1. NASIM HASAN SHAH, J.-This order will dispose of Criminal Petition No. 412 of 1.980 and Jail Petition No. 61-R of 1980, as both seek leave to appeal against the same judgment of a Division Bench of the Lahore High Court, Lahore, passed on 17-2-1980 in Criminal Appeal No. 271 of 1978 Murder Reference No. 67 of 1978.
2. The petitioners Nos. 1 to 4, namely, Ballia (26 years), son of Shamand, Naurang (60 years), Ramzan (56 years) and Mebram (58 years), sons of Hassu and the petitioner No.5,namely, Sarwar (25 years), son of Sheru, who also later on submitted J. P. No. 61-R of 1980 through the Jail authorities, were tried alongwith their co-accused, Shahmand (72 years), son of Sardar, before the learned Additional Sessions Judge, Sahiwal under section 148, 301/149 and 452/149, P. P. C., for committing the murders of Chiragh, Sikandar, Mst. Ghulam Fatima, Mst. Bakhtawar and Manzoor Hussain (deceased), in the area of Chah Jawayawala, village Tootwala, at a distance of four miles from Police Station Noor Shah, Tehsil and District Sahiwal, on the 8th of July, 1973 at dopeharwela.
3. The learned Additional Sessions Judge found all the aforesaid accused guilty by his judgment dated 31-1-1978, whereby the accused Mehram, Ramzan, Naurang and Ballia were sentenced to death under section 3021149, P. P. C. Besides ocher sentences under sections 452/149 and 148, P. P.
4. C., while the accused, Sarwar and Shamand were sentenced to imprisonment for life under sections 302/ 148, P. P. C.
5. All the convicts filed an appeal (Cr. A No. 271/78) before the Lahore High Court, Lahore and the learned Additional Sessions Judge also referred the case (M. R. No. 67/78) for confirmation of death sentences awarded by him to the above-named four condemned accused. Both the appeal and the reference were heard together by a Division Bench of the said High Court, who by - its judgment dated 17-2-1980, accepted the appeal of Shamand and acquitted him of the charge in the case while giving him the benefit of doubt; the appeal in respect of the other convicts was dismissed and the sentences of death passed on Naurang, Ramzan, Ballia and Mehram were confirmed. The petitioners are aggrieved by the said judgment. Hence these two petitions for leave to appeal.
6. The parties are closely related to each other and were living in the adjoining houses at the said Chah Jawayawala. Naurang, Ramzan and Mehram, petitioner, are real brothers and sons of Hassu; Sardar father of Shamand, acquitted accused, was a real brother of Hassu; Sher Muhammad father of Sarwar, petitioner, was a real brother of Naurang, Ramzan and Mehram, petitioners; Ballia, petitioner, is also a nephew of Naurang etc. Mutalli father of Chiragh and Sikdandar, deceased, was a real brother of Hassu.
7. The prosecution case, briefly stated, as contained in the F. I. R., is as follows :- "Bashir, sister's son of Ahmad Din complainant, abducted Mst. Gullan, daughter of Sheru about 5/6 months prior to the occurrence, Mehram and Ramzan, accused, tried for her restoration but of no avail as she has made a statement favourable to Bashir aforementioned in a Court at Sahiwal. In consequence of this abduction, Sikandar and Chiragh, deceased, along with their families, after locking up their houses, shifted to Farm Allah Dad Deputywala, P. S. Jahanian, District Multan, out of the fear of the accused-party. They stayed there for about three months, during which period Muhammad Ali, son of Taja, resident of Farm Allah Dad brought about a compromise between the parties; in exchange for Mst. Gullan aforementioned, the hand of Shahnaz, daughter of Chiragh, deceased, was given to Khadim, son of Sheru and that of Gulzar, daughter of Sikandar, deceased, was given to Sarwar, accused, son of Sheru and as both the girls were minors, only Sharai Nikah were performed. About 1-- months after this compromise, Sikandar and Chiragh, deceased, alongwith their families came back to Chah Jawayawala. During the absence of Chiragh, Sikandar etc., Naurang and others accused had also damaged their crops. On demand of Chiragh and others, Sarang Marral, resident of Tube-well Wattuan, situate in Mauza Tootwala, stood as surety for Rs. 5,000. On the day of occurrence, the accused took Chiragh and Sikandar, deceased, to the Darbar of Pir Mastan Shah at 7.00 am. On the sane day at about 9.00 a.m., Ahmad Din complainant, came to Chah Jawayawala to see his sister Mst. Fajjab, wife of Sikandar, deceased. At noon time, Sikandar and Chiragh returned from Darbar of Pir Mastan Shah and told the complainant and others that Naurang and others, accused, had refused to take oath about their innocence. In the meanwhile, Naurang came in the 1hata of Sikandar and Chiragh, deceased, and asked them to perform the 'Rukhsatti' of Shahnaz and Gulzar but Chiragh and Sikandar, deceased, refused to do so and told him that both the girls were minors and their 'Rukhsatti' would be performed after their attaining puberty. Naurang, accused, abused them and went back saying that he would take away both the girls on that very day. A shortwhile thereafter the accused Naurang, Ramzan and Sarwar armed with hatchets; Mehram, armed with sword; Ballia, armed with Gandhasa; and Shahmand, armed with Dang, in mutual collaboration, came into the Ihata and attacked Chiragh, Sikandar, Mst. Ghulam Fatima and Mst. Bakhtawar and continued injuring them while Shamand had been raising 'lalkara' that not a single one be let to go alive. Sarwar injured Chiragh with hatchet, Ballia injured Sikandar with Gandhasa, Naurang and Ramzan injured Mst. Ghulam Fatima with hatchets and Mehram injured Mst. Bakhtawar with sword. Sikandar after having been injured, tried to run away but was clasped by Shamand at the door of the Ihata and was given hatchet blows by Naurang, The com--plainant, Ahmad Din Mst. Irshad Bibi, daughter of Chiragh and Anwar son of Muhammad, P. Ws. Entreated the accused not to kill the deceased but they were threatened by the accused and were asked by them to get away. Thereupon the P. Ws. Ran away to the Tube-well of Salehun Shah Khagga but were followed by Naurang and Ramzan (armed with hatchets) who injured Manzoor Hussain, present at the Tube-well, with hatchets. Then all the accused fled away raising 'lalkara' that they had taken revenge of the abduction of Mst. Gullan. They ran away towards Ravi. The P. Ws. Raised 'ialkaras' but none came forward for their help."
8. At the trial, the accused denied in toto the allegations that Mst. Gulzar a daughter of Sher Muhammad (Sheru) son of Sarwar (accused) and a niece of the remaining accused was abducted by Bashir; Chiragh and Sikandar, had, as a sequal to this incident, shifted to a far-off place in District Multan; Muhammad Ali (P. W. 6) had brought about a compromise between the parties whereunder the young daughters of Chiragh and Sikandar (deceased) were given in marriage to Sarwar (accused) and his brother Khadim; the deceased had on return to their houses after the compromise demanded compensation from the accused for the damage done to their crops and the accused had eventually attacked the five deceased mortally. The accused also denied the various recoveries against them. They maintained that Mst. Gulzar was married to Bashir (son of Mst. Fajjan from her first husband) in exchange of the hand of Mst. Shahnaz and Mst.
9. Gulzar, daughters of Chiragh and Sikandar (deceased), respectively; the young girls, who were, in attendance in Court during the trial, were not the same who were married to Sarwar and his brother. The accused finally pleaded that they had been implicated in the case due to enmity with the com--plainant side. No evidence was led in defence, except that Sarwar (accused) had tendered copies of Nikahnamas (DL-DM) of Mst. Gulzar and Mst. Shahnaz, daughters of Sikandar and Chiragh (deceased), respectively and D. N. Copy of first information report in a case under section 307/34, P. P. C. Registered against Sarwar, in'aurang and two others in the year, 1971.
10. In support of its version, the prosecution examined Ahmad Din (com--plainant), P. W. 10, Muhammad Anwar, P. W. 11, Mst. Lrshad Bibi, P. W. 14 and Mst. Fajjan, P. W. 15 as eye-witnesses of the occurrence. Bagga P. W. 5, Muhammad Bashir S. I., the Investigating Officer as P. W. 16 on the factum of recovery, Muhammad Ali P. W. 6 and all the eye-witnesses on the factum of motive. The eye-witnesses supported the prosecution story. P. Ws. 10, 11 and 14 stated that when they alongwith the deceased were sitting in the Ihata of the deceased, all the accused persons, while Naurang, Ramzan, Sarwar, armed with hatchets; Mehram with sword; Ballia with Gandhasa; and Shamand with sofa, entered the house of the deceased. Naurang and Ba11ia, accused, injured Sikandar (deceased) Sarwar injured Chiragh (deceased); Mehram injured Mst. Bakhtawar (deceased); and Naurang and Ramzan injured Mst. Ghulam Fatima (deceased). Sikandar (deceased) tried to run away but was caught hold of by Shamand (accused) in the door where Naurang (accused) injured him. All the deceased persons died at the spot. Then Abmad Din and Mst. Irshad Bibi, P. Ws.
11. Ran towards the tube-well of Salehun Shah Khagga, where Manzoor, Mst. Fajjan and Haq Nawaz were sitting, but Naurang and Ramzan (accused) followed them and at the said tube-well injured Manzoor Hussain (deceased) and caused his death and in that incident Mst. Fajjan P. W. Also sustained injuries at the hands of Naurang (accused). These witnesses and Muhammad Ali (P. W.
12. 6) also stated that Mst. Fajjan P. W. Was the wife of one Siddique from whom' she had a son named Bashir and after having obtained divorce from him, she married with Sikandar (deceased) and Bashir also lived with her. Bashir aforesaid abducted Mst. Gullan, daughter of Sheru and sister of Sarwar (accused). The accused persons demanded the restoration of Mst. Gullan alias Gulzar Bibi from the deceased and teased them. Sikandar and Chiragh (deceased) with their families went to Farm Allah Dad Deputywala in the area of P. S. Jahanian, District Multan, about three months prior to this incident and lived there with Muhammad Ali (P. W. 6) brother of Bakhtawar (deceased). The said Muhammad Ali then came to Chah Jawaya--wala, where the deceased alongwith the accused, their cousins, used to live and made the accused to agree upon a compromise with the deceased and in lieu of the abduction of their daughter Mst. Gullan, the hand of Shahnaz, daughter of Chiragh (deceased) and Gulzar, daughter of Sikandar (deceased) were to be given in marriage with Khadim Hussain, son of Sheru and his brother Sarwar (accused), respectively. Thereafter, Muhammad Ali (P. W. 6) brought Sikandar and Chiragh (deceased) alongwith their families back to Chah Jawayawala and made the parties to reconcile on the afore--said terms. The Sharai Nikah of the aforesaid couples were performed. As in the absence of the deceased their water-melon crops had been damaged and the accused were asked to make good the loss. Sarang Marrel stood surety for Rs. '5,000 and the accused were to give oath at the Darbar of Pir Mastan Shah. On the day of occurrence, the accused and the deceased went to the said Darbar, but the accused refused to take oath and the deceased returned to their houses where Ahmad Din (complainant) and other P.
13. Ws. Were present. It was at that time Naurang (accused) came and demanded from the deceased to send their daughters with them, but they refused to do so for the reason that the girls were still minors. But Naurang accused went away enraged and came back with all other accused armed with deadly weapons and launched the fatal attack upon the deceased. During this ocular evidence, both the girls alleged to be Shahnaz and Gulzar were produced in Court and remained present throughout in order to prove that the said girls were even still minors. The ocular evidence had further been supported by the evidence of the recoveries.
14. The learned Judges of the High Court, after thorough examination of the case, entertained no doubt that the charge against the petitioners that they had killed five deceased persons, was established beyond all shadows of doubt. However, they found the case of Shamand (accused) distinguish--able from the remaining accused; no overt act had been attributed to him; he had allegedly entangled Sikandar (deceased) when the later wanted to run outside after receiving injuries at the hands of Ballia. Shamand, petitioner, was armed with sota which he could have wielded, he was equally aggrieved by the abduction of Mst. Gulzar, sister of Sarwar (petitioner) whom the deceased had failed to restore to the petitioners; he was given the benefit of doubt and acquitted of the charge as already mentioned above.
15. Before us, the learned counsel for the petitioners now submits that the learned Judges of the High Court have not followed the principles laid down by this Court in assessing the evidence in this case; the presence of Ahmad Din (P. W. 10) at the spot is open to grave doubt; he is a chance witness and as such his testimony could not be relied upon without independent corroboration; the motive alleged is unnatural and has not been proved by cogent and independent evidence; the learned Judges of the High Court have held that recoveries at the instance of Bagga (P. W. 5) are doubtful; Bagga was the recovery witness in respect of Mehram (petitioner) and Shamand (acquitted co-accused). If the evidence of recovery is disbelieved in respect of Shamand (acquitted co-accused), then there was no reason to convict Mehram of the offence of murder on the same evidence; Mst. Irsha Bibi (P. W. 14) is a mere child witness and as such her evidence is no sufficient to sustain conviction on a capital charge; strong corroboration should, have been insisted upon which is absent in the instant case; the acquittal of Shamand on the same evidence also indicates the need, for independent corroboration.
16. These points require further consideration. We would, therefore, grant leave to appeal in these cases to consider the matter afresh.