M. BURHANUDDIN KHAN, J.-Through a petition leave was sought against the judgment of a Division Bench of the Lahore High Court dated 6-4-1976 upholding the conviction and sentence of the two appellants who were condemned to death under section 302/34, P. P. C. On two counts by the Additional Sessions Judge, Campbellpur. Leave was granted vide order dated 31-1-1977 of this Court on the ground that the two said ocular witnesses charged Sher Badshah, appellant for firing one shot from his rifle at Shah Mir, deceased and the other shot was fired by Ata Muhammad, appellant resulting in the death of Ejaz Haider, deceased; and that three injuries on the body of Shah Mir, deceased could not possibly be the result of one shot allegedly fired at him by the accused. It was considered that in this respect the medical evidence appears to b., at variance with the testimony of the two eye-witnesses and the case required further examination on this point.
2. The facts given by the prosecution resulting in the murders of Shah Mir aged 50 years and his son Ijaz Haider aged 20 years at peshiwela are that they were present at the Musafir Khana at the shrine of Hazrat Sultan Shah Qadar Bakhsh in village Qadarpur at a distance of about 22 miles from Police Station, Talagang, District Campbellpur. Shah Ali Bahadur P. W. 15 was also present on 3-9- 1972, and they were discussing the matter in connection with the Urs. Altaf Husain and Shah Sharaf, P. W. 16 were also present when the two accused appellants appeared, armed with rifles. Sher Badshah fired at Shah Mir and Ata Muhammad fired at Ejaz Haider, deceased with their respective rifles. Both the deceased were hit with these shots and fell on the ground and died instantaneously and the two appellants decamped from the spot alongwith their weapons.
3. The motive for the offence is stated to be that the father of Sher Badshah, accused was murdered by Shah Mir about 25 years prior to the present occurrence, who was challaned alongwith others including Shah Ali Bahadur, complainant but they were acquitted by the Court.
Ata Muhammad, accused is stated to be a friend of Sher Badshah, accused appellant. Thus he joined hands with him to avenge the murder of his father.
4. Shah Ali Bahadur proceeded to the Police Station, Talagang, District Campbellpur where he lodged the report at 7.30 p.m. Exh. P. B. Which was recorded by Khawaja Mumtaz Hussain, S. H. O. (P.
W. 17). He then accompanied the complainant to the spot where, on arrival, he prepared the injury statement of Shah Mir and his inquest report, and also prepared the injury statement and inquest report of Ejaz Haider, deceased and sent the dead bodies to the mortuary for post-mortem examination.
5. Dr. Muhammad Usman Qureshi P. W. 16 performed the post--mortem examination and found the following fire-arm. Injury on the body of Ejaz Haider : "A wound on entry on the upper part of the left shoulder blade 3/8" circular with scorched and inverted margins piercing the muscular part and making a wound of exit on the lower part of the left side of the neck lacerated type wound 5--- x 2--- x lacerating the muscular tissue and blood vessels of the neck and breaking the lower jaw near its angle on the left side and breaking the teeth on the left side of both jaws and also breaking the upper jaw on the left side and further making a wound of exit on the right side of the mouth lacerating the upper lip near the, angle of the mouth and breaking the lower jaw on the right side. The tongue was also lacerated. On opening the skull there was lines fracture of the right wing of the sphenoid bone near the optic foramen. Brain was congested and sphenoid bone was fractured.
In the opinion of Dr. Muhammad Usman Qureshi death was due to haemorrhage and shock as a result of injury to the blood vessel of the neck and two jaws and mouth. This dangerous injury was sufficient to cause death in ordinary course of nature.
The same doctor performed the post-mortem examination on the body of Shah Mir, deceased : "(1) A penetrating wound on them middle and outer part of the right upper arm with scorching and 3/8" circular with inverted margins breaking the body of the humerus and making a wound of exit on the inner side of the right upper arm in its middle measuring 3' x 2' with irregular margins lacerated in character and making a wound of entry again on the right side of the chest measuring 4' x 2.3/4--- x breaking the 8th, 9th and 10th ribs and further lacerating the lower half of the right lung, diaphragm on the right side and part of the liver was also lacerated and piece of bullet was taken out from the lower portion of the right lung. The wound of entry on the chest was 1.1/4' from the nipple and further 7 pieces of bullet had been taken out from the body of 8th and 9th dorsal vertebra. There were small pieces of the body of the vertebra.
(2) A lacerated wound on the outer and upper most part of the right thigh 7" x 4.1/2" x muscle deep.
(3) A lacerated wound on the upper and outer part of the iliac crest of the right hip bone 3' x 1.1/4' x skin deep separated by skin from injury No. 2.1/2".
In the opinion of the Doctor death was due to haemorrhage and shock caused due to the injury to the vital organs lung and liver and breaking the vertebral body. Injury No. 1 was dangerous and injuries Nos. 2 and 3 were simple. Injuries Nos. 2 and 3 were due to injury No. 1 and injury No. 1 was due to fire-arm and injuries Nos. 2 and 3 were due to injury No. 1.
6. At the trial Shah Ali Bahadur, P. W. 15 stated that shrine of Hazrat Shah Qadar Bakhsh situate in his village Qadarpur I/4 share in the offering at the said shrine fell to the share of Shah Mir, deceased who was his real brother and Ejaz Haider deceased, his son. Nearly 2 years ago, he alongwith Altaf Hussain, Shah Sharaf Ejaz Haider and Shah Mir, deceased were sitting in the verandah of the shrine at Peshlwala and were discussing about the collection of the offering for the Urs from Thoa Mehram Khan. In the meantime Sher Badshah and Ata Muhammad appellant appeared, armed with rifles and Sher Badshah was the first to fire 'at Shah Mir, deceased with his rifle and Shah Mir was hit, then Ata Muhammad, accused also fired a shot which hit Ejaz Haider deceased. The two deceased after sustaining the injuries then fell to the ground and died instantaneously. Regarding the motive he stated that 25 years ago father of Sher Badshah was murdered by Shah Mir for which Shah Mir and the witness (complainant) and others were charged but they were acquitted by the Court ; and that Ata Muhammad, accused appellant is a friend of Sher Badshah, accused. He proceeded to the police station leaving the dead bodies at the spot where he lodged the report Exh. P. D. Correctly.
7. Shah Sharaf, P. W. 16 also gave ocular account of the occurrence stating that ha was present in the verandah of Musafarkhana at the Ziarat, at the time of occurrence alongwith Ejaz Haider, Shah Ali Bahadur, Altaf Hussain and Shah Mir, and they were discussing the matter regarding the Uri which was to be held in the near future when the two accused Sher Badshah and Ata Muhammad appeared, armed with rifles. Sher Badshah fired at Shah Mir while Ata Muhammad fired at Ejaz Haider and both the deceased were hit and fell to the ground. The Police recovered blood-stained earth and took it into possession vide Memos. Exh. P. B. And Exh. P. E. And sealed it into parcel. Two empties Exh. P. 16 and Exh. P. 17 were recovered by the Investigating Officer from the spot and were taken into possession vide Memos. Exh. P. F. And Exh. P. G. And were sealed into parcel. He signed the Memos. As attesting witness.
8. Muhammad Iqbal, A. S. I. P. W. 3, arrested Sher Badshah. Accused on 18-2-1973 in District Sargodha where he was posted as H. C. At P. S. Gunjal and handed him over to the then S. H. O. Gul Asghar at the Police Station.
9. Sher Muhammad, P. W. 14 was examined by the trial Court and he stated that he was present near canal known as Bhaman Wali bridge when a Police party accompanied by Bakhsh Chowkidar came there. A person alongwith a lady was going with a rifle on his shoulder. On inquiry by the Police regarding the licence for the rifle the person replied in negative. Therefore, he was arrested by the Police and rifle Exh. P. 19 and 4 cartridges were taken into possession vide Memo. Exh. K. E./1 which bear his signatures.
10. Ch. Jan Muhammad, A. S. I. P. W. 18 who was posted at Police Station, Talagang in the year 1973, partly investigated the case. Sher Badshah, accused appellant was banded over to him by the Gunjal Police Station and be got him transferred to the District and made his formal arrest in this case. According to him Ata Muhammad, accused was arrested by the Police of P. S. Sargodha on 9-3-1973 in a case under section 13 of the Arms Ordinance and he also got him transferred to the District and interrogated the accused. On 17-3-1973 Sher Badshah, accused, while in police custody, led him to the recovery of rifle P. 18 from the cattleshed in his residential house. The rifle was sealed into parcel vide Memo. Exh. P. J. Exh. P. J./1 is the site plan of the place of recovery of rifle Exh. P. J./2 is the sketch of this rifle. These were handed over to Sarfraz Muharrir, A. S. I.
11. The appellants were examined by the trial Judge. Regarding the motive Sher Badshah stated that he was a child when his father was murdered and denied the commission of the murder of the two deceased in the instant case. Regarding his absence from his residence during the period, he said that he was in the Army service and had came home, got sick and could not return in time on his duty and was declared as a deserter. Police arrested him and sent him back to his Unit. He came again on leave and police arrested him under section 109, Cr. P. C. As he had not again returned to his Unit and was again declared a deserter. He then went to Quaidabad to his sister's house where he was arrested by the Police. Regarding the recovery of rifle P. 18 he said that it was planted on him by the Police.
12. Ata Muhammad, appellant in his statement at the trial denied the allegation of murdering Ejaz Haider and stated that be was falsely implicated in criminal cases by Muhammad Nawaz, Allah Dad, Alam Sher and Nut Hussain and others, tenants of the complainant in the present case. In order to avoid his arrest, he went to Sargodha where he was working as a labourer, and denied his association with Sher Badshah.
13. The trial Court in its judgment held that the occurrence took place in broad daylight and the motive furnished by the prosecution supports the ocular evidence of the two witnesses, namely Shah Ali Bahadur, P. W. 15 and Shah Sharaf, P. W. 16 ; and that it was immaterial if the accused had taken 25 years for the revenge of murder of his deceased father as such feelings are hidden in the mind of the culprit who looks for the opportunity to implement his designs. The Court also took into consideration the abscondence of the accused appellants as corroboration of the ocular evidence. Finding them guilty under section 302, P. P. C. The trial Judge convicted the two appellants and sentenced them to death and a fine. Of Rs. 5,000 each on each count or in default of payment of fine, to undergo further R. I. For 5 years on each count. Out of the amount of fine a sum of Rs. 10,000 was ordered to be given to the heirs of the deceased as compensation under sec--tion 544-A, Cr. P. C.
14. On appeal the learned Judges of the High Court believed the ocular testimony and held that as the income from the shrine was to be divided in 4 equal shares and at the relevant time it was the turn of Munawwar group to collect the offerings as people from far-off places used to visit the shrine on every Sunday. As the day of occurrence was Sunday it could be reasonably said that there were many devotees present at the shrine but as the matter involved the descendants of their Pir, none of them would like to come forward and depose against the accused appellants.
They even observed that on the day of occurrence it was the turn of Munawwar group to collect the offerings, there was no reason why the members of other group not have been present of the shrine and in the opinion of the learned Judges the two witnesses were present at the shrine at the time of occurrence, it cannot be said that the witnesses were merely chance witnesses. Therefore, the High Court upheld the conviction and dismissed the appeal.
15. The learned counsel could not successfully assail the evidence of the two eye-witnesses. His emphasis was on the conflict between the medical evidence and ocular testimony. According to him, deceased Shah Mir was bit with three separate shots whereas the two eye-witnesses assigned only a single shot to each of the two accused appellants. On close scrutiny of the medical evidence we find that Shah Mir had a gunshot wound on the middle and outer part of the right upper arm with scorching and 3/8' circular with inverted margins breaking the body of the hurcrus and making an exit wound in the inner side of the right upper arm in its middle having dimension of 3" x 2' and again making entry wound on the right side of the chest measuring 4' x 2--" breaking the 8tb, 9th and 10th ribs. Second injury was noticed by the Doctor, on the outer and upper most part of the right thigh 7" x 4--" muscle deep with no exit and the third lacerated wound on the upper and outer part of the iliac of the right hip bone 3' x 1--" skin deep separated by skin from injury No. 2. This could be the result of a single shot on the outer part of the right upper arm making an exit wound in the inner side of the right upper arm and again entering the right side of the chest. The laceration could be the result of the first injury which had made an exit and caused the other injuries No. 2 and No. 3. The Doctor has also, in the post-mortem examination in the column of remarks stated that injury No. 1 was dangerous and due to fire-arm and injuries No. 2 and No. 3 was due to injury No. 1. A suggestion was put to the witnesses that injuries Nos. 2 and 3 on Shah Mir could not be ruled out as separate injuries which in no way means that these were caused by two separate shots or more than two shots. These were stated to be separate injuries.
Therefore, in our opinion the ocular evidence in not in conflict with the medical evidence and the presence of the witnesses and the other attending circumstances bring home guilt to the accused appellants. The appeal is accordingly dismissed.