ASLAM RIAZ HUSSAIN, J.--This appeal by Muhammad Sher and others is directed against the judgment of the Lahore High Court, dated 27-5-1980, whereby the High Court dismissed their appeal against their conviction and sentences under sections 302/307/449/149 and 148, P.P.C. And enhanced their sentences under section 302/149, P.P.C. From imprisonment for life to death.
2. The six appellants were tried alongwith 5 others namely Alam Sher, Ahmed Sher, Mukhtar, Khan and Abbas, for the murder of six persons namely; Allah Ditta, Fareed, sons of Rana, Mst. Sallan widow of Allah Ditta, Ramzan son of Allah Ditta, Mst. Kanizan widow of Fareed (deceased) and Mst.
Haleema, and from making murderous assault on Mst. Muneeran.
3. The occurrence in this case took place on t-he night .Between 21-22/4/1973, in the house of Allah Ditta Mauza Ali Fattana, District Jhang. The F I.R. Was lodged by Ghulam Qadir P.W. 11 (brother-in- law of Allah Ditta. )
4. The motive for the occurrence is stated to be that about 8 years prior to the present occurrence Fareed and Raja had been murdered and in that case Allah Ditta and Fareed (both deceased) and to others namely- Murad and Chiragh had been challaned. About 6 years prior to the occurrence Falak Sher, Mahmood, Shera, Khan and Asghar fired at Fareed and his wife and in that occurrence wife of Fareed was injured and Murad Kumhar had been murdered. Now, 15/16 days before the occurrence Allah Ditta (deceased) enticed away Mst Haleema daughter of Fazil who was real sister of Alam Sher, Ahmed Sher, and Muhammad Sher accused and wife of Ghulam Abbas accused.
Alam Sher, Muhammad ` Sher and Ghulam Abbas made attempts to get Haleema back through negotiations but Allah Ditta refused to do so. The accused persons were deeply aggrieved by the aforesaid abduction and consequently committed the offence in question.
5. The F.I.R. Was lodged by Ghulam Qadir complainant which was recorded by Ahmed Yar S.I. Police Station, Athara Hazari, at 8 p.m. On 22-4-1973, wherein he stated that he alongwith his wife was on a visit to Allah Ditta and Fareed who were residing at the Tubewell of Sardar Khan in the area of Mauza Ali Khanan. On the night between 21-22/4/1973, he alongwith his wife Mst. Zainab and mother-in-law Mst. Sammu, was sleeping on the roof top of the Kotha, while Haleema daughter of Fazil. Allah Ditta, Mst. Sullen wife of Allah Ditta, Ramzan a 7 years old son of Allah Ditta, Fareed and Mst. Kanizan wife of Fareed alongwith her 11 years' daughter, Mst. Muniran, slept on cots inthe courtyard.
6. A Pehar before the sunrise when there was still enough moonlight, he woke up on -the barking of the dogs and saw Alam Sher, Ahmed Sher, Muhammad Sher sons of Fazil, Ghulam Abbas son of Fareed, Ghulam son of Fareed, Nizam son of Rajab armed with hatchets, standing near the hand pump in the courtyard. Alam Sher, Ahmed Sher, Muhammad Sher raised a 1alkara that none from those asleep should be left alive. Mst. Lammu also woke up on hearing the noise. Alam Shep fired at Ramzan, Muhammad Sher fired a shot h9tting Mst. Sullen, Mukhtar fired hitting Mst. Kanizan, Ghulam Abbas fired hitting Haleema; Sher fired hitting Allah Ditta, Mst. Muniran who was sleeping with her mother was also injured. Meanwhile Asghar, Ghulam Khan and Nizam gave hatchet blows to Ramzan, Sullen, Farki, Kanizan, Haleema and Allah Ditta. The gunmen mentioned above continued firing. Ghulam Qadir (complainant), his wife Mst. Zainab and his mother-in-law Mst.
Sammu witnessed the entire occurrence. On the report of gun fire Saifullah son of Sardar Khan, a neighbour also came and saw the accused firing and giving hatchet blows. Shera picked up Allah Ditta's licensed gun Ghulam Abbas, Mukhtar removed earrings bangles and Paizaibs from Mst.
Kanizan. Haleema succumbed to the injuries there and then.
7. As already stated the matter was reported to the police by Ghulam Qadir P.W. 11 (complainant).
The accused were arrested by the police next day. The police recovered to .12 bore empties (P. 37 and P. 38) and to 7mm rifle empties (Exhs. P. 39 and 40). Two .12 bore guns were recovered from Sultan accused (one belonging to Allah Ditta deceased and the other belonging to Muhammad Sher accused). The last mentioned gun matched with the empties recovered from the spot.
Hatchets were recovered from Shera, Nizam, Khan and Asghar while Takwa/Kulhari was recovered from Ghulam. A .12 gun was recovered from Abbas which did not match with any of the empties.
Rifles were recovered from Mukhtar and Muhammad Sher. Out of these the rifle recovered from Muhammad Sher matched with the 7, mm empties found from the spot.
8. At the trial the prosecution relied on the ocular testimony of Ghulam Qadir P.W.11 (Brother-in-law of Allah Ditta deceased); Mst. Zainab P.W. 12 (sister of Allah Ditta deceased) and Mst. Sammu P.W. 14 (mother of Allah Ditta aforesaid). The Court also examined Saifullah as a C.W. Whose name was mentioned in the F.I.R. The prosecution also relied on the evidence of the afore-mentioned recoveries; the evidence of motive and the medical evidence.
9. The accused pleaded innocence and stated that they had been involved due to enmity.
10. The learned trial Court believed the prosecution evidence, convicted all the accused of offence under sections 148. 302/149, 307/149 and 449/149 P.P.C. For the six murders. For the offence under section 302/149, P.P C. It sentenced each of them to imprisonment for life and a fine of Rs.2,000 (or in default to suffer further R.I. For 2 years' on six counts. Each one of them was sentenced to 10 years'
R.I. And a fine of Rs.1,000 or in default to undergo further R.I. For one year under section 307/149 P.P.C.
For causing injuries to Mst. Muniran (an infant child). Each one of them was also sentenced to 10 years' R.I. And a fine of Rs.l ,000 or in default to suffer further R.I. For one year under section, 449/149, P.P.C. It sentenced each of the accused under section 148, P.P.C. To undergo R.I. For 3 years and to a fine of Rs.1,000 each or in default of payment of fine each of them was ordered to undergo further imprisonment of 9 months.
11. The accused filed an appeal before the High Court. The High Court disbelieved the testimony of to of the eye-witnesses namely P.W.14 and P.W.12 and relied only on the testimony of Mst. Sammu. It felt that conviction of the appellant could be based on her statement alone provided independent corroboration of the same was available. It, however, did not find any corroboratory evidence with respect to Alam Sher, Ahmad Sher, Mukhtar and Ghulam Abbas and consequently acquitted them.
With regard to the remaining 7 accused (of whom Ahmed died during the pendency of appeal) it found corroboratory evidence in the shape of above-mentioned incriminating recoveries from them, as also the motive. It, therefore, dismissed the appeal of the six appellants and maintained their conviction and sentences under sections 307/449/149 and 148, P.P.C. Except that it enhanced their sentences under section 302/149, P.P.C. From imprisonment for life to death.
12. Feeling aggrieved the appellants filed an appeal before this Court as of right because their sentences under section 302/149, P.P.C. Have been enhanced by the High Court from imprisonment for life to death.
13. We have heard the learned counsel for the parties at considerable length and have also gone through the judgments of the to Court below as well as the relevant evidence on the record.
14. We notice that Sultan appellant is not related to any of the co-accused and he had, therefore no motive to join them in committing these gruesome murders. He submitted further that it was possible that he had been involved (either by the complainant party or by the police) because of some ulterior motive. It was next contended by the appellants learned counsel that although there had been previous murders between the parties, the complainant party invited the trouble by enticing away and abducting one of the women Mst. Haleema (wife of Abbas appellant) of the opposite side, knowing fully well the consequences that might follow, in view of the continued blood feud between the parties. He also pointed out that it was admitted by the prosecution that the accused party tried their utmost for the return of Mst. Haleema through peaceful negotiations but the complainant party was not amenable to reason and did not return the aforesaid woman. The learned counsel, therefore, urged that these facts constitute a sufficiently strong mitigating circumstance warranting imposition of the lesser sentence on the appellants, as had been done by the learned) trial Court.
15. We have given our careful consideration to these contentions and feel that there is considerable force and or are inclined to agree with the same. We, therefore, accept the appeal of Sultan; acquit him of all the charges and set aside his conviction and sentences under all the above noted sections. He shall be set at liberty, if not required in any other case.
16. We also reduce the sentences of the remaining appellants namely, Muhammad Sher, Nizam, Shero, Asghar and Ghulam, under section 302/149, P.P.C. From death to imprisonment for life in view of the mitigating circumstance mentioned above. However, after hearing their learned counsel, we enhance the sentences of fine awarded to each of the appellants (except Sultan appellant who has been acquitted) from Rs.2,000 to Rs.20,000 which if realized shall be paid to the heirs of the deceased as compensation, in equal shares. In default of payment of fine each of them shall suffer further 5 years R.I.
17. As regards the remaining convictions and sentences the same are maintained. All the sentences of imprisonment shall, however, run concurrently.
18. By the above modifications in sentences the appeal of the remaining 5 appellants namely Muhammad Sher, Nizam, Shero, Asghar and Ghulam, is partly allowed. Sultan appellant's appeal is allowed in tot0.