Munawar Ahmed Mirza. J.- Petitioner Irshad Chandio and petitioner Mehr Ali Talani (of Criminal Petition No.19 of 1988) are concerned with same case, Both these petitions relate to same incident, involving common question of law and facts; therefore are being decided together.
2. Facts briefly atated are, that on 3rd of July, 1986 Assistant Commissioner Pet Feeder along with Lovies and Militia personnel, while patroling in a official vehicle came over cannal bank, towards Bari Shakh, and saw a Suzuki Jeep coming from the opposite direction. They noticed that on seeing the patrol party, inmates of said Suzuki Jeep suddenly turned back and attempted to run away with great speed. Whereupon patrol party feIt suspicious, and immediately chases said 'Suzuki Jeep'. It is the case of prosecution that near Goth Baghbani, five persons armed with rifles and kalashan-kovs alighted from Suzuki Jeep and started firing upon patrol party. During cross firing one Levies Sawar Bhagia was injured, similarly " convict/petitioner Irshad Chandio (Petitioner in Petition No. 28/89) also received injuries. Record reflects that accused persons at the time of firing on complainant side formed two parties, and in this process two out of said accused namely (i)
Motabir Chandio and (ii) Abdur Rasool Chandio made good their escape while remaining three accused persons i.e. (i) Irshad Ahmed Chandio (Petitioner in Criminal Revision No. 28/89) (ii) Mehr Ali Talani (Petitioner in Criminal Revision No. 19/89), and Wazir Joya were apprehended. A.
Kalashan-Kov was also recovered from them. Report of the incident was lodged by Ali Nawaz Jamadar Levies Dera Murad Jamali. After completion investigation, Naib Tehsildar submitted challen before Deputy Commissioner Dera Murad Jamali. It may be seen that initially tribunal was constituted on 6.10.1986 with Assistant Commissioner Pat Feeder as Chairman. Right prosecution witnesses were examined, and 'uItimately Tribunal gave unanimous award on 26.2.1986 finding all the accused-guiIty for the offence alleged against them. Agreeing with aforesaid recommendations of the Tribunal learned Deputy Commissioner Nasirabad on 28.10.1986 convicted the petitioner Irshad Chandio and Mehr Ali Talani awarding them sentence in the following terms:- Under Section 307 PPC 14 Years R.I Under Section 353 PPC 2 Years R.I Under Section 352 PPC 3 Years R.I Under Section 326 PPC 10 Years R.I Under Section 333 PPC 10 Years R.I Under Section 332 PPC 3 Years R.I Under Section 400 10 Years R.I 49 Years and 3 months and a fine of Rs. 10,000/- each or in defauIt of payment of fine to further SI for one year each.
Whereas Wazeer Muhammad Joya son of Jharra Khan was however, sentenced to 3 years R.I. And a fine of Rs. 50,000/-or in defauIt of payment of fine to S.I. For 5 years.
All three convicts preferred an appeal before Commissioner Nasirabad Division who dismissed the same with modification and reduction in the sentence by means of judgement dated 18.3.1987.
Feeling aggrieved the convicts filed separate Revision Petition Nos. (i) 21 BOR/87/ Reader (ii)
3/87/BOR/Reader and (iii)46/BOR/87/Reader; before Member Board of Revenue which were uItimately accepted by a common judgement dated 13.10.1987. Whereby convictions and sentences awarded by two courts below were set aside and case remanded to the trial court for drawing proceedings afresh by holding day to day proceedings.
2. After the remand, fresh Tribunal was constituted on 10.11.1987. Record reveals that prosecution examined twelve witnesses namely (i) Ali Nawaz (ii) Muhammad Yakoob (iii) Abdul Wahid (iv)Muhammad Alam (v) Injured Bhagia (vi) Mir Muhammad Afzal Magistrate (vii) Ghulam Rasool Shah (viii) Muhammad Sidiq Shah (be) Muhammad Siddiq (x) Brahim (xi) Abdul Majid and (xii)
Abdul Majid Qureshi Naib Tehsildar cum- Investigating Officer, to substantiate accusations against theaccused/petitioners. Thereafter statements of petitioners were recorded on 7.12.1987. No evidence was led by them, in defence. Members of the Tribunal however appraised available evidence, and through its unanimous award dated 19.12.1987 found the petitioners and co-accused guiIty for the offences alleged against them and recommended for their conviction. Learned Deputy Commissioner Nasirabad agreeing with unanimous findings of Tribunal convicted the petitioners and co-accused Wazir Joya by means of judgement dated 27.12.1987 in the following manner:- "On the basis of the tribunal's unanimous award and the considereable deliberations of the record on file, I Naseer Ahmed, Deputy Commissioner Tamboo find the accused Mehr Ali Talani son of Jan Muhammad and the accused Irshad wound, and has caused another three inlet wounds in right chest 1/2" x 1/2" each by size, spread in an area of 3" x 2" at a point three inches below and one inch laterally from right nippal, going deep into the chest and its outlet wound could not he found.
4. One circular inlet wound 1" x 1" by size, on right arm posterior side 1/2" above from elbow joint and causing one irregular outlet wound 2" x 1/2" by size, internal side of the same arm two inches above from the elbow joint and has caused another inlet wound 2" x 2" by size, on right chest lateral side at a point 1/2" just below from right armpit going deep into the chest and its outer wound could not he found, but six pellets found subcutaneously in right chest posterioraly along the medial border of right scapular bone, spread in an area of 2" x 3".
On internal examination the doctor found skull; right temporal bone and occipital bone fractured into pieces, manages full of blood, brain severely injured. Chest both pleural cavities full of blood, both pleuras found through and through perforated, both the lungs found injured and through and through perforated, two pieces of card board found in the substance of the right lung, left clavicular bone and first and second rib of left side found fractured, right sixth and seventh ribs found fracured, disphragm found perforated. Abdomen; liver found injured-stomach contained semi digested food material, urinary bladder contained half ounce of urine, right arm, right elbow joint found fractured, muscles and vessels injured. N.B. Two pellets and three peices of card board found in the clothes of the deceased. .4 The same doctor also performed post mortem examination on the deadbody of Zar Khan (48/50) son of Lachi Khan, on 30.12.1971 at 9.30 a.m. And found the following injuries an external examination.
1. One circular imlet wound 1/2" x 2" by size, on base of skull posteriorly at a point 4 1/2" just above from seventh cervical rib going deep into the skull and causing one irregular outlet wound 1" x 2" by size, just over right external ear.
2. One circular inlet wound 1/2" x 1/2" by size, on left porietal region at its spex going deep into the skull and causing one irregular outlet wound 1" x 1/2" half by size, right front peristal region, at a point 5" just above right eye.
3. One irregular inlet wound 1/2" x 1/2" just above and 1/2" behind right ear going deep into the skull and causing one irregular outlet wound 2 1/2" x 1" by size, left perital region at a point three inches above and two inches behind left ear.
4. One grazing wound half inch x 1" by size, on elbow joint internal side.
5. One grazing wound 1" x 1" by size, on right lower chest seven inches just below right nippal.
6. One grazing wound 1" x 1/2" by size, on abdomen at a point 1/2" below and one inch right laterally from amblicus.
On internal examination the doctor found skull cavit full of blood, all sides brain severely injured, damaged and perforated, manages injured and perforated, abdomen-stomach was containing semi digested food material, urinary bladder containing one ounce of urine, all abdominal contents were normal.
5. All the five accused decamped from the spot. However, Bakht Baidar the acquitted accused surrendered on 22.4.1975 and a complete challan against his was put in the Court of the Sessions Judge, Bannu. On the compeletion of the trial the learned Additional Sessions Judge, Bannu by his judgment dated 17.11976 extending him the benefit of doubt acquitted him. However, on the appela filed by the State under Section 417 Cr.P.C (Criminal Appeal No.123 of 1976) a Division Bench of this Court comprising Br. Justice Mian Burhan-ud-Din Khan and Mr. Justice Sardar Fakhr-e-Alas- Khan by their judgment dated 9.5.1978 setting aside the acquittal of Bakht Baidar convicted him on two counts under Sections 302/149/P.PC and Section 148 P.P.C and sentenced him to imprisonment for life and a fine of Rs. 1,000/- or in defauIt to undergo six months further R.I. He was also convicted under section 148 P.P.C and was sentenced to three years R.I. All the sentences were directed to run concurrently. Dissatisfied by the conclusion arrived at by this Court Bakht Baidar preferred appeal in the Supreme Court of Pakistan am1 the August Supreme Court by its judgment dated 21.2.1981 accepted the appeal and setting aside the order and judgment of this Court restored that of the trial Court with the resuIt that Bakht Baidar accused stood acquitted. Zangu Bar and Umar Zad convict-appellants surrendered on 31.5.1982 and Arzumand on 22.2.1985. A supplementary challan was put in the Court of the learned Sessions Judge, Bannu against all the three accused- appellants while Aurang Zeb is still fugitivbe from law.
6. In order to establish its case, basides fromal and official witnesses, the prosecution examined Arab Khan the lodrer of the F.I.R (P.W.7) and Afsar Ali (P.W.9) as witnesses of the occurrence.
According to Arab Khan on the day of occurrence at Tashin Qasa" Time he had gone to the Bazar outside Hawed Gate for making some purchases when in the meantime Badi-uz-Zaman and Zar Khan the two deceased came out of flawed Gate from the direction of the Bazar in a Tonga. They stopped near the shoOp of Bakht Zaman, Badi-uz-Zaman was armed with D.B shotgun and was sitting in the front seat whereas Zar Khan armed with S.B shotgun was occupying the rear seat of the Tonga. He shook hands with both the deceased and also noticed Afsar Ali (P.W) standing behind the Tonga on a cycle. Thereafter he went to the shop of Yaqoob Badi when he saw the three convict-appellants, Aurang Zeb the absconding- accused and Bakht Baidar the acquitted- accused duly armed with fire arms coming out of the shop of Hamidullah and started firing at the deceased as a resuIt of which they were both hit while the accused after reloading their arms and firing in the air decamped from the spot. Badi-uz-Zaman, when the witnesses approached him had already expired while Zar Khan was breathing his last and was unable to talk. A dot was arranged on which Zar Khan was placed while the witness taking the dead body of Badi-uz-Zaman in the same Tonga went to the Police Station and lodged the report. Motive for the offence was previous blood-fued enmity between the accused-party and the deceased party. Afsar Ali Khan the nest eye-witness of the occureence deposed at the trial that on the day of occurrence he had accompained Badi-uz-Zaman and Zar Khan the two deceased from the village to Bannu city. He was riding a cycle while the two accused had hired Tonga. The witness went to the Bazar qhile the two deceasd preceeded to the Court. It was agreed between the two deceased and the witness that they would meet again at 'Pashin Qaza' time at the shop of Sher Khan. Accordingly they met each other at the shop of Sher Khanb and while the two deceased hired the Tonga of Zamar. Khan he followed them on a cycle. Badi-uz-Zaman deceased sat in the front seat and Zar Khan occupied the rear seatr. The witness handed over his shotgun along with bandolier to Badi-uz- Zaman. When they reached out-side Hawed Gate they stopped rear the shop of Hamidullah immediately thereafter the five accused came out of the shop and fired at the two deceasd sitting in the Gonga. Badi-uz- Zaman on receipt of the injuries fell inside the Tonga while Zar Khan fell down to the ground. The five accused then fired shots in the air and decamped from the spot. The dead body of Badi-uz-Zaman was taken in the same Tonga to the police station while the witness along with others lifted Zar Khan on a 'Charpai' for the police station. This witness had also taken back the shotgun from the person of Badi-uz-Zaman deceased but the bandolier remained on the person of Badi-uz-Zaman deceased. In the Police Station this witness also surrendered the said shotgun to the police.
7. In this case the occureence has taken place at 'Qaza Pashin' time and the report was lodged in the Police Station which lies at a distance of 5/6 furlongs from the spot at 16.35 hours. It was the month of December and if we take 'Pashin Qaza' time to be round about 4.00 P.M the report having been lodged at 435 P.M it can well be termed as a very prompt report having been lodged in the Police Station. Full details on each and every material particular have been given in the F.I.R. The death of the two deceased as a resuIt of fire arm injureis stand established. The two eye-witnesses namely Arab Khan and Afsar Ali Khan consistently charged the three convict- appellants along with Bakht Baidar the acquitted accused and Aurang Zeb absconder for the murders of the two deceased. Learned counsel for the convict-appellants, however, argued that in the presence of the blood-fued enmity between the deceased party and the accused party would render the evidence of the two prosecution witnesse as interested because they are both related to the deceased Badi- uz-Zanman and, therefore, the credibility which in the ordinary course is attached to a dis- interested witness is wanting in this case We fully argue with the learned counsel on this score but it is well settled that testimony of eye-witnesses which is consistent and is corroborated by the recoveries and the medical evidence can well be acted upon not-with-standing the relationship of such witnesses either inter se or with the deceased. Even the evidence of the witnesses whose presence on the spot is established even if they are proved to be inimical with the accused can be taken into consideration if it is established that the evidence given by them is confidence inspiring and is consistent with the prosecution case. The report was lodged by Arab Khan without any delay and Afsar Ali the next prosecution witness has been named to have witnessed the occurrence.
Afsar Ali on the other hand has in full details explained his presence at the spot at the crucial moment. Thus the objection of the learned counsel that the two witnesses being related to the deceased are interested witnesses and their evidence should be discarded carries no weight. In this sequence learned counsel for the convict-appellans also argued that aIthough the occurrence has taken place in a rendezvous place, no dis-interested person from the entire locality has been produced at the trial to supprt the prosecution version. Firstly it is not incumbent upon the prosecution to produce all the persons who are said or are believed to have witnessed the occurrence. Secondly it is a matter of judicial observation that people ordinarily are not prepared to involve themselves in the enmity of others and particularly in this part of the country the introduction of a stranger to have witnessed the occurrence is not free from damaging the prosecution case because at any subsequent moment such a witness might either be won over by the accused- party or with a view to avoid confrontation with the accused party such a witness might give concessions. It has happened in so many cases that stranger or a passer-by when made a prosecution witness, has never stuck to what he deposed at the initial stage and in this case this observation has been proved when we see that one Noor Ali who also received fire arm injury as a resuIt of firing by the accused is silent about the asssilants and which obliged the prosecution to abandon him from production at the trial because he had been over. If the prosecution is in a position to establish its case by production of one or two witnesses the non- production of the dis-interested person out of the congeries is not material. Learned counsel for the convict- appellants also argued that the evidence of Afsar Ali (P.W) of his having witnessed the occurrence is doubtful from an other aspect too because according to him when the dead body of Zar Khan was brought to the Police Station in the 'Karwai'of Police nowhere name of said Afsar Ali is mentioned and that this would suggest that Afsar Ali introduced himself to be an eyewitness at some subsequent stage and that he had not witnessed the occurrence. This argument of the learned counsel also carries no weight because according to Afsar Ali he had produced the shotgun which he had taken from the person of Badi-uz-Zaman deceased after he was being taken to the Police Station by Arab Khan and produced the same to the I.Q in the Police Station when he arrived there along with the dead body of Zar Khan deceased. The I.O has confirmed the taking into possession of the shotgun in question vide memo Ex: PG from the Afsar Ali the licensee thereof in the Police Station prior to his departure to the spot and that the said shotgun was blood- stained. In this connection it may be pointed out that according to Afsar Ali while he was following the Tonga in which the two deceased were proceeding on a cycle he had given his licensed shotgun along with the bandolier to Badi-uz-Zaman deceased which he was carrying when he was shot at by the accused party. The production of the shotgun at the Police Station which was blood-stained in view of the details given by Afsar Ali is a sufficient corroboration of his presence at the spot and witnessing the occurrence. It was also argued by the learned counsel for the convict- appellansts that there being blood-fued enmity and the two witnesses being the relations of Badi- uz-Zaman deceased why the assailants did not attempt at their lives and spared them. This argument m our view is just an argument for the sake of argument because it is the vengc auce which is satisfied by the assailants and once they succeeded in committing the murders of their enemies it is immaterial to say why the others were spared. May be either they were not visible to the assailants or they had no intent to commit their murders. Be that as it may, we are concerned with the only question whether the murders of the two deceased were committed in the manner alleged by th prosecution and whether the incident was witnessed by the two prosecution witnesses or otherwise. From the facts and circumatarces explained by the two prosecution witnesses in detail and in view oi theii consistent evidence it has been established that they did witness the occurrence and are truthful witnesses.
7. As we have observed earlier the evidence of interested witnesses even though they may be inimical to the accused party can well be termed credible if their testimony finds corroboration from the circumstances, the recoveries and the medical evidence. The perasal of the site plan would suggest that the Tonga in which the two deceased were sitting was at point No. 1 while Afsar Ali (P.W) was at point No. 4. The accused are alleged to be at points 2 and 3. Arab Khan (PW) was at point No. 5. According to Afsar Ali he was chasing the Tonga on a cycle. It would thus appear that the Tonga was proceeding from north to south. At point No. 2 Bakht Baidar the acquitted accused, Zangu Bar and Arzumand the convict-appellants are shown while at point No. 3 Umar Zad convict- appellant and Aurang Zeb absconder are alleged to be present. Now if we turn to the medical evidence it is completely in conformity with the evidence of the eye-witnesses. It is not possible for a medical officer in each a situation to ascertain which injury on the person of the deceased is the first one. In the light of the evidence produced at the trial in this case it is to be seen. Whether in that situation the injuries observed by the medical officer could be caused or not. Badi-uz- Zaman deceased mitting in the front seat of the Tonga at the relevant time must be facing south and naturally his right side would be exposed to the assailants who were on the north-west back side.
Injury No. 1 on the person of Badi-uz-Zaman deceased which is on the right temporal region and injuryNo. 2 on the left perietal region of Zar Khan deceased could naturally be caused as a resuIt of fire shots at the hands of the accused who, as observed earlier, were on the north-west back side.
The rest of the injuries are immaterial for the purposes of contradicting the eye-witnesses because after having been hit even in the case of instantaneous death it cannot be presumed that the deceased remained statues and did not move or change their positions. Thus from the medical evidence too the version of the two prosecution witnesses has been reasonably established.
9. Learned counsel for the accused-appellants also referred to the recovery of pellets and cardboard discs in the Tonga and half-heartedly contended that the prosecution has failed to satisfactorily explain the presence of these articles and in his view the chance of use of fire arm on the part of the deceased who were admittedly armed with shotguns could .Not be aItogether eliminated. The argument, however, in our view is just an eyewash because the I.O has satisfactorily explained this aspect of the matter and even from the other prosecution evidence also it has been established that one cartridge of 12 bore Ex: P-8 had been tom, naturally as a resuIt o: firing by the accused with the resuIt that the pellets and powder came out ol the same and also from the other tom cartridges Ex: P-10 besides ter cardboard discs Ex: P-12 and one base Ex: P-13.
The recovery of these pellet: and cardboard discs in our view further establishes the truthfulIness of tht evidence given by Afsar Ali (PW) that he had handed over his shotgui along with the bandolier to Badi-uz-Zaman (deceased when he was to chaw the Tonga oa a cycle from Bannu city towards Haved Gate. Learned counsc for the convict-appellants contended that on the basis of the evidence which has been given in this case the honourable Supreme Court had set aside the verdict of conviction by the High Court and had restored the findings of the trial Court whereby Bakht Baidar the co-accused of the convict-appellants was acquitted. We have gone through the observations of the hon'ble Judges, of the Supreme Court in their judgment dated 21st November, 1981 and we have nowhere found that the Hon'ble Supreme Court had either dis-believed the evidence adduced by the two eye-witnesses or that it had been observed that there was any discrepancy between the medical evidence and the eye witness account. It would be of advantage to reproduce the observations of their lordship of Supreme Court which run thus.
"We would observe that the tree absconders have yet to be arrested and tried and, therefore, we are not inclined to comment on the question whether the evidence of the eyewitnesses was, indeed, satisfactory or not but would merely observe that the eye-witnesses were interested witnesses and that their evidence, therefore, required corroboration before it could be frlied upon.
The High Court found such corroboration in the circumstance of the abscondance of the appellant of nearly 3/4 years but the learned Additional Sessions Judge had accepted the explanation and was of the opinion that in the circumstances mentioned by the appellant he could not be held to have absconded. The only question therefore is whether the learned Judges in the High Court were justified while hearing an appeal against acquittal in substituting their opinion on this question fee.
That of the learned Additional Sessions Judges. AIthough in the course of an appeal against acquittal under Section 427 Cr.P.C, there is no limitation on the power of the superior Courts to interfere with every findings recorded by the trial Court but the superior Courts have themselves laid down certain priciples relating to their jurisdiction in the case of acquittal appeals. See Shoe Swaruo and others Vs. King-Emperor (AIR 1934 P.C 227) which was referred to with approval in Billu alias Inavatullah Vs. The State (PLD 1979 S.C 934). It has been 1iad down that aIthough the High Court in such appeals has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed but it has also been observed that in exercising the power conferred by the Code in such cases and before reaching its conclusions upon fact, the High Court should give proper weight and and consideration to the view of the learned trial Judge in inter-alia, disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses and we might add of hearing the accused. The learned Additional Sessions Judge had revorded a finding that in the circumstances narrated by the appellant he could not be considered as having absconded and we feel that such a finding of fact should not have been disturbed by the High Court in the course of an appela against acquittal merely because another view could be taken of the same facts by the learned Judge. If the said finding was not disturbed the only evidence left against the appellant would be that of the eye-witnesses, who being, as seen above,to be interested witnesses could not be relied upon without corroboration. If the appellant's absence from the spot for the fairlylong period after the incident is not treated as abscondance, there is no corroboration available to the testimony of the eye-witnesses. In these circumstances, it was not safe to convict the appellant on the uncorroborated testimony of the afore-said two witnesses."
The main stress made by the sugust Supreme Court was that in an appela against acquittal according to the well established principle a finding of fact recorded by the trial Court should not be interferred and that proper weight and consideration to the views of the learned trial Judge in acquitting the accused should be given and it was only on this point alone that the order of the High Court convicting Bakht Baidar co-accused of the convict- appellants was set aside. In the instant case on the other hand the learned trial Judge has placed full reliance on the evidence produced at the trial and rightly so because of our discussion coupled with the views of the learned trial Judge. In this case we have seen the corroboration of the evidence given by the two witnesses not only through medical evidence but also through other circumstances explained above. The long abscondance after the occurrance of the convict-appellants and their surrender to the law of the land after the verdict of Supreme Court acquitting Bakht Baidar co-accused of the convict- appellants is a further circumstance connecting the convict- appellants with the commission of the crime. We are aware of the well recognized principle of criminal parctice that abscondance by itself is not sufficient to corrobrate the prosecution case but in this case the prosecution evidence having been found to be credible fully corroborated by the medicalevidfcnce and the other circumstances, the abscondance of the convict- appellants is a further piece of corroborating evidence.
10. For the foregoing reasons we are firm in our view that the prosecution has successfully brought home guiIt to the convict-appellants and they were rightly convicted.
11. Before we part with we would like to observe that the learned trial Judge has materially erred in not charging the convict-appellants with Sections 149 and 148 P.P.C and instead convicting them under Section 302/34 P.P.C. The fact that one of the accused was acquitted by the sugust Supreme Court is no ground for aItering the sections of law with which the accused are charged and in view of the fact that five presons were charged for the murders of the two deceased the learned trial Judge must have framed a charge under Sections 302/149 read with Section 148 P.P.C. However, since there is no appeal or revision in that respect before us we would refrain from aItering the conviction.
12. Accordingly we dismess the appeal by maintaining the conviction and sentences of the convict-appellants. However, in view of Section 35 Cr.P.C the order of the trial Judge directing the sentences to run consectively is not called for. Accordingly we maintain the sentences of the convict- appellans under Section 302/34 P.P.C on two counts but direct that the substantative sentences under each count shall run ocurrently. The criminal revision petition meriting no consideration is accordingly dismissed.