1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the four appellants, all convicted under sections 302/34 (two counts), 323/34 and 452 P. P. C. And sentenced to death and various terms of imprisonment in the alternative, to re-examine the entire evidence with a view to ensure that the conviction and sentence of the appellants was in accordance with the accepted principles of administering criminal justice.
2. ' Syed Gambal Shah, the father of the appellants and the deceased Yaqub Ali Shah, had died about six or seven years before the occurrence for which the appellants were tried. Yaqub Ali Shah had succeeded to his gaddi in preference to his own elder brother Ali Gohar. The appellants being all sons from another wife of Gambal Shah, sought partition of their share. The deceased did not accede to it on the ground that there were debts outstanding against the deceased's father which had to be satisfied before proceeding with the partition of his property. The appellants felt annoyed over it, had left the haveli where they alongwith other wives and children of Gambel Shah were residing. Two of them, namely, Punhal Shah and Khadim Ali had shifted to honses in the same village whilst the other two had shifted to another village at some distance from the gaddi of their father. On the evening proceeding Eid-ul-Azba, that is, on 13 of December, 1975, at about 8 p.m.
3. Yaqub All Shah deceased was lying on the bed in a room of the haveli as he was suffering from fever. His mother Mst. Murad Khatoon (P. W. 1), his sister Bibi Sakeena (P. W. 2), the maid-servant Mst. Basran (P. W. 3) were inside the room attending to him. They heard the report of shots being fired outside the haveli and soon thereafter Punhal Shah and Latif Shah armed with pistols, and Khadim Ali and Qamar Ali appellants armed with hatchets entered the haveli calling out that they would deal with Yaqub Ali Shah. The ladies inside the room begged them not to do so and closed the door from within with a view to prevent them from having an access to Yaqub All Shah.
4. Thereupon Khadim Ali and Qamar All gave hatchet blows on one of the windows of the room and after breaking it open succeeded in creating an entrance for all of them. Punhal Shah and Latif Shah fired a shot each and thereafter the other two appellants gave a number of hatchet blows to him causing his death then and there. They retreated thereafter. Mst. Nur Bibi (P. W. 11) then entered the haveli and informed that while seeking an access to the havell, Ahmed All (P. W. 6) one of the Faqirs of the dargah had received an injury and was lying outside and that her own husband Karamat All the Head Faqir had been killed by the appellants by giving him hatchet blows. Haji Khan (P. W. 7), a resident of the same village but quite unconnected with the parties, on hearing the report of numerous shots coming from the direction of the dargah had promptly informed on telephone the Police Station Ban Syedian. The substance of that report was recorded at the Police Station but formal F. I. R. Was not registered on it. The information that reached the Police Station through him was only this much that firing on the haveli of Yaqub Ali Shah was going on and it was not known whether the persons firing were dacoits or other persons. The S. H.
5. 0.. Inayat Ullah (P. W. 13), reached the dargah at 9 p.m. In a jeep, recorded the first information report on the statement of Mst. Murad Khatoon, and placed police guard at the house of Punhal Shah accused in the village. He inspected the spot, the dead bodies etc. In the morning and made recoveries of six empties of 12 bore and one of 16 bore from various places. Two empties of 12 bore were recovered from inside the room where Yaqub Ali Shah was murdered, two others from the court-yard of the haveli and three from outside haveli near its entrance. However, the fact that the recoveries were effected from various places is not of much value s at this stage because the empties were mixed up and their identity bearing a relation to the location from where they were recovered was not kept intact. The appellants were arrested the next morning from the guarded house. Their clothes were found to be stained with human blood. Each one of them led to the recovery of the weapon attributed to him and two empties matched with the weapon recovered at the instance of Punhal Shah and one with the weapon recovered from Latif Shah, appellant. The hatchets recovered from the other two appellants were also found to be stained with human blood.
6. ' Dr. Bashir performed autopsy on the dead body of Yaqub All Shah and of Karamat All and examined the injured Ahmad Ali. On the dead body of Yaqub All Shah two gunshot injuries were noted in the following words:- "(1) Multiple contused gunshot wound 1/6' in diameter over left shoulder outer aspect x skin deep.
(2) Multiple contused gunshot wounds over right hypochondriac region 1/6' in diameter each skin deep."
7. ' Apart from these injuries, nine incised wounds of varying dimensions were found on the dead body of Yaqub Ali Shah, and one contusion on front of the chest 21 x 1'. His death was instantaneous on account of the injuries.
8. ' Karamat All Shah had thirteen incised wounds on his person and two contusions on his chest Ahmed All had also been examined by the same doctor who found the following injuries caused by a blunt weapon on his person- "(1) Contusion over left frontal region 1"X 1/2" with echymosis of left eye.
(2) Contusion over left shoulder 1' x 1/4'."
9. ' The appellants when examined by the trial Court stated they had no dispute with the deceased Yaqub All Shah over the partition of the property, had taken no part in the occurrence and were in no way responsible for the deaths of Karamat All and Yaqub All Shah or injuries to Ahmad Ali. A suggestion repeatedly made to the prosecution witnesses on their behalf was that Karamat All had a daughter from another wife with whom the deceased Yaqub All Shah was maintaining illicit relations. On account of it Karamat Ali caused the death of Yaqub All and the other disciples or faqirs of the gaddi in turn caused his death. The witnesses denied any such suggestion. In defence the appellants produced two witnesses. Sher Muhammad Shah (D. W. 1), aged 16 years, is a stepbrother of the deceased as well as of the appellants. He stated that five or six person had entered the haveli and caused the death of Yaqub Ali Shah in his presence but these were not known persons and could not be identified. He was certain that the appellants were not amongst them. The ladies who turned up as eyewitnesses of the occurrence, according to him, were in the kitchen at that time. According to this witness it was All Gohar who got the appellants implicated to deprive them of their share in the property. Manzoor Ali (D. W. 2) is a murid of the dargah and was on a routine visit He heard the report of shots coming from the have and then Sher Shah (D. W. 1) came out and asked him to inform his other brothers, namely, the appellants about the fact that Yaqub Ali Shah and Karamat Ali had been killed by some unknown persons.
10. ' The trial Court believed the ocular evidence, and the eye-witnesses were all held to be natural witnesses. The first information report recorded by the S. H.
0. Was held to be the proper report and not the earlier telephonic information received at the Police Station or the information given by injured Ahmad Ali. The recoveries of the incriminating clothes and weapons and the reports with regard to them were found to provide the necessary corroboration and all the appellants were found guilty of the offences of which they were charged.
11. The trial Court found no mitigating circumstance for the purposes of awarding any lesser sentence.
12. No order with regard to compensation was thought necessary. All the appellants were sentenced to death for causing the murders and to six months' imprisonment under section 323/34, P. P. C.
13. And one year R. I. Under section 452, P. P. C.
14. ' The learned Judges of the High Court while seized of the reference for confirmation of the death sentence under section 374, Cr. P. C. And of the appeal filed by the convicts, re-examined the entire evidence and dealt with each individual objection taken by the learned counsel for the convicts in details. They found the case of the prosecution proved beyond any reasonable doubt and the defence version was not found acceptable and so was rejected. The appeal of the convicts was dismissed and the death .
15. ' Mr. A. K. Brohi, the learned counsel for the appellants, contended that the very motive which formed the basis of the prosecution case remained unproved, for the prosecution evidence itself showed that the appellants had left their residence in the haveli immediately after the chehlum of Gambal Shah and had been receiving their share of the produce and had been visiting the haveli off and on. Their relations were on that account quite normal and there was nothing at all to prompt them to such an extreme action against Yaqub Ali Shah and those associated with him as head faqir of the dargah like Karamat Ali or Ahmad Ali who was a mere faqir. On the contrary, the learned counsel suggested that Murad Khatoon (P. W. 1) had a vital stake in the whole matter as a number of sons and daughters from other wives of Gambal Shah had to share the property and also the right to succeed to the dargah. In order to create and strengthen the right of her own sons she had by lodging this report implicated falsely all the sons belonging to another wife. The conduct of the police officer in not treating the telephonic information or the statement of Ahmad Ali injured as a first information report and in selecting. Mst. Murad Khatoon (P. W. 1) who was the last to meet him, for the purpose of recording the F. I. R. Should not have been lost sight of. The S. H.
16. O. Had passed Ahmad All who was injured and was the most competent witness to lodge the report. He had also ignored Nur Bibi whose husband had been killed before her own eyes. The S. H.
0. Did not record the F. I. R. Till he reached inside the haveli and contacted Mst.Murad Khatoon (P. W.
17. 1). The learned counsel has further contended that the defence version was plausible. The witness who was natural and was admittedly present had been produced and had stated that it was not the appellants who had entered the haveli, fired shots and caused the deaths of Karamat All and Yaqub All Shah and injuries to Ahmad Ali. This evidence, according to the learned counsel, was capable of and had, in fact, cast reasonable doubt with regard to the veracity of the eye-witnesses and the correctness of the prosecution case. As regards the recoveries, the learned counsel has contended that it was rather difficult to accept that all the appellants continued to have on their persons the blood-stained clothes after more than 14 hours of the occurrence when they were in their own house and had access to other clothes. The very fact that a police officer was produced as a recovery witness and no independent person from such a thickly populated area was associated with the recoveries is sufficient to demolish the fact of recovery. There was, according to the learned counsel factual discrepancy in the statement of Ahmad Ali, the injured witness, who stared that he was given hatchet blows by Punhal Shah appellant when Punhal Shah was not at all armed with a hatchet but was armed with a piston Similarly the fact that the fire-arm injuries received by Yaqub All Shah were only skin-deep would belie the prosecution case that he was fired at from inside the room, as even a country made 12 bore pistol would not produce the results which were found on the dead body of Yaqub Ali Shah.
18. The motive for the occurrence was given out to be the strained relationship of the appellants with the deceased. It stands proved; for the evidence on record has fully established that as soon as chehlum of their father was over the appellants left their residence in the haveli as a joint family and two of them shifted to another village whilst the other two took up residence in the same village but away from the haveli. Their casual visits to the haveli and their receiving a share of the produce by way of maintenance from the joint property could not have the effect of reducing the strain on their relationship. It is true that such a relationship of the brothers, even in the background of prolonged jointness of ancestral property against the wishes of the appellant may not provide full justification for such a concerted and determined attack. All the same, with strained relationship in the background anything could have provided as the immediate or the exciting cause for the attack. For example, if the appellants had lost all hopes of getting the property partitioned and their share separated, or if there had been a clear refusal on the part of the deceased leaving no hope for them then that may as well as have prompted them to indulge in such a desperate act.
19. In spite of being first in point of time the telephonic message recorded in the Police Station diary could not be treated as the first information report. C The information which was admittedly conveyed on telephone and correctly recorded at the Police Station was as follows :- "At this time Haji Khushik of Talti village informed on telephone that the firing on the haveli of Yakub Shah is going on. It is not known whether they are dacoits or other persons who are firing, therefore, I have informed you on telephone. Therefore, on the telephone of Haji Khushik we viz., S. H.
0. Inayatullah alongwith H. C. Nisar Ahmed, H. C. Muhammad Hussain-P. C. Abdul Hamid, P. C.
20. Ghulam Nabi. P. C. Natho Khan and P. C. Tayab Ali are going to village Talti. Ch. Allanditto is present in Police Station."
21. This information did not disclose a definite commission of a cognizable offence. The firing could have been in self-defence, in the air or as a mark of celebration. The law on the point is very clear.
22. A report to be treated as first information report for the purposes of sections 154, 157 and 162D of the Cr. P. C. Must disclose at least reasonable suspicion of commission of cognizable offence. In the case of Muhammad Siddik v. Crown , two constables had produced one Muhammad Siddik at the Police Station and reported that "they saw the accused running away with open knife and his clothes were blood-stained and people said he had stabbed someone." The police officer after recording the note left for the spot and on reaching the spot he located a person. (Abdur Rehman) in whose presence the occurrence had taken place and recorded his statement. The question arose whether the report made by the two constables and recorded in the diary was to be treated as first information report or the statement of the eye-witness recorded at the spot where the police officer had gone. When the matter came to the Federal Court the Courts had already1 excluded the report of the eye-witness Made at the spot treating it to be one made during the course of the investigation. The Federal Court held that a report made at the Police Station which did not disclose the commission of a cognizable offence could not be 'treated as first information report and a report of the occurrence disclosing it to be a cognizable offence made at the spot is admissible as first information report. The principle on which such a view was taken was expressed in the following words:- "The salutary, rule that statutory provisions should be construed so as to suppress the mischief and advance the remedy may be invoked in aid ' of receiving the police statement of Abdul Rehman as the initial report in the case."
23. ' In the case of Amir Bacha and another v. The State a hearsay information received by Police Inspector that a fight was going on was held not to amount to a first information report in the legal sense of the term.
24. ' In the case of Crown v. Faiz Muhammad , it was held that unsigned telegrams and telephonic messages are not first information report within the meaning of section 154, Cr. P. C. And if after the receipt of a telegram or telephonic message the police proceed to the spot and take down the information from the complainant or the informant and get it signed by him, the signed statement would be the first information report and not the telegram or the telephonic message.
25. ' In the case of Muhammad Afzal v. The State , a telephonic message was treated as first information report and the public prosecutor had conceded it. The Court held that such a report could not be treated as a first information report.
26. Ahmad Ali (P. W. 6) the injured, was indeed a competent person to lodge the first information report, for he was himself injured in that occurred and in his view and sight Karamat Ali had been murdered. He was nevertheless totally unaware of what happened inside the haveli. It would have been clear to anyone approaching the scene that the primary object of the assailants or the purpose of the crime was not to either injure Ahmed Ali or to kill Karamat Ali. The purpose was, without doubt, a different one and it was to secure access to the inner part of the haveli and to reach the room in which Yaqub Ali Shah was present. The S. H.
27. 0., therefore, could know the totality of the occurrence only after entering the haveli and finding it out from inmates thereof. None was in a position to narrate the occurrence in its entirety due to the sanctity attaching to the haveli of the gaddi nashin and the position enjoyed by the eye-witnesses.
28. Whatever happened outside the haveli could not have been witnessed by the ladies from inside the haveli and whatever happened inside the haveli could not have been witnessed by the faqirs and their families living outside. None claimed to have in fact seen the occurrence in its entirety.
29. Therefore, the choice of Mst. Murad Khatoon as the informant in so far as the murder of Yaqub Ali Shah was concerned was right and proper. Ordinarily when a first information report is lodged soon after the occurrence leaving no scope for consultation and fabrication the presumption is that it is a truthful account eliminating the possibility of substitution of false implication. In this case the report was by all standards a prompt P one. While the reports of bring were being heard, telephonic message had been received at the Police Station and the S. H.
0. Had reached the spot on a jeep within minutes. There was no occasion for the appellants been substituted for the real culprits or the real culprits remaining unknown, for the purpose of the entire occurrence was to wreak vengeance on Yaqub rather than to commit dacoity. The evidence in the base is varied. .The witnesse, are the most natural ones that could be produced. The ladies were all inmates of the have or living just outside. Ahmad Ali had no interest other than being a faqir at the dargah. Nur Bibi was the widow of Karamat Ali who had been killed in the occurrence. The large number of injuries on the person of Karamat Ali do not suggest so much a personal enmity against him as his resistence to the entry of the appellants to the haveli. Ahmad Ali (P. W. 6) did sound a2 3 4 discordant note when After stating tha Punhal Shah appellant was armed with a pistol he stated that Punhal gave him a hatchet blow. The trial Court noticing this discrepancy observed.
30. ' It appears that due to sudden attack and in the heat of moment Ahmad' All could not correctly remember as to his assailant and also because be fell down on receipt of injuries."
31. ' The High Court also dealt with it as follows- "This seems to be a mistake while recording the evidence."
32. ' We are inclined to agree that it may be a slip. The ocular evidence is provided by natural witnesses, who are of different categories, the relative and inmates of the haveli, the injured faqir and the widow of a murdered faqir.
33. ' As regards the recoveries, it is in evidence that the police officer had placed police guard on the house of the appellants. There was, therefore, no possibility of their doing away with the weapons of offence or wig their clothes. As the house has been guarded all night and most of the hours of the early morning, it would have been no use changing the cloth or secreting the weapons in any meaningful manner. In such a situation the enlistment of an independent recovery witness would not have made an material difference to the result.
34. ' The fire-arm injuries on the deceased could be caused by country-made pistols as were recovered at the instance of two of the appellants and the empties recovered matched with them.
35. The pellet injuries were skin deep. The doctor was not questioned about the possible distance from which they were caused. It is not possible to draw any inference favourable to the appellants from the nature of pallet injuries.
36. As regards the defence version Sher Muhammad Shah (D. W. 1) being resident of the same haveli would appear to be a natural witness. He did not identify any of the culprits. His account furnishes no motive for the crime. He by necessary implication repudiates the alternative defence version of Karamat Ali murdering Yaqub Ali Shah over his illicit relations with his own daughter. The statement of Sher Muhammad is not of a type which may impair the credibility or consistency of the prosecution case as established.
37. ' We, therefore, find that conviction of the appellant is just and proper ands/ there being no mitigating factors the sentence does not merit interference. The appeal is dismissed. PLD.1954 FC 112 1975 SCM R 222 PLD 1952 Lab. 215 PLD 1960 (W. P.) Lab. 97