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Petitioner: ALLAH YAR AND 7 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Gulbaz Khan Title: ALLAH YAR AND 7 OTHERS vs THE STATE Case No.: Criminal Appeal No, 180 and Murder Reference No, 62 of 1982 Date of Judgment:1983-11-12 Reported As: 1984 P Cr. L J 3071 Result: Appeal partly accepted
JUDGMENT
JUDGMENT SARDAR MUHAMMAD DOGAR, J.-Appellants Gulzar aged 22 years, Allah Yar alias Yara, aged 70 years, Ahmad alias Ahmu aged 30 years, Malla aged 50 years, Sarfaraz aged 18 years, Zafar aged 20 years, Zulfiqar aged 25 years and Haq Nawaz aged 22 years have filed appeal against order dated 10th March, 1982, whereby the appellants have been convicted by learned Additional Sessions Judge, Jhang, under section 302/149, P. P. C. On six counts, and sentenced to death on each count, for having murdered Mst. Roshan aged 40 years, her son Wajad Ali aged 5-6 months, another son Mansha aged 12 years, her daughter Mst. Mundan aged 5 years, another daughter Mst. Sahiban aged 9-10 years and her mother Mst. Bakhan aged 60, in the house of Mst. Roshan during the night between 9th and 10th of August, 1980 in the Abadi of Chak No, 189/J. B. Berlanwala, at a distance of 3i miles from Police Station Bhawana, District Jhang. They have also been sentenced to pay a fine of Rs, 5,000 each on each count, in default whereof to suffer 2 years' R. I. Each. They have further been convicted under section 148, P. P. C. And sentenced to undergo 3 years' R. I. Each and to pay a fine of Rs, 1,000 each, in default whereof to suffer further R. I. For 6 months each. 2. Appellants Ahmad, Zulfiqar and Gulzar are real brothers, Allah Yar appellant is their father, Malla appellant is brother of Allah Yar, Haq Nawaz appellant is son of Malla, Sarfaraz and Zafar appellants are sons of real sister of Allah Yar and Malla. Sohna father of Mst. Roshan (deceased) was real brother of Sada father of appellants Allah Yar and Malla. Appellant Ahmad is husband of Mst. Roshan (deceased). Mst. Bakhan (deceased) was mother of Mst. Roshan (deceased). 3. According to first information report (Exh. P. B. B.) which was registered at Police Station Bhawana, District Mang, at 4-00 a. m. On 10th August, 1980 on the statement of Amir P. W. 9. Amir
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Khan complainant, Nur Akbar P. W. 7 and Zulfiqar P. W. 8 had come to the house of Mst. Roshan (deceased) to enquire about the health of Mansha (deceased) on 9th August, 1980. On the night of occurrence they were sleeping on the roof of the house of Mst. Roshan (deceased). Mst. Roshan and other deceased were sleeping in the courtyard. Mst. Roshan deceased along-with her son Wajad aged 5-6 months was sleeping on one cot, Mst. Bailin and Mst. Mundan were sleeping on another cot, while Mansha and Mst. Sahiban were sleeping on separate cots. A lantern was burning. At about Dhall-raat, the P. Ws. Woke up on the shrieks of Mst. Roshan deceased and saw all the appellants armed with hatchets. Ahmad and Zulfiqar appellants were causing injuries to Mst. Roshan and her son Wajad, Nawaz and Gulzar appellants were giving injuries to Mansha, Malta and Zafar appellants were causing injuries to Mst. Bakhan and Mst. Mundan, and Sarfaraz and Yara appellants were causing injuries to Mst. Sahiban, while lying on cots on which they were sleeping. They were giving repeated blows on their necks. On the threatening of the appellants that in case they raise alarm any more, they will also be done away with, the witnesses stopped raising alarm, and silently saw the occurrence. After the departure of the appellants the witnesses came down and saw that all the deceased had passed away. They noted injuries on their necks, faces, heads and other parts of their bodies. 4. Background of the occurrence was that Mst. Roshan deceased who was the only daughter of her father Sohna, was married to Ahmad appellant. Since Sohna had no male issue, he transferred 28- 29 Acres of land and a residential house in Chak No, 189/.I. B. In the name of Mst, Roshan in his lifetime. Mst. Roshan was living alongwith her kids in the house of her father. Mst. Bakhan, her mother was also living with her. Appellant Ahmad, his brothers Zulfiqar and Gulzar used to press Mst. Roshan for transferring the land of her father in their names but Mst. Roshan had not yielded. Apart from this, Mst. Rosban had not acceded to the demand of appellants Gulzar and Zulfiqar that she should give away Mst. Sahiban in Watta for marriage of Zulfiqar appellant. Instead, she gave away Mst. Sahiban in Watta for the nikah of her son Mansha. For both these reasons, Gulzar and Zulfiqar appellants were deeply annoyed. Appellant Ahmad since 10/11 months before the occurrence had deserted his wife Mst. Roshan and had taken up residence with his brothers, Gulzar and Zulfiqar. 5. At the trial, prosecution in all examined ten persons. Ghazanfar Hayat, Inspector of Police (P. W. 10) who had recorded the F. I. R. (Exh. P. B. B.), had arrested Zulfiqar and Haq Nawaz appellants on the same day, outside the Police Station gate where they met him while he was proceeding to the spot. Zulfiqar appellant had blood-stained hatchet P. 14 in his hand and was wearing blood- stained chaddar P. 15 which were taken into possession by the Investigating Officer, vide recovery memos. Exhs. P. N. And P.O., respectively. Haq Nawaz appellant was holding blood-stained hatchet P. 16 and was wearing blood-stained chaddar P. 17, which were also taken into possession by the Investigating Officer, vide recovery memos. Exhs. P. Q. And P. R., respectively. He had prepared the injury statements of all the deceased persons and had taken bloodstained earth into possession from beneath the four cots on which the deceased were murdered, alongwith the beddings of all the cots. He had also taken into possession lantern P. 18 from the spot, vide memo. Exh. P. W. Appellants Gulzar, Allah Yar, Ahmad, Malla, Sarfaraz and Zafar were arrested by him on 12th August, 1980. He has deposed these facts before the Court. Statement of the Investigating Officer regarding the arrest of Zulfiqar and Haq Nawaz and the articles taken from their possession and also the fact of his having taken into possession blood- stained earth, bloodstained beddings and lantern from the spot has been corroborated by P. W. 6. He has also stated that the six appellanls namely, Gulzar, Allah Yar, Ahmad, Malla, Sarfaraz and Zafar who have been shown in column No, 2 were found innocent by him also during investigation, but he had initially shown all these accused in column No, 3.
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6. The eye-witness account has been furnished by Nur Akbar P. W. 7 and Zulfiqar son of Sohna (P. W. 8). Both of them have stated that they had gone to the house of Mst. Roshan on the evening preceding the night of occurrence to enquire about the health of Mansha (deceased) who was suffering from Asthma. They have deposed that they were sleeping at the roof of the house of Mst. Roshan alongwith Amir complainant and were awaken by alarm at about mid-night and had seen in the .Fight of lantern which was burning in the courtyard, Haq Nawaz and Gulzar appellants inflicting blows to Mansha deceased, Ahmad and Zulfiqar appellants giving hatchet blows to Roshan and Wajad Ali (deceased) both of whom were lying on the same cot, Zafar and Malla appellants giving hatchet blows to Mst. Bakhan and Mst. Mundan (deceased) who were also lying on one cot, Allah Yar and Sarfaraz appellants giving hatchet blows to Mst. Sahiban deceased who was sleeping on a separate cot. When they raised alarm, they were threatened by the appellants that they will be killed if they intervene. They saw the occurrence from the roof and only came down the courtyard, after the appellants had gone away after killing all the victims. ' Both of them have stated that the motive for the occurrence was that the appellants wanted Mst. Roshan to transfer the land gifted to her by her father, which she had declined. Nur Akbar P. W. 7 has stated that appellants Zulfiqar, Allah Yar and Ahmad had asked Mst. Roshan to give away Mst. Sahiban to someone in exchange of the marriage of Zulfiqar appellant but Mst. Roshan had refused, and instead she had given the hand of Mst. Sahiban to a son of one Khan and in exchange had got the daughter of the said Khan for marriage with his son Mansha. Zulfiqar P. W. 8 has corroborated the fact of the relationship entered into by Mst. Roshan with Khan and has also deposed that serious rift had developed between Mst. Roshan and her husband on account of her refusal to give Mst. Sahiban in exchange of marriage of his brother Zulfiqar, and as a result of the annoyance, he had left the house of his wife Mst. Roshan and had taken up residence with his father and brothers. It may be noted that according to prosecution evidence the house of Mst. Roshan which had been gifted to her by her father and the house of Allah Yar father of Zulfiqar and Ahmad appellants are in the same Ahata and there is no intervening wall. Both these witnesses in cross-examination have admitted that they had been challaned in different cases including murder cases and had also been convicted in some cases, and they had, undergone sentences. Nur Akbar P. W. 7 was in fact, at the time of his statement under arrest in some murder case. However, nothing has been brought on record to say that they had any direct enmity with any of the appellants in the situation of having been accused in any case in which any of the appellants was either a complainant or a witness or having been witness or complainant against any of the appellants, nor any other fact of direct inimical relationship has been brought out. It has, however, been admitted by both these witnesses that they are brother-in-law inter se i. e. The sister of Nur Akbar P. W. Is married to Zulfiqar P. W. While his sister is married to Nur Akbar. 7. Amir P. W. 9 who had lodged the F. I. R. Had not supported the prosecution versions at the trial. He has stated that he had come to the spot after having been informed by Ali barber that Mst. Bakhan, his paternal-aunt alongwith other five deceased has been murdered. According to him he was asked to become complainant in this case and was made to thumb-mark some documents - which included Exh. P. B. B. He was cross-examined by learned Additional Prosecutor, on the permission granted by the trial Court. In cross-examination he has admitted that paternal-aunt {{URDU TEXT}} of Allah Yar and Malla appellants was the grand-mother of his sister Anwar Bibi's husband. He has also stated that Mst. Roshan was the only child of her father Sohna and he had transferred his residential house and the whole land which was about one square in the name of his daughter Mst. Roshan. According to him, Sohna had died 5-6 years before the occurrence. He has further stated that the land and the house were in possession of Mst. Roshan and her family till they were murdered and that the accused are in possession of the said property after the murders.
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He has also stated that Mst. Roshan had performed the nikah of her son Mansha deceased with the daughter of Khan, husband of sister of Allah Yar and Malla appellants, and in exchange the nikah of Mst. Sahibab had been performed with the son of said Khan, and that these nikahs were performed less than a year before the occurrence. He has denied the suggestion that Allah Yar and Ahmad appellants had proposed to Mst. Roshan to give away the hand of Mst. Roshan deceased in exchange, for the marriage of Zulfiqar appellant, but has stated that Zulfiqar appellant was not married, by the time of occurrence. He has also admitted that alongwith the police at the spot he had seen Haq Nawaz and Zulfiqar appellants. He has denied that he had been won over by the appellants through Amir son of Bahadur on an agreement of payment of Rs, 50,000 and transfer of 3 Killas of land or that the amount of Rs, 50,000 had been deposited with Amir son of Bahadur to be paid to him if he did not depose in favour of the prosecution. In cross-examination on behalf of the appellants he has stated that there was a rumour in the village that Mst. Roshan had illicit relations with Gulzar, a brother of Zulfiqar P. W. And that some differences had arisen between the two in contradiction to what he had stated earlier, in cross- examination by learned A. P. P. He has stated that the land of Mst. Roshan was in possession of Khan with whose son and daughter nikahs of Mst. Sahiban and Mansha had been performed. Anwar P. W. 5 who has deposed regarding the identification of dead bodies during the post- mortem examination. In cross-examination stated that he had seen Haq Nawaz and Zulfiqar appellants with the police coming to the spot at about 6/7-00 a. m. 8. Post-mortem examination on dead bodies of all the deceased was performed by Dr. Ata Ullah Awan P. W. I. He had noted 5 incised wounds on the person of Muhammad Mansha, one of them was on the root of neck and four of them on the front of right shoulder, the latter four have been numbered as injury No, 2 Mst. Mundan was found to have suffered 3 incised wounds, Mst. Bakhan was found to have received 8 incised wounds, 5 incised wounds were noted on the dead body of Wajid aged 5-6 months, 11 incised wounds were noted on the dead body of Mst. Roshan while 4 incised wounds were found to have been suffered by Mst. Sahiban. According to the opinion of the doctor, all the deceased had died of incised injuries suffered by them. Nothing noteworthy has been brought out in cross-examination. 9. All the appellants have denied the charges. Zulfiqar and Haq Nawaz appellants have denied that blood-stained hatchets and chaddars (P. 14 to P. 17).Had been taken from their possession. They have admitted relationship inter se and their relationship with the deceased persons also. The fact of Sohna, father of Mst. Roshan having made Hibba of his property including residential house and land in favour of Mst. Roshan has also been admitted. However, the allegation that Mst. Roshan was being pressed to transfer the land to the appellants and the allegation that Mst. Roshan had been pressed to arrange the marriage of Zulfiqar appellant in exchange of her daughter Mst. Sahiban, has been denied by all the appellants. Appellant Gulzar has pleaded alibi and has stated that on the night of occurrence he alongwith Malla appellant, was in custody of C. I. A. Police Chiniot where they had been taken as suspects in a theft case of she-donkeys a day earlier, and that Allah Yar, Ahmad and Sarfaraz appellants had gone to Chiniot to secure their release, and as such all of them were at Chiniot on the night of occurrence. All the other appellants named by him to have been present in Chiniot, have also pleaded the same fact. Zulfiqar appellant in answer to question, "why this case against you and why the prosecution witnesses deposed against you" has stated :- "1 and my co-accused Haq Nawaz were sleeping at our Bahik in our village. We were informed by Muhammad Zakir Imam Masjid of our village that Mst. Roshan and her family had been done to death. We came to the spot and saw the dead bodies of the six deceased in this case. I and Haq Nawaz accused went to the Police Station and informed the police about the occurrence. The police came with us to the spot. Nobody knew at that time who was responsible for the tragedy. We have been falsely involved in this case because of the influence of Gulzar, a real brother of Zulfiqar
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P. W. Subsequently it transpired that Gulzar aforesaid had illicit relations with Mst. Roshan deceased and that a serious unpleasantness had taken place, between the two due to which Mst. Roshan deceased stopped Gulzar aforesaid from visiting her any longer. This annoyed Gulzar who managed to get Gulzar and Malla accused summoned to C. I. A. Staff Chiniot a day earlier than the occurrence.. Allah Yar, Ahmad and Sarfaraz accused went to Chiniot to secure their release. Gulzar aforesaid realizing that most of the male members of the house were absent, got Mst. Roshan and her family killed. All the P. Ws. In this case are bad characters of Basta Alif and are inimical to us." All the appellants including Haq Nawaz have owned the above statement made by Zulfiqar appellant. Four witnesses have been examined in defence by the appellants, Shamshad Ali D. W. 1, has stated that his 3 she-donkeys had been stolen a month or two before the occurrence. Gulzar son of Sohna had told him that the she-donkeys were with Malta and Allah Yar appellants. On his enquiry, they had sworn on Holy Quran that they were not thieves. He has stated that 10-11 days later the she- donkeys came back of their own. He has stated that on the day, before the night of occurrence a Police Constable of C. I. A., Chiniot had taken away Malla and Gulzar appellants to Chiniot in the same connection and on the request of appellants Allah Yar, Ahmad and Sarfaraz he had accompanied them to Chiniot for their release as they had already taken oath of their innocence. They had approached Sardar Zafar Abbas, Advocate of Chiniot but he could not contact the Police Officer. Ahmad appellant was then sent to bring Ali Ahmad Bar from his village to help in securing the release of Malla and Gulzar appellants. He has stated that he alongwith Allah Yar and Sarfaraz had stayed in Chiniot and had met Malla and Gulzar appellants in the C. I. A. Staff where Ahmad appellant had also arrived alongwith Ali Ahmad Bar. According to him it was there that one Bashir Khoja had informed them about the murder of all the six deceased at about 7/8-00 a. m. As Malla and Gulzar appellants were released by the police after hearing this news, they all had gone to their village. Ali Ahmad caste Bar D. W. 2 has stated that Ahmad appellant had come to him 1-1/2 years ago and had requested him, to accompany, to Chiniot for the release of Malla and Gulzar appellants who were in custody of C. I. A., Chiniot. He has stated that he had accompanied him to Chiniot where they had met Gulzar and Malla appellants in the Office of C. 1. A. Staff, Allah Yar accused and Samand P. W. Bad also met them. According to him a Khoja, in his presence had told Allah Yar about the occurrence of murders of the six deceased, and the Head Constable, after hearing the news had released Malla and Gulzar, whereafter Malla, Gulzar, Allah Yar and Ahmad went to their village, and he boarded a bus for his house. Sikandar D. W. 3 has stated that Zafar appellant and his father Ameer had stayed with him for a night l years earlier as they had gone to sell their mare at Cattle Fair Aminpur where one Shamir came to Zafar and his father in the morning and, informed them that Mst. Roshan and her family had been murdered. All the three defence witnesses have denied that they had made different statements before the police. Muhammad Zakir D. W. 4, Imam Masjid of the village of occurrence has stated that years ago. In the month of Ramzan at Sehriwela, be had gone to the house of Mat. Roshan to fetch Lassi. He saw Mst. Roshan and all her family members murdered. No one was present there. He returned to the mosque and made announcement on the loudspeaker regarding their murders. After morning prayers he again went to the place of occurrence. He did not see any of the accused at the spot, although there were many other people weeping and crying. In cross-examination he has stated that there was no one present in the house of Allah Yar appellant when he went to the house of Mst. Roshan, not even the womenfolk. He has restated that not a soul was present in the house of Allah Yar. He has further stated that he had not seen any of the accused persons at the spot when he went there after the morning prayers and had not noticed any family member although many people had gathered there. He has also stated the fact that the house of Mst. Roshan deceased
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and the of Allah Yar appellant were in the same Ahata and there was no partition wall between the two. 10. The prosecution case rests on the eye-witnesses account furnished by Nur Akbar, P. W. 7 and Zulfiqar, P. W. 8, the evidence of motive, the evidence of recoveries of blood-stained hatchets and blood-stained Chaddars from Haq Nawaz and Zulfiqar appellants, and the medical evidence. We have examined the contentions of learned counsel for the appellants that the eye-witnesses i. e. P. W. 7 and P. W. 8 related inter se, had a checkered history in the sense that they were cballaned many a time in different cases including murders and had after conviction undergone the sentences also, that they did not belong to the place of occurrence and that the reasons stated by them to have been at the place of occurrence do not sound well, and that P. W. 9 Amir at whose instance the case was registered has stated that he had been set up as complainant in this case by the Police and so also the two P. Ws. Were set up as eye-witnesses. There is no denying the fact that the witnesses did not belong to the place of occurrence. The fact of their having been involved in different cases and having also been convicted in some cases, has been admitted by them. Relationship inter se is also admitted. We do not think that their statements can be thrown aside for these reasons. Of course, while assessing evidentiary value of their statements, these facts have to be kept in view, but the important consideration which has always weighed while assessing the evidence of the witnesses has been, whether they are partisan witnesses ? Had they any cause or reason to make false allegations and whether any enmity existed between the witnesses and the accused ? Whether there was any special relationship or interest of the witnesses with deceased of the complainant party ? It is not the case of the defence that in any of the cases in which these witnesses were either challaned or were complainants, the appellants were either witnesses or accused. In fact there is no suggestion, even, that there was any direct enmity between the witnesses and the appellants or of any confrontation having even taken place between the two sides, nothing has been brought out to show that these witnesses had any personal grievance or grouse against the accused. It has been held in a recent pronouncement of the Supreme Court i. e. Ali Hussain and another v. Mukhtar and 2 others that even a stock witness who had appeared in many cases for the prosecution, can be believed if nothing is shown about the witness, having personal grievance or grouse against the accused. The fact of a witness having been involved in some cases or having been convicted in a murder case is no grounds to discard his evidence and it was so held in Shafoo and others v. The State . It has been held in Abdul Hakim and 2 others v. The State that a person of bad character can also be a credible witness. The fact of Amir P. W. 9 having stated that prosecution witnesses had arrived at the place of occurrence after his arrival in the morning, does not carry much weight in view of the fact that he was declared hostile. In fact, in cross-examination by learned Additional Public Prosecutor, suggestions were put to him that he has resiled from his previous statement on a promise of payment of Rs, 50,000 in case a and on an undertaking of transfer F of 3 Acres of land. The suggestion although was denied but seems to carry some weight in view of the fact that P. W. 6 Samand who was examined on a date prior to the date on which the statement of P. W. 9 was recorded, had stated about the fact of the appellants having entered into a bargain with the complainant for resoling from his statement. In this view of the matter, no weight can be given to the statement made by Amir P. W. 9. 12. The argument of learned counsel for the appellants that the witnesses could not have seen from the roof top, even if they were present G there, as according to P. W. 2, the Draftsman, there was a Parda-wall of 3 feet height on the roof of the house of Mst. Roshan, does not advance the case of the defence in any manner, firstly, for the reason that the witness had not shown this Parda-wall in1 2 3
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the plan prepared by him, and secondly, for the reason that there would have been no difficulty for the witnesses to have seen the occurrence over the wall, the height of which was only 3 feet For the reasons enumerated above, we do not feel inclined to agree with the contentions of learned counsel for the appellants that no reliance can be placed on the statements of P. W. 7 and P. W. 8. 12. The contention of learned counsel for the appellants that no reliance can be placed on the statement of Samand P. W. 6 who has deposed regarding the arrest, recoveries of weapons of offence and blood-stained Chaddars of Zulfiqar and Haq Nawaz appellants, has not impressed us. The argument of learned counsel that the witness who had claimed to have been working as a Moharrir in the Bus Stand has actually…
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