MUNAWAR AHMED MIRZA, J.---This petition for leave to appeal is directed against judgment dated 22-10-1996 passed by Lahore High Court, whereby Criminal Appeal No,747 of 1992 filed by petitioners was dismissed and Murder (sic);
2. Occurrence had taken place on 8-9-1990 at about 8.00 p.m. In the house of deceased Fateh Muhammad in Mauza Bakenwala. F.I.R. No,303 was lodged on the statement of Muhammad Asghar son of deceased Fateh Muhammad on the same day around 3-45 p.m. At Police Station Dinga, District Gujrat. In the incident four persons namely, (i) Fateh Muhammad, (ii) Ghulam Muhammad,
(iii) Allah Ditta and (iv) Nazar Muhammad were murdered; whereas three persons being P. W.3 Muhammad Asghar, complainant, P.W. 4 Tariq Mahmood and P.W. 5 Abid were injured. It is case of the prosecution that on the fateful evening at about 8.00 p.m. Complainant Muhammad Asghar P.W. Abid, P.W. Tariq Mahmood, deceased Ghulam Muhammad and deceased Fateh Muhammad were sitting in the court-yard of their house under an electric bulb. Suddenly their neighbours Mst.
'Bashir Begum and Mst. Nazir Begum loudly holding out that Fateh Muhammad and all others should be taught a lesson for insult caused to said ladies entered their house, meanwhile petitioners Muhammad Afzal, Muhammad Akhtar, Muhammad Asghar, Khan son of Hakim Ali alongwith Late Hakim Ali and Khan son of Muhammad armed with rifles and guns arrived and started firing upon above-named inmates of the house. Deceased Allah Ditta who had rushed to the spot on hearing commotion and wanted to rescue them from assailants, was also attacked, petitioner Muhammad Asghar fired at him with his rifle. They also inflicted injuries to complainant Muhammad Asghar and deceased Fateh Muhammad with butt of rifles. Thereafter, petitioners resorted to indiscriminating firing with their respective weapons and on accomplishment of their mission ran away demonstrating their weapons in the air. On their way back almost near the house of one Muhammad Sharif Cobbler, the accused party came across deceased Nazar Muhammad. It is alleged that Hakim Ali (since dead) raised Lalkara not to spare him. Simultaneously Hakim Ali- and his son Khan fired one shot each with their 7 MM rifle causing fatal injuries to said Nazar Muhammad. The incident was also witnessed by Khalid Mahmood and P.W.6 Muhammad Majid.
Above four persons i.e, (i) Fateh Muhammad, (ii) Ghulam Muhammad, (iii) Nazar Muhammad and
(iv) Allah Ditta succumbed to injuries at the spot. Besides complainant Muhammad Asghar, P.Ws.
Tariq Mahmood and Abid received firearm injures.
Motive suggested by the prosecution was that 3/4 years earlier Mst. Bashir Begum had quarrel with sister of complainant namely Manzoor Begum over children. Her husband deceased Fateh Muhammad injured Bashir Begum, but matter was got patched-up. Fateh Muhammad then went abroad and returned to his house only few days back. Mst. Bashir Begum had perhaps carried the grievance.
Police after recording F.I.R. Had commenced the investigation.. On apprehension of petitioners and their companions crime weapons were recovered on their pointation. After completion of investigation concerned police submitted challan before Additional Sessions Judge, Gujrat.
Petitioners and co-accused were indicted on 2-7-1991 by trial Court for causing murder of above- named four persons and for causing injuries to complainant P.W.3 Muhammad Asghar, P.W. 4 Tariq Mahmood and P.W.5 Abid. They refuted the charges and pleaded "Not Guilty".
3. Prosecution has examined 12 witnesses to substantiate accusations against the petitioners besides proving recovery memos. Relating to crime weapons, blood-stained clothes, blood- stained earth, Reports of Chemical Examiner, post-mortem reports and medical certificates of injured witnesses. Petitioners and co-accused were examined under section 342, Cr.P.C. Wherein they denied prosecution accusations and professed innocence. Accused Muhammad Afzal, however, stated that at the time of incident it was load-shedding period, having complete darkness around. According to him deceased had enmity with several persons in the village. The actual assailants had been left away and they have been falsely implicated in the case. Convicts have examined D.W.1 Muhammad Akram, D.W.2 Fazal Ali and D.W.3 Muhammad Sadiq in defence.
Trial Court on appraisement of evidence led by the parties found petitioners and co-accused guilty for the offence and sentenced them as under:-- "51. In view of what has been discussed above, I am of the firm view that the occurrence took place in the manner as has been stated by the P.Ws. That all the accused persons in furtherance of their common object after making themselves into unlawful assembly, trespassed into the house of Fateh Muhammad, caused murders of Fateh Muhammad, Ghulam Muhammad, Allah Ditta and Nazar Muhammad deceased. They also injured Muhammad Asghar, Tariq Mahmood and Abid P.Ws. Thus, they are held responsible for offences under sections 302, 307, 452, 148/149, P.P.C.
52. Accordingly, I convict all the accused under section 148, P.P.C. For making unlawful assembly while armed with deadly weapons and sentence them to undergo two years R.I. Each. I also held them guilty for murders of Fateh Muhammad, Ghulam Muhammad, Allah Ditta and Nazar Muhammad deceased and convict them under section 302/149, P.P.C. Accordingly. As far as sentence is concerned, accused Mst. Bashir Begum and Mst. Nazir Begum are only attributed Lalkara, however, it was on their exhortation that other co-accused murdered the deceased persons, therefore, I award them sentence of life imprisonment on four counts. Khan Muhammad son of Muhammad accused has been proved to be present on the place of occurrence armed with gun but he has not been specifically attributed any role, therefore, he is also awarded life imprisonment on four counts, while Muhammad Afzal, Muhammad Akhtar, Muhammad Asghar, Hakim Ali and Khan Muhammad son of Hakim Ali have been ascribed fatal injuries to the deceased persons, hence they are sentenced to death on four counts. They shall be hanged till dead. A fine of Rs,20,000 on four counts is also imposed on each of the convicts. The fine if recovered shall be paid to the legal heirs of the all four deceased equally. In case the convicts failed to pay the fine, they shall further undergo two years R.I.
53. The accused are also convicted under section 307/149, P.P.C. For injuring Tariq Mahmood, Muhammad Asghar and Abid P.Ws. And sentenced to five years R.I. Each on three counts. A fine of Rs,1000 each on three counts is also imposed upon them. The fine if recovered. Shall be given to the injured P.Ws. The fine if not paid then they shall further undergo six months R.I. Each. All the accused are also held guilty under section 452/149, P.P.C. And sentenced to undergo three years R.I. And fined to Rs,1,000 each. In default of payment of fine, they shall further undergo one month R.I. Each.
All the sentences run concurrently. The convicts who have been awarded life imprisonment shall also be given benefit of section 382-B, Cr.P.C. The death sentence shall be subject to confirmation by the Hobourable. High Court."
4. Petitioners/convicts aggrieved from above decision had preferred Criminal Appeal No,747 of 1992 before Lahore High Court. Murder Reference No,325 of 1992 against petitioners also came up for hearing alongwith said appeal. Both these matters were ultimately decided through common judgment, dated 28th October, 1996, whereby Mst. Bashir Begum and Mst. Nazir Begum were ordered to be acquitted. Hakim Ali expired during proceedings, therefore, appeal in his case stood abated. Appeal of remaining convicts was dismissed. Death penalty awarded to (i) Muhammad Afzal son of Mehdi Khan, (ii) Muhammad Akhtar son of Mehdi Khan, (iii) Muhammad Asghar son of Hakim Ali and (iv) Khan son of Hakim Ali; on four counts was confirmed. Operative portion of the judgment is reproduced below:-- "9. An examination of the record would indicate that the place of occurrence is almost adjacent to the house of the appellants. The appellants were known to the complainant party. The F.I.R. Was lodged in less than two hours of the occurrence (police station is at a distance of four miles) All the accused were specifically named. There was, therefore, no question of mistaken identity or false implication. There was nothing on record to support the submission of the learned counsel for the appellants that the F.I.R. Was lodged with a delay and after preliminary investigation. Non- mentioning of number of the F.I.R. On the Inquest Report could be a bona fide lapse and, in any case, this irregularity would not give rise to any presumption. The ocular account was furnished by three witnesses. Besides the complainant P.W.3, P.Ws.4 and 5 are also injured witnesses. They are natural witnesses of the ocurrence and have explained their presence at the spot satisfactorily. The injureis on their persons further confirmed their presence at the palce of occurrence as none of them was suggested that the injuries received by them could be self-suffered. Surprisingly even P.W.7 Dr. Sultan Abdul Majid who medically examined these witnesses was not suggested that the injuries suffered by these witnesses were self-suffered. That being so, their presence at the spot has been proved beyond doubt. An attempt was made to discard them by alleging that since they were related to the complainant party, therefore, they cannot be relied upon. It is a well- established principle of appreciation of evidence that mere relationship of a witness would not per se make him unworthy of credit. It is true that P.W. 3 and P.W. 4 are related to the complainant party but it is also established that there was no enmity between these witnesses and the accused to have falsely involved them in a murder case. These witnesses were subjected to lengthy cross- examination but no contradiction inter se or inconsistency with their earlier statements could be brought on record to demolish their credibility. That being so the relationship is of no consequence.
Furthermore P.W. 5 Abid is an eye-witness and is not related to either of the patty. He too is an injured witness. He has corroborated the statement of P.W. 3 and P.W.4 on all vital aspects of the prosecution case. Thus, even this argument is not available to the defence that the ocular account entirely consists of related witnesses.
10. To lend credence to the plea of false implication and substitution the defence attempted, through cross-examination on the eye-witnesses, to plead that the deceased had been done to death by other persons i.e, Khadim etc. And the appellants had falsely been involved. For instance at page 70 of the paper Book P.W. 4 Tariq Mahmood was suggested as follows:-- It is incorrect to suggest that Khadim Hussain son of Sadiq Gujjar residents of Dina Chak, Atta Muhammad son of Muhammad Hussain residents of Sivian, Ghulam Abbas son of Rashid Jutt resident of Shah Sarmast, Arshid Gujjar son of Muhammad Akram resident. Of Shahsarmust, Mushtaq resident of Shahsarmust while armed with guns and rifles had come in a Taxi and opened an assault while killing the deceased during the dark hours and escaped subsequently."
In absence of any attribution of specific enmity to have falsely implicated the accused nothing could be more outlandish than to make the afore-referred suggestion. It is repellant to common sense that the complainant party would let off the real killers of four of their kins and falsely implicate the accused-appellants for no reason. A feeble attempt was made while cross- examining P.W. 3 to suggest that Hakim Ali appellant, his two sons (Khan Muhammad and Muhammad Asghar appellants) and Mst. Bashir Begum appellant had falsely been implicated because Hakim Ali had taken the hands of her daughters for his sons Khan Muhammad and Asghar accused-appellants which annoyed Nazar Muhammad deceased as Nazar Muhammad wanted those daughters to be married to his sons i.e, Tariq Mahmood P.W. And his younger son.
Plea of alibi was also raised qua Hakim Ali appellant and his sons and D.W. 2 and D.W. 3 were produced who stated that they saw Khan Muhammad and Muhammad Asghar appellants on a bus as a conductor and a helper respectively on the fateful day and time. These defence witnesses were subjected to cross-examination and they could not state the number of the bus or its route and even the accused-appellants in statement under section 342, Cr.P.C. Did not take up the plea of alibi as suggested by the defence witnesses. D.W. Fazil Ali who stated having seen Hakim Ali in the afternoon of the day of occurrence in cross-examination admitted that he saw them before sunset and not after that but the occurence took palce at 8 p.m. Which was admittedly after the sun-set. Hence this evidence of alibi besides remaining uncorroborated is against the record.
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12. The case of Mst. Bashir Begum and Mst. Nazir Begum is, however, distinguishable. They have only been attributed the role of Lalkara. It is highly doubtful that the appellants who were armed with deadly weapons needed any prompting or command from these women to mount the attack. The prosecution to their extent is, therefore, not free from doubt to sustain conviction. We are, therefore, inclined to give them benefit to doubt, allow their appeal and set aside conviction to their extent.
Both the ladies, i.e, Mst. Bashir Begum and Nazir Begum appellants shall, therefore, be released forthwith if not detained in any other case. Hakim Ali appellant is stated to have died. Appeal to his extent, therefore, abated. The case against the rest of the appellants stands proved beyond a shadow of doubt to sustain the conviction. Their appeal has, therefore, no merit which is hereby dismissed and the death sentence awarded to appellants Muhammad Afzal, Muhammad Akhtar, Muhammad Asghar and Khan son of Hakim Ali on four counts, is hereby confirmed. Murder Reference No, 325 of 1992 is answered in the affirmative."
5. The above judgment has now been assailed through present petition for leave to appeal.
6. Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court, learned counsel for the petitioners emphatically urged that three existed material contradictions in the ocular testimony and medical evience. Therefore, on the principle enunciated in cases (i) Muhammad Nawaz v.
State (1994 SCM R 1614), (ii) Mithu v. State (1972 Law Notes-Karachi 360) and (iii) Allah Bux v. State (1969 PCr.L.1 251); the petitioners are entitled to benefit accruing on account of such inconsistencies. He canvassed that prosecution witnesses are deeply interested because of relationship and hostile towards petitioners, therefore, their testimony without independent corroboration was not reliable. Learned counsel alternatively contended that at best petitioners had acted under the influence of their elders. The unfortunate incident even according to prosecution was sudden and without any premeditation. Therefore, on the dictum laid down in cases (i) Mukhtar Hussain v. State (1985 SCM R 479) (ii) Liaqat Shah v. State (1985 SCM R 1415), (iii)
Mst. Nooran v. Altaf Hussain (1990 SCM R 413) and (iv) Sher Hassan v. State (PLD 1959 SC 480), petitioners were entitled to lesser punishment specially when they are young persons. Thus, 'Death Penalty' in the peculiar circumstances is not warranted. He maintained that all these aspects were ignored by Lahore High Court while rejecting the appeal.
7. We have carefully perused the record, in the light of above submissions and relevant law. It may be seen that P.W. 3 complainant Muhammad Asghar in his deposition before trial Court has given detailed account of incident. He has reaffirmed the contents of F.I.R. (Exh. PO/1) which was lodged without delay. His Statement is fully corroborated by P.W. 4 Tariq Mahmood and P.W. 5 Abid by comprehensively furnishing details of unfortunate happening. Above three witnesses had themselves sustained injuries, which fact has not been challenged at any stage. Their presence on the spot, therefore, cannot by any stretch be doubted. Petitioners being residents in the neighbourhood, were fully known to the witnesses which clearly obviates any possibility of mistaken identity, Factually neither party has seriously attributed existence of deep rooted enmity.
Absolutely no reasonable cause has been demonstrated by defence to indicate why at all the witnesses would substitute petitioners or their companions by leaving real culprits. The tactum of petitioners' attack upon deceased Nazar Muhammad while decamping from the scene and infliction of fire-arm injuries to him has been independently supported by P.W. 6 Muhammad Majid.
Statements of all the four witnesses have remained unshaken despite lengthy and searching cross-examination. Therefore, on thorough scrutiny and reappraisal, their unimpeached version is apparently truthful and confidence inspiring.
Learned counsel for the petitioners has endeavoured to point out certain discrepancies in the ocular version and medical evidence by suggesting that location of certain injuries appearing on the person of deceased do not tally with ocular version. Learned counsel greatly stressed that when prosecution witnesses specifically attribute particular injuries to deceased, then any variation or conflict with two types of evidence must be construed strictly. It may be seen that medical evidence and statements of prosecution witnesses in our opinion do not show any serious conflict. Minor difference or variation in the ocular version and medical report in our opinion does not have any material significance or bearing on merits of the case. It is settled principle that casual discrepancies or conflicts appearing in medical evidence and ocular version are quite possible for variety of reasons. Obviously momentary glance, during turmoil when live shots are fired, witnesses make only tentative assessment about where such fire-shot appears to have landed and it becomes highly 'mprobable to mention its location with exactitude. However, in the instant case medical evidence predominently corroborates broad details of injuries suffered by deceased at the hands of petitioners and co-accused. Even otherwise, since eye account of witnesses is confidence inspiring, the same shall prevail and trivial difference in medical evidence will give way without having adverse impact. We may observe here that except technical and delicate distinctions put-forth during arguments, we do not find much difference in the location of injuries when placed in juxtaposition with ocular account. Therefore, taking into consideration accumulative effects of all the factors we are pesuaded to hold that the conclusions drawn by the Courts below for involvement of petitioners in the commission of above offences is based on sound and cogent reasonings.
8. Now adverting to other aspects it may be seen that mere relationship or other close connections of the witnesses with complainant party by itself cannot be deemed sufficient to cast doubt on their credibility. Even defence has not disclosed any plausible reason, why they would falsely involve them. These objections have been adequately discussed and dilated upon by the two forums below. The conclusions reaffirming their credibility are unexceptionable and do not suffer from any legal defect or perversity.
9. Lastly adverting to quantum of sentence it may be seen that incident had taken place in the house of deceased Fateh Muhammad. The inmates were sitting empty handed and busy in the routine talk. Petitioners and their companions had arrived carrying fire-arms and indiscriminately fired at complainant party. Deceased Allah Ditta who reached to intervene was killed in dastardly manner.
Even while running away they ghastly murdered Nazar Muhammad, without any rhyme or reasons.
This firing resulted in causing death of defenceless and empty handed four innocent lives.
Therefore, petitioners are not entitled to concession in the light of afore-quoted report.
For the foregoing reasons we do not find any merits in the petition, on the question of guilt or quantum of sentence which is consequently dismissed.
Thus, leave to appeal is declined.