' MUHAMMAD NAWAZ ABBASI, J.--- Fateh Shah aged 35 years, Sabir Shah aged 30 years sons of Imam Shah and Shabbir Shah aged 19 years son of Ghulam Shah appellants alongwith Imdad Shah, Masroor Shah and Hassan Shah were tried for the charge under section 148/302/307/149, P.P.C. By the learned Sessions Judge, Sahiwal who vide judgment dated 5-2-1985 convicted the appellants under section 302/34, P.P.C. And awarded them life imprisonment with a fine of Rs,10,000 each or in default thereof to suffer three years' R.I. The appellants were also directed to pay Rs,10,000 each to the legal heirs of each deceased as compensation and in default thereof to undergo six months' R.I. Each. The appellants were also convicted under section 307/34, P.P.C. And sentenced to three years' R.I. Each with a fine of Rs,5,000 each and in default thereof to suffer R.I. For six months. Both the sentences were ordered to run concurrently.
' This judgment will dispose of Criminal Appeal No,45 of 1985 filed by Fateh Shah etc. Criminal Revisions Nos.93 of 1985 and 124 of 1985 filed by Abid Hussain Shah and Criminal Revision No,177 of 1985 filed by the State.
2. The facts of the case as disclosed by Abid Hussain Shah complainant in the F.I.R. Are that on 18- 12-1983 at 7 a.m. Sajid Shah, Ahmad Sher Shah, and Niaz Shah were smoking hubble-bubble at their Dhari. Yousaf Shah was busy in putting fodder to the cattle whereas the complainant and Muhammad Hussain were cutting fodder in the Toka machine. Mst. Zainib deceased, Mst. Bakhan, Mst. Rajjan and Mst. Fatima P.Ws. Sister of the complainant were busy in other domestic work. The accused appeared from the direction of Dhari of Fateh Shah. Sabir Shah and Shabbir Shah were armed with pistols, Fateh Shah armed with .12 bore gun, Bahawan Shah with Balm, Masroor Shah and Imdad Shah were armed with hatchets. On the alarm raised by Masroor Shah to take the revenge of the murder of his father, all the three appellants started firing with their respective weapons causing injuries to Ahmad Sher Shah, Niaz Shah and Sajid Shah. Sajid Shah suffered injury in his abdomen on the right side, Ahmad Sher Shah on the right arm, forehead and neck whereas Niaz Shah suffered injuries on the right side of the head and right arm. Yousaf, Mst. Fatima, Mst.
Rajjan and Mst: Bakhan when ran towards the deceased, Bahawan Shah infficted Balm blows to Yousaf. Masroor Shah caused hatchet injuries on Mst. Rajjan and Hassan Shah to Mst. Bakhan.
Imdad Shah inflicted hatchet blow on Mst. Fatima. Fateh Sher after utilizing all cartridges with him inflicted blows to Mst. Fatima with butt of gun which was broken. The appellants dragged the dead body of Ahmad Sher Shah towards their own Dhari and Mst. Zanib ran towards that side with the request not to drag the dead body of his brother when Shabbir Shah fired at her and caused her death.
3. The motive for the occurrence was to take the revenge of the murder of Jewan Shah, father of Masroor Shah and Hassan Shah in whose murder case Amir Shah, Ahmad Sher Shah deceased, Niaz Shah P.W. And Muhammad Hussain were the accused.
4. The case was registered against the appellants and their co-accused on the statement of Abid Hussain Shah complainant through F.I.R. Exh.P.O. At 10-30 a.m. On 18-12-1983 recorded by Muhammad Akbar S.I. P.W.2, the Investigating Officer who prepared the inquest report Exh.P.H./2, Exh.P.G./2 and Exh.P.J/2 in respect of Sajid Hussain Shah, Ahmad Sher Shah and Mst. Zanib deceased and despatched the dead bodies for post-mortem examination. He took into possession blood-stained earth from three places vide memos. Exh.P.P., Exh.P.Q. And Exh.P.R. The crime empties Exhs.P.25 to P.34 were taken into possession vide memo. Exh.P.S. And prepared the site plan Exh.P.F.
Of the place of the occurrence. He also arrested Shabbir Hussain Shah, Bahawan Shah, Hassan Shah, on 23-12-1983 and thereafter Ghulam Asghar A.S.I. P.W.13 took over the investigation. On 30- 12-1983 Sabir Shah led to the recovery of .12 bore pistol P.18 from his residential house which was taken into possession vide memo. Exh.P.Y. Shabbir Shah got recovered pistol P.19 from his residential Kotha which was taken into possession vide memo. Exh.P.2. Fateh Shah appellant was arrested by Ghulam Asghar A.S.I. On 22-2-1984. The appellant led to the recovery of gun P.24 with a broken butt which was taken into possession vide memo. Exh.P.EE.
5. Lady Doctor Bushra Hashmat P.W.1 medically examined Mst. Rajjan Bibi on 18-12-1983 and found the following injuries on her person:--
(1) An incised wound of 8 c.m. x 2 c.m. x bone deep on right side of top of head.
(2) A contusion of 5 c.m. x 4 c.m. On 10th rib posteriorly about 2 c.m. Left to vertebral column.
' In the opinion of doctor injury No,1 was caused by sharp-edged weapon and declared grievous whereas injury No,2 was declared simple.
' On the same day she examined Mst. Bakhan and found the following injuries on her person:--
(1) An incised wound 10 c.m. x 4 c.m. x muscle deep on the lower part of left forearm.
(2) A contused swelling 10 c.m. x 6 c.m. In 'front of lower part of left forearm.
(3) A contused swelling of 12 c.m. x 8 c.m. On the upper part of right forearm.
' She examined Mst. Fatima Bibi on 19-12-1983 at 10 a.m. And found the following injuries on her person:
(1) An incised wound of 5 c.m. x 1 c.m. x bone deep on right side of head 5 c.m. To the right of sajjital suture.
(2) Multiple small abrasions on anterior surface of right forearm in an area of 6 c.m. x 8 c.m. Just above wrist-joint.
(3) A swelling of 15 c.m. x 10 c.m. On right forearm just below elbow-joint.
(4) An abrasion of 4 c.m. x 2 c.m. On right forearm posteriorly about 4 c.m. Below elbow-joint.
(5) A contusion of 5 c.m. x 5 c.m on middle of left upper arm.
(6) A contusion of 12 c.m. x 10 c.m. On right lumber region posteriorly.
(7) A contusion of 5 c.m. x 8 c.m. Just below angle of scapula on right side posteriorly.
(8) An abrasion of 5 c.m. x 5 c.m. On injury No,7.
(9) An abrasion of 10 c.m. x 10 c.m. About 4 c.m. Lateral to injury No,7.
(10) A contusion of 5 c.m. x 5 c.m. Along latteral border of right scapula.
(11) A contusion of 10 c.m. x 4 c.m. On spite of right scapula.
(12) An abrasion of 5 c.m. x 6 c.m. Along medial border of right scapula.
(13) A contusion of 15 c.m. x 5 c.m. On lower part of left scapula.
(14)A contusion of 15 c.m. x 6 c.m. On left lumber region along left costal region.
(15)A contused swelling of 8 c.m. x 8 c.m. On top of right shoulder.
6. Dr. Zaheem Marghoob P.W.5 conducted post-mortem examination on the dead body of Ahmad Sher Shah deceased and found the following injuries on his person:--
(1) A fire-arm wound 3/4 c.m. x 3/4 c.m. Deep going on right side of forehead 2 c.m. Above right eyebrow. It was wound of entry.
(2) A fire-arm wound 3/4 c.m. x 3/4 c.m. Deep going on front of lower part of neck just above and medial to the right sterno-clavicular joint. (wound of entry).
(3) The fire-arm wound of 3/4 c.m. x 3/4 c.m. Deep going on back lower part of right forearm madial side (wound of entry).
(4) Fire-arm wound 3/4 c.m. x 3/4 c.m. Deep going on back lower part of right forearm, 1 c.m.
Medial to injury No,3 (wound of entry).
(5) Fire-arm wound 1 c.m. x 3/4 c.m. Deep going on back lower part of right forearm, 1-1/2 c.m.
Above and medial to injury No,4.
(6) A fire-arm wound 1-3/4 c.m. x 3/4 c.m. Deep going on ulna lower part of right forearm (exit wound).
(7) A fire-arm wound 3/4 c.m. x 3/4 c.m. Deep going on ulnar lower border 3 c.m. Above injury No,6 (exit wound).
(8) There is fracture of right forearm underneath the injuries mentioned above from 3 to 7.
' In his opinion injuries Nos.1 and 2 caused by fire-arms were sufficient to cause the death in the ordinary course of nature.
' He also conducted post-mortem examination on the dead body of Sajid Shah on the same day and found the following injury thereon:-- "Multiple injuries of fire-arm each one 1/2 c.m. x 1/2 c.m. Deep going in an area of 14 c.m. x 14 c.m. On front of right side of upper abdominal part just near to the right lower ribs. In the centre of the injuries viscera, liver mass, was protruding through grieved wound area. Skin over lower two ribs in the front received fire-arm wounds each one 1/2 c.m. x 1/2 c.m. Deep going, lower to right ribs in front also was injured by fire-arm against the injuries."
' In his opinion the death was the result of fire-arm injury.
' He also conducted post-mortem examination on the dead body of Mst. Zanib Bibi on the same day at 4-30 p.m. And found the following injuries on her person:--
(1) Fire-arm wound 3/4 c.m. x 3/4 c.m. Deep going on right chest, 8 c.m. Above and medial to the right nipple of breast.
(2) Fire-arm wound 3/4 c.m. x 3/4 c.m. x deep going on right chest 4 c.m. Above and medial to right nipple.
(3) Fire-arm wound 3/4 c.m. x 3/4 c.m. x deep going on right chest 5 c.m. Medial to right nipple at the level of nipple.
(4) Fire-arm wound 3/4 c.m. x 3/4 c.m. x deep going on right chest 10 c.m. Medial and below the right nipple.
(5) Fire-arm wound 3/4 c.m. x 3/4 c.m. x deep going on right chest 3 c.m. Above injury No,4.
' In his opinion fire-arm injuries on the person of deceased were sufficient to cause death in the ordinary course of nature.
' He medically examined Niaz Hussain P.W.10 on 18-12-1983 at 11-30 a.m. And found the following injuries on his person:--
(1) A rounded wound 1/2 c.m. x 1/2 c.m. With burnt margins substantaneous alongwith the swelling 1 c.m. x 1 c.m. x hard likely pellet inside the body at the right of parital region of head.
(2) A rounded wound 1/2 c.m. x 1/2 c.m. On posterior aspect of right upper arm in the middle wound was deep going.
' On the same day at 11-15 he also medically examined Yousaf Shah and found the following injuries on his person:--
(1) Incised wound 2 c.m. x 1/2 c.m. x skin deep on outer, middle of right arm.
(2) Incised wound 4 c.m. x 1-1/2 c.m. x deep going on front of right chest near the nipple.
(3) Incised wound 1 c.m. x 1/4 c.m. x skin deep at outer side of left chest wall.
(4) Incised wound 2 c.m. x 1/2 c.m. x skin deep front, middle left upper arm.
' All the injuries were caused by sharp-edged weapon.
7. The prosecution placed reliance on the evidence of motive, ocular account, recoveries of crime empties and the weapons of offence and the medical evidence and produced Abid Hussain Shah complainant P.W.8, Mst. Fatima P.W.9 and Niaz Shah P.W.10 injured as eye-witnesses. Chemical Examiner Report Exh.P.00 and Exh.P.P. And that of the Serologist Exhs.P.QQ. And P.RR. And the fire- arm Expert Exhs.P.SS. And P.TT. Were also made the part of the record.
8. The appellants admitted their relations inter se. However, denied the charge and the recoveries of weapons of offence and the crime empties. They pleaded that they have been falsely implicated because of enmity. The appellants did not produce any defence evidence.
9. Learned counsel for the appellants raised the following contentions:--
(i) That the prosecution has alleged different motive at different stages. Basically the motive according to the F.I.R. Was that of the revenge of the murder of Jewan Shah, father of Masroor Shah and Hassan Shah, the acquitted accused but at the trial the dispute of the land and litigation between the parties was introduced as a fresh cause and the application by the complainant to S.S.P. Against the appellant apprehending danger, two days before the occurrence was yet another motive pleaded at the trial.
(ii) That according to the prosecution's own case parties compromised the earlier matter and thus there was no occasion for the appellants to launch attack on the complainant.
(iii) That the presence of Abid Hussain Shah P.W.8 accused of murder case of Jewan Shah at the spot is doubtful for the reason of his having not been injured. He being target of the appellants was not to be spared.
(iv) That Mst. Fatima P.W.9 was medically examined on the next day and her statement under section 161, Cr.P.C. Was recorded with a delay of one month which creates a reasonable doubt with regard to her presence at the spot particularly keeping in view the fact that she had simple injuries on her person which could be self-inflicted and there was no justification not to remove her to hospital with the other injured.
(v) That the fire-arm expert's report does not carry any weight for the reason that the empties recovered from the spot were despatched after the recoveries of weapons of offence.
10. Learned AA.-G. Assisted by the learned counsel for the complainant submitted that Ahmad Sher deceased accused of murder of Jewan Shah, father of Hassan Shah, acquitted accused, was done to death whereas Abid Shah complainant was luckily saved, therefore, his presence cannot be doubted merely on the ground that he was not injured during the occurrence. He submitted that this is a broad daylight occurrence and the F.I.R. Was lodged immediately after the occurrence disclosing all material facts and, therefore, there cannot be a remote possibility of any deliberation and false implication.
' It has been strenuously contended that the appellants while attacking in extreme brutality committed three murders and injured four persons, including the ladies. There was no mitigating circumstance in favour of the appellants to withhold the normal penalty provided under the law and to award them lesser punishment. The appellants do not deserve any leniency in the matter of sentence.
11. We have heard the learned counsel for the appellants as well as the learned Law Officer assisted by the learned counsel for the complainant and perused the record carefully.
12. Sabir Shah and Fateh Shah appellants are real brothers and Shabbir Shah appellant is their sister's husband. Mst. Zanib Bibi deceased daughter of Amir Shah was wife of Fateh Shah appellant.
Hassan Shah and Masroor Shah acquitted accused are real brothers inter se and sons of Jewan Shah who was murdered about 10/11 years ago. Abid Hussain Shah complainant P.W., Muhammad Hussain P.W., Ahmad Sher Shah deceased and their father Ameer Shah were challaned in the murder case of Jewan Shah but were subsequently acquitted. Fateh Shah, Sabir Shah and Bahawan Shah are sons of maternal-uncle of Abid Shah complainant whereas Imdad Shah, acquitted accused is real son of Ahmad Sher Shah deceased. Mst. Fatima injured P.W.9 was the wife of Bahawan Shah acquitted accused. Hassan Shah and Masoor Shah acquitted accused are real brothers. However, she is married with the sister of Fateh Sher. The actual reason of animosity between the parties was the murder of Jewan Shah but because of the compromise the matter remained under control for some time and later on the relations between the parties became strained on account of the dispute with regard to the partition of joint Khata of the land of Ameer Shah father of the deceased with the appellants. The appellants side wanted to get forcible possession of the land from the complainant party but because of stay order in the civil suit filed by Ameer Shah, father of Ahmad Sher Shah etc. Deceased the possession of complainant side could not be disturbed. However, Ahmad Sher deceased apprehending danger to his life at the hands of appellants two days earlier moved an application to S.S.P., Sahiwal against them. The motive as disclosed in the F.I.R. Not disputed by the defence at the trial was to take revenge of the murder of Jewan Shah, and the dispute over the possession of land was in fact an additional factor making the situation more serious which compelled Ahmad Sher Shah deceased to move an application to S.S.P., Sahiwal. Even if the immediate cause for the occurrence was the result of litigation and the dispute over the possession of land, still the real motive was the murder of Jewan Shah. It is pertinent to note that the appellant party attacked the complainant party at their Dhari and caused death of Ahmad Sher and Sajid Hussain Shah and injured Niaz Shah son of Ameer Shah who were involved in the murder case of Jewan Shah and has also dispute of land with them.
Therefore, non-mentioning of the land in dispute and moving of application to S.S.P. In the F.I.R. Was not an introduction of new motives. We have, therefore, no doubt in our mind that the appellants had a strong motive for launching the attack.
13. The ocular account in the present case has been furnished by Abid Hussain Shah P.W.8 real son of Ameer Shah, Mst. Fatima P.W.9, wife of Bahawan Shah, acquitted accused and aunt of Imdad Hussain Shah accused and Niaz Hussain Shah injured P.W.10. Mst. Bakhan and Mst. Rajjan, injured P.Ws. Were not produced as being unnecessary. The defence has challenged the presence of Abid Hussain Shah P.W.8 advancing the reason that he being an accused in the case of murder of Jewan Shah could not be spared by the appellants if present at the spot. The presence of Mst.
Fatima has been questioned on the ground that she was not medically examined on the same day with other injured and that her statement was recorded about a month after the occurrence.
14. It was sheer luck of Abid Shah P.W.8 that he did not receive any injury during the occurrence but it cannot be a reason to suggest his non-presence at the spot. He after the occurrence immediately proceeded to the police station situated at a distance of 9 miles and lodged report containing all material facts which fact established his presence at the spot beyond any doubt.
The occurrence took place at 7-30 a.m. At Dhari of Ameer Shah, father of the complainant and it was natural for the family of Ameer Shah to be present at Dhari at the relevant time, therefore, the presence of Abid Shah complainant and other witnesses at the scene of occurrence was natural.
Mst. Fatima, had 15 injuries on her person which could not be self-inflicted. The prosecution instead of creating false evidence could produce Mst. Bakhan and Mst. Rajjan injured P.Ws. At the trial. Thus, arguments of the learned defence counsel with regard to the non-presence of Fatima at the spot are without any substance. The delay in medical examination and recording of her statement under section 161, Cr.P.C. Cannot be a circumstance to suggest her non-presence at the spot as from the contents of F.I.R. Lodged immediately after the occurrence and the statements of Abid Shah and Niaz Shah P.W.s. Mst. Fatima was present at the Dhari at the time of occurrence and also received injuries during the occurrence. Thus the subsequent events i,e. The delay in medical examination and recording of statement under section 161, Cr.P.C. In no way can be the factors to exclude her presence from the spot. She denied that she had strained relations with her husband Bahawan Shah accused and for that reason deposed falsely. This suggestion in fact goes to establish her coming to the house of her father 20 days ago and her presence at the spot on the day of occurrence. She stated that we sisters used to work at the Dhari in routine. The defence has not seriously questioned the presence of Niaz Hussain injured P.W. The next arguments of the learned counsel for the appellants that the medical evidence is in conflict with ocular account as the seats of the injuries were not described in the F.I.R. But by the P.Ws. At the trial do not find mention in the medical evidence are without any force for the reason that the exact locale of fire- arm injuries is not expected to be noticed by the P.Ws. Therefore, it is not a ground either to hold the medical evidence in conflict with the ocular account or to disbelieve the P.Ws. The role of causing injuries by each appellant to the deceased as disclosed by the P.Ws. At the trial is not belied by the medical evidence.
17. It has been contended that according to the expert report only three crime empties were found to have been fired from .12 bore pistol recovered from Sabir Shah and one crime empty was found fired from pistol recovered from Shabbir Shah appellant whereas three empties were not fired from any weapon recovered by appellants. There is no substance in the arguments for the reason that out of nine empties recovered at the spot three matched with the weapon recovered from Sabir Shah appellant whereas one with Shabbir Shah appellant. Fateh Sher appellant was arrested later on and remaining three empties were found matched with the weapon of offence recovered from him. The crime empties were sent before the date of despatch of the weapon of offence, thus the recovery of crime empties and the weapon of offence has furnished a strong corroboration. The three murders were committed in a brutal manner at the Dhari of Amir Shah in broad daylight which could not go unnoticed. The eye-witnesses are inmates of the house and two of them were also injured in the occurrence. Their evidence is confidence inspiring and even without asking for corroboration from any other evidence and source is sufficient to convict the appellants. However, the eye-witness account is amply corroborated by evidence of motive, the recovery of weapons of offence and their matching with the empties recovered from the spot and further by medical evidence, The contents of the F.I.R. Is an additional source to judge the truthfulness of the eye- witnesses.
18. In the light of the above discussion we have no doubt in our mind about the presence and participation of the appellant in the occurrence. They are attributed specific role and were found responsible for causing death of Ahmad Sher Shah, Sajid Shah and Mst. Zanib deceased. There is no exception to the findings arrived at by the learned trial Court with regard to the guilt of the appellants. We accordingly dismiss their appeal and maintain their conviction under section 302/34, P.P.C. Awarded to them by the learned trial Court.
19. Having regard to the facts and circumstances of the case mentioned above, while taking up the matter for enhancement of sentence in criminal revision, filed by the State and also by Abid Hussain Shah, we noticed that the learned trial Court without advancing any cogent reason or pointing out mitigating circumstances withheld normal penalty provided under the law for the offence committed by the appellants. The evidence of the eye-witnesses is supported by the contents of the F.I.R. With no discrepancy and contradiction except that in the F.I.R. The injuries of individual deceased with the fire of each appellant was not mentioned which fact neither reduced the role of the appellant nor created any confusion with regard to the causing of their injuries to the deceased. The fire-arm injuries on the person of two deceased namely Sajid Shah and Ahmad Sher Shah are attributed to Sabir Shah and Fateh Shah in the F.I.R. But without specification.
However, the causing of fire-arm injury by Shabbir Shah to Mst. Zanib is specifically mentioned in the F.I.R.
20. The learned trial Court awarded lesser penalty to all the three appellants on the ground that there was no specific attribution of the fatal shot to either of the three appellants in the F.I.R. And it was not known that which injury was caused by whom. We are afraid, the learned trial Court has omitted to take notice of the fact that according to F.I.R. Shabbir Shah, Fateh Shah and Sabir Shah fired with their respective weapons and as a result thereof Sajid Shah, Ahmad Shah and Niaz Shah were injured. At the trial the P.Ws. Have categorically clarified the position stating that the shot fired by Sabir Shah hit Sajid Shah whereas Fateh Shah appellant fired at Ahmad Sher Shah deceased and Shabbir at Niaz Shah. Shabbir appellant has been attributed a specific role of causing fire-arm injuries to Mst. Zanib in the F.I.R. As well as by the P.Ws. At the trial. We have given our anxious thought for any other mitigation in favour of any of the appellants. Particularly the close relationship of the parties inter se but we see that high degree brutality was shown in the occurrence taking life of one innocent female and two male and causing injuries to five other inmates of the house including three ladies. All the injured and deceased are members of one family. There is total denial on the part of defence, hence relationship can also be not a circumstance in the present case for lesser punishment. The lesser sentence under section 302, P.P.C. Is not merely a matter of discretion as of grace or choice, rather there must be a host of extenuating and mitigating circumstances giving justification for the lesser punishment. The reason given by the learned trial Court is perverse and manifestly wrong in the facts of the case in hand and the appellants were injudiciously awarded lesser punishment. 'the mere fact that according to the F.I.R. It is impossible to say which of the accused inflicted which injury is no reason at all for refraining from passing the death sentence. We are therefore, of the view that sentence passed by the learned trial Court is improper and does not meet the ends of justice. There was no justification to withhold the normal penalty of death in the present case. We accordingly accept the revision filed by the State and by complainant and enhance the sentence of all the three appellants from life imprisonment to death. The appeal filed by Fateh Shah etc. Appellants fails and is dismissed. The revision filed by complainant against the acquittal of Bahawan Shah etc. Is also dismissed.