P L D 1985 Lahore 520 (PLP)

Pir S. A. Rashid for Appellants. Saleem Shad for the State. Roshan All Sindhu for the Complainant. Date of hearing : 26th February, 1985. JUDGMENT Wakeel Shah and Mahboobul Hassan Shah, two brothers, were convicted under section 302/34, P. P. C. for the murder of their sister Mst. Sughran and Shafi Muhammad. Both were sentenced to life imprisonment with a fine of Rs. 5,000 each, in default to undergo 6 months R. I. on each count and compensation of Rs. 5,000 each on the IInd Court. Appeal of the convicts and the connected revision petition filed by Fazal Muhammad informant petitioner for the enhancement of sentence and compensation are before me.

2. About 8/9 months before the occurrence in this case Mst. Sughran was abducted by Shafi Muhammad deceased. About 15-20 days before the occurrence, the two came back to their village Manik and started living there. According to the prosecution, the two were.-engaged to, be married by their parents but after the death of Mst. Sughran's father 'her brothers refused to marry their sister to Shafi, who later abducted her. This was the motive for the crime.

3. At 2-00 a.m. on 19-5-1982, the two accused armed with Carbin and a '12 bore pistol went to the house of Shafi and shot dead both their sister and Shafi, thereafter, they fled away. The occurrence was witnessed by Shafi's maternal uncle namely Fazal Muhammad and his sister 1lst. Kashmiri, who had slept in the same house. P. Ws. Zulfiqar alias Bhola, Sher Muhammad and Ghaffar Khan had also reached the spot when the accused were still firing at the two deceased but they were not produced. P. W. Fazal Muhammad, on his way to Police Station, met with P. W. 14 Hameed Ahmad S. 1. at the bus stand Pajan and made statement Exh. P. J. to him at 7-00 a.m. the same morning on the basis of which formal F. I. R. was registered at Police Station City Rai Wind at 7-30 a.m. which is at a distance of 5 miles from the place of occurrence. The S. I. went to the spot, prepared the necessary documents, sent the dead bodies for their postmortem examination. He also took into possession six crime empties which were made into a sealed parcel vide Memo. Exh. P. G. P. W. 6 Dr. Muhammad Anis Sheikh, Medicolegal Surgeon, Punjab, held the autopsy on 20-5-1982 at 11-00 a.m. on the dead body of Mst. Sughran and found four fire-arm wounds on her injuring her breasts, left fore-arm and back and right mid chest. The doctor observed two contusions one on the skull and the other on the shoulder. The fire-arm injuries had caused fracture of the ribs. Lung and the heart were perforated. The same day autopsy was held on the dead body of Shafi Muhammad and the doctor found 14 injuries on it out of which 12 were caused by a fire-arm, the rest with blunt weapon. Death was caused due to injury to brain causing haemorrhage and shock.

4. P. W. 12 Bashir Ahmad, S. H. O., P. S. Rai Wind also investigated the ease. On 21-5-1982, be arrested Wakeel Shah accused and on the following day Mahboobul Hassan was arrested, who led to the recovery of gun P. 8 on 25-5-1982 from his house. It was made into a sealed parcel vide memo. Exh. P. H. Same day Wakeel Shah led to the recovery of Carbin P.

9. It was taken into possession vide memo. Exh. P. I. After completing the investigation, the accused were sent up for trial.

5. At the trial, both accused denied guilt but not the occurrence. They took up the plea of grave and sudden provocation and said that they went to recover their sister from the house of Shafi who had abducted her but as they reached there they found him in a compromising position with her, they lost self control and fired indiscriminately at them. They explained that they carried the weapons with them for self-defence. After the occurrence, they went to the police station for making a report but were arrested there. Both accused led no evidence in defence.

6. Trial Court did riot accept the plea of grave and sudden provocation. It came to the conclusion that it was a pre-meditated attack by both accused who after midnight went armed into the house of the deceased.

7. Criticizing the finding learned counsel for the appellants argued that there was enough evidence to show that the appellants had acted under grave and sudden provocation and that the two eye-witnesses had in fact not seen the occurrence. Their presence in the house of the deceased was a doubtful matter. Next contended that knowing that the accused had acted under grave and sudden provocation, the prosecution witnesses have tried at the trial for the first time to make such improvements which would negative the defence version i.e. in the F. I. R. the informant had said that Shaft had abducted the sister of the appellants but at the trial for the first time he mentioned that Shafi had married her. Further, P. W. Mst. Kashmiri, sister of Shafi deceased for the first time said at the trial that the accused had taken Rs. 8,000 from Shafi and wanted some more money which he refused to pay, upon which they attacked him. This was not her case before the police. No doubt, the witnesses have made these improvements but the real question is that both accused knew that their sister had been abducted by Shafi and they have been trying for her recovery. I, however, do not believe P. W. 12 Bashir Ahmad, S. H. O.'s statement that the accused? had stopped him from registering the abduction case against Shafi. It may have been that the S. H. O. on his own did not register the case, therefore, they made applications to higher authorities about the abduction of their sister. Under these circumstances, it would not be a sudden matter. P. W. Fazal Muhammad for the first time produced the Nikahnama under cross examination. According to this document, Mst. Sughran's Nikah was performed with Shafi on 11-9-1981. True, the Nikahnama was not produced by the prosecution in time before the police or even when the trial commenced. Moreover, it was not duly proved. P. W. Fazal Ahmad claimed to have given ii to the police but the Investigating Officer contradicted him. There circumstances do not inspire confidence in their statements. There is also nothing to show that the appellants had stopped the Investigating Officer from registering the abduction case. On the contrary they made applications to higher authorities for redress. How could they ask the Investigating Officer not to register the case. The position taken up by the Investigating Officer reflects adversely on his conduct. By not registering the case when the appellants reported the commission of a cognizable offence, the Investigating Officer not only failed in performing his duty, he was in a way responsible for the offence in this case. Had he acted in time, the appellants in all probability would not have taken the law in their own band. However, the irresponsible conduct of the Investigating Officer did not justify the killing by the appellants. They went armed at dead of night to the house of the deceased and made a premeditated attack on the two deceased. This, therefore, did not entitle them to the benefit of exception. I do not see any force in this appeal. Appellants' conviction and sentence of imprisonment for life are maintained. In view of the hard circumstances of this case, the sentence of fine is reduced to Rs. 25 on each count in default each to undergo one week R. I. The order as to compensation is set aside. Before parting with this judgment, I deem it fit to mention that Courts cannot pass a lesser sentence than imprisonment for life in view of the mitigating circumstances of a murder case. In hard cases like the present one, the power of further reduction in sentence by way of remission lies with the Government only. M. A.K.???????? Order accordingly, Pir S. A. Rashid for Appellants. Saleem Shad for the State. Roshan All Sindhu for the Complainant. Date of hearing : 26th February, 1985. Wakeel Shah and Mahboobul Hassan Shah, two brothers, were convicted under section 302/34, P. P. C. for the murder of their sister Mst. Sughran and Shafi Muhammad. Both were sentenced to life imprisonment with a fine of Rs. 5,000 each, in default to undergo 6 months R. I. on each count and compensation of Rs. 5,000 each on the IInd Court. Appeal of the convicts and the connected revision petition filed by Fazal Muhammad informant petitioner for the enhancement of sentence and compensation are before me.

2. About 8/9 months before the occurrence in this case Mst. Sughran was abducted by Shafi Muhammad deceased. About 15-20 days before the occurrence, the two came back to their village Manik and started living there. According to the prosecution, the two were.-engaged to, be married by their parents but after the death of Mst. Sughran's father 'her brothers refused to marry their sister to Shafi, who later abducted her. This was the motive for the crime.

3. At 2-00 a.m. on 19-5-1982, the two accused armed with Carbin and a '12 bore pistol went to the house of Shafi and shot dead both their sister and Shafi, thereafter, they fled away. The occurrence was witnessed by Shafi's maternal uncle namely Fazal Muhammad and his sister 1lst. Kashmiri, who had slept in the same house. P. Ws. Zulfiqar alias Bhola, Sher Muhammad and Ghaffar Khan had also reached the spot when the accused were still firing at the two deceased but they were not produced. P. W. Fazal Muhammad, on his way to Police Station, met with P. W. 14 Hameed Ahmad S. 1. at the bus stand Pajan and made statement Exh. P. J. to him at 7-00 a.m. the same morning on the basis of which formal F. I. R. was registered at Police Station City Rai Wind at 7-30 a.m. which is at a distance of 5 miles from the place of occurrence. The S. I. went to the spot, prepared the necessary documents, sent the dead bodies for their postmortem examination. He also took into possession six crime empties which were made into a sealed parcel vide Memo. Exh. P. G. P. W. 6 Dr. Muhammad Anis Sheikh, Medicolegal Surgeon, Punjab, held the autopsy on 20-5-1982 at 11-00 a.m. on the dead body of Mst. Sughran and found four fire-arm wounds on her injuring her breasts, left fore-arm and back and right mid chest. The doctor observed two contusions one on the skull and the other on the shoulder. The fire-arm injuries had caused fracture of the ribs. Lung and the heart were perforated. The same day autopsy was held on the dead body of Shafi Muhammad and the doctor found 14 injuries on it out of which 12 were caused by a fire-arm, the rest with blunt weapon. Death was caused due to injury to brain causing haemorrhage and shock.

4. P. W. 12 Bashir Ahmad, S. H. O., P. S. Rai Wind also investigated the ease. On 21-5-1982, be arrested Wakeel Shah accused and on the following day Mahboobul Hassan was arrested, who led to the recovery of gun P. 8 on 25-5-1982 from his house. It was made into a sealed parcel vide memo. Exh. P. H. Same day Wakeel Shah led to the recovery of Carbin P.

9. It was taken into possession vide memo. Exh. P. I. After completing the investigation, the accused were sent up for trial.

5. At the trial, both accused denied guilt but not the occurrence. They took up the plea of grave and sudden provocation and said that they went to recover their sister from the house of Shafi who had abducted her but as they reached there they found him in a compromising position with her, they lost self control and fired indiscriminately at them. They explained that they carried the weapons with them for self-defence. After the occurrence, they went to the police station for making a report but were arrested there. Both accused led no evidence in defence.

6. Trial Court did riot accept the plea of grave and sudden provocation. It came to the conclusion that it was a pre-meditated attack by both accused who after midnight went armed into the house of the deceased.

7. Criticizing the finding learned counsel for the appellants argued that there was enough evidence to show that the appellants had acted under grave and sudden provocation and that the two eye-witnesses had in fact not seen the occurrence. Their presence in the house of the deceased was a doubtful matter. Next contended that knowing that the accused had acted under grave and sudden provocation, the prosecution witnesses have tried at the trial for the first time to make such improvements which would negative the defence version i.e. in the F. I. R. the informant had said that Shaft had abducted the sister of the appellants but at the trial for the first time he mentioned that Shafi had married her. Further, P. W. Mst. Kashmiri, sister of Shafi deceased for the first time said at the trial that the accused had taken Rs. 8,000 from Shafi and wanted some more money which he refused to pay, upon which they attacked him. This was not her case before the police. No doubt, the witnesses have made these improvements but the real question is that both accused knew that their sister had been abducted by Shafi and they have been trying for her recovery. I, however, do not believe P. W. 12 Bashir Ahmad, S. H. O.'s statement that the accused? had stopped him from registering the abduction case against Shafi. It may have been that the S. H. O. on his own did not register the case, therefore, they made applications to higher authorities about the abduction of their sister. Under these circumstances, it would not be a sudden matter. P. W. Fazal Muhammad for the first time produced the Nikahnama under cross examination. According to this document, Mst. Sughran's Nikah was performed with Shafi on 11-9-1981. True, the Nikahnama was not produced by the prosecution in time before the police or even when the trial commenced. Moreover, it was not duly proved. P. W. Fazal Ahmad claimed to have given ii to the police but the Investigating Officer contradicted him. There circumstances do not inspire confidence in their statements. There is also nothing to show that the appellants had stopped the Investigating Officer from registering the abduction case. On the contrary they made applications to higher authorities for redress. How could they ask the Investigating Officer not to register the case. The position taken up by the Investigating Officer reflects adversely on his conduct. By not registering the case when the appellants reported the commission of a cognizable offence, the Investigating Officer not only failed in performing his duty, he was in a way responsible for the offence in this case. Had he acted in time, the appellants in all probability would not have taken the law in their own band. However, the irresponsible conduct of the Investigating Officer did not justify the killing by the appellants. They went armed at dead of night to the house of the deceased and made a premeditated attack on the two deceased. This, therefore, did not entitle them to the benefit of exception. I do not see any force in this appeal. Appellants' conviction and sentence of imprisonment for life are maintained. In view of the hard circumstances of this case, the sentence of fine is reduced to Rs. 25 on each count in default each to undergo one week R. I. The order as to compensation is set aside. Before parting with this judgment, I deem it fit to mention that Courts cannot pass a lesser sentence than imprisonment for life in view of the mitigating circumstances of a murder case. In hard cases like the present one, the power of further reduction in sentence by way of remission lies with the Government only. M. A.K.???????? Order accordingly,