P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑On the night between‑the 26th and 27th of April 1957, village Bagowala, in the District of Sialkot, was the scene of a gruesome tragedy in the form of death of seven persons. Six of these persons were residents of age single house in the village while the seventh was one of the assailants who were stated to have been ten in number. First information report do the police was made at about 7‑15 a.m. on the 27th of April, 1957, at Police Station Samberial which is at a distance of about four miles from the scene of the occurrence, the informant being Sultan. who said that he was one of the eye‑witnesses of the occurrence which had culminated in the above‑mentioned tragedy. The informant said in his report that the culprits were Nazir Jat son of Said Muhammad, his nephew Riaz, Anwar, Ghulam Rasul, Nazir Sami son of Ghulam Muhammad, Muhammad Ishaq alias Mushtaq and two or three others. After investigation the police sent up all the six persons named in the first information report as culprits as well as Mst. Sharifan, Allah Ditta and Muhammad Hussain for trial. The trial which was held by Mr. Sultan Khan, Sessions Judge, Sialkot, resulted in the conviction of Nazir Jat and Riaz and acquittal of the other seven. Nazir Jat and Riaz questioned their convictions by an appeal while the State presented an appeal against the acquittal of four of the seven acquitted persons, those not appealed against being Mst. Sharifan, Allah Ditta and Muhammad Hussain. The two appeals which were Criminal Appeals Nos. 996 of 1958 and 493 of 1959 were disposed of together by a Division Bench of this Court on the 4th January, 1960, and the order passed was that a retrial shall be held. The reason for ordering the retrial was that while the assessors had been asked an omnibus question with regard to the guilt or otherwise of the accused persons, they (the assessors) had not been questioned with regard to each of the offences which were the subject‑matter of ,the trial.

2. After the above‑mentioned order of retrial, the case was taken up by Mr. Jamil Asghar, Sessions Judge, Jhelum, acting as Ex‑Officio Sessions Judge, Sialkot. The charges against the six accused were under sections 148, 460/ 149, 440/ 149, 307/ 149, and 302/149 on seven counts of the Pakistan‑ Penal Code and against Nazir Jat son of Said Muhammad there was an additional charge of criminal conspiracy under section 120‑B of the Pakistan Penal Code.

3. At the trial before Mr. Jamil Asghar, the‑prosecution pro duced Jumma Khan (P. W. 17), Mst. Sardar Bibi (P. W. 25), Sultan (P. W. 26), Bashir (P. W. 27) and Mst. Hafeezan (P. W. 28) as eye‑witnesses of the occurrence. Evidence was also led that the dead body of Boota, who was one of the assailants, which had been carried away by his companions, was recovered at the instance of Anwar, one of the accused, but this evidence was not relied upon by the learned trial Judge. By his order dated the 14th of April, 1960, Mr. Jamil Asghar, sentenced Anwar, Nazir Sansi, Riaz Ahmad, Muhammad Ishaq alias Mushtaq and Ghulam Rasul to transportation for life for each of the seven murders, while Nazir Jat was sentenced to death for six of them and the transpor tation for the seventh namely the one regarding the death of Boota. Sentences were also imposed for other offences and it was directed that all the sentences of the accused except those of Nazir Jat shall run concurrently, while the sentences of imprisonment imposed on Nazir Jat shall also run concurrently but shall take effect only if the sentence of death passed on him is not confirmed by the High Court. Nazir and the five other persons convicted at the same trial have presented an appeal jointly through a counsel while Muhammad Anwar and Ghulam Rasul have presented additional grounds of appeal through another counsel. Sultan, who was the first informant to the police, has presented a petition (Criminal Revision 838 of 1960) for enhancement to death of the sentences of the convicts other than Nazir Jat. At the hearing arguments were addressed by Ch. Fazal Ilahi Advocate for Nazir Jat, Riaz Ahmad and Muhammad Ishaq appellants, by Sh. Aftab Hussain Advocate for Anwar and Ghulam Rasul appellants and by Mr. A. H. Najafi for Nazir Sami appellant while Mr. Ijaz Ali argued the case on behalf of the State. This order will dispose of the appeal, the reference for confirmation and. the criminal revision for enhancement of sentences.

4. As mentioned already, the prosecution case was supported by five persons, who claimed to have witnessed the occurrence. Out of them, Jumma Khan (P. W. 17), who stated that he had taken part in the incident, had been tendered a pardon under section 337 of the Code of Criminal Procedure and gave evidence as an approver. The motive for the offence was stated to be disputes between Mst. Sardar Bibi (P. W. 25) the mother of some of the victims, on one side and some of the appellants on the other which started over some property. Mst. Sardar Bibi (P. W. 25) was at first married to one Nabi Bakhsh who had already a wife named Mst. Saidan Bibi. Out of Mst. Sardar Bibi, Nabi Bakhsh had three sons, namely, Nazir, one of the persons killed Sultan (P. W. 26) and Bashir (P. W. 27). Mst. Saidan Bibi, however, had no issue. On the Death of Nabi Bakhsh, Mst. Sardar Bibi married Said Muhammad who had already a wife named Mst. Hakim Bibi. Out of Mst. Sardar Bibi, Said Muhammad and, Iqbal, Mst. Bashiran and Mst. Naziran, three of whom had met with death in the in cident under consideration, while out of Hakim Bibi, Said Muhammad had three issues, namely, Mst. Sharifan, who is one of the acquitted accused, Sharif who was married to the sister of Muhammad Hussain, another acquitted, accused, and Nazir Jat, appellant, who has been sentenced to death in this case. Riaz Ahmad appellant is the son of this Sharif. Said Muhammad was murdered a decade earlier than the present incident upon which Mst. Sardar Bibi (P. W. 25) started living with her children from her first husband, Nabi Bakhsh. The revenue authorities mutated the land of Said Muhammad in the names of his widows and children according to Muhammadan Law. Nazir and Sharif appeal ed against this order of mutation and on their appeal succeeding, the property was entered in the revenue records in the names of Nazir appellant, Sharif and Mst. Sharifan. Upon this, Mst. Sardar Bibi (P. W. 25) filed a suit which was successful and the decision was not upset even by this Court. When the appeal was pending in this Court, Sharif, the brother of Nazir, was murdered about five years before the present occurrence. Mst. Sardar Bibi, her sons, Nazir, Bashir and Sultan, and seven others were tried for the murder, but were acquitted about three or four years before the present occurrence. There was another dispute also which was that about two months before the occurrence under consideration the wheat of Nazir appellant was set fire to and a case was started against Bashir, Sultan and Nazir, the three sons of Mst. Sardar Bibi from Nabi Bakhsh, but the case failed. Then there was the fact that prior to the murder of Sharif, Nazir Jat appellant and his brother Sharif on one side and Sultan and Bashir, two of the three stns of Mst. Sardar Bibi from Nabi Bakhsh, on the other, were bound down under section

107. Cr. P. C.

5. With regard to the motives mentioned about, the prose cution produced cogent evidence in the form of depositions of witnesses and some documents and it can hardly be doubted that Nazir Jat appellant had ample motive against Mst. Sardar Bibi (P.W. 25) and persons connected with her. Riaz Ahmad appellant is son of Shariff, brother of Nazir Jat appellant, the condemned man, and he also can be said to have had a motive to avenge the murder of his father which had gone unpunished by the Courts. The other appellants except Nazir Sansi are connected with Nazir Jat or Riaz Ahmad appellants, but the relationships need not be detailed here. Nazir Sansi appellant is a servant of Nazir Jat appellant.

6. Before considering the case on merits, I would dispose of an objection which was raised by learned counsel for the appellants with regard to the weight which has been attached by the learned trial Judge to the depositions of the witnesses. It was pointed out that while passing the order for retrial on the ground that the provisions of section 309 of the Code of Criminal 'Procedure had not been complied with, the learned Judges of the Division Bench namely Abdul Aziz Khan and Ortcheson JJ. who passed that order had expressed the view that the witnesses whose depositions had not been accepted by Mr. Sultan Khan, the former trial Judge did not suffer from any apparent defect. The learned counsel for the appellants urged that this expression of opinion, which by reason of the fact that the case had been ordered to be retried on the ground that there was some technical defect in the proceedings held by Mr. Sultan Khan, was entirely, unnecessary for the disposal of the appeals which ended in the order of retrial and could not but have affected the view of the learned trial Judge. Whether or not any expression‑ of views with regard to the credibility of the witnesses was necessary when an order of retrial was to be passed on a technical ground is a matter with which this Bench is not concerned, because this Bench cannot have set aside that order. It would appear, however, that the contention of the learned counsel for the appellants that as the case was to be retried the merits should not have been gone into by the learned Judges who ordered the retrial is not without force That, however, does not mean that the trial after which the sentences under appeal were passed was vitiated. The only result would be that this Bench will have to consider the evidence much more carefully than in an ordinary appeal, because the contention of the learned counsel for the appellants that the learned trial Judge whose judgment is under appeal may have been effected by the opinion about the credibility of witnesses expressed by the Bench which passed the order for retrial, cannot be said to be, baseless.

7. I will now take up the consideration of the case on merits. The prosecution case rests on the depositions of five persons who were produced by the prosecution as eye‑witnesses of the occur rence. Jumma Khan (P. W. 17), as mentioned already, was tendered a pardon and appeared as a witness at the trial as an approver. This pardon had been granted on the 21st June 1957 and the statement of Jumma Khan was recorded‑the next day. On the 15th June 1957, however, Jumma Khan had made a confession which was recorded after all necessary precautions by a Magistrate of the 1st Class under section 164, Criminal Procedure Code. From the fact that no part of this confession which was placed on the record as Ex. B. C. was used at the trial to show that the deposition of the approver contradicted his confession in any material particulars it can be presumed that the confession was in all material respects in accord with the deposition of Jumma Khan in Court. The five persons who were produced by the prose cution as eye‑witnesses were unanimous in saying at the trial that the appellants, other than Anwar and Ghulam Rasul, had taken part in the incident. With regard to Anwar and Ghulam Rasul, however, while the position of the other four witnesses was that they were culprits, Jumma Khan (P. W. 17) said that they were not, and that the. Anwar and Ghulam Rasul mentioned by him were persons other than Anwar and Ghulam Rasul appellants.

8. Learned counsel for the appellants contended that the evidence produced by the prosecution could not be considered sufficient in law for the conviction of the appellants because the deposition of Jumma Khan approver required corroboration and so, according to him, did those of the other four eye‑witnesses and corroboration of the one by the other was not sufficient. It appears to me that the contention of learned counsel for the appellants to the effect that by accepting the evidence of the eye witnesses as sufficient the learned trial Judge had committed an error of law cannot be accepted. It is true that the practice of Courts that the statement of an accomplice should not be accepted without its corroboration in some material respects against each of the accused person has now become a rule of law, and if the learned counsel for the appellants had confined their arguments about the imperative necessity of corroboration to the deposition of the approver alone the contention would have been unassailable. In the present case, however, there are four witnesses besides the approver. It may be that as a matter of prudence some Judges will, require corroboration of the eye‑witnesses other than Jumma Khan but it cannot be said that the necessity of such corroboration is enjoined by law. If corroboration of the evidence of an interested witness is sought it is not because the evidence could be accepted without corroboration but because prudence requires that as by reason of the previous strained relations between the parties the witness may have falsely implicated one or more of the accused persons, there should be some corroboration of his deposition. I need hardly emphasize that, under the law, the position of at; interested witness is not the same as that of an accomplice, and Courts are not precluded from accepting as sufficient the evidence of a person who is proved to be interested against an accused person. Acceptance as entirely correct the statement of an interested witness, unsafe though it may be, does not con travene any provision or principle of law. Learned counsel for the appellants referred to a decision of the Supreme Court in Niaz v. The State (P L D 1960 S C (Pak.) 387) in support of the contention that evidence of interested witnesses is not to be accepted unless it is corroborated, but as weight attachable to any piece of evidence is not a question of law, unless the law makes a provision about the matter, the decision relied upon cannot be accepted as having laid down that under law the evidence of interested witnesses cannot be accepted as sufficient proof of a fact unless their evidence were corrobora ted and a careful reading of the‑decision would show that it had not gone the length the learned counsel for the appellants wanted it to be held to have gone. The difference between the evidence, of an accomplice and of an interested witness is that while the law does not allow the deposition of an accomplice to be accepted as sufficient proof of guilt of an accused person unless it is corroborated in material particulars, the law does not prevent the deposition of an interested witness to be accepted as sufficient proof of the guilt of an accused person. Put in another form the distinction between the statement of an accomplice and that of an interested person is that while the law presumes that the former is tainted unless some evidence shows that it is not, the latter is not considered by law to be tainted like that of an approver. As there is nothing definitely said to that effect in Niaz v. The State I am not prepared to accept the contention that the Supreme Court had declared it as the law that the deposition of an interest ed witness had to be corroborated before it could justify the con viction of an accused person, because I am of the view that the weight that can be attached to the evidence on the record is not a question of law but one of fact just as the question whether a fact is proved or not is essentially one of fact. What I have said is subject, to the condition that the law does not enjoin that a certain piece of evidence is not to be acted upon unless it is corroborated in some particular.

10. I am not unaware of the fact that even with regard to an accomplice the law by the 133rd section of the Evidence Act lays down that such a person is a competent witness and a con viction based on his statement alone would not be illegal, and yet it was by reason of the decisions of Courts that it has become a rule of law that an accomplice is unworthy of credit unless corroborated in some material particulars and that a decision of the Supreme Court on a point of law is more binding on the other Courts in Pakistan than the decisions of all other Courts put to gether; but before I accept what is said in a decision of the Supreme Court as a declaration of law, I would like to be satis fied that the point decided was one of law. It should not be overlooked that when Courts give decisions that in spite of the words used in section 133 of the Evidence Act an accomplice was unworthy of credit unless corroborated in material particulars, they could not be said to have launched on legislating and thereby usurping the function of the law‑giver as under the law their own function was that of interpreters of law, because the Evidence Act contains a provision which could be said to be a sort of a proviso to section 133 of that Act. I refer to illustra tion (b) to section 114 of the Evidence Act which is to the following effect :‑ "The Court may presume‑ (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars ;" It was on the basis of this illustration that judicial decisions developed the rule that a conviction could not be based merely on the evidence of an accomplice. If the Supreme Court were to say that the law was that the statement of an interested witness could not, as distinguished from should not, be accepted without corroboration, all other Courts in Pakistan would be bound by that declaration, but if that Court of the highest jurisdiction merely said that the evidence of an interested person should not, as distinguished from could not, be accepted without corrobora tion, the other Courts were not bound bylaw to follow that dictum because what the Supreme Court had said would not be a declaration of law, a declaration of which kind, the law enjoins the other Courts to follow.

11. It should not be forgotten that thane is a vast difference between accomplices and interested witnesses. This difference is that while every accomplice suffers from the same defect, namely that he had, on his own showing, taken part in the crime which was the subject of the trial, interested witnesses will have different things against them. A witness may be interested against are accused person because the accused had committed a crime other than the one under consideration against him or because the accused had annoyed the witness b9 doing something which wonted to the detriment or annoyance of the witness or because the family of the witness and that of the accused have had strained relations witch each other for some time. It cannot be denied that though a witness may be said to be interested against an accuse person for any of the reasons detailed above or for any other reason it will depend on the character of the witness whether he will allow the circumstances which makes him an interested witness in the eye of the Court to out‑weigh his desire to tell the truth. If, for example, a witness is of unquestionable veracity, will the Court be justified in requiring corroboration of his deposi tion against an accused person before acting on it simply because in the case of another person if he appeared as a witness corroboration would be considered necessary ? I am of the view that a general remark made by the Supreme Court in a judgment is to be deemed to have been made with regard to the facts of the case before that Court, unless the remark concerns itself with a ques tion of law in which case, being a declaration of law, it would be binding on all the other Courts in Pakistan. General remarks of the Supreme Court about matters which are not questions of law are not more binding on the other Courts than the opinion of the Supreme Court about the correctness or otherwise of the language used in a judgment considered by the Supreme Court. I would, therefore, hold that it has not been laid down as law by the Supreme. Court in their judgment in Niaz v. The State that the position of an interested witness is precisely the same in all respects as that of an accomplice.

12. It was contended by learned counsel for the appellants that though it is inconceivable that persons other than those who have appeared as eye‑witnesses had not seen the occurrence, none of them had been produced as a witness, and, therefore, the prosecution case should not be accepted. In so far as the first part of this contention goes, it cannot be denied that it is correct and indeed the evidence is that one or two of the neighbours of Mst. Sardar Bibi were watching the incident from their own houses. It is, however, not clear why those persons were not produced as witnesses at the trial. Was it because they were not willing to appear as witnesses or was it that for some reason those in charge of the prosecution believed that persons other than those who were actually produced as eye‑witnesses would not support the prose cution case ? In cases in which the culprits do very heinous acts like the ones under consideration, many persons are generally unwilling to appear as witnesses lest in case of the acquittal of the culprits they (the witnesses) should become the next victims. I am clear in my mind that the prosecution is not bound to produce as witnesses all persons who can give evidence regarding the point in issue or a relevant fact and a case has to be judged on the evidence that is produced in Court. The omission on the part of the prosecution to produce some persons who admittedly had some knowledge of a fact in issue or a relevant fast may, in certain case attract the provision of law contained in Illustration (g) of sec tion 114 of the Evidence Act, which Illustration is to the effect that else Court may presume that evidence which could have been but is not produced would, if produced, be unfavourable to the person who withholds it. It will, however, be noted that it is not in all cases of withholding of evidence that this presumption is to be drawn by the Court, and discretion is left to the Court to raise the presumption or not. If, for example, it is established that persons who had witnessed the occurrence were enemies of the victims but friends of the culprits, their non‑production as witnesses by the prosecution could not be deemed by any Court as a sufficient ground for raising the presumption mentioned in Illustration (g) of section 114 of the Evidence Act. It is not unusual for persons in this country to be unwilling to appear as witnesses of a crime for various reasons and it cannot be held in the present case that the omission of the prosecution to produce some neighbours of Mst. Sardar Bibi (P. W. 25), who are admitted to have seen the occur rence as witnesses, can adversely affect the prosecution.

13. Before proceeding further I would like to mention the medical evidence. This evidence was given by Dr. Abdul Mannan, who was the first witness of the prosecution at the trial, Dr. Asghar Husain, who was the second prosecution witness at the trial, Dr. G. M. Rizvi, who was the third witness for the prosecu tion at the trial and Dr: Abdul Aziz Chaudhry, who was the thirty second witness for the prosecution at the trial. The deposition of Dr. Abdul Mannan (P. W. 1) shows that Sultan (P. W. 26) was found, when examined on the 27th of April 1957, at 10 a. m., to have five abrasions and two other injuries. One of these two injuries was an area of reddened skin with scorched hair on the back of right upper arm; measuring 4 " x 1 ", and the second an erythema of reddened skin with scorched hair starting from the back of the neck, involving the whole of the back and chest and back of abdomen up to the fourth lumbar spine and involved also both the sides of the body up to the tips of the shoulder joints, the whole area involved being 18" x 18". The doctor gave it as his opinion that the last‑mentioned two injuries of Sultan (P. W. 26) had been caused by burns. Bashir (P. W. 27) was examined by the same doctor on the same day as his brother Sultan was, and was found to have six injuries, four of which had resulted from burns, while the other two were caused with blunt weapons. The same doctor examined Ghulam Rasul appellant on the 28th of April 1957, and found on his person three wounds, all simple in nature, which were of the duration of about a week before the examination.

14. The statement (P. W. 2) Dr. Asghar Husain, Assistant Medical Officer, District Jail, Sialkot, was that when he examined Riaz Ahmad appellant on the 20th of February 1960 in order to determine his age, he arrived at the conclusion that his age on the day of the examination was between 16 and 17 years and could not be more than 17 years.

15. The statement of Dr. G. M. Rizvi (P. W. 3) shows that he performed post‑mortem examination on the dead body of Boota Khan (who was one of the culprits who, according to the prose cution was hit accidentally by one of his companions) and found thereon some gunshot wounds which were the cause of death.

16. The statement of Dr. Abdul Aziz Chaudhry, Medical Superintendent, Civil Hospital, Sialkot, who was the 32nd witness of the prosecution at the trial, was to the effect that he performed post‑mortem examination on six human bodies on the 28th of April 1957. The doctor deposed that on post‑mortem examina tion on the dead body of Iqbal, son of Said Muhammad, aged about 13 or 14 years, he found thereon two gunshot wounds, a contusion and an incised wound. On internal examination the doctor found that two ribs of the boy Iqbal, namely, the second and the fifth right ribs, were broken and the right lung was lacerated and broken into several pieces. In the opinion of the doctor the death of this boy resulted from gunshot injuries. The same doctor performed post‑mortem examination on the dead body of Mst. Naziran, daughter of Said Muhammad, a girl abort 18 years of age, and found thereon eight injuries, four of which were incised wounds and four lacerated wounds. The doctor said that on internal examination he found that the right parietal and temporal bones were cut and that many coils of the small intestines were punctured and their contents were passing out into the peritoneum and that some of the large intestines were also punctured. The doctor gave it as his opinion that the incised in juries on the body of the girl Naziran were caused with a sharp- edged weapon and the lacerated wounds with gunshot. The same doctor performed post‑mortem examination on the dead body of Mst. Bashiran, daughter of Said Muhammad and wife of Zia Ullah. The age of the viotim, according to the doctor, was about 20 years and the body had two gunshot wounds, six incised wounds, and two wounds which had resulted from burns. Fourth and sixth ribs were broken under one of the gunshot wounds and the lower part of the right lung was lacerated at many places. The doctor gave it as his opinion that the death of Mst. Bashiran had resulted from gunshot injuries to the lung. The same doctor performed post‑mortem examination on the dead body of Nazir, son of Nabi Bakhsh, aged about 32 years, and found thereon a lacerated wound, an incised punctured wound, a large number of abrasions and an extensive wound caused by burns on the whole of the back of the chest and back of the arms and buttocks, which were burnt and blackened. According to the doctor, there was an irregular hole in the right temporal bone, which was fractured, the fracture running from the place of the hole in all directions in the vault of the skull, and that the right side of the brain and cerebellum were lacerated. In the opinion of the doctor, the burn injuries found on the body of Nazir were received by him after his death, which, according to the doctor, had resulted from shocks due to severe injury to the brain by means of a bullet which had caused the hole in the skull mentioned above. The same doctor performed post‑mortem examination on the dead body of Mst. Saidan, widow of Nabi Bakhsh, whose age was about 60 years. The body disclosed a big lacerated wound on the top of the head, as a result of which the skull was shattered into pieces and the brain was lying out. In the opinion of the doctor, the cause of death of Mst. Saidan was the fracture of her skull caused by means of a firearm, a bullet from which had struck the side of the head and gone out of the opposite side. The same doctor performed post‑mortem on the dead body of Sardara, son of Nabi Bakhsh, an old man of about 70 years, and found thereon five incised wounds. As a result of one of these wounds, the central part of the, top of the skull was cut away and a fissured fracture ran into the middle and interior fossa of the base of the skull. Death, in the opinion of the doctor, was due to the injury to the brain.

17. The medical evidence detailed above leaves no manner of doubt about the truth of the prosecution case that the culprit not only used firearms to cause injuries to the victims but used sharp- edged weapons as well for the same purpose and that they also resorted to setting the house on fire. The house was set on fire evidently with the object of driving out the persons who had taken refuge in a room of the house and also to destroy the dead bodies of the victims and cause extensive damage to the property of the victims and their relatives. It can hardly be doubted that Sultan (P. W. 26), and Bashir (P. W. 17), whose bodies disclosed burns, were in the house at the time of the occurrence. It is true that Mst. Sardar Bibi (P. W. 26) and Mst. Hafizan (P. W. 28) bore no injuries on their persons, but the reason for this is that, as stat ed by them, they were fortunate enough to escape and take shelter in the room of their house. The absence of injuries on the persons of these two female witnesses cannot prove that they were not present there, and I am not prepared to accept the contention of learned counsel for the appellants that the circumstance that these two women bore no injuries was enough for holding that their claim that they had witnessed the occurrence was baseless. In the ordinary course of events these two women witnesses would be in the house which was the scene of seven murders, as well as arson, and in the absence of cogent evidence to that effect I am not prepared to accept the contention that on the night of the occur rence these women were not in the house.

18. I have already indicated that it is not the law that witnesses who are interested against an accused person standing trial cannot be believed unless they are corroborated in material particulars as if they were accomplices, about which sort of witness the Evidence Act makes provision in Illustration (b) of section 114, and, therefore, whether or not four inmates of the house, two of whom bore tell‑tale burns on their persons, should be believed is the main question that requires determination. Having considered, the matter very carefully, I have arrived at the conclusion that no good reason exists for holding that these four witnesses had falsely implicated either all or any of the appellants as perpetrators of the heinous crimes which occurred in the house of the culprits (sic) on the night between the 26th and 27th of April 1957. There were ample opportunities for these wit nesses to see the culprits, because the incident continued for quite some time. The culprits were previously known to the witnesses and even if there had not been much light in the house, the witnesses could have identified the culprits who remained in the house for as long a time as the culprits in the present case musk have done. Moreover, the identification of the culprits were rendered easier by reason of the fact that they set fire to the house and thereby furnished enough light to the witnesses for identi fication of the culprits. The deed was so desperate that a large number of persons must have taken part in it, because the scene of the occurrence being a village the culprits could not but have been aware that it was by no means unlikely that residents of the village would intervene, and, therefore, the assertion of the prosecution witnesses that the culprits were about ten in number is not difficult to accept. The deeds that were done clearly show that persons intending to take revenge for some harm done, or believed by them to have been done, to them, were the perpet rators of the crimes that were committed, and this circumstance points in the direction of Riaz Ahmad and Nazir Jut, the son and brother, respectively, of Sharif, who was murdered about five years earlier and whose murderers were believed to be Mst. Sardar Bibi (P. W. 25) and persons connected with her, who though sent up for trial, were acquitted. The evidence on the record shows that Muhammad Hussain, one of the acquitted accused, who is the brother of the wife of Nazir Jat appellant and also of the wife of Sharif, the brother of Nazir, is the father of Muhammad Ishaq alias Mushtaq appellant, that Anwar appellant is married to the sister of Bahawal Bakhsh, who is the husband of Mst. Sharifan, one of the acquitted accused, who is the sister of Nazir Jat appellant, that Ghulam Rasul appellant is the paternal uncle of Anwar appellant, and that Nazir Sansi appellant is a servant of Nazir Jat appellant. This connection between the different appellants makes it probable that they had taken part in the six murders of the‑relatives of Mst. Sardar Bibi (P. W. 25) with whom Nazir Jat had had disputes about property as well as some other differences. In view of what I have said above, I would have had no hesitation in accepting the depositions of Mst. Sardar Bibi (P. W: 25), Sultan (P. W. 26), Bashir (P. W. 27), and Mst. Hafizan (P. W. 28) against all the six appellants even if that evidence had stood entirely uncorroborated. But, as I will presently show, the evidence of these witnesses does not stand uncorroborated.

19. The corroboration of the evidence of the four eyewit nesses from the house which was the scene of the offence is furnished by the deposition of Jumma Khan approver (P. W. 17). I might make it clear that I have no intention of saying that the statement of an approver can be sufficient corroboration of the statement of another approver, but, as I have already indicated, the standard which applies to the evidence of approvers is not applicable to the evidence of the witnesses who can be said to be interested against the accused persons. It is significant that on the 10th of June 1957, that is, about a week before a tender of pardon was made to him, Jumma Khan (P. W. 17) had made a confession as an accused person which was recorded by a Magistrate of the First Class under section 164 of the Code of Criminal Procedure. The record shows that in answer to a question asked by the Magistrate who recorded his confession. Jumma Khan had stated that he knew that the confession that he was making could be used as evidence against him. This confession is, in my view, an important piece of evidence to gauge the veracity of Jumma Khan (P. W. 17), and though the corroboration of the statement of the approver by his confession as an accused person could not have been held sufficient evidence of the guilt of the appellants, the deposition of the approver, coupled with his confession, can furnish valuable corroboration to the evidence of the four inmates of the house which was the scene of the seven murders, who appeared as the eye‑witnesses at the trial. If Jumma Khan (P. W. 17) had not been made a approver but had been tried as an accused, the confession made by him on the 15th of June 1957 could have been used against his co-accused under section 30 of the Evidence Act and could have been used as corroboration of the depositions of the four persons who have appeared as eye‑witnesses, and I do not see why the statement of Jumma Khan as a witness, which is in all material respects to the same effect as his confession, should lose weight by reason of the fact that it was made on oath while his confession was made without oath. Here I might notice the discrepancy which exists with regard to the participation of Anwar and Ghulam Rasul appellants between the statements of the four inmates of the house on one side and Jumma Khan approver (P. W. 17) on the other. While the other four witnesses said that Anwar and Ghulam Rasul appellants were two of the culprits, Jumma Khan (P. W. 17) stated that these two were not present at the time of the occurrence. It was said by Mst. Sardar Bibi (P. W. 25) in her deposition in Court that Jumma Khan had been bribed by Anwar and Ghulam Rasul not to name them, and I am inclined to accept her statement. It appears that, because neither in his confession made on the 15th of June 1957 nor in his statement as an approver recorded on the 22nd June 1957 by a Magistrate of the First Class during the course of investigation the approver had mentioned the parentage of either of the appellants Anwar and Ghulam Rasul, he took advantage of this omission on his part with regard to these two appellants to try to save them when he appeared as a witness in Court. It would be a very strange 'circumstance that while two of the culprits were named Anwar and Ghulam Rasul, they were not related to the other culprits as Anwar and Ghulam Rasul appellants are. I prefer the statements of Mst. Sardar Bibi (P. W. 25), Sultan (P. W. 26), Bashir (P. W. 27) and Mst. Hafizan (P. W. 28) to that of Jumma Khan (P. W: 17) in the case of Anwar and Ghulam Rasul appellants, and hold that all the six appellants had taken part in the incident.

20. But before taking up other matters I might dispose of a contention strenuously urged by Ch. Fazal Ilahi, Advocate, with regard to Riaz Ahmad appellant. It was urged by the' learned counsel that as at the time of the incident the age of Riaz Ahmad Appellant could not have been more than 14 years, because when examined by Dr. Asghar Hussain (P. W. 2) on the 20th of February 1960 his age was between 16 and 17 years, it was highly improbable that the boy would take part in the incident when there were people of maturer years to carry out their designs. In this connection it has to be borne in mind that Sharif, brother of Nazir Jat appellant, who was believed to have been murdered about five years before tire present incident by Mst. Sardar Bibi (P. W. 25) and some others, was the father of Riaz Ahmad appellant, and it appears that the boy, who must have heard of the murder of his father, joined his relatives in order to take part in the incident which was actuated by a desire to avenge that murder. As the evidence against Riaz Ahmad appellant is as cogent as against the other five appellants, I see no reason to either hold that he had not taken part in the incident or to give him the benefit of doubt, and thereby acquit him.

21. The participation of all the six appellants having been established beyond all reasonable doubt, I proceed to consider what offence or offences are established against them. The appellants were sentenced to three years' rigorous imprisonment under section 148, P. P. C., to five years' rigorous imprisonment and a fine of Rs. 200 under section 460/ 149, P. P. C., to three years' rigorous imprisonment and a fine of Rs. 100 under section 440/ 149, P. P. C., and to seven years' rigorous imprisonment under section 307/149, P. P. C. With regard to six counts of murder, punishable under section 302/149, P. P. C., Nazir Jat was sentenced to death and the other appellants were sentenced to transportation for life and on the seventh count of murder, that is the one relating to the death of their companion Boota Khan, all the six appellants were sentenced to transportation for life. There can be no manner of doubt that all the offences of which the appellants have been sentenced by the learned trial Judge were proved against them, and I maintain their convictions for all those offences. The act was so dastardly and diabolic that I do not find any justification for reducing the sentence of death passed on Nazir Jat to transportation for life, and would, therefore, confirm that sentence.

22. I will now take up the consideration of the revision petition presented by Sultan (P. W. 26) for having sentences of the appellants, other than Nazir Jat, enhanced to death for the seven murders, which they are proved to have committed. The learned trial Judge has given no reason why in a case of this extremely heinous type, which, as far as my knowledge goes, has few, if any, parallels in the history of crime, was not visited with sentences of death, but it appears that because considerable time had elapsed between the date of the offence and the date of his judgment, the learned trial Judge felt that the extreme penalty should be exacted from those only of the culprits from whom it was absolutely necessary to exact it. No doubt the lapse of time between the occurrence and the date of the sentence is a ground which can be taken for passing the lesser sentence of transportation for life provided for the offence of murder, but there is no provision of law to the effect that if long time has elapsed between an offence of murder and its punishment by Court, the extreme penalty cannot or should not be exacted. All that learned counsel for those of the appellants who were not sentenced to death could urge against the enhance ment of sentence of appellants other than Riaz Ahmad and Nazir Sansi, was that the offences were committed about four years earlier and it was not the practice of this Court to enhance a sentence to :one of death after lapse of such considerable time. I am not unaware of the practice relied upon by learned counsel for the appellants, but as the practice is just an unwritten con vention and is not based on any provision of law, no one can doubt that the Court is not precluded from enhancing a sentence to the extreme penalty in a suitable case, in spite of the fact the the extreme penalty would come to be imposed long after the G crime was committed. With regard to Riaz Ahmad appellant it was urged that on account of the fact that because of his tender age he had very probably acted under the evil influence of his uncle Naair Jat his sentence should not be enhanced. It appears to me that, with regard to Riaz Ahmad appellant, the reasons for not enhancing the sentence urged by his learned counsel are not without substance. As regards Nazir Sansi appellant it was urged that he ryas a servant of Nazir Jat appellant and, therefore, must have acted under the instructions and because of the evil influence of his master. It may be that because Nazir Sansi had no apparent' motive of his own to participate in the occurrence, he had done so at' the instance of his master Nazir Jat' appellant, but as Nazir Sansi appellant was at the time of the occurrence over 20 years of age, I do not see why he should be shown leniency in the question of sentence. It was open to Nazir Sansi appellant to have refused to take part in the occurrence, and even to have gone to the extent of reporting to the police in order to thwart the evil designs of his master and his relatives, but he chose the more dangerous and the criminal course. In his case, therefore, I can find no distinction from those of the other appellants, whose case is under consideration, except that of Riaz Ahmad. It would be a palpable injustice if six murders of the inmates of a house were to be punished with one loss of life on the side of the persons proved to be the culprits. I have expressed the view in The State v. Mukhtar (P L D 1956 Lah. 704), that not infrequently the leniency of sentences imposed by Courts compels the victims or their relatives to resort to crime, and I had not changed that view. I am clear in my mind that the enhancement of sentence of the appellants, other than Rlaz Ahmad, is indicated.

23. It was also contended by learned counsel for the appellants that as the petition for enhancement of sentences had not been made by the State but only by a private person, the enhancement was not justified. It is a misconceived belief that a sentence can be enhanced only if the State makes a petition for that purpose. Whether or rot a sentence should be enhanced is for the Court to decide, and the mere fact that the State has not chosen to move for the enhancement of the sentence cannot be urged as a ground for the Court not exercising the power which undoubtedly vests in it. As the law stands, the sentence can be enhanced by this Court even without a petition by either the State or a private party, and I do not see why the fact that the State has not chosen to put in a petition for enhancement of sentence should be construed as having taken away the powers of this Court. Having considered the matter from all aspects, I have arrived at the conclusion that the sentence of transportation for life imposed on Anwar, Ghulam Rasul, Muhammad Ishaq alias Mushtaq and Nazir Sansi appellants is inadequate, and I would, therefore, enhance it to a sentence of death with regard to six murders of the inmates of the honse of Mst. Sardar Bibi, but would decline to enhance it in so far as the murder of Boota, one of the culprits, goes. As regards Riaz Ahmad appellant, his sentence of trans portation does not call for enhancement, and the petition of Sultan is dismissed as far as Riaz Ahmad goes. As regards the sentences for the other offences I maintain all of them against all the appellants.

24. The result, therefore, is that while the appeal is dismissed in its entirety, the petition for enhancement of sentences to death is accepted against Anwar, Ghulam Rasul, Muhammad Ishaq alias Mushtaq and Nazir Sansi appellants, each of whom and Nazir Jat will be hanged by the neck till he be dead. A. R: KHAN, J. ‑I agree. K. B A Sentences enhanced.