1983 PLP 1161 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑Petitions Nos. 369/79 and No. 398/79 were heard together and arise out of the same judgment of a Division Bench of the Lahore High Court, Lahore, dated 11‑7‑1979. They are accordingly being disposed of by this consolidated order. The four petitioners in the first mentioned petition, namely, Nur Muhammad, Nazir Ahmad, Ghulam Muhammad and Barkat Masih were tried and convicted, alongwith Hakam Ali, Imanat Ali, Nawab, Habib, Dilmir, Rehmat Ali, Shahadat Ali, Hussain Masih and Abdul Latif (in all 13 accused persons) under section 302/34, P. P. C. by the Additional Sessions. Judge, Kasur, and were sentenced to death on all four counts in addition to fine. They were also convicted under section 452, P. P. C. and sentenced to five years' R. I. as well as fine. Lastly, they were all convicted under section 148, P. P. C. and each sentenced to one year's R. I. The case of the convicts came up before a Division Bench of the Lahore High Court, Lahore, for confirmation of the death sentence awarded to the aforesaid convicts and also as the convicts had preferred appeals against their con victions. By the impugned judgment in these petitions, dated 11‑7‑1979, the High Court dismissed the appeals of the petitioners in Petition No. 369/79 and confirmed the death sentences awarded to the petitioners Nur Muhammad, Nazir Ahmad and Ghulam Muhammad whereas the sentence awarded to the petitioner Barkat Masih was altered to life imprisonment. The other convictions and sentences of the said petitioners were also maintained. Out of the rest of the convicts, the High Court accepted the appeals of Hakim Ali, Imanat Ali, Nawab, Habib, Dilmir, Rehmat Ali and Hussain Masih and set aside their convictions. The convictions of Nazir Ahmad and Ghulam Muhammad were also maintained by the High Court but the death sentence awarded to them by the trial Court was not confirmed and was altered to that of life imprisonment. The four petitioners in Petition No. 369/79 are, therefore, aggrieved and seek leave to appeal from the aforesaid judgment of the learned Division Bench of the High Court. Petition No. 398/79 has been filed by the complainant Muhammad Sharif, who is aggrieved by the part of the order of the High Court whereby the aforesaid seven convicts. were acquitted as per the impugned judgment. The occurrence in this case took place on the night between 5th and 6th of September, 1973 at about 11‑30 p. m. in which Nur Muhammad, Zulfiqar, Mst. Hashmat and Mst. Hanifan are said to have been murdered while they were sleeping in their house. The deceased Mst. Hashmat Bibi was the wife of the deceased Nur Muhammad and deceased Zulfiqar was their son, whereas deceased Mst. Hanifan Bibi was the daughter of Mst. Hashmat Bibi out of her previous wedlock. The F. I. R. in this case was lodged by Muhammad Sharif, P. W. 4 who is the brother of deceased Mst. Hashmat Bibi on 6‑9‑1973 at about 7‑30 a. m. at Bhai Pheru Police Station, District Lahore. According to the case of the complainant as disclosed in the F. I. R., the deceased Nur Muhammad had two wives. Out of his first wife he had three sons, namely, Hakim Ali, Imanat Ali and Shahadat Ali who were living. along with their sisters and mother in a separate house. The deceased Nur Muhammad himself was living alongwith his second wife Mst. Hashmat Bibi from whom he had one son Zulfiqar aged about 8 or 9 years at the time of the occurrence. 'The deceased Nur Muhammad had a dispute with his sons from his first wife. It was stated that Shamas Din, father of deceased Nur Muhammad had divided his property, giving half of it to deceased Nur Muhammad and the remaining half to his grandsons, namely, sons of deceased Nur Muhammad from his two wives. However, Hakim Ali, and his brothers were unhappy with their father and they also had a dispute with him over the proposed marriage of their sister Barkat Bibi which was being opposed by the deceased Nur Muhammad. On account of this grudge Imanat Ali and his real brothers alongwith their supporters, in all thirteen accused, entered the house of deceased Nur Muhammad on the fateful night and murdered the four deceased brutally while they were sleeping on the Chaubara of their house. On the com motion and the cries of the persons who were subjected to the murderous assault, Muhammad Sharif P. W. 4 and his sister Mst. Hamidan were attracted and are said to have seen the thirteen accused coming down from the Chaubara of deceased Nur Muhammad. In the F. I. R. the names of seven culprits were disclosed as having been seen by Muhammad Sharif P. W. 4 but on a supplementary statement of the complainant recorded by the police, names of six remaining accused were also disclosed, as having been seen by Mst. Hamidan, P. W. 5 also coming down from the Chaubara of the deceased climbing down the Neem tree on the night of the incident. In the trial Court, the prosecution relied upon the ocular testimony of Muhammad Sharif and Mst. Hamidan Bibi and evidence of recovery of weapons of offence and blood‑stained clothes of the accused, recovery of the gun of deceased Nur Muhammad, extra‑judicial confession of Shahadat Ali and Nur Muhammad and motive. The trial Court accepted the evidence tendered by prosecution, and as already stated, held all the accused persons guilty on all counts. The learned Judges of the Division Bench of the High Court did not believe the allegations of the prosecution as regards motive in respect of the accused except Shahadat Ali, Hakim Ali and Imanat Ali. Therefore, there remains no evidence of motive against the convict petitioners before us. As regards the ocular testimony, the learned Judges accepted the same to be trustworthy. It may be pointed out that, as already stated, the complainant Muhammad Sharif had disclosed the names of seven accused and on the same day in his further statement, mentioned the names of the remaining six accused. Before the police, the position taken by him was, that he had only identified accused Shahadat Ali out of seven names initially mentioned by him and the names of the rest were mentioned because they were the intimates of the said accused Shahadat Ali. In his subsequent statement, he further stated that his sister P. W. Mst. Hamidan had seen and identified six other culprits including petitioners Nur Muhammad, Ghulam Muhammad, Barkat Masih and Nazir Ahmad. In his evidence at the trial, he, however, implicated all the thirteen accused as having been seen and identified by him on the night of the occurrence. The learned judges of the Division Bench held that the presence of the two eye‑witnesses P. W. Sharif and P. W. Mst. Hamidan had been established on the evidence produced by the prosecution. They attributed the non‑disclosure of the names of the six accused in the F. I. R: to the position in which the com plainant was standing at the time when the accused were leaving the scene of occurrence. It was found by them that some of the culprits could have been seen by P. W. Sharif and some by P. W. Mst. Hamidan. The absence of moonlight or any other artificial light, was also rejected by the learned Judges as no consideration for making the identity of the accused uncertain on the ground that the accused were known to the witnesses and could be identified at close quarters. The learned Judges also accepted the evidence of extra‑judicial confession made by petitioner Nur Muhammad and Shahadat Ali. The evidence of recovery of blood‑stained clothes, the crime weapons and other incriminating objects etc. from the accused persons were held to furnish a strong confirmatory circumstance against the accused. However, the evidence of recovery of the gun from accused Shahadat Ali and a rifle from accused Abdul Latif was kept out of con sideration as the crime empties secured from the scene of occurrence were not promptly despatched for examination by the Forensic Expert. In conclusion, the learned Judges of the High Court held that the guilt of the seven accused whose names were disclosed in the supplementary statement of the complainant was held to have been fully established. However, the learned Judges thought that as a precaution against false implication, they would only convict those from whom incriminating recoveries of crime weapons or blood‑stained clothes or property of the deceased had been effected. Thus, they maintained the conviction of the six accused already mentioned including the four convicts in Petition No. 369/79. The rest of the accused were given the benefit of doubt and were acquitted. In support of the petition filed by the convicts, it was contended by, their learned counsel that there are on the record three different versions; as regards the participants involved in this crime and having regard to the; improvements made by the complainant Muhammad Sharif and the. discrepancies between his evidence and that of his sister P. W. Mst. Hamidan, it would be fair to hold that this is a case of an unwitnessed; crime. It was further submitted that the very first version of the com plainant was that except acquitted accused Shahadat Ali, the complainant had not identified any other culprit, and that the names of the other accused were disclosed to him by P. W. Mst. Hamidan, was sufficient to discard his testimony as unworthy of credit. Learned counsel also laid great emphasis on the fact that at the time of occurrence there was no moonlight and consequently the assailants could not possibly be identified by the two alleged eye‑witnesses. The submission was that in any case, the learned Judges did not advert to the most important aspect of this case, namely, that the main occurrence was not seen by any witness. The fact that these petitioners had no motive to commit the crime, was also not properly appreciated. As regards, the extra judicial confession, the submission of the learned counsel was that it had no evidentiary value because it was a joint one and, therefore, furnished no corroboration. The reliance by the learned Judges of the High Court on the evidence of recoveries was also criticised on the ground that the same were only supported by the evidence of police officers since the statement of Muhammad Iqbal P. W. was not accepted by the learned Judges. After hearing the learned counsel, we consider that the submissions made in support of the petition require examination in order to see if the conviction of the petitioners in Petition No. 369/79 is founded on principles of safe dispensation of justice laid down by this Court. We accordingly grant leave to appeal in that case. Learned counsel appearing for the complainant in Petition No. 398/79 contended that the question whether the respondents in the petition were rightly acquitted needs to be re‑examined. He submitted that although the learned Judges of the High Court believed the evidence of motive 6 against Imanat Ali and his brothers, this piece of evidence was not taken into consideration as corroborative evidence in regard to them. As regards, the rest of the respondents in this petition, the submission of the counsel was that the assertion of P. W. Muhammad Sharif that he had identified them was not challenged in cross‑examination. The learned counsel appearing for the State submitted that the entire evidence requires to be re‑appraised in the case of the accused persons in both the petitions. After hearing the learned counsel, since we are granting leave to appeal to convict petitioners and on the grounds urged before us, we also grant leave to appeal in Petition No. 398/79. Bailable warrants in the sum of Rs. 10,000 shall issue against the accused persons in this petition with two sureties in the like amount each to the satisfaction of the District Magistrate concerned. S. Q. Leave granted