1. Dost Muhammad Khan, J.--(1) Zahoor Ahmad (aged 33 years), (2) Ghulam Yousaf (aged 54 years), (3) Muhammad Rafique (aged 47 years), (4) Arshad Khan (aged 37 years), (5) Fakhar Zaman (aged 44/45 years) sons of Gulab Khan, (6) Khalilur Rehman (aged 17/18 years) son of Ghulam Yousaf were tried on charges under Sections 302/324/436/429/148/149 P.P.C. alongwith their acquitted co-accused (7) Qamar Zaman, (8) Sher Zaman and (9) Waheed Ahmad by the learned A.S.J. Abbottabad and after finding them guilty on all the charges, upon conviction, they have been sentenced as follows:-- (i)under Sections 302(b)/149 P.P.C. death sentence (on 9 counts); (ii)under Sections 429/149 P.P.C. for 3 years R.I. each; (iii)under Section 436/149 P.P.C. for 7 years R.I. each; (iv)under Section 148 read with 149 P.P.C. for one year R.I. each.
2. All the sentences of imprisonment were ordered to run concurrently. The appellants were also directed to pay Rs, 200,000/- each as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased.
3. Accused (1) Qamar Zaman, (2) Sher Zaman and (3) Waheed were, however, acquitted giving them benefit of doubt.
4. 2.The appellants, have impugned their conviction and sentences, through the instant appeal while, the learned trial Judge has sent a Murder Reference No, 4/2003 for confirmation of their death sentences (on 9 counts). Shah Zaman complainant, has filed Cr,A. No, 217/2003 against the above three acquitted accused seeking their conviction. He has also sought enhancement of compensation vide Cr.R. No, 35/2003.
5. 3.This gory incident took place on 18.3.2000, at about 10 p.m. in the house of deceased Muhammad Akbar etc. of village Katha Kalanda within the jurisdiction of Police Station Nara, District Abbottabad. This judgment shall decide all the above petitions, to avoid repetition of the same facts and because, points of law involved are identical.
6. 4.The crime was reported at 4 a.m. on 19.3.2000, on the crime spot by Shah Zaman (P.W. 13) to Asif Gohar S.I. (P.W. 15) wherein, he has stated that on the fateful night, at 10 p.m. he, alongwith his deceased brother (1) Muhammad Akbar (2) P.Ws Gulfraz, (3) Muhammad Ayub sons of All Zaman had assembled in the house of the deceased when, in the meanwhile, 1-Ghulam Yousaf, 2- Muhammad Rafique, 3-Fakbar Zaman, 4-Arshad, 5-Zahoor Ahmad sons of Gulab Khan, 6-Bashir Zaman S/o Shadi Khan, 7-Qamar Zaman S/o Sher Zaman, 8-Khalil S/o Ghulam Yousaf and 9- Waheed Ahmad S/o Muhammad Iqbal, their co-villagers/accused entered there duly armed with weapons making loud shout that none would be spared of the family of Akbar deceased and the houses would be set on fire. The complainant went out the room alongwith Gulfaraz (P.W.10) and Muhammad Ayub (P.W.14) to entreat them and begged for mercy but the accused told him (complainant) that he shall leave the place to save his own life where after, the accused chained the door of room of Muhammad Akbar deceased from outside, locking the inmates inside while, appellant Zahoor Ahmad, put on fire a corner of the crime house with a flame of cigarettes lighter.
7. After that accused unchained the door and started firing at the inmates, as a result Muhammad Akbar (aged 60/65 years), his wife Mst. Zarin Taj (aged 40/45 years) were hit and died on the spot.
8. The accused also shot dead two buffalos, present in a portion of the room. Further added that because of the commotion and on the report of fire-shorts, Mst. Irshad Bibi, the sister of accused Ghulam Yousaf etc. was attracted to the spot who . attempted to separate the parties but she was also hit with the fire-short of the accused and died. It is further stated that the accused then killed Muhammad Bashir (aged 24/25 years) son of Muhammad Akbar, Mst, Abida (aged 12/13 years) daughter of Muhammad Akbar and Mst. Shamim (aged 40/45 years) wife of Muhammad Zaman by giving them blows with rifle butt, fists and kicks and then all the accused killed Mst. Ruqia (aged 3/4 years) Mst. Nooreen Bibi (aged 5/6 years) daughters and Muhammad Asif (aged 2 years) son of Muhammad Zaman (minors) by picking them up and striking against the floor while Siddique (P.W.11) and Mst. Arshad Bibi (aged 40/42 years) wife of Muhammad Bashir (not produced) took shelter under the cots in the crime room. After accomplishing the nefarious act, the accused took away the dead body of their sister towards their houses. The complainant has claimed to have identified the accused in the light of the burning lantern and moon light. He alongwith the two P.Ws. then ran away to save their lives.
9. Motive for the crime was that Mst. Tahira alias Goga daughter of Saeed the sister's daughter of Ghulam Yousaf etc. accused-appellants had illicit relations with Siddique P.W. and because of that the accused in a planned manner killed (9) persons alongwith two buffalos and two houses were burnt to ashes. On this Murasila report, case F.I.R. No, 20 was registered on 19.3.2000 at 6 a.m. by P.S. Nara.
10. 5.Injury sheets and inquest reports of all the victims were prepared and were sent to the mortuary for post-mortem examination. The dead body of deceased Irshad Bibi, sister of the appellants were recovered from their house.
11. 6.During spot inspection, two empties of .12 bore, one empty of .30 bore and a missed cartridge of 8 m.m., were recovered through memo Ex.P.W.7/1 which were sealed into Parcels No, 1, No, 2 and No, 3 alongwith one .30 bore spent bullet. Burnt wood ashes were also collected which were placed in sealed Parcels Nos, 4 and 5. Blood secured from place of Irshad Bibi deceased was put in Parcel No, 6 while a plastic boot (left foot) of the said deceased having blood-stains was also put in Parcel No,
7. Through memo Ex.P.W. 7/2, blood-stained earth of deceased Irshad Bibi was secured from the house of Rafique appellant and was put into sealed Parcel No,
9. One repeater .12 bore shot gun was recovered from the house of Fakhar Zaman appellant, at his pointation which was sealed into Parcel No, 10 while the cigarettes lighter used in the crime was recovered from Zahoor Ahmad appellant and was sealed in Parcel No, 11 alongwith a bandolier of .30 bore pistol.
12. 7.Through memo Ex.P.W. 7/3 blood-stained garments of all the deceased were taken into possession and were sealed into Parcel No, 12 to Parcel No, 20 except that of deceased Abida, Ruqia Bibi, Nooreen, Muhammad Asif, Shamim Bibi and Muhammad Bashir as their clothes were having no stains of blood.
13. Through memo Ex.P.W. 7/5 on 23.3.2000, three empties of .12 bore produced by Shah Zaman PW, were taken into possession and were put in Parcel No, 21 while a D.B. shot gun (.12 bore) was produced by Arshad accused on 28.3.2000 which was sealed into Parcel No,
22. Similarly one .30 bore pistol and one 8 m.m. rifle were produced by Ghulam Yousaf accused on 9.4.2000, which were sealed in Parcels Nos, 23 and 24 respectively. Muhammad Rafique appellant produced a .12 bore D.B. shot gun on 9.4.2000, which, was taken into possession vide memo. Ex.P.W. 15/6 and was put in a sealed Parcel No,
25. Also a revolver .32 bore and one .12 bore S.B. shot gun were recovered through memo Ex.P.W. 15/8 on 9.4.2000 from the house of Sher Zaman acquitted accused and were sealed into Parcels Nos, 26 and 27 respectively. These two weapons were not sent to the Arms Expert like the rest. The Fire-arms Expert report Ex.P.W.15/11 about the empties and the weapons is positive to the extent of a shot-gun, .30 bore pistol, 8 m.m. rifle and .12 bore repeater shot gun with two empties of the same bore which were belonging to Fakhar Zaman accused.
14. 8.Accused Zahoor Ahmad, Fakhar Zaman, Sher Zaman and Qamar Zaman were arrested on 19.3.2000 while accused Ghulam Yousaf, Muhammad Rafique and Khalil were arrested on 5.4.2000 when their bail before arrest was not confirmed. Arshad accused was arrested on 25.3.2000 from Military Hospital, Lahore while Waheed was arrested on 7.5.2001. Trial was held afresh from 12.5.2001 on the arrest of accused Waheed and all the 16 P.Ws. were re-examined, where after the accused were re-examined under Section 342 Cr.P.C. but they did not wish to give evidence on oath or to produce defence and at the conclusion of the trial the impugned judgment was delivered.
15. 9.We have heard the learned counsel for the appellants, for the complainant as well as for the State and have gone through the record minutely.
16. 10.While writing judgment, we found that Asif Gohar S.I. (P.W. 15) while deposing at the trial, has disclosed that before his arrival on the crime spot Younas ASI of the police station was already present there and that he did not know as to whether he had gone to the spot because of the information/report conveyed to the police station by accused, namely, Ghulam Yousaf. The said ASI was not examined at the trial. This fact, being an alarming one, thus, put us on alert so that the Court might not be deliberately misled and taken to a wrong conclusion by one or the other side, therefore, on 15.3.2005 we directed that Younas ASI be called as a Court witness who was examined on 29.3.2005 and the learned defence counsel was directed to get instructions from the appellants as to whether they would like to record supplementary statement under Section 342 Cr.P.C. or not.
17. The learned counsel categorically stated at the bar that he has consulted his clients on this point who do not want to avail this opportunity. To this effect questions and answers were reduced into writing and proper not was recorded.
18. 11.Keeping in view the evidence and facts of the case, a legitimate inference is that the Investigating Officer and both the parties have suppressed some true facts and have given sharp twist to the same. Two different theories have emerged out of the facts of the case. The first one has Veen put forth by the prosecution in the F.I.R. as well as at the trial and the second one has been set up by the defence. In view of these circumstances the duty of the Court has become onerous to discover the true facts and the third probable theory.
12. The entire evidence of the prosecution on which the conviction of the appellants has been based consists of the following items:-- (i)Ocular account of Shah Zaman complainant (P.W.8), Gulfraz (P.W.13) and Muhammad Ayub (P.W.9). The testimony of the 4th witness, namely, Muhammad Zaman is of ,a little legal value, therefore, it is not worth consideration; (ii)the recovery of different empties from the spot and the two .12 bore empties produced by Shah Zaman (P.W.8) to the I.O. at the belated stage besides the recovery of crime weapons like .30 bore pistol, 8 m.m. rifle, .12 bore D.B. and S.B. shot guns and a reapter shot gun which have been allegedly used in the commission of the crime; (iii)the medical evidence furnished by Lady Dr.' Seema Akhtar (P.W.1) and M.O. Dr. Shafiq-ur- Rehman (P.W.2); (iv)the motive for the crime which is almost not in dispute between the parties; (v)the admission of appellant Zahoor Ahmad in his second - statement under Section 342 Cr.P.C. wherein he has taken the entire responsibility for the tragedy on his shoulder.
13. As mentioned above, the present occurrence took place on 18.3.2000 at p.m. which was reported on 19.3.2000 at 4 a.m. at the spot by Shah Zaman (P.W.8) to Asif Gohar S.I. (P.W.15) and on the Murasila report the case was registered by Police Station Nara at 6 a.m. on 19.3.2000. The prosecution case, in view of the evidence on record, may be divided into two transactions.
19. According to the eye-witnesses, the accused entered the crime house/room at 10 p.m. duly armed.
20. Appellant Zahoor Ahmad made a loud shout that no one amongst the victims and P.Ws. present there shall move. The P.Ws. claim that they made efforts to entreat the accused asking them to cool down but their efforts did not bear fruits as the accused proclaimed that none of the inmates of the family of Akbar deceased would be spared that day and the house would be set on fire.
21. Where after, the accused confined Muhammad Akbar alongwith his family members inside the crime room by chaining the door from out side while the P.Ws. were asked to flee away. Accused Zahoor Ahmad put on fire a corner of the roof of the house through cigarettes lighter where after the door was opened and the accused started firing as a result Muhammad Akbar was the first victim who died on the spot because of the fire-shorts Made by the accused. Mst. Zarin Taj wife of Muhammad Akbar was the second victim who was hit with the fire-shot of accused when she tried to flee out of the crime house. The accused then shot dead the two buffalos. On the commotion and reports of fire shots Mst. Irshad Bibi deceased, the sister of the accused was attracted who also tried to prevent the accused from causing further damage and to separate the parties but the accused also fired at her who was hit and died on the spot.
22. 14.After the above episode, the accused allegedly then entered the crime room and gave beating to Muhammad Bashir S/o Muhammad Akbar, Mst. Abida daughter of Muhammad Akbar, Mst.
23. Shamim Bibi wife of Muhammad Zaman with rifle butt, kicks and fists blows, as a result all the three died on the spot. The accused then started picking up Mst. Ruqia Bibi, Mst. Nooreen Bibi daughters and Muhammad Asif son of Muhammad Zaman minors and struck them repeatedly against the ground, as a result all the three died there and then while Muhammad Siddique (P.W. 10) Mst.
24. Arshad Bibi wife of Muhammad Bashir took shelter beneath the cots and saved their lives. After accomplishing this brutal tragedy, the accused took away the dead body of their sister Mst. Irshad Bibi towards their houses. It is further claimed that all the accused were identified by the PWs in the light of the lantern (not produced) as well as moon-light. The P.Ws. have stated that they ran away from the spot and saved their lives.
25. 15.Motive for the crime shown in the F.I.R. was reiterated by the P.Ws. at the trial. The two portions of the house of Muhammad Akbar were also burnt as a result of fire set by Zahoor Ahmad appellant through cigarettes lighter.
26. 16.The medical evidence furnished by Lady Dr. Seema Akhtar (P.W.1) and M.O. Dr. Shafiqur Rehman (P.W.2) who have conducted autopsy on the dead-bodies of the 9 deceased is to the following effect-- (i)the cause of death of Mst. Shamim wife of Muhammad Zaman, aged 26/27 years, was due to asphyxia causing respiratory failure resulting into cardiac arrest. No mark of violence was found on her body; (ii)the cause of death of Mst. Abida Bibi, aged 12/13 years, was asphyxia causing respiratory failure resulting into cardiac arrest; (iii)cause of death of Muhammad Bashir deceased son of Muhammad Akbar, aged 24/25 years, was due to asphyxia, respiratory failure and cardiac arrest; (iv)cause of death of Muhammad Asif (minor), aged 2 years, son of Muhammad Zaman was asphyxia, respiratory failure and cardiac arrest; (v)cause of death of Mst. Nooreen Bibi, aged 5/6 years, was also asphyxia, respiratory failure and cardiac arrest; (vi)cause of death of Mst. Ruqia Bibi 3/4 years daughter of Muhammad Zaman, was due to asphyxia, respiratory failure and cardiac arrest; (vii)while cause of death of Muhammad Akbar son of Feroz Khan, aged 55/60 years, was due to a solitary entry wound of fire-arm 1/4 inch x 1/4 inch on the left buttock 2 inches below iliac crest. The corresponding exit wound 1/2 inch x 1/2 inch was found on left inguinal area 3 inches away from the left superior iliac spine. In his case blood vessels and left femoral artery were extensively damaged while small and large intestines were found injured; (viii)Mst. Zarin Taj has also received a wound of 1/2 inch x 1/2 inch on right chest and a second wound of the same size on the back of left side about 1" from left scapula which appears to be the corresponding exit wound albeit it has not been explained in the post-mortem report by the lady doctor. In her case walls, ribs cartilage, pleaurae, right lung, pericardium and heart were found damaged with semi digested food in the stomach; (ix)the cause of death of Mst. Irshad Bibi wife of Nazur Rehman, aged 40/42 years, is because of fire-arm injury. A wound of 1 inch x 1 inch on the 5th inter costal space on back side about 15 c.m. towards the side of vertebral column. The second wound of the size of 3 inches x 1/2 inch was found on the left of chest 3" away from left clavical. In her case walls, ribs, cartilages, pleaurae, left lung, pericardium and heart were severely damaged alongwith blood vessels. Semi digested food was found in the stomach.
27. 17.As pointed out in para 11 above, both the parties and even the Investigating Officer has not come out with a true story. Many aspects of the crime have either been left untraced or deliberately with-held from the Court.
28. 18.The most intriguing aspect of the matter is as to how the transaction was initiated, has not been fairly disclosed. On this vital aspect, the P.Ws. appear to have suppressed some material facts but one fact significantly clearer than crystal is that at the trial stage all the three P.Ws. have attributed major role in the tragedy to Zahoor Ahmad appellant albeit at some stages they have given twist to the facts involving the other appellants as well attributing them general role. They have attributed D.B. shot guns as crime weapons to Ghulam Yousaf, Muhammad Rafique and Arshad appellants while 8 m.m. rifle to Khalil accused and repeater shot gun to Fakhar Zaman appellant. More prominently .30 bore pistol used in the commission of the crime has been attributed to Zahoor Ahmad appellant who killed first Muhammad Akbar deceased as is evident from the statement of Shah Zaman complainant P.W.8 (at page 163). Similarly the killing of Mst.
29. Irshad Bibi his own sister is also attributed to him. The killing of Mst. . Zareen Taj is attributed to all the accused charged but tenor and sequence of testimony of the complainant Shah Zaman would show that none else but Zahoor Ahmad appellant was her assailant.
30. 19.In the second rank, Ghulam Yousaf appellant is prominently figuring in the prosecution evidence who had chained the door of the crime room from outside after Zahoor Ahmad accused set its roof on fire. A look on the site-plan would show that" Zahoor Ahmad appellant has been shown at Point No, 13 just in front of the door of the crime room. Deceased Muhammad Akbar is shown on Point No, 1 and blood was collected there from which directly comes in the firing line of Zahoor Ahmad appellant. Similarly, the second victim Mst. Zareen Taj who received fire-arm injury is shown at Point No, 9 towards the east of the crime room in the Court yard while the third victim Mst. Irshad Bibi, the sister of the appellants, is shown at Point No, 10-B. From both these places blood was collected. Close to point 10-B on the wall violence mark of a bullet has been shown and on the ground close thereto a spent bullet was recovered.
31. Point A is shown on the northern wall, inside the crime room where the Investigating Officer has noticed numerous marks of bullets although none was extracted there from. This point is also in firing line of Zahoor Ahmad accused. The statements of the three eye-witnesses, namely, Shah Zaman (P.W.8), Muhammad Ayub (P.W.9) and Gulfraz (P.W.13) given ft the trial if are considered in juxta-position with the site-plan, would show that it was Zahoor Ahmad appellant who initiated and enacted the tragedy by first killing Muhammad Akbar and then Zareen Taj by firing at them with .30 bore pistol. From point D in the site-plan a .30 bore crime, empty was collected. The .30 bore pistol of Zahoor Ahmad appellant, on its recovery, was sent to the arms expert with the crime empty of .30 bore whose report is in the positive. Thus Zahoor Ahmad appellant beyond any shadow of doubt is responsible for the murder of Muhammad Akbar and Mst. Zareen Taj by firing at them with his pistol.
32. 20.The killing of the other three deceased named above by all the accused with kicks, fists or rifle butt blows and the killing of the minor victims through physical violence is of course a serious begging question looks askance in view of the clash between medical evidence and the ocular account. In the site-plan the' three witnesses, namely, Shah Zaman (P.W.8), Muhammad Ayub (P.W.9) and Gulfraz (P.W.13) have been shown at Point No, 22, Point 24 and Point 23 respectively. All these three points are situated away from the door of the crime room, thus the second episode where six deceased, namely, (1) Muhammad Bashir, (2) Mst. Shamim Bibi, (3) Mst. Abida (4)
33. Muhammad Asif (minor), (5) Mst. Noreen Bibi (minor) and (6) Mst. Ruqia Bibi (minor) were killed took place out of their sight and their claim to have seen witnessed that transaction appears to be fallacious and unbelievable. In fact they have not witnessed the second episode as they were not in a position to see it. More-over all these deceased have not died because of physical violence but the cause of their death was suffocation due to heavy smoke caused by enraging fire flames. Both the doctor and lady doctor have squarely shown the cause of their death as asphyxia, respiratory failure and cardiac arrest. This part of the story, given by the eye-witnesses appears to be the dishonest invention on the part of the Investigating Officer who had found blue and black patches on their bodies and mistaken it as violence marks. The medical opinion about cause of death of the said deceased is based on the personal observations of the two doctors and the symptoms shown in the post-mortem reports leave no doubt behind about their cause of death to be debated upon. The medical opinion based on symptoms observed on the six dead bodies is fully in consonance with the medical jurisprudence. Therefore, the testimony of the prosecution witnesses in that regard is liable to be discarded and is accordingly disbelieved.
34. 21.The question, however, arises as to whether the roof of the crime room was set on fire by Zahoor Ahmad appellant or it was due to dired hay stalk stored for the buffalos in the portion of the crime room which caught fire due to fire shots made at the two buffalos as the veterinary doctor has found fire-arm injury on the two carcasses. The second proposition was also suggested to the Court by the prosecution counsel which does not appear unsound. The second equal probable theory could be the one suggested by the defence in cross-examination to the P.Ws. that because of the fire shots the lantern in the room was hit and bursted and due to spreading of kerosene oil the crime room caught fire. The height of the crime roof is shown 9 feet which was made of wooden planks/logs whether Zahoor Ahmad appellant could with little flame of cigarettes lighter set on fire the projected part of the roof does not appear sound and believable proposition. The spreading of fire in such a quick manner could be only result of kerosene oil which had drained out of the lantern having been hit by a bullet. For this reason it was neither taken into possession by the police nor it was produced trial. What ever the cause for the fire caught by roof might be as whether it was intentionally set on fire or it was because of accidental act of appellant Zahoor Ahmed, in both cases he cannot escape of criminal responsibility for enacting this tragedy as well.
35. 22.The prosecution version, that Irshad Bibi, their own sister, was killed by the appellants because she dared to prevent them from causing further damage or loss to the human life does not appear to be a true version being not appeal-able to a prudent mind much less a judicial one. Whether a defence-less lady could be a hurdle in the way of armed men who had sworn to finish the family of the deceased Muhammad Akbar and whether she could in any manner thwart their designs of causing further damage is absolutely ridiculous and is an absurd proposition. It appears that the prosecution witnesses on this point have suppressed the true facts and have given sharp twist to the true story making it one sided affair. In the site-plan the presence of Mst. Irshad Bibi is shown at Point No, 10-B where from blood was recovered. From Point-C her plastic boot having blood-stains was also recovered and taken into possession. The plastic boot bearing bloodstains, the blood recovered from her place shown in the site-plan and her clothes received from the doctor were placed in sealed Parcel Nos, 8, 9 and 15 which were examined by the chemical examiner who found it to be human blood and of the same group, Muhammad Younas ASI (C.W.1) to a question also has admitted that the parties had assembled in the crime house to resolve the dispute, is another telling factor which adversely reflects on the testimony of three E.Ws.
36. 23.Point-C where from, the boot was recovered is shown on the back of the house of the deceased while point 15 where Irshad Bibi was done to death is sufficiently away from Point No, 13 the place of Zahoor Ahmad appellant.
37. 24.From the above narration and discussion of facts it appears more probable that on the motive incident Irshad Bibi had gone to the house of the deceased prior to the occurrence to settle the score but the course of discussion probably took an unhappy turn causing provocation to P.W.
38. Saddique, who killed her at random in the first instance and fled away from the crime house.
39. Another strong reason in support of this proposition is that P.W. Saddique who in all probabilities might have been the first victim at the hands of the accused escaped unhurt despite his assertion that he also interfered and entreated the accused to pacify them. If at all he was available then under no circumstances he would have been spared by the accused being the real cause for their rancour particularly Zahoor Ahmad appellant. We for the same reason discard his testimony as an eye-witness, more-so, when his statement under Section 161 Cr.P.C. was recorded at 4 p.m. on the following day which fact further makes him a suspect.
40. The line of cross-examination adopted by the defence on the prosecution witnesses is consistently to the effect that Irshad Bibi was killed by Saddique P.W. and Ghulam Yousaf appellant reported the incident to the police station but instead of reducing his report into writing, the police party headed by Muhammad Yousaf ASI (C.W.1) went to the spot. This stance has also been squarely taken by Zahoor Ahmad and Ghulam Yousaf appellants in their statements recorded under Section 342 Cr.P.C. Thus none of the appellants including Zahoor Ahmad could'be held guilty for the murder of Irshad Bibi and we are firm in our view in disbelieving the prosecution version, on this aspect of the case.
41. 25.Now the moot question before the Court is as to who, amongst the appellants is responsible for enacting the tragedy and who has played the major role and what should be the quantum of sentence in the given circumstances. In this respect as discussed in the earlier para of this judgment, appellant Zahoor Ahmad according to the prosecution own evidence has played exclusive and major role in enacting and accomplishing the entire tragedy of course allegations are made against other appellants as well assigning them either the role of assisting him and aiding in the commission of the crime but these are general in nature. Two empties of .12 bore were recovered from the spot on the second day. Except Khalilur Rehman and Zahoor Ahmad appellants, the rest of the appellants have been attributed D.B. shot guns and repeater shot gun but the medical evidence suggests that injuries on Muhammad Akbar and Mst. Zareen Taj deceased have been caused by bullets. Muhammad Akbar deceased has received one entry wound of the size of 1/4 inch x 1/4 inch on the left buttock which has travelled above and the exit wound is of the size of 1/2 inch x 1/2 inch on the left inguinal area close to left superior iliac spine. He died of extensive damage caused to femoral artery, other blood vessels and small as well as large intestines. Khalilur Rehman appellant has been attributed 8 m.m. rifle and one missed cartridge of the same .bore was found on the spot. This 8 m.m. rifle was recovered in a very intriguing manner by the I.O. on 9.4.2000 which was allegedly produced by Ghulam Yousaf accused. The delay has not been explained. Apart the above fact, no empty of the same bore has been recovered from the crime spot, therefore, the participation of this appellant in the crime is also doubtful.
42. Entry wound on the person of Zareen Taj deceased was of the size of 1/2 inch x 1/2 inch on right chest. The lady doctor has not described the second one as an exit wound but it was found on the back of left side left scapula and was of the same size. In her case walls, ribs, cartilages, pleaurea, right lung, pericardium and heart were found damaged. Although not much relevant in the context but injury on the person of Irshad Bibi, the sister of the appellants is also caused by a bullet which is of the size of 1 inch x I inch and the exit is 3 inches x 1/2 inch on the left chest. The medical evidence shows that none of the deceased has received pellet injury. More over not a single pellet was recovered from the crime spot or from the walls although. firing was made within the four walls. The two carcasses of the buffalos were superficially examined by Dr. Muhammad Zafran C.V.H. (P.W. 5) but his report is not of much help to the Court being incomplete and in-descriptive in nature.
43. However he has stated at the trial that the buffalos have received bullet injuries. Thus the participation of appellants (1) Muhammad Rafique, (2) Fakhar Zaman, (3) Arshad and (4) Khalilur Rehman is not free from doubt and the possibility of their false implication in the crime cannot be completely ruled out.
26. We have indulged in stretching and straining the evidence of the prosecution with the object to discover the third probable and true story shorn of falsehood and embroidery work while getting guidance from the principle laid down by the apex Court in the case of Syed Ali Bepari vs. Nibaran Mallah and others (PLD 1962 S.C. 502) which may be cited below: "Here we may observe that in a case of this type the parties do not general come out with the true story. It is normal incident of a "adversary proceeding" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale' from drawing the inferences that probably flow' from the evidence and circumstances." The above principle was followed by the apex Court in the case of Zahid Parvez vs. The State (PLD 1991 S.C. 558) in the following words: "Sections .... 302/34 .... Appreciation of evidence...Both parties had introduced vital falsehood in their respective versions....Prosecution had failed to explain the injury on the person of sister of accused persons while accused persons had withheld the whole truth regarding their having almost killed their own sister and assumption was that but for the incident of their sister there must not have been any murder at allHeld, only alternative for the Court was to follow the guide lines given in the case of Syed AU Bepari (PLD 1962 S.C. 502) and it was not only legally possible but also a legal necessity to act on the third probable version which was shorn of embroidery and falsehood introduced by both the interested parties....Court after considering the matter before it could act on genuine probability and adopt the said course."
44. 27.Zahoor Ahmad appellant while recording his statement under Section 342 Cr.P.C. on the second occasion in his replies to Question No, 2 at page 223, 224 and also to Question No, 18 at page 231, has squarely taken the responsibility for the crime upon himself excluding the other appellants. This fact if judged in the perspectives of the prosecution evidence hints upon rather establishes beyond any shadow of doubt that Zahoor Ahmad appellant was the first and the only culprit who initiated the transaction but in retaliation because his sister Mst. Irshad Bibi was killed by Muhammad Saddique P.W. as held earlier. The question, however, is that whether the provocation he had allegedly received was grave as well as sudden an whether he was justified under the circumstances to act so wolfishly as has done, the answer is a big No in view of the settled principle of law an justice, more-so, when in the first instance he had denied the charge agains him and remained quiet but at a belated stage advanced the story of grave and sudden provocation. Keeping in view the killing of the two deceased Muhammad Akbar and Mst. Zareen Taj by him in the first instance and the rest of the six victims including the minor who died of suffocation because of his criminal act, under no circumstance he is entitled to get benefit of the alleged mitigating circumstance. Another reason to reject his plea is that he did not appear to give evidence as his own witness to substantiate the plea o grave and sudden provocation. Mere hinting on it in his statement under Section 342 is not sufficient to discharge the onus which the law has placed on accused person, thus he is 'held guilty for crime.
45. 28.Next is the case of Ghulam Yousaf appellant who as discussed above, has prominently figured at each and every place in the case. The defence itself has suggested to the prosecution witnesses that it was Ghulam Yousaf who had reported the incident of killing of Mst. Irshad Bibi by Saddique P.W. but his report was not taken down. This fact is a clear pointer towards his presence on the spot at the fateful time. He has abetted and assisted the principal accused in committing the crime. But his role does not seem to be of primary nature rather is secondary in character but his nexus with the commission of the crime is fairly established in relation to the second episode of the occurrence. According to the evidence he chained the door of the crime room from outside when the roof/room- caught fire. Whether it was set ablaze by Zahoor Ahmad appellant or it had caught fire due to the fire shots made by him as a result of which either the dried stalk of hay caught fire or it was due to kerosene oil which had drained out of lantern hit by bullets, therefore, his participation in the commission of the crime is established to above extent although he might have shared common intention alongwith Zahoor Ahmad appellant but from the evidence on record the degree of his interest in committing the crime is not so grave and brutal as that of Zahoor Ahmad accused, thus in our view he is entitled to get the benefit of reduced sentence of life term instead of death penalty.
29. Before concluding the judgment we have to meet the defence plea. The objection that the F.I.R. was lodged on the crime spot with a delay of about 6 hours is not fatal to the case keeping in view the peculiar facts and features of the crime which are horrifying in nature. The house was set ablaze and eight persons of the same family were murdered. The witnesses were so horrified by the gruesome act of the accused that after taking shelter in their own houses they were reluctant to come out and were brought out by Muhammad Younas ASI (C.W. 1). The evacuation of the dead bodies and extinguishing the fire flames was the priority of every one including the police to save human-lives who were trapped inside. In such circumstances none of the P.Ws. was expected to go to the police station for report to run the risk of his own life. Minor contradictions and omissions in their statements are negligible and can be safely ignored. The improved part of their statements made at the trial if is kept aside their rest of the testimony is believable qua the two appellants, namely, Zahoor Ahmad and Ghulam Yousaf. The evidence of the eye-witnesses as a whole cannot be discarded for the simple reason that medical evidence contradicts them visa vis the rest of the six victims/deceased who had died because of asphyxia as all the three eye-witnesses have witnessed the initiation of the transaction by the two appellants.
46. By now it is an acknowledged principle that evidence of witnesses is divisible. That part of the evidence of witnesses can be relied upon which is corroborated by other evidence while uncorroborated part of their evidence is to be discarded. Their testimony cannot be rejected for the reasons that have been found not truthful on one aspect of the case. The fact still remains unrebutted that the rest of the six deceased mentioned above died of asphyxia because of heavy smoke created by the fire flames and this fact is established through the medical evidence. The defence has failed to challenge-the same in a reasonable manner. Therefore, the testimony of the eye-witnesses that the six victims were killed by the appellants through physical violence is ignored, the medical evidence, the statement of C.W. 1 Muhammad Yousaf ASI, that of the Investigating Officer and the recovery of burnt wood and ashes fully established the fact that the crime room caught fire due to act of the accused Zahoor Ahmad. The assistance rendered by Ghulam Yousaf appellant cannot be brushed aside. Moreover, the motive part of the crime has been admitted by the defence which is another corroboratory evidence against the two appellants.
47. The next objection that the occurrence is of a dark night and no source of light has been shown except a lantern which too was neither taken into possession nor produced at the trial, thus the identification of the culprits is a matter of debate, is equally not tenable for the reason that both the parties are neighbours and are well known to each other. Before the commission of the crime the parties came into dose contact with each other and harsh words were exchanged and loud shorts were made by Zahoor Ahmad, the appellant, as is evident from the record, therefore, question of mis-identification or non-identification in the circumstances does not arise.
48. The recoveries of weapons of offence, excepting .30 bore pistol Zahoor Ahmad appellant, have been effected in a suspicious manner which render the same unbelievable and we are constrained to discard the same.
49. 30.What really has disturbed our judicial mind is the quantum of sentence to be awarded. As earlier discussed Zahoor Ahmad appellant has admitted the commission of the crime and he has been attributed major rather exclusive role in the commission of the crime by the prosecution witnesses and when he has been held not entitled to the benefit of any mitigation, thus he is liable to the normal penalty of death. Accordingly, the death sentence awarded to him by the trial Court under Section 302(b) P.P.C. is confirmed but on 8 counts and not 9 counts because the killing of Irshad Bibi appears to be the act of Saddique P.W. Murder Reference to the extent of Zahoor Ahmad appellant in the above terms is, therefore, confirmed. The conviction and sentence under Section 429 P.P.C. for 3 years R.I. and sentence of 7 years R.I. under Section 436 PPC awarded to him are also maintained. The said appellant shall also pay Rs, 200,000/- under Section 544-A Cr.P.C. on each count to the legal heirs of the 8 deceased or to suffer six months S.I. on each count. Needless to observe that the amount of compensation is recoverable from his property as arrears of land revenue under Section 544-A, Cr.P.C. As we have extended the benefit of doubt to the rest of the four appellants (1) Muhammad Rafique, (2) Fakhar Zaman, (3) Arshad and (4) Khalil-ur-Rehman, therefore, the sentence awarded to the present appellant under Section 148/149 is not sustainable and is set aside.
50. 31.Now we would take the case of Ghulam Yousaf appellant for the purpose of sentencing him. As earlier discussed Zahoor Ahmad appellant alone is responsible for killing the two deceased, namely, Muhammad Akbar and Mst. Zareen Taj by firing at them with .30 bore, pistol, the medical evidence also suggests that both the deceased have received bullet injuries and not of shot gun the crime weapon attributed to appellant Ghulam Yousaf. The main role attributed to him is the chaining of the door of the crime room from outside after the roof/crime room was set on fire or caught fire. Thus his role is secondary in nature. Any timely intervention by the P.Ws. or any other person by unchaining the door giving way to the victims to flee from there which was flooded by thick smoke makes his case arguable for the purpose of lesser penalty, more-so, keeping in view his conduct of immediately going to the police station for report about the murder of his sister Irshad Bibi at the hands of P.W. Saddique etc. is an additional factor going in his favour while determining his sentence.
51. 32.For what has been discussed above, this appeal is partially lowed. Appellants Nos, (A) Muhammad Rafique, (B) Fakhar Zaman, (C) Arshad and (D) Khalilur Rehman are acquitted on benefit of doubt. They may be released forth with if not required in any other case. Appeal of Zahoor Ahmad appellant is dismissed and his death sentence on 8 counts alongwith the sentences of imprisonment as discussed above are confirmed/ maintained. The Murder Reference is answered in the positive to his extent but on eight counts while it is answered in the negative to the extent of the above four appellants.
52. 33.Ghulam Yousaf appellant is accordingly convicted under Section 302-B, P.P.C. and is sentenced to life imprisonment on 8 counts. The rest of the sentences awarded to him by the trial Court under Section 436 read with Section 34 and under Section 429 read with Section 34 are maintained but for the acquittal of the four co-accused/appellants his sentence under Sections 148/149 P.P.C. is set aside. Murder Reference to his extent is not confirmed. He shall also pay Rs, 200,000/- on each count to the legal heirs of 8 deceased or in default to suffer six months S.I. on each count. The said amount shall also be recoverable from his property as arrears of land revenue.
53. 34.Cr.A. No, 217/2003 titled "Shah Zaman vs. (1) Qamar Zaman, (2) Sher Zaman, (3) Waheed Ahmad is dismissed because the trial Court has correctly extended them benefit of doubt on the basis of the recorded evidence as they have been attributed the role of simple presence outside the entrance gate of the crime house which otherwise is not a believable proposition and even if their presence is accepted, it is susceptible to two propositions as they might have come there either to intervene to separate the parties or they were watching the tragedy as helpless spectators. They have been attributed no role what-so-ever in the commission of the crime.
54. 35.Similarly, Cr.R. No, 35/2003 titled "Shah Zaman vs. Zahoor Ahmad and six others" is also dismissed because the compensation awarded is adequate and does not require further enhancement.