1984 PLP 837 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through special leave of this Court is directed against judgment dated 29‑1‑1979 of the Lahore High Court ; whereby while dismissing a criminal appeal arising out of a triple murder case, the sentences of death passed on the two appellants namely Muhammad Makhdoom and Muhammad Munir were confirmed. Leave to appeal was granted on a Jail Petition to examine whether on account of long‑standing enmity it was not necessary to find corroboration for the eye‑witnesses who are admittedly related to the deceased and, secondly whether in the circumstances of the case it was appropriate not to award the extreme penalty of death. Three real brothers‑the two appellants and Muhammad Nasir who absconded during the trial were tried for the triple murder of Allah Ditta, Muhammad Shafi, Rehmat Ali, three real brothers inter se, and for causing injuries to their fourth brother Mushtaq Ahmad P. W., their father Karam Elahi, P. W., and their relation Mst. Noor Fatima P. W. The prosecution case as projected in the deposition of Bashir Ahmed P. W. who is also the first informant is as follows.: "On 31‑8‑1971, at about Chahwela when I reached near the house of Haji Muhammad Din while on my way from my fields to my house. I saw Muhammad Makhdoom, Muhammad Munir accused and Naseer absconder raising alarm. Naseer absconder who was armed with a gun fired a shot while standing at the door of Haji Muhammad Din, towards his courtyard where Allah Ditta and Shall deceased Mushtaq P. W. Haji Muhammad Din P. W. and Mst. Noor Fatima P. W. were sitting. The shot hit Mst. Noor Fatima other but tocks as she was running away. Thereafter, Allah Ditta deceased and Shafi deceased scaled over the wall in order to save themselves. Naseer absconder and Munir accused fired shots at Allah Ditta which hit him. Makhdoom accused inflicted a dang blow on Mushtaq P. W. Thereafter, Naseer absconder, Munir accused and Makhdoom accused chased Shafi deceased who was running away for life. The accused persons were firing at Shafi deceased while chasing him. Rehmat deceased who was seeing the occurrence ran for his life into the haveli of Ali Muhammad Lambardar. The accused persons made a short work of Shafi deceased at the door of the haveli of Ali Muhammad Lambardar. The accused persons thereafter entered the haveli of Ali Muhammad Lambardar, and murdered Rehmat there by firing at him. Thereafter the accused persons ran away towards the east. They took away their weapons. Thereafter I heard reports of gun firing from the direction of the house of Karam Elahi. I did not go there out of fear. After 1 was sure that the accused persons had left the village, I went to the house of Karam Elahi where I found him injured. 1 found Mst. 1qba1 Begum and Karam Elahi's son Allah Rakha present there. Muhammad Din, Yusuf, Muhammad Khan and Ali Muhammad also saw the occurrence. The house of the accused persons adjoins the house of Haji Muhammad Din. Wazir father of the accused persons was an accused in a murder case. Karam Elahi father of Rehmat. Shafi and Allah Ditta deceased was a prosecution witness in that account there was enmity between the parties. There was also a dispute between the accused and the deceased on account of consolidation proceedings. After the occurrence, I went to Police Station Pasrur where I reached at 9‑25 a.m. After covering a distance of 1 miles on a cycle.." Mushtaq Ahmad, Karam Elahi and Noor Fatima the three injured eye witnesses appeared and supported Bashir Ahmad. During the investi gation several crime empties and some missed cartridges both of .12 bore gun and 32 bore revolver were recovered‑ from the various places of occurrence. Muhammad Nasir absconder appeared on the same day before Muharrir Muhammad Ismail (A. S. I.) and produced before him a .32 bore revolver and .12 bore gun with their bandoliers containing live cartridges. He also made a statement before Muharrir A. S.‑I. Instead of being recorded as an F. I, R. on his behalf it was according to him entered in the daily diary. The many empties recovered from the spot matched with the fire‑arms produced by Muhammad Nasir. In statements under section

342. Cr. P. C. Muhammad Makhdoom plead ed absence from the village while Muhammad Munir admitted his presence in the village but professed innocence. Both of them pleaded false implication on account of what according to them Muhammad Nasir their abscon ding co‑accused brother had done in attacking the complainants side as reaction to their outraging the modesty of their unmarried sister Mst. Mussarat Begum then aged 17, who appeared as D. W.

4. As already noted Muhammad Nasir absconded during the trial. His statement could not be recorded but it is not denied on the prosecution side that from the very beginning rather within two hours of the occurrence he had appeared before the police and owned exclusive responsibility for the occurrence. Four D. Ws. appeared in defence. D. Ws. Nos. 1 to 3 supported Mst. Mussarat Begum's version. She deposed as follows :‑ "Munir and Makhdoom accused and Naseer absconder are my brothers. On 31‑8‑1971, at about 7 or 8 a.m. I went to answer the call of nature. Mushtaq P. W. caught hold of my arm to insult me when I was on my way home. I abused him. He returned the abuse. Rehmat, Shafi and Ditta deceased came there. They abused me and asked Mushtaq not to allow me to go home. After getting myself freed from the hand of Mushtaq I went to my house and narrated the story to my relatives who were present in the house and to my brother Naseer absconder. He got enraged and took out gun and revolver and went out of the house. After sometime I heard reports of firing Naseer absconder thereafter did not return to the house. The accused persons were not present in the house then." Both the Courts below disbelieved the defence version about 'the real motive of the occurrence the incident regarding Mst. Mussarat Begum and the place that Muhammad Nasir alone was responsible. Both the appel lants (as also Muhammad Nasir) were held to have participated in the occurrence. They were accordingly found guilty under section 302/34, P. P. C. on three counts and 307/34, P. P. C. on two counts as also under section 323/34, P. P. C. Under the first head of charge they were awarded sentence of death each on each count under the second charge 7 years R. I. each on each count; and, under the third charge 6 months' R. I. each. All the sentences were ordered to run concurrently. . Learned counsel for the appellants has vehemently contended that Muhammad Makhdoom and Muhammad Munir did not participate in the occurrence and that Muhammad Nasir alone was responsible for firing at the three deceased and the two eyewitnesses namely Mst: Noor Fatima and Karam Elahi Keeping in view the number and nature of injuries and the fact that two separate weapons were used, the findings of fact by the two learned Courts below that Muhammad Munir and Muhammad Nasir both participated in the occurrence is not in contravention of any principle of appreciation of evidence we accordingly affirm the same. The case of Muhammad Makhdoom appellant, however, is on a different footing. He is alleged to have caused only one sota blow on the head of Mushtaq Ahmad P. W. where after the witness as admitted by him "ran towards the field and hid himself in the just field" throughout the occur rence. According to the Doctor, Mushtaq P. W. had two highly insignificant marks of injury one, on the right parietal area and the other on the medial part of the left eyebrow. Both were " x 1/8" skin deep. Keeping in view the background of alleged enmity between the parties if the prosecution version is accepted, Mushtaq could not have been allowed to escape with such minor injuries. Moreover, while Mushtaq says he suffered only one blow, the marks of injuries are two at separate locations. This is not all. Mushtaq had not appeared for examination of his injuries for nearly 24 hours. In all probability as would be presently shown he being somehow or other respon sible for the occurrence had concealed himself as stated by him in a jute field with some such advantage that he could not be located by the assailants otherwise there is no reason why he would not have come within the range of firing from the accused side. In addition to Makhdoom having caused injuries to Mushtaq, it was arrested from the prosecution side that he also uttered lalkara to Muhammad Munir and Muhammad Nasir for killing all the adversaries. This seems to be improvement because except in the deposition of Karam Elahi no other witness deposed about it. And lastly although Muhammad Makhdoom is said to have come with Muhammad Munir, and Muhammad Nasir his real brothers he did not cause and harm to any of the victims who were nearly half a dozen in number and were so close to the assailants that Makhdoom if he had carried the sota would have easily caused some injuries to the victim. For all these reasons, the allegation of his participation in the occurrence cannot be affirmed without reasonable doubt. Extending the same to him, his appeal is accepted and. he is acquitted of all the charges. He shall be set at liberty if not required to be detained in any other matter. The question of sentence in this case largely depend upon the immediate cause of very violent attack by the accused side on the complainant party. The two motives deposed by the witnesses at the trial, on proper scrutiny have not been found strong enough to support the prosecution for such an attack. Regarding the previous murder in Muhammad Din a relation of the deceased lost life while Wazir father of the accused was an accused Karam Elahi injured P. W. was a prosecution witness. This Muhammad Din was an uncle of Bashir Ahmad P. W. When under cross‑examination Bashir Ahmad admitted that the murder took place in 1945 and that the parties in that case had reconciled their differences, to such an extent that they had been "exchanging visits" with each other and "there was no ill‑will". Regarding the second motive it was admitted by Bashir Ahmad P. W. under cross‑examination that it was six years before the occurrence that the consolidation took place and that then there was a dispute about the allocation of a well which was treated as joint property "being in the Shamilat Deh". As the land around the well came to the share of the accused the witness further explained, they were required to pay some compensatory amount to all the other proprietors of the village. The witness professed his ignorance regarding the number of the co‑sharers in the Shamilat Deh. This also was not such a strong motive which could have impelled the accused party to launch such a serious attack on the complainant side. The prosecution accordingly has failed to prove adequate motive in this case. On the other hand, the conduct of Muhammad Nasir in so far as he appeared before the police within nearly two hours after the occurrence and produced the weapons of crime and further, the statement of Mst. Mussarat to the extent it contained an assertion that something happened between her and the three deceased as also their brother M6shtaq Ahmad on that morning which annoyed her and she made a complaint to the inmates of her house, go along way to show that the immediate cause of the occur rence whatever it may be has been concealed by the prosecution. Due benefit, therefore, can be extended to the accused on this account in so far as the sentence is concerned. It may be observed here that the plea of grave and sudden provocation has neither been raised nor have we found any sup port for the same in the evidence. In the light of the above discussion we while maintaining the conviction of Muhammad Munir under section 302, P. P. C. on three counts, set aside the sentence of death on the three counts awarded to him instead he is sen tenced to transportation for life on all the three counts as also Rs. 10,000 fine on each of the three counts. He is ordered to suffer three years' R. I. on each count in default of payment of the fines. The entire fine when reco vered shall be paid as compensation to the heirs of the three deceased. His conviction and sentence under section 307/34, P. P. C. are maintained. This sentence shall as directed by the learned trial Court run concurrently with the substantive sentence of transportation for life awarded to him under sec tion 302, P. P. C. which regarding the three counts, inter se shall also run concurrently. The conviction of Muhammad Munir for offence under section 33/34, P. P. C., is set aside on account of the acquittal of Muhammad Makhdoom. With the above modification in the sentence awarded to Muhammad Munir and the acquittal of Muhammad Makhdoom, this appeal stand partly allowed. S.Q Appeal partly allowed.