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Criminal Appeal No. 164 of 1979, decided on 28th October,1985.

(On appeal from judgment, dated 29‑7‑1979 of Lahore High Court, Lahore in Criminal Appeal No. 1085 of 1978 and Murder Reference No. 273 of 1978).

‑‑‑S. 302‑‑Incident standing established beyond reasonable doubt by testimony of prosecution witnesses, recovery of fire‑arm belonging to accused and its matching with three crime empties with gun recovered from spot and existence of motive‑‑Conviction maintained.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal‑ Question, whether extreme penalty should have been imposed on accused in circumstances of case, required further examination‑‑Leave to appeal granted to consider question.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Sentence‑‑Accused killing three persons by firing when his daughter who was kidnapped was not being restored‑‑Accused had gone to house of deceased armed with a gun and when deceased's answer did not satisfy him he shot at him while he was trying to run away to escape his wrath‑‑Accused shot deceased's wife and a guest‑‑Firing by accused was not indiscriminate and immediate .on entering into house of deceased but he deliberately chose each victim and made him his target‑‑Accused, held, did not deserve any leniency in matter of sentence.‑‑(Sentence].

Mian Inam‑ul‑Haq, Advocate Supreme Court for Appellant.

Ghulam Ahmed, Advocate Supreme Court and Rao Muhammad Yousuf, Advocate‑on‑Record for the State.

Date of hearing: 28th October, 1985.

‑The facts, which form the background, are that one Sher Ahmed son of Faiz Muhammad was engaged to Mst. Shaheen daughter of Muhammad Siddique (appellant) since his childhood. A few days before the occurrence Muhammad Siddique (appellant) changed his mind, broke off the engagement and engaged Mst. Shaheen elsewhere. Aggrieved by this action Sher Ahmed (son of Faiz Ahmed) abducted Mst. Shaheen and took her away. Muhammad Siddique on learning this got enraged and armed with .12 bore gun entered the courtyard of Sher Ahmed's father Faiz Muhammad and asked him to restore Mst. Shaheen to him. Not getting a satisfactory reply from Faiz Muhammad deceased, he started firing from his gun on the inmates of the house and killed Faiz Muhammad and Mst. Mehr Nishan (father and mother of Sher Ahmad) and one Muhammad Rafique a house guest. Mst. Hafizan daughter of Raiz Muhammad who was also there fortunately escaped unhurt and witnessed the occurrence. A neighbour Nadir Khan on hearing the commotion next door also reached the spot and witnessed the occurrence.

The incident stands established beyond reasonable doubt by the testimony of the prosecution witnesses Nadir Khan, P.W. and Mst. Hafizan Begum P.W. The recovery of the fire‑arm belonging to Muhammad Siddiq and its matching with three crime empties with the gun which were recovered from the spot and the existence of motive. The conviction of the appellant for the murder of the three unfortunate deceased is, therefore, well‑merited.

However, as the question, whether the extreme penalty should have been imposed in such a case, required further examination leave to appeal was granted to consider it.

We note that the above question was considered by the High Court and it was observed:‑

"Learned counsel for the appellant has attempted to argue that this is a case of lesser penalty because the daughter of the appellant was abducted by the son of Faiz Muhammad deceased and the appellant was got enraged and murdered Faiz Muhammad and two others. Considering the argument on reasonable plan the appellant would have any grudge against Sher Ahmed son of Faiz Muhammad and not against Faiz Muhammad personally who be had asked for time to restore his daughter who had eloped with his son but the appellant did not consider the reasonableness on the request of Faiz Muhammad and demanded restoration of Mst. Shaheen forthwith from Faiz Muhammad which was impossible. There was no justification for the appellant to murder Faiz Muhammad but that was not the end of the rape of appellant who murdered two other persons Muhammad Rafique, a guest of Faiz Muhammad and Mst. Mehr Nishan wife of Faiz Muhammad without any excuse. There is, therefore, no extenuating circumstance on account of which lesser penalty could be imposed on the appellant."

We find that these observations are not fully supported by the record. For instance, the version that Faiz Muhammad was telling the appellant that his daughter was not with him and that on her availability he would hand her over to him, was an improvement. This fact was not mentioned by Nadir Khan, P.W. in his complaint nor was it mentioned by Mst. Hafizan Begum in her statement before the police. Furthermore, Nadir Khan ‑admitted during the cross‑examination that "it is taken as a disgrace and provision if the daughter of a person is abducted". But the fact remains that the appellant killed three persons by firing on them and the question whether on account of the state of passion and rage that the appellant was, on account of abduction of his daughter, action in firing on the occupants in the house of Faiz Muhammad when his daughter was not being restored, would entitle him to the lesser sentence.

We have given our anxious consideration to this aspect of the matter but ultimately have reached the conclusion that the appellant is not entitled to any leniency in the matter of sentence. He had gone to the house of Faiz Muhammad armed with a gun and when his answers did not satisfy him he shot at him while he was trying to run away to escape his wrath. He then shot at Rafique at his back, a young man in his teens, who had nothing to do with the incident. He, thereafter, went for Mehr Nishan, the wife of Faiz Muhammad, and shot her. It was not indiscriminate firing by the appellant immediately on entering into the house of Faiz Muhammad but he deliberately chose each victim and made him his target. He does not, therefore, deserve any leniency

The result is that this appeal is dismissed

M . Y . H Appeal dismissed

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