1. MUHAMMAD ISHAQ KHAN, J.-- Shah Nawaz (2$) son of Adam Khan of Lakki Minakhel, Tehsil Lakki, District Bannu was convicted under section 302, P.P.C., for the murders of Sardar Nawaz and Syed Asghar Hussain Shah: by the judgment dated 25-6-1989 of Muhammad, Ayaz Khan Qasuria, Additional Sessions Judge, Bannu at Lakki and was sentenced to death subject to confirmation by this Court. Aggrieved by his conviction and sentence, Shah Nawaz appellant has preferred Criminal. Appeal No. 10 of 1989. There is a murder reference (No. 2 of 1989) by the learned Additional Sessions Judge, Lakki under section 374, Cr.P.C. For the confirmation of the death sentence.
2. Complainant Zahoor Abbas Shah has also filed Criminal Revision Petition (No.14 of 1989) for awarding compensation to the bereaved family under section 544-A, Cr.P.C. Since the Criminal Appeal, Murder Reference and the Criminal Revision Petition are all the outcome of the same judgment, these are disposed of through this judgment.
3. The prosecution case in brief is that while Zahoor Abbas Shah complainant alongwith Gul Abbas and Bahadur Nawaz were returning home from Minakhel Bazar on 23-3-1984 and reached Pir Shah Sawar Street at about 4--30 p.m., they saw Asghar Hussain Shah and Sardar Nawaz deceased standing near the house of Pir Shah Sawar and simultaneously noticed Shah Nawaz convict/appellant armed with a shotgun also coming there. Shah Nawaz accused no sooner reached near the two deceased, he fired one shot at Asghar Hussain Shah and another at Sardar Nawaz with which both were hit and fell down to the ground. Both the deceased were immediately taken to the Hospital but they succumbed to the injuries in the way. The occurrence besides Zahoor Abbas Shah, Gul Abbas and Bahadur Nawaz, was witnessed by Muhammad Aslam son of Muhammad Jan. Motive for the commission of the murders of the two" deceased was alleged to be the desire of Shah Nawaz accused of developing friendship; with the two deceased who were not submitting to his nefarious intentions which resulted in the murders of. The two deceased.
4. The report about the incident was lodged at 5-05 p.m. In Police Station Lakki Marwat the same day i.e. 23-3-1984 by Zahoor Abbas Shah which was recorded by Najm-ul-Hassan Shah, S.H.O. (P.W.11) by way of F.I.R. (Exh. PA.). After registration of the case, the Investigating Officer examined the dead bodies of the two deceased, which were also brought to the police station by the complainant, prepared their injury sheets and inquest reports. Thereafter he referred the two dead bodies to the mortuary for post-mortem examination. The Investigating Officer on his part went to the spot. He searched for the accused in his house but his whereabouts were not known. He came to the spot, prepared the site plan (Exh. P.C.) and took into his possession, blood-stained earth from the two places where the two deceased had fell down. He also took into his possession, three pellets from within the wall of the house of Shah Sawar as also six cardboards and four pieces of bone of the skull from the place where Asghar Hussain Shah deceased was present at the time of occurrence.
5. Post-mortem examination on the dead body of Sardar Nawaz deceased was performed by Dr. Abdullah Khan (P.W.11) on 23-3-1984 at 5-45 p.m. And on external examination, the following injuries were found on his person:
(1) A fire-arm inlet wound, 1/6" x 1/6", over dorsal surface of left shoulder, just below the joint, causing the fracture of left heamurrous.
(2) A pellet under skin was removed from the right side of neck, just above middle of right clavicle, corresponding to wound No. 1.
(3) A fire-arm inlet wound, 1/6" x 1/6", just over chin.
(4) A corresponding firearm outlet wound, 1/4" x 1/4", over right temperomendobular joint.
(5) A fire-arm inlet wound, 1/6" x 1/6", over left side of neck.
(6) A fire-arm outlet wound, 1/6" x 1/6", over right side of neck, corresponding to wound No. 5.
(7) A lacerated wound, 1/6" x 1/2", over right cheek, right mandible was found fractured.
6. On internal examination, larynx trachea and all blood vessels of the neck were found badly injured.
7. The same doctor also conducted post-mortem examination on the dead body of Syed Asghar Hussain Shah deceased and on external examination he found a gapping fire-arm wound, 3" x 4", over left side of scalp above the left ear. The skull bone was found missing and the brain matter was oozing out through this wound.
8. After the post-mortem examination, the blood-stained shirt (Exh.P/5) belonging to Sardar Nawaz deceased and a phial containing a pellet, sent to him by the doctor were taken into possession by the 1.0. And were sealed into a parcel. The Investigating Officer examined the P.Ws. Since the accused was not available, the 1.0. Obtained warrant of arrest under section 204, Cr.P.C. And thereafter applied for proclamation and after taking proceedings under section 87, Cr.P.C., the accused was ultimately declared as Proclaimed Offender and challan in this case under section 302; P.P.C. Read with section 512, Cr.P.C. Was submitted. The accused was ultimately arrested on 18- 11-1985 by Safdar Hussain, S.I. (P.W.10) and a supplementary challan was submitted in the trial Court against the accused.
9. Arguments of Mr. Muhammad Karim Anjum on behalf of appellant, Mr. Ibrahim Khan Alizai, learned State counsel on behalf of the State and Syed Zaffar Abbas Zaidi on behalf of complainant in criminal revision petition have been heard and record of the case has thoroughly been scrutinised.
10. PLD 1962 SC 269 it was observed that: It was further observed in the said authority that: For corroboration it is not necessary that there should be the word of au independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of the case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth.
11. According to Zahoor Abbas Shah (P.W. 2) he in the company of Gul Abbas Shah and Bahadur Nawaz started for their houses, which are situated in the same vicinity and are located near to each other. As soon as they reached near the street of Shah Sawar, they saw accused Shah Nawaz coming from the front side on a brisk speed. They also saw the two deceased present in the street near the wall of the house of Shah Sawar. Shah Nawaz appellant was armed with a D.B. Shotgun. He fired first shot at Asghar Hussain Shah deceased and a second shot at Sardar Nawaz deceased who were both hit and dropped down to the ground whereafter the accused decamped from the scene of occurrence. According to him, Muhammad Aslam, brother of Sardar Nawaz deceased who was sitting in the door of the Baithak of his house which opens towards the same street and is situated near the spot besides the witness and Bahadur Nawaz rushed towards the two deceased and putting them on the cots, were proceeding towards the Hospital when in the way both the deceased expired and therefore, they went to the police station where he lodged the report.
12. Bahadur Nawaz (P.W.3) gave statement to almost similar effect. Muhammad Aslam (P.W.4) deposed that he was present at the door of his Baithak when he saw Shah Nawaz accused/appellant armed with a D.B. Shotgun coming from one side of the street and Zahoor Abbas Shah, Gul Abbas and Bahadur Nawaz P.Ws. Coming from the other side of the street. He saw his deceased brother Sardar Nawaz and Asghar Hussain Shah deceased standing in the street near the wall of the house of Shah Sawar talking to each other. Suddenly the accused fired a shot at Asghar Hussain Shah deceased and immediately fired another shot at Sardar Nawaz deceased.
13. Both the deceased were hit and fell down to the ground. The accused ran away from the spot. He, Zahoor Abbas, Gul Abbas and Bahadur Nawaz all rushed towards the two deceased. They were taken on cots towards the Hospital but in the way both the deceased breathed their last and were instead taken to the police station where Zahoor Abbas Shah lodged the report. All the three witnesses were put to lengthy cross-examination by the defence counsel but we are in complete agreement with the learned trial Judge that nothing material from their mouths was brought on record to give the slight suggestion that they or any one of them was all false witness. Learned counsel for the accused/appellant contended that Gul Abbas Shah who had witnessed the occurrence and was named in the F.I.R. To have so seen the occurrence, was not produced at the trial which would suggest that he was not supporting the prosecution case. We, however, cannot subscribe to this proposition of the learned counsel that since all the witnesses were not produced at the trial the withholding of one of the witnesses would give premium to the accused to dub the prosecution case as doubtful for the presumptive non-support of an eye-witness. If the prosecution feels that by producing some of the eye--witnesses, they have succeeded in bringing charge home against the accused charged, they are not bound to produce in the witness box each and every witness who is claimed and is believed to have witnessed the occurrence. The contention that his non-production would support presumption that he was not supporting the prosecution case, cannot be considered on the other aspect as well because if that was so, he could be produced as a defence witness by the accused himself which, however, has not been done in the instant case. On the other hand, the prosecution examined one Amir Muhammad as (P.W.7) who is a tailor master and whose house is situate in the same street where the occurrence took place. According to him, it was Friday and he used to keep the shop close on each Friday. On the day of occurrence he was present at Degar time in the house when he heard the report of two fire shots. He came out of his house and saw the accused/appellant Shah Nawaz armed with a gun decamping from the spot. He also noticed the two deceased lying injured on the spot. He noticed Zahoor Abbas Shah, Gul Abbas, Bahadur Nawaz and Muhammad Aslant P.Ws. Present by the side of the two deceased. It cannot be denied that the occurrence took place on the day which happened to be Friday. It is also a common practice that mostly the people keep their shops close on Fridays. The mere fact that the name of this Amir Muhammad (P.W.7) does not figure in the F.I.R., would not make his statement incredible for the only reason that he too happens to be the relation of Sardar Nawaz deceased. There is no material on the record to suggest that there was any serious previous enmity between the deceased and the accused party so as to bring two different families of the two deceased join hands in falsely implicating the accused/appellant for the double murders of the two deceased.
14. The occurrence took place on 23-3-1984 at 4-30 p.m. And the report about the incident was lodged within the span of half an hour at 5-05 p.m. In Police Station Lakki distant 3/4 furlongs from the spot. The medical evidence faille corroborates the timings given by the prosecution witnesses in that according to the doctor the time between death and post-mortem examination, which was conducted at 5-45 p.m. In case of Sardar Nawaz deceased was 40-50 minutes. Similarly the time between death and post-mortem examination which was conducted at 6-00 p.m. In the case of Asghar Hussain Shah deceased was 50 minutes to one hour. This would clearly suggest that the report about the' occurrence was lodged in the police station within the shortest possible time and the question of deliberations or consultations in such a short period hardly arises. One person is charged for committing the murders of two deceased and it is consistent view of the Superior Courts that murder allegedly committed by one person in such a situation the substitution of innocent person for the actual culprit is extremely rare. Reliance in this respect may be placed on Siraj Din v. Kala and another reported as PLD 1964 SC 26; Muhammad Ayub alias Nikka v. The State reported as PLD 1983 SC 27 and Miran Bakhsh and another v. Muhammad Amir and another reported as 1986 SCMR 1225. In all the aforesaid authorities, the august Supreme Court has consistently held that substitution or false implication in the case of single accused could safely be ruled out. The substitution or false implication could, however, be argued where either the occurrence has taken place at night time or where identification of the culprit becomes doubtful. In the case in hand, on the other hand, the murders were committed in the broad daylight at Degar time in the street where the house of the deceased and the P.Ws. Are situated and in these circumstances, misidentification of the accused was all the more not questionable.
15. Learned counsel for the accused/appellant contended that the prosecution failed to bring on record any material with regard to the motive obliging the accused to commit double murder of the two deceased. It has come in the evidence of Zahoor Abbas Shah that the accused/appellant who is a person of bad character wanted the two deceased to become his boy keeps and that the two deceased were not submitting to his immoral lust, which resulted in their murders. Keeping in view the ages of the two deceased (15/16 years of Sardar Nawaz deceased and 13/14 years of Asghar Hussain Shah deceased), the statement of Zahoor Abbas Shah seems to be a natural one because he is fully supported in this behalf by Bahadur Nawaz (P.W.3) who in the cross- examination deposed that Sardar Nawaz deceased had himself told him that the accused was after them i.e. Sardar Nawaz and Asghar Hussain deceased to keep them as his boy keeps for ulterior motive and that he despite this charge, made no report or complaint for family honour. Be that as it may establishment of the motive by the prosecution is not essentially to be discharged and it has commonly happened in the commission of the murders that a murder is committed either for no motive or for a motive which may well be in the mind of the accused committing the murder and even the person who is subjected to murder or whose murder is committed, may not be knowing the fault for which he is being murdered. Reliance in this connection may be placed on Wazir Gul v The State 1975 SCM R 289; Muhammad Shafqat v The State 1970 SCMR 713 and Ahmad Nisar v The State 1977 SCMR 175. The girt of the aforesaid authorities is that what truly motivates an accused person to commit murder may be best known to him and not to others.
16. We have fully considered the statements of the prosecution witnesses and keeping in view the consistent charge by all the prosecution witnesses, who are natural witnesses, for the murders of the two deceased, the defence having miserably failed to establish from record any ulterior motive for falsely implicating the accused or for substituting him for the real culprit, the learned trial Judge correctly placed reliance on the evidence of the prosecution witnesses in recording conviction of the accused/appellant for the murders of the two deceased under section 302, P.P.C. The abscondence of the accused/appellant immediately after the occurrence for about more than a year and a half lends further corroboration towards the guilt of the accused/appellant.
17. Before we conclude, we may remark that the accused was charged for double murders of Asghar Hussain Shah and Sardar Nawaz deceased. The prosecution evidence was clear regarding intentional murders of the two deceased on the part of the accused. Under section 342, Cr.P.C. He was examined and questioned for the murders of both the deceased. However, the learned trial Judge convicted the accused/appellant under section 302, P.P.C. And it appears that through inadvertence he failed to record conviction of the accused/appellant on two counts for the murders of the two deceased. Since however, there is no appeal/revision for correcting this defect in the findings of the trial Court, we would hesitate to alter the conviction recorded by the trial Judge.
18. Accordingly we maintain conviction of the accused/appellant under section 302, P.P.C. For committing the murders of the two deceased. The accused has committed cold blood murders of the two deceased who were in the prime of their youth for no rhyme or reason except that the two deceased were not subjecting themselves to the immoral wishes of the accused/appellant and therefore, in the circumstances, the normal penalty of death prescribed for committing the murders is the proper punishment to be inflicted upon the accused/appellant. We, therefore, find no incriminating or mitigating circumstance to even interfere with the sentence passed by the learned trial Judge. Accordingly, we would confirm the death sentence passed by the Additional Sessions Judge, Bannu at Lakki and would answer the murder reference in affirmative. Learned counsel for the complainant in criminal revision has not been able to persuade us to enhance the sentence passed upon the accused/appellant any more. Criminal Revision Petition No. 14 of 1989 is accordingly dismissed.