1. JAVID IQBAL, J.--There were before us two connected appeals directed against the judgment of the Lahore High Court Lahore, dated 13th January, 1982, namely, Criminal Appeal No.178 of 1983 fi,ied bySafdar Abbas, Manzar Abbas and Najam Abbas sons of Khadim Hussain, convicts-appellants; and Criminal Appeal No.179 of 1983 filed by Munawar Ali Khan complainant in which leave had been granted only against the acquittal of Zulqarnain son of Muhammad Nawaz co-accused and bailable warrants in the sum of Rs.20,000 returnable to the Assistant Commissioner, Shorkot were issued as against him. Subsequently Munawar Ali Khan complainant moved Criminal Miscellaneous Petition No.66-R of 1986 in Criminal Appeal No.178 of 1983 praying that contempt proceedings be initiated against Home Secretary Punjab Government as well as Inspector-General of Prisons Punjab for ordering parole release of Manzar Abbas and Najam Abbas convicts while their cases were still sub Judaic before this Court. In that criminal miscellaneous petition vide order dated 11th February, 1987, besides the issuance of notices to the Home Secretary Punjab and Inspector-General of Prisons Punjab, notice was also issued to Zulqarnain co-accused and to his sureties to appear in this Court on 28th March, 1987. But since Zulqarnain co-accused did not enter appearance, Criminal Appeal No.179 of 1983 has been separated from this case and shall be kept pending. On the other hand Criminal Miscellaneous Petition No.66-R of 1986 being a separate matter will be disposed of by a separate order. Thus, Criminal Appeal No.178 of 1983 alone is being taken up and disposed of by this judgment.
2. Seven persons, namely, appellants (1) Najam Abbas aged 17 years stated to be armed with knife,
(2) Manzar Abbas aged 20 years stated to be armed with Chhuri and (3) Safdar Abbas aged 24 years stated to be armed with knife, all real brothers being sons of Khadim Hussain, along with co- accused, (4) Zulqarnain son of Muhammad Nawaz aged 26 years stated to be empty handed, (5)
3. Muhammad Akram son of Ahmad Din aged 40 years stated to be armed with spear, (6) Murad Ahmad son of Allah Yar aged 35 years and (7) Mulazim Hussain son of Wali Muhammad aged 32 years, both stated to be armed with spears, were tried by the Sessions Judge Lahore for the offences under section 148/149/302/460, P.P.C. Vide judgment dated 11th November, 1979 appellants Najam Abbas, Manzar Abbas and Safdar Abbas were convicted under sections 302/34 and 449/34, P.P.C. For the murder of Sajid Abbas deceased aged 25 years, their paternal step-uncle, after committing house trespass, and appellants Safdar Abbas and Manzar Abbas were sentenced to death plus fine of 88.10,000 each under section 302/34, P.P.C. They were also sentenced to 10 years'
4. R.I. Plus fine of Rs.5,000 each or in default to undergo further R.I. For one year under section 449/34, P.P.C. Najam Abbas appellant was sentenced to life imprisonment plus fine of Rs.10,000 or in default to undergo further R.I. For one year under section 302/34, P.P.C. He was likewise sentenced to seven years' R.I. Plus fine of Rs.3,000 or in default to undergo further R.I. For one year under section 449/34, P.P.C. The sentences awarded to Najam Abbas appellant were ordered to run concurrently.
5. However in the case of Manzar Abbas and Safdar Abbas appellants, these were ordered to run concurrently if the death sentence awarded to them was not confirmed by the appellate Court.
6. The amount of fine if realised was ordered to be paid to Muhammad Arif Khan P.W.7, father of Sajid Abbas deceased and paternal grand-father of Najam Abbas, Safdar Abbas and Manzar Abbas appellants as compensation. Their co-accused Zulqarnain, Muhammad Akram, Murad Ahmad and Mulazim Hussain were given the benefit of doubt and were acquitted.
7. Najam Abbas, Manzar Abbas and Safdar Abbas appellants filed an appeal against their convictions and sentences. The Sessions Judge made a reference under section 374, Cr.P.C. For the confirmation of sentence of death awarded to Safdar Abbas and Manzar Abbas appellants. The State preferred an appeal against the acquittal of four co-accused, namely, Zulqarnain, Muhammad Akram, Murad Ahmad and Mulazim Hussain; and the complainant party through a revision petition sought the enhancement of the sentence of Najam Abbas appellant from life imprisonment to death. These four connected matters were heard and disposed of vide judgment dated 13th January, 1982 by a Division Bench of the Lahore High Court, Lahore whereby the convictions and sentences awarded by the trial Court to Safdar Abbas appellant were maintained and death sentence imposed upon him by the trial Court was confirmed. So far as Manzar Abbas appellant was concerned his conviction and sentence under section 449/34, P.P.C. Were maintained, but his sentence under section 302/34, P.P.C. Was altered from death to imprisonment for life. The sentences and convictions of Najam Abbas appellant were maintained. On the basis of the State appeal only Muhammad Akram who had been acquitted by the trial Court was likewise convicted under section 302/34, P.P.C. And sentenced to imprisonment for life plus fine of Rs.10,000 or in default to undergo further R.I. For one year. He was also convicted under section 449/34, P.P.C. And sentenced to 10 years R.I. Plus fine of Rs.5,000 or in default to suffer further RA. For a period of one year. The substantive sentences of imprisonment in the case of Manzar Abbas and Najam Abbas appellants and Muhammad Akram co-accused were ordered to run concurrently. While computing their sentences they were given the benefit of the period they had spent under detention before their conviction as provided under section 382-B, Cr.P.C. However, so far as the appeal preferred by the State against the acquittal of Zulqarnain, Murad Ahmad and Mulazim Hussain co-accused was concerned, it was dismissed.
8. Leave to appeal was granted to Najam Abbas, Manzar Abbas and Safdar Abbas appellants Muhammad Akram who was convicted and sentenced by the High Court is stated to have absconded and, therefore, he is not before us. As stated above leave to appeal was also granted to Munawar Ali Khan complainant only against the acquittal of Zulqarnain co-accused, and his petition for leave to appeal against the acquittal of Murad Ahmad and Mulazim Hussain co- accused was dismissed. But as it has been pointed out earlier, that appeal namely Criminal Appeal No.179 of 1983 has been separated from this case.
9. Before proceeding with the facts of the case the relationship inter se of the accused as well as complainant parties may be noted. The three appellants in this case are real brothers and they are grandsons of Muhammad Arif Khan P.W.7 being the sons of his son Khadim Hussain (since dead) from his first wife namely Mst. Ghulam Fatima (since dead). Muhammad Arif Khan P.W. Has a second wife namely Mst. Jamila Begum from whom he had son Sajid Abbas deceased in the present case and daughter Mst. Tahira Bibi P.W.11. Munawar Ali Khan P.W.6 is sister's son of Muhammad Arif Khan P.W. And being husband of Mst. Tahira Bibi P.W. Is also son-in-law of Muhammad Arif Khan P.W. Zulqarnain co-accused is maternal-uncle of the appellants being real brother of their mother namely Mst. Surriya Begum. Muhammad Akram co-accused was stated to be a hired assassin. Murad Ahmad and Mulazim Hussain acquitted co-accused were servants of Najam Abbas appellant and their names did not figure in the F.I.R. Thus, Sajid Abbas deceased was paternal step-uncle of the present appellants.
10. The occurrence took place on 1st January, 1978 at 8-30 p. m. In the house of Muhammad Arif Khan P.W. In village Badh Rajbana, Tehsil Shorkot, District Jhang, at a distance of 4 miles from Police Station Shorkot. The F.I.R. Was lodged at Police Station Shorkot on the same day at 9-30 p.m. By Munawar Ali Khan P.W. And it was recorded by Sardar Ali S.I. P.W.9. The occurrence as reported in the F.I. R. Took place in the following manner: On the fateful day, the deceased, Muhammad Arif Khan P.W. And Mst. Jamila Begum (not produced) mother-in-law of the first informant and mother of the deceased had come from Jhang to village Badh Rajbana where they had adjoining houses.
11. At about 8 p.m..The deceased came to see his sister Mst. Tahira Bibi P.W., Munawar Ali Khan P.W.
12. And their children at their house, and they started talking to one another when at about 8-15 p.m. a servant of the deceased namely Ahmad Khan (not produced) came in to say that Najam Abbas appellant was calling him out. Since Najam Abbas appellant etc. Were grandsons from the first wife of Muhammad Arif Khan P.W. And the deceased was the only son from Mst. Jamila Begum, his second wife and mother--in-law of Munawar Ali Khan P.W. First informant, and that since in the division of the landed property the deceased alone had half the share about which Najam Abbas appellant etc. Had a grudge although the deceased had always adopted a compromising attitude, on receiving the message he went out of the house to meet Najam Abbas appellant. In the prevalent circumstances, Munawar Ali Khan P.W. And his wifeMst. Tahira Bibi P.W. Deemed it fit to follow the deceased. The deceased took Najam Abbas appellant to his own bedroom in the residential house of his father. At that time in a room adjoining to the bedroom were sitting Muhammad Arif Khan P.W., Mst. Jamila Begum, and her brother Fayyaz Ali Khan (not produced).
13. Munawar Ali Khan and Mst. Tahira Bibi P.Ws. Also sat with them. In the meantime the deceased called Ahmed Khan to bring some tea and he took the tray containing tea-pot and cups leaving them inside the bedroom. Thereafter the deceased himself came out to get some biscuits as the tea left by the servant did not contain them. The deceased went back to his bedroom along with the biscuits which he took some time to find. As soon as he entered the bedroom, suddenly its door was bolted and then alarm was raised by the deceased that he should be rescued. On thks Munawar Ali Khan P.W. Along with Muhammad Arif Khan P.W. , Fayyaz Ali Khan, Mst. Jamila Begum and Mst. Tahira Bibi P.W. Suddenly leapt towards the door raising alarm. In the meantime Manzoor Hussain and Ahmad Khan servants (both not produced) who were also attracted by the noise rushed to the spot. They pushed the door open and its bolt was broken. Inside the bedroom the globe lamp was lit. These witnesses saw Najam Abbas appellant armed with knife, Manzar Abbas appellant armed with Chhuri and Safdar Abbas appellant also armed with knife, were causing successive blows on the person of the deceased who was in the fallen condition. Zulqarnain co- accused had pulled the deceased down by his neck with the muffler whereas Mohammad Akram co-accused was standing in the room armed with a spear along with two other persons who were also armed with spears and whom the first informant could identify if they were produced before him. These three were standing near the door and raised a Lalkara to the effect that no one should approach near. In the meantime the appellants leaving the deceased behind in an injured condition ran out from the bedroom along with their companions from the eastern door which had been opened by Najam Abbas appellant for letting them in while the deceased was absent from the bedroom. The eye-witnesses noted various injuries on different parts of the body of the deceased and attended to him. The deceased in an injured condition was being taken to Shorkot Hospital, but he died in the way as a result of the injuries and, therefore, his dead body was brought back to the house. The accused party while running away from the spot had also been seen by some servants and relatives of the complainant party with the help of the light in the courtyard of the house.
14. In support of the facts narrated in the F.I.R. The prosecution had produced three eye-witnesses of the occurrence, namely, Munawar Ali Khan, Muhammad Arif Khan and Mst. Tahira Bibi P.Ws. One Wajtakkar witness had been produced who claimed to have seen the accused party while running away from the spot and he wigs Munir Hussain P.W.8, nephew of Muhammad Arif Khan P.W. But he has not been relied upon by both the Courts below. The other witnesses, some of them who were cited in the F.I.R. Or subsequently introduced as Wajtakkar witnesses, were given up as being unnecessary except Ahmad Khan, servant of the deceased who was sent to call the deceased from the house of Mst. Tahira Bibi P.W. By Najam Abbas appellant, was given up as having been won-over.
15. The motive as set up by the prosecution is that Muhammad Arif Khan P.W. Owned considerable landed property. He had transferred 11 squares of land to his daughter Mst. Tahira bibi P.W., a bungalow constructed in an area of 4 Kanals situate in Gulberg Lahore to the deceased and a bungalow in Jhang having an area of about 11 Kanals along with 11 shops to the mother of the deceased Mst. Jamila Begum. The appellants were under the impression that the land still standing in the name of Muhammad Arif Khan P.W. As also the house at Jhang standing in his wife's name and the land transferred to Mst. Tahira Bibi P.W. Might also be transferred in favour of the deceased in which case he would be getting property worth 50/60 lacs more than the appellants themselves were likely to get. Both the parties belong to the Shia sect. The deceased was entitled to 1/2 of the estate owned by Muhammad Arif Khan P.W. While the other half was to go to the issues of his son from the other wife, namely, Khadim Hussain who himself had children from two wives. The land transferred to Mst. Tahira Bibi P.W. Was also in possession of the deceased and he used to get its produced. Furthermore the deceased had a better status as well as education as compared to the appellants. He was preparing to contest in the Provincial Assembly Elections and then he was getting married to the daughter of his maternal-uncle Fayyaz Ali Khan after the month of Muharram. Thus, the case of the prosecution is that the accused party was jealous of the deceased as he happened to be the son of the favourite wife of their grandfather namely Muhammad Arif Khan P.W.
16. Sardar Ali S.I. P.W. After recording the F.I.R. Arrived at the spot i.e. The house of Muhammad Arif Khan P.W. In village Badh Rajbana at about 10-30 p. m. On the same day and after preparing the injury statement, inquest report etc. Recorded the statements of the eye-witnesses in the light of a patromax lamp. It may be noted at this stage that Muhammad Arif Khan P.W. In his statement under section 161, Cr.P.C. Recorded at 10-30 p. m. On the same day mentioned the names of Murad Ahmad and Mulazim Hussain co-accused as members of the accused party whose names had not been given as such by Munawar Ali Khan P.W. While getting the F.I.R. Recorded. Sardar Ali S.I.
17. P.W. Locked the bedroom where the occurrence had taken place. The next morning he inspected the spot and took into possession broken bolt of the door, blood-stained earth from the floor, broken pieces of saucers and cups, a packet of biscuits, a pair of .Shoes of the deceased and patromax lamp through different memos. He also recorded the statements of the recovery witnesses.
18. Sardar Ali S.I. P.W. Arrested the three appellants on 4January,1978. Hereafter on 9th January, 1978 Sultan Ali S.I. P.W.10 took the appellants in custody to the village for effecting recoveries from them.
19. He accompanied Manzar Abbas appellant to his Dera wherefrp.m the said appellant led to the recovery of human blood-stained Chhuri P.6 from near the mosque by digging it out after removing the earth. This was taken into possession vide memo.
20. Exh.P.N. Then Safdar Abbas appellant led to the recovery of human blood-stained knife Exh.P.7 from a Khola which was lying buried and had been ' taken out by the appellant himself. This was made into a sealed parcel vide memo Exh.P.O. Thereafter Najam Abbas appellant led to the recovery of human blood-stained knife Exh.P.8 from the same Dera near the hand-pump after digging it out from the earth. This was taken into possession vide memo. Exh.P.Q. These recoveries were attested by Munir Hussain P.W.8, Mumtaz Ali (not produced) and Sultan Ali S.I. P.W. It may be pointed out at this stage that the trial Court accepted the recovery evidence although the appellate Court did not place any reliance on the same. Sultan Ali, S.I. P.W. While giving the account in the respect of recoveries stated in the cross-examination that he had returned to the police station a day after the arrest of the appellants i.e. On 5th January, 1978. He obtained remand of the appellants on 5th January 1978 where after he left the police station on 6th January 1978 in connection with someofficial business and returned in the morning of 9th January 1978. t He interrogated the appellants for the first time in connection with the recoveries on 9th January, 1978 after the record of the case was made available to him. He left for the place of recoveries at about 11a.m. On 9th January, 1978. The appellants had offered to lead to the recovery of weapons of offence at about 10 a.m. At that time Munawar Ali Khan P.W. Was present in the police station and Munir Hussain P.W. As well as Mumtaz Ali joined him at 12 noon. He sent for persons from Basti Qasim Wala to witness the recoveries but no one turned up. Even the Chaukidar who was sent to call some residents of the Basti was not willing to become a witness of the recoveries. Munir Hussain P.W . And Mumtaz Ali were joined in the investigation by him because they were stated to be related to both the parties Dr. Munawar Chaudhry P.W.1 conducted post-mortem examination on the dead body of the deceased on 2nd January, 1978 at 2-45 p.m. He noted the following injuries on the dead body:- (1)Oblique incised wound ? x 0.3 c.m. x skin deep on the left side of forehead 5 centi meter above the left eye-brow.
21. (2)Transverse incised wound 2 x 2.3 x 0.8 e.m. On the root ofnose.
22. (3)Longitudely stabbed wound 4 x 1.5 x 2.5 c.m. On the left front chest 7 c.m. Above the left nipple.
23. (4)Oblique stabbed wound 6 x 2 c.m. Into chest cavity deep on the front and middle of the chest 8 c.m. Above and inner to the right nipple.
24. (5)Oblique stabbed wound 4 x 2 c.m. Into chest cavity deep on front left chest 5 c.m. Below and inner to the left nipple.
25. (6)Oblique stab wound 3.1 c.m. Into chest cavity deep on the outer side of left chest 24 c.m. Below the left shoulder.
(7) 'Oblique stab wound 3.1 c.m. Into chest cavity deep on the outer side of the left chest 3 c.m.
26. Outer to the injury No.6.th (8)Stabbed wound 3 x 2 c.m. Into through and through in front of left forearm, 4 c.m. Above the wrist joint.
27. (9)Incised wound 3 x 1 em into bone deep on the back of left arm 8 c.m. Above left elbow joint.
28. (10)Incised wound 3 x 1 c.m. Into skin deep on the back of left forearm 2.5 c.m. Below the left elbow.
29. (11)Incised wound 4 x 1 c.m. Into muscle deep on the inner side of the left arm 5 c. m . Above the left elbow joint.
30. In his opinion the cause of death was shock haemorrhage, internal and external injuries to the vital organs like heart, both lungs and injury to spleen, stomach, intestines, resulting from injuries Nos. 4, 5, 6 and 7 which were sufficient to cause death individually and collectively in the ordinary course of nature. All the injuries were ante-mortem and caused by sharp-edged and sharp-pointed weapons. Duration between injuries and death was immediate and duration between death and post-mortem was about 18 hours. On opening the abdomen, stomach was found to_ contain about 12 ounces of liquid food material. Small intestines contained semi-digested food material.
31. Bladder was full of urine. Injuries Nos.l, 2, 3, 8, 9 and 11 were simple in nature being skin deep which could be caused by the grazing of the knife.
32. The appellants in their statements before the trial Court denied ~' having participated in the occurrence. They disowned the recoveries. Their case was that they had no enmity with the deceased. But Mst. Jamila Begum their step-grandmother was inimical towards them and she had complete hold over Muhammad Arif Khan P. W. The deceased used to canvass their claim with Mst.
33. Jamila Begum and Muhammad Arif Khan P.W. During his lifetime. They had been falsely involved by their grandfather and step-grandmother in this case. They did not produce any evidence in defence. Their stand was that it was a blind murder or an unwitnessed occurrence which might have taken place at the dead of night. .
34. Mr. Muhammad Hayat Junejo, learned counsel for the appellants while commenting on motive as set up by the prosecution submitted that the complainant and the accused parties did not have any dispute pertaining to the division of the property of Muhammad Arif Khan P.W. Referring to the cross-examination of Mst. Tahira Bsbi P.W. He stated that the deceased had always been very cordial with the appellants. At no stage any untoward incident took place between the deceased and his sister on one side and the appellants on theother. The deceased was on friendly terms with the appellants and had always been very kind to them. The appellants also used' to show respect to him. The appellants were always invited to the family functions. The deceased would go out of the way to help the appellants. She could not recall any incident attributable to the deceased which might have displeased the appellants. According to her, as there was no apparent cause of annoyance on the part of the deceased, they all were greatly surprised over the appellants murdering the deceased. According to the learned counsel since there did not exist any dispute pertaining to division of property between the parties, the motive as set up by the prosecution for the commission of the crime was not convincing. In reply to this argument of the learned counsel for the appellants, Mr. A. K. Brohi learned counsel for the complainant submitted that the statement of Mat. Tahira Bibi P.W. Had been erroneously interpreted. She was only describing that the deceased had always been cordial towards the appellant, but so far as the appellants were concerned, she stated that the appellants kept some grievance as against him in their hearts and that the deceased was murdered because he had relied upon the appellants. It was subscription that to establish the motive it was not necessary to show that there did exist some dispute pertaining to the distribution of property at the time of the occurrence. The appellants were certainly jealous of the deceased for numerous reasons like better status, education, participation in the Elections as well as his proposed marriage. It was also submitted that proof of motive or previous ill-will was not necessary to sustain a conviction. The evidence regarding motive is considered in order to judge probabilities. Reliance was placed this connection on 1985 SCMR 269 (Aftab Iqbal v. Manzur Ahmad). It was further submitted that even in a case of unacceptable motive the ocular testimony of quality (as it is available in the present case alone was sufficient to establish guilt and that the absence of motive would not in any manner cloud such testimony. In this connection reliance was placed on 1984 SCMR 124 (127) (Arif and others v. State).
35. While commenting on the quality of the testimony of the eye-witnesses it was submitted by the learned counsel for the appellants that all the three of them produced were interested and hostile with a motive to falsely implicate the appellants. According to the learned counsel for the appellants, Munawar Ali Khan P.W. Had deliberately not mentioned the names of Murad Ahmad and Mulazim Hussain co-accused in the F.I.R., although he was expected to know them, only in order to rope in two more persons as accused afterwards whomsoever the complainant side had wanted. It was submitted that both these co-accused were given the benefit of doubt by the trial Court as well as the appellate Court which obviously indicated that reliance was not placed on the testimony of the three eye-witnesses about their participation, and if they were disbelieved in respect of the participation of these two, how could reliance be placed on them in respect of the participation of the appellants without strong corroboration. Even though a supplementary statement was recorded afterwards of Munawar Ali Khan P.W. In which he named Murad Ahmad and Mulazim Hussain co-accused as they were also named in the statement under section 161, Cr.P.C. Of Muhammad Arif Khan P. W. , F.I . R. Was an important document as it disclosed the facts of occurrence as initially known and thus laid the foundation of the case.- Therefore, discrepancy in names or number of the accused did not deserve to be lightly dealt with. Reliance was placed on 1985 SCM R 1573 (Mujahid Hussain v. State). It was submitted that the ocular testimony in the instant case was uncorroborated as the recovery evidence had been discarded by the appellate Court. It was argued that corroboration had to be looked for and it must be found not only where the witnesses were interested or hostile but also in such cases where by itself the ocular testimony was not so sound and doubt-free as to independently suffice for the conviction of the accused. Reliance was placed on 1982 SCMR 1049 (1051) (Ahmad etc. v .
36. State). It was next submitted that the testimony of the prosecution witnesses had not been believed by the Courts below in regard to the two acquitted co-accused Murad Ahmad and Mulazim Hussain. Therefore, in such circumstances it should have also not been relied upon in the case of the appellants. Reliance was placed on 1982 SCMR 162(165) (Abdul Ghafur v. State). It was then submitted that where it was found that a witness had falsely implicated one 'accused person, ordinarily he should not be relied upon with regard to the other accused in the same occurrence unless testimony of such a witness was corroborated by very strong and independent circumtances regarding the other accused. Reliance was placed on PLD 1985 SC 11(23) (Ghulam Sikandar v. Mamraz Khan). Learned counsel for the complainant in reply to these arguments submitted that the ocular testimony came from natural witnesses of the occurrence. It was argued that the deceased was son of Muhammad Arif Khan P.W. Whereas the appellants were his grandsons from another deceased son. His whole male line had been wiped out in this process. He as an eye-witness of the occurrence had stated that the three appellants were giving successive blows with their respective weapon to the deceased. Therefore, there was no reason whatsoever why the testimony of Muhammad Arif Khan P.W. Should not be accepted against the appellants as he was not only a natural witness but also the real grandfather of the appellants. Even if it be assumed that his relations with the appellants were strained, it would be most unlikely that he would falsely accused them of the murder of the deceased. It was next submitted that the testimony given by Mst. Tahira Bibi P.W. Should also not be considered lightly. Her statement was very natural. The deceased was her only brother. She stated how kind and cordial he was with the appellants but had been murdered by them only because he trusted them. She even wept at one stage while getting her testimony recorded particularly when she described that the deceased was rolling and twisting on the floor when he was being given the injuries by the appellants. It was further pointed out that even though MunaWar Ali Khan P.W. Did not name Murad Ahmad and Mulazim Hussain acquitted co-accused in the F.I.R. Which was recorded at 9-30 p.m. On the day of occurrence, just an hour after at 10-30 p.m. Statement of Muhammad Arif Khan P.W. Was recorded by the 'investigating officer under section 161, Cr.P. C. As well as of other eye-witnesses. A supplementary statement of Munawar Ali Khan P.W. Was also recorded. In these statements names of Murad Ahmad and Mulazim Hussain acquitted co-accused were mentioned. It was submitted that according to the version of the eye-witnesses the presence of the members of the accused party on the spot was established. First of all Najam Abbas appellant had entered the bedroom of the deceased along with him. Thereafter while the deceased himself came out from the bedroom to get some biscuits for him, in his absence Najam Abbas appellant opened the eastern door which led to the bath-room so that the other members of the accused party could enter. Then as soon as the deceased came back with biscuits the door of the bedroom was bolted and he was attacked. On the alarm of the deceased the inmates of the house namely the three eye-witnesses rushed to the door of the bedroom and pushed it open. The broken bolt as well as broken cups and saucers, packet of biscuits picked up from the spot were pieces of circumstantial evidence which were supporting the ocular testimony in the instant case. It was submitted that where an eye- witness is related to both the parties then in the absence of anything to show that he had any leaning towards the deceased, his testimony should be accepted against all the assailants and in such a case necessity of corroboration is ruled out. Reliance was placed on 1984 SCMR 124 (127)
37. (Arif etc. v. State).
38. It was next submitted by the learned counsel for the appellants that the missing link of the prosecution story was the servant of the deceased, namely, Ahmad Khan who was sent to call the deceased from the house of Mst. Tahira Bibi P.W. And, thereafter who also took in a tray containing tea-pct, cups, etc. To the bedroom. He deliberately had not been examined, but given up as won- over. Had he been produced he could have stated as to what the correct position was. It was argued that the occurrence might have taken place at a later part of the night. Someone might have come in the bedroom of the deceased who was friendly with him and to whom he might have offered tea and biscuits but thereafter he was killed by this assailant unwitnessed by anyone.
39. The learned counsel tried to show through the medical evidence that the occurrence might have taken place later in the night. Learned counsel for the complainant in reply submitted that Ahmad Khan was given up as he had been won-over which indicated that the appellants were not people without influence. It was argued that if the defence thought that he was an important witness then they could have moved an application before the trial Court for summoning him as a court witness and could have subjected him to cross-examination, but this was not done. According to the learned counsel for the complainant the entire trend of the cross-examination in this case was that according to the defense some unknown assailant had murdered the deceased at later part of the night and it was an unwitnessed occurrence. Even the cross --examination was abused in this case when such suggestions were made to the witnesses that the deceased was a womeniser and was carrying on with some women in the village. This was done with an object only to humiliate a dead person because the defence was trying to show that the deceased had been murdered by some friendly person whom he had offered tea and biscuits before he murdered him. It was submitted that it could not be shown through the medical evidence that the occurrence had taken place at a later part of the night. The nature and particularly the dimensions of the injuries on the person of the deceased indicated that he was done to death by more than one kind of weapons of offence. The defence theory therefore, did not find support from the medical evidence.
40. Learned counsel for the appellants further argued that the recoveries in his case had been rightly disbelieved by the appellate Court. It was submitted that the police arrested the appellants on 4th January, 1978 but the recoveries were made on 9th January, 1978. Therefore, the appellate Court had correctly arrived at the conclusion that in the intervening period the appellants had enough time to destroy the weapons of offence if, in fact, they were in possession of the same. Learned counsel submitted that where a crime weapon was recovered after 5 days of the accused's arrest, the recovery was held to be doubtful. Reliance was placed on 1985 SCMR 160 (Muhammad Tasneem v. State). (This authority is distinguishable as in that case the accused was said to have informed the police as to where the crime weapon was lying at the time of his arrest). Reliance was also placed by the learned counsel on 1983 SCMR 958 (Abdur Rehman v. State) in which crime weapon was recovered after a long delay of 14 days and the recovery was held not reliable. It was submitted by the learned counsel that the only public witness attesting these recoveries was Munir Hussain P.W. Nephew of Muhammad Arif Khan P.W. Whose testimony as Wajtakkar witness was not relied upon by both the Courts below. He had rightly not been relied upon by the appellate Court so far as the recoveries were concerned. It was further submitted that it is the duty of the investigating officer to get the recoveries attested by unconnected and independent witnesses as mashirs. If sometimes it is difficult for the police to obtain independent witnesses as mashirs then it is for the prosecution to explain how it could not obtain them. Reliance was placed on 1980 SCM R 225 (Rasul Bux etc v. State). It was next submitted that in the peculiar circumstances of this case since there was no corroboration forthcoming of the ocular testimony, the appellants were entitled to the benefit of doubt. Learned counsel for the complainant in reply to these arguments submitted that the recovery evidence had been relied upon by the trial Court in this case and cogent reasons had been given. Human blood-stained Chhuri and knives were recovered at the instance of the three appellants and these recoveries had been attested not only by Munir Hussain P.W. But also by Sultan Ali S.I. P.W. Sultan Ali S.I. P.W. Had explained that he could not obtain any independent witness to attest the recoveries and that Munir Hussain P.W. Had visited the police station on the day of the recoveries as he had gone there to see Munawar Ali Khan P.W. It was submitted that he might have been disbelieved as a Wajtakkar witness but he could not be disbelieved as an attesting witness of the recoveries merely for the reason that he was son of the sister of Muhammad Arif Khan P.W. It was next submitted that there was nothing on the record to show that the police officer Sultan Ali S.I. P.W. Who was an attesting witness of the recoveries had conducted the investigation in a dishonest manner. He fully explained the position in his cross-examination as to how the recoveries were effected and how he could not obtain an independent attesting witness in this case. In other words he fully complied with the conditions laid down in 1980 SCM R 225 Rasul Bux etc. v. State. Thus since there was nothing on the record to show that he had conducted the investigation in a dishonest manner, his testimony alone was sufficient as an attesting witness of the recoveries and reliance should have been placed on them. It was then submitted that in this case all the appellants themselves led the investigating officer to the spots where crime weapons lay buried in the ground. They took them out and hence their special knowledge unmistakably led to the conclusion of their vicarious possession of the crime weapons. Reliance was placed on 1984 SCMR 1382 (Nazir Hussain v. State). According to the learned counsel for the complainant the appellate Court had no justification in, disbelieving the recovery evidence which fully corroborated the ocular testimony so far as the participation of the three appellants in the commission of crime was concerned. It was next submitted that in any case corroboration was only a rule of prudence for safe dispensation of criminal justice. Insistence on corroboration of testimony of witnesses in each and every detail may always be not called for.
41. Such facts that the P.Ws. Were interested or inimical were alone not sufficient to altogether discard their evidence. Reliance was placed on PLD 1977 SC 413 (Shahzao v. State). It was submitted that the present occurrence took place in the evening when every one was awake. The appellants were specifically mentioned in the promptly lodged ~ F.I.R. Furthermore the version given in the F. I. R.
42. About the parts ascribed to the appellants received full support from the medical and circumstantial evidence. Thus, in such circumstances it was not necessary even to look for corroboration. Reliance was placed on PLD 1976 SC 452 (Muhammad Sharif v. Muhammad Javed).
43. The Assistant advocate-General Punjab appearing for the State adopted the arguments of learned counsel for the complainant.
44. Lastly an alternative argument was advanced by the learned counsel for the appellants to the effect that the trial Court while maintaining the conviction of Najam Abbas appellant under section 302/34, P.P.C. Awarded lesser penalty to him for the reason that he was the youngest of the brothers. He was about 15 years old when the occurrence took place and was of an impressionable age. Therefore, he might have acted under the influence of his elder brothers. Thereafter it was submitted that the appellate Court while maintaining the conviction under section 302/34, P.P.C. Of Manzar Abbas appellant likewise altered his sentence of death to imprisonment for life for the reason that he too was about 18 years of age at the time of the occurrence and therefore, like Najam Abbas appellant it was reasonably probable that he had also acted under the influence of his elder brother. According to the learned counsel since both Manzar Abbas and Najam Abbas appellants had been awarded lesser penalty, Safdar Abbas appellant may also be awarded lesser penalty for there was no method to ascertain as to whether his blows to the deceased could be considered as fatal. In reply to this argument, learned counsel for the complainant submitted that since the murder of the deceased had been committed by all the three appellants in a gruesome manner right under the eyes of the eye-witnesses including their own real grandfather and specific parts having been ascribed to them in the commission of crime, all of them deserved that the normal death penalty should have been imposed on them which should have been subsequently confirmed by the appellate Court.
45. We have heard learned counsel for the parties at considerable length. It has been argued that there was no property dispute existing between the parties at the time of the occurrence and, therefore, motive as set up by the prosecution was not established. It may be so that there did not, in fact, exist any such dispute, but in the feudal background of the parties it is reasonably probable that there was some concealed grievance or jealousy in the hearts of the appellants as against the deceased although outwardly it was not visible. The next question which is relevant in this connection is as to what was`' the urgency in accomplishing the motive, if any. As suggested by the learned counsel for the complainant that may be it was the proposed marriage of the deceased which was to take place after the month of Muharram because a new member would be added to the family, the possibility of children being born and the grandfather bestowing further favours on him. Thus, it could be safely stated that there was an element of treachery and deceit in the conduct of the appellants apparent also through their abuse of the cross-examination whereby the intention was to scandalize the deceased after his murder for the construction of their defence.
46. It may, be noted that principles laid down in criminal cases are always founded on the facts and circumstances of each case and cannot be loosely applied in an omnibus manner. However, this is a case in which proof of motive or previous ill-will was not necessary to sustain a conviction. It was a case in which ocular testimony of a very convincing nature and very high quality had been produced and, therefore, even if apparently the immediate cause or motive were absent, it alone was sufficient to establish the guilt and the absence of immediate cause would notcloud such testimony. In support of this finding 1985 SCMR 2691 (Aftab Iqbal v. Manzur Ahmad) and 1984 SCMR 124(127) (Arif and others v. State) can be cited. The ocular testimony in this case came forth from natural witnesses and so far as the part ascribed to the appellants was concerned it is absolutely consistent. Learned counsel for the appellants had attempted to argue that since Munawar Ali Khan P.W. Did not mention the names of Murad Ahmad and Mulazim Hussain co- accused in the F.I.R., all the eye-witnesses should not be believed because due to their being interested and inimical, the possibility could not be ruled out that they intended to implicate innocent persons in the commission of crime. It is difficult to agree with the learned counsel on this point. Munawar Ali Khan P.W. Alone had proceeded to the police station to lodge the report. The report was lodged promptly within an hour. The police came to the spot and within another hour one of the police officers recorded the statement' of Muhammad Arif Khan P.W. Who named both the aforesaid acquitted co-accused. Then supplementary statement of Munawar Ali Khan P.W.
47. Was recorded and he had also named them. All the members of the accused party likewise figure in the statement of Mst. Tahira Bibi P.W. If one were to take an overall view respecting the quality of the.. Ocular testimony then it may be noted that with the exception of Murad Ahmad and Mulazim Hussain acquitted co-accused all the other members of the accused party including the appellants had been implicated or prima facie involved. For instance the trial Court had convicted the three present appellants only, but the appellate Court accepting the State appeal against acquittal of Muhammad Akram co-accused had convicted and sentenced him. So far as Zulqarnain co-accused is concerned and whose case has been separated, leave to appeal against his acquittal had already been granted by this Court. Thus, Murad Ahmad and Mulazim Hussain, who may also have been present, are the only co-accused who were acquitted mainly for the reason that their names did not figure in the F . I . R . And that F . I . R . Being an important document, such an omission was not to be lightly dealt with. So these two co-accused were given the benefit of doubt only in view of the principle laid down in 1985 SCM R 1573 (Mujahid Hussain v .
48. State). It was vehemently argued that the ocular testimony in the instant case was uncorroborated, but it is difficult also to agree with the learned counsel for the appellants on this point. The R ocular testimony in this case is admittedly supported by the medical evidence and other pieces of circumstantial evidence -like the broken bolt, broken cups and saucers, packet of biscuits etc. Picked up from the spot. But then the nature of the ocular testimony by itself is so convincing in the facts and circumstances of this case that no corroboration may be required. The principle laid down in 1984 SCM R 124 (127) (Arif and others v. State) is fully applicable to the facts and circumstances of the present case.
49. So far as the recovery evidence is concerned, it had been accepted by the trial Court, but discarded by the appellate Court as a corroborative piece of evidence. Both the Courts below have not taken into consideration the evidence of the police officer, namely, Sulan Ali S.I. P.W. Who was one of the attesting witnesses of the recoveries and against whom there is nothing on the record to the effect that he had conducted the investigation in a dishonest manner. In fact in his cross- examination he explained how the recoveries were effected and how he tried his best to obtain an independent attesting witness in this case but failed. Furthermore cogent reasons were given for the presence of Munir Hussain P.W. At the police station on the day when the recoveries were effected and who joined the investigation. In other words this police officer complied with the conditions laid down in 1980 SCMR 225 (Rasul Bux etc. v. State). Since there was nothing on the record to show that he had conducted the investigation in a dishonest manner, his testimony alone was sufficient in this respect and reliance should have been placed on him. A Police Officer against whom there is no allegation of dishonest investigation apparent on the record is as good an attesting witness of a recovery as is any independent attesting witness of the same. Besides that the occurrence took place on 1st January, 1978. The appellants were arrested on 4th January, 1978 and the recoveries were effected on 9th January, 1978. So the crime weapons were recovered after 5 days of the arrest of the appellants, and according to the prosecution evidence the police officer interrogated them about the recoveries on that very day. They led the police officer to the spots where the crime weapons lay buried in the ground and each of them .Himself dug them out. Hence only they had special knowledge where the crime weapons were lying. These crime weapons were all found to be stained with human blood. Consequently the appellate! Court had no justification in discarding the recovery evidence merely for the reason that within the intervening period of four days the appellants could have destroyed the recoveries if they were in possession of the same. It is, therefore, evident that the ocular testimony in the instant case which is supported by the medical evidence and pieces of circumstantial evidence is also being .Fully corroborated by the recovery evidence so far as the implication of the appellants was concerned. It has been held above that the ocular testimony in this case is of such a convincing nature that it is by itself sufficient to establish the guilt of the appellants and in the peculiar circumstances of this case, it does not even require corroboration. However, if corroboration is to be sought in order to strengthen its credibility, it is available in the form of recovery evidence which was erroneously discarded by the appellate Court.
50. The alternative argument of the learned counsel for the appellants to the effect that since Najam Abbas appellant was awarded lesser penalty by the trial Court and the sentence of Manzar Abbas appellant was also altered to life imprisonment by the appellate Court, therefore, the sentence of Safdar Abbas appellant should likewise be altered from death to that of imprisonment for life, is of no persuasive value. Ordinarily all the three appellants should have been awarded the maximum penalty in the circumstances of the present case. However both the Courts below found that there was an extenuating circumstance in favour of the awarding of lesser penalty in the cases of Najam Abbas and Manzar Abbas appellants, because the first was aged 15 years and the second was aged 18 years at the time of occurrence and that in that view of the matter they might have acted under the influence of their elder brother namely Safdar Abbas appellant. But the ground urged for awarding lesser penalty to Safdar Abbas appellant would not be a good ground for altering his sentence from death to that of imprisonment for life, as there is no extenuating circumstance so far as he is concerned. He as the elder brother of the other two was certainly of responsible age, and was expected to restrain the younger brothers instead of joining them in the commission of crime.
51. In such circumstances to draw an inference to the effect that the younger ones might have acted under his influence was quite reasonable and proper. I, therefore, do not find any force in this argument of the learned counsel for the appellants.
52. In the light of the above discussion, I am of the view that the judgment of the Lahore High Court is unassailable and does not call for any interference. The result is that this appeal has no substance and it is accordingly dismissed.
53. MUHAMMAD HALEEM, C.J.-- I agree.
54. SHAFIUR RAHAMAN, J.-- I agree.
55. ALI HUSSAIN QAZILBASH, J.-- I agree.
56. NASIM HASAN SHAH, J.--I have perused the judgment prepared by my learned brother Javid lqbal, J. Since 1 view the case a bit differently from him I am venturing to say a few words of my own.
57. The version of the incident, according to the prosecution, is, that Sajid Abbas (deceased), who was then in the house of his sister Mst. Tahira Begum, which adjoins the house of his father Muhammad Arif Khan P. W. , was informed by Ahmad Khan (his servant) at about 8-15 p.m. That Najam Abbas appellant wanted to meet him whereupon the deceased came out and took Najam Abbas to his own bedroom in the residential house of his father. Being somewhat apprehensive by this sudden visit of Najam A bbas, Muhammad Arif Khan P. W. , his wife Mst. Jamila Begum and her brother Fayyaz Ali Khan (not produced), Munawar Ali Khan, the brother-in-law of the deceased and his sister Mst. Tahira Begum P.Ws. Kept sitting in a room adjoining the aforesaid bedroom. During this period the deceased called Ahmad Khan to bring some tea and he took the tray containing tea- pot and cups which he left inside the bedroom. Thereafter, the deceased himself came out to get some biscuits because the servant had only brought plain tea for them. After searching for the biscuits, which took some time, the deceased went back to his bedroom along with the biscuits. As soon as he entered the bedroom the door was suddenly bolted and an alarm was raised by the deceased for being rescued. On this Munawar Ali Khan P. W. Along with Mu hammad Arif Khan P. W. , Fayyaz Ali Khan, Mst. Jamila Begum and Mst. Tahira Bibi P.W. All leapt towards the door raising alarm. In the meantime Manzoor Hussain and Ahmad Khan servants (both not produced), who were attracted by the noise, also rushed to the spot. They pushed the door open and saw that Najam Abbas appellant armed with knife, Manzar Abbas appellant also armed with Chhuri and Safdar Abbas appellant, who too was armed with knife, were inflicting successive blows on the person of the deceased who had fallen down on the floor. Zulqarnain, a co-accused, was holding the deceased down by his neck with the muffler whereas Muhammad Akram, co-accused and two others armed with spears were standing near the door and raised a Lalkara to the effect that no one should approach the victim. Scared by this Lalkara no one of the seven persons who had leapt towards the bedroom of the deceased to rescue him raised a finger or even his voice or do anything to help Sajid Abbas although he was being butchered before their very eyes, in their own house.
58. I would normally have never accepted such a story but I also see that on the other hand Muhammad Arif Khan P.W.7 is the real grandfather of the appellants and how much so ever he may be playing into the hands of his second wife Mst. Jamila Begum (the mother of Sajid Abbas deceased) it is impossible to conceive that he would falsely implicate his own grandsons in an offence of murder unless they were, indeed, involved in this ghastly deed. Hence after much reflection I consider that my learned brother's conclusion that all the three appellants had participated in this ghastly incident and they were liable to be convicted under section 302, P.P.C., seems to be correct.
59. However, I cannot agree with him in affirming the sentence of death passed against Safdar Abbas.
60. In my opinion he too could not be imposed any punishment severer than that imposed on his brothers Manzar Abbas and Najam Abbas, namely, the punishment of life imprisonment. I am fortified in the above view by a judgment of this Court in Shaheb Ali v . The State PLD 1970 5. C . 447.
61. In this case too three brothers had attacked a person concertedly and relentlessly under a pre- arranged plan and killed him. The High Court had sentenced only one brother to death and to the rest had awarded the lesser penalty and the question before the Supreme Court was whether this discrimination made in the matter of sentence between the three brothers was justified? In this connection Sajjad Ahmad Jan, J. Speaking for the Court said:- "In the present case, the decision made by the learned Judges of the Division Bench of the High Court in confirming the death sentence of the appellant only and commuting that of the others and the failure of the State to appeal for the enhancement of the sentences of the latter has complicated the matter. The result achieved is an unwarranted and unfair distinction in the sentence of the appellant which is bound to induce a feeling in him that he has been made a scapegoat to atone with his life not only for his own sin but also of that of his brothers for having killed the deceased. The public reaction on such a discriminatory treatment, there being no valid basis for this discrimination, would, in my judgment, be one of a sad comment on the vagaries of the legal machinery and its working by the Courts. .
62. I am conscious of the fact that this Court is not clearing house or a corrective forum to revise the sentences passed by competent Courts in criminal cases. It is certainly not the function of this Court to interfere and tinker with legal sentences so awarded. However if the sentence is found to have been measured fancifully in breach of recognised principles of natural justice, this Court, in the interest of justice and fairplay, must intervene.
63. Speaking frankly, I have been put to a considerable strain in making up my mind in this case. The question that has tossed my mind is; shall I uphold the sentence of the appellant or shall I scale it down to that of the co-accused? If I uphold it, do I not approve of the mistake of the. High Court in creating an adverse distinction in the case of the appellant from that of the others, although in point of fact no such dinctinction exists? If I alter the sentence, shall I not be committing the same mistake which has been committed by the High Court in withholding the normal penalty of death for what has been found to be wanton and heartless murder.
64. In this wavered state of mind, I have thought it better to err in favour of the condemned-appellant rather than against him and for the additional reason that he has now been under the agony of a death sentence for a little less than two years. It is also obvious that in the commission of this crime, he has not acted singly on his own, but has acted under the active influence and with the collaboration of his other two brothers, one of whom is elder and the other younger to him, and both of whom have got away in this crime with a lesser punishment.
65. In the circumstances, I feel constrained to accept this appeal to the extent of modifying the appellant's sentence of death to that of transportation for life."
66. This case is almost identical, except that Safdar Abbas appellant is the eldest brother and not the middle one as was the position in the precedent case. But this distinction is hardly material in face of the circumstance that Safdar Abbas too was only 22 years of age at the time of the occurrence and the treacherous role in this gruesome incident is attributed to Najam Abbas who had been received with affection by the deceased, taken into his own bedroom by him- and served with tea but while he was absent from the room in search of some biscuits for him, the ungrateful nephew (Najam Abbas) opened the rear eastern door to facilitate the other assailants to enter into the room and thereafter brutally murdered the deceased with the help of his other two brothers.
67. In these circumstances the theory that the younger brothers must have acted under the influence of Safdar Abbas is hardly sustainable and, therefore, the situation obtaining in the present case is similar to that in the precedent case, to wit, that no valid basis existed for making any distinction between the three appellants in the matter of sentence.
68. I would, therefore, in these circumstances following the course adopted in Shaheb Ali's case PLD 1970 SC 447 accept this appeal to the extent that I would reduce the sentence of death passed against Safdar Abbas to imprisonment for life. I would also extend to him the benefit of the provisions of section 382-B, Cr.P.C. In the matter of computation of sentence. The appeal is allowed only to the above extent.
69. ORDER OF THE COURT In accordance with the opinion of the majority the appeal is dismissed.
70. K.B.A./S-64/S