' NAZIR AHMAD BI-IATTI, J.-- Gul Alam, appellant herein, was convicted by the learned Additional Sessions Judge-I, Swabi on 2-4-1988 under section 302/34, P.P.C. And under sections 307/34, P.P.C.
And sentenced to death and a fine of Rs,10,000 each on two counts or in default to suffer 6 months'
R.I. On each count and to undergo rigorous imprisonment for 3 years and to pay a fine of Rs,500 each on five counts under section 307/34, P.P.C. And in default of payment of fine to further undergo one month's R.I. On each count. The aforesaid fine of Rs,10,000 on two counts if recovered was to be paid as compensation to the legal heirs of two deceased in equal shares. The convict has challenged his conviction and sentence by the appeal in hand. Simultaneously the learned trial Judge has also forwarded Murder Reference No, 7 of 1988. The present judgment in the appeal in hand will also dispose of the Murder Reference.
2. On 22-4-1986 at 7-00 a.m. Jehanzeb Khan complainant, his nephew Muhammad Ashfaq and Feroz and Shamroz sons of Allah Dad and Raj Wali, Muhammad Ayub and Muhammad Tahir were standing in the Swabi Bus Stand. Zaideen and Khan Wali were also present there. In the meantime Sahib Dad, Gul Alam and Haroon also come there armed with Topaks and immediately started firing at the complainant party. As a result of the said firing Muhammad Ashfaq and Feroz Khan died at the spot while Muhammad Tahir Zaideen and Khan Wali were injured. Jehanzeb sent the three injured to the hospital for treatment and took the two dead bodies to Police Station Swabi where he recorded F.I.R. No, 97 at 7-15 a.m. According to the contents of the F.I.R. There was a dispute between the complainant and deceased Muhammad Ashfaq on the one side and appellant Gul Alam and the other accused on the other side about Swabi Mardan Bus Stand and a previous case of attempted murder was also pending trial. The appellant Gul Alam was arrested on 28-5-1986 whereas the other two co-accused Sahib Dad and Haroon are still absconding. After investigation the appellant was sent up for trial before the learned Additional Sessions Judge-I, Swabi where he was charged under section 302/307/34, P.P.C. To which he pleaded not guilty and claimed trial. The State produced 13 witnesses in proof of the prosecution case out of whom P.W.8 Jehanzeb complainant and P.W.9 Shamroz brother of deceased Feroze are eye-witnesses of the occurrence. P.W.7 Dr. Mahmood had conducted post-mortem examination on both the dead bodies of Feroz and Muhammad Ashfaq. On external examination of the dead body of Feroz he found the following injuries:-
(1) Inlet fire-arm wound right lateral occipital region about 1/4" in diameter.
(2) Exit fire-arm wound left lateral occipital region about 1/2. In diameter. Brain tissues protruding out to the wound.
' The doctor also found scalp, skull, membrane and brain injured and skull bone fracture. According to the opinion of the doctor the said Feroz died due to haemorrhage and shock due to injuries to vital organs caused by fire-arm and death occurred instantaneously after injuries. On the same day the doctor conducted the post-mortem examination on the dead body of Muhammad Ashfaq and on external examination found the following injuries:-
(1) Inlet fire-arm wound left side front chest 1-1/2" in diameter, charring present, deep into the chest.
(2) Exit fire-arm wound right lower chest 4" x 3" skin and muscle deep. Ribs fractured.
(3) Inlet fire-arm wound right lateral side abdomen about 1/4" in dimcter.
(4) Exit fire-arm wound right side back abdomen about 1/2" in diameter.
(5) Inlet fire-arm wound right side abdomen 1 /2!' in diameter.
(6) Exit fire-arm wound mid-coccygeal region about 1" in diameter.
(7) Inlet fire-arm wound left side abdomen 1/2" in diameter.
(8) Exit fire-arm wound right coccygeal region about 1" diameter.
(9) Inlet fire-arm wound right side chest about 1/4" in diameter.
(10) Inlet fire-arm wound left lateral elbow joint 1/4" in diameter.
(11) Exit fire-arm wound left medial side elbow joint about 1/2" in diameter.
' The internal examination of the dead body of Muhammad Ashfaq revealed the following:- ' Thorax: Walls, ribs and cartilages injured and ribs fractured. Pleurae, both lungs, pericordium and heart and blood vessels were injured.
' Abdomen: Walls, peritonium, diphragm, small and large intestines, liver were injured. Stomach normal and contained stomach juices.
' According to the opinion of the doctor death took place instantaneously due to haemorrhage and shock due to injuries to the vital organs. The same doct.Or had also examined injured Zaideen and found the following injuries on his person:-
(1) Inlet fire-arm wound left lateral side nose 1" x 1/2" deep into the nose.
(2) Exit fire-arm wound right lateral side nose face, eye-ball x 3" skin x muscle and bone deep. Bone fractured (nose and face bone).
(3) Inlet fire-arm wound left lateral side cheek about 1/4" in diameter.
(4) Exit fire-arm wound left cheek about 1/4" below the left eye-ball 1/2" x 1/2" skin and muscle deep.
' The medical examination of injured Muhammad Tahir by the same doctor revealed the following injuries:-
(1) Inlet fire-arm wound right side inguinan 1/4" in diameter.
(2) Exit fire-arm wound left lateral side hip-joint 2" x 1/2" x skin and muscle deep. Bone fractured.
' On the same day the doctor also examined injured Khan Wall and found grazed fire-arm wound right leg anterior surface 1/4" x 1/3" x skin deep. According to the doctor all the aforesaid three persons were injured by lire-arm within half an hour.
3. P.W.8 Jehanzcb is the complainant. He is uncle of deceased Muhammad Ashfaq but the other deceased Feroz was not related to them. He used to run the Bus Adda in Swabi alongwith his deceased nephew Muhammad Ashfaq and he used to be present in the Adda almost every day. In his testimony at the time of trial he has corroborated the contents of the F.I.R. Which was lodged by him. At the time of occurrence all the persons of the complainant party were present in the Chowk of Swabi where the occurrence had taken place. He has also stated in the cross-examination that their bus stand is situate on Swabi Mardan Road and buses ply between Mardan and Swabi and the Adda belonging to the accused is situate on the Topi Road at a distance of about 250 paces from the place of occurrence. He admitted in cross-examination that he could not say with whose specific shots (from the accused and the absconders) which person of the complainant party was injured but as a result of the shots of the appellant and the absconders the two deceased and three injured were hit. He also could not say how many shots were fired by the appellant and the absconders. He further stated that at the time of occurrence he, deceased Feroz and P.W. Shamroz were standing together whereas Ashfaq, Ayub and Raj Wali were standing at a distance of about 10/12 paces from them. P.W.9 Shamroz brother of deceased Feroze has stated that on the day of occurrence he and his brother Feroz went to Swabi Adda at about 7-00 a.m. On reaching there he saw deceased Muhammad Ashfaq, Jehanzeb complainant, Muhammad Ayub and Raj Wali already present there. He and his brother stood by complainant Jehanzcb. At some distance from them Khan Wali, Zaideen and Muhammad Tahir were present. In the meantime Gul Alam accused accompanied by absconding accused Sahib Dad and Haroon armed with Topaks opened firing at them as a result of which Muhammad Ashfaq and his brother Feroz were fatally hit and died at the spot while Zaideen, Muhammad Tahir and Khan Wali were also hit and injured. In the meantime people came, put the injured on cots and carried them to the hospital while the dead bodies of both Ashfaq and Feroz were carried to the Police station. In cross-examination he stated that he had a cabin selling cigarettes and tobacco on Swabi-Topi Road and it was at a distance of 4-6 paces from the Chowk of SwabiTopi Road. His deceased brother Feroz had also a similar cabin on Swabi-Maneri Road at a distance of about 10-12 paces from the Chowk. He had no enmity with appellant and the absconding accused. The bus stand of the accused party was situated in front of his cabin and Swabi-Topi Road runs between his cabin and the bus stand belonging to the accused party. He further stated that deceased Ashfaq, Raj Wali and Ayub were at a distance of about 10-12 paces from him towards Jehangira side on the Jehangira Road. He saw all the three accused only when all of them started firing simultaneously. He admitted that he did not go to the police station with the dead body of his brother. His brother Feroz was hit by the firing of the appellant and the absconders when they were firing at deceased Ashfaq and injured Muhammad Tahir, Zaideen and Khan Wali.
4. The appellant in his statement under section 342, Cr.P.C. Admitted that he and the absconding accused are related inter se. He however, denied that there was any dispute between the parties with regard to the bus stand. About the previous case of attempted murder pending trial he stated that it was a false case and the parties had compromised it. He denied the commission of the offence of murder of Ashfaq and Feroz and causing injuries to the other three persons. He further stated that he was innocent and falsely charged. He declined to be examined on oath in disproof of the charges against him. He also did not produce any defence.
5. Except some blood and three empties of Kalashnikov there was no other recovery from the spot.
6. The learned counsel for the appellant first contended that the eyewitness account did not tally with the dimensions of injuries of the deceased and the three injured. According to him in all there were give inlet wounds of the size of 1/4", 3 inlet wounds of the size of 1/2", one inlet wound of the size of 1-1/2" and one inlet wound of the size of 1" x 1/2". His contention was that it showed that at least four different types of weapons were used whereas only three persons have been charged in the F.I.R. And as such the ocular testimony did not find and corroboration from the medical evidence.
We have considered this aspect of the matter very carefully and we have come to the conclusion that the latter two wounds of all the aforesaid wounds i,e, one inlet wound of the size of 1-1/2" and one inlet wound of the size of 1" x 1/2" could be caused by one weapon. The size of these two injuries is virtually the same. Whereas the other two categories of all the aforesaid wounds could be caused by two different weapons. We have, therefore, come to the conclusion that all the inlet wounds could be caused by three different weapons for which three accused have been charged.
As such we do not find any discrepancy in the ocular and medical testimony. In the same context the learned counsel contended that except three empties of Kalashnikov there was no recovery of any empty of .12 bore or wad or card board or of any other weapon and he was of the opinion that the eye-witnesses had not stated the truth. We cannot accept this contention for the reason that the non-recovery of any empty or other material concerning fire-arms from the spot does not in any way prove that different types of weapons were not used. On the contrary there is ample evidence on the record to show that three different types of weapons were used. This conclusion draws support from the three types of dimensions of injuries sustained by both the deceased and the three injured.
7. The learned counsel for the appellant then urged that the presence of the complainant P.W.8 Jehanzeb and the other eye-witness P.W.9 Shamroz is not established at the spot at the time of occurrence. His contention is that it was such an early hour of the day that P.W.8 Jehanzeb might not have come from the village to his bus stand and the fact that the cabin of P.W.9 Shamroz has not been shown in the site plan would also exclude the possibility of his presence. We cannot accept this contention either for the reason that the occurrence took place at 7-00 a.m. And report was made within 15 minutes which would clearly indicate that the complainant Jehanzeb was present at the spot at that time and he immediately rushed to the police station. Had he not been present there or had he not come from the village it would have been impossible for him to report the occurrence at the police station within 15 minutes. The mere fact that the cabin of P.W.9 Shamroz is not shown in the site plan would not exclude his presence from the spot. He is an independent witness neither related to the complainant party nor having any animosity with the appellant and the absconding accused. We do not see any reason as to why he should give false evidence. We are, therefore, of the considered opinion that both the aforesaid eye-witnesses were present at the spot. Regarding this very point it was also contended by the learned counsel for the appellant that the complainant and P.W. Shamroz were not seen in the police station by P.W.4 Syed Zahir Shah who had identified the dead body of Muhammad Ashfaq and by P.W.5 Najab Khan who had identified the dead body of Feroz. However, it has to be kept in mind that the occurrence took place in the early morning hours in a busy Chowk of town where many people were present in connection with their daily business or other works and it has also come on record that many persons had gone to the police station. As such the mere fact that both these P.Ws. Did not see the complainant and P.W. Shamroz in the police station would not tantamount to say that both the latter were not present either at the spot or in the police station. Even otherwise both the P.W.4 and P.W.5 have not categorically stated that the complainant and P.W. Shamroz were not present. They have only stated that they did not see them in the police station of which does not be any stretch of imagination mean that the said two eyewitnesses were not present.
8. It was next contended by the learned counsel for the appellant that P.W.8 was definitely interested witness for the reason that he was uncle of deceased Muhammad Ashfaq and was also invovled in a previous case of attempted murder between the parties and for that reason his testimony should be excluded from consideration. However, this point is also not worth serious consideration for the reason that his testimony is corroborated by an independent witness P.W.9 Shamroz and there is not the least conflict between the testimony of these two witnesses.
9. The learned counsel for the appellant also contended that the site plan will show that the deceased Muhammad Ashfaq and the three injured were shown present on Swabi-Jehangir Road at points Nos.1, 7, 8 and 9, respectively whereas deceased Feroz Khan was standing in the Chowk towards Swabi-Maneri Road at point No,2 and absconding accused Haroon and Sahib Dad and appellant Gul Alam were standing in the Chowk towards Topi-Swabi Road at points Nos. 10, 11 and
12. It was contended by him that point No,2 was towards north whereas points Nos. 1, 7, 8 and 9 were towards south-west and these two being different directions the prosecution case has become doubtful. We have given our serious consideration to this aspect of the matter. No doubt both the dead bodies were found at different places but it is also to be seen that the two persons whom the three assailants wanted to finish were also standing on different directions. Deceased Muhammad Ashfaq was at point No,1 and complainant Jehanzcb was at point No,3 and actually both of them were their targets. Hence there was firing by the assailants towards Swabi-Jehangir Road on the south-west and also towards Swabi-Maneri Road on the north but as the luck would have it, the complainant was saved and instead Feroz was injured and alongwith deceased Muhammad Ashfaq, Zaideen, Muhammad Tahir and Raj Wali were also injured. We do not see any infirmity or lacuna in the prosecution case on this account.
10. An important point was also taken up by the learned counsel for the appellant that the three injured Zaideen, Muhammad Tahir and Raj Wali had not appeared as witnesses. His contention was that according to the prosecution case they were also injured at the spot in the same occurrence by the firing of the assailants but none of them came forward to support the prosecution case. He further contended that their presence was established at the spot and they were also independent and uninterested witnesses of the case but they did not blame any person and the assailants for their injuries. We have very carefully considered this aspect of the matter as well. It is a fact that the said three persons were injured at the spot but it is also a fact that since they were not aware of any animosity between the parties and also did not belong to any party they might not have actually seen the assailants. They were present at the spot in connection with their own preoccupations and since the assailants decamped from the spot immediately after the occurrence, they failed to identify the attackers. Their failure to put the blame of their injuries on the assailants does not weaken the prosecution case in any way.
11. It was a daylight occurrence. There was previous enmity between the appellant and deceased Muhammad Ashfaq and the complainant. There could not be any doubt about the identification of the assailants.The report of the occurrence was made within 15 minutes which would also exclude the possibility of any fabrication of a false story. On top of all there is one independent eyewitness of the occurrence P.W.9 Shamroz. He had neither any interest with the complainant party nor had he any animosity with the appellant. His brother was also murdered in the same occurrence. Had he not seen the assailants he would have never charged them for the offence. He had no cause of falsely implicating the appellant if he had not seen him committing the offence.
12. For the aforesaid reasons we have come to the conclusion that sufficient evidence was brought on the record by the State to prove the guilt of the appellant. The evidence was of such a nature and quality that it excluded any possibility of any doubt. We would, therefore, uphold the conviction recorded by the learned Additional Sessions Judge against the appellant. He was rightly found guilty of committing the murder of Ashfaq and Feroz and causing injuries to Muhammad Tahir, Zaideen and Raj Wali by the learned trial Judge in furtherance of his common intention alongwith absconding accused. However, the sentence of death on two counts for the murder of Muhammad Ashfaq and Feroz is agitating our minds. There is no evidence on the record to prove by which of the assailants each of the two deceased was done to death. As such while maintaining the conviction of the appellant we will only reduce the sentence of death to that of imprisonment for life on two counts. This sentence shall run concurrently with the sentence recorded against the appellant by the learned Additional Sessions Judge for the other offence under section 307/34, P.P.C. Except the aforesaid alteration of sentence of death to that of life imprisonment on two counts we uphold the remaining sentence awarded to the appellant by the learned Additional Sessions Judge. The appeal is partially accepted. Murder Reference is not confirmed. The appellant shall also be entitled to the benefit under section 382-B, Cr.P.C.