' RAJA MUHAMMAD KHURSHID, J.--- The appellant Umar Khan son of Noor Khan caste Pathan, resident of Torowali, District Attock was convicted by Ch. Saifullah Buttar, Judge, Special Court for Anti-Terrorist, Rawalpindi Division and Islamabad Capital Territory under section 302(b), P.P.C. For the murders of Ahmad Gul and Khial Badshah and sentenced to death on each count with the compensation of Rs,25,000 on each count to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default to undergo six months' S.I. Vide his judgment, dated 15-9-1997.
2. According to the F.I.R. Ahmad Gul resident of Torowali, District Attock was murdered in his house by the appellant and two others; absconding accused namely Dadu Khan and Hashim Khan on 11- 6-1994, at about 3-30 p.m. It was alleged by the complainant Mst. Hukam Jan i,e, the widow of the deceased Ahmad Gul that she alongwith Ghulam Murtaza (P.W.10) were present in the house; that the appellant while armed with a klashinikov entered their house. The absconding accused aforenamed were armed with rifles. One out of them stood towards north while the other took his position towards south of the courtyard. At that time the deceased Ahmad Gul was busy in his shop, which was located in a room of the house. The appellant entered in the shop and asked the deceased to come out to hear him. Thereupon the deceased came out in the courtyard. The appellant demanded heavy amount from the deceased to which the latter replied that the former had been taking articles from his shop on credit and that he would not give him any more money.
This reply led to an altercation between the appellant and the deceased, which was followed by the exchange of abuses. Thereupon the appellant pulled out his klashnikov and fired straight at the deceased hitting him on the left side of abdomen, right side of the polvi region right thigh and on his back. The deceased after receiving injuries fell on the ground. The firing attracted Khial Badshah a son of the deceased, who tried to intervene to save his father, whereupon the appellant and absconding accused started firing at him. As a result aforesaid deceased Khial Badshah received firearm injuries on his chest, face, near right lip and on his back. He too fell down. The occurrence was seen by the complainant Mst. Hakam Jan, Ghulam Murtaza and Zar Badshah. All three of them raised noise whereupon the accused threatened them to stay away failing which they would lose their lives. Since all of them were unarmed, therefore, they did not intervene in order to save the lives of the deceased persons. The noise made by the P. Ws. And the firing made by the accused attracted a number of nearby villagers. On seeing them the accused ran away while firing. The motive was given in the F.I.R. That Umar Khan appellant was a hardened criminal and was in habit of taking away articles from the shop of the deceased on credit, but never paid back the amount.
On the day of occurrence, he demanded more money from the deceased and upon latter's refused he alongwith his son aforenamed were killed.
3. The police investigation led to the conclusion that the appellant and the absconding accused had committed the occurrence. The challan against the appellant was accordingly submitted to the Court for trial.
4. The prosecution relied upon 4 klashinikov empties and one empty of .7 mm rifle recovered from the spot in the presence of Zar Badshah and Ghulam Murtaza. The klashnikov was recovered from the appellant from his residential house vide memo. Exh.P.4 attested by Amir Badshah and Phal Badshah. Besides that the medical evidence consisting of the statement of Dr. Captain Dost Muhammad P.W.8, was examined to show that the deceased was done to death due to fire-arm injuries, and that the injuries received by them were sufficient in the ordinary course of nature to cause death. The post-mortem report of deceased Khial Badshah was placed on record as Exh.P.G.
Where the pictorial diagram of injuries was Exh.P.G./1. Likewise the post-mortem report of Ahmad Gul deceased was placed on record as Exh.P.H. And its pictorial sketch of injuries was brought on record as Exh.P.H./1.
5. The next set of evidence consisted of ocular account of occurrence given by Mst. Hukam Jan (P.W.9) being complainant in the case and widow of the deceased Ahmad Gul. She supported the prosecution case out and out in respect of the occurrence as well as the motive behind the occurrence. The other eye-witness namely Ghulam Murtaza was examined as P.W.10, who also supported the prosecution case in its material details thereby linking the appellant with the murder of both the deceased. Muhammad Jamil, retired Sub-Inspector was examined as P.W.11 to prove recovery of klashnikov P.1 from the appellant and also about the absconsion of Dadu Khan and Hashim Khan, i,e, proclaimed offenders of this case. He also submitted the challan against the present appellant. The Investigating Officer Muhammad Zamir S.-I. Was examined as P.W.12 in order to show as to what evidence in the case was collected during investigation.
6. The prosecution has given up Zar Badshah, Nasim Gul, Amir Khan, Phal Badshah and Niaz Gul P.Ws. Being unnecessary.
7. The appellant/convict was examined on the conclusion of the trial under section 342, Cr.P.C. He contended that he was innocent and took up the following stand in defence:-- "P.Ws. Are related to both the deceased as well as inter se. The actual facts of the occurrence are that deceased Ahmad Gul was residing with family in the/house of one Dilasa Khan. Said Dilasa Khan is maternal-uncle of one Mahboob Khan and Amir Khan. I am step-son of aforesaid Mahboob Khan. After death of Dilasa Khan, I and Mahboob Khan my step-father demanded back the house from Ahmad Gul deceased, since the house was mortgaged with Ahmad Gul against the consideration of Rs,25,000. Ahmad Gul, deceased was not willing to leave the house on the plea that since the inflation had taken place and the price of house had been enhanced. I have been falsely involved in this case alongwith two other accused."
' After making the aforesaid defence plea, the appellant declined to appear in his defence to make statement upon oath regarding his version. He simply relied upon the report of Forensic Science Laboratory which has been negative in respect of use of klashnikov and its matching with the empties recovered from the spot.
8. The learned counsel for the appellant has contended that prosecution evidence in this case was quite shady and did not inspire confidence to sustain conviction; that both the eye-witnesses were inter se related and were also close relative of the deceased present; that recovery in this case was allegedly disbelieved by the learned trial Court as the same was not proved through an independent and unimpeachable evidence; that the case of the prosecution had become extremely doubtful as according to the Forensic Expert the empties recovered from the spot did not match the klashnikov with which the alleged murders were committed; that the medical evidence also contradicted the oral evidence in respect of locale of the injuries given by the Medical Officer performing the autopsy and the eye-witnesses examined at the trial; that the defence story was most probable and had a ting of truth regarding the false implication of appellant/convict in this case in order to usurp the property left by one Dilasa Khan who was the maternal-uncle of Mahboob Khan and Amir Khan, P.W. In this respect, the story given by the appellant/convict that the aforesaid Mahboob Khan was his step-father and demanded the house left by Dilasa Khan from Ahmad Gul deceased which was mortgaged with him for Rs,25,000 and since the deceased was not willing to leave the house and demanded more money, therefore, the false implication of the appellant/convict was alleged to be quite probable.
9. The learned counsel for the State however, supported the impugned judgment on the ground that there was no contradiction between the medical evidence and the eye-witnesses, which were rather supportive to each other; that the mere fact that the recovery was disbelieved by the learned trial Court would not spoil the prosecution case because the evidence of two eye- witnesses was above board by all standards; that the eye-witnesses had not even remotest idea of falsely implicating or substituting the appellant for the real offenders; that in the normal course of events since both the eye-witnesses were closely related to the deceased, therefore, the natural instinct on their part would be to name the real offenders who had killed their near and dear; that there was no need to seek any corroboration for such truthful witnesses, who were not only natural, but had also no interest to tell lie in order to involve the accused falsely for the murder of the deceased persons, out of whom one was the husband of the complainant whereas the other was her real son. Likewise the other eye-witness Ghulam Murtaza would also speak truth and would not unnecessarily substitute the accused as his real uncle and cousin were butchered within his view in a callous manner. In view of the foregoing submissions, it was contended that conviction of the appellant was rightly made by the learned trial Court and since there was no mitigating circumstances, he was properly sentenced to death for each of the murders.
10. We have given our anxious consideration to the above submissions made at the Bar. First of all, it is to be seen whether or not the prosecution has been successful to prove its case beyond any reasonable doubt. In this regard the star witnesses of this case appear to be the widow of Ahmad Gul deceased namely Mst. Hukam Jan (P.W.9) and his nephew Ghulam Murtaza (P.W.10). It is to be seen if their evidence can be safely relied upon to sustain the conviction and sentence passed upon the appellant/convict for the murder of both the deceased. Both the witnesses are persistent in their evidence to state that the appellant alongwith the absconding accused entered the courtyard, called out the deceased from his shop and put up demand for the payment of heavy amount and upon refusal of the deceased, he was shot dead by the accused Umar Khan by using his klashnikov with which he was armed at that time. The son of the deceased namely Khial Badshah a young boy of about 17 years of age came out for the rescue of his father, but he too was mercilessly fired at by the appellant/convict and two absconding accused killing him at the spot.
After enacting the tragedy all the three accused escaped from the spot when a number of villagers rushed to place of occurrence on hearing the noise of P.Ws. And firing made by the accused. Name of the two eye-witnesses contradicted each other when in the witness-box regarding the material details of occurrence. Even otherwise both of them would entertain a natural instinct and desire that the real culprits should be brought to book and punished in accordance with law, for committing the beastly murder of their kith and kin i,e, deceased persons. There is nothing to suggest from the record that these P.Ws. Will in any way tell lie regarding the occurrence nor did they have any malice or interest to implicate the appellant/convict falsely in this case. Such type of witnesses can be safely relied upon particularly when one of them namely Mst. Hukam Jan is inmate of the house and her presence in the premises would not only be natural, but seems to be irrebutable. Likewise the presence of Ghulam Murtaza cannot be doubted due to his close relationship with the deceased persons. It appears that he was to be married in the near future and he had come to the deceased uncle and cousin to talk about the details of his marriage. This has been said by both the P.Ws. In their statements to justify the presence of aforesaid Ghulam Murtaza. The aforesaid witness also stated that he had no other special business except he had to talk about his marriage, and for that purpose he had come to the house of his uncle. Hence, his presence is not only justifiable but cannot be considered improbable or unnatural being related to the deceased and with the purpose he had chalked out regrading his presence in their house to discuss his forthcoming marriage. A ring of truth can be found in the evidence of these witnesses which seems to be unrebuttable and unimpeachable. Hence these witnesses can be relied upon safely without any further corroboration through the circumstantial evidence. In such a situation, the mere fact that recovery of klashinikov was not proved or the empties recovered did not match to it would not make much difference particularly when the eye-witnesses are persistent to link the appellant/convict with the murders of the deceased persons beyond any reasonable doubt. It is well-said that "seeing believes" and for that reason a direct evidence is to be preferred over the circumstantial and indirect evidence while dealing with a criminal matter. Going a step further, it would be clear enough that the injuries suffered by the deceased were rightly depicted by the eye- witnesses during their evidence. The distance between the assailants i,e, the appellant/convict and the deceased persons according to ocular account of occurrence ranged between 4 to 5 feet, whereas according to the draftsman it was between 8 to 9 feet. It, therefore, follows that the fires were made from a very close range as there was no blackening around the injuries on the persons of both the deceased. This shows that the fires were made from very close range. After calling the deceased Ahmad Gul, there was altercation between the appellant and deceased and there was exchange of abuses which led to the firing by the appellant. This situation clearly visualises that the assailant and the victim were closely positioned at the time of firing. This was also confirmed during the ocular account of occurrence given by the P.Ws. The other deceased Khial Badshah a young boy of 17 years while seeing his father being roasted to death with a klashnikov madly rushed towards him in order to safe his life. He too was killed by the appellant with heartless desperados in merciless manner. This brutal act on the part of the appellant clearly made it a cold-blooded murder in broad daylight in the house of the deceased persons, which is considered to be a fort for its inmates. It, therefore, follows that the prosecution has been successful to prove its case against the appellant/convict for the murder of both the deceased beyond any reasonable doubt.
11. Coming to the defence, it may be pointed out that the accused in his statement under section 342, Cr.P.C. Had raised a story that one Dilasa Khan had mortgaged the house with Ahmad Gul deceased and after his demise the heirs of Dilasa Khan which includes Amir Khan (P.W.) and Mahboob Khan wanted to take back the house but the deceased taking the plea of inflation demanded the heavy amount for its return, which led to the occurrence in which he was allegedly involved falsely by his step-father Mahboob Khan. However, a different story was invented by the appellant in his memo. Of appeal received from the jail. In paragraph No,4 of the aforesaid memo.
Of appeal, the appellant contended that aforesaid Dilasa Khan was a gambler and had taken some amount from the deceased Ahmad Gul. However, the aforesaid Dilasa Khan lost the aforesaid amount in the gambling. After his death his nephew, namely Amir Khan alias Gudmani being heir of hiS estate wanted to have the house back. The aforesaid Amir Khan hatched a conspiracy with Mst. Hukam Jan P.W. i,e, widow of Ahmad Gul as she had allegedly illicit relations with Amir Badshah a brother of aforesaid deceased. After the murder of Ahmad Gul, the aforesaid Mst. Hukam Jan married Amir Badshah and therefore, this according to the appellant/convict was a proof that she had illicit relations with him and as such both of them removed Ahmad Gul from the scene, in order to further their ends.
' The appellant was allegedly involved because the mother of the appellant/convict was previously married to one Subedar Mahboob a brother of Amir Khan alias Gudmani aforesaid who was divorced whereupon she married the father of the appellant/convict; that the father of the appellant/convict would have also been involved in the case had he not been in Karachi at the time of occurrence. It follows that this story was invented by the appellant/convict while lodged in jail, which is contradictory to the story given by him in his statement under section 342, Cr.P.C. In which he never mentioned that the aforesaid Dilasa Khan was a gambler or had lost the house in gambling or that Mst. Hukam Jan had illicit relation with Amir Badshah a brother of the deceased and that both of them had hatched a conspiracy in order to remove the deceased form the scene.
It appears that he has invented this story in a vain attempt to save his skin although it is not true and is clearly an afterthought, having no substance in it.
12. In view of our above discussion, there is no merit in this appeal, which is dismissed and the conviction and sentence awarded to the appellant are maintained. The death sentence awarded to the appellant on each count for the murder of each of the deceased namely Ahmad Gul and Khial Badshah is confirmed. #
13. Murder Reference No, 162 of 1997 is answered in the affirmative.