1987 PLP 2026 (SCMR)

SAAD SAOOD JAN, J.‑‑On the night between 6th and 7th September, 1978, Muhammad Anwar deceased was killed as he was sleeping in his house. His wife was assaulted and his three sisters were raped and had their hair cut off. At about the same time his father and three brothers were seriously wounded while they were asleep at their cattle shed. In respect of this occurrence, ten persons, namely, Zahoora, Afzal, Feroz, Arif, Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar and Ahmad Noon were put on trial and were charged with offences falling under sections 302, 307, 376, 355 and 452, read with section 149, and section 148 of the Pakistan Penal Code.

2. While determining the liability of the accused the learned Additional Sessions Judge treated the incident which took place at the house of Muhammad Anwar deceased and the one which occurred at the cattle shed as two separate events, albeit parts of the same transaction. Since Zahoora, Feroz, Afzal and Arif alone had taken part in the incident at the house of the deceased, he convicted them of offences under sections 302, 366, 376, 325 and 452, read with section

149. For the offence under section 302, he sentenced them to death and for the offence under 376 he ordered that they should suffer imprisonment for life. In respect of the other offences, he directed that they should undergo various terms of imprisonment. As regards the incident which occurred at the cattle shed, he convicted Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar and Ahmad Noon of offences under section 307, read with section 149, and section 148 of the Pakistan Penal Code. For these offences, he ordered them to suffer different terms of imprisonment. Both sets of accused were also directed to pay fines in respect of the different offences.

3. On appeal and reference, the High Court upheld the convictions of all the ten accused for the different offences as‑ recorded by the learned trial Court. It also maintained their sentences for the different offences with the following modification:‑ (i) the sentences of death awarded to Zahoora, Afzal, Feroz and Arif were not confirmed; instead, in respect of the offence under section 302 they were sentenced to imprisonment for life; (ii) the sentences of imprisonment for life imposed upon Zahoora, Afzal, Feroz and Arif for the offences under section 376, P.P.C. was reduced to 10 years rigorous imprisonment; (iii) the sentences of Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar and Ahmad Noon for the offences under section 307 were reduced from rigorous imprisonment of 10 years to that for a period of seven years.

4. The judgment of the High Court has given rise to two petitions for special leave to appeal. One has been filed by the convicts. Learned counsel appearing for them has challenged the legality of the sentences that have been awarded to Zahoora, Afzal, Feroz and Arif. He points out that neither the trial Court nor the High Court has directed that the substantive sentences of imprisonment for the different offences should run concurrently; consequently, the said sentences of imprisonment will take effect consecutively. As a result the limit imposed by the proviso (a) to section 35(2), Code of Criminal Procedure will stand exceeded. This will be illegal and in conflict with the view taken by this Court in Javid Shaikh v. The State 1985 S C M R

153. This contention needs examination. Leave to appeal is granted to consider legality of the sentences imposed upon Zahoora, Afzal, Feroz and Arif.

5. The second petition has been filed by Mst. Ghulam Zohra, widow of Muhammad Anwar deceased. Two points have been urged on her behalf. In the first place it is contended that in view of the gruesome nature of the occurrence the High Court seriously erred in not confirming the sentences of death imposed upon Zahoora, Afzal, Feroz and Arif. There is little merit in this contention. According to the prosecution itself Muhammad Anwar deceased had developed illicit relations with a sister of Zahoora, Afzal and Feroz who are real brothers and that she had to undergo an abortion a month and a half prior to the occurrence. There was no other motive for the occurrence. Thus, the attack upon the complainant party emanated from considerations entirely of rehabilitation of family honour. It is thus, not a fit case where the discretion exercised by the High Court should be interfered with.

6. The second point taken on behalf of Mst. Ghulam Zohra is that it was a case of pre-concerted attack which was carried out simultaneously in prosecution of the same common object at two places, that is, the cattle shed and the house. Thus, those who took part by arrangement in the incident at the cattle shed alone could not escape liability for the acts of those who killed Muhammad Anwar deceased, assaulted and raped his sisters. Thus, the acquittal of Shakoor, Nawaz, Anwar, Ayub, Ahmad Yar and Ahmad Noon of the charges under sections 302, 366, 376, 452 and 325 of the Pakistan Penal Code was not correct. This contention needs examination. Leave to appeal is granted. Let bailable warrants in the sum of Rs.10,000 with two sureties in the like amount returnable to the Assistant Commissioner, Khanewal issue against them. S.Q./G‑4515 Order accordingly.