P L D 2001 Peshawar 1 (PLP)

SARDAR MUHAMMAD RAZA, C.J.

Mutabar Khan son of Janpur resident of village Tordher, Tehsil Lahor, District Swabi, h1s filed this appeal against the judgment dated 6-10-1998 of Mr. Hussain Bahadur Khan learned Additional Sessions Judge/Special Judge, Lahore District Swabi, whereby the appellant was convicted and sentenced as follows:-- (a) Under sections 302/34, P.P.C. sentenced to death on five counts for the murders of Khanzada, Mst. Tajbaro, Sherzada, Mst. Mashoqa and Mst. Mujahida. (b) Under section 364, P.P.C. for abducting, through deceitful means, the deceased Khanzada, sentenced to seven years' rigorous imprisonment and a fine of Rs.10,000. (c) Under section 201, P.P.C. sentenced to rigorous imprisonment for five years. (d) Under section 449, P.P.C. sentenced to seven years' R.I. with a fine of Rs.10,000. (e) Under section 324, P.P.C. for effectively attempting at the life of Mst. Shahzadgai, sentenced to ten years' R.I. with a fine of Rs.20,000. (f) Under section 335/336, P.P.C. for causing injuries to her, sentenced, to seven years' R.I. and payment of 1/10th of 'Diyat' as ' Arsh'. (g) Under section 337-A(iii), P.P.C. for causing injuries to the complainant, sentences to imprisonment for seven years and 1 / 10th of 'Diyat' as 'Arsh'. (h) Under section 382, P.P.C. for committing robbery sentenced to seven years' R.I. with a fine of Rs.10,000. (i) Under section 411, P.P.C., sentenced to three years' R.I. with a fine of Rs.5,

000. Various sentences were also announced in default of payment of fine and all the sentences of imprisonment were directed to run concurrently. The benefit under section 382-B, Cr.P.C. was also granted.

2. On 13-4-1996 at 8-10 hours Mst. Shahzadgai wife of deceased Khanzada while in injured condition but in full senses, lodged a report in the Casualty Ward of District Headquarter Hospital, Swabi before Purdil Khan, Sub-Inspector Swabi, that she along with her husband Khanzada, her daughters Mst. Mashoqa, Mst. Tajbaro, Mst. Mujahida and her soil Sherzada were present in their house at Tordher, a day before such report. That oft 12-4-1996, in the afternoon Mutabar appellant and his companion Gul Taza of S,., at, presently residents of Tordher, visited their house. They took their dinner in the house of the complainant and thereafter at 22-00 hours asked Khanzada to accompany them in order to bring hay. Khanzada accompanied them. They all had not returned for quite a long time when at 3'0 Clock in the morning Mst. Shahzadgai got up to milk the buffaloes. In the meanwhile Mutabar appellant and his companion Gul Taza while armed with hatchets entered the house. Seeing the complainant they opened a desperate attack with hatchets on the complainant and also on her children Mst. Mashoqa, Mst. Tajbaro, Mst. Mujahida and Sherzada. All the children died on the spot. Except Mss. Mashoqa, the others were minors. The complainant out of fear took shelter in a 'Kotha'. Making sure that every one had been killed, Mutabar appellant and Gul Taza left the house taking away certain household articles, some amount of money and two buffaloes. The complainant-lady charged them for the commission of murder of her four children, for effectively attempting at her life, for abducting Khanzada and for taking away the aforesaid belongings. Motive for the occurrence is disclosed to the effect that Mutabar appellant wanted the hand of Mst. Mashoqa in marriage with him which was refused by the complainant family.

3. On the basis of aforesaid Murasila Exh.PA/1 F.I.R. No.206 was registered at Police Station Lahore against the accused under sections 302/ 324/365/449/34, P.P.C. The injury sheet and the inquest reports of the injured as well as of the deceased were prepared by the Investigating Officer and the dead bodies were despatched for the post-mortem examination. The site-plan Exh.PB was prepared on 13-4-1996.

4. The appellant Mutabar, after two days of occurrence, was arrested on 15-4-1996. During police custody and remand, he confessed his guilt whereupon he was produced before the Magistrate Mr. Qamar Sohail Lodhi, Civil Judge/Judicial Magistrate Ist Class Lahore has recorded his confessional statement oil 18-4-1996.

5. Being an important document the gist of confessional statement Exh.PW 10/2 requires to be alluded to. He said that he alongwith his father, sometime back resided in the neighbourhood of Khanzada. His father did not like his visits to the house of Khanzada. Later on, Khanzada changed his residence but kept on patronizing Mutabar accused and compromised that tie would give his daughter Mst. Mashoqa in marriage to the appellant but on Dayment of Rs.30,

000. He further admitted having developed some affinity with Mst. Mashoqa. The appellant persuaded his father through the mother and the former took 'Jirgas' to the house of Khanzada for asking the hand of Mst. Mashoqa. The proposing family had agreed to pay Rs.35,000 instead of Rs.30,000 but Khanzada refused because lie had already decided to give his daughter to someone in Attock against 88.80,

000. Khanzada and his wife offered him to live as 'Ghar Damad' which the appellant refused.

6. On the day of occurrence, his cousin Dilawar asked Mutabar to go to the house of Khanzada alongwith Gut Taza, where they would be stealing hay. Appellant and Gut Taza went to the house of Khanzada where they look meals and wherefrom Mutabar, Gut Taza and Khanzada set out to steal hay. When they filled a bag of hay, it was given to Khanzada whereafter Dilawar and Gut Taza attacked Khanzada with hatchets, killed him and threw the dead body in the nearby well. Apprehending that having been last seen with the deceased, it would lead them to the gallows, they decided to kill every body and so they did. They took the buffalos and decided to go to Mardan to the house of a maternal aunt of Gut Taza and ultimately Mutabar appellant was apprehended alongwith buffaloes.

7. In cases like one in hand, of mass massacre there seldom remain any traces of the culprits on the spot but as the Nature was determined that the blood of five innocent persons shall not go unaccounted for, it miraculously kept Mst. Shahzadgai alive though the assailants had left satisfied that every thing had been accomplished to their satisfaction and all possible evidence either ocular or circumstantial had been destroyed. .

8. The most important, worthy of credence, obvious and natural witness to the occurrence is one and the only Mst. Shahzadgai. Who else, in the late hours of the night and in the very house of Mst. Shehzadgai could have been the witness to this tragedy that occurred in front of her own eyes. Apart from being a natural one she is also an injured witness. The medical report indicates that she was severely injured.

9. Learned counsel for the appellant attempted to derive premium from the injuries of Mst. Shahzadgai and argued that how a lady so seriously injured, could have remained conscious to witness the murder of her remaining four children. We do not agree to this outlook and do believe that she might have sustained such injuries in her physical effort to save her children. In her statement in Court, nothing could be brought in the cross examination shattering her veracity the least. At one time, she no doubt, said that she became unconscious but this was certainly at the end of the affair when she must have been exhausted due to bleeding and physical encounter. This does not mean that she despite being injured was not a witness to the murder of her four children. We are further of the view that she being eldest and being awake at the relevant time, must have been attacked at the first instance. We also believe that even if she had fallen unconscious after the first attack of the assailants and had come to subsequently to find her four children lying brutally murdered, she would still have been the only and the best truthful and natural witness to the occurrence. The assailants had been in -her house for the last about 18 to 20 hours. They were known to the family and thus there could be no doubt about the identity. Moreover, when a lady awakes to milk the buffaloes, she is bound to make light arrangement wherein she could well identify. Mst. Shahzadgai is such a strong evidence in the instant case, that even her singular testimony would have led to the safe conviction of the appellant.

10. Her truthfulness and the natural sequential flow of events -is so evident that one can altogether exclude the possibility of concoctions, padding and deliberations. It is apparent from the very F.I.R. Despite such murderous assault on herself and despite the brutal murder of her four children, Mst. Shahzadgai did not charge the assailants for the murder of her husband because she was not aware of it. She was aware only of the fact that her husband had beep taken away by the two culprits and so in her F.I.R., she charged them for abduction. Had there been any concoctions, deliberations and delay in lodging the F.I.R., the lady could have had charged them for the murder of her husband as well. We hold that in the instant case, the ocular testimony qua the murder of four children is so strong that the conviction could singularly be based on it.

11. After discussing the evidentiary value of Mst. Shahzadgai as the eye-witness, we turn to other circumstances of the case. Motive among them is the second strong event. This is disclosed by Mst. Shahzadgai at the very first instance. It is very natural that Mutabar Khan appellant wanted the hand of Mst. Mashoqa in marriage. The same is strongly corroborated by his own confessional statement who gave further details of events that led to the creation of bad blood between the families. This motive is directly attributable to the appellant Mutabar Khan. Though the ocular testimony does not require any corroboration yet it is corroborated by the motive which is not only admitted but further explained by the present appellant Mutabar Khan.

12. The next and -still more strong, unshattered and absolute circumstantial evidence is the discovery of dead body of Khanzada on the pointation of Mutabar Khan appellant who after his arrest and while in police custody, led the police to the well where the dead body was thrown by both the accused. Pointation and recovery memos. to that effect are Exh.PB/V and Exh.PW4Tl. This has been a discovery in the true sense of the term because neither Mst. Shahzadgai nor the police had any idea of what had happened to. Khanzada, the husband of the complainant. This discovery not only proves the ocular testimony but also reinforces the confessional statement because in furtherance of the confession the accused led to a horrifying discovery.

13. The confessional statement Exh.PW10/2 recorded on 18-4-1996 is another circumstantial evidence that corroborates and is corroborated by all other circumstances. The occurrence having taken place on 13-4-1996, Mutabar Khan appellant was arrested on 15-4-1996. This is always in support of the confession made before the police. A perusal of the statement, gist reproduced in the earlier part of the judgment, would indicate that it rings extremely true. That a retracted confession, even as a solitary evidence can be made the basis of conviction Provided it is supported by other) circumstances and thus rings true.

14. After having taken away the belongings of the complainant and the buffaloes, the two assailants started for Mardan, where in village Yar Hussain, a maternal aunt of one of them had lived. Mutabar Khan appellant, in village Yar Hussain was caught red-handed alongwith buffaloes, ornaments and a cash amount of rupees twenty thousand, which stood recovered through Exh.PC/3. The interesting part of the recovery is, that it is admitted by Mutabar appellant in his statement under section 342, Cr.P.C., but giving an explanation that does not tit in the story and the circumstances. The recovery of the aforesaid articles from the appellant, would have been a strong evidence even if not admitted, though it is.

15. It is a blessing that the complainant family had remained with the assailants for the whole of the night involved and almost the whole of the preceding day. The last dinner was also taken by them together. In this background, the appellant could not deny so many things. We have already mentioned that the recovery of three main articles including buffaloes, is admitted by the accused in his statement under section 342, Cr.P.C. His explanation thereabout is quite lame when he says that he was hired by Dilawar and Gui Taza to take the buffaloes. This has not gone beyond mere statement. In his statement under section 342, Cr.P.C. Mutabar appellant has categorically admitted his presence with Khanzada in connection with the event of stealing the hay. After all, what else could-have been a proof better

16. The case of the prosecution is completely proved up to the hilt against the assailants. The fact that Gul Taza accused is still absconding for the last more than four years, is another circumstance that proves the prosecution story. The ocular testimony duly supported by overwhelming and unescapable circumstantial evidence is more than enough to prove the guilt of the convict-appellant. He has rightly been convicted and sentenced for all the offences that he was charged with. The convictions recorded and the sentences imposed and on all counts; under sections 302/324/201/364/ 449/335/336/337-A(iii)/382 and 411 of the P.P.C., being perfectly correct and well-reasoned, are hereby upheld and the appeal of Mutabar Khan son of Janpur is hereby dismissed. All the five murder references are hereby NHQ./171/P Appeal dismissed.