1999 PLP 7 (MLD)

RAJA MUHAMMAD KHURSHID,J.

'The appellants/convicts namely Ashiq Hussain, Mukhtar Hussain and Mulazim Hussain all three brothers were arraigned and tried on the charges under sections 302/307/34, P.P.C., for an occurrence which took place on 25-I-1381 at 'Jhaki Deegarwela' in ,the house of Mst. Zainab Bibi (P.W. 13) situated in village. Shah Alam, Police Station Darya Khan in which Maherban son of Ghulam Hassan and Mst. Bano daughter of Ghulam Hassan were murdered whereas, -Mst. 7.ainab was subjected to murderous assault.

2. According to the F.I.R. lodged by Falak Sher (P.W. 12); all the three appellants/convicts alongwith another person namely Shah Jahan entered the house of Mst. Zainab Bibi P.W., at about 'Jhaki De`garW3la' on the day of occurrence while all three were armed with .12 bore guns. They challenged the aforementioned deceased persons and also Mst. Zainab Bibi P.W., that they would teach them a lesson for declining to divorce Mst. Fatima Bibi, sister of the appellants and also refusing custody of Irshad alias Chhaddu, a daughter of Mulazim Hussain accused. Simultaneously, Ashiq Hussain and Mukhtar Hussain appellants fired at Maherban deceased, whereas, Mulazim Hussain and Shah Jahan aforementioned (absconding accused` fired at Mst. Bano. Yet another fire was made by Mulazim Hussain on Mst. Zainab Bibi P.W. All the three victims -escaped into a nearby -Kotha' to order to save their lives and bolted the door from inside. All the three appellants after crushing the door into pieces forcibly entered the 'Kotha , whereas, the aforementioned Shah Jahan continued firing while standing outside. The complainant alongwith Muhammad Nawaz son of Ghulam Hussain and Alam Sher son of Naik Muhammad who were already present in the house of Mst. Zainab Bibi P.W, came new the door of the 'Kotha'. They saw that Ashiq Hussain and Mukhtar Hussain fired at Maherban deceased, whereas, Mulazim Hussain fired at Mst. Bano deceased and injured Mst. Zainab Bibi P.W., from close range. All three of them fell down. The witnesses implored all the assailants in the name of Allah and Holy Prophet (p.b.u.h) whereupon, they left after committing the occurrence. Mst. Bano and Meharban deceased succumbed to the injuries at the spot, whereas, Mst. Zainab Bibi was taken to the hospital while seriously injured.

3. The appellants were tried by Mr. Zia-ur-Rehman, the then learned Additional Sessions Judge-I, Bhakkar and were convicted vide judgment dated 16-1-1993 under section 302/34, P.P.C. for committing the murder of Maherban and Mst. Bano and were sentenced to death on each count. They were further convicted and sentenced under section 307/34, P.P.C. to five years' R.I. and a fine of Rs.5,000 each, failing which to undergo one year R.I. for committing murderous assault upon Mst. Zainab Bibi P.W.

4. Learned counsel for the appellants has submitted that the prosecution had examined only two eye-witnesses namely Falak Sher and Mst. Zainab Bibi who were closely related inter se and were also close relatives of the deceased persons; that no independent witness was produced to prove the prosecution case; that the appellants were falsely implicated on account of enmity between the two sides although the murder was committed during night by some unknown assailant; that the recovery of weapons of offence i.e. .12 bore gun from each of the appellants was allegedly of no avail as those were effected after about ten years of the occurrence and were actually placated upon them by the prosecution allegedly to provide corroborative evidence to the eye-witnesses; that the only recovery witness namely Aurangzeb (P.W.4) was also alleged to be an interested witnesses to the aforesaid recoveries; that the blood-stained earth was allegedly not recovered from the first place of firing although it was collected from the ' Kotha' where the murder had taken place; that the motive in this case was also not proved and remained shrouded in mystery throughout.

5. Learned counsel for the State, however, submitted that the prosecution had been successful to prove its case against all the accused persons by examining the most natural witnesses. In this respect, it was contended that although Falak Sher and Mst. Zainab Bibi P.Ws., were closely related being brother and sister inter se but they were at the same time, most natural witnesses of the occurrence as they were present in the house where murder had taken place. Out of them Mst. Zainab Bibi was seriously injured due to the firing made by the accused upon her during awful transaction in which her son Maherban and daughter Mst. Bano were done to death by the appellants/convicts right in front of her eyes. It was, therefore, alleged that though there may be enmity between the two sides but there was no scope of substitution in this case. The eye-witnesses being closely related to the deceased persons would not substitute innocent persons for the actual killers, in fact they would name the genuine killers in order to take revenge of precious lives of their close relatives who perished within their view. Lastly, it was contended that the conduct of the appellants/convicts shows that they remained absconders after commission of murder for about ten years and were ultimately arrested in September/October of 1991 and led to the recovery of weapons of offence which allegedly provide further corroboration to the eye-witnesses. The motive was also alleged to be clear because the appellants felt aggrieved that their sister was not being divorced, whereas, custody of daughter of Mulazim Hussain appellant was also not given to him. In this respect, there was a litigation between the two sides over the custody of tile child which provided a strong motive for the commission of murder by the appellants/convicts. It was, therefore, urged that all the three appellants/convicts acted in cruel and heartless manner to finish the-deceased persons and to injure Mst. Zainab Bibi P. W. after slashing the door of ,the room in which the victims had taken the shelter to save their lives. The convictions and sentences, passed upon the appellants/convicts were, therefore, supported by the learned prosecutor.

6. We have considered the submissions made at the Bar from both the sides. First of all, it is to be seen whether the prosecution has been successful to prove its case beyond any reasonable doubt against the appellants/convicts. In this regard, the statement of two eye-witnesses examined at the trial namely Falak Sher (P.W.12) and Mst. Zainab Bibi (P.W.13) are very relevant. The presence of Falak Sher in the house of his sister Mst. Zainab Bibi was not somewhat unnatural. There is nothing unusual if a brother visits the house of his sister and on that occasion, the unfortunate tragedy is enacted. His presence in the house of his sister would be, therefore, very natural in the given situation. Admittedly, there were family disputes between the two sides because of exchange of marriages which were .apparently not successful. The appellants' sister was married with the deceased Maherban, whereas, sister of deceased was married with Mulazim Hussain accused which ultimately led to be litigation for the custody of a daughter of Mulazim Hussain accused who was residing with her mother Mst. Bano. Since all the appellants/convicts were interested to get divorce of their sister. Fatima who was wedded to Maherban deceased and on his refusal, they had rightly nursed grudge to finish him and his family members particularly when Mst. Bano had refused to give custody of her daughter to Mulazim Hussain accused. It is, thus, obvious that the appellants/convicts had a clear motive for attacking the complainant party. The statement of Mst. Zainab Bibi (P. W.13) is very valuable to prove the case of the prosecution. According to the medico-legal report, prepared by P.W.8 Dr. Muhammad Hussain Naqvi, she sustained six injuries out of which injuries Nos. l and 2 were grievous while injuries Nos.3 and 4 were dangerous. The patient was in critical condition. Her pulse and B.P. were not palpable. She suffered gunshot injuries which were inflicted within the duration of six hours tallying with the time of occurrence and also the weapon of offence used by the appellants. These injuries cannot be considered to be self-inflicted by any stretch of imagination. Hence, presence of Mst. Zainab Bibi cannot be doubted in any manner nor it can be expected that she will leave the actual assailants scot-free and would involve the appellants/convicts as a scape-goat for the bloodshed of her kith and kin, whom she bad seen dying and had also become herself a victim of the assailants. Her evidence, therefore, deserves due weight particularly when other eye-witnesses also supported her version in material details. The recovery of the weapons of offence is not important in this case as the appellants/convicts remained absconders for over ten years. In that period, it was not possible that they would have kept those weapons of offence safely so as to be used as evidence against them. Although the Investigating Officer of this case had expired at the time of trial but his statement was recorded while he was alive when proceedings under section 512, Cr.P.C. were taken against the appellants/convicts in their absconsion. The said statement was placed on record as Exh.PZ which described the clear picture of investigation thereby linking the appellants/convicts with the occurrence. He also contended that Mst. Bano had made an application to the S.P., Mianwali (Exh.PO/Exh/PZ) on 25-1-1981 expressing danger from Mulazim Hussain accused as he was unsuccessful to get custody of his daughter from the Civil Court. These circumstances militate against the appellants/convicts and go in support of eye-witnesses regarding the ocular account of occurrence narrated by them. The absconscion of the appellants/convicts for over ten years after the commission of tragic occurrence is a strong circumstance to corroborate eye-witnesses that, in fact, they were the actual killers of the deceased persons and had committed murderous assault upon Mst. Zainab Bibi P.W.

7. The nutshell of the jabove discussion is that the prosecution has been successful to prove its case against all the three accused beyond any reasonable doubt.

8. Before parting with the judgment, .it will be worthwhile to discuss the defence taken by the accused during the trial. It was in fact a mere denial with the plea that the occurrence was committed by the unknown assailant during the darkness of night but the appellants/convicts were roped in due to family disputes. In defence, Wazir Khan was examined as D.W.

1. He is the person who was cited as a prosecution witness but was given up by the complainant side on the ground that he was won-over. If that is the situation and particularly when he had supported the prosecution version by becoming a prosecution witness and later on resiled from it would take him no where except that he would lose the value of his testimony. He has given a different story that the occurrence was committed by unknown persons and that the appellants were wrongly implicated in the case. His falsehood stood exposed when he was put a question during the cross-examination that did he appear before the learned Additional Sessions Judge, Bhakkar on 21-5-1984 in this case to which he replied in negative. The learned trial Judge gave a note that the record of the previous file was perused and the statement of this witness was found to have been recorded on 21-5-1984 on oath as P.W.9. After getting conscious of the note, the witness, however, deposed that he had attended the Court on that day and that he knew that the present case had been registered against the accused/appellants. In those days, the accused were not appearing before the Court and that would have emboldened the witness to appear and make statement but when he faced the accused/appellants at the present trial, he took a somersault in their favour be exonerating them. This shows the psychology of non-aligned witnesses who being afraid of the criminals do not dare to speak truth in their face when they are brought as witnesses in the witness-box. It is perhaps for the reason that nobody would like to involve himself in the bloody affairs of others at the risk of his own safety and security of his kith and kin. Hence this witness while appearing in defence has no value as compared to an injured witness whose presence at the spot can never be doubted nor it can be expected that she will falsely depose to involve such person who had done nothing but had killed her warm-blooded relations. Even according to the statement of Ashiq Hussain appellant/accused under section 342, Cr.P.C., the truth perforated from his tight lips when he stated that actually, he had entered the house of Maherban deceased alongwith Mukhtar Hussain co-accused for taking shelter when the police was chasing them. However, they had allegedly left the house of the deceased but their enemies broke open the door of the ' Kotha' of the complainant and killed the deceased persons, besides injurying Mst. Zainab Bibi P.W. Taking the statement of the aforesaid accused on its face value, it does not appeal to the reasons that having bad-blood with the complainant side, they would enter their house with innocent intention in order to take shelter from the local police. Perhaps guilty conscience had spoken truth to admit that they had actually entered the house of the deceased but for different purpose. Likewise, statement of Mukhtar Hussain shows that he was involved by the local police allegedly in many false cases with the connivance of his opponents and that he alongwith Ashiq Hussain had left for Karachi lest they may be killed in some police encounter. However, it was denied that they had absconded. Likewise, Mulazim Hussain also contended that he vas involved in the case falsely due to series of cases between him and his deceased wife Mst. Bano which compelled him to leave for Karachi in order to get rid of the litigation and also to save himself and his brothers from enemies.

9. It follows from the above that the appellants/convicts were involved in many criminal cases and were of desperate nature. Their temperament. was clearly depicted during the transaction when they crashed the door of 'Kotha' of Mst. Zainab Bibi after giving them hot pursuit in order to kill them like sitting ducks. Hence, such like heartless, dangerous and desperate criminals need no leniency under the law once the offence is proved against them.

10. In view of our above discussion, we come to a well thought out conclusion that the prosecution has been successful to prove its case against all the appellants/convicts beyond any reasonable doubt. They have been rightly convicted and sentenced under section 302/34, P.P.C. by the learned Trial Court. The appeal being merit less is dismissed and the death sentence given to the appellants/convicts for the murder of Maherban and Mst. Bano deceased is confirmed on each count. The learned trial Court did not award any compensation as was required by section 544-A, Cr.P.C. nor did advance any reason for not doing so. During the hearing, we have felt that the appellants/convicts were not in a position even to engage their own counsel and a State Counsel vas appointed to conduct this appeal on their behalf. Their financial position being so poor, we have come to the conclusion that the provisions contained to section 544-A, Cr.P.C. would not be attracted so as to award compensation to the heirs of the deceased persons in the given situation. The conviction and sentence awarded under section 307/34, P.P.C. for causing murderous assault upon Mst. Zainab Bibi P.W., is also upheld. The fine off Rs.5,000 to each of the appellants, if recovered, shall be payable as compensation to the injured P.W., namely Mst. Zainab Bibi in view of the provisions contained in section 544-A, Cr.P.C.

11. In view of above decision, Murder Reference No.27 of 1993 is also answered in positive and the death sentence as aforesaid awarded to each of the appellants/convicts on each count for the murder of Maherban and Mst. Bano deceased is confirmed. N.H.Q./A-315/L Appeal dismissed.