1. ' JUSTICE RASHID AZIZ KHAN (MEMBER).---Khuda Yar son of Punno, Ashiq son of Ghulam Ali, Ansar son of Falak Sher, Ilyas son of Sadar Din, and Yaseen son of Siddique, all Yoya by caste, were sent up by Police Station Arifwala, District Sahiwal, for trial for the murders of Ali Sher, Zulfiqar, Faiz Ahmad, Muhammad Siddiq and Punnu, for offences under section 302/148/149, P.P.C. Mr. Justice (Retd.) Muhammad Sharif Chaudhry, Judge, Special Court for Speedy Trials, Multan, vide his judgment dated 30-9-1991 gave the benefit of doubt and acquitted Ashiq and Ilyas of all the charges. The remaining accused, namely, Khuda Yar, Ansar and Yaseen were, however, found guilty under section 302/34, P.P.C., and each of them was convicted and sentenced to death with a fine of Rs,1,00,000 (Rupees one lac) on. Each count. It was further directed that the fine, if recovered, shall be equally paid to the heirs of each deceased as compensation under section 544-A, Cr.P.C.
2. In this appeal the convicts have challenged their conviction and sentence.
3. ' The State has filed an appeal challenging the acquittal of Ashiq and Ilyas. This judgment shall dispose of both the matters.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.KK. Lodged by Mst. Zubaida on 18-5-1989, was to the effect that she was married to one Muhammad Yar 6/7 years earlier. Her husband was employed in the Army, therefore, she used to live with her parents. Mst. Rehmat and Mst. Arshan owned 2 Kanals of land in Square No.5, and 2 Kanals 11 Marlas in Square No.19, which was under cultivation of first informant's father for the last 26/27 years. The abovesaid two ladies were first informant's paternal-aunts. The land was mutated by the ladies in favour of Khuda Yar, first cousin of the first informant, in December, 1988. First informant's father filed a suit in January, 1989 challenging the mutation, whereupon a stay order was issued. In February, 1989, Assistant Commissioner, Arifwala, cancelled the mutation in favour of Khuda Yar. On 18-5-1989 at about 11-30 a.m., it was their turn of water, therefore, Ali Sher and Zulfiqar, brothers of the first informant were watering the said land, whereas first informant's father Faiz Ahmad with her maternal-uncles Muhammad Siddiq and Muhammad Ali with Muhammad Iqbal were working in the adjoining fields.
4. First informant had brought lunch for her brothers and father. At about 12 noon, Khuda Yar, Yaseen and Ansar, armed with guns, with Ashiq and Ilyas, armed with hatchets, and Punnu, empty-handed, came there. Punnu raised a Lalkara that the other side be taught a lesson for getting the mutation cancelled. Khuda Yar fired hitting on the chest of Zulfiqar, who fell down. Ansar appellant fired his gun hitting in the stomach of Faiz Ahmad. Yaseen fired twice hitting Ali Sher, brother of the first informant, on his chest. Khuda Yar fired again hitting on the chest of the deceased. With the result of the injuries, Zulfiqar, Faiz, Ali Sher and Siddique succumbed to the injuries at the spot. After the commission of the offence, the assailants left the spot with their weapons. They had travelled a distance of about two Killas when Ashiq and Ilyas belaboured Punnu with their hatchets.
5. Resultantly, he also died. He was done to death by the accused persons with a view to create defence for themselves.
3. F.I.R. Exh.P.KK. Was lodged by Mst. Zubaida, daughter of Faiz Ahmad, deceased, P.W.7. It was recorded by Siffat Hussain Shah, S.I., P.W.9 on 18-5-1989 at 1-05 p.m. At Police Station Arifwala, six miles from the spot, with regard to an occurrence which had taken place the same day at 12 noon.
6. Siffat Hussain Shah, S.I., after recording statement of Mst. Zubaida, P.W. Came to the spot and prepared injury statement and inquest report Exh.P.K. And Exh.P.L., of Ali Sher deceased. Faiz, deceased's injury statement and inquest report Exh.P.N. And Exh.P.O. Were prepared by him.
7. Siddique's injury statement and inquest report Exh.P.B. And Exh.P.C. Were prepared. Zulfiqar, deceased's injury statement Exh.P.E. And inquest report Exh.P.F. Were prepared. Similarly, Punnu, deceased's injury statement Exh.P.H. And inquest report Exh.P.I. Were prepared by him. He arranged for transporting the dead bodies to the mortuary for post-mortem examination. Blood-stained earth from each place where the dead bodies were lying, was also secured and sealed into parcels. He secured one crime empty P.15 from the place where Ansar, accused, was standing vide memo. Exh.P.BB. He picked two crime empties P.16 and P.17 from the place where Yaseen accused was alleged to have fired, vide memo. Exh.P.CC. Two crime empties P.18 and P.19 were secured from the place where Khuda Yar was alleged to have fired, vide memo. Exh.P.DD. He also secured 120 broken pieces of bangles P.25 from near the dead body of Ali Sher vide memo. Exh.P.JJ. He got prepared site plans Exh.P.Q., Exh.P.Q./1 and Exh.P.Q./2 from Muhammad Khan, Patwari, on 1-6-1989 and gave his notes in red ink thereunder. Thereafter, the investigation was taken over by Amir Abdullah S.H.O.
8. ' Amir. Abdullah S.H.O., P.W.10 took over the investigation and secured last worn blood-stained clothes of Siddique, deceased, vide memo. Exh.P.R. He secured last worn clothes of each of the deceased vide memo. Exh.P.S., Exh.P.T., Exh.P.U. And Exh.P.V. He arrested all the accused on 29-5- 1989.
9. ' On 8-6-1989, Ilyas accused while in custody, got recovered bloodstained hatchet P.20 from under a cot lying in his Kotha. It was secured vide memo. Exh.P.EE. On the same day, Ashiq while in custody got recovered blood-stained hatchet P.21, which was secured vide memo. Exh.P.MM. On the same day, Ansar, accused, while in custody, got recovered .12 bore gun P.22 from his Kotha which was secured vide memo. Exh.P.GG. Yasin, on the same day, also got recovered .12 bore gun P.23 from underneath a Shisham tree vide memo. Exh.P.HH. Khuda Yar, accused, on the same day also led to the recovery of .12 bore gun P.24 from a box inside his house which was secured vide memo. Exh.P.II.
10. He recorded the statements of the witnesses, and after usual investigation, challaned the accused.
4. Dr. Tanvir Ahmad, P.W.1, Medical Officer, Civil Hospital Arifwala, on 18-5-1989 at 5-30 p.m., conducted the post-mortem examination on the dead body of Muhammad Siddique and found six fire-arm injuries. Injuries Nos.5 and 6 were the wounds of exit, the rest were wounds of entry. In his opinion, the death had occurred due to shock and haemorrhage caused by injuries Nos.1 to 5, which were sufficient to cause death in the ordinary course of nature individually and collectively.
11. The injuries were ante-mortem caused with fire-arm.
12. ' On 18-5-1989, he conducted the post-mortem examination on the dead body of Zulfiqar and found 12 fire-arm injuries. Injuries Nos.1, 2, 3 and 4 were wounds of exit. In his opinion, the death had occurred due to shock and haemorrhage caused by injuries Nos.1 to 12 which were fatal and were sufficient to cause death in the ordinary course of nature, collectively and individually. All the injuries were ante-mortem caused with fire-arm.
13. ' On the same day, he conducted the post-mortem examination on the dead body of Punnu and found 13 injuries. In his opinion, death had occurred dud to acute shock and haemorrhage caused by injuries Nos.1 to 13 collectively, which were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. Injuries Nos.1 to 9 and 13 were caused with a sharp-edged weapon.
14. ' On the same day, he also conducted the post-mortem examination on the dead body of Ali Sher and found four fire-arm injuries. In his opinion, death had occurred due to shock and haemorrhage caused by injuries Nos.1 to 4 which were ante-mortem and sufficient to cause death in the ordinary course of nature, individually and collectively.
15. ' On the same day, he conducted the post-mortem examination on the dead body of Faiz and found two injuries. In his opinion the death had occurred due to acute shock and haemorrhage caused by injury No.1, which was fatal and sufficient to cause death in the ordinary course of nature. The injury was ante-mortem caused with a fire-arm. Injury No.2 was caused with a blunt weapon.
5. The prosecution to establish its case had produced 11 witnesses in all. Dr. Tanvir Ahmad, P.W.1 had conducted the post-mortem examinations, as has already been discussed. Muhammad Khan, P.W.2 had prepared site plans Exh.P.Q., Exh.P.Q./1 and Exh.P.Q./2 at the instance of the police. Allah Yar, F.C. P.W.3, and Manzoor Ahmad, F.C. P.W.4 had escorted the dead'bodies to the mortuary, Muhammad Majeed, H.C./Moharrir, P.W.5 had kept the sealed parcels pertaining to this case, in the Malkhana and thereafter he sent the same to the office of Chemical Examiner. He had also kept three sealed parcels containing crime empties, and sent the same to the office of Director Forensic Science Laboratory, Lahore on 28-5-1989. So long the said parcels remained in his custody, nobody tampered with them. The ocular account was furnished by Muhammad Iqbal and Mst. Zubaida, P.Ws.6 and 7, respectively. Muhammad Ramzan, P.W.8 had delivered the sealed parcels at Lahore in the respective offices. The case was initially investigated by Siffat Hussain Shah, S.I., P.W.9, and Muhammad Amir Abdullah, Inspector, P.W.10. Muhammad Latif, Constable, P.W.11, had delivered three parcels in the office of Director, Forensic Science Laboratory, Lahore.
16. ' The accused persons, at the conclusion of the prosecution evidence, were examined without oath.
17. They refuted the prosecution allegations and pleaded innocence. All of them, except Khuda Yar, did not appear in their defence on oath. Khuda Yar, while refuting the prosecution allegations, stated that on the fateful day he with his father was present at the spot. After having a round of his land when he came back to the spot, he saw the deceased persons came and started belabouring his father Punnu. He in the defence of his father and provocation fired at them and killed four of the assailants. He further stated that none of the co-accused was present at the spot. The accused had also produced defence witnesses. Haji Muhammad, D.W.1 stated that Ilyas and Ashiq accused were present at the Chaliswa n of his brother Dara in their village, which is at a distance of 150 miles from the spot. Matlab Khan, D.W.2 also deposed about the alibi of Ashiq and Ilyas by stating that they were present at the Chaliswa n of one Dara. Muhammad Ashraf, D.W.3 stated that on 18-5- 1989 at about 12 noon he was present on the canal bank and saw Punnu irrigating his land. In the meanwhile, Zulfiqar, Faiz, Ali Sher and Siddique came there, armed with hatchets, and started belabouring Punnu. Khuda Yar, accused, who was having a round of watercourse, fired with his gun hitting all of them. Riaz Ahmad alias Raja, D.W.4 also deposed about the deceased persons having attacked Punnu and thereafter Khuda Yar fired at them. Muhammad Yousuf, D.W.5 also appeared in the defence version of Khuda Yar, accused.
6. It was contended by learned counsel for the appellants that the case against them was highly doubtful. Argued that the prosecution has not been able to prove beyond doubt that the land in dispute was in the possession of the deceased persons. Submitted that the defence of Khuda Yar, if put in juxtaposition with the prosecution version, appears to be more plausible and reasonable, therefore, the same should have been relied upon. It was assericd that one of the reasons given by the learned trial Court for the acquittal of Ilyas and Ashiq was that they were residents of a Chak which was 40 miles away, from the spot. Argued that Yascen appellant was also resident of the sam,Chak, therefore, the same ground would be applicable to him. Contended that the crime empties secured from the spot, did not match with the gun of Yasin, therefore, the prosecution had failed to prove its case against him beyond doubt. Contended that the prosecution has also accepted the presence of Punnu at the spot and, in such circumstances, the chances of Khuda Yar and Ansar having acted under the influence of their elder Punnu, deceased, cannot be ruled out and in such circumstances, it would not be a case of capital punishment.
18. ' Learned counsel for the State controverted the contentions and submitted that the defence version put forth' by Khuda Yar was neither plausible nor reasonable. Contended that even if the defence version was accepted, it would not advance the case of the convicts because they had resorted to firing after Punnu was done to death. Asserted that the statements of the defence witnesses were discrepant and did not inspire confidence, therefore, should be ruled out of consideration. In support of appeal against acquittal, it was argued that the F.I.R. Was got registered without any delay, wherein all the assailants were mentioned including Ilyas and Ashiq.
19. Submitted that the trial Court had erred by giving the benefit of doubt solely on the ground that no overt act was ascribed to them by the prosecution. Submitted that since the co-accused were armed with guns and had achieved the object of murdering the deceased therefore, there was no occasion for them to have used the hatchets, but it would not mean that they did not share the common object.
7. We have gone through the evidence with the assistance of the learned counsel and heard arguments from both the sides. We have noticed that the time of occurrence, place of occurrence and number of deceased persons are not disputed by either side. In such a situation, it is proved that the occurrence took place on 18-5-1989 at 12 noon, near the land of both the parties. The prosecution in order to establish its case has mainly relied upon the ocular account furnished by Iqbal and Zubaida, P.Ws.6 and 7, respectively. Both of them have given a detailed account of the occurrence. They were subjected to lengthy cross-examination. The assertion of both the eye- witnesses that after the commission of murders when the assailants alongwith Punnu were going back, Ashiq and Ilyas at a distance of about two Killas caused number of injuries to Punnu, is not convincing at all. Both the eye-witnesses stated that Punnu was done to death by the accused side to create some defence. We have considered this aspect, but reject the same for the reason that if some defence was to be created, then Punnu should have been done to death at the spot and not at a distance of two Killas. We have seen the site plan Exh.P.Q., according to which his dead body was lying at a distance of 500 feet from the spot. Both the eye-witnesses are closely related to the deceased and have been disbelieved as far as the occurrence relating to murder of Punnu is concerned. Their presence at the spot cannot be doubted. Mst. Zubaida, P.W., being daughter of Faiz Ahmad, would have been there as it is a normal practice for the women-folk to take lunch to the fields for their men working there. Iqbal, P.W. Has given a plausible explanation with regard to his presence at the spot.
20. ' In these circumstances, we hold that the eye-witnesses were present at the spot but in view of the background of enmity and improvements made in the testimony, we hold that they can be relied upon only if their testimony is corroborated by some evidence.
21. ' We have noticed that the Investigating Officer had secured crime empties from the spot on the day of incident and they were sent to the office of the Forensic Science Laboratory before the recovery of guns at the instance of the appellants. The guns recovered at the instance of the appellants were sent subsequently. According to the report of the Forensic Science Laboratory, crime empties secured from the spot matched with the gun of Khuda Yar and Ansar. As far as Yasin appellant is concerned, none of the crime empties matched with his gun. This important factor makes his participation in the occurrence highly doubtful, specially keeping in view the fact that he was resident of a Chak which was 40 miles away. Therefore, giving the benefit of doubt, we accept his appeal, set aside his conviction and direct that he shall be released forthwith, if not required in any other case.
22. As far as Khuda Yar and Ansar are concerned, their participation in the occurrence is proved beyond doubt. The ocular account finds full corroboration by the report of the Fire-arms Expert. We have considered the contention of the learned counsel for the appellants regarding the quantum of sentence and find some force in it. It is prosecution's own case that Punnu, deceased, with the appellants had come to the spot. A dispute regarding 2 Kanals and 11 Marlas of land was pending between the parties is accepted by both the sides. Both the sides have asserted that it was their turn of water. In these circumstances, the chances of Khuda Yar and Ansar acting under the influence of their elder Punnu, who is alleged to have raised a Lalkara, cannot be ruled out. If that be so, then it would not be a case for capital punishment.
23. For what has been discussed above, we hold that the prosecution has been able to establish its case beyond doubt against Khuda Yar and Ansar appellants. Therefore, while dismissing their appeals, we convert their death sentence to imprisonment for life on each count. The sentence of fine or in default thereof shall, however, be maintained.
24. ' Taking up the appeal against acquittal of Ashiq and Ilyas, we find that no overt act whatsoever was ascribed to either of them, not even a proverbial Lalkkara. Both of them were armed with hatchets but did not use the same or made an attempt. Admittedly, they were residents of a Chak which was 40 miles from the spot. Therefore, their presence at the relevant time at the spot does become doubtful. Except for their presence at the spot, no overt act is ascribed to them to indicate their sharing of the common object. Therefore, we hold that the learned trial Court has rightly given the benefit of doubt by acquitting them, to which no exception can be taken. Resultantly, the State appeal fails, which is, accordingly, dismissed.
25. ' For the reasons discussed above, appeal of Yasin is accepted. He is acquitted of all the charges.
26. Appeal of Khuda Yar and Ansar is dismissed with modification in their sentence from death to imprisonment for life on each count. State appeal also fails, which is accordingly, dismissed.
27. ' JUSTICE NAIMUDDIN (CHAIRMAN).---I agree. I have added a separate note.
28. ' The Government's efforts for Speedy Trial of cases involving heinous, gruesome, orutal and sensational crimes are laudable. The object of the legislation, under which the Special Courts for Speedy Trial are established, seems to curb crime, for, it appears that in some quarters it is thought that delay in the punishment of crimes is the only cause for increase in the crime. This may be partly correct. But what are the main causes for increase in the crimes, requires expert consideration and advice.
29. ' We had occasion to identify in Criminal Appeal No.1 of 1991 (Kamal A thar v. The State), some of the causes in the following words:-- "19. We may add that we have maintained the order of the trial Court as to the sentence awarded to Amar Rasool and Pervez under section 11 of the Offence of Zina (Enforcement of Hudood)
30. Ordinance, 1979 as these were the legal and only sentences that could be awarded to them but we feel that it will perhaps not help them to become good citizens because of the conditions and the environment in which the inmates of jails live, which one of us had occasion to visit. When they serve out their sentences, they would be most probably lost to the society and will continue to suffer thereafter because of society's attitude towards such persons."
20. This invites us to draw the attention of all those who are responsible for maintaining jails to look into the question of jail reforms so that those who are punished for violation of law, when come out after serving out their sentences, they become good citizens and not hardened criminals. We also invite the attention of those on whom the responsibility for building character and moral of the people lies to look into the causes: Why crime is on the increase? What are the causes and how they could be prevented for, prevention is better than cure. One cause which we can easily and readily point out is crime, action and sexy films. It is high time that the Film Censor Board in the country seriously censor those films which are affecting moral of people and tender minds who are more prone to action than realization of the consequence thereof. This is imperative and urgent because it is said that a country or a nation can easily be destroyed from within if the character of its people is destroyed."
31. ' We again had the occasion in Criminal Appeals Nos.4 and 5 of 1991 (Abdul Ghafoor and another v.
32. The State) to point out that many cases, due to defective or dishonest or faulty prosecution, end in acquittal of accused and have suggested that attention is required to be given in improving the standard of investigation and educating the investigation officers with the basic principles of Law of Evidence and requirement of proof.
33. ' We would here reiterate that one of the sources which is affecting moral fibre and creating disorder in the society is the crime and sex films. Perhaps, they are not providing as much entertainment as some people might think but inducing impressionable minds to commit crime for adventure or other psychological reasons. We would, therefore, venture to suggest to the Government, if they are serious in tackling the problem of increase in crime, to constitute a commission consisting of psycholgists of standing, outstanding educationists, leading doctors, prominent lawyers, eminent jurists and highly experienced police officers, to find out what are the causes of increase in crime and how it could be checked or curbed. We would further suggest that the report should be invited within a month or two. Meanwhile as a interim measure, except for some compelling State reasons, all imports of crime and sex films should be banned because experience has shown that the tender minds are prone to neglect or forget the punishment of the crime but the impact of adventure, bravery and chivalry shown, causes the commission of crime without realization of the consequences.