JUDGMENT DR. KHALID RANJHA, J.- This judgment shall furnish details/reasons for the findings and conclusions arrived at in short order dated 18.3.1998.
2. Hameed Ullah Khan (55) and Zia Ullah Khan (48) sons of Sardar Khan alongwith 23 others were tried for the murder of Sultan Sikander (SI/SHO), Qutab Sher (ASI) and Abdul Majeed Khan (Constable). Upon culmination of trial, learned Additional Sessions Judge, Mianwali found Hameed Ullah Khan guilty for the murder of Qutab Sher, ASI held Zia Ullah Khan liable for the murder of Abdul Majeed (F.C.) and sentenced each of them to death with a fine of Rs.20,000/-, in default whereof, each to undergo R.I. For one year. They were also found guilty of offence under Section 353 PPC and sentenced to one year's R.I. each.
The remaining accused namely, (1) Sardar Khan, (2) Alam Sher Khan son of Muhammad Khan, (3)
Muhammad Akbar, (4) Muhammad Naeem, (5) Khan Amir Khan. (6) Habib Ullah Khan, (7) Sana Ullah Khan. (8) Hayat Ullah Khan, (9) Sahib Dad Khan, (10) Hakim Khan, (11) Qasim Khan, (12) Alam Khan, (13) Azmatullah Khan. (14) Zaka Ullah Khan, (15) Hidayat Ullah Khan, (I6) Muhammad Afzal, (17)'Suba Khan, (18) Ubaid Ullah. (19) Nemat Ullah, (20) Khan Muhammad, (21) Ahmed Khan. (22)
Amir Abdullah Khan and (23) Alam Sher son of Ahmed Khan were acquitted.
3. Hameed Ullah Khan and Zia Ullah Khan (appellants) challenged their conviction and sentence vide Cr. Appeal No. 190/92. The State, feeling arieved by the acquittal of the above-referred 23 co- accused on all counts as well as the acquittal of Hameed Ullah Khan and Zia Ullah Khan in respect of the murder of Sultan Sikander, SI/SHO, preferred Cr. Appeal No. 425/92 against all 25 of them. On the other hand, Murder Reference No. 96/92, was preferred for the confirmation of death sentence of Hameed Ullah Khan and Zia Ullah Khan (appellants). All the three matters and P.S.LA 8 of 1993, are being disposed of together.
FIR (Ex.PN/1) was registered at Police' Station, Musa Khel, Mianwali on 24.12.1986 under Sections 302/307/353/506/148/149 PPC at 10.30 a.m. By Muhammad Nawaz, ASI (PW-7) on a written statement (Ex.PN) of Abdul Sattar, ASI (PW-11) despatched by him from Dera Adam Khelwala (the place of occurrence) 14 K.M. From the Police Station.
4. According to Abdul Sattar, ASI (PW-11) he was member of the police party organized by Sultan Sikander, SI/SHO, Police Station. Musa Khel on 24.12.1986. The other members of the team were Qutab Sher. ASI (deceased); Abdul Majeed, Constable (deceased) and five other Constables.
Equipped with firearms and handcuffs, they all set out to accomplish the task of arresting Sana Ullah. An army deserter as well as to recover the illicit weapons and to investigate into a complaint of Shafaullah an employee of Pakistan Navy against Sardar Khan and others. Action in this behalf had also been solicited by the Commanding Officer of Shafa Ullah. The police party reached Dera Adam Khanwala at about 8.30 a.m. Sultan Sikander split the team into two. He himself alongwith Qutab Sher. ASI. Abdul Majeed, Muhammad Akram and Muhammad Azam. Constables proceeded towards the northern side of Dera and directed the complainant (Abdul Sattar. ASI), to approach from the southern side of Dew alongwith Ghulam Haider. Muhammad Slier. Latif U11 ah and Haidayat Ullah (Constables). Accordingly Abdul Sattar and his men reached the house of Sana Ullah, the Army deserter, and knocked at the door. A lady from within, however, replied that none of the men-folk was in the house, In the meantime, they heard Abdul Majeed (Constable) shouting at some one to lay down his arms on the northern side of the dera and thus veered towards him from the eastern direction. There they saw Rafi Ullah armed with rifle and Sana Ullah Khan (the army deserter) armed with gun, standing in front of him defiantly, declining to lay down their arms. They instead of started shouting for help; whereupon Sardar Khan, Alam Slier Khan, Muhammad Akbar, Hameed Ullah, Zia Ullah, Habib Ullah, Zaka Ullah, Azmat Ullah, Hayat Ullah Khan, Muhammad Afzal, Haidayat Ullah, Suba Khan, Abaid Ullah, Nemat Ullah and Alam Khan resident of Dera Adam Khan reached there variously armed with guns, rifle and Kalashnikov. They all opened fire at them. The police party in self-defence, find back. Hameed Ullah Khan with his rifle shot Qalab Slier on the chest whereas Zia Ullah Khan find and hit Abdul Majeed on his forehead. He i.e. Abdul Sattar and the Constables with him took the cover of a stack of chaff. The accused kept moving forward while firing, In the meantime, from Dera Ali Zar Khelwala side. Ahmed Khan, Khan Ameer, Mir Abdullah and Alam Slier residents of Dera Ali Zar Khelwala alongwith some others armed with guns and rifles also joined the attack. Sultan Sikander, SI reached out to stop them. As a result of their firing Sultan Sikander was also hit and he fell down. Apart from the above said. Ameer Khan. Qasim Khan, Sahib Dad Khan, Hakim Khan and Muhammad Naeem residents of Dera Adam Khan Wala armed with guns and rifles also joined in with the other accused and resorted to firing. Sana Ullah and others moved forward and sprayed more shots on Qutab Sher and Abdul Majeed with 12 bore guns. Abdul Sattar, ASI further stated that he with his men kept firing from behind the heap of chaff where they had taken cover and as such the accused could not come close to them. All the accused then retracted towards the hills while firing.
After they had gone, it was found that Sultan Sikander, (S.L), Qutab Sher, (ASI) and Abdul Majeed (F.C.) had died as a result of firing by the accused whereas on the other side Rafi Ullah Khan had been killed as a result of firing by Abdul Majeed. (F.C.). Before departing, the accused also took away the official rifle of Abdul Majeed (deceased) with cartridges as well as the official revolver of Sultan Sikander (deceased) with cartridges, together with the rifle of Rafi Ullah Khan (deceased) with which he had find at the police party.
5. After registering the case, Muhammad Nawaz (ASI) reached the spot prepared the injury statements of Sultan Sikander, (S.L), Qutab Sher (ASI) Abdul Majeed (F.C.) and Raft Ullah as well as their inquest reports. Rana Riaz Ahmed.
DSP/SDPO, Circle Moosa Khel, arrived there and collected blood-stained earth from the respective places where their dead-bodies were lying. He then despatched till the for dead-bodies to the mortuary and took into possession their last worn clothes, vide separate recovery memos. He prepared the rough site plan (Ex.. P(of the place of occurrence.
6. From the spot, close to the dead-body of Qutab Sher (ASI). Riaz Ahmed. DSP recovered (i) letter P.46 addressed hy Pakistan Navy Commanding. Officer for redressal of grievance of Shifaullah (ii) alongwith it were also three applications of Shifaullah P.47/1-3 and (iii) request form from Army Centre. Dera Ismail Khan P.48 and Hukam Nama Talhi written bv Qutab Sher for the appearance of the accused on the complaint of Shafaullah. These documents were secured vide memo. Ex.PM. He also collected three empties of 303 P-51/1-3 one empty of 12 bore gun P.52 and a live cartridge P.53 from near the place of death of Qutab Sher vide memo. Ex.POO. A 303 bore empty P.54 and an empty of 12 bore gun P.55 from the northern side of rainy Bund vide memo. Ex.PP. He collected 9 empties of China bore from near the place of death of Abdul Majeed Constable P-50/1-9. These empties were of his official 'rifle. Same were secured vide memo. Ex.PNN. Four empties P-56/1-4 taken into possession vide memo. Ex.PQR were collected from near the place of death of Sultan Sikander, Sixteen empties of Kalashnikov P- 57/1-46 collected from near a "Shareen" tree on the northern side of rainy Bund. These were also taken into possession vide Memo. Ex.PRR. 34 empties of 303 rifle P-58/1-34 were taken into possession vide memo. Ex. P.S.S from near a bush at the place of occurrence. Three empties of 303 P.59/1-3 and two empties of 12 bore gun P-60 were taken into possession from near the dead-body of Rafi Ullah Khan, vide memo. Ex.PTT. Four empties of 303 rifle P.61/1-4 were collected from near a Karri bush and were taken into possession vide memo. Ex.PUU. A 303 empty P.62, two 12 bore empties P.63/1-2 and a wad P.64 were collected from near the dead- body of Abdul Majeeed. Constable vide memo. Ex.PW.
11. Empties of 12 bore of P.65/1-11 were also collected from the Courtyard of the house of Alam Sher. Accused, and were taken into possession vide memo. Expwy. 8 empties of china bore P.66/1-8 were collected from near the stack of chaff and taken into possession vide memo. Ex.PXX.
On 21.1.1987 he recovered the fire-arms from Sana Ullah Zika Ullah, Hameed Ullah, (appellant), Habib Ullah, Hakim Khan, Qasim Khan, Khan Vlir and Zia Ullah exhibited as P.35 to P.43. Whereas on the following day, he recovered a gun P.44 from Haidayat Ullah and a gun P.45 from Alam Khan.
Similarly he recovered a gun P.I from Suba Khan, P.W. From Khan Amir Khan and P.3 from Hayat Ullah Khan. Separate recovery memos, were prepared in respect of each of these weapons. He also got site plan (Ex.PE) prepared per settle by Muhammad Amir, Patwari.
7. Sikander Ejaz, Inspector (PW-16) took over as SI/SHO, Police Station, Musa Khel on 1.1.1987. He arrested the all 25 accused and got them medically examined. Haidayat Ullah led to the recovery of revolver P.25 belonging to Sultan Sikander, SI/SHO (deceased). Muhammad Naeem, accused led to the recovery of gun P.26 alongwith two live cartridges P.27/1-2. Similarly Sardar Khan led to the recovery of official rifle P.28 belonging to Abdul Majeed, Constable. Afzal Khan, accused, led to the recovery of 12 bore gun P.29 with two cartridges P.30/1-2. Sikander Ijaz also recovered gun P.31 from Azmat Ullah and gun P.32 from Alam Sher, accused. Sahib Dad, accused, while in custody, led to the recovery of rifle P.34 and Nemat Ullah led to the recovery of rifle P.33. He found Ahmed Khan, Khan Mir, Amir Abdullah and Alam Sher as innocent. Placing their names in column No. 2. He submitted the Ghallan against the remaining 21 accused.
8. A private complaint was find by the deceased party against (Shafa Ullah Khan (2) Ehsan Ullah Khan (3) Jahangir Khan (4) Muhammad Sher and (5) Hidayat Constable alleging therein that they were responsible for the murder of Rafi Ullah and that the aforesaid deceased persons namely, Sultan Sikander, S.L, Qutab Sher. (ASI) and Abdul Majeed, Constable had died on account of firing of Rafi Ullah.
The learned Additional Sessions Judge, however, acquitted the aforesaid accused vide judgment dated 3.2.1992. Cr.P.S.L.A. No. 8/93 was find in respect of the said order of acquittal. The same is pending in motion. It has also been heard alongwith the Murder Reference.
9. In the course of trial, the prosecution produced I6 witnesses Dr. Mumtaz Khan, appeared as PW-1 and explained the injuries on the for deceased, who were killed in this occurrence. They are detailed as under:- Abdul Majeed Khan Constable.
(1) A firearm projectile wound 1 1/2x13 c.Tn. Over the right forehead, 3 c.m. Above the right ear, 3 c.m..
Above right eye brow, continuously going to back. Skull bone was broken in pieces and brain matter was protruding out.
(2) An entrance wound 1 c.m. x 1 c.m. Over the right back of chest, 5 c.m. From middle and 3 c.m.
Below the medial boarder of right scapula.
(3) An exit wound, 3 c.m. x 1/2 c.m. Over the back of and mid of neck, 2 c.m. Below the nache.
(4) Recently wound 12 c.m. x 4 c.m. Passing and dividing right ear into two pieces till 1 c.m. Away from left can thus.
Sultan Sikander. SI/SHO
(1) A fire-arm wound of entry 8 c.m. x 1 c.m. Transversely lying over the left ear.
(2) An exit wound 17 c.m. x 2 1/2 c.m. Over right top of the skull, extending from forehead towards vertex.
(3) A wound of entry 6 x 2 c.m. Over left cheek 4 c.m. From left eye and 6 c.m. From left ear.
(4) An exit 7x2 1/2 c.m. Over frontal part of left side of skull extending from middle to left laterally.
(5) A fire-arm grazing wound 10 x 1 c.m. Over left side of face extending from left upper lip to the forehead of the same side passing through left inner canthus of eye.
(6) A grazing wound 8 c.m. 3 1/2 c.m. In shape (C) over the top front and side of skull 2 c.m. From injury No. 4.
Qalab Sher Khun. ASI.
(1) A fire-arm wound entry, 3 c.m. x 3 c.m. Circular in shape over the outer surface of chest of left side, 2 c.m. Behind the mid axillar line. 17 c.m. From anterior iliac spine and I6 c.m.. Froth, the left nipple.
(2) An exit wound 7 c.m. x 6 c.m. Over the front of chest, exactly in middle, 2 c.m. Below the supra sternal notch.
(3) A wound of entry 3 c.m. x 3 c.m.Over the right side of neck, 3 c.m. From the supra sternal notch, 8 c.m. From the right ear.
(4) A wound of entry, all over an area of 11 cm x 6 c.m. Over the back of left elbow .
Rafi Ullah Khan.
(1) A fire-arm wound of entry 1 1/2 c.m. x 1 c.m. Over the front of left upper chest, 11 c.m. From above the left nipple, 13 c.m. From the tip of , the shoulder of left side and 13 c.m. From the mid line.
(2) An exit wound 2 1/2 c.m. x 1.5 c.m. Over the outer surface and back of right chest in mid axillary line, 9 c.m. From right nipple.
(3) An entrance wound 1/2 c.m. x 1/2 c.m. Over the back of right shoulder, 6 c.m. From the tip of the shoulder and 9 c.m. Above the scapular angle of the same side.
(4) An exit wound 1/2 c.m. x 1/2 c.m. Over the back of shoulder of right side, 6 c.m. Below injury No. 3.
In his cross-examination, this witness revealed that injuries Nos. 1 and 4 on the |KTson of Qutab Sher were by 12 bore gun and had been caused from a distance of 12 Karms. Similarly in respect of fire- arm injuries on the person of Abdul Majeed Dr. Mumtaz Khan stated in his cross-examination that injuries Nos.2, 3 and 4 on the person of Abdul Majeed were the result of one bullet shot while injury No. I was of different bullet. Similarly in respect of injuries on the person of Rafi Ullah Khan, it was stated that injuries No. 3 and 4 were the result of pellets while injuries Nos.I and 2 were the result of bullet. For Sultan Sikander, it was stated in the cross-examination that injuries on his person could be by one fire shot.
Muhammad Ameer, Revenue Patwari (PW-2) prepared the site plan Ex.PF.. He stated that the two bunds shown on the site plan were about 6/7 feet in height Muhammad Yousaf (PW-3) identified the dead-body of Sultan Sikander. Ahaidulah F.C. (PW-4) stated that Muhammad Afzal.
Moharrior/Head Constable entrusted him three sealed parcels of rifles and another sealed parcel of double barrel 12 bore gun for onward transmission to the Forensic Science Laboratory which he did on the following day. Barkat Ullah Khan (PW-5) was witnessed the recovery of memo, of guns recovered from Khan Amir Khan. Sooba Khan, and Hayat Ullah. Noor Ellahi (PW-6).Had produced the last worn clothes of the deceased and witnessed the recovery memos, in that behalf.
Muhammad Nawaz, SI (PW-7) had recorded the formal FIR. A part from preparing the injury statements and inquest reports of the deceased, he also witnessed the recovery memos, of the last worn clothes. Ch. Safdar Ali Wahla. Inspector (PW-8) had partly investigated this case and recovered the fire-arms from the accused referred to earlier. Muhammad Afzal, ASI (PW-9) was the Moharrir/Head Constable on the day of occurrence. He kept the parcels in safe custody. The eye- witness account was furnished by Khan Amir Khan (PW-10), Abdul Sattar, ASI (PW-11), Hidayat Ullah, Constable (PW-12) and Latif Ullah Constable (PW-13). Amir Ullah (PW-14) identified the dead-body of Qutab Sher (deceased). The various steps of investigation in this case were explained by Riaz Khan, DSP/SDPO (PW-15) and Sikander Ejaz, Inspector (PW-16).
10. Sardar Khan, accused, in his statement under Section 342 Cr.P.C., took the plea that in this case Shafaullah had hired the services of the local Police to get Rafiullah murdered and on the day of occurrence Rafiullah and Amanullah and Amanullah were returning to their house from Sher Wala when Qutab Sher, ASI and Abdul Majid (F.C.) alongwith Shafaullah was laid them. There was exchange of firing between them. Amanullah was armed with a gun while Rafiullah with a rifle, It was during the exchange of firing that Abdul Majeed (F.C.) and Qutab Sher (ASI) met their death from one side while Rafiullah was murdered on the other. As far as Sultan Sikander (S.L) was concerned, it was pleaded that he was not involved in this incident nor was he murdered in this occurrence. He rather met his death under known circumstances at a place far of from the occurrence. His exact statement under Section 342 Cr.P.C., is reproduced below:- "Ahmed Khan son of Khan Khawas Khan on 25.3.1986, brought a complaint in the Court of llaqa Magistrate against Abdul Sattar, ASI PW. Ahmed Khan is related to me. I was a prosecution witness against Abdul Sattar in that complaint who was summoned as a accused and appeared in the Court on 2.8.1986, and submitted bail bonds. Later on. He absconded. He was not acquainted with the present accused and named my family falsely in this case as accused persons. The real facts are that on that day, Rafiullah and Aman Ullah were returning to their house from Sher Wala when Qutab Sher, ASI and Abdul Majeed alongwith Shafa Ullah confronted with them. There was exchange of firing because Shafa Ullah wanted to get Rafi Ullah murdered with the connivance of the police. He also associated Ehsan Ullah and Jahangir, his brother and uncle, in this occurrence.
The Police and Shafa Ullah etc. Resorted to firing on Rafi Ullah and Aman Ullah aforesaid. Aman Ullah was armed with a gun while Rafi Ullah with a ritle. The complainant party was also armed with fire-arms. During this exchange of firing, Abdul Majeed and Qutab Sher met their death while Rafi'
Ullah was murdered in this occurrence. So far Sultan Sikander, SI is concerned, he was not involved in this firing nor he was murdered during this occurrence. He met his death under unknown circumstances at a far of distance from the place of occurrence. Shafa Ullah son of Khan Mir, PW teased the woman-folk of Rafi Ullah about six months prior to this occurrence. 3/4 months prior to this occurrence, Rafi Ullah find at Khan Mir, PW. The complainant party thus bore grudge.
Muhammad Sher ASI, brother of Khan Mir PW-, prevailed upon the Police party and they in connivance with the Police wanted to eliminate Rafi Ullah. The prosecution story was cooked up within seven days as no FIR was registered during this period. We made applications through Inayat Ullah on 24.12.1986, to the S.P. And D.M. Mianwali and the higher officials of the police. Inayat Ullah is a first cousin of Rafi Ullah since dead. A judicial enquiry was ordered on 24.12.1986, by the D.M. Mianwali and ADC (G), Mianwali was appointed to conduct this enquiry who also visited the spot on the day of occurrence. The real facts were concealed by the complainant party. We made applications after surrendering ourselves before ADC (G) who was conducting the judicial enquiry, after we got the copy of the FIR, on 4.1.1987, 6.1.1987, 8.1.1987 and 10.1.1987. We were sent to judicial lock-up with the orders of ADC(G), Mianwali that identification parade be held in the judicial lock- up. This was down at our applications. The Police deficit this judicial order and refused to participate in the identification parade. On 14.1.1987, an application was made that the Police is fabricating the recoveries of weapons to the Ilaqa Magistrate who. Sealed the Daily Diary of the Police Station. We were taken away to District Khushab against the judicial order of the Ilaqa Magistrate and. In the meantime, evidence was fabricated. I was tried under the Arms Ordinance but was acquitted by the Magistrate. Even the FIRs of the Arms cases were not sent to the Court. We made an application to this effect before the Ilaqa Magistrate and obtained an order but the Police did not comply with this order even. The Ilaqa Magistrate also ordered for medical examination of we all the accused but the Police did not obey this order. I have been falsely implicated in this case because Khan Mir is inimical towards us and Abdul Sattar, ASI also bore grudge against me."
The same plea/statement was adopted by the other accused as well.
11. We have heard both the learned counsel for the defence as well as the learned counsel for the State and also the learned counsel in the complaint case relating to the murder of Rati Ullah, at considerable length. The evidence and the record of the Trial Court has also been scanned with requisite care.
In its broad perspective, the prosecution case appears to be that Musa Khel Police was-under pressure from the Navel Base to redress the grievance of Shafa Ullah son of Amir Khan (PW-10),, who was an employee on board the Pakistan Navy' ship, "Bahawalpur", had made grievance that his father was facing harassm ent at the hands of the accused. The Commanding Officer on this complaint had desired that the action be taken immediately.................. Against the individuals mentioned in the said complaint of Shafa Ullah. The Deputy Commissioner, Mianwali Head as well made an endorsement to the Superintendent of Police, Mianwali to take action in that behalf and submit a report to him. This application dated 20.11.1986 was finally marked to S.H.O. Police Station, Musa Khel and the same was received on 30.11.1986, at the Police Station together with the annexed applications wherein the names of the accused persons were detailed. In these applications, it was further disclosed that the accused were possessed with unlicenced weapons and they provided protection to known dacoits of the area and harboured proclaimed offenders. See: (P.46) (P.47/1 -3) and (P.48).
12. Musa Khel Police Station around that same time also received orders for apprehension of the Army deserter. Sana Ullah. These documents were also recovered lying near the dead-body of Qutab Sher, ASI. There is thus no doubt in\ our mind that the Police party had gone to Dera Adam Khelwala in connection with performance of official duty and not in aid of Shafa Ullah to eliminate his enemy, Rafi Ullah. Deceased, as alleged by the defence. On the other hand, we are equally convinced that none of the accused were such desperate out-laws, that they resorted to firing at the Police party on first sight.
Looking at the circumstances in totality one cannot rule out the possibility that this occurrence took place on account of tactlessness and mishandling of the situation on the part of-the police. Had the Police officials conducted themselves with astuteness, befitting the occasion, this sad incident probably, would not have occurred.
13. Learned counsel for the defence has vehemently argued that the eyewitness account neither merits credence nor reliance. He submits that visual site plan (Ex,PCCC) prepared by Riaz Ahmed Khan, DSP (PW-15) and the site plan (Ex.PE) prepared per scale by Muhammad Ameer-Halqa Patwari (PW-2) spell out the location of the witnesses, the accused/appellants, and deceased as well as the distances inter-se then all. He pointed out that the deceased and witnesses were poised on the eastern side of rain tide embankments whereas the appellants were shown to be on the western side of the same. The height of both these embankments was given as 6/7 feet and the intervening distance between the two factions was shown to be for over I0O karams. In this view of the matter, with a high Band butting in between, neither the appellants could have shot the deceased as alleged and nor the witnesses could see accused shooting at the deceased. The shooting distance, it was urged, did not fit in with the pattern of injuries which entailed recovery of was from therein. According to the learned counsel, the eye-witnesses stood completely belied by the site plans, which were prosecution's own documents. He reiterated that it may not have been an unwitnessed occurrence; but the fact remained, that the prosecution witnesses could not have seen the same from where they claimed to have witnessed the incident.
14. The argument may certainly sounds persuasive at the first brush but is rendered devoid of legal substance on a close scrutiny. After all a sit^plan is not a substantive piece of evidence and cannot be used to contradict an eye-witness. Be that as it may, the topography of the place of occurrence may be of relevance/importance to generate a visual feel of the ocular account to better help its appraisal and appreciation in a static occurrence.
The case in hand was more of an armed combat. It cannot- be appraised by equating the perception of an eye-witness to that of a refree in the boxing ring. It was a battle find like situation.
Both sides were agile and moving about taking cover and shooting at the same time. The eye- witness therefore, cannot be discredited simply by reference to distances and directions indicated in the site plan.
15. The prosecution case rests primarily on the eye-witness account furnished by Amir Khan (PW- 10) (Father of Shafa Ullah) and apart from the complainant (PW-11) the two Constables Hadayat Ullah (PW-12) and Latif Ullah (PW-13) According to Amir Khan (PW-10), he is closely related to the appellants and the acquitted accused. Prior to this occurrence, no enmity as such existed with the accused except for the family irks regarding which the Naval Officer had written to the local Police at the behest of his soil Shala Ullah, who was employed in Pakistan Navy.
Amir Khan (PW-10) claims to have seen the occurrence from his tubewell, point No. 8 in the extreme west in the site plan. This place comes to about five acres away from the main scene of occurrence. He admits that Qutab Sher and Abdul Majeed were behind the rainy Band on the eastern side when they were hit. In this view of the matter, it is quite possible that he might not have seen the occurrence from his tubewell. Furthermore, he cannot be described as a wholly independent witness as he concedes that a counter complaint was pending before the same Trial Court against his brother Jahangir and two sons Shafa Ullah and Ehsan Ullah under Section 302 PPC. They were being arrayed for the murder of Rafi Ullah. Who had been shot in this encounter. It would thus be not safe to impose implicit reliance on this witness. The Trial Court has rightly exercised the caution of excluding his testimony out of consideration.
16. However, as far as Abdul Sattar. ASI (PW-11), and Constables Hadayat Ullah (PW-12) and Latif Ullah (PW-13) are concerned, their presence at the spot is not open to exception. All the three were the members of the police, raiding team, constituted by Sultan Sikander. SI/'SHO (deceased). They were all there in the performance of their duty. They had no enmity with the appellants and other accused. As such, it would be fair to say that they had no occasion to either falsely accuse any one.
Or substitute the appellants for the real accused/culprit.
17. These three eye-witnesses are consistent that Hameed Ullah and Zia Ullah shot^at Qutab Sher and Abdul Majeed respectively.
It has been argued that one Ahmed Khan had find a criminal complaint against Abdul Sattar (PW- 11) and in that complaint Sardar Khan's name (father of the appellant) figured in the list of witnesses as a witness of motive. This could hardly have furnished a cause to Abdul Sattar to implicate his sons (appellants) in such a serious murder case.
Needless to say that no such accusation of enmity or grudge has been levelled by the defence against Constables Hadayat Ullah (PW-12) and Latif Ullah (PW-13). They seem to be truthful witnesses. Their version cannot be discarded just on account of their being Police Officials. Their presence at the spot is established, being members of the police team which, had to face the firing. Their presence is natural and they had absolutely no motive to falsely implicate Hameed Ullah and Zia Ullah. The principal accused/appellants.
18. Learned counsel for the appellants endeavoured to question the presence of Abdul Sattar, ASI and Hadayat Ullah Constable on the spot on the ground that, both of them, were not posted at Police Station, Musa Khel on the day of occurrence. They, as such, could not have been in the police party headed by Sultan Sikander, SI. Both these witnesses have explained this objection rather satisfactorily. They were on the roll of police for the purpose of drawing and disbursing of salary but were part of the District Staff for arresting the proclaimed offenders and attached to Musa Khel Police Station. The objection in the aforesaid behalf does not demolish the presence of these two witnesses at the spot. Needless to add that presence of the third police witness Latif Ullah was not objected to in any manner nor veracity of his testimony has been shaken. The ocular account furnished bv Abdul Sattar (PW-11). Hadayat Ullah (PW-12) and Latif Ullah (PW13) is consistent and does not seem to be motivated by any malice or ill-will against the appellants.
19. We are conscious, however that one person, on the said of the appellants, as well i.e. Rafi Ullah was killed. Prosecution evidence has thus to be examined in juxia position with the version of the defence. According to the appellants, Shafa Ullah son of Khan Amir (PW-10), had misbehaved with woman- folk of Rafi Ullah. About 3/4 months prior to the occurrence, Rafi Ullah had find ineffectively at Khan Amir (PW-10). To give vent to this grudge, Muhammad Sher, ASI a brother of Khan Amir hatched a scheme to eliminate Rafi Ullah with police help through a fake encounter.
As for the manner of the occurrence, it was contended that at the fateful occasion, Rafi Ullah (deceased) and one Aman Ullah were returning to their house from Sherwala. When Qutab Sher.
ASI and Abdul Majeed. F.C. Together with Shafa Ullah (son of PW-10) confronted them. There was exchange of firing pursuant to a plan worked out by Shafa Ullah with the Police in which the former had also associated his brother, Ehasan Ullah and uncle Jahangir. They resorted to firing on Rafi Ullah and Aman Ullah. While these two armed with a rifle and a gun respectively find back at the police party, In this exchange of fires. Rafi Ullah was killed on the side of the appellants/accused whereas Qutab Sher, ASI., and Abdul. Majeed. F.C. Met their death from the complainant side. As for Sultan Sikander. SI. It was maintained, that he was shot dead in unknown circumstances at a far of place, away from the scene of the occurrence. However, as Sardar Khan (accused) had been cited a witness in a complaint find by one Ahmed Khan against Abdul Sattar. ASI (PW-11). He had manoeuvred the involvement of the appellants (sons of said Sardar Khan) and all other relations.
2U. The story of the defence hinges on the professed enmity between family of Sardar Khan (accused) on the one hand and that Khan Amir Khan (PW-10) and his son Shafaullah on the other.
Both sides, however, are one family, joined through multiple inter marriages. Nothing has been brought on record through evidence regarding misbehaving of Shafaullah with women-folk of Rafi Ullah nor the story of firing by Rafi Ullah at Khan Amir (PW-10) 3/4 months prior to the occurrence has been established. Similarly, it is not shown that Sardar Khan accused ever appeared as a witness against Abdul Sattar, ASI (PW-11). The letter dated 20.11.1986 (Ex. P.46) on behalf of Shafaullah together with the annexed applications (P.47/1 -3) do not spell out any serious enmity between the family of Khan Amir Khan and that of appellants. The dispute seems to be in the nature of family, trivial differences, rather than any deep rooted enmity. As such the story of the defence that Shifaullah master minded a plot to kill Rafi Ullah with the help of the police appears to be more, a figment of imagination, rather than being real, nor does it appeal to a prudent mind that on account of a complaint find by Ahmed Khan son of Khawar Khan, Abdul Sattar, ASI (PW-11) has involved twenty persons of the appellants' family (excluding said Ahmed Khan). When examined in the contest of the over all prosecution case, the defence theory that Shafaullah had come to the place of occurrence with the police party to murder Rafi Ullah seems too fanciful to be true.
21. A bare reference to Ex. P.46, a letter from the Navy, Commanding Officer finally marked to S.H.O.
Police Station, Musa Khel together with applications (P.47/1-3) of Shafa Ullah and the Deserter's Apprehension Roll qua Sana Ullah (accused) (Ex. P.48) sent to Police Station from Army (HQ)
D.I.Khan together with Hukam Nama Talbi (Ex. P.49) prove beyond any shadow of doubt that police party had gone to the spot in performance of duty on directions from the superiors to inquire into the allegations in respect of the misbehaviour of the accused viz-a-viz father of Shafa Ullah and also to look into the complaint about their harbouring proclaimed offenders and being possessed with illicit arms as well as to arrest an army deserter. The premises on which the defence has sought to build its case does not hold ground. The accused were already aware of Shafa Ullah's complaint and had been served with police 'Hukam Nama Talbi' which they had declined to however, reckoning the same to be sheer mischief rather then genuine process of law. They reacted to what they may have imagined as oppressive/partisan attitude of the police. The behaviour of the Police might; well night, have invited an over-reaction rather than submission to authority of law.
22. Admittedly none from amongst the accused had either criminal or desperado propensities.
Neither the appellants nor any other co-accused were sitting in ambush to way lay the police for a show down. The occurrence seems to have sparked of suddenly in the wake of an irresponsible threatening posture adopted by Constable Abdul Majeed, followed probably by a loose shot from either side, resulting in a chain reaction which ultimately de-generated into an ugly encounter inter se the police party and the accused. It is quite possible that it was after Rafi Ullah's encounter with the police, that the appellants, out of reaction and exasperation, retaliated sharply and resorted to firing resulting in death of Qutab Slier. ASI and Abdul Majeed, F.C. In the circumstances, we do not see much merit in their appeal. The same is dismissed.
23. Adverting to quantum of sentence, learned counsel for the defence has drawn our attention to portion of the judgment of the Trial Court, wherein the occurrence has been held to be a sudden fight. In the face of such a finding it is argued that death sentence was not warranted.
24. It is prosecution own case that the occurrence sparked of on account of an altercation between Abdul Majeed (deceased) and Rafi Ullah (deceased). This incident could have been avoided through a proper and apt handling of the situation by the police in a professional manner. Had the police not behaved so crudely, this occurrence might not have happened at all. Awarding of life sentence, in the circumstances, we reckon would be keeping in with safe administration of justice.
Each appellant's sentence under Section 302 PPC is, altered and converted into imprisonment for life with Rs.20,000/- fine and one year's R.I. In default thereof. Amount of fine, if realized, shall be paid to legal heirs of deceased. However, sentence awarded to each appellant under Section 353 PPC is maintained and upheld. Benefit of provisions of Section 382-B Cr.P.C, shall also be extended to the appellants, while computing the period of their sentence.
25. Resultantly Appeal No. 190 of 1992 is disposed of with above modification is. As a sequence.
Murder Reference No. 96 of 1992 is answered in the negative while Criminal Appeal No. 425 of 1992 and P.S.L.A. No. 8 of 1993 are hereby dismissed.