2016 PLP 2476 (YLR)

MAZHAR IQBAL SIDHU, J.

Ahmad Sher, appellant in the appeal, as mentioned above, has impugned the punishing judgment handed down by the .earned Judge, Anti-Terrorism- Court, Faisalabad on 06.09.2010, whereby after having been tried along with 17 others in a private complaint case filed by Muhammad Sadiq emanated in a case registered vide FIR No. 13 dated 09.01.2007 under sections 302/ 376/ 365-B/ 148/ 149/ 109, P.P.C' and section 7 of the Anti-Terrorism Act, 1997 at Police Station Langrana, Tehsil Chiniot, District Jhang, punished as follows:-- Ahmad Sher appellant

1. Convicted under section 302(b), P.P.C. for committing Qatl-i-Amd of Wajid (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs.5,00,000/- as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months.

2. Convicted under section 7 (a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Wajid (deceased) and sentenced to death penalty and to pay fine to the tune of Rs.5,00,0001- and in default whereof to further undergo simple imprisonment for six months.

3. Convicted under section 302(b), P.P.C. for committing Qatl-i-Amd of Khadim Hussain (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs.5,00,000/- as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple' imprisonment for six months.

4. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Khadim Hussain (deceased) and sentenced to death penalty and to pay fine to the tune of Rs.5,00,000/- and in ' default whereof to further undergo simple imprisonment for six months.

5. Convicted under section 302(b), P.P.C. for committing Qatl-i-Amd of Nasir (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs.5,00,000/- as required' under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months.

6. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Nasir (deceased) and sentenced to death penalty and to pay fine to the tune of Rs.5,00,000/- and in default whereof to further undergo simple imprisonment for six months.

7. Convicted under section 302(b), P.P.C. for committing Qatl-i-Amd of Mst., Bhagan Bibi (deceased) and sentenced to death penally and to pay compensation to the tune of Rs.5,00,000/- as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months.

8. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Mst. Bhagan Bibi (deceased) and sentenced to death penalty and to pay fine to the tune of Rs.5,00,000/- and in default whereof to further undergo simple , imprisonment for six months.

9. Convicted under section 302(b), P.P.C. for committing Qatl-i-Amd of Mst. Maqsoodan Bibi (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs.5,00,000/- as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months.

10. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Mst. Maqsoodan Bibi (deceased and sentenced to death penalty and to pay fine to the tune of Rs.5,00,000/- and in default whereof to further undergo simple imprisonment for six months.

11. Convicted under section 365-B P.P.C. for abduction of Mst. Maqsoodan Bibi and sentenced to suffer imprisonment for life and to pay fine to the tune of Rs.2,00,000/- and in default whereof to further undergo simple imprisonment for six months.

12. Convicted under section 376, P.P.C. for commission of rape with Ms. Maqsoodan Bibi and sentenced to suffer death penalty and to pay fine to the tune of Rs.2,00,000/- and in default whereof to further undergo simple imprisonment for six months. Capital sentence reference titled above has also been sent by the learned trial court for confirmation of death sentence of the appellant or otherwise. Both the matters are being decided together through the present judgment.

2. Initially in this case, First Information Report No. 13 dated 09.01.2007 under sections 302/376/365-B/ 148/149/109, P.P.C. and section 7 of the Anti-Terrorism Act, 1997 at Police Station Langrana, Tehsil Chiniot, District Jhang was lodged on the complaint of Munawar Hussain.

3. Muhammad Sadiq, complainant (PW.1) of the case feeling dissatisfied/ aggrieved with the investigation, instituted private criminal complaint (Exh.PC) on 20.02.2008 under sections 302/376/365-B/ 148/149/109, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997, against 20 accused persons namely Ahmad Sher, Nawaz @ Mishry, Mudai @ Maddu, Mst. Sakeena, Sher Muhammad, Shera, Nawab, Murad, Nawaz @ Maj a, Munir, Muhammad Imran, Javaid a Sadi, Safdar Zafar, Sarfraz @ Saru, Ayub, Amjad, Muhammad Hussain, Muhammad Yaqoob, Muhammad Tariq and Bashir @ Phama.

4. Mournful facts abbreviation disclosed by the complainant Muhammad Sadiq in private criminal complaint Exh.PC) are that during the night between 38/09.01.2007 Wajid and Khadim were sleeping on a single cot lying in front of cattle shed after tethering cattle there. In a room near to that cattle shed (Chappar) Mst. Bhagan and Mst. Maqboolan along with Nasir (child) were sleeping. Nasir and Mst. Bhagan were sleeping on a single cot. At 10:00/11:00 p.m., Muhammad Sadiq (PW.01) and his brother Shera were chatting under a 'kikar' tree. They rushed towards the Dhari on the barking of dogs. It was moonlit night. Murad and Hamayoun, PWs also came to the Dhari on hearing the barking of the dogs. They (all four PWs) saw accused (1) Ahmad Sher armed with gun .12-bore (2) Bashir a Phamma armed with carbine (3) Nawaz Majha armed with gun .12 bore (4) Munir slotra armed with gun .12 bore (5) Imran armed with rifle (6) Zafar armed with rifle (7) Javaid t Sadi armed with rifle (8) Amjad Kumhar armed with rifle (9) Sarfraz a Saru armed with pistol (11) Muhammad Hussain armed with repeater and (12) Muhammad Yaqoob armed with repeater, who entered the courtyard of the house of the complainant. Ahmad Sher, appellant raised a lalkara that all be murdered and made fire with his .12 bore gun, which hit at head of Wajid: His second fire shot made with the gun hit Khadim on his back. Bashir a Phamma made a fire shot with his carbine, which hit Khadim near the right ear on his head whereas his second fire shot hit Wajid on the left side of his back. On the report of firing, when Mst. Bhagan opened the door of the room, Ahmad Sher appellant fired with his gun, which hit Mst. Bhagan under her right nipple. Nawaz a Majha accused made fire shot with his .12 bore gun, which hit on the upper part of right nipple of Mst. Bhagan. Ahmad Sher accused made fire shot with his .12 bore gun, which hit the abdomen of Nasir. The fire shot made 'by Munir slotra with .12 bore gun hit on the right arm of Nasir. At that time in the room, where Mst. Ethagan etc., were sleeping a lantern was lit and there was also moonlight. The PWs identified all the above said four accused persons. The unknown accused continued making fire shot and raising lalkaras. The accused persons also threatened the complainant and PWs that if any one of them went near them, he would be murdered, therefore, the complainant and PWs could not go near the accused persons due to fear. Accused persons Ahmad Sher, Bashir a Phama, Nawaz a Majha and Munir Slotra entered the room and caught hold Mst. Maqboolan, abducted her by force and took flight. Wajid, Khadim Hussain and Mst. Bhagan succumbed to the injuries at the spot, whereas the complainant and the PWs took Nasir an injured condition to Allied Hospital, Faisalabad for his treatment but he also succumbed on the way to the hospital and they took his dead body back to the Dhari i.e. place of occurrence. It is alleged that twelve accused persons committed the occurrence on the abetment and with the consultation of Sher son of Sultan, .Shera son of Pathana, Murad, Nawab, all three sons of Pathana, Mudai, Nawaz both sons f Fateh Muhammad and Mst. Sakina and the conspiracy was hatched one week prior to the occurrence in the evening while sitting on the 'watt' of sugarcane crop of Sher son of Sultan located near. the road and the conspiracy was heard by. Zulfiqar and Qadir PWs. The motive set up by the prosecution was that 10/11 months prior to the occurrence Mst. Maqboolan (daughter of the complainant) was married with Ahmad Sher, appellant and Mst. Halima, sister of Ahmad Sher was married with Noor Azam (son of complainant) in an exchange-marriage. The relationship between the spouses became strained and both the parties got divorce of their girls-i.e. Mst. Maqboolan and Mst. Halima about one month prior to the occurrence. The aforesaid divorces were the motive of the occurrence because at the time of divorces, both the parties exchanged abuses. On the night between 08/09.01.2007 after committing the murder of four persons, the accused persons abducted Mst. Maqboolan and took her to the house of accused persons Muhammad Hussain, Ayub and Muhammad Yaqoob located in Chak No. 144 Baokay Khokhar. Thereafter Mst. Maqboolan Bibi was taken to different places where she was subjected to rape and tortured: PWs Hamayun and Ayub son of Ahmad went in search of Mst. Maqboolan and on 12.01.2007 they saw that Ahmad Sher, Muhammad Hussain, Yaqoob, Nawaz Nabbi armed with 12 bore guns brought Mst. Maqboolan to the old Dhari of Ahmad Sher: where she was laid down on the ground and tied. Accused Muhammad Hussain and Yaqoob caught hold her, whereas accused persons Ahmad Sher and Nawab Nabbi made fire shots with 12 bore guns, which hit at the chest of Mst. Maqboolan on both sides where after, Ahmad Sher accused wrote his name on the ground and also wrote that dead body of Mst. Maqboolan was lying there, her legal heirs could lift her dead body and anyone who became witness would face the same consequences. Aforesaid facts were told to complainant by Hamayun and Ayub, PWs. It is alleged that Mst. Maqboolan was murdered on the abetment of Sarfraz, Javed, Zafar Kumhar because Mst. Maqboolan was eye-witness of the murders of four persons, witness of her abduction and rape committed with her. The occurrence committed by the accused caused sense of fear among the public of whole District Jhang like a fire of jungle. On having the information, the police came at the place of occurrence where complainant submitted an application (Exh,PA) for registration of the case, on the basis of which formal FIR (Exh.CW.6/A) was chalked out. The complainant submitted another application (Exh.PB) on 12.01.2007 after the murder of Mst. Maqboolan but said application was not entertained by the police. During the investigation, Nawaz Majha, Munir, Sher Muhammad, Mudai Maddu, Nawaz Mishry, Mst. Sakina Bibi, Shera, Nawab Nabbi, Sarfraz and Muhammad Imran were found innocent.

5. After recording preliminary/ cursory evidence of the complainant party and perusing the report under section 202, Cr.P.C. submitted by the learned Illaqa Magistrate, the appellant and co-accused were summoned by the learned trial court to face trial.

6. The investigation in this case was conducted by Zafar Ali, SI (CW.04). He deposed that on 09.01.2007, on receipt of information of occurrence, he went to the place of occurrence, where Muhammad Sadiq, complainant presented application (Exh.PA); conducted police proceeds on (Exh.PA) and sent the same to the police station through Muhammad Afzal 432-C for registration of formal FIR; inspected the place of occurrence and also inspected the dead bodies of Wajid, Khadim Hussain, Nasir and Mst. Bhagan; prepared injury statement of Wajid (Exh.PN) of Khadim Exh.PR), of Nasir (Exh.PU), of Mst. Mogan (Exh.CW-4/A) and inquest reports Wajid (Exh.PP), of Khadim (Exh.PS), of Mask (Exh.PV) and that of Mst. Bhagan (CW.4/B); prepared rough site plan of pace of occurrence (Exh. CW.4/C); ispatched the dead bodies of Wajid, Nasir mad Khadim Hussain under the escort of Sioukat Ali 1165-HC to the mortuary and :lead body of Mst. Bhagan Bibi under the escort of Muhammad Afzaal 432-C for postmortem examination; He recorded the statements of the PWs under section 161 Cr.P.C; secured blood imbrued earth from the place of occurrence of Khadim Hussain and Wajid and took the same into possession after making it into sealed parcel vide recovery memo (Exh.PD); he also secured blood imbrued earth from the place of murder of Mst. Bhagan and Nasir and made it into sealed parcel and took the same into possession vide recovery memo (Exh.PD); he took six crime empties P.1/1-6 from the place of occurrence and made them into sealed parcel and took the same into possession vide recovery memo (Exh.PD) and recorded the statements of the PWs. After postmortem examination, Shoukat HC handed over to him last worn clothes of Wajid Qameez P.21, Shalwar P.22, Sweater P.23, Bunyan P.24 and Sweater P.25, Shoukat Ali, HC also handed over him the last worn clothes of Khadim Hussain Qameez P.26, Shalwar P.27 and Jersey P.28; he also handed over him the last worn clothes of Nasir Qameez P.29, Shalwar P.30 and Bunyan P.31; he took the last worn clothes of the deceased persons into possession vide recovery memo (Exh.CW.4/D) attested by the PWs. All the last worn clothes of the deceased persons were blood imbrued. After postmortem examination Muhammad Afzal 432-C handed over him the last worn clothes of deceased Mst. Bhagan Qameez P.18, Chadar P.19, (blood imbrued): took the same into possession vide recovery memo (Exh.CW-2/W) attested by the PWs and recorded the statements of the PWs. He searched the accused persons as well as abductee Mst. Maqboolan Bibi on different occasion. On 11.01.2007, he recorded supplementary statement of Murad Ali and Ghulam Qadir. On 12.01.2007, he received information about the murder of Mst. Maqboolan Bibi; he proceeded to the place of occurrence and inspected the place of occurrence and dead body; prepared injury statement (Exh.PK) and inquest report (Exh.PL) and sent the dead body to hospital for postmortem examination through Sultan Ali-1440-C; prepared rough site plan of the place of occurrence (Exh.CW.4/C); secured blood imbrued earth and made it into a sealed parcel and also 3 empties P.2/1-3, made it into a sealed parcel and Qameez P.3, Shalwar P.4 and pair of ladies shoes P.5/1-2 and took the same into possession vide recovery memo (Exh.PE) attested by the PWs. After postmortem examination, Sultan Ali 1440-C produced before him last worn clothes of deceased, Mst. Maqboolan Bibi, Qameez P.14, Shalwar P.15, Brazier P.16 and Bunyan P.17; took the same into possession vide memo (Exh.CW.1/A) attested by the PWs and recorded the statements of the PWs. On 16.01.2007, he arrested appellant, Ahmad Sher from the house of Javaid @ Sadi accused; Ahmad Sher accused was armed with .12 bore gun and pistol at the time of his arrest. Gun .12- bore was P.6, 18 cartridges P.7/1-18, pistol .30 bore P.8, 2 magazines P.9/1-2, 5 live bullets in magazine P.10/1-5 and 6 bullets in the other magazine P.11/1-6 and a knife P.12, secured the above said articles vide recovery memo (Exh.PF) attested by the PWs but the appellant could not produce any license or permit of the weapons. On 17.01.2007, he sent the appellant to judicial lock up. On 22.01.2007, he arrested Javaid @ Sadi, Sarfraz @ Saru, Muhammad Ayub and Sh. Muhammad Tariq, sent them to judicial lock up and took into possession register P.20 vide recovery memo (Exh.CW.3/A) on the same day and recorded the statement of Farooq Azam, ASI in this regard. On 24.01.2007, Bashir @ Phama, Shera son of Sultan, Murad son of Pathana, Nawab son of Pathana, Shera son of Pathan appeared before him and joined them in the investigation. On 02.02.2007, draftsman produced before him sealed.site plan of the place of occurrence of murder of Wajid etc., and abduction of Mst. Maqboolan Bibi as (Ex.PW) and (Exh.PW.1); the draftsman visited the place of occurrence on 11.01.2007 and took rough notes under his direction and pointing out of the PWs. On 07.02.2007, he got prepared report under section 173 Cr.P.C. against appellant Ahmad Sher, Javaid @ Sadi, Sarfraz @ Saru, Ayub and Sh. Muhammad Tariq through the then SHO. On 08.02.2007, Muhammad Sadiq complainant produced before him a written application (Exh.PB); the complainant also produced lantern P.13, which was taken into possession by him vide recovery memo (Exh.PG) attested by the PWs. On 22.02.2007, Nawaz alias Mishri, Mst. Sakina Bibi accused named in. the FIR joined the investigation of this case. Muhammad Hussain and Yaqoob accused nominated through supplementary statement also joined the investigation. On 28.03.2007, he arrested Safdar, Ali Zafar and sent him to judicial lock up through the court concerned. On 01.04.2007, he arrested accused Muhammad Amjad and produced before him the tractor trolley P.32 and P.33 respectively; took the same into possession vide recovery memo (Exh.PH) and recorded the statements of the PWs; deposited the case property to the moharrar and submitted report under section 173 Cr.P.C. against the ac.cused persons through the then SHO. 9.(sic) Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused to which they pleaded non-culpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution produced 10 prosecution witnesses and 09 court witnesses. 10. (sic) The medical evidence was adduced through the statement of Lady Dr. Misbah-ul-Qamar, SWMO, District Headquarter Hospital, Jhang (PW05), who on 12.01.2007 conducted postmortem examination on the dead body of deceased, Mst. Maqsoodan Bibi and observed infra:- INJURIES

1. A firearm entrance wound 3 cm x 2 cm x cavity deep present on front of right of chest 2 cm from the mid line, Margins of the wound are inverted. Under line ribs fractured.

2. A firearm entrance wound 2.5 cm x 3.5 cm x cavity deep present on the front of left half of chest 2.5 cm from the midline. Margins of the wound are inverted. Under line ribs fractured.

3. A firearm exit wound with everted margins 2 cm x 1.5 cm present on left side of chest.

4. A firearm wound 0.8 cm x 0.8 cm with everted margins present on the back of left half of chest 10 cm midline. Corresponding holes were present on the clothes. OPINION In her opinion, death in this case was caused by injuries No. 1 to 4 leading to severe shock and haemorrhage due to severe injury to heart, lungs and fracture of ribs which was sufficient to cause death in an ordinary course of nature. All the injuries were ante-mortem in nature and caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 18 hours. (Exh-P.J) was correct carbon copy of the postmortem report, (Exh. P.J/1) & (Exh P.J/2) was sketch of the injuries, which bore his signatures. 10. (sic) Dr. Imran Ahmad Khan, CMO, while appearing as (PW06) deposed that on 09.01.2007 at 02:30 p.m, he conducted postmortem examination on the dead body of Wajid Ali and observed infra:-- INJURIES 1-A A lacerated entrance wound was present on the back of chest left side upper part rounded in shape 1.5 cm x 1.5 cm with blackening around. 1.-B 9 lacerated exit wounds on right side of chest upper part each measuring 0.5 cm x 0.5 cm. Wad was removed from dissection of injury No.1-A. Three pallets were removed from under the skin on dissection of injury No.1-B, 3rd rib on left side and 3rd and 4th ribs on right side were fractured.

2. A lacerated wound on skull with whole upper skull opened and broken into pieces. Brain matter coming out. A wad and 7 pellets removed from inside cranial cavity. 10 pellets and 2 wad sealed in a bottle and handed over to the police. OPINION In his opinion, the case of death in this case was both injuries Nos. 1 and 2 causing haemorrhage and injuries to vital organ brain and death at the spot. Injuries were ante-mortem and by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 16 hours. (Exh. PM) was correct carbon copy of the postmortem report, (Exh. PM/1) & (Exh.PM/2) was sketch of the injuries, which bore his signatures. 11. (sic) On the same day at 03:15 p.m., he conducted postmortem examination on the dead body of Khadim Hussain and observed infra:-- INJURIES I-A A lacerated entrance wound was present around right ear pinna on face 4cm x 2 cm with blackening around. It was probed obliquely downward into neck. It was entry wound. 1-B 2 lacerated wound were present on neck right side each 0.5 cm x 0.5 cm and 2 cm apart. Edges were everted. These were exit wounds. Wad was removed from dissection injury No. 1-A.

2. A lacerated wound wai present on back of chest upper thoracic area 2 cm away from midline on left side size 1.5 cm x 1.5. There was blackening around. It was entry wound. 11 pellets were removed from dissection of upper abdominal wall from under the skin. A wad was removed from liver on dissection. 2 wads and 11 pellets were sealed in bottle and handed over to police. OPINION In his opinion, the cause of death in this case were injuries Nos.] and 2 injuring vital organs brain and liver and haemorrhage in death at the spot. Injuries were ante-mortem and by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to. 16 hours. (Exh-PQ) was correct carbon copy of the postmortem report, (Exh PQ/1) & (Exit PQ/2) was sketch of the injuries, which bore his signatures. 11. (sic) On the same day at 04:00 p.m., he also conducted postmortem examination on the dead body of Nasir and observed infra:-- INJURIES I-A A lacerated wound was present abdomen upper part center rounded 2cm x 2cm with blackening around. It was entry wound. 1.-B Nine lacerated wounds each measuring 0.5 cm x 0.5 cm present on left rib cage laterally lower part and upper abdomen left side in an area of 10 cm x 5 cm. These were exit wounds. 2-A. A lacerated wound on right upper part outer side 2.5cm x 2.5 cm with blackening around. Wad and two pellets were removed by dissection. Hummers bone was fractured underneath. Wad and pellet sealed and handed over to the police. 2-B. Four lacerated wounds on inner side of right upper arm each measuring 1.5 cm x 1.5 cm in an area of 15 cm x 5 cm. Edges were everted and these were exit wounds. OPINION In his opinion, the cause of death in this case was injury No. 1 injuring liver, spleen and abdominal organs already described, haemorrhage and death, injuries were ante-mortem and by firearm weapon. Probable time that elapsed between injuries and death was 1 to (sic) hours and between death and postmortem was within 12 to 18 hours. (Exh-PT) was correct carbon copy of the postmortem report, (Exh PT/1) & (Exh PT/2) was sketch of the injuries, which bore his signatures. 10. (sic) The medical evidence was also adduced through the statement. Lady Dr. Zubaida Alchtar, WMO, District Headquarter Hospital, Jhang (CW08) who on 09.01.2007 conducted postmortem examination on the dead body of deceased Mst Bhagan Bibi and observed infra:- INJURIES

1. A firearm entrance wound 4cm x 3 cm going in chest cavity present on front side of left side of chest. 5 cm below right nipple. The margins of wound were inverted.

2. A firearm gazing wound 7 cm x 4 cm x muscle deep on lower part of right breast.

3. An exit Wound with everted margins 1 cm x 0.2 cm present on back of right side of lower part of chest 3 cm from the mid line.

4. An exit wound 1 cm x 0.2 cm with everted margins present on back of right chest lower part, 5 cm lateral to injury No. 3.

5. A firearm exit wound with everted margins I cm x 0.1 cm on back of right chest on lower part, 4 cm from midline.

6. A firearm exit wound 1 cm x 0.2 cm with everted margins present on back of lower part of right chest, 2 cm from midline. Five pellets were recovered from the back of right side of chest lower part, which were lying beneath the skin. The pellets were sealed in a bottle and handed over to the police. OPINION In her opinion, death in this case was caused due to shock and haemorrhage due to injury to right lung, liver resultant from injuries Nos. 1, 3 to

6. These injuries were caused by firearm weapon and were ante-mortem 'in nature. These injuries were sufficient to cause death in an ordinary course of nature. Probable time that elapsed between injuries and death was 1/2 hour and between death and postmortem was within 24 hours. (Exh-CW.8/A) was correct carbon copy of the postmortem report, (Exh CW.8/A-1) (Exh CW.8/A-2) was sketch of the injuries, which bore his signatures. 11. (sic) The complainant renounced PWs namely Sher Muhammad, Ghulam Qadar, Ahmad Sher, Qasim, Asghar and Ayub as being won over and Altaf, Ghulam Qadar being de-trop and closed the prosecution evidence.

12. Afterwards the statement of the appellant under section 342, Cr.P.C. was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. The appellant, however, neither opted to adduce evidence in his defence nor to appear as his own witness under section 340(2), Cr.P.C.

13. Appellant in reply to a question "why this case against you and why the PWs have deposed against you" answered as follows:- "It is a false case. One Yousaf, maternal cousin of the complainant, got registered FIR against me regarding the abduction of his daughter Mst. Sughran Bibi and the matter was patched up at the consideration of Rs. 5, 00, 000/- and promote regarding this amount was written in favour of Murad PW and due to non-payment of said amount and asking of Murad PWs, complainant involved me in the instant case. I had left my village 5 months prior to the occurrence and had gone to Chak No.12/JB Slothra, just to avoid the bickering. I have nothing to do with the instant murder. Complainant and PWs are inter-se related and they had involved me in the instant case having grudge of non-payment of above said amount. I am innocent."

14. Upon conclusion of the trial, the appellant was convicted and sentenced as mentioned op-cit by the learned trial Court. Hence, the appeal.

15. Learned counsel for the appellant has argued that the alleged incident took place nocturnally and the artificial source of light/illumination has not been established by the prosecution except the moonlit night whereas the number of accused persons who allegedly perpetrated the incident were large and their complete identification along with individual roles in a panoramic situation could not have been visualized by the PWs, therefore, it can conveniently be inferred that the incident had happened in the darkness of the night and the matter was reported after due deliberations and consultations. Learned counsel has further argued that the motive alleged by the prosecution was breakage of exchange marriages between the parties but at the same time, previous enmity did not find in existence between the parties. In all circumstances by not conceding but by arguing the case, some element of terror, family honour and provocation is involved in the case. Learned counsel has further argued that co-accused Majid, Munir and who had been involved in the criminal machination namely Shera, Nawaz a Misri, Maddi Maddu, Sakina, Sher, Murad and Nawab have been acquitted by the learned trial court and this fact alone causes sufficient doubt in the prosecution version to accept the appeal by extending the benefit of doubt to the appellant. Learned counsel further adds that during the investigation, when the complainant party did not have the favourable result, then consequently after a year of the happening of the incident filed private criminal complaint on 20.02.2008 in which trial was concluded to conviction and sentence of the appellant. Learned counsel has further submitted that the medical evidence qua deceased Khadim Hussain, Bhagan Bibi and Nasir does not necessarily considered to be corroborated by the ocular -account because the appellant alone had not caused injuries to the said deceased 16 persons. Another aspect has also been highlighted that Mst. Maqboolan Bibi, the other deceased whose postmortem was carried on 12.01.2007 in which the prosecution evidence has led no eye-witness except the statement of (PW7) Hamayoun, who remained uncorroborated by any independent materials, in these circumstances, when the case in totality does not involve the appellant in the conunission of crime, then the evidence does not prove the case against the appellant, therefore, he deserves the benefit of doubt for his acquittal. As to the arguments of weapon of offence and its positive report is concerned, it has been argued that both i.e. crime empties and the weapon of offence recovered from the appellant, both were sent together, in this way, positive report cannot be read against the appellant, when no reason has been offered by the prosecution as to why earlierly empties were not sent to the Office of the Forensic Science Agency, Lahore and now it has been established by the precedents of this Court as well as of the august Court that if empties and the weapons are dispatched to the said agency together, then even positive report cannot corroborate the prosecution case. Lastly, it has been argued that though, five persons have been murdered in the occurrence but this fact may not be taken into consideration while deciding the fate of appeal and murder reference because sufficient material is available on the file warranting aftermath/ lesser quantum of sentence to imprisonment for life for each murder.

16. Learned Deputy Public Prosecutor assisted by the learned counsel for the complainant has opposed the submissions.' It has been argued that undeniably, both the parties were Known to each other being relatives and living in the same vicinity and prior to the 'alleged incident, they were related to each other. Though the incident had taken place during the night but night being moonlit has not been denied, the sense of villagers comparatively works more vis-a-vis an urban and it is a phenomena that the villagers can identify co-villagers through gutup and voices, therefore, question of mistaken identity does not arise in the case. It has been maintained that ocular account is consistent not only inter-se but has also been proved to be not incoherent, therefore, no reason exists to discard the testimony of eye-witnesses. It has also been maintained that dead body of Mst. Maqboolan Bibi was taken into possession from the dera of appellant, this fact further proves her abduction to murder by the appellant. Lastly it has been submitted that the recovery of crime weapon has been effected from the appellant but due to lukewarm attitude of the police, the crime empties could not be sent timely to the office' of Forensic Science Agency but fact remains that the report is positive and the weapon .12-bore gun has been found in working condition. By summing up the arguments, learned law officer and learned counsel for the complainant have submitted that the appeal may be dismissed and the impugned judgment may be upheld.

17. Heard. Record perused.

18. It is a case of macabre murders in which five persons lost their lives, seriousness of this occurrence can be further evaluated from the fact that one of the females namely Mst. Maqsoodan was abducted in a very callous manner and subsequent to that she was also done to death after committing zina-bil-jabr with her. Although, it is evident from the record that she was ex-wife of the appellant but due to some mishap, watta satta marriages were abolished and she led to this unfortunate incident.

19. As far as the ocular account in this case is concerned, from the perusal of the same, it clearly reflects that both the parties are known to each other, although the stand of the prosecution has aggravated to some extent by giving specification of the injuries. At a time two questions may arise but this aspect is when weighed with the fact that the parties are known to each other and the injuries are ascribed to only one person, who is the appellant, it gives sufficient satisfaction to the mind of the Court that the appellant was the sole perpetrator of the whole occurrence.. Perusal of the statement of the I.O. as well as police record reveals that the same finding was verified by the investigating agency conducted by the local police and verification of the same by ASP. The statements of the prosecution witnesses of the ocular account further lend support to the fact that as far as the mode and manner of the occurrence is concerned that is not disputed. The medical officer has already stated that the death of all the five deceased persons is the direct result of fire shot injuries and as such it gives vent to the prosecution version to larger extent. No doubt this Court has also considered the aspect of prosecution case that as many as twelve persons were nominated in the crime report but fact again remains that the accusations mentioned in the ' criminal report and subsequently the evidence adduced during the course of trial also reflects that the appellant was the sole perpetrator of the occurrence and he had done all this due to the reasons that he was deprived to access Mst. Maqsoodan, with whom he had great love and affection which is part of admissible evidence. Firstly we have been morally satisfied by this fact of the case after paing through first plea of the appellant by consulting the police file.

20. As far as other aspects of the case are concerned, rest of the accused nominated in crime report were given the premium and were acquitted of the charge by the learned trial court which prompted us to evaluate sentence inflicted by the learned trial court.

21. So far as the case of the prosecution is concerned we have observed that the prosecution has fully established its case to its hilt, however, infliction of sentence by the learned trial court is under consideration on the following reasons:--

1. As far as the report of the Forensic Science Laboratory is concerned, the empties were taken into possession on 09.01.2007 whereas the gun was taken into possession on 16.01.2007 and both gun as well as empties were sent to the Office of Forensic Science Laboratory on 20.01.2007 which reduced the evidentiary value of the report of Forensic Science Laboratory and becomes inconsequential.

2. Learned trial court has already given premium to a number of persons after thrashing the whole evidence and only the sentence of death of the appellant remains in the field.

3. The IO while appearing in the witness box has admitted that innocent persons were arrayed as accused.

4. The whole occurrence seems to be the outcome of miscarriage of watta satta marriages which is very common in our society, although both the parties are closely related to each other.

5. The appellant had acted under the impulses of love with a woman, if it is considered with such materials within the ambit of diminished liability and if this aspect is borrowed from the homicide.

22. The Court has sought guidance from the case of Juma Khan v. The State reported as (PLD 2003 Lahore 60) as to imposition of sentence in such like cases is concerned. In the above case one person was murdered and two received injuries. This Court while computing the death sentence to imprisonment for life at pages 67, 68 and 70 (Head Note-A, B, C & H)); observed infra:- "As I early stated that the deceased and injured P. Ws gave me bearing when I refused to give their ball which was lying in my house. I was seriously injured and was feeling pain in my whole body but the police showed only three injuries on my person and the doctor with the connivance with the complainant party did not hospitalize me". The appellant had not brought his case under the provisions of section 84 of the Pakistan Penal Code and it appears that he is trying to raise the plea of diminished responsibility, not available under section 84 of the Pakistan Penal Code now before this Court. The defence before the trial court attempted to procure the record about his mental abnormality and applied for it even, though at a belated stage, but no action was taken. The psychiatrist view (Mark-A) on his mental condition in the year 1996 has come on record. This was not exhibited, but it can be looked into as it does help us in appreciating the conditions of mensrea or automation. It also saves the parties for a remand order which will further delay the case. There is no motive to the occurrence. Appellant shot at the deceased and P.Ws., as he was disturbed by their game of cricket. Even if no ball fell into his house as has been pleaded in defence or his door not broken, causing him provocation. The fact of the matter is that it was on account of the abnormality afflicted on him which put him out of control and he committed the act. This could be on account of his abnormal condition. And as this probability is there, we feel bound in applying to this case the Doctrine of Diminished Responsibility and in accepting it as a mitigating circumstance. We, therefore, reduce his sentence from death to life imprisonment while keeping intact the compensation part of the trial Court's judgment. The Criminal Appeal No. 43 of 1998 is decided accordingly and the Murder Reference No. 130 of 1998 is answered in the negative."

23. As provisions of sections 302(b), 376, P.P.C. and section 7(a) of the Anti-Terrorism Act, 1997 empower the court to pass a sentence upon an accused subject to proof of the case up to imprisonment for life, therefore, while maintaining the conviction, the quantum of sentences inflicted upon the appellant under all the above charges are reduced from death sentence to life imprisonment whereas the amount of compensation and fine shall remain intact. However, all other sentences shall remain intact and run concurrently by extending him the benefit of section 382-B, Cr.P.C. With this modification in the quantum of sentence, instant appeal stands dismissed. Capital Sentence Reference is answered in the negative. The sentences of death are not confirmed. MH/A-68/L Order accordingly.