P L D 1983 Supreme Court 58 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-In a case involving three murders (and several injured involving charges of attempted murders) the trial Court convicted 12 persons out of 20, put on trial. Out of seven who were awarded death sentence the High Court confirmed conviction and sentence of the four petitioners. All others were acquitted by both the Courts essentially on extension of the principles of abundant caution. On appeal to the Supreme Court through leave thereof, the final challenge to the petitioners' conviction and sentence failed, of course after due consideration no justification having been made out, this petition is dismissed. MIAN BURAHNUDDIN KHAN, J.-This Review Petition is directed against the judgment of this Court dated 27-8-1980 whereby appeal of four petitioners Razi, Noor, Khurshid and Yameen was dismissed against the judgment and order of the Lahore High Court dated 29-1-1976 to Criminal Appeal No. 419/74 and Murder Reference No. 2/75/BWP.

2. Facts essential for the disposed of this Review Petition are that twenty accused were tried by the learned Additional Sessions Judge, Rahimyar Khan under section 302 read with section 149, on three counts; S. 148/307 read with section 149, ten counts for causing the murder of Abdul Halim, Khuda Bakhsh and Jan Muhammad and attempting on the lives of Mst. Karam Khatoon, Mst. Khandal, Mst. Mehar Khatoon, Mst. Khamman, Mst. Amir Khatoon, Mst. Qaim Khatoon, Mst. Gami, Waryam, Musa and Abdul Aziz, by firing at them with guns fires.

2. According to the statement of complainant Obaidullah, he alongwith some of his relatives had purchased 32 acres of land in village Mad Akbar Shah from Rao Muhammad Shafiq who, later on, transferred half of the said land, by way of exchane, to Mst. Ruqqya Begum wife of Qutubuddin, accused, and mother of Yamin and Khurshid, accused. A civil suit was filed by Obaidullah against the accused which annoyed them and they conspired to take forcible possession of the land from the complainant. In consequence of this, on 24-7-1970 at morning prayer time they fired at Mst. Kammun, P. W. while she was in the sugarrane field answering the call of nature. On hearing alarm Obaidullah, alongwith other members of Basti Obaidullah ran towards the spot where they saw Qutubuddin and the nineteen other accused, including the appellants, alongwith Rao Faiz absconder, armed variously, they attacked the complainant and his companions. Out of the accused, Abdul Karim, Razi, Noor Muhammad, Faiz Ali, Yamin and Khurshid were stated to be armed with guns while the remaining accused had hatchets and sotis. After the firing, the accused made good their escape.

3. Obaidullah, P. W. (complainant) reported the matter to the police vide F. I. R. Exh. PA. The dead bodies were sent to the mortuary for post-mortem examination and the injured P. Ws. for medical examination to the hospital.

4. The learned trial Judge, vide his detailed judgment, acquitted Fazal Ahmad, Koura, Ghulam Rasool, Abdul Hakim, Phool Muhammad, Lalu, Feroz and Shah Muhammad as they were not mentioned in the F. I. R. and held that the complainant exceeded the limit by implicating them. Rao Faiz Ali was absconder and, therefore, his case was left undetermined. The remaining 12 accused, whose names were mentioned in the F.

1. R. Exh. P. A., were tried by the learned trial Judge on different footing; and referring to various pieces of evidence against them, both ocular and circumstantial, found them guilty and convicted them under section 302/149. Razi, Abdul Karim, Noor Muhammad, Khurshid, and Yamin were sentenced to death and a fine of Rs. 1,000 each. Qutubuddin Machan, Riaz, Aziman, Basbir, Mahfooz Ali Shah and Khadim were awarded life imprisonment and fine of Rs. 1,000 each, in default, to one year R. L, on the ground that they were not assigned the role of having used any fire-arm in the commission of offence. However, for being armed with deadly weapons all the aforesaid twelve accused were sentenced to one year R. L each under section 148, P. P. C. and to seven years' R. 1. each under section 307/149, P. P. C. and a fine of Rs. 500 each, or in default, to undergo six months' R. I. each. Amount of fine, if recovery was ordered to be paid as compensation to the heirs of the deceased.

5. The learned Judges of the High Court accepted the appeal of Abdul Karim, Qutubuddin, Machhan, Riaz, Aziman, Bashir, Mahfooz Ali and Khadim, and maintained the conviction and sentence of Razi, Noor Muhammad, Khurshid and Muhammad Yamin under section 302/34 and 307/34.

6. The four convicts filed petition for leave to appeal and leave was granted by this Court vide order dated 15-12-76 on the grounds that the complainant party had not established, by reliable evidence, the physical possession of the disputed land and, therefore, the learned High Court Judges had fallen into error in construing the right of private defence of the property; that the prosecution having failed to prove its case against 16 other acquitted accused the High Court was in error in maintaining the conviction and sentences of the petitioner without satisfactory corroboration in support of the ocular testimony of . interested and inimical witnesses; and that, in any case, it would at best be a case of a free fight in which the participants would be liable for their individual acts only, with- no liability vicariously for the acts of others.

7. Now for recording my opinion in favour of the petitioners to the extent that they are, however, entitled, in the circumstances of the case, to a lesser penalty i. e. imprisonment for life, the reason is that the prosecution case, to a greater extent, had been disbelieved by the two Courts below. Further the motive has also not been fully established by the prosecution. In this connection I may refer to Habibullah and others v. The State (PLD 1969SC 127), wherein it was held by the learned Judges that; "1n ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever. Motiveless murders do occur owing to and or reckless acts of inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence, direct or indirect, speak about the guilt of an accused person on the premises of a false motive. In the present case the alleged motive being absent and found to be untrue, the Courts should have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive." In Shaheb Ali v. The State (PLD1970SC447) at p. 450, it was observed that :- "When the guilt of several accused persons concerned in a murder crime is proved to be equal and indistinguishable it would be wholly illogical to pick on just one person out of the lot to pay by his life for the murder of the deceased, and to spare the others. If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner."

8. In support of my view, a reference may be made to the statement of Obaidullah, complainant, before the trial Judge wherein he stated that 32 acres of land was purchased by him from Rao Shafiq, out of which 16 acres was transferred to him through mutation but the remaining 16 acres was obtained by Yamin, accused, in the name of his mother Mst. Ruqqaya Begum through exchange in connivance with Mir Tassawar Hussain, the General Attorney of Rao Shafiq; and that since he had purchased this 32 acre of land, alongwith 4 other partners, they instituted a civil suit in the Civil Court at Rahimyar Khan and the accused were annoyed over this. Possession of the said 16 acres was with Yaqoob, Abdul Khaliq, Allah Wasaya and Khamisa; and the accused wanted to dispossess them. It is, therefore, abundantly clear that 16 acres disputed land was still in possession of the accused or for that matter with Yaqoob etc. but not with the complainant. Thus it is c crystal clear that the motive put forward by the complainant is not only incorrect but the prosecution has miserably failed to establish the same. He was asked in cross-examination whether he had stated earlier that 16 acres in dispute, was in possession of the four persons mentioned by him namely Yaqoob, Abdul Khaliq, Allah Wasaya and Khamisa; his reply was "I had stated before the committing Court that the area of 16 acres was in the possession of the above-mentioned four persons which was not transferred in their names (Confronted not so recorded)". Again he stated that 32 acres were purchased by him, alongwith his partners, six months ago from Rao Shafiq but at the trial he stated that these 32 acres were purchased by him, alongwith others, one year prior to the occurrence. He admitted that he had stated so by mistake. He was again confronted that in the F. I. R. he had not mentioned that the remaining 16 acres was in possession of Yaqoob, Abdul Khaliq, Allah Wasaya and Khamisa and it was found that this fact was omitted in the F.

1. R. He was further questioned regarding the field numbers of 32 acres which had been purchased. His reply was "I cannot tell the description and the field numbers of the land which was purchased from Rao Shafiq. It is correct that the place of occurrence is the part of the same land which was purchased from Rao Shafiq."

9. The mutation regarding 16 acres of land was sanctioned in the name of 4 persons 7/8 months before the time of occurrence. Mutation in the name of Mst. Ruqqaya, mother of Khurshid and Yamin, accused was sanctioned 4/5 months before the time of occurrence. It is incorrect that on 2-5-1970 the possession of the said area was delivered to Mst. Ruqqaya through her sons by Hazoor Bux Patwari along with Girdawar Halqa under the orders of the Revenue Officers. It is incorrect that the possession was obtained from me by the ploughing of the land. It is incorrect that Khurshid was ploughing the land where the occurrence took place and that a 'Hal' was also present there after the occurrence". It may be mentioned here that the Investigating Officer had recovered a 'Hal' from the field where the occurrence took place by preparing recovery memo for the same in the presence of witnesses. There is a documentary evidence also on the file i.e. Copy of Roznamcha Waqeati Exh. DF wherein it is recorded that possession of the land in dispute was delivered to Yamin son of Mst. Ruqqaya Begum in the presence of Ch. Liaqat Ali, Lambardar, village Mad Akbar Shah; and Khurshid Ahmad son of Qutubuddin, accused, ploughed the land while the other party deliberately absented themselves. Copy of Revenue Record i. e. `Register Dakhil-kharij Exh. DG and Khasra Girdawari Exh. DH also show the possession of Mst. Ruqqaya Begum. Therefore, in my view, the case of the prosecution is doubtful and that it is a fit case where the sentence of death awarded to the petitioners, be reduced to that of imprisonment for life. ORDER OF THE COURT ??????????? In view of the opinion of majority, this petition is dismissed. S. A. H. ????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.