1. ' FAIZ MUHAMMAD QURESHI, J.---Appellants have called in question the judgment, dated 31-10-1992 passed by the learned Sessions Judge, Larkana in Sessions Case No,317 of 1987, whereby the appellants have been found guilty of the murders of 1. Zahid,
2. Mst. Zahida,
3. Mst. Gulzar, and 4.
2. Mst. Kalsoom and have been convicted under section 302/34, P.P.C. And sentenced to death. They be hanged by neck till they are dead. They are further fined each to Rs,20,000 or in default to suffer rigorous imprisonment for three years and in case such fine is paid, 50% of the fine recovered be paid as compensation to the legal heirs of the deceased. All the four appellants/accused are further convicted under section 307/34, P.P.C. And sentenced to undergo R.I. For five years each and also to pay fine of Rs,10,000 each or in default to suffer R.I for one year more. In case of recovery of fine, 50% of fine be paid to the injured persons as compensation. The death sentence would be subject to confirmation by this Court.
3. ' These three criminal jail appeals have been filed separately by afore-named appellants from jail, arising out of the same judgment, dated 31-10-1992 and there is also a death confirmation under section 374, Cr.P.C. Before us, we intend to dispose of them by common judgment.
4. ' The facts of the prosecution case succinctly are that complainant Dinal Shah reported the incident of this case on 29-3-1987 at 12-00 noon time, stating therein that on the above eventful day at about 11-00 a.m. He alongwith P.Ws. Amir Shah and Karual were sitting in the Otak of complainant Dinal Shah when they, all of sudden heard cries of 'murder murder' from the house of complainant. They rushed towards the house and saw accused Sarwar Shah, Muhabat Shah, Subhan Shah and Sultan Shah there. Accused Sarwar Shah had a piece of iron pipe, whereas the others had lathis. They further saw accused Sarwar Shah giving blows with pipe to Mst. Gulzar, wife of the complainant. Accused Subhan Shah was hitting with lathi to Mst. Zahida, the daughter of the complainant and Muhabat Shah was giving lathi blows to Mst. Kalsoom, the daughter of the complainant. Accused Sultan Shah was giving blows to Mst. Shamul and her two minor daughters, namely, Mst. Farida and Pappi with iron pipe and lathis. Due to above injuries the injured had fallen down. The complainant and above-named witnesses challenged these accused with the result the accused after throwing piece of iron pipe and lathis in the courtyard of the house of complainant ran away towards west after scaling over the western side wall. The complainant and the witnesses then saw that Mst. Zahida and Mst. Kalsoom had injuries on their head and other parts of bodies and they were dead. Mst. Gulzar and Mst. Shamul and her minor daughters had also injuries on their heads and other parts of body and they were bleeding. In the meantime P.W. Allah Wadhayo came running to the house of complainant and informed the complainant that Zahid, the son of the complainant, was also caused injuries by Sarwar Shah, Muhabat Shah, Subhan Shah and Sultan Shah on the way near Maikhana (Makan) with brick-bats and they had injured him there. He was said to be lying there unconscious. The complainant then leaving the witnesses at the wardat rushed to Police Station for report.
5. ' The motive of incident as mentioned in the F.I.R. By complainant Dinal Shah is that all these above- named four accused used to reside in the house of complainant in Village Fatehpur alongwith the husband of Mst. Shamul, namely, Himath Shah. About three months prior to this incident Himath Shah was murdered in Khairpur. However, his wife Mst. Shamul, who is sister's daughter of complainant, was residing with her minor daughter with the complainant. The complainant after the murder of Himath Shah, brother of above-named four accused, had told to these accused to shift away to their original village towards Khairpur as they were criminal type persons. The accused were annoyed on this. The complainant, however, insisted them to shift away and, as such, the accused demanded the hand of Mst. Shamul, wife of their brother, alongwith her minor daughters, but the complainant declined to leave her so as to complete her 'Iddat' period there.
6. The accused, however, while shifting to their original place told the complainant that he had not done good thing and it was not good for the complainant to have shifted them. However, the accused went away annoyed with the complainant, hence the above incident.
7. ' A.S.I. Nazar Hussain registered the case of complainant on the above date vide Crime No,21 of 1987 and proceeded to the wardat. He prepared the mashirnama of wardat, which was in the house of complainant in Village Fatehpur in presence of mashirs Jamal Shah and Umed Ali. He prepared mashirnama of injuries there at wardat of injured Mst. Shamul, baby Farida, baby Pappi vide Exh.
8. 19-1. The A.S.I. Then went to the place where injured. Zahid was lying and it was adjoining to Makan where Zahid was lying unconscious and there were two brick-bats lying. The A.S.I.. Secured those blood-stained brick-bats in presence of above said mashirs. He also secured bloodstained earth from that place and prepared such mashirnama vide Exh.19-A. He then sent all the injured to C.M.C.
9. H. Larkana. He further saw that dead bodies of deceased Mst. Zahida and deceased Mst. Kalsoom, which were lying in the courtyard of house of complainant Dinal Shah. The A.S.I. Further saw in the courtyard of house of complainant one iron pipe and three lathis, which were blood-stained. He secured those and sealed there in presence of above-named mashirs. He also secured blood- stained earth from there where the deceased were lying. He sealed the earth in different parcels and prepared such mashirnama of wardat and examination of bodies in presence of mashirs Jamal Shah and Umed Ali vide mashirnama Exh.19-B. He prepared inquest report of deceased Mst.
10. Zahida as Exh.19-C and inquest report in respect of deceased Mst. Kalsoom as Exh.19-D. He referred the dead bodies through P.C. Hadi Bux to Medical Officer,. C.M.C.H., Larkana, for post-mortem. On the same date the A.S.I. Recorded the statements of P.Ws. Ameer Shah, Kaural and Haji Allah Wadhayo. The A.S.I. Then went to C.M.C.H., Larkana, where Mst. Gulzar had succumbed to injuries and he prepared inquest report of deceased Mst.. Gulzar as Exh. 19-E and also referred her body to Medical Officer for post-mortem. The A.S.I. Received there letter at the hospital about the death of Zahid Shah injured, who had also succumbed to injuries in the hospital. He prepared inquest report of deceased Zahid Shah there in presence of above mashirs vide mashirnama Exh.19-F.
11. ' The A.S.I. Put his efforts to arrest the accused and on 5-4-1987 he alongwith mashirs Jamal Shah and Umed Ali went to Village Mang Tagar in District Khairpur and raided the houses of accused and arrested accused Sarwar Shah, Subhan Shah and Sultan Shah from their house vide mashirnama Exh. 19-G. He, however, could not arrest accused Muhabat Shah as he was not available in his house. On 12-4-1987 P.Ws. Ameer Shah, Kaural, Haji Allah Wadhayo and Mst. Shamul appeared before the Investigating Officer and he recorded the statement of Mst. Shamul. He produced P.Ws. Ameer Shah, Kaural Shah, Haji Allah Wadhayo and Mst. Shamul before Mukhtiarkar and F.C.M., Larkana, for recording their 164, Cr.P.C. Statements in presence of accused Sarwar Shah, Sultan Shah and Subhan Shah, who were also produced. On 15-4-1987 the A.S.I., came to know that accused Muhabat Shah was arrested by Town Police, Khairpur, and, as such, he went to Khairpur and took the custody of accused Muhabat Shah in presence of P.C. Imamuddin and P.C. Ahmed Ali and prepared such mashirnama as Exh.20-A. After completing the above investigation, he handed over the case papers to the then S.H.O. Noor Ahmed Jagirani of Dhamrah Police Station on 19-4- 1987, who challaned the case.
12. ' When the case proceeded in this Court, charge (Exh.2) was framed against all the four accused and read over to them, to which they did not plead guilty and claimed to be tried. The prosecution in support of it's case examined P.Ws. H.C. Hadi Bux, corpse bearer (Exh.7), Medical Officer, Dr. Abdul Majeed (Exh.8), who produced post-mortem notes of deceased Zahid as Exh.8-A. He also produced post-mortem notes of deceased Mst. Zahida as Exh.8-B. He further produced postmortem notes in respect of deceased Mst. Gulzar, wife of complainant Dinal Shah, as Exh.8-C. He also produced post-mortem notes in respect of deceased Mst. Kalsoom as Exh.8-D. Prosecution then examined complainant Dinal Shah as Exh.11, who produced F.I.R. As Exh. 11-B, P.W. Ameer Shah as Exh.12, who produced his 164, Cr.P.C. Statement as Exh. 12-A, Karual as Exh.13, who produced his 164, Cr.P.C., statement as Exh.13-A, Allah Wadhayo as Exh.14, who produced his 164, Cr.P.C. Statement as Exh.14- A, Mst. Shamul as Exh.15, who produced her 164, Cr.P.C. Statement as Exh.15-A and photo copy of her National Identity Card as Exh.15-B. The prosecution also examined Medical Officer, Dr. Fayyaz Hussain Bhurgir, who had examined injured Mst. Shamul and her minor daughters baby Farida and Pappi as Exh.17, who produced medical certificate of injured Mst. Shamul as Exh.17-A, medical certificate of injured baby Fareeda as Exh.17-B and medical certificate in respect of baby Pappi as Exh.17-P. Prosecution also examined tapedar Noor Muhammad as Exh.19, who produced sketch of scene of offence as Exh.18-A Mashir Jamal Shah is also examined by the prosecution as Exh.18, who produced mashirnama of injuries and wardat as Exh.19-B, inquest report of Mst. Zahida as Exh.19-C, inquest report in respect of Mst. Kalsoom as Exh.19-D and inquest report of deceased Mst. Gulzar as Exh.19-E and inquest report of deceased Zahid as Exh.19-F, mashirnama of arrest of three accused, namely, Sarwar Shah, Subhan Shah and Sultan Shah as Exh.19-G and mashimama of search of house of accused Muhabat Shah as Exh.19-H, Mashirnama of injuries of Mst. Gulzar, Mst. Shamul, baby Fareeda and baby Pappi as Exh.19-I. The prosecution has also examined Investigating Officer Nazar Hussain Awan A.S.I. As Exh.20, who produced mashirnama of arrest of remaining accused Muhabat Shah as Exh.20-A and Chemical Examiner's Report as Exh.20-B. The further prosecution side is closed by the learned D.P.P. Vide his statement (Exh.21).
13. ' The case of the appellants/accused is their total denial to all the prosecution allegations and their false implication. They further pleaded their innocence. The appellant/accused further have led nd defence evidence in support of their innocence and they have also not intended to be examined on oath in rebuttal of the above charge.
14. ' The trial Court formulated the following points for determination:--
(1) Whether the incident of murder of deceased Zahid Shah, Mst. Zahida, Mst. Kalsoom and Mst.
15. Gulzar took place on the above alleged date, time and place?
(2) Whether the incident of murderous attempt on the lives of Mst. Shamul and her two minor daughters, namely, baby Faridan and Pappi also took place on the above alleged date, time and place?
(3) Whether above-named all the four accused in furtherance of their common intention committed the above said murders and also committed the above said murderous assault?
(4) What offence, if any, the accused have committed?
16. ' The learned trial Court, after having gone through the evidence adduced by the prosecution and other material available on the record, passed the judgment in terms as stated above.
17. ' Learned counsel for the appellants Mr. Muhammad Akram Jhamat has argued that the evidence adduced by the prosecution is interested and independent evidence is lacking. According to him, Mst. Shamul, who is injured in the case, was the different lady before the trial Court and the other injured, namely, and respectively Fareeda and Pappi were minors who were not examined before the trial Court by the prosecution. He further contended that the afore-named appellants are real brothers and one of their brother, namely, Sarwar Shah died during the pendency of trial and the proceedings against him were abated and all the family members have been involved in the case by complainant on the charge of murders of four deceased, namely, and respectively Zahid Shah, Mst. Zahida, Mst. Gulzar and Mst. Kalsoom and further made a faint attempt to pursuade us to allow the appeal when there is sufficient evidence against the appellants on the charge of four murders of afore-named persons.
18. ' Qn the other hand Mr. Altaf Hussain Surahio, Advocate for the State has opposed and has supported the impugned judgment. He contended that there is ocular evidence of the witnesses including the injured one and all the appellants/accused have been implicated and they have brutally murdered four persons and there is also recovery against them and motive has been also proved by the prosecution against them.
19. ' We have heard the learned counsel for the respective parties and have gone through the evidence adduced by the prosecution and other material available with the assistance of the learned counsel for the parties. We have also examined the evidence of the witnesses who have been examined by the prosecution and they have fully supported the case of the prosecution and their evidence has gone unshaken. We have also carefully examined the case and the evidence and no defence has been set up by the appellants afore-named. No question has been put to them to shatter their presence at the place of wardat.
20. ' Prosecution has examined P.W.1 Hadi Bux (Exh.7), who is corpse bearer; P.W.2 Dr. Abdul Majeed (Exh.8) who conducted the post-mortem of deceased Zahid Shah, Mst. Zahida, Mst. Gulzar, Mst.
21. Kalsoom and opined that the death has occurred due to haemorrhage, shock and brain damage as 'a result of injuries on the head caused by hard blunt substance. Injuries caused to deceased, in ordinary course of life, were sufficient to cause death. Injuries were antemortem in nature. P.W.3 Complainant Dinal Shah (Exh.11), P.W.4 Ammer Shah (Exh.12), P.W.5 Kaural (Exh.13), P.W.6 Allah Wadhayo (Exh.14), and P.W.7 Mst. Shamul (Exh.15) have also been examined by the prosecution and their statements under section 164, Cr.P.C. Have also been recorded by the concerned Magistrate which have been produced through their evidence by the prosecution and ocular account is being furnished by them. Apart from them, prosecution examined P.W.8 Dr. Fayyaz Hussain (Exh.17), who has examined injured Mst. Shamul, Fareeda and Pappi and has also placed the medical certificates of their irjuries before the trial Court. P.W.9 Noor Muhammad (Exh.18), who is tapedar and who produced the sketch of wardat; P.W.10 Jamal Shah (Exh.19), who is the mashir of injuries and mashir of inquest reports; P.W.11 Nazar Hussain (Exh.20), who is .The Investigating Officer and who has also placed on record the report of the Chemical Examiner and thereafter, the side of the prosecution was dosed by statement, dated 8-9-1992 through D.P.P., Larkana.
22. 'The evidence of the eye-witnesses has been carefully examined by us and the same is inspiring confidence. The other witnesses have also fully supported the case of prosecution. We have also examined very carefully the statements of the accused under section 342, Cr.P.C. and no defence has been taken by them in their statements and they have only stated in their 342, Cr.P.C.
23. Statements that they are innocent. When asked, as to what defence has been set up by the appellants/accused before the trial Court, the learned Advocate for the appellants very candidly conceded that no defence has been set up by the defence counsel, who was novice before the trial Court and was appointed Advocate for pauper appellants/ accused on 24-1-1988 having standing of five years at the bar. During the course of arguments learned counsel for the appellants very frankly submitted that there are also mitigating circumstances in the instant case as all the three appellants are real brothers whereas the fourth accused, who was also their real brother, died during the proceedings before the trial Court.
24. ' Mr. Altaf Hussain Surahio, Advocate for the State conceded to this effect that all the appellants are real brothers and there is no other male member in their family except them and one of their brother has already expired.
25. ' We have not only taken into consideration the entire evidence adduced by the prosecution but we have also taken into consideration the another aspect of the case that all the appellants are real brothers and there is no other male member in their family and one of their brother, namely, Samar Shah has already expired.
26. ' Admittedly the prosecution has proved it's case beyond reasonable doubt against the appellants and the defence has miserably failed to make out a case for the acquittal of the present appellants. However, we find the mitigating circumstances in the case in view of the facts that all the appellants are real brothers and the fourth one brother has already expired and there is no other male member in their family. We have reached to the irresistible conclusion that there are mitigating circumstances and accordingly we convert the death sentence awarded to the appellants into life imprisonment. Accordingly their death sentence is converted into life imprisonment and the other sentences with regard to tine will remain intact. Death reference is rejected. With this modification the appeal of the appellants is dismissed.
27. ' Above are the reasons for our short order, dated 23-5-2001.
28. Sentence reduced.