1. ABDUL GHANI KHAN KHATTAK, J.-Abdul Karim son of Musharaf 33/34 years. Zarghun Shah 45 years, Faqir Gul 25 years sons of Said Ahmad of village Pandheri and 2 others (since acquitted) were tried and convicted by the learned Additional Sessions Judge, Mardan for the murder of Raza Khan and attempted murder of Shamsur Rehman committed on the night between 28/29th July, 1974, at village Pandheri in the limits of Police Station Shahbaz Garb, and sentenced
(1) Abdul Karim---
(i) under section 302, P.P.C. To death, and a fine of Rs. 3,000 or in default further R. I. For 1--years.
(ii) under section 307, P. P. C. To 7 years and a fine of Rs. 1,000 or in default further R. I. For one year.
(2) Zarghun Shah-----
(1) under section 302, P. P. C. To life imprisonment and a fine of Rs. 2,000 or in default further R. I. For one year.
(ii) under section 307, P. P. C. To 6 months' R. I. And a fine of Rs. 500 or in default further R. I. For three months.
(3) Faqir Gul---
(i) under section 302, P. P. C. To life imprisonment and a fine of Re. 2,000 or in default further R. I. For one year.
(ii) under section 307, P. P. C. To 7 years' R. I. And a fine of Rs. 1,000 or in default further R.I. For one year.
2. The convicts have appealed and the case has been referred to this Court for confirmation of the death sentence under section 374, Cr. P. C. The Criminal Revision for enhancement of the sentences of Zarghun Shah and Faqir Gul and for the confiscation of the property of the convicts is also before us. This judgment will dispose of the appeals, murder reference and the revision petition.
2. On the night preceding the night of occurrence Faqir Gul appellant had made abortive mean overtures to a boy Muhammad Ali a servant of Sher D.I, uncle of Raza Khan and Sher D.I was accordingly informed of this incident by Muhammad Ali, Raza Khan deceased on the night of occurrence --at 'khuftan' time accompanied by Taj Muhammad, Shamsur Rehman P.Ws. Salim Mir Bahadur and Munawar (not produced) had gone to the 'hujra' of Fazal Karim to participate in the betrothal ceremony of the niece of Fazal Karim where Abdul Karim and Faqir Gul were also present.
3. Raza Khan remonstrated Faqir Gul about the incident of the previous night and told him not to visit his 'hujra' in future, which led to a skirmish between the complainants party on one side and Abdul Karim and Faqir Gal on the other. However, on the intervention of Fazal Karim and Sher Muhammad the parties were pacified. After the function was over at about 11-30 p.m. Shamsur Rehman went to his house (to the north of the spot of occurrence) and Raza Khan went to his house, and Taj Muhammad, Salim, Mir Bahadur and Munawar went to their 'hujra'. Later between 12 and 12-30 mid- night a row emanating from the 'hujra' attracted Shamsur Rehman from his house who saw the three appellants and their two accomplices armed with 'topaks' and out of them Abdul Karim who was having a 'sangin' also, delivered two blows with the 'sangin' to Raza Khan which landed on front side of his chest and his back and there after gave a blow to Shamsur Rehman on his left arm, followed by a scuffle between Faqir Gut appellant and Taj Muhammad P.W. Who disarmed Faqir Gul of his gun. In the meanwhile Faqir Gul drew out a 'Tamacha' from his trousersfold and fired at Shamsur Rehman hitting him on his back. The injured persons wean carried on a 'cot' for some distance and then in a 'tonga' to the police station at a distance of 9 miles where the report Exh. P.
4. A. Was made by Raza Khan recorded by Momin Khan. S. H. O. P. W. 10 on 29-7-74 at 4-30 a.m. In the rider to the report available on the original file omitted in the paper book it has also been mentioned that two shot-guns snatched. Away from Faqir Gul and Zarghun Shah appellants were produced in the police station by Raza Khan reporter. Momin Khan after recording the report prepared the injury sheet Exh. PC/6 of Raza Khan and Exh. PC/7 of Shamsur Rehman, sent the casualties to Civil Hospital, Mardan for treatment. Faqir Gul and Abdul Karim appellants had also come to the police station for making a report and as they were injured, the Police Officer prepared their injury sheets Exh. PC/4 and Exh. PC/2 and since they were charged in the report by Raza Khan they were formally arrested. He also took Into possession shot-guns Exh. P-1 having a damaged butt Exh. P-2 vide memo Exh. PH. The Police Officer recovered blood from two, places vide memo Exh. PD and a bulb of 60 volts Exh. P-3. A copy of license Exh. P-4 was produced to him by the wife of Zarghun Shah relating to the shot-gun already taken into possession in the police station. The site plan Exh. P. B. Was prepared at the instance of Muhammad Salim. Tai Muhammad, and Munawar Khan with the notes correctly by the Police Officer.
3. Dr. Roidad Ali Shah. Medical Officer Civil Hospital, Mardan on 29-7-74 at 1-30 p.m. Examined Mir Hassan Shan son of Said Ahmad aged about 30/35 years of Pandheri and following injuries were found on him:
(1) A lacerated wound on the occipital bone size 1"x 1" into scalp deep circular in shape.
(2) An abrasion on the left shoulder joint size 1' x 1'.
(3) An abrasion on the shoulder joint 1' medial to injury No. Size 1--x --.
(4) Two contusion wounds on the right side shoulder joint size 1' x --" and 2" x -- each.
(5) A contusion wound and circular in shape size 1' x 1' at the medial border of the left scapula.
5. He opined that the weapon used was blunt. The duration of injuries was about 14 hours. In his opinion the injuries were simple.
6. The same doctor also examined Abdul Karim son of Musharaf Khan village Bakhshali on 29-7-74 at 8-00 a.m. And found the following injuries on his person:
(1) A lacerated wound on the frontal bone size 1 --' x --" into scalp deep.
(2) Two lacerated wounds on the left pariatal bone each of the size 1' x 1" into scalp deep.
(3) A lacerated wound on the occipital bone size --" x --'.
(4) An abrasion just below the left clavial size 3" x --"
(5) Four contusion wounds on the left side back 6" x 1' and two were of the size 4' x 1'. The size of the two wounds was 6" x 1" each while the rest of the two were of 4" x 1" each.
7. In his opinion the weapon used was blunt and the duration of the injuries was about 8 hours. The nature of the injuries was simple according to the X-Ray report.
8. The doctor also examined Faqir Gul son of Said Ahmad village Pandheri on 29-7-74 at 8.00 a.m.
9. Found the following injuries on his person:
(1) A lacerated wound on the lefteye-brew size --' x --'.
(2) An abrasion on the forehead left side 1" x 1' and 1" above the left eye-brew.
(3) An abrasion on the forehead right side, size 1-- x --".
(4) A lacerated wound on the right side middle of nose, size --" x --".
10. The patient was complaining of pain in the back and having left black eye.
11. In his opinion the weapon used was blunt. The duration of injuries was about 8 hours while the nature of injuries was simple. He stated that the medico legal reports in respect of Mir Hassan, Abdul Karim and Faqir Gul Exhs. PC/1, PC/3, and PC/5 respectively are in his hand with correct signatures.
12. Dr. Muhammad Alam Khan, the then Medical Officer; District Head Quarter Hospital Mardan on 29- 7-74 at 6-30 a.m. Examined Raza Khan son of Nur Zaman aged 28/30 years and found the following injuries on his person:
(1) A stab wound on the lower part of the left side of abdomen (Hypo--gastrium) --' x lateral to the mid-line size 1' x --" x cavity deep, omentum is coming out of the wound.
(2) A stab wound on the back of the left side of the chest in the post. Axillary line 6 intercastal space 1' x --' surgical emphysema present.
13. In the opinion of the doctor the injury was grievous in nature and was caused with sharp-edged pointed weapon. The same doctor conducted the post-mortem examination on the dead body of Raza Khan and found the following injuries on internal examination: Wall, peritoneum injured, Small intestine was injured at various spaces and repaired during operation. Left ureter injured. Thorax: Walls, ribs and Cartilages injured left side. Blood vessels ware also injured. In his opinion cause of death was toxaemia and shock resulting from stab wound.
14. Time between death and P. M. Examination was one hour while time between injury and death was 5/6 hours.
15. The above doctor also examined Shamsur Rehman son of Mir Abas, aged about 35/36 years of village Pandheri on 29-7-74 at 7-00 a.m. And found the following injuries on his person:
(1) A fire-arm entrance wound on the back of the right side of the chest 2" away from the mid- vertebral line size --' x --". No charring marks and no exit wound.
(2) A stab wound on the lateral aspect of the left arm penetrating to the medial side of the said arm size 1 --" x --" and --" x --" respectively (muscles injured).
(3) A stab wound on the left side of the chest below the anterior fold of the left axilla in the fourth apace, size --" x --". No surgical emphy--sema. No shirt or banyan were available. According to the X-Ray report ribs were fractured on the right side. Nature of the injury was grievous. Sharp and pointed means were used for injuries Nos. 2 and 3 while injury No. 1 was caused by fire-arm.
16. Duration of the injuries was about seven hours.
17. During his cross-examination the doctor stated that after receiving injuries Nos. 1 and 2 the deceased could remain active for a few minutes. He again said for a short time and had to 'sick' shock immediately. He further added that Injury No. 1 by itself was sufficient in the ordinary course of nature to cause the death of the deceased.
18. Supporting the prosecution version Taj Mohd. P. W. 7 gave a more detailed version of the occurrence as to how it began and when and where it ended. He stated that on 'Khuftan' preceding the time of occurrence he along with Raza Khan deceased and Shamsur Rehman P. W. Had gone to the 'hujra' of Fazal Karim for attending the betrothal ceremony where Abdul Karim and Faqir Gul were also present and the latter was told by Raza Khan not to visit his hujra in future. This led to an altercation between them and on the intervention of the elders the matter was settled. After the ceremony was over he along with Salim, Mir Bahadur and Munawar went to their 'hujra' and Raza Khan and Shamsur Rehman went to their respective houses. After a short while the 3 appellants and their acquitted accomplices duly armed with 'topaks' came to the hujra and on the bidding of Abdul Karim, Faqir Gul aimed his gun to the witness, who caught hold of the barrel of the gun and started shouting which attracted Raza Khan deceased and Shamsur Rehman to the spot. Abdul Karim gave two blows to Raza Khan with 'sangln' and thereafter delivered a blow to Shamsur Rehman and injured him. Faqir Gul lost grip of the gun and Mir Bahadur snatched it. Faqir Gul drew out 'Tamacha' and fired a shot at Shamsur Rehman and hit him. Raza Khan deceased and Shamsur Rehman in injured condition went towards the south of the 'Hujra' and the assailant also decamped in the same direction. The assailants had fired 6/7 more shots at the complainant party however, causing no injury to them. Zarghun Shah appellant while decamping towards the north was apprehended by Sherdil who snatched the gun from him and confined him in the 'kotha' of his 'hujra'. The witness stated further that the injured persons Raza Khan and Shamsur Rehman had in fact fallen on the path towards the south of the 'hujra' at some distance.
19. The appellants made the following statement at the trial.
20. Abdul Karim stated: "I do not know about the motive for the scuffle but Raza Khan and Shamsur Rehman in 'hujra' of Fazal Karim started beating Faqir Gul with sticks and I intervened to separate them, in that separation I and Faqir Gul received stick blows and fist blows. Fazal Karim and other elders separated the parties and the matter was compromised there on the spot."
21. Explaining his injuries Abdul Karim stated:-- "'As I have already explained that these injuries were received by me when deceased Raza Khan and Shamsur Rehman P. W. Were giving beating with stick to Faqir Gul and I intervened to separate them. This happened in the 'hujra' of Fazal Karim at late 'khufian' time".
22. Explaining his injuries Faqir Gul appellant stated:- "Raza Khan deceased and Shamsur Rehman P. W. Were in the 'hujra' of Fazal Karim where I along with Abdul Karim and Mir Hassan Shah were also present. Raza Khan deceased and Shamsur Rehman P. W. Abused me without any reason and verbal altercation started. Raza Khan deceased and Shamsur Rehman P. W. Gave me beating with sticks and fists and thus I sustained the injuries on my person. Mir Hassan Shah and Abdul Karim were also injured by them during the course of separation. Fazal Karim and others patched up the matter there and then this scuffle had taken place at late 'khuftan' time."
23. Zarghun Shah stated:-- "At about 'sehri' time, I heard a roar in my house from the direction of the 'hujra' of Sherdil. I picked up my licensed shot-gun without having any cartridges in order to find out the cause of it. I was on the way to the 'hujra' of Sherdil when I was taken by him to the kotha of the 'hujra' and he also took my shot-gun from me and confined me in the said kotha for my safety. Sherdil was there in 'hujra' when Haminur Rehman accused in the cross-case broke open the window of the kotha and fired at me ineffectively. The pellets hit the wall. On the arrival of the police I charged Haminur Rehman for firing at me. Haminur Rehman is the brother of Shamsur Rehman P. W."
24. Of the two witnesses the evidence of Shamsur Rehman relates to the actual occurrence as he came to the spot on hearing the cries of Taj Mohammad and his companions in the hujra of Sherdil whereas Taj Mohammad tells the story of the modus operandi of the assailants prior to the arrival of Raza Khan and Shamsur Rehman at the scene of occurrence. He has said that the appellants and their accomplices came to the hujra and drove them at the point of guns towards the south that it was there that their cries of distress attracted Raza Khan and Shamsur Rehman from their houses. There are certain lapses and contradictions in the testimony of Shamsur Rehman, which in our view does not reflect on the main features of prosecution case rather it has filled up certain gaps in the narration of occurrence. For instance in cross-examination.
25. Taj Mohammad stated : "On our shouting Shamsur Rehman came to the hujra from the north and Raza Khan deceased from the south."
26. This reply tallies with site plan, for the house of Raza Khan is situate adjacent to the spot where blood was recovered and the house of Shamsur Rehman is to the north of the place of occurrence.
27. Shamsur Rahman's denial of the correctness of his statement before the police explains the doubt regarding the citus of occurrence ; "It is incorrectly recorded in my police statement that in the meantime the accused took away Mir Bahadur etc. To the door of the house of Said Rasan and at this time Raza Khan arrived at the scene (confronted so recorded)."
28. Shamsur Rahman's prevarication in this manner neither makes us doubtful about the citus of occurrence nor it has in any manner promoted the case of prosecution. The denial of certain facts recorded by I. O. In the police statements nevertheless sometime point in the right direction, which when pieced together with other facts makes a complete picture of the case. It was at the first sight perplexing to see that the occurrence has actually occurred at an appreciable distance from the hujra of Sherdil but the explanation in this regard is available in the cross-examination of Taj Mohammed which is a complete answer to the contention of learned counsel for appellants who doubted the spot of occurrence. It is a matter of common knowledge the some time a witness offers negative answers without the idea of gaining from it. We therefore, ignore the chain of denials by the witnesses regarding their previous statements. Again Taj Mohammed has stated :- "It is also incorrectly recorded that the accused forcibly made us to leave the 'cot' and made us to go towards the south and were following us from behind duly armed and that where we reached the door of the house of Faqir Mohammad, Abdul Karim fired one shot at us but we escaped.
29. (Confronted. So recorded).
30. It is also incorrectly recorded that the accused took us to the door of the house of Said Rasan and at that time Raza Khan deceased and Shamsur Rehman P. W. On our hue and cry reached (Confronted. So recorded)."
31. This further explains the exact place of occurrence. The learned Advocate----General argued that the F. I. R. Having been proved by S. I. In his statement caused no prejudice to the appellants even if it was not put to them under the provisions of section 342, Cr. P. C. Reliance is placed on the case of Abdul Wahab v. Crown (PLD 1955 FC 88), held:-- "The accused was literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case. Since no miscarriage of failure of justice had been proved section 537 of the Cr. P. Code covered the case."
32. In the case of Lalan v. The Crown (PLD 1955 FC 132), it was observed:- "The foundation of the whole case was the direct evidence of eyewit--nesses whose statements were supported by various concrete circum--stances, the necessity for corroboration by outside circumstances did not appear. The Sessions Judge and the Chief Court mentioned the track test in support of their conclusion that accused was one of the murderers but it was evident that primary reliance for coming to this conclusion could not be, and was not placed upon this circumstance."
33. Track test evidence, evidence as to previous threat and motive, though mentioned by the trial and appellate Courts was not really necessary to complete the prosecution case for the murder.
34. Held that the omission to question the accused regarding these matters was without the slightest effect upon the course of justice in this case."
35. An error or omission to be of legal consequence must cause prejudice to the accused. The words 'in fact' in section 537 of the Code of Criminal Procedure insist upon the existence of failure of justice and mere possibility or probability is not contemplated by the section. The argument of the learned counsel for the appellants are that the occurrence in question is part of the same transaction which began in the 'hujra' of Fazal Karim and has ended at the spot where blood was recovered. We do not agree with this contention, for the betrothal ceremony ended at 11-30 p.m.
36. And in the intervening time up to the time of incident there is nothing on the record to suggest that the scuffle between the parties continued from the 'hujra' of Fazal Karim right up to the spot of occurrence and lasted for a considerable time. Our assessment of the evidence by placing together both the versions is that in the 'hujra' of Fazal Karim besides Faqir Gul, Abdul Karim appellant was also belabourd, and this is borne out by his statement in Court. It is conceivable that in the skirmish between Faqir Gul and the complainants, the beating of Abdul Karim was considered by him with no justification and feeling equally aggrieved he made a common cause with Faqir Gul for vindicating their honour, and in doing so, they chose the modus operandi of show of force in the 'hujra' of Sherdil, where one of the aggressors namely Taj Mohammed was available, and they instead of doing any harm to him, made him walk in their front to the place of occurrence.
37. This conduct of the appellants can be interpreted in one of the following manners.
38. That it might not have been exaggeration by the P. Ws. That the appellants came to the hujra of Sherdil wherefrom Taj Muhammad and others were driven like sheep to the spot of occurrence. It is also possible that their having been taken to the citus of occurrence was used by them as a decoy so as to attract Raza Khan from his house and for that matter Shamsur Rehman. However, it cannot be said with reasonable certainty as to what their real intention was in doing so. It transpires from this that a6 initio the appellants did not come to hujra with the intention of causing real harm to Taj Mohammed who was an easy prey to them and who was responsible for causing injury to one of the appellants. However, their show of force took a different turn when on reaching the spot of occurrence they were encoun--tered by Raza Khan and Shamsur Rehman and in the scuffle Faqir Gul was deprived of his shot-gun.
39. On the question of identification we are in no manner in doubt regarding the identification of the appellant, by the witnesses, for the identification of a known person in a hand-to-hand fight, even at night, cannot be a matter of doubt, particularly in the starry summer night when electric light was also there, though at some distance from the spot.
40. As alluded to above, the appellants placed themselves in this situation and cannot escape the responsibility of the harm done to their adversaries but the circumstances of the case do not make out a case of premeditated calculated murder. And in this regard the evidence of witnesses and the dying statement is consistent against Faqir Gul and Abdul Karim coupled with their statements at the trial pointing in the direction of their complicity in the crime. We are in no manner in doubt about their having been found guilty by the learned trial Judge.
41. As regards Zarghun Shah, the evidence against him is discrepant. His case is on different footing.
42. The role of ineffective firing attributed to Zarghun Shah appellant in the dying declaration is not supported by indirect evidence in the form of recovery of crime empty etc. From the spot more so when none was found in the gun when it was snatched from him by Sherdil. Another circumstance in his favour is that in the earlier fight his participation is not proved, for he was not found injured.
43. His version that while going to the spot he was intercepted by Sherdil cannot be ruled out of consi- -deration. For the foregoing reasons the complicity of Zarghun Shah in committing the crime is not free from reasonable doubt therefore, we acquit him. The shot-gun belonging to him shall be returned to him.
44. As regards Abdul Karim and Faqir Gul the case against them is prove beyond a reasonable doubt but as we have held earlier that they are no responsible for a calculated murder, the sentence of imprisonment for life imposed on each one of them would meat the ends of justice. We, therefore, by maintaining the convictions of Abdul Karim and Faqir Gul convert the sentence of death of Abdul Karim into imprisonment for life. Their convictions and sentences under section 307, P. P. C.
45. Are maintained which are to run concurrently with the principal sentence. The circumstances of the case do not warrant the imposition of fine we therefore, set aside the sentence of fine in both the convictions. With this modification the conviction of Abdul Karim and Faqir Gul is maintained. The sentence of death of Abdul Karim is not confirmed, and while dismissing the appeal of Abdul Karim and Faqir Gul, we accept the appeal of Zarghun Shah and the revision petition thus, stands dismissed.
46. S. Q.