1. MUHAMMAD HALEEM, ACTG.C. J -This appeal by special leave arises from the judgment of the Peshawar High Court, Peshawar, dated 8-3-1978, by which Criminal Appeal No. 77 of 1977 was dismissed and the convictions under sections 302 and 307 read with section 34, P. P. C. And sentences of death recorded by the trial Court were upheld. By the same judgment, Criminal Revision No. 49 of 1977 was allowed to the extent that on each count of murder, the appellants were directed to pay a fine of Rs. 2,000.
2. This case relates to the murders of Allah Bakhsh and his two sons Muhammad Ashraf Khan and Mukhtar at dopehrwela on 27-2-1975 in the vicinity of village Baloo. In the morning of the fateful day, deceased Allah Bakhsh and Muhammad Ashraf Khan alongwith Nisar Khan P. W. Sons of Allah Bakhsh went to their fields and got busy granting persimmon saplings. Mukhtar Khan came a little later and he was told by Allah Bakhsh to go to his dera to look after his cattle. At dopehr-qazawela, Muhammad Ali and Saeed Khan armed with a five shot rifle and a shot-gun respectively arrived there. On seeing them, Ashraf Khan went to meet them and as a gesture of goodwill he extended his hand. Instead of shaking hands with him Muhammad Ali fired a shot at him, which struck him on his chest and he fell down. Saeed Khan thereupon proceeded towards Allah Bakhsh and fired his shot-gun and as the shots hit him he too fell down. On seeing the two being shot at, Nisar Khan ran from there towards his village Titara and while escaping from there he was also fired at but the shots went astray and he managed to escape. However, while running he looked back and saw the two appellants proceeding towards the dera where Mukhtar had gone earlier. He thereafter proceeded to Police Post, Akbarpura, which was 2J miles away and lodged the First Information Report at 2-40 p.m. This statement was recorded by Miandad A. S. I. (P. W. 10). Miandad thereupon went to the spot and saw the dead bodies of Muhammad Ashraf Khan and Allah Bakhsh. He next went to the dera and saw the dead body of Mukhtar.
3. Two crime empties of five shot-rifles were recovered from the spot where the two deceased lay dead and two pellets and a wad were found from near the dead body of Mukhtar: Ashraf Khan had two wounds of inlet caused by bullets; Allah Bakhsh also suffered two inlet wounds caused by the pellets ; Mukhtar had two inlet wounds and a "by pass wound" on the front of left upper arm which was also caused by pellets.
4. Saeed Khan was arrested from Sargodha by Muhammad Hanif, A. S. 1. (P. W. 4) on 13-9-1975, while Muhammad Ali was apprehended in January, 1976 and none of them produced any crime weapon.
5. The motive imputed was that in the morning of the day of occurrence, Nasrullah son of Abdur Rauf, the first cousin of Allah Bakhsh, had caused injuries to Aziz Khan a nephew of Saeed Khan and to avenge that highhand--edness, the appellants committed these murders. Earlier to this incident.
6. Abdur Rauf, Abdul Qayum and Abdus Salam cousins of Allah Bakhsh were implicated for the murders of Ghulam Jan and three others and sentenced to death. In that case. Saeed Khan had lodged the First Information Report and Muhammad Ali was a prosecution witness. Badshah Gul a cousin of Nisai was pursuing the case of Abdur Rauf and the other two and had got their appeal filed in the High Court. This had raised a suspicion in the mind of the appellants that it was deceased Allah Bakhsh at whose behest Badshah Gul was pursuing the case of these persons; and was an added reason for these murders.
7. At the trial, the prosecution examined Nisar Khan. (P.W. 7) and Mst. Nasim Akhtar (P. W. 9); a daughter of Muhammad Ashraf to establish the murders of Muhammad Ashraf and Allah Bakhsh.
8. Mst. Meraj a widow of Allah Bakhsh was produced to prove the murder of Mukhtar Khan.
9. The trial Court held that the presence of the witnesses was natural and so did the High Court. In the High Court, it was contended that the ocular testimony was in conflict with the medical evidence; that there was no mention of the names of Mst. Nasim Akhtar and Mst. Meraj in the F. I. R; and that therefore, the statement of Nisar Khan required corroboration as be was an interested witness.
10. As to the first contention, the discrepancy related to an additional shot fired at Ashraf Khan which was not accounted for and the other being that the inlet wound noticed on Allah Bakhsh did not give the impression that it was caused by the pellets of a shot-gun. The High Court did not give any importance to this discrepancy as it felt that in the circumstances in which Nisar Khan was placed, it was not possible for him to minutely observe all the details of the incident. The High Court was further impressed by the fact that if Nisar Khan bad been a false witness, he would have also mentioned about having seen the murder of Mukhtar; and further that as the two appellants were not related, there was no reason for Nisar Khan to have implicated both of them. Another feature which impressed the High Court was that despite the fact that Abdul Qayum, Abdur Rauf and Abdus Salam were the cousins of Allah Bakhsh, yet the parties were on visiting terms and therefore, it was difficult to hold that there was any direct enmity between them. As for Mst. Nasim Akhtar and Mst. Meraj, the High Court was of the opinion that their presence was natural as it was common knowledge that the females took food for the men-folk working in the fields at or about that time.
11. In regard to the omission of their names from the F.I. R., the High Court observed that as Nisar Khan was running for his life, he may not have noticed the presence of Mst. Nasim Akhtar who was at a distance of 165 paces from Nisar Khan. The High Court also found the evidence of Nisar Khan corroborated by the fact that persimmon saplings were found in the fields which showed that the grown-up sons were working there to graft them. Lastly the High Court took into account the abscondence of the two appel--lants as an incriminating circumstance as they failed to give any plausible explanation of their absence from village Baloo.
12. Leave to appeal was granted to consider as to whether the conviction of (the appellants was consistent with the safe dispensation of justice in the context of the probabilities of the case.
13. Mr. S. M. Zafar, the learned counsel for the appellants vehemently urged that Nisar Khan had not witnessed the incident as claimed by him for if at all he had been there he would not have been spared. His further criticism is that if shots had been at him, he would not have gone unscathed and that his evidence was in conflict with the medical evidence, which further gives support to the above submission. He also urged that the other two witnesses, namely, Mst. Nasim Akhtar and Mst.
14. Meraj were not present at the time of the occurrence.
15. We have examined his evidence at length with the help of the learned counsel for the parties and we are of the opinion that he bad witnessed the occurrence.
16. The main feature in his evidence is that he had promptly lodged the report and gave out the names of the two appellants as the killers of his father and brothers. Further the factors which gave sanctity to his statement are that he omitted to mention the names of Mst. Nasim Akhtar and Mst.
17. Meraj which showed his action to be spontaneous for if it had been deliberate, there was no reason why be would have omitted to mention their names. Again he was truthful enough to state that he bad not seen the actual murder of Mukhtar Khan at the dera which if asserted would again be an act of deliberation.
18. Apparently, it appears to us that having witnessed a part of this incident his self-instinct prompted him to escape from there which would explain as to how he was notable to notice the number of rifle shots fired at Ashraf and Allah Bakhsh. We further find that there is no material to substantiate that he had any contact in-between his escape and the lodging of the F. I. R. To show any deliberation to charge the appellants for the crime they, had committed.
19. As to this assertion in the F. I. R. That Muhammad Ali had placed the barrel of the rifle on the chest of Ashraf and then fired. It appears to be rather proverbial for much depends on the distance and the angle from which he had witnessed the attack. However, it cannot be denied that the injury was caused by the bullet fired from the rifle. The distance from where it was fired would hardly make any difference.
20. In regard to the criticism that the injuries on Allah Bahsh were not caused by the shot-gun but by the bullets, the prominent feature is that the exit wounds are of large dimensions, which could be caused by a ball cartridge. The further fact that pellets were found naar the dead body of Mukhtar Khan showed that one of the five-arms was a shot-gun. In his case too the possi--bility of two types of cartridges being used cannot be excluded. Therefore his version cannot be belied on this count as well that one of the two appellants, namely, Saeed Khan was armed with a shot gun. As to his having himself escaped receiving injuries, it is not unusual for much depends on the terrain and the speed with which he was running. It could also be that shots were fired to scare him. Besides he had a chance to escape from there as the assailants attacked the two deceased first. It is difficult to explain as to why the appellants chose to kill the other two deceased as it is not possible to read their minds and, therefore, nothing can turn on it.
21. About the presence of the other two ladies, namely, Mst. Nasim Akhtar and Mst. Meraj, we find no unusual feature in it. Both of them had taken meals for the men-folk and had witnessed the occurrence before reaching their destinations. It is true that their names are not mentioned in the F.
22. I. R but at the same time we also find that Nisar Khan was running for his life and he could not have noticed the presence of these two ladies in that state of mind even if there was no obstruction between them.
23. Further, as it was usual for the ladies to take meals, their presence also could not be denied at that time of the day for it was meal time, which even otherwise coincided with the fact that at least the stomachs of two of the deceased were empty and as for Allah Bakhsh, there was some digested food which reflected to his state of digestion on account of his old age. Much was said that the cooked food was not seen but this factor hardly has any importance in the context of the tragedy and it would be too much to expect that they would be so particular as to show it to the Investigating Officer in that perturbed condition.
24. The High Court has held their presence to be natural despite the fact that their names did not transpire in the F. I. R. With which finding we agree.
25. There are some discrepancies in the evidence, which do not affect the credibility of the witnesses and we would attach no importance to them.
26. The appellants had absconded for which no satisfactory explanation is forthcoming and this feature, therefore, goes to corroborate the ocular testimony. The Courts below have taken into consideration this factor while, assessing their guilt, and we agree with it.
27. In regard to motive both Saeed Khan and Muhammad Ali had reason to be annoyed with Allah Bakhsh and his sons, not only for the murders Ghulam Jan and others but also for the incident which occurred in the earlier part of the day which provided an immediate impetus to commit their murders.
28. Accordingly, I would uphold the convictions and sentences of the appel--lants and dismiss the appeal.