KH1ZAR HAYAT, J.-Jamal armed with gun, Jan Muhammad, Naseer, Noora armed with hatchets, and Allah Bakhsh and Bashir Ahmad, armed with Dangs, having formed an unlawful assembly, in prosecution of their common object murdered five persons, namely, Faiz Bakhsh, his wife Mst.
Bakhan Mai, his mother Mst. Saddan Mai, his brother Saifal and one Khadim Hussain, and made murderous assault on Bahawal Bakhsh son of Faiz Bakhsh, Fateh Muhammad, Ghulam Sarwar, Mst. Mubarak Mai, Sadiq and Hamida Kbatoon, kiich and kin of aforementioned Faiz Bakhsh (deceased) and Ghulam Sarwar son of Allah Diwaya in the house of Saifal. They were tried by the learned Additional Sessions Judge, Multan, who by his order dated 4-6-1978 convicted them as under: Name of appellants Offence under sectionSentence Jamal, Jan Muhammad, 302/149, P. P. C. Death penalty and Noora and Naseer.a fine of Rs. 2,000 each on each count.; Indefault of pay--ment of fine, to undergo R. I. For 2 years each.
Bashir Ahmad and Allah 302/149, P. P. C.Imprisonment for Bakhsh life and a fine of Rs.2,000 each on each count. In default of payment of fine, to undergo further R.
1. For two years each.
Jamal, Jan307/149, P. P. C.Rigorous imprison-- Muhammad, Noorment for one year Ahmad, Naseer,and a fine of Bashir Ahmad andRs. 500 each. In default of payment Allah Bakhsh.Of fine to undergo further R. I. For six months each.
Jamal, Jan Muhammad, Noor Ahmad, Naseer,452, P. P. C.Rigorous imprison-- Bashir Ahmad andment for six months Allah Bakhsh.Each.
Jamal, Jan Muhammad, Noor a, Naseer,148, P. P. C.Rigorous Imprison-- Bashir Ahmad and Allahmeat for one year Bakhsh.Each.
The fine, if realised, was directed to be paid to the legal heirs of the deceased persons.
2. All the aforesaid six convicts have challenged their convictions and sentences in this Court through a joint appeal (Cr. A. No. 694 of 1978), reference under section 374, Cr. P. C. (M. R. No. 216/78) for the confirmation of the death sentence awarded to Jamal, Jan Muhammad, Noora, and Naseer, is also before us. We propose to dispose of the appeal and also the reference by this judgment.
3. The incident had taken place at Namaz-wela (morning prayers time) on 8-7-1973 within the area of village Khanpur Kazian. It was reported at Police Station Shujabad, District Multan, at 8-45 a. m., the same day, by Bahawal Bakhsh (P. W. 15). Inayat Muhammad Sub-Inspector (P. W. 19) recorded his statement Exh. P. W. 15-A, as F.
1. R. Of this case.
4. According to the F. I. R., the complainant, Bahawal Bakhsh, woke up on hearing the reports of gun fires at Nimaz-wela (morning prayer time) and saw that his uncle Saifal, who had gone out to ease himself came running to the courtyard of the house with a. Bleeding wound on his leg. He told the complainant that heirs of Mst. Meero, namely (1) Jamal (brother of Mst. Meero), (2) Jan Muhammad (husband of Mst. Meero), (3) Naseer (son of Mst. Meero), (4) Noora. (5) Bashir Ahmad and (6) Allah Bakhsh (relatives of Mst. Meero), variously armed, have arrived outside the house and that he was fired at and injured by Jamal. He then concealed himself in an iron box (Paiti) lying in a room to save his life, Faiz Bakhsh (father of the complainant and brother of Saifal) went out of the Abata. Jamal asked him to send Saifal out but he refused to do so. He also stopped them from entering the house, whereupon Jamal shot him down. All the accused then entered the Ahata. Mst.
Saddan Mai, an old lady (mother of Saifal) stood in their way but she was also gunned down by Jamal. The assailants tried to enter a room in search of Saifal but this time Mst. Bakhah (mother of the complainant) blocked their way by standing in the door. She too was fired at by Jamal and given a hatchet blow by Noora, as a result she died instaneously. Saifal (deceased) was at last spotted and pulled out of the iron-box by Jan Muhammad, Naseer, Noora, Allah Bakhsh and Bashir, accused. Jan Muhammad, Noora and Naseer showered hatchet blows on him, who fell dead on the spot. Ghulam Sarwar son of Allah Diwaya (P. W. 17) and Khadim Hussain (deceased) were attracted to the spot. Seeing them arrive, Jamal fired at them also hitting Khadim Hussain fatally in his chest but Ghulam Sarwar survived with a simple hurt. Mst. Bhirawan (P. W. 18), Ghulam Sarwar son of Fateh Muhammad (P. W. 16), Mubarak Khatoon, Fateh Muhammad and two children, namely, Sadiq aged 8/9 years and Mst. Hamida Mai aged 5/6 years also received gun shot injuries.
Bahawal Bakhsh, complainant, suffered stick blows at the hands of Bashir Ahmad, during the occurrence. Having inflicted heavy casualties on the unfortunate family, the accused party decamped from the scene, raising lalkaras.
5. The motive as stated in the F. I. R. Is that Mst. Meero wife of Jan Muhammad, appellant, sister of Jamal, appellant and mother of Naseer Ahmad, appellant was abducted by Saifal, deceased, about 21 years prior to the occurrence. She was restored through a Punchayat but again she eloped with him a year before the occurrence whereupon Jan Muhammad 'got a case registered under Martial Law Regulation against Saifal, Khadim Hussain and Mst. Mubarak Mai. Mst. Meero was recovered and lodged in Darul-Aman, Multan, under the order of a Court. She was once again taken away by Saifal from there about a fortnight before the present occurrence. Having learnt about it, the relatives of Mst. Meero got infuriated, hence this occurrence.
6. Inayat Muhammad, Sub-Inspector (P. W. 19) after registering the case, reached the scene of the tragedy. He collected blood-stained earth from underneath each dead body and made them into, separate sealed parcels. He secured five empties, an iron box (Paiti) bearing blood stains and a few cut marks, besides a pair of shoes of Saifal, deceased. The same day, Karam Dad, Constable (P. W. 6) who escorted dead bodies to the mortuary for autopsy, brought and produced their last worn clothes before the Investigating Officer who seized them, vide memo. Exh. P. W. 6-A. He then sent the injured persons for medical examination.
7. On 8-7-1973 at 5-30 p. m., Lady Dr. Rashida Sohrawardi, W. M. O. (P. W. 1) medically examined Mst.
Bhirawan and found on her person two fire-arm injuries on the left forearm and right knee, vide medico-legal report Exh. P. A. On the same day, Mst. Hamida Mai and Mst. Mubarak Mai were also examined by the same lady doctor who noted 5/6 fire-arm injuries each on their persons. Their injuries were found simple in nature vide medico-legal reports Exh. P. B. And Exb. P. C.
8. On 8-7-1973, between 6 p. m. And 7-15 p. m., Ch. Muhammad Rafi (P. W. 2) medically examined the male injured persons of the complainant party. He found one fire-arm injury on the person of Ghulam Sarwar son of Allah Diwaya, 7 fire-arm injuries on the person of Muhammad Sadiq, 3 fire- arm and 2 blunt weapon injuries on the person of Fateh Muhammad, 3 abrasions and 2 blunt weapon injuries on the person of Bahawal Bakhsh, vide their medico-legal reports Exhs. P. V., P. W., P. X. And P. Y. Respectively. All these injuries were found simple in nature.
9. The same doctor held autopsy on five dead bodies between 6 and 12 noon on 9,7-1973. To avoid unnecessary details, only the fatal injuries found sufficient to cause death in ordinary course of nature, on each dead body are summarised below: - (1)On the dead body of Khadim Hussain, three out of five fire-arm injuries suffered by him were found individually fatal, according to the post-mortem examination Exh. P. A., which are as follow :-
(1) A circular contused wound --'' x --'' on the front of chest 1'' inner to the nipple. The left lung was pierced. Pellet was embedded in the right ventricle of heart.
(2) A contused wound --" x --'' on the left side of chest 3'' below and outer to the left nipple piercing the left lung diaphragm and the stomach striking the vertebra, the right chest.
(3) A contused wound --''x --" on the left side of neck. The carotid vessels were ruptured.
The pellets recovered from these injuries were sealed in a phial and handed over to the Constable.
The -time between injuries and death was immediate and between death and post-mortem examination 25 to 30 hours.
(II) On the dead body of Faiz Bakhsh, two out of three fire-arm injuries suffered by him were found fatal, vide post-mortem examination report Exh. P. R., which are detailed below :-
(1) Two circular wounds 1/2"X 1/4" inverted edges on the left side of abdomen. The intestines were lacerated. Two oval exit apertures --" x --'' on the right side of abdomen with everted edges.
(2) A contused wound --'' x --'' on the right side of chest below the nipple. The liver was lacerated.An oval exit aperture 1'' x --'' on the front of abdomen everted edges.
Time between injuries and death was immediate and between death and post-mortem examination 25 to 33 hours.
(III) On the dead body of Saifal, son of Fateh Muhammad, 8 injuries were found. Out of them 6 were caused with sharp-edged weapon and 2 with a fire-arm. The fire-arm injuries were seated on his left glutel region and were found simple. Out of 6 incised wounds, 3 injuries proved fatal and one was found grievous vide post-mortem examination report Exh. P. S. The detail is as under :-
(1) An incised wound 5'' x 2'' brain. Deep on the centre of right ear transverse base of brain was injured.
(2) An incised wound 5" x 2'' on the centre of neck. The carotid vessels and neck structures were cut.
(4) An incised wound 4'' x 2'' x brain deep below injury No. 3.
(6) An incised wound 3'' x 1" bone deep on the left scapular region.
Time between injuries and death was immediate and between death and post-mortem examination 25 to 30 hours.
(IV) On the dead body of Mst. Bakhan Mai, two injuries were found in all. One is simple hurt caused with sharp-edged weapon on left side of her face and the other found in the chest was caused with a fire-arm which proved fatal, vide post-mortem examination report Exh. P. T.
(1) A contused wound 1--'' x 1-- inverted edges on the front of chest above the nipple. Direction was backward. The heart and left lung was ruptured. Four wounds of exit --" x --'' on the left scapular region everted edges. Corresponding injury on the shirt.
Time between injuries and death was immediate and between death and post-mortem examination 25 to 30 hours.
(v) On the dead body of Mst. Saddan Mai, two injuries caused with fire-arm were found. One of them described below proved fatal, vide post-mortem examination report Exh: PU :--
(1) Contused wound 1/8'' x 1/8'' on the back of right chest. The liver was ruptured. Four pellets were found in the substances of liver which were handed over to police. There was corresponding hole on the shirt.
Time between injuries and death was immediate and between death and post-mortem examination 25 to 30 hours.
10. Besides the five deceased persons mentioned above, the following five persons got injured during the occurrence:-
(l) Ghulam Sarwar son of Allah Diwaya (P. W. 17) had received one fire-arm injury on his left shoulder, vide medi-colegal report Exh. PV. After operation a pellet was removed from the injury.
(ii) Sadiq son of Ghulam -Muhammad aged 9 years received 7 pellet injuries as per medico-legal report Exh. PW. Five foreign bodies were found lodged under these injuries.
(iii) Fateh Muhammad son of Khuda Bakhsh aged 70 years received five injuries out of which three were caused with fire-arm and the remaining two with blunt weapon. The medico-legal report is Exh. PX.
(iv)Bahawal Bakhsh complainant (P. W. 15) suffered three injuries, one of them was a contused wound --" x --'' skin deep on the right parietal region, the other, a bruise on the left scapular region; and the third, an abrasion on the left scapular region, vide medico-legal report Exh. PX.
(v) Ghulam Sarwar son of Fateh Muhammad (P. W. 16) suffered three abrasions of very minor nature, vide medico-legal report Exh. PY.
11. On 9-7-1973, Naseer, Jan Muhammad, Jamal and Bashir Ahmad, accused were arrested. Naseer, Bashir Ahmad and Jan Muhammad had injuries on their persons, therefore, they were got medically examined. Allah Bakhsh was arrested on 13-7-1973.
12. Dr. Muhammad Rafi examined Jan Muhammad and Naseer Ahmad, appellants, on 10-7-1973 at about 11-30 a. m. And found an abrasion each on their foreheads, vide their respective medico- legal reports Exhs. PZ and PAA.
13. On the same day, the same doctor examined Bashir Ahmad, appellant, and noticed, following two injuries on his person, vide medico-legal report Exh. PBB:--
(1) 32 contused wound'l/8' x 1/8' inverted edges on the right parietal region and shoulder joint.
(2) A contused wound, 1/8' x 1/8" on the lower hip with exit on the inner side of the hip. On X-Ray multiple pellets were found lodged in his shoulder joint.
14. On 10-7-1973, the parcels containing empties and blood-stained earth were sent to the offices of Forensic Laboratory and Chemical Examiner through Muhammad Ramzan Constable (P. W. 9) which were delivered there intact on 11-7-1973. Chemical Examiner's report Exh. NIL and Serologist's report Exh: PCC confirmed 'that the earth was besmeared with human blood.
15. On 16-7-1973, Naseer, appellant, got recovered blood-stained hatchet P. 31 (also described as P.
15) from an earthen-bin (Bharoli) of his house; which was taken into possession through memo.
Exh. P. W. 19/P (also described as Exh. P. W. 13/H). The same day, Jan Muhammad, appellant, led to the recovery of hatchet P. 32 (also described as P.16) from underneath a box in his house, which was taken into possession under memo. Exh. P. W. 19/Q (also described as Exh. P. W. 13/S). All these, memos were attested by Allah Wasaya (P. W. 13), Faiz Bakhsh P. W. (not examined) and Inayat Muhammad, Sub-Inspector (P. W. 19).
16. On 22-7-1973, - Jamal, appellant got recovered a gun P. 33 (also described as P. 17) from the roof of his house, which was seized, vide memo. Exh. P. W. 1918 (also described as Exh. P, W, 13/K) attested by Allah Wasaya (P. W. 13), Faiz Bakhsh (not examined) and Inayat Muhammad, Sub- Inspector (P. W. 19).
17. On 26-7-1973, Muhammad Ramzan Constable (P. W. 9) took the sealed parcels of hatchets and the gun aforementioned and delivered them intact in the offices of Chemical Examiner and Forensic Science Laboratory on 27-7-1973. Both the hatchets were found to be stained with blood of human origin, vide reports of Chemical Examiner Exh. NIL and of Serologist Exh. PDD. However, according to the report of. Forensic Science Laboratory, the five crime empties Exh. NIL (recovered from the spot) were not found to have been fired from the gun P. 33 (also described as P. 17) recovered from Jamal, appellant.
18. Site plan Exh. P. W. 12/A was got prepared iv duplicate from Syed Shabbir Hussain Shah (P, W. 12).
And after completing the investiga--tion, challan against all the accused was put in Court for trial.
19. In support of its case, the prosecution examined Bahawal Bakhsh (P. W. 15), Ghulam Sarwar' son of Fateh Muhammad (P. W. 16), Ghulam Sarwar son of Allah Diwaya (P. W. 17) and Mst. Bhirawan (P.
W. 18) as eye-witnesses of the occurrence. It also ' relied on evidence of 'motive' furnished by Bahawal Bakhsh (P. W. 15) and the recovery of weapons of offence, as deposed to by Allah Wasaya (P. W. 13) and Inayat Muhammad, Sub-Inspector (P. W. 19), besides the medical evidence.
20. Jan Muhammad, his son Naseer and cousin Bashir Ahmad, appellants, in their statements under section 342, Cr. P. C., admitted their participation in the occurrence. Jan Muhammad gave the details of the plea, while answering to Question No. 2, in the following words:- Ans. 2.----"It is correct that my wife Mst. Meero was abducted by Saifal, Khadim---deceased persons and Mst. Mubarak Mai P. W. And others and I got case registered under Martial Law Order
237. She was restored to me and again these persons abducted my wife on the day of occurrence.
I along with Bashir Ahmad, Nasir Ahmad co---accused went in persue (pursuit) of these persons for restoration of my wife who were carrying her away forcibly, took her and concealed her in their house. I alongwith Bashir, Naseer attempted to get back my wife but these persons resisted our efforts and injured me, Bashir and Naseer co-accused by fire-arm and sticks and we three acted in our self-defence in the exercise of right of private defence of person and for the restoration of my wife."
However, Allah Bakhsh, Noora and Jamal, appellants, denied their presence on the spot at the relevant time. Jamal, appellant, produced two witnesses in his defence, namely, Faiz Khan (D. W. 1) and, Ghulam Farid (D. W. 2) to prove his ON. All the remaining appellants declined to produce any defence evidence. The defence witnesses stated that Jamal, appellant, is married in their Chak No. 264/GB. He came to their Chak for taking his wife and stayed there for 4/5 days before the occurrence. They however, failed to give the exact dates of visit and stay of Jamal tit the Chak.
21. Learned trial Judge having believed the evidence of `motive'; the recoveries; and the eye- witnesses, concluded that all the "accused went to the house of the complainant party fully armed in order to take revenge" and "committed gruesome and brutal murder of five persons and injured many others". He rejected the plea of self-defence of Bashir Ahmad, lap Muhammad and Naseer, appellants, and also the Plea of `alibi' raised by Jamal, appellant. In view of these findings, the appellants were convicted and sentenced as described in paragraph 1 of this judgment.
22. We have heard the learned counsel for the appellants, for the State and also for the complainant and perused the record with their assistance.
23. The material on record reveals that Mst. Meero was abducted/ enticed away by Saifal, deceased, repeatedly and her relatives have been making continuous efforts for her restoration.
Jan Muhammad, appellant, her husband, had once got a criminal case registered against Saifal and Khadim Hussain (both deceased) and two others at Police Station Shujabad. During its investigation she appeared to have been recovered and lodged in Darul-Aman, but Saifal, deceased, again took her away from Darul-Aman by furnishing security a few days prior to the occurrence which ignited the situation afresh. Her close relatives naturally felt annoyed over constant infamy brought to their name by the persistent immoral conduct of Mst. Meero and Saifal both. The defence has with some variations admitted the occurrence. Whether the defence version given by Jan Muhammad, Naseer and Bashir Ahmad, appellants, is true or not shall be discussed in the later part of the judgment. For the present, suffice it to say that the appellants had a very strong motive to attack Saifal and his family.
24. The ocular account has been brought under scathing criticism by the learned counsel for the appellants. He argued that apart from the witnesses being related inter se they are closely related to the deceased persons; that their evidence is discrepant and also full of exaggerations; and that eye-witness account being in conflict with the medical evidence deserves to be discarded. He emphasized that all these factors put together lead to an irresistible conclusion that the occurrence had not taken place in the manner the eye-witnesses' have described. Lastly, he urged that the prosecution version merits to be thrown away and the defence version must be accepted in its entirety.
25. On the contrary, the learned counsel for the State has supported the conviction and argued that the appellants having armed themselves with deadly weapons formed an unlawful assembly and in prosecution of their common object they made a concerted and dastardly attack wherein five human lives were destroyed and an equal number of persons including some children were injured. He argued that the venue of the occurrence is the house of the deceased persons, therefore, their family members are the most natural witnesses particularly when they had suffered injuries during the occurrence which- confirms their presence at the spot. Lastly, he submitted that as the occurrence took place at dawn time, therefore, chances of mistaken identity of the appellants are completely ruled out and as such they were rightly convicted.
26. All the eye-witnesses have given detailed account of the tragic incident. We have noted certain discrepancies in their statements e. g., Bahawal Bakhsh (P. W. 15) stated that Noora, appellant, gave hatchet blow on the chest of Mst. Bakhan, deceased, but the only incised injury found on her person was a wound on the left side of her face which is skin deep. He further stated that excepting Jamal the remaining five appellants gave injuries to Saifal deceased, with their respective weapons, but no blunt weapon injury was found on his person, although Allah Bakhsh and Bashir Ahmad, appellants, were armed with Dangs. Then he stated that Mst. Sadden, deceased, received are-arm injuries on her mouth, but the doctor nosed only one injury on her person which was a gun-shot wound in her chest. He also stated that the iron box (Paiti) was cut into four pieces by the appellants before Saifal was pulled out of it, but according to the Investigating Officer and memo.
Exh. P. W. 13/G, it was not dissected into four pieces, rather it bore four cut marks.
27. The discrepancies mentioned above seem to have crept in; first, because the evidence in this case was recorded after above five years of the B occurrence and secondly, because a terrifying atmosphere prevailed in the ill-fated house at the time of occurrence where human beings were shot down like ducks and it could not, therefore, be expected of the eye-witnesses that they would be able to give details of the incident with precision. We are rather of the view that on seeing the appellants armed with all sorts of deadly weapons entering the house and shooting down everybody coming in their way, the eye-witnesses would have also gone panicky and cloud not be, therefore, expected to state as to how and in what manner each injury was inflicted by each appellant. Rather we find that they have related the incident with necessary and relevant details which appears to us quite convincing and correct. In this background, the discrepancies pointed) out in the statements of Bahawal Bakhsh P. W. Hardly affects the prosecution case adversely.
28. Out of five persons killed in the occurrence four fell victim to the firing by Jamal, appellant, alone. Allah Bakhsh and Bashir Ahmad, appellants, who were armed with sticks caused simple hurt to Bahawal Bakhsh and Ghulam Sarwar P. Ws. They did not inflict any injury to any of the deceased persons except that they had pulled Saifal, deceased, out from the iron box, who was later on killed by Jan Muhammad, Naseer and Noora with their hatchets. Noora also inflicted hatchet injury on the person of Mst. Bakhan Mai, deceased. It requires examination, whether all the appellants are vicariously liable for all the five murders committed in the occurrence? It would be convenient to reproduce here section 149, P. P. C.: - ---S. 149.----If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is member of the same assembly, is guilty of that offence.--- It is well settled that section 149, P. P. C. Deals with vicarious liability of the members of an unlawful assembly for the offence/offences having been committed by one or more of its members. The section may be divided into two parts :- (a)The offence must be committed in the prosecution of the common object of the assembly ;-or
(b) The offence must be such as the member of that assembly knew to be likely to be committed in the prosecution of the common object o the assembly.
Manifestly the liability of every member extends not only to the act contemplated by all but also to those offences which are likely to be committed E in achieving the common object. It is also not less well-recognised that the common object may develop at the spur of moment. It has, thus, first to b decided as to what was the common object of the assembly and after having reached conclusion on that question the next question which would follow is, what is the liability of the members of the assembly depending upon intention or knowledge as regards the offence which may have been committed. These are, of course the questions of fact which are to be decided on the peculiar facts and circumstances of each case. As for first question as to what was the common object of the assembly, we are convinced that in the beginning/originally the common object of the assembly was to do away with Saifal at all costs. It is remarkable that Jamal, a member of the unlawful assembly was armed with fire-arm which he actually used for the murder of Saifal when he was still outside the house. We are fully convinced that the members of the unlawful assembly including Jamal full knew that in case of resistance more persons were likely to be murderer inasmuch as all the appellants followed Saifal when he ran into his house. When Faiz Bakhsh, an occupier of the house resisted the entry, he was shot down by Jamal in the presence of other members. Then all the six appellants entered into the Ahata and in view of other members of the assembly Jamal caused death of Mst. Saddan and Mst. Bakhan by firing at them. Thereafter all the six entered into the room and physically pulled out Saifal from the box so that he may be killed.
It is, thus crystal clear that the murder of Fai Bakhsh, Mst. Bakhan and Mst. Saddan was committed in prosecution of the common object of murdering Saifal. Jamal also killed Khadim Hussain and made murderous assault upon the witnesses before the unlawful assembly had dispersed.
Moreover, in the case in hand, Jamal, a member of the unlawful assembly was carrying gun, with which he fired at Saifal and then at Faiz Bakhsh before entering into the Ahata and as such it was known beforehand to the members of the unlawful assembly that more murders were likely to committed. In spite of that, the appellants remained present throughout the occurrence being members of the unlawful assembly consisted of desparados armed with fire-arms, hatchets, whose activities showed that they stopped at nothing and as such at least knowledge of all the six members that more murders were likely to be committed in prosecution of common object can safely be attributed to each of them. Consequently, it is held that the appellants other than Jamal are also vicariously liable for offences committed by one or more of the members of that unlawful assembly. This answers the second question.
29. Taking up the defence version, we find that it is devoid of any ring of truth around it for various reasons. According to the defence plea, Mst. Meero was present in the house of her husband Jan Muhammad on the night preceding the fateful morning wherefrom Saifal, Khadim Hussain, Mst.
Mubarak Khatoon and. Others allegedly abducted her and the appellants chased them in order to get her back. It appears ridiculous that Saifal and his companions while going to the house of the appellants for abducting Mst. Meero bad taken alongwith them Mst. Mubarak Khatoon. If it were so then the occurrence would have taken place at the house of Jan Muhammad, appellant, or an encounter would have taken place somewhere on the way, as some of the appellants as admitted were armed with guns, who could have fired at the abductors even from a distance before they retreated to their house. Another strong reason to disbelieve the defence version, is, that Mst. Meero was not found present in the house of Saifal, at the time of occurrence. Had she been abducted immediately before the occurrence by Saifal etc. And the appellants had come to the house of Saifal in their hot pursuit, as the defence wants us to believe, then she must have been found in the house, which was completely combed and ransacked, so much so that the boxes lying in the house were also peeped in.
30. As for the injuries of the appellants, we have noted that Jan Muhammad and Naseer, appellants, suffered an abrasion each on their head, which are too insignificant to suggest that they were suffered at the hands of the complainant party in a clash. Bashir Ahmad, appellant's injuries are also capable of explanation. He appears to have been hit by volley of stray pellets by Jamal's firing who fired indiscriminately and recklessly claiming four human lives and injuries to another half a doze persons including some children. That is why, Bashir escaped a serious injury.
Again, no suggestion has been put to any prosecution witness that somebody among their companions was armed with fire-arms at whose hands Bashir suffered the gun shot injuries.
Injuries on the person of Bashir, appellant, established his presence at the spot and confirmed his participation in the occurrence. The defence has tried to draw a hill out of a mole b referring to the injuries of the appellants but the attending circumstances have completely exploded the myth of the defence theory.
31. It is a cardinal principle of appreciation of evidence that if the presence of a witness is proved beyond doubt and he relates the incident in a reasonable and probable manner then corroboration of his evidence should not be insisted upon because it would only help an accused to manage hi acquittal by merely destroying the corroborative evidence. The ocular account furnished by the injured eye-witnesses in this case is quite sufficient and safe to form basis of conviction of the appellants, without any corroboration yet the recovery of blood-stained hatchets P. 32/P. 16 and P. 31/P. 15 from Jan Muhammad and Naseer, appellants, provides further confirmatory circumstance against them which means that a gun-man was the besides them.
32. For what has been stated above, we hold that the prosecution h succeeded in substantiating the charges under sections 148, 452, 307/149 and 302/149, P. P. C. Against the appellants and that they have been right convicted thereunder by the learned trial Court.
33. This now brings us to the question of sentence. So far Jamal, appellant, is concerned, he killed four persons including two ladies whose; only fault was that they beseeched him and his companions not to enter their house and kill Saifal. May be, that he bad a grouse against Saifal, who had repeatedly abducted his sister Mst Meero, but the three deceased, namely, Mst. Bakhan, Mst. Saddan and Faiz Bakhsh had nothing to do with that affair. They being kith and kin of Saifal, begged the appellants to have mercy on him and spare his life but these innocent souls were destroyed ruthlessly without any justification. We, therefore, feel no hesitation in confirming death sentence awarded to him for the murder of Mst. Bakhan, Mst. Saddan and Faiz Bakhsh, on each count. Similarly, death sentence awarded to Noora, appellant, for the murder of Mst. Bakhan Mai whom he gave a hatchet blow, is hereby confirmed.
34. Admittedly, Mst. Meero is the wife of Jan Muhammad, appellant, mother of Naseer Ahmad, appellant, sister of Jamal, appellant and cousin of Noora, Bashir and Allah Bakhsh, appellants. She was enticed away b Saifal more than once. Jan Muhammad had to get a criminal case registered against Khadim Hussain deceased and Saifal, deceased, for it. They surely had caused injury to the family honour of the appellants, To us, it appear as sufficient mitigating circumstance, for not confirming their death sentence awarded for the murder of Saifal and Khadim Hussain and alter the same to life imprisonment.
35. Allah Bakhsh and Bashir Ahmad, appellants, have been awarded lesser penalty of life imprisonment for the murder of Mst. Bakhan, Mst. Saddan, Khadim Hussain and Faiz Bakhsh, deceased, because they did not cause any injury to them. We approve their sentences being adequate and proper in the circumstances of the case, but we have failed to find out any reason for treating Jan Muhammad and Naseer, appellants, differently in awarding them the death penalty by the learned trial Court for the aforesaid three murders. 1n order to remove the discrimination, therefore, we alter their death sentence to life imprisonment on each count.
Likewise the death sentence awarded to Noora, appellant, for the murder of Mst. Saddan, Faiz Bakhsh and Khadim Hussain is commuted to life imprisonment.
36. The sentences awarded under sections 148, 452, 307/149, P. P. C. To all the appellants being adequate and proper are maintained in toto.
37. The result is that death sentence of Jamal and Noora, appellants, is confirmed while that of Naseer and Jan Muhammad, appellants, is not confirmed and reference to their extent is rejected.
38. Further, we allow the benefit of section 382-B, Cr. P. C. To Jan Muhammad, Naseer, Allah Bakhsh and Bashir, appellants, and direct that of the period for which they remained in jail during the trial, should be counted towards substantive sentence of imprisonment awarded to them.
39. With the above modification in the sentences, the appeal is dismissed.