ZULFIQAR Versus THE STATE

1. MUSHTAQ HUSSAIN, J.- By his order dated 21-12-1970 Sh. Muhammad Asadullah, Additional Sessions Judge, Layallpur, convicted Zulfiqar, aged 20, Sarwar, aged 18, Salabat, aged 72, Azam, aged 30, Rajada aged S5 and Ahmad, aged 70, under sections 302/149, P. P. C. for the murder of Walidad and Ahmad oft 3-2-1968 at degarwela at Chah Ram Kali 14 miles from Police Station Pirmahal and 3 miles from Police Post Arauti. He sentenced all of them to death, By the same order he convicted Allah Yar, aged 35, Hota, aged 26 and Sooja, aged 63, under section 302/149, P. P. O. and sentenced there to transportation for life on the same charge. Mathela, Murad, Bahadur, Salabat son of Mamund and Murad son of Karam were acquitted by biro of the charge while Wahab another co-accused died during the investigation.

2. The prosecution story is that 11/12 years before the occurrence Nawaz son of Namdar, resident of Jhalar, Sargana, was murdered by Rab Nawaz etc, Sargana by caste, residents of Nawab Bhuti and Walidad deceased. They were acquitted by the Court. The heirs of Nawaz, etc. Zulfiqar and Sarwar, appellant who are his sons nursed a grudge against Walidad etc. on this ground.

3. On the day of occurrence, Walidad and Ahmad son of Rajada went to their well Kali Wala Dakhli Jowaya Panwar to witness the bullock races. At degarwela both of them along with Zulfiqar P. W. were returning from the races to the aforementioned well when suddenly Zulfiqar and Sarwar sons of Nawaz, Hota, Yaroo, Salabat, Azam, Sargana by caste, Rajada, Faqir by caste and Sooja also Sargana by caste, appellants, came out of ambush fully armed. Hota, Sooja and Allah Yar were armed with dangs and all the others had guns. Zulfiqar, appellant, gave out a lalkara to the effect that they would avenge their father's murder by Walidad that day. They warned that no one also should come near. Zulfiqar, Sarwar, Ahmad, Rajada, Azam and Salabat fired their guns at Walidad which hit him and an unconnected person Ahmad. Walidad fell down in killa No. 18 of square No. 15 while Ahmad, similarly, fell down at a little distance away. Both had been hit in their abdomen. Hota, Sooja and Yaroo, appellants, then proceeded to belabour the fallen Walidad. He died at the spot. So did Ahmad. The appellants proceeded to load the corpse of Walidad on a horse belonging to Rajada appellant and made good their escape along with a double-barrelled 12 bore gun of the deceased and a bandolier containing cartridges. The occurrence was witnessed by Chakar (P. W. 25), Kamir (P. W. 26), Ghulam (P. W. 21) all residents of Nawab Buti and Sada (P. W. 28) besides Zulfiqar (P.W. 24) who proceeded to make his statement Exh. P.J. before Inayatullah, A. S. I. Police Post Arauti on the basis of which Muhammad A slam, Moharrir Head Constable (P. W. 6) recorded the formal F. I. R. (Exh. P.J/1) at Police Station Pirmahal at a distance of 14 miles at 9 p.m. on the same day.

4. Inayatullah (P. W. 29) who was then A. S. I. Incharge of Police Post Arauti before whom the statement Exh. P. J. had been made at 7 p.m. started the investigation of the case. He went to the spot where he, inter alia, took into possession 12 empty cartridges (Exh. P. 7/1-12) vide memo. Exh. P.G. Nisar Ali Shah (P. W. 30) who was S. H. O. Police Station Pirmahal reached the spot at mid-night and took over the investigation. He deputed Inayatullah A. S. I. the aforesaid witness to search the dead body of Walidad as well as arrest the accused persons. The latter arrested 12 of the accused on 14-2-1968 while Rajada and Ahmad were arrested on 19-2-1968. The arrests were made in the following manner:-

5. Zulfiqar and Azam were arrested by P. W 30 from near Pul Mirza Shah on 14-2-1968 and a D. B. B. L. gun Exh. P. 10 was recovered from Zulfiqar vide memo. Exh. P. L. along with five live cartridges. Similarly, a single -barrelled gun Exh. P. 12 was recovered from Azam along with four live cartridges Exh. P. 13/1-4 vide memo. Exh. P. M. Salabat son of Jahana and Sarwar were also arrested the same day but from another place, Mogha Lala Mehr Chand on Rajbah Arauti. From Salabat gun Exh .P. 14 and four live cartridges Exh. P. 15/1-4 were recovered through memo. Exh. P.

9. From Sarwar a single-barrelled gun Exh. P. 16 and four live cartridges Exh. P. 17/1-4 were recovered ride memo. Exh. P. Q. All these four guns were unlicensed. Rajada and Ahmad accused were arrested on 19 th February from Pul Yousuf Gil. From the former, a single-barrelled gun Exh. P. 8 and four live cartridges Exh. P. 9/1-4 were recovered through memo. Exh. P. K. The accused were challaned by the successor of this witness as he was meanwhile transferred.

6. At the trial, the appellants denied all knowledge of the occurrence and claimed to be tried. The prosecution produced 30 witnesses in all while the defence produced none.

7. The convicts have filed Criminal Appeals Nos. 37 and 38 against their conviction for the murder referred to above and Appeals Nos. 243.244, 245 246 and 249 of 1971 against their conviction under the Arms Ordinance for having been in possession of unlicensed fire-arms. The case is also before us under section 374, Cr. P. C. for confirmation of the death sentence against the six appellants.

8. The body of Walidad was never recovered. It is, however, in evidence that Inayatullah, A. S. I. (P.W. 29) was led by Azam accused to Chah Kachhlwala on the bank of river Ravi where on his pointing out 6 teeth sod 10 pieces of bore were recovered by him from a sandy place from which bad odour was emanating. From there, he also took into. possession blood stained earth. This happened on 23-2-1968. Dr. Muhammad Hayat Malik appeared as P. W. 23 and stated that he received a sealed parcel from the S, H, O. Pirmahal Police Station on 13-6-1969, i.e., 1 years after the occur rence, which contained c teeth and small pieces of bone out of which 3 could have been identified as pieces of a skull. He came to the exclusion that the teeth were human and that they belong to one of the same person who was about 30 to 45 years of age. He could not, however, give any opinion as to whether the 10 pieces of bone were human or not.

9. There is no evidence before us as to the age of Walidad deceased and, therefore, it is not possible to say whether these teeth had ever been a part of the jaw of the deceased. Even otherwise, it is not possible to connect them with him despite the fact that they are said to have been recovered at the pointing out of Azam. The place from which the bones are supposed to have been recovered is art open site near Chah Kachhiwala on the bank of the river Ravi. It is alleged that Walidad's body was hacked to pieces at that place and these teeth were recovered by digging a place which was giving out a stench. It passes one's comprehension as to how only these six teeth and these small ten pieces of bone were buried there while there was no trace of any other part of the body in that sandy grave. Since the place bad to be dug to take these things cut, it cannot be said that the rest of the body had been dragged away by anyone because there was no such signs at the spot. It is, therefore, difficult for us even otherwise to believe that these teeth had anything to do with the body of Walidad deceased.

10. Out of the weapons recovered by the police from the appellants only three are of any consequence. They are gun Exh. P. 8 recovered front Rajada; gun Exh. 10 recovered from Zulfiqar and gun Exh. P. 1 2 recovered from Azam, Mr. Muhammad Sarwar (P. W. 22) Firearms Expert found that crime empty Exh. P. 1/10 was fired from gust Exh. P. 8; crime empty Exh. P. 7/7 was fired from the right barrel of Pun Exh. P. 10 while crime empties Exh. P. 7/2 and 6 were fired from the left barrel of the same gun, the gun having been recovered from Zulfiqar appellant. Crime empties Exh. P. 7/4 were found to have been fired from gun Exh. P. 12 recovered from Azam. Crime empties Exh. P. 7/1, 3, 5, 9, 11 and 12 were found not to have been fired from any of the guns recovered, i.e. Exhs. P. 8, 10, 12, 14,

16. The recovery of the guns from Sarwar and Salabat are of no avail to the prosecution and cannot be used as corroborative evidence against these two persons. No gun was recovered from Ahmad, hence no corroborative evidence is available against him at all. No weapon was recovered from the other appellants.

11. The prosecution produced Zulfiqar (P. W. 24), Chakar (P. W. 25), Kamir (P, W. 26), Ghulam (P. W. 27) and Sada (P. W. 28) as-prosecution witnesses. Zulfiqar is the brother of Walidad deceased while Kamir and Ghulam are his co-villagers from Nawab Bhooti. Kamir (P. W. 26) is also related to Ahmad Zulfiqar (P. W. 24) who is also the author of the F. I. R. reproduced the prosecution story as narrated in the F.I.R. He was supported by Chakar (P. W. 25), Kamir (P. W. 26), Ghulam (P. W. 27) and Sada (P. W. 281 The statements of these witnesses are consistent, and but for small discrepancies here and there, which are not of any material consequence, they have narrated the prosecution story consistently.

12. It was suggested to the learned Additional Sessions Judge that the so -called eye-witnesses are all interested persons. This argument, however, did not appeal to him. We are afraid we cannot see eye to eye with him on this account. Zulfiqar (P. W. 24) is the brother of the deceased. The deceased had admittedly murdered the father of appellants Nos. I and 2. Salabat, appellant No. 3, is the cousin of Ahmad, appellant No. 6. Rajada is a very near friend of the appellants. Allah Yar, appellant No. 7, is the husband of the sister of Zulfiqar, appellant, while the latter is married to the former's sister. Hota, appellant No. 8, is the nephew of Ahmad, appellant No. 6; Sooja, appellant No. 9, is the maternal uncle of acquitted accused Matbela and the uncle of acquitted accused Murad, the niece of Bahadur acquitted accused is the wife of Zulfiqar, Murad, the acquitted accused, is the brother of Wahab, the accused who died. It will thus be seen that the appellants and the acquitted accused do not only belong to the same party, but most of them are inter-related also. They are as much interested in avenging the death of the father of Zulfiqar and Sarwar as these two boys themselves. Zulfiqar P. W. is, therefore, interested against all of these persons because they are the enemies of his brother Walidad whom they have ultimately done to death. The other four witnesses belong to his party and therefore, it is not safe to base any conviction upon the statements of these witnesses unless some corroboration can be found. As already stated, the only corroboration that is available is against Zulfiqar, Rajada and Azam. These three persons produced guns which had been matched with the crime empties recovered from the scene of occurrence and their complicity in the crime is, therefore free from any doubt. Since corroboration is available against them, w uphold their conviction under section 302 of the Penal Code. Since no such corroboration is available against Sarwar, Salabat, Ahmad, Allah Yar, Hota and Sooja, appellants, we accept their appeals and set aside their B convictions and sentences. We have already, .by a short order, directed that they shall be released if they are not required in any other case. This is with regard to the charge under section 302/149, P. P. C.

13. So far as the question of sentence is concerned, we are of the view that Zulfiqar, Azam and Rajada do, not merit the death sentence. Zulfiqar is the son of Muhammad Nawaz who had been murdered by Walidad deceased when Zulfiqar was only about 10 years of age. It is a matter of tradition and even family duty in the Punjab to avenge the murder of the father. "Such murders are committed out of a sense of honour and self-respect. Since he was a boy his mind had become obsessed with one thought that is to do away the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased . . . . . he lost his balance of mind. The time, place and nature of the attack appear to confirm this." This was held in Ajun Shah v. The State (P L D 1967 S C 185) and their Lordships continued to observe that:-

14. "A man is after all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty."

15. In these circumstances, the ends of justice will be met if Zulfiqar was to be sentenced to transportation for life. Azam and Rajada are his close associates and would be smarting under the grievance as much as did Zulfiqar and we do not find any material difference between the case of Zulfiqar and these two co-accused, we, therefore, set aside their sentence of death and instead sentence them to undergo transportation for life.

16. So far as the convictions under the Arms Ordinance are concerned, we uphold them in the case of Zulfiqar, Azam and Rajada. The sentences already awarded to them for this offence by the learned Additional Sessions Judge shall be undergone by them concurrently with the sentence under the murder charge. The convictions and sentences under sections 149 and 148 cannot be sustained because we have found that only three persons participated in the occurrence and the minimum number requisite for forming an unlawful assembly is five persons.

17. So far as the conviction under section 201 is concerned, we have not found any corroboration of the ocular testimony in this respect of the interested witnesses and it is not possible for us to maintain the conviction under this section in these circumstances, which is set aside.

18. So far as the other accused are concerned, for -the reasons already recorded above, we cannot, on the basis of the interested evidence and in the absence of any corroboration, convict them on the basis of these so- called recoveries particularly when the crime empties supposed to have been fired by them have not been matched with any of these guns. We cannot therefore, place any reliance on the recovery of the weapons from these persons under these circumstances. We, therefore, accept Criminal Appeals

19. Nos. 38, 246 and 249 of 1971 and set aside their sentences. We have already by a short order directed that they shall be released forthwith if not required in any other case.

20. Order accordingly.