SAAD SAOOD JAN, J.----The appellants Muhammad Afzal (aged 61 years) his son Muhammad Khan (aged 26 years) and his daughters, Mst. Hajran (aged 22 years) and Mst. Sharifan (aged .19 years), were convic--ted by an Additional Sessions Judge, Attock of an offence under section 302 read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Yaqoob deceased. For this offence Muhammad Afzal and Muhammad Khan were sentenced to death while Mst. Hajran and Mst. Sharifan were directed to suffer imprisonment for life. In addition each of them was asked t o pay a fine of Its. 15,000 or, in default, to suffer rigorous imprisonment for a period --f two years. Further, Muhammad Khan appellant was also convicted of an offence under section 302 of the Pakistan Penal Code for causing the death of Shah Nawaz, father of Muhammad Yaqoob deceased. For this offence he was again sentenced to death and asked to pay a fine of Rs. 15,000 or, in default, to suffer rigorous imprisonment for a period of two years. All the appellants have filed a joint appeal against their convictions and sentences and the learned Additional Sessions. Judge has also made a reference to this Court for the confirmation of the sentences of death imposed upon Muhammad Afzal and Muhammad Khan. This judgment will dispose of both these matters.
2. The parties are closely related. The following table will help in understanding their relationship inter se :- SultanAhmad Mst. Khatoon-Mehr KhanMehr KhanAhmad KhanShahnawaz Mst. Moon- | (P.W.8 daughter married to(since dead)(married todan (deceased) (P.W.5)| Yaqoob deceased)Khatoon, a given up eye- witness)Muhammad Afzal (appellant)
Mst. Gallan (marriedFateh Khan to Mohd. Khan appellant but(P.W. 8)___________ committed suicide before the occurrence)
HaqnawazYaqoob(deceased)
Mst.Mohd.KhanMst.Mst.
Malkani(appellant)HajranSharifan (married and living(appellant)(appellant)
Sahiwal All the sons of Sultan Ahmad resided in Dhok Jamal in village Dharnal. The prosecution alleged that consequent upon a distribution of ancestral property there was a dispute between Muhammad Afzal appellant and Shahnawaz deceased over a passage. The position of Shahnawaz deceased was that the passage was common property while Muhammad Afzal appellant claimed that it exclusively belonged to him. To assert his rights over the passage' Muhammad Afzal started blocking it with the branches of trees. Shahnawaz deceased on the other hand would remove the branches and thus reopen the passage. On the day of occurrence Muhammad Afzal once again blocked the passage with the tree branches. These branches were once again removed by Shahnawaz and Yaqoob. According to the pro--secution this removal of branches by Shabnawaz and his son precipitated the occurrence.
3. The occurrence took place on 10th May, 1979 at about sunset time. It was alleged that being piqued by the removal of the branches the four appellants went to the house of Shahnawaz deceased where Shahnawaz, his son Muhammad Yaqoob and his wife Mst. Moondan were present.
Muhammad Khan was armed with a shot-gun while the others were empty-handed. All the appellants were raising lalkaras that they would teach the complainant party a lesson for removing the branches. Mst. Moondan (P.W. 5) tried to pacify the appellants but she was attacked by Mst. Hajran and Mst. Sharifan who fell her down on the floor and pulled her hair. As Shahnawaz deceased and his son advanced to rescue her Muhammad Khan fired at Shahnawaz in the chest, killing him at the spot. Muhammad Afzal then shouted that Muhammad Yaqoob should also be done away. On this Muhammad Yaqoob ran out of his house and took shelter in the house of Ahmad Khan, bolting the door from inside. He was followed by the appellants who tried to force open the door but without any success. Mst. Hajran and Mst. Sharifan climbed upon the roof of the house and with a wahola made a hole. Muhammad Afzal brought a tin of kerosene oil. He poured the oil into the house through the hole and then lighted it with a match-stick. The house caught fire and Muhammad Yaqoob died within it.
4. Shortly after the occurrence Mst. Moondan (P.W. 5) went to Police Station Lawa which was at a distance of 14 miles from her house. She reached there at 10-30 p. m. And lodged the F.I.R. Exh. P.F.
5. The post-mortem examination of Shahnawaz deceased was performed by Dr. Gul-i-Naukhez Ghauri who was then posted as medical officer in Tallagang hospital. The deceased had a- number of holes on his chest. These holes had been caused by the~discharge of a fire-arm. Some of them were wounds of exit. According to the doctor the injuries received by the deceased were sufficient in the ordinary course of nature to cause death and that be bad died within ten minutes after the receipt of the injuries.
6. Tile post-mortem examination of Yaqoob deceased was also performed by Dr. Gul-i-Naukhez Ghauri. The doctor found the moustaches and the eye lashes partially burnt and smell of kerosene oil coming from his clothes. In the opinion of the doctor the deceased had died on account of suffocation, inhalation of smoke and carbon mono-oxide poisoning.
7. The appellants leaded not guilty to the charges against them. They all denied that they were responsible for causing the death of Shahnawaz and Yaqoob. Mst. Hajran and Mst. Sharifan stated that at the time of occurrence they had gone out to fetch water from a spring which was more than a mile away from their Dhok. Muhammad Afzal stated that his eye-sight was too weak to permit him to take part in the alleged occurrence. He also stated that Shahnawaz was carrying on an illicit affair with the wife of his son Yaqoob deceased. When Yaqoob learnt about this intrigue he killed his father and committed suicide. None of the appellants led any evidence in his defence.
8. The case of the prosecution against the appellants entirely depends upon the ocular testimony furnished by Mst. Moondan (P.W. 5), Fateh Khan (P. W. 6) and Mst. Khatoon (P.W. 8). Another woman also bearing the name of Mst. Khatoon who was cited in the F.I.R. As an eye-witness was given-up by the prosecution as unnecessary. The eye-witnesses produced by the prosecution claimed that they were present at the scene of occurrence at the relevant time. They stated that all the four appellants came to the house of Shahnawaz where Mst. Hajran and Mst. Sharifan caught hold of Mst. Moondan (P.W. 5) by the hair and fell her on the ground. When Shahnawaz tried to intervene Muhammad Khan fired at him with the gun. Muhammad Afzal then asked Muhammad Khan to kill Muhammad Yaqoob also. Muhammad Yaqoob ran to his uncle Ahmed Khan's house and locked himself in. The appellants chased him and tried to force open the door but without any success.
Hlst. Hajran and Mst. Sharifan then climbed upon the roof of the house and started digging a hole with a Wahola. Muhammad Afzal brought some kerosene oil, poured it through the hole-- and then lighted it with a match-stick. Muhammad Yaqoob died inside the house.
9. As would appear from the table set out in paragraph 2 all the eye-witnesses are closely related inter se as well as with the deceased. Thus Mst. Moondan (P.W. 5) was the wife of Shahnawaz and mother of Yaqoob. Mst. Khatoon (P.W. 8) was the mother and Fateh Khan (P.W. 6) was the brother of the wife of Yaqoob deceased. But then they are also natural witnesses. They lived at the Dhok where the occurrence took place. There was no serious enmity between them and the appellants.
The dispute over the passage between Muhammad Afzal and Shahnawaz was not serious enough as would induce the eye-witnesses to let off the real culprits and instead falsely implicate their close relatives. No doubt the daughter of Mst. Khatoon (P.W. 8) and the sister of Fateh Khan (P.W. 6) was at one time married to Muhammad Khan appellant and that she had committed suicide, but there is nothing on the record that her suicide was due to any cause furnished by her husband or his family or that consequent upon the suicide the relations between the two families were in any way adversely affected. A suggestion was made by the defence at the trial that Fateh Khan (P. W.
6) and his mother Mst. Khatoon (P.W. 8) had been brought up by Mst. Moondan (P. W. 5) with the promise of giving her daughter in marriage to Fateh Khan (P.W. 6) but it was refuted and the defence did not attempt to substantiate it.
10. We are not satisfied that the F.I.R. In this case was recorded at 10-30 p. m. On the very evening succeeding the occurrence. According to Mst: Moondan (P.W,5) herself she did not leave for police station till Sehriwela. Similarly Mst. Khatoon (P. W. 8) stated that Mst. Moondan (P. W. 5) went to the Police Station after midnight on foot. As stated earlier the Police Station was 14 miles away from the spot. However, that may be, inaccuracy in the recital in the F.I.R. With regard to the time of its recording can hardly detract from the credibility of the ocular testimony.
11. Mst. Hajran and Mst. Sharifan, appellants, were young girls at the time of occurrence, their ages being 21 years and 18 years, respectively. Both were unmarried. It seems improbable that their father and brother would take them along to commit the sort of offences which have been attributed to them. It also appears very unlikely that these two unmarried young girls would climb on top of a roof and start digging a hole therein with a Wahola. The learned Additional Sessions Judge stated that in that part of the country to which these two girls belonged it was not uncommon for womenfolk to take part in the occurrence of the nature that we have before us. Our experience is otherwise. Since the role attributed to these girls is highly unusual, it would require very strong corroborative evidence before we can accept the ocular testimony. As none is available we would by way of abundant caution give the benefit of doubt to these two girls.
12. So far as Muhammad Afzal and Muhammad Khan appellants are. Concerned we think, for reasons already stated, we can safely rely upon the ocular testimony. While he was under detention it was found that Muhammad Afzal had a weak eye-sight but the record does not indicate that at the time of the occurrence he was incapacitated to the extent that he could not have possibly taken part in the occurrence. Apart from that the circumstances attending the occurrence do indicate that it was not a one man job.
13. Summing up, we are satisfied that Muhammad Afzal and Muhammad Khan were responsible for causing the death of Yaqoob deceased. They were, therefore, rightly convicted of an offence under section 302 read with section 342; of the Pakistan Penal Code. Similarly, Muhammad Khan was properly convicted by the tri-al Court of another offence under section 302 of the same Code for causing the death of Shahnawa2. This was a most gruesome occurrence and these two appellants do not deserve leniency. The sentences awarded to them are appropriate. Accordingly, we accept the reference made by the learned Additional Sessions Judge and confirm the sentences of death imposed upon Muhammad Afzal and Muhammad Khan. The appeal so far as it relates to them is dismissed. The conviction and sentences of Mst. Hajran and Mst. Sharifan are set aside and they are acquitted of the charges against them. They are already on bail. Their bail bonds shall stand discharged.