1999 PLP 1795 (YLR)

KH. MUHAMMAD SHARIF, J.‑‑ We intend to dispose of Murder Reference No. 12 of 1998 and Criminal Appeal No. 39 of 1998 filed by Muhammad Iqbal and Muhammad Riaz appellants who were sentenced to death by Special Judge Anti- Terrorism, Bahawalpur‑1, for the murder of Muhammad Abbas deceased. They were convicted and sentenced on 11‑9‑1998 as follows:‑‑‑ Both the appellants were awarded death sentence under section 302‑B/34, P.P.C., read with section 7 of A.T. Act, 1997. They were also awarded life imprisonment under section 364/34. P.P.C., with a fine of Rs.10,000 each, in default thereof 6 months' R.I.

2. The occurrence in this case took place on 11‑6‑1998 at 11‑00 a.m. in the bungalow of learned Additional Sessions Judge, Chishtian and the matter was reported to the police on 18‑6‑1998 at 11‑30 a.m. vide F. I. R. Exh.P.E.

3. Brief facts of the case as narrated by the complainant Muhammad Razzaq, through complaint Exh.P.E., are that on 11‑6‑1996 he came to see his brother Muhammad Abbas, Naib Qasid of Additional Sessions Judge, Chishtian, the accused Muhammad Iqbal alias Bali and Muhammad Riaz also came at the residence of learned Additional Sessions Judge, Chishtian in his presence. His brother Muhammad Abbas (deceased) had lent a sum of Rs.10,000 to Muhammad Iqbal accused/ appellant. When deceased demanded his borrowed money the accused Muhammad Iqbal replied that he had forgotten the amount at home and he offered the deceased to accompany with him to his home and they would pay the amount. The brother of the complainant did not return back till evening and they inquired from the inmates of the accused/appellants, they replied that Muhammad Abbas deceased had not come here. On 18‑6‑1998 Muhammad Razaq complainant reported the matter to the police. On 19‑6‑1998 dead body of Muhammad Abbas deceased was recovered at the instance of accused Muhammad Iqbal.

4. The motive behind this occurrence was that the appellants had suspicion that Muhammad Abbas deceased had developed illicit relations with their sister Mst. Sughran.

5. After the registration of case the investigation started. Muhammad Iqbal appellant was produced in the Police Station by Ahmad Ali and Muhammad Yousaf (P.Ws.) on 19‑6‑1998 before Noor‑ul‑Haq, Sub‑Inspector. Muhammad Iqbal appellant had also made an extra judicial confession before these P.Ws. that he alongwith his brother Muhammad Riaz had murdered Muhammad Abbas (deceased). Muhammad Iqbal appellant got recovered dead body of Muhammad Abbas which was packed in two bags and the same was taken into possession vide memo. Exh.P.H. He also led to the recovery of motorcycle Suzuki, P.6 with a driving licence P.7, copy of national identity card P.8. Both P.7 and P.8 were wrapped in a shopper and the same were taken into possession vide memo. Exh.P.M. on 26‑6‑1998, Muhammad Riaz appellant was arrested on 21‑6‑1998 by Naseer Mehmood, Inspector P.W.9. During his physical remand on 23‑6‑1996, while in police custody, he led to recovery of "Kassi" P.9, empty bottle of kerosine oil P. 10 and 'Chhurri' P. 11 from his residential home. Chhurri was made into a sealed parcel. All these three articles were taken into possession vide memo. Exh.P.N.

6. In the instant case, prosecution in order to prove its case produced 9 witnesses in all. Thereafter, statements of both the appellants under section 342, Cr.P.C., were recorded. Muhammad Iqbal appellant had filed a written statement in reply to question No.17, according to which he had seen his sister Mst. Sughran Bibi having committing sexual intercourse with the deceased. On seeing Muhammad Iqbal appellant, the deceased tried to run away but he caught hold of Muhammad Abbas deceased and throttled his neck under grave and sudden provocation, while Muhammad Riaz appellant had stated in his statement under section 342, Cr.P.C., in reply to question No. 18 that he had been falsely involved in this case being brother of Muhammad Iqbal appellant. There is evidence of last seen given by Muhammad Razzaq complainant (P.W.3) to the effect that Muhammad Abbas deceased was taken by both the appellants from the house of the learned Additional Sessions Judge, Chishtian where Muhammad Razzaq was working as a peon. Then there is also evidence of Muhammad Rafique son of Nazar Muhammad, who was examined as P.W.6, who has stated before the police and before the trial Court that he had seen the deceased alongwith the appellants on a motorcycle on 11‑6‑1998. He is also a witness of recovery of motorcycle, driving licence and national identity card of the deceased Muhammad Abbas, which were got recovered by Muhammad lqbal appellant. Then there is evidence of Extra‑Judicial Confession and recovery of dead body on the pointation of Muhammad Iqbal coming from the mouth of Noor Ahmad P. W .4 and Ahmad Ali P. W .5. Muhammad Iqbal and Muhammad Riaz both the appellants approached Noor Ahmad and asked him to get pardon from the complainant. They made this extra‑judicial confession about the murder of the deceased separately. Muhammad Iqbal appellant was produced 'by Noor Ahmad P.W. while Muhammad Riaz appellant ran away from there.

7. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants and submits that there is no eye‑witness in this case. It was an unwitnessed occurrence, that evidence of extra‑judicial confession and last seen is weak type of evidence, that Muhammad Razzaq P.W. is real brother of deceased Muhammad Abbas. That there is no evidence against Muhammad Riaz appellant, that he even did not get recovered the dead body of the deceased. We have intentionally not mentioned the places which were pointed out by both the appellants where they had murdered the deceased and where they had burnt the dead body of the deceased because the same are inadmissible under the law. The learned counsel for the appellants lastly contends that it was only Muhammad Iqbal who committed the murder of Muhammad Abbas deceased under grave and sudden provocation and he requests that Muhammad Riaz appellant be acquitted and the sentence of death awarded to Muhammad‑ Iqbal be converted into section 302(c), P.P.C., and he may be awarded only sentence of 3 to 5 years.

8. On the other hand, learned counsel for the State has supported the judgment of the learned trial Court and requested that the conviction and sentence awarded to the appellant be maintained.

9. We have heard the learned counsel for the parties and have also gone through the record. In the instant case, there was no previous background of enmity between the complainant party and the appellant. There was no question of false implication in the instant case. Both the appellants were also distantly related to the complainant and the deceased. There is also evidence of last seen which has been furnished by Muhammad Razzaq and Muhammad Rafique P.Ws. who have no animus whatsoever against the appellants. Despite lengthy cross‑examination on these witnesses nothing could be brought on record in favour of the appellants by their learned counsel. Then there is evidence of last seen, extra‑judicial confession, recovery of 'Kassi' from Muhammad Riaz appellant and also recovery of empty bottle of kerosine oil and knife (Chhurri) from him. There is also evidence of extra judicial confession against both the appellants which came out from the mouth of Noor Ahmad and Ahmad Ali P.W.4 and P.W.5 respectively. Then there is evidence of recovery of dead body on the pointation of Muhammad Iqbal appellant. Muhammad Iqbal appellant also got recovered motorcycle P.6 alongwith its driving licence and national identity card of the deceased which are P.7 and P.8. The evidence of last seen is corroborated by evidence of extra -judicial confession and the recoveries got effected by both these appellants as stated by us above. In our view the prosecution has proved its case for the murder of Muhammad Abbas against both the appellants. In the instant case, after taking away the deceased Muhammad Abbas with them both the appellants, according to the extra judicial confession, killed the deceased, then cut his dead body into pieces and thereafter, set his dead body on fire. The manner in which the deceased was killed, the said task could not be completed by one person and the same could at least be completed by two persons but one thing which we want to state here is that two motives are mentioned in the F.I.R. one was that the deceased had given a loan of Rs.10,000 (ten thousand) to Muhammad Iqbal appellant but he did not return according to the F.I.R., and thereafter, on the pretext of giving the same they took Muhammad Abbas deceased with them. As far as this part of motive is concerned, we do not believe this because the deceased was only a peon and in this age of deafness we do not think that it is believable that Rs.10,000 (ten thousand) were given by the deceased to Muhammad Iqbal as a loan. The other motive given in the F.I.R., was that the appellants had a suspicion against the deceased that he had developed illicit relations with their sister Mst. Sughran, although Muhammad Iqbal, appellant had taken the plea of grave and sudden provocation on the ground that he had seen his sister committing sexual intercourse with the deceased and he alone killed the deceased. It finds support from the motive given by the complainant in the F.I.R., that there was illicit relations between the deceased and the sister of the appellants but we think that both the parties did not approach the Court with clean hands. As we have held earlier, that the manner in which the deceased was killed was not a job of one person. In our view the deceased was killed by both the appellants who are real brothers inter se because they had suspicion and strong suspicion that there were illicit relations between the deceased and Mst. Sughran, the real sister of the appellants. It has come on record during the evidence that Muhammad Iqbal had asked the complainant to desist Muhammad Abbas deceased from doing this act of illicit relations. Furthermore, the intensity and gravity of killing the deceased in such a brutal and cruel manner also shows the appellants' hatred against the deceased that can only be visualised in such like family honour cases.

10. We are of the considered opinion that both the appellants had killed the deceased due to their family honour. Keeping in view the circumstances of the case, death sentence awarded to the appellants is not confirmed and the murder reference is replied in the negative. The conviction awarded to the appellants under section 302(b), P.P.C. is maintained but the sentence is converted into life imprisonment. Both the appellants are further directed to pay fine of Rs.25,000 (twenty‑five thousand) each to the legal heirs of the deceased or in default thereof to undergo six months' R.I. Benefit of section 382‑B, Cr.P.C., is also granted to both the appellants. Sentences under section 364/34, P.P.C., awarded to the appellants are set aside because we do not think that it was a case of abduction.

11. With the abovesaid modification the Murder Reference and Criminal Appeal are disposed of. Death sentence awarded to the appellants is not confirmed. N.H.Q./M‑1066/L Order accordingly.