1. MUHAMMAD HALEEM, C J.-- This appeal, by leave, arises from the judgment of the Lahore High Court dated 31st of March, 1980, by which criminal appeal No. 156 of 1978 was dismissed subject to certain modifications in the sentences.
2. Appellants Jan Muhammad, Muhammad Hussain, Muhammad Ishaq, Muhammad Siddique and Allah Rakha were tried alongwith Muhammad Rafiq, Abdul Latif and Muhammad Shafi for the tripple murders of Ghulam Muhammad, Mukhtar Ahmad and Muhammad Ismail; and while Abdul Latif and Muhammad Shafi were acquitted, they were convicted under sections 148, 302 read with 149, P.P.C. On three counts of murder; and, additionally, Muhammad Siddique was also convicted under section 325, P.P.C. For causing injuries to Asir Din (P.W. 13). Out of them Jan Muhammad, Muhammad Rafiq and Muhammad Hussain were each sentenced to death on three counts and to pay a fine of Rs.5,000 on each count of murder or in default to suffer rigorous imprisonment for to years. Muhammad Siddique, Allah Rakha and Muhammad Ishaq were each sentenced to imprisonment for life on three counts of murder and to pay a fine of Rs.5,000 on each such count or in default to suffer rigorous imprisonment for to years. All of them were sentenced to suffer six months, rigorous imprisonment on the count under section 148, P.P.C. Muhammad Siddique was sentenced to suffer three years rigorous imprisonment on the count under section 325, P.P.C. And to pay a fine of Rs.1,000 or in default to suffer rigorous imprisonment for three months.
3. The High Court on appeal and reference, acquitted Muhammad Rafiq, while the death sentences passed on Jan Muhammad and Muhammad Hussain were maintained, but only on one count and on the other to counts the sentences were altered to life imprisonment. Subject to these modifications in the sentences, the appeal was dismissed.
4. The prosecution case, according to complainant Gulzar Hussain, was that on 5th of April, 1974 at about 3-30 p.m. He alongwith Mukhtar Ahmad his brother, Ghulam Muhammad his maternal uncle, and Muhammad Ismail, his father were constructing a wall of the house of Muhammad Ismail in a street in Mohallah Mominabad, Karachi Abadi, Factory Area, Faisalabad, and as the mud was consumed, he proceeded to bring cigarettes from the bazar and Muhammad Ismail got busy in preparing the mud in the street. When he was returning, he heard a noise and thereupon he hastened and as he reached the corner of the street he saw Muhammad Ismail having been encircled by Jan Muhammad, Muhammad Hussain, Muhammad Rafiq, Muhammad Siddique, Muhammad Shafi, Abdul Latif, Muhammad Ishaq and Allah Rakha. Out of them Muhammad Rafiq gave a Khanjar blow to Muhammad Ismail on his chest and he fell down. Thereupon, Ghulam Muhammad and Mukhtar Ahmad jumped from the wall to save Muhammad Ismail from being further assaulted, but they were also be-laboured. Muhammad Hussain caused to Khanjar blows to Ghulam Muhammad while Jan Muhammad gave Khanjar blows to Mukhtar Ahmad. Both of them fell down. Jan Muhammad next gave Khanjar blows to Mukhtar Ahmad as he lay on the ground who warded them of with his hands whereafter Allah Rakha, Muhammad Ishaq, Abdul Latif, Muhammad Shafi and Muhammad Siddique caused further injuries to the three deceased with sharp and blunt sides of their hatchets. In the meantime Asir Din came to the spot and as he intervened he was given a hatchet blow with its back-side by Muhammad $iddiq. All the three expired at the spot. Leaving Muhammad Ishaq, Bashir Ahmad and Abdul Aleem at the spot, Gulzar Hussain proceeded to lodge the report and as he reached Gate No.5, he met an A.S.I of Police Station, Factory Area, who recorded his statement and sent it to the Police Station for being incorporated in the 154 Book.
5. The motive attributed for these murders was that about three months before the present incident Yousuf alias Joys, a brother of complainant Gulzar Hussain, assaulted Muhammad Rafiq in which case both Gulzar Hussain and Yousuf were booked for trial. This incident led to bitter feelings and both the parties were bound down to keep peace under section 107 of the Criminal Procedure Code.
6. Jan Muhammad, Ishaq and Muhammad Siddique were arrested on the 17th of April, 1974. From the person of Jan Muhammad a blood-stained shirt was seized and later he led to the recovery of a blood-stained Khanjar from his house. Muhammad Ishaq also produced a blood-stained Kulhari from his house the same day and so did Muhammad Siddique, and the hatchet was found wrapped in a blood-stained shirt. Muhammad Hussain and Allah Rakha were arrested on the 14th of April, 1974 and on the same day Allah Rakha produced a blood-stained shirt and a hatchet from his house. Muhammad Hussain also produced a blood-stained dagger from his house.
7. Deceased Ghulam Muhammad suffered as many as three incises and to stab-wounds. Deceased Mukhtar Ahmad had one stab wound, four incises and to lacerated wounds, while deceased Muhammad Ismail had one stab-wound, one lacerated wound and one abrasion. Asir Din (P.W. 13) had one lacerated wound on his head which resulted in the fracture of his skull bone.
8. In the context of the prosecution version, Muhammad Siddique pleaded that on the day of the incident the marriage of his sister was being solemnised and the Barat had come from Amarkot in to buses at about 1-30 p.m. They were about 50 persons and the number of those who stood to receive them was also about the same, and while they were entering the house, Mukhtar Ahmad and Ghulam Muhammad, the to deceased and some others threw crackers at the Barat party upon which he and the others who were assembled to receive the Baratis rebuked them. He then left to attend to other matters and in the meantime someone threw crackers through the window of the Baithak which led to a scuffle between the Baratis and the guests on the one hand and Ghulam Muhammad and his associates on the other which ended by the the he returned to the Baithak.
9. The trial Court while assessing the credibility of Gulzar Ahmad (P. W. 11) held him to be inimical and accordingly interested as appellant Allah Rakha was a prosecution witness in a case registered under section 307, P.P.C. Against his brother Yousuf at the instance of appellant Jan Muhammad, and not only this he had, in his cross-examination, given out his bias against the appellants. On this .Basis, the trial Court observed:- "The statement of this P.W. 11 is to be dealt with very cautiously and could not be relied upon unless it is corroborated by independent witnesses."
10. Again while holding so, the trial Court accepted his testimony as it was consistent with the F.I.R.
11. Despite minor contradictions. In regard to Abdul Aleem (P.W. 12), the trial Court held that he was Kashmiri by caste and was not related to the complainant party and being a resident of the same locality he was equally affiliated to both sides and while noticing that a criminal case was registered against him at Police Station Toba Tek Singh held that this fact by itself did not show that he was an unreliable witness. The trial Court also held that no bias was imputed against him towards any of the appellants, therefore, there was no reason for him to falsely implicate any one of them. However, the trial Court in spite of what it held had reservations while accepting his testimony. The trial Court next proceeded to draw a distinction between the cases of Muhammad Shafi and Abdul Latif from the other appellants. The fact which weighed against their participation in the crime was that there were no incriminating recoveries of weapons at their behest. Again as Muhammad Shafi was a resident of Kamalia and had no ostensible reason to join the other appellants his presence was considered equally explainable on an innocent hypothesis that he may have come to attend the marriage of the daughter of Nabi Bakhsh. As against the latter no overt at was attributed to him and in that contest his participation was regarded as doubtful.
12. Accordingly, they were given the benefit of doubt and acquitted. As against the other appellants, the testimony of these witnesses was held to sufficient and also corroborated by the recovery of incriminating articles.
13. The trial Court discarded the plea of Muhammad Siddique holding:- "The learned counsel for the defence during arguments, has tried to make out a case of grave and sudden provocation on the basis of this plea, but I am very much clear in my mind that the occurrence took place after the Rukhsana of the sister of Siddique accused had taken place and the accused not under any grave and sudden provocation but rather in full preparation and full intention, went to the house of Ismail deceased. The place of occurrence is not in any way doubted and is in front of the house of Ismail. The house of Nabi Bakhsh father of the Siddique accused is not close to the house of Ismail as is clear from Exh. P.B. And Exh. P.B./1 and, therefore, it cannot be said that the scuffle took place instantaneously for any reason of throwing crackers on the Barat.
14. And lastly, the trial Court concluded that the appellants had a motive and intention to commit the crime as enmity between the parties was an admitted fact, and for that matter one of the appellants had himself given out the cause for the incident. In the result, the appellants were convicted and sentenced as afore stated.
15. The High Court held that the immediate cause of the incident was the throwing of crackers at the Barat party as it was not believable that Muhammad Siddique and the other appellants would harbour any idea of taking revenge as on that day because of the solemnity of the occasion. As for deceased Ismail, the High Court held that being an aged person it was to much to expect from him that he would participate in the. "cracker throwing incident". However, the plea of grave and sudden provocation was rejected as the High Court believed Gulzar Ahmad (P.W. 11) on the point that the incident took place after the Rukhasta of Muhammad Siddique's sister as it was not likely that the appellants would have launched the attack when the Baratis were still there. The other reasons were the different situations of the houses of Muhammad Ismail and Nabi Bakhsh and the absence of any injury on the side of the appellants if at all a scuffle had taken place. Accordingly, the High Court held that the admitted place of occurrence and the kind of weapons used would clearly show that it was a pre-planned and a determined attack.
16. In regard to the ocular testimony, the High Court held that Abdul Aleem though not related was interested in the complainant party as, according to evidence, the deceased worked at his looms which fact he denied at the trial, but it was established by his previous statement with which he was confronted. Not only this he was a witness in the proceedings instituted by Muhammad Yousuf son of Ismail under section 107, Cr.P.C. Against the appellants to keep peace. Again he had also admitted that there was serious enmity between the parties and that he was committed to the complainant party. Obviously, the impression sought to be given was that he was a disinterested person, but the evidence further showed that he was not so and had the animus against the appellants. As for Asir Din, the High Court held that he was also an interested witness as his nephew Muhammad Ishaq was a prosecution witness against the appellants in the proceedings for maintaining peace. Although he denied this fact at the trial but again it was established by confronting him with his previous statement. However, after assessing the credibility of the witnesses, the High Court reached the conclusion that the testimony required corroboration which was lacking in the case of Muhammad Rafiq, who was, accordingly, acquitted although a specific allegation was made against him that he had caused the fatal blow to Ismail. Jan Muhammad and Muhammad Hussain were held to have caused the death of Mukhtar Ahmad and Ghulam Muhammad respectively, and for their murders they were sentenced to death. On the other to counts of murder, they were vicariously held liable. As regards the other appellants, their convictions and sentences were maintained.
17. Leave to appeal was granted to consider, inter alia, as to whether the evidence of recovery available on the record furnished the required corroboration to the ocular evidence.
18. Since the incident occurred in broad daylight and no other substantial reason is shown to make their presence improbable, it is difficult to accept that the witnesses would not have been attracted to the spot as they resided in the same locality and near about the house of deceased Ismail.
19. Additionally, Asir Din was also injured which confirmed his presence. The Courts below have, upon a fair appraisal of the evidence, reached the conclusion that the witnesses were partial and we have no reason to disagree with it, but we entertain a serious doubt as to the manner in which the incident occurred. It is the consistent version of these witnesses that Ismail was assaulted while he was preparing mud for raising the wall of his house, but this mud was not noticed by Gulzar Hussain, S.I., (P.W. 14), when he came to the spot. Further Gulzar Ahmad (P.W. 11) asserted that Ismail was in the mud-pool but again he showed his ignorance on being questioned as to whether his legs were mud-stained or not. This much he admitted that he did not clean the legs of Ismail and that no one else did so in his presence. Further, no mud was noticed by Dr. Bashir Hussain Kahloon (P.W. 7) on his legs or clothes while performing his autopsy.. Aurangzeb (P.W. 5) who prepared the site-plan stated that he did not notice any wall under construction at or near the place of occurrence.
20. On this state of evidence it is not possible to accept the tainted version of the prosecution witnesses that Ismail and the to deceased were busy in raising the wall before the assault particularly when Abdul Aleem (P.W. 12) has not supported Gulzar Ahmad (P.W. 11) on the further assertion that Mukhtar Ahmad and Ghulam Muhammad jumped from the wall to save Ismail. He had omitted to mention this fact in his previous statement but at the trial towed the same line as Gulzar Ahmad (P.W. 11), and this omission was highlighted when he was confronted with his previous statement. All this assumes significance in the context of the defence plea that the assault was the result of the crackers having been thrown at the Barat party. Gulzar Ahmad (P.W. 11) did not give out any immediate reason for the assault. Similarly Abdul Aleem (P.W. 12) also stated that he was not aware of the reason which led to the incident. Likewise Asir Din also showed his ignorance about the immediate cause of the incident. The High Court partly accepted the defence version that the throwing of the crackers was the immediate cause of the incident, but further held that the attack was launched after the Barat party had left. This finding was obviously based on the absence of the immediate reason for the assault on record. There is no denying the fact that the prosecution witnesses did accept the fact that the Barat had arrived on that day but waivered as to the the at which the Barat had come or the the at which the Nikah was performed or the the at which the Barat had left. Gulzar Ahmad (P.W. 11) stated in his cross-examination that the Barat had come at about 7 or 8 a. m but in his previous statement with which he was confronted he stated that it was 8 or 9 a.m. He expressly denied that the Barat had come at noon or at 1-00 p.m. And further disputed the number of Baratis. In his estimation there were only 6 or 7 such persons. He also denied the suggestion as to whether they had come in a bus or in some other vehicle.
21. Obviously what Gulzar Ahmad stated cannot be accepted as it is improbable to believe that the Barat would have arrived at an early hour of the morning if they had to come from a distance.
22. Again the number of Baratis is also minimized as on such occasions the relations and friends also accompany the bridegrooms and their number is invariably large. If they had to come I a body, they would come in a bus or some other vehicle and this fact is again deliberately suppressed. The the of arrival of the Barat as given out in the defence version apparently appears to be more probable. Gulzar Ahmad (P.W. 11) by giving that the Baratis had come in the morning attempted to disprove the defence version in regard to the throwing of crackers and also the nexus between the the of arrival and the incident. But if, as stated by the witnesses, there was no immediate reason for the assault it does not stand to reason as to why the appellants would have deliberately launched the attack on that day after the Barat had left. The obvious inference, which can be drawn, is that the complainant party had insulted and created panic by throwing crackers at the Barat party against which the appellants had retaliated to wreck vengeance for the insult shown to the Baratis.
23. It is not possible to fix the the, but it can safely be assumed that the assault must have been launched after the ceremony was over. If the Barat had come at noon or 1-00 p.m. Then it would have at least taken 2 or 3 hours to complete all the rituals, hence the the of occurrence would be near about what is stated, that is, 3-00 p.m. Whether the Baratis had left or not is also not established either way.
24. The High Court has given a definite finding that it was after the Baratis had left, but we are unable to agree with it as there is no evidence to sustain it. This being so and the origin of the assault, as stated by the prosecution, being doubtful, it can be safely concluded that the incident occurred on account of the mischief created by the complainant party. This would not, however, absolve the appellants from 'their criminality as that would only provide a motive and an extenuating reason for lesser punishment.
25. As to the acceptance of the evidence of recoveries by the Court, below, we have no reason to disagree with them. It turns on the testimony of Munir Ahmad (P.W. 9) and Ch. Muhammad Ramzan (P.W. 10). Munir Ahmad (P.W. 9) has spoken to the recoveries made at the behest of appellants Jan Muhammad, Muhammad Ishaq and Muhammad Siddique. This witness resided at a distance of half a mile from the place of incident and as he happened to be there per chance he was askec: to become a recovery-witness. We did not see any improbability in his version as to his presence at that the for he lived not far away any, would have been attracted by the murders committed in the village. He denied being a stock-witness or being known to the police officers before being made a recovery-witness. He also denied his relationship with Ismail and also the fact that because of that relationship he ha.: falsely deposed to the factum of recoveries at the behest of these appellants.
26. No enmity was suggested as to why he would falsely depose against them. In this contest the trial Court was justified to hold him an independent witness with which the High Court agreed. We are unable to agree with the contention that as he had not affirmatively stated as to how the incriminating articles were made into a parcel his evidence could not be accepted. What he actually stated was that he did not notice as to from where the material was procured which would not, by itself, cause a dent on the sanctity of the recovery of any incriminating article. It may be that he may not have been mindful, but by itself, this feature is inconclusive to brand his evidence with doubt. The tenor of his evidence shows that he had visited the house of Jan Muhammad of which he gave the particulars which obviously goes to support the recoveries of incriminating articles in his presence. His-evidence is straightforward and inspires confidence. Accordingly, it cannot be brushed aside.
27. As for Ch. Muhammad Ramzan (P.W. 10), he lives in front of the house of appellant Allah Rakha and has deposed to the recovery of incriminating articles at his instance and that of Muhammad Hussain. He stated that at that the he was holding the post of Senior Superintendent, Plant Protection Department in the Agricultural, Department. It cannot be, therefore, accepted that he could be a tool in the hands of the Investigating Officer as he occupied a responsible post. He was also on visiting terms with appellant Allah Rakha, butt not with appellant Muhammad Hussain. He has given the particulars of the houses of both these appellants. No enmity is suggested as to why he would falsely depose as to the recoveries of incriminating articles. However, in the cross- examination of Abdul Aleem (P.W. 12) it was suggested to him that this witness was also implicated in a case of abduction alongwith him under section 365/366, P.P.C. Which stood registered at Police Station Toba Tek Singh, but this obviously does not show any bias against these to appellants and if at all something turned on it then this question should have been put to this witness` to elicit an explanation. His evidence is also straightforward and we have no reason to doubt it.
28. On the dates of their arrest the appellants led to the recovery of incriminating articles. The promptness of disclosure removes any impression of manipulation of these articles. Accordingly, we have no doubt in our minds that the recoveries were genuine, and rightly accepted by the Courts below. Therefore, we would uphold their convictions, but, as to the death sentences awarded to appellants Jan Muhammad and Muhammad Hussain for the murders of Mukhtar Ahmad and Ghulam Muhammad respectively, we alter it in each case to imprisonment for life as they were prompted to assault as a consequence of the insult meted out to the Baratis by the complainant party. However, we would enhance the fine imposed on these to appellants to Rs.20,000 on each count of murder or in default to suffer rigorous imprisonment for three years. The fine if recovered from the appellants shall be paid to the heirs of the three deceased in equal shares. Additionally, the fine if recovered from Muhammad Siddique shall be paid to injured witness Asir Din. The convictions and sentences of the other appellants are maintained. The benefit of section 382-B, Cr.P.C. Shall be extended to them while computing their sentences. The sentences are to run concurrently.
29. Subject to these modifications, the appeal is dismissed.