FAZAL ELAHI KHAN, J.--Wasal Khan son of Faiz Muhammad aged about 40/42 years alongwith his co-accused, namely, Samar Gul son of Haya Gul and Fazli Amin son of Said Asghar, residents of Shabera, Tehsil Charsadda were tried by Muhammad Farooq Khan, Additional Sessions Judge, Charsadda for offences under section 302/307/148/149, P.P.C. Along with absconding accused for having formed an unlawful assembly armed with deadly weapons in prosecution of their common object committed the murder of Gul Rehman's son of Muhammad Zaman and attempted at the life of Salim Khan complainant and Sharifullah P.W.3 by firing at them ineffectively. All the three accused were found guilty of the offences under section 302/149, P.P.C. For the murder of Gul Rehman's deceased and on conviction each of them sentenced to imprisonment for life and a fine of Rs.5,000. In default of payment of fine to undergo further one year R.I. The charge under section 307/148/ 149, P.P.C. Against the accused-appellants regarding ineffectively firing at the complainant and Sharifullah P.W.3 was held not proved beyond reasonable doubt and acquitted them under section 265-H of the Criminal Procedure Code. All the three convicts have filed an appeal against their order of conviction and sentence while the complainant has filed a revision petition seeking enhancement in the sentence of the accused. Both these matters arising of the same order are, therefore, disposed of by this single judgment.
2. The prosecution case unfolded in the F.I.R. And the evidence led at the trial briefly stated is that on the day of occurrence Annuddin S.H.O. Police Station Prang P.W.10 while on Gasht duty got information at village Prang that firing was going on in village Shabera between two rival parties.
On the receipt of this information he alongwith the police party reached at the Dhera of Salim Khan (complainant) situated in village Shabera where he saw Gul Rehman's son of Muhammad Zaman lying murdered. Salim Khan son of Gul Rehman's complainant P.W.2 on 26-4-1982 at 10.00 hours made a report before him that he alongwith his father Gul Rehman's deceased and Sharifullah son of Hazratullah P.W.3 were present in their Dhera when at about 9.00 hours they heard report of firing from the direction of their village but did not take serious notice of it. The deceased was then present in front of the Kotha of the Dhera while he and Sharifullah P.W.3 were sitting at the 'Pulls' of the field of wheat crop busy in talking. In the meantime, at about 9-40 hours Gul Akbar and Abdul Qadir sons of Sher Afzal (the absconding accused), Fazli Amin son of Said Asghar armed with Rifle and Wasal Khan son of Faiz Muhammad armed with .D.B. Shotgun and Samar Gul armed with S. B.
Shotgun arrived at the spot and from a short distance all of them fired at the deceased with which he was hit and fell down on the ground. It was further stated that he fired 2/3 shots at the accused with his 5 shot rifle but they escaped unhurt. That the accused also fired at the complainant and Sharifullah P. W.3 ineffectively.
3. After drafting the Murasila it was read out to the complainant and got his signature after admitting it correct. Murasila Exh.P.A. Was sent to the Police Station for registration of the case.
Muhammad Javed Khan A.S.I. P.W.5 on receipt of the Murasila registered the case against the accused, vide F.I.R. Exh.P.A/1, Annuddin S.H.O. P.W.10 prepared the injury sheet Exh.P.M.3 and the inquest report Exh.P.M/2 of the deceased and sent the dead body for post-mortem examination under the escort of Gul Thazir D.F.C. No.2368 P.W.8. He took into possession some blood-stained earth from the spot, vide recovery memo. Exh.P.I. He also took into possession two empties Exh.P.8 of .12 bore and three empties Exh.P.9 of 5 shot rifle, one spent bullet Exh.P.10 and sealed it into parcel in presence of marginal witnesses vide recovery memo. Exh.P.E. He also recovered one 5 shot rifle Exh.P.1 bearing No.55 country made alongwith a bandolier Exh.P.2 containing 14 cartridges of 5 shot rifle from the possession of Salim Khan complainant, vide memo. Exh.P.E. He prepared the site plan Exh.P.D. At the instance of P.Ws. Subsequently Gul Thazir F.C. (P.W.8) produced one shirt Exh.P.4, one Shalwar Exh.P.5, one jacket Exh.P.6 all blood-stained belonging to the deceased and one vial Exh.P.7 containing three pieces of spent bullets handed over to him by the doctor which were taken into possession vide recovery memo. Exh.P G. The arms were sent to the Arms Expert for his opinion.
4. As all the accused absconded after the occurrence, initially complete challan was submitted in Court against the accused under section 512. Cr.P.C. However, on the confirmation of bail before arrest granted to Wasal Khan and his co-accused Fazli Amin and Samar Gul, they were formally arrested.
5. At the trial Salim Khan P. W.2 the complainant and Sharifullah P.W.3 the eye-witnesses mentioned in the F.I.R. Gave ocular version of the occurrence. Further corroboration was sought from the medical evidence, the recoveries made from the spot and the abscondence of the accused coupled with the motive alleged in the F.I.R. When examined under section 342, Cr. P. C. All the three accused-appellant stated to have been falsely implicated in the offence due to enmity and pleaded innocence.
6. The learned trial Judge has based the order of conviction on the ocular testimony of the two eye-witnesses corroborated by the recoveries of blood-stained earth and empties from the spot, the medical evidence and the unexplained abscondence of the accused.
7. We have heard the learned counsel for the parties and also have gone through the judgment under appeal and evidence on record with their help.
8. The contention of the learned counsel that both the so-called aye-witnesses apart from being closely related to the deceased are inimical to the accused, their evidence, therefore, requires strong and independent corroboration before basing conviction thereon in view of the law laid down by the Supreme Court based on the principle of fair dispensation of criminal justice. Salim Khan P.W.2 the complainant is the son of the deceased while Sharifullah P.W.3 has admitted that the deceased was his brother-in-law as well as his cousin from the mother's side. The complainant has also stated that 15/16 years back Qudratullah maternal-uncle of Sher Afzal was murdered for which Ahmadullah and others "Tarboors" of Sharifullah P.W. Were charged. He also admitted that Mir Rehman's his uncle was murdered in the year 1978 for which Gul Akbar the absconding accused, his brother Abdul Qadir accused and their father Sher Afzal deceased were charged. The latter two accused were acquitted at the trial while the former is still in abscondence in that case also. However, Sharifullah P.W. Voluntarily stated that accused Gul Akbar, Fazli Amin and Abdul Qadir are his paternal-uncle's sons while accused Wasal Khan is his maternal-uncle's son. It, therefore, stands established that apart from they being inimical they are closely related. The complainant has in his statement at the trial reiterated what he had stated before the S.H.O. At the time of lodging of the report. His presence at the spot is not seriously challenged. He was found present at the spot by the S.H.O. On his arrival at the spot just after the occurrence. Even the suggestion made to the complainant in his cross-examination is an implied admission of his presence at the spot at the relevant time. He is shown near the field in which wheat crop was standing at the relevant time at a distance of about 60 paces from the point where the dead body was found. The I.O. Also noticed the marks of struggle in the field. The empties recovered from this place were sent to the Arms Expert alongwith the rifle recovered from the P.W. The opinion of the Arms Expert is in the affirmative. Nothing has been brought in the lengthy cross-examination to discredit his version of the occurrence. The presence of Sharifullah P.W.3 mentioned in the F.I.R.
Having witnessed the occurrence stands established in the evidence. Sharifullah P.W.3 categorically stated in Court that after recording the F.I.R. The S.H.O. Also recorded his statement at the spot. He denied the suggestion that he was not present on the spot but was at Peshawar at the relevant time and that he has given false evidence because of his relationship with the deceased.
We are not inclined to accept the contention of the learned counsel as the I.O. Admitted in his statement of having recorded the statement of P.W.3, at the spot. The I.O. Has not been examined with regard to this part of his statement. The report having been promptly made at the spot on the arrival of the police and his name having been mentioned as an eye-witness to the occurrence excludes the possibility of consultation and procurement of false witness. Apart from it he is related to both the parties and has no motive of his own to falsely implicate the accused in the commission of a capital offence.
9. On medical examination Dr. Muslim Khan P.W.9 Civil Hospital, Swabi who conducted the post- mortem examination on the dead body of Gul Rehman's aged about 55 years, the following injuries were found:- External examination: (1)Fire-arm inlet wound of about --" in diameter on the upper lip below the nose.
(2)Fire-arm exit wound of about 3" x 3" on the left jaw below the left ear. It is exit of wound No.1.
(3)Fire-arm inlet wound of about --" on the left side of back scapullary region.
(4)Firm-arm wound of about 2" x 2" on the left side of chest at the route of neck. It is exit of wound No.3.
(5)Fire-arm inlet wound of about --" x -- on left side of abdomen (6)Fire-arm exit wound for about 3" x 1" on the left upper arm in axillara. It is exit of wound No. (sic).
(7)Fire-arm graze wound of about 4" x 4" on the left shoulder.
(8)Fire-arm inlet wound of about -- " x -- " on the inner side of left thigh.
Internal examination: Left plurae, left lung, pericardium and heart and blood vessels were injured. Abdominal wall, peritoneum, mouth phrynax and oesophagus, diaphragm, liver were injured. Left clavicle, left jaw and left humrouse fractured.
The injuries on the person of the deceased specially the inlet and exit wounds and the fire-arm grazing wound coupled with the recoveries of different types of empties at the spot lend support to the ocular evidence. In the absence of any question put to the doctor about the probability of the types of weapons used in the commission of the offence, the trial Judge was justified in relying on the medical evidence and the recoveries made from the spot as corroborative of the ocular version of the P.Ws.
10. The contention of the learned counsel that withholding of the empties recovered from the spot and not sending it to the Arms Expert for his opinion may have been used against the prosecution, in the circumstances of this case, has got no force. It has been categorically stated by the Investigation Officer, when cross-examined on this point, that he did not deem it necessary to send these empties to the Arms Expert as the abscondence of the accused made it difficult to recover the arms used in the commission of the offence. The I.O. Did send the empties recovered from the point where the presence of the complainant is shown alongwith the rifle produced by the complainant to him. The Arms Expert's opinion which is in the affirmative is on the file. The contention of the learned counsel that actually the murder was committed-- inside the Kotha but the I.O. Has shifted the scented of occurrence to a place outside the Kotha to make it possible for the P.Ws. To identify the accused is conjectural. The accused has failed to satisfactorily prove his long abscondence which is a strong piece of evidence lending support to the ocular version given by the P. Ws. In this view of the matter we are fully convinced that the trial Court was right in holding that the prosecution was successful in proving the guilt of the accused beyond any reasonable doubt.
11. There is, however, another aspect of the case which agitated our minds. Salim Khan P.W.2 in his cross-examination stated:- "Sher Afzal deceased in the connected case was murdered outside Mutabar Koroona, which is at a distance of about 2/3 furlongs from the spot of this case. I had not counted the fireshots which I had heard from the village side. Later on when the police party came and I lodged the report about the occurrence after that I came to know about the murder of Sher Afzal. However, I do not know even now if Sher Afzal was his and murdered with the shots the report of which 1 heard in my Dhera.
It is correct that I alongwith my paternal-uncle Noor Rehman's and Fazal Rehman's have been charged for the murder of Sher Afzal mentioned above, in that case is also fixed for hearing today in this Court. It is incorrect to suggest that after the murder of Sher Afzal, I started running to my Dhera in order to take shelter there but a 'Chagha' party, consisting .Of the village chased me and 1 concealed myself in the wheat crop of Abdul Wahab and my father in order to save me opened fire at the Chagha party with the rifle."
12. However, excepting the statement reproduced above that Sher Afzal father of Abdul Qadir accused was murdered in the village some time before the occurrence, there is no other evidence whatsoever on the file to show that the present case is either a cross case to that one or that the present murder was committed in that transaction. There is nothing on the record to link the murder of Sher Afzal in the village 'Abadi' with the present occurrence which took place at the Dhera at a distance of 2/3 furlongs from that place. The accused in their statements made under section 342, Cr.P.C. Have not alleged that Gul Rehman's got injured and died in the cross firing, learned counsel for the appellants half-heartedly contended that after the murder of Sher Afzal a Chagha party set out in pursuit of the culprits and came across the deceased and the P.Ws. Where after in exchange of firing Gul Rehman's got injured and died on the spot. But in support of his contention there is not an iota of evidence on the file. We are aware of the proposition of law that even in the absence of specific plea raised by the accused in their statement in Court if otherwise it stands established from the prosecution evidence, for safe dispensation of criminal justice, the Court is bound to take it into consideration in determining the guilt or innocence of the accused.
However, there must be some evidence on the record, may be in the prosecution evidence, wherefrom the defence plea can be spelt out. In other words, foundation must have been laid down for such a plea in the evidence through the cross-examination or circumstantial evidence available on the file. Its appears to us that deceased and the P.Ws. Who were present in the Dhera were taken by surprise. They were unaware of the murder of Sher Afzal otherwise they could have taken shelter in the village 'Abadi' if the Chagha party was in their pursuit. We, therefore, find no force in the contentions raised by the learned counsel for the appellants and A' dismiss the appeal.
The reasons given by the learned Additional Sessions Judge in not awarding the capital punishment to the appellants are well-founded and do not require interference. Consequently, the revision petition for enhancement of the sentence of the accused-appellants also fails which stands dismissed.