1. MUHAMMAD AFZAL ZULLAH, J.-This jail appeal through special leave calls in question judgment dated 28-1-1977 of the Sind High Court whereby in a case of multiple murder and other offences, while allowing the appeal of one of the convicts, namely, Mastoo, the appellants' appeal from conviction and sentence of death for ten murders was dismissed. Leave to A appeal was granted for reappraisal of the evidence in order to see whether the principles of criminal justice were followed by the learned Courts below.
2. Three accused, who were convicted by, the learned trial Court, namely, Allan, Bakhtiar (the two appellants) and Mastoo were, alongwith Shanu, Ramzan and Salahu, sent up for trial for various offences under sections 302, 307, 436, 395, read with sections 149 and 1.48, P. P. C. Khan Muhammad accused was, however, charged only under section 302/114, P. P. C. Allan, appellant was also tried for an offence under section 404, P. P. C. Salahu, accused, however, subsequently became an absconder, and did not face the trial to its conclusion. Shanu, Ramzan, and Khan Muhammad were acquitted by the learned trial Judge. On appeal, Mastoo was also acquitted. All these acquittals were on extension of benefit of doubt. There was no appeal against any of the acquittals. This appeal accordingly relates to Allan's and Bakhtiar's convictions and sentences.
3. Ten persons were murdered on the night between the 30th and 31st of August, 1968 in a gruesome manner in the house of one Haji A.I Gaubar in Deh Kharho, Taluka Sinjhoro, District Sanghar. Their particulars are: Mst. Janul aged 30 years, Mst. Lalan aged 25 years. Gull Bibi aged 6 years, Madad A.I aged 4 years, Nazar Muhammad aged 12 years, Ghulam Rasool aged 30 years, Ms(. 7.Ainab aged 3 years, Ganhwar, aged 8 years, Manjhi aged 25 years and Habibullah aged 20 years. Mst.
4. Sahiban, Mst. Nawabi and Himat A.I received gunshot injuries. The weapons used by the culprits were fire-arms. The house of Haji A.I Gauhar which was virtually brought under attack was also set on fire on account of which the household articles and a few cattle were also burnt. Manjhi one of the deceased, who had attempted to use gun of Haji A.I Gauhar, did not succeed in preventing the carnage. He not only lost his life but also the gun (of Haji A.I Gauhar) which was taken away by the culprits, The licensed gun of Khan Muhammad, who had not participated directly in the occurrence, was used in the crime. He was accordingly charged with the offence of abetment only. Bajhi, P. W., an eye-witness, lodged the report during the same night of occurrence at Police Station Sinjhoro, six miles away from the place of occurrence. The rendering to the F. I. R. By the learned trial Judge reads as follows :- "Complaint is that Haji son of Amir Bux Lashari is my uncle (Phophar) and Punhoon son of Fateh Muhammad Lashari is maternal uncle of Haji and he is my paternal uncle. We were originally residing in Pir Baqar Shah Village Taluka Ghari Yaseen. About 10/12 years ago, Haji was promised the hand of my aunt Mst. Janul d/o Koral Lashari and even betrothal ceremony had taken place.
5. But subsequently Mst. Janul was promised to be given in marriage with Ramzan son of Dolan Lashari resident of Pir Baqar Shah and the woman was made to sit in (wonwah) for the marriage from where Haji abducted my aunt. Mst. Janul and he kept himself concealing. His brother Ghulam Rasool was also with him. They are living in Deb Garho. Punhoon maternal uncle of Haji, after his settlement, shifted and settled with Haji. About three months ago I with my wife Bibul, my brother Manjhi his wife Mo. Lalan and Ganhwar shifted with our property and are living with Haji and others in Deh Garho, Taluka Sinjhoro. There is a hedge around our houses. There is an entrance in the hedge on western side which is closed at height with thorns. My uncle Haji had gone to Kandh Kot side with his personal work about one week ago. Haji has a licence for a gun and his gun was also in the house. Yesterday after sunset, Saleh Khaskheli resident of Rukan Buriro had stayed with us as a guest. Saleh and Haji's brother Ghulam Rasool were sleeping outside the house on the southern side. My brothers Manjhi, Ganhwar, my cousin Hubibullah my uncle Punhoon and other members of the family were sleeping in the Courtyard of the hou3e. The entrance of the hedge was closed with thorns. At about midnight time gunshots were fired. On it I and all other family members woke up.
6. All of a sudden, the southern side of hedge was on fire. My brother Manjhi who had gun of Haji with him took is and ran towards the entrance. As he was going towards the entrance, gunshots were fired at him and he fell down. Four persons armed with guns entered through the entrance. In the light of fire I identified that they were Allan, Mastu, Saleh, Bakhtiar Lasharis residents of Pir Baqar Shah. Allan picked up the gun immediately from Manjhi and entered the house. I Mst. Janul who Haji and her children entered the room which had no door. I concealed myself on the western corner on the back of bed stand. I saw in the front that the above four accused fired gunshots at Mst. Janul and her children through the open door. .On this Mst. Janul, her sons, Nazar Muhammad and Madad A.I and daughters Gulli and Zaini were injured and died there. Thereafter gunshots were fired continuously and the children and the women continued raising cries. After some time the firing was stopped. Allan's party said that now aim was accomplished and they should return. They went towards the entrance. After some time I went out of the house. My uncle Punhoon also came out from bin who told me that there were six persons in A.I Out of them four Allan, Mastu. Saleh and Bakhtiar Lasharis had come inside while Shanu and Ramzan Lakhsaris were standing at the entrance who had fired at Ghulam Rasool and made him to fall down. Ganhwar, Mat. Lalan and others were fired inside. Then I saw that my brother Ghanwar was lying dead at Platform (Thallah).
7. Habibullah, Himat A.I, Mst. Nawabi wife of Punhoon ,Mst. Sahiban wife of Fateb Muhammad were injured. Thereafter we kept the dead-bodies and the injured outside the enclosure due to fire, so that they may not burn. We tried to extinguish the fire and took out goats from inside. At that time Saleh Khaskheli the guest, also came there and told us that in the light of fire he had seen all the six culprits well and he would be able to identify them on seeing. The fire spread and hence we could not take out anything from there. Due to fire all our household articles clothes, beddings, etc. And a pair of bullocks have been burnt. My uncle Punhoon told me to go to police and to lodge the report.
8. I have come and I lodged the report that accused Allan, Mastu, Salahu, Bakhtiar, Shanu and Ramzan Lasharis, residents of Pir Baqar Shah, armed with guns, due to the above shown enmity, attacked our house, set our house on fire have committed murders and caused injuries with gunshots and they have taken away the licensed gun of Haji who will give the licence and details of the gun. Investigation be carried on."
9. The ocular account of the occurrence mainly in confirmation of the F. I. R., was given at the trial by the complainant, Bajhi, his wife Mst. Bibui and Muhammad Saleh (who was staying with them as a guest). Their version at the trial was that they were asleep when at about midnight, on account of the report of the gunshots they woke up. It may be stated here that Bajhi and Mst. Bibul, P. Ws, were on the day of the occurrence residing in the same house which was brought under attack. Saleh and Ghulam Rasool brother of Haji A.I Gohar were sleeping outside the hedge. Ghulam Rasool ran towards the house and he was fired at. He was injured and died there. Saleh ran from there and concealed himself in cotton cultivation. Two persons namely, accused Shanu and Ramzan remained standing at the entrance of the hedge, while other four accused, namely, Mastoo, Allan, Bakhtiar and Salhu entered the house. Manjhi had gun of Haji A.I Gauhar with him. He got up with the gun and ran towards the entrance in the hedge. He was fired at, got injured, fell down and died there. His gun was picked up by accused Allan. All these accused were armed with guns. The complainant Bajhi and his wife Mst. Bibul ran inside the room and concealed themselves behind the bed-stand. The accused continued firing guns, caused the deaths of Mst. Janul, Madad A.I, Nazar Muhammad, Gul Bibi, Ghulam Rasool, Zainab, Mst. Lalan, Ganhwar and Manjhi on the spot.
10. Habibullah, Himmat A.I, Mst. Sahiban and Mst. Nawabi were injured by gunshots. (Habibullah died in hospital subsequently). Thereafter the accused set fire to the house of Haji A.I Gauhar. One of the accused exclaimed that their work was accomplished and them they left that place. Punhoon uncle of the complainant Bajhi and maternal uncle of Haji A.I Gauhar was also in the house and he had concealed himself in a (wheat) bin. After the incident, complainant Bajhi, Mst. Bibul, Punhoon and Saleh came out of their places of concealment. They removed the dead --bodies and the injured persons from the house to a place outside 'the hedge, so that they might not burn. They also took out the goats from there. During this time, the fire had spread in the house. The house, the household articles and two bullocks were burnt. Bajhi and Mst. Bibul further stated in their depositions in Court that they had seen and identified all the accused namely, Ma stop, Bakhtiar, Ramzan, Shah Nawaz, Allan and Salahu who were armed with guns. Punhoon had informed complainant Bajhi that there were in all six persons and he had identified them. Out of them Shah Nawaz and Ramzan had stood at the entrance of the hedge, while the other four bad entered the house. Saleh also informed the complainant that the culprits were six in all and he had seen their faces well in the light of fire and he could identify them subsequently. He also picked out accused; Mastoo, Bakhtiar, Shah Nawaz, Ramzan, Allan and Salahu in the identification test.
11. Apart from the three eye-witnesses mentioned earlier, there were three other persons, who had not only witnessed the occurrence but were also injured in the attack: They are, Punhoon, his mother Mst. Sahiban and wife Mst. Nawabi. They were not examined at the trial on the explanation offered from the prosecution side that it was on account of the fear of Salahu, the absconding accused that they were not ready to appear in Court. It seems as if these witnesses on account of their conduct bad made it known to their co-victims that they were not likely to appear as prosecution witnesses, that is why Bajhi, P. W. Made an improvement with regard to identification of Shanu and Ramzan accused who were initially identified by Punhoon, the un-examined witness. This also is one of the reasons why those two accused persons were given benefit of doubt and acquitted by the learned trial Judge.
12. The prosecution case was sought to be supported by several items of circumstantial evidence. Haji A.I Gauhar apart from being a witness of motive had also deposed that when he reached the place of occurrence at about sunrise the names of the culprits were disclosed to him by the witnesses.
13. Altaf Hussan, a taxi driver and Ghulam Mohiuddin, a Police constable, were examined to prove that on the day of occurrence, the accused were seen by them getting down from a bus at the stand of Ghalam Mohiuddin Memon a nearby place and some of there were carrying fire-arms. These two witnesses were put to identification test. Evidence was also led with regard to footprints left by the accused as also with regard to incriminating recoveries. A single-barrel, gun was recovered from Bakhtiar, accused. It was licensed in the name of Khan Muhammad, accused the licence being Exh.
53. Allan appellant, had on his arrest produced a gun which belonged to his father. He also produced. The stolen gun, after digging it out from a place known as Rukan Barira. Two more guns were alleged to have been produced by Salahu, absconder. That recovery is not directly relevant in so far as the present appeal is concerned. The crime empties recovered from the spot, according to Mukhtar Ahmad P. W., the ballistic expert, were fired from the guns recovered from Bakhtiar, Allan and Salahu accused. It is interesting to note that 25 cartridges were purchased on the licence of Khan Muhammad accused on the day prior to the night of occurrence. This is so mentioned on the licence itself. When examined under section 342, Cr. P. C., all the accused denied their participation in the occurrence as also the items of evidence mentioned above. They did not produce any evidence in defence except. That Bakhtiar, appellant produced record of a previous murder case, for reliance in this case.
14. The learned trial Court gave benefit of doubt to Ramzan and Shanu accused, mainly for the reason that Punhun, P. W., who had initially identified them as having fired at Ghulam Rasool was not examined at the trial. Khan Muhammad, an abettor, was also acquitted and Saleh having absconded the remaining three accused, namely, Mastoo, Allan and Bakhtiar were convicted for various offences mainly on the basis of the direct ocular evidence which also stood corroborated by incriminating recoveries from Bakhtiar and Allan. On appeal, the learned Judge in the High Court gave further benefit of doubt to Mastoo and confirmed the conviction and sentence awarded to Allan and Bakhtiar on the basis of the ocular account ac corroborated by incriminating recoveries.
15. We have with the help of learned counsel gone through the evidence. Learned counsel appearing on behalf of the appellants has contended that it was a reckless firing during the night and several innocent children were killed against whom none of the accused had any motive, therefore, identifica--petition neither of the intended victims nor of the culprits was possible; that Bhaji (complainant) and his wife Babul p. Ws. Were not in the house otherwise they would not have been spared by appellants (if they were the culprits) that Ramzan and Shanu, accused, two innocent persons were involved from the stage of F. I. R. By the eye-witnesses, therefore, they should not be relied upon ; that the two eye-witnesses believed by the High Court are interested against appellants, therefore, conviction could not be based on their testimony without strong corroboration ; that the recoveries of the guns from the appellants even if believed would not inculpate them because all the guns recovered from them belonged to other persons; that in a previous murder case in which two persons including the father of Mst. Babul, lost their lives, Allan, appellant, was a witness against Bakhtiar appellant and two others (the accused in that case) and Khauro, the father of Allan was the complainant therein, therefore, Allan and Bakhtiar could not have joined together in this crime. For all these reasons, learned counsel argued, it is a case of benefit of doubt for the appellants.
16. The first argument is of no substance. Even in the defence hypothesis, whosoever the culprits were they, likewise, would not have intended to take the lives of innocent children. In fact it has no relevance to the question of identification during the occurrence. The attack was on Haji A.I Gauhar's house and the intention was to finish every thing. If the house and the hedge around it which, it is in evidence, was fairly high would not have been put on fire, then the question of light might have presented a controversy. The eye-witnesses claimed to have identified all the culprits in the light of the fire raging all around the house which had flood-lit it. There is nothing improbable about it.
17. It is true that Bajhi, complainant and Mst. Babul, his wife, were not injured and a question might arise that they might not be there. But the treatment of this aspect by the High Court seems reasonable. These witnesses claimed to have given up their earlier abode elsewhere few months earlier and were living in the Basti of Haji A.I Gauhar. They could not have been brought from their earlier abode during the night time before the lodging of the F. I. R. Which was prompt. No one would have ventured this act of daring during the night which was without any advantage, as there was no need to do ' so. Other persons admittedly, were available (including the injured ones) who could inform the police and also could be mentioned as eye-witnesses. Indeed other names were mentioned in the F.1. R. The fact that Bajbi and, his family were residing there is further supported by the fact that his own two brothers were killed in the occurrence, one of these was a boy. There is no doubt that eye-witnesses did see the occurrence by concealing themselves at a place, where providence saved their lives, because the culprits did not see them. There is nothing impossible about their claim.
18. Shanu and Ramzan accused were not declared by the trial Court as such type of innocent persons, who were falsely implicated. They were given benefit of doubt only because Punhu could not be examined as eye-witness. Otherwise the evidence against them was not of a weak character: Even the signatures of one of them had been proved on a document connected with the purchase of cartriges on the gun licence of Khan Muhammad, accused, which was recovered at the instance of Bakhtiar, appellant. The mention of the names of Shanu and Ramzan who had also the common motive, in F. I, R., was not without support of evidence. Their acquittal does not show- that they were not involved in the crime which, it is not improbable, was committed by several persons. It is on a salutary principle of criminal justice that only benefit of doubt, perhaps by way of abundant caution was extended to them. It cannot, therefore, benefit the appellants.
19. The learned Judge of the High Court extended the maximum benefit of all principles in this behalf to the accused party. They applied the rule of corroboration because of the possible adverse interest of the eye-witnesses and after finding strong corroboration maintained the conviction of two and acquitted yet another accused, i.e. Mustafa. The evidence about recoveries C has rightly been believed. And, we see no force in the argument of the learned counsel (in this behalf) that the guns belonged to other persons. The other persons in this case incidentally are also such from whom the appellants could have taken then-one of the guns belonged to Haji A.I Gauhar which was taken away by the culprits during the occurrence.
20. The last argument of the learned counsel after careful scrutiny, has also been found to be of no force. Bakhtiar, accused, himself relied on the record of the previous case in which Allan was an eye-witness against him. The occurrence therein took place in 1953. Bakhtiar, his brother and another accused therein remained absconders for 15 years. This occurrence took place in 1968.
21. Bakhtiar and Allan were arrested in `this case few days after the occurrence and then remained in jail for about 4 years when Allan appeared as witnesses in the earlier case in 19'72, during the pendency of this case. The High Court has observed that there was a compromise in the previous case. This was not at all unlikely. All these persons are closely related to each other within first degree. They had a common motive in this case which relate-able to an old family sore. The intended victims were changing their abodes all the time in order to save their lives. The period of 15 years between the previous and the present occurrence was not short for the appellants to have joined hands for a crime which all the accused committed. The mere fart that a contrivance to put a cloud seems to have been thought of during the subsequent four years in jail (of Allan's appearance as witness against Bakhtiar despite this case) would not displace the entire evidence against them which is strong enough to maintain the convictions. It is not out of place in this behalf to mention that the record of the previous case relied upon by the accused during the trial proceedings reveals that the father of Allan, appellant, who an eye--witness and complainant in the previous case did not support the prosecution against Bakhtaar and the State itself had applied for this lesson to withdraw the case. It accordingly stood practically closed on account of this development. It is also not without relevance that Allan and Bakhtiar file a joint appeal 1 in the High Court and engaged a common counsel who argued the same. There was nothing improbable, in the circumstances of the case, for the two appellants to have joined together in this crime. They hay rightly been convicted and sentenced.
22. The appeal has no force and is accordingly dismissed.