2006 SCMR 89 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This jail petition has been directed against the judgment, dated 30-4-2002 passed by a Division Bench of Lahore High Court, Lahore, whereby the appeal preferred by the petitioner against his conviction and sentence under section 302(b), P.P.C. read with section 449, P.P.C. was dismissed.

2. The petitioner was tried by the Special Court established under Anti-Terrorism Act, 1997 at Faisalabad for the charges under sections 302/449, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 for committing murders of Muhammad Afzal, Muhammad Asif, his real brothers, Mst. Muniran his mother and Mst. Rukhsana his sister on 6-9-2000 at 7 a.m. in Chak No.328/JB, in the area of Police Station Toba Tek. Singh, and on the conclusion of trial, was sentenced to death on four counts under section 302(b), P.P.C. as Tazir with direction to pay rupees one lac on each count as compensation to the legal heirs of deceased and in default of payment of compensation to undergo R.I. for 7 years on each count. Under section 449, P.P.C., he was sentenced to R.I. for 10 years with a direction to pay fine of Rs. one lac and in default of payment of fine to undergo R.I. for 2-1/2 years whereas under section 7, Anti-Terrorism Act, 1997, he was sentenced to death with direction to pay Rs.one lac as fine and in default of payment of fine to undergo R.I. for 7 years. The sentences of imprisonment were directed to run concurrently with benefit of section 382-B, Cr.P.C. In appeal preferred by the petitioner, the High Court maintained his conviction and sentence awarded to him by the trial Court.

3. The relevant facts in small compass giving rise to this petition in the background are that the petitioner, was living separately from his other family members and on the fateful day. at 7 a.m. Bashir Ahmed, complainant his father and his real brothers namely Muhammad Akram (P.W.14), Muhammad Afzal and Muhammad Arif (deceased) were present near their Dara under construction when the petitioner armed with single barrel gun having raised Lalkara that he would teach a lesson to them for dumping mud in his land, opened firing at his brothers and father as a result of which Muhammad Afzal and Muhammad Asif sustained injuries whereas the complainant and Muhammad Akram took shelter in their house to save their lives. The petitioner then while trespassing into the house of complainant fired at Mst. Muniran, his real mother and Mst. Rukhsana alias Robina his sister. The motive for the occurrence as given in the F.I.R. was the family dispute. In addition to the placing reliance on the testimony of Bashir Ahmed and Muhammad Akram, two eye-witnesses, the prosecution to prove the charge, also sought support from the statements of Dr. Abdul Hameed (P.W.15), Dr. Muhammad Khalid (P.W.16) and Dr. Muhammad Arif (P.W.17), who conducted medical examination of the deceased, Muhammad Hussain, A.S.-I. (P.W.8) and Syed Alamdar Hussain Shah, S.-I. (P.W.18), the Investigating Officer of the case. The petitioner in his statement under sections 342, and 340(2), Cr.P.C. has admitted the causing of fire-arm injuries to all the four deceased taking the plea of grave and sudden provocation as under:-- "My sister Mst. Rukhsana Kausar alias Rubina deceased had illicit relations with one Iftikhar who used to visit our house because he used to come to supply furnace oil to different brick-kilns, situated around the village and that I very vehemently objected these illicit relations between my sister and aforesaid Iftikhar but my parents paid no heed to it and that my brothers Muhammad Afzal and Muhammad Asif were consenting party because they were drug addicts and used to get money from said Iftikhar. I felt dishonoured in the village and that the family members refused to take notice of these illicit relations between Mst. Rukhsana deceased and aforesaid Iftikhar, I got flared up, raged and provoked. On the day of occurrence, I came to know that aforesaid Iftikhar had again come at their house on which I felt provoked and out of anger, I took my gun and started towards the village and that when my brothers Muhammad Afzal and Muhammad Akram tried to intervene, they in heat of passion received fire shots and that when I reached the house, aforesaid Iftikhar had slipped away and out of provocation and in heat of passion my sister Mst. Rukhsana Kausar alias Rubina and my mother Mst. Muniran Bibi received fatal shots. The P.Ws. have deposed against me due to close relationship with the deceased and they have appeared against me to shield the nefarious act and to avoid further dishonour. "

4. The learned counsel for the petitioner has contended that the petitioner caused injuries to his family members (deceased), having lost the self-control due to the grave and sudden provocation on coming to know that paramour of Mst. Rukhsana, his sister, was present in the house of his parents and in this situation, the truthfulness of the defence version could be visualized to bring the case within the ambit of section 302(c), P.P.C. for the purpose of sentence. Learned counsel argued that in the ordinary circumstances a normal person is not expected to act in the manner in which petitioner acted and thus, by the action of petitioner it could be safely ascertained that at the relevant time he was not in the normal state of mind, therefore, extreme penalty of death under section 302(b), P.P.C. would not be justified. The learned counsel thus, without contesting this petition on merits, has confined his arguments to the extent of quantum of sentence.

5. We having heard the learned counsel for the petitioner and perused the record with his assistance have found that the petitioner having taken the special plea of grave and sudden provocation and the family honour, committed murders of four members of his family but this plea as such was neither traceable in support thereof in the evidence nor petitioner produced any evidence in defence to bring the case within A the purview of section 302(c), P.P.C. or for lesser punishment under section 302(b), P.P.C. There is nothing on record to suggest that any unpleasant incident prompting the petitioner happened before the occurrence which created abnormal situation leading to the fateful occurrence. The suspicion of the petitioner regarding the illicit relations of Mst. Rukhsana, his sister, with one Iftikhar may be a cause of his annoyance which could be treated a source of bringing bad name to the family and he may have also felt dishonured but it would not be considered element of grave and sudden provocation to justify the murder of four innocent persons. The defence version even if was based on truth, the hatred in the mind of petitioner against his sister and other B family members, would be the motive for the occurrence and not a source of sudden and grave provocation. This is correct that in our Society, the illicit liaison of a female of the family is not tolerated but mere suspicion of such relations cannot be an excuse to commit murder and claim mitigating circumstance for lesser punishment. The petitioner while acting in extreme brutality not only murdered her sister for the reason of her being bad character but also took the life of his real mother and two brothers on the false claim of Ghairat and family honour. Be that as it may, the provocation, was neither sudden nor grave rather the petitioner having developed grudge in his mind against his family members due to the conduct of his sister, committed Qatal-e-Amad of four persons without any justification and would not deserve any leniency in the matter of sentence. The ocular account in the present case was furnished by the inmates of the house who were the most natural witnesses and their testimony was found truthful, confidence-inspiring and free from any malice, which would also seek ample corroboration from the medical evidence and the admission of the petitioner to sustain the capital punishment.

6. In the light of foregoing reasons, we find no substance in this petition and the same is accordingly dismissed. Leave is refused. N.H.Q./M-304/S???????????????????????????????????????????????????????????????????? Leave to appeal refused.