' ABDUR REHMAN KHAN, J.---Shana, appellant No,1 and his two sons, Nawaz and Manzoor, appellants Nos.2 and 3, alongwith his another son Ijaz and wife Mst. Rasulan, were tried for the murders of his father Anara and his two step brothers, Muhammad Nawaz, Muhammad Riaz and Mst. Hafiz Bibi, wife of the latter, by the learned Additional Sessions Judge, Gujrat. The learned trial Judge by judgment dated 2-7-1991, convicted all the said five accused under section 302/149, P.P.C., on four counts, for the four murders and sentenced the appellants to death on each count; but, the accused Ijaz, was sentenced to life imprisonment, being minor of 12-13 years of age; and having committed the offence under the influence of his father. They were also directed to pay Rs,5,000 each, as fine, on each count. They all were also held guilty under section 148, P.P.C. And each of them, was sentenced to two years R.I.
2. All the convicts filed appeal in the High Court against their conviction and sentence; and a learned Division Bench, by the impugned judgment dated 11-1-1995, dismissed the appeal of the present appellants, while that of Ijaz and Mst. Rasulan, was accepted and they were acquitted.
3. Leave to appeal was granted on these lines:-- "In this case three persons have been sentenced to death. Leave to appeal is granted to reappraise the evidence on record and to consider, inter alia, whether in convicting the accused the principles enunciated for the appreciation of evidence, by the superior Courts, for the safe administration of justice in criminal cases were kept in view."
4. First information report in this case was lodged by Muhammad (P.W.10) on 10-10-1989 at 3.30 in the night (a.m.) wherein it was stated that at 2-00 in the night his uncle Anara, alongwith his two sons, Riaz Muhammad Nawaz and Mst. Hafiz Bibi wife of Riaz were asleep in the courtyard of their house while he (complainant) and Muhammad Nawaz (P.W.11) slept at the roof of the house of Anara. It was 2 (a.m.) in the night when they awoke by the noise of lalkara' coming from the courtyard of Anara where there was electric light and he noticed Shana, Manzoor and Nawaz armed with .12 guns, Ijaz and Mst. Rasulan Bibi armed with ' Tokas' and two other persons armed with 'Sotas', whom he could not identify. He raised noise which attracted Ghulam Rasul from his nearby cattle shed. In their view, shana declared that they were there to teach lesson to them for not giving them the land. Sham, then fired at Anara with bandook' which hit him on the right shoulder and he fell down. Shana, fired the second shot at Riaz which injured his right thigh and as a result he fell to the ground with face down-ward; and in that position Ijaz and Mst. Rasulan Bibi gave him ' Toka' blows on back of his head. Manzoor, then fired with bandook' at Nawaz which resulted into injuries on his ribs and he fell down. Muhammad Nawaz son of Sham, fired at Mst. Hafiz Bibi hitting her on chest falling her on the ground. Manzoor and Nawaz fired one shot each which injured Anara on his wrist and left thigh. The accused when felt satisfied that all were dead, decamped from the spot while firing in the air. When the informant went near those fired at, he found Anara, Riaz, Muhammad Nawaz dead and Mst. Hafiz Bibi in a serious condition, who was taken to hospital, Miana Gonda].
5. Motive for the crime was stated to be dispute on property as deceased Anara had two wives.
Shana, appellant No,1 was his son from the first wife while Riaz and Muhammad Nawaz (deceased) were his sons from the second wife and he had transferred some land in the names of the said two deceased and had refused to compensate the appellants in this respect.
6. The learned trial Judge found the ocular account furnished by P.Ws.10 and 11, as confidence inspiring and relied on motive, medical evidence and abscondence as corroborative evidence; and consequently convicted and punished the appellants and the acquitted accused, as indicated above. The learned Judges in the High Court agreed with the conclusion reached by the trial Court regarding the appellants, but disagreed with decision finding in respect of the acquitted accused.
7. Brief reference to the evidence examined at the trial is given as that would help the assessment of the prosecution case in its correct perspective.
8. P.W.1, is Dr. Tariq Mahmood, Medical Officer, who performed postmortem examination on the dead bodies of Anara, Muhammad Riaz, Muhammad Nawaz and Mst. Hafiz Bibi; and noted the fire- arm and other injuries as reproduced in the judgments of the High Court and trial Court.
' P.W.2, Dr. Fazal Ahmad, had examined Mst. Hafiz Bibi, for her injuries when she was alive. P.W.5, is police Constable, who was entrusted with execution of search warrant and proclamation issued against the absconding accused and he proved his report over these documents. P.W.7, is a witness to the recovery memo; whereby blood-stained earth and 7 empties of .12 bore guns were taken into possession. Draftsman was examined as P.W.8, who proved the site plan. The first informant/complainant appeared as P.W.10, who almost repeated whatever was alleged by him in the F.I.R. As narrated in the earlier part of this judgment. The other eye-witness Muhammad Nawaz, appeared as P.W.11. He stated that the deceased and the accused, both were known to him.
' On the night of occurrence he was sleeping on the roof of the house of Anara; while Anara alongwith the deceased was asleep in the courtyard where two electric bulbs were "on". He was awakened when he saw the appellants armed with fire arms alongwith the acquitted accused armed with 'Tokas' and two unknown persons having 'sotas'. Shana (appellant) declared loudly that he had come to teach lesson to Anara for his refusal to give him the land he was demanding in lieu of the land given by him to his step brothers. Shana, then fired one shot each at Anara and Muhammad Riaz, which hit them and they fell down. Mst. Rasulan Bibi and Ijaz (acquitted accused) gave Muhammad Riaz Toka' blows on his neck when he had his face down-ward. Manzoor, then fired at. Muhammad Nawaz which hit him on his front chest and he fell down. Then appellant Nawaz fired at Mst. Hafiz Bibi, hitting on her chest and falling her to the ground. Then, Manzoor and Nawaz accused, fired at Anara which injured him on left wrist and left thigh. Thereafter, the accused while firing in the air and raising Lalkara' decamped from the spot. The Investigating Officer, appeared as P.W.15 and he explained the various steps taken by him to complete the investigation.
9. The accused when examined under section 342, Cr.P.C. Denied the charges and pleaded that they have been involved falsely on account of enmity.
10. Learned counsel appearing for the appellants referred to the following para in the judgment of the High Court:-- "In addition to that, pellets were recovered from the dead bodies which further strengthen the prosecution case against them, coupled with the motive, which they had against the deceased persons and also the recovery of so many crime empties from the spot."
' He then submitted that recovery of empties could not be considered as corroborative evidence as those were made from outside of the 'haveli/house and that all the injuries had blackening. He clarified that the witnesses have deposed that the accused had fired at the deceased inside the 'haveli' then the recovery of empties should have been made from within the 'haveli'. It is in the statement of Muhammad, P.W.10, (eye-witness) "The dera of Anara deceased has a boundary wall of a height of six or seven feet. There is a window from which one can enter into the 'haveli', and it is towards eastern side of the 'haveli". It is also in the evidence of the investigating officer (P.W.15), "According to my investigation, the accused had entered the Dera of occurrence after scaling over the Northern wall of the Dera belonging to the deceased."
' In view of these statements the ' haveli/house in which the deceased were murdered was encircled by boundary wall, therefore, it was not possible to fire at the deceased from outside the wall. It is interesting that, neither P.W.10 (eye witness) nor P.W.15 (Investigating Officer) nor P.W.7 (marginal witness) have been asked any question about this aspect of the case. If at all the recovery of the empties had been made from outside the haveli' then the following explanation given by P.W.11 (eye-witness) in this respect appears to be reasonable and correct.
"Police took into possession empties from outside the courtyard from the way adopted by the accused persons."
' It is in the statement of P.W.10 "Shana was at a distance of 4/5 feet from Anara when he fired at Anara deceased". He also showed the same distance from where Manzoor and Nawaz fired at the deceased. In view of this evidence on record the argument advanced that the blackening on the wounds of the deceased, would not prevail. The learned counsel then referred to the statement of P.W.7, who is a marginal witness to the recovery of blood and empties in which he had stated, "My residence is joint with the deceased"; and submitted that he could have been the eye witness but he has not deposed as such. It is in the evidence that the house in which the deceased resided and the houses of P.Ws., 7, 10 and 11 form part of 'Dera Zaida' who was the grandfather of Anara deceased and the said P.Ws.. The statement of P.W.11 clarifies this position: "I was born at the dera of Zaida and since then I am residing at the said _ dera. Dera Zaida is owned by Muhammad, son of Punu, myself, Anara deceased, my father alongwith his three brothers they are nemely Jehana, Saee, Batti, Karam Ali. There is no one else joint owned of this dera."
' It is, therefore, apparent that the witness meant that the descendants of Zaida reside in Dera Zaida and not that he was residing in the same house alongwith the deceased. The learned counsel, then pointed out that P.W.10 had stated that when the police arrived, the dead bodies were on the ground but some of the witnesses had stated that at that time they were on the cots and the police also found them on the cots. Nothing would turn on this contradiction. If the dead bodies were lying on the ground at any point of time then someone might have placed them on the charpois', therefore, if at all it is a contradiction, then it is insignificant one. He also pointed out to the conflict in the statement of P.Ws. Regarding taking of Mst. Hafiz Bibi to the hospital. But we need not dilate upon it as that does not detract from the veracity of the prosecution case. It was also argued that the eye-witnesses were interested and they had involved the entire family of Shana so as to get the inheritance of Anara. This is a far-fledged argument as it is in the statement of P.W.10 that Shana had a real brother and sister and naturally they would inherit the deceased and not the P.Ws. It was next argued that the eye-witnesses had no business to be there at the time of occurrence as they had their own houses. The learned counsel appears to be oblivious of the statement of P.W.10, wherein he had shown cogent reason for his presence on the spot. This statement is to the effect:-- "Anara deceased has asked me and Nawaz P.W. To sleep in his house on the night of occurrence as he was apprehending danger at the hands of Shana etc. And I have given this reason in Exh. P.Z. It is incorrect to suggest that I have falsely stated so to give credibility to my statement and to make my presence natural at the place of occurrence."
' It was also argued that motive for the crime could not be proved. The statement of the Investigating Officer (P.W.15), was referred wherein he stated: "I am not definite as to what was the originating motive of this case, however, the sons of the deceased including accused Shana they had separate land but they were inimical because of some location of the land, Except P.Ws. Of this case, none else from the surrounding dera have supported the version of the motive of the prosecution."
' This witness is not sure about the motive but the eye-witnesses are definite about it. Moreover, the defence could not suggest any reasonable motive which may have prompted the witnesses to charge the accused for the murder of father of one of the appellants and grandfather of the other two. ' It was also argued that the eye witnesses could not see the occurrence "by laying alongwith the cot" or "while lying by the side of the parapet". However, it could not be shown as to what was the obstruction between the two places. P.W.11 clarified the situation that they over looked the 'parapet' in the courtyard. The defence has neither questioned the Investigating Officer about this aspect of the case nor have been able in any manner to prove that there was some obstruction which could block the visibility. The prosecution case was also doubted on the ground that the two unidentified culprits could not be found out. But, we are unable (sic) as to how would it affect the merit of the case against the appellants. It was submitted that the High Court acquitted Ijaz and Mst. Rasulan Bibi and in absence of any confirmatory evidence against the appellants they could not be held guilty. In case of said two accused the High Court observed:-- "The medical evidence also contradicts the role played by Ijaz and Mst. Rasulan, as according to the prosecution evidence, both these accused had given a toka blow each to Riaz on his head at the back. According to the doctor, there was only one injury on the back of head of Riaz deceased, which was attributed to these two appellants; hence the prosecution case, qua Ijaz and Mst.
Rasulan appellants is not free from doubt, so while giving them the benefit of doubt, we accept the appeal to their extent, set aside their convictions and sentences and acquit them.
' The High Court; however, distinguished the case of the appellants as against the acquitted accused in this way:- "Now reverting to the case of Sham, Nawaz and Manzoor appellants, we find there is sufficient evidence on record to connect them with the crime in the form of fire-arms injuries on the dead bodies of the deceased attributed to them which were observed by the doctor who performed the post-mortem examination of the deceased. In addition to that, pellet were recovered from the dead bodies which further strengthen the prosecution case against them, coupled with the motive, which they had against the deceased persons and also the recovery of so many crime empties from the spot."
' It was next contended that the High Court had observed:-- "We have to see, whether there is sufficient corroborative evidence available against each of the appellants, in order to safeguard the involvement of any innocent person, as the complainant has involved all the members of the family including their mother".
' But, in spite of it held the appellants guilty without referring to any confirmatory evidence. This is not correct, as the High Court discussed the merits of the case against the appellants in para. No,1 reproduced above wherein it referred to the pieces of evidence connecting the appellants with the crime. The learned counsel then relied on cases noted below to build up a point that the trial Court and the High Court had not kept in view the guidelines as enunciated in these judgments:- ' NLR 1995 Criminal 311, (Atta Muhammad v. The State) 1995 SCM R 599; (Atta Muhammad v. The State)
' 1991 SCM R 643 (Muhammad Noor and another v. Member-I, Board of Revenue Balochistan and others)
' PLD 1976 SC 629 (Amanullah v. The State) 1986 PCr.LJ 583 (Janib and 2 others v. The Sate)
' It cannot be disputed that every criminal case proceeds on its own facts and that there can hardly be any two case having similar factual aspects/background. Therefore, no legal principle of inflexible and universal application can be laid down so as to cover a case with distinct facts. ' The cases referred proceed on their own facts and have no similarity with the factual aspect of this case. The rule laid down therein cannot cover,. This case.
11. We are of the view that the testimony of the two eye-witnesses is worthy of credence as it could not be shown that they gave evidence against the appellants either for their own benefit or on account of enmity or some ulterior motive. The eye-witnesses have justified their presence on the spot at the time of occurrence as their uncle Anara (deceased), having been threatened by the accused, had asked for their help so they were there on the eventful night. Their statements find support from the medical evidence, recoveries from the spot and abscondence of the accused. It is to be noted that no substantial defect in their testimony could be pin pointed so as to render it unbelievable. It is amazing to note that out of the deceased, one was real father of Shana appellant and the other two were his step brothers. Therefore, he should have been the first to make a report and to pursue the case; but being guilty conscious and involved in the matter he preferred to abscond. This is also one of the crucial fact which points to the guilt of the appellants.
The learned trial Court and High Court C were, therefore, fully justified in forming the evidence of the eye witnesses as basis for finding a guilt against the appellants.
12. In the end the learned counsel for the appellants pleaded for lesser penalty for Manzoor and Nawaz appellants on the ground of their tender ages and having acted under the influence of their father.
13. In Pakistan Penal Code. "tender age" has nowhere been defined, nor any fixed or inflexible criteria can be laid down so as to hold a particular age as "tender age". Therefore, to claim any benefit on this count, the accused must bring cogent evidence on record to prove his age positively. It is a cardinal principle of criminal law that every case is to be adjudged on the totality of its own facts and the attending circumstances. If a boy of sixteen years, forces a girl to marry him and on refusal kills her or compels a boy of lesser in age than him to make friendship with him for illicit purposes and on his denial, murders him, then on what legal or moral basis such murderer can claim the benefit of lesser penalty and on what moral value the factum of "tender age" can be pleaded as a mitigating circumstance. In such a case it would be most appropriate to award normal penalty of death so as to nip the evil in the bud. On the other hand, if an immature lad, who is entirely dependant on his father and remains under his influence, commits murder in the company of his father or independently of him but at his behest and instigation in order to take revenge of his close relation or to avenge family honour, then ends of justice would not be defeated if he is given lesser penalty of life imprisonment. In the present case appellant Muhammad Nawaz, according to school leaving certificate on record, is less by 4 months than 18 years and his date of birth in the school leaving certificate has been shown as 2-2-1972; while the occurrence took place on 10-10- 1989. It is in the evidence that he was a student in those days and was living with his father and was entirely dependant on him. On the night of occurrence he accompanied his father and elder brother, as his unfortunate and unscrupulous father wanted to take revenge from his own father for giving excess land to his step brothers. His father led and initiated the attack, therefore, it can be said that not being mature enough he did not act of his own but acted in the manner his father wanted him to do. It is, thus, clear that he committed the crime under the influence of his father.
Keeping in view this factual background the ends of justice will he met if sentence of Muhammad Nawaz appellant No,2, is commuted into life imprisonment. There is no reliable evidence regarding age of Manzoor appellant No,3, as no school leaving certificate or any other document showing his age is available on record. At the time of recording his statement under section 342, Cr.P.C. On 9-6- 1991, his age has been shown as 22 years. Therefore, on 10-10-1989 i.e, the day of occurrence, he was about 20 years old. At this age he was mature enough as he could not only resist the nefarious design of his father but could also prevent him from pursuing his devilish and sinful act of killing his own father and brother. He is, therefore, not entitled to any leniency on this count.
14. Consequently, the appeal in respect of Shana, appellant No,1, and Manzoor appellant No,3, is dismissed; while that of Muhammad Nawaz, appellant No,2 is allowed to the extent that his sentence of death on each count is converted into life imprisonment, but that of fine is maintained.