DAVID IQBAL, C.J.-- Gillat Shah son of Faizullah Shah, aged 40, armed with .12 bore gun, stands convicted vide judgment, dated 22-6-1982 of the Additional Sessions Judge-I, Mianwali under section 302, P.P.C. For triple murder of Abdul Baqi Shah aged 39, Gulband Khan aged 60, and Zahir Shah, aged 36, and was sentenced to death on three counts plus fine of Rs.5,000 on each count or in default to undergo two years' rigorous imprisonment on each count with the direction that if the fine was realized from him, half of the same would be paid to the heirs of the three deceased. The appeal of the convict is being taken up along with the reference for confirmation of death sentence awarded to him as well as Criminal Revision No. 647 of 1982 for enhancement of the sentence of fine and these connected matters are being disposed of by this judgment.
2. The occurrence took place on 4-12-1979 at 10-30 a.m. Outside the house of the appellant situated in village Chapri at a distance of ten miles from Police Station Qamar Mashani, District Mianwali.
F.I.R. (Exh.P.K.) was lodged by Muhammad Khan (P.W.9) an unconnected person at 4-00 p.m. On the same day and it was recorded at the police station by Muhammad Malik S.I. (P.W.11).
3. The motive as stated in the F.I.R. Is that as a result of consolidation proceedings the appellant had occupied the land of Zahir Shah deceased and 10/12 days before the present occurrence the Baradari had made an effort for a compromise between the appellant and Zahir Shah deceased but the matter could not be resolved. It was for this reason that when Zahir Shah deceased came to the house of the appellant along with the other two deceased, the appellant shouted at him as to why he had come to his house.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner. On the fateful day Muhammad Khan (P.W.9) along with the three deceased had their meals at the house of one Nausher Din and then came to the house of the appellant for thanks--giving prayers. Abdul Baqi Shah deceased was Peer, Gulband Khan deceased was his Khalifa, whereas Zahir Shah deceased was one of the Murids. When they arrived at the house of the appellant, the appellant was standing the courtyard of his house and on seeing Zahir Shah deceased he shouted as to why he had come to his house. In the meantime Abdul Manan real brother of Zahir Shah deceased (not produced) and Nawab Khan (P.W.10) also came to the spot. Thereafter, the appellant went inside his residential Kotha and brought out .12 bore gun. Then when he arrived in the courtyard he fired the shot at Zahir Shah deceased which hit him on the left side of his head. Thereafter, he fired the second shot at Gulband Khan deceased which hit him on the left side of his chest and came out from the right side of his flank. The third shot was fired at Abdul Baqi Shah deceased which hit him below his right shoulder and the exit wound was on the left side. All the three deceased fell down on the ground. The occurrence was witnessed besides Muhammad Khan (P.W.9) by Nawab Khan (P.W.10) and Abdul Manan (not produced). On their alarm many people from the village were attracted to the spot but the appellant firing in the air ran from the scene of crime. The three deceased were taken to the civil hospital Qamar Mashani in an injured condition on cots but they died on the way.
5. The prosecution has produced two eye-witnesses of the occurrence namely, Muhammad Khan (P.W.9) and Nawab Khan (P.W.10). Both are unconnected witnesses. Abdul Manan was cited but was givers up as unnecessary. He was real brother of Zahir Shah deceased.
6. The appellant was arrested on 6-12-1979 by Muhammad Malik S.I. (P.W.11). No crime empty was picked up from the spot. At the instance of the appellant .12 bore gun (Exh.P.1) was recovered along with 18 live cartridges (Exh.P.2/1-18) and 7 empties (Exh.P.311-7) as well as bandolier (Exh.P.4) and these were taken into possession vide memo. Exh.P.L., dated 6-12-1979. The attesting witnesses are Muhammad Khan (P.W.9), Ayaz Khan (not produced) and Muhammad Malik S.I. (P.W.11). These items were not sent to the Forensic Science Laboratory and the explanation is that no crime empty was picked up from the spot. Thus, the recovery evidence in this case is of no corroborative value.
7. The appellant in his statement before the trial Court denied having participated in the occurrence. He disowned the recoveries and stated that he has been falsely implicated due to enmity. He stated that Abdul Baqi Shah deceased was his Peer and he was in his service. But his version was that Abdul Baqi Shah deceased had collected a large sum of money from his Murids and while crossing Chanchali brook canal, he was waylaid by the dacoits who looted him and on the resistance they murdered the three deceased from a very close range but the place of occurrence was shifted upon him falsely due to enmity of the P.Ws. None of the P.Ws. Was present at the time of occurrence. In defence he produced Nazar Hussain S.I. (D.W.1), who deposed that he was entrusted the investigation in this case because Muhammad Malik S.I (P.W.11) had been retired compulsorily and that there were some defects in the investigation which this witness removed. He investigated this case from 8-3-1980 to 27-3-1980 regarding the objections. He also placed on record Exh.D.C. And Exh.D.D. In order to show his enmity with the P.Ws. These two documents are judgments of 1962 and 1974. The record indicates that there existed enmity between Zahir Shah deceased and the appellant because the grandfather of the appellant had been murdered by the grandfather of Zahir Shah deceased.
8. Dr. Muhammad Mushtaq Ahmad (P.W.1) conduced post-mortem examination on the dead body of Gulband Khan deceased at 8 a.m. On 5-12-1979 and found on his person three injuries caused by fire-arm with exit wounds. In his opinion the death was due to shock and haemorrhage and the second injury was sufficient to cause death in the ordinary course of nature. All the injuries had been caused by fire-arm and pellet and piece of cardboard were removed from the dead body.
On the same day at 9-30 a.m. He conducted post-mortem examination on the dead body of Zahir Shah deceased and found on his person four fire-arm injuries. In his opinion death was due to shock and haemorrhage caused by the first injury which was sufficient to cause death in the ordinary course of nature All the injuries were caused by fire-arm. Two pellets were removed from the skull cavity.
On the same day at 10-30 a.m. He conducted the post-mortem examination on the dead body of Abdul Baqi Shah deceased and found on his person 14 fire-arm wounds of entry and exit. In his opinion death was due to shock and haemorrhage as a result of first and third injuries which were sufficient individually and collectively to cause death in the ordinary course of nature. All the injuries were caused by fire-arm. Eighteen pellets were removed from the dead body.
9. We have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant argued that the defence version was the correct version and the defence version is to the effect that Abdul Baqi Shah deceased collected a large sum of money from his Murids and while crossing Chanchali Brook canal was waylaid by decoits who looted him and on the resistence they murdered the three deceased from a very close range. But the place of occurrence was shifted near the house of the appellant falsely due to enmity of the P.Ws. The defence version further is that none of the P.W. Was present at the time of the occurrence. We have carefully considered this aspect of the case and we are of the view that there is no substance in the argument of learned counsel for the appellant which has been raised by him on the basis of the defence version. First of all blood-stained earth had been collected from the spot which obviously is the house of the appellant. Secondly there is no evidence on the record to show that Abdul Baqi Shah deceased had collected a large sum of money from his Murids and that while crossing a canal he was waylaid by dacoits who looted him and on resistence they murdered the three deceased. Such suggestions which have been put to the eye-witnesses have been categorically denied by them. Thirdly no evidence has been brought on the record to show as to what was the nature of the enmity between the P.Ws and the appellant. On the contrary there is some evidence to the effect that the appellant had enmity with Zahir Shah deceased as the grandfather of the appellant had been murdered by the grandfather of the said Zahir Shah deceased. Both the eye-witnesses are unconnected in the instant case and although it was attempted on the part of the defence to show that there existed some enmity between the eye- witnesses and the appellant, but learned counsel did not succeed in establishing the same.
Learned counsel for the appellant also tried to argue that even if the two eye-witnesses in the instant case were not inimical towards the appellant, they were not present at the scene of crime because the account given by them of the incident did not tally with the medical evidence.
According to learned counsel there were injuries on the person of Abdul Baqi Shah deceased on the right as well as front and back and, therefore, learned counsel wanted us to believe that he must have been fired at from different sides and that the assailants were many in number. We are not persuaded by his reasoning. In our view the ocular testimony is reliable in the instant case and it is being supported by the medical evidence as well as the motive version. We are aware that in the present case the .12 bore gun recovered at the instance of the appellant at the time of his arrest has no corroborative value as no crime empty was picked up from the spot. But according to the ocular testimony the appellant had brought out the .12 bore gun and fired at the three deceased and that according to the medical evidence pellets was recovered from the dead bodies of the three deceased in the instant case, at least establishing that the three deceased had been fired at by a shot-gun rather than a rifle or any other kind of fire-arm. We further want to point out that substitution is a rare phenomena and in the present case the allegation of murder of the three deceased is levelled by two unconnected eye-witnesses against a single accused i.e. The appellant. It is a day-time occurrence and the F.I.R. Had been lodged by an unconnected person as promptly as could be possible. In the light of the above discussion we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the circumstances his conviction as well as sentence awarded to him were quite proper and are accordingly maintained. The appeal is dismissed. The death sentence awarded to the appellant on three counts is confirmed.
In the light of the above discussion we do not find any substance in Criminal Revision No. 647 of 1982, which is accordingly dismissed in limine.