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Criminal Appeal No.97 of 1983 and Murder Reference No.3 of 1984, decided on 6th May, 1987.

---Ss.302, 34, 324 & 323--Eye-witnesses fully supporting prosecution version as contained in first information report--Presence of witnesses at place of occurrence quite natural and probable--Empties recovered from spot found to be wedded with shotgun recovered from accused and Kassi recovered from co-accused found to be stained with human blood, furnishing positive and independent corroboration to testimonies of eye-witnesses--Motive alleged in first information report proved- Prosecution establishing beyond reasonable doubt that deceased was murdered by accused--Conviction upheld in circumstances.

---Ss.302,34,324 & 323--Sentence--Age--Accused under fifteen years' of age at time of occurrence and acting under influence of his uncle, a co-accused--Extreme penalty of death, held, was not warranted in such case--Sentence of death altered to imprisonment for life.

---S.302--Sentence--Family honour--Accused real brother of lady abducted by deceased who later contracted marriage with her Accused committed murders in connection with family honour--Sentence of death altered to imprisonment for life.

Ghous Muhammad Chaudhry for Appellants.

Tauqirullah Shah for the State.

Date of hearing: 6th May, 1987.

--Sanaullah (16) son of Muhammad Malik and his paternal-uncle Abdul Khaliq (26) son of Ghulam Haider, have been convicted by the learned Sessions Judge, Bahawalnagar, vide his judgment dated 19-11-1983, under section 302/307/324/323 read with section 34 PPC, for causing the murders of Murad Ali and Muhammad Abbas, for murderous assault on Mst.Shahnaz Kausar and for causing injuries to Javed Iqbal, Ghulam Nabi and Khurshid Bibi. Under section 302/34 PPC, both the convicts have been sentenced to death and a fine of Rs.2,000 or in default six months' R.I. on each count. They have further been directed to pay compensation of Rs.2,000 each to the heirs of Murad Ali and Muhammad Abbas deceased or in default six months' R.I. For attempting the murder of Shahnaz Kausar, both the convicts have been sentenced to seven years' R.I. and a fine of Rs.1,000 or in default three months' R.I. They have also been directed to pay Rs.1,000 each as compensation to Mst.Shahnaz Kausar or in default to suffer three months' R.I. They have been sentenced to six months' R.I. under section 323/34, PPC on each count for causing injuries to Javed Iqbal and Mst.Khurshid Bibi. They have also been directed to pay Rs.500 as compensation to each injured witness or to suffer R.I. for three months'. Both of them have further been sentenced to six months' R.I . under section 324/34 PPC for causing injuries to Ghulam Nabi P.W. They have also been directed to pay Rs.500 as compensation to the injured P.W. or to suffer R.I. for three months'.

Both Sanaullah and Abdul Khalid have challenged their convictions and sentences through the-present appeal viz. Criminal Appeal No.97 of 1983, while the matter also stands referred to us under section 374 Cr.P.C. seeking confirmation of death sentence awarded to both the convicts. The appeal as also the murder reference shall-.be disposed of by this judgment.

2. The occurrence in this case took place on 11-6-1982 at about morning prayer time in the area of Chak No.209/9-R, at a distance of eleven miles from Police Station Fortabbas. It was reported to the police on the same day at 6.30 a.m. by Ghulam Abbas alias Boota P.W.10, nephew of Murad Ali deceased and cousin of Muhammad Abbas deceased, through F.I.R. Ex.PBB, which he lodged at the police station. This F.I.R. was recorded by Muhammad Saadullah Khan Inspector P.W.6, who was then posted as SI/SHO Police Station Fortabbas.

3. Regarding motive it has been alleged that about 10/11 months' prior to the occurrence, Muhammad Abbas deceased had abducted Mst.Shahnaz Kausar, sister of Abdul Khaliq appellant and aunt of Sanaullah appellant. After abduction he contracted marriage with Mst.Shahnaz Kausar, whereupon Abdul Khaliq appellant got registered a case regarding the abduction of Mst.Shahnaz Kausar. Resultantly Muhammad Abbas and Shahnaz Kausar were arrested and challaned, but during the proceedings before the Court, compromise was effected between the parties. It has been alleged that in fact Abdul Khaliq harboured grudge and wanted to take revenge of this insult. Hence the present murders.

4. So far as the main occurrence is concerned, it has been stated that during the night preceding the occurrence Ghulam Abbas P.W.10 and his uncle Sardar Muhammad P.W.11, slept in their square of land to look after their cattle while in the nearby square Murad Ali deceased also slept to look after his cattle. At the fateful time, Ghulam Abbas and Sardar Muhammad PWs. woke up to start ploughing their land but they heard shrieks of Murad Ali. They ran towards the place of occurrence and saw that Sanaullah appellant was causing injuries with Kassi to Murad Ali deceased on his head while Abdul Khaliq armed with .12 bore gun was raising lalkaras. When Ghulam Abbas and Sardar Muhammad reached near them they were held out threat of dire consequences by Abdul Khaliq. Thereafter both the assailants armed with their respective weapons ran away towards the village Abadi. Ghulam Abbas and Sardar Muhammad went near Murad Ali and found him to have succumbed to the injuries. Ghulam Abbas thereafter went to the village Abadi to pass information about the murder of Murad Ali while Sardar Muhammad remained present near the dead body of Murad Ali. When Ghulam Abbas came to the house of Murad Ali deceased, he found both Sanaullah and Abdul Khaliq appellants present in the compound of Murad Ali. Within the sight of Ghulam Abbas P.W. Abdul Khaliq fired a shot at Muhammad Abbas hitting him on his chest. Sanaullah caused injuries with the butt of his gun on the mouth of Muhammad Abbas. In the meantime on alarm of Mst.Shahnaz Kausar wife of Muhammad Abbas. Javed lqbal PW 9 son of Murad Ali deceased, Mst. Khurshid Bibi PW.8 widow of Murad Ali and Ghulam Nabi son of Allah Jowaya (not produced) got up and witnessed the occurrence. They attempted to catch hold of the assailants. Abdul Khaliq fired at Mst.Shahnaz Kausar. One pellet hit her right arm. Thereafter Abdul Khaliq caused injuries with butt of the gun to Mst.Shahnaz Kausar and Javed Iqbal while Sanaullah caused injuries with the butt of gun to Mst. Khurshid Bibi and Ghulam Nabi. Butts of their guns also got broken and fell down at the place of occurrence. Thereafter both the assailants ran away leaving the butts of the guns on the spot.

5. PW.6 Muhammad Saadullah Khan SI/SHO after recording the F. I. R. proceeded to the place of occurrence in the company of Khurshid Ahmad P.W.7, the then Inspector/SDPO Fortabbas. Injury statements and inquest reports in respect of dead bodies of Murad Ali and Muhammad Abbas were prepared by PW 7 Khurshid Ahmad and the dead bodies were. despatched to the mortuary for post-mortem examination.

6. Dr.Capt. Mushtaq Ahmad (PW.5), the then Medical Officer, Tehsil Headquarters Hospital, Fortabbas performed the autopsy on the dead body of Muhammad Abbas on 11-6-1982 at 5.00 p.m. He noticed the following injuries on the dead body of the deceased:-

(1) A gunshot wound on the right side of the chest wall on its interior, 4 cm above the right nipple. The wound was circular in shape and was of 3 cm in diameter. The scorching, burning, blackening and tattooing marks were present around the wound.

(2) Bridge of nose, both maxillary bones depressed down, upper lip injured and the underlying four teeth were found broken.

(3) An abrasion, 1/4 x 1/4 cm, on the right lower lip.

(4) Two wounds, four inches apart from each other, on the left side of the back of the trunk. Each wound was of 2 cm in diameter. These were exit wounds.

He opined that death of Muhammad Abbas occurred due to haemorrhage and shock from injuries Nos.l and 2, which had ruptured the heart, both lungs and had broken both maxillary bones. Injury No.1 was by firearm and appeared to have 'been caused rom a close range while injury No.2 was of blunt weapon. These injuries were sufficient to cause death individually and collectively in the ordinary course of nature.

On the same day at 6.00 p.m. Dr.Capt. Mushtaq Ahmad conducted the post-mortem examination on the dead body of Murad Ali deceased and noticed eight incised wounds. one abrasion and two contusions on different parts of the body of the deceased. The scalp was found cut by sharp weapon. Skull was found cut while the vertebrae was also found cut. He opined that death had occurred due to haemorrhage and shock as a result of injuries Nos. l, 2, 4, 6, 8(a) and 8(c). These injuries were caused by sharp-edged weapon and were sufficient to cause death individually and collectively in the ordinary course of nature. All the injuries were ante-mortem Injuries Nos.3, 9, 10 and 11 were of blunt weapon.

7. Dr. Capt. Mushtaq Ahmad had also medically examined Ghulam Nabi on 11-6-1982 at 12.00 noon and noticed one incised wound, 6 cm above the left eye-brow, a contusion below and medial to left nipple and another contusion on the left shoulder. He opined all these injuries to be simple in nature. According to him injury No.1 was caused by sharp-edged weapon while injuries Nos.2 and 3 by blunt weapon.

On the same day at 12.50 noon, Mst.Shahnaz Kausar was medically examined by Dr.Capt.Mushtaq Ahmad. In her case he noticed a lacerated wound on the forehead, another lacerated wound on the top of head, a contusion on the left upper arm and a wound on the right forearm, circular in shape. The fourth injury was gunshot wound. All the injuries have been opined to be simple in nature. Injuries Nos.l to 3 were caused by blunt weapon while the fourth by firearm.

On the same day at 1.30 p. m. Javed Iqbal was medically examined by Dr.Capt. Mushtaq Ahmad. In his case, a lacerated wound on the forehead, a lacerated wound on the right side of occipital region, a contusion on the left side of neck and an abrasion on right thigh were noticed.

Mst.Khurshid Bibi P.W. was also medically examined by Dr.Capt. Mushtaq Ahmad. In her case, he noticed a lacerated wound at occipital region of head, a contusion on the outer aspect of left upper arm and a contusion on the left forearm on the back. All these injuries have been opined to be simple in nature having been caused by blunt weapon.

8. Sanaullah appellant himself appeared before Muhammad Saadullah Khan, SI/SHO Police Station Fortabbas on 12-6-1982. He was then carrying gun P.17, which had no butt. He was arrested and gun was taken into possession vide memo Ex.PR. attested by Abdul Sattar P.W.4, Noor Muhammad (not produced) and Muhammad Saadullah Khan P.W.6. Sanaullah was then wearing blood-stained shirt P.18, which was got removed from his person and seized vide memo. Ex.PS attested by the same witnesses.

On the same day while in custody Sanaullah led to the recovery of blood-stained Kassi P.16 which was hidden in bushes near the watercourse. This Kassi was seized vide memo. Ex.PQ. in the presence of Abdul Sattar P.W.4, and Noor Muhammad aforesaid.

9. Abdul Khaliq appellant also appeared before Muhammad Saadullah Khan, SI/SHO on 12-6-1982, while carrying gun P.20 without butt. It was taken into possession vide memo. Ex.PU, which has been attested by Abdul Sattar P.W.4 and Noor Muhammad aforesaid. He was also wearing blood-stained Kurta P.19, which was taken into possession vide memo Ex.PT, which has also been attested by Abdul Sattar and Noor Muhammad abovementioned.

On 11-6-1982, Khurshid Ahmad P.W.7, besides collecting blood-stained earth from the spot, recovered two pellets P.8/1-2 from the cot on which the dead body of Muhammad Abbas was placed. These pellets were taken into possession vide memo. Ex.PH, which has been attested by Abdul Sattar PW 4 and Noor Muhammad (not examined).

On the same day, two crime empties P.9/1-2 of 12 bore gun were also recovered from the compound of the house of Murad Ali deceased, which were seized vide memo. Ex.PJ, attested by Abdul Sattar P.W.4 and Noor Muhammad aforesaid. Two wooden butts of guns P.10/1-2 were also found lying in the compound of the house of Murad Ali deceased. These butts were taken into possession vide memo. Ex.PK, which has been attested by Abdul Sattar and Noor Muhammad aforesaid.

10. Vide reports Ex.PJJ and PKK of the Chemical Examiner and the Serologist, respectively, the stains of blood on the Kassi allegedly recovered from Sanaullah were of human origin. Similarly, blood found on the shirt of Sanaullah and on Kurta of Abdul Khaliq was also opined to be of human origin.

It transpires from the contents of report Ex.PLL of Forensic Science Laboratory that crime empties of 12 bore recovered from the spot were fired from SBBL shotgun allegedly recovered from Abdul Khaliq appellant.

11. At the trial Ghulam Abbas P.W.10, Sardar Muhammad P.W.11, Mst.Khurshid Bibi P.W.8 and Javed Iqbal P.W.9, testified as eye-witnesses to furnish the ocular account of the prosecution version. These eye-witnesses fully supported the prosecution version as contained in the F.I.R. Ex.PBB.

12. Both the appellants, however, pleaded not guilty and contended that they had been falsely implicated due to suspicion and enmity. They examined Mst.Shahnaz Kausar D.W.1 and Dr.Sher Muhammad D.W.2 in their defence.

Mst.Shahnaz Kausar D.W.1 is the sister of Abdul Khaliq and aunt of Sanaullah. She is the same woman who eloped with Muhammad Abbas deceased and was allegedly injured at the time of occurrence in the house of Murad Ali deceased. She stated that in fact the deceased Muhammad Abbas was murdered in her presence by Ghulam Abbas P.W.10, his father Ghulam Rasul, Bashir and Ali Ahmad. According to her, her husband was fired at with gun by Bashir while the others caused hatchet and Kassi blows to her father-in-law Murad Ali. She disclosed that her husband had been engaged to the daughter of Bashir, but instead of marrying her, he married this D.W. and on account of that grudge he was murdered.

It is noteworthy that Mst.Shahnaz Kausar besides her statement under section 161 C r. P . C . made before the police, also got recorded statement Ex.PMM before a Magistrate, in which she disclosed that Sanaullah and Abdul Khaliq had murdered Muhammad Abbas and Murad Ali. She admittedly left the house of her husband and went to live with her parents and thereafter she appeared as D.W.l.

Dr. Sher Muhammad D.W.2 medically examined Sanaullah accused on 2-1-1983, while posted as Medical Officer of DHQ Hospital, Bahawalnagar, for determination of his age. He also got his bones X-Rayed and opined vide report Ex. DE that age of Sanaullah was about 14 years. In the school leaving certificate Ex.DF, the date of birth of Sanaullah has been recorded as 30-11-1968.

13. The learned counsel for the appellants has contended that all the P.Ws. were closely related to the deceased and were thus interested witnesses. Their testimonies required corroboration, which is not forthcoming in this case He has further argued that one of the alleged eye-witnesses, namely, Mst.Shahnaz Kausar has appeared as DW.1 and has testified that the appellants were not responsible for the murders of the two deceased and for causing injuries to the injured P.Ws.

14. We have considered the averments made on behalf of the appellants, but we find these contentions to be without substance. The presence of Mst.Khurshid Bibi and Javed Iqbal P.Ws. in the house of Murad Ali deceased at the time of occurrence is quite natural and probable. They were residents of the house and were supposed to be present there at the time of morning prayer time. Similarly, Ghulam Abbas and Sardar Muhammad P..Ws. whose land is adjacent to that of Murad Ali were supposed to be present with their cattle in their land at the time of occurrence. Besides this direct ocular evidence, the empties recovered from the spot, as per opinion of the Forensic Science Laboratory have been found to be wedded with the SB shotgun recovered from Abdul Khaliq appellant. Kassi which has been got recovered by Sanaullah has been found to be stained with human blood. It is an admitted fact that 10/11 months prior to the occurrence, Muhammad Abbas deceased who happened to be the son of Murad Ali deceased, abducted Mst.Shahnaz Kausar, sister of Abdul Khaliq appellant, and contracted marriage with her. Subsequently a case was got registered by Abdul Khaliq against Muhammad Abbas and Mst.Shahnaz Kausar, but this case ended in compromise. Thus the motive alleged in the F.I.R. stands proved. The motive and the opinion of the Forensic Science Laboratory about the wedding of crime empties recovered from the spot with the gun recovered from Abdul Khaliq do furnish positive and independent corroboration to the testimonies of the eye-witnesses. Mst.Shahnaz Kausar, who has been examined in defence, deserves little credence. This woman against the wishes of her parents and brother eloped with Muhammad Abbas deceased and she contracted marriage with him. After his murder she made statement before a Magistrate that her husband and father in-law had been murdered by her brother and nephew, but subsequently when she came to live in her parents' house she appeared in defence for the appellants.

15. In the light of what has been said above, we have come to the positive conclusion that it has been established beyond any reasonable doubt that Murad Ali and Muhammad Abbas have been murdered by Sanaullah and Abdul Khaliq appellants. These appellants have also caused injuries to Mst.Khurshid Bibi and Javed lqbal P.Ws. In view of this finding, we uphold the conviction of Sanaullah and Abdul Khaliq under section 302/34, PPC on two counts for causing the murders of Murad Ali and Muhammad Abbas deceased. We also uphold their conviction under section 323/34, PPC on two counts for causing injuries to Javed Iqbal and Mst. Khurshid Bibi h. Ws. Ghulam Nabi has not cared to come into the witness-box to testify as to who was liable for causing injuries to him. For that count the appellants cannot be convicted. Similarly Mst. Shahnaz Kausar has also not supported the prosecution version to the extent of her injuries and on that charge also the appellants cannot be convicted.

16. So far as the question of sentence is concerned, Sanaullah was under fifteen years of age at the time of occurrence and moreover he acted under the influence of his uncle Abdul Khaliq. In his case, extreme penalty of death is not warranted. Abdul Khaliq is the real brother of Mst.Shahnaz Kausar, who had been abducted by Muhammad Abbas deceased, who later contracted marriage with her. He has, therefore, committed the murders of Murad Ali and Muhammad Abbas in connection with his family honour. In his case also, we deem it expedient that normal penalty of death should not be imposed on him and that the ends of justice would be met if he is sentenced to imprisonment for life.

17. For the foregoing conclusions, we maintain the conviction of both the appellants under section 302/34, PPC on two counts, for causing the murders of Murad Ali and Muhammad Abbas deceased, but on both the counts we alter their sentence from death to imprisonment for life. The fine as imposed by the learned trial Court and the directions regarding payment of compensation and also the imprisonment to be suffered in default of payment of fine and compensation are maintained. The convictions and sentences of these appellants under section 323/34, PPC on two counts for causing injuries to Javed Iqbal and Mst. Khurshid Bibi are maintained, but their convictions and sentences for causing injuries to Ghulam Nabi and for attempting the murder of Mst.Shahnaz Kausar are set aside. The substantive sentences in case of both the appellants shall run concurrently. The appeal is disposed of in the terms indicated above and the death sentence awarded to the appellants is not confirmed.

M. Y. H./S-90/L

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