' KHALIL-UR-REHMAN RAMDAY, J.---The occurrence culminating in the present case revolves around the family of one Haji Muhammad Afzal who had two wives, namely, Mst. Safia and Mst. Maqbool Begum.
2. Mst. Tahira, Zubair, Umair and Uzair are the children of the said Haji Afzal from Mst. Maqbool Begum. Out of them, Mst. Tahira, Zubair and Umair are the three, out of the four deceased persons of the present occurrence whereas, the fourth victim of the same is one Abbas who is the husband of the said Mst. Tahira. The only surviving child of this branch of the family is Uzair who is an eye- witness of the present occurrence.
3. The accused persons of the said occurrence are the children of the said Haji Afzal from Mst. Safia Begum. Out of them, Khalid and Zahid are proclaimed offenders and Tariq is one of the two appellants before us.
4. The other appellant is one Ashfaq who is a friend of these accused persons and is also a nephew of their Phupha.
5. The occurrence in question allegedly consists of two parts. The first part of the occurrence had taken place in the house of Abbas deceased abovementioned where the said Abbas, his wife Mst.
Tahira and Umair Afzal abovementioned were murdered. The house of Abbas deceased which is the venue of this part of the occurrence is situated on the outskirts of village Dharanwali.
6. The remaining part of the occurrence took place in the house of Mst. Maqbool Begum abovementioned which is situate within the ABADI of village Dharanwali and where Zubair Afzal was murdered immediately after the murders in the house of Abbas deceased.
7. As has been noticed above, Khalid and Zahid could never be arrested and were thus declared proclaimed offenders. In the circumstances, only Tariq and Ashfaq faced trial and through a judgment dated 31-7-1986 of a learned A.S.J. At Gujranwa?a, were convicted and sentenced as under:--
(a) Under section 449, P.P.C. For the trespass into the house of Abbas deceased.--Both sentenced to three years' R.I. With a fine of Rs,1,000 each or sufferance of four months' R.I. Each;
(b) Under section 449, P.P.C. For trespass into the house of Haji Muhammad Afzal.--Both sentenced to three years' R.I. With a fine of Rs,1,000 each or sufferance of four months' R.I. Each;
(c) Under section 302/34, P.P.C. For murder of Mst. Tahira.--(i) Tariq Afzal to death with a fine of Rs,4,000 or sufferance of two years' R.I. In default of payment of fine;
(ii) Ashfaq to imprisonment for life with a fine of Rs,2,000 or two years R.I. In default of payment of fine.
(d) Under section 302/34, P.P.C. For murder of Zubair Afzal.--(i) Ashfaq to death with a fine of Rs,4,000 or two years' R.I. In default of payment of fine;
(ii) Tariq to imprisonment for life with a fine of Rs,2,000 or two years' R.I. In default of payment of fine.
(e) Under section 302 4 P.P.C. For the murder of Abbas decea d.--Both to imprisonment for life with a fine of Rs,2,000 each or two years' R.I. Each in default of payment of fine.
(f) Under section 302/34, P.P.C. For the murder of Umair Afzal.--Both to imprisonment for life with a fine of Rs,2,000 each or two years' R.I. Each in default of payment of fine.
8. The sentences of imprisonment, in case of non-confirmation of death sentences awarded to the two convicts, were directed to run concurrently and half of the amount of fine, if realized, was directed to be paid to the heirs of the four deceased.
9. Murder Reference No, 162 of 1986 seeks confirmation of the sentences of death imposed on Tariq and Ashfaq appellants who, in turn, challenge the convictions and sentences recorded against them through their separate Crl. Appeals bearing No, 517/86 and No, 494/86. All these three matters are being disposed of together through this single judgment.
10. The F.I.R. Of the present case was recorded at Police Station, Hafizabad at 4-00 a.m. On 2-7-1984 on the statement of one Sher Muhammad (P.W. 1) who is the father of Abbas deceased and thus father-in-law of Mst. Tahira which bears No, 277/84.
11. He had claimed that on the night of occurrene, he was asleep in the house of his son Abbas deceased alongwith his said deceased son, his wife Mst. Tahira and Umair Afzal, a brother of the said Mst. Tahira. The three deceased and the complainant were sleeping on the roof of the house while another son of Sher Muhammad complainant, namely, Sanaullah (P.W. 2) and' a nephew of the complainant, namely, Arif were sleeping in the courtyard of the said house.
12. The complainant had alleged that at about mid-night, Khalid (P.O.) armed with a gun, Zahid (P.O.) armed with Carbine, Tariq convict armed with a gun and Ashfaq convict also armed with a gun suddenly emerged on the roof of the house of Abbas deceased. Ashfaq appellant pointed the gun at the complainant and commanded him not to raise his voice, hearing which, Sanaullah P.W.
And Arif (not produced as having been murdered before the commencement of the trial) also reached on the roof at which, these two were also lined up alongwith the complainant by Ashfaq convict who told them not to move and who then exhorted his co-accused to accomplish the job.
Khalid (P.O.) fired a shot at Abbas deceased; Tariq fired a shot at Mst. Tahira and Zahid fired a shot at Umair Afzal and all three of them died at the spot instantaneously.
13. Sher Muhammad complainant had further disclosed that after killing these three, the four assailants left the house of Abbas deceased while raising Lalkaras and that a brother of the complainant, namely, Noor Muhammad (P.W. 11) and one Zafar, a son of Moor Muhammad, who were present at their Behak (cattle-shed) also rushed towards the house of Abbas deceased and saw the four accused persons. Noor Muhammad and Zafar allegedly tried to stop the accused persons but they fired shots in the air and extended threats of dire consequences in case any one went near them.
14. The complainant next alleged that the four abovementioned assailants then went to the house of Mst. Maqbool Begum in the village. Noor and Zafar P.Ws. Abovementioned chased them and also entered the house of Mst. Maqbool Begum in pursuit of these accused persons and saw Ashfaq convict firing a shot at Zubair Afzal deceased who also died immediately at the spot.
15. Sher Muhammad complainant had also informed the police through this F.I.R. That Mst. Maqbool Begum and her son Uzair Afzal (P.W. 10) were present in the house of Mst. Maqbool Begum and had saved their lives by concealing themselves in a room of the house.
16. The motive for these murders was an alleged land dispute between the children from the two wives of Haji Muhammad Afzal.
17. During the course of investigation, crime empty P. 11 had been recovered from the house of Abbas deceased and Tariq convict had even, allegedly, led to the recovery of .12 bore gun.
18. This gun was, however, not exhibited at the trial nor was any report from the Forensic Science Laboratory placed on record to connect the crime empty abovementioned with the said gun.
19. Consequently, the recovery of the gun from Tariq convict and that of the crime empty from the house of the deceased lose their significance.
20. It may also he mentioned here that Mst. Maqbool Begum and Muhammad Arif who had been cited as eye-witnesses of the occurrence in question had also got murdered before the present trial commenced and could thus not be examined as witnesses at the present trial.
21. The learned counsel for the convicts submitted that the motive alleged for the murders in question did not stand proved on record; that Sher Muhammad, Noor Muhammad and Sanaullah P.Ws. Were chance witnesses of the occurrence who had no plausible explanation of their presence at the venues of occurrences at the relevant time; that the occurrence in question was a dark- night occurrence which had gone unwitnessed and that the present convicts had been substituted for the actual assailants on account of enmity and suspicion; that the F.I.R. Had not in fact been lodged promptly; that Abbas deceased had a number of other enemies including the relatives of his first wife and likewise Afzal, the patriarch of the parties also had a number of enmies and the murders in question could well have been committed by anyone or more of these enemies and that in the circumstances, the prosecution case against the two convicts was not free from doubt.
22. Zubair, Umair and Mst. Tahira deceased were the step-brothers and the sister of Tariq convict and were thus obviously rival contenders to the property of their father.
23. It has come on record that the entire land belonging to Haji Afzal was being administered by Khalid (P.O.) and it is believable that the other branch of the family would have a serious grouse over such a partisan administration of the land. It has also come on record that Abbas deceased who was the husband of Mst. Tahira deceased and thus a sympathizer and partyman of the children of Mst. Maqbool Begum was employed with the police department and used to help the deceased party against the accused party.
24. It is true that no dispute about the land in question was ever taken to the Court or even to the Punchayat, but that by itself would not be sufficient to hold that since the dispute had not been taken, either to a Court of law or to the Punchayat, therefore, the same did not exist.
25. In the circumstances, it cannot be said that the claim of the prosecution that a dispute existed between step brothers and sisters about the land of their father which was under the administration and control of one branch of the family, was a claim which was unbelievable. On the contrary, this is a claim which inspires confidence and is believable.
26. It was admitted by the complainant that Abbas deceased was married to one Mst. Irshad Bcgum prior to his marriage with Mst. Tahira deceased; that the first marriage of Abbas deceased still subsisted and that the said Mst. Irshad Bcgum used to live occasionally in the house of the deceased and occasionally with her parents.
27. The complainant had, however, denied the suggestion that Mst. Tahira deceased and her mother Mst. Maqbool Bcgum had badly beaten up Mst. Irshad Begum who had consequently left the house of Abbas deceased and had retaliated with the four murders of the present occurrence through the help of her brothers.
28. It is not digestible that Mst. Irshad Begum who had not even sought a divorce from Abbas deceased as a result of his second marriage and who continued her relationship with the said deceased, would suddenly get so worked-up that she would kill not only her husband and his second wife but would even murder two brothers of the second wife.
29. Consequently, we hold that the motive alleged by the prosecution does stand established as the cause for the occurrence in question.
30. It appears on record that Sher Muhammad complainant who was the father of Abbas deceased is a resident of Chah Piplanwali which is about a mile away from village Dharanwali which is the place of occurrence. The question which requires resolution is whether Sher Muhammad complainant and his son Sanaullah could be actually staying in the house of Abbas deceased as claimed by them or was it a mere concoction to create eye-witness account of an unwitnessed occurrence.
31. The argument against their presence in the house of Abbas deceased is that Sher Muhammad complainant has a house of his own in Chah Piplanwali and that Sanaullah P.W. Who was a brother of Abbas deceased also has his family 'and in the circumstances, why should these two be staying in the house of Abbas deceased.
32. It is an admitted fact that Abbas deceased has a house of his own in village Dharanwali. It is also an undisputed fact that Abbas deceased is a Head-Constable in the police department and does not reside in village Dharanwali.
33. It is thus evident that during the absence of Abbas deceased from the village, Mst. Tahira would be alone in her house and in the circumstances, it is believable that someone from the immediate family would be staying in the house of Abbas deceased to look after Mst. Tahira and moreso, in the wake of the enmity which existed concerning the land in question.
34. The undisputed presence of Umair Afzal and his murder in the house of Abbas deceased lend support to this explanation of the presence of Sanaullah P.W. And that of the Sher Muhammad complainant at the place of occurrence at the relevant time.
35. It is also believable that since Abbas deceased had come home for a few days, Sher Muhammad complainant would also want to spend some time with him and might in the circumstances, have elected to stay the night in his house.
36. Consequently, we hold that the presence of Sher Muhammad and Sanaullah P.Ws. At the place of occurrence has a fairly reasonable explanation and is thus believable.
37. These two P.Ws. Are rather closely connected with the accused persons and the identification thus, even at night, would have posed no problem for these two P.Ws.
38. The eye-witnesses of the second part of the occurrence in question where Zubair Afzal was allegedly murdered, were Mst. Maqbool Begum, Uzair Afzal and Noor Muhamthad.
39. The place of occurrence was the house of Mst. Maqbool Begum who also happened to be the mother of Zubair Afzal deceased. She was thus a natural witness of the occurrence in question but she was murdered before the present trial commenced. The other inmate of the house was Uzair Afzal P.W. Who was a brother of Zubair Afzal deceased. He was thus another natural witness of the occurrence in question who appeared at the trial and deposed in support of the prosecution case.
40. Nothing exists on record to conclude that Uzair Afzal P.W. Who was a young boy of about 15 years of age would not be present in his house on the night of occurrence. He being the step- brother of the assailants could reasonably be presumed to have identified them even at night. He has no reason to substitute the actual assailants with the accused persons. His testimony thus also inspires confidence.
41. Having thus examined and analysed the material and evidence available on record, we find that the ocular testimony of the occurrence in question is reliable and the prosecution had thus successfully proved its case against the present appellants.
42. Consequently the convictions and the sentences recorded by the learned trial Court against the two appellants are maintained except to the extent of altering the death sentence of Ashfaq appellant to imprisonment for life because he had no motive against the deceased persons and his participation in the occurrence in question was perhaps only a deliquent act on his part prompted by the considerations of mere friendship.
43. Thus the death sentence awarded to Ashfaq appellant is not confirmed and subject to this medication, the convictions and the sentences recorded by the learned trial Court against the two appellants are maintained. The death sentence awarded to Tariq appellant is confirmed.
44. Murder Reference No, 162 of 1986, Crl. Appeals Nos. 517 and 494 of 1986 are disposed of accordingly.