SHAMMAN Versus STATE

ASLAM RIAZ HUSSAIN, J.-- This judgment shall dispose of Criminal Appeal No.232 of 1980 filed by Shaman and 5 others against their convictions, and Criminal Appeal No.233 of 1980 filed by Muhammad Ali complainant against the acquittal of Waryam a co-accused of the appellants in the former appeal.

Ten persons namely Shaman; Shahdad Ali; Shah Baig; Fazal; Turaij; Waryam; Muhammad Shafi; Noor Sultan; Muhammad Hanif and Sultan Akhtar, were accused of the murder of 5 persons namely, Sikandar, Munir, Haq Nawaz, Mst. Fatima and Mst. Bhagan. Out of the aforementioned accused, 3 namely, Turaij, Shahdad and Sultan Akhtar, were accused of conspiracy (i.e. planning the murder of Haq Nawaz etc.), while the remaining 7 were accused of having actually committed the murders.

The occurrence in this case took place at Peshiwela on 8-6-1975 in Chak No.202/JB, Police Station Bhowana, District Jhang. The F.I.R in the case was lodged by Muhammad Ali PW.1 (complainant) at Police Station Bhowana at 6 p.m. on the same evening. It was recorded by Muhammad Arslah Khan S.H.O. (P.W.33).

3. The version of the incident is that on the day and time of occurrence Muhammad Ali complainant and Sarwar (given up) were returning to their Dharis in the village. When they reached the gate of the Haveli of Khushhal Khan, Noor Sultan, Shaft, Shah Baig, Shamman, Fazil and Hanif accused suddenly came out of their residential Haveli. They were armed with guns. Out of them Shamman, Fazil and Hanif accused entered the Dera, and Shamman accused (appellant) fired at Sikandar deceased who fell down, while Hanif accused (appellant) fired at Munir hitting him below his chest who also fell down. Fazil accused (appellant) went nearer and fired another shot at Munir (deceased). Similarly Shamman fired another shot at Sikandar Hayat (deceased) as he lay fallen. This part of the occurrence was seen amongst others by Muhammad Ali complainant (P.W.1) and Nazir Hayat P.W.3. Munir, Sikandar Hayat died at the spot and the aforementioned 3 accused appellants escaped from over the wall of the Dera. At that time Haq Nawaz (deceased) was going in the Bazar carrying his gun (P.1). He was pursued by Noor Sultan, Shaft and Shah Baig, appellants, Noor Sultan fired a shot from his gun whereby Haq Nawaz was hit and fell down in the bazar. On hearing the report of the shot Mst. Fatima (deceased) and Mst. Nasim (P.W.5) came out of their Haveli while Riaz (P.W.4) saw the occurrence standing in the boundary wall of the Haveli. Thereafter Shafi and Shah Baig appellants fired further shots with their guns hitting Haq Nawaz (deceased) who was already lying injured on the ground. Thereafter Noor Sultan appellant fired a shot at Mst. Fatima (deceased) who also fell down on the ground in the bazar. Shafi and Shah Baig accused fired further shots hitting Mst. Fatima (deceased), as well as Mst. Nasim and Riaz (P.W.4) both of whom were hit and injured. They were also fired at by Noor Sultan accused (appellant). These accused then left the place of occurrence taking away the gun of Haq Nawaz (deceased). Haq Nawaz and Mst. Fatima died at the spot as a result of the injuries sustained by them. The part of the occurrence was witnessed, inter alia, by Riaz (P:W.4) and Mst. Nasim (P.W.5) both of whom sustained injuries during the incident, Soon thereafter Muhammad Ali P.W.1 and Sarwar saw Noor Sultan, Shafi and Shah Baig returning to their Haveli and after about a minute or so Shamman, Faza and Waryam accused also entered the same Haveli while they were still armed with guns. Muhammad Ali also met Muhammad Ashraf and Mst. Bibi Rani P.Ws. who told him that in the meanwhile Fazil and Waryam had shot at and murdered Mst. Bhagan (deceased) after having entered her Haveli in the village which is at a distance of about one Killa from the Dera of Khushhal. This part of the occurrence is stated to have been witnessed by Muhammad Ashraf (P.W.21) and Mst.Bibi Rani (P.W.22).

4. The motive for this occurrence is stated to be that there was a long-standing blood-feud between the parties in which, about 1 years earlier, Manak and Salehon who were close relatives of the accused persons had been murdered in two different incidents by the close relatives of the deceased and the injured P.Ws in the present case. A conspiracy is stated to have been hatched by Turaij accused son of Manak alongwith Shahdad and Sultan Akhtar (acquitted accused).

5. After recording the F.I.R. Mu hammad Arslah Khan, S.I. (P.W.33) went to the spot and took into possession the 12 empty cartridges from there. The accused were arrested on various dates and some of them led to the recovery of fire-arms. Gun (P.24) was recovered from Shah Baig, gun (P. 25) was recovered from Shamman (appellant) and gun (P. 26) was recovered from Fazil (appellant) while gun (P. 27) was got recovered from Waryam and Muhammad Shafi appellant led to the recovery of .12-bore pistol (P. 28). The empty cartridges as well as the fire-arms were sent to the Forensic Expert and two of the cartridges matched with the gun recovered from Shah Baig and some matched with the gun recovered from Waryam.

6. The autopsy revealed 3 fire-arm injuries on Sikandar Hayat (deceased); 6 fire-arm injuries on Haq Nawaz (deceased); 3 fire-arm injuries on Muhammad Munir (deceased); 3 fire-arm injuries on Mst. Bhagan and 9 fire-arm injuries on Mst. Fatima (deceased) of which there were multiple fire-arm wounds (about 30 in number) in an area of 5" x 4" on the front of upper part of right thigh, and 8 fire-arm wounds in an area of 6" x 4" on the front of middle of left thigh. She died of excessive bleeding.

7. At the trial the prosecution relied on the testimony of 6 eye witnesses, namely, Muhammad Ali P.W.1 (not related to any party), Nasir Hayat (P.W.3), Riaz (P.W.4), Mst. Nasim Begum (P.W.5), Muhammad Ashraf (P.W.6) and Mst. Rant (P.W.22). It also relied on the evidence of recovery of aforementioned fire-arms and empty cartridges; the evidence of motive and the medical evidence.

8. The trial Court did not believe the prosecution evidence regarding conspiracy by Shahdad Ali and Sultan Akhtar and acquitted them, but it believed the same against Turaij accused and convicted him under section 302, P.P.C. read with section 109, P.P.C. and sentenced him to imprisonment for life. He was, however, murdered subsequently by the opposite side and his case is, therefore, not before us.

The remaining accused, namely, Shamman; Shah Baig; Fazal; Waryam; Muhammad Shafi; Noor Sultan and Muhammad Hanif, were convicted under sections 302/149, 307/149 and 449/149 read with section 148, P.P.C. and were sentenced as follows:-

(1) Under section 302/149, P.P.C. death and a fine of Rs.2,000 each or in default to undergo one year's further R.I.;

(2) Under section 307/149, P.P.C. 10 years' R.I. and a fine of Rs.500 each or in default to sufer further six months' R.I. each;

Under section 449/149, P.P.C. 10 years' R.1. and a fine of Rs.500 each or in default to suffer six months' further R.I. each; and

(4) Under section 148, P.P.C. one year's R.I. each.

The aforementioned 7 convicted-accused filed an appeal before the High Court while Muhammad Ali P.W.1 (complainant) filed a Criminal Revision against the acquittal of Shahdad Ali and Sultan Akhtar and for the enhancement of sentence of Turaij accused (now deceased).

9. The High Court accepted the appeal of Waryam and acquitted him on the ground that he did not share the motive for the murders with other co-accused but dismissed the appeal of the remaining 6 convicts vide its judgment dated 13-10-1979. It also dismissed the revision of Muhammad Ali complainant by the same judgment.

All the convicts then filed a petition for leave to appeal (Cr.P.No. 543/79) against their conviction and sentence while Muhammad Ali complainant filed a petition (Cr.P. No.568/79) against the acquittal of -Waryam.

10. A learned Bench of this Court, vide its order dated 10-11-1980 granted leave to the complainant for reconsideration of the case regarding the acquittal of Waryam in order to examine whether in view of the incriminating evidence against him (Waryam) his acquittal had not resulted in miscarriage of justice. In view of the fact that leave had been granted against the acquittal of Waryam, the learned Bench considered it proper to grant leave in the connected petition filed by the convict-accused against their convictions and sentences.

11. We have heard the learned counsel for the parties at considerable length and have gone through the judgments of the two courts below and have also perused the testimony of the relevant witnesses in the case.

The motive that there was a blood-feud between the parties and some members of the accused party (appellants before us) had been murdered about 1 years earlier for which members of the deceased party were suspected, is fully established on the record. The occurrence was witnessed, inter alia, by Muhammad Ali P.W.1 (complainant) who is admittedly an independent witness having no relationship whatsoever with either side. After going through his evidence we find that he had given a very detailed and consistent description of the occurrence. The defence has not been able to bring out anything during the cross-examination to shake his testimony. We, therefore, find no reason to disbelieve this witness.

Out of the remaining eye--witnesses, two namely, Riaz P.W.4I and Mst. Nasim Begum (P.W.5), had themselves sustained injuries during, the incident relating to the murder of Haq Nawaz and Mst. Fatima. Their presence at the spot is fully established and there is no reason why their testimony should not be believed. Similarly, learned counsel for the appellants (in Criminal Appeal No.232/80) has not been able to show any defect or flaw in their testimony relating to the murder of Bhagan. Moreover, the testimony of the aforementioned eye-witnesses is not only supported by the evidence of motive and the medical evidence which shows fire-arm injuries on the person of each of the deceased, but is also corroborated by the testimony of Muhammad Ali, PW.1, who, as already observed, is a wholly independent witness. As such we see no reason to interfere with the judgment of the High Court maintaining the convictions and sentences of the appellants. Consequently we dismiss Criminal Appeal No.232/80 filed by Shamman and other accused.

12. As for Appeal No.233/80 filed by Muhammad Ali complainant against the acquittal of Waryam, we notice that it is barred by limitation, by 8 days. No good ground has been made out for condonation of this delay and Waryam, in the meantime, having acquired the valuable right of life. We, therefore, dismiss this appeal as barred by limitation.

M.Z.M. Appeal dismissed.