1995 P Cr (PLP)

JUSTICE SH. MUHAMMAD ZUBAIR, MEMBER

Muhammad Akram was tried under section 302, P.P.C. by the learned Judge, Special Court for Speedy Trials, Multan for the murders of his wife Mst. Azra Parveen, his three daughters, namely, Mst. Sughran Kiran and Aneeqa and his son Waqar. The learned Judge vide his judgment, dated 13-6-1993, convicted him under section 302(a), P.P.C. for causing Qatal-e-Amd, of his wife Mst. Azra Parveen and sentenced him to death. He also convicted him under section 3(18, P.P.C. and ordered him to pay Diyat to Rs.1,70,000 on four counts. He was further convicted under section 308(2), P.P.C. for causing the death of his three daughters and a son and sentenced to suffer fourteen years' R.I. on each count. It was further directed that if the death sentence of the accused commuted, then the sentences awarded to him under section 308(2), P.P.C. shall run consecutively. The convict has filed this appeal through jail.

2. The facts as gleaned from the F.I.R. Exh.P.Q. in substance are that Muhammad Akram appellant was married to Mst. Azra Parveen deceased eleven years back. Out of the wedlock, three daughters and one son were born. He went to serve in Saudi Arabia and returned home in the year 1984. During his stay abroad the appellant in collaboration with his father Bashir Ahmad and. brother Muhammad Aslam made a promise with different persons to obtain visas for-them-to-go to Saudi Arabia and collected an amount of rupees six lacs through Muhammad Anwar complainant. However, the appellant, his father and his brother did not fulfil the promise nor did they pay the said amount to those persons. After the return of the appellant from Saudi Arabia, Muhammad Anwar complainant P.W.6 convened a Punchayat for the recovery of the said amount and the appellant, his father and brother had been, making promises to pay the said amount, On 14-7-1992, Muhammad Anwar complainant and Abdul Karim P.W.7 went to the house of the appellant. They had a talk regarding the payment of money with the appellant, who replied that he was short of funds and would pay the amount whenever he had money. At this stage, Mst. Azra deceased said to the appellant that he was making false promises for the last so many years and members of her family were being disgraced on that account and that she would go to her parents house with the children and would come back when the money is paid to them. The appellant forbade him from doing so and told her that if she had so much sympathies with her brothers, then she should get the land of her share from them and should pay the amount after selling the same. Mst. Azra Parveen refused to do so. Hot words exchange between the couple and the situation was pacified by the complainant and Abdul Karim P.W. As to the occurrence, it is alleged that the appellant slept in the residential room with his wife and children on the fateful night and the complainant and Abdul Karim P.W. slept in the courtyard. The appellant bolted the door from inside. The light was on in that room and a room-cooler was also working outside the said room. During the later part of night, Muhammad Anwar complainant and Abdul Karim P.W. heard a voice from inside the room after mid night. They went towards the door which had been closed. There was a space on the side of the room-cooler where from they saw. Mst. Azra, Mst. Shugufta and Kiran having been butchered to death by the appellant and he was butchering Aneeqa who fell down from the cot. Within the view of the witnesses the appellant murdered his son Waqar with the Chhuri. The witnesses raised alarm. The appellant opened the door and said that in case they came near, they could meet the same fate and after brandishing the Chhuri he ran away from the house. The witnesses then went inside the room and found Mst. Azra, Shugufta, Kiran, Aneeqa and Waqar lying dead.

4. Leaving Abdul Karim P.W. near the dead bodies, Muhammad Anwar P.W.6 went to Police Station, Muzaffarabad and lodged F.I.R. Exh.P.Q. at 6-00 p.m. on 14-7-1992, which was recorded by Mehr Allah Ditta, Inspector/S.H.O. (P.W.11). He went to the spot. Under his direction, Muhammad Akram S.I. (P.W.9), prepared the injury statements and inquest reports of the five deceased and despatched the dead bodies to the mortuary for post-mortem examination. Mehr Allah Ditta, Inspector took into possession Gadda, Khes and cot of Shugufta and Kiran deceased and also blood-stained bedding of Anrqa deceased. He also took into possession blood-stained Gadda and sheet of Mst. Azra Parveen and Waqar deceased. The appellant was arrested on the same day. The inspector took into possession blood-stained Chhuri P.10, which was with him at the time of his arrest. He also got removed his blood-stained clothes and took them into possession. The appellant got recovered blood stained hammer, P.11 from his house vide memo. Exh.P.N. He recorded the statements of the witnesses under section 161, Cr.P.C. After completing the legal formalities, the challan was submitted in the Court.

5. Dr. Muhammad Altaf Hussain P.W.8 conducted the post-mortem examination on the dead bodies of five deceased. He noticed one incised wound each on the dead bodies of Mst. Azra, Kiran and Waqar. These injuries were sufficient to cause death in the ordinary course of nature. Shugufta received one incised wound and one laceratcd wound. Incised wound was sufficient to cause death in the ordinary course of nature. Mst. Aneeqa received four incised wounds. Injury No.1 which was an incised wound 10 c.m. x 3 c.m. bone deep, on the front and both sides of neck in transverse direction at the level just above the thyroid and cartilage, was sufficient to cause death in the ordinary course of nature.

6. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations. He professed innocence and admitted his relationship inter se with the five deceased. He pleaded alibi by making the following statement:-- " I was deeply associated with my spiritual leader Pir Mehr Shah Qureshi of Makhdoom Rashid. I used to go to my Peer almost every fortnight or 20 days. My wife used to restrain me from going to the Peer so often. On 13-7-1992 at Asar time when I intended to go to my Peer my wife restrained me from going there. She got angry and when I proceeded towards Makhdoom Rashid she said that its result shall not be good this time. I stayed in the house of Peer for the night. On the next day when I was sitting in the land of my Peer one Rafique came to bring me to my house and he told about the death of my wife and children. I became unconscious. After a shortwhile I gained my senses and with the support of a person I came to my village and presented myself before the police." No evidence was produced in defence nor the appellant appeared as his own witness.

7. The learned trial Judge believing the ocular evidence furnished by Muhammad Anwar P.W.6 and Abdul Karim P.W.7, fortified by the medical evidence and the recovery of blood-stained Chhuri, convicted the appellant and sentenced him as indicated above.

8. The learned counsel for the appellant vehemently contended that both the eye-witnesses, namely, Muhammad Anwar P.W.6 and Abdul Karim P.,W,, are the close relations of the deceased Mst. Azra Parveen, being her real brother and uncle, respectively and as per their own admission they are chance witnesses of the occurrence, they were imported from Sahiwal after the incident to depose falsely in this case the F.I.R. was recorded after preliminary investigation at the behest of Abdul Razzaq S.I. and the ocular evidence is against the, medical evidence, hence the conviction of the appellant be set aside.

9. In the Fend, learned counsel vigorously urged that conviction of the appellant under section 302, P.P.C. with respect to the murder of Mst. Azra Parveen is bad in law and he can only be convicted under section 308, P.P.C. being her Wali.

10. Wd have heard the learned counsel for the parties at length and have gone through the record minutely.

11. Both the eye-witnesses have furnished very reasonable and plausible explanation for their presence at the scene in the absence of any background of enmity mere relationship per se is no ground to discard their straightforward and confidence inspiring evidence. The complainant being the real brother of Mst. Azra Parveen deceased, due to the motive mentioned in the F.I.R. was interested in the realization of the amount taken by the appellant from different persons, through him, on the pretext of sending them to Saudi Arabia and that is why he visited the house of the appellant on the day of occurrence. Both the eye-witnesses being close relations of Mst. Azra Parveen deceased, wife of the appellant, slept in the house of the appellant, they were thus the natural and probable witnesses of the occurrence, which took in the house of the appellant they had no enmity with the appellant neither any which animosity was suggested to them nor proved. The appellant has not furnished' any explanation why the eye-witnesses in the promptly lodged F.I.R. have A falsely involved him for the murder of his wife and children. The recovery of blood-stained Chhuri further corroborates the ocular version. It lie contention of the learned defence counsel that Abdul Razzaq S.I. got registered a false case against the appellant is belied by this fact along that after the registration of the case, due to diatolic nature of the case, the matter was brought to the notice of the S.S.P. and the Deputy Commissioner, Multan, and both of them visited the spot. The defence version that the appellant had gone to visit his Peer at Makhdoom Rashid appears to be palpably wrong, as the said Peer did not appear in his defence, hence the appeal fails on merits.

12. We find great force in the submission of the learned defence counsel that conviction and sentence of the appellant under section 302(a), P.P.C. with respect to the murder of Mst. Azra Parveen is not sustainable in the eye of law in view of the (sic) of sections 306 and 307, P.P.C., as the appellant being her S husband is her Wali, so we alter the conviction of the appellant under section 302(a) to one under section 308, P.P.C. and award him sentence of fourteen years' R.I. and also direct him to a Diyat amounting to Rs.1,70.000. The sentences of imprisonment awarded to the appellant under section

308. P.P.C. on five counts shall run consecutively. N.H.Q./143/SAC Order accordingly.