2006 PLP 228 (SCMR)

ABDUL HAMEED DOGAR, J.

This jail petition is directed against judgment, dated 23-7-2001 passed by a learned Division Bench of Lahore High Court, Multan Bench, Multan, whereby Criminal Appeal No.193 of 2005 filed by the petitioners was dismissed and the conviction and sentence awarded by the learned trial Court were maintained.

2. Briefly, stated, the facts of the case are that accused Iftikhar, petitioners Muhammad Aslam and Muhammad Arshad were the sons of Muhammad. Iqbal, who was killed in a police encounter. The accused were stated to be thief by profession and for this reason their paternal-uncle Muhammad Zafar ousted them from the village while taking the possession of their land. Iftikhar was arrested in a case under Arms Ordinance and was to appear before the Illaqa Magistrate, Arifwala. His brothers petitioners Muhammad Aslam and Muhammad Arshad had gone there to meet him. Niamat and Siddique P.Ws. who were the relatives of both the parties also came there to effect a compromise and in their presence Iftikhar instigated his brothers to eliminate Muhammad Zafar and his entire family. In the night between 21/22-4-1993 at about midnight petitioner Muhammad Aslam armed with .7 ,mm rifle while petitioner Arshad holding .12 bore gun went to the house of their uncle Muhammad Zafar who was sleeping in the Air-conditioned room with his guest Muhammad Ali and his son Asad Mehmood. The door of that room r was not bolted from inside which was opened and both petitioners fired at Zafar who after sustaining injuries tried to run outside and was overpowered by them in the Verandah near the kitchen and fired again who succumbed to the injuries. Due to fear Muhammad Ali allegedly concealed himself under a cot. The petitioners came back to that room and in a sitting position fired at Muhammad Ali and murdered him under the cot. Complainant Asad Mai mood tried to run away but was restrained from running on gun point and was asked to open the door of the room where his mother Mst. Safia Begum, his sister Mastoor Bibi, Riaz Bibi, Shahnaz Bibi, Shumaila and her brothers Yasir Mehmood and Asif Mahmood were sleeping. Before complainant Asad could abide by their direction, both the petitioners gave violent pushes to the door of that room and opened the same. They ordered Mst. Safia, her daughters and sons to stand in a row. All of them were fired at and in that process Safia Begum who was pregnant at that time, Mastoor Bibi, Riaz Bibi, Shumaila and Yasir Mehmood expired whereas Shahnaz was injured. Asif Mehmood hid himself behind the iron chest and was saved.

3. Thereafter both the petitioners enquired from complainant Asad Mahmood the whereabouts of Naimat and Habib who informed them that they were sleeping in the nearby house of their aunt Mst. Fatima. They went to the house of Fatima and Niamat scaled over the wall and ran away. Petitioner Aslam chased him and in the meantime complainant Asad Mahmood summoned up to courage and caught hold of the gun of petitioner Arshad. During this process, petitioner Arshad fired which hit the right hand and the left wrist of complainant Asad Mahmood who while snatching the gun fled away and concealed himself in the house of Sultan Gujjar. On hearing the noise of the villagers both the petitioners fled away. Complainant Asad Mahmood returned to his house and saw that his parents, three sisters and brother Yasir Mahmood were lying dead. Shahnaz and Asif Mahmood were saved.

4. Both the petitioners and acquitted accused Iftikhar were arrested. Petitioner Aslam led to the recovery of .7 mm rifle which was taken into possession and after completion of the investigation, both the petitioners and accused Iftikhar were sent up to face trial.

5. In order to establish its case, the prosecution examined 11 P.Ws. in all.

6. The petitioners in their respective statements recorded under section 342, Cr.P.C. denied the case of the prosecution and pleaded innocence. They, however, neither examined themselves on oath, as required under section 340(2), Cr.P.C. nor led any evidence in defence.

7. On the conclusion of the trial, the learned trial Court vide judgment dated 2-8-1993 acquitted accused Iftikhar whereas convicted and sentenced the petitioners as under:-- Death sentence each on six counts for killing Mst. Safia, Mst. Mastoor Bibi, Mst. Riaz Bibi, Mst. Shumaila Bibi, Yasir Mahmood and Muhammad Ali. Ten years and a fine of Rs.10,000 in default one year's R.I. under section 324, P.P.C. Two years' R.I. each with a fine of Rs.1,000 in default 2 months' S.I. under section 324/34, P.P.C. Ten years' R.I. with a fine of Rs.5,000 each in default 6 months' R.I.

8. We have heard Mr. M. Zaman Bhatti, learned Advocate Supreme Court for the petitioners and have gone through the record and the proceedings of the case in minute particulars.

9. At the very outset, the petition is barred by 640 days for which no plausible explanation has been furnished. On this aspect, learned' counsel for the petitioners urged that since in this case the petitioners have been awarded death penalty as such the delay be condoned.

10. On merits, he candidly admitted that in the instant case eight persons have lost their lives and have been brutally murdered by the petitioners. According to him, though in the impugned judgment the facts have been given regarding death of seven persons, whereas unborn child of eight months of Mst. Safia Begum also lost his life in the occurrence. Learned counsel frankly conceded that this is not the case of mistaken identity because the two injured eye-witnesses namely, Asad Mahmood and Mst. Shahnaz, which were real cousins have categorically deposed against petitioners to be the culprits. Irrefutable ocular account has been furnished by these two injured eye-witnesses. The motive is also believed by both the Courts below. Accordingly, we do not find any reason to interfere in the concurrent findings recorded by the two Courts' below. Neither any legal infirmity, irregularity, misreading or non-reading of evidence has been pointed out in the impugned judgment. Accordingly, this petition being devoid of any force is dismissed and leave to appeal refused both on merits as well as on the point of limitation. N.H.Q./M-323/SC Leave to appeal refused.