SHAH ABDUL RASHID, J.-On charges under sections 148, 302 and 307 read with section 149 of the Pakistan Penal code, the Additional Sessions Judge, Peshawar tried together eight persons residents of village Powaka, within the jurisdiction of Police Station Tehkal, in Tehsil and District Peshawar. They are :-
(i) Haji Mir Aftab (70) son of Muhammad Anwar Khan.
(ii) Musam Khan (68) son of Dilawar.
(iii) Ism" (50) son of Haji Ibrahim.
(iv) Bakhtiar (24/25) son of Haji Mir Siab.
(v) Muhammad Usman (32) son of Haji Mir Aftab.
(vi) Shah Mehmood (20) son of Haji Mir Aftab.
(vii) Zubair Khan (17/18) son of Ismail.
(viii) Iqbal Khan (25) son of Musam Khan.
The allegations against the accused were that they, on the 29th day of August, 1.976, at 20-30 hours when members of unlawful assembly, armed with deadly weapons, committed the offence of rioting and further, in the prosecu--petition of the common object of the said unlawful assembly, murdered their co-- villagers Jehanzeb and Ghulsm Rafiq, and also caused grievous hurts with fire-arms to Ghulam Sarwar (now dead). Illauddin P. W. 15 and Ghulam Haider P. W.
14. Under such circumstances that if by their act the deaths of these victims had been caused they would have been guilty of murder,
2. The trial Judge, by his judgment dated 21-11-1978, acquitted the last named three accused persons, while the first named five were convicted and sentenced as under :-
(a) Haji Mir Aftab was convicted under section 302, P. P. C. For committing the murder of Ghulam Rafiq and sentenced to undergo R. I. For life and also to pay a fine of Rs. 3,000, in default of which he was to undergo S. 1. For one year.
(b) Musam Khan accused was convicted under section 302 read with section 34, P. P. C. For committing, in furtherance of his common intention with Ismail accused, the murder of Jebanzeb, and sentenced to undergo R. I. For life and also to pay a fine of Rs. 3,000 or in default to undergo S.1.
For one year. He was also convicted under section 326, P. P. C. For causing grievous hurt with fire- arm to Ghulam Sarwar and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000 or in default to undergo S. 1. For three months. The sentences of imprisonment were to run concurrently.
(c) Ismail accused was convicted under section 302 read with section 34, P. P. C. For committing, in furtherance of his common intention with Musam Khan accused the murder of Jehanzeb and sentenced to undergo R.
1. For life and also to pay a fine of Rs. 3,000 or in default to undergo S. I. For one year.
(d) Bakhtiar accused was convicted under section 326, P. P. C. For the intentional causing of grievous hurt to Illauddin and sentenced to undergo five years' R.
1. And to pay a fine of Rs. 1,000 or in default to undergo S. I. For three months.
(e) Muhammad Usman accused was convicted under section 326, P. P. C. For the intentional causing of grievous hurt to Ghulam Haider and sentenced to undergo five years' R. I. And to pay a fine of Rs. 1,000 or in default to undergo S. I. For three months.
The learned trial Judge also directed that the fine, if realized shall be distributed among the heirs of Ghulam Rafiq and Jeharizeb deceased to the extent of one half share and the injured persons to the extent of other half as compensation under section 544-A, Cr. P. C.
3. Appeal No. 299 of 1978 has been filed on behalf of the convicted persons challenging their convictions and sentences. Cr. R. No. 159 of 1978 has been filed by Ghulam Siddique P. W. 12 who prays that the sentences of life imprisonments imposed on Mir Aftab, Musam Khan and Ismail accused be enhanced to those of deaths and the sentences awarded to the other two convicts, namely, Bakhtiar and Usman accused may also be enhanced adequately. In Cr. A. No. 129 of 1979, filed by the State under sec--petition 417, Cr. P. C. The acquittal of the three accused persons of all the charges, acquittal of the five convicted persons of charges under sections 148 and 307 read with section 149, P. P. C. And acquittal of Bakhtiar and Muhammad Usman of charges under section 302 read with section 149, P. P. C. Have been challenged and it has been prayed that all the eight accused persons be convicted under section 148, 302/307 read with section 149, P. P. C. And awarded appropriate sentences accordingly. The State has also filed Cr. R. No. 53 of 1979 for the enhancement of the sentences of three of convicted accused, who have been found guilty of murder, from imprisonment for life to that of death. This order shall dispose of all these matters.
4. It is alleged that on the night of occurrence Fazal Hussain Khan P. W. 17 who was then posted as Station House Officer of University Town Police Station was on blockade duty on Jamrud Road alongwith the Police party when he received information from Police Station Tehkal that there was some firing in village Powaka. He, along with the police party, went to the village mosque which is the place of occurrence and found that the firing had already stopped. Ghulam Siddique P. W. 12 was present in the mosque where the dead bodies of Jehanzeb and Ghulam Rafiq were lying. The said Ghulam Siddique P. W. 12 narrated the facts of the case to Fazal Hussain Khan, S. H. O., P. W. 17 and these facts form the prosecution story which is recorded in Exh. P. A/1. This, when translated into English, would read as follows :- "I along with my brother Ghulam Rafiq, my other collateral, Haji Mir Aftab (accused) and Ismail (accused) residents of our village used to offer our prayer in the same joint mosque in Kundi Umar Zai. On the night between 27th and 28th August, 1976 when we collected in the mosque to offer khufiin prayer and tarawih Mir Aftab (accused and his cousin Ismail (accused) had also gathered in the mosque for offering the prayer. For Khatm-e-Qur'an they had brought one Maloom Jan alias Hafizji of Bajoor. The said Hafiz had remained our imam a year before but he was removed from imamat due to differences. For this reason my cousin Ghulam Haider Khan (P. W. 14) objected saying that Hafiz Maloom Jan would not perform Khatm-e-Qur'an in the holy month of Ramzan. Mir Aftab (accused) etc. Insisted that the said Hafiz would perform the Khatm-e-Qur'an in the holy month of Ramzan. At this our two parties had altercation. Our party offered the tarawih prayer behind our present Imam Adam Khan (C. W. 1) and thereafter Mir Aftab etc. Offered their tarawih prayer behind Hafiz Maloom Jan. On the next day Maloom Jan left the village. Today before the Khuftin prayer Abdul Majeed (C. W. 2) son of Samundar Khan of our village came to my house and persuaded us and brought me alongwith my brother Ghulam Rafiq (deceased) and my cousins Ghulam Haider (P. W. 14) and Ghulam Sarwar (now dead) to the mosque. Outside the mosque Zubair, Iqbal Shah and Shah Mehmood were standing armed with rifles. When we reached the mosque Mir Aftab and Musam Khan (accused) aimed their tamachas at Ghulam Rafiq (deceased) and Ghulam Sarwar (now dead) who were already in the mosque and caught hold of their hands and told them to get out of the mosque. Basides Usman, Ismail and Bakhtiar (accused) armed with tamachaswere present in the mosque at this there was altercation between them. Mir Aftab (accused) fired at Ghularn Rafiq (deceased) and Musam Khan (accused) fired at Jehanzeb (deceased). Both the victims were bit and died on the spot. After this Musam Khan (accused) fired with his tamacha at Ghulam Sarwar (now dead). Usman (accused)fired at Illauddin (P. W. 15) and Bakhtiar (accused) fired at Ghulam Haider (P. W. 14) with their respective tamachas. Ghulam Sarwar (now dead), Illauddin (P. W. 15) and Ghularn Haider (P. W. 14) were sent to the Lady Reading Hospital in injured conditions. At the time of occurrence the electric bulbs were on in the mosque.
To help the accused, Zubair, Iqbal and Shah Mebmood (accused) were indiscriminately firing with their rifles. At the place of occurrence, besides other persons, Musharif son of Noor-ul-Basar, Tila Muhammad (C. W. 2) son of Ghulam Muhammad and Zain-ul-Abidin (P. W. 16) son of Muhammad Rihan of our village were present and they saw the occurrence with their own eyes. I complain against the accused for murdering Ghulam Rafiq and Jehanzeb and for injuring Ghulam Sarwar (now dead), Ghulam Haider (P. W. 14) and Illauddin (P. W. 15). [Parenthesis are supplied].
5. For the facility of reference the first named five persons in para. No. I shall hereinafter as a group be referred to as the convicts and the last three as the acquitted accused. The convicts and the acquitted accused together shall be referred to as the accused party while the deceased, the injured persons and the persons who appeared as eye-witnesses for them shall be referred to as the complainant party.
6. The prosecution case is that after recording the report P. A/I the S. H. O. Fazal Hussain Khan (P. W.
17) sent it to the Police Station Tehkal where it was formally incorporated as First Information Report Exh. P. A. And a case was registered. Fazal Hussain Khan P. W. 17 prepared the injury statements of the two dead bodies and also held inquests thereon. The dead body of Ghulam Rafiq under the escort of F. C. Mashal Khan P. W. 3 and the dead body of Jehanzeb under the escort of F. C. Taza Gul P. W. 2 were sent to the mortuary. The S. H. O. Then commenced the investigation of the case by inspecting the spot. He took into possession two parts of the blood-stained earth from the places where the dead bodies were lying and made them into separate sealed parcels. He recovered from the spot four empties of .32 bore Exh. P.
1. These two were made into the sealed parcel under memo. Exh. P. C/2. Six pieces of spent bullets Exh. P. 2 were taken into possession from the spot and made into sealed parcel under memo. Exh. P. C/3. A coin of eight annas having bullet mark on it too was taken into possession and memo. Exh. P. C/4 was prepared. From different places, outside the mosque, the 1. O. Recovered twelve empties of '303 bore Exh. P.
4. They were also sealed in a parcel under memo. Exh. P. C/5. An empty charger Exh. P. 5, was recovered from the shot and seized under memo Exh. P. C/6. Two bulbs of 100 Watts in working condition were taken from the spot vide memo. Exh. P. C/7. Thereafter on the same night Ghulam Sarwar (now dead) came to the mosque and produced pistol No. 941434 of .32 bore Exh. P. 7 which he claimed to have :snatched from the possession of Musam Khan convict. This was taken into possession under memo. Exh. P. C/8. The said Ghulam Sarwar also handed over to the I. O. His clothes which had stains of blood. These too were taken into possession. The statement of Ghulam Sarwar was recorded by the I. O. And on the same night he examined Zain-ul-Abidin P. W. 16.
7. The site plan Exh. P. B. Was prepared on the following day at the instance of Ghulam Siddique P.
W. 12 and Zainul Abidin P. W.
16. This site plan indicates the different points relevant to the case. The clothes of the two deceased persons were also brought to the 1. O. And they were taken into possession. A sealed parcel containing bullet Exh. P. 22 recovered from the dead body of Jehanzeb deceased was produced to the 1. O. By F. C. Taza Gul P. W. 2 and this was taken into possession under memo. Exh. P. D/2. The I. O. Took into possession a pistol of .32 bore bearing No. 83879 which had been recovered earlier by S. I. Sher A.I P. W. 6 from the house search of Ismail convict. The house of Mir Aftab convict was searched by S. I. Sher A.I P. W. 6 and the said convict produced before: him a shot-gun Exhs. P. 12, rifle P. 16 and some cartridges. Mir Aftab convict Usman, Shah Mehmood and Zubair, the acquitted accused, were arrested by S. I. Sher A.I P. W.
6. In due course the fire-arms and empties were sent to the Firearm Expert whose report is Exh. P. J. The blood- stained articles were sent to the Chemical Examiner and his report is Exh. P. K. When the investigation was completed the eight accused were challaned by Fazal Dad P. W. 7, who was S. H.
O. Of Tehkal Police Station, to the Court of the Additional Sessions Judge, where they were tried, convicted and sentenced as already stated.
8. It is not denied, and in fact it is established from the medical testimony and the evidence of the I.
O. That on the night of occurrence there was firing in the mosque as a result of which two persons died and three were inured with fire-arms. The autopsy on the dead body of Jehanzeb deceased was performed at 7-30 a.m. On 30-8-1976 by Dr. Pervaiz Akbar Khan P. W.
10. On the same day earlier at 7-00 a.m. He performed the autopsy on the dead body of Ghulam Rafiq deceased.
Jehanzeb, according to the opinion of the doctor, was 45-50 years old at the time of his death. He had a fire-arm entry wound on the front of chin which was ----- x ----- in size. The internal examination disclosed injuries to third survival vertebrae, survival part of spinal cord, right internal carotid artery, pharynx, oesophagus and facial and neck muscles. Stomach contained semi- digested food. In the opinion of the doctor the death was caused due to fire-arm, injury to survival part of the spinal cord and to right internal carotid artery. The doctor also recovered a bullet from the dead body.
9. The dead body of Ghulam Rafiq deceased had a fire-arm entry would on the right cheek ----- x -----' in size and a fire-arm exit wound on the back of skull 1' x ----- in size. The internal examination disclosed that scalp, base of skull, membrane, brain and cheek muscles were injured.
Stomach contained semi-digested food. The doctor opined that the death was caused due to fire- arm injury to the brain, resulting in shock.
10. The three injured persons, namely, Ghulam Sarwar, who sub--sequently died in some other incident, Illauddin P. W. 15, and Ghulam Haider P. W. 14 were medically examined by Dr. Qamar Nazeer. This doctor was not available at the trial and the evidence was led to the effect that he had gone abroad and there was no likelihood of his return in the near future. The record of the medico legal examination performed by him was, however proved by Dr. Parvaiz Akbar P. W. 10 himself who was fully conversant with the handwriting of the absentee doctor. The reports of the medical examination of Ghulam Sarwar (now dead), Ghulam Haider P. W. 14 and Illauddin P. W. 15 which are Exhs. P. G-1 and P. G-2 respectively are as under :- Ghulam Sarwar : "A fire-arm entrance wound ICM x 1CM on the right side of shoulder with charring around, and with corresponding charring marks on the cloths.
An exit wound 1----- to the left side of entrance wound in horizontal position ----- x ----- in size with a grazed wound on the left side.
X-Ray :Chest taken.
Duration :Within six hours.
Weapon :Fire-arm.
Result :Later on.
Ghulam Haider An entrance wound ----- x ----- on the outer aspect of right thigh at junction of middle and lower third. No charring present.
An exit wound 3' x 3' on the inner aspect of right thigh at junction of middle and lower third.
X-Ray (R) :Thigh taken.
Duration :Within six hours.
Weapon :Fire-arms.
Result :Later on.
Illauddin An extensive F. A. Grazed wound 5` x 4" x muscle-deep on the back of left elbow.
X-Ray Circle (L) :Elbow taken.
Duration :Within six hours.
Weapon :Fire-arm.
Result :Later on."
The above medical reports are sufficient to establish that the two persons died as a result of violence and three persons were injured by firearms.
11. The only question to be determined is as to who were responsible for causing the deaths and injuries and under what circumstances. Before we examine the evidence led in this behalf it appears desirable to give the relationship of the members of the accused and the members of the complainant party inter se and with one another as they are inter-related. Muhammad Usman convict and Shah Mehmood, the acquitted accused, are brothers. They are sons of Haji Mir Aftab convict. Bakhtiar convict is the son of Mir Siab, a brother of Haji Mir Aftab convict. Musam Khan and Ismail convicts are cousins of Haji Mir Aftab convict. Zubair Khan, the acquitted accused, is the son of Ismail convict while lqba1 Khan, the other acquitted accused, is the son of Musam Khan convict.
12. Ghulam Rafiq deceased was the brother of Ghulam Siddique P. W. 12 and Jehanzeb deceased was the son of his paternal aunt. Ghulam Sarwar who was injured in the occurrence but subsequently died in another incident is the brother of Ghulam Haider P. W. 14 and I1lauddin P. W. 15.
Zainul Abidin P. W. 16 is the son of Muhammad Aman who was the brother of Muhammad Rihan Khan and father of Ghulam Sarwar, Ghulam Haider P. W. 14 and Illauddin P. W.
15. The sister of Ghulam Sarwar is the wife of Ghulam Siddique P. W.
12. Likewise the sister of Ghulam Siddique P. W.
12 was married to Ghulam Sarwar. Tila Muhammad who was originally cited as a prosecution witness but was examined by the Court as C. W. 3 is the son of the paternal aunt of Ghulam Siddique P. W. 1?. The daughter of Ghulam Siddique's sister is also married to Tila Muhammad C. W.
3. Tila Muhammad C. W. 3 and Jehanzeb deceased were brothers.
13. The members of the accused party and the deceased party are inter-related also. The wife of Haji Mir Aftab convict is the daughter of a brother of Ghulam Siddique P. W.
12. Ghulam Sarwar (now dead), Ghulam Haider P. W. 14, Illauddin P. W. 15 and Zainul Abidin P. W. 16 are the sons of the sister of Haji Mir Aftab convict. The daughter of the sister of Ghulam Haider P. W. 14 is married to one lbrar who is the brother of Jehanzeb deceased. Sister of Ismail convict is the wife of one Ajmal who is the son of a sister of Ghulam Sarwar, Ghulam Haider P. W. 14, etc. The daughter of the sister of Mir Attab is married to Chashti Muhammad Azam and this Muhammad Azam is the brother of Muhammad Ajmal Khan to whom the sister of Ismail convict is married. Ismail convict had a maternal uncle whose daughter was married to Ghulam Siddique P. W.
12. Again, the daughter of the maternal uncle of Ismail convict is married to Ghulam Haider P. W. 14.
14. From the above narration it would appear that all the accused are inter-related and similarly the members of the complainant party are inter-related. The members of the complainant party and the accused party are also related with each other closely through marriages.
15. To establish the guilt of the accused, reliance had been placed on the testimony of Ghulam Siddique P. W. 12, Ghulam Haider P. W. 14 and Illauddin P. W.
15. Zainul Abidin P. W. 16 who is also an eye-witness was examined at the trial but neither the prosecutor nor the defence counsel examined him with regard to the occurrence as it was considered unnecessary, his evidence being the same which had been given by the other witnesses. Corroboration was sought from the medical evidence, the recovery of four empties from the spot out of which two were matching with the pistol alleged to have been snatched by Ghulam Sarwar (now dead) from Musam Khan convict and the alleged abscondence of Musam Khan, Ismail. And Bakhtiar convicts and of Muhammad Iqbal the acquitted accused after the occurrence. All the accused had pleaded not guilty and had stated that they had been involved in the case on account of civil litigation which was pending between the parties. The convicts, against whom abscondence was alleged, stated that they did not abscond but had approached the Court to obtain bail before arrest but when that was not allowed they voluntarily surrendered to the Police.
16. Ghulam Sarwar, one of the persons injured on the night of occur--rence, could no be produced at the trial as he, as already stated, had died in another incident after the occurrence. The first eye- witness relied upon by the prosecution is Ghulam Siddique P. W. 12 who had lodged the report to S. H. O. Fazal Hussain Khan P. W. 17 in the mosque on the night of occurrence. At the trial, he first gave the relationship of the accused party and the deceased party inter se and of the two parties with each other. He then stated that both the parties lived in the same kundi of village Powaka and there was no previous enmity between them. According to him in the month of Ramzan, 1976, both the parties had to perform tarawih prayer in the common mosque where the occurrence is alleged to have taken place. On the first night of Ramzan he, alongwith others, went to the mosque and was preparing to offer tarawih prayer. According to him Haji Mir Aftab and other members of the accused party were present in the mosque and they had brought an Imam named Hafiz Maloom Jan of Bajoor for Khatm-e-Qur'an. This Imam had come in the previous Ramzan also but Ghulam Haider P. W. 14 had refused to offer prayer behind him. Ghulam Haider P. W. 14 objected to the leading of prayer by Hafiz Maloom Jan because he and other members of the complainant party were in favour of the existing posh imam named Adam Khan C. W. 1 and they desired that he should lead the congregation and also recite the holy Qur'an. This difference led to an altercation between the complainant party and Haji Mir Aftab and other accused on the first night but it was then settled that the members of the complainant party should first offer their prayer behind Adam Khan C. W. 1, the existing Imam and thereafter the accused party should hold a separate congregation behind Hafiz Maloom Jan. This was done and no untoward incident took place on the first night of tarawih. On the following day Abdul Majeed, who had been examined by the trial Judge as C. W. 2, according to the witness, came to his house where Ghulam Haider P. W. 14, Ghulam Sarwar (now dead) and Ghulam Rafiq deceased were also present and informed them that the matter had been settled with Haji Mir Aftab convict. Abdul Majeed C. W. 2 also informed the witness that Hafiz Maloom Jan had left the village and that he had been assured by the accused party that Adam Khan Imam C. W. 1 would lead the congregation. The witness goes on to say that Ghulam Rafiq deceased, Ghulam Haider P. W. 14, Ghulam Sarwar (now dead) and Illauddin P. W. 15 left the hujra for the mosque. When they reached outside the mosque they found that Shah Mehmood, Iqbal and Zubair, the acquitted accused, were standing there with topaks. The witness, however, entered the mosque along with his companions Ghulam Hafiz deceased Ghulam Haider P. W. 14, Ghulam Sarwar and Illauddin P. W.
15. Jehanzeb deceased was already present in the mosque. The witness and his companions entered the hall of the mosque and there they found Mir Aftab. Musam Khan and Ismail convicts sitting in the front row. They were armed with tamachas. In the second row were Usmam and Bakhtiar convicts who too were carrying tamachas. The witness sat in the second row. Ghulam Haider P. W. 14 Ghulam Rafiq deceased and Ghulam Sarwar were sitting in the first row. According to the witness Mir Aftab and Musam Khan convicts asked Ghulam Rafiq deceased and Ghulam Sarwar to leave the mosque. At this Ghulam Rafiq deceased stood up and inquired from Mir Aftab convict as to why they should leave the mosque. At this Mir Aftab stepped back and fired at Ghulam Rafiq deceased who was hit on his face and dropped on the ground After this Musam Khan and Ismail convicts fired at Jehanzeb deceased with their tamachas. He too fell down on the ground. Musam Khan brought out a tamacha but Ghulam Sarwar tried to snatch it from him. Ghulam Sarwar was also injured and fell on the ground but he succeeded in snatching the tamachas. In the meantime Bakhtiar convict fired at Ghulam Haider P.
W. 14 and injured him. Usman convict fired at Illauddin P. W. 15 who too got injured and tell on the ground. Other villagers were present in the mosque and they saw the occurrence. The acquitted accused, namely, Shah Mehmood Iqbal and Zubair started firing to scare away the villagers from the courtyard of the mosque. The witness saw that Ghulam Rafiq and Jehanzeb had died. Illauddin P. W. 15 managed to run out and though the acquitted accused fired at him, he did not suffer any injury from their hands. Ghulam Haider P. W. 14 and Ghulam Sarwar (now dead) remained in the mosque in injured condition.
17. The second eye-witness is Ghulam Haider P. W. 14 who himself also had sustained injuries on the night of occurrence. He stated that in the Ramzan preceding the Ramzan of 1976 he did not like to offer prayer behind Hafiz Maloom Jan to whom Mir Aftab convict had brought from Bajore to the village. According to him on the first night of Ramzan he and his relations went to the mosque and found Hafiz Maloom Jan present these alongwith Haji Mir Aftab convict and his relatives. The witness objected to the leading of prayer by Hafiz Maloom Jan and to his recitation of the holy Qur'an on which a slight altercation took place with the accused party. However, it was then settled that the complainant party should offer tarawih behind their existing pesh imam Adam Khan C. W.
1. They did so and then left the mosque after which the accused party offered their prayer behind Hafiz Matoon Jan. On the next day, according to the witness, Abdul Majeed C. W. 2 summoned him to the house of Ghulam Siddique P. W. 12 where Ghulam Sarwar (now dead), Ghulam Rafiq deceased and Illauddin P. W. 15 had also gathered. Abdul Majeed C. W. 2 satisfied the complainant party that Haji Mir Aftab convict had agreed to the offering of tarawih in the mosque which would be led by pesh imam Adam Khan C. W.
1. On this assurance, on the night of occurrence, at Khuftin time the witness alongwith Ghulam Siddique P. W. 12, Ghulam Sarwar (now dead), Illauddin P. W. 15 and Ghulam Rafiq deceased started for the mosque. When the entered the mosque they found Shah Mehmood, Zubair and Iqbal Khan they acquitted accused, standing armed with topaks. The witness stated that he and his companions passed by them and entered the hall of the mosque where Mir Aftab, Ismail, Musam Khan, Bakhtiar and Muhammad Usman convicts were present.
Zainul Abidin P. W. 16 and Jehanzeb deceased along with the complainant party were also present therewith other twenty persons of the village. According to this witness Mir Aftab, Musam Khan and Ismail convicts were sitting in the first row. The witness, Ghulam Sarwar (now dead), Ghulam Siddique P. W. 12 and Ghulam Rafiq deceased also occupied a place in the first row and were about to sit. In the second 'row Bakbtiar and Usman convicts and Jehanzeb deceased were sitting. Zainul Abidin P. W. 16 was also sitting in the second row. When the witness and the persons who had accompanied him to the mosque were about to sit, Mir Aftab, Musam Khan and Ismail accused approached them and directed them to leave the mosque. Mir Aftab convict took out a tamacha from under his chadar ,and fired one shot at Ghulam Rafiq deceased from a distance of about three paces. The victim was hit and fell down on the ground. Ismail accused and Musam Khan accused, who too were armed with tamachas fired at Jehanzeb who was hit and fell down on the ground. Ghulam Sarwar (now dead) was at that time close to Musam Khan accused and he tried to snatch the tamacha from him. While this was going on Musam Khan accused fired at Ghulam Sarwar (now dead) and injured him but he (Ghulam Sarwar) in the meanwhile, succeeded in snatching the tamacha from the possession of Musam Khan. The witness further slates that Bakhtiar convict fired one shot at him and he was injured at the thigh. Usman convict fired a shot at Illauddin P. W. 15 with his tamacha. Illauddin was injured but he ran away from the mosque. The acquitted accused, according to this witness, might have fired from outside in order to scare away the people. He says that he heard the report of firing from outside the mosque. The witness adds that thereafter all the accused persons ran away from the mosque and at about 10/15 minutes thereafter he was taken to the Lady Reading Hospital, Peshawar for treatment. He denied the existence of any enmity or dispute with the accused party except that relating to Imam Maloom Jan.
18. The next witness is Illauddin P. W, 15 who too sustained injuries on the night of occurrence. He stated at the trial that after intervention of Abdul Majeed C. W. 2, be alongwith Ghulam Haider P. W.
14, Ghulam Sarwar (now dead), Ghulam Rafiq (deceased) and Ghulam Siddique P. W. 12 left the house of Ghulam Siddique P. W. 12 for the mosque. When they entered the courtyard, they saw the three acquitted accused present by the side of talab (tank) armed with rifles. The witness and his companions passed by them and entered the hall of the mosque where they saw Haji Mir Aftab, Ismail and Musam Khan convicts occupying seats in the first row and Bakhtiar and Usman convicts sitting in the second rpm. According to the witness, Zainul Abidin P. W . 16, and Jehanzeb deceased of the complainant party were already present in the mosque and were occupying seats in the first row. He says that some eighty other persons had also gathered in the mosque. According to him Ghulam Siddique P. W. 12 and Ghulam Rafiq deceased were occupying the first row whip Ghulam Sarwar (now dead), Ghulam Haider P. W. 14 and the witness himself remained in the second row.
The witness goes on to say that Musam Khan convict directed him and his companions to leave the mosque. Thereafter Mir Aftab convict went towards Ghulam Rafiq deceased fired at him.
Ghulam Rafiq fell down on the ground. Ismail and Musam Khan accused fired one shot each at Jehanzeb deceased who too fell down on the ground. Musam Khan then aimed at Ghulam Sarwar (now dead) but he (Ghulam Sarwar) tried to snatch away the tamacha from him during which process he was injured with the shot fired by Musam Khan convict, Ghulam Sarwar (now dead), however, succeeded in' snatching away the tamacha from Musam Khan accused. TLe witness says that Bakhtiar convict fired at Ghulam Haider P. W.-14 who got injured. Usman convict who was also carrying a tamacha fired a shot which hit the witness himself on the left arm. The witness says that thereafter he ran away towards his hujra but while he was running away the three acquitted accused, who were standing in the courtyard of the mosque, started firing at him but he escaped: The witness being in pain was carried by the villagers to the Lady Reading Hospital, Peshawar in a car where he was admitted. He, however, could not say as to who were the persons who carried him to the hospital.
19. The last eye-witness produced by the prosecution is Zain-ul-Abidin P. W.
16. At the trial, however, this witness did not say anything about the occurrence but his evidence was directed entirely toward.; the different recoveries made during the investigation. A note of the trial Judge shows that the prosecution counsel and counsel for the accused party had agreed not to examine or cross- examine the witness about the actual occurrence as he was closely related to the complainant party and his statement, if recorded, would be mere repetition of what the other witnesses had said. Although the procedure adopted by the learned trial Judge on the suggestion of counsel for the parties is not proper and should have been avoided, the learned counsel appearing for the parties have admitted that failure of justice and that they have no objection to the procedure though they do admit that the procedure adopted was not proper and the learned trial Judge should have himself examined the witness on the- facts of the case when counsel for the parties had refused to do so.
20. Before discussing the merits of the ocular evidence we may point that the learned trial Judge had examined three persons as Court witnesses who had been given up by the prosecution. Their evidence may, therefore, be shortly stated. Adam Khan, who was the existing pesh imam of village Powaka, was examined as C. W.
1. He stated that about 2/3 months prior to the occurrence he was engaged as Pesh Imam by both the parties and that prior to his appointment there was no pesh imam. He also stated that the accused party and the complainant party are closely related and that they used to perform congregational prayers in his mosque. According to him, a couple of days prior to the occurrence, the complainant party and the accused party bad exchanged hot words in the mosque where one Hafiz Maloom Jan was also present. He says that on the right of.
Occurrence he had left his house for the mosque about five minutes before khuftin prayer.
According to him he had yet to reach there . When he heard the reports of firing from inside the mosque. The witness ran back towards his house out of fear. He know nothing about the occurrence. On cross-examination by the prosecution, however, he admitted this much that the complainant party offered prayer behind him in the mosque while the accused party offered their prayer behind Hafiz Maloom Jan. He also says that on the day preceding the night of the occurrence Hafiz Maloom Jan was not seen in the village. In cross-examina--petition by the accused party, however, he changed his version and stated that on the night prior to the occurrence, (be complainant party and the accused party had jointly offered prayer behind him.
21. The second witness examined by the Court is Abdul Majeed C. W. 2, who according to the prosecution witnesses, had intervened and persuaded the members of the complainant party to go to the mosque as Mir Aftab convict, the leader of the accused party, had agreed that prayer would be offered by both the parties behind Adam Khan C. W.
1. He stated that he did not know anything about the occurrence nor he had any knowledge of the dispute between the two parties over the issue of Hafiz Maloom Jan. He denied that he had persuaded Ghulam Siddique P. W. 12 to go to the mosque. This witness, in cross-examination, at one stage stated that he was in his mosque when the firing started but at another place he says that he did not hear reports of firing during the night time. He goes to the extent of saying that he did not go to condole the death of any person on the night of occurrence but went on the next day. His evidence is, therefore, not very much material.
22. The last witness examined by the Court is Tila Muhammad C. W. 3 who is the brother of Jehanzeb. He says that he was present, at the time of occurrence, in the mosque for Khuftin and tarawih prayers. According to him he and Jehanzeb deceased occupied seats on the Third Row of the Mosque and there were three other persons between them. According to him Mir Aftab, Ismail, Bakhtiar and Usman convicts entered the hall of the mosque and occupied their seats. Thereafter Ghulam Siddique P. W. 12 accompanied by Ghulam Haider P. W. 14 Ghulam Rafiq deceased, Zainul Abidin P. W. 16, Ghulam Sarwar (now dead) and Illauddin P., W. 15 entered the mosque and sat down. He says that Musam Khan convict got up and went near Gbulam Sarwar (now dead) and ordered him to leave the mosque but he (Ghulam Sarwar) refused. Both of them were altercating when Mir Aftab went near Ghulam Rafiq deceased. And fired at him with a tamacha and killed him.
The witness further says that Ismail and Musam Khan convicts then went near Jehanzeb deceased and fired at him as a result of which he was hit and injured. He also says that Ghulam Sarwar tried to apprehend Musam Khan convict but he (Musam Khan) fired at him and injured him on his chest.
Contrary to the evidence of the other witnesses he says that it was Zain-ul-Abidin P. W. 16 who had deprived Musam Khan of his tamacha. Ghulam Haider P. W. 14 was fired at by Bakhtiar convict in the veiandah of the mosque and Zainul Abidin P. W. 16 was fired at by Usman convict. The witness says that thereafter the accused party decamped from the spot. The witness then ran to his house leaving the dead body of his brother in the mosque.
23. We have given the resume of the verbal testimony of the witnesses, who, in one way or the other, can be said to be witnesses of the occurrence and the motive. Before scaning and, giving an opinion on the value of the testimony of these witnesses we think it advisable to examine some other evidence mainly relating to the recoveries of the alleged incriminating articles which has been relied upon as a corroboration of the ocular testimony. In this respect the most important evidence is that of recovery of pistol Exh. P. 7 bearing No. 941434 which had been taken into possession under Exh. P. C.
2. The report of the Fire-arm Expert Exh. P. J. Show that two of the four empties recovered from the spot had been fired from this pistol while the other two had not been fired from it.
24. The learned Additional Advocate-General, who appeared for the State, and Syed Masoom Shah, Advocate, who appeared for the petitioner in private revision petition, argued that the matching of two of the empties with automatic pistol Exh. P. 7 sufficient corroboration of the ocular testimony that the pistol was used in the offence and that it was the same pistol which had been snatched by Ghulam Sarwar (now dead) from Musam Khan convict. In our view the evidence regarding the recover of this pistol and the subsequent report obtained from the fire-arm expert consists of tainted evidence on which it is not safe to rely. Besides other reasons the 1. O. Fazal Hussain P. W. 1'/ has admitted that the pistol was taken into possession from Ghulam Sarwar (now dead) on the night of occurrence, namely, 29-8-1976, and it was not sealed then and there in the mosque but was made into a sealed parcel on 31-8-1976 when it had been brought from the armoury power it had been previously sent on the day of recovery. No explanation is forthcoming for not making the sealed parcel of pistol Exh. P. 7 immediately on the recovery and this fact casts serious doubt on the prosecution case that the pistol was recovered in the manner as alleged in the evidence. No doubt the four empties were sealed at the spot but the pistol having not been sealed then and there, the possibility cannot be excluded that even the empties could have been replaced to suit the prosecution version. Then there is also variation in the evidence of the witnesses regarding the snatching of this pistol. Whereas the other witnesses say that it was snatched by Ghulam Sarwar, Tila Muhammad P. W. 3 gives the credit to Zainul Abidin P. W.
16. Besides that the conduct of Ghulam Sarwar in running away with pistol is also not normal. Ordinarily he should have left it at the spot in the custody of Ghulam Siddique P. W. 12 who remained behind and lodged the report.
The learned trial Judge also does not appear to have given any value to this piece of evidence and we are in agreement with him in this respect.
25. There is then the evidence of other recoveries such as bullets, charger rides and another automatic pistol. But these recoveries are in no way connected with any of the convicts or the acquitted accused and as such no weight can be attached to them except to the extent that the bullets and charger were recovered from the spot soon after the occurrence.
26. We are now left with the testimony of ocular witnesses and the motive, recovery of blood from the mosque, the medical evidence and the abscondence of Ismail, Musam Khan, Bakhtiar convicts and Muhammad Iqbal, the acquitted accused. This evidence we propose to discuss here--inafter.
27. The first objection . Which Mr. S. M. Zaffar, learned counsel for the convicts, has raised pertains to the manner in which the First Information Report was recorded. He has argued that the first Information Report is delayed which has thrown serious doubt on the testimony of the witnesses and that since it was not recorded at the nearest police station the natural inference is that the 1. O.
First made out the enquiries and then a plausible case was concocted'-and the report was recorded. He urged that even the trial Judge is doubtful about the time of lodging the First Informa- -petition Report and in fact he was impressed not by the promptitude of making the report .-but on .The presence on record of a document Exh. C. 1/1 which was the statement of Illauddin P.. W. 15 recorded by A. S. I. Muhammad Sarwar P. W. 8 and attested by pr. Qamar Zaman in the hospital wherein allegedly all the accused persons had been named. The learned counsel has rightly pointed out that Exh. C. 1/1 is inadmissible evidence and the learned trial Judge should not have taken it into consideration as it was neither proved nor tendered in evidence. Besides that under no provision of the Evidence Act, 1872, Exh. C. 1/1, which is the previous statement of Illauddin P. W. 15, can be admitted in evidence. The learned trial Judge was obviously wrong in taking into consideration this piece of evidence and while forming our opinion about the sanctity of the First Information Report we have to ignore it altogether.
28. Examining the First Information Report independently of Exh. P. C. 1/1 it may be stated that the occurrence had taken place allegedly at 20.30 hours. On 29-8-1976. The report is stated to have been recorded at the spot at 21.30 hours on the same day and it was incorporated in the relevant register at 22.45 hours. The learned counsel contends that neither the prosecution witnesses have given the correct time of occurrence nor the 1. O. Recorded the report at 20.30 hours as alleged by him and the other witnesses. First of all he argued that just. After the occurrence the natural conduct of the complainant party would have been to send one of the persons to the police station for making the report but in this respect no steps were taken and Ghulam Siddique P. W. 12 remained at the spot and waited for the arrival of the Police.
29. As far as the conduct of Ghulam Siddique P. W. 12 is concerned that is quite understandable.
Two of the persons of the complainant party had died at the spot as is evident from the recovery of blood-stained earth from two places in the mosque. Three persons were injured which fact is established from the medico legal report prepared in the Lady Reading Hospital Peshawar, where they had been taken by the villagers. No doubt, in ordinary circumstances, some one should have gone to the Police Station which was nearby and there was another police station of University Town which was still closer nonetheless, as alleged by the prosecution, it was perhaps not safe for any of the members of the complainant party to go after the firing. To the Police Station and mare the report at the risk of being killed for in such circumstances the culprits generally try to wash away all evidence against them and do not refrain even from putting to death any of the persons who would be the prospective eye-witnesses. Mr. Zafar argued that if the injured could go to the hospital then there was no reason why the first informant could not have left for police station. This argument is without substance ; for the injured persons were taken under the care of the villagers and obviously the accused party could not have been able to harm them. In such a situation the sympathies of the villagers are mostly towards the victims and they do help them except that no one comes up for giving evidence in their favour and against the accused persons as such a conduct in this part of the country is considered to be as inimical as the causing of bodily injury or committing of murder. There are many cases in which persons have been put to death before they could give evidence and cases are not rare in which persons who have appeared as witnesses had been killed by the culprits. The conduct of the members of the complainant party in not going to police station to lodge the report is, therefore: quite understandable and no adverse inference can be drawn from this conduct in the circumstances of the present particular case.
30. The learned counsel then contended that the occurrence had not taken place at the time given by the prosecution and that the firing had taken place much earlier. In this respect reference was made to the statement of Adam Khan Pesh Imam C. W. 1 who stated as follows :- " . ....On the day of occurrence 1 had to lead the prayer at 7-30 p. m. I had left my house at 7.25 p. m.
When I was outside the mosque it was about 7.28 p. m. When firing started from inside. The firing continued for 6/7 minutes."
The learned counsel says that Adam Khan C. W. 1 who is in a way an independent witness has given the exact time of occurrence at 7-28 p. m. And, therefore, the facts stated by the prosecution that the occurrence took place at 20-30 hours is manifestly wrong and that this time had been introduced only to show that the report was not delayed. We are not convinced by this argument ; for we find that Adam Khan C. W. 1 is not a straight forward witness and is intentionally playing a double game. He is supporting the prosecution on the one hand and is also making concessions in favour of o the accused on the other hand. Sun set on the night of occurrence was 18.48 hours. The maghrib prayer would be at any rate after that and before 19.00 hours. After that, in the month of Ramzan, the people go and have their meals and it is thereafter that they come to the mosque for tarawih prayers. Even if an allowance of only one hour is made for that it cannot be expected that the people started gathering at the spot before 20.00 hours. The time of occurrence is stated to be 20 30 hours, and in all probability it was in-between 20.00 and 20-30 hours. The report having been recorded at 21-3 hours, is not delayed as the I.O. Received the information about the firing from the Police Station .And then started for the place of occurrence. All this shows that no time was lost in this respect.
31. Apart from that the question of delayed report would be material only if there was any doubt about the names of the culprits. In the present case three persons belonging to complainant party were injured whose presence cannot be doubted. The occurrence took place in the mosque wren people had gathered for congregation. There was, therefore, no doubt about the identity of the culprits which would have prompted the complainant party to make the delay or would have helped the I.O. To make the investiga--petition prior to the recording of the report to find out how the occurrence had taken place. No doubt, even when the report is lodged promptly, the implica-- petition of innocent persons, when there is enmity, cannot be excluded but as far as the main facts of the instant case are concerned, the delayed report, even if there is any delay, does not cast any suspicion on the prosecution story as a whole.
32. The learned counsel for the convicts has first of all relied on the case of Rehmat A.I v. The State (1976PCr.LJ17) wherein it was observed that when one hour was spent by the first informant , at the place of occurrence and thereafter he went to the police station and lodged the report, the inference that some suspicion was being entertained about the identity of the culprits could not be resisted. This case is not on point inasmuch as in the present case it case it cannot be said that any of the eye-witnesses was in doubt about the identity of the culprits. 7 his is another matter that they might have included some innocent persons as has been found by the trial Judge. The lodging of the report in the present case after delay is reasonably explained inasmuch as after the occurrence in which more or less the entire village was interested, it was not possible for any one member of the complainant party to go to the Police Station. The I. O. Made no-delay in reaching the spot as soon as he was informed of the occurrence.
33. Reference was also made to the case of Ghulam Qadir v. The State (PLD 1967 Pesh. 269). In this case the presence of the witnesses mentioned in the First Information Report was doubted as the report had not been lodged at the Police Station but was recorded at the spot. The learned counsel for the convicts has argued that in the present, case also the report having been lodged at the spot, casts a doubt on the prosecution story. We are, however, not convinced by this argument. At least three of the persons named in the First Information Report as witnesses were present at the spot who sustained injuries. It was the month of Ramzan. And most of the villagers, as a practice, do not absent themselves from tarawih prayer specially when Khatm-e-Qur'an is also done in that month in most of the villages. In this background, therefore the delay report or for that matter the recording of the report at the spot per se are not the factors which may cast doubt on the main features of the prosecution case. As already observed, in the circumstances of the present particular case, it was not safe for the members of the complainant party to go out of village to lodge the report as they were apprehending another assault and moreover two persons were lying dead in the mosque who had to be looked after while the other three had been taken to the hospital in injured condition.
34. The case of Munawar Khan v. The State (1977 P Cr. L J 1003) is also to the effect that the sanctity attached to the First Information Report lodged at the spot becomes tainted because there is possibility of prolonged deliberations and preliminary enquiry. This case also, for the same reasons stated above, would not be of much value to the defence. Likewise the case of Muhammad Hanif v.
The State (1980 P Cr. L J 345) relied upon by Mr. Zaffar is of no help inasmuch as in the said case there was considerable delay and it had not been explained unlike the one with which we are dealing.
35. In view of the above facts we are of the considered opinion that firstly there was no inordinate delay and even if there was any delay that has been reasonably explained. We are also of the opinion that the lodging of the report at the spot in the circumstances of the particular case per se is not fatal to the facts of the prosecution case:
36. Coming to the ocular testimony of the witnesses, the learned counsel for the convicts pointed out that the prosecution story that the complainant party was persuaded to go, to the mosque by Abdul Majeed C. W. 2 is not established because this fact was not mentioned by some of the witnesses in their statements before the Police and that Abdul Majeed C. W. 2 himself, had not stated that he had persuaded the complainant party to go to the mosque.
37. As far as the testimony of Abdul Majeed C. W. 2 is concerned, that carries no weight. A bare reading of his statement at the trial would indicate that he is avoiding to tell the truth for the obvious reasons that he is related to both parties. When examined by the prosecution, he had at one stage stated that he was in the house when the firing started. Again he stated that he did not hear firing during the night. His conduct by itself is very unnatural. He says that he did go to the mosque because he was told that people present in the mosque were firing. Strangely enough he did not hear the reports of firing but at the same time he heard about it from the people. Again in spite of he being related to both the parties, he did not go to condole the deaths .On the first night.
He has further made concession in favour of the accused party by saying that there was a civil litigation between the complainant party and the accused party but when questioned by the Court he expressed ignorance about the Court in which the civil litigation was going on. Had there been any litigation, this witness, being closely related to parties, would not have been unaware of the Court where the dispute was pending. No doubt some of the witnesses in their statements before the Police have not stated that Abdul Majeed C. W. 2 had persuaded them to go to the mosque as a settlement had been arrived at with the accused party, nevertheless this omission is not material and does not amount to contradiction. Police statements are normally short and are recorded in a slipshod manner and do not contain all the details specially the matters remotely connected with the actual occurrence. The admissibility of the Police statement under section 162, Cr. P. C. Is confined to finding out the l contradiction of the statement of a witness at the trial and before the Police. If an omission does not amount to contradiction the evidence of such omission is not admissible and cannot be used by the accused in his favour. The part played by Abdul Majeed C.
W. 2 was mentioned in the First Information Report and also the witnesses at the trial had stuck to it.
We find no reason for disbelieving this part of the testimony of the witnesses because there was no necessity of making mention of Abdul Majeed P. W. 2 as mediator had the fact been false and the witnesses could have narrated the occurrence even without introducing him. Though the evidence, in our opinion, is sufficient to establish that the witness did take some part but even if this is not established, the prosecution case has to succeed on its own merits even by excluding the story pertaining to him.
38. Mr. Zafar then argued that the prosecution has withheld independent witness although there is sufficient evidence on record to show that when the occurrence took place there were quite a few persons waiting for the congregation. In this connection it is necessary to bear in mind that in rural areas where murders are committed as a result of existing faction or due to family feuds or merely in order to satisfy the proverbial ego, independent villagers are always reluctant to come forward for evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to serious risk. Additionally disinterested witnesses avoid involvement. For lack of civic sense and do not desire to put themselves in position which causes inconvenience of attending the police station during the investigation and the Courts at the trial the! Atmosphere whereof is notoriously orduous. We, therefore, see no justification for drawing any adverse inference from the absence of evidence of unconnected witnesses.
39. The learned counsel for the convicts then referred to certain infirmities in the evidence of the prosecution witnesses. These mostly relate to minor contradictions in their statements made before the Police and at the trial and some contradictions in the evidence of the different witnesses. However, no material contradiction has been brought to our notice. As far as the prosecution story is concerned the main features thereof are the same which have been stated by the prosecution witnesses broadly. The minor omissions and contradictions do occur in the state-- ment of the witnesses and the testimony of witnesses cannot be disregarded merely on the ground that there exist some contradictions or omissions which are of no material consequence. We are, therefore, unable to agree with the learned counsel that the testimony of these witnesses should be thrown out for this reason alone.
40. It was then argued that all the prosecution witnesses are inter--related and they are agnates inter se and to the deceased party. As far as their relationship with the accused persons is concerned the learned counsel urged that this relationship, being through marriages only, is not well recognized in feudal society like the one to which the parties belong. No doubt it is to some extent true that agnatic relationship is considered to be more close than the relation through marriages but it is equally true that sometimes agnatic relationship in this part of the country becomes a symbol of hostility due to disputes over the property. In the present case, however, there is no dispute and it can be said safely that the prosecution witnesses are all related to each other closely and to the deceased persons and there also exists relationship with the accused party. Even the prosecution witnesses have admitted that over the dispute of Imam the complainant party was on the one side and the accused party on the other. Although no previous enmity has been established nevertheless when the occurrence took place the enmity was created and it cannot be ruled out that to make their case a success the prosecution witnesses were prompted to make exaggeration to involve some innocent persons like the three who were acquitted even by the learned trial Judge. The fact cannot be ignored that some, if not all, the accused persons were responsible for causing the deaths and also causing injuries to some of the members of the complainant party. The learned counsel for the convicts has argued that the I. O., who investigated the case, found one empty charger at the spot which shows that many bullets had been fired from one pistol. He wants us to conclude that there was only one culprit who emptied his pistol and caused injuries which resulted in deaths of two persons and all the other accused have been brought in on account of enmity. With this argument we are not in agreement because several bullets were found from the spot. The occurrence had taken place in the mosque and, in the ordinary course, most of the accused persons were expected to be present. The task of finding out as to which of the accused persons participated in the crime is a difficult one but the Courts have always tried to sift the truth from the falsehood and we would also see that if there is a slightest doubt about the presence of any accused persons, he must get the benefit thereof.
41. Several authorities have been cited on both sides with regard to the credibility of the witnesses who are related to the deceased persons and the other victims but in criminal matters decisions of the Courts on questions which are essentially of fact cannot be cited as precedent governing the decisions of other cases which must rest upon their own particular facts. The main principles governing the appreciation of, evidence are well established with regard to which there is no doubt or controversy. The real question and we may say the difficult question is that of apply--ing the principles to the facts and circumstances of a particular case which comes before the Court. Such a question has to be decided as and when it arises with reference to the particular facts and the circumstances of the individual case. It is, therefore, no use appealing to the precedents in such matters. No case on facts can be on all fours with another. We, therefore, do not consider it necessary to examine the cases cited at the bar for deciding the issue involved herein. However, we may point out that the principle of weight of evidence of witnesses who are related and interested was laid by the Supreme Court in the case of Niaz v. The State (PLD1960SC387), and we would take guidance from this case. The following are the observations of the Supreme Court laying down the broad principles on the reliability of the interested witnesses :- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitu-- petition has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt."
Now applying the principles laid down in this case we cannot rely on the testimony of the eye- witness without some sort of corroboration, Corrobora--petition has 'to be sought from other circumstances but as pointed out by the Supreme Court the circumstances need not be such .That they can by their own probative force bring home the charge to the accused. The evidence should, however, be such which points to the inference that the accused whose case is being considered did participate in the commission of the offence.
42. Now the fact cannot be denied that it were the members of the accused party who are responsible for causing the deaths and the injuries. The First Information Report when read with the medical evidence goes to show that the witnesses are substantially telling the truth and have not substituted any other persons for the actual culprits. The medical testimony of the doctor shows that all the injuries were caused by tamancha of the same bore which, it is alleged, the convict were carrying, We are, however, not impressed by the prosecution evidence wherein specific injuries have been attributed to specific culprits. No doubt it was quite possible in the mosque to note each part of the culprits as all had gathered for offering tarawih prayer and there was expected to be calm and quiet atmosphere before actual occurrence started, nevertheless, in our opinion, it is not safe to conclude that such and such accused injured such and such persons. 1m The learned Sessions Judge has in a way relied upon the testimony of the witnesses with regard to each part taken by the accused and has not as a whole held them collectively responsible by arguing that some event suddenly took place before the occurrence which has not come to light.
He, however, failed to note that the common intention does not necessarily mean premeditation before the commission of actual crime. The common intention to bring about a particular result may develop on the SP between more than one person with reference to the facts and circum stances of the situation. The circumstances of the present case also show that when for some unknown reasons the altercation started between the parties and the murder of Ghulam Rafiq was committed by Mir Aftab or some other- member of the accused party, there developed a common intention of the actual culprits and whatever happened thereafter was the result of that common intention of them all, if, therefore, we find corrobora--petition of the oeVlar testimony of the witnesses in respect of certain accused persons then the inference cannot be excluded that the offence other than that of murder of Ghulam Rafiq was committed in furtherance of common intention which developed just on spur of the moment when the altercation between the two groups took an ugly turn.
43. Besides the medical evidence there is the evidence of the abscondence of some of the accused persons just after the occurrence. The statement of Maghfoor P. W. 1 shows that he was entrusted with the warrants under section 204, Cr. P. C. With respect to Musam Khan, Bakhtiar and Ismail accused: He searched for them in the village and the surrounding villages, but they could not be found and, therefore, he returned the warrants unserved. It is also in evidence that when the I. O. Went to the spot on the first day these accused could not be arrested as they were not present o in the village. This clearly shows that these three persons had left the village just after the occurrence. Their abscondence though not conclusive evidence of their guilt is yet sufficient corroboration of the ocular testimony of the witnesses in the light of the principle laid down by the Supreme Court in the case of Niaz v. The State referred to above Their defence in this respect is that they had absented themselves to obtain bail before arrest. It, however, remains unexplained as to how they had come to know that they have been named in the First Information Report: They were absent from the village when the I. O. Arrived and this conduct by itself shows that they were conscious of their guilt and apprehended that they shall be named as the assailants by the complainant party after the tragedy had taken place. These three convicts also did not explain in their statement as to When they applied for bail. However, a certified copy of the order of the learned Additional Sessions Judge, disposing of the bail petition filed by these three persons jointly with Muhammad Iqbal, the acquitted accused, is on file. This shows that the application for bail was filed with the learned Additional Sessions Judge on 23-9-1976 i.e. 25 days after the occurrence.
No explanation has been given for absence of twenty-five days. In our opinion the unexplained abscondence of twenty-five days, in the circum--stances of the present case is a sufficient corroboration of the eye-witnesses account and leads to the inference that these three persons were definitely involved in the offence and in order to escape tile grip of justice they avoided arrest.
No doubt the presence of the other accused persons on the spot on the night of the occurrence does not per se point towards innocence nevertheless since the entire evidence is interested, their convic--petition without corroboration cannot be safely recorded. In all probability the three accused, namely, Musam Khan, Isma il anti Bakhtiar were allowed to run away by Haji Mir Aftab convict, who appears to be the leader of the tribe. He himself stayed behind to make out a case for the defence by appearing before the police in order to channelize the investigation in some other direction. He may himself be responsible for the crime but since his involvement is not free from doubt in view of the absence of corroboration of the eye-witness account, it is not safe to record his convic--petition. Muhammad Usma n, another convict also did not abscond from the spot and in his case too corroboration is wanting. The order of convic--petition against him cannot, therefore, be passed in the circumstance of the case. In our opinion Haji Mir Aftab and Muhammad Usman convict are entitled to the benefit of doubt. We accept their appeal and set aside the convictions and sentences recorded against them. Haji Mir Aftab is on bail. He is discharged of the bail. Muhammad Usman should be released forthwith if not required in any other case.
44. With the acquittal of two of the five convicts, the question of application of section 149, P. P. C. Or for that matter of section 148, P. P. C. Does not remain for consideration. We are, however, left with the cases of Musam Khan, Ismail and Bakhtiar convicts. We have already stated that after the murder of Ghulam Rafiq by Mir Aftab or some other person a common intention developed amongst the actual culprits and whatever happened thereafter was done in furtherance of common intention of them all. Since none of the witnesses have attributed the death of Ghulam.
Rafiq deceased to these three convicts we are inclined to hold that they cannot be held responsible for his death. However, since what happened thereafter is the result of common intention of the three culprits, all of them have to be found guilty therefor. The learned Additional, Sessions Judge, has convicted Musam Khan and Ismail convicts under section 302/34, P. P. C. For causing the death of Jebanzeb deceased. With this finding we agree but not on the ground that they fired the same very shots which hit him. In our opinion just after the murder of Ghulam Rafiq the shots were fired by Musam Khan, Ismail and Bakhtiar convicts and the fact that one or the other shot hit the deceased is immaterial.
45. The learned Additional Sessions Judge has not recorded any conviction in respect of Bakhtiar accused for causing the death of Jehanzeb but with this finding we are not inclined to agree for the reasons already stated. There being a community of intention among the three culprits all of them are jointly responsible for the murder of Jehanzeb.
45-A. The learned. Trial Judge has found Musam Khan alone guilty under section 326, P. P. C. For causing grievous hurt with firearm to Ghulam Sarwar. For the injury of this person Ismail accused has not been convicted. Likewise: Bakhtiar accused has also not been convicted for causing injury to Ghulam Sarwar. For what we have said above the injury to Ghulam Sarwar or for that matter to the other injured persons was caused in furtherance of common intention of all the three culprits.
Again for causing injuries to Illauddin P. W. 15 only Bakhtiar accused has been convicted under section 326, P. P. C. Since there was a common intention Of the three culprits all of them, namely, Musam Khan, Ismail and Bakhtiar are jointly responsible for causing injuries to lllauddin and we hold accordingly.
46. Coming to the injury caused to Ghulam Haider P. W. 14 only Muhammad Usman accused has been convicted. We have already found that it is not safe to record conviction of Muhammad Usman accused as there is no corroboration of the ocular testimony of the interested witnesses.
However--- since Ghulam Haider P. W. 14 was injured after the common intention had developed, therefore, all the three culprits, namely, Musam Khan, Ismail and Bakhtiar are equally responsible for causing injury to Ghulam Haider P. W. 14 in furtherance of common intention of them all.
47. For causing injuries to Ghulam Sarwar (now dead). Illauddin P. W. 15 and Ghulam Haider P. W. 14 the learned trial Judge has recorded convictions under section 326, P. P. C. This, in our opinion is not the correct approach. Whosoever caused the injury did so with the intention of causing death and if by the said injury the deaths had been caused R the culprits would have been responsible for committing the murder. The offence, therefore, fall under section 307, P. P. C. Read with section 34 thereof and not under section 326, P. P. C. These convictions have, therefore, to be altered accordingly.
48. The State appeal against the acquittal of three persons of all the charges has no merit because there is no reliable evidence against the acquitted accused. No specific part was attributed to them and even otherwise in the case of Shah Mehmood and Zubair Khan there is no corroboration whatsoever. The acquittal of Shah Mehmood; Zubair Khan and Mohd. Iqbal has, therefore, to be upheld.
49. In view of what has been stated above we convict Musam Khan, Ismail and Bakhtiar accused under section 302/34, P. P. C. For committing, in furtherance of their common intention, the murder of Jehanzeb and sentence each of them to undergo R. I. For life and also to pay a fine of Rs. 3,000 each or in default to undergo S. I. For one year.
50. We also convict Musam Khan, Ismail and Bakhtiar accused under section 307/34, P. P. C. For attempting, in furtherance of common intention of them all, the murder of Ghulam Sarwar (now dead) and sentence each of them to undergo R. I. For one year and to pay a fine of Rs. 1,000 each or in default to undergo S. I. For three months.
51. Again we convict Musam Khan, Ismail and Bakhtiar accused under section 307/34, P. P. C. For attempting, in furtherance of the common intention of them all, the murder of Illauddin and sentence each of them to undergo R. I. For five years and to pay a fine of Rs. 1,000 each or in default to undergo S. 1. For three months.
52. We further convict Musam Khan, Ismail and Bakhtiar accused under section 307; 34, P. P. C. For attempting the murder of Ghulam Haider P. W. 14 and sentence each of them to undergo five years'
R. I. And to pay a fine of Rs. 1,000 each or in default to undergo S. 1. For three months.
53. All the substantive sentences of imprisonment of the three accused shall run concurrently while the sentences in default of payment of fines shall run consecutively. Out of the fine, if realised, 60% shall be paid in equal shares to the heirs of Ghulam Rafiq and Jehanzeb deceased under section 544-A, P. P. C. The remaining 40 % shall be equally distributed among the injured persons in such a manner that 1/3rd thereof shall go to the heirs of Ghulam Sarwar (now dead), 1/3rd to Illauddin P. W.
15 and the remaining 1/3rd to Ghulam Haider P. W. 14.
54. We have not awarded capital punishment of death by hanging to the three persons convicted under section 302/34, P. P. C. For certain reasons. The measure of punishment is a difficult question.
Each case has to be examined on its own merits, In the present case the fact as to how the occurrence started though not shrouded in mystery is not very clear. It is not known as to what part was played by the complainant party at the time of occurrence. It is noteworthy that it was the hero of the accused party, namely, Hafiz Maloom Jan who had earlier left the village. The Imam of the complainant party was still there. It is quite possible that the defeat of the accused party in this tug of war for the appointment of Imam gave an occasion to the complainant party to make some taunting remarks against the members of the accused party. Or it may be similar other thing which happened on the night of the occurrence resulting in the tragedy. It is, therefore, not safe to extract the normal penalty of death from the three convicts for murdering Jehanzeb deceased.
56. All the four matters are disposed of as above.