JUDGMENT RASHID AZIZ KHAN, J.- Ahmad Nawaz, (2) Rab Nawaz, (3) Nawab Khan, (4) Sultan Sikandar Khan, (5) Mukhtar Khan, (6) Behram Khan, (7) Ikhitar Khan (8) Allah Bakhsh, (9)
Muhammad Yaqoob and (10) Hakam Khan were reported against by Ghulam Abbas for offences under sections 302/436/148/149 PPC and 4/5 of Explosives Act, for the murders of first informant's daughters Mst. Zubaida (18), Mst. Nasreen (15), Mst. Mursalin (l2) and his son Rehmatullah (13).
Police submitted the challans against all the accused persons. Accused Ahmad Nawaz, Rab Nawaz and Mukhtar Khan could not be arrested and were declared proclaimed offenders. Khan Talib Hussain Baloch, Addl: Sessions Judge-II, Mianwali vide his judgment dated 2.11.1987 gave benefit of doubt to Ikhtiar Khan and acquitted him of all the charges. Nawaz Khan, Sultan Sikandar, Behram Khan, Muhammad Yaqoob, Hakam Khan and Allah Bakhsh were, however, found guilty and sentenced under section 148 PPC to one year each; under section 436/149 each to three years R.I.
And a fine of Rs.2000/- each or in dfault six months R.I. Each. All of them were further convicted under sections 307/149 PPC and sentenced to five years R.I. Each with a fine of Rs.2000/- each or in default six months R.I. Each. Nawab Khan and Sultan Sikandar were convicted under sections 302/149 PPC and sentenced to imprisonment for life each w:th a fine of Rs.2000/- each, or in default six months R.I. Each. Behram Khan, Muhammad Yaqoob, Hakam Khan and Allah Bakhsh were convicted and sentenced to death with a fine of Rs.2000/- each, or in default six months R.I. Each. It was further directed that all the sentences shall run concurrently. Those accused who were not sentenced to death, were also granted the benefit of section 382-B Cr.P.C. It was further directed that one half of the fine, if realized, shall be paid to the legal heirs of the deceased as compensation.
2. Prosecution story, in brief, as disclosed in FIR Exh.PW, lodged by Ghulam Abbas, was to the effect that he was resident of Mohalla Jchandad Khel.
3. His house consisted of two rooms and a kitchen. On 11.1.1985 at about 8.30 p.m., he put his children to sleep in the eastern room, and himself slept in the room on the western side. His wife Mst. Aslam Khatoon had gone to her daughter who had given birth to a child in Musakhel. At about 12:30 at night, he was going back to his room after having urinated when he saw Ahmad Nawaz armed with G-3 gun, Rab Nawaz with kalashnikov Nawab Khan with sten-gun and Sultan Sikandar with l2 bore gun had climbed on the roof of his house. They raised lalkara that they had come, be brave.
Ahmad Nawaz fired. The first informant was not hit and he ran inside his house. Rab Nawaz. Nawab Khan and Sultan Sikandar also started firing. Ahmad Nawaz and others called Mukhtar Khan, Behram Khan, Ikhtiar, Allah Bakhsh, Muhammad Yaqoob and Hakim Khan by their names and asked them to make hole in the roof of his house and throw petrol-bombs and grenades. The said persons made a hole in the roofs of his house and threw petrol bombs and grenades, with the result of which the house caught fire. The first informant tried to rescue his children through a window but did not succeed because of fire and smoke. In his endeavour to save his children his right hand was burnt. Some hair of his head and beard also got burnt, therefore, he again went back to his room on the western side. The accused persons who were armed with kalashnikov, .G-3 gun, sten-gun, l2 bore gun, hand- grenade, petrol-bomb, two inch mortar shells and dynamite, kept on firing for quite some time. When they were satisfied that they had succeeded in their mission, they went away while firing. When the firing ceased, the first informant came out and saw Ghulam Akbar Khan, his real brother, Ahmad Khan and Aisab Khan who had also witnessed the occurrence, near his house. So many other people also gathered there. On verification it transpired that the roof of the room of the eastern side had fallen and underneath his children had died because of burns and grenade injuries. At the spot, there were number of empties, grenades and 2-inch mortar shells. He also noticed that on the back wall of his house, dynamite had been affixed.
There were bullet marks on the walls.
The motive for the commission of the offence was that the first informant had enmity of murder cases with Ahmad Nawaz Khan and Rab Nawaz Khan. For that reason they had committed the offence. The house-hold effects were also burnt.
The occurrence had taken place on 12.1.1985 at 12:30 at night in the house of the first informant Ghulam Abbas, situated in Mohalla Jehandad khel, three furlongs from Police Station Musakhel, District Mianwali.
3. FIR Exh. PW was recorded by Nazar Muhammad AS1, PW-14, on 12.1.1985 at 4:25 a.m. On the statement of Ghulam Abbas, PW-10. Nazar Muhammad, AS1, after recording FIR went to the spot and prepared injury statements and inquest reports of Mst. Mursaleen, Mst. Zubaida Parveen, Mst.
Nasreen and Rehmatullah Khan, which were Exhs. PX and PX/1, PY and PY/1, PZ and PZ/1, PAA and PAA/1, respectively. On spot inspection he secured two mortar shells P.6 and P.7 from the kitchen of the complainant, which he secured vide memo Exh. PQ. Seven fused dynamities P.9/1-7 were secured vide memo Exh.PR. One grenade P.10 with spring was recovered, from the spot vide memo Exh.PS. He also took into possession 182 empties of Kalashnikov P.Ll/1-182 and 70 empties of G.3 rifle P.12/1-70, 11 empties of l2 bore gun P.13/1-11 and five empties of stengun P.14/1-5 vide memo Exh.PT and PU, respectively. He also secured a Wahola P.15, a Ganti P.16, one iron Khurpa P.17 and one iron Parat P.18 vide memo Exh.PV. He also took into possession burnt fans P.19 and P.20, a sewing machine P.21, a grill of fan P.22, one electric iron P.23, four boxes P.24/1- 4 along with burnt clothes, one tin P.25, two legs of cot P.26/1-2 and ten pieces of burnt wood P.27/1-10 vide memo Exh.PV. He got the said memos attested from Zafar Jalil and Abdul Rehman. Thereafter he sent the dead bodies through Inayatullah, Constable, for postmortem examination, He had also prepared the injury statement Exh.PBB of Ghulam Abbas, complainant and sent him for medical examination. He got the site-plans Exh.PG and Exh.PH prepared from the draftsman and gave his notes on it. He also got prepared photographs P.7/1- 39 of the place of occurrence. He recorded the statements of the witnesses at the spot. Thereafter, on 13.1.1985 the investigation was transfarred to Fida Hussain Shah, SI, PW-13, who searched for the appellants but could not find them. On 12.2.1985, Nawab Khan, Sultan Sikandar Khan, Behram Khan and Ikhtiar appeared in the office of DSP, and Hakam Khan appeared through one Altaf, whom he arrested. Allah Bakhsh and Muhammad Yaqoob were arrested by him on 14.2.1985 as their bail before arrest was dismissed by the Court. On 18.2.1985 he obtained non-bailable warrants about those who could not be arrested till then. No recovery could be effected from any of the accused arrested by him, therefore, he sent all of them to judicial lock- up. After completion of the investigation he challaned the accused.
4. On 12.1.1985 Dr. Walayat M. Khan, M.O., DHQ Hospital, Mianwali, PW-4 conducted the postmortem examination on the dead body of Rehmatullah at 1:30 p.m., and found the dead body of the boy completely burnt. Legs were amputated above the knee. Arms were burnt above elbow and were amputated. Chest and abdomen was also completely burnt. In his opinion, the death had occurred due to shock and suffocation due to the blast injuries and burning. All the injuries were antemortem and sufficient to cause death in the ordinary course of nature.
On the same day at 1.30 p.m., he also performed the postmortem examination on the dead body of Mst. Mursaleen, aged about l2 years and noticed burns were present on all over the body. Left leg was amputated and lower part of the leg was also found completely burnt. Right leg was dislocated and joint exposed at the level of knee-joint. The skull was opened and brain matter was found congested.
In his opinion, the death had occurred because of burning and suffocation. The injuries were sufficient to cause death in the ordinary course of nature.
On the same day and time, she also conducted the postmortem examination on the dead body of Mst. Nasreen, aged 15 years, and found the dead body had burnt. Both the lower legs were amputated above knees. Left elbow was dislocated The brain was found congested.
In his opinion, the death had occurred due to suffocation and burning, which was antemortem.
On the same day and time, he also conducted the postmortem examination on the dead body of Mst. Zubaida, aged 18 years, and found the skin, except on the back, was completely burnt. Ribs of the left side had fractured. Mouth was empty and closed, nose absent and eyes were burnt. Both the legs were amputated above the knee. Lower leg was fractured at various points. The ends of bones were burnt and exposed.
In his opinion, the death had occurred because of suffocation and shock due to multiple blast injuries and burning which were antemortem.
5. The prosecution in support of its case produced I6 witnesses in all. Inayatullah, FC, PW-1 had escorted the dead bodies for postmortem examination. Umar Hayat, FC, PW-2, was entrusted with the non-bailable warrants of Ahmad Nawaz and Rab Nawaz. They were not available, therefore, he gave his reports Exh. PD, Exh.PE/1 and PE/2 to that effect. Thereafter, proclamation was issued in this respect. Mirza Zahirud Din, Draftsman, PW-3 had prepared site-plans Exh.PG,PH and Exh.PH/1. Dr. Walayat Muhammad Khan, PW-4 had conducted the post-mortem examinations. Zafar Jaleel Khan, PW-6 had witnessed the recovery of crime empties, two mortar shells and other house-hold effects from the spot. Muhammad Zubair Khan, PW-7 had seen Muhammad Yaqoob appellant on 12.1.1985 going on a truck towards Mianwali from his dera. Samand Khan, PW-8 had seen Muhammad Yaqoob Khan and Allah Bakhsh appellants coming out of their deras and going towards the road-side. Ghulam Abbas, PW-9 had taken 39 photographs P-7/1-39 of the spot at the instance of the police. Chulam Abbas Khan, Ahmad Khan and Ghulam Akbar, PWs-10,11 and l2, respectively, gave the ocular account of the occurrence. Nazar Muhammad, AS1, PW-14 had initially investigated the case. Fida Hussain Shah, SI, PW-13 had concluded the investigation and challaned the appellants. Soon. Leader Shahzada Khalid, PW-15, on the request of S.P. Mianwali, came to the spot and saw seven dynamites affixed on the back-wall of the house along with safety fuses. He had also seen several empties lying there. Ghulam Murtaza, SI, PW-16 had produced the original register containing FIR No.1 dated 1.7.1982.
The appellants were examined without oath, wherein they refuted the prosecution allegations and pleaded innocence. They attributed the case against them due to enmity. Ikhtiar, acquitted accused, further stated that he was declared innocent by the police and placed in column No.2 of the challan. They, however, did not appear in their defence on oath but produced defence evidence. Captain Sohail Ahmad Anjum, DW-1 stated that he was ADC with Major General Muhammad Zulfiqar. Yaqoob Khan was personally known to him and came to him on 10.1.1985 for having an interview with the General. He also saw him on 11.1.1985 and the following day. Syed Iqbal Mehmood Shah, DW-2, slated that he was an employee of Wapda and on 11.1.1985 at l2 noon load- shedding started which was to continue till 11 at night, but the supply of electricity could not be restored because of some fault and it was restored on 12.1.1985 at 7 a.m. Syed Ghulam Haider, DW-3 stated that Ikhtiar accused was his Mureed, and on 11.1.1985 both of them went to Sialkot to see Major Nazakat Ali and came back from there on 13.1.1985. Haji Muhammad Nawaz, DW-4, stated that Hakam Khan came to his dera on 11.12.1985 and left on the following day. He again visited him on 12.1.1985 Muhammad Iltaf, DW-5 stated that on 11.1.1985 he had accompanied Hakam Khan appellant to the house of DW-4. Abdul Razzaq, DW-6 stated that he investigated the case with regard to the innocence of Ikhtiar. He went to Sialkot and conducted the investigation, according to which Ikhtiar was present with one Major Nizakat Ali at Sialkot during the relevant time.
6. It was contended by learned counsel for the appellants that the case against the appellants was extremely doubtful. No evidence which could connect the appellants with the commission of the offence was on the file. Asserted that the witnesses who had deposed against the appellants were admittedly inimical and their uncorroborated statements were not reliable. Asserted that the trial Court rightly ruled out of consideration me statement of Ahmad Khan, an eyewitness, because of his enmity with the appellants, and in such circumstances the same rule should have been applied qua the other witnesses because they also had the enmity. Argued that it was complainant's own case that when Ahmad Nawaz fired at him he ran into his house, and thereafter he could not see who else was on the roof and in such circumstances the presence of the appellants at the spot was not established. The contentions were controverted by the Assistant Advocate General.
According to him, the prosecution had proved its case beyond doubt against the appellants.
7. We have heard the learned counsel at length and gone through the evidence. We have noticed that Nawab Khan and Sultan Sikandar Khan were sentenced to imprisonment for life, wherein the reasons given by the trial Court did not appear to be convincing regarding mitigation, therefore, notices to the above said persons were given to show cause why in case their appeal failed, the sentence be not enhanced to death. In response to the said notices, they appeared in Court and were heard.
The prosecution in order to establish its case relied upon medical evidence, motive, recoveries at the spot and the ocular account. The motive, as stated by Ghulam Abbas, complainant, was that he had enmity of murders with the appellants, for which the occurrence had been committed. In cross-examination, the defence at no stage tried to challenge this assertion. As a matter of fact, the case of the appellant side was of false involvement because of the above said enmity. In these circumstances, though the enmity of the complainant side with the appellants is established yet the same cannot be used as corroboration.
Nazar Muhammad, AS1, PW-14 after registering the FIR Exh.PW, came to pot and recovered two mortar shells, seven dynamites, one grenade, 182 empties of kalashnikov and 70 empties of G.3 rifle, 11 empties of l2 bore gun and five empties of sten-gun from the spot. He had got the said memos attested from Zafar Jaleel, PW-6, who also deposed to the same effect. Zafar Jaleel was cross- examined at length wherein he admitted his relationship with the complainant. He also admitted his enmity with the appellants. In his cross-examination he admitted that he had reached the spot at Namazwela and the police took into possession a number of articles from the spot, which he witnessed. We do not agree with the contention of the learned counsel that the witness be ruled out of consideration because of his enmity with the appellants and close relationship with the complainant. It is observed that the occurrence had taken place in such a manner where an independent witnes; would never dare to come forth as a witness. In such like cases only the close 1 'nations can be available. Even otherwise also, the statement of this witness inspires confidence because it is unimaginable that the police would manage to fabricate so many crime empties and other explosives. In these circumstances, we hold that the recoveries from the spot are proved.
Dr. Walayat Muhammad Khan, PW-4 had conducted the postmortem examination on the dead bodies of the deceased children. His observation with regard to all of them was that the cause of death was burns and explosives. The defence did not even cross-examine this witness on the point that the death had not occurred because of burns and explosives. In these circumstances in the absence of any challenge to the opinion of the doctor, the cause of death given by him is proved.
14. The ocular account was furnished by Ghulam Abbas, Ahmad Khan and Ghulam Akbar, PWs-10, 1 and l2, respectively. As far as Ahmad Khan, PW11, is concerned the trial Court did not rely upon hs statement for the reasons that he had direct enmity with Ahmad Nawaz, proclaimed offender. It had also come on the record that he was not resident of the place from where he claims to have witnessed the occurrence. His explanation to this effect was that he had visited Ghulam Akbar, PW, as they wanted to discuss some business with each other. At about midnight he heard firearm shots. He climbed over the roof of the house of Ghulam Akbar and witnessed the occurrence. Since there was long-standing enmity between him and the appellants and he was not the resident of the house from where he had witnessed the occurrence which took place at midnight, therefore, his presence becomes doubtful. Therefore, we hold that the reasons given by the trial Court for not relying upon this witness are cogent.
15. Ghulam Abbas and Ghulam Akbar Khan, PWs-10 and l2, respectively gave the detailed account of the occurrence the way it happened. According to Ghulam Abbas, on the fateful night while going inside his horse after having urinated, he saw Ahmad Nawaz, Rab Nawaz, both proclaimed" offenders, with Nawab Khan and Sultan Sikandar Khan standing on the roof of his house. Ahmad Nawaz fired at him but he escaped and ran inside his house. 1 hereafter, he heard from inside his room Ahmad Nawaz calling Mukhtar Khan, Behram Khan, Ikhtiar Khan, Allah Bakhsh, Muhammad Yaqoob and Hakam Khan to make a hole in the roof of his house and throw petrol bombs inside. He ws also confronted with his statement made earlier before the police wherein he had not stated that he saw the above said accused when they were being called. He also admitted that from his room he could not see any standing on the roof of his house, ln these circumstances, the only persons whom he saw on the roof of his house were Ahmad Nawaz, Rab Nawaz, both proclaimed offenders, with Nawab Khan and Sultan Sikandar Khan. Ghulam Akbar Khan, PW-12, corroborated the statement of Ghulam Abbas to the effect that he saw the appellants along with their absconding co-accused present on the roof of the house of his brother Ghulam Abbas, PW. Ahmad Nawaz directed the said persons to make a hole in the roof and throw petrol bombs and grenades inside, which they accordingly did and the house was set on fire. The witness was cross-examined at length. In cross- examination he admitted that the police during investigation had also associated two persons, namely, Muhammad Azeem and Muhammad Iqbal regarding the same occurrence. He was confronted with his statement made before the police wherein he had not stated that Mukhtar, Behram Khan, Hakam Khan, Muhammad Yaqoob, Allah Bakhsh and Ikhtiar were having any Ganties or Wahola when present on the roof. He could not give any explanation with regard to this improvement. He had also stated that throughout the occurrence the appellants kept on firing in the air.
16. We have gone through the statements of both the eye-witnesses very carefully. As far as Ghulam Abbas, PW, is concerned, his presence at the spot cannot be doubted. The occurrence took place in his house. It was also in evidence that his wife on the fateful night had gone to visit his daughter, and in such circumstances, his presence in the absence of his wife from the house was more necessary. Therefore, we hold that he was present at the spot. As far as the first incident is concerned whereby after making water was going back inside his room, he saw Ahmad Nawaz, Rab Nawaz, Nawab Khan and Sultan Sikandar Khan present on the roof of his house, no exception to it can to taken. Ahmad Nawaz fired at him and he rushed inside his room. Thereafter, it was his own case that he could not see any one, though he heard Ahmad Nawaz calling the other appellants by their names. We have considered this aspect and agree with the submission of the learned counsel for the appellants that it was extremely unnatural on the part of Ahmad Nawaz to have called his co-accused by their names and parentage. Even otherwise also, it would be quite doubtful whether he could hear them talking because his case was that shots were being fired throughout. Even if it be conceded that said Ahmad Nawaz called his co-accused only by their names without parentage, yet their involvement would be doubtful because there could be other persons by the same name as well. Iii the absence of any recovery at the instance of any of them, their case would remain doubtful. As far as Ghulam Akbar, PW-12, is concerned, we hold, though his huse was near the spot yet his having witnessed the occurrence would be doubtful. According to him, when he heard the fire-shots, he climbed on the laddr to the roof of his house which was only 33 feet away, and witnessed the occurrence. As discussed earlier, he also had enmity of murders with the appellants side and in such circumstances he would never have taken the risk of exposing himself when indiscriminate firing was being done. He would have seen the first part of the occurrence when Ahmad Nawaz fired at Ghulam Abbas. Thereafter, when they resorted to indiscriminate rapid firing, he could not have possibly climbed up the ladder to witness the occurrence. It he had done so, he would definitely have received some injuries.
17. For' what has been discussed above, we hold that reliance on the statements of Ghulam Abbas and Ghulam Akbar Khan with regard to the first incident when Ahmad Nawaz, Rab Nawaz, Nawab Khan and Sultan Sikandar Khan while standing on the roof of Ghulam Abbas, fired at him, can be placed. As their statements to that extent are corroborative to each other. In such circumstances, their identity and presence is proved. As far as the remaining appellants, namely, Behram Khan, Muhammad Yaqoob, Hakam Khan and Allah Bakhsh are concerned, their participation at the spot is not free from doubt. No recovery was effected from them, therefore, giving the benefit of doubt, we accept their appeals and set aside the convictions of Behram Khan, Muhammad Yaqoob, Hakam Khan and Allah Bakhsh. They shall. Be released forthwith if not required in any other case.
18. As far as Nawab Khan and Sultan Sikandar Khan appellants are concerned, their identity and participation in the occurrence is established beyond any doubt. As far as the quantum of sentence of Nawab Khan and Sultan Sikandr Khan is concerned, we do not agree with the reasons of the learned trial Court that since no overt act as such as was attributed to them, therefore, it was a case of imprisonment for life. It has been established that these two appellants along with their absconding co-accused resorted to indiscriminate firing. They threw petrol bombs and grenades inside the house of the complainant, which resulted in the deaths of four children. All of them were less than 18 years of age. It would be immaterial whether any overt act specifically was attributed to them or not in the circumstances of the case. The mere fact that at the dead of night they were found on the roof of the house of the complainant wherein a big hole was made, through which petrol bombs and grenades were thrown inside resulting in murders of four children would be sufficient to rule out of consideration any mitigating circumstances. In these circumstances, while dismissing their appeals, we alter their convictions and sentences from imprisonment for life to death on each count. Both of them shall be hanged by the neck till dead. The convictions and sentences with regard to other offences are maintained. Sentences of fine are also maintained.
The appeal is disposed of in the terms stated above.
Nawab Khan and Sultan Sikandar are on bails. The orders of their bails stand set aside. They shall be taken into custody through non-bailable warrants for undergoing the sentences.