' NASIR-UL-MULK, J.--- By judgment and order, dated 12-7-2002 the Additional Sessions Judge, Matta, District Swat, convicted Hamayun and Talimand, sons of Pir Madar, under section 302 read with section 148, P.P.C. To death on five counts for the murder of Alamzeb, Mian Syed Ali, Zore Azim Khan, Muhammad Fahim and Fazle Rahim and on each count sentenced them to death and to pay compensation under section 544-A, Cr.P.C. Of Rs,1,00,000 to the legal heirs of each of the deceased. They were further convicted and sentenced for causing fire-arm injuries to Izatmand, Shakirullah, Nadir Khan, Umar Ali, Shahzada, Saleh Rehman, Shah Nasim, Mian Muhammad Sahib and Sher Bahadar and convicted and sentenced each of the convicts as follows:-- ' under sections 307/149, P.P.C. And sentenced to 10 years' R.I. Each with fine of Rs,20,000 or in default to suffer further imprisonment for one year each. Under sections 148/149, P.P.C. And sentenced to 3 years' R.I. And further to pay Rs,50,000 each to the injured victims, namely, Shah Nasim, Umar Ali while Rs,1,00,000 as compensation to, the legal heirs of Mian Muhammad Sahib, who had by then expired.
' There of the co-accused, Hassan Dar, Abdul Qayum, also sons of Pir Madar, and Sameeullah, son of Hassan Dar, did not face trial as they remained absconders. On appeal by the two convicts the Peshawar High Court on 14-1-2003 set aside the conviction and sentences of the two convicts and ordered their acquittal. The State has now filed this petition for leave to appeal against the judgment of the High Court. The incident took place on 30-11-1991. Hamayun was arrested on 27-2- 1998 and Talimand on 16-4-1998.
2. The report of the crime was made by Izatmand, son of one of the deceased, Alamzeb, alleging that on the eventful day he was proceeding along with his father, Alamzeb, cousins Shakirullah and Nadir Khan in a Pick-up from Matta to appear in a Court at Gulkada, Mingora. That there were other passengers in the Pick-up as well and when they reached near a village called Shakar Dara, Hamyun and Talimand, Hassan Dar, Abdul Qayum and Samiullah ambushed the Pickup from the hill side and as a result of the indiscriminate firing the complainant's father Alamzeb, and four other unconcerned passengers, Syed Ali, Zore Azeem, Muhammad Fahim and Fazal Rahim were hit and killed whereas he, the complainant, Nadir Khan and six other passengers, including the driver of the Pick-up, received bullet injuries. Motive for the offence was stated to be old blood feud between complainant and accused parties. All the five accused absconded after the incident. Two of them, Hamayun and Talimand, were arrested more than six years later in the year 1998 on different dates whereas the other three accused remained at large.
3. The prosecution evidence was founded on the ocular testimony of the three injured eye- witnesses, the complainant Izatmand (P.W.2), Nadir Khan (P.W.3), and Shakirullah (P.W.4), and further support was sought from the medical evidence, motive for the crime, long abscondence of the accused and matching of the crime-empties retrieved from the spot with the kalashnikov recovered from Talimand at the time of his arrest. The Division Bench of the High Court did not believe the eye-witnesses on the ground that the three injured eye-witnesses produced at the trial were related to the deceased. That the identification of the accused by the eye-witnesses was doubtful in that prosecution's own story was that the firing took place from the hill. That in view of the number of injuries sustained by the victims the assault could have been launched by one or two persons and thus, the number of accused by the complainant was exaggerated. The abscondence of the convicts was considered to be of no significance when the ocular testimony was disbelieved and the motive, it was held, was a double-edged weapon and could be the cause for false charge. It was on account of this view of the evidence taken by the Division Bench of the High Court that the convicts were granted benefit of doubt and acquitted of all the charges.
4. We heard Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the petitioner (State) and Raja Abdul Ghafoor, Advocate Supreme Court for the accused-respondents, Hamayun and Talimand. The learned counsel for the petitioner submitted that the prosecution had proved its case by producing three injured eye-witnesses whose presence at the spot stands established beyond doubt. That the High Court had erred in disbelieving the ocular testimony on mere conjunctures and that the accused were well-known to the complainant and the eye-witnesses, being co-villagers, and it being a daylight occurrence, there was no question of misidentification.
He next pointed out that the motive stands proved, as the same has not been questioned and also not disbelieved by the High Court. That the learned Judge in the High Court had against the established principle of criminal justice given no weight to the unexplained long abscondence of the accused.
5. Raja Abdul Ghafoor, learned Advocate Supreme Court representing the accused respondents submitted that the judgment of the High Court resulting in the acquittal of the accused does not call for interference as the conclusions were drawn after comprehensive evaluation of the prosecution evidence. The learned counsel as a matter of fact urged before us the grounds that prevailed with the High Court in granting benefit of doubt to the accused. During the course of arguments the learned counsel also pointed out that the parties have entered into a compromise and that is why the petition filed by the complainant in this Court against the same impugned judgment was withdrawn.
6. Before discussing the merit of the case we would attend to the plea of compromise taken up on behalf of the respondents. The learned counsel produced an uncertified copy of order of this Court in a petition filed by the complainant withdrawing the same. The State is as much, if not more, a necessary party to a criminal litigation as a complainant. Withdrawal by the complainant of his petition would in no way render the present petition by the State infructuous or umnaintainable. It is the State, which is primarily responsible for the prosecution of the accused in criminal case. No formal compromise was produced by the learned counsel of the respondents with the legal heirs of the five deceased and the injured. The withdrawal of the petition by the complainant would in no way establish the factum of compromise.
7. The accused, five in number, waylaid their blood feud enemies Alamzeb, Izatmand, Shakirullah and Nadir Khan, who were travelling in a Pick-up, along with other passengers, on their way to appear in some Court proceedings. It was 9-00 O'Clock in the morning of the last day of November, when litigants generally do proceed to the Court. By the indiscriminate firing not only the four persons targeted received fire-arm injuries but nine other passengers, including the driver, were also injured, five of them lost their lives including one from the complainant's side. Alamzeb. Three of the injured, the complainant, Shakirullah and Nadir Khan were produced at the trial to testify for the prosecution. The venue of the incident mentioned by the prosecution is not open to doubt as blood was recovered from inside the Pick-up, which also carried bullets holes. Empties were recovered from the spot from where the accused are alleged to have fired. The presence of the injured eye-witnesses in the Pick-up also stands established by the fire-arm injuries received by them and their medical examination soon after the incident. The first information report was lodged within 1-1/2 hours of the incident at 10-30 a.m. By the injured Izatmand at the Emergency Ward of Saidu Sharif Hospital, located at a distance of about 10 kilometers from the scene of occurrence. Since the incident took place within the limits of Police Station Matta, the report was reduced into writing by the S.H.O. Of Police Station Matta, who had reached the hospital after learning of the occurrence. Viewed in these circumstances the first information report was lodged promptly, ruling out consultations and deliberations.
8. The main reason given by the High Court for disbelieving the ocular testimony was the doubt entertained by the learned Judges of identification by the eye-witnesses of the accused firing from a hillock and that the assault was possibly lodged by one or two persons. The site plan however, shows that the hillock is very near the road, two of the points from where the accused had fired, Nos.4 and 5, are only 14 and 16 paces away from the point where the Pick-up was hit. Only one of the point No,6, is at a distance of 105 paces from the Pick-up. The observation of the High Court that the accused must have concealed themselves behind the boulders in the hillock at the time of firing is not borne from evidence. It was never the case of prosecution that the accused had fired from behind the boulders, who had only stated that the firing by the accused was from the hillock.
The circumstances also do not suggest that the accused were not visible at the time of firing. They were waiting for the Pick-up and obviously would have placed themselves in a position where they could spot the vehicle, and would have become visible from the road. Furthermore, since the target were persons travelling in a vehicle and, not confronting the accused face to face, there was no reasons why the accused should have concealed themselves for self-protection. Even if it is assumed that they may have fired from behind the boulders they had to emerge there from at the time of firing and thus, become visible from the Pick-up. The accused were otherwise known to the complainant party as according to the evidence admittedly they belonged to the same village. It was a daylight occurrence. The distance shown in the site plan between the eyewitnesses and the accused ranged between 14 to 105 paces. The identification of the accused by the eye-witnesses is therefore, not open to doubt. The Investigating Officer had collected empties from three different points, which negates the observation made by the High Court that the attack may have been launched by 1 or 2 persons. The High Court had strangely observed that the medical evidence regarding number of injuries sustained by the victims is not consistent with the ocular testimony of firing by five accused. The learned Judges have lost sight of the fact that as many as thirteen persons received fire-arm injuries, and some of them multiple. Furthermore since the Pick-up was moving at the time it was fired upon it is understandable that many of the fire shots must have gone amiss. We have also noted that a total number of thirty empties of different bores were retrieved from the spot.
9. The High Court, nor the learned counsel appearing for the respondents had otherwise pointed out any inconsistencies between the testimony of the eye-witnesses inter se or contradiction between the different pieces of evidence, notwithstanding that the statements of the eye- witnesses were recorded nine years alter the incident. The motive for the occurrence of previous blood feud has not been disbelieved by the High Court but rather treating it a corroborative piece of evidence, discarded the same on the ground that it could also motivate false implication.
However, we do not find any evidence supporting this finding of the High Court. The accused remained at large for more than six years and they have not been able to explain satisfactorily their abscondence but merely stated in their statements recorded under section 342, Cr.P.C. That they were in the country working in different places. This unexplained long abscondence was another incriminating piece of evidence the High Court wrongly discarded it as of no significance.
10. The foregoing discussion of the evidence shows that the prosecution confidence-inspiring ocular testimony of three injured eyewitnesses is corroborated by the medical evidence, motive and abscondence of the accused. Though this Court is slow in reversing orders of acquittal but interference is required when the reasons for acquittal are fanciful, not borne from the evidence on record. We have found that in the present case the High Court reasons for acquitting the accused- respondents were based on conjectures, unsupported by the evidence. There was no justification for the High Court to reverse the judgment of the trial Court, convicting and sentencing the accused-respondents. We, therefore, convert this petition into appeal and allow the same by setting aside the judgment and order of the High Court, thereby restoring the convictions and sentences of the accused respondents recorded by the trial Court. Above are the reasons for the short order, dated 11-4-2007.