1. SHAH NAWAZ KHAN, J.-Sherin son of Lal Mir, aged about 55 years and his sons Habib Khan aged 36 years and Bunir Khan alias Torey aged about 30 years residents of Tela Band, Police Station Badaber, district Peshawar, were tried in the Court of Additional Sessions Judge, Peshawar, on charge under section 302/34, P. P: C. For committing the murder of Sher Bahadur son of Lal Mir, in furtherance of their common intention, with fire-arms, at Deegar Wela in the limits of Tela Band at a place known as Khawar Patay, Police Station, Radaber, on 12.8-1978.
2. Sherin accused is the brother of Sher Bahadar, deceased, and the other two accused, namely, Habib Khan and Bunir Khan are the nephews of Sher Bahadar, deceased.
3. At the conclusion of the trial, the learned Additional Sessions Judge, Peshawar, found all the three accused guilty of offence punishable under section 302/34, P. P. C. In her opinion, it was a cold- blooded murder of the deceased and the prosecution had proved its case against the accused beyond any shadow of doubt. All the three accused were, accordingly, convicted under section 302; 34, P. P. C. And each one of them was sentenced to death, subject to confirmation of the High Court.
4. The three accused-appellants went on appeal before the Peshawar High Court against their conviction and sentence. Reference was also made for the confirmation of the death sentence imposed on the accused by the Additional Sessions Judge under section 374, Criminal Procedure Code.
5. After hearing the appeal and the Murder Reference a Division Bench of the Peshawar High Court concurred with the finding of the Additional Sessions Judge and observed that all the three appellants had participated in committing the murder of the deceased in furtherance of their common intention. However, as regards Habib Khan and Bunir Khan, the learned Judges of the High Court were of the view that they seemed to have been persuaded by their father, accused Sherin, in committing the crime and they were obliged to join him at his instance in perpetrating the crime. Moreover, they found that their fire shots had not caused the death of the deceased, and that the deceased had actually died with the fire shots of Sherin accused. The death sentences of Habib Khan and Bunir Khan were consequent--ly not confirmed, and while maintaining their conviction, their sentence was reduced from death penalty to imprisonment for life. The death sentence award--ed to Sherin accused was, however, confirmed and his appeal was dismissed.
6. The learned Judges of the High Court also observed that no compensation has been awarded by the Additional Sessions Judge to the heirs of the deceased within the meaning of section 544-A, Cr.
7. P. C. Nor any one of them had been sentenced to pay fine. They, therefore, directed that each one of the accused-appellants shall pay Rs. 2,000, as fine and on the recovery of the fine, out of that amount, Rs. 5,OC0, shall be paid to the heirs of the deceased by way of compensation as conceived in section 544-A, Cr. P. Code, and in default of payment of such amount, the accused- appellants were to suffer six months further imprisonment.
8. The accused (convicts) then moved this Court through Criminal Petition No: 62-P of 1980, for special leave to appeal against the impugned judgment of the Division Bench of the Peshawar High Court passed in Criminal Appeal No. 282 of 1979, on 9-6-1980. Another Criminal Petition Bearing No. 74-P of 1980 was moved by Zarin a brother of the deceased and Mst. Noorina widow of deceased under Article 185(3) of the Constitution for leave to appeal against the said judgment of the High Court in the said criminal appeal. They sought leave to appeal against the reduction of the sentence of Habib Khan and Bunir Khan and also for the enhancement of the amount of compensation awarded to the heirs of the deceased.
9. The petition was heard by a Bench of this Court and leave was granted to examine whether the established principles of appraisal of evidence have been followed in finding the accused to be guilty. Leave in the connected petition was also granted for the reappraisal of the evidence recorded in the case regarding the enhancement of the sentence of Habib Khan and Bunir Khan.
10. According to the F. I. R, (Copy Exh. PA), the report was lodged in Police Station, Badaber, district Peshawar (by Zarin, brother of the deceased and Sherin accused) on 12-8-78 at about 10.00 p. m.
11. Which reads as under: - "The complainant entered in Khana No. 2 came to police station along--with the dead body of his brother Sher Bahadur brought in Bus No. PRB-5246, and Zarin lodged the report stating that today at the time of occurrence (Degar time) I had gone to the shop of Aziz GUI for purchasing ice, when 1 heard the report of firing. After a while I heard that my brother Sher Bahadar has been murdered by Sherin my brother and his sods Habib Khan and Bunir Khan by fire-arms, On this information I left for the spot, but the dead body of my brother Sher Bahadar had been brought to his house from the spot by the persons present over there. On my inquiry I learnt that at the time of occurrence my brother Sher Bahadar, deceased, was accom--panied by Sultan Muhammad son of Faqir Muhammad and Gul Zaman son of Abdur Rehman residents of our village and they saw the occurrence with their own eyes. Motive for the offence was that there was a dispute between the accused and the deceased over some land in connection with which the accused had already been bound down I charge Sherin son of Lal Mir, Habib Khan and Bunir Khan alias Torey for the murder of my brother Sher Bahadar."
12. After writing the report and registering the case, the Sub-Inspector left for the spot, which was at a distance of 7/8 miles from the police station. On the spot, he prepared the injuries statement of the deceased, which is Exh, PD and also his inquest report Exh. PD/1. He then despatched the dead body to the mortuary under the escort of Mir Zaman F. C. For post--mortem examination.
13. Dr. Liaquat Ali (P, W. 2) performed the post-mortem examination on the dead body of Sher Bahadur on 13-8-1978 at about 8-00 a. m. And found the following injuries on his body:
(1) Fire-arm entry wound 1/4" X 1/4" just in front of the left ear, Charr--ing marks present.
(2) Fire-arm exit wound 2' X 2' on the right side of face.
(3) The head above the ears and eyes was broken into pieces.
(4) Fire-arm entry wound 1/2' X 1/2' on the lateral aspect of left thigh.
(5) Fire-arm exit wound 2" X 3" on the medial aspect of left thigh.
(6) Fire-arm entry wound 1/4' X 1/4" on the lateral aspect of right leg.
(7) Fire-arm exit wound 1/2" x 1' on the medial aspect of right leg.
(8) Four scratches on the anterior side of right leg below the knee joint.
14. On internal examination, he found the brain and blood vessels of the mouth injured. Skull bone and left femur was also fractured. His stomach was healthy and empty. In his opinion the death was due to the injury of the brain caused by fire-arm. About the charring marks, which he had found at Injury No. 1, Dr. Liaqat Ali stated that these marks can only be possible if the shot is fired from a distance of 3 ft. He added that the bullet hitting the hard substance like bone can change its direction.
15. At the trial Khan Muhammad (P. W. 1) appeared as a formal witness. He is related to the deceased and he had identified the dead body of the deceased at the mortuary at the time of post-mortem examination. According to him the spot is 60/70 paces from the house of Sher Bahadar, deceased.
16. Mir Zaman, F. C. (P. W. 3) had escorted the dead body of the deceased to the mortuary. He also brought his garments after the post-mortem examination from the Doctor, which he produced before the Investigating Officer. Siraj Muhammad (P. W. 4) has stated that he had joined the investigation with the Investigating Officer and from the spot the Investigating Officer had picked up blood-stained earth Exh. P/1. He also picked up one empty shell of 7 mm, Exh. P/2, which smelt fresh discharge. These were sealed in separate parcels. One other shell of 7 mm was also recovered by the Investigating Officer from the spot, which also smelt fresh discharge and was sealed into a parcel vide Exh. PC/2. One empty cartridge of .303 bore Exh. P/4 was also taken into possession by the Investigating Officer in his presence, when recoverd from the spot at that time. It also smelt fresh discharge. It was also sealed in a separate parcel vide Exh. PC/3. One lead bullet Exh. P/5 and covering Exh. P/6 were also recovered by the Investigating Officer from the spot in his presence, which were taken into possession and sealed in a parcel Exh. PC/4. The skull bone pieces Exh. P/7 of deceased Sher Bahadar were also found by the Investigating Officer on the spot, which he took into possession and sealed them in a parcel Exh. PC/5.Later F. C. Mir Zaman P. W. Had produced shirt Exh. P/8, Shalwar Exh. P/9, Roomal Exh. P/LO and small piece of cloth Exh. P/Il, which he brought from the Doctor after the post-mortem examination of the deceased and produced the same before the Investigating Officer, who took them into possession arid sealed them in a parcel vide memo. Exh. PC/6.He stated that all the memos mentioned above bear his signatures and that these are correct. Wasih Ullah (P. W. 5) produced Exh. P/2, which is the certified copy of the sheet containing landed property owned by accused Sherin. The total area belonging to him was 206 Kanals and 13- Marlas. Waris Khan, S. I. (P. W. 6) while posted as S. H. O. Badaber had submitted the supple--mentary challan against the accused after the arrest of the accused in the Court premises after their pre-arrest bail was not confirmed. Muhammad Idris (P. W. 7) had arrested the accused on 9-1-79 in the premises of the Sessions Court, Peshawar, after they were refused pre- arrest bail. Badshah Khan, DFC (1'. W. 8) had made a search for the accused after the occurrence, but they could not be found. He had been entrusted with the search warrants issued under section 204, Cr. P. C., which could not be served on the accused as they had absconded and were not present in their village or the adjoining villages. He then returned the same as unserved. Then proceedings under section 87/88, Cr. P. C. Were taken against the accused, but with no effect.
17. Zarin (P. W. 9), who had lodged the report appeared in the witness-box. He supported his F. I. R. And added that Sultan, Gul Zaman and Mst. Noorina were present with the dead body of the deceased when he reached there. They all charged Sherin. Habib Khan and Bunir Khan for murdering Sher Bahadar, deceased. He stated that after the occurrence there was severe storm and it rained heavily. Moreover, it was the month of Ramazan and Iftari was to be taken and after the wind and storm had stopped they brought a bus and then took the dead body to police station. The road up to the police station is Katcha and rough. In this way he tried to explain the delay in lodging the report. He also proved the enmity between the deceased and the accused party, which had led to the security proceedings between them prior to the occurrence. The other ocular witness, who has been relied upon by the two Courts below is Sultan Muhammad, who appeared as P. W. 10.
18. According to him he had no enmity with the accused and they and the deceased were his Tarboors. The time of occurrence was Deegar Wela. He was close to the deceased and in his presence the deceased was fired at by Sherin accused as a result whereof the deceased- was hit and he sat down. Bunir Khan and Habib Khan, who were earlier also biding themselves, then got up and they fired at the deceased, who was hit and he fell down. Then accused Sherin came-near Sher Babadar, who had already fallen down on the ground and then he placed the barrel of his gun on the head of deceased and fired. Meanwhile many; persons from the locality reached the spot, and the accused after the commission of the offence ran away from the spot. Gul Zaman P. W. Was also with him at that time. According to him Mst. Noorina P. W. Was also present near about the spot, as she was grazing her buffaloes in the nearby field at the time of occurrence. He was cross- examined at considerable length, but he could not be shaken so far as the main version was concerned. The dispute between the accused and the deceased was about a small portion of the landed property, which had been purchased by Sherin from a retired Inspector General of Police, but it was already in the possession of Sher Bahadar, deceased. There was some litigation about that land between them. Mst. Noorina widow of the deceased also appeared as P. W.
11. She contended that she was an eyewitness, but her statement was not believed by the two courts below. Gul Zaman was also entered in the witness-box as a Court witness, but he stated that the occurrence did not take place in his presence. He, however, stated that he knew Mst. Noorina widow of Sher Bahadar deceased being her co-villager, and that he had seen the widow of the deceased in the ceremonies of the village.
19. It is proved on record that after the occurrence all the three accused appellants had absconded and they were arrested after about five months of the occurrence.
20. P. W. Zarin, is a brother of Sher Bahadar, deceased. He is also the brother of Sherin accused and is uncle of Habib Khan and Bunir Khan accused.
21. The accused appellants in their statements recorded under section 342,Cr. P. C. Denied the charge and stated that, in fact, they had not absconded after the occurrence, but that they were busy seeking pre-arrest bail from the Court of Sessions Judge. They further stated that they have been falsely charged for the murder of Sher Bahadar because they had some dispute with Sher Bahadar over some landed property. None of them had specifically stated as to why Zarin who is also the brother of Sherin accused appellant and uncle of the other 2 appellants had any particular enmity or cause, to oblige him to give a false statement against his own brother and nephews Moreover, Zarin has not stated that the occurrence took place in his presence. What he has stated is that he heard the report of fire shots and thereafter came to know that the three accused appellants had killed Sher Bahadar, deceased, with their fire arms. P. W. Sultan Muhammad is the eye-witness of the occurrence and he has stated that the occurrence, as set forth, took place in his presence.
22. Delay in lodging the report has been fully explained. The distance between the spot and the police station is 7/8 miles; the road is Katcha and rough, and no conveyance was available on the spot and a bus had to be brought from elsewhere. It was the month of Ramazan and the Iftar time was approaching. Moreover, the three accused immediately after the occurrence absconded and they remained absconding for about five months till they were arrested by the police. Their absconsion is a strong circumstantial evidence in support of the ocular testimony of Sultan Muhammad P. W.
23. And the report lodged by Zarin P. W. Mst. Noorin was disbelieved solely on the ground that being a female and a house-wife, she was not expected to graze the buffaloes at the time of occurrence in the field. But even besides her, the case of the prosecution is convincing and the mere fact that Mst. Noorina was disbelieved should not be a ground to discredit the testimony of Sultan Muhammad P. W. And also if on the basis of the other evidence the Court is satisfied that the prosecution has succeeded in proving the charge against the accused.
24. Moreover, the evidence of P. W. Zarin is worthy of confidence, in the circumstances of the case. He is closely related to the deceased and Sherin accused and he does not show that he is an eye- witness of the occurrence. P. W. Sultan Muhammad appears to be a truthful man and notwithstanding the fact that he had some land dispute with the accused, but he is stating what even the brother of accused Sherin is sure about and both of them are consistent that the three accused are responsible for the murder, of the deceased. Morever, the accused have not been successful to explain as to why they remained in abscondence from the date of occurrence up to 9-1-1979 when they were arrested. It is nowhere claimed that they had themselves surrendered before the police. Their absenceof such a long time and remaining in abscondence is a corroborative piece of evidence to recoil on their guilt.
25. We are, therefore, in agreement with the concurrent finding of the two Courts below that the three accused appellants had caused the murder of Sher Bahadar, deceased, through fire-arms, in furtherance of their common intention, and all of them have been rightly convicted under section 302/34. P. P. C. And properly punished by the High Court.
26. The result of the above is that Appeal No. 17-P of 1980, is, therefore, dismissed. Appeal No. 18-P of 1980, is also dismissed. We are of the view that the High Court has arrived at a correct conclusion and the accused appellants have been appropriately punished.