SAHIB DIN Versus THE STATE

KHIZAR HAYAT, J‑ ‑Seventeen accused were tried by learned Additional Sessions Judge, Sheikhupura, for committing offences of rioting while armed with deadly weapons, voluntarily causing simple and grievous hurt to Mst. Nawab Bibi and Liaquat PWs and for committing the murder of Hidayat, , Riasat, Sarang and Mokha, in prosecution of their common object, who vide judgment dated 14‑3‑1985 acquitted Jafer, Mst. Balochan, Mst. Bagan, Mst. Khatoon wife of Yunis and Mst. Khatoon widow of Fatta but convicted the remaining 12 accused as under:

S. No.

Name of convict

Convicted under section

Sentenced to

(1)

Bhai Khan, Mian Khan and Sahib Din.

302/149, P.P.C.

Death and fine of Rs.10,000 or in default to undergo 2 years' R.I. each.

(2)

Siddiq, Liaquat son of Fatta, Liaquat son of Bahwal Shera, Saffa, Shahadat, Boota, Amanat and Khizar Hayat.

302/149, P.P.C.

Imprisonment for life and a fine of Rs.5,000 each or in default to undergo one year's R.I. each.

(3)

All the accused named above at Serial Nos. 1 and 2

436/149, P.P.C.

2 years' R.I., each.

(4)

Liaquat son of Fatta.

323, P.P.C.

6 months' R.I., and a fine of Rs.1,000 or in default 2 months' R.I.

(5)

Shahadat.

326, P.P.C

2 years' R.I. and a fine of Rs.2,000 or in default 6 months' R.I.

(6)

All the accused named above at Serial Nos. 1 and 2

148, P.P.C.

2 years' R.I., and a fine of Rs. 2,000 or in default 6 months' R.I. each.

The fine imposed under section 302/149, P.P.C. has been directed to be paid to the heirs of the deceased and the fine imposed under sections 323 and 326, P.P.C. to be paid to the respective injured witnesses as compensation. Feeling aggrieved thereby, Mian Khan, Bhai Khan and Sahib Din, convicts, have filed Criminal Appeal No. 13‑J of 1984 and the remaining convicts have filed Criminal Appeal No. 14‑J of 1984 through jail and the trial Court has submitted proceedings under section 374, Cr.P.C. (Murder Reference No. 89 of 1984), while Muhammad Zubair (complainant) has filed private revision (Criminal Revision No. 503 of 1984) for enhancing sentence of appellants in Criminal Appeal No. 14‑J of 1984. Both appeals, the murder reference and the criminal revision are being disposed of by this single judgment as they have arisen from the same judgment.

2. The occurrence took place in village Thatha Wattoan, a little before sun set time, on 20‑9‑1981 and F.I.R. (Exh.P.G.) in this case was lodged same day at 11‑30 p.m. at Police Station Mangtanwala, at a distance of 10 miles from the spot, recorded by A.S.I Muhammad Aslam (P.W 11).

3. The appellants and the acquitted accused are related inter se. 3hai Khan, Mian Khan, Liaqat, Shera, Saffa, Amanat alias Bhatta are sons of Fatta and Mst. Khatoon (since acquitted) is their mother. Siddiq, Liaqat, (appellants) and Jafar (since acquitted) are brothers and Mst. Balochan (since acquitted) is their mother. Boota (appellant) son of Sanatta is nephew of Fatta Sahib Din (appellant) is husband of Mst. Began (since acquitted) and Shahadat and Khizar Hayat (appellants) are their sons. It may be stated that aforesaid Mst. Balochan, Mst. Khatoon and Mst. Began (since acquitted) are real sisters of aforesaid Fatta. On the complainant side Muhammad Zubair complainant (P.W.3) and Liaqat (P.W.4) are real brothers of Hidayat (deceased) and Riasat (deceased) and Mokha (deceased) was their father and Sarang (deceased) was their real uncle, while Mst. Nawab Bibi (P.W.5) is their mother. It may also be mentioned that both the parties lived in adjacent houses in village Thatha Wattoan. This village comprised 18/14 houses, wherein besides the families of the parties. there lived a few families of Moeens as well. The complainant party resided in one Ihata and although Sarang lived separately from them, yet he had common courtyard with them.

4. According to the prosecution a few years ago, Fatta, who was brother‑in‑law of Sahib Din (appellant), uncle of Boota (appellant), father of Bhai Khan, Mian Khan, Liaqat, Shera, Suffa and Amanat (appellants) and maternal uncle of remaining appellants had been murdered by Mokha, Hidayat, Sarang (deceased) with the help of Dosa, etc. who were challaned for the murder, but were ultimately acquitted. It may be mentioned that Riasat (deceased) was not accused in that case. The parties allegedly effected a compromise on the condition that complainant party would marry a girl of their family in family of the accused party. The complainant party did not fulfil this promise, despite persistent demand made by the accused party. The accused party, therefore, felt annoyed over it and in order to avenge murder of Fatta, committed this occurrence.

5. At the fateful time, the four deceased persons, namely, Mokha, his brother Sarang, his sons Hidayat and Riasat were sitting in their courtyard in the company of Muhammad Zubair complainant (P.W. 5), Liaqat (P.W. 4) and Mst. Nawab Bibi (P.W. 5), besides Mst Sughran, Mehran Bibi and Mst. Mughlan Bibi P.W.4. when all of a sudden the accused party duly armed with deadly weapons trespassed into their house. Suffa, Boota Khan sons of Fatta, Siddiq and Liaqat sons of Bahawal (appellants) were armed with guns; Jafar (since acquitted) and Amanat alias Batta (appellant) were armed with pistols; Shera, Liaqat son of Fatta, Khizar Hayat and Shahadat (appellants) were armed with hatchets; and Sahib Din and Bhai Khan (appellants) had Cassia in their hands. The lady‑accused, namely, Mst. Balochan, Khatoon widow of Fatta, Khatoon wife of Yunus and Mst. Began (since acquitted) were empty handed, who raised Lalkaras that no body from Mokha's family should be spared, whereupon the accused party opened fire at them. The inmates of the house started running helter‑skelter. Suffa's shot hit Sarang (deceased) who ran into the nearby paddy field to save his life, but was chased there and given hatchet below by Khizar Hayat and Shahadat (appellants), as a result of which he fell in the paddy field. Bhai Khan (appellant) reaching there dealt Kassi blows to him as a result whereof Sarang died, Amanat alias Batta. Boota and Saffar (appellants) fired at Hidayat (deceased), who receiving the shot, fell in front of the house of Sharang (deceased). Liaquat son of Fatta and Shera (appellants) then gave him hatchet blows and Bhai Khan cut his throat with Kasai and Mian Khan (appellant) fired at Riasat (deceased), as a result of which he fell dead. Mokha (deceased) in order to save his life, had entered a room, bolted its door from inside. Liaqat P.W. was injured by Shahadat (appellant) and Mst. Nawab Bibi P.W. by Liaquat son of Fatta (appellant). Bhat Khan and Sahib Din (appellants) then went up the roof of the room where Mokha (deceased) was hiding and pulled down a part of it with Kassis. Then the seven accused appellants who were carrying fire‑arms climbed the roof and fired at Mokha (from the opening made by pulling down the roof). Then coming down from the roof they dismantled the wall of that room for making sure that Mokha had died and having entered the room dealt hatchet blows to Mokha, who lay there in a dying state. At last Sahib Din (appellant) separated his head from the body with Kassi and setting the house on fire, fled away raising Lalkaras. After the bloody drama was over Muhammad Zubair (P.W. 3) leaving Liaquat and Mst. Nawab Bibi P.Ws. on the spot went to the police station and lodged report Exh.P.G. there as stated earlier.

6. A.S.I. Muhammad Aslam (P.W.11) having recorded the F.I.R. Exh.P.G. reached the scene at 4‑00/4‑30 a.m. on 21‑9‑1981. He prepared injury statements and inquest reports of the four deceased persons and despatched their dead bodies for post‑mortem examination under the care of Constable Muhammad Din (P.W.8). He then removed blood‑stained earth from four places (where dead bodies of the deceased were lying) and made them into separate sealed parcels vide me7os. Exhs. P.I., P.J. P.K. and P.L. He picked up .12 empty cartridges P.1 to P.12 lying there and secured them under memo. Exh.P.H. He also seized burnt articles P.13 to P.30 from complainant's room vide memo. Exh.P.M. and then got Mst. Nawab Bibi and Liaquat P.Ws. medically examined for their injuries. He got prepared site plans in duplicate Exh.P.EE and P.EE/1 from Hussain Shah Patwari (P.W.9) and gave thereon his notes in red ink. It may be stated that A.S.I. Muhammad Aslam (P.W.11) admitted that in middle of F.I.R. Bhai Khan's name was written by mistake which was corrected as Mian Khan at the asking of maker of the F.I.R. and the same correction was made subsequently in all the four inquest reports. He handed over the investigation to SI Khurshid Anwar Cheema S.H.O. (P.W.6) next day who partly investigated it.

7. On 11‑10‑1981, SI Khurshid Anwer Cheema (P.W.6) arrested all the male accused on being produced by Khan Muhammad. Sahib Din and Bhai Khan appellants got recovered blood‑stained Kassis P.37 and P.42, respectively. Shahadat, Khizar Hayat, Shera and Liaquat, appellants, got recovered blood‑stained hatchets P.38to P.41, respectively, from their house, which were secured under memos. Exhs.P.d. P.W. P.S. to PV, attested by Muhabbat (P.W.13) and the Investigating Officer.

8. On 12‑10‑1981, Boota, appellant, while in custody led to the recovery of gun P.43, Jafer (acquitted accused) got recovered pistol P.47, Siddiq and Liaqat son of Bahawal, appellants, got recovered guns P.48 and P.49 respectively, from their house, which were secured under memos. Exhs.P.X., P.BB., P.CC. and P.DD, respectively. Saffa and Mian Khan, appellants, got recovered guns P.44 and P.45 respectively, from sugar‑cane field of Sahib Din, while Amanat alias Batta, appellant, got recovered pistol P.46 from the same field at his pointation. They were taken into possession vide memos. Exhs.P.Y. P.Z. and P.AA., respectively. All the memos, were attested by Shahadat (P.W.12), Muhabbat (P.W 13) and the Investigating Officer (P.W.6). After usual investigation, challan against the accused was submitted to Court.

9. Dr. Akhtar Hussain Chatha (P.W.1) Senior Medical Officer, Tehsil Headquarters Hospital, Nankana Sahib, was absent on 21‑9‑1981, therefore, he carried out post‑mortem examination on all the dead bodies the next morning i.e. 22‑9‑1981. He noted on Sarang's dead body seven extensive incised wounds and two stab wounds. Underneath the injuries skull was cut through and through, larynx and trachea were cut, the head was hanging with a flap of skin and the spleen and right kidney were ruptured. The injuries were ante‑mortem and in the opinion of the doctor, Sarang had died of excessive haemorrhage and shock due to injuries Nos. 3, 5 and 6. Hidayat (deceased) had suffered four gun‑shot injuries and two incised wounds. His left cheek below left eye was cut through and through, bridge of nose was cut through and through, right and left lungs and heart were punctured. He died of excessive haemorrhage and shock due to injury No.5. Riasat (deceased) suffered nine round gun‑shot wounds. Of them six were cavity deep and three were muscle deep. Underneath the injuries two right side ribs were found fractured, right lung was chopped off, larynx and trachea were damaged. He also died of excessive haemorrhage and shock. On the dead body of Mokha, there were multiple incised wounds on the neck. The head had been separated at the level of forth cervical vertebra. Apart from this injury, there were 36 round punctured wounds caused by fire‑arms, as a result of which right lung had been chopped off and right thigh was fractured. Two pellets were recovered from the right lung. His death occurred due to excessive haemorrhage and shock, produced by injuries Nos. 1, 3 and 5. Injuries of all the deceased were found to be ante‑mortem, which resulted in their deaths. The time between injuries and death was instantaneous and between death and post‑mortem examination about 36‑38 hours.

10. On the same day the same doctor examined Liaqat and his mother Mst. Nawab Bibi P.Ws. Following injuries were found on the person of Liaqat P.W.:

(1) Incised wound 9 cm x 2 cm x muscle deep on left scapula region. The lower part of the scapula was cut underneath.

(2) An abrasion 10 cm x 1 cm on the back of left leg in the middle part.

(3) A contusion 7 cm x 2 cm on the right shoulder joint.

Injury No.1 was declared grievous, caused with sharp‑edged weapon and the rest were simple, caused with blunt weapon, within the duration of two days.

Mst. Nawab Bibi had suffered the following injuries.

(1) A contused wound 6 cm x 1 cm on the left temporal region of skull 7 cm above the left ear.

(2) A contused wound 6 cm x 2 cm on the right fore‑arm on the lateral part.

(3) A contusion 8 em x cm on the left side of back of chest.

(4) An abrasion 10 cm x 2 cm on the right scapula.

They were caused with blunt weapon, within the duration of two days.

11. At the trial the prosecution examined 14 witnesses in support of its case. Zubair complainant (P.W.3) stated about motive and the occurrence. Liaqat (P.W.4) and Mst. Nawab Bibi (P.W.5) also stated about occurrence, Shahadat (P.W.12) and Muhabat (P.W.13) deposed to the recovery of weapons from the accused /appellants while Dr. Akhtar Hussain Chattha (P.W.1) proved the injuries suffered by the P.Ws. and the deceased and opined that the deceased had met their death due to violence. Muhammad Aslam (P.W.11) and Khurshid Anwar Cheema, S.I./S.H.O. (P.W.6) stated about the investigation carried out by them. The appellants in their statements under section 342, Cr.P.C. denied the allegations. They also denied the recovery of weapons and produced no evidence in defence.

12. Muhammad Zubair, complainant (P.W.3) stated that Fatta (relative of the appellants) was murdered 6/7 years ago. They were challaned for that murder, but were acquitted about 3/4 years prior to the instant occurrence and that although they lived next door to the appellants, no quarrel took place between them during this period, because they had promised hand of a girl to the appellant's family but as they had entertained misgivings (about them), therefore, they refused hand of their girl to the appellants, which led to this occurrence. He stated that 'he mentioned this fact in the F.I.R. Exh.P.G. but on confrontation it was found as not recorded. At the time of attack, according to him, the ladies in his house were lighting fire, winnowing flour and grinding the chillies. He had seen the occurrence while lying in a depression near the well of Siddiq's house. He asserted that all the four deceased persons had received fire arm injuries and Sarang (deceased) received the fire shots from a distance of 8/10 Karams.

13. Liaqat son of Mokha (P.W.4) and his mother Nawab Bibi (P.W.5) corroborated the complainant. Liaqat stated that the appellants had killed his father Mokha, his uncle Sarang and his two brothers Riasat and Hidayat brutally and had injured him and his mother Mst. Nawab Bibi P.W. He described the occurrence as the 'day of judgment' be‑fallen his house. Mst. Nawab Bibi (P.W.5) used the expression "Merai Ghar Par Qiyamat Aa Gael' (as per vernacular record). According to her, the occurrence continued for 15 minutes. When she entreated Liaqat son of Fatta not to kill them, he inflicted Kulhari blows to her, while Shahadat gave blows to her son Liaqat P.W. Sahib Din (appellant) shouted, after separating the head of Mokha from his body, that he had achieved satisfaction and suggested to his companions to burn their belongings and then by setting the house on fire, they went away raising Lalkara. She stated that she had mentioned in Exh.D.B. that Saffa had fired at Hidayat (deceased) with gun and Batta had fired at him with pistol, but on confrontation it was found not so recorded in Exh. D. B . She further stated that although pieces of fire continued falling from the roof, yet Mokha did not receive any burn from fire. She repelled the suggestion that the attack was made in dark hours of the night, or that it was unseen occurrence and that the whole family of the accused was falsely involved due to enmity.

14‑15. Learned trial Court on consideration of the material on record discarded the recovery of fire‑arms as not established beyond doubt, observing that Shahadat P.W. on his own showing used to be available to police in every investigation conducted in the locality, so it was not safe to rely on his testimony. It acquitted the four lady accused as well as Jafar son of Bahawal, giving them benefit of doubt, but convicted the appellants on the basis of ocular testimony, motive and the recovery of blood‑stained kassis and hatchets. The convicts have challenged their conviction and sentences by filing appeals through jail, but subsequently engaged a counsel at their own expense who argued the case before us on their behalf and learned State counsel assisted by learned counsel for the complainant argued for the prosecution.

16‑17. Learned counsel appearing on behalf of the appellants had submitted that prosecution has failed to prove its case through reliable evidence beyond reasonable doubt. The motive is old and weak. The eye‑witnesses are relatives of the deceased and also inimically disposed towards the appellants, therefore, their testimony without corroborative evidence, which is wanting, cannot be relied upon. He further argues that ocular testimony in itself is not worth reliance, for the reason that it is in conflict with medical evidence. According to him, learned trial Court was not justified in basing conviction of the appellants on the ocular testimony which has been disbelieved qua the acquitted accused. Recovery of fire‑arms is shaky and unreliable. He emphasised that Investigating Officer substituted name of Man Khan' in place of "Bhai Khan" in the. F.I.R. and also in the inquest‑reports, which casts grave doubt about authenticity of the F.I.R. Learned State counsel has supported the conviction and the sentence recorded by the learned trial Court.

18. We have carefully considered the facts and circumstances of the case in the light of the arguments advanced by the learned counsel for the parties and have formed the view that the guilt of the appellants has been successfully brought home to them through overwhelming reliable evidence brought on record by the prosecution and our reasons for the same are as follows.

It is not denied that Fatta was murdered 6/7 years before the occurrence by Mokha (deceased), his son Hidayat (deceased) and his brother Sarang (deceased) with others and that they were challaned and were ultimately acquitted. It is true that despite both the parties live in the same village no untoward incident took place between them till the instant occurrence. But it was due to the reason that parties had compromised on the condition that the complainant party would give hand of their girl in the family of appellants, but the former did not fulfil their promise, which caused grave annoyance to the appellants, and it was thereafter that they thought of avenging the murder of Fatta and killed four persons of whom three were charged for murder of Fatta. We have noticed that it is not mentioned in the F. I. R. that complainant party had promised hand of their girl to the appellants or that their refusal to fulfil this promise ignited the trouble. This omission does not adversely affect the prosecution, because the appellants have not challenged this version with any amount of seriousness. There is nothing on record to show that the complainant party particularly the deceased persons had any sort o dispute with any body other than the appellants. It cannot, therefore, be presumed that the deceased were murdered by some unknown persons and that on account of enmity, the appellants had been roped in. In the circumstances, we find that appellants had a motive to attack and kill the deceased.

19. It is contended that Sarang (deceased) was allegedly fired at by Saffa (appellant) but the medical witness did not find any gun shot injury on the person of Sarang (deceased). It is further argued that according to the prosecution Mst. Nawab Bibi P.W. was injured by Liaqat son of Fatta (appellant) with a hatchet, but she suffered no injury showing characteristic of an injury caused with a sharp weapon. This discrepancy according to learned counsel, has not only made participation of Saffa and Liaqat appellants as doubtful, but has also falsified claim of the eye‑witnesses to have seen the occurrence. The argument is without force, firstly, because it is in evidence that when the appellants opened fire the deceased persons and the P.Ws started running in different directions for safety therefore, it is possible that the shot fired by Saffa at Sarang (deceased) had missed the target. Had Saffa (appellant) been attributed this shot only then the argument would have had some weight, but here Saffa (appellant) allegedly fired at Hidayat (deceased) as well and doctor (P.W.1) has found number of firearm injuries on his person, therefore. participation of Saffa (appellant) stands established. Liaqat son of (appellant) also besides injuring Mst. Nawab Bibi P.W. caused injuries to Hidayat (deceased) with hatchet and the doctor noted number of injuries on his person as caused with sharp edged weapon. It is also possible that he had used blunt side of the hatchet while injuring Mst. Nawab Bibi P.W. In the circumstances, we hold that medical evidence is not in conflict with ocular evidence.

20. The occurrence took place in the house of the complainant party. The inmates of the house were therefore, the natural witnesses, The presence of Mst. Nawab Bibi (wife of Mokha) and Liaqat P.W.(son of Mokha) is further established by the fact that they were injured during the occurrence. The appellants are co‑villagers and neighbours of the complainant party and were therefore intimately known to the P.Ws. hence their identity at the time of occurrence, which took place before sunset time, is not at all in doubt, particularly because the appellants remained on the spot for sufficiently long time as they killed four and injured two persons, dismantled the roof and wall of a room and also set the house on fire, which provided ample time to the witnesses to see and identify them correctly. Furthermore, number of casualties and the injuries inflicted upon the complainant party are commensurate with the number of the accused named by the witnesses as the authors of the crime.

21. It is next argued that the ocular evidence cannot be relied upon qua the appellants because the same has been disbelieved against four lady‑accused and Jafar accused who have been acquitted. It is too well‑known, that the rule, "integrity of a witness is indivisible' is not followed by Courts of this country. It is rather bounden duty of a Court to sift grain from chaff, therefore, a witness can be partly believed and partly disbelieved, of course, for good reasons. However, it may be pointed out that the trial Court has not disbelieved the eye‑witnesses qua the acquitted accused in this case. They were acquitted by way of abundant caution, because they did not cause injury to any of the deceased P.Ws.

22. As for the objection that name of Mian Khan has been substituted for 'Bhai Khan' subsequently, we have examined the F.I.R. A plain reading of the document shows that it was a clerical mistake. The above said correction of name was made in the sentence which reads

It may be stated that in the preceding lines of F.I.R. it has been clearly stated that "Mian Khan" was armed with gun and "Bhai Khan" with a Kasai. So if the mistaken name had remained unamended, even then none of the parties would have gained or suffered on this account.

23. From what has been stated above, it is clear that the eye witnesses are natural witnesses, their presence at the time of occurrence was established, who correctly identified the assailants/appellants at the time of occurrence. Their evidence regarding manner of occurrence and the participation of the appellants appears to be truthful. To our mind it can be safely relied upon without any corroborative evidence. But we find that there do exist corroborative circumstances in the shape of injuries on P.Ws, the motive, and the fact that F.I. R. was promptly lodged. In the circumstances the evidence of recovery, even if excluded, would not damage the prosecution case. Consequently, we uphold the conviction of the appellants on all counts as mentioned in para 1 of the judgment.

24. Before considering the question of sentence, we are tempted to express that the trial Court has held the appellants guilty under section 148 P . P.C. but omitted to convict and sentence the appellants other than Shahadat and Liaqat son of Fatta under sections 326 and 323 read with section 149, P.P.C. for the injuries caused to Liaqat and Mst. Nawab Bibi P.Ws. As the appellants who are not convicted and sentenced under sections 326 and 323, P.P.C. stand convicted and sentenced for murder and arson, therefore, we would not order their re‑trial on these charges, as it would not serve any useful purpose.

25. Arguing on point of sentence, learned counsel has submitted that admittedly the three deceased, namely, Mokha, Sarang and Hidayat had murdered Fatta, the father/close relative of the appellants and that the appellants in order to avenge Fatta's murder had killed the deceased persons out of sense of honour and self respect, which constitutes a mitigating circumstance, therefore, Bhai Khan, Mian Khan and Sahib Din are entitled to the award of lesser penalty. We are not persuaded to agree with learned counsel. Firstly, because private revenge is never considered as mitigating circumstance in the matter of award of sentence. Secondly, there is nothing on record to show that there existed a tradition in appellant's family to avenge the murder of father/close relative. It my be pointed out that in Ajun Shah's case P L D 1967 SC 185 learned Judges of Supreme Court while commuting the death sentence of the appellant to lesser penalty, observed that the question of sentence in each case must depend on its own facts. The relevant observation reads as under:

"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 ...."

Where the case of Mian Khan appellant is concerned, it may be noted that he had shot dead Riasat (deceased), who was neither suspected of nor challaned for the murder of said Fatta. Therefore he is not at all entitled to lesser penalty on the ground of taking revenge of the murder of Fatta. Where Bhai Khan and Sahib Din appellants are concerned it may be pointed out that they played leading role in the occurrence and had acted in cruel and brutal manner inasmuch as that they separated heads of Sarang and Mokha (deceased) from their bodies, respectively, with Kassis. In the circumstances, we are of the view that their criminality is of the kind which must be visited with extreme penalty. Consequently, we dismiss both appeals, maintain the conviction and sentences awarded to the appellants by the trial Court. The Reference is accepted and the death sentences, awarded to Bhai Khan, Mian Khan and Sahib Din appellants are hereby confirmed. We are not disposed to enhance the sentences of other appellants and dismiss Criminal Revision No. 503 of 1984.

S.A./S‑252/L Conviction /death sentences confirmed.