1. ANWARUL HAQ, J.-Respondents Nos. 1 to 6 are closely related to each other. Mir Zaman, Muhammad Zaman and Sardar are brothers; Sher Zaman is their cousin, Aziz and Muhammad Anwar are cousins inter se, and the sister of Aziz is married to Anwar. The fathers of respondents Aziz and Anwar are real brothers, and they are cousins of the father of respondent Muhammad Zaman.
2. All the six respondents were convicted by the learned Additional Sessions Judge, Rawatpindi, on charges falling under sections 148, 302/149 and 435/149, P. P, C, for causing the deaths of Abdul Majid and his sister's son Javed Iqbal. Each of them was awarded death sentence on both counts of murder, rigorous imprisonment for three years under section 435/149, and rigorous imprisonment for one year under section 148, P. P. C. In appeal and confirmation proceedings, they were acquitted by a Division Bench of the Lahore High Court, by its order dated the 14th of September 1972, by being given the benefit of doubt. - The learned Judges disbelieved the presence at the spot of two of the eye--witnesses, and rejected the evidence of the other two on the ground that they were close relatives of the deceased persons and they did nothing to rescue the deceased although none of the accused was armed.
3. Leave was granted in this case to consider whether the appraisal of the ocular, evidence by the learned Judges of the High Court was in accordance with correct judicial principles and consistent with the safe administration of justice.
4. According to the prosecution, there was bad blood between the parties on account of an incident which took place nearly 19 or 20 years before the present occurrence, involving the abduction of one Mst. Shah Begum by Barkat Hussain son of Samand and several others. This Barkat is a brother of the wife of Sher Zaman accused. The other accused persons in that abduction case were also related to the family of the respondents before us. Even the complainant party are related to the respondents. The mother of Abdus Sattar (P. W. 5), father of Javed Iqbal deceased, was a cousin of the grand-father of Muhammad Zaman, Mir Zaman and Sardar. It is said that Abdus Sattar appeared as a prosecution witness against the alleged abductors of Mst. Shah Begum, who is a maternal cousin of respondent Sher Zaman. The parties to the abduction case entered into a compromise, as a result of which Mst. Shah Begum was married to her abductor Barkat, and Mst.
5. Shah Begum's brother Ulfat Hussain was married to one Mst. Farzand, a niece of respondent Sher Zaman.
6. However, the fact of Abdus Sattar's appearance as a prosecution witness against Barkat and others created ill-will against him on the part of the family of the respondents.
7. It appears that this estrangement continued to persist over the years. About two years before the occurrence the respondents Sardar and Mir Zaman had constructed a new house adjacent to the house of Abdus Sattar, and they so fixed the water spout of their house as to discharge rain water on the wall of Abdus Sattar's house. The latter removed the spout, which resulted in a fight between the parties. Abdus Sattar, his wife's brother Abdul Majid deceased, Abdul Majid's brother Abdul Razzaq (P. W. 6) and one Muhammad Yasin were injured on the side of the complainant party, and on the other side the respondents Mir Zaman, Sardar, Aziz and Anwar, besides one Muhammad Hanif, received injuries. The injured persons got themselves medically examined, in preparation for launching prosecution against each other, but the matter was ultimately compromised and no report of the incident was lodged with the police.
8. Another incident took place about a year prior to the present occurrence, when Barat of the daughter of respondent Anwar, which had come from Sind, deliberately behaved in an insulting and provocative manner, while passing in front of the house of Abdus Sattar. The marriage party stayed for the night in the house of Sher Zaman respondent in Dhok Badhal, before proceeding to the house of respondent Anwar in the adjoining village Narali, According to Abdus Sattar he was about to react to the outrageous behaviour of the marriage party, but the situation was saved by the intervention of Lambardar Karam Dad (P. W. 8).
9. It was in this background of inimical relations between the parties, that the six respondents are alleged to have attacked Abdus Sattar (P. W. 5), his son Javed lqbal deceased, his wife's brother Abdul Majid deceased, and his wife's second brother Abdul Razzaq (P. W. 6), on the 12th of May 1969 at late Isha prayer time, when they were sitting on two Charpoys near their wheat stack in the area of Dhok Badhal, at a distance nearly 250, yards from the village Abadi. The respondent Muhammad Zaman was carrying a tin of kerosene oil, while the remaining five respon--dents were armed with lathis. The respondent Sher Zaman shouted a Lalkara to the effect that they had come to teach Abdus Sattar a lesson for giving evidence against them, presumably referring to the abduction case of Mst. Shah Begum. Sher Zaman, Mir Zaman and Aziz respondents caught hold of Abdul Majid deceased, while respondent Sardar and Muhammad Anwar caught hold of Javed Iqbal deceased.
10. The respondent Muhammad Zaman sprinkled kerosene oil on the wheat stack and set it on fire. It is alleged that when the fire was blazing high, the respondents, who had respectively caught hold of the two deceased persons, lifted them and threw them into the fire. The respondents also picked up the Charpoys and the bed clothes of the complainant party and threw them into the fire, before escaping from the spot.
11. Besides the two survivors, namely, Abdus Sattar (P. W. 5) and Abdul Razzaq (P. W. 6), the incident was witnessed by Muhammad Bashir (P. W. 7) and two persons named Muhammad Yasin and Mir Baz, who were present near their wheat stacks in the vicinity, and had reached the spot on hearing the alarm raised by Abdus Sattar and Abdul Razzaq. However, all the efforts of the witnesses to put out the fire and to save Javed Iqbal and Abdul Majid could not succeed, with the result that these two persons were burnt to death alongwith nearly 100 maunds of wheat belonging to Abdus Sattar.
12. Lambardar Karam Dad (P. W. 'S) is said to have arrived at the scene soon after the occurrence. The witnesses present at the spot informed him about the names of the culprits, and on his advice Abdus Sattar proceeded to report the matter at Police Station Jatli, at a distance of 7 miles, reaching there at 11 p.m. The first information report was recorded by A. S. I. Ahmad Khan (P. W. 9), who also recorded a supplementary statement, Exh. D. C. Of Abdus Sattar, elaborating the motive for the crime. In the F. I. R., Abdus Sattar mentioned merely his appearance as a prosecution witness in the abduction case of Mst. Shah Begum, but in the supplementary statement he described the incident relating to the removal of the water spout of the house of the respondents, and also the ugly situation which was likely to develop as a result of the provocative behaviour of the Barat of the daughter of respondent Anwar.
13. A. S. I. Ahmad Khan (P. W. 9) and Sub-Inspector Muhammad Anwar Khan (P. W. 10) reached the spot and took the usual steps to complete the investigation of the case. A lantern as well as ashes of the burnt wheat were recovered from the spot, besides the charred and burnt bodies of Javed Iqbal and Abdul Majid. However, no incriminating recoveries could be effected from any of the respondents.
14. The autopsy of the dead bodies, as carried out by Dr. Muhammad Aslam, Medical Officer, Civil Hospital, Gujjar Khan, on the 13th of May 1969, showed that in both cases death was due to deep and extensive burns from head to foot. There were, however, some differences of detail, which may be mentioned, as they will be relevant later for the purpose of examining the defence contention that both the deaths were caused by lightning and not by arson.
15. According to the Doctor, the body of Abdul Majid was completely burnt; face, neck, tongue, abdomen, back thighs and legs had deep burns, and the body was in fencing posture, cracks and fissures had appeared on neck, fore-arms, hands and thighs and trunk, upper part. The body had been blackened from head to the trunk. Stomach was full of undigested food, while the bladder was empty. In the opinion of the witness, the burns were ante-mortem in nature and sufficient to cause death.
16. The respondents did not plead guilty at the trial and asserted that they had been falsely implicated due to enmity between the parties. They stated that the fact was known to the whole village that the wheat stack of Abdus Sattar had caught fire on account of being struck by lightning and that the two deceased persons were engulfed by the fire so caused. The respondents did not, however, produce any evidence in defence.
17. The learned trial Judge accepted the eye-witness account of the incident furnished by Abdus Sattar (P. W. 5), Abdul Razzaq (P. W. 6) and Muhammad Bashir (P. W. 7), even though the witnesses were, in some manner or the other, related to the deceased. He rejected the defence story that the deaths were the result of fire caused by lightning. The learned Judges in the High Court have, however, taken a contrary view on the ground that if Abdus Sattar and Abdul Razzaq had been present at the spot at the time of the incident, they would have taken steps to rescue the deceased persons from the clutches of the accused, as the latter were all unarmed. They have also observed that the main grievance being against Abdus Sattar, the respondents would not have spared him if he had been present at the spot. They have further observed that there were inhabited deras close to the spot, but no reason had been brought on the record to show why no witness came forward from those deras. They have gone to say that as there was enmity between Lambardar Karam Dad (P. W. 8) and the respondents, "the possibility cannot be ruled out that due to the long-standing enmity Karam Dad (P. W.) might have asked the complainant to name the appellants as the assailants of the two deceased." They have concluded their discussion of the evidence by observing that "we would not be surprised if it were a case of an unwitnessed occurrence, wherein the two unfortunate victims were taken unawares, were completely overpowered and thrown into the blazing fire in a state of utter helplessness. We are not even convinced as to the correctness of the time of occurrence and do not consider it safe to base the conviction on the uncorroborated testimony of interested witnesses".
18. The first question which needs to be answered in this case is regarding the manner in which the two deceased persons were killed, namely, whether they were forcibly lifted and thrown into the fire, as alleged by the prosecution; or whether, as argued by the defence, they were stunned by , lightning and engulfed by the flames arising from the wheat stack as a result of having been set on fire by lightning.
19. That a person struck by lightning, or present in close proximity to an object so struck, may be stunned and temporarily paralysed, does not admit of much argument or controversy. According to Modi, Medical Jurisprudence and Toxicology, 11th Edn., pp. 195-196: "when, an individual is struck by lightning, he falls unconscious immediately due to syncope or concussion, and dies at once from paralysis of the cardiac and respiratory centres or subsequently from the effects of burns and lacerations after some days or even weeks." Urination also commonly takes place.
20. The submissions made on behalf of the respondents are merely in the nature of speculative suggestions. It will be seen that it is common ground between the prosecution and the defence that both the victims died as a result of extensive burns received from a raging fire, and not as a result of being directly hit by lightning. The differences found, at the time of post-mortem examination, in the nature of the burns received by the two deceased persons, as well as in the body postures of the two, do not nave any bearing on the cause of death. As the condition of their bodies showed that they had not been directly hit by lightning, it would be mere speculation to assume that they must have been rendered unconscious for a sufficiently long time so as to be enable to move away from the burning stack of wheat. Ordinarily, if they merely fainted due to being in the proximty of the flash, but not the direct object of its impact, they would have been expected to recover consciousness, especially with the approaching intensity of heat from the burning wheat stack. It is interesting to observe that the kind of suggestion, or submission, which is now being made at the Bar, was not put to the medical witness, who had had the opportunity of seeing the dead bodies soon after the death. We consider that there is no foundation for the suggestion that the two deceased persons were engulfed by flames when they were still in a state of shock from the flash of lightning which did not hit them directly.
21. Another fact which has direct relevance in this behalf is that although it was possible to lead positive evidence to show that on the relevant date and time lightning had struck in the fields of this particular village, yet no such attempt was made on behalf of the respondents. We are not suggesting that any burden lay on the defence to show whether there was, or was not, lightning on that particular night, but if the defence puts forward a theory, which could be directly supported by factual evidence, then it would be legitimate to expect the defence to supply the D necessary factual base. This was, however, not done. The Patwari of the village, Naseeruddin (P. W. 3), who had prepared the site plan, was also not asked any question about lightning although he was questioned about the state of the weather on the 12th and the 13th of May 1969. He produced a copy (Exh. D. A) of entries in his Roznamcha Waqiati (i.e. The daily diary) showing that on the 12th of May 1969 it rained from 4 p.m. To 7. p.m., and again on the 13th of May 1969 it rained for the whole day. It appears to us, therefore, that if a natural calamity like the strike by lightning had happened in the Patwar circle concerned, the Patwari would have made a note to that effect in his daily diary.
22. We have, therefore, no hesitation in rejecting the theory that the stack of wheat had caught fire by lightning and the two deceased persons were engulfed by the flames while still in a state of shock.
23. Having found that this was indeed a case of deliberate arson, the question is whether there is any reliable evidence to establish the identity of the culprits. The learned Judges in the High Court have expressed the view that Abdus Sattar (P. W. 5) and his brother-in-law Abdul Razzaq (P. W. 6) were not present at the spot, thereby suggesting that the duty of looking after the wheat stack was entrusted by Abdus Sattar to his young son Javed 1qbal, a boy of only 14 years of age, and Abdul Majid deceased who was about 22 years of age at that time.
24. We can take judicial notice of the fact that wheat crop is the most important and valuable crop of the year in most parts of the Punjab. According to Abdus Sattar, be was expecting nearly one hundred maunds of wheat, which is undoubtedly a very large quantity for small cultivators. In these circumstances, we see nothing unnatural or improbable in Abdus Sattar's assertion that on the fateful night, the wheat stack was being guarded not only by the two unfortunate victims of the present crime but also by Abdus Sattar himself and his wife's second brother Abdul Razzaq.
25. The learned Judges in the High Court have doubted the presence of the witnesses at the occurrence on the ground that they could not have remained silent spectators for about half-an- hour, during which time the deceased persons were burnt to death, and that in any case the assailants would not have, in that event, spared Abdus Sattar, as he was the villain in their eyes. In this context the learned Judges have further observed that "none of the accused was attacked although they were all unarmed".
26. We consider that the reasons given by the High Court are altogether untenable. The prosecution has nowhere taken the position that the accused persons were unarmed; on the contrary, the allegation is that except M muhammad Zaman, who was carrying a tin of kerosene oil, all the respondents were armed with lathis, and that on seeing them approach the wheat stack Abdul Razzaq and Abdus Sattar had run towards the western side, and it was during that interval that the respondents had caught hold of the two deceased persons, and kept them in their grip until the fire got going. In the face of this evidence, the observations of the High Court that the accused persons were not attacked although they were all unarmed, is not correct. Similarly, the failure of Abdus Sattar and Abdul Razzaq to rescue the two victims from the clutches of the assailants does not negative their presence at the spot. Abdul Sattar is a man of about fifty years of age, and there is no evidence to show whether he was indeed a man of .Courage so as to risk his life in order to save his young son and brother-in-law. Abdul Razzaq is no doubt a young man, but apparently he was too scared to intervene.
27. We are inclined to agree with the learned trial Judge that it would be greater punishment for Abdus Sattar to see his son being killed before his eyes, rather than be done to death himself. The revenge; as alleged against the respondents, is clearly more effective and terrifying than if they had killed Abdus Sattar himself. From the circumstance that Abdus Sattar was not harmed, it does not inevitably follow that he was not present.
28. Another criticism advanced by the High Court against the prosecution story is that there were other inhabited deras near the place of occurrence, but there was no explanation why the residents of those deras had not come forward to rescue the victims and to give evidence at the trial. If the learned Judges had perusedpe replies elicited by the defence itself through the cross- examination of Abdul Razzaq (P. W. 6), they would have found the answer. Abdul Razzaq stated that "it is correct that the houses of Maj. Mehmood, Shakir, Khan Bahadur and Ahmad Khan are facing the place of occurrence. (Volunteered.) House of Mehmood is not occupied by anybody, while Shakir is the nephew of Sher Zaman; Bahadur and Ahmad Khan are of the party of the accused.
29. None of them came to the spot". We see no reason why this statement made by Abdul Razzaq should not be accepted as correct. This clearly explains why the residents of the houses mentioned by the witness did not come to the spot. This position is confirmed by Muhammad Bashir (P. W. 7) in cross-examination. He was one of those who did come to the spot along with Muhammad Yasin (given up by the prosecution). Whether he is a reliable witness or not, we shall discuss presently. At this stage we mention this fact only to show that at least two persons from the neighbouring fields did come to the spot on hearing the alarm raised by Abdus Sattar and Abdul Razzaq.
30. We also see no justification for the view expressed by the High Court to the effect that "we are not even convinced as to the correctness of the time of the occurrence". We have already referred to the medical evidence to the effect that the stomachs of both the deceased persons were found to contain semi-digested food, and the Doctor had expressed the view that the death in each case took place within half-an-hour of the last meal. As the villagers usually take their last meal at about sunset time, this would correspond with the time suggested by the prosecution, namely, that the attack was launched at late Isha prayer time. This fact is further confirmed by the medical opinion to the effect that probable time between death and post-mortem examination was about 20 hours. The post-mortem having been conducted at 3 p.m. On the 13th of May 1969, probable time of death would work out to be about 7 p.m. On the 12th of May 1969. The High Court was, therefore, clearly in error in creating an unnecessary doubt as to the time of the occurrence.
31. The same position appears to obtain in regard to another conclusion reached by the High Court to the effect that "the possibility cannot be ruled out that due to the long-standing enmity Karam Dad (P. W.) might have asked the complainant to name the appellants as the assailants of the two deceased". It is true that Lambardar Karam Dad (P. W. 8) is described as one of the persons who arrived at the scene of the offence after hearing an alarm, and it is also correct that he advised the complainant Abdus Sattar to report the matter at the Police Station, but there is no foundation for the conclusion that he advised Abdus Sattar to falsely implicate all or any of the respondents.
32. While on the one hand Karam Dad is related to the complainant party, inasmuch as the mother of Abdus Sattar is a maternal cousin of the mother of Karam Dad, and the wife of Abdul Razzaq (P. W.
33. 6) is a cousin of Karam Dad himself, yet he is also related to the accused persons as his wife is a sister of the abducted woman Shah Begum who was later married to Barkat, a brother of respondent Sher Zaman's wife. It has already been stated that the abduction case had been compromised between the families of Barkat and Mst. Shah Begum. That being so, Lambardar Karam Dad and no reason to be inimical to the family of the respondents on that ground. However, he admitted in cross-examination that there had been litigation between him and some members of the respondents family, but the nature of this litigation does not appear to be such as to persuade Lambardar Karam Dad to trump up a false case of murder against all the six respondents. It is in evidence that it was Lambardar Karam Dad who had intervened to save the situation when witness Abdus Sattar was likely to feel provoked and insulted by the behaviour of the Barat of respondent Anwar's daughter. In the presence of all these facts, it seems to us that the High Court was merely conjecturing when it concluded that the respondents might have been falsely implicated at the instance of Lambardar Karam Dad.
34. The first information report in this case appears to have been made without any avoidable delay at 11 p.m. By Abdus Sattar, after travelling seven miles to Police Station, Jatli. This circumstance also inclines us to the view that this is not a case where it can be said that it was an utlwitnessed crime, and that the names of the enemies of Abdus Sattar or Lambardar Karam Dad were falsely mentioned as the culprits as a result of ,consultations and manipulations.
35. On a consideration of all these facts and circumstances, we are inclined to the view that the occurrence was witnessed by Abdus Sattar (P. W. 5), Abdul Razzaq (P. W. 6) and Bashir (P. W. 7) and that Lambardar Karam Dad (P. W. 8) also arrived soon after the incident on hearing the alarm. The presence of Abdus Sattar and Abdul Razzaq near the wheat stack in question appears to be natural in the circumstances and this is further confirmed by the fact that Abdus Sattar promptly reported the anattar at Jatli Police Station. The presence of Muhammad Bashir (P. W. 7) .Has not been seriously questioned by the defence, and it could not indeed be questioned as he had his thrashing floor in the vicinity. Although ,he' is a maternal cousin of the wife of Abdus Sattar, yet nothing was -elicited from him in cross-examination to show that he had ever taken sides in the feud which was going on between Abdus Sattar and the respondents. We are accordingly satisfied that the testimony of Muhammad Bashir provides the corroboration which would be required, as a matter .Of prudence, before the evidence of Abdus Sattar and Abdul Razzaq could be safely accepted.
36. It was contended by Mr. Manzur Qadir that this being a case of partisan and inimical witnesses, their oral testimony should not be accepted without -some confirmatory circumstances having been proved on the record to show the presence of the witnesses at the spot, and also to establish the identity of the culprits. The learned counsel also submitted that it is strange that the Charpoys and the bed clothes of the deceased and the witnesses were also not found at the spot. He argued that their disappearance was not satisfactorily explained by the prosecution.
37. We have already held that the two deceased persons were killed by being deliberately thrown into a raging fire, and that it was not a case of their having been engulfed by flames, arising from the wheat stack after it had caught fire by lightning. This is, to our mind, a confirmatory circumstance which supports the ocular account given by Abdus Sattar and Abdul Razzaq. As to the disappearance of the Charpoys and the bed clothes, it is to be noticed that even in the F. I. R. Abdus Sattar had mentioned that the culprits put these articles to fire before leaving the -place. It is true that in the first information report it is not stated that the culprits threw these articles into the fire, but it was so explained during the trial. We do not see any material contradiction between the statement made on this point by Abdus Sattar in the first information report and the detailed explanation given by him and the other witnesses at the -trial. We have also found that the oral testimony of Muhammad Bashir (P. W. 7) does provide the necessary corroboration, even though he is a cousin of Abdul Sattar's wife. We have already observed that both the families are related in varying degrees, but Muhammad Bashir has come out on the record as a person who had not at any stage taken any part whatsoever in the dispute which had continued over the years between Abdus Sattar and the respondents. He could not have any motive, on this occasion, to falsely name the six respondents as guilty of a capital offence, if indeed he had not witnessed the occurrence by rushing to the spot from his own thrashing field in the same locality.
38. As a result, we have reached the conclusion that the respondents were rightly convicted and sentenced, and that their acquittal by the High Court has led to a grave miscarriage of justice, being the result of specious and conjectural reasoning, not sustainable on the record. We would accordingly accept this appeal, set aside the acquittal of the respondents, and restore the convictions and sentences recorded against them by the trial Court. In view of the cruel and inhuman conduct of the respondents in burning alive two human beings in order to satisfy their lust for revenge, we see n extenuating circumstances in their favour which could justify our interference with the sentences awarded to them by the trial Court on all the three counts. We would therefore, confirm the death sentence in each case.