ABDUL KHALIQ KHAN, J.-Muhammad Anwar son of Shamsher aged 30 years, resident of Tehkal Bala, Police Station, Tehkal was convicted by Mr. Jawaid Nawaz Gandapur, then Additional Sessions Judge, Peshawar under section 302/148/149, P. P. C. Vide order dated 29-11-1980 and sentenced him to life imprisonment and fine of Rs, 5,000 or in default to undergo further imprisonment of 6 months'
R. I. Under section 302, P. P. C. He further sentenced him to three years' R. I. Under section 149, P. P. C.
In addition he was fined Rs, 1,000 or in default to suffer one month's R. I. He was also sentenced to life imprisonment and fine of Rs, 3,000 or in default to suffer 6 months' R.
1., that under section 149, P. P. C. It was directed that all the sentences were to run concurrently and that on recovery of the fine, it was to be paid to the legal heirs of the deceased.
2. The convict has filed appeal (Criminal Appeal No 488/1980) against his conviction and sentence.
The complainant party has moved a revision petition (Criminal Revision No, 12/1981) for enhancement of the sentence of life imprisonment to that of death. We propose to dispose of the appeal and revision by this single judgment.
3. The incident took place on 7th of October, 1973 at 6-30 a.m. In Jangi Miangan known as Wesh Nala, situate in the area of Tehkal Bala at a distance of 3/4 miles from the above-mentioned Police Station wherein Jumma Khan son of the first informant, Abdul Ghani was murdered. He, who is now dead, reported the occurrence to Muhammad Rafiq Khan then S. I. Police Station, Tehkal, the same day at 8:30 a.m.
4. Briefly stated facts of the case as gleaned from the report Exh. P. A. Are that Jumma Khan deceased left for their land known as Wesh Nala, in the morning to sow clover. The informant was present in his house when Mohayuddin son of Hashim informed him that Shamsher, and his sons Jan Sher, Daulat, Akram, Anwar and Ashraf residents of the same village have put to death Jumma Khan near Jhangi Miangan and that Khair Muhammad son of Abdur Razzaq, Daulat Khan son of Madad Khan, Naimat Khan son of Madad Khan, Raza Khan son of Muzammil witnessed the occurrence and pursued the assailants. It was also stated that the motive for the offence was that he had purchased land from the accused Shamsher and that the accused insisted to settle the matter but be had refused.
5. After having recorded the report the mentioned Muhammad Rafiq Khan (P. W. 16) left for the spot where he reached at 9-30 a.m. He was informed that the people of the village were in pursuit of the assailants and the exchange of fire was in progress. He also came to know that the dead body of Jumma Khan has been already removed to the mortuary. He commissioned an A. S. I. To guard the spot and himself proceeded to the place known as Irshad Abad, at a distance of 1 miles. On arrival he found a police party handed by P. W. Shuja-ul-Mulk D. S. P. There. He also found the dead body of one of the outlaws namely Daulat Khan lying. The said D. S. P. Had already recovered some fire- arms left by the accused party at the spot and had prepared the memo. Exh. P. C/4. The Investigating Officer prepared the injury sheet and inquest report of Daulat Khan P.
0. And sent the dead body to the mortuary for post-mortem examination. At about 3:00 p.m. He returned to the scene of occurrence of the present incident and prepared the site plan Exh. P. B. At the instance of P. Ws. Raza Khan and others. From the spot he took into possession blood-stained earth and sealed the same in a parcel vide memo. Exh. P. C/2. He also recovered an empty of 103 bore and sealed the same in a parcel vide memo. Exh. P. C/3. Abdul Ghani, the complainant, produced a licence copy for a shot-gun standing in his name, in which Jumma Khan was entered as a retainer. He took the same into his possession vide memo. Exh. P. C/1.
6. Umar Shah, a constable brought from the mortuary a shirt, shalwar of the deceased having corresponding cut marks and blood-stained, also a vial containing a piece of bullet recovered from the body of Jumma Khan deceased, which he sealed into a parcel vide memo. Exh. P. C. He then sent the blood-stained earth, clothes of the deceased to the Chemical Examiner vide application Exh. P. N. But the report was not made available. Similarly the fire-arms recovered from the subsequent scene of occurrence though were sent to the Expert but the report was not available on the record. He recorded statements of some of the P. Ws. The accused as were not available, therefore, he got issued warrants and proclamations as required by sections 204 and 87/88, Cr. P. C. Against them. Proceedings under section 512, Cr. P. C. Were taken against the accused.
7. The present appellant was formally arrested by Gul Muhammad Khan A. S. I. While he was in Central Jail, Peshawar. Thereafter, a complete challan was put in Court against the accused.
8. As stated earlier, the dead body of Jumma Khan deceased was brought to mortuary Said Akbar (P. W. 5) identified his dead body. Dr. Ghulam Sarwar Khan (P. W. 1) was then Medical Officer, Police Hospital, Peshawar.
He conducted the post-mortem examination at 10-15 a.m. On the day of occurrence and found the following injuries on his external examination :- "(1) A bullet entrance wound 1/4" x 1/4' at the right occipital area 411 behind the right ear.
(2) A bullet exit wound of No. 1 with irregular exit covering the whole left forehead, left temporal area, the left eye is missing, the brain matter lying out of the wound, 5" x 31'.
(3) A bullet entrance wound 1/4" x 1/4' as the right parietal area.
(4) A bullet exit wound of No, 3, 2" xwith irregular area one inch behind the wound No, 2 at the mastoid area 1/2' at above the left area.
(5) Bullet entrance wound 1/4' X 1/4" at the left side face 1/2" in front of the left ear.
(6) A bullet exit wound of No, 5 with irregular edges at the left side forehead from the direction of the wound it was clear, that wound No, 2 was also the exit of No, 5.
(7) Bullet entrance wound 1/4' x 1/4" at the back of the left buttock.
(8) A bullet exit wound of No, 7, 1' x 1/2" at the front of the abdomen 3' above the umbilicus.
(9) Two bullet pieces of entrance wound 1/6' x 1/6' at the left little finger on frontal area.
(10) Two exit wound of No, 9, at the back of the left little finger 1/6" x 6'.
(11) Bullet pieces entrance wound 1/6" x 1/6" at the back of the left forearm at its lower end.
Internal Examination : ' The whole skull bones were fractured, the brain matter were lying out of the cavity. Intracranial blood vessels and nerves were found injured, the left eye was missing. Abdominal wall at the front was injured. Peritoneum, pancreas, small intestines at two parts, large intestines all were injured.
Stomach was healthy, full containing undigested food duration 2 to 3 hours. Urinary bladder was healthy and contained about 3 ounces of urine. Bones : ' All the bones of the skull, left side face, left little finger (middle tarinal phaltings) were fractured.
One bullet piece was removed on dissection from the left forearm at its lower end.
' In this opinion the death was due to shock and intra-cranical bleeding.
' Probable time between injury and death was reported to be instantaneous and between death and post-mortem examination 3 to 4 hours. Charring marks at the shirt and shalwar at the back were found present. The doctor testified the correctness of his report Exh. P. D./2.
9. The convict when formally charged claimed trial. The prosecution not only got examined witnesses to prove the instant occurrence but also that of the subsequent happening when the villagers and police party pursued the assailants and got killed Daulat Khan, one of the members of the assailants party.
10. The convict when examined under section 342, Cr. P. C. Once again refuted the charge and reasserted his innocence. He, however, did not produce any evidence in defence.
11. On consideration of the evidence on the file, the learned trial Court found him guilty for the commission of the offences of forming an unlawful assembly and consequently, putting Jumma Khan to death resulting in the impugned order.
12. The prosecution case rests on the ocular evidence of Raza Khan (P. W. 14) and Naimat Khan (P.
W. 15), coupled with the medical evidence and abscondence of the accused.
13. It was, however, argued by Khawaja Muhammad Khan, the learned counsel for the appellant that the order under appeal is against law and facts on the file and that the deposition of the two eyeswitnesses are inconsistent inter se and not in keeping with the medical evidence. Apart from the fact that the two eye-witnesses are close relations, presence of Raza Khan (P. W. 14) at the spot at the relevant time has been eliminated by P. W. Naimat Khan. It was also stated that the conviction of the appellant under section 149, P. P. C. Is not warranted by law.
14. The main question for determination in this appeal would be whether the eyeswitnesses were present at the time of the occurrence and witnessed the same. In order to arrive at a definite conclusion, we deem it proper to reproduce relevant portions from their testimony. Raza Khan (P.
W. 14) has stated that : "On the day of occurrence I was going to my fields in the morning at about 6/6.30 a.m. On the path known as `Paya Malakhana'. Jumma Khan deceased was going ahead of me at a distance of few spaces. He was armed with a single barrel shot-gun. I was standing there when the deceased Jumma Khan reached at a place known as `Ghazona' Dherai. I saw the present accused accompanying by the absconding accused Khan Sher, Akram, Ashraf. Shamsher and Daulat Khan the dead accused, all armed with fire-arms, sitting on a raised platform known as Ghazona Dherai.
The accused and the absconders and the accused started firing at Jumma Khan deceased. In return Jumma Khan deceased also fired at them in self-defence about three shots and thereafter out of fear of the accused party the deceased ran towards the field of Rahimullah which had no crop. The accused, the absconders and the dead accused followed the decd. And in the process they were firing at. Jumma Khan deceased as a result Jumma Khan deceased got injured and he fell to the ground. Anwar Khan accused then sent near the dead and while placing his topak near the body of the deceased fired at him and thereafter the accused took away the shot-gun of Jumma Khan deceased. Thereafter the accused absconders and the dead accused decamped from the spot. I went near the deceased and found him dead and I observed at that time, that P.
Ws. Daulat, Naimat and Khair Muhammad also reached there. They also witnessed the occurrence.
' Upon hearing the report of fire shots the Chigha party of or village had also arrived at the spot and they went after the accused party and in the limits of village Irshad Abad the Chigha party exchanged firing with the accused and the absconders which continued for about 10/12 minutes, during which the police party also arrived and they also exchanged firing with the accused party.
During the aforesaid firing the accused and the absconders give up the encounter and they escaped through fields leaving the dead body of Daulat Khan in a field."
' Naimat Khan (P. W. 15) stated that : "My field and that of Daulat Khan my brother was about 150 paces away from the spot. On that day of occurrence at about 6-30 a.m. Myself and my brother Daulat Khan P. W. Had just reached or field for Zamindara work when we heard the report of Dheri. When we saw towards the Dheri I saw accused Anwar accompanied by Khan Sher, Akram, Ashraf, and Shamsher and the accused Daulat, all armed with topaks. I also saw Jumma Khan decd. Who also armed with a shot-gun going on the path towards the Dheri and the accused party were firing at him. Being hit with a few shots Jumma Khan deceased ran towards the field of Rahimullah after firing a shot or two towards the Dheri. During the firing I saw the deceased falling in the field of Rahimullah. The accused accompanied by his companions went near the deceased and fired more shots at the deceased from a close range. Thereafter Anwar Khan accused took away the shot-gun from the possession of the deceased and he alongwith his companions ran towards Warsak road through fields. I .Had also seen Khair Muhammad P. W. Proceedings ahead of Jumma Khan deceased on the path at the time of firing and the deceased was followed by Raza Khan P. W. When the accused party decamped from the spot, Raza Khan and Khair Muhammad also came near the dead body. At that time a Chigha party from the village arrived and they went after the accused. Near the field of village Irshad Abad, the Chigha party exchanged firing with accd. Party which continued for about one hour. During this period the police also arrived. In the encounter one of the companions of the assailants namely Daulat was also killed."
15. It was urged at the time of arguments by the learned counsel for the appellant that the ocular witnesses being close relations of the deceased, therefore, without corroboration, their testimony cannot be accepted on a capital charge.
16. We have considered this aspect of the case. The objection, however, would have no force as the witnesses are equally related to the appellant. Therefore, apparently we see no reason for false implication. Mere relationship, as we know, of the eye-witnesses with the deceased would not render per se account of incident subject to doubt. We have covered the evidence of the two witnesses but were not able to unearth any reason for false implication. In the circumstances, when the witnesses had also landed property in the same vicinity, therefore, as Zamindars, their presence near the scene of occurrence at the relevant time can in no case be considered unnatural. In the ordinary circumstances, their presence in connection with Zamindara in their fields could be presumed.
17. It was then contended that taking into consideration the site plan Exh. P. B. Prepared at the Plantation of the eye-witnesses, the presence of charring on the dead body of Jumma Khan deceased would be sufficient to discredit their testimony regarding their presence at the scene of occurrence. To elaborate his arguments, it was pointed out that according to the site plan, the appellant and his associates were present at point No. 1 while Jumma Khan deceased is shown to have been proceeding towards his land on the path known as `Paya-Malakana'. He was at Point No, 2, when he was fired at from Point No. 1, from a distance of 20 paces. Point No, 3 is shown at distance of 100 paces, where he fell to the ground. Points Nos. 4 and 5 denote the places where Khair Muhammad and Raza Khan were present and witnessed the occurrence while P. W. Naimat Khan and Daulat Khan saw the firing from Point No, 6, at a distance of 150 paces from Point No,
2. It was contended that as the accused have not been shown to have come down closer, therefore, their statements will stand discredited.
18. Site plan, as we know, is prepared under rule 25.13 of the Police Rules, 1934. It provides that in all important cases two planes of the scene o offence shall be prepared by a qualified police officer or other suitable agency, one to be submitted with the charge-sheet, or final report and the other to be retained for departmental use. In the circumstances, it could C not be disputed that site plan is not a substantive piece of evidence. It, therefore, could not be used to contradict or discredit unchallenged evidence of the prosecution eye-witnesses. In support of the proposition PLD 1956 SC 234 (?) can be cited.
19. Moreover, the party to the transaction could not be expected to have remained fixed to their original places. As the evidence goes, the assailants having commenced the assault pursued the victim and it was but natural that they came closer to the deceased and fired their guns from charring mark distance. The entries of the site plan, therefore, in or view will not be sufficient for discrediting the eye-witnesses.
20. It was further contended that the non-recovery of seed of clover allegedly taken by the deceased to be sown in his land, will make the testimony of the witnesses doubtful.
21. It is clear from the record that the clover seed was not recovered by the investigating Officer but the question will remain to be answered, if the non-recovery will adversely affect their statements in Court.
22. It is clear from the perusal of the record that the Investigation Officer did not recover any clover seed from the scene of occurrence. It is, however, clear from the evidence that the deceased having been confronted by a substantial number of opponents was forced to run for life and had to- cover quite a distance before he was overpowered, and gunned from close range. It was but natural that he would have thrown, the, clover seed and as the evidence show, as the assailants were pursued by a Chigha' as well as police party, therefore, either some body took away the seed or it was trampled under the feet of the two parties and other people from the village and when the Investigating Officer came to the scene of occurrence, it was not available. The failure to recover clover seed would not in any way adversely affect the testimony of the two eye-witnesses.
23. It was further contended that the ocular evidence is not conformity with the medical evidence.
24. We have considered this aspect of the case but would not find ourselves in agreement with the learned counsel for the appellant. It is in the statements of the ocular witnesses, reproduced above that the deceased was pursued and ultimately fired at from close range. The presence of charring marks on the dead body has been, therefore, properly explained.
25. The sum and substance of the discussion above would be that the presence of the eyes witnesses at time of occurrence cannot be doubted, therefore, these statements provide firm foundation for conviction of the appellant. Their statements find support from (z) the medical evidence, (ii) ascendance of the accused and (iii) the subsequent event which led to the elimination of one of the assailant party.
26. The next question would be whether in facts and circumstances of the case the sentence awarded to the accused is legal and adequate,
27. We may at the very outset state that the learned trial Court has erred in awarding sentence of life imprisonment to the appellant, under section 149, P. P. C. As it does not create a new offence but provides for vicarious liability for offence committed by others in furtherance of common object.
28. The complainant party has moved this Court by filing a revision petition that the sentence of life imprisonment awarded to the appellant under section 302/149, P. P. C. Is not in consonance with the law. No reason whatsoever has been given by the learned trial Court nor we find any apparent from the record, why the normal sentence of death was not recorded. The respondent has been found guilty of the commission of wanton murder. In the circumstances, the extreme sentence was the normal sentence. It was, therefore, the duty of the trial Judge under section 367(5), Cr. P. C. To have passed sentence of death in the absence of reasons or reason for not passing such sentence.
Once the learned trial Court was convinced about the truth of the prosecution story, conviction had to follow. It is well-established that the question of sentence is always to be determined not with reference to the value or character of the evidence adduced by the prosecution in support of its case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If it is satisfied that there are such mitigating circumstances, only then it could justify in imposing the lessor of the two sentences provided by law. Let it be stressed that the question as to what punishment should be imposed is for the Court to decide in all the circumstances of the case with particular reference to extenuating circumstances if any.
29. In the instant case we find no reason or mitigating circumstances to impose the lessor penalty on the appellant. We will, therefore, while accepting the revision petition alter the sentence of life imprisonment to that of death.
30. Consequently the appeal of the appellant is dismissed while the revision petition that of the opposite-party for enhancement of the sentence accepted, and in result we direct that the convict be hanged by the neck till he is dead.