JUDGEMENT SHAFI MUHAMMADI, J.- This appeal has been directed against the Judgment dated 13.2.1994 delivered by learned 1st Addl.
Sessions Judge Kandhkot by which the appellants were convicted and sentenced to undergo imprisonment for life and fine of Rs.10,000/-.
In case of default in payment of fine, the appellants had to suffer R.I. For six months more.
They were further sentenced to pay Rs.30,000/- (thirty thousand) each as compensation payable to the father of the deceased Ghulam Rasool and Usman under Section 544-A, Cr.P.C: and in case of default in payment, of compensation the appellants had to suffer R.I. For one year more.
All the appellants were further convicted and sentenced to suffer R.I. For six months for the charge of an offence under Section 148 P.P.C.
Being aggrieved by and dis-satisfied with the Judgment the appellants have preferred the appeal in hand.
2. Brief facts of the prosecution case as narrated by the complainant radiate that: On 18.4.1986 at about 1145 hours (a.m) complainant Muhammad Bachai lodged an F.I.R. No.45/1986 at Police Station Kashmore District Jacobabad and stated therein that on 18.4.1986 at about 9.45 a.m. He was sitting in his Otaq- with one Bilawal when they heard a gun-shot which appeared to be from the side of his house. Both of them rushed to the house where they found:
(I) appellants Guloo and Jamal standing at north west corner of the complainant's house duly armed with hatchets:
(II) Ghulam Rasool and Usman, the sons of the complainant were standing at the enterance of the house while Mehar D.I (absconder), Nihaluddin (appellant) Umer Bux (appellant) and Gul Khan (absconder), were present there duly armed with guns.
It is also reflected from his statement that the appellants alongwith other accused person reached at the place of incident with their allegation that one Umer Shar who was Karo was hidden in the house of the complainant's party. Hence they insisted that the said person be turned out of the house. For the said purpose the appellants/accused persons insisted upon entering the house of the complainant but they were resisted by the two sons of the complainant namely Ghulam Rasool and Usman whereupon accused- Mehar D.I fired a shot at Ghulam Rasool which hit on his face.
Accused Gul Khan also fired at injured Ghulam Rasool which hit him on his head. Accused 'Nihaluddin and Umer Bux fired one shot each at Usman which hit him on his chest. Accused Mehar D.I 'also fired a shot at Manzoor which hit him on his right ear. P.W. More went to the place of wardat but accused Gul Khan fired a shot at him which hit him on his right hand. On hearing their cries and commotions D.Ws Malhi and Manhoo came running to the wardat alongwith other co-villagers.
Complainant saw accused Rajoo and Mithal standing at the place of wardat duly armed with hatchets. On seeing the co-villagers the accused person went away while firing in the air.
3. All the accused were arrested by the police and after usual investigation challan was submitted against them before the learned Civil Judge and FCM Kashmir who sent up the case to the trial Court. Charge was framed by the trial Court tp which they pleaded not guilty and claimed to be tried. After framing of the charge, accused Mehar D.I and Gul Khan absconded during the trial and they were declared as proclaimed offenders. The prosecution examined the following witnesses:
(J) Doctor Shewakram, Medical Officer, (2) Complainant Muhammad Sachal, (3) P.W. Manzoor (injured) (4) P.W. Moro (injured) (5) Kermanji (6) P.C. Abdul Latif (7) Mashir Noor Muhammad (8)
S.I.P. Iqbaluddin Junejo.
The record also reflects that all the six appellants are Mazari by Caste while the complainant and P.Ws except P.Ws 6 and 8, are "Shar" by case. Thus both parties are Balouch although belonging to two different tribes. Certain witnesses were given up b\ the prosecution. On the strength on record, the learned trial Judge held the present appellants guilty for the charge of an offence punishable under Sections 302/147/148 read with section 143 PPC. However, instead of awarding them death sentence, the trial Court took lenient view, while convicting and sentencing them, on the ground that they were facing since 1986. The appellants were convicted and sentenced as mentioned in the beginning of this judgment. The case of absconding accused Mehardil and Gul Khan was ordered to be kept on dormant file on account of their abscondence. Hence the present appeal.
4. The learned counsel appearing on behalf of the appellants have basically relied upon-technical points such as (i) that there was nothing mentioned in the F.I.R, about the talks of the accused party with the deceased; (ii) Evidence of I.O. And P.C. Abdul Latif is full of contradiction as to the time of departure from the police-station and the nature of conveyance;(iii) evidence of the complainant and all the eyewitnesses is contradictory as to the removal of the deceased and injured towards the hospital and the witnesses being of the same tribe are interested witness, hence they cannot be relied upon. The learned counsel also contended that according to the prosecution story, several co-villagers had gathered at the place of wardat but none of them was examined by the prosecution as P.W. The learned counsel have tried to satisfy this Court that story of prosecution is the result of tribal enmity between .Two tribes of Blouch clan, It was specifically stressed by the learned counsel that body if Usman had one injury while prosecution case shows that two shots had been fired upon him.
On the other hand Mr. Muhammad Dawood A. Balouch, advocate for the complainant and Mr. Habib-ur-Rashid for the State supported the sentence and conviction on the grounds that (i) F.I.R, was lodged without any delay in spite of a distance of about 6 miles existing between the police station and the place of wardat;
(ii) out of for main eye-witnesses two were injured, hence their statement cannot be ignored; (iii) mere relationship of the P.Ws could not be a cause to disbelieve .The prosecution story. Reliance in this regard was placed on a case reported as and v. The state (1991 SCM R 1268) wherein it was; that "simpliciter relationship of eye-witnesses inter se and with accused would not justify disbelieving of their testimony. The Court has to scrutinize the evidence of such witnesses with caution and care and if it is satisfied that there evidence is truthful, the same can be relied upon;
(iv) Contradiction, if any, were minors and ignorable because they were not sufficient to shalter the prosecution story. Reliance was placed on a case reported as Muhammad Younas v The State (1990 SCM R 1272) wherein it was held that minor discrepencies in evidence do not mean that witnesses have not stated true facts; (v) Regarding injuries on the body of deceased Usman and the difference shown in the medical report, the learned counsel for the complainant drew my attention to the evidence of P.W. Manzoor and More (both injured) and*also relied upon the cases Muhammad Younas. 1990 S.C.M.R. 1272) and Muhammad Nawaz & others Vs . The State(1994 SCM R 1614)
It was also contended that if ocular evidence is reliable then medical evidence may not be binding and in this regard common intention of the accused be taken into consideration particularly when the presence of complainant and eye-witnesses at the spot is not denied. Reliance in this regard was placed on the case of Saleh Muhammad Vs. The State(1983 SCMR325).
In the light of all these factors and the principles laid down in the case of Saleh Muhammad presumptions of false implication appears to be out of question. Regarding non-examination of co-villagers, the learned counsel relied upon the tendency of witnesses not to come forward to give evidence and in this regard strength was sought from a case reported as Muhammad .Iqbal Vs . The Sta te (PLD 1976 S:C. 291).
5. Notwithstanding the technical objections raised by the learned counsel for the appellant to shatter the case of the prosecution this factum cannot be ignored that two innocent persons were killed in presence of their father. I have used the word "innocent" because the enmity of the assailants, if any, was against Umer Bux who was presumed to be residing in the house of the complainant. On such presumption neither any gentleman tries to enter the house of other persons nor any true Mruslim would allow any stranger to enter his house, Killing two young persons on the bases of resistence shown by the owners of the house can be termed only a barbarism.
Similarly I am also not un-aware of this tenancy prevailing in the tribal societies that in all such cases. The complainants never hesitate to implicate several innocent persons belonging to the opponent tribe even if they may not have participated in the commission of an offence.
On account of this traditional tendency prevailing in the tribal societies it is necessary for the Courts to find out role of each accused person with great care and caution particularly where the commission of an offence has taken place in the rural areas which are still in the clutches of un- civilised balck traditions of the dark-age. It may be easy to judge and decide the murder cases which generally take place in urban areas because the effects of tribal traditions are negligible in the cities but the people still living in the villages are. Still slaves of those black-traditions which are hated in every civilised societies. For example murder of poor women of the allegations of being "Kari" is very common even till today in these societies and it is one of the best example of those balck-traditions in which the innocent ladies are sometimes not spared to get some other purpose under the allegation of their being Kari. Such conduct is not supported by Islamic Laws especially in the presence of Law of Lian already introduced through Ordinance in Pakistan. Hence I am of the view that no leniency be shown in all such cases where the culprits show no respect to the Islamic Laws of Justice. I have also hesitation to say that several tribal Sardars and Waderas are protecting these tradition only for their own supremacy, directly or indirectly.
Over the un-educated poor members of their tribes who are treatd by them like animals and most of them are responsible for such murders. In the present appeal in hand, allegation was against one Umar Sher, whom the assailants were determined to kill under the allegation of his being Karo with the wife of absconding accused Mehardil. Hence it can be believed that the said lady must have been killed by her husband Mehardil under the allegation of being Kari before the assailants came to the place of incident in search of Umer Sher. The prosecution case has been totally kept silent on this important aspect which is not at all appreciable. On account of the motive brought on record in the evidence of eye-witnesses and particularly in the light of abscondence of accused Mehardil I have no doubt in my mind that the assailants had common intention to kill Umar Shar who could not be traced out by them, It was only on the bases of presumption or some information, that the said person was hiding in the house of the complainant, two young sons of 60 years old man. Who is the complainant in this case, were killed before 'his eyes. Notwithstanding this reality that an act of barbarism took place but obligation on the Court is to find out the role of each accused in this case.
6. According to the statement of Muhammad Sachal who is the complainant and father of two deceased persons:-
(i) Accused Mehardil and Gul Khan fired with their guns at deceased Ghulam Rasool which hit his face, head and arm. After receiving the injuries he fell down and died on the spot;
(ii) Accused Umer Bux and Nehaldil fired with their guns at deceased Usman who received gun shot injuries on his chest. He also died on the spot.
(iii) Accused Mehardil again fired with his gun at P.W. Manzoor which hit him on the ear.
(iv) Accused Gul Khan fired at P.W. More which hit him on his arm.
The witnesses also stated that accused Mithal, Rajoo, Jamal and Gul were present at the place of wardat and they were armed with hatchets.
The statement of P.W. Manzoor (injured) corroborated all the above facts. He also stated that accused. Mehardil fired at him which hit his right ear and when the complainant and Bilawal were coming towards the place of wardat they were restrained by accused Mithal and Jamal by raising their hatchets towards them.
P.W. More is another injured witness who corroborated all these facts and stated that Gul Khan fired at him which hit on his right hand.
P.W. Manjhi is another witnesses who corroborated all these facts stated by the complainant and two injured persons named above.
The evidence of all these eye-witnesses remained un-shattered even after the expiry. Of 6 years when their statements were recorded in 1992/1993 while the incident had taken place in 1986.
Inspite of this duration of period existing between the date of incident and recording of their evidence the evidence of these witnesses could not be shattered.
7. In the light of all these facts, the case of the prosecution hings upon for different pieces of evidence viz: * . .
(i) Occular testimony;
(ii) Medical evidence;
(iii) Recoveries; and
(iv) Motive.- The statements of all the eye-witnesses have corroborated each other and therefore they have left no doubt about the role of every appellant. The evidence of these witnesses is of such nature that no sensible person of common sense can disbelieve their version particularly when the same is also supported by the medical evidence. On the point of recoveries it is evident that the police arrested the accused persons and secured guns from the possession of accused Mehardil and Gul Khan. This piece of evidence is fully supported by the statement of Mashir Noor Muhammad and evidence of Inspector Iqbal Junejo. Similarly the motive of murder is also radiating from the statements of all the eye witnesses. In rebuttal to those pieces of evidence there is nothing on the record except simple denial of the appellants when their statement under section 342 Cr.P.C, was recorded. Even the statements of the appellants recorded under section 342 Cr.P.C, by the learned trial Court do not show anything to believe that the appellants were falsely implicated. The appellants had right to examine themselves on oath under section 340(2), Cr.P.C, in their. Own defence but they preferred not to examine themselves. No doubt they had; right to do so and the court could not force them to produce any witnesses or examined themselves on oath but in the light of the evidence brought on record by the prosecution it could not be expected from them to lead no defence, In these circumstances the statements of the appellants recorded under section 342 Cr.P.C, that the witnesses who deposed against them were interested or they had enmity with them have no value in the eyes of law unless proved oft the strength of evidence. The learned counsel for the appellant were, therefore, left only to depend upon the technical points such as contradiction in the statements of witnesses, delay of lodging FIR etc. They also stressed that the incident was neither pre-planned nor premediated but the same had taken place suddenly and they had no intention to kill the deceased person. Such kind of arguments amount to admission of the guilt of the appellants. I have no hesitation to say that these technical points cannot wash- away the evidence of eye-witnesses who saw with their own eyes that two young persons were killed in presence of their old father. Similarly the presence of accused Guloo, Jamal, Rajoo and Mithal at the place of wardat and armed with hatchets has not been shattered by the defence.
8. In the light of these undeniable realities I found myself unable not to share the conclusion reached by the learned trial Court. Having regard to this position I maintain the conviction and sentence recorded against appellants Umar Bux and Nihaluddin. The appeal filed by them is dismissed. However the conviction and sentence recorded against Guloo, Jamal, Rajoo and Mithal is reduced from life imprisonment to seven years only because their presence at the place of incident being armed with hatchets had provided no opportunity to the complainant party to save the deceased person and thus they became a tool to create such situation on account of which the main for murderers-were facilitated to commit murder of Ghulam Rasool and Usman and to cause injuries to P.Ws Manzoor and More. They had accompanied the co-accused from their houses to the house of the complainant party and had knowledge of the criminal intention of the co-accused to commit murder.
The sentence of fine and compensation in the circumstances of the case would remain unchanged. All the sentences and convictions would run consecutively with benefit of Section 382- B, Cr.P.C.
9. Although the matter relates to the year 1986 yet the parties are at liberty to get their differences solved in the light of Qisas and Diyat Ordinance as amended through Criminal Law (Amendment)
(Qisas and Diyat) Ordinance, XXXIX of 1993. The L.Rs of the deceased have full right to compromise with all or any of the appellants by forgiving them or on payment of Diyat, as may be agreed between the parties, notwithstanding this fact that the incident had taken place prior to promulgation of the Qisas & Diyat Ordinance. In case the parties comprise, there would be no need of getting compensation from the appellants and the fine, as imposed by the trial Court, would also be treated as dropped by this Court.