1989 PLP 636 (SCMR)

JAVID IQBAL, J.‑‑,This appeal has been filed by Muhammad Afzal aged 61 years and his son Muhammad Khan aged 26 years against their conviction and sentence which were upheld by the judgment of the Lahore High Court, Rawalpindi Bench, dated 5 July, 1982. Both these appellants along with Mst. Hajran Bibi and Mst. Sharif Khatun both daughters of Muhammad Afzal appellant were tried for the murder of Shah Nawaz and his son Muhammad Yaqub for an offence under section 302/34, P.P.C. and the Additional Sessions Judge, Attock vide judgment, dated 16 August, 1980 convicted and sentenced them as follows: Muhammad Afzal and Muhammad Khan appellants were convicted under section 302/34, P.P.C. and each of them was sentenced to death whereas Mst. Hajran Bibi and Mst. Sharif Khatun although convicted under section 302/34, P.P.C. were sentenced to imprisonment for life each. Each of them was ordered to pay a fine of Rs.15,000 for each murder or in default to undergo two years' R.L. The High Court vide the impugned judgment gave the benefit of doubt and acquitted Mst. Hajran Bibi and Mst. Sharif khatun but maintained the conviction of Muhammad Khan under section 302, P.P.C. for causing the death of Shah Nawaz deceased and confirmed the sentence of death awarded to him. Similarly the conviction of both Muhammad Afzal and Muhammad Khan appellants was maintained under section 302/34, P.P.C. for causing the death of Muhammad Yaqub deceased and death sentence awarded to them was confirmed. Muhammad Afzal appellant was stated to be armed with a Sota whereas Muhammad Khan appellant‑ was stated to be armed with a gun.Mst. Hajran Bibi and Mst. Sharif Khatun were empty handed. The occurrence took place on 10 May, 1979 at Nimashanwela (about evening time) in front of a house of Dhok Jamal within the area of Mouza Dhurnal , Tehsil and District Attock at a distance of 14 miles from Police Station Lawa. The F.I.R. was lodged by Mst. Moondan Khatun PW5 widow of Shah Nawaz deceased and mother of Muhammad Yaqub deceased at 10‑30 p.m. on the same day and it was recorded by Nawazish Ali Kayani SI, SHO PW

9. There are three eye‑witnesses of the occurrence namely Mst. Moondan Khatun PW5, Fatch Khan PW6 nephew of Shah Nawaz deceased and cousion of Muhammad Yaqub deceased, and Mst. Khatun Bibi PW8 widow of a brother of Shah Nawaz deceased namely Mehr Khan. There was another eye‑witness namely Mst. Khatun Bibi wife of Ahmad Khan who was given up as won over. It may be pointed out at this stage that both the accused and the complainant parties are closely related. Muhammad Afzal appellant is real brother of Shah Nawaz deceased whereas his son Muhammad Khan appellant is first cousin of Muhammad Yaqub deceased. As has been stated above Mst. Moondan Khatun PW is the widow of Shah Nawaz deceased, Fateh Khan PW is nephew of Shah Nawaz deceased as well as Muhammad Afzal appellant being son of another brother of Muhammad Afzal appellant and Shah Nawaz deceased. Again Mst. Khatun Bibi,PW is a widow of yet another brother of Shah Nawaz deceased and Muhammad appellant namely Mehr Khan deceased. The motive for the crime as stated in the F.I.R. is that both the complainant and the accused parties being originally members of the same family had privately partitioned their property leaving a pathway which was left for the common use by all of them. According to the prosecution version Muhammad Afzal appellant and his family objected to the use of this pathway by Shah Nawaz deceased and his family and therefore they used to place thorny bushes on it so as to deprive them of its use and to keep it exclusively for their own use: 'Shah Nawaz deceased and other members of his family when using the pathway would remove such hindrances or cross over them. But on the fateful day Shah Nawaz and his son Muhammad Yaqub both deceased used the pathway by removing the thorny bushes. On this Muhammad Khan appellant armed with a gun, Muhammad Afzal appellant armed with a Sota and his two daughters Mst. Hajran Bibi and Mst. Sharif Khatun empty‑handed came to the nearby house of Shah Nawaz deceased in order to teach him and his family a lesson. Mst. Moondan Khatun PW tried to pacify them but was attacked by Mst. Hajran Bibi and Mst. Sharif Khatun who pulled her hair and felled her down. In the meantime her husband Shah Nawaz deceased and son Muhammad Yaqub deceased advanced forward in order to rescue her but Shah Nawaz deceased was fired at by Muhammad Khan appellant. The shot hit him on the chest and he died on the spot. On hearing the alarm Fateh Khan and Mst. Khatun Bibi were attracted to the scene of crime. At this stage Muhammad Afzal appellant shouted at Muhammad Khan appellant that he should also finish Muhammad Yaqub deceased. On hearing this Muhammad Yaqub deceased tried to run but was chased by Muhammad Afzal and Muhammad Khan appellants. Mst. Sharif Khatun and Mst. Hajran Bibi leaving behind Mst. Moondan Kbatun also followed them. Muhammad Yaqub deceased ran into the house of his uncle Ahmad Khan and bolted the door from inside. Thereupon Muhammad Khan appellant tried to break the door open but did not succeed in doing so. On this Muhammad Khan appellant raised a Lalkara to the other members of the accused party that they should set the house on fire. On this Mst. Sharif Khatun and Mst. Hajran Bibi picked up a Vahola from the courtyard of Ahmad Khan and climbed the roof of the house. They started making a hole in the roof of the room in which Muhammad Yaqub deceased had taken refuge. In the meantime Muhammad Afzal appellant ran towards his house and brought a tin of kerosine oil which was poured by Muhammad Afzal appellant through the hole in the roof. Thereafter, Muhammad Afzal appellant lighted a match stick and set the room on fire. Muhammad Yaqub deceased died inside the room of burns and suffocation due to smoke. Dr. Gul-e‑Naukhez Ghauri PW conducted the post‑mortem examination on the dead body of Shah Nawaz deceased and found on his person 12 injuries of entry and exit wounds on the chest region. According to his opinion the injuries were inflicted by the pellets of cartridge of a fire‑arm. Death was caused due to haemorrhage and shock which resulted from injuries to the lungs etc. These were sufficient to cause death in the ordinary course of nature. The same medical officer conducted post‑mortem examination on the dead body of Muhammad Yaqub deceased. The dead body was rigid, limbs and face were black with soot. The kerosine oil smell was coming from the clothes. Moustaches and eye‑lashes were partially burnt. The Shalwar was partially burnt along with white under‑shirt. The superficial skin was peeling off at various places on chest, abdomen, arm and leg. Death in his opinion was due to suffocation and inhaling of smoke which was sufficient to cause death in the ordinary course of nature. The recoveries in this case are not of much consequence and the prosecution case is based mainly on the ocular testimony supported by the medical evidence and the motive. The trial Court was of the view that the report of the occurrence was not lodged on the same night at 10‑30 p.m. but it was probably lodged the next morning. Even the High Court Judges were of the view that they were not satisfied that the F.I.R. was lodged at the time mentioned in it. So far as the motive is concerned it has been relied upon although the learned Judges of the High Court were of the view that it was improbable that the two young girls aged 21 years and 18 years respectively both unmarried would have gone along with their father and brother to commit the sort of offences which had been attributed to them. Thus, the Court arrived at the conclusion that the two girls could have not climbed the top of roof and to have dug out a hole therein with a Vahola. Consequently they were given the benefit of doubt and acquitted whereas the conviction and sentence of the present appellants were maintained and confirmed. Leave to appeal was granted in this case in order to examine the contentions of the learned counsel for the appellants to the effect that Muhammad Afzal appellant was stated to be armed with a Sota but no Sota injury had been found on anyone as he had not used the said Sota even according to the prosecution. The role attributed to him was of pouring down kerosine oil and setting the room on fire and that this role depended entirely on the role attributed to Mst. Hajran Bibi and Mst. Sharif Khatun who were stated to have dug a hole in the roof with a Vahola. The argument was that if the part ascribed to them was rendered doubtful then the part ascribed to Muhammad Afzal appellant could also not be held to be proved beyond reasonable doubt. It was further contended that the motive in this case could not be proved and that it was at the most a case of sudden provocation as there was no serious enmity between the parties and that it was reasonably probable that the matter had been aggravated due to a quarrel between the women‑folk involving Mst. Moondan Khatun PW on one side and the two daughters of Muhammad Afzal appellant on the other. Thus, in this background of events the sentence of death awarded to Muhammad Khan appellant was uncalled for. We have already pointed out that the motive of occurrence was a common path way which the accused party used to block by placing dry branches etc. on it and Shah Nawaz deceased and his family used to remove them. It appears that on the day of occurrence possibly a1ttle before the occurrence at Nimashanwela when the thorny bushes had been removed by the complainant side the accused party armed as stated above came to the house of the complainant side in order to teach them a lesson. According to the ocular testimony which is quite consistent on this point: when Shah Nawaz deceased came to rescue his wife, Muhammad Khan appellant fired at him and thus killed him. Therefore, it is evident that so far as Muhammad Khan appellant is concerned he had come to the spot armed with a gun and he had in fact fired a shot through it which killed Shah Nawaz deceased. So far as the ocular testimony is concerned it cannot be said that it is interested or is of chance witnesses. All the eye‑witnesses are closely related to both the sides being members of the same family and they reside also in the same locality. Thus, they had no motive to falsely implicate the members of the accused party. The only assertion of learned counsel for the appellants is that no previous serious enmity had existed between the parties and that the occurrence may have been a sudden flare up on account of a quarrel between the women folk and that therefore the awarding of death sentence particularly to Muhammad Khan appellant was not called for. We are not persuaded by the reasoning of the learned counsel in the light of the motive version. It is evident from the FIR that on the disputed pathway the accused party would place hindrances to deprive the complainant side from using it, and the complainant side would remove those hindrances. Eventually on the fateful day when the hindrances were removed the accused party decided to teach the complainant side a lesson. Muhammad Khan appellant came armed with a gun and used it leading to the death of Shah Nawaz deceased his uncle. So far as the part ascribed to Muhammad Afzal appellant is concerned he indeed did not cause any injury to any one with the Sota which he was carrying. However, we do not agree with the learned counsel that the role attributed to him with regard to pouring down the kerosine oil and then setting the room on fire in which Muhammad Yaqub deceased had found refuge was dependent on the role attributed to Mst. Hajran Bibi and Mst. Sharif Khatun. Both these girls were given the benefit of doubt by the High Court for the reason that they were unmarried young girls and they might have not done so whereas the Additional Sessions Judge had stated that in that part of the country to which these two girls belonged (being Awan) it was not uncommon for women‑folk to take part in the occurrences of the nature of the present case. It appears that when Muhammad Yaqub deceased had found refuge in the Kotha and had bolted the door from inside, he could not reopen the door and run out when the hole was being dug on the roof and when kerosine oil was being ignited because probably Muhammad Khan appellant was standing outside the door with gun. Even the High Court while maintaining the conviction of both the appellants and confirming death sentence awarded to each of them had found that it was not the job of a single man. The defence version to the effect that Shah Nawaz deceased had developed illicit relationship with his daughter‑in‑law namely wife of Muhammad Yaqub deceased and that Muhammad Yaqub deceased due to this reason had shot and killed his own father and afterwards committed suicide by throwing kerosene oil on his clothes and burning himself was absolutely improbable and rightly rejected for it was not supported by any evidence on record. Thus, it is obvious that the part ascribed to Muhammad Afzal appellant by the eye‑witnesses was correct as it finds support by the circumstantial evidence besides medical evidence and the motive version. In the light of the above discussion in our considered opinion no case is made out for interference in the impugned judgment of the Lahore High Court Rawalpindi Bench. As a result this appeal is dismissed. M.A.K/M‑702/S Appeal dismissed.