FAZL-I-MAHMOOD, J.-These there criminals appeals and murder reference arise out of the occurrence in village Pachiani five miles away from Police Station Jhawarian district Sargodha, wherein shortly before the Moazzan in the local mosque called the faithfuls for the morning prayers on 19th September, 1977 there were gruesome murders of five persons in two neighbouring houses and injuries to a tender age boy. The first incident took place in the house of Ghulam Rasool in which 11 assailants were named in the first information report. His wife and teen-aged son were slain but his tender age son escaped death after sustaining injuries. During the second incident in the nearby house of Ghulam Muhammad, his father and mother were shot dead while his wife put to death with hatchet blow. The number of assailants swelled in the second incident to 16 as a result of version given by Ghulam Muhammad.
2. The brief facts of the case are that the matter was reported to the police vide F. I. R. No, 49 of 1977 registered at 8 a.m. On 19th September, 1977 with Police Station Jhawarian. The F.I.R. (Exh. P.E.E.) was recorded on the statement of Ghulam Rasool (P. W. 12) by Manzoor Ahmad S.-I. S. H.
0. Police Station Jhawarian (P. W. 15). According to the F.
1. R. Version, in January, 1976 in village Pachiani, one Ahmad Yar son of Khunjar was murdered. In this murder case the complainant together with Ghulam Muhammad son of Muhammad Bakhsh (P. W. 13) and Ramzan son of Muhammad caste Kumhar, residents of the same village, were challaned. About four months after the said murder, these accused were released on bail and they came home. From the day they had come on bail, the brothers of the deceased Ahmad Yar, namely, Yaru, Inayat alias Natoo, Khan alias Khani, Hattars by caste, were planning to murder them with the result that they observed caution and did not go out of the village. The murder case was fixed for 20th September, 1977 for announcement of judgment.
On the previous night, the complainant together with his wife Zubaida deceased and his son Abdul Ghafoor deceased aged 13 years and A bdur Rauf another son aged about 5 years were sleeping in the courtyard of the house. The complainant together with his brothers Ata Muhammad (not produced) and Muhammad Bakhsh (P. W. 11) were sleeping on the roof of the house. There was a lantern burning in the courtyard. A little before the streak of dawn, 11 of the accused, namely, Mahla Bodha, Abbas son of Lala, Massu son of Hayat, Inayat alias Natoo, all Hattars by caste, armed with guns, Muhammad Sharif s ln of Ibrahim, Khizar Hayat son of Umar Hayat, Umra son of Muhammad Khan and Ahmad Sher son of Muhammad Khan, armed with Kulharis and Khan alias Khani, Allah Bakhsh son of Gahna and Ahmad Yar son of Khuda Bakhsh, armed with sotas, suddenly entered the courtyard of the house. Inayat accused shouted a lalkara calling out Ghulam Rasool to get ready as they had come to avenge the murder of Ahmad Yar. The complainant who was in the company of his brothers on the roof, on hearing the voice, recognized the accused in the light of the lantern. Thereupon, Inayat alias Natoo fired a gunshot which hit his wife Mst. Zubaida on Iher head. Thereafter, Ahmad Yar gave a sofa blow on the right thigh of Mat. Zubaida and Khizar Hayat gave two kulhari blows on the back and the left wrist of the lady. Then, Umara, Ahmad Sher Hattars and Muhammad Sharif gave successive blows with kulharis to the complainant's son Abdul Ghafoor on his face, neck, head, chest and shoulder. The other son Abdur Rauf who was sleeping on the same cot with his mother was given blows by Khizar Hayat with a kulhari on his head. Then Khan alias Khani and Allah Bukhsh struck sota blows on his head, in the ribs, on the arm and shoulder. The complainant and his brother out of fear kept confined on the roof. The accused thereafter searched for the complainant in the room of the house and on not finding him there they ran away and reached the house of Ghulam Muhammad son of Muhammad Bakhsh (P. W. 13) which is located nearby.
According to the complainant's further version, as he was present on the roof, he and his brothers saw the accused reaching the house of Ghulam Muhammad. Some of these accused climbed the wall and entered the house of Ghulam Muhammad and opened the door of the Haveli from inside whereupon the rest of the accused also entered that house and thereafter restored to indiscriminate firing. They then escaped towards the east shouting lalkaras.
The complainant together with his brothers descended from the roof of his house and found his wife Mst. Zubaida and son Abdul Ghafoor dead while soaked in blood and Abdur Rauf in an injured condition. The complainant left his brothers Ata Muhammad and Muhammad Bakhsh in the house and himself ran towards the house of Ghulam Muhammad. He saw Ghulam Muhammad crying and in the courtyard he found his mother Mst. Jallan, his wife Mst. Alan and his father Muhammad Bakhsh dead with blood all around their bodies. Their bodies had injuries of gunshots and hatchets.
The complainant left the said Ghulam Muhammad at his house and after observing caution and concealing himself reached the police station for laying the information. This version has been supported at the trial by three eye-witnesses, Muhammad Bakhsh (P. W. 11), Ghulam Rasool (P. W.
12) and Ghulam Muhammad (P. W. 13). The latter, however, furnished the ocular account of the crime in his house.
3. The investigation in this case was conducted by Manzoor Ahmed S.-I. S. H. 0. (P. W. 15). He reached the spot on the same day at 10 a.m. He visited the house of Ghulam Rasool complainant where he prepared the injury statement (Exh. P. U. U.) of Abdur Rauf injured son of the complainant and sent him for medical examination. Thereafter, he prepared injury statement (Exh. P. V. V.) and inquest report (Exh. P. V. V./1) in respect of Abdul Ghafoor deceased. Similarly, he prepared injury statement (Exh. P.X.X ) and inquest report (Exh. P.X.X./1)in respect of Mst. Zubaida deceased. He sent their bodies for post-mortem examination under the escort of Abdul Rehman alongwith the dead bodies of Mst. Jalan, Mst. Alan and Muhammad Bakhsh deceased. He then went to the house of Ghulam Muhammad (P. W. 13) and found the dead bodies of Muhammad Bakhsh, Mst. Alan and Mst. Jalan lying in the courtyard. He prepared injury statement (Exh. P.Y.Y.) and inquest report (Exh.
P.Y.Y./1) of Muhammad Bakhsh deceased, injury statement (Exh. P.Z.Z.) and inquest report (Exh.
P.Z.Z./1) in respect of Mst. Jalan deceased and injury statement (Exh. P.A.A.A.) and inquest report (Exh. P.A.A.A./1) of Mst. Alan deceased. He made over these dead bodies to Head Constable Abdul Rehman for taking them to mortuary alongwith the dead bodies of Abdul Ghafoo r and Mst.
Zubaida.
On return to the house of Ghulam Rasool (P. W. 12), the complainant, he inspected the spot and took into possession lantern (P. 32) which was hanging against the wall of the kotha in the courtyard vide memo. Exh. P.J.J. He also took into possession crime empty (P. 31) from near the charpai of Mst. Zubaida deceased and made it into a sealed parcel vide memo. Exh. P.H.H. He also took into possession pillow (P. 35) and charpai (P. 36) of Mst. Zubaida deceased having pellet marks on them vide memo. Exh. P. R. R. Collected blood-stained earth from under the charpai of Mst. Zubaida vide memo. Exh. P. G. G. And made it into a sealed parcel. He also collected blood- stained earth from beneath the charpai of Abdul Ghafoor deceased and made it into a sealed parcel. Vide memo. Exh. P. F. F. Similarly, blood-stained earth was collected from near the charpai of Abdul Rauf and made into a sealed parcel vide memo. Exh. P. B. B. B.
' He again visited the house of Ghulam Muhammad and inspected the spot. There he took into possession lantern (P. 34) which was found. Hanging against the wall of the kotha of Ghulam Muhammad, vide memo. Exh. P. 0. 0. He collected 12 crime empties (P. 33/1-12) lying scattered in the courtyard of Ghulam Muhammad's house and made them into a sealed parcel, vide memo. Exh. P.
K. K. He also collected blood-stained earth separately from beneath the charpais of Muhammad Bakhsh, M. Alan and Mst. Jalan deceased and made three parcels vide memos. Exhs. P. L. L., P. M. M.
And P. N. N. Respectively. He extracted 14 pieces of lead from the walls of the house of Ghulam Muhammad and collected 13 cardboard discs lying. Scattered in the courtyard and took them into possession vide memo. Exh. P. Q. Q. He made separate sealed parcels of all these lead pieces and cardboard discs.
All these recoveries from the spots were witnessed by Ghulam Rasool . (P. W. 12) and Ghulam Muhammad (P. W. 13). After the autopsy of the deceassed in the case, he took into possession the blood-stained clothes of the murdered persons on 22nd September, 1977.
4. The Investigating Officer got prepared the site plan (Exh. P. M.) and its duplicate (Exh. P. M./1) in respect of place of murder of Abdul Ghafoor and M. Zubaida deceased from Noor Muhammad Draftsman (P. W. 8). He made red ink notes therein in his hand and signed them. He alio got prepared site plan (Exh. P. N.) and its duplicate (Exh. P. N./I) from the same Draftsman in respect of the place of murder of Muhammad Bakhsh, Mst. Jalan and Mst. Alan deceased. He also'made notes in red ink thereon in his hand and signed them. After completion of the investigation, he challaned the accused.
5. The details of the incident which took place in the house of Ghulam Muhammad (P. W. 13) were furnished by him in his statement under section 161, Cr. P. C. Recorded by the police on the date of incident. According to his version as well the background and the motive for the murder is the same as given by Ghulam Rasool. On the previous night, he alongwith his father Muhammad Bakhsh, mother Mst. Jalan and wife Mst. Alan were sleeping in the courtyard of the house. At dawn time, he heard fire shots coming from the direction of the house of Ghulam Rasul Mochi which woke him up. He climbed the roof of his house and lay down to escape detection by the accused.
He kept looking in the direction of the accused. Suddenly, he saw 15/16 people armed with guns, kulharis and lathis coming running towards his house. Some of them entered his haveli from a corner and opened the gate of the haveli whereupon, all the accused entered the house. A lantern was burning and hanging by the wall of the house. In this light, he saw Mahla, Abbas, Massu and Natoo armed with guns while Muhammad Sharif, Khizar Hayat, Umra, Ahmad Sher, Sultan and Ghulam Rasool armed with hatchets and then Khan alias Khani, Allah Bakhsh, Ahmad Yar, Muhammad Khan, Manak and Muhammad Nawaz armed with lathis. Thereafter, Natoo shouted a lalkara that they had come to avenge the murder of Ahmad Yar. Simultaneously with this, Natoo, Massu and Abbas successively fired three shots at the charpai of his father which hit him on his head. Then Natoo and Mahla made one fire each at Mst. Jalan. Ghulam Rasool gave a hatchet blow to his father whereas Manak gave a lathi blow to Mst. Jalan. Muhammad Sharif and Sultan gave injuries to Mst. Alan with hatchets while Muhammad Nawaz and Muhammad Khan alias Mammi gave lathi blows to her. The accused wiped out inmates of his house within his sight. He explained that he could not dare to confront so many accused, therefore, he silently watched his mother, father and wife being slaughtered. After he was satisfied that the accused had gone away, he came down from the roof and found the aforesaid inmates of the house murdered. His testimony at the trial is also to the same effect.
6. We would like to pause here and for facility of reference analyse the prosecution case as it emerged consequent upon the completion of the trial.
In the first incident which took place in the house of Ghulam Rasool complainant (P. W. 12), there are II accused. The gunshot is attributed to Inayat alias Natoo and hatchet blows to Khizar Hayat, Umra, Ahmad Sher and Muhammad Sharif. Sota blows are attributed to Ahman Yar (acquitted accused) for having given injuries to Mst. Zubaida and to Khan alias Khani and Allah Bakhsh for causing injuries to Abdur Rauf child. In so far as the three convict appellants Mahla, Ghulam Abbas and Massan alias Massu are concerned, no specific role or part is attributed to them in the F. I. R.
Now coming to the second incident, there are five persons who are not mentioned in the F. I. R., namely, Sultan son of Bhai Khan, Muhammad Nawaz son of Muhammad Bakhsh, Ghulam Rasool son of Rehmat Khan, Muhammad Yar son of Mehra and Manak son of Bhai Khan but the names of all the accused including these five persons are provided by the eye-witness account of Ghulam Muhammad (P. W. 13).
7. A further analysis of the case of the prosecution would show that in the first incident four gunmen were involved out of which the overt act is attributed to Inayat alias Natoo for firing at Mst. Zubaida deceased. These four gunmen are common participants in both the incidents. In the second incident, however, the overt act is attributed to all the four gunmen inasmuch as Natoo, Massu and Abbas fired at Muhammad Bakhsh deceased father of Ghulam Muhammad (P. W. 13) whereas Natoo and Mahla fired at Mst. Jalan deceased mother of P. W.
13.
8. Coming now to the role played by the accused armed with hatchets, in the first incident Khizar Hayat caused hatchet injuries to Mst. Zubaida and similar blows to injured child Abdur Rauf while Umra, Ahmad Sher and Muhammad Sharif caused hatchet injuries to Abdul Ghafoor deceased son of Ghulam Rasool (P. W. 12). Thus, all the four accused armed with hatchets have been ascribed role. In so far as the accused armed with sotas are concerned, role is ascribed to Khan alias Khani and Allah Bakhsh for causing blows to child Abdur Rauf. Ahmad Yar is alleged to have caused sota blow to Mst. Zubaida.
9. In the second incident in the house of Ghulam Muhammad where three murders were committed, the number of accused armed with hatchets increased from four to six. The two additions are of Sultan Gondal and Ghulam Rasool both armed with hatchets. Out of these, overt act is attributed to four of them, namely, Ghulam Rasool, Sultan, Khizar Hayat and Muhammad Sharif. Thus, Khizar Hayat and Sharif are common for participating actively in the two incidents. No overt act is attributed in the second incident to two men armed with hatchets, namely, Umra and Ahmad Sher. Similarly, there were alleged to be six accused armed with sotas involved in the second incident. Out of them, Muhammad Khan alias Mammi, Manak Gondal and Muhammad Nawaz were the three additions. Active role is ascribed to all these three who are added in the second incident and consequently no role is attributed to Khan alias Khani, Allah Bakhsh and Ahmad Yar. This concludes the picture in so far as the overt acts in the two incidents are concerned.
10. We would, at this stage, like to take notice of the report of the Examiner of Fire-arms in the light of the recoveries of guns from four of the accused appellants. All the four respective guns recovered from the appellants. Inayat alias, Natoo, Mahla, Massan alias Massu and Ghulam Abbas were found to match with the various crime empties recovered from the scenes of occurrence.
11. Next as regards six hatchets, the report of the Chemical Examiner Punjab was made, vide Exh. P.
D. D. D. Which showed that the contents of the packet i. e. a hatchet was stained with blood. The scrappings were sent to the Serologist, Islamabad for determination of the origin of the blood. The same Examiner, vide Exh. P. D. D./1 gave the opinion that the five hatchets he was led to examine contained in a separate parcel were stained with blood. Scrapping were being sent to the Serologist to determine the origin of the blood. In respect of blood stains on hatchets marked by the Serologist as 3565/3 to 3565/4, it was found by him that their origin could not be determined because of disintegration whereas the remaining items 3565/1 to 3565/2 were found to be stained with human blood (vide Exh. P.E.E.E./1). In so far as the scrappings from hatchet marked 3721/1 were concerned, the result of the analysis was contained in Exh. P.E.E.E./2 which was to the effect that the scrappings from that hatchet contained human blood. It would thus be seen that the Chemical Examiner found all the six hatchets stained with blood whereas the Serologist found the blood on four of the hatchets to be of human origin and the result of scrappings from the remaining two hatchets could not be given because of disintegration.
12. In so far as the recoveries of lathis are concerned, we are not dealing with this aspect as none of them admittedly were found to be stained with blood and thus have no corroborative value.
13. Now adverting to medical evidence it may be observed that Abdur Rauf the injured child was examined by Dr. Muhammad Azim Bajwa (P. W. I), on 19th September, 1977 at about 11 a. m. He found one incised wound 2+" into bone deep extending vertically in the middle of the forehead, 9 contusions in the areas of head, arm, shoulder and chest and one swelling. The incised wound was sharp while all other injuries were found to be with blunt weapon. Exh. P.A. Is the correct carbon copy of the medico-legal report.
14. Dr. Muhammad Azim Majoka, Medical Officer, D. H. Q. Hospital, Sargodha (P.W. 1) on 20th September, 1977 at 11-30 a.m. Conducted post-mortem examination on the dead body of Mst.
Zubaida wife of Ghulam Rasool (P. W. 12) after due identification. Following injuries were found on her person :-
(1) An incised wound 2' x 1" x brain deep on the right side of head, 3" above right ear with brain matter coming out and the bone cut.
(2) A contused wound x 1/2' x 1/2" on right side of head 2' behind injury No, 1.
(3) An abrasion 1" x 1" on left forearm lower one third back.
(4) An abrasion 1' x 1/2" on left side of back upper 1/3".
(5) A contusion mark 2" x 1" on front of left thigh upper 1/3".
Death had occurred due to shock and haemorrhage caused by injury No, 1 which was sufficient in the ordinary course of nature to cause death. This injury was caused by a sharp-edged weapon and was grievous and dangerous. All the rest of injuries were simple and caused by a blunt weapon and were ante-mortem. The time between injuries and death was within two hours while between death and post-mortem was 24 to 48 hours. Exh. P. B. Is the correct carbon copy of post- mortem report while Exh. P. B./1 and P. B./2 are sketches of injuries duly signed and written by the doctor.
Half an hour later on 20th September, 1977, the same doctor conducted post-mortem examination on the dead body of Abdul Ghafoor son of the complainant after due identification. He found the deceased to have suffered the following injuries :-
(1) An incised wound 5"x 1/2"x bone cut on left side of forehead upto dorsum of the nose.
(2) An incised wound 2" x 1/2" x bone cut on left side of face 1/2" below left eye.
(3) An incised wound 1" x 1/3" x 1/4', 1/2" below injury No, 2.
(4) An incised Wound If" ,x 1/2" x bone put on dorsum of nose 1" below the root.
(5) An incised wound 5 X 1" x bone cut on front of chin.
(6) An incised wound 3-1-" x 1 X throat and all soft tissues cut on front of neck upper one third.
(7) An incised wound 21" x 1" x bone cut on left side of front of chest 1" below the neck.
(8) An incised wound 2" x 1/2" x skin deep on right side of face 1" below the eye.
(9) An incised wound 4" x 1/4" x skin deep on right side of face and upper lip.
(10) An incised wound 2" x 1/4" x 1/8" on front of right shoulder.
There was a cut fracture under injury No, 1, extending upward in frontal and parietal bone. The chest wall was cut on left side. The medial end of left clavicle was completely cut under injury No, 7.
Larynx and trachea were cut by injury No, 6 and large blood vessels were also cut in front of neck.
Death had occurred due to haemorrhage and shock caused by injuries Nos. 1 and 6 mainly and all injuries collectively. Injuries 1 and 6 were sufficient to cause death in ordinary course of nature.
Injuries 1, 2, 4, 5, 6 and 7 were grievous while rest were simple, all caused by sharp-edged weapon and ante-mortem. Time between injuries and death was instantaneous and between death and post-mortem was 24 to 48 hours.
On the same day at 12-30 p. m. The same doctor (P. W. 2) conducted the post-mortem examination on the dead body of Muhammad Bakhsh alias Muhammad son of Aziz Ahmad after due identification. He had suffered the following injuries :-
(1) A gun shot wound x 1" x chest deep on front of lower end of neck just above the sternum with margins tattooed and directed backwards and to the left, existing out on back of left chest forming six holes over an area 4" x 3".
(2) A gunshot wound 11. x 1/2" directed from below upwards on dorsum of lower end of penis and adjacent part of left thigh entering into thigh with margins tattooed.
(3) A gunshot wound 2-i" x 1/2" X abdomen deep on left side of abdomen with margins tattooed just above the iliac crest causing fracture of ilium bone. 12 large pellets and pieces of cartridges were found in the skin of back and removed and sealed.
(4) An incised wound 2" x 1/4" x skin deep on the top of head directed behind forward.
Chest wall was punctured on left side and so was pleura punctured on left side and both sides contained blood. Trachea was injured and under injury No,
1. Left lung was injured and collapsed.
Blood vessels were injured on neck and left side of chest and abdominal walls were punctured on left side. Intestines were injured at various points. Penis was damaged under injury No,
2. Death had occurred due to haemorrhage and shock resulting from injuries 1, 2 and 3, each one of which was grievous and caused by gunshots and were sufficient to cause death in ordinary course of nature.
Injury No, 4 was simple and was caused by a sharp weapon. All the injuries were ante-mortem.
Time between injuries and death was instantaneous and between death and post-mortem was 24 to 48 hours. Exh. P. D. Is correct carbon copy of post-mortem report while Exhs. P. D./1 and P. D./2 are the sketches written and signed by the doctor.
Next, the same doctor conducted the post-mortem examination on the dead body of Mst. Jalan wife of Muhammad Bakhsh on the same day at 12-50 p. m., after due identification. She was found to have suffered the following injuries :-
(1) A gunshot wound li" X 1" X skull deep on right tample with margins tattooed.
(2) A gunshot wound 2" x Ii" on front of right thigh going backward and existing out from three holes one each on both buttocks and one in the centre, two large pellets were removed which were stuck in the vicinity.
(3) Multiple abrasion on left cheek over an area 2" x 1", skull was fractured under injury No, 1 causing damage to brain and a collection of blood.
Brain membranes were damaged under injury No,
1. Death had occurred due to haemorrhage and shock causediby injuries 1 and 2 collectively which were caused by fire-arm. Injury No, 1 alone was sufficient to cause death in ordinary course of nature. Injury No, 1 was grievous and the rest were simple injuries. Injury No, 3 was with blunt weapon. All injuries were ante-mortem. Time between injuries and death was within 2 hours and between death and post-mortem was 24 to 48 hours.
Exh. P. E. Is correct carbon copy of post-mortem report and Exhs. P. E/1 and P. E./2 are the sketches written and signed by the doctor.
Thereafter, the same doctor conducted the post-mortem examination on the dead body of Mst.
Alan wife of Ghulam Muhammad (P. W. 13). She was found to have suffered the following injuries : -
(1) A contused 4" x 1" x brain coming out on right side of head, about the right ear.
(2) An incised wound 34" x 1" x all soft tissues cut on front and left side of neck just below thyroid cartilage.
(3) An incised wound 1" x 1/3" x 1/8" on palm of right hand above the index finger.
(4) An incised wound 6"x x bone cut on front of right upper arm upper 1/3".
(5) An incised wound 2" x 1/2" on centre of back upper 1/3".
(6) An incised wound 4" x 1" x bone cut on right side of :back of chest upper 1/3".
(7) An incised wound n. x 1/2" x 1/2" on back of tight shoulder.
(8) An abrasion 111 x 1" on back of right shoulder 1" above No, 7.
(9) An abrasion 1" x 3/4" on left side of back of head.
(10) A communuted fracture found under injury No, 1 causing multiple of pieces of skull bone and brain matter was pouring out. Membranes and brains were damaged on right side.
Third and fourth ribs on right back were cut under injury No,
6. Pleura was cut on right side. Larynx and trachea were cut under injury No, 2 below the thyroid cartilage. Right lung was injured under injury No,
6. Blood vessels were cut on left side of neck. Death had occurred due to haemorrhage and shock caused by injuries 1, 2, 4 and 6 which were sufficient to cause death even individually under ordinary course of nature. Injuries 1, 8 and 9 were with blunt and the rest with sharp weapons and were ante-mortem. Time between injuries and death was instantaneous and between death and post-mortem 24 to 28 hours. Exh. P.F. Is correct carbon copy of post-mortem report while Exhs.
P. F./1 and P. F.12 are the sketches of the injuries written and signed by the doctor.
15. The prosecution at the trial relied on the eye-witness account of two witnesses in respect of the first incident, namely, the complainant Ghulam Rasool (P.W. 12) and his brother Muhammad Bakhsh (P.W. 11). His other brother Atta Muhammad was not produced. In respect of the second incident in the house of Ghulam Muhammad (P. W. 13), he. Is the sole eye-witness of the actual occurrence. Apart from these eyewitnesses who are also witnesses of some recoveries, the Investigating Officer Manzoor Ahmed (P. W. 15) appeared to support the investigation, arrests and recoveries made by him from the named accused. A. Hamid Khan S.-I. (P. W. 14) also appeared to support the arrests and recoveries made by him from another set of accused. Inayat Ali, A. S.-I., appeared to support P. W.
15. The prosecution also relied on the medical evidence and the opinions of the Chemical Examiner, the Serologist and the Examiner of Fire-arms.
16. Motive for the murders is provided by the prosecution by relying on the fact that Ahmed Yar was murdered in January, 1976 and for that murder the complainant Ghulam Rasool (P. W. 12). Ghulam Muhammad (P.W. 13) and one Ramzan son of Muhammad were arrested and challaned. In May, 1977 they came home on being released on bail and the case was then fixed for announcement of judgment on 20th September, 1977 in the Court of learned Sessions Judge, Sargodha. A day prior thereto, the brothers of the deceased Inayat alias Natoo and Khan alias Khani had conspired to avenge that murder under the apprehension that these accused had fair chances of being acquitted. We have carefully examined the plea of prosecution as regards motive and arguments advanced on behalf of the accused in the light of material on the record and have arrived at the conclusion that there existed a strong motive for the commission of the crimes.
17. The case set up by the accused persons, when examined under section 342, Cr. P. C. Was as follows :- Massan alias Massu (aged 25 years), while claiming innocence, stated that he had been falsely implicated at the instance of his enemies in collusion with the complainant party and that he was taken into custody from the Sargodha jail on 22nd September, 1977 where he was lodged since before the occurrence. He also denied the recovery.
Inayat alias Natoo (aged 30 years) admitted that about II years before the present occurrence, his brother Ahmad Yar was murdered for which Ghulam Muhammad and Ghulam Rasool P. Ws.
Alongwith one Ramzan Kumhar were challaned and were released on bail four months after the said incident and the murder case was fixed for orders on 20th September, 1977. He further stated that Khan accused was his brother but denied his relationship or concern with any of the other co- accused. He took up the plea that empty cartridges were fabricated by the police through guns supplied by the complainant party and the report of the Fire-arms Expert manoeuvred. He also took up the plea of enmity with Ghulam Rasool and Ghulam Muhammad P. Ws. While claiming to be innocent, he further stated that he had been challaned in a case under the Arms Ordinance in respect of recovery of gun (P. 37) and cartridges (P. 38/1-5) but was acquitted in that case.
Mahla son of Wali Muhammad (aged 60 years) claimed to be innocent. He professed ignorance about the previous murder. He denied his .Arrest on 1st October, 1977 and the recovery of the gun and cartridges from his possession and claim it to be a fabrication as he was acquitted in the Arms Ordinance case registered in that connection. He took a similar plea in so far as the matching of the gun with crime empties was concerned.
Ghulam Abbas (aged 80 years) denied his relationship or concern with any other co-accused. He professed ignorance about the previous murder. He claimed to have been falsely implicated in the case. He further stated that his village was situated across river Jhelum opposite to Jhawarian. He had come to Jhawarian to make some purchases and had a quarrel with a Constable in the bazar.
He was hauled up by him for challan under section 109, Cr. P. C. And was later on falsely implicated in the case on mere suspicion.
Khizar Hayat (aged 56 years) denied that Inayat alias Natoo and Khan alias Khani were his khalazad brothers and the rest of the co-accused were his partisans or friends. He had knowledge about the previous murder. When asked as to why this case against him, he took up the plea that he had been asked falsely implicated because he had appeared as a prosecution witness against Ghulam Muhammad and Ghulam Rasool in the previous murder case of Ahmad Yar. He further claimed that 105 persons appeared at Police Station Jhawarian on 30th September, 1977 for defence evidence about his innocence and four other co-accused but P. W. 15 Manzoor Ahmad and Inspector Abdur Razzaq arrested all of them under section 107/151, Cr. P. C. And prevented those persons from deposing in favour of the accused. He claimed that there was a complaint to the higher police officers and as a result of the transfer of investigation, he was found innocent during that investigation.
Muhammad Sharif son of Ibrahim (aged 25 years) denied that he was servant of Inayat alias Natoo and Khan alias Khani accused during the days of occurrence. He denied knowledge about the previous murder of Ahmad Yar. When asked why this case against him, he stated that he had been made a scapegoat.
Ahmad Sher son of Muhammad Khan (aged 45 years) admitted that Umar Draz accused was his brother but denied that he had any connection with any other accused. He had the knowledge of the previous murder of Ahmad Yar brother of lnayat and Khani accused. He denied the recovery of the hatchet. He further stated that he had been falsely implicated for reasons stated by his brother Umar Draz. He claimed that he had been declared innocent by the Sub-Inspector who investigated the case.
Umar Draz son of Muhammad Khan (aged 24 years) stated that Ahmad Sher accused was his brother but he had no connection with any other accused. He had the knowledge of the previous murder of Ahmad Yar. He denied the recovery of blood-stained hatchet from him. When asked why this case against him, he took up the plea that Ahmad Khan Awan of village Rawal, a cousion of his father, was first informant and eyewitness against Ghulam Rasool and Ghulam Muhammad P. Ws.
In the murder case of Ahmad Yar. Ghulam Rasool and Ghulam Muhammad P. Ws. Approached him to make Ahmad Khan resile from his evidence but he refused. Thereupon, the mother of Ghulam Muhammad P. W. Implicated him as an accused in cross-case under section 307, P. P. C. Instituted 1 months after the murder of Ahmad Yar. He was acquitted in that case. The complainant party on account of that grudge falsely involved him in this case alongwith his brother Ahmad Sher. He also claimed that 105 persons appeared at the police station in his defence where they were arrested under section 107/151, Cr. P. C. And his father submitted an application to the D. I.-G. And the investigation was transferred to S.-I. Hamid Ullah Qureshi who declared him innocent in his investigation and despite that he was challaned.
We need not deal with the stand taken by the other accused in view of the order that we propose to pass in the case.
18. All the 16 accused were tried by Rao Muhammad Hayat Khan, Additional Sessions Judge, Sargodha. He, vide his judgment dated 6th February, 1980, acquitted Ahmad Yar and Manak accused of all the charges. The trial Court reached the conclusion that the 14 accused appellants, namely, Inayat alias Natoo, Massan alias Massu, Mahla, Ghulam Abbas, Khizar Hayat, Ahmad Sher, Sultan, Muhammad Sharif, Allah Bakhsh, Khan alias Khani, Umar Draz, Muhammad Yar alias Mammi, Muhammad Nawaz and Ghulam Rasool were the members of the unlawful assembly the common object of which was to murder Mst.. Zubaida, Abdul Ghafoor, Muhammad Bakhsh, Mst.
Jalan and Mst. Alan and to commit murderous assault on Abdur Rauf. Accordingly, he held all these accused vicariously liable for the acts of each other and convicted them under sections 148, 452, 149, 307, 149 and 302, 149, P. P. C.
They were sentenced to undergo two years' R. I. Under section 148, P. P. C., two years' R. I. Under section 452/149, P. P. C. And two years' R. I. Under section 307/149, P. P. C. Each. Khan alias Khani, Allah Bakhsh, Muhammad Yar alias Mammi, Muhammad Nawaz and Ghulam Rasul accused were sentenced to imprisonment for life for intentionally committing the murder of Mst. Zubaida, Abdul Ghafoor, Muhammad Bakhsh, Mst. Jalan and Mst. Alan count on the view that they had played a lesser role in the occurrence. All the sentences were to run concurrently.
Inayat alias Natoo accused was sentenced to death for the murder of Mst. Zubaida, Muhammad Bakhsh and Mst. Jalan on each count. He was sentenced to undergo imprisonment for life for the murder of Abdul Ghafoor and Mst. Alan on each count as he played lesser role in their murder.
Umar Draz alias Umra and Ahmad Sher were sentenced to death for the. Murder of Abdul Ghafoor deceased and awarded imprisonment for life for the murder of Mst. Zubaida, Muhammad Bakhsh, Mst. Jalan and Mst. Alan on each count.
Muhammad Sharif accused was sentenced to death for the murder of Abdul Ghafoar and Mst.
Alan and awarded imprisonment for life for committing the murder of other three deceased persons on each count.
Massan alias Massu and Ghulam Abbas accused were sentenced to death for the murder of Muhammad Bakhsh deceased and also awarded imprisonment for life for the murder of other four deceased on each count.
Mahla accused was sentenced to death for the murder of Mst. Jalan deceased and awarded imprisonment for life for the murder of other four deceased on each count.
Sultan accused was sentenced to death for the murder of Mst. Alan deceased and awarded imprisonment for life for causing the murder of remaining four deceased persons on each count.
Khizar Hayat was sentenced to death for the murder of Mst. Zubaida and Mst. Alan and awarded imprisonment for life for the murder of remaining three deceased on each count.
All the 14 accused were also sentenced to pay a fine of Rs, 1,000 each on each count under section 302/149, P. P. C. Or in default to undergo further six months' R. I. On each count. In case the fine was realised, it shall be paid to the heirs of the deceased in equal shares. In case the sentence of death was not confirmed by the High Court and was altered to any other sentence, all the sentences would run concurrently.
19. The convicts have filed appeals, Criminal Appeal No, 268 of 1980 has been filed by Khizar Hayat, Umara and Ahmad Sher, Criminal Appeal No, 269 of 1980 has been filed by all the 14 convicts jointly whereas Criminal Appeal No, 280 of 1980 is by Allah Bakhsh convict. The learned Additional Sessions Judge has also referred the case of sentences of death for confirmation under section 374, Cr. P. C. Which is before us by means of Murder Reference No, 65 of 1980. All these matters are being disposed of together by this judgment.
20. The trial Court believed the eye-witnesses, discarded the plea of the defence that the accused whose names were not mentioned in the F. I. R. Were entitled to its benefit. The plea that Ghulan Muhammad (P. W. 13) in the identification parade held on 1st July, 1978 could not pick up Manak and Sultan accused and thus they were entitled to acquittal was repelled on the ground that the identification parade had been held after a delay of ten months and that said Ghulam Muhammad had refused to participate in the parade by explaining that he was under severe shock since all his family members had been murdered. He believed the recoveries. It was further held that according to the Chemical Examiner, the hatchets recovered in this case were stained with blood though the Serologist observed that four hatchets were stained with human blood while the blood on the remaining two hatchet was disintegrated and thus the origin could not be determined. It was thus held that the hatchets were connected with the crime. Relying on the report of the Fire-arms Expert, it was held that the guns had been recovered from Natoo, Massu, Abbas and Mahla accused and all the four guns were found to be used in the occur-ranee and connected with the crime which provided corroboration and support to the prosecution case. He also considered the explanation given by the accused in their statements under section 342, Cr. P.
C. The defence evidence led by Massan alias Massu. Khan alias Khani and Khizar Hayat accased was also considered and disbelieved. The eye-witnesses were held to be natural witnesses of the occurrence and their presence in their respective house was not doubted. Their testimony was considered to be consistent and inspiring confidence and without material discrepancies. They were held to have withstood the test of lengthy cross-examinations.
21. In the above set of circumstances and position obtaining on the record, the chief questions, inter alia, required to be answered are (0 Whether the two set of eye-witnesses who claim to have seen the respective occurrences were present at the time of such occurrences ; (ii) if present, were they in a position to have seen the commission of the crime ; (iii) whether their testimony in worthy of credence ; (iv) Whether, in the circumstances, if the eye-witnesses are believed, the Court ought to look for corroboration of their testimony from independent sources ; (v) Whether the recoveries of crime empties and weapons of offence are to be believed ; (vi) What are the corroborations available for the eye-witness account of the interested witnesses ; (vii) What are the weaknesses of the prosecution case and circumstances creating a doubt where benefit ought to be extended to the accused ; (viii) the vicarious liability ; and finally (ix) the quantum of sentence.
22. The learned counsel, Mr. Mahmood Ali Kasuri, appearing for some of the appellants convicts argued that this Court should reach the conclusion that the three eye-witnesses were not present at the time of the occurrences for the reasons that it is highly unnatural that complainant Ghulam Rasool (P. W. 12) was not sharing the cot with his wife Mst. Zubaida deceased and instead claimed to be sleeping on the roof of the room with his two brothers and thus conveniently survived to witness the occurrence. Similar was the case of Ghulam Muhammad who managed to climb up to the roof of his kotha to witness the slaughter of near and dear ones and managed to escape detection by the assailants.
With due respect for the learned counsel, we find the submissions to be totally devoid of merit. In our rural society the concept of double-beds for the sharing of spouses has so far not gained any ground. The site plan clearly shows and the evidence at the trial is also to the effect that in the house of cobbler complainant P. W. 12 there were two ordinary charpais in the courtyard. Therefore, on no reasonable hypothesis we can draw a legitimate inference against the prosecution version.
The learned counsel while raising the above arguments also appears to have overlooked the material circumstance that it is in evidence that the surviving tender age son of the complainant, Abdur Rauf, was sleeping on the cot with his mother Mst. Zubaida deceased. In such a situation to expect the husband also to be sleeping with the wife on the same cot, in our view, is expecting too much. In the case of Ghulam Muhammad (P. W. 13), we find his version to be plausible that he was sleeping in the courtyard of his house and on hearing gunshots and noises he went to the roof to observe as to what was happening and thus remained undetected by the assailants.
23. It may further be observed that the prosecution in discharge of its onus to bring home the charge to the accused is not required also to prove as to why the assailants while salughtering the family members sleeping in the courtyards failed to detect the presence of the inmates the house on the roof of the kotha. Such a failure on the part of the accused to detect or attack their victims is not for the prosecution to account for. We are not minded nor persuaded to embark upon conjectures and surmises to draw a conclusion favouring the accused or adverse to the prosecution in the facts and circumstances of the present case. In the site plan Exh. P. M. In the house of complainant there are three charpais shown lying on the kotha marked as points 3, 4 and
5. This further lends support to the eye-witness account in respect of the presence of the witnesses.
Be that as it may, on proper appreciation of the facts and circumstances of this case the argument appears to be too far fetched and trivial a circumstance to justify an inference of impossibility or high improbability of prosecution version. The position may well have been different if it was established that the eye-witnesses despite being encountered by the accused assailants could not be left unharmed or allowed to survive to depose against them to facilitate being sent to the gallows.
After a careful appreciation of the material on the record, we feel inclined to hold that the three witnesses are natural witnesses being the inmates of their respective houses. In the situation in which the complainant party was placed, it would have been unnatural for them not to be present in their homes to protect themselves and their kith and kin from the onslaught of their enemies when there was only a day left for announcement of judgment in the murder trial of Ahmad Yar, at which Ghulam Rasool (P. W. 12) and Ghulam Muhammad (P. W. 13) were facing trial as accused. We would accordingly answer question No, (i).
24. In respect of question No, (ii) whether the eye-witnesses were in a position to see the occurrence, the learned counsel for the appellants emphatically argued that it was not possible to witness the occurrences from the roofs of the respective Kothas which had three feet high parapets as the witnesses claimed to have watched the occurrence when lying down. This plea has been raised on the strength of the evidence of P. W. 8 Sh. Noor Muhammad, Draftsman, who during his cross-examination stated : "The parapet of the kotha on which Ghulam Muhammad was sleeping was about three feet" and a little later in reply to a further question he said :- "The parapet of the kotha on which Ghulam Rasool, Ata Muhammad and Muhammad Bakhsh were sleeping may be three feet in height."
It may be straightaway observed that it is nobody's case that Ghulam Muhammad was sleeping on the kotha. His version is that he alongwith other family members was sleeping in the courtyard of his house. On hearing noises he woke up and went to the roof of the haveli. After careful appraisal we have reached the conclusion that P. W. 8 made obliging concessions. He is not correct in saying that Ghulam Muhammad was sleeping on the roof of the kotha. These concessions are contradictory to the site plan Exh. P. M. Wherein no three feet high parapets on the roofs of the respective houses are shown to exist. He was examined in Court on 15th November, 1979 about two years after the incident and how is it that he remembered the three feet high parapets when the same were not reflected in the site plans prepared by him. The two are ordinary type small rural houses and the existence of such high parapets would rather be a rarity. On a consideration of the material on the record and the circumstances of the case we have no hesitation to hold that there existed no three feet high parapets and thus persons on the roofs of th respective houses were in a position to see the activities of the assailants in the respective courtyards.
25. It remains to notice the further argument of the learned counsel for the appellants that the dim lantern lights in the two houses were not sufficient to enable the eye-witnesses to identify the assailants or to see the entire occurrence specially when the cots of the deceased were placed distantly. It was also urged that the chimney of the lantern in the house of Ghulam Muhammad (P.
W. 13) was smoked which rendered it highly improbable for a person to witness the crime in impaired light.
26. The arguments of the learned counsel have not impressed us. The object of these lanterns was to keep the respective courtyard sufficiently lit and provide visibility in order to enable the inmates to detect intrusion. A lantern light in the ordinary course and particularly in the facts of this case would be sufficient to enable the eye-witnesses on the roofs of the kothas about 11 feet high to see the occurrences as well as to identify the assailants. The supplemental argument of the learned counsel that the chimney of the lantern in the house of Ghulam Muhammad could not remain burning after the incident and thus it would have been smoked even prior to the occurrence, thereby reducing the visibility in its dim light, also does not appear to inspire confidence. It is difficult to assume that after hollowcast in the house of Ghulam Muhammad (P. W. 13), he would have been concerned about putting off a burning lantern hanging by the wall. The argument is accordingly repelled.
We, therefore, conclude that the three eye-witnesses were present ini their respective houses, and were in a position to witnesses and have seen the commission of the crime in the lantern lights.
27. This then brings us to the Third question whether the testimony of the eye-witnesses inspires confidence and ought to be believed. We have had the advantage of going through the evidence with the able assistance of the learned counsel appearing for the appellants and the State and also of listening to their comments. After due consideration, we are inclined to uphold the view of the trial .Court that these eyewitnesses have given consistent evidence and have been able to stand the test of cross-examination. The minor discrepancies or improvements here and there are liable to be ignored and insufficient to impeach their credibility. In the matter of appreciation of evidence in a criminal trial, the educational and cultural background of a witness has also to be borne in mind. In the present case the eye-witnesses are uneducated rustic rural folks and it cannot be expected of them to give a reproduction of the crime scene of the quality of a camera.
The principle of separating grain from the chaff is too firmly established to require reiteration or elucidation.
28. The fourth question which 'then arises for consideration is whether in the established background of enmity and bloodfeud which prevailed between the parties, would it be proper in keeping with the rules of safe dispensation of criminal justice to sustain a conviction on the sole basis of testimony of interested eye-witnesses. It needs to be observed that the evidence of an interested eye-witness all the same constitutes legal evidence which if believed can lay the foundation for a conviction on the proper appreciation of the overall circumstances and facts of a given case and no hard and fast rule need be laid down. It is essentially a question which is best answered by the judicial conscious of the Court in each case. The learned Supreme Court of Pakistan in the case of Niaz v. The State sounded the rule of caution in this behalf and the proposition was further explained in the case of Nazir v, The State by Kaikaus, J. Who is author of the judgment of the Court. In the precedent case a distinction had been drawn between exceptional and ordinary kind of interested witnesses and their evidentiary value for the purposes of sustaining a conviction. We may observe that there are variety of factors which a Court would be required to consider in that behalf and it does not seem desirable to attempt to exhaustively list them. For the purpose of present case, it would suffice to observe that there are no features present to bring the three eye-witnesses into the category of witness of exceptional veracity and indeed they ought to be treated as ordinary interested witnesses. This would at once attract the rule of caution and prudence that it would be unsafe to base convictions upon their testimony alone in respect of every person against whom they depose. We feel it to be desirable to look for support from circumstantial evidence or direct corroboration for the eyewitness account in this case to rule out the possibility of false involvement of innocent person.
29. The recoveries of crime empties from the houses of Ghulam Rasool and Ghulam Muhammad P.
Ws. Are supported by the statement of Ghulam Rasool (P. W. 12) and above all by Manzoor Ahmed S.-I., the Investigating Officer (P. W. 15). The mete fact that the residents of the locality or independent witnesses were not forthcoming to witness these recoveries is understandable in the facts and circumstances of this case j which involved a blood-feud and desparate characters. The persons of the locality would thus naturally be shy to come forward to give evidence in the case for the fear of retaliation and victimization. The statement of P. W. 12 stands corroborated by the Investigating Officer. We are inclined to believe the statement of S.- I. Manzoor Ahmed (P. W. 15) the Investigating Officer whose objectivity has not been impeached.
Next, we come to the recovery of the guns from Natoo and Mahla accused on 1st October, 1977 by S.-I. Abdul Hamid Khan (P. W. 14) S. H.
0., P. S. Sahiwal who apprehended them near Pumpanwala bridge while he was holding a nakabandi. Both of them were arrested for keeging unlicensed arms. The recovery of the guns from both of them was proved by Abdul Hamid Khan (P. W. 14). Mr. Ijaz Hussain Batalvi and Mr. Muhammad Anwer Bhinder, Advocates appearing for the appellants-convicts argued before us that the recoveries of these two guns ought not to be believed for the reason that in addition to S.I.
Abdul Hamid Khan (P. W. 14), two witnesses of the recovery though relied upon by the prosecution had not been produced at the trial.
30. We have considered the criticism of the counsel but have not felt-persuaded to sustain it. It is not a case of dishonest investigation and nothing has been brought on the record to show that P.
W. 14 acted as an over zealous police officer. There is equally nothing on record to satisfy us that there was a personal factor or between the police officer and the aecuged. Abdul Hamid S.-I. Was S. H. O. Of another police station and had no direct concern with the murder case. He would ordinarily, as in the present case, have no purpose in staging a sham show. The evidentiary value1 2 of an official witness would be no less in value than that of an ordinary citizen. The true test of the veracity of a witness in a case like that in hand is not his official or unofficial position. The matter would really hinge on the question whether it inspires confidence with the Court L when judged in the light of the well-recognised criteria for appreciation of evidence in the given circumstances of each case. After appraising the evidence of S.- I. Abdul Hamid, we feel that he ought to be believed.
Reference may be made to a Division Bench jugdment of this Court In re : Islam-ul-Haq and two others v. The State for the proposition that where in a case recovery witnesses were not produced as won over and dropped by prosecution, the recovery could be proved on the basis of solitary statement of a Sub-Inspector provided there is no other element of doubt in the recovery. The Division Bench in so holding followed the earlier view of this Court In re :Emperor v. Santa Singh and the law declared by the Supreme Court of Pakistan.
31. The learned counsel next pointed out that these appellants were challaned in a case under the Arms Ordinance for possessing these guns without a licence and tried by a Magistrate 1st Class and convicted and sentenced on 9th February, 1979. On appeal, they were acquitted by learned Sessions Judge, Sargodha. The appeal of Mahla was accepted by the said Court on 5th May, 1979 and that of Inayat on 28th April, 1979, the judgments of the appellate Court being Exhs. D. Q. And D.
R., respectively. It was then argued that the recoveries of two guns ought not be believed because the same evidence had been disbelieved by Courts of competent jurisdiction in trials for offences under the Arms Ordinance, 1965. We had no intention of examining or commenting upon the judgments of the learned Sessions Judge, Sargodha, rendered in independent proceedings.
However, since the argument has been emphatically raised, we are called upon to dispose it off.
On perusal of the appellate judgments referred to above, we find that the two appellants Natoo and Mahla were given benefit of doubt and their convictions under Arms Ordinance set aside. The main reason which weighed with the learned Sessions Judge was that two attesting witnesses of recovery who happened to be with the police on nakabandi appeared to be stock witnesses and as such reliance on their testimony was considered to be unsafe the treatment meted out to them may well have discourged the prosecution in adopting the course of not producing them during the murder trial as unnecessary. The appellants want to capitalise on this omission to their maximum advantage. After giving due consideration to the appellant's plea, we have not felt persuaded to sustain it. However, unadvised the course adopted by the prosecution, there was still left the evidence of the S. H.
0. Abdul Hamid to prove these recoveries. The testimony of this witness was left untouched and not at all commented upon by the learned Sessions Judge in the course of his two appellate judgments which are carbon copies of one another. His evidence was thus completely unconsidered. It is any body's guess as to what the decision would have been if the evidence of police officer had been considered in the light of law enunciated by the superior Courts of the country as pointed out in the preceding paragraphs. He was neither believed nor disbelieved. Be that as it may, we are properly called upon to consider Abdul Hamid's evidence at the murder trial on our record for adjudication of questions falling for decision by us in these proceedings. We are not inclined to abdicate our functions on consideration of a verdict by a subordinate Court on a limited charge under a special statute. We do not find P. W. 14 to be partisan and there exist no features to shake his credibility.
' The record of proceedings in trials under section 13 of the Arms Ordinance, 1965, is not before us.
The proceedings of the two trials are distinct in nature and independent of each other as per the scheme of law obtaining in Pakistan. The copies of statements of the two recovery witnesses or S.-I.
Abdul Hamid are also not before us. The police official at the murder trial during his cross- examination was not confronted with his statement made in the course of Arms Ordinance case.
No contradictions as such having been brought out, we are required to judge his evidence during3 4 the murder trial on its own merits. On factual aspects, the learned Magistrate convicted the two appellants but that judgment has also not been brought on the record. The learned Sessions Judge has failed to deal with or discard the testimony of S.-I. Abdul Hamid nor addressed himself to the question of evidentiary value of the solitary statement of the Sub-Inspector of Police. In peculiar facts and circumstances of this case, we feel no hesitation in holding that the recovery of guns from Natoo and N Mahla stand proved on the strength of evidence at the murder trial of S.-I.
Abdul Hamid (P. W. 14). The second limb of the argument as to the legal effect of acquittal in the cases under the Arms Ordinance would be adverted to later in the judgment.
32. Insofar as recoveries of other two guns i. e. From Abbas on 7th October, 1977 and Massan alias Masoo on 21st September, 1977 are concerned, they were effected by Investigating Officer, S.-I.
Manzoor Ahmed (P. W. 15). In the former case the recovery witnesses were Muhammad Bukhsh (P.
W. 11) and Atta Muhammad. This Atta Muhammad who is brother of the complainant Ghulam Rasool (P. W. 12) was not produced. In the latter case, in addition to P. W. 15 Manzoor Ahmad S.-I.
Recovery witnesses were Atta Muhammad, Mumtaz P. W. And Inayat All A. S.-I. (P. W. 9). Mumtaz and Atta Muhammad were not produced.
In the case of Abbas, recovery of gun is supported by P. W. 12 Ghulam Rasool and S.-1. Manzoor Ahmed (P. W. 15). Whereas in the case of Masoo, there is evidence of the Investigating Officer and A.
S.-1. Inyat Ali. There are no cogent reasons to disbelieve the evidence of Ghulam Rasool corroborated by S.-I. Manzoor Ahmed. In the latter case, there are two police officials deposing to prove the recovery. Believing these witnesses we hold that the recoveries of guns stand proved from these two appellants.
33. Next taking tip the recoveries of the hatchets, it has to be mentioned that these were effected by P. W. 15 Manzoor Ahmed on different dates and the recovery witnesses in each case were Atta Muhammad, brother of the complainant Ghulam Rasool, who had not been produced an Muhammad Bakhsh (P. W. 11). We would believe these recoveries p on the basis of the evidence of the Investigating Officer (P. W. 15) corrborating the evidence of P. W. 11 Muhammad Bakhsh.
34. We consider it unnecessary to dwell on the question of recoveries of lathis from the other accused for the simple reason that none of them were found to be blood-stained and thus were devoid of corroborative value. We would answer the fifth question with the finding R that the recoveries of the crime weapons are to be believed, as was done by the trial Court.
35. Now we take up the sixth question as regards the corroborations available for the eye-witness account of the interested witnesses. Insofar as the four gun men, namely, Inayat alias Natoo, Mahla, Ghulam Abbas and Massan alias Massu appellants are concerned, as per the opinion of the fire-arms expert, these guns have matched with the crime empties recovered from the scenes of occurrence. This, in our view, would constitute sufficient corroboration to connect these appellants with the commission of the crime.
36. Insofar as the case of the accused who were armed with hatchets is concerned, it may be observed that these weapons of offence were recovered from each of them and as per the Chemical Examiner's opinion all the six hatchets were stained with blood and the Serologist's report showed that four of the hatchets were stained with human blood whereas the origin of the blood in respect of the remaining two hatchets could not be determined because of disintegration.
Reference may be made to the case of Ghulam Rasool v. Ali Akbar as regards non-detection of origin of blood due to disintegration. In this case the learned Supreme Court took the view that insofar as the recoveries of blood-stained clothes and hatchet go, they served to support the direct evidence believed by the two Courts below. We have believed the recoveries and eye- witness. Account and as such we consider that these factors provide sufficient corroboration t connect this set of accused with the commission of the crime with which they are charged.5
37. As regards the circumstances corroborating the version of the interested eye-witnesses, the Supreme Court in the case of Niaz v. The State has held that the corroboration may be provided by anything in the circumstances of a case such as the number of culprits named was the probable number that would be required for an attack of the kind in a given case and the persons named as culprits were such as would be expected to join in the attack. Therefore, judging in the light of the true criteria, there is sufficient evidence and the material on the record for reaching the irresistible conclusion that the ocular account supplied by the interested eye-witnesses finds support and corroboration from the circumstances of the case. As to the effect of the corroboration in respect of each accused, we defer the matter to be dealt with a little later.
38. This now brings us to the seventh question regarding the weaknesses of the prosecution case and circumstances justifying extending the benefit of doubt to some of the convict appellants.In case of Massan alias Massu appellant, we note that in his statemen under section 342, Cr, P. C. He had unequivocally stated that he was lodged in connection with a criminal case in District Jail, Sargodha from a date prior to the occurrence i. e. 19th September, 1977. He was arrested formally from Sargodha Jail on 21st September, 1977 by 5.-I. Manzoo Ahmed (P, W. 15). He was ordered to be released on bail in the previou case by a Magistrate on 19th September, 1977. This is further supported by the verification of the Superintendent, Jail, Sargodha (Exh. D.
0.) to the v effect that he was lodged in District Jail, Sargodha, on 31st August, 1977 and on 19th September, 1977 he was ordered to be released on bail. Thsi circumstance is sufficient to cast a cloud of doubt regarding the participation of Massan alias Massu appellant in the commission of the crime. Mere recovery of gun which was a weapon of offence from his person, therefore, would not by itself be sufficient to bring home the charge of murder qua him in the presence of other features noticed by us. We would accordingly extend him the benefit of doubt and order his acquittal.
Insofar as the other three gun men are concerned, namely, Inayat alias Natoo, Ghulam Abbas and Mahla, no material circumstances have been brought on the record to create reasonable doubt.
39. We would now examine the case of six accused who were armed with hatchets, namely, Khizar Hayat, Umra alias Umar Draz. Chulam Rasul, Sultan, Ahmad Sher and Muhammad Sharif. The learned counsel for the appellants had placed strong reliance on the supplementary statement of Muhammad Bakhsh (P. W. 11) recorded by the Investigating Officer under section 161, Cr. P. C. On 2nd October, 1977. We have perused the same and find that he is a witness to the recovery of three hatchets from Umar Draz, Ghulam Rasool and Khizar Hayat. In his statement under section 161, Cr. P.
C. (Exh. D. B.), it is not mentioned that these three hatchets recovered from these accused were stained with blood The significance of this omission becomes apparent by referring to the supplementary statement of the same witness (Exh. D. C.) where he does mention recovery of blood-stained hatchets from Ahmad Sher and Sultan appellants. This circumstance, therefore, creates a doubt regarding the participation of the three appellants Khizar Hayat, Umar Draz and Ghulam Rasul and thus giving them the benefit of doubt, we would acquit them. Insofar as Sultan appellant is concerned, it is evidenced by (Exhs. D. G., D. G./1-2 that there was an identification parade held in respect of him on 1st July, 1978 but P. W. 13 Ghulam Muhammad failed to identify him. Sultan was not one of the assailants mentioned in respect of the first incident and thus he claimed to be identified by the sole eye-witness of the occurrence Ghulam Muhammad (P. W. 13).
The failure of P. W. 13 to identify Sultan appellant, therefore, for the ostensible reason that he was unable to identify the accused on account of shock 10 months after the occurrence, does not inspire confidence. There are thus doubts arising regarding the participation of Sultan appellant in the occurrence and we are inclined to give him the benefit of doubt and thus would acquit him.
There are no such circumstances to be found in favour of Ahmad Sher and Muhammad Sharif appellants. It has already been noticed that vide Exh. D. C. In the statement of Muhammad Bakhsh under section 161, Cr. P. C., it is duly mentioned that the blade of the hatchet recovered from Ahmad Sher was stained with blood. Insofar as Muhammad Sharif is concerned, the hatchet was recovered from his house vide Exh. P. D. D. And the recovery memo. Does mention that the blade of this hatchet was bloodstained. In his case, no contradiction or commission of the nature as have been pressed into service in the case of Khizar Hayat, Umra and Ghulam Rasool appellants are pointed out. There are thus no doubts arising in his case regarding his participation in the commission of the crime. The eyewitness account, therefore, stands corroborated by the recoveries of the weapons of offence. The charge against these two appellants namely Ahmed Sher and Muhammad Sharif, therefore, stands proved beyond reasonable doubt.
40. We would now take up the case of the accused who are alle ged to be armed with dathis. It is a common ground between the appellants and the state that none of the lathis after recovery were referred for the opinion of the Chemical Examiner or Serologist's report as they were not stained with blood. In respect of these four accused, namely, Khan alias Khani, Allah Bakhsh, Muhammad Nawaz and Muhammad Yar alias Mammi, therefore, we find that the corroborative evidence in the form of recoveries of blood-staind weapons of offence is absent. Mere recovery of lathis from this set of convicts would be neither here nor there and is wholly insufficient by itself to connect them with the commission of the crime or to provide sufficient corroboration. Given the benefit of doubt, they are acquitted. Two of such persons namely Ahmad Yar and Manak have already been acquitted by the trial Court.
41. The question to be attended to now is that of vicarious liability. From a perusal of the evidenee and the material on the record, it thus stands established that Inayat alias Natoo, Mahla, Ghulam Abbas, Ahmad Sher and Muhammad Sharif were members of an unlawful assembly, the common object of which was to murder Mst. Zubaida and Abdul Ghafoor and Muhammad Bakhsh, Mst.
Jalan and Mst. Alan and to commit murderous assault on Abdul Rauf. The trial Court was right to the extent of holding that these convict appellants are in law vicariously liable for the acts of each other. This answers the ninth question.
42. Before dealing with the question of quantum of sentence, we would like to deal with the point raised by Mr. Ijaz Hussain Batalvi, Advocate regarding the legal effect of acquittal of appellants Mahla and Inayat alias Natoo in the cases under the Arms Ordinance, after having been charged for possessing the guns which were weapons of offence without licence. The learned counsel placed strong reliance on the decision of the Privy Council in re : Sambasivam v. The Public Prosecutor, Federation of Malaya , to argue that acquittal of the two appellants in the cases under the West Pakistan Arms Ordinance, 1965, should be given its fullest effect and thus it would be anomalous to convict them on the charge of committing murders with the guns the recoveries of which from their persons had been disbelieved by a Court of competent jurisdiction. Reliance is being placed on the following observations of the Privy Council in the cited precedent :- "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal insofar as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to6 the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
43. We have carefully examined the precedent cited. The facts of this case were that Sambasivam, an Indian Tamil clerk, was travelling on foot in the State of Johore in company of two Chinese in the year 1948. They met a party of three Malayas and a fight ensued in the course of which one of the Chinese was killed, and Sambasivam was seriously wounded. The other Chinese escaped and was not heard of thereafter. The Malayas, who were armed with knives, alleged that they had been fired upon by the Chinese and Sambasivam had drawn and pointed a revolver at one of them before he had been wounded and disarmed. In connection with the incident Sambasivam was later charged with carrying a fire-arm and being in possession of ten rounds of ammunition. These charges were preferred under Regulation 4 (I) of the Emergency Regulation, 1948. The trial was held under the Emergency (Criminal Trials) Regulation, 1948 which provided for simplified procedure without any preliminary inquiry in the case of certain offences within the Federation. Sambasivam was tried on both the charges in the Supreme Court before a Judge and two assessors. On the second charge relating to the possession of ammunition and framed under Emergency Regulation-both assessors returned a verdict of not guilty and, he was duly acquitted. On the first charge relating to possessing of a fire-arm under the same provision of Regulation the assessors also found him not guilty but Laville J. Disagreed with this finding and ordered retrial. This course was permissible under the Criminal Procedure Code in force in that country. The retrial on charge of possessing fire- arm took place before another learned Judge and different assessors. They found Sambasivam guilty and he was sentenced to death. On appeal against his conviction the Court of appeal dismissed his appeal without calling upon the counsel for the prosecution and, so far the record showed, without pronouncing any reasoned judgment.
In the above set of circumstances, the Privy Council ultimately took the view that the second trial ended without anything being said or done to inform the assessors that Sambavisam had been found not guilty of being in possession of ammunition and was to be taken entirely innocent of that offence. It was further observed that the Board was uncertain from the record whether the learned Judge was himself aware of the acquittal. The Board thus reached the conclusion that the effect of the omission was to render the retrial unsatisfactory in material respect. This in the opinion of the Board affected the verdict of the assessors, as also the weight to be attached to evidence and what would have been their approach had the previous statement been excluded was a matter of conjecture. The uncertaintities so listed were found to be sufficiently reasonable to jeopardise the verdict recorded and justified Board's view that it ought not to stand. The conviction and sentence were thus set aside.
44. It would be seen that the precedent cited proceeded on its peculiar facts. The case was based on two charges vitally interlinked and interdependent under the same section of the Regulation. Six of the ten rounds of ammunition were said to be loaded in the revolver while four were in a bag.
The acquittal on the charge of being in possession of ammunition would thus have direct bearing on the charge of being in possession of revolver specially when the confessional statement of the accused was not believed and ruled out. However, at the retrial the same statement was used against the accused because the learned Judge and the assessors were oblivious of the acquittal on the other charge wherein it had been rejected.
' We have given our anxious consideration to the principles enunciated by the Privy Council in the precedent case. In our view, the case is distinguishable and it would not govern the fate of the present appeals before us.
45. Insofar as the principle enunciated goes, in the words of the Privy Council itself, it appeared plain to the Board that the factor of acquittal on ammunition charge was not conclusive of his innocence on the fire-arm charge but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in respect of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. It is, therefore, difficult to appreciate the argument of the learned counsel that the acquittal in the case under section 13 of the Arms Ordinance would, by force of law, have the effect of disproving the recovery of the weapons of offence from the two appellants Inayat alias Natoo and Mahla in the course of murder trial. Unlike the Sambavisam's case, we are not unmindful of the verdict of acquittal and have duly applied our mind to that fact.
In our view, the credibility of P. W. 14 Abdul Hamid would not automatically stand shaken because of the aforesaid acquittal on any principle of law.
46. We, may advantageously advert to the scheme of the Arms Ordinance, 1965 and in particular the provisions contained in section 25 of the Ordinance. The Legislature has taken due care to lay down that nothing in this Ordinance shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Ordinance or from being liable under such other law to any higher punishment or penalty than that provided by this Ordinance. The proviso to the section then recapitulates the well- Z known maxim autrefois convict autrefois acquit as embodied in section 403 of the Pakistan Criminal Procedure Code. From the plain language of the section, it appears clear to us that the legislative intent was not designed to wash out the criminal liability of an accused charged under section 13 of the Arms Ordinance for escaping the rigors of punishment including higher penalty in offences involving capital charge. The principle of autrefois acquit is not being infringed by us in adopting the course of determining the liability of the appellants Inayat alias Natoo and Mahla of committing murders which is not the same offence as the one under the Ordinance. In our view, the argument of the learned counsel, when carried to its logical ends, would fail the test of judicial scrutiny also for the reason that it would lead to anomalous results. It is merely a coincidence in this case that the verdict in trial against the two appellants resulting in their conviction and their acquittal by the Sessions Court on appeal by giving the benefit of doubt preceded the verdicts in murder trial and decision of Murder Reference and appeals against their convictions. This argument, of course, would not have been available to the appellants if this Murder Reference and appeals had preceded the verdict in cases arising under the Arms Ordinance against the same accused appellants It does not appear to be the intention of law that a person who is accused in an offence and is charged separately for his criminal liability under the Arms Ordinance and for another offence under the Pakistan Penal Code should have his fate sealed dependent upon the results of that trial in the other independent case either way. If it was to be otherwise, the subsequent trial, whichever it may be, would be merely an idle ceremony and an exercise in futility for the reason that an acquittal in one case would lead to acquittal as a matter of course in the other case vice versa. In such a situation, the true scope to our mind appears to be that the Court before whom verdict of acquittal in a case under the Arms Ordinance is brought would be put on an inquiry and required to deal with the matte with a degree of extra caution. It would be expecting too much from the High Court to subordinate its own independent judgment in a murde case to that of a Magistrate 1st Class who happened to acquit a person, also accused in a murder case, of an offence under the Arms Ordinance. Similarly, it would not be fair where a decision of murder trial has preceded the conclusion of trial in a case under the Arms Ordinance that the Magisterial Court should merely observe the formality of holding a trial unappreciative of the merit of the evidence before him and influenced solely by the mere fact of acquittal or conviction on the murder charge and thus should follow the course of treating that to be a decision as well for the purpose of the case before him. We entertain no doubt in oumind that such a pre-determined course if allowed to prevail would entail a serious infraction of the scheme of law. We have accordingly taken note of the acquittal but have proceeded to decide the question of recovery of the guns from these two appellants on the basis of the quality o evidence adduced at the murder trial in the form of the deposition of the Investigating Officer P. W. 14 as elaborated by us earlier in the judgment. We may observe at this stage that the observations made in any criminal matter by a Court are to be primarily considered confined to the facts of the given case. Reference may be made to Mst.
Hamida Bano v. Ashiq Hussain and others ; State v. Mushtaq Ahmad and Ghulam Muhammad v.
Allah Yar and others .
47. Before parting with this aspect, we may observe that the Privy Council judgment was noticed by the Supreme Court of India In re : Pritam Singh and another v. The State of Punjab . It was inter alia observed in the precedent case that the acquittal of Pritam Singh Lohara of the charge under section 19 (f) of the Arms Act, 1878 was tantamount to a finding that the prosecution had failed to establish the possession of the revolver by him. The possession of the revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord McDermott quoted in that judgment, it could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. The Court was of the opinion that the High Court was right in rejecting the evidence regarding the recovery of pistol against Pritam Singh and the evidence against him would have to be considered regardless of the alleged recovery of the pistol at his instance. We may, with due deference, observe that the passage from the judgment of Lord Mac-Dermott quoted in this precedent case stops short of and thus omitted to take notice of the pivotal words of the Privy Council to the effect. "That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
48. It needs to be observed, therefore, that if a previous verdict of acquittal after a trial under the Regulation of Malaya on the charge of being in possession of ammunition was held to be not conclusive of the innocence of the accused at the retrial on the charge of being in possession of the pistol, the same principle would apply with greater force in case of an independent charge of murder as is the position in the appeals before us. In such a situation the Court seized of the murder case would, of necessity, be required to appreciate the evidence relating to recovery of weapon of offence from an accused charged in a murder case independently on its own evidentiary value coupled with the over all attending circumstances and material on the record.
The acquittal on a charge for possessing arms without a licence would not, therefore, as a rule of law, be enforced to obtain acquittal even on a separate and independent charge of murder.
' We have, therefore, not felt persuaded to stretch the rule laid down by the Privy Council to the extent of pre-determining the fate of murder trial on the basis of a verdict of acquittal in arms case despite the fact that two are independent of one another and acquittal on one charge would not be conclusive of innocence on the other charge.
49. After having considered the entire law which stands attracted to the question, we find no warrant to sustain the proposition canvassed by the learned counsel for the appellants. We may in the passing however observe that the question has posed itself before us in the form in which it had been presented consequent upon the change introduced in the Arms Ordinance, 1965 whereby offences under the said Ordinance are now friable by Magistrates. Previous to that, the trials under the Arms Ordinance as well as the murder cases were conducted almost simultaneously by the same Court at the Sessions level. However, since a conscious change has been brought about by the legislature therefrom we are unable to spell out any intention reflected in any provision of the statute to achieve the results visualized by the learned counsel for the appellants. We need not give more reasons or illustrations to justify the view we have adopted.7 8 9 10
50. We would next like to advert to the point raised on behalf of the appellants insofar as fault was sought to be found with the evidence of Ghulam Rasul (P. W. 12) inasmuch as he had stated that the shot was fired at his wife Mst. Zubaida which hit her on the head but the medical evidence did not prove a gun-shot injury suffered by the deceased lady.
' There is no merit in the argument for the reason that it has come in evidence that there were pellets found in the pillow under the head of Mst. Zubaida and the charpai on which she was lying vide Exh. P. R. R. As evidenced by the statement of Investigating Officer (P. W. 15). It, therefore, shows that Ghulam Rasul (P. W. 12) was right in stating that his wife had been shot at. It is a different matter that hitting of pellets in the head could not be reflected in the medical evidence. This could be so because there was as incised wound on the head 2" x 1" x brain deep stated to have been caused with hatchet according to ocular testimony of P. W. 11 Muhammad Bakhsh and Ghulam Rasul (P. W. 12). This could be a grazing injury caused by pellets because the head injuries sometimes caused by blunt weapon also appear to be incised wounds. It possibly could be that the hatchet injury superimposed itself on the injury caused by hitting of pellets. There was empty of a cartridge recovered from the house of Ghulam Rasul P. W. Which recovery we have believed. This further supports the direct evidence that gunshot was fired by Natoo during the occurrence in the house of Ghulam Rasul P. W. There is thus no substantial discrepancy shown to exist so as to shake the veracity of the eye-witnesses.
51. We would next like to dispose of the supplementary argument of the learned counsel for the appellants that recovery of empties ought not to be believed for the reason that they do not find mention in the inquest report. Learned counsel placed reliance on the case of Yousaif v. The State. , decided by a Division Bench of this Court. The Divsion Bench in this case had interpreted section 174, Cr. P. C. Read with the Punjab Police Rules, 1934 and in particular rule 25.35 relating to inquest report. On an appreciation of these provisions, it was held that requiring mention of description of crime weapon in column's 12 and 23 of the inquest report was a mandatory requirement and more mention of the nature of weapon was not enough to meet the requirements of law. The case is distinguishable.
On a reading of section 174, Cr. P. C., it becomes evident that what is required to be recorded is by what weapon or instrument, if any such marks of injury appear to have been inflicted. This requirement cannot reasonably be stretched to extend to the mention of crime empties z recovered from the scene because they will not fit in with the description of weapon or instrument as used in section 174, Cr. P. C. We have seen the prescribed columns 12 and 23 of the inquest report and note that there is no requirement of the recovery of crime empties to be mentioned therein.
However, we wish to observe here that in view of the importance of the inquest reports in murder references and appeals, the office should in future ensure that they form part of the printed paper books for facility of reference and to save public time.
52. The further anxiety of the learned counsel expressed at the hearing regarding non-mention of five accused in the F. I. R. Should stand relieved in view of our findings and verdict in this case inasmuch as all the five accused found guilty by us are duly mentioned in the F. I. R. And none of them is from amongst those whose names were added through the supplementary statement of Ghulam Muhammad (P. W. 13).
53. Yet another anxiety of the learned counsel for the appellants that a large set of persons have been roped in also loses its importance in view of the fact that we have undertaken extensive sifting of evidence to rule out the possibility of any innocent person being sent to the gallows in the light of the attendant circumstances of the case and the evidence and material on the record.
54. The mere fact that the Serologist's report states that origin oft; the blood on two of the six hatchets could not be determined because of disintegration, in our view, is not conclusive for us to hold that no case was made out against any of the persons armed with hatchets. The fact remains11 that two hatchets were recovered from Muhammad Sharif and Ahmad Sher appellants and the recovery memos., duly mentioned their blades to be blood-stained. This in our view would provide cogent corroboration for connecting these two convict appellants with the commission of the crime with which they are charged.
55. We may at this stage advert to the arguments of the learned State counsel Kh. Muhammad Asghar who emphatically urged before us that this was a case of premeditated brutal murders of five persons and attempt at the life of a child and, therefore, keeping in view the probabilities of the case, the number of the convicted accused was such as fitted in with the role ascribed to them in the commission of the offence. He accordingly prayed that conviction and sentence of all the appellants before us may be maintained.
We, however, feel that as against the general arguments, as already discussed by us earlier in the judgment, there are features of the case favouring the accused which are not liable to be ignored.
Benefit of any Z reasonable doubts arising from the material circumstances noted by us must be granted to the accused on the principle of extending such benefit K where it is due.
56. There was a considerable debate before us on the question of quantum of sentence to Ghulam Abbas appellant. His age is about 80 years and there was no controversy as regards that fact. The learned counsel for the said convict appellant pleaded extreme old age to be a mitigating circumstance for awarding the lesser penalty of imprisonment for life. The learned counsel for the State while opposing relied on a Division Bench judgment of this Court in re : Khairdi and others v.
Crown . This Court speaking through the then Chief Justice Muhammad Monir had in strong terms deprecated the attitude of a learned Sessions Judge in considering the mere fact of a person who had taken part in a premeditated murder being an old man of 60 as a ground for taking the lenient view in the matter of sentence and awarding him imprisonment for life instead of death penalty.
That view was held not sound in law. We do not wish to enter into a cavil with the proposition enunciated by the illustrious Judge in the circumstances of that case but we are constrained to observe that mitigating circumstances on account of extreme old age resulting in infirmity on that account stands on different footing and this aspect has not been commented upon nor that properly arose for consideration in the said case. The enunciation made in the facts of that case cannot be treated as a rule of law laid down for all times to come and in all manner of cases. In our view, a man of 80 years in these days is a rare phenomenon. Such a person is living on bonus and the span of expectancy of his life is almost over as he is well on his way into the valley of death.
According to Islamic concepts, justice must be tampered with mercy. The Courts do not favour ordering merciless hangings even of those who are already in the jaws of death. It is common knowledge that in extreme ad vance years of age, infirmity and senility sets in and there is hardly any difference in the mental faculties of a child and such a person. That being the position, Abbas may have acted under the influence of his companions. Such a circumstance was considered by the Supreme Court to be a mitigating circumstance in the case of Muhammad Nawaz v. The State . We may also advantageously refer to a decision of this Court by Hon'ble Mr. Justice Aslam Riaz Hussain (as he then was) in the case of Sakhi Muhammad v. The State . The view taken was that an old man of 68/70 although not suffering from any ailment yet old age itself brought about infirmity and senility. The latter view, apart from the common knowledge, is supported by the modern medical research which has established that in the advanced years of age there is a striking of the brain which necessarily must affect the mental capabilities of a human being. The age of 60 years as in the case of Khairdi Khan being rightly not considered to be extreme old age and such a person by no plausible process of reasoning or on the basis of common knowledge can be called to be a person suffering from senile decay. We may in the passing observe here that the convict appellant Mahla is 60 years of age and we have not considered this fact to be a mitigating circumstances to convert his death penalty into that of imprisonment for life. That,12 13 14 however, would not hold good in the case of a man of 80 years while the exceptional cases are a rarity. There is nothing to show that Ghulam Abbas appellant belonged to that rare class. The Courts by the very nature of jurisdiction conferred upon them under the Code of Criminal Procedure are to keep a balance between considerations of sterness and firmness on the one hand and humaneness on the other but always eschewing harshness. We have, therefore, after due consideration decided to convert the death penalty of Ghulam Abbas appellant into the lesser penalty of imprisonment for life which is a matter resting in the discretion of this Court on proper appreciation of all attendant circumstances of the case.
57. In the last analysis, we have come to the conclusion that the prosecution has been able to bring home the charges against Inayat alias Natoo, Mahla, Ghulam Abbas, Ahmad Sher and Muhammad Sharif appellants. In the present case, the murders were premeditated and were committed with the intention to kill. Therefore, all these convict appellants acting with that intention are equally guilty of the offences with which they were charged. We have already examined the question of vicarious liability earlier in the judgment.
We would accordingly accept the appeal to the extent that Massa') alias Masoo, Khizar Hayat, Umra alias Umar Draz, Khan alias Khani, Allah Bakhsh, Sultan, Muhammad Nawaz, Muhammad Yar alias Mammi and Ghulam Rasul appellants are acquitted giving them the benefit of doubt and we maintain the convictions and sentences under sections 148, 452/307/149 and 302/149, P. P. C. Of Inayat alias Natoo, Mahla, Ghulam z Abbas, Ahmad Sher and Muhammad Sharif appellants except that the N sentence of death awarded to Ghulam Abbas has been converted into imprisonment for life and all his sentences shall run concurrently.
The murder reference is also answered accordingly. PLD 1960 SC 387 PLD 1962 SC 269 1974 P Cr. L J 6 AIR 1944 Lab. 339 PLD 1965 SC 363 PLD 1950 P C 23 PLD 1963 SC 109 PLD 1973 SC 418 PLD 1976 SC 241 PLD 1957 SC (Ind.) 1 1971 P Cr. L 1 257 PLD 1951 Lah. 322 1970 SCMR 220 1973 P Cr. L J 397