ZAFFAR HUSSAIN MIRZA, J.--Appellants Liaqat Shah, Sana Shah, Shah Nawaz, Nazar Shah and Zubair Shah, all sons of Muhammad Shah, were tried alongwith Mst. Battan, their sister, Zaka Shah their brother and their father Muhammad Shah, for the causing the murders of Abdul Haq, Mehdi Shah, Mst. Mukhtaran and Mst. Akhtari deceased. They were also charged under section 307/149, P.P.C. For making murderous assault on Mst. Rasoolan Bibi and Mst. Safia Bibi and causing them fire-arm injuries. Learned Additional Sessions Judge, Sheikhupura, convicted the appellants and Mst. Battan under sections 148, 452, 302 and 307 read with section 149, P.P.C. While Zaka Shah and Muhammad Shah were acquitted by him. The convicts were awarded one year's R.I. Each under section 148, P.P.C., to years' R.I. Each under section 452/149, P.P.C. And 5 years' R.I. And fine of Rs.1,000 each or in default further R.I. For three months under section 307/149, P.P.C. On to counts separately.
Under section 302/149, P.P.C., on each of the four counts for the murders of Abdul Haq, Mehdi Shah, Mst. Mukhtaran and Mst. Akhtari, the appellants were awarded death sentence and a fine of Rs.5,000 each or in default R.I. For six months. Mst. Battan was, however, sentenced to life imprisonment and a fine of Rs.2,000 or in default R.I. For six months under section 302/149, P.P.C. On each count. Directions for payment of compensation to the legal heirs of the deceased were also made. The trial Court also made a reference for the confirmation of death sentences awarded to the five convicts.
2. The appeal filed by the convicts and the death reference were heard together by a Division Bench of the Lahore High Court, Lahore. By the impugned judgment in this appeal, dated 5-2-1980, the Division Bench dismissed, the appeals of the five appellants herein maintained their convictions and confirmed their death sentences. The appeal in respect of Mst. Battan was, however, accepted and she was acquitted of all charges.
3. Leave was granted to determine whether in view of the fact that Mst. Battan was implicated by the eye-witnesses and acquitted by the Court the oral testimony would still be produced upon implicitly with regard to the other accused, namely, present appellants without independent corroboration.
4. The gruesome incident in -this case in which four persons were brutally done to death was the result of a family tragedy. The parties to this unfortunate occurrence are closely related and belonged to the same family. The five appellants are the sons of Muhammad Shah acquitted accused. Mehdi Shah deceased was the son of the brother of Muhammad Shah, while Abdul Haq deceased was the son of another brother of Muhammad Shah. Mehdi Shah deceased and Mst.
Battan, acquitted accused were married about 15 years before the occurrence. Out of their wedlock three sons were born. But as Mst. Battan was a quarrelsome woman, Mehdi Shah deceased was unable to pull on with her and eventually married another woman, namely, Mst. Akhtari deceased, who is said to have been a professional prostitute from Pattoki. After the second marriage of Mehdi Shah, Mst. Battan separated from him and took up residence in his old ancestral house, while Mehdi Shah lived with his second wife Mst. Akhtari in a newly-built house in the vicinity. He, however, duly provided maintenance to Mst. Battan, as he constantly remained in fear other six brothers.
Quite naturally Mst. Battan nursed grudge against Mehdi Shah and his second wife.
5. Mst. Surraya is the sister of Mst. Battan. On 15-10-1975, in the morning, Mst. Surraya went to the house of Mehdi Shah and Mst. Akhtari, alongwith Mst. Battan, and there was a quarrel between the women. In this quarrel fist blows were exchanged and Mst. Mukhtaran, a maid-servant of Mst.
Akhtari Bibi also gave fist blows to Mst. Battan and Mst. Surraya. The latter were then driven out of the house of Mehdi Shah. Apparently Mst. Battan informed her father Muhammad Shah acquitted accused of what had happened.
6. Later on at about 1.00 p.m. Mehdi Shah deceased accompanied by Abdul Haq deceased went to the house of Ahmad Shah complainant and requested him to pacify the brothers of Mst. Battan, Muhammad Shah and Zaka Shah (acquitted accused) came to the house of Ahmad Shah looking for Mehdi Shah to avenge the insult. It is stated that Abdul Haq deceased requested them not to fight. But Zubair Shah and Nazar Shah appellants fired one shot each at Abdul Haq deceased, who fell down. Shah Nawaz and Liaquat Shah appellants fired gun shots at Mehdi Shah deceased. Sana Shah also fired pistol shots at Mehdi Shah and Abdul Haq deceased. Hoth deceased succumbed to their injuries on the spot of the house of Ahmad Shah. Mst. Safia Bibi and her mother Mst. Rasulan Bibi implored the assailants to spare the lives of the victims but they were also fired upon with to shots each by Shah Nawaz and Sana Shah appellants.
6-A. At the instance of Mst. Battan and Muhammad Shah, the accused then went to the house of Mehdi Shah and the witnesses present at the the of the first incident except the injured followed them to the house of Mehdi Shah. There Zubair Shah appellant fired to shots at Mst. Mukhtaran deceased in the courtyard, who fell down. Two more shots were fired at her by Shah Nawaz appellant. The acquitted accused then shouted and called upon the appellants not to spare Mst.
Akhtari, whereupon Nazar Shah, Liaquat Shah and Sana Shah entered the Kotha after breaking open the door. Liaquat Shah, Nazar Shah and Sana Shah appellants fired upon Mst. Akhtari deceased with their respective weapons, killing her outright on the spot. The assailants then decamped from the scene with their weapons.
7. All the appellants, in their statements under section 342, Cr.P.C. Proclaimed their innocence and denied participation in the occurrence. They alleged that they had been falsely involved in this case due to enmity, details of which were given by Shah Nawaz appellant. According to him the enmity related to the murders of the parents of Mehdi Shah deceased, and on account of a land dispute in respect of his wife Mst. Zubida, which will be discussed in the subsequent part of this judgment. Zubair Shah appellant further denied that a double barrel gun (P.10) was secured at his instance from his house. According to him this gun did not belong to him and in fact the other gun (P.11) was his licensed gun. Liaquat Shah appellant further pleaded alibi, stating that four days prior to the occurrence he had gone to Jaranwala Chatha Hospital to enquire about the health of Maqsood Shah and there learnt about the occurrence, after which he came back to the village one day after the occurrence. Similarly Sana Shah appellant also stated that as his servant Allah Ditta had suffered head injury, he had taken him to Jhalar Gangapur, for medical treatment one day before the occurrence and returned to the village on the day of occurrence late in the evening.
Nazar Shah appellant stated that he had been implicated falsely on account of enmity, as he was a witness in the murder case of the parents of Mehdi Shah deceased. According to him the four deceased in this case had been murdered by Ahmad Shah complainant and his associates and the appellants were falsely implicated by him. He denied that the gun (P.11) was recovered at his instance from his house. According to him the other gun (P.10) belonged to him.
8. It will be observed that the occurrence in this case took place in to separate episodes. The first part of the occurrence took place in the open Ahata of Ahmad Shah complainant, in which Abdul Haq and Mehdi Shah deceased were killed. The second part of the occurrence was in the house of Mehdi Shah in which Mst. Mukhtaran deceased was done to death in the courtyard and Mst. Akhtari was killed in the room of the house. During the investigation blood-stained earth was secured from these to scenes near the places where the dead bodies were found lying. No crime empty was secured from the Ahata of Ahmad Shah, but four crime empties were found from near the dead body of Mat. Akhtari deceased in the house of Mehdi Shah. Nazar Shah appellant produced gun (P.11) from his house and Zubair Shah appellant also produced a gun (P.10) from inside his house.
The four crime empties secured by the police were found to match with these to guns by the Ballistic Expert.
9. The conviction of the appellants is based upon ocular testimony furnished by four witnesses, namely, Ahmad Shah complainant, his brother Feroz Shah, Mat. Safia Bibi and Mst. Rasulan Bibi.
These four eye-witnesses are closely related to Mehdi Shah and Abdul Haq deceased. Ahmad Shah and Feroz Shah (P.Ws.) are brothers. Their sister Mst. Fatima was the wife of Abdul Haq deceased. They are the grandsons of Bahadar Shah who was uncle of Abdul Haq deceased.
Similarly Bahadur Shah was also real uncle of Mehdi Shah deceased. Two women witnesses, namely, Mst. Safia Bibi and Mst. Rasulan Bibi are daughter and mother, and are also related to the to said deceased. Mst. Rasulan is the wife of Khadim Shah brother of Ahmad Shah complainant and Mat. Safia Bibi is the daughter of Khadim Shah. Therefore, they are the sister-in-law and niece of Ahmad Shah complainant.
10. According to the medical evidence, there were three gunshot injuries on the person of Abdul Haq deceased, out of which to were fatal. Mehdi Shah deceased was found to have received to gunshot injuries both of which were fatal while Mst. Mukhtaran Bibi also received to gunshot injuries both fatal, and on the person of Mst. Akhtari there were in all five gunshot injuries with blackening present around them out of which one was fatal. Additionally Mst. Rasulan Bibi (P.W.) had received to fire-arm injuries and Mst. Safia Bibi (P.W.) had received three fire-arm injuries which were all simple in nature.
11. Mr. Ijaz Hussain Batalvi learned counsel for the appellants did not seriously dispute that an occurrence had taken place in which the four deceased were killed with fire weapons. But the theory advanced by him was that the splitting up of the occurrence into to episodes had taken place at different spots was a deliberate attempt on the part of the prosecution to distort the facts in order to rope in Muhammad Shah and all his sons by attributing participation to each of the son in the to episodes separately. According to him there was a single occurrence which took place in the house of Mehdi Shah where all the deceased were killed and this he supported from the fact that although as many as 10 shots were fired, according, to the prosecution version, in the house of Ahmad Shah yet not a single crime empty was secured at the scene of this part of the occurrence.
On the other hand four crime empties were secured by the Investigating Officer from the house of Mehdi Shah, which matched with the to guns, produced one each by Nazar Shah and Zubair Shah appellant. Learned counsel submitted that there is evidence only against the last-mentioned appellants indicating that these to were the only participants in the crime. He submitted that having regard to the number of injuries it was not beyond the pale of probabilities that to persons had inflicted these injuries resulting in the death of the deceased.
12. There is no force in these submissions. The police officer ha testified that he found the dead bodies of Abdul Haq and Mehdi Shah deceased in the house of Ahmad Shah and the dead bodies of Mst. Mukhtaran Bibi' and Mst. Akhtari Bibi in the house of Mehdi Shah. Blood-stained earth was also secured from the places where these dead bodies were lying. There is no reason on the record to doubt the correctness of this statement or disbelieve the police officer. The tota number of injuries sustained by the four deceased and the to injured witnesses were in all 17 which corroborate the assertion of the prosecution that this was the work of five assailants. Another circumstance worthy of notice is that there are to injured witnesses, namely, Mst. Rasulan Bibi and Mst. Safia Bibi whose presence at the the of occurrence cannot be denied. Their Kotha opens in the same courtyard in which the first part of the occurrence had taken place. They were, therefore, natural witnesses. If the prosecution wanted to set up a false case, it was easy for them to have made these to women the witnesses of the second part of the occurrence also. But it was not done so which -reflects the truthfulness of their statements. There is, therefore, no support in the evidence for the contention that the occurrence had taken place only in the house of Mehdi Shah and that there were only to culprits involved. Similarly the facts that no empties were secured from the courtyard of Ahmad Shah (P.W.) does not falsify the evidence of eye-witnesses who have fully supported the prosecution. It is quite possible that Mat. Rasulan Bibi and Mst. Safia Bibi were injured by the shots aimed at Abdul Haq and Mehdi Shah deceased and if that was so then there were only six shots fired, by the 5 assailants carrying double barrel guns and possibly the culprits may not have reloaded the gun in the house of Ahmad Shah.
13. Learned counsel for the appellants next urged that the prosecution witnesses were not independent and bore grudge against the appellants. He also assailed their testimony on the ground that they had made improvements in their evidence, which discredited their testimony. So far as the enmity alleged against Ahmad Shah and his brother Feroz Shah is concerned, the accused in their statements alleged to main grounds. Firstly it was stated that the parents of Mehdi Shah deceased were murdered before this occurrence and in that case Mehdi Shah, the acquitted accused, (father of the appellants) was the complainant and Nazar Shah appellant was a prosecution witness. In that case Obaid Shah brother of Abdul Haq deceased was sentenced to transportation for life and so was Abdul Haq deceased, who was also co-accused in the case. One of the accused persons, Anwar was executed The suggestion was that on account of this enmity Ahmad Shah (Y.W.) was ill-disposed to the family of the appellants and had, therefore, involved Muhammad Shah and his sons to take revenge. The second ground on which the enmity was alleged is that one Mst. Zubaida is the wife of Shah Nawaz appellant. Mst. Zubida is the daughter of one Ahmad Shah (not P.W.), who sold his land and subsequently suit for pre-emption was filed in respect of this sale. It was alleged that the brothers of that Ahmad Shah forcibly took away Mst.
Zubida. Mst Zubida had inherited 36 acres of land from her father as his sole issue. Abbas Ali Shah uncle of Mst. Zubida wanted her hand in marriage for his son Anwar but her mother married Mst.
Zubida with Shah Nawaz appellant. Abbas Ali Shah then fraudulently obtained entries in the revenue record showing gift of the landed property of that Ahmad Shah in favour of his son Khazir Hayat. In 1974, Mst. Zubida's mother obtained a copy of the mutation and filed an appeal which was decided in Mst. Zubida's favour and the gift mutation was cancelled. Because of this cancellation Ahmad Shah complainant also became the enemy of the appellants. These suggestions were denied by Ahmad Shah (P.W.) and the High Court observed:-- "Sometimes before the present occurrence, parents of Mehdi Shah deceased were murdered and the case was registered against Abdul Haq deceased and others at the instance of Muhammad Shah accused. The matter had been compromised between the parties and there was no ill-will between them. The defence wanted to prove that on account of the lodging of report by Muhammad Shah, the complainant party had a cause to involve him and other members of the family falsely in this case but this was factually incorrect."
The dispute over property of Mst. Zubida seems to have no link with the eye-witnesses, who are not shown to have been directly interested in that dispute. No enmity has, therefore, been established against the witnesses. In any case the to women witnesses had no concern with the enmity alleged except that they were related to the complainant. We are not satisfied that it has been established on the record that the eye-witnesses were inimical with the appellants.
14. On the other point learned counsel referred to the prosecution case as set out in the first information report. He pointed out that the immediate cause for the violence that resulted in the death of the four deceased was that Mst. Surraya, the sister of Mst. Battan, had gone to the house of Mst. Akhtari and abused her saying that she had ruined the life of her sister by marrying her husband. On this there was a quarrel between the to women in which fist blows were exchanged. It was further stated that Mst. Mukhtaran deceased, who was the maid-servant of Mst. Akhtari, also hit Mst. Surraya with fists. On this Mst. Surraya complained to Muhammad Shah. In the evidence, however, the complainant made improvements in this version by saying that Mst. Battan also accompanied Mst. Surraya when she went to the house of Mst. Akhtari and after the quarrel both Mst. Surraya and Mst. Battan were driven out of the house. It was submitted that this improvement reflects adversely upon the veracity of the version of the complainant with the appellants after due deliberation launched the attack in the afternoon. We see no force in this contention and we agree with the High Court that this is not an improvement in any material aspect of the case, so as to discredit the direct evidence of the witnesses.
15. Lastly, learned counsel submitted that the investigation was dishonest and unreliable and, therefore, corroboration of the ocular testimony is indispensable. In this connection, learned counsel referred to the statement of Muhammad Ashraf, A.S.I. That he had secured the four crime empties near the dead body of Mst. Akhtari deceased. Further he also referred to the Investigating Officer omitting to write the date and the of sending the special report after recording the first information report. The suggestion that this was done as the first information report was registered afterwards was denied by the witness. Reference was also made to certain overwriting in the first information report, which according to the learned counsel was done in order to bring the version disclosed in the first information report in confirmity with the medical evidence. We find no substance in these submissions. There appears to be no contradiction regarding the recovery of four crime empties near the dead body of Mst. Akhtari as there is contemporaneous record of the recovery memo. Which is consistent with the statement of the Investigating Officer. The other things pointed out do not in our opinion put the investigation to doubt regarding the honesty of the Investigating Officer. There is no material to suggest that the Investigating Officer had any motive to co-operate in fabricating a false case against the appellants. The reconstruction of the occurrence as suggested by the defence in the cross-examination of the complainant was that the dispute arose over the distribution of milk between Mst. Akhtari and Mst. Surraya which led to a quarrel between them and during this quarrel, Mehdi Shah and Abdul Haq deceased arrived at the scene in the house of Mst. Akhtari. They then tore of the shirt of Mst. Surraya and beat her up. On her cries Nazar Shah and Zubair Shah were attracted who out of Ghajrat injured the deceased and the prosecution evidence. We have carefully examined the evidence and find no support for this version.
16. On an overall examination of the evidence led at the trial it appears certain that Mst. Battan, and her brothers, the present appellants were annoyed with Mehdi Shah deceased, on account of his taking another wife and separating from Mst. Battan. It is but natural that they must have resented particularly because a former prostitute was made to reside in the same village near their house as the wife of their brother-in-law. In the background of this strained and hostile attitude, the appellants would naturally be provoked, when the sister of Mst. Battan was insulted not only by the second wife of Mehdi Shah deceased but her maid-servant as well. There is, therefore, nothing to discard the evidence of the witnesses that the appellants came armed and killed the four deceased on the day of occurrence. The prosecution case is fully supported by the four eye- witnesses, namely, Ahmad Shah, Feroz Shah, Mst. Safia Bibi and Mst. Rasulan Bibi. The last to were injured witnesses and as already stated their presence was not being seriously disputed. We have found no reason on the record to hold that these witnesses had motive to falsely implicate the appellants who were their relatives or even to exaggerate their number, which seem to be in consonance with the number of injuries sustained by the deceased and the injured. As we have held that these witnesses were not interested witnesses it is idle for the learned counsel for the appellants to argue that their testimony requires independent corroboration. There is, therefore, no force in the argument of the learned counsel that except Nazar Shah and Zubeir Shah appellants against whom there is evidence of recovery, the testimony of the witnesses as to the rest of the appellants be discarded. We are satisfied that the convictions of all the appellants are well- founded.
17. However, the question of sentences requires some consideration. As already observed the appellants, in the background of strained and bitter relations between them and Mehdi Shah deceased, were provoked on the highhanded manner in which their sister was beaten and insulted. Having regard to these circumstances it appears to me that the case of Liaquat Shah who was 26 years of age, Zubbair Shah who was 25 years of age and Sans Shah who was 20 years of age must have been influenced in great measure by the presence and actions of their elder brothers Shah Nawaz and Nazar Shah appellants. The young age of the aforesaid three appellants and the influence of elder brothers operating on their mind in the traumatic situation entitles them to the lesser penalty provided by law. While, therefore, maintaining the convictions and sentences awarded to Shah Nawaz and Nazar Shah appellants, the death sentences awarded to Liaquat Shah, Sana Shah and Zubair Shah appellants are substituted with imprisonment for life, with benefit of section 382-B, Cr.P.C. In computing their sentence. Their convictions and remaining sentences shall remain intact. With this modification in the sentences of the aforesaid three appellants, the appeal is dismissed.