' INAYAT ELAHI KHAN, J.-- The appellants, Baz Muhammad son of Ghulam Hussain aged 27 years, Azim Khan son of Nauroz aged 35 years, Mehmood Khan son of Kamal Khan aged about 24/25 years and Munaf Khan son of Kamal Khan aged 30 years, refugees from Afghanistan, at present residents of Mohallah Data Gunj Bakhsh, Lahore, were tried for the murder of Moheeuddin son of Sifat Quli (also a refugee from Afghanistan) by the Sessions Judge, Peshawar, and convicted under section 302/34, P.P.C. And sentenced each to imprisonment for life and a fine of Rs,2,000. In default of payment of fine each one had to undergo R.I. For one year. The fine, if recovered, is to be paid to the heirs of the deceased under section 544-A, Cr.P.C. The period of their detention was also ad;usted towards the main sentence. The appellants feeling aggrieved have come in appeal to this Court.
2. The prosecution case as disclosed in the statement of Mst. Lal Bibi alias Lalo (P.W.13) resident of Saidan Qilla, village Kangra, Tehsil Charsadda, is that on 12-5-1982 at about 5.00 p.m. When her husband Moheeuddin (deceased) had gone to t'he mosque for offering prayers and she was busy collecting fuelwood at a place between her house and the house of Mubarrak Shah (P.W.11), she heard an alarm as well as the report of a fire-shot from the side of the mosque. On looking towards the mosque she saw the four appellants running after her husband. They caught hold of her husband near the house of Mubarak Shah. Baz Muhammad (accused) was armed with atamancha while the remaining three accused were armed with churri, knife and Lor (sickle). Baz Muhammad accused fired at her husband and the remaining accused gave repeated blows to the deceased with their respective weapons. Her husband fell down and died instantaneously. The four accused then ran towards the road side. They were chased and arrested by the people of the village. She stated that her husband had an old enmity with Baz Muhammad accused. Later on the police arrived at the spot and her report was recorded in the form of a murasila (Exh.PA/1). She identified accused Baz Muhammad who was present in Court. She could also identify the rest of the three accused who had accompanied Baz Muhammad and participated in the crime but stated that she does not know their names individually.
3. Hameedur Rahman S.I. On 12-5-1982 at about degar time was on gasht in village Yaghi-Band where he came to know that an Afghan refugee had been murdered by some other Afghan refugees. He alongwith the police party rushed to the spot and found that the appellants were already apprehended by the villagers. He saw the dead body of the deceased lying on the spot surrounded by many people. Mst. Lal Bibi alias Lalo the widow of the deceased was also present and her report was recorded in the form of a murasila Exh.PA/1 which was forwarded to the police station, Shahbaz Garhi, for the registration of the case. The witness then prepared injury-sheet (Exh.PJ) and inquest report Exh.PK of the deceased and sent the dead body to the mortuary for the post-mortem examination. All the four accused after having been arrested by the villagers were confined in the hujra of Abdul Malik (P.W.10). The accused were then arrested by him and sent to the Police Station.
4. The autopsy on the dead body of the deceased was performed by Dr.Khalil-ur-Rahman (P.W.12) on 13-5-1982 at 6.30 a.m. And found the following injuries:- ' External Examination.
(1) One incised wound 1" x 1/4" by size on right side of nose.
(2) One incised wound 1/2" x 1/4" on the front of forehead.
(3) One incised wound 1/2" x 14" on left side of cheek below the left eye.
(4) Three firearm inlet wounds 1" x 1" each on the left side of neck going deep into the neck and chest. The outlet for these wounds could not be found out.
(5) One incised wound 1/2 x 14" by size on the left side of neck.
(6) One firearm inlet wound 1/4" x 1/4" on the lateral side of left forearm below the elbow. The bullet passed towards the medical side and was lying subcutaneously and was removed.
(7) One incised wound 1" x 1" by size on the back of left forearm at the elbow joint.
(8) One incised wound 4" x 1" by size on the back of left hand.
(9) One firearm inlet wound 1" x 1" by size on the left arm below the shoulder. The bullet passed posteriorly and made exit wound of 1" x 1/3" size on the back below the inferior angle of left scapula.
(10) Three incised wounds on the front of chest 4" x 1/3" on the left shoulder muscle deep.
(11) One incised wound on the front of chest 1" x 1" below the left clavicle.
(12) Two incised wounds 4" x 1" on the left side of chest wall.
(13) One incised wound 1/2" x 1" on the back of left scapula.
(14) One stab wound 11/2" x 4" on the front of the chest just above the epigastrium passing deep into chest cavity.
(15) One stab wound 11" x 1" by size on the right side of neck above the right clavicle.
(16) One stab wound 11" x 1" by size on the back of right scapula.
(17) One stab wound 1-1/3" x 1" by size on the right side of the back at the level of about 10th thoracic vertebrae.
(18) One incised wound 1" x 1" by size on the back side of right hand.
' Internal Examination.
' On internal examination scalp, walls of the ribs and cartilages, pleurae, larynx and trachea, right lung, left apex, pericardium and heart, thoracic aorta, oesophagus, diaphragm and spleen were found injured. Stomach was empty and injured. Bladder was healthy and empty. In the opinion of the doctor the death occurred due to haemorrhage, shock, internal and external bleeding caused by firearm and sharp-edged weapons. He stated that after receiving the injuries to the heart, pericardium and aorta, it was not possible for a victim to run 20 to 100 paces.
' The prosecution case rested on the ocular testimony of Mst. Lal Bibi alias Lalo (P.W.13) and Mubarak Shah (P.W.11) and the supporting evidence given by Muhammad Hussain (P.W.9) and Abdul Malik (P.W.10), the circumstantial evidence relied upon is the apprehension of the accused near the spot soon after the occurrence, the blood-stains found, on the clothes of Baz Muhammad accused, recovery of one empty shell of .32 bore from the spot and one spent bullet recovered from the dead body. The existence of a strong motive for the offence was also relied upon by the prosecution. At the trial the appellants pleaded innocence and stated that they had come to the village in question in search of labour because of the harvesting season. They stated that excepting the widow of the deceased nobody has charged them for the murder and the other witnesses have given evidence against them because they (the appellants) were from Afghanistan and an Afghan national had been killed.
6. The learned counsel for the appellants contended that the eye-witness account furnished by Mubarak Shah and Mst. Lal Bibi (P.Ws.) being discrepant and unreliable was not sufficient to base conviction thereon. Further contended that the circumstantial evidence about the arrest of appellants soon after the occurrence was also incosistent and does not inspire confidence.
Particularly, when the weapons of offence stated to be used in the occurrence were not recovered from the appellants who were allegedly chased by the people and arrested at a distance of about 300 paces from the scene of occurrence. It is also urged that the alleged blood-stains found on the clothes of Baz Muhammad accused would be of no consequence because the Chemical and Serolgical examination of the suspected blood-stains on the aforesaid clothes and the clothes of the deceased revealed only that they were of human blood but not fit for grouping. The recovery of .32 bore empty from the spot and the spent bullet from the dead body of the deceased is also assailed since the weapon of offence had not been recovered.
7. The ocular account of the occurrence is also furnished by Mubarak Shah (P.W.11). He stated that on the day of occurrence he was present in the fields near his house. The deceased was in the courtyard of the mosque. All the four accused went to the mosque where Baz Muhammad accused fired 4 shots at the deceased. The deceased then came out to the street and fell down. The Chhuri blows were inflicted upon the deceased in the street by the remaining accused. The witness while giving evidence before the trial Court pointed out Baz Muhammad as having used the pistol in the occurrence. The rest of the accused were stated to have used Chhuri and sickle. The sickle was attributed to Munaf accused. About the accused Azim Khan the witness said that he had slaughtered the deceased and then sucked his blood. He stated that he and Zamarrud Shah chased the accused and caught them at some distance. He further stated that Abdul Malik (PW) washed the blood-smeared mouth of Azim Khan accused. In cross-examination he said that the deceased, when came out of the mosque and was running away, was chased by Baz Muhammad.
The rest of the accused were stated to have given Chhuri and sickle blows to the deceased after he fell down. The accused was not previously known to him but he identified them at the time of the occurrence. The deceased had fallen down near him in front of his house. Again he said that he and Zamarrud Shah did not catch hold of any of the accused and it was Abdul Malik who apprehended them. About 80 to 100 persons had gathered by that time and all of them apprehended and brought the accused to the hujra of Abdul Malik. Thereafter he went to the place where the dead body was lying. At that time the dead body was lying alone. He remained with the dead body till the arrival of the police. He stated that after the murder, the wife and children of the deceased came and started crying. He stated in Court that excepting Baz Muhammad he could not point out the other accused by name. He had identified the remaining accused on the spot and could identify them in Court. He stated that he came to know about the names of the accused soon after the occurrence because they were addressing each other by their names.
8. Muhammad Hussain (P.W.9) was working in the village. He heard the report of fire shots and a roar of the people that the assailants should be caught hold of as they had killed a man. He saw the appellants running while being chased by the people. He came to the road and saw that the appellants had been apprehended by the people. They were brought to the hujra of Abdul Malik and confined there. In answer to a question by the trial Court as to whether the four persons apprehended by the people were present in Court, the witness looked straight at the accused, towards whom he had already been staring, and stated that these might be the persons but I do not know them. Abdul Malik (P.W.10) deposed that on hearing the report of a fire shot from Saidan Qilla he went ahead and heard the call of Mubarak Shah (P.W.) that these people had killed a man.
The persons referred to by Mubarak Shah were four in number and were running away. One of them was armed with a pistol, another was carrying Chhuri and the rest of the two were armed with sickles. At that time Mubarak Shah and some other persons were chasing the accused. He also rushed towards the accused and at a distance of about two furlongs from the village they succeeded in apprehending the four persons. They were not known to them previously as they had come from Afghanistan. He stated that the four persons sitting in Court are the same who were apprehended on the day of occurrence. He stated that out of the accused two persons were keeping beard at that time while in Court he found all the four having grown beard. The four persons after being apprehended were brought to his hujra and confined there. He stated that the pistol was snatched away by him from one of the accused whose name he did not know but pointed out towards Mehmood Khan accused and stated that the pistol was snatched from him.
He stated that the pistol was handed over by him to the police. He said that he did not see knife in the hands of any of the accused and it was incorrectly recorded in his police statement that he saw knife/dagger etc., with the remaining three accused. He did not go to the place where the deceased was lying and, therefore, could not see who lodged the report.
9. On a careful assessm ent of the entire evidence it clearly emerges that the four appellants who are presently the residents of Mohallah Data Gunj Bakhsh, Lahore, were apprehended near the scene of occurrence by people of the village including Muhammad Hussain and Abdul Malik (P.Ws.). The appellants after having been apprehended were confined in the hujra of Abdul Malik (P.W.) till the arrival of the police wherefrom they were formally arrested. There is no plausible explanation as to why the appellants had come from Lahore to a far-away village in Tehsil Charsadda. The only inference would be that they had come to village Kangr'a on purpose. The contention of the learned counsel is that the motive alleged in the F.I.R. Is blood-feud between the parties but in her evidence Mst. Lal Bibi alleged enmity only against Baz Muhammad who is stated to have abducted the sister's daughter of the deceased and subsequently married her. The fact that Azim Khan, Mehmood Khan and Munaf Khan appellants were apprehended in the company of Baz Muhammad would show that either they were on inimical terms with the deceased or being companion and friends of Baz Muhammad had accompanied him on this criminal errand. The evidence of Mst. Lal Bibi and Mubarak Shah (P.Ws.) is consistent on the point that the deceased was done to death by the four appellants. Baz Muhammad (appellant) is stated to. Have fired at the deceased wit) his pistol whereas the remaining three appellants are given the role or inflicting injuries with knife, dagger and sickle. The evidence of the eye-witnesses coupled with the circumstantial evidence of the apprehension of the appellants soon after the occurrence after a long chase by the villagers clearly proves that the appellants and none else is responsible for the murder of the deceased. The mere absence of the recovery of the pistol or other weapons of offence would be of no consequence inasmuch as the number and nature of the injuries sustained by the deceased and proved by the medical evidence lend sufficient corroboration to the prosecution version of the case. The possibility that the weapons of offence were either thrown away by the appellants while taking to their heels from the spot or that the weapons having been found by the villagers and taken away or concealed by them cannot be ruled out. However, the fact remains that the appellants were apprehended in the village soon after the occurrence and they failed to give any explanation as to cause of their presence there. The version of the eye- witnesses which is duly corroborated by the medical and the circumstantial evidence leads to the irresistable conclusion that the appellants alone are responsible for causing the murder of deceased. Thus, the effect of the consistent evidence about the appellants' presence in the village and their participation in the crime cannot be destroyed by the discrepancies pointed out by the learned counsel and the same cannot furnish a ground for disbelieving the independent and disinterested prosecution evidence.
10. The argument that the blood stains found on the clothes of Baz Muhammad appellant cannot be taken into consideration is also without any substance. The clothes of Baz Muhammad appellant alongwith the clothes of the deceased were forwarded to the Chemical Examiner for analysis whose report is in the positive. The aforesaid articles were found to be stained with human blood and the mere fact -that the blood was found not fit for grouping would be of no consequence. Similarly, the argument that the pistol in question was snatched away by Abdul Malik (P.W.) from Mehmood Khan (appellant) and this would show that Baz Muhammad (appellant) has wrongly been assigned the role of firing at the deceased, does not require serious consideration. The possibility that after the incident the pistol was handed over by Baz Muhammad to Mehmood (appellant) or that Abdul Malik was mistaken in saying that the pistol was snatched away by him from Mehmood Khan cannot be ruled out. From the evidence it is clear that all the four accused had the common intention of committing the murder of the deceased. The fact as to whether the deceased was fired at by Baz Muhammad or by Mehmood accused would be immaterial as all the appellants had acted in furtherance of their common intention and therefore each one of them would be liable for the act in the same manner as if it was done by him alone.
Similarly, the inconsistency relied upon by the learned counsel that according to Mubarak Shah (P.W.) the deceased was fired at in the mosque which is shown at point No,1 in the site-plan (Exh.PB) but according to Mst.Lal Bibi the deceased was fired at near the house of Mubarak Shah (P.W.) is of no consequence because from the site-plan it appears that after having been fired at in the mosque the deceased ran and fell down at point No,2 which is in front of the house of Mubarak Shah. The fact that an empty of .32 bore was recovered from this place would show that the fatal shot was fired at him at this point. The absence of the recovery of other empties from the mosque or anywhere else would not lead to the inference that the deceased was not at all fired at. From the medical evidence it is clear that the deceased had sustained five gun shot inlet wounds and this fact lends sufficient corroboration to the eye-witness account furnished by Mubarak Shah and Mst .
Lal Bibi (P .Ws . ) . The omission of the name of Mubarak Shah (P .W . ) from the F . I .R. Is not sufficient to discard his evidence in the circumstances of the case. He was examined by the police soon after the occurrence and his evidence being consistent with the circumstances of the case we feel that he had been rightly believed by the learned trial Court. The discrepancies referred to by the learned counsel about the mode of the apprehension of the appellants are not material. Whether the appellants were apprehended by Muhammad Hussain (P.W.9) or by Abdul Malik (P.W.10) would not make any difference since from the evidence we gathered that the appellants were given a chase soon after the occurrence by the people of the village including Muhammad Hussain and Abdul Malik (P.Ws.). The fact that the appellants were apprehended and confined in the hujra of Abdul Malik wherefrom they were arrested by the police is sufficient to prove their presence at the time of the occurrence and their participation in the crime. We are also not convinced by the argument that the F.I.R.Was recorded after preliminary investigation. According to the learned counsel, Mst.Lal Bibi (complainant) being unaware of the names of the appellants could not mention them in the report. However, Mst. Lal Bibi in her evidence stated that before lodging the report she came to know of the names of the appellants from the people who had apprehended and confined them in the hujra of Abdul Malik.
11. Having given our thoughtful consideration, we have come to the conclusion that the guilt of the appellants had been proved beyond any shadow of reasonable doubt and they have been rightly convicted under section 302/34, P.P.C. No exception can, therefore, be taken to the finding of guilt arrived at by the learned Sessions Judge. The conviction and sentences of the appellants are maintained and the appeal being without any merit is accordingly dismissed.
' The period of detention of the appellants during the trial shall be considered as the period of imprisonment having been undergone by them.