1. JUDGMENT.
2. SHAH NAWAZ KHAN, J.-In this case leave to appeal was granted by this Court on the 16th of May, 1979, because it appeared that prima facie Mst. Fatima (P. W. 8), Mst. Zahida (P. W. 6) and Babramand (P. W. 7) .Who were in the house when it was set on fire and the whole area was lit up by the flames could have identified the assailants who bad taken part in the gruesome drama and therefore the reasons given by the High Court for not accepting their testimony did not conform to the accepted principles of appraisement of evidence.
3. The facts of the case, in brief are, that on the night between 16/17-7-1974 at about 1 a. m. Mst.
4. Fatima (P. W. 3) while asleep in her Kotha alongwith her children situate in village Kund, within the jurisdiction of Police Station, Khawaza Khela, District Swat, woke up on hearing the sound of foot- steps on the roof of the Kotha. She then awakened her children. In the meanwhile, she saw that the Aothas of her house had been set on fire. The smell of kerosene oil was coming and sufficient light had spread. She then managed ; to take out her children through a window of the Kotha. She also went out. She then saw in the light of the fire, Noor Muhammad son of Madad, Khair Muhammad son of Nur Muhammad Khan (both residents of Kund), Nunangar and Amir Nazar gons of Beladar, residents of Tarugai; Rashid and Kashmalay sons of Kund residents of Dad and Mian Gul Bacha son of Hussain Mian resident of Bandi, all armed with Topaks. She also saw Mst. Maluka daughter of Nur'
5. Muhammad Khan and Mahruna wife of Khair Muhammad residents of Kund, both armed with daggers also present over there. Khair Muhammad then shouted and said "kill them and nobody should get escaped". On this the assailants started firing on them. They then started running towards the land with a view to save their skins. As a result of firing her 6 minor children were killed and one of her minor daughter Zabida was injured on her head. She also saw Mst. Maluka and Mst.
6. Mahruna cutting the throat of Sabiba (not Bakht Sabiba) with daggers. As a result of the said fire one buffalo, four oxen one cow, and one calf belonging to her were also killed and four Kothas of her house were burnt down.
7. The motive for the offence as stated by P. W; Mat. Fatima was that about 13/14 years prior to the 'occurrence, during the rule of WaliI-Swat, Mukarram son of Nur Muhammad Khan bad been murdered for which her husband Asli Gul was charged. Ash Gul absconded after the' occurrence and this drama was staged by the assailants to take revenge and also to destroy his house. . The major son of Mst. Fatima i.e. Behramand, as mentioned by her, was also sleeping alongwith her in the house on that night but in the details which followed, he was not given any definite role nor it was mentioned by her as to what, happened to him and whereto he went. As this stage, it will be relevant topoint out that on the scene of occurrence and ,quite close to the place where the dead bodies of the deceased were found, .. Nur M%harnmad was. Also found dead. He ball died as a result,of bullet shot. Hebramand disappeared after the occurrence and nothing was known about him for several days after the occurrence but later on he returned and appeared before the Sub- Inspector of Policeand gave his statement. Mst. Fatima hided herself in the nearby maize crop and this is how she escaped the volley of fire shots.- According to her she remained hidden there till the arrival of the Police and then she came out, met the Sub-Inspector of Police and lodged the First Information Report, Exh. P. C./ 1 P. W. Momin Khan, Sub-Inspector recorded the F. I. R. Of Mst. Fatima and then he started investi--gation on the spot. He prepared the injury sheets and the inquest reports of six deceased persons which are Exh. P. D/1 to Exh. P. D/5 and Exh. P. C. To Exh. P. C/5. He also prepared the injury sheet of the minor girl, namely P. W. Mst. Zabida, who although found alive was injured. It is Exh. P. N/1. He then sent her for medical examination. He also recovered blood- stained earth from the places where the deceased persons were lying dead and. Took the same into possession vide memos Exh. P. H/1 and Exh. P. J/1. He also recovered three empties of '12 bore cartridges from the spot and took the same into possession vide Exh. P.
7. These three empties smelt fresh discharge. Five tin boxes of oil with which her house had been burnt were also found by the Investigating Officer on the spot and he took the same into possession. The blood-stained shirts of the deceased persons which had corresponding cuts and which are Exb. P. 1 to Exh. P. 6 were produced before him by Mst. Fatima 1. e. their mother, which he took into possession vide nemos Exh. P. E.I to Exh. P. F/3 and Exh. P. F. And Exh. P. F/1.
8. According to the Investigation Officer, be left Police Station, Khawaza Khela on 17-8-1974 on gusht duty at about 7.30 a. m. And registered his departure in the daily diary (Roznamcha) at Serial No. 20 on that date. He has stated that he reached village Tarugai at 9.30 a. m. And after crossing Tarugai he came to Kund where he learnt about the occurrence. Mst. Fatima met .Them at Kund where she made the report to him. The Investigating Officer also saw the smoke going up in the air from the house of the complainant. While preparing the site plan on the spot, he found that there was no abadi on any side of the scene of occurrence. Towards the North at a distance of 2J furlongs there was only one house of a Mian and there was a Khwar downwards. He found the house of Nur Muhammad (now dead) at a distance of 230 paces from the place of occurrence. In the course of investigation on 17-8-1974 be .Recovered an S. B. Shot-gun from Amir Hazar accused and a D. B.
9. Shot-gun smelling fresh discharge from the house of late Nur Muhammad accused. The distance between Tarugar and Kund according to him may be 4 or 5 miles, but it is a hilly track.
10. The, three eye-witnesses in this case are Mst. Fatima (P. W. 3), Mst. Zahida (P' W. 6) and Behramand (P. W. 7). The presence of these three persons on the spot at the time of occurrence cannot be doubted Mst. Fatima is the main eye--witness.And she had reported the incident- before the Police. She has given the details of the inter se relationship of the accused persons. Amir Nazar accused and Nunangar accused are inter se brothers: The wife of Amir Nazar accused is the niece of the wife of accused Nur Muhammad. Mian Gul Bacha accused is also the nephew 'of the wife of Nur Muhammad Khan accused. Khair Muhammad accused absconder is the son of Nur Muhammad accused. Kashmaley and Rashid accused absconders, according to her, are--not related to Nur Muhammad Khan or the other accused persons. They are shepherds and were most probably hired assassins. In her statement recorded in Court, Mst. Fatima (P. W. 3) has narrated the whole incident. She has also named Mst. Maluka and Mst. Mahruna to be present in the party of late Nur Muhammad .Khan accused, and had participated in the occurrence and that it were they who slaughtered Mst. Sahiba with daggers. In any case Mst. Mahruna died before the trial commenced and Mst. Maluka was given the benefit of doubt and was acquitted by the Sessions Judge, Swat at Saidu Sharif.
11. The six children of Mst. Fatima P. W. Who were killed in the occurrence were aged as follows:
1. Mst. Bakht Sahibadaughteraged12-13 years
2. Said Bachasonagedabout9 years
3. Mst. Sahibadaughter agedabout8 years
4. Mst. Mahbooba ,daughter agedabout7 years
5. Zahir Shahsonagedabout3 years
6. Janpasadaughter agedabout8 month The other daughter of Mst. Fatima, namely, Zahita who was seriously injured but she escaped death, was aged 5/6 years.
12. Mst. Fatima had stated that she fully identified the assailants in the light of the fire which had been set to her Kothas. She did not know as to what happened to Babramand who had been lost by her when she managed to hide herself in the maize crop. She further stated that her husband Ash Gul had been killed three months before the occurrence and the accused party wanted to ruin his entire family and burn the house obviously with a view to grab his property. Explaining her reason as to why she did not come out of the maize crop where she bided herself for a fairly long time, she stated that she was scared and moreover the firing continued till ]at hours and on account of fear she could not come out of the maize crop till the arrival of the Police. She was subjected to a lengthy cross-examinations with a view to bring out from her that her husband Ash Gul had enmity with several other persons and he was charged for the murder of several other persons, showing thereby that an attempt on the life of Mst. Fatima and to kill her children could have been made by someone else. However. She consistently stood the test. Moreover this fact cannot be lost sight of that the dead body of Nur Muhammad accused had been found on the spot and there could be no doubt that Nur Muhammad was involved in the incident, although to his misfortune he met his own death at that very place, at the hands of some one, who could not be disclosed. It is conceded by the defence that his son Khair Muhammad was with him, but as indicated above, Khair Muhammad is an absconder. However, keeping in view the nature of the occurrence and the death of the six persons each having one o more than one injuries on his/her dead body can leave no doubt in mind that it was not the act of one or two persons, but a good number of assailants had participated in the occurrence. It was another thing that Nur Muhammad was himself killed and this facilitated the identity arid location of the other culprits. Moreover, if Mst. Fatima had reason to believe that Ash Gul had other enemies also, she could implicate them but she named only those persons about whom she was sure that they bad participated in the perpetration of the crime. Mst.
13. Fatima also clarified in her statement that it was her minor daughter Mst. Sahiba and not Bakht Sahiba who had been slaughtered on the spot. Msi. Bakht Sahiba bad also been killed. It was most probably the slip of pen that Mst. Fatima bad allegedly stated before the Sub-Inspector of Police while lodging the report that Mst. Bakat Sahiba had been slaughtered because she had the opportunity of verification when she stated that Mst. Zabida, was alive, though injured.
14. Post-mortem examination of no . Dead body was conducted because Mst. Fatima bad objected to the same and according to rules prevalent in the District of Swat, on. An ,objection, the post- mortem examinations are notcarried out. However, according to Mst. Fatima P. W. And Momin Khan S. I. All the six deceased persons had suffered gunshot wounds and Mat. Sahiba had also suffered injuries with sharp-edged weapons and in the' absence of anything to the contrary, it is proved to the hilt that the deceased persons had met unnatural death.
15. Mst. Zahida was examined in the witness-box and her age at the time of trial was shown as 7/8 years but she was about 5/6 years of age when the occurrence took place. Her statement was not accepted as wholly true by the Sessions Judge on the ground that she was of tender age and had* been examined at a very late stage and some contradictions in her statement for want of understanding had been found. The other eye-witness Bahraman(P. W 7) has stated that he escaped. Unhurt because he had concealed himself behind the pullah in the maize crop and when the firing stopped, he ran away on account of fear and kept himself concealed for several days.
16. Khair Muhammad, Kashmalay and Rashid are absconders and they have not so far been arrested.
17. They were declared ;, as outlaws. The trial therefore proceeded against the four accused, namely, Amir Nazar, Nunangar, Mian Gul Bacha and Mst. Maluka. At the conclusion of the trial the Sessions Judge of Swat at Saidu Sharif held Amir Nazar, ,Nunangar and Mian Gul Bacha guilty of offences punishable under sections 148/449/302/149/ 436/1.49 and 429, P. P. C. Mst. Maluka was given the benefit of doubt and was acquitted; while Mst. Mehruna, as indicated above had died before the trial commenced.
18. The three accused named above were convicted and sentenced as follows:- One year R. I: each under section 148, P. P. C. Each one of them also to suffer life imprisonment under section 449/149, P. P. C. Under section 302 read with section 149, P. P. C. Each one to suffer death penalty on each of the six counts. Under section 436/149, P. P. C. Each one to suffer imprisonment for life and under section 429/149, P. P. C. Each one to suffer R. L for five years on each of the seven counts.
19. All the sentences of imprisonment were ordered to run concurrently if their death sentences were riot confirmed.
20. The convicts filed an appeal before the Peshawar High Court and reference was also made by the Sessions Judge for confirmation of death sentences awarded by him under section 374, Cr. P. C. A Division Bench of the Peshawar High Court after hearing the appeal discredited the prosecution versiTn of the occurrence. They disbelieved the statement of Mst. Fatima and held that if Mst.
21. Fatima had to remain on the, spot or near about it, as has been claimed by her, it is impossible to believe that she would not have count--ed the deceased and would not have stated lit her First Information Report that all the. Children except Zahida had died while the fact of the matter was that her son Behramand remained aliveand appeared as P. W. 7 and she did not utter a word about the dead body of Nur Muhammad who had been killed at the spot. It will be appreciated that this conclusion of the High Court appears to be ill-conceived because Mst. Fatima knew as to who had died and the mere fact that she makes no mention of Behramand or she does not mention that Nur Muhammad had also been killed on the spot, it would mean the Mst: Fatima was not present on the spot. Mst. Fatima has stated that after the firing all her children except Zahida had been killed and that she escaped unhurt because she entered the maize crop with a view to save her skin and hided herself. Bahramand on the otherhand has stated that he too hided himself behind a pullah and when the firing was over, it was still darkness, and he ran away from the place of occurrence. This may be the reason that Mst. Fatima did not know as to what later happened to him. It also falsified the version of the defence that the report was made by her after full consultation with the Police or some one else. She had found Zahida lying injured on the spot and that she was alive. This may be the reason why she did not mention before the police that Nur Muhammad had also died on the spot and why she should say so, because he was on adversary.
22. The High Court believed that the child witness, namely, Mst. Zahida had been rightly disbelieved by the trial Judge. In our opinion the High Court did not fully appreciate the statement of Mst. Zahida.
23. Mst. Zahida was admittedly very minor when the occurrence' took place but it should not mean that she could not identify the persons whom she bad seen or known before or at the time when the occurrence took place. However, her presence on the spot could also be not doubted, because she also suffered injuries and those too on the spot. It would thus show that she had also come out of the house through the window as stated by P. W. Mst. Fatima. She further stated that Nur Muhammad accused (deceased) was accompanied by his party men for their attack and she clearly mentioned that one of his party men was his son. She also stated that in the party besides, Nur Muhammad and his son Khair Muhammad there were also 5 males. Her statement to this extent is relevant. She further stated that the accused were visible when they were attacking the deceased persons. The deceased were -attacked from a very close quarter and this part of the statement of Mst. Zabida could not be rejected for any valid reason, when the whole area was ablaze due to substantive fire. She was cross-examined when she stated that when she was awakened by her mother, (as stated by Mst. Fatima), "I heard the report of the fire shots and during firing all of us went out". In her statement before the Police (copy Exh. D. A.) she had mentioned the names of Nunangar and others. She was confronted with that statement. In that statement Mst.
24. Zabida bad mentioned the names of Noor-ke Baba, his son Khair Muhammad, Mahroona, Maluka, Nunagar and some other men standing outside. To that extent she has rather supported Mst.
25. Fatima P. W. The presence of Bahramand (P. W. 7) on the spot at the time of occurrence was not seriously disputed. It was rather suggested to him at the trial whether he knew as to who had murdered Nur Muhammad and as to whether Nur Muhammad was murdered at the very spot of the occurrence Mst. Fatima (P. W. 3) had also been asked, in cross-examination, if she and Bahramand being major ones had run away leaving the murdered children on the spot, and whether it was a fact that on the night of occurrence at Khuftan time Nur Muhammad accused (murdered) had come to their house to ask from her and Bahramand the hand of Mst. Bakht Sahiba (deceased) for his son and during nego--tiations an altercation took place between her and her son Bahramand on one side. And Nur Muhammad Khan accused (now dead on the other.
26. She was further asked, if it was a fact that she and Behramand bad run away shutting their eyes without seeing the culprits. She denied these suggestions. These questions put to Mst. Fatima and Bahramand would rather suggest that the accused had no doubt in mind that both these witnesses were present on the spot at the time of occurrence.
27. There is nothing on record to show if Mst. Fatima has any close relative living nearby whom she could consult before lodging the report. Had it) been so, there should not have been any reason for her to go to Shera Khan(D. W) as alleged by him, for such consultation. Bahramand undoubtedly left the place and disappeared after the occurrence but it is not clear whether Nur Muhammad accused met his end at his hands or being scared Babramand ran away from the spot to take shelter far away from Swat District and when he was sure that there was no case registered against him, he returned. In his statement recorded in the Court, he specifically charged the three accused (respondents) besides Nur Muhammad (now dead) and the other accused persons who are absconders for intentionally causing the deaths of six deceased persons, all infants, who were his brothers and sisters. The presence of Mst. Fatima on the spot as indicated above could not be doubted also for the reasons that one of her children was only 8 months old who had been murdered just outside the house and at the place where the other deceased children had been killed. Who took this child outside the Kotha or the verandah, as the case maybe, to the place where she was murdered, Mst. Fatima P. W. Was definitely there with the children and it stands proved on record that when her house was set on fire, she led the children outside the Kotha. It is quite understandable that she as also her adult son Bahramand could manage to hide themselves in the nearby field of maize crop being majors, while the children being all of young age were unable to move about quickly and thus they failed to save themselves from the shots fired on them. Each child suffered one or more than one fire-arm injuries and therefore, the suggestion that these were caused and the house was set on fire by Khair Muhammad alone or with Nur Muhammad who himself lost his life, there and then cannot be accepted.
28. The other suggestion of the defence that Nur Muhammad accused (now -dead) had gone to the house of P. W. Mst. Fatima on the night of occurrence and that too, not much, after the death of her husband, at late Khuftan time, with a view to demand t4he hand of her deceased daughter Mst.
29. Bakht Sahiba for his son Muhammad Diyar, his on its very face ridiculous because it is proved on record that Muhammad Diyar had been murdered about 40 days before the night of occurrence and therefore Nur Muhammad's demand for the hand of Mst. Bakht Sabiba for Muhammad Diyar could not arise.
30. The Investigating Officer had also found a rifle on the spot which had been burnt down and its barrel and body bearing No. 482 contained only, one used empty of '303 bore cartridge under the debris of . The burnt Kotha of P. W. Mst. Fatima. He took the same into possession vide memo. Exh. P.
31. M/1. It has not been made clear as to whose rifle it was and who bad used the same and how it was burnt and it got buried under the debris of the burnt Kotha. This might rather suggest that somebody inside the Kotha of Mst. Fatima was in possession of this rifle and he had fired shot with it. The licensed D. B. Shot-gun of Nur Muhammad deceased had been found in his house by the Investigating Officer on 17-8-1974 and it sweIttl fresh discharge. This could possibly be the reason why Bahramand P. W.Had run away from the spot during the occurrence or soon thereafter.
32. The High Court has relied upon the statement of Shera Khan, D. W. Who stated that on the night of occurrence at about 4 a. m. Mst. Fatima came to him and apprised him of the occurrence. Shera Khan P. W. Belongs to village Tarugai and according to P. W. Momin Khan, S. H. O. Village Tarugai is at a distance of 4/5 miles on a hilly track from village Kund where the occurrence took place. How P. W. Mst. Fatima left her 6 deceased children on the spot when her own life was also at stake and went to the house of D. W, Shera Khan, through a hilly track for about 4/5 atnight time to acquaint him about the occurrence and consult him about hey report, is not understandable. Shera Khan, has stated that he refused to accompany her to the Police Station. D. W. Sher Khan is closely relate to the accused. Moreover the husband of P. W. Mst. Fatima was alread3 dead, therefore he had no more any interest in Mst. Fatima or her children. His statement read as a whole coupled with his conduct as recorded by the trial Judge will leave us in doubt that he has not spoken the truth.
33. Moreover P. W. Momin Khan, S. H. O. Has stated that at about 9.30 a. m. When he reached Tarugai, he took D. W. Shera Khan alongwith him and brought him to the spot. This also falsifies the version of Shera Khan that he reached the spot at the earliest, after the, occurrence.
34. The learned Judges of the High Court took note of the statement ofP. W. Mst. Zahida when she stated that her mother was missing on the following morning. But she had also stated that when she was given a blow on her head she became sleepy. This is exactly what she told the police that after she was thrown on the ground she did not know what happened later. When Momin Khan S. H.
35. O. (P. W. 9) visited the spot, at that time Mst. Fatima was also there with him. He found Mst. Zahida lying injured and it was from there that she was sent for medical examinationafter her injury sheet was prepared by him. Mst. Zahida was examined by Doctor Taj Muhammad on 18-8-1974 at 4-00 p. m. A blunt injury at the left temporal side of the head with nose bleeding was found on her, and she was in semi-coma condition. This would show how far this young girl was expected to remember all the events after she sustained the injury, which according to Doctor Taj Muhammad could possibly cause death.
36. We are consequently of the opinion that the two-witnesses of the occurrence, namely, Mst. Fatima (P. W. 3) and Behrmand (P. W. 7) are consistent in charging the three accused (respondents) for participating in the gruesome tragedy, which took the lives of six innocent children one of whom was only 8 months old. Statement of P, W. Mst. Zahida also supports the version of the two above- mentioned eye-witnesses substantially and her version cannot be rejected totally for the reason that she is a minor girl and she was not expected to be steady and consistent all the times.
37. However, the statement which she made while answering cross-examination could by no stretch of imagination be treated as tutored.
38. The result of the above is that we would have no hesitation in setting aside and vacating the judgment of the High Court dated 17-2-1977, and while convicting and sentencing the three accused respondents of the charges framed against them, we restore the order of the trial Judge.
39. MUHAMMAD HALEEM, J.--I agree.
40. SHAFT-UR-REHMAN, J.--I agree.