Muhammad Nawaz Bhatti, J.--The appellants, namely, Maqbool Hussain alias Jamala Dogar, Ghulam Rasool, Ghulam Mustafa, Manzoor and Dilawar Hussain along with Wazir Ahmad, Muhammad Shafique, Abdul Ghaffar, Manak, Ghulam Nabi, Nazeer Ahmad and Nek Muhammad, were tried by the learned Judge Suppression of Terrorist Activities Court, Multan Division, Multan in case FIR No. 136/96 registered under Sections 302, 148 and 149 PPC at P.S. Saray Sadhu District Khanewal. While acquitting Naik Muhammad, Abdul Ghaffar, Ghulam Nabi, Nazir Ahmad, Wazir, Shafique and Manak, the learned trial Court vide its judgment dated 4.5.2000 convicted Maqbool, Ghulam Rasool, Ghulam Mustafa and Manzoor appellants under Sections 302-B and 149 PPC and sentenced them to death on five counts each and also convicted Dilawar Hussain appellant under Sections 302-B and 149 PPC and sentenced him to life imprisonment. The appellants were further directed to pay compensation of Rs. 50,000/- each on five count each to the legal heirs of the deceased and in default thereof to undergo SI for six months on five counts each. They were also convicted under Section 148 PPC and sentenced to one year's R.I. each. Benefit of Section 382-B Cr.P.C. was also given to the appellant Dilawar. Both the sentences awarded to Dilawar appellant were ordered to run concurrently. Feeling aggrieved by this judgment, the appellants have filed this appeal.
2. Briefly stated the prosecution case as contained in the FIR Ex. PX is that on 2.6.1996 at about 11.00 a.m., the complainant Muhammad Hussain alongwith Habib Ahmad and Abdul Ghaffar was present in the main bazar Sardarpur City near the shop of Sananullah deceased. In the meanwhile Muhammad Shafique accused also came , there and he had a look at the shops of Sanaullah, Iqbal and Hakeem Allah Ditta and went to Sardarpur City. After a shortwhile, three persons, namely, Muhammad Sharif (P.O.), Maqbool Hussain and Dilawar came there on a Motorcycle No. 514/LD and stopped their motorcycle in front of the shop of Sanaullah deceased. They were armed with rifles.
Soon thereafter Manak armed with a .12 bore gun, Ghulam Rasool armed with a 7 mm rifle, Ghulam Mustafa armed with a 7 mm rifle, Manzoor son of Manak armed with a .12 bore gun, Abdul Ghaffar, Ghulam Nabi, Naik Muhammad, Nazir and Wazir Ahmad armed with sotas and Shafique armed with rifle came there and spread in the bazar and made lalkaras that they would kill their enemies and their children as well. Maqbool, Sharif and Dilawar opened the fires with their respective weapons upon Nawab son of Manzoor Husain and the fire of Maqbool, hit Nawab deceased and fire of Sharif (P.O.) hit Sanaullah deceased. Both of them fell down in injured condition. The accused threatened the PWs with dire consequences that if they would come near them, they would also be killed. Thereafter they went to the shop of Abdul Hafiz Bhutta, where Zafar son of Iqbal and Hafiz were also present. Dilawar accused made straight firing upon Muhammad Iqbal deceased who fell down on the ground. Thereafter Maqbool Husain, Dilawar and Muhammad Shard (P.O.) rode on the motorcycle and went to the shop of Hakim Allah Ditta where Falak Sher and Hidayat Ali were present. Maqbool Husain made straight firing upon Allah Ditta who fell down in injured condition.
Maqbool, Sharif and Dilawar made indiscriminate firing and then while raising lalkaras went towards Sardarpur bazar. The PWs also went after them and when they reached at the shop of Munir Ahmad where Munir Ahmad and Nasar Ahmad were standing, Muhammad Sharif made straight firing upon them. Munir Ahmad fell down as a result of firing of the accused. Nawab, Sanaullah, Allah Ditta, Munir and Iqbal succumbed to the injuries. Maqbool Husain alias Jamal, Muhammad Sharif, Dilawar, Manak, Abdul Ghaffar, Ghulam Nabi, Ghulam Rasool, Nazir Ahmad, Wazir Ahmad, Manzoor Ahmad, Muhammad Shafique and Naik Muhammad while making lalkaras and also firing in the air succeeded in fleeing away.
The motive behind the occurrence is that two years prior to the occurrence Gulzar Ahmad Dogar etc. had murdered step-brothers of Maqbool accused, namely, Muhammad Hanif and Abdul Sattar and also cut the leg of Maqbool alias Jamal Accused and for that reason the accused have murdered these five persons.
The complainant left Dildar Hussain and Abdul Rehman for guarding the dead bodies and went to the police station and lodged the report Ex. PX.
3. Mirza Muhammad Bashir SI (PW14) after recording the statement of the complaint registered the FIR (Ex. PX). Thereafter he proceeded to the place of occurrence. He prepared inquest report and injury statement of Sanaullah deceased which were Ex. PAA/2 and Ex. PAA/3. He also prepared inquest Ex. PBB/3 and injury statement of Nawab deceased Ex. PBB/2. He secured the blood stained earth from the places of the said dead-bodies and made the same into sealed parcels. He also secured blood-stained earth of Sanaullah and also blood-stained earth of Nawab deceased. He also prepared injury statement Ex. PBB/1 and inquest report Ex. PBB/2 of M. Iqbal deceased and secured blood-stained earth from the place of occurrence. He also prepared injury statement Ex.
PCC/1 and inquest report of Allah Ditta deceased (Ex. PC,C/2) and also secured the blood stained.
He also prepared injury statement of Nazir Ahmad deceased Ex. PDD/3 and inquest report Ex.
PDD/2. He also secured the blood-stained earth from the place of occurrence. On the same day i.e. 2.6.1996, he arrested Manak, Abdul Ghaffar, Dilawar Hussain, Ghulam Rasool, Ghulam Mustafa, Manzoor, Wazir Ali, Nazir Ahmad, Ghulam Nabi and M. Shafique. He recovered gun Ex. P32 from Manak accused. He also recovered gun P33 alongwith 7 cartridges P 34/1-7 from Abdul Ghaffar accused. He also took into possession last worn clothes of all the deceased. He also recorded the statements of the witnesses. On 4.6.1996, he recovered rifle 222 bore R 20 alongwith magazine P21 and 15 live rounds P 22/1-15 from Dilawar Hussain accused. On 10.6.1996 he also recovered .12 bore gun P 23 from Ghulam Rasool accused. He also recovered rifles from Ghulam Mustafa and Manzoor accused. On 13.6.1996, he also took into possession a motorcycle Honda 125 cc produced by Kamal Din SHO P.S. Nawan Shehr. On 17.7.1996, he recovered sota P. 28 from Naik Muhammad accused, On 5.8.96, he arrested Maqbool accused. After usual investigation, he submitted the challan in the Court. Charge was framed against the accused and they pleaded not guilty and claimed trial.
4. The prosecution examined as many as 15 witnesses in support of its version. Khalid pervaiz constable (PW1), Muhammad Amin constable (PW3), Muhammad Javed constable (PW4) Fateh Sher head constable (PW12), Tanvir Ahmad Bhatti SI/SHO (PW15) and Ghulam Mustafa (PW2) are formal witnesses who fully supported, the prosecution version. Ghulam Hussain SI (PW13) is the recovery witness, in whose presence .12 bore gun P 31 was recovered from the possession of Manak accused and .12 bore gun P32 along with 7 cartridges P33/1-7 was recovered from the possession of Abdul Ghaffar accused. Muhammad Hussain (PW6) is the complainant of the FIR and an eye- witness of the occurrence. He reiterated the who contents of the FIR. Habib Ahmad (PW7), Naseer Ahmed (PW8) and Zafar Iqbal (PW9) are also eye witnesses of the occurrence, who suppdted the statement of the complainant. Dildar Hussain (PW5) had identified the dead-bodies of Muhammad Iqbal, Allah Ditta, Munir Ahmad, Nawab and Sanaullah deceased. Raja Muhammad Iqbal Draftsman (PW11) prepared the site-plans of the place of occurrence. Mina Muhammad Bashir SI (PW14) is the Investigating Officer and whose statement has already been discussed above. PW10 is Rashid Abbas, who stated that he had been working with Dr. Bashir Ahmad Siddiqui and he is fully conversant with his hand-writing and signatures. He identified the hand-writing and the signatures of the said doctor on injury, statement Ex. PAA/3 and inquest report Ex. PAA/2 and sketch of injury statement Ex. PAA/1. He also identified the signature on post-mortem report Ex. PBB, sketch of injury Ex. PBB/a, injury statement Ex. PBB/2 and inquest report Ex. PBB/3. post-mortem report of Allah Ditta Ex. PCC, inquest report Ex. PCC/2, sketch of he injury-Ex. PCC/1 and injury statement Ex. PCC/3, postmortem report of Munir Ahmad Ex. PDD, diagram of the injury Ex. PDD/1 inquest report Ex. PDD/2 and injury statement Ex. PDD/3 and the post-mortem report of Iqbal deceased Ex. PEE, sketch Ex. PEE/1, inquest report Ex. PEE/2 and injury statement Ex. PEE/3.
Muhammad Yar SI, Abdul Rehman, Abdul Ghaffar, Hidayat and Abdul Hafeez and Falak Sher were given up by the prosecution. The learned DDA after tendering in evidence the report of Chemical Examiner Ex. PLL, report of Serologist Ex. PMM and report of FSL Ex. PNN, closed the prosecution case.
5. Statement of the appellants Maqbool Hussain alias Jamal as recorded under Section 342 Cr.P.C., in which he denied the allegations by stating as under: "My son was being beaten mercilessly, blood was oozing out of his head and body, he was shouting for help when I reached in the center of bazar, of Sardarpur. All the five deceased in this case were armed with fire-arms, they started firing at me. I was forced to firing, to save my self & my son as a consequence of that firing deceased were hit".....
In earlier case in which my leg was chopped off I had forgiven the complainant party. But they were nourishing a grudge against me. Prosecution has given false version to implicate me and all the members of Dogar Bradari".
In his statement under Section 342 Cr.P.C. the appellant Dilawar Hussain also denied the allegations by stating that he was involved in this case due to enmity with his father Maqbool and that: "I am innocent. On the fateful day I had gone to my school to know about my result of matriculation which was awaited in those days. On my way back complainant party caught hold me and started beating. The complainant party was armed with fire arms and were raising lalkaras to kill the dogars. In the meantime my father appeared in the bazar. He shouted not to kill me. Whereupon all the deceased in this started firing at my father. My father in order to save me and his own life in his self defence started firing. Meanwhile I slipped away from the place of occurrence. My clothes were smeared with blood due to injuries on my head. Police threatened me not to talk about the injuries.
Otherwise they will arrest my mother and sisters. I always devoted myself to studies. I passed aforesaid examination in first Division. I produce my Provincial Certificate as Ex. DA."
In their statements recorded under Section 342 Cr.P.C. the appellants, namely, Ghulam Mustafa, Ghulam Rasool and Manzoor, also denied the allegations by stating that they were involved in this case due to enmity with Maqbool appellant who was from their brotherhood and that: On the fateful day of occurrence at about 10.00 a.m. complainant party encircled our houses, I do not know anything about the occurrence, our houses were looted, all our male members were involved in this case and our women folk Were forced to leave their houses just on the next day of occurrence. Nothing was recovered from me. I am innocent".
The appellants did not opt to appear as their own witnesses under Section 340(2) Cr.P.C. but they produced defence evidence in the shape of Dr. Abdul Majeed (DW1), who stated that Dilawar accused was suffering from T.B. and Amjad Hussain (DW2), who deposed that Dilwar accused remained the student of his school till 31.3.1996. They tendered in defence evidence the statement before the police Mark DA, Photo copy of FIR No. 166/94, order in criminal revision Ex. DB, Ex. DC, Ex.
DD and Ex. DF and closed the defence evidence.
6. So far as Dilawar accused is concerned, learned counsel for the appellants at the very outset states that as he has already served out the sentence award to him, he does not press this appeal to his extent and as such the same is disposed of to his extent as having become infructuous.
7. Regarding Maqbool Hussain alias Jamal accused/appellant, learned counsel for the appellants has contended that factually the complainant party made the aggression because they wanted to kill Dilawar accused and on receiving the information Maqbool accused in right of private defence fired at the complainant party and that all the deceased were done to death at one and same place but the prosecution has fabricated the story regarding the different places of their murders.
Reliance has been placed upon Muhammad Yaqoob vs. State (1983 SCM R 969).
8. So far as Ghulam Rasool, Ghulam Mustafa and Manzoor appellants are concerned, learned counsel for the appellants has contended that it has not been known and established as to who caused the fatal fire and non-mentioning of these accused in the site-plan by the PWs makes the case of the prosecution doubtful and that there is no attribution of any injury except Maqbool, Sharif (P.O.) Dilawar Hussain accused, therefore, the case of the accused mentioned above is full of doubt. He has relied upon Muhammad Ahmad vs. The State (1997 SCM R 897).
9. On the other hand, learned counsel for the State assisted by learned counsel for the complainant has supported the impugned judgment and submitted that the complainant had lodged a very prompt FIR; that in this case five persons were killed on different places so it cannot be the job of 2/3 persons; that all the accused were armed with deadly weapons and they after forming an unlawful assembly committed the murder of the five persons in the furtherance of their common object; that many empties were recovered from the place of the occurrence which also shows that it was a job of large number of the accused; that the eye-wintesses were present at the time of occurrence and they have furnished a plausible explanation in this respect; that the accused had taken a plea of private defence but they had not produced any evidence to establish the same; that the medical evidence is in line with the ocular account and that the accused had committed the occurrence in a brutal manner and, therefore, they deserve normal penalty.
10.Arguments heard. Record perused.
11. So far as Maqbool Hussain accused/appellant is concerned, from perusal of the FIR it clearly shows that he was armed with rifle and participated in the occurrence. He committed the murder of Nawab and Allah Ditta with fire-arm. Ex. PBB and Ex. PCC also show that the above-mentioned deceased were done to death by fire arm injuries. Muhammad Hussain (PW6/complainant, Habib Ahmad (PW7), Naseer Ahmad (PW8) and Zafar Iqbal (PW9) deposed in their statements that he was armed with fire-arm and he resorted to firing by virtue of which Nawab and Allah Ditta lost their lives. No doubt that the said PWs were inimical towards the accused but the presence of these witnesses had not been shattered by the accused in cross-examination. Moreover, it was this accused who had the motive to commit the instant occurrence. The occular account is fully supported by and recoveries of incriminating articles the medical evidence. In view of the above position, the prosecution has established the guilt of the accused Maqbool Hussain and, therefore, the learned Additional Sessions Judge has rightly convicted him under Sections 302(b)/149 PPC and sentenced to death which is hereby maintained.
12.The perusal of record clearly shows that Ghulam Rasool, Ghulam Mustafa and Manzoor appellants were armed with rifles and .12 bore gun respectively at the place of occurrence and made Lalkaras of killing the complainant party. They also made firing in the air. A perusal of the statements of Muhammad Hussain complainant (PW6), Habib Ahmad (PW7), Naseer Ahmad (PW8) and Zafar Iqbal (PW9), also reveals that the above-mentioned appellants were armed with fire-arms and made firing in occurrence. Though no injury is attributed to them, yet recovery of fire-arms was effected from the afore-mentioned appellants. No doubt that the PWs were inimical towards the accused but the fact remains that their presence at the time of occurrence was natural. Motive is stated to be the enmity between the parties due to an incident in which two step- brothers of Maqbool Hussain alias Jamala accused, namely, Muhammad Hanif and Abdul Sattar, were murdered and leg of the accused Maqbool Hussain had been chopped off and for that reason the afore-mentioned appellants while forming unlawful assembly shared common intention in the murders of five persons.
13.In view of the above circumstances, we maintain the conviction of the appellants, namely, Manzoor, Ghulam Mustafa and Ghulam Rasool under Section 302(b) PPC but after their sentence of death in five counts to imprisonment for life in five counts each. They shall also pay a sum of Rs.
50,000/- each as compensation on five counts each under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default thereof to undergo SI for six months each. On realization of the compensation, the same be distributed to the legal heirs of the deceased in accordance with law.
The afore-mentioned convicts/appellants, however, be entitled to the benefit of Section 382-B Cr.P.C.
14.With the above observations and modification in the sentences awarded to Manzoor, Ghulam Mustafa and Ghulam Rasool, this appeal is dismissed.