1992 PLP 2276 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Shahadat, Khizar Hayat, Buta, Amanat alias Buta, Sufera alias Suffa, Liaqat son of Fatta, Shera, Siddique and Liaqat son of Bahawal have called in question the judgment, dated 30‑1‑1988 passed by the Lahore High Court, whereby their appeal against their conviction and sentences under various sections of the law passed by the Additional Sessions Judge, Sheikhupura vide his order, dated 14‑3‑1984, was dismissed. The leave granting order is as follows: "After considering the arguments advanced by the learned counsel for the petitioners, we think that since in this case a large number of persons have been involved, the entire evidence requires reappraisal. We, therefore, grant leave in the matter:" The background of the tragedy leading to 4 murders and injuries to Muhammad Zubair P.W.3, Liaqat P.W.4 and Mst. Nawab Bibi P.W.5 is that a little before the sunset the deceased and the injured P.Ws. alongwith four other womenfolk of the family were sitting in the compound of their house when 13 accused including the 9 appellants armed with Kassis, hatchets, guns and pistols came there alongwith the 4 female accused who were empty‑handed. The female accused shouted that Mokha etc. should not bb spared alive whereupon the male accused attacked the complainant party with their respective weapons resulting in the murder of Mokha, his two sons Hidayat and Riasat, and his brother Sarang and injuries to the P.Ws. mentioned above. P.W.3 Muhammad Zubair went to the Police Station Mangtawala, 10 miles from the spot, and lodged the report before Muhammad Aslam A.S.I. P.W.11 who recorded the same vide F.I.R. Exh.PG the same evening at 11‑30 p.m. Necessary investigation in the case was carried out by the police. The male accused were produced before the police on 30‑9‑1981 who were arrested by Khurshid Anwar S.I. P.W.6 while four female accused were arrested by him on 12‑10‑1981. On 11‑10‑1981 Sahib Din, Shahadat, Khizar Hayat, Shera, Liaqat' son of Fatta and Bhai Khan accused produced before him, blood‑stained Kassi Exh.P37, hatchets Exhs. P38 to P41 and Kassi Exh.P42 which recoveries were believed by the Sessions Judge but kept out of consideration by the High Court. On 12‑10‑1981 Boota, Sufcra, Mian Khan, Amanat, Jafar, Siddique and Liaquat son of Bahawal produced before the same 1.0. gun Exh.P43, gun Exh.P44, gun Exh.P45, pistol Exh. P46, pistol Exh.P47, gun Exh.P48 and gun Exh.P49 but these recoveries were not believed even by the Additional Sessions Judge. After the completion of the investigation all the 17 accused were put on trial before the learned Additional Sessions Judge, Sheikhupura. They were charge‑sheeted, evidence of the prosecution was recorded, the accused were examined under section 342, Cr.P.C. and on the appraisal of the evidence, the learned trial Judge acquitted Jafar, Mst , Balochan, Mst. Began, Mst. Khatoon widow of Fatta and Mst. Khatoon wife of Younis extending them the benefit of doubt while convicted Sahib Din, Mian Khan and Bhai Khan under section 302/149, P.P.C. and sentenced each one of them to death and fine of Rs.10,000 each or in default 2 years' R.I. each. Their appeal before the High Court was dismissed and their death sentence confirmed but since their death sentence stood commuted to life imprisonment on account of general amnesty awarded by the President of Pakistan they withdrew from their petition for leave to appeal No.74/88 with permission to re‑agitate the same in case their death sentences were sought to be executed somehow or the other. The remaining 9 accused/appellants herein were sentenced under section 302/149, P.P.C. and sentenced to imprisonment for life each and fine of Rs.5,000 or in default one year R.I. each. They were also convicted under section 436/149, P.P.C. and sentenced to 2.years' R.I. each. Additionally, Iccused Liaqat son of Fatta was convicted under section 323, P.P.C. and sentenced to 6 months' R.I. and fine of Rs.1,000 or in default 2 months R.I. while Shahadat was convicted under section 326, P.P.C. and sentenced to 2 years' R.I. and fine of Rs.2,000 or in default 6 months R.I. They too filed appeal before the High Court but with no success. Hence the instant appeal through leave of the Court. We have heard Sh. Zia Ullah, Advocate, for the appellants; Raja Abdul Ghafoor, Advocate, for the State, and have perused the record of the case with their assistance. Undeniably it is a gruesome occurrence in which ‑four persons, namely, Mokha, his 2 sons Hidayat, Riasat and his brother Sarang were done to death. Liaqat P.W.4 and Mst. Nawab Bibi P.W.5 received injuries during this transaction. The report of the occurrence was promptly lodged by Muhammad Zubair P.W.3 in which all the accused were directly charged and the roles played by each one of them, as far as possible, were narrated therein. The occurrence took place inside the, house of the complainant just before the sunset where the presence of the maker of the F.I.R. and two injured P.Ws. was natural. Liaqat P.W.4 and Mst. Nawab Bibi P.W.5 whose presence at the time of occurrence is established beyond doubt from the injuries sustained by them support the prosecution case in toto in their statements before the trial Court. They were cross‑examined at length but nothing material in favour of the defence could be elicited from them. It was day time and the accused party admittedly resided in the ncighbourhood of the complainant, as such there could be no mistaken identity on the part of the witnesses, particularly when they remained at the scene of occurrence for sufficiently long time in achieving their design to do as much harm to the complainant party as they could, so much so that they put the house of the complainant on fire. The mere fact that 5 of the assailants were acquitted by the trial Court cannot benefit the appellants as four of them (female accused) were empty handed while the case of Jafar was found distinguishable from that of his co‑accused by the trial Court for substantial reasons. It is by now well established that in a situation, like the one in hand, the Courts have the power to extend the benefit of doubt to some of the accused as a matter of abundant caution without affecting the case of their co‑accused. Sahib Din, Mian Khan and Bhai Khan, the principal accused in this case who were awarded death sentence, have withdrawn from their petition for leave to appeal and the presumption can safely be drawn that they have accepted the prosecution version so far as their involvement in the tragedy is concerned. There is strong motive for the occurrence inasmuch as Fatta, father of Liaqat, Shera and Amanat appellants, and Mian Khan and Bhai Khan who were awarded death sentence, was murdered for which Mokha, Hidayat and Sarang deceased alongwith Muhammad Zubair complainant, Mehram, Mohabata and Dosa were charged and tried but acquitted. No doubt, the matter was patched up but the complainant party did not abide by the terms of the compromise whereby they had promised the hand of a girl in marriage in the family of the accused party which was the immediate cause of the instant occurrence. There might be certain discrepancies in the statements of the, prosecution witnesses but as rightly stated by Mst. Nawab Bibi P.W.5 "mere ghar per kiamat a gayee" they could not be expected to notice and remember the minute details of the occurrence and describe them with exactitude while deposing in Court. The learned trial Court as well as the appellate Court on the appraisal of the evidence and material produced before them came to the conclusion that the appellants and their co‑accused were responsible for the murder of the four deceased and causing injuries to Liaqat P.W.4 and Mst. Nawab Bibi P.W.5 and putting their house on fire. Their decisions on the questions of facts are not open to challenge in this Court in the absence of any illegality, misreading or non‑reading of evidence. There being no legal infirmity in the judgment of the High Court, the instant appeal is dismissed. N.H.Q./S‑700/S Appeal dismissed.