' SARDAR MUHAMMAD RAZA, C.J.---Mutabar Khan son of Janpur resident of village Tordher, Tehsil Lahor, District Swabi, has filed this appeal against the judgment dated 6-10-1998 of Mr. HussainBahadur Khan learned Additional Sessions Judge/Special Judge, Lahor District Swabi, whereby the appellant was convicted and sentenced as follows:--
(a) Under sections 302/34, P.P.C. Sentenced to death on five counts for the murders of Khanzada, Mst. Tajbaro, Sherzada, Mst. Mashoqa and Mst. Mujahida.
(b) Under section 364, P.P.C. For abducting, through deceitful means, the deceased Khanzada, sentenced to seven years' rigorous imprisonment and a fine of Rs,10,000.
(c) Under section 201, P.P.C. Sentenced to rigorous imprisonment for five years.
(d) Under section 449, P.P.C. Sentenced to seven years' R.I. With a fine of Rs,10,000.
(e) Under section 324, P.P.C. For effectively attempting at the life of Mst. Shahzadgai, sentenced to ten years' R.I. With a fine of Rs,20,000.
(0 Under section 335/336, P.P.C. For causing injuries to her, sentenced to seven years' R.I. And payment of 1/10th of 'Diyat' as 'Arsh'.
(g) Under section 337-A(iii), P.P.C. For causing injuries to the complainant, sentences to imprisonment for seven years and 1/10th of 'Diyat' as 'Arsh'.
(h) Under section 382, P.P.C. For committing robbery sentenced to seven years' R.I. With a fine of Rs,10,000.
(i) Under section 411, P.P.C., sentenced to three years' R.I. With a fine of Rs,5,000.
' Various sentences were also announced in default of payment of fine and all the sentences of imprisonment were directed to run concurrently. The benefit under section 382-B, Cr.P.C. Was also granted.
2. On 13-4-1996 at 8-10 hours Mst. Shahzadgai wife of deceased Khanzada while in injured condition but in full senses, lodged a report in the Casualty Ward of District Headquarter Hospital, Swabi before Purdil Khan, Sub-Inspector Swabi, that she along with her husband Khanzada, herdaughters Mst. Mashoqa, Mst. Tajbaro, Mst. Mujahida and her son Sherzada were present in their house at Tordher, a day before such report. That on 12-4-1996, in the afternoon Mutabar appellant and his companion GulTaza of Swat, presently residents of Tordher, visited their house. They took their dinner in the house of the complainant and thereafter at 22-00 hours asked Khanzada to accompany them in order to bring hay. Khanzada accompanied them. They all had not returned for quite a long time when at 3'0 Clock in the morning Mst. Shahzadgai got up to milk the buffaloes.
In the meanwhile, Mutabar appellant and his companion GulTaza while armed with hatchets entered the house. Seeing the complainant they opened a desperate attack with hatchets on the complainant and also on her children Mst. Mashoqa, Mst. Tajbaro, Mst. Mujahida and Sherzada. All the children died on the spot. Except Mst. Mashoqa, the others were minors. The complainant out of fear took shelter in a 'Kotha'. Making sure that everyone had been killed, Mutabar appellant and GulTaza left the house taking away certain household articles, some amount of money and two buffaloes. The complainant-lady charged them for the commission of murder of her four children, for effectively attempting at her life, for abducting Khanzada and for taking away the aforesaid belongings. Motive for the occurrence is disclosed to the effect that Mutabar appellant wanted the hand of Mst. Mashoqa in marriage with him which was refused by the complainant family.
3. On the basis of aforesaid Murasila Exh.PA/1 F.I.R. No,206 was registered at Police Station Lahor against the accused under sections 302/ 324/365/449/34, P.P.C. The injury sheet and the inquest reports of the injured as well as of the deceased were prepared by the Investigating Officer and the dead bodies were dispatched for the post-mortem examination. The site-plan Exh.PB was prepared on 13-4-1996.
4. The appellant Mutabar, after two days of occurrence, was arrested on 15-4-1996. During police custody and remand, he confessed his guilt whereupon he was produced before the Magistrate.
Mr. QamarSohailLodhi, Civil Judge/Judicial Magistrate Ist Class Lahor, has recorded his confessional statement on 18-4-1996.
5. Being an important document the gist of confessional statement Exh.PW10/2 requires to be alluded to. He said that he alongwith his father, sometime back resided in the neighbourhood of Khanzada. His father did not like his visits to the house of Khanzada. Later on, Khanzada changed his residence but kept on patronizing Mutabar accused and compromised that he would give his daughter Mst. Mashoqa in marriage to the appellant but on payment of Rs,30,000. He further admitted having developed some affinity with Mst. Mashoqa. The appellant persuaded his father through the mother and the former took 'Jirgas' to the house of Khanzada for asking the hand of Mst. Mashoqa. The proposing family had agreed to pay Rs,35,000 instead of Rs,30,000 but Khanzada refused because he had already decided to give hisdaughter to someone in Attock against Rs,80,000. Khanzada and his wife offered him to live as 'GharDamad' which the appellant refused.
6. On the day of occurrence, his cousin Dilawar asked Mutabar to go to the house of Khanzada alongwith GulTaza, where they would be stealing hay. Appellant and GulTaza went to the house of Khanzada where they took meals and wherefrom Mutabar, GulTaza and Khanzada set out to steal hay. When they filled a bag of hay, it was given to KhanzadawhereafterDilawar and GulTaza attacked Khanzada with hatchets, killed him and threw the dead body in the nearby well.
Apprehending that having been last seen with the deceased, it would lead them to the gallows, they decided to kill everybody and so they did. They took the buffalos and decided to go to Mardan to the house of a maternal aunt of GulTaza and ultimately Mutabar appellant was apprehended along with: buffaloes.
7. In cases like one in hand, of mass massacre there seldom remain any traces of the culprits on the spot but as the Nature was determined that the blood of five innocent persons shall not go unaccounted for, it miraculously kept Mst. Shahzadgai alive though the assailants had left satisfied that everything had been accomplished to their satisfaction and all possible evidence either ocular or circumstantial had been destroyed.
8. The most important, worthy of credence, obvious and natural witness to the occurrence is one and the only Mst. Shahzadgai. Who else, in the late hours of the night and in the very house of Mst.
Shahzadgai could have been the witness to this tragedy that occurred in front of her own eyes.
Apart from being a natural one she is also an injured witness. The medical report indicates that she was severely injured.
9. Learned counsel for the appellant attempted to derive premium from the injuries of Mst.
Shahzadgai and argued that how a lady so seriously injured, could have remained conscious to witness the murder of her remaining four children. We do not agree to this outlook and do believe that she might have sustained such injuries in her physical effort to save her children. In her statement in Court, nothing could be brought in the cross-examination shattering her veracity the least. At one time, she no doubt, said that she became unconscious but this was certainly at the end of the affair when she must have been exhausted due to bleeding and physical encounter.
This does not mean that she despite being injured was not a witness to the murder of her four children. We are further of the view that she being eldest and being awake at the relevant time, must have been attacked at the first instance. We also believe that even if she had fallen unconscious after the first attack of the assailants and had come to subsequently to find her four children lying brutally murdered, she would still have been the only and the A best truthful and natural witness to the occurrence. The assailants had been in her house for the last about 18 to 20 hours. They were known to the family and thus there could be no doubt about the identity.
Moreover, when a ladyawakes to milk the buffaloes, she is bound to make light arrangement wherein she could well identify. Mst. Shahzadgai is such a strong evidence in the instant case, that even her singular testimony would have led to the safe conviction of the appellant.
10. Her truthfulness and the natural sequential flow of events sis so evident that one can altogether exclude the possibility of concoctions, padding and deliberations. It is apparent from the very F.I.R.
Despite such murderous assault on herself and despite the brutal murder of her four children, Mst.
Shahzadgai did not charge the assailants for the murder of her husband because she was not aware of it. She was aware only of the fact that her husband had been taken away by the two culprits and so in her F.I.R., she charged them for abduction. Had there been any concoctions, deliberations and delay in lodging the F.I.R., the lady could have ha charged them for the murder of her husband as well. We hold that in th instant case, the ocular testimony qua the murder of four children is s strong that the conviction could singularly be based on it.
11. After discussing the evidentiary value of Mst. Shahzadgai as th eye-witness, we turn to 'other circumstances of the case. Motive among the is the second strong event. This is disclosed by Mst.
Shahzadgai at the first instance. It is very natural that Mutabar Khan appellant wanted the ofMst.
Mashoqa in marriage. The same is strongly corroborated by his how confessional statement who gave further details of events that led to th creation of bad blood between the families. This motive is directl attributable to the appellant Mutabar Khan. Though the ocular testimon does not require any corroboration yet it is corroborated by the motive whic is not only admitted but further explained by the present appellant Mutaba Khan.
12. The next and still more strong, unshattered and absolut circumstantial evidence is the discovery of dead body of Khanzada on thpointation of Mutabar Khan appellant who after his arrest and while in police custody, led the police to the well where the dead body was thrown by the accused.
Pointation and recovery memos. To that effect are Exh.PB/1 an Exh.PW4/1. This has been a discovery in the true sense of the term becaus neither Mst. Shahzadgai nor the police had any idea of what had happen to. Khanzada, the husband of the complainant. This discovery not on proves the ocular testimony but also reinforces the confessional stateme because in furtherance of the confession the accused led to a horrifyin discovery.
13. The confessional statement Exh.PW10/2 recorded on 18-4-1996 another circumstantial evidence that corroborates and is corroborated by other circumstances. The occurrence having taken place on 13-4-1996 Mutabar Khan appellant was arrested on 15-4-1996. ThiS is always support of the confession made before the police. A perusal of the statemen gist reproduced in the earlier part of the judgment, would indicate that it rings extremely true. That a retracted confession, even as a solitary evidence can be made the basis of conviction, provided it is supported by other circumstances and thus rings true.
14. After having taken away the belongings of the complainant and the buffaloes, the two assailants started for Mardan, where in village YarHussain, a maternal aunt of one of them had lived. Mutabar Khan appellant, in village YarHussain was caught red-handed alongwith buffaloes, ornaments and a cash amount of rupees twenty thousand, which stood recovered through Exh.PC/3. The interesting part of the recovery is, that it is admitted by Mutabar appellant in his statement under section 342, Cr.P.C., but giving an explanation that does not fit in the story and the circumstances. The recovery of the aforesaid articles from ' the IF appellant, would have been a strong evidence even if not admitted, though it is.
15. It is a blessing that the complainant family had remained with the assailants for the whole of the night involved and almost the whole of the preceding day. The last dinner was also taken by them together. In this background, the appellant could not deny so many things. We have already mentioned that the recovery of three main articles including buffaloes, is admitted by the accused in his statement under section 342, Cr.P.C. His explanation thereabout is quite lame when he says that he was hired by Dilawar and GulTaza to take the buffaloes. This has not gone beyond mere statement. In his statement under section 342, Cr.P.C. Mutabar appellant has categorically admitted his presence with Khanzada in connection with the event of stealing the hay. After all, what else coulcLhave been a proof better than the one in hand.
16. The case of the prosecution is completely proved up to the hilt against the assailants. The fact that GulTaza accused is still absconding for the last more than four years, is another circumstance that proves the prosecution story. The ocular testimony duly supported by overwhelming and unescapable circumstantial evidence is more than enough to prove the guilt of the convict- appellant. He has rightly been convicted and sentenced for all the offences that he was charged with. The convictions recorded and the sentences imposed and on all counts; under sections 302/324/201/364/ 449/335/336/337-A(iii)/382 and 411 of the P.P.C., being perfectly correct and well- reasoned, are hereby upheld and the appeal of Mutabar Khan son of Janpur is hereby dismissed.
All the five murder references are hereby confirmed.