' KHALIL-UR-REHMAN RAMDAY, J.--- Talib Hussain, Khadim Hussain and Akhtar were tried by a learned Additional Sessions Judge at Lahore for committing the murders of Allah Ditta and his two sons, namely, Muhammad Rashid and Faqir Muhammad.
2. Through a judgment dated 25-9-1989, all the three accused had been found guilty of the commission of the said murders and having been convicted under section 302/34, P.P.C., each one of them was sentenced to death with a fine of Rs,50,000 or two years' R.I. In default of payment of fine on each of the three counts. The entire amount of fine was directed to be paid to the heirs of the three deceased persons.
3. Murder Reference No,217/89 seeks confirmation of the above-mentioned sentences of death while the three convicts impugn the above-mentioned convictions and sentences through Crl.
Appeal No,687/89.
4. Both these matters are being disposed of together through this single judgment.
5. The occurrence in question which had allegedly taken place at about Sehrivela on 5-5-1987 in the Dera of Allah Ditta deceased; had been reported by his widow, namely, Mst. Barkat Bibi, to Walayat Hussain Shah Inspector/ S.H.O. Of Police Station Manawan at about 5-30 a.m. The same day while the latter was present at the crossing of Chowk Talwara Road and the Katcha Path going towards village Awan Dhaiwala.
6. Mst. Barkat Bibi complainant had informed the said S.H.O. That they had a Dera known as Dera Jhalarianwala which was situate about two kilometres from village Awan Dhaiwala where she was residing alongwith her husband Allah Ditta deceased and her son Rashid deceased. She had further stated that their land was adjacent to the land of Talib and Khadim appellants and the two sides had a long-standing dispute about the Watt intervening the said land, to resolve which dispute, the respectables of the village had made a number of attempts but which dispute had remained unresolved.
7. She had further claimed that on the day preceding the day of occurrence, her two sons, namely, Rashid Ahmad deceased and Faqir Muhammad deceased were repairing the said Watt when the' said Talib and Khadim appellants reached the spot and while interfering with the same, commanded her two deceased sons to desist from touching the said Watt otherwise, the said Talib and Khadim would cover the said Watt with the dead bodies of the complainant party. She had further alleged that the situation was temporarily averted and her two sons then returned home while Talib and Khadim appellants also went away to their Dera which was adjacent to the above- said Dera of the complainant party.
8. The complainant had further stated that at night time, she went off to sleep at their Dera alongwith her deceased husband and her deceased son, namely, Rashid while her other son, namely, Faqir Muhammad deceased went away to the village where he resided with his children.
She had further stated that on the fateful night, her son-in-law, namely Ata Muhammad was also visiting them and he also went off to sleep at their Dera.
9. She had further alleged that the day of occurrence being days of Rama7an, she got up at Sehriwela to prepare the Sehri but Allah Ditta and Rashid deceased were still asleep in the courtyard and her son-in-law, Ata. Muhammad P.W. Was also asleep on a cot near the two deceased persons when Talib and Khadim appellants armed with .12 bore guns and Akhtar appellant armed with a carbine, reached there and after raising Lalkaras that they had come to finish the Watt dispute for ever, mounted an assult on the complainant party. Mst. Barkat Bibi had further claimed that all the three appellants fired shots with their respective weapons which landed on various parts of the body of her husband Allah Ditta deceased and that in the meantime, her son Rashid deceased and her son-in-law Ata Muhammad P.W. Woke up and ran away towards the village but were chased by the three appellants who followed them out while firing shots behind them. The complainant had further reported that she and one Hidayat who also had his Dera adjacent to the Dera of the complainant party and who had also reached the spot on hearing the report of fire-arms, also ran after the assailants while beseeching them to spare her son and son- in-law.
10. She had further stated that the three appellants finally reached Rashid deceased at a distance of about three Killas from their Dera and fired shots at him who fell down after receipt of the said shots.
11. The complainant had claimed that at the same time, her elder son, Faqir Muhammad deceased who was coming towards the Dera to fetch milk also reached near them and on hearing the alarm shouted as to what was going on and on hearing whose voice, the three appellants ran towards him and after reaching him also at a distance of about one Killa, fired shots at him, as a result of which, Faqir Muhammad deceased also fell down on the ground.
12. Mst. Barkat Bibi had finally stated that on reaching near Rashid deceased and subsequently near Faqir Muhammad deceased, she found that those two had lost their lives like her husband who had also succumbed to the injuries received by him.
13. During the course of investigation, Talib and Khadim appellants had been arrested on 8-5-1987 by Walayat Hussain Shah S.H.O. (P.W.3) while Akhtar appellant had been arrested on 26-5-1987 by the same police officer.
14. At the time of his arrest, Talib appellant was found in possession of a key P.14 which was recovered by the above-mentioned I.O. Vide memo. Exh.P.H. And on being led to his Dera by Talib appellant on 22-5-1987, the lock of the said Dera had been opened with the said key P.14 from where the said appellant had got recovered a gun P.15 which was seized vide memo. Exh.P.I. On the same day i,e. On 22-5-1987, Khadim appellant also led to the same Dera from where a gun P.16 was recovered at his instance vide memo. Exh.P.J.
15. Akhtar appellant had got a carbine P.17 recovered on 1-6-1987 which lay buried in a field of maize crop belonging to Talib and Khadim appellants which was taken into possession vide memo.
Exh.P.K.
16. It may be mentioned here that during the course of the spot inspection conducted by the I.O. On 5-5-1987, he had found five crime empties P.1 to P.5 scattered near the place where Allah Ditta deceased had been murdered. He had also found four crime empties P.6 to P.9 and another set of four crime empties P.10 to P.13 from near the two places of the murder of Rashid deceased and Faqir Muhammad deceased. These three sets of crime empties had been seized vide memos.
Exh.P.C., Exh.P.E. And Exh.P.G.
17. All these crime empties had been despatched to the Forensic Science Laboratory on 13-5-1987 as per Muhammad Sultan F.C. (P.W.9) while the three above-mentioned weapons of offence had been despatched to the same laboratory on 10-6-1987 as per Maratab All F.C. (P.W.8). According to the report Exh.P.Z. Of the Forensic Science Laboratory, three crime empties were found to have been fired from the gun allegedly recovered at the instance of Talib appellant; one crime empty had been found to have been fired from the gun recovered at the instance of Khadim appellant while three empties had been found to have been fired from the Carbine recovered at the instance of Akhtar appellant.
18. When confronted with the prosecution case, all the three appellants denied their participation in the occurrence in question and attributed their involvement, to enmity.
19. Canvassing acquittal for the three appellants, their learned counsel contended that the two alleged eye-witnesses, namely, Mst. Barkat Bibi and Ata Muhammad had not witnessed the occurrence in question and the explanation offered by them for their presence at the place of occurrence at the relevant time was not acceptable; that the prosecution had failed to prove the motive as alleged by it; that the medical evidence in respect of the injuries of Allah Ditta deceased not only belied the ocular testimony but in fact demonstrated that the said eye-witnesses had not seen the shots being fired at the deceased persons; that the evidence offered by the prosecution regarding the crime empties in question having been found to have been fired by the weapons allegedly recovered at the instance of the appellants was a fabrication; that the I.O. Had not taken any lantern into possession and the night of occurrence being decidedly a moonless night, the claim of the eye-witnesses to have identified the assailants, was misplaced and finally that in the circumstances, the prosecution had failed to prove its case against the appellants.
20. The first question of crucial nature which would be relevant and important for the determination of the guilt or innocence of the appellants is whether there was any possibility of the murders in question having been committed by someone else and the three appellants having been maliciously substituted on account of enmity or suspicion.
21. It appears from the record that the complainant party had no enmity with any one. It had been suggested during the course of cross-examination that two sons of a sister of the wife of Faqir Muhammad deceased, namely, Rashid and Ashraf were notorious criminals and murderers who were proclaimed offenders and had serious enmity with one Younis. It was further suggested that the said Rashid and Ashraf were present at the Dera of Allah Ditta deceased on the night of occurrence. Although it had not been specifically so stated but the indication was that some enemy of the said Rashid and Ashraf was responsible for the murders in question which had got committed in an attempt to kill the said two persons. It had, however, been specifically replied by Mst. Barkat. Bibi that the said Rashid and Ashraf had died prior to the present occurrence.
22. The record of the present case thus does not suggest any possibility of the three deceased persons having been done to death by some other unidentified assailant.
23. The defence could not bring out any serious enmity or ill-will on the part of the complainant party which could have motivated the complainant and Ata Muhammad P.W. To have falsely implicated the three appellants in the present occurrence. But for the dispute of the Watt in question, no other enmity existed between the parties. It had in fact been claimed and not controverted by the appellants that Talib and Khadim convicts had been brought up by Mst. Barkat Bibi and were thus like sons to her.
24. This examination of the evidence available on record leads us to infer that no animus existed on the part of the eye-witnesses which could have led them to falsely implicate the appellants in the occurrence in question nor was there any possibility of the three deceased persons having been killed by some other enemy and the blame having been put on the appellants on account of mere suspicion. It may also be mentioned here that Akhtar appellant was not a resident of the complainant's village but was a resident of Tehsil Ferozewala and there was no question of the complainant having involved him in the occurrence in question unless he had positively participated in the same.
25. The complainant of the present case is Mst. Barkat Bibi. She is the widow of Allah Ditta deceased and the mother of Rashid and Faqir Muhammad deceased persons. She is about 65 years of age.
26. There is no doubt about the fact that one part of the occurrence in question had taken place at the Dera of Allah Ditta deceased where the complainant party were keeping and maintaining at least 25 buffaloes. This is where the dead body of Allah Ditta deceased had been found. This then establishes that at least Allah Ditta deceased used to reside at the said Dera. According to the post-mortem examination report, he was about 65 years of age. It would obviously not possible for him to look after 25 buffaloes alone which he was maintaining. This then supports the possibility of at least one of his two sons living with him at the said Dera. The claim of complainant that it was Rashid deceased who was staying at the said Dera alongwith his father, is thus a reasonable claim which inspires confidence.
27. The complainant party had a house in the village where according to the complainant, her daughters and her son Faqir Muhammad deceased resided with his wife. This residence in the village was thus well manned. Females were available in this house to look after the household affairs of the male member of his family i,e. Faqir Muhammad deceased also resided there to take care of the family. In the circumstances, the claim of Mst. Barkat Bibi that she used to live at the Dera alongwith her husband and a son, is a claim which is not implausible especially when the days of occurrence were the days of the holy month of Ramazan and some female of the family would be required to cook Sehri and Aftari for the two male members of the family who were living at the Dera.
28. Thus we feel persuaded to accept the complainant's assertion that she used to reside at the Dera in question alongwith her deceased husband and her deceased son. She thus becomes a natural witness of the occurrence in question.
29. Dr. Saeed Ahmad (P.W.10) who had conducted the post-mortem examination of the dead body of Allah Ditta deceased had found eight fire-arm injuries on his person. It is only a witness who had actually witnessed the firing of shots at the said deceased person who could have declared that these eight injuries were the result of three fire-arm shots, otherwise, any planted witness would have stated these injuries to be the result of more shots fired at Allah Ditta deceased.
30. Mst. Barkat Bibi complainant had lost her husband and two sons in the occurrence in question and the three dead bodies lay scattered at three different places within a radius of about three Killas. It would not have been possible for her to explain the presence of these dead bodies at three distant points unless she had actually seen the three victims being killed by the assailants.
31. We thus feel convinced that Mst. Barkat Bibi was present at the place of occurrence at the relevant time and had seen the said occurrence.
32. As has been mentioned above, she had no such serious ill-will or enmity against the three appellants which could have prompted her to falsely implicate the appellants in the present, occurrence.
33. She is thus not only a natural but even an independent witness of the occurrence in question.
Her testimony inspires confidence and we have not been able to find anything from the record which could persuade us to discard her deposition.
34. It was argued on behalf of the appellants that the prosecution had failed to prove the motive on the part of the appellants which could have resulted in the occurrence in question.
35. The F.I.R. Had been lodged rather promptly. The motive in the present occurrence had been specifically stated in the said F.I.R. Which was reiterated by the eye witnesses at the trail. Mst. Barkat Bibi Complainant and even Ata Muhammad P.W had declared, while they were in the witness-box, that Talib appellant had, even at an earlier occasion, attacked Allah Ditta deceased with a Tokka on Account of the dispute about Watt in question. This Part of the eye-witnesses' claim had no been seriously challenged by the defence.
36. ?
37. The appellants had been known to the two eye-witnesses for a long time. As has been mentioned above, Talib and Khadim appellants had in fact been brought-up by the complainant.
In the circumstances, their identification D by the eye-witnesses could not have posed any serious problem for them especially when the two eye-witnesses had not had just a glimpse of the assailants but had even chased them around while they committed the three murders at three different places.
38. The claim of the complainant that three shots had been fired at Allah Ditta deceased when the medical evidence was of the opinion that the eight fire-arm injuries could be the result of only two shots, is not the kind of discrepancy which could be fatal to the ocular testimony. The medical evidence I in fact supports the prosecution case as abovementioned. We have also noticed that injury No,6 on the person of Rashid deceased which had not blackening around it was on the back of his chest. This injury having been received by the said deceased while being chased by the assailants, cannot be ruled out, which is in line with the testimony of the eye-witnesses. Similar is the position of Faqir deceased who also had a fire-arm injury on the back of his chest.
39. The contention of the appellants that medical evidence was destructive of the eye-witness account was thus a submission without any merit.
40. The crime empties recovered from near the three dead bodies were found to have been fired from the three fire-arm weapons recovered at the instance of the three appellants. These crime empties had been despatched to the Forensic Science Laboratory well before the said weapons of offences had been recovered. There is some meat in the submission that the three appellants would have had no occasion to return to their house which was adjacent to the Dera of the complainant party to leave these three weapons there. It has to be borne in mind that all the three male members of the complainant party had been done to death and the I.O. Could not have been present at the place of occurrence at all times. No question had been put to I.O. About his having posted a guard at the residence of Khadim and Talib appellants. Thus the appellants coming to their Dera for leaving their weapons at their Dera and in their lands, is not an absolute impossibility.
41. Having thus examined the entire evidence, we feel convinced that the three appellants had been rightly convicted by the learned trial Court for the murders in question and we, therefore, maintain the said convictions.
42. No mitigating circumstances exist on record, at least in respect of Talib and Akhtar appellants.
The death sentences awarded to them on three counts ARE THUS CONFIRMED.
43. Khadim was a young boy of 16 years of age. His participation in the occurrence in question having been prompted by the influence of his elder brother, i,e. Talib appellant could not be ruled out. Consequently, on account of his tender age as also on account of the possibility of his having acted under the influence of his elder brother, the death sentences awarded to him on three counts ARE NOT CONFIRMED. He shall instead suffer imprisonment for life on each of the three counts. These sentences of imprisonment shall, however, run concurrently and he is also allowed the benefit of the provisions of section 382-B of the Cr.P.C.
44. Subject to the reduction of sentence in the case of Khadim appellant, Criminal Appeal No,687 of 1989 is dismissed.
45. Murder Reference No,217 of 1989 is answered through confirmation of the sentences of death awarded to Talib and Akhtar appellants and by non-confirmation of the sentences of death awarded to Khadim appellant.