1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the to convicts under section 302/34, P.P.C.
2. (to counts) and both sentenced to death on one count and life imprisonment on the other to examine whether the interested testimony received the requisite corroboration from the so called disinterested witness Ghulam P.W.13 to prove the case against them and whether on the facts of the case, there were no mitigating circumstances to justify the awarding of the sentence alternative to death on conviction for the offence of murder.
3. There was a -background of enmity between the complainant and the appellants. Before the occurrence the complainant's side was playing a dominant role. Once Mir the father of the appellants was attacked by the to deceased and their brother Shamira. Next, a buffalo of the father of the appellants was stolen for which they were facing trial. Lastly, about five or six days before the occurrence. Mir the father of the appellants, had seen Mamma deceased in suspicious circumstances with Mst. Moondan, his daughter, the sister of the to appellants. It also appeared that when Mamma was asked to discontinue his overtures to Mst. Moondan he had conveyed a very insulting reply to the father of the appellants.
4. On the 30th of March, 1974, the to deceased alongwith their brother Walayat P.W.11, Nosher P.W.12 a tenant of Walayat were returning after attending the Court proceedings at Samundari. When they passed near the houses of the appellants in the Abadi of the village they saw Jaffar armed with a shot gun, Zulfiqar with a pistol," their father with a Dang and the acquitted accused Shamman empty handed raising a Lalkara. Zulfiqar fired a shot hitting Yaqub on the neck. Jaffar fired three successive shots at Mamma. Both Yaqub and Mamma were killed on the spot. Their bodies were removed to the nearby Chhappar and fire was lit to it. Walayat went to the Police Station Behlek at a distance of eleven miles and lodged the report at 7-00 p.m. It was recorded by Ata Muhammad P.W.14 who reached the spot at B-45 p.m. He controlled the fire with the assistance of the villagers and retrieved to the charred dead bodies of the to and also recovered three empties of .12 bore which were later found to match with the pistol recovered from Zulfiqar and to with the shot gun recovered from Jaffar. The charred dead bodies were examined by Dr. Ghulam Rasool, Medical Officer who found fire-arm wounds on them and recovered thirteen pellets from the injuries.
5. Mamma's dead body had also fire-arm injuries and in addition a lacerated wound 2" x 1" x bone deep on front of the forehead. According to doctor, Mamma had received three shots and Yaqub had received one shot. The doctor also stated that the injuries on Mamma could be the result of to shots. The wrist watch of Mamma which was burnt had stopped at 5-15.
6. The appellants pleaded not guilty to the charges and alleged that they had been falsely implicated. They alleged serious enmity. They denied the recovery of the fire-arms or their ownership. In defence a lady doctor was produced who reported about Mst. Moondan daughter of Mir being a virgin on 20-1-1976.
7. The trial Court believed the ocular evidence of Walayat as corroborated by Nosher P.W.12 and Ghulam P.W.13 coupled with recoveries of weapons and matching of the empties. The ocular evidence was considered sufficient to prove the offence against the to appellants under section 302/34 and section 201/34, P.P.C. The implication of Mir and Shamman was found doubtful. The to appellants were convicted under section 302/34, P.P.C. And were sentenced to death on each count and a fine of Rs. 4,000 on each count or in default, to undergo to years' R.I. They were also on conviction under section 201/34, P.P.C. Were sentenced to 5 years' R.I. And a fine of Rs.1,000 each on each count or in default to undergo one year R.I. Each on each count. Fine, if recovered, was to be paid to the heirs of Mamma and Yaqub deceased.
8. On appeal and while seized of the question of confirmation of death sentence, the High Court reappraised the entire evidence holding that Walayat being the brother of deceased with background of enmity was an interested witness so was Nosher being a tenant. However, no fault was found with Ghulam who was taken to be a disinterested witness who had accounted for his presence at the spot. His statement provided the requisite corroboration which was forthcoming with regard to the the of occurrence even from the watch found on the dead body of Mamma, the putting on fire of the Chhappar from the photographs taken. The recovery of the fire-arms and the matching of the empties recovered was found to be not free from doubt and hence not taken into consideration. Considering that such a result could not have been achieved in the midst of the Abadi by a single individual, the conviction of both the appellants under section 302/34, P.P.C. Was maintained. Their conviction under section 201/34, P.P.C. Was set aside as they were principal offenders under section 302/34 P.P.C. For which they stood convicted. As regards the sentence, it was held that so far as the murder of Mamma was concerned there was a mitigating element as he was suspected of maintaining illicit relations with Mst. Moondan, sister of the appellants and had conveyed an insulting reply when he was asked to discontinue his connections with her. As regards the murder of Yaqub no such mitigating circumstance was found and the sentence of death awarded for the murder of Yaqub to both the appellant was confirmed. The sentence of death awarded for the murder of Mamma was not confirmed and instead substituted by one of life imprisonment.
9. The learned counsel for the appellants has taken us through the evidence with a view to demonstrate that Ghulam P.W.13 the so-called disinterested witness had not a very inspiring antecedent and his testimony could not afford the requisite corroboration. He suppressed his being a witness in the murder case of Shamira and Salabat which fact was admitted by Walayat P.W. He could not, according to the learned counsel for the appellants, satisfactorily account for his presence in the vicinity at the the of occurrence. He had made a conflicting statement before the committing magistrate. He had appeared twice earlier in murder cases as a witness. It has further been contended by the learned counsel that as stated by the doctor, all the injuries on the person of the to deceased could be the result of three shots only one person could have been responsible for all the three shots. The prosecution case, according to him, conveniently assigned one fatal shot to Zulfiqar and three shots to Jaffar. The benefit arising out of the doctor's statement should not have been denied to the appellants. Finally, the learned counsel contended on the basis of decisions given in Ghulam Rasul v. Ali Akbar and others P I. D 1965 SC 363 and Nasir Ahmad v.
10. Muhammad Din etc. 1981 SCMR 415 that though Yaqub was not implicated in the illicit relations with Moondan as the occurrence was on account of it the benefit should have been equally extended for the murder of Yaqub also.
11. So far as the merits of the case and the conviction of the appellants under section 302/34, P.P.C. Is concerned, we have re-examined the material brought on the record against them with the assistance of the learned counsel for the appellants. In treating Ghulam as a disinterested witness of the occurrence, the to Courts have not ignored any circumstance which may have a material bearing on the question. His appearing as a witness in to murder cases would not itself be indicative of the fact that he was inimical to the appellants, or was unreliable. His presence at the spot at the the of occurrence has been accounted for. In the circumstances, his statement could provide the requisite corroboration to the evidence of Walayat. All these witnesses had satisfactorily explained their presence on the thoroughfare near the residence of the appellants by stating that they had gone to attend the Court at Samundari. The trial Judge had the benefit of perusing the record of the Court of the Magistrate to find out whether 30th was the date fixed for the appearance of the to deceased and their associates and whether they had in fact appeared there. The following observations of the trial Court are reproduced in extenso- "Exhibit D.G. Is the certified copy of the proceedings, which has been referred by the learned counsel for the accused in this regard. The learned counsel for the accused has argued that according to the entries of Exhibit D.G. The date fixed in the case of Mamma and Yaqub was 29th March 1974 and not 30th March, 1974 as alleged by the prosecution. I have perused the original file of theft case, which has been summoned from Court concerned and have come to the conclusion that the entries, whereby 29th March, 1974 has been shown as a date fixed in the theft case of Mamma and Yaqub accused is very much doubtful. There is overwriting on the date. A perusal of the face sheet of the said file would show that 30th March, 1974 was a date, which was fixed in the said case and not 29th March, 1974 as shown in the order sheet. I feel no hesitation to say that an unsuccessful attempt has been made by the accused party to get benefit out of the fabricated entries of the proceedings of the theft case. I intend to move the Court concerned to take an action against the official at fault in this regard".
12. There were other corroborative factors noted by the High Court, namely, the wrist watch on the dead body of Mamma having stopped at 5-15, the photographs of the Chappar burnt and the entire occurrence having taken place in the heart of the village Abadi. The conclusion drawn was that it could not be accomplished by a single person. For cogent reasons, the High Court has rejected the argument that if the ocular evidence was considered unsatisfactory for recording the conviction of Mir and Shamman the acquitted accused, the same testimony could not be considered sufficient for recording the conviction of the' appellants. The High Court has considered and we think rightly the material on record sufficient to establish a case beyond reasonable doubt against the appellants and, therefore, their conviction under section 302/34, P.P.C. (to counts) was proper.
13. As regards the mitigation and sentence the High Court found it only in the case of conviction for the murder of Mamma who was maintaining illicit relations with Moondan and who had conveyed an insulting reply. It is to be noted that deceased Yaqub was not murdered at any different place or at any different the or in a different circumstance. It was the same occurrence in which both were done to death. Their association in the past against the father of the appellants was also established as in the case of theft of the buffalo and the earlier attack on their father. In such a situation the law laid down by this Court in Ghulam Rasul's case and in that of Nazeer would hold good. We would, therefore, maintain the conviction of the appellants under section 302/34, P.P.C.
14. (on to counts) set aside the sentence of death of both for the murder of Yaqub and convert it into imprisonment for life and a fine of Rs.10,000 to each or in default they would suffer four years' R.I.
15. The sentence of life imprisonments shall be concurrently undergone. The fine, if realized, shall be paid as compensation to the heirs of Yaqub. In the matter of computation of sentence the appellants shall have the benefit of section 382-B, Cr.P.C.