P L D 1984 Supreme Court 22 (PLP)

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the four appellants, all convicted under sections 302/34 (two counts), 323; 34 and 452,1 P. P. C. and sentenced to death and various terms of imprisonment in the' alternative, to re-examine the entire evidence with a view to ensure that the, conviction and sentence of the appellants was in accordance with the accepted principles of administering criminal justice. Syed Gambal Shah, the father of the appellants and the deceased Yaqub Ali Shah, had died about six or seven years before the occurrence for which the appellants were tried. Yaqub Ali Shah had succeeded to his gaddi in preference to his own elder brother Ali Gohar. The appellants being all sons from another wife of Gambal Shah, sought partition of their share. The deceased did not accede to it on the ground that there were debts outstanding against the deceased's father which had to be satisfied before proceeding with the partition of his property. The appellants felt annoyed over it, had left the haveli where they alongwith other wives and children of Gambel Shah were residing. Two of them, namely, Punhal Shah and Khadim Ali had shifted to houses in the same village whilst the other two had shifted to another village at some distance from the gaddi of their father. On the evening proceeding Eid-ul-Azha, that is, on 13 of December, 1975, at about 8 p.m. Yaqub Ali Shah deceased was lying on the bed in a room of the haveli as he was suffering from fever. His mother Mst. Murad Khatoon (P. W. 1), his sister Bibi Sakeena (P. W. 2), the maid-servant Mst. Basran (P. W. 3) were inside the room attending to him. They heard the report of shots being fired outside the haveli and soon thereafter Punhal Shah and Latif Shah armed with pistols, and Khadim Ali and Qamar Ali appellants armed with hatchets entered the haveli calling out that they would deal with Yadub Ali Shah, The ladies inside the room begged them not to do 49 and closed the door from within with a view to prevent them from having an access to Yaqub Ali Shah. Thereupon Khadim Ali and Qamar Ali gave hatchet blows on one of the windows of the room and after breaking it open succeeded in creating an entrance for all of them. Punhal Shah and Latif Shah fired a shot each and thereafter the other two appellants gave a number of hatchet blows to him causing his death then and there. They retreated thereafter. Mst. Nur Bibi (P. W. il) then entered the haveli and informed that while seeking an access to the haveli, Ahmed Ali (P. W. 6) one of the Fagirs of the dargah had received an injury and was lying outside and that her own husband Karamat Ali the Head Faqir had been killed by the appellants by giving him hatchet blows. Haji Khan (P. W. 7), a resident of the same village but quite unconnected with the parties, on hearing the report of numerous shots coming from the direction of the dargah had promptly informed on telephone the Police Station Ban Syedian: The substance of that report was recorded at the Police Station but formal F. I. R. was not registered on it. The information that reached the Police Station through him was only this much that firing on the haveli of Yaqub Ali Shah was going on and it was not known whether the persons firing were dacoits or other persons. The S. H. O.. lnayat Ullah (P. W. 13), reached the dargah at 9 p.m. in a jeep, recorded the first information report on the statement of Mst. Murad Khatoon, and placed police guard at the house of Punhal Shah accused in the village. He inspected the spot, the dead bodies etc.. in the morning and made recoveries of six empties of 12 bore and one of 16 bore from various places. Two empties of 12 bore were recovered from inside the room where Yaqub Ali Shah was murdered, two others from the court-yard of the haveli and three from outside haveli near its entrance. However, the fact that the recoveries were effected from various places is not of much value at this stage because the empties were mixed up and their identity bearing a relation to the location from where they were recovered was not kept intact. The appellants were arrested the next morning from the guarded house. Their clothes were found to be stained with human blood. Eaoh one of them led to the recovery of the weapon attributed to him and two empties matched with the weapon recovered at the instance of Punhal Shah and one with the weapon recovered from Latif Shah, appellant. The hatchets recovered from the other two appellants were also found to be stained with human blood. Dr. Bashir performed autopsy on the dead body of Yaqub Ali Shah and of Karamat Ali and examined the injured Ahmad Ali. On the dead body of Yaqub Ali Shah two gunshot injuries were noted in the following words: "(1) Multiple contused gunshot wound 1/6' in diameter over left shoulder outer aspect x skin deep. (2) Multiple contused gunshot wounds over right hypochondric region 1/6' in diameter each skin deep." Apart from these injuries, nine incised wounds of varying dimensions were found on the dead body of Yaqub Ali Shah, and one contusion on front of the chest 2' x 1". His death was instantaneous on account of the injuries. Karamat Ali Shah had thirteen incised wounds on his person and two contusions on his chest. Ahmad Ali had also been examined by the same doctor who found the following injuries caused by a blunt weapon on his person "(1) Contusion over left frontal region 1'x 1/2' with echymosis of left eye. (2) Contusion over left shoulder 1' x 1/4'." The appellants when examined by the trial Court stated they had no dispute with the deceased Yaqub Ali Shah over the partition of the property, had taken no part in the occurrence and were in no way responsible for the deaths of Karamat Ali and Yaqub Ali Shah or injuries to Ahmad Ali. A suggestion repeatedly made to the prosecution witnesses on their behalf was that Karamat Ali had a daughter from another wife with whom the deceased Yaqub Ali Shah was maintaining illicit relations. On account of it Karamat Ali caused the death of Yaqub Ali and the other disciples or fagirs of the gaddi in turn caused his death. The witnesses denied any - such suggestion. In defence the appellants produced two witnesses. Sher Muhammad Shah (D. W. 1), aged 16 years, is a stepbrother of the deceased as well as of the appellants. He stated that five or six person had entered the haveli and caused the death of Yaqub Ali Shah in his presence but these were not known persons and could not be identified. He was certain that the appellants were not amongst them. The ladies who turned up as eyewitnesses of the occurrence, according to him, were in the kitchen at that time. According to this witness it was Ali Gohar who got the appellants implicated to deprive them of their share in the property. Manzoor Ali (D. W. 2) is a murid of the dargah and was on a routine visit. He heard the report of shots coming from the haveli and then Sher Shah (D. W. 1) came out and asked him to inform his other brothers, namely, the appellants about the fact that Yaqub Ali Shah and Karamat Ali had been killed by some unknown persons. The trial Court believed the ocular evidence, and the eye-witnesses were all held to be natural witnesses. The first information report recorded by the S. H. O. was held to be the proper report and not the earlier telephonic information received at the Police Station or the information given by injured Ahmad Ali. The recoveries of the incriminating clothes and weapons and the reports with regard to them were found to provide the necessary corroboration and all the appellants were found guilty of the offences of which they were charged. The trial Court found no mitigating circumstance for the purposes of awarding any lesser sentence. No order with regard to compensation was thought necessary. All the appellants were sentenced to death for causing the murders and to six months' imprisonment under section 323/34, P. P. C. and one year R. 1. under section 452, P. P. C. The learned Judges of the High Court while seized of the reference for confirmation of the death sentence under section 374, Cr. P. C. and of the appeal filed by the convicts, re-examined the entire evidence and dealt with each individual objection taken by the learned counsel for the convicts in details. They found the case of the prosecution proved beyond any reasonable doubt and the defence version was not found acceptable and so was rejected. The appeal of the convicts was dismissed and the death sentence confirmed. Mr. A. K. Brohi, the learned counsel for the appellants, contended that the very motive which formed the basis of the prosecution case remained unproved, for the prosecution evidence itself showed that the appellants had left their residence in the haven immediately after the chehlum of Gambal Shah and had been receiving their. share of the produce and had been visiting the havell off and on. Their relations were on that account quite normal and there was nothing at all to prompt them to such an extreme action against Yaqub Ali Shah and those associated with him as head faqir of the dargah like Karamat Ali or Ahmad Ali who was a mere fagir. On the contrary, the learned counsel suggested that Murad Khatoon (P. W. I) had a vital stake in the whole matter as a number of sons and daughters from other wives of Gambal Shah had to share the property and also the right to succeed to the dargah. In order to create and strengthen the right of her own sons she had by lodging this report implicated falsely all the sons belonging to another wife. The conduct of the police officer in not treating the telephonic information or the statement of Ahmad Ali injured as a first information report and in selecting. Mst. Murad Khatoon (P. W. 1) who was the last to meet him, for the purpose of recording the F. I. R. should not have been lost sight of. The S. H. O. had passed Ahmad Ali who was injured and was the most competent witness to lodge the report. He had also ignored Nur Bibi whose husband had been killed before her own eyes. The S. H. O. did not record the F. I. R. till he reached inside the haveli and contacted Mst.Murad Khatoon (P. W. 1). The learned counsel has further contended that the defence version was plausible. The witness who was natural and was admittedly present bad been produced and had stated that. it was not the appellants who had entered the haveli, fired shots and caused the deaths of Karamat Ali and Yaqub Ali Shah and injuries to Ahmad Ali. This evidence, according to the learned counsel, was capable of and had, in fact, cast reasonable doubt with regard to the veracity of the eye-witnesses and the correctness of the prosecution case. As regards the recoveries, the learned counsel has contended that it was rather difficult to accept that all the appellants continued to have on their persons the blood-stained clothes after more than 14 hours of the occurrence when they were in their own house and bad access to other clothes. The very fact that a police officer was produced as a recovery witness and no independent person from such a thickly populated area was associated with the recoveries is sufficient to demolish the fact of recovery. There was, according to the learned counsel factual discrepancy in the st