-B. On 24-11-1990 he arrested accused Gulsher and Manzoor Ali from bus stand in presence of the same Mashirs and relied upon Exh.16/C. On 26-11-1990 he arrested appellant No,2 in presence of the said Mashirs and prepared Mashirnama Exh.16-D. He adds that on 29-11-1990 appellants Nos.1 and 2 volunteered to produce crime weapons in presence of the aforesaid Mashirs; they proceeded to the house of the appellants from where at their pointation he recovered double barrel gun and two empty cartridges and blood-stained Toka. He prepared Mashirnama as Exh.20/A. Looking into the evidence earlier discussed above, the appellant No, 1 was already in custody when the P.W.1 went to Police Station for lodging F.I.R.; according to P.W.6, appellant No,2 was also in custody when he was made a Mashir of arrest.
24. There is serious contradiction in the evidence of the prosecution witnesses as to the arrest of the two appellants. No reliance can be placed on such evidence. P.W.8, the Mashir of recovery of crime weapons stated that on 29-11-1990 at the pointation of two appellants, the crime weapons were recovered from the street adjacent to their house; whereas P.W.12 stated that the crime weapons were recovered from the house of the appellants. It has been a joint recovery through one Mashimama which does not create confidence in the recovery proceedings.
25. It is noted that the recovery of crime weapon from appellant No,1 is further tainted from the fact that according to P.W.1 when he went to lodge the F.I.R. At the police station immediately after the incident and appellant No,1 was already found locked-up at police station. If we consider here the statement of appellant No,1 under section 342, Cr.P.C. It creates confidence that he had himself appeared in the police station and admitted the guilt. If so there is no plausible reason for the appellant No,1 to conceal the gun in the house or in the street as suggested by P.Ws.12 and 8 respectively. It is further noted that the trial Court has acquitted the three co-accused in this matter giving them benefit of doubt but convicted the appellant No,2 in the similar circumstances having accepted the fact that a Toka was recovered on his pointation admittedly during the joint recovery of the two crime weapons on the pointation of the two appellants. As discussed above, if the recovery of Toka does not create confidence the case of appellant No,2 will be at par with the acquitted accused.
26. P.W.12 also produced inquest reports Exh.25/A and 25/B of the two victims and also Exh.25/C, D, E & F. Exh.25/F is the Chemical Analyser Report who shows that the earth and iron "Kat" were stained with human blood.
27. The sum-up of the above is that while examining the evidence of the prosecution in juxtaposition to the version of the defence in cross-examination and in the statement under section 342, Cr.P.C. Of appellant No,1 it is found that the prosecution evidence does not inspire confidence whereas the defence plea is to be believed. The version of prosecution is, therefore, rejected.
28. Now we consider the plea of appellant No,1 put by him in the cross-examination and in the statement under section 342, Cr.P.C. His version has already been reproduced hereinabove. His statement is to be taken in totality without scrutiny. We are to decide that in view of his statement under what provision of the P.P.C. And for what quantum of sentence he is liable for. See State v.
Muhammad Hand 1991 SCMR 2047. His case is not covered by section 302(a), P.P.C. Due to the bar placed under section 304 ibid; there is neither his judicial confession nor is there evidence available as provided under section 17 of Qanun-e-Shahadat.
29. In 1989, number of criminal appeals from the Federal Shariat Court came before a Shariat Appellate Bench of the Supreme Court consisting of Hon'ble Muhammad Afzal Zullah, Chairman, Naseem Hassan Shah, Shafiur-Rahman, Pir Muhammad Karam Shah, Maulana Taqi Usmani, JJ.; the first appeal was that of the Federation of Pakistan v. Gul Hassan Khan thereafter known as case of Gul Hassan Khan PLD 1989 SC 633. In this matter the Appellate Bench in detail examined the provisions of sections 299 to 338 and other provisions of P.P.C. As well as the provisions of Cr.P.C.
And Qanun-e-Shahadat. The leading judgment was authored by Hon'ble Pir Muhammad Karam Shah, J. And was concurred by all the Hon'ble members of the Bench. The Hon'ble members, for reasons separately recorded, had unanimously decided that sections 299 to 338 of P.P.C. 1860 are repugnant to the Injunctions of Islam. The Hon'ble Shariat Bench fixed the time for making the said order effective from 23-3-1990 whereby the 'provisions which to the extent have been held to be repugnant to the Injunctions of Islam, shall cease to have effect. In addition to the detail judgment of Hon'ble Pir Muhammad Karam Shah, J.. Hon'ble Taqi Usmani and Shafi-ur-Rehman, JJ. Also recorded their separate notes. He observed that under Islamic Law the plea of grave and sudden provocation does not cover the Oatl-e-kmd of one by the other. Learned Taqi Usmani, J. On page 674 discussed the exceptions of section 300, P.P.C. He is of the view that provocation of any gravity, however, sudden does not mitigate the offence of Qatl-e-Amd. He observed the circumstances, which permitted the one by Islamic Law to Qatl-e-Amd the other; but the plea of grave and sudden provocation is not covered by those circumstances. He added that even in those cases one has to prove through evidence the circumstances in which he deprived the other of his life, he observed that even if one is able to prove to justify his action he will be penalized under Tazir for taking the law in his own hands. It appears that in pursuance of the recommendations of the Shariat Bench, the Ordinance VII of 1990; Gazetted on 15th of September, 1990 was promulgated and made effective from 12th day of Rabiul Awwal and the Legislature thereby substituted the original sections 299 to 338, P.P.C. With the existing sections 299 to 338-H ibid. The result of this amendment was that the original section 300 and its exceptions including Exception 1 pertaining to culpable homicide caused due to provocation was also done away with.
30. While discussing the cases of grave and sudden provocation and killing of near relative on the ground of "Siyakari" the apex Court in para.(19 of the judgment in Abdul Zaheer and another v. The State 2000 SCMP 406 recorded in verbatim the observations of Hon'ble Taqi Usmani, J.
31. In case of Mumtaz Khan v. The State 1999 SCMR 837 the Hon'ble Supreme Court relied upon its earlier judgment in Abdul Haq v. The State PLD 1996 SC 1 and considering a possibility of a degree of provocation sentenced the appellant under section 302(c), P.P.C.32.
32. We have considered the circumstances in which the appellant No,1 claimed to have comitted the Qatl-e-Amd of two persons.
33. The act of committing Qatl-e-Amds for Karo Kari, Siyakari, Ghairat etc. Are being accepted and condoned on the basis of customs and traditions prevailing for centuries but these pleas in defence are absolutely baseless. The crime of Karo Kari and Siyakari has already been looked after and dealt with by the Zina Ordinance, 1979 and no one is to be permitted any more to take the law in his own hands on the pretext of punishing infidels. In Muhammad Siddique v. The State PLD 2002 Lah. 444-458 where a girl in violation of family traditions married to a person of her choice was murdered by her father for infringing the family orestige, a Division Bench of the Lahore High Court, rejected the compounding of the offence at the appellate stage and at page 458 observed as under:- ---Law is a dynamic process. It has to be in tune with the everchangirg needs and va'ues of a society failing which individuals suffer and social fabric breaks down. It is this dimension of law which makes it a catalyst of social change Law, including the Judge-made law, has to play its role in changing the inhumane social moors. The offence which stands proved against the appellant has to have a judicial response which serves as a deterrent,. So that such aberrations are effectively checked. Any other response may amount to appeasement or endorsement. A society which fails to effectively punish such offenders becomes privy to it. The steady increase in these kinds of murders is reflective of this collective inaction, of a kind of compromise with crime and if we may say so of a complicity of sorts. A justice system of crime and punishment, bereft of its purposive and deterrent elements loses its worth and credibility both. The individual, institutional and societal stakes, therefore, are high. In these attending circumstances we are of the considered view that the appellant does not deserve the indulgence of a compromise leading to acquittal. The sentences awarded to the appellant, therefore, do not call for interference.---"
34. Case in hand is of double Qatl-e-Amd admittedly committed by the appellant No, 1 . As noted above, in such matters the Courts are not awarding the major penalty of death to the offenders but treating such matters one under section 302(c), P.P.C. And awarding lesser punishments.
35. Once the prosecution case is rejected in totality the version of the P.Ws. That there was a dispute between the children of the appellant No,1 and Qadir Bux is also to be ignored. The appellant No,1 had not brought on record that he and Mst. Shehzadi had any descendant i,e, the children from their wedlock therefore, his case will not attract the provisions of sections 306 and 308, P.P.C. Keeping in view his intolerant; uncivilized behaviour, the conduct and his taking the law into his own hands and thus depriving two human beings of their lives in a brutal manner, the appellant is liable for maximum punishment under section 302(c), P.P.C. We accordingly convert his sentence of death as Qisas under section 302(a) to the sentence of 25 years under section 302(c), P.P.C. For committing Qatl-eAmd of Qadir Bux. Since a notice for enhancement of sentence from 14 years under section 308, P.P.C. To 25 years under section 302(c) has not been given to him therefore, we maintain his sentence of 14 years but under section 302(c) for committing Qatl-e- Amd of Mst. Shehzadi as sections 306 and 308, P.P.C. Are not applicable as discussed above. Both sentences to run concurrently. He is entitled to the benefit under section 382(b), Cr.P.C. With this modification the appeal of the appellant No,1 is disposed of; we also decline to accept the reference for confirmation of death sentence.
36. The appeal of Wazir, appellant No,2 is allowed and reference for confirmation of death sentence awarded to him is also rejected. He be set free if not required in any other case.