P L D 1971 Supreme Court 541 (PLP)

The motive for the crime was suspicion of illicit intimacy between Mohammad Shafi, deceased, and Mst. Waziran wife of Mohammad Ali, respondent. To avenge the insult the five respondents of whom Mohammad Ali was armed with a double barrel shot-gun and the rest with sotas entered the Ihata of Chah Isawala at a distance of one furlong from the village Abadi on the night between 19th and 20th March 1964. Mohammad Ali first fired two shots in the air by way of a challenge. Sarwar then lighted a torch and located the cots on which Ahmad Din and Shamoo, deceased, were lying asleep. Mohammad Ali fired two shots in quick succession at Ahmad Din which killed him instantaneously. On hearing the alarm Shamoo was about to get up when the remaining res pondents gave him sota blows. Having done with Ahmad Din, Mohammad Ali fired two shots at Shamoo which killed him too. At this point Mst. Kariman, deceased, mother of Ahmad Din and Shamoo, deceased, who was asleep with the rest of the family members inside the Kotha came out. She was still at the threshold when Mohammad Ali fired at her and brought her to the ground. Mohammad Shafi, deceased, and others bolted the outer door of the Kotha from inside to save their lives, but to no avail as the respondents soon broke open the shutters of the door. On entering the Kotha Mohammad Ali shot dead Mohammad Shafi, Mst. Chiragh Bibi and her daughter Mst. Begum Bibi one after the other. Having massacred Mst. Kariman and her family members the respondents dragged their dead bodies to a corner of the courtyard where a stack of cotton sticks was lying. They put the dead bodies on the stack and put it on fire. The blaze lit up the surroundings which attracted the residents of village Keetan Kalan at a distance of one furlong from Chah Isawala. The respondent then went away carrying with them their respective weapons, buy left behind a large number of empty cartridges. Four of the members of Mst. Kariman's family escaped death at the hands of the respondents, namely Mst. Rajan (P. W. 51, unmarried daughter o' Mst. Kariman who was asleep in the adjoining Kotha and had hid herself in a basket and Mst. Munawar Bibi and Mst. Bashiran, co-wives of Ahmad Din, deceased, who were asleep in the adjoining Kotha which was not ransacked by the respondents. On hearing the alarm they came out of the Kotha and stood in the verandah and saw the respondents dragging dead bodies and placing them on the stack of cotton sticks and later put to fire. Asadullah, husband of Mst. Begum Bibi, was also lying asleep in the courtyard of the Ihata, at some distance from the cots of Mohammad Shafi and Shamoo. He escaped notice of the respondents and quietly ran away to a nearby wheat field and hid himself there. Besides these inmates of the house Bagga, P. W. 8, who was at his Dera heard the gunshots and came to Chah Isawala and witnessed the occurrence. After the respondents had left, the village Lambardar and others arrived at the scene. Thereafter Asadullah left for Police Station, Chunian, reaching there at 6-30 a.m. and lodged there the first information report (Exh. P. B.) enumerating therein the events mentioned above. After recording the report, Mohammad Latif, S. H. O. (P. W. 16) arrived at Chah lsawala and undertook investigation in the case. Amongst other articles he took into possession 15 empty cartridges from the scene of crime which were sealed in a parcel and sent to the Police Station where they were kept in safe custody by Barkat Ali, P. W., Moharrir Malkhana. As the accused had absconded, Mohammad Safdar (P. W. 15), Assistant Sub-Inspector, was deputed by the S. H. O. to search for them. The five respondents were found by him hiding in a grove of trees near the shrine of Data Dewan at a distance of 4/5 miles from Keetan Kalan He took them into custody in the presence of Siraj Din (P. W. 14) and one Ahmad Din who was not examined during the trial. Mohammad Ali was carrying a double-barrel shot gun (P. 1) and a bandolier containing four live cartridges. The gun was taken into custody and sealed into a parcel in the presence of the said witnesses. Four dangs stained with blood (P. 7-Y. 10) were taken into custody from the remaining respon dent each and likewise sealed into a parcel. The clothes which the respondents were wearing (P. 11 to P. 20) were also taken into custody and sealed into separate parcels. Along with the respondents all these articles were handed over to the S. H. O. by Mohammad Safder, A. S. I., on the same day at Chah Isawala at about 3-30 p.m. The 17 empties recovered from the scene were found by the Ballistic Expert to match with the gun P. 1 recovered from Muhammad Ali, respondent. The rest of the articles including the dangs and the clothes recovered from the persons of the five respondents were, on examination by the Chemical Examiner. During the trial the charges against the respondents were supported by the ocular evidence of Asadullah (P. W, 5), Mst. Rajan (P. W. 6), Mst. Munawar Bibi (P. W. 7) and BMga (P. W. 8). The presence of two of these witnesses could not be in doubt, Mst. Rajan is the unmarried daughter of Mst. Kariman and was asleep with her in the same Kotha. hlst. Munawar Bibi is the wife of Muhammad Shafi, deceased, and was residing with him at Chah Isawala. Asadullah lived in the village Abadi at a distance of less than 100 yards from Chah Isawala and had come to fetch his wife Mst. Begum Bibi who had come to pay a visit to her mother 2/3 days prior to the occurrence. According to Muhammad Wakil, Patwari (C. W. 1) Bagga had his cultivation in Field No. 697 two killas away from Field No. 949 in which Chah Isawala is situated. Bagga was thus at a distance of about 125 yards at the time of occurrence. Keeping in view the number of gunshots fired by Mohammad Ali, respondent, and the duration of the occurrence his presence at the scene was also very likely. The trial Judge relied on the testimony of Mst. Rajan and Mst. Munawar Bibi which coupled with the incriminating recoveries made by the Police proved beyond any reasonable doubt that the respondents were guilty of the offences under sections 148, 302 read with section 149, sections 201 and 460, P. P. C. He convicted them accordingly anti in view of the heinous nature of the crime sentenced them all under the principal charge to the extreme penalty of death and to various terms of imprisonment on the remaining charges. On appeal by the convicts and reference made by the trial Judge under section 3?4, Cr. P. C., the High Court took the view that Mst. Rajan and Mst. Munawar could not have identified the culprits as it was a very dark night and in this view excluded their evidence of recognition altogether. In regard to Mst. Rajan the learned Judges noticed that in examination-in-chief she stated that the assailants were not known to her and that she only identified them in Court. Mst. Rajan's testimony was disbelieved because she was unable to state as to "which dead bodies were lifted and which dead bodies were dragged." Nor could she identify the persons` who either dragged or lifted the dead bodies. In the result the judgment and order passed by the trial Judge were set aside and the respondents 1-5 were acquitted. Leave to appeal was granted to Asadullah husband of Mst. Begum Bibi, as the High Court's treatment of the evidence did not appear to be satisfactory for if the recoveries were genuine they would go a long way to establish the veracity of the ocular testimony. We have now examined the evidence and concluded that the order passed by the High Court has resulted in grave miscarriage of justice. Leaving aside the testimony of Asadullah and Bagga which, in our opinion, was free from any blemish, let us examine the grounds on which the High Court rejected the evidence of Mst. Rajan and Mst. Munawar whose presence was not doubted. Mst. Rajan was asleep along with Mst. Kariman, Ust. Begum Bibi, Mst. Chiragh Bibi and Mohammad Shafi in a Kotha. All these members of the family were murdered within her sight. She then saw the assailants dragging their dead bodies to a considerable distance and placed them on a stack of cotton sticks. She further witnessed the burning of the dead bodies when the stack was put on fire. The glow of the fire lit up the entire environments and attracted the attention of the residents of the village two killas away. According to Mss Rajan, a lantern was burning inside the Kotha, but apart from it the light of the burning cotton sticks was sufficient to identify the culprits. She thus had ample opportunity to identify the culprits who belonged to her own village. Her statement that she did not know the accused and identified them in Court was also misconstrued. By `knowing' she meant being acquainted with and not that she had not seen them before and did not know who they were. Similarly Mst. Munawar Bibi had' deposed that a lantern was burning in the shed outside the Kotha in which she was asleep. On hearing tile gun reports ant' the alarm she came out and saw the respondents dragging the dead bodies of the six victims to a corner of the courtyard and placing them on a stack of cotton sticks. She then witnessed the respondents putting the stack to fire and burning of the dead bodies. In the circum stances, it was unreasonable to surmise that as it was a dark night and she was unable to distinguish as to what dead bodies were dragged or lifted and which of the accused dragged the dead bodies or lifted them. The learned Judges further fell in error in isolating the ocular evidence furnished by Mst. Rajan and Mst. Munawar Bibi from Lac corroborative evidence comprising of the incriminating recoveries to which reference has been made earlier. The learned Judges in the first instance rejected the evidence of Mst. Rajan and Mst. Munawar and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons with the crime "more particularly as the entire ocular evidence had been disbelieved". The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed' it would be anamalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be the basis of conviction The view formed by the learned Judges shat the evidence of recoveries did not connect the accused persons with the crime was, therefore, plainly fallacious. The respondents were arrested from a hiding place near the shrine of Data Dewan at a distance of 3/4 miles from Chah Isawala, a few hours after the incident. Ahmad Din was holding the shot-gun (P. 1) licensed in the name of his father. It matched with 17 empty cartridges recovered from the scene of the crime. The clothes worn by all five of them bore stains of human blood. So did the lathis recovered from the respondents other than Ahmad Din. These recoveries were witnessed by Sadar Din (P. W. 9) Village Lambardar, Siraj Din (P. W. 14) and Mohammad Latif Shah, S. H. O. P. W

162. Sadar stated :- "I saw with the policemen four dangs and a gun. Police party had also a bandolier with them containing four live cartridges. I did not state to C. M. that police party did not bring anything. (Confronted, what is given in C. M.'s statement is that A. S. I. Muhammad Safdar did not have anything when he returned with the accused). So far as I remember I did not say that Safdar A. S. I. did not bring anything." Nothing substantial was brought out in the cross-examination of this witness except that before the committing Magistrate he had stated that Mohammad Safiar A. S. I. did not have anything when he returned with the accused. This, however, did not mean that the recoveries to which the A. S. I. deposed had not been made at the time of the arrest of the accused persons. As the A. S. I. was accompanied by a number of Foot Constables, the parcels containing the shot-gun, lathis and the clothes of the accused persons must have been carried by one or more of the constables and not the A. S. I. Siraj Din (P. W. 14) who witnessed the second set of recoveries deposed :- "I joined investigation in this case about 21 months age Alim-ud-Din was the other person present with the police party. As we reached the western side of the graveyard at a distance of 3/4 fields from Khara bridge we saw a grave there. All the 5 accused were hounded out of it. Muhammad Ali was holding gun P.

1. Bandolier of leather contained four live cartridges. Bandolier P. 2 and cartridges P. 3 to P.

6. Fard Exh. P. A. was prepared and gun was sealed into a parcel. Rest of the accused had dangs with them. Dangs were blood stained. Dang of Yasin is P. 7, Sarwar's P. 8, Ishaq's P. 9 and Bashir's P.

10. They were also sealed into parcel vide memos. P. B. to P. E. Blood-stained shirt P. 11 and chaddar P. 12 of Muhammad Ali were taken into possession vide memo P. F. and were sealed into a parcel. Similarly blood-stained shirt P. 13 and stained chaddar P. 14 of Y assn were taken into possession vide memo. P. 6 to be sealed into a parcel. Shirt P. 15 and chaddar P. 16 both stained with blood were removed from the person of Sarwar accused, vide recovery memo. P. H. They were also sealed into a parcel. Ishaq's kurta P. 17 and chaddar P. 18 were taken into posses4on vide memo. P. J. to be sealed into a parcel. Chaddar and shirt P. 20 and P. 19 blood stained of Bashir Ahmad were similarly taken vide memo. P. K. to be sealed. All these memos bear my attestation." Nothing useful to the defence was elicited in the lengthy cross- examination of this witness. Lastly Mohammad Latif Shah, S. H. O., deposed to the recoveries made from the spot and the articles brought to him in sealed parcels by Mohammad Safdar A. S. I. A close examination of the evidence furnished by these witnesses and the attending circumstances left no doubt in our mind that the recoveries on which the prosecution relied were genuine. The trial Court relied on them and the High Court did not pass n any adverse criticism against these recoveries. The position which emerges out therefore is that the evidence given by Mst. Rajan and Mst. Munawar was fully corroborated by the recoveries on which the prosecution had relied. In this view the charges under sections 148, 302 read with sections 149, 201 and 460,,P. P. C. were proved against the respondents beyond any reasonable doubt and in coming to the contrary conclusion the learned Judges of the High Court erred grievously. Before arriving at this conclusion we have given due weight to the opinion formed by the learned Judges and kept in view the principle that the presumption of innocence of an accused person is not weakened by the fact that he was acquitted by the Court below and that the accused has the right to the benefit of doubt. We, accordingly, set aside the judgment and order passed by the High Court acquitting the respondents and restore the order passed by the trial Judge convicting them of the aforementioned charges. Question, however, arises whether the sentences of death imposed on the respondents by the trial Judge under section 302 read with section 149, P. P. C. should also be restored. It was urged on their behalf that since they had acquired and expectation for life under the order of the High Court it was not a fit case to exact the extreme penalty of death from them. The doctrine of expectation of life held out to an accused person by a subordi nate Court is primarily applicable to cases involving question of limitation. If the period prescribed for filing an appeal or petition for special leave to appeal against an order of acquittal has expired, the accused person acquires a right which cannot be taken away. A case in which the Court below had passed a) patently erroneous order causing grave miscarriage, of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an appeal against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death. In some reported cases this Court has refrained from inflicting death sentence on ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed. If the doctrine of expectation of life was a rule of universal application, High Courts would, in no case, be competent to enhance the sentence awarded by the lower Court, yet in a number of cases various High Courts of the sub-continent have in the past enhanced sentences of transportation to death if the ends of justice so required. The sentence to be awarded is an appeal against an order of acquittal will, therefore, depend on the facts of each case. As seen the respondents have been guilty of a gruesome and cold-blooded crime. Six members of a family were killed while asleep in their house. To aggravate the crime they acted in a brutal manner and put the dead bodies to fire without any fear of being taken to task by their co-villagers who were awakened by the report of gunshots and saw the glow of the fire raised from a distance of two furlongs. It is, therefore, a fit case for exacting from Mohammad Ali, the principal offender, the ordinary penalty provided by law for the offence of murder. In State v, Hakim Ali (P L D 1959 S C (Pak.) 258) this Court accepted the appeal preferred by the State from the order of acquittal passed by the High Court and restored the sentence of death passed on the respondent by the trial Judge. Following this precedent we impose the sentence of death on Mohammad Ali, respondent No 1, under section 302, P. P. C. and direct that he be banged by the neck till dead. The sentences passed on him under the remaining charges are also restored. The other five respondents are vicariously guilty of the charge of murder. In view of the part played by them to the incident the trial Judge was right is imposing upon them the death penalty, but in view of the possibility that they had acted under the influence of Mohammad Ali , we sentence them to transportation for life each under section 30'2 read with section 149, P. P. C. The sentences awarded to them under the remaining charges are re-imposed and shall run concurrently. The appeal is disposed of accordingly. Appeal accepted.