' IFTIKHAR HUSSAIN CHAUDHRY, J.---Wazir Shah son of Yusuf Shah, Intizar Shah son of Wazir Shah and Imtiaz Hussain Shah son of Safdar Shah were convicted for offence under section 302(a)134, P.P.C. For causing Qatl-e-Amd of Arif Shah and Mukhtar Shah vide judgment dated 27-4-1993 passed by Sessions Judge, Attock and were sentenced to death on two counts of murder. Intizar Shah was also convicted under section 337-F(V), P.P.C. And sentenced to rigorous imprisonment for two years. He was also directed to pay Rs,25,000 to Sidiq Shah injured P.W. By way of 'Daman'.
2. Occurrence in this case took place at 9.00 a.m. On 15-8-1992 in the areas of village Dharek, Police Station Bahtar District Attock and case F.I.R. No,85 of 1992 Exh.PN was registered at Police Station Bahtar on the report of Sadiq Shah, P.W.10. According to complainant he was present in his house at 9.00 a.m. On 15-8-1992 when he heard an alarm. He ran towards the mosque and saw that Wazir Shah armed with 12 bore gun, Intizar Shah armed with .12 bore DBBL gun, Imtiaz Hussain armed with 30 bore pistol were abusing Arif Shah. Arif Shah also replied in the same manner. Imtiaz Shah fired twice with his pistol which hit Arfi Shah, deceased, in his head. Wazir Shah fired a shot hitting him on his back. When the complainant tried to intervene, Intizar Shah fired a shot which hit him on the back of his right hand causing injuries on his fingers. At raising of hue and cry Wazir Shah Intizar Shah, and Imtiaz Shah started running towards their houses. In the meantime Mukhtar Shah son of the complainant came from the opposite direction who admonished the accused. Intizar Shah fired a shot with his gun which hit him on his chest. Imtiaz Shah fired with his pistol hitting him on his right arm.
3. The motive behind the occurrence as stated by the complainant was that the accused had tied their she-ass in the land of Arif Shah. Arif Shah restrained them from doing so due to which hot words were exchanged between them. Due to this reason all the accused while armed with guns and pistol, with their common intention, committed the murders of Arif Shah and Mukhtar Shah.
4. In the subsequent investigation carried out all the three accused were found guilty and were sent up to face trial in the Court of Sessions Judge, Attock. The prosecution examined 12 witnesses to prove its case against the accused.
5. Dr. Muhammad Shujj at Khan P. W.1 on 15-8-1992 examined Saddiq Shah and found the following injury on his person: 1.A fire-arm inlet wound on medial side of right hand of size 1 x c.m. At the level of distal end of fifth meta-carpal bone. The edges were inverted and lacerated. The edges were black in colour and charring was present around the would. The wound was probed inward and found fire arm outlet wound at the level of distalend of second and third metacarpal bone of size 1.3 x 3.4 c.m. The edges of black colour and everted on dorsal side of right hand.
' On the same day at 3.00 p.m. The medical officer conducted postmortem examination of Arif Shah and observed the following injuries on his dead body:
1. A fire-arm injury, inlet wound 1 x 3/4 c.m.. On right side of skull(Parietal area) the edges were black colour and everted, charring present 6 c.m. Behind the right ear. The wound was probed towards left and found an exit wound of size 1 x 1 on front of left ear. The edges were everted with the fracture of underneath bones. Z. A fire arm injury inlet wound of size of 1 x 3/4 c.m. On right, side of skull on parital area 7 c.m. Behind the right ear. The edges were of black, colour and evened.
Blackening was present. The wound was probed towards left and found an exit wound on left parietal area 7 c.m. Behind the left ear with everted edges and of size 1 x 2 c.m. With the bone pieces in the exit wound. Course of the wound was straight.
' Multiple wounds of entry in an area of 17 x 12 c.m. On middle and upper part of back of chest, the edges had blackening and inverted. The nylon cap of cartridges was recovered under the shirt. The corresponding holes on the shirt of size 3 mm in diameter were present. The size of the wound was also 3 mm in diameter. The gun power was present on the shirt.
' All the injuries were antemortem and were caused by fire-arm.
' The medical officer on the same day at about 315 p.m. Conducted postmortem examination on the dead body/and noted the following injuries:
1. A fire-arm inlet wound on medial side of left elbow region 2 on below the joint of the size 4 c.m. x 2.5 c.m. The edges were inverted blackening and charring were present on the edges. The wound was traced outwards and found two outlet fire-arm wounds of size 2 x 2 c.m. Each on leateral side, 2 c.m. Above the elbow joint. The edges were everted with the fracture of elbow joint. (Lower end of humerus) and upper end of radious and ulna).
' A fire-arm inlet wound 3 x 5 c.m. In size, 3 c.m. Above the injury No,
1. The edges were inverted blackening and charring were present. The wound was traced outwards and wound 3 outlet wound measuring 2 x 1 c.m., 2 x 1.3 c.m. And 2 x 1 c.m. With the fracture of lower end of humerus above the fracture caused by injury No, 1.
' Multiple fire-arm inlet wound in an area of 16 x 12 c.m. On front of chest (epigastrium) each measuring 3 m.m. On size the edges were inverted blackening and charring were present.
Corresponding holes were present on front of chest and shirt some of the holes probed and found wound on back in the centre of the level of thorax region in an area of 10 x 12 c.m. The edges were everted, each hole was of 2.3 m.m. In size corresponding hole was present on back of shirt.
' All the injuries were antemortem and were caused by fire-arm.
6. Muhammad Razzaq Patwari P.W.5 had prepared site plan Ex. PG/1. Ghor Zamin P.W.6 had identified the dead bodies of Arif Shah and Mukhtar Shah at the time of post-mortem examination.
Luqman Shah P.W.7 witnessed the recoveries of gun Exh.P8 alongwith licence Exh.P9 and Pistol Exh.P10 recovered at the instance of Intizar Hussain and Imtiaz Hussain Shah respectively which were recovered vide memos. Exh.PF and Exh.PH. Daulat Shah P.W.9 testified about the recovery of, blood-stained earth from the place where dead bodies of Arif Shah and Mukhtar Shah were lying.
He had also witnessed the recovery of five empties of 30 bore pistol which were secured vide memo. Exh.PK. On 20-8-1992 he had witnessed the recovery of 12 bore gun Exh.P13 which was recovered at the instance of Wazir Shah and was secured vide memo. Exh. PM.
7. Sadiq Shah complainant P.W.10 was injured during the incident. He had reaffirmed the narrative contained in the F.I.R. And supported the version of the prosecution. Aftab Hussain Shah appeared as P.W.13. He had supported the version as advanced by Sadiq Shah complainant.
8. Muhammad Nawaz S.I. Appeared as P.W.12. He testified about the various steps taken by him during investigation. He testified about the arrest of the accused, recoveries of weapons from their possession. He had recorded the statements of witnesses under section 161, Cr.P.C. After completion of investigation he had prepared final report under section 173, Cr.P.C. Against the accused and submitted the same in Court.
9. In their statements recorded under section 342, Cr.P.C. All the accused professed innocence and have stated that complainant party lodged a false F.I.R. Against them and to support the false F.I.R.
They have fabricated false evidence.
10. Learned trial Court believed the prosecution case against all the three accused and convicted and sentenced them as noted above. Judgment dated 27-4-1993 of Sessions Judge Attock was appealed against through Criminal Appeal No, 105 of 1993. The matter has been referred under section 374, Cr.P.C. Vide Murder Reference No, 163 of 1993 for confirmation of sentences of death awarded to the accused.
11. Learned counsel for the appellants contended that occurrence did not take place in the manner as alleged by the prosecution and that the complainant with the help of local police fabricated a false story in which he involved the present appellants though they never took part in the occurrence. It was submitted that motive as set up by the prosecution was not proved and appellants were not shown as to why they would have attacked both the deceased. It was argued that the complainant, the eye-witnesses and witnesses of recoveries 'were closely related to one another and no implicit reliance could be placed on testimony of such interested and inimical witnesses. It was further argued that Intizar Shah was serving in army and had returned to village the same day and he was roped in the case by the complainant. It was contended that prosecution case was not free from doubt and benefit of that had to be given to . The convict/appellants. It was contended that due to non-proving of motive, it was a case in which maximum punishment could not have been awarded. Learned Assistant Advocate-General on the other hand contended that the complainant and other private witnesses were closely related to accused and they had absolutely no enmity with them and their testimony was confidence inspiring and worthy of reliance particularly when the defence was unable to elicit anything from their mouth favouring the accused. It was submitted that the incident took place after a quarrel which started over tethering of a donkey in the land belonging to Arif Shah deceased, and such quarrels are common feature in the area and motive as set-up by the prosecution was adequately proved. He submitted that prosecution had proved its case beyond the slightest shadow of doubt and the appellants, thus, were convicted rightly.
12. Sadiq Shah complainant P.W.10 is closely related to Wazir Shah as his real sister is married to him. Another real sister of Sadiq Shah is married to Safdar Shah, father of Imtiaz Hussain Shah accused. Wazir Shah is brother-in-law of Sadiq Shah while the other convicts namely Intizar Shah and Imtiaz Shah are his maternal nephews. Arif Shah deceased is son of Daulat Shah and nephew of Sadiq Shah while Mukhtar Shah was his son. Aftab Shah P.W.11 is real brother of Arif Shah. Thus, the complainant, eye-witnesses, the witnesses of recoveries of crime property and accused- convicts are very closely related to one another. No enmity existed between the parties prior to the incident. Nothing was suggested to the prosecution witnesses and nothing has been highlighted by the convicts-appellants during trial or during hearing of the appeal. According to prosecution Arif Shah objected to tethering of a donkey by the accused near certain trees which the donkey was likely to damage; a quarrel ensued between the parties and after a verbal brawl Arif Shah was fired at and when Mukhtar Shah deceased, came from his house towards the place of occurrence, he was also fired at by Intizar Shah. According to complainant the occurrence took place in this background and since there was no enmity between the parties, it can safely be inferred that stand of the prosecution in this regard was not improbable. Incidents of like nature .Do occur in this region and, therefore, it could not be said, as has been argued, that motive set up by the prosecution went unproved. Sadiq Shah immediately after the incident had reported the matter to police and had given the reasons for the incident. This was not a. Case in which prosecution had set up a case that an earlier quarrel between the parties was avenged by the accused and no evidence was led by the prosecution to prove that a quarrel between the deceased or the accused had ever taken place. Only in such situations where no evidence is led by the prosecution with regard to an alleged earlier incident, an adverse inference is drawn against the prosecution. This is not the position of the case in hand. A quarrel took place between Arif Shah and the accused and immediately, thereafter, the situation aggravated and shooting took place. The motive for the incident, therefore, appears to be same as has been claimed by the prosecution.
13. The occurrence in this case took place at 9.00 a.m. On 15-8-1992 in front of the village mosque in an open space. It was a day time occurrence and could not have gone unwitnessed. Sadiq Shah complainant was present in his house at the relevant time and on hearing of alarm he reached in front of the mosque and found Intizar Shah and Wazir Shah holding shot guns in their hands while Imtiaz Shah was carrying a .30 bore pistol. He had travelled a distance of about 100 yards from his house to the place of occurrence which was admittedly at a higher point of elevation than his house. He had seen Arif Shah and the accused engaged in verbal dual and himself was injured in the incident. He was subjected to cross-examination in the following terms: "It is correct that I continued hearing the alarm also on my way to the spot. When Arif Shah called Imtiaz Shah accused son of 'Be-ghairat' I was away 2/3 paces from Arif Shah From the untieing of she she-ass and of demise of the deceased I was present at the occurrence. At the time of untieing of she-ass I was not present at the spot and had come subsequently. It is at the" occurrence that I had come to know that the quarrel had emanated on the untieing of she-ass. I had come to know because that accused were insisting to tie the she-ass whereas Arif Shah deceased was resisting.
The she-ass was present at the spot. It is incorrect that Intizar Shah was not present at the spot. He had come on leave on the day of occurrence. We are not that callous that we should have involved Intizar Shah falsely into the case taking advantage of his being On leave in the village and to have named him because he is the only earning member of his family. It is incorrect that in an open fight the fires were shot from either sides while Intizar was not there when the pellets hit me and nobody knows whose cartridge that was. Similarly it is not known whose fire hit the two deceased."
' Aftab Hussain Shah P. W.11 is the second eye-witness. He was cross-examined in the following terms: "It is incorrect that Intizar Shah was not present at the spot nor was I or my mother present at the spot. The place of occurrence is towards east from the main entrance of the mosque. I had also seen the she-ass untied standing. The donkey did not run away during the occurrence. It is incorrect to suggest that I was not there. It is incorrect that it is on the east of our village mosque where the occurrence could take place. Towards south of the mosque is graveyard whereas on its west are the houses. It is incorrect that I have neither seen the spot nor the mosque."
' From the above it is apparent that motive part of the incident was proved by the witnesses, the place of occurrence was admitted by the defence itself. The occurrence itself was admitted as having been taken place and only suggestion put to witnesses was that Intizar Shah was not present there which suggestion was vehemently denied by Sadiq Shah by claiming that they were not. That callous. Not a word, favouring the accused/convicts could be elicited by the defence from the mouths of these witnesses. No enmity was suggested. No false implication in respect of Wazir Shah and Imtiaz Shah was even suggested. Shooting was also admitted. After having gone through the testimony of these witnesses we are left with no option except to believe their deposition in totality.
14. The ocular account furnished by witnesses who, no doubt, are related to the deceased but they are also closely related to accused-convicts. They are not inimical witnesses and in the absence of any disqualification pointed out by the defence from which these witnesses suffered, their testimony could provide a safe ground for basing the conviction of the accused-appellants. The ocular account in this case is further corroborated by the medical evidence. Sadiq Shah himself was injured. Three metacarpal bones of his hand were fractured on account of gun shot and injuries on the person of both the deceased as noted by the medical officer fully support the ocular account. The recoveries of crime cartridges lend further corroboration to the prosecution case.
Luqman Shah P.W.7 and Daulat Shah P.W.9 who had testified about recoveries of crime articles proved the recoveries effectively. The cross-examination to which they were subjected was directionless and neither their integrity nor their credibility was shattered in any manner by the defence.
15. One empty cartridge recovered from the spot matched with 12 bore DBBL shot gun having been recovered at the instance of Intizar Shah accused.
The other spent cartridge of 12 bore shot gun recovered from the spot wedded with SBBL shot gun recovered from Wazir Shah. The spent bullet casing of. 30 c bore pistol also wedded with pistol having been recovered at the instance of Imtiaz Shah. The report of Forensic Science Laboratory Exh.PY further lends support to the prosecution case.
16. After having carefully gone through the entire material on record, we are of the view that prosecution case against the convicts-appellants was proved beyond any shadow of doubt. We have been unable to lay our fingers on any circumstance, the benefit of which could be given to convicts. Therefore, the appeal filed by the convicts-appellants is dismissed. The conviction/sentences as recorded by learned Trial Court on all charges are maintained.
17. Leath sentences awarded to convicts-appellants are confirmed.