P L D 1968 Lahore 853 (PLP)

BASHIRUDDIN AHMED, J.‑

Usman (24) and Iftikhar (21) Muslim Shaikhs of Basharat along with Sarwar Bhatti (24) of Lahri Hajial, were tried for offences under sections 302/34 (on three counts), 394/397 and 460, P. P. C. by the learned Additional Sessions Judge, Jhelum, who convicted and sentenced them as below:-- Usman and Iftikhar appellants to transportation for life on each count under sections 302/34, P. P. C. for the murders of Mst. Sattar Bi, Mst. Allah Jawai and Arshad Mahmood. Sarwar to suffer death on each count under sections 302/34, P. P. C. All of them were also held guilty under section 460, P. P. C. and were awarded life imprisonment. All of them to undergo rigorous imprisonment for period of seven years each under section 397, P. P. C. The sentences of imprisonment in the case of Sarwar were to take effect in the event of the death sentence not being con firmed by this Court. Sarwar, the condemned person, appealed through jail. Usman and Iftikhar filed regular appeal jointly questioning the correctness of their convictions and the sentences. The learned Additional Sessions Judge referred the case under section 374, Cr. P. C. to this Court for confirma tion of the death sentence awarded to Sarwar. We propose to dispose of the appeals and the reference by a single judgment.

2. Briefly narrated the prosecution story is that on the night intervening the 15th and 16th of January 1965 the appellants committed house trespass by breaking open the house of Muhammad Rafiq in village Basharat having made preparation to cause death. They ransacked the house, and in order to facilitate the commission of the offence of robbery, killed Mst. Allah Jawai, Mst. Sattar Bi and Arshad Mahmood. They took away a large number of clothes and ornaments which they subsequently disposed of to different persons at various places. The crime com mitted came to light when on the following day at about Rotiwela Mst. Surraiya Begum, the married daughter of Muhammad Rafiq, visited the house of her parents and found the door of the house chained from outside. She opened the door and on entering the house found Mst. Sattar Bi, her mother Mst. Allah Jawai, her grandmother and Arshad Mahmood, her nephew lying murdered. Arshad Mahmood was lying dead in the kitchen with his throat cut. Mst. Sattar Bi and Mst. Allah Jawai were lying dead in the main room of the house. Mst. Surrarya Begum found the wooden. boxes broken and their contents lying scattered in the room. She raised an alarm which attracted a number of persons to the spot. She sent for her husband, who lived with her in a house on the outskirt of village Basharat and taking him along with her she proceeded to Choa Saidan Shah, Police Station, at a distance of 11 miles from the scene of the crime, and reaching there at 1‑30 p.m. lodged the report Exh. P. ZZ.

3. After scribing the report Sub‑Inspector Ghulam Raza P. W. 21 proceeded to the spot and reached there at 5 p.m. He prepared the injury sheets and the inquest reports relating to the deceased persons and then despatched the dead bodies to the mortuary for post‑mortem examination. Gen. Muhammad Khan P. W. 18 and Muhammad Rafiq P. W. 19 were associated in the investigation. On the 17th of January 1965 the Sub‑Inspector took into possession blood‑stained quilt P. 20 from over the cot lying in the kitchen on which the dead body of Arshad Mahmood lay. The quilt was sealed into a parcel. He also took into possession blood‑stained earth from different places where the dead bodies of Mst. Sattar Bi and Mst. Allah Jawai lay and sealed it into parcels separately. The broken locks P. 25, P. 27, P. 28 and P. 29 were also taken into possession by the police. The saw P. 31, a piece of wood P. 32, three wooden pieces (P. 33 to P. 35) of box, a handful of saw‑dust P. 36, two screws P. 37/1‑2, a small wooden piece P. 38 and the lid P. 39 of a wooden‑box with stains of blood over it were also taken into possession by the police from the main room of the house.

4. On March 3, 1965, at about noontime, the appellants went to Mirza Khan P. W. 17 of Triman Sharif at his house and Sarwar confessed to him the crime in the presence of Niaz Ali. On enquiry from Iftikhar and Usman appellants by Mirza Khan, they confirmed that whatever Sarwar stated to him was correct. The appellants requested Mirza Khan to produce them before the police. Accordingly Mirza Khan took the appellants to village Basharat and produced them before Ali Asghar Shah, Sub‑Inspector, P. W. 23, who arrested them on the 3rd of March 1965. On the search of the person of Sarwar appellant, he found a key P. 60 which was taken into possession by the police. Iftikhar appellant was wearing gold ring P. 45 and a pair of shoes P. 61 which were taken into possession by the police vide memo. P. Al. The Sub‑Inspector also took into possession shoes P. 59 worn by Usman appellant vide memo. P. A. G. Usman took the police to village Taniala and from a place near the pond he dug out Dopatta P. 62, the piece of Satan P. 63, towels P. 64 and P. 65, a small aluminium box P. 66 on which the name of Muhammad Rafiq P. W. was engraved and a small tin‑box P.

67. He also dug out blood‑stained knife P.

68. These articles were taken into possession by the police and sealed into a parcel.

5. On the 4th of March 1965, Iftikhar appellant took the police to the shop of Siraj Din, Goldsmith at Chakwal and on his pointing out Siraj Din produced a pair of silver Pazeb Exhs. P. 2 and P. 3 and three silver Karas Exhs. P. 4 to P. 6 which were taken into possession by the police. Siraj Din also produced the sale and purchase register Exh. P. J. which showed that these ornaments were sold by Usman under the assumed name of ‑\bid Hussain. Iftikhar appellant had given out his name as Mushtaq Ahmad and had signed the entry. On the same day Usman led the police to Nishat Hotel, Chakwal, and on his pointing out Manzoor Hussain, Proprietor of the Hotel produced register Exh. P. G. containing the entry dated 22‑1‑1965 showing that Usman and Iftikhar had stayed for the night of 19‑1‑65 and 22‑1‑1965 at the said hotel and against the entry dated 22‑1‑1965 Iftikhar appellant had signed as Mushtaq Ahmad.

6. On the 10th of March 1965, Usman appellant took the police to Muhammad Fazil, Goldsmith of Jhelum, who produced 16 sliver bangles Exhe. P. 14/1‑16 and the note‑book Exh. P. X showing the entry about the transaction. Usman appellant has signed as Abid Hussain on Exh. P. X/1 while Iftikhar appellant had signed as Gulzar Hussain. On the same day Iftikhar appellant took the police to Nazir Ahmad, Goldsmith of Jhelum, who produced 3 silver Kangans Exh. P. 16/1‑3, 24 silver bangles Exhs. P. 15/1‑24 and 2 silver medals Exh. P. 17/1‑2 as also the account book Exh. P. AA showing the transaction of sale by Iftikhar appellant vide entry Exh. P. AA/1. The above‑mentioned articles and the account book were taken into possession by the police ride memo. P. Z.

7. On the 11th of March 1965 Iftikhar appellant led to the recovery of gold Kaintha containing 32 beads, 2 nullis and and one Nama for Manzoor Hussain, Goldsmith, who also produced the register Exh. P. TT evidencing the tran saction vide entry Exh. P. TT/1. Iftikhar signed the receipt Exh. P. TT/1 as Mushtaq Ahmad while Usman had thumb‑marked the said receipt. The articles and the register were taken into possession by the police. On the same day Usman appellant took the police to Kafe Arab Hotel, Gujrat, from where the register Exh. P. A. bearing the signatures of Mushtaq Ahmad were taken into possession by the police. The investigating Head‑constable also took into possession the attendance register Exh. P. AS of Rakh Dharinghen Colliery which contained the entry Exh. P. AS/1 showing that Sarwar appellant who worked as labourer at the Colliery had absented himself from 15‑1‑1965 onwards.

8. On the 14th of March 1965 Usman appellant took Sub‑Inspector Ali Asghar Shah P. W. 23 to his house and from an earthen‑bin lying in a room of his house, produced his blood‑stained shirt P. 69 and Pajama P. 70 which were taken into possession and were sealed into a parcel. At the instance of Usman his mother Mst. Suban produced a stitched suit P. 52 and Nylon suit P. 53 which were also taken into possession by the police.

9. Sarwar appellant took the police to his house in village Lahri Hajial. The key which Sarwar had earlier produced before Sub‑Inspector Ali Asghar Shah was handed over by him to A. S. I. Qutab‑ud‑Din P. W.

22. When the police party reached the house of Sarwar he asked for the key and opened the lock of the box with the help of the key P. 60 and took out from the box a pair of gold ear‑rings P. 19, amulet P. 1 with the name of Arshad Mahmood cut on it and 2 ladies suits P. 47 and P. 48 which were taken into possession along with the lock P. 72 of the box vide memo. P. AL/1 by the police. Sarwar appellant also produced blood‑stained shirt P. 74 and pant P. 73 from underneath the quilt which were taken into possession and were sealed into a parcel by the police. Sarwar appellant then brought out blood‑stained Chhuri P. 75 from under a heap of firewood which was taken into possession and was sealed into a parcel by the police. Iftikhar appellant led the police to his house and dug out the knife P. 58 which was taken into possession by the police.

10. On the 16th of March 1965 Usman appellant took the police to the shop of Muhammad Ilyas, Goldsmith of Rawalpindi, who produced golden Phool P. 43/ 1‑2 weighing 1 Tola 11 Mashas and 4 Rattis. He also produced the register evidencing the transaction to the police. Iftikhar appellant who had also accom panied Usman to the shop of Muhammad Ilyas, Goldsmith, had purchased a golden ring P. 45 for Rs. 47.50 vide receipt Exh. P. XX/1 and it was also taken into possession by the police. On the same day Iftikhar appellant led the police to the shop of Abaid‑ur‑Rehman, Goldsmith of Rawalpindi, and on his pointing out Abaid‑ur‑Rehman produced two pairs of gold ear‑rings P. 44 and P. 46 which were taken into possession by the police. Abaid‑ur‑Rehman also produced sale and purchase book Exh P. UU showing the said transaction entered into by Iftikhar and Usman appellants under the assumed name of Mushtaq and Abid, to the police which were also taken into possession. The police also took into possession the visitors registers of various hotels in which the appellants had stayed after the commission of the crime and before their arrest by the police.

11. The autopsy on the dead bodies of Mst. Allah Jawai, Arshad Mahmood and Mst. Sattar Bi was held by Dr. Mukhtar Hussain Shah P. W. I on the 17th of January 1965, at 10 a.m., 11 a.m. and 12 noon respectively. Mst. Allah Jawai had: (1) An incised wound in front and extending to both sides of neck transverse in direction, size 5" x 3" x cutting joint between 5th and 6th, cervical vertebra including spinal cord. (2) An incised wound, 2" x " x skin cutting transverse in direction on left side of neck half inch above injury No. 1. (3) An incised wound, 2" x " x skin cutting, transverse in direction situated on left side of neck " below injury No. 1. (4) An incised wound in front of left shoulder 2" x 2 with skin chopped off. (5) A punctured wound oblique in direction on left side of chest at level of anterior axillary line 2" x " x going deep in pleura. (6) A punctured wound transverse in direction 1 " x " in midline, 3" umbilicus. (7) An incised wound, 2 " x " x " longitudinal in direction, in the right upper arm in its upper‑most part on inner aspect. (8) An incised wound in front of right shoulder longitudinal in direction " x " x ". (9) An incised wound in lower one‑third of left forearm on its lateral aspect 1" x " x skin cutting. (10) An incised wound on left side of head, 2 " vertically above the left ear oblique in direction 1" x " bone cutting. Death, in the opinion of the doctor, was due to shock and haemorrhage on account of injuries Nos. 1, 10, 5 and 6 which were sufficient to cause death in the ordinary course of nature. All injuries were inflicted by sharp weapon. Arshad Mahmood deceased had: (1) An incised wound in front of neck, transverse in direction 3" x 1" x cutting deep to the joint in cervical vertebra and cutting spinal cord also. (2) An incised wound in front of abdomen at the level of umbilicus, transverse in direction, 6" x 2" x intestines protruding out of the wound. In the opinion of the doctor, death occurred due to injuries Nos. 1 and 2 which resulted in shock and haemorrhage. Both the injuries were inflicted by sharp weapon. Mst. Sattar Bi deceased had: (1) An incised wound in front of neck transverse in direction, 3" x 2" x bone deep cutting carotid vessels on both sides along with oesophagus and larynx. (2) An incised wound on left side of neck half inch above injury No. 1, transverse in direction, 1 " x 1" x skin cutting. (3) An incised wound transverse in direction on right side of neck " above injury No. 1, 2" x " x skin cutting. (4) An incised wound on left shoulder on its outer aspect longitudinal in direction, 2" x " x bone deep, joint was open. (5) An incised wound on right breast transverse in direction, 1" x "x ". (6) An incised wound on right chest in front, 3" below nipple of breast, oblique in direction. " x " x going deep into the abdomen. (7) A contusion on the middle of front of right arm oblique in direction, 1 " x 1" (8) An incised wound on middle of back of right forearm within an area of 1 " x 1" skin chopped off. (9) An incised wound on back of right forearm 2" below injury No. 8 within an area of 1 " x " x skin clopped off: (10) Two incised wounds, transverse in direction, in lower one‑third of right forearm on its back, each of size 1 " x " x skin cutting only. (11) An incised wound on back of ring finger on first phalanx size '' x 1/8" x skin deep, transverse in direction on right side. (12) An incised wound on back of proximal phalanx of middle finger transverse in direction, " x 1/8'' x skin deep on right side. (13) An incised wound on back of middle of index finger transverse in direction, " x 1/8" x skin deep on right side. According to the doctor, death was caused due to shock and haemorrhage as a result of injuries Nos. 1 and 5 which were sufficient in the ordinary course of nature to cause death. All the injuries were caused by sharp weapon except injury No. 7 which was caused by blunt weapon.

12. The appellants, when examined in the committing Court, denied the prosecution allegations against them. They also denied to have made extra judicial confessions to Mirza Khan P. W. and Niaz Ali. Usman and Iftikhar retracted from the judicial confessions and maintained that they simply repeated what they were told by the police out of fear of physical mal treatment. They explained that the police obtained their signatures on the receipts relating to ale of ornaments and against entries in the registers regarding their stay in different hotels in the course of the investigation. They denied that they led to recoveries of incriminating articles and did not claim the stolen property. They explained that the deceased were done to death by their enemies and that the appellants mere involved in the case due to enmity and on suspicion. After the learned Sessions Judge had re corded the statements of the four of the prosecution witnesses, the learned counsel for the accused stated that the appellants wanted to make confessional statements. The proceedings were adjourned to next day. The statements of Usman and Iftikhar were recorded separately. Usman and Iftikhar admitted the prosecution story as true. They stated that they went to the house of Mst. Allah Jawai deceased after sunset and committed lurking house trespass by night and during that act Mst. Allah Jawai, Mst. Sattar Bi and Arshad Mahmood were murdered by them. Usman are Iftikhar said further in their statements that the property, which, had been stolen, belonged to Muhammad Rafiq P. W., which was disposed of by them and was recovered at their instance and that they made judicial confessions before Messrs Sh. Zamir Ali and Khan Taj Muhammad Khan, Magis trates 1st Class. When examined on the close of the prosecution evidence at the trial, Usman and Iftikhar both replied in the affirmative to each and every question put to them. Sarwar, however, pleaded not guilty to the charge and denied the prose cution allegations against him. He disowned the extra judicial confession alleged to have been made by him before Mirza Khan P. W. and Niaz Ali. He denied that he was concerned in the disposal of stolen property. He also denied the recovery of incriminating articles from his possession. He asserted that he was innocent and submitted that he had been implicated in the case on account of suspicion. No evidence was called in defence.

13. There is, in our opinion, overwhelming evidence on the record against Usman and Iftikhar appellants. The extra judicial confession was made by Sarwar in their presence and when Mirza Khan questioned them as regards the truth of the version narrated to him by Sarwar, they confirmed it. It was at the instance of the appellants that Mirza Khan deposed that he had close association with them especially with the father of Sarwar. Usman and Iftikhar admitted in their statements on the close of the prosecution evidence at the trial that such a confessional statement was made by Sarwar to Mirza Khan and Niaz Ali in their presence though Sarwar denied having made any such admission.

14. The confessional statement of Iftikhar appellant was recorded by Sh. Zamir Ali Magistrate P. W. 6 on March 18, 1965, which is a detailed document. The Magistrate deposed that Iftikhar appeared to be calm and well composed while making the confession. Except for the admission on the part of the witness that the prosecuting Sub‑Inspector or the Naib Court might have been coming in or going out of the Court room when the confession was being recorded, there is no other material in the record to show that the confession was not voluntary. Simi larly, there is nothing in the statement of Mr. Taj Muhammad Khan Magistrate P. W. 5 who recorded the confession of Usman to show that the confessional statement was the result of use of third degree method by the police. Usman appeared to be perplexed and worried while his statement was recorded by the Magistrate. Mr. Taj Muhammad Khan categorically stated that when he recorded the confession of Usman he never gave him the impression that he was repeating whatever was tutored to him. Both the Magistrates amply complied with the man datory provisions of law before they proceeded to record the statements of Iftikhar and Usman under section 164, Cr. P. C. No criticism was made of this piece of the evidence by the learned counsel for the appellants. Assuming for the sake of argument that the confessions were retracted, still there is ample material on the record to corroborate them. The recoveries of incrimi nating articles and the stolen property at the instance of Iftikhar and Usman which they admitted, afford valuable corroboration of the judicial confessions apart from the admission of guilt which they made before the learned Judge who tried them. They did not claim the property particularly, the jewellery recovered at their instance which included the medals Exh. P.17/1‑2 awarded to Sher Baz, father of Muhammad Rafiq P. W. 19 at the time of the coronation of King George. We are not prepared to believe that fake recoveries were shown and documents fabri cated by the police with the collaboration of a large number of witnesses, particularly the goldsmiths, in order to procure con viction of Usman and Iftikhar on a capital charge. There is thus overwhelming evidence, in our opinion, against Usman and Iftikhar appellants regarding their complicity in the crime com mitted. They appear to have been rightly convicted. In view of the gravity of the crime committed, notice was issued to them suo Motu by the Division Bench to show cause why the sentence imposed on them be not enhanced. Learned counsel, who represented them after service of the show‑cause notice, submitted that they acted under the sinister influence of Sarwar and as such the lesser sentence imposed upon them by the trial Court was justified. We do not agree. It is a case of triple murder and one of the victims who was mercilessly done to death, was a four years old boy. The murders were committed in cold‑blood to facilitate the commission of robbery. The reason given by the learned trial Judge for imposition of the lesser sentence on Iftikhar and Usman appellants is not tenable in the eye of law. We, therefore, A enhance the sentence passed on Iftikhar and Usman appellants under section 302/34, P. P. C. from transportation for life to death on three counts and direct that they be hanged by the neck till they be dead. The sentences passed upon them under sections 460 and 397, P. P. C. by the trial Court are maintained.

15. We now proceed to examine the evidence against Sarwar appellant. We find that there is the evidence of extra judicial confession and recoveries of incriminating articles from him which go a long way to prove his participation in the occurrence. The extra judicial confession made by Sarwar appel lant to Mirza Khan was in the following words :‑ "Sarwar accused told me that sometime in the first week of January 1965, Iftikhar and Usman accused came to him at the shrine. After offering Fatiha and taking sweet breads they indulged in loose talk. Sarwar accused told me that he suggested to Usman and Iftikhar accused that people had become rich by loot and plunder and that they should also do something and loot people. Sarwar accused further told me that they hatched a scheme of looting the house of Rafiq P. W. as they thought that only women‑folk resided there, and that there was no fear of any resistence. He further told me that they planned to meet on 15th January 1965, at Keujtanwela at the spot known an Dhangwal. He proceeded to say that at the appointed time they met at Dhangwal and proceeded to Kibra, and waited there till the lights went of They then proceeded towards the house of Rafiq P. W. Sarwar accused told me that he was carrying a Chhuri, while his companions Iftikhar and Usman were armed with knives. Sarwar accused then stated that on reaching the house of Rafiq P. W. Iftikhar accused pushed open the door and when the door opened Mst. Sattar Bi deceased got up, lighted the lamp and enquired from us about our identity. Sarwar accused told me that they asked the lady to be silent. Sarwar accused further proceeded to state that they then took Mst. Sattar Bi deceased to a room where Mst. Allah Jawai deceased was sleep ing and at the request of Mst. Sattar Bibi deceased the door was opened by Mst. Allah Jawai deceased. Sarwar accused then told me that they along with Mst. Sattar Bi deceased entered the room and asked Mst. Allah Jawai deceased to hand over the keys, but she started raising alarm. On this Usman and Iftikhar accused stabbed Mst. Allah Jawai deceased with their knives. Sarwar accused told me that he cut her throat with his Chhuri and then asked Mst. Sattar Bi deceased to give them the keys whereupon she pointed out to them a box lying in that room, but it was found empty. Sarwar accused further told me that they again threatened Mst. Sattar Bi deceased and asked her to hand them over the keys, whereupon Mst. Sattar Bi told them that the keys were lying in the western room and that on searching the keys there they again failed to trace it, and then returned to the room where Mst. Sattar Bi deceased was sitting. Sarwar accused continuing the story told me that on the pointing out of Mst. Sattar Bi, they tried to break open the lock of the box, but failed to do so. Upon this Usman accused brought a saw from the western room and started sawing the wooden‑box. Sarwar accused continued saying that at that juncture Mst. Sattar Bi deceased attempted to run away but Usman and Iftikhar accused attacked her with their knives and he cut her throat with the Chhurri, Sarwar accused continuing said that then they again tried to open the wooden‑box when Arshad Mahmood a child, sleeping in the kitchen started crying: that he was asked by Iftikhar and Usman accused to quiet on the child. Upon which he went to the kitchen, cut the throat of the child and stabbed him in the belly. He told me that he then returned to the room, where Usman and Iftikhar accused were opening the wooden‑box with a saw and found them taking out a small tin‑box and clothes from the wooden‑box. Sarwar accused then told me that they decamped with the property after chaining the door from outside. He finally told me that they distributed the property later."

16. The evidence of this witness was not challenged and what was elicited in cross‑examination, was not helpful to the defence. Mfza Khan is a Bhatti Rajput. So is Sarwar. Mirza Khan claimed to be a close associate of the father of Sarwar. The appellant denied having made any such confession to Mirza Khan. The recoveries from him of incriminating articles afford valuable corroboration of the extra judicial confession. Muhammad Khan Lambardar of village Baaharat appeared in support of the recoveries at the instance of Sarwar appellant, He deposed that on interrogation Sarwar offered to produce the weapon of offence and other incriminating articles including his own blood‑stained clothes. He took the police to his house at Lahri Hajial and in the presence of Muhammad Khan Lambardar P. W.

18. Jem Faiz Ali and Nadir Khan produced the Chhuri P. 75 from under a heap of fuelwood. The Chhuri was stained with blood and was sealed into a parcel by the police. Sarwar also produced blood‑stained trousers P. 73 and shirt I'. 74 before the police which were (taken into possession and sealed into a parcel. Sarwar took out the amulet P. 1 bearing the name of Arshad Mahmood deceased, two ladies suite and a pair of golden Kaiutha which were taken into possession by the police.

17. Both Usman and Iftikhar fully Implicated Sarwar In their confessional statements. They tarred themselves with the same brush‑both in the judicial confessions and their subsequent statements at the trial. They stated, at the trial that they were led astray by Sarwar and it was at his instance that they com mitted lurking house trespass into the house of Muhammad Rafiq P. W. during the night and murdered Mst. Allah Jawai, Mst. Sattar Bi and Arshad Mahmood in order to rob them of the property which they subsequently disposed of and after their arrest they made confessional statements before Messrs Taj Muhammad Khan and Sh. Zamir Ali Magistrate.

18. Fullest corroboration of the confessional statements of Usman and Iftikhar which are admissible against Sarwar as also the admission made by them at the trial which could also be taken into consideration against Sarwar, is forthcoming in this case.

19. The cumulative effect of the evidence on our mind is that Sarwar appellant too is guilty of the charges on which he was tried and convicted. He was the principal actor in the tragic drama and richly deserved the punishment awarded to him including the death sentence on each count under sections 302/34, P. P. C. We confirm the sentence of death awarded to Sarwar on each count under sections 302/34, P. P. C. The sentences awarded to him under sections 460 and 397, P. P. C. are also maintained. The appeals are dismissed. Appeals dismissed. A. E./K.B.A. Order Accordingly.