P L D 1964 Supreme Court 54 (PLP)

FAZLE‑AKBAR, J.‑The appellant Fazal Khan alongwith Nazar, Amir Khan, Munawar and Mehr Khan was placed on trial for offences under sections 148, 302/149, 307/149, 170/34 and 447/34 of the Pakistan Penal Code before the Sessions Judge, Campbellpur who convicted this appellant and Nazar under sec tions 304 Part II/34, 307/34,170/34 and 447/34 and sentenced each of them to various terms of imprisonment and acquitted the rest. The convicted persons appealed to the High Court against their convictions and sentences. The State also appealed against their acquittal of the charge under section 302 and against the acquittal of the three others. The appeal of the State so far as Nazar and the three co‑accused were concerned, was dismissed, but it‑was accepted as against this appellant and his conviction was altered from section 304 Part II/34 to one under section 302/34, P. P. C. and sentence of death was passed on him on two counts. The appeal of Nazar was allowed and he was acquitted. The incident which involved the death of two brothers namely Mansab and Falaksher and attempted murder of Fateh Khan, occurred in the early hours of 21st August 1960 in the area of Dhok Trer, Dakhli Thoha Mahram Khan. The prosecution case was to the following effect: On 22nd July 1960, Sultan, brother of Fateh Bibi, widow of Mansab deceased, and Shera abducted Mst. Gulab Khatoon, sister‑in‑law of this appellant from village Pira Fatehal and brought her to the hamlet of Dhok Ter. Mst. Gulab Khatoon during her stay there developed liaison with Akbar, brother of Mansab, and eventually they were married. At sargiwela on 21st August 1960, Fazal, brother‑in‑law of Mst. Gulab Khatoon, Nazar, her first cousin, Munawar her brother, alongwith two others went armed with shot guns and pistol to the house of Mansab masquerading as Police men and woke up Mansab, his wife Fateh Bibi, his brother Falaksher, and Fateh Khan son of falaksher, who all were sleeping in the courtyard and ordered them to light a lantern. As soon as Mansab brought a lantern from inside the kotha and lighted it, he expressed his recognition of Fazal Khan. Thereupon Fazal Khan fired a shot at him and he fell down. Amir Khan also fired a shot at Falaksher and he too fell down. Fateh Khan while attempting to escape, was hit by a shot from Fazal's gun. The accused party after firing a few more shots left the place. Mansab died at the spot and a little later his brother Falaksher also succumbed to his injuries. Noor Khan, a cousin of the deceased lodged first information report at Police Station Talagang at 9 a.m. Shortly thereafter Muhammad Afzal Khan, S. H. O. arrived at the spot, and started investigation. After holding inquest and sending the dead bodies for post‑mortem examination he took into possession various articles from the courtyard including eight empties and one cartridge. He also seized various articles from the houses of Fazal Khan and Amir Khan at village Pira Fatehal. Dr. Haji Ahmad Janjua who held the post‑mortem exami nation found 35 gun shot wounds on the person of Mansab deceased and 14 gun shot wounds on the person of Falaksher deceased. This appellant Fazal Khan who was then employed as Sepoy in Bloch Regiment at Kakul, was arrested on 29th August 1960 and his licensed gun was also seized by the Police. The Police also took into custody a licensed gun of accused Mehr Khan. The other accused who had been arrested and were placed in the test‑identification parades, were identified by various witnesses. The report of Muhammad Salim Khan, Arms Expert, Peshawar to whom the two shot guns and the crime empties had been sent showed that 4 of the said empties hid been fired from the licensed gun of Fazal Khan and 3 from the licensed gun of Mehr Khan. The five accused namely Fazal Khan, Munawar, Mehr Khan, Amir Khan and Nazar were sent up for trial. The defence of Fazal Khan was that he had been implicated in this case out of enmity. Accused Amir Khan and Nazar took the plea of alibi. The defence of others was that they had been involved in this case on suspicion. As already stated this appellant only stands convicted and sentenced in this case. The evidence led by the prosecution as against him may be divided under two main heads, namely, direct and circumstantial. The direct evidence consists of the testimony of 5 eye witnesses namely Zohr Khan, Feroz, Noor Khan, Fateh Khan and Fateh Bibi who claim to have witnessed the occurrence. The circumstantial evidence on which the Court relied was the fact that out of the 8 crime empties found at the scene of occurrence, 4 had been fired from the appellant's licensed gun. The learned Judges of the High Court agreed with the Sessions Judge that among the eye‑witnesses Zohr Khan and Feroz were not reliable. Further they in view of certain incon sistencies and contradictions in the evidence of the remaining 3 eye‑witnesses Noor Khan, Fateh Khan and Fateh Bibi, came to the conclusion that "The conviction of the accused on the statements of these witnesses cannot be based unless they are corroborated by other independent evidence." Having laid down this standard they upheld the conviction of this appellant on the ground that the circumstantial evidence to which reference has been made was sufficient corroboration of the oral evidence. Mr. Mahmud Ali the learned counsel for the appellant has contended that as the remaining 3 eye‑witnesses were also considered unreliable, the High Court instead of looking for corroboration of their evidence should have rejected the same. According to our reading of the judgment of the High Court, the learned Judges did not condemn the evidence of these 3 eye witnesses out‑right, but as a matter of prudence and caution, decided not to convict the accused unless there were circum stances to lend support to their evidence. They were certainly entitled to lay down this standard for testing the credibility of these witnesses. Hence the question is : Whether the circum stances on which the High Court relied could be considered as sufficient corroboration of the oral evidence? This appellant Fazal Khan was employed as Sepoy in the Baloch Regiment at Kakul. He was on leave from the mid‑day of 20th August 1960, up to 9 a.m. on the following day and immediately on his return deposited his licensed gun in the Kot. The occurrence took place at sargiwela on 21st August 1960. According to the testimony of the eye‑witnesses his first shot killed Mansab and his second shot injured Fateh Khan. He was arrested on 29th August 1960, at Kakul and the shot gun which was licensed in his name was seized from the armoury. From the report of the Fire‑arms Expert it appears that out of the eight crime empties recovered from the place of occurrence, four had been fired from this licensed gun of Fazal Khan. The learned Judges have regarded the above as sufficient corroboration of the evidence of eye‑witnesses. The comment of the learned counsel with regard to the report of the Fire‑arms Expert was that it should be discarded as the police investigation in this case was not a straight‑forward one. The facts necessary to understand this argument may now be stated. On 16‑9‑1960 two out of four parcels sent from the thana, containing exhibits, including a gun and crime cartridges were returned by the P. I. with some objections. On the same day another sealed parcel was added and the three parcels were sent to the P. I. but they were again returned on 19‑9‑1960 with some further objections. On 21‑9‑60 they were again sent to him and one of them was returned on 22‑9‑1960 as a result of some objection. There is however, nothing in the record to show the nature of the objections raised by the P. T. it is therefore not possible to divine what those objections were. When once the conclusion is reached that some of the crime empties recovered from the scene of occurrence were fired from the licensed gun of this appellant, this criticism has no meaning unless it is intended to suggest that the Police subsequently substituted the empties that were recovered from the spot. There is, however, nothing in the evidence to support such a grotesque suggestion. On the other hand it is clear from the evidence of the recovery witnesses Alam Khan Lambardar (P. W. 14) and Akbar Khan Lambardar (P. W. 15) that the empties were sealed before them. Ahmad Khan (P. W. 17) who sent the parcels to the P. I. deposed that the seals of the parcels were intact. We, therefore, find no reasonable basis for the suspicion that the crime empties might have been substituted. Now the appellant was on leave from mid‑day of 20th August 1960, up to 9 a.m. on the following day. Hence the evidence regarding his presence in the early hours of 21st August at the scene of occurrence suffers from no inherent improbability. The crime empties which had been fired from his gun thus provided a valuable link in the chain of evidence against him. The learned Judges of the High Court were therefore, justified in concluding that the above furnished ample corroboration to the evidence of the eye‑witnesses. Arguments were also advanced in this case on the questions whether the occurrence took place inside the kotha or in the courtyard and whether it rained before or after the occurrence. It will be sufficient to say that it is not the function of this Court A to re‑assess the evidence on points of fact which did not prevail, with the Courts below. On the evidence in this case we are satisfied that the appellant had taken part in the murders with which he was charged and the learned Judges of the High Court were thus right in con victing him under section 302/34 of the Pakistan Penal Code. The last submission of the learned counsel was that even if the conviction of the appellant under section 302, P. P. C. was upheld, this is not a fit case in which sentence of death should be maintained. The question, therefore, is whether there are extenuating circumstances which can be legitimately urged in support of the submission that the lesser sentence under section 302, P. P. C. would meet the ends of justice. It appears from the evidence that repeated attempts of this appellant for restoration of his abducted sister‑in‑law, Mst. Gulab Khatoon had failed. Even on the day of occurrence he along with others went masquerading as Police‑men with a view to get back the girl. In these circumstances it cannot be said that they bad gone to Mansab's house with the set purpose of killing him and his brother Falaksher. The questions of a lady's honour and family prestige were involved in this case. The attempt was to secure possession of the person of the girl by exercise of pretended power. That is clearly an excess, and in itself a crime, but it must be remembered that questions of family honour, touching the females of a family, are of almost overpowering importance to the tribes of the Western regions. To vindicate that honour, they feel bound in duty to go to very great lengths. Here they resorted to personation, and the ruse may well have succeeded if it had not been that one of the party was recognised. The evidence is that the instant that Fazal Khan's name was mentioned by Mansab, he fired. The re‑action was clearly triggered by the impulse to avoid detection, an impulse which the tension of the occasion appears to have aggravated. Bearing these circumstances in mind, as well as the facts (1) that the crime was committed more than three years ago and (2) at the trial, Fazal Khan was awarded no more than 10 years' rigorous imprisonment, we consider that the appellant's crime will be adequately met by a sentence of transportation for life on the charge of murdering Mansab, and we direct accordingly. The act of Amir Khan in shooting Falaksher (of which he has been acquitted) may equally have been of sudden and automatic nature, and the additional conviction of Fazal Khan under section 302/34, P. P. C., for the death of Falaksher is there fore set aside. K. B. A. Appeal partly accepted.