1. ' MUHAMMAD AFZAL ZULLAH,J -Leave to appeal from the judgment of the Lahore High Court dated 15th January, 1979 has been sought by two convicts in a case involving four murders.
2. ' The petitioners are brother inter se. They were convicted for the murders of : Muhammad Afzal the brother of Taj petitioner's wife Mst. Bhagan ; the latter herself Sher Zaman an uncle of Afzal deceased ; and, Fazal Karim his relation. Jehandad, Mst. Fatema (parents of the petitioners), Mst.
3. Imtiaz Begum and Mst. Saidan (sisters of petitioners) were also tried but they were acquitted on benefit of doubt-Jehandad also by way of abundant caution. Taj petitioner used a kulhari while Riaz had a spear, handle whereof was broken in the occurrence and then the same was used as a lathi. Both the parties also resorted to stone throwing at each other wherein Taj petitioner, Jehandad:Mst. Fatema and Mst. Saidan were also injured. The complainant side suffered nearly forty injuries. Some of them were very serious. Taj had 8 minor abrasions, Jehandad and Saidan had one abrasion each and Fatema had an insignificant lacerated wound and a similar abrasion.
4. The occurrence was witnessed by Mst. Mano, the mother of Afzal deceased, and Rabnawaz and Ghulam Hussain P. Ws. Kuihari and Burchhi were recovered from Taj and Riaz respectively. They as also wearing apparel of Taj were found to have been stained with human blood.
5. ' The occurrence took place on account of a dispute regarding a passage between family of Afzal deceased and that of Taj. Afzal deceased was married to Taj's sister ,'vast. Saidan accused ; while as already noted Mst. Bhagan deceased sister of Afzal was married to Taj petitioner. Afzal was asked by his in-laws to side with them but he could not do so. Taj had started putting pressure on his wife Mst. Bhagan deceased so that she might prevail upon her brother but it was found to be of no avail. She was given beating by him two days prior to the occurrence. On the day of occurrence Afzal and Taj fought in the fields. The former gave some blows to the latter who came home and started beating Mst. Bhagan. She went up the petitioner's roof and cried for help. Taj had closed his haveli from inside and continued beating her on the roof. His co-accused, joined him there in the meanwhile. The male deceased tried one . By one to climb up the roof from outside through improvised support/stair to save her. They were empty handed. The petitioners taking advantage of single file climbing by these deceased killed each one of them immediately on approaching the roof.
6. ' According to the doctor the injuries to the deceased were caused with blunt as also sharp-edged weapons. It appears from the dimensions. Of the injuries that some of them could have been caused with the back side of the hatchet. The solitary sharp-edged weapon injury, was found on Sher Zaman deceased. It was an incised/stab wound going deep into the chest cavity. There is no other sharp-edged. Weapon injury on any of the deceased. Several injuries were caused on vital parts of their bodies.
7. ' Riaz petitioner denied his presence at and participation in the occurrence. Taj petitioner while admitting his participation made the following statement in his defence :- ' Due to slap to his sister Mst. Bhagan deceased, Afzal deceased reached me in the fields and under the false pretention being an armyman that he would be able, to overpower me assaulted me, but he was no match for me and I rather beat him and deprived him of his hatchet. But I had the idea that innumerable relatives of Afzal were also in the village and that he would assault me with their help. With this fear in my mind I came to my house and closed the door. I told my father to be ready as Afzal and his relatives were about to assault me. My father rather abused me that I was creating a mischief. I, however, took up barchhi and was ready to face if any body entered the house. Afzal (deceased) alongwith Sher Zaman (deceased). Fazal Karim (deceased) and many others assaulted me. 1 stood on the higher part of our haveli separating it from one southern part and faced them with barchhi. I told them that one- would be no more in this world out of them.
8. They were not successful and went on brickbating me these brickbats hit my family members including myself and my family members hid themselves, but 1 retaliated with brickbating. Finding the situation difficult the complainant party thought of placing a ladder from the other side for coming on the proof so that I was cornered from both the sides: The three deceased came up the roof and on this I went upstairs with my barchhi, I was given a blow by Afzal deceased and I defended myself but was able to injure all the three one by one. Mst. Bhagan deceased had also reached the rooftop, when she saw me as well as her near relatives on the roof perhaps thinking that some one would be. No more and she too was injured in the affair. Ms/. Mano was on her own roof and was brickbating at us."
9. ' Rabnawaz and Ghulam Hussain eye-witnesses were not relied upon, on account of minor infirmities including the fact tha; Rabnawaz belonged to another village and Ghulam Hussain who is stated to be a Chowkidar was a chance witness. He had also made some complaints against the members of the accused party prior to this occurrence. Complete reliance was, however, placed on testimony of Mst. Mano P. W. The two petitioners were found guilty of the charge of murder on four counts and were sentenced to death. Their co-accused, as already noted, were extended benefit of doubt and acquittal of Jehandad was also by way of abundant caution. The High Court did not disturb the findings of the learned trial Judge on any count.
10. ' Learned counsel has contended that Mst. Mano's statement required strong corroboration so as to satisfy the Court that the complainant party were not the aggressors ; that the absence of any mark of Injury on Riaz petitioner was indicative of the fact that he did not participate in the occurrence ; that the statement made by Taj petitioner spelling out a plea of self-defence should have been given more weight; and that Taj petitioner was of unsound mind and even if the plea of insanity had not been formally raised it was the duty of the learned trial Judge to hold an enquiry in this behalf as envisaged by Chapter XXXIV of the Cr. P. C.
11. The presence of Mst. Mano at the time of occurrence has been admitted by Taj petitioner in his statement. She is also a natural witness. Except for the sequence of and the manner. In which the blows were inflicted, the defence has not denied the major aspects of the prosecution case as deposed by her. Strong corroboration regarding participation o both the petitioners can be found in the recoveries of weapons of and the blood-stained clothes of Taj petitioner, In addition the manner in which Riaz petitioner was arrested several days after the occurrence cannot be ignored.
12. He was then serving in the army and was on leave. Instead of spending the entire leave in his village, he returned to his unit soon after the occurrence, and surrendering the leave joined his duty.
13. ' On account of his conduct thereafter he was put under arrest by his superiors who reported to the Superintendent of Police concerned for onward transfer of his custody for the murder trial. The letter sent by the Commanding Officer in this behalf contains a statement of Riaz petitioner. It has not been used against him for good reasons because it contained some elements which would not be strictly speaking admissible ; but his conduct and the manner of his arrest are relevant circumstances I so far as question of corroboration is concerned. Be that as it may w are satisfied that the recovery of blood-stained barchhi in broken condition, at his instance, which has not been successfully assailed by the defence, furnishes enough corroboration qua his participation.
14. As to the plea that the complainant party were the aggressors and that there was no corroboration for the version of Mst. Mano suffice it to' observe that, in the circumstances of this case ; the motive on the part of the petitioners, the number of injuries on the deceased ; the weapons used ; the fact that Mst. Bhagan whose protection and safety was the sole object of the three male deceased in their effort to reach the petitioners' roof, was found murdered there the fact that three men and a woman were killed by the accused without giving them enough respite to defend themselves on their roof top, and that all the victims were empty handed furnish adequate corroboration to come to a safe conclusion that the petitioners were the aggressors. There is no justification for extending to them even a benefit of doubt in this behalf.
15. Taj petitioner was defended by counsel. Plea of, insanity as such qua the occurrence was not raised before the learned Courts below. The question of unsoundness of mind regarding trial also does not merit any serious consideration. It was not raised in such a manner, as to attract the provisions of Chapter XXXIV of the Code of Criminal Procedure. A question was asked from Mst.
16. Mano, that Taj petitioner was described as `pagal' in a plaint filed, by Riaz petitioner. She denied the suggestion qua insanity and professed ignorance about the contents of the plaint. No other circumstance has been pointed out to show that he was, in any way, of unsound mind: His own attempt through conduct and in his statement under section 342, Cr. P. C. To show that he was a brave man and could kill several persons. Having been noted by the learned trial Judge, it was rightly observed by him that it was a show of exuberance on his part and nothing else. The reliance of the learned counsel on section 465, Cr. P. C. Is of no help to the petitioner. It is only when an accused "appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence" that, a regular proceeding in this behalf is to be conducted. The conditions to attract this provision were not satisfied in this case. The agrument has no force.
17. ' This petition fails and is accordingly dismissed. Petit ion dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.