' MUHAMMAD AZAM KHAN, J.--- The appellant, namely, Noor Khan son of Mamraiz Khan, aged about 55/56 years, resident of Aba Khel, Tehsil and District Lakki Marwat, was tried by the learned Special Judge, Lakki under section 302/34, P.P.C. For having committed the murder of the two deceased, namely, Hakim Khan and Jalandar Shah, in furtherance of his common object alongwith his absconding co-accused, namely, Saleh Khan, (now dead), on 30-11-1996, at Khuftan prayers time near graveyard of village Aba Khel, within the criminal jurisdiction of Police Station Lakki Marwat.
2. On conclusion of the trial, he was found guilty for having committed the murder of Jalander Shah and was convicted and sentenced to life imprisonment, alongwith a fine of Rs,40,000 or in default whereof to undergo five years simple imprisonment. The fine, on realization, 2/3rd of the same was to be paid to the legal heirs of the deceased as compensation. Benefit under section 382-B, Cr.P.C.
Was also extended to the appellant, vide judgment and order, dated 8-4-1996 of the learned Sessions Judge, Lakki .
3. The convict has challenged conviction and sentence through the present appeal and we have also before us a Criminal Revision No,8 of 1996 (Nawaz Khan v. Noor Khan), for the enhancement of his conviction from life imprisonment to that of normal penalty of dean,.
4. This common judgment shall dispose of both the matters, as both have arisen out of the same judgment of the trial Judge, dated 8-4-1996.
5. According to the facts of the prosecution's case, Muhammad Nawaz complainant on 30-11-1996 took the dead bodies of the two deceased, namely, Hakim Khan and Jalander Shah, to Police Station Lakki, at 21-30 hours, accompanied by P.W. Fazal Rahim, and lodged a report to the effect that on the eventful night at Khuftan Prayers time. After having meal. He alongwith his brother named Hukum Khan, and cousin, namely, Meherdad, left their house for the mosque for offering Khuftan prayers. Having reached near the mosque belonging to Saleh Khan, they came across Saleh Khan and his brother Noor Khan, who both were armed with Topaks. At that time, lights of the mosque were on.
6. The accused, Noor Khan, asked Meher Dad P.W. As to why he was always beating his sister. His reply was that she being his daughter-in-law, therefore, he (the accused) had no concern with her.
Upon this, the accused Noor Khan and Saleh Khan started his beating. Hukum Khan deceased intervened, but Saleh Khan accused fired two shots at him with which he was hit, fell to the ground and expired subsequently. Thereafter, both the accused decamped from the spot. No other motive was given in the report. Besides the complainant, the occurrence was stated to have been witnessed by P.Ws. Meher Dad, Fazal Rahim and Abdul Baqi. He, therefore, charged Saleh Khan and Noor Khan for the offence.
7. This report (Exh.P.W.7/1) was recorded by Mr. Abdul Hameed Khan S.H.O. (P.W.7) who, after registering the case, prepared injury sheets of both the deceased, vide (Exh.P.W.7/2 and Exh.P.W.7/3), inquest reports (Exh.P.W.7/4 and Exh.P.W.7/5) and, thereafter, despatched the dead bodies to mortuary under the escort of Muhammad Amir (P.W.11) and then proceeded to the spot for the purposes of investigation.
8. On way to the spot, P4. Meherdad met him as he was injured and, therefore, his injury sheet (Exh.P.W.7/6) was prepared by him, whereafter, he was sent to the hospital for treatment.
9. Having reached the spot, this witness inspected the same and prepared the site plan (Exh.P.B.) where deceased Hukum Khan was killed. This spot is near the mosque belonging to Saleh Khan accused, wherefrom blood-stained sand was taken into possession and sealed the same in a parcel, vide memo. Exh.P.W.2/l. He also took into possession blood-stained sand from the place of deceased Jalander Shah and sealed it into a parcel vide memo. Exh.P.W.2/2. He had further recovered one empty of .12 bore (Exh.P.1), two pelleta (Exh.P.2), four cardboard (Exh.P.3) and one wed (Exh.P.4) and sealed the same into a parcel, vide memo. Exh.P.W.2/3. From the mosque belonging to Saleh Khan and mosque belonging to the complainant party, which are close to each other, he took into possession two electric bulbs of 200 volts each in working condition, vide memo.
Exh.P.W.2/4. The blood-stained clothes of the deceased Huktun Khan were brought from the mortuary which he took into possession alongwith four pellets extracted from his dead body, and sealed the same into a parcel, vide memo. Exh.P.W.2/5.
10. Thereafter, the witness inspected the spot where Jalander Shah was killed. This spot is 1-1/2 furlong away from the previous spot and there he prepared the site plan (Exh.P.B./1) at the instance of the witnesses. This spot is situated in the graveyard, wherefrom blood-stained sand was taken into possession and sealed it in a parcel vide memo. Exh P.W.2/2. Blood-stained clothes of deceased Jalander Shah alongwith one Phial were also sealed into a parcel, vide memo.
Exh.P.W.2/7.
11. He recorded statements of the P.Ws. The accused were not traceable and, therefore, he obtained warrant under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Against them and after completion of investigation, submitted challan against them under section 512, Cr.P.C. On 19- 11-1986. Accused Noor Khan was arrested on 13-8-1992 by Mr. Meenadad Khan, Sub-Inspector (now dead), but challan against him was submitted by P.W.8, namely, Muhammad Farid Khan, Inspector.
12. Since co-accused Saleh Khan died on natural death during pendency of the case, therefore, proceedings against him abated on 13-1-1994.
13. P.W.10, doctor Ghulam Hussain, had examined P.W. Meherdad on 14-11-1986 at 12-35 a.m. In Civil Hospital, Lakki and found the following:-- "Swelling and abrasion on the right elbow joint."
' Similarly, this witness had conducted post-mortem examination on the dead body of deceased Jalander Shah on the same day at 8-00 a.m. And found the following:--
(1) One entrance wound of fire-arm on front of left shoulder size 1/4" x 1/4" skin muscle and cavity deep.
' Likewise, he had also conducted post-mortem examination on the dead body of Hukum Khan deceased the same day at 7-30 a.m. And found the following:--
(1) One entrance wound of fire-arm black charring on left side of neck size 4" x 1" skin muscle deep.
(2) Five exit wound of fire-arm on back left shoulder within area 3" x 4". Size 1/4" x 1/4" each.
(3) One entrance wound of fire-arm on back of right shoulder lateral side 2" x 2" skin muscle and bone deep cavity.
(4) One exit wound of fire-arm on left side of chest at front on lateral side of left nipple size 1/4" x 1/4".
13-A. The prosecution's evidence consists of eleven witnesses, of whom the evidence of P.W.4, Nawaz Khan complainant and P.W.5 Mehrdad, an injured witness, are material, around whom the entire incident revolves. P.W.5, Meher Dad is stated to be father-in-law of the sister of the present accused. P.W.6, Fazal Rahim is the ocular witness to the murder of Jalander Shah deceased and had participated in the chase of the appellant from his mosque upto the spot in the company of the complainant.
14. There is nothing noteworthy in the statement of the accused recorded under section 342, Cr.P.C., as he has denied the accusation and professed innocence.
15. The conviction of the appellant is based by the trial Court on the ocular account of the aforesaid three witnesses, the motive in respect of the ill-treatment metted out by the sister of the accused through Meherdad P.W. And the abscondence of the appellant for more than six years and his conduct of disappearance after the occurrence, besides the independent charge of causing the death of the deceased by firing one shot at him.
16. Assailing the prosecution's case, learned counsel for the appellant raised the following contentions:--
(i) That the occurrence was a sudden affair and the appellant had no intention to kill the deceased;
(ii) That P.W. Meherdad or Hukum Khan deceased might have provoked Saleh Khan, the dead accused, who initiated the first episode;
(iii) That the evidence adduced by the prosecution was interested and a false case had been planted against the accused party;
(iv) That the occurrence did not take place in the manner alleged by the prosecution; and
(v) That the subsequent occurrence of the murder of Jalander Shah was an unseen incident, as the spot was in darkness.
16. Learned counsel for the complainant and the learned Assistant Advocate-General for the State supported the impugned judgment by reiterating the reasons contained therein.
17. They contended that the ocular witnesses, namely, Nawaz Khan complainant, Meherdad and Fazal Rahim P.Ws. Were natural witnesses to the occurrence, as according to them, the first murder took place just in front of mosque belonging to Saleh Khan (the dead accused) where electric bulbs were on and sufficient moonlight was available for the identity of the culprits. They urged that the aforesaid witnesses were naturally proceeding towards the mosque for Khuftan prayers, when they were waylaid by the assailants who were duly armed with lethal weapons. According to them, the complainant party had to pass in front of the mosque of the accused party and then proceed to their mosque, which is adjacent and at a distance of 5/6 paces.
18. We have given our anxious thoughts to the arguments led by both the parties and have minutely examined record of 'the case. To our observations, both the parties are related inter se and are known to each other, as they live in the same vicinity, therefore, their identity is not hidden from one another. In the first instance, there was sufficient moonlight and the electric bulbs were on, therefore, the identity of Noor Khan cannot be concealed, as it was he who had initiated the assault by addressing Meherdad P.W. As to why he was beating their sister and there was a scuffle between the parties, which resulted into injuries to Meherdad P.W. The accused party was preferably waiting and waylaying the complainant party to settle the score of the incident of beating of their sister. It is an admitted fact that accused Noor Khan initiated the assault on P.W.
Meherdad as is supported from his injuries which he received in the transaction. Noor Khan accused is, therefore, the central figure of the episode.
19. No reasons are available on the record to suggest that a false accusation has been made by the prosecution witnesses. Going of the witnesses to perform their Khuftan prayers in a mosque is a normal joint feature in the rural society. Therefore, presence of these witnesses at the spot has been established beyond any reasonable doubt. These witnesses are natural to the occurrence and have given a uniform and consistent account of the incident. Their testimony has been fully corroborated by the medical evidence, 'recoveries of the card-board discs, recovery of .12 bore empty from the spot and recoveries of pellets from both the dead bodies of the two deceased suggests that it matched with the weapons of offences which were attributed to each of the culprits in the F.I.R.
20. To our minds, the testimony of the prosecution witnesses commands respect, as the record and their cross-examination do not suggest that they had inimically deposed against the appellant.
Besides, their account does not contain any serious contradiction or improvement.
21. The learned 'trial Judge has correctly observed that though there was a common charge of double murders against Saleh Khan, the dead accused, and the accused/appellant, but it was a case of vicarious liability, because Saleh Khan was given an independent role of causing the murder of Hukum Khan near his mosque. Therefore, the accused/appellant was not held responsible for the aforesaid murder and he was accordingly acquitted of the charge.
22. The State and the complainant party have not challenged his acquittal. In the circumstances, we, are therefore, ignoring the participation of Noor Khan appellant in that event, as far as the murder of Hukum Khan is concerned.
23. It is noteworthy to observe that in the previous episode mentioned above, Noor Khan had initiated the assault on P.W. Meherdad and his identity and presence has been established at the spot beyond reasonable doubt. The subsequent event in respect of the murder of Jalander Shah deceased is in continuation of the previous murder, as after the occurrence, Noor Khan in the company of his co-accused Saleh Khan decamped from the spot and they were followed by Nawaz Khan complainant, who raised an alarm in his pursuit and he was joined in the chase by P.W. Fazal Rahim and Jalander Shah deceased alongwith one Abdul Baqi, who was not produced at the trial. Having reached the graveyard, Noor Khan accused had warned Jalander Shah to be away from him and, thereafter, fired a shot and killed him. The distance between the first spot and the graveyard is stated to be 1-1/2 furlongs. The trial Judge after having examined the Lunar Calender had observed that it was the 10th of Rabi-ul-Awal, therefore, the identity of the accused at the time of firing at the deceased in the graveyard could not be doubted and the question of darkneis is of no avail to him. The appellant had already been identified earlier. He was related to the parties, therefore, there cannot be any mistake in respect of his substitution as it is a case of single firing, for which he has been correctly charged by the witnesses, who had no motive of their own to falsely implicate him. As we have already observed that the ocular account is corroborated by the recoveries from the spot and the recovery of pellets from both the dead bodies of the deceased supported by an unexplained prolonged abscondence, therefore, we feel that the prosecution's case is fully proved against the appellant beyond any shadow of doubt. We are, therefore, not inclined to interfere in the impugned order and would accordingly maintain the same.
24. As regards the quantum of sentence, we are of the considered views that the occurrence is the result of a sudden affair, therefore,, the learned trial Judge has awarded adequate punishment which needs no interference.
25. For what has been discussed above, we find no substance in this appeal which is hereby rejected, with the modification that out of the amount of Rs, 40,000 a sum of Rs,10,000 shall be paid by the appellant as fine, or in default whereof he shall undergo six months simple imprisonment.
Besides, he shall also pay an amount of Rs,30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., failing which he shall undergo simple imprisonment for six months. Benefits under section 382-B, Cr.P.C. Is also extended to the appellant.