' SARDAR MUHAMMAD DOGAR, J.-- Nazir Hussain Shah aged 42 years has filed appeal against the order dated 17-9-1984, of Additional Sessions Judge, Jhelum, whereby learned trial Judge convicted him under section 148, P.P.C. For having committed rioting, under section 302, P.P.C. On two counts for having committed the murder of Muhammad Azeem and Ahmad Khan, and under section 307, P.P.C. On five counts for having launched murderous assault on Muhammad Zaman, Sher Khan, Muhammad Haleem, Muhammad Naseeb and Mazhar Hussain P.Ws., and awarded sentences as follows:-
(i) Under section 148. P.P.C.-- to undergo R.I. For three years plus to pay a fine of Rs,1,000 in default whereof to suffer R.I. For two months.
(ii) Under section 302. P.P.C.-- to death plus to pay a fine of Rs,10,000 on each count, in default whereof to suffer R.I. For two years on each count.
(iii) Under section 307. P.P.C.-- to undergo R.I. For ten years on each count plus to pay a fine of Rs,5,000 on each count, in default whereof to suffer R.I. For one year.
' Learned trial Judge has made reference under section 374, Cr.P.C. For confirmation of death sentence. Both the matters are being disposed of by a consolidated judgment.
2. The occurrence had taken place on 10-8-1972 at Rotiwela (lunch time) in the Dhoke of Muhammad Haleem given up P.W., situated in the area of village Khai, at a distance of 11 miles from Police Station Kallar Kahar, District Jhelum. F.I.R. Exh.P.D. Was registered on the same day at the Police Station by Abdur Rashid, S.I. (deceased) at 1-30 p.m. On the statement of Muhammad Zaman P.W.S. According to F.I.R. Qasim Shah (accused) was given a beating by Muhammad Azeem (deceased), Muhammad Haleem given up P.W., Amir Khan and Muhammad Naseeb P.W.6, 1-1/2 months before the occurrence. A case under section 324/34, P.P.C. Was registered against Muhammad Azeem Khan (deceased) etc. And the challan was submitted to Court. Security proceedings under section 107/151, Cr.P.C. Inter se the parties were also taken.
'On the day of occurrence, the complainant was present at his Dhoke along with given up P.W.
Muhammad Haleem, Muhammad Azeem (deceased), Ahmad Khan (deceased), Muhammad Naseeb P.W.6, Mazhar Hussain P.W.8 and Sher Khan P.W.7. The appellant armed with a .12 bore gun accompanied by Muhammad Zubair also armed with a .12 bore gun, Amir Hussain, Qasim Shah, Fazal Din and Ghulam Abbas armed with Sotis came there at Rotiwela. The appellant after raising a Lalkara, fired a shot which struck Ahmad Khan on the chest. Second shot was fired by Muhammad Zubair, which struck Ahmad Khan on the face. He fell down. The appellant then fired the second shot which struck Muhammad Azeem on the abdomen. The second shot fired by Muhammad Zubair also struck Muhammad Azeem on the abdomen. Both of them then fired again, the pellets of which struck Muhammad Naseeb and Mazhar Hussain P.Ws. The other accused armed with Sotis caused injuries to the deceased as well as the P.Ws. Thereafter, all of them ran away. The complainant suffered a Soti blow on the thigh. Ahmad Khan and Muhammad Azeem Khan died on the spot.
3. Abdur Rashid, S.I. Who had died prior to the trial of the appellant, had appeared as P.W.15 in the trial of his co-accused, and made statement on 20-61976. This statement was tendered in evidence during trial of the appellant. According to that statement he reached the spot after recording the F.I.R. And despatched the dead bodies of both the deceased after preparing inquest reports and injury statements, for post-mortem examination. Blood-stained earth was also collected by him from the spot. He got medically examined P.Ws. Muhammad Haleem, Mazhar Hussain, Sher Khan, Fazal Hussain and Muhammad Zaman, from the doctor after preparing their injury statements. All the accused named in the F.I.R. Except the appellant were arrested. The appellant could not be arrested. He was declared proclaimed offender. Challan was submitted to Court against the rest of his co-accused. They were tried by the Sessions Judge, Jhelum under section 302/307/148/149, P.P.C. Proceedings under section 512, Cr.P.C. Were taken against the appellant.
' Learned Sessions Judge vide judgment, dated 22-6-1974 acquitted Muhammad Zubair. The other accused, i,e, Qasim Shah, Amir Hussain, Ghulam Abbas, Fazal Din were convicted under section 302/34, P.P.C. On two counts and under section 307/34, P.P.C. On five counts and sentenced as follows:-
(a) All the four sentenced to imprisonment for life on two counts under section 302/34, P.P.C.
(b) All of them sentenced to undergo imprisonment for life on five counts under section 307/34, P.P.C.
' The appeal filed by them in the High Court was dismissed vide order dated 19-2-1976. However, their sentences under section 307/34, P.P.C. On each count were reduced from imprisonment for life to 3 years' R.I. Each. The appeal filed by them before the Supreme Court was also dismissed on 1-12-1980.
4. The appellant was arrested on 9-5-1982 by Muhammad Hussain, Inspector, C.IA., Sahiwal P.W.12, from Sahiwal District. He was arrested in this case by Ch. Ghulam Muhammad, Inspector, C.IA., P.W.15 on receiving information about his arrest by the police of District Sahiwal, and was brought to Jhelum. After completion of necessary investigation the challan was submitted to Court.
' Although some cartridges of stengun, a revolver, along with 15 cartridges and a dagger are stated to have been recovered at the time of his arrest, but neither the articles nor the memo. In that regard was produced at the trial.
5. Statements of seventeen P.Ws. In all were recorded at the trial. Apart from positive reports from the office of the Chemical Examiner and the Serologist, statements of some of the witnesses recorded during the earlier trial, who had died before the present trial, including that of Raja Abdur Rashid, S.I., were also tendered in evidence.
6. Dr. Asghar Hamid who had medically examined P.Ws. Muhammad Naseeb, Muhammad Haleem, Mazhar Hussain, Sher Khan, Fazal Hussain and Muhammad Zaman, and had performed autopsy on the dead bodies of Muhammad Azeem and Ahmad Khan, appeared as P.W.9. He had noted 2 fire- arm injuries and two injuries with blunt weapon on the person of Muhammad Naseeb P.W.6. He had also removed a bullet from injury No,1 on his person. Six injuries were noted by him on the person of Muhammad Haleem given up P.W. All the injuries were opined to have been caused by a blunt weapon. Mazhar Hussain, P.W.8 was found to have suffered two fire-arm injuries. Sher Khan P.W.7 was found to have suffered four blunt weapon injuries, while Fazal Hussain given up P.W. And Muhammad Zaman P.W.5 were found to have suffered one injury each by a blunt weapon.
' Ten fire-arm injuries were noted on the body of Muhammad Azeem deceased. Four of them were exit wounds. One bullet each from injuries Nos. 5 and 6 were removed. On internal examination, 6th, 7th and 9th ribs were found fractured. Left pleura and left lung were injured and left kidney stood destroyed. Injuries Nos. 6, 7 and 9 which were on chest region were opined to be fatal individually as well as collectively.
'Eleven injuries were noted on the body of Ahmad Khan deceased. Four of the injuries were exit wounds. Three bullets were removed from different injuries while one was found embedded in the layers of turban. Two pieces of a broken bullet were also removed from inside the brain.
' The deceased was opined to have died as a result of injuries Nos. 1, 2, 3 and 10. Injuries Nos. 1, 2 and 3 were on chest region while injury No,10 was on anterior part of the skull. The doctor during cross- examination, stated that one fire of .12 bore cartridge could cause all injuries on the person of Muhammad Azeem and so one fire could have caused all the injuries on the person of Ahmad Khan deceased.
7. The ocular account was deposed to by Muhammad Zaman complainant (P.W.5), Muhammad Naseeb P.W.6, Sher Khan P.W.7 and Mazhar Hussain P.W.B. All of them stated that the appellant armed with a gun accompanied by Muhammad Zubair armed with a gun and Qasim Shah, Amir Hussain. Ghulam Abbas and Fazal Din armed with Sotis had attacked them in their Dhoke and that Muhammad Azeem and Ahmad Khan had died as a result of the shots fired by the appellant and Muhammad Zubair, while Mazhar Hussain P.W. Had suffered injuries and that all of them including Fazal Hussain given up P.W. Were given injuries by the other accused with Sotis. The only deviation made by Muhammad Zaman P.W. Is about the weapons held by the appellant and Muhammad Zubair. In that, he stated that both of them were armed with rifles. However, in the case of Muhammad Zubair he later on qualified by stating that he was holding a gun. The suggestions put during cross-examination to all the witnesses, that on the day of occurrence Nazir Shah appellant was going back from the village as it was the last day of his leave and that his other five co- accused while returning after bidding him farewell had some type of encounter with Muhammad Azeem and Ahmad Khan deceased, during which both of them died as a result of shots fired by Muhammad Zubair and that Muhammad Naseeb and Mazhar Hussain P.Ws. Had also suffered injuries from the shots fired at Ahmad Khan, by Muhammad Zubair, were denied by them. The suggestion put to Muhammad Zaman P.W.5 that Nazir Shah appellant and Muhammad Zubair (acquitted accused) had fired shots from their respective weapons, facing each other, was denied by him.
8: The evidence regarding motive for the occurrence has been stated by Muhammad Zaman P.W.5 and Muhammad Naseeb P.W.6. In that, they have stated that both the deceased alongwith Muhammad Haleem, Muhammad Naseeb and Amir Hussain P.Ws. Bad beaten Qasim Shah real brother of the appellant and a case was registered against them. (Qasim Shah was tried in the first round and has been convicted and sentenced).
9. The evidence of abscondence of the appellant, after the occurrence, the warrants issued for his arrest and the proclamation for service upon him, was deposed to by Subha Sadiq S.I. P.W.11. He stated that the warrants of arrest of Nazir Hussain appellant were entrusted to him; that he had searched for the accused in his village as well as his parent unit at Campbellpur but he was not traceable, whereafter his statement was recorded before the Committing Magistrate at Chakwal and that the proclamation issued, which was entrusted to him, was affixed by him on the outer door of house of the accused and on the Court room of Chakwal. He also stated that he had arranged beat of drums in villages Bhaun, Kahi, Thoa Hamun etc. Etc. The report and the proclamation have been tendered in evidence as Exh.P.P. And P.P./1.
10. During statement under section 342 of the Code of Criminal Procedure, the appellant denied his participation in the occurrence and pleaded innocence. He admitted that Qasim Shah and Amir Hussain his co-accused were his real brothers but he proclaimed that his relations with Qasim Shah were strained. He admitted his relations with other accused as well. While answering a question about the incident of motive, he stated that he does not know anything as he was serving in the army and was not in the village on the said day. He admitted to have been 'rrested by Muhammad Hussain, Inspector, C.IA. On 9-5-1982, but claimed that he had appeared before him of his own accord. He denied that he had absconded after the occurrence. In answer to the question, 'do you want to say anything else; he stated as follows:- "I am innocent. I was on leave and was at Jhang Sayyedan P.S. Dhuman. I came to know of my involvement in this case second day after the occurrence. I, therefore, absconded and earned money enough to engage counsel. I married during this period and lived a peaceful life. I have two children out of this marriage. Those children are present outside the Court. I have not lived a life of any out-law during this period. After pursuing the case of my brothers. I voluntarily appeared. In case, I had not absconded, there was nobody to look after the case of my brothers."
'He did not produce any evidence in defence.
11. We have gone through the evidence with the assistance of learned counsel for the appellant and have heard learned counsel for the parties, at length.
12. Some of the questions in this appeal, do not need any consideration or adjudication, as the matter as a result of the earlier trial of co-accused of the appellant, had come up to the High Court and was argued before the Supreme Court as well. The judgment of conviction recorded on the basis of the statements made by the eye-witnesses against four co-accused of the appellant, was maintained in the High Court and the appeal filed against rejection of that, before the Supreme Court was also dismissed. On that account the matter pertainig to the date, time and place of the occurrence, the injuries suffered by the eye-witnesses and their presence at the spot, and the fact of the two deceased having died as a result of the fireshots, stands resolved. We are, therefore, not required to go in any detail about those matters. In fact learned counsel for the appellant conceded that the only question posed is, whether the statements made by the witnesses against the appellant can be believed or not and whether the prosecution has been able to prove the case against him?
The argument advanced by learned counsel for the appellant that removal of bullets from the seats of injuries of the two deceased, was indicative of the fact that the prosecution version of their having died of the shots fired from .12 bore gun, stands belied, is contradictory to another argument advanced by him. In that, he contended that the injuries suffered by each of the two deceased, appeared to have been the result of one shot each. If that be true, then all the injuries could only have been the result of a shot fired from a .12 bore gun because a single shot fired from rifle, revolver or pistol, could not have caused more than one injury, unless the bullet fired from the fire-arm makes way by exit. We would like to mention here that it is not only that the appellant's counsel has advanced the argument that the injuries on both the deceased appeared to be the result of one shot each, but the trial Judge who had initially held the trial of co-accused of the appellant, had also come to the same conclusion. His judgment in that regard, was not challenged and whatever be the worth of those findings, they stand accepted over years. The argument in this regard also finds support from the views expressed by the doctor who had performed autopsy on the bodies of both the deceased. In lc that, he expressed opinion during cross-examination that injuries on both the deceased were the result of one shot each from a .12 bore gun.
13. The argument of learned counsel for the appellant about the use of two types of weapons, therefore, stands negated even by the observations made by the doctor, who had performed autopsy.
14. The contention raised by learned counsel for the appellant that since according to eye- wtinesses the appellant and Muhammad Zubair (acquitted accused) both had fired shots at the deceased and so it cannot be stated with any amount of certitude as to who was responsible to have caused fatal injuries to the deceased, has also not impressed us. In that, learned trial Judge who had tried Muhammad Zubair alongwith others, had acquitted him. Acquittal of Muhammad Zubair was not challenged either by the State or by the complainant. Neither any order was passed nor any observation was made by the High Court while disposing of the appeal filed by co- accused of the appellant who were tried alongwith Muhammad Zubair.
15. As noted earlier the presence of the witnesses at the spot and their having suffered injuries during the said occurrence, stands established. There is no reason to disbelieve their testimonies qua the appellant. It is not only that they have deposed about the injuries caused by the appellant to the deceased, they D have also deposed about the injuries suffered as a result of the shots fired by him, by Muhammad Naseeb and Mazhar Hussain P.Ws. Who also testified the fact of having suffered the injuries at his hands.
16. The additional factor is that the appellant had absconded after the' occurrence. He remained absconding for about ten years. According to the suggestion put on his behalf, he was present in the village on the day of occurrence. Even according to the statement made by him under section 342, Cr.P.C. He had come to know about his having been named in the F.I.R. As an accused, on following day of the occurrence, still he did not appe r nor could be arrested in spite of best efforts made by the police. Not only he k.Iew all the time that he was named as an accused, but he had been pursuing the case of his brothers, per his own statement. Obviously he avoided facing trial intentionally. His plea that he had absconded to raise money for engaging a counsel, is hardly a ground to absolve him of the responsibility of his abscondence. In this case, therefore, the evidence of abscondence fully corroborates the ocular account.
17. The other important aspect of the case is that except incident of motive mentioned in the F.I.R., knowledge of which has been denied by the appellant, there was no other enmity between the appellant and the witnesses, and as such there is no earthly reason to disbelieve their statements against the appellant. No suggestion whatsoever in this regard was put. The fact of beating of Qasim Shah brother of the appellant by the two deceased and the P.Ws. 1-1/2 months prior to the occurrence, has not been denied by the appellant. All he stated is, that he did not know about that.
Being real brother of Qasim Shah, he must have felt aggrieved. The evidence of motive in this case also, therefore, lends support to the ocular account.
' For all the reasons enumerated above, we do not find any merit in this appeal. The same is dismissed. The sentence of death awarded to the appellant on two counts, is therefore, confirmed. .