' ABDUL WHAEED, J.-- Khan Badshah (60), Amir Badshah (56), Jannat Shah (62/63), Salim Badshah
(30) and Zar Wali (35) were tried under sections 148 and 302/149, P.P.C. For forming an unlawful assembly armed with fire-arms and in prosecution thereof committing the murder of Ghulam Shah (50), Ata Muhammad (36), Mehr Zaman (30) and Muhammad Hassan (60) by the Additional Sessions Judge, Mianwali who vide his judgment, dated 27th of February, 1985 while acquitting Zar Wali by giving him benefit of doubt convicted the remaining four under section 302/34, P.P.C. And sentenced them each to death on each count and to pay a fine of Rs,3,000 on each count or in default to suffer R.I. For a period of one year on each count. It was directed that the fine, if realized, be paid to the heirs of the four deceased equally.
2. The convicts have filed an appeal against their conviction and sentence. The learned trial Court also has submitted a reference under section 374, Cr.P.C. For confirmation of the sentence of death.
The complainant too has filed a revision petition for enhancing the amount of fine imposed on the convicts. This judgment shall dispose of all the three matters.
3. The occurrence took place on 19th of July, 1981 at 7-00 a.m. In village Mallakhel, about fifteen miles away from Police Station Kamarmushani, District Mianwali. It was reported at Police Station Kamarmushani on the same date at 10-30 a.m. By Noor Muhammad P.W. 10 vide F.I.R. Exh.P.J. Which was recorded by M.H.C. Muhammad Zarif P.W.5 (Since a copy of the F.I.R. Exh.P.J. Submitted with the challan was illegible, its second copy was removed from the police file and admitted in evidence as Exh.P.J./1).
4. All the four appellants are real brothers, being the sons of Gul Shah. Ghulam Shah deceased was the brother of Ata Muhammad deceased while Mehr Zaman deceased was the brother of Muhammad Hassan deceased. Five eyewitnesses had been cited in this case. Out of them Awal Badshah was given up as having been won over. Out of the remaining four eye-witnesses, Noor Muhammad P.W.10 who is the complainant and Ghulam Muhammad P.W.11 are the brothers of Ghulam Shah and Ata Muhammad deceased while Ghulam Haider P.W.12 is married to their sister and his sister was married to Ghulam Shah deceased. Muhammad Yousaf P.W.13, the fourth eye- witness, is the son of Muhammad Hassan deceased.
5. The prosecution case briefly was that the deceased were the tenants of Zar Badshah while the appellants were the tenants of Inayat Ullah Khan. The land under cultivation of both the parties was irrigated by rain water which flowed through Tarppi Nalla. There existed a dispute between the parties about their respective shares in the rain water. While the complainant party claimed that their share was 8/9, the appellants asserted that the shares of the parties were half and half. This dispute was lingering on for about 2-1/2 years prior to the occurrence. On the night preceding the day of occurrence, it had rained and the rain water started flowing in the Tarappi Nalla. On the day of occurrence at 7-00 a.m. Ghulam Shah and Ata Muhammad deceased alongwith Noor Muhammad P.W.10 were irrigating their land from the rain water when all the four appellants and Zar Wali armed with guns came there. Zar Wali by a Lalkara exhorted the appellants to teach them a lesson as they always diverted the water to their land. Amir Badshah fired from his gun hitting Ghulam Shah deceased on the neck. Khan Badshah also fired from his gun hitting Ata Muhammad deceased on the back. Then all the four appellants fired from their guns hitting both Ghulam Shah and Ata Muhammad deceased. As a result of the injuries, both the deceased fell down and expired.On hearing the gun reports, Ghulam Muhammad P.W.11 and Ghulam Haider P.W.12 who were present nearby rushed to the spot and on seeing the occurrence raised an alarm. Zar Wali raised another Lalkara that Mehr Zaman and Muhammad Hassan deceased were coming and they also be killed. The appellants ran towards them. Noor Muhammad P.W.10 also chased them taking precautions for the safety of his life. At some distance Jannat Shah appellant fired from his gun hitting Muhammad Hassan deceased on the abdomen and Salim Badshah fired from his gun hitting Mehr Zaman on the back side of his head. Then all the four appellants fired from their guns hitting both the deceased as a result of which they died at the spot. Muhammad Yousaf P.W.13 and Awal Badshah had rushed to the spot on the Lalkaras of Zar Wali. They also saw the occurrence and entreated the appellants. After the occurrence all the appellants fled away.
6. Leaving the eye-witnesses at the spot near the dead bodies, Noor Muhammad P.W.10 repaired to the police station and lodged the report.
7. A.S.I. Anwar Hussain P.W.17 was in those days posted as Head Constable, incharge of the Police Post Makerwal, within the jurisdiction of Police Station Kamarmushani. On receipt of a copy of the F.I.R. Of this case while he was in village Sultankhel on patrol duty, he proceeded to the spot. He prepared injury statement Exh.P.HH and inquest report Exh.P.HH/1 in respect of Muhammad Hassan deceased, injury statement Exh.P.JJ and inquest report Exh.P.JJ/1 in respect of Mehr Zaman deceased, injury statement Exh.P.KK and inquest report Exh.P.KK/1` in respect of Atta Muhammad deceased and injury statement Exh.P.LL an inquest report Exh.P.LL/1 in respect of Ghulam Shah deceased and despatched the dead bodies to the mortuary for post-mortem examination.
According to this witness the distance between the place where the dead bodies of Muhammad Hassan and Mehr Zaman were lying and the place where the dead bodies of Ata Muhammad and Ghulam Shah were lying was about 300 Karams. On the same day, S.I. Abdur Razzaq P.W.18 S.H.O.
Police Station Kamarmushani visited the spot at 4-00 p.m. He secured blood-stained earth from the four places where the dead bodies of the four deceased were lying and sealed the same into separate parcels vide memo. Exhs. P.R., P.S., P.T. And P.U. He searched for the appellants and Zar Wali, the acquitted co-accused but was able to arrest only Zar Wali on 25th of July, 1981. On 29th of July, 1981, Khan Badshah appellant was arrested by Head Constable Anwar Hussain P.W.17 on which date he surrendered near a brick kiln close to Kamarmushani. This appellant produced gun P.14 and two live cartridges P.15/1-2 and the Head Constable took them into possession vide memo.
Exh.P.M. In the presence of Shaista Khan P.W.7 and Jehan Khan (not produced). On the same date, Jannat Shah appellant also surrendered himself before S.I. Ghulam Haider P.W.14 near a brick kiln and produced gun P.16 and three live cartridges P.14/1-3. The S.I. Took them into possession and made them into a sealed parcel vide memo. Exh.P.N. In the presence of Soorat Khan P.W.8 and Mohabbat Khan (not produced). Salim Badshah and Amir Badshah appellants could not be traced out. On the applications Exhs. P.X and P.Y. Of S.I. Ghulam Haider filed on 25-8-1981 warrants P.Z. P.Z./1 for their arrest were obtained. They were entrusted to F.C. Muhammad Aslam P.W.16 but the same were returned unexecuted because the appellants were not arrested. On 12th of September, 1981 on the application Exh.P.AA and Exh.P.BB of the S.I. Proclamations were issued against the two appellants which were duly served by F.C. Muhammad Aslam P.W. On 30th of September, 1981 on receipt of a secret information, S.I. Ghulam Haider P.W. Raided Bus Stand Jattanwala and arrested from there Salim Badshah and Amir Badshah appellants. Salim Bach bah appellant was found in possession of gun P.17 and two live cartridges P.18/1-2 and Amir Badshah was found in possession of gun P.19 and two live cartridges P.20/1-2. These articles were taken into possession vide memo.
Exh.P.O. And Exh.P.C). In the presence of Ghulam Sarwar P.W.9 and Ghulam Yasin (not produced).
Before that date Zar Wali on 4th of August, 1981 had led to the recovery of gun P.21 and a live cartridge P.22 from his house and the same were taken into possession vide memo. Exh.P.V attested by Ghulam Hussain and Gul Nawaz (not produced).
8. On the completion of the investigation as above, all the appellants and their co-accused were challaned.
9. On 19th of July, 1981 at 4-45 p.m. Dr. Muhammad Mushtaq Ahmad P.W.1 performed post-mortem examination on the dead body of Mehr Zaman and found the following injuries:-
(1) An entrance wound of fire-arm 1/2 c.m. x 1/2 c.m. On the back of lower zone of left chest 3 c.m.
From the mid line.
(2) An entrance wound of fire-arm 1/4 c.m. x 1/4 c.m. On the back of upper part of left forearm with exit wound 1/2 c.m. x 1/2 c.m. On the middle of inner side of left forearm.
(3) A grazed wound of fire-arm 2 c.m. x 1 c.m. On the lateral wall of middle zone of left chest.
(4) An entrance wound of fire-arm 1-1/2 c.m. x 3/4 c.m. On the back of left side of head 4 c.m.
Above and behind the left ear.
10. In the opinion of the Medical Officer the death had occurred due to shock and haemorrhage as a result of injury No,4 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. A pellet recovered from the left side of brain was sealed in a container. The probable interval between the injuries and the death was instantaneous while between the death and the post-mortem examination was within 12 hours.
Exh.P.A. Is the post-mortem examination report and Exh.P.A./1 is the diagram showing the locale of the injuries.
11. On the same date at 6-00 p.m. The above Medical Officer conducted autposy on the dead body of Muhammad Hassan and found the following injuries:-
(1) An entrance wound of fire-arm 4 c.m. x 3 c.m. On the front of left side of abdomen 7 c.m. Away from the mid line. An intestinal loop was prolapsed in the wound. Dark blood was running out of the wound. Blackening was present around the wound.
(2) Four exit wounds on the back and lateral wall of right abdomen in an area of 7 c.m. x 6 c.m., size of each wound being 3/4 c.m. x 1/2 c.m.
(3) An entrance wound of fire-arm 1/2 c.m. x 1/2 c.m. On the inner side of right forearm 5 c.m. Below right elbow joint.
(4) Three grazed wounds of fire-arm on the ulnar side of right forearm in an area of 5 c.m. x 4 c.m.
In the middle of right forearm.
(5) An entrance wound of fire-arm 1/2 c.m. x 1/2 c.m. On the front of middle of right forearm.
12. In the opinion of the Medical Officer, the cause of death was shock and haemorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and caused by firearm. Two pellets were recovered from the dead body and sealed into a packet P.7. The probable time that elapsed between the injury and the death was about 10 to 15 minutes and between the death and the post-mortem examination within 12 hours. Exh.P.B. Is the post-mortem examination report and Exh.P.B./1 is the sketch of the injuries.
13. On 20th of July, 1981, at 6-10 a.m. The above Medical Officer conducted autopsy on the dead body of Ata Muhammad deceased and found the following injuries:-
(1) An entrance wound of fire-arm 1/2 c.m. x 1/2 c.m. On the back of left side of head 7 c.m. Behind and below the left car with its exit wound 3/4 c.m. x 1/4 c.m. On the top of left side of head 8 c.m.
Above the left ear.
(2) Six entry wounds of fire-arm on the hack of middle zone of left chest in the post axillary line in the area of 5 c.m. x 4 c.m. Size of each wound was 1/2 c.m. x 1/2 c.m. Dark blood was running out of it.
' Blackening was present around the wounds. Three entrance wounds of fire-arm on the back of lower 1/3rd of left upper arm in an area of 4 c.m. x 4 c.m. Size of each wound was 1/2 c.m. x 1/2 c.m.
Blackening was present around the wounds. Its exit wounds 3 in number were situated on the inner side of middle of left forearm in an area of 5 c.m. x 4 c.m. Size of each wound was 3/4 c.m. x 3/4 c.m.
14. In the opinion of the Medical Officer, the cause of death was shock and haemorrhage as a result of injuries Nos.1 and 2 which were individually and collectively sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. The probable interval between the injuries and the death was instantaneous and between the death and the post-mortem examination was about 24 hours. Five pellets recovered from the left chest of the dead body were sealed in a packet P.10 Exh.P.C. Is the postmortem examination report and Exh.P.C./1 is the sketch of the injuries.
15. On the same date at 7-00 a.m. The above Medical Officer performed post-mortem examination on the dead body of Ghulam Shah deceased and noticed the following injuries:-
(1) Four entrance wounds of fire-arm on the top of left shoulder in an area of 6 c.m. x 3 c.m. Each of the wound was 1/2 c.m. x 1/2 cm.
(2) A grazed wound of fire-arm on the front of left shoulder joint. Size was 2 c.m. x 3/4 c.m.
(3) An entrance wound of fire-arm 3-1/2 c.m. x 1-1/2 c.m. On the top of left shoulder joint 2 c.m. Inner to injury No,l.
(4) An entrance wound of fire-arm 1/2 c.m. x 1/2 c.m. On the left side of neck 6 c.m. Above left clavicle with exit wound 3/4 c.m. x 3/4 c.m. On the front of right side of neck 3 c.m. Above the right clavicle.
(5)An entrance wound of fire-arm 1-1/2 c.m. x ? c.m. On the front of left side of neck 4 c.m. Above the left clavicle.
16. The cause of death, in the opinion of the Medical Officer, was shock and haemorrhage and asphyxia as a result of injuries Nos. 1 and 4 which were sufficient to cause death in the ordinary course of nature individually as well as collectively. All the injuries were ante-mortem and caused by fire-arm. Two pellets recovered from the left lung were sealed into a packet P.13. The probable interval between the injuries and the death was about 10 to 15 minutes and between the death and the post-mortem examination about 24 hours. Exh.P.D. Is the post-mortem examination report and Exh.P.D./1 is the sketch of the injuries.
17. The appellants and their co-accused were charged under sections 148 and 302/149, P.P.C. To which they pleaded not guilty. In their statements recorded under section 342, Cr.P.C. On the conclusion of the prosecution evidence, they denied the prosecution case and the recoveries attributed to them. According to them, they were innocent and had been falsely implicated on account of enmity. Except Amir Badshah, they further stated that they were labourers and did not cultivate any land. They did not produce any evidence in defence.
18. The learned trial Court discarded the recovery of guns on the ground that the same did not constitute a corroborative evidence as no crime empty had been secured from the spot. It, however, invoked the conviction of the appellants on the ocular evidence corroborated by the medical evidence and the evidence of motive as well as abscondence.
19. Learned counsel for the appellants has assailed the conviction on the grounds that the ocular evidence falls short of the standard required for conviction on a charge involving capital sentence and the evidence in support of the motive and the ascendance is not satisfactory. Learned counsel for the State, however, has supported the impugned judgment.
20. The occurrence was deposed to by Noor Muhammad P.W.10 Ghulam Muhammad P.W.11.
Ghulam Haider P.W.12 and Muhammad Yousaf P.W.13. Noor Muhammad stated that on the night preceding the day of occurrence it had rained a little in the early hours but sufficiently at about Schriwela. The rain water had started flowing in the hilltorrent known as Turappinala passing through their village. He along with Ghulam Shah and Ata Muhammad deceased went to irrigate their land. They were engaged in the irrigation when at about 7-00 a.m. The appellants alongwith Zar Wali came there armed with guns. Zar Wali raised Lalkara that they should be taught a lesson as they always irrigated their own land. Amir Badshah appellant fired from his gun hitting Ghulam Shah deceased on the left side of his neck. Khan Badshah appellant also fired from his gun hitting Ata Muhammad deceased on the left side of the back near the arm pit. Then all the four appellants fired from their guns hitting both the deceased as a result of which they fell down. Ghulam Muhammad and Ghulam Haider P.Ws., also saw this occurrence. The two deceased succumbed to the injuries at the spot. Zar Wali pointing out that Muhammad Hassan and Mehr Zaman were also coming exhorted the appellants to do away them also. All the appellants ran towards them. Jannat Shah appellant fired from his gun hitting Muhammad Hassan deceased on the left side of abdomen. Salim Badshah fired from his gun hitting Mehr Zaman on the back side of his head. Then all the four appellants fired at both the deceased as a result of which they fell down and expired.
Besides Noor Muhammad P.W. Who had also run after the appellants and Zar Wali, Muhammad Yousaf and Awal Badshah saw this part of the occurrence. After the occurrence the appellants and their co-accused made good their escape towards the side of the mountains. Noor Muhammad P.W. Told Muhammad Yousaf and Awal Badshah P.Ws. That the appellants had already murdered Ghulam Shah and Ata Muhammad deceased. Noor Muhammad P.W. Stated in his cross- examination that on the day of occurrence, he and the deceased had diverted the water of Turappinala to the extent of 8/9th share towards their land and allowed 1/9th share to flow downstream for the other cultivators. The land cultivated by the complainant party was situated on the south west and that by the appellants on south east of the Turappinala. Ghulam Muhammad, Ghulam Haider and Muhammad Yousaf P.Ws. Fully corroborated Noor Muhammad P.W. Their statements remained indiscrepant and unblemished in spite of lengthy cross-examination to which especially Noor Muhammad P.W. Was subjected.
21. The veracity of the ocular account has been attacked on the grounds that it is of partisan nature inasmuch as the same has been furnished by the witnesses who are closely related to the deceased and that they being the employees of the coal mines, their presence at the spot at the time of occurrence was not above board.
22. It is true that the eye-witnesses are closely related to the deceased. As already mentioned above, Noor Muhammad and Ghulam Muhammad P.Ws. Are the brothers of Ghulam Shah and Ata Muhammad deceased while Ghulam Haider P.W.12 is married to their sister and his sister was married to Ghulam Shah deceased and Muhammad Yousaf P.W.13 is the son of Muhammad Hasan deceased. But they are related to the appellants as well. Noor Muhammad in the end of his cross- examination deposed that his maternal uncles namely Odin Shah, Said Shah and Alam Shah were the step-brothers of the father of the appellants and about 10 or 11 years back a daughter of Jannat Shah appellant was married to the son of the said Said Shah. Ghulam Muhammad P.W. Also deposed in his examination-in-chief that his mother and the paternal grandmother of Zar Wali were consanguine sisters, a first cousin of Jannat Shah appellant was married to B him, his mother and the father of the appellant were the children of the same father, though from different wives and Ghulam Shah deceased was married to the cousin of Zar Wali. Muhammad Yousaf P.W.13 similarly stated in his examination-in-chief that Zar Wali is the son of his real maternal uncle, the appellants are the sons of the maternal uncle of his mother and his paternal aunt is married to the uncle of Zar Wali. It is, therefore, evident that the appellants are also related to the eye-witnesses.
There existed no feud between the parties. It is admitted that about 15 or 20 years back, Chan Shah, a real brother of the appellants, was murdered for which the three maternal uncles of Noor Muhammad were implicated. However, as deposed to by Noor Muhammad and Ghulam Muhammad P.Ws., the parties had entered into a compromise in pursuance of which Khan Badshah appellant was married to the daughter of Said Shah and the son of Said Shah was married to the daughter of Jannat Shah appellant. No other animus or malice is escribed to the eye-witnesses. Therefore,the mere fact that the witnesses are related to the deceased does not per se recoil IC on their credibility.
23. The other ground pressed into service for doubting the presence of the eye-witnesses at the spot at the time of occurrence viz. Their employment in the coal mines is also inconvincible. It is admitted by Noor Muhammad, Ghulam Muhammad and Ghulam Haider P.Ws. That they were employed in the coal mines. However, they explained that they were on leave on the day of occurrence. According to Noor Muhammad, he was on leave for one month since 18th of July, 1981.
There is nothing on record to falsify these witnesses on this point. In this connection, it may be pointed out that at the trial, an application was filed on behalf of the appellants for summoning the record of attendance at the place of duty of the eye-wtinesses namely Noor Muhammad, Ghulam Muhammad and Ghulam Haider alleging that they were present at their place of duty in the coal mines and had not seen the occurrence. This application was allowed and the necessary record was summoned by the learned trial Court vide order, dated 29th of October, 1984 for 10th of November, 1984. On 10th of November, 1984, one Siddiq Akbar, a time-keeper of P.M.D.C. Mines, Makkarwal appeared alongwith the requisite record. However, learned defence counsel stated that he did not need the record for cross-examining the eye-witnesses and if it was needed, he would summon it in defence. No such record was tendered in evidence even in defence. This fact betrays that the plea of the defence that the eye-wtinesses at the time of occurrence were on duty in the coal mines was a mere contrivance. Moreover, as explained by Noor Muhammad P.W.10 in his cross-examination, the normal working hours in the mines were from before sunrise to about 9/10 a.m. But in the month of Ramzan in which this occurrence took place, the working hours in the mines were from after Iftari to after Khuftanwela. Therefore, even if the statements of Noor Muhammad, Ghulam Muhammad and Ghulam Haider P.Ws. To the effect that they were on leave on the day of occurrence is not believed, it would not cast any aspersion on their presence at the time of occurrence which took place at 7-00 a.m. It is further argued that since these eye-witnesses were not cultivators, they were not expected to be present alongwith the deceased for watering their land. This argument too is without force. In Barani areas, the rain water is a gift from God and every available male member of the family of a cultivator collaborates and co-operates with him in salvaging the same and maximising its utilization and advantages.
Furthermore, these witnesses stated that besides employment in the coal mines, they were also cultivating land as tenants. Being cultivators of small areas, their employment in the coal mines also in order to supplement their income and source of sustenance is not improbable. As we have already observed above, the evidence given by these eye-witnesses does not bristle with any inconsistency or infirmity and inspires confidence. Therefore, we find no reason to discard the same.
24. The ocular evidence is corroborated by the medical evidence and the evidence of motive. The injuries observed on the dead bodies of the four deceased by Dr. Muhammad Musthaq Ahmad P.W.1 correspond with those deposed to by the eye-witnesses. All the eye-witnesses stated that there was a dispute between the parties over the use of the rain water. The appellants claimed that their share in the rain water was half and half while the deceased used 8/9th share therein, Turappinala ran from west to east. The land of the deceased was situate on the south-west i,e, upstream and that of the appellants on the southeast i,e, downstream. Since the deceased were diverting bulk of the rain water, it naturally pinched the appellants whose land was situate down stream. It had rained on the day of occurrence. This was confirmed even by Muhammad Azeem Patwari P.W.2. The deceased and the witnesses had gone with their spades to the Turappinala to block rain water for the irrigation of their land. In view of the conflict which had protracted between the parties over the use of water the appellants armed with guns launched the attack. Therefore, this motive too supports the ocular account.
25. The learned trial Court has also relied on the evidence of abscondence. The occurrence took place on 19th of July, 1981. Khan Badshah and Jannat Shah were arrested on 29th of July, 1981 and Salim Badshah and Amir Badshah were arrested on 30th of September, 1981. According to the evidence of S.I. Ghulam Haider P.W.14, Muhammad Iqbal P.W.15, a Reader to Assistant Commissioner/Magistrate 1st Class Isa Khel and F.C. Muhammad Aslam P.W.16, warrants for the arrest of Salim Badshah and Amir Badshah appellants were obtained by filing applications on 25th of August, 1981 but they could not be arrested. On 12th of September, 1981, proclamations were issued against them but in spite of service thereof, they failed to appear and it was on 30th of September, 1981 that on raid organized on receipt of a secret information, they were arrested from a bus-stand. Original proclamations could not be brought on record on account of their having been misplaced but the statements of the above three witnesses unmistakably prove that these proclamations were issued. No such proceedings were taken in respect of Khan Badshah and Jannat Shah appellants. Therefore, it is argued by learned counsel for the appellants that the evidence on record is insufficient to prove the ascendance of these two appellants. Anyhow, even if the evidence of ascendance is not relied upon, it will not militate against the participation of the appellants in the commission of the G crime in view of the other over-whelming evidence against them.
26. For the foregoing reasons, we hold that the prosecution succeeded in establishing the guilt of the appellants under section 302/34, P.P.C. We, H therefore, feel no hesitation in upholding their conviction.
27. As regards the sentence, it was argued on behalf of the appellants by their learned counsel that they did not deserve the death sentence as they bona fide believed that their share in the rain water was one-half but when it was denied, they felt incensed and, therefore, their attack on the deceased was not unprovoked. This dispute, according to the evidence on record, was existing for the last 2-1/2 years prior to the occurrence. The appellants did not come to the hill-torrent to utilize the rain water in assertion of their right. They came armed with guns and killed four persons there.
Therefore, there is no extenuating circumstance for awarding lesser sentence to the appellants.
28. The complainant has filed a revision petition for enhancing the quantum of fine imposed on the appellants. However, no valid reason is available in support of the enhancement. In the circumstances, we maintain the sentence awarded to the appellants.
29. In the result, the appeal filed by the appellants and the revision petition filed by the complainant are dismissed and the sentence of death imposed on the appellants is confirmed.