M.S.H.QURAISHI, J.--In these appeals by leave of the Court, Ballia, Naurang, Ramzan and Mehram, appellants in Criminal Appeal No.37 of 1982, and Sarwar, appellant in Criminal Appeal No.38 of 1982, alongwith their acquitted co-accused Shahmand had been tried by the Additional Sessions Judge, Sahiwal, in connection with the murder of Chiragh, Sikandar, Manzoor Hussain, Mst. Ghulam Fatima and Mst. Bakhtawar, in the result of which all of them were convicted under sections 302/149, P.P.C.
And while the four appellants in Appeal No.37 of 1982 were sentenced to death, the other to were given imprisonment for life. All the six were also ordered to pay a fine of Rs.500 each or to undergo R.I. For six months on each of the five counts. Further, they were all convicted under sections 452/149 and section 148, P.P.C. For which they were sentenced, respectively, to R.1. For to years plus a fine of Rs.100 and R.I. For one year each. On appeal and Reference before the High Court, Shahmand was acquitted by giving him benefit of doubt but the conviction and sentence of the others was maintained.
2. Leave was granted to consider whether Ahmad Din complainant, not being a resident of the locality, was a chance witness; whether the evidence of Mst. Irshad Bibi, another eye-witness, being a child witness could not be sufficient to sustain conviction on a capital charge without strong corroboration being available; whether the motive alleged way unnatural and had not been proved by cogent and independent evidenc and whether the recoveries could be believed.
3. The parties are closely related inter se and were living in adjoining houses at Chak Jawayawala, village Tootwala, four miles from P.S.Noor Shah, District Sahiwal. They are descendants of one Jawaya who had three sons namely, Mutalli, Hassu and Sardar. The deceased are of the family of Mutalli, Mst. Ghulam Fatima deceased being his wife, Chiragh and Sikandar deceased being his sons, Mst. Bakhtawar deceased being the wife of Chiragh, and Manzoor Hussain deceased being the son of Sikandar. Mst. Fajjan, who was injured in the occurrence, is the widow of Sikandar deceased and mother of Manzoor Hussain deceased. She is also the sister of Ahmad Din complainant. Mst. Bakhtawar deceased was previously the wife of this Ahmad Din but had after taking divorce from him married Chiragh deceased. On the accused side, Naurang, Ramzan and Mehram appellants are the sons of Hassu. Sarwar is their nephew being the son of their brother Sher Muhammad. Shahmand co-accused is the son of Sardar, brother of Mutalli and Hassu. Ballia is the son of Shahmand and a nephew of Naurang.
4. The harmonious relationship of the parties soured when 5/6 months prior to the occurrence, Bashir, son of Mst. Fajjan from her previous husband Siddique, enticed away Mst. Gulzar Bibi alias Gullan, sister of Sarwar appellant and in spite of demand made by the appellants she was not restored for the reason that she had willingly gone to Bashir and had made a statement in his favour before a Court at Sahiwal. Fearing reprisal, Sikandar and Chiragh left the locality and took up residence at the farm of Ch. Allah Dad in P.S. Jehania, District Multan, where Muhammad Ali P.W., brother of Mst. Bakhtawar, was employed. This Muhammad Ali brought about a compromise between the parties, in terms of which the hands of Mst. Gulzar daughter of Sikandar and Mst.
Shehnaz daughter of Chiragh were given a marriage to Sarwar appellant and his brother Khadim, respectively According to the prosecution only Sharai Nikah was performed as the giris were minors. In view of the compromise, Chiragh and Sikandar returned to their homes. However, they claimed Rs.5,000 for their water-melon crop which, according to them, had been damaged in their absence by the appellants. One Sarang Marral of the same village stood surety that the appellants would either satisfy that they had not caused the damage or would pay compensation.
5. On 8-7-1973 at 7 a.m., the appellants took Chiragh and Sikadar to the shrine of Pir Mastan Shah for taking oath on the question of the allegation of damage to the water-melon crop. Ahmad Din, who lived in village Chandoi within P.S. Malka Hans, came to visit his sister Mst. Fajjan and was present. At about noon, Chiragh and Sikandar returned and disclosed that the appellants had refused to take oath. A shortwhile thereafter, Naurang appellant came and demanded the immediate Rukhsati of Mst. Gulzar and Mst. Shehnaz but the demand was refused saying that the girls were minor and would be sent on attaining puberty. At this Naurang left enraged uttering abuses and a little later Ballia, armed with Gandasa, Naurang, Ramzan and Sarwar with hatchets, Mehram with a sword and Shahmand with a Lathi entered the house of the deceased and at the Lalkara of Shahmand that Chiragh and Sikandar and their children be put to death, Sarwar dealt hatchet injuries to Chiragh. Ballia inflicted a Gandasa blow on Sikandar. Naurang and Ramzan caused injuries with their hatchets to Mst. Ghulam Fatima. Mehram gave sword blows to Mst.
Bakhtawar. Sikandar deceased in injured condition tried to run but he was entangled by Shahmand at the entrance of the house. Naurang, thereupon, caused injuries to him at the head, neck and back. Ahmad Din, Muhammad Anwar (an adopted son of Mst. Bakhtawar) and Mst.
Irshad Bibi daughter of Chiragh entreated the assailants but were threatened with death at which they ran towards the tubewell of Salehun Shah which was at a distance of 100 Karams from the house and where Manzoor Hussain deceased, his mother Mst. Fajjan and the latter's nephew Haq Nawaz were present. Naurang and Ramzan, however, followed them there and killed Manzoor Hussain with hatchet blows. Mst. Fajjan also sustained some injuries in her attempt to save her son.
All the five deceased died at the spot. The report was lodged by Ahmad Din at 1.30 p.m.
Muhammad Bashir, S.H.O., who recorded the report, came to the spot at 2.30 p.m. And after the necessary formalities despatched the dead bodies to the mortuary at 6.30 p.m. The same day.
6. Ballia and Sarwar appellants were arrested on 8-i-1973 and the same day they led to the recovery of blood-stained Gandasa EXh.P.I and blood-stained hatchet Exh.P.2, respectively.
Naurang and Ramzan, who were arrested on 11-7-1973, led to the recovery of blood-stained hatchets Exhs.P.20 and P.21, respectively. The recoveries from these four appellants were witnessed by Sajawal and anwar Khan but they having been won over were not produced and the recoveries were proved by the S.H.O. Mehram appellant and Shahmand co-accused were arrested on 13-7- 1973 who led to recovery of blood-stained sword Exh.P.22 and Sota Exh.P.23, respectively. These recoveries were witnessed by Bagga P.W.5.
7. The post-mortem examination revealed the presence of one incised and to blunt weapon injuries on the person of Chiragh deceased. The death had been due to fracture of his skull and injury to the brain as a result of the incised injury. Manzoor Hussain deceased had three incised and four blunt weapon injuries. His death was the result of cutting of vital structure of the neck by the incised injuries. Sikandar deceased had seven incised and eight blunt weapon injuries and he, to, had died in the result of cutting of vital blood vessel and major structure of the neck, fracture of skull and vertebra and injury to brain. Mst. Bakhtawar deceased had nine incised and seven blunt weapon injuries and her death was the result of complete division of spinal cord and fracture of vertebra. Mst. Ghulam Fatima had to incised and five blunt weapon injuries, the incised injuries being fatal.
8. Mst. Fajjan who was examined on 9-7-1973 at 5 p.m. Had four minor injuries, including a contusion on the left index finger and another contusion mark, 4" x 3", on the left side of abdomen in its one-third portion.
9. The ocular testimony was furnished by Ahmad Din P.W.10 complainant, Muhammad Anwar P.W.11, Mst. Irshad Bibi P.W.14 and Mst. Fajjan P.W.
15. The prosecution relied, apart from the ocular evidence, on the story of motive, the recoveries and the medical evidence.
10. The appellants denied the abduction of Mst. Gullan by Bashir and asserted that in fact she had been married to him in exchange for the hands of Mst. Shehnaz daughter of Chiragh and Mst.
Ghulzar daughter of Sikandar. These to girls attended the Court during the trial but the appellants asserted that they were not the same girls. They also denied the factum of the compromise between the parties brought about by Muhammad Ali. They pleaded false implication on account of enmity although they made no attempt to establish that enmity. In fact they led no evidence and contended themselves by Sarwar tendering copies of the Nikahnamas of Mst. Shehnaz and Mst. Gulzar. During the trial they tried to set up a counter-version that the deceased had been killed by Bashir and his maternal uncle Mamma as the former was told that he would not be allowed to inherit from Sikandar with whom his mother Mst. Fajjan had re-married.
11. The trial Court accepting the prosecution case convicted and sentenced all the accused as aforesaid.
12. The High Court wad not convinced of the presence of Muhammad Anwar P.W.11 as he was not enlisted as a voter in the locality nor had he a ration-card of the village. He did not also belong to the family of the complainant party and, according to the prosecution, had been adopted as son by Mst. Bakhtawar. Mst. Fajjan, to, was not considered worthy of reliance because of the delay in getting her medically examined and because her injuries, in the opinion of the High Court, "could be self-suffered" . The High Court also felt that she being the mother of Bashir who was responsible for all the trouble, would not have been spared. Beggs, the recovery witness, was also not believed by the High Court for the reason that he was not of the locality as required under section 103, Cr.P.C.
And he did not explain his presence at the site after five days of the occurrence. The other recoveries were, however, believed because Anwar Khan and Sajawal, the recovery witnesses, though not produced, were persons of the locality and thus satisfied the requirement of section 103, Cr.P.C. The High Court believed the presence of Ahmed Din but went on to observe that even if his evidence be excluded, the prosecution case would not suffer. Consequently, it felt satisfied as to the guilt of all the appellants, though it acquitted Shahmand whose case, in its view, was distinguishable as no overt at had been attributed to him except entangling of Sikandar deceased and who was armed only with a Sota.
13. Mr. Wasim Sajjad, appearing for the appellants, urged that unstinted reliance could not be placed on the ocular testimony on the ground that the presence of Ahmed Din and Muhammad Anwar, who resided far away from the spot, was not free from doubt; that Ahmed Din had no reason to visit the house of Chiragh where his ex-wife, i.e. , Mst. Bakhtawar, lived; that Mst. Irshad Bibi being a child witness of 11/12 years of age at the relevant the could not be believed unless strongly corroborated and that the remaining eye-witness, that is, Mst. Fajjan, not having been medically examined on the day of the occurrence, the presence of minor injuries on her person, which, as held by the High Court, could even be self-sustained, would not furnish a sure ground for her presence at the spot and had she been really present she would not have been spared being the mother of Bashir who was responsible for all the bitterness arising between the parties. In regard to the corroboratory evidence, he assailed the recoveries as, according to him, the public witnesses, namely, Sajawal and Anwar Khan, in respect of recoveries from appellants in Criminal Appeal No.37 of 1982 not having been produced, it would not be safe to place reliance on the testimony of the Investigating Officer in this regard and that the evidence of Beggs, the witness to the recovery of blood-stained sword at the instance of Mehram appellant, had rightly not been believed by the High Court on the legal ground of non-compliance of section 103, Cr.P.C. He also assailed part of their story of motive on the ground that the visit to the shrine of Pir Masten Shah had not been established and that in any case if the appellants had no intention to take the oath, there was no reason for them to have themselves come and taken Sikandar and Chiragh deceased there.
14. Most of the points raised before us had already been raised before and dealt with by the High Court. Since Mst. Fajjan, wife of Sikandar deceased, was the sister of Ahmed Din, his visit need not be doubted. His presence is strengthened also by the fact that it was he who had lodged the report within a very short the. Had he really been at his own village, which was some 40 miles away, there was no way to send for him within the in order to make the report. We may leave out Muhammad Anwar, as the High Court has done, because it is not satisfactorily established that he lived with the complainant party. But the presence of the to ladies, namely, Met. Lrshad Bibi. Daughter of Chiragh deceased, and Met. Fajjan, wife of Sikandar deceased, is not open to doubt as they are inmates of the -house. The fact that Mst. Fajjan's name was not mentioned by her brother Ahmed Din in the -- first report or that she was medically examined the next day is not" sufficient to cast doubt in regard to her presence. There is no material to suggest that she was away from the house at the the of the occurrence. In fact the Investigating Officer found her present when he first visited the spot and he prepared her injury statement the same day. The High Court, in our view, was not justified in doubting her presence or suspecting her injuries to be self-suffered. It is to be noted that one of the injuries suffered by her was a contusion mark 4" x 3 on the left side of the abdomen in its one-third portion and unless there be strong reason, such injury cannot be presumed to be self- sustained. There was also no proper reason for excluding the evidence of recovery witness Bagga on account of his not being a person of the locality, said to be a requirement of section 103, Cr.P.C.
In the first instance, the applicability of that section to a recovery made at the pointing of an 3ecused was not clearly established. The late Tufail Ali A. Rehman, C.J., in Abdur Rashid v. State PLD 1975 Kar.. 92 had in a similar situation expressed: "I am in the first place at least doubtful whether section 103 has any application to this case at all...". Section 103 is applicable to a search made under Chapter VII of the Code of Criminal Procedure in pursuance of a search warrant. The recovery in the instant case was not made in pursuance of any c such warrant. Moreover, the stress under section 103 is rather on the respectability of the witness and if he be found to be respectable, he may not be disbelieved merely because he did not bail from the locality. Nothing had been brought out to detract from the respectability of Begga as a witness. The other recoveries were rightly believed on the basis of the evidence of the Investigating Officer in the absence of the public witnesses who had not been produced as they had been won over. His evidence is not to be discarded merely because he was a police officer but it is open to test in the same manner as the evidence of any other witness.
15. As for the motive, the marriage of the to girls, namely, Mst. Gulzar daughter of Sikandar deceased and Mst. Shehnaz daughter of Chiragh deceased with Sarwar appellant and his brother Khadim is an admitted fact. The evidence shows that the girls were minor and according to Mst.
Fajjan they were aged 11/12 and 8/9, respectively. There being no explanation furnished by the appellants for this early marriage, the prosecution version is believable that only the Nikah had been performed on account of the compromise. The factum of compromise is supported by the evidence of Muhammad Ali P.W. Who had been instrumental to it. Since the girls were minor, their Rukhsati had not been performed and they were still living with their parents. This explains why the deceased had refused Naurang appellant's demand for their Rukhsati until they attained puberty.
16. The evidence of the three ocular witnesses, namely, Ahmed Din, Mst. Irshad Bibi and Mat. Fajjan, which is amply corroborated by the recoveries, the motive and the medical evidence, is sufficient to bring home the guilt of the appellants. Their conviction of the various offences is thus well- merited and not open to interference.
17. As regards the sentence, it is to be kept in view that this was a case of cruel and gruesome murder of five persons including to women and a young by of 17/18 years of age. It was premeditated as the appellants had come duly armed with deadly weapons. Naurang, Ramzan and Mehram appellants are elderly persons being 60, 56 and 58 years of age, respectively, at the the of recording of their statements.
There is no mitigating circumstances in their case. Ballia, however, was only about 21 years old at the the of the occurrence in 1973 (he had given his age as 26 at the the of recording of his statement five years later in 1978). He is not shown to have played any leading role. Even otherwise, in the presence of his three elderly uncles it is difficult to ascribe any such role to him. He did not also have a direct motive because Mst. Gullan was not his sister. He can, therefore, be said to have acted under the influence of his uncles. This constitutes a mitigation in his favour. In this connection reference may be made to Muhammad Nawaz v. State 1970 SCMR 220 and Hayat Bibi v.
Muhammad Khan 1976 SCMR 128. We, accordingly, alter the sentence of death passed against Ballia to imprisonment for life. His other sentences and the sentences passed against the rest of the appellants are maintained. With this modification in the sentence of Ballia, the appeals are dismissed.