SARDAR FAKHRE ALAM KHAN, J.-Accused Ghulam Qadir alias Khairai son of Bahadar aged 35 years resident of Balano Dakhli Hero Shah Malakand Agency alongwith Bacha Said son bf Shamsur Rehman, Islam Gul son of Hazrat Gul and Izzat Muhammad son of Gulab Shah was tried under section 302/34 (two counts) and 392/34, P. P. C. By the Sessions Judge, Peshawar on the allegation that all the four accused on 29-2-1976 before sun--rise time on the Grand Trunk Road near Taru Jabba robbed the passengers of Bus No. 5392 M. R. And also committed the murders of Siraj Khan and Raza Khan deceased. At the close of trial the learned Sessions Judge by his order dated 22-12- 1977 convicted Ghulam Qadir accused under section 302/34, (two counts) and sentenced him to death and a fine of Rs. 500 (five hundred) or in default to undergo six months' R. I. On each count.
The fine was ordered to be paid to the heirs of the two deceased as compensation. He was also convicted under section 392/34, P. P. C. And sentenced to seven years' R. I. It was further ordered that in case the death sentence is not confirmed then all the sentences shall run consecutively. As regards the other three accus--ed they were acquitted as evidence against them was not found sufficient to warrant their conviction. Ghulam Qadir accused-convict has come up in appeal against his conviction and sentences. There is also a murder reference for the confirmation of the death sentence passed on the appellant. Both the matters are being disposed of by this judgment.
2. Succinctly stated the facts as alleged by the prosecution are that on the 29th of February, 1976 at 2-30 a. m. a Bus No. 5392 M. R. a component of Yousaf Travel Company, driven by Gul Rehman (P.
W.) proprietor-- driver started from Peshawar for Mingora, Swat. Raza Khan deceased was cleaner of the bus, while Siraj Khan deceased son of Gul Rehman (P. W.) was also in the bus to help the cleaner in issuing tickets to the passengers. In all, 10/11 passengers, including the four accused, boarded the bus at Peshawar. The two accused occupied seats behind that of the driver, while the other two seated themselves in the rear of the bus. When the bus crossed village Taru Jabba, the two robbers whipped out their pistols, one relieved Amir Badshah (P. W.) of his 32 bore pistol, and the other forcibly occupied the seat of the driver. In the meantime, the robbers started extorting valuables from the passengers. The cleaner and his helper the two deceased who offered some resistance were fired at. The bus was diverted to Pabbi-Chirat Road and when it had covered some distance, one of the passengers, who belonged to Parachinar, found his way out by jumping from the bus and started running. He too was fired at, though ineffectively, from behind. The bus was stopped in the middle of the road and the four robbers alighted therefrom and decamped. The bus was then driven to Police Station, Pabbi where Gul Rehman (P. W.) its driver lodged the report Exh. P.
A. Which was recorded by Syed Tajammul Shah (P. W.) S. H. O. At 6-00 a. m. As Siraj Khan and Raza Khan had died in the bus because of the fire-arm injuries the I. O. Prepared their injury sheets and inquest reports Exh. P. O. Exh. P. O./2, Exh. P. E., and Exh. P. E./2 respectively. The dead bodies were then despatched to the mortuary under the escort of Abdullah Jan (P. W.) F. C. On search of the bus from inside the I. O. By means of cotton collected blood, besides it he also took into possession two empties Exh. P. 5 of .32 bore smelling of fresh dis--charge and sealed them vide memo Exh. P. F.
Thereafter he proceeded to the spot and prepared the site plan Exh. P. C. At the instance of Gul Rehman and other (P. Ws). As the 'assailants were not named in the F. I. R., therefore the police force went into action to trace them. Consequently, Mohammad Tahir Khan (P. W.) S. I. Arrested Ghulam Qadir accused appellant on 28-4-76 at Check Post Landakai, District Swat. S. Abdul Wakil Shah (P. W.) Magistrate Ist Class, Charsadda, on 8-5-76, held an identification parade in respect of Ghulam Qadir accused appellant, and in this identification parade, the three eye-witnesses namely Amir Badshah, Khalid Khan and Zahir Shah, correctly identified the appellant to be one of the culprits. On 6-5-1976 the appellant was produced before Mr. Mohammad Akbar Khan (P. W.)
Magistrate Ist Class, Peshawar, who recorded his confessional statement Exh. P. Z/1.
3. At the trial the prosecution examined as many as 34' witnesses. When examined under section 342, Cr. P. C. In Court the accused appellant retracted from his confession and in toto denied his involvement in the crime. The evidence which is relevant as regards the case of the accused appellant and has been referred to by the learned counsel for the appellant will only be commented upon hereafter because the crime and the manner in which it took place are not denied.
4. Dr. Shahbaz Khan (P. W. 3) Medical Officer, Civil Hospital, Pabbi on 29-2-1976 at 9-30 a.m.
Examined Raza Khan and found the following external injuries on his body :-
(1) Inlet wound on the forehead about 1/4" x 1/4" directed inwards. The skull bone looked fractured.
Death in his opinion was due to haemorrhage and shock following fracture to skull bone and injury to the brain tissues as a result of fire-arm.
On the same day this doctor also examined the corpse of Siraj and externally noted an inlet wound below and lateral to left nipple about 1/4" x 1/4" and directed inwards.
5. Misri Khan (P. W. 4) F. C. Stated that the I. O. Took into possession one pistol of '32 bore Exh. P. 13 produced by Khan Said and the memo. To this effect Exh. P. O. Was prepared by the I. O. Which is correct and bears his signature as a marginal witness.
6. Hazrat Hussain (P. W. 7) identified the dead bodies of the two deceas--ed at Police Station, Pabbi.
7. Amani Mulk (P. W. 8) stated that he had exchanged his S. B. Shotgun with '32 bore pistol Exh. P. 10 belonging to Ghulam Qadir accused and the same he produced before the I. O.
8. Mohammad Tahir (P. W. 13) S. I. Stated that vide memo. Exh. P. O. He took into possession one pistol Exh. P. 13 produced by Khan Said in the presence of the marginal witnesses and that on 28-4- 1976 he arrested Ghulam accused appellant at Check Post Landakai, District Swat.
9. Muhammad Halim (P. W. 14) S. I. Stated that in his presence Amir Badshah (P. W.) produced copy of license Exh. P. 17 of a pistol which the I. O. Took into possession vide memo. Exh. P. A. Which bears his signature as a witness.
10. Gul Rehman (P. W. 17) gave ocular account of the occurrence by stating that he was the owner- driver of Bus No. 5392 M. R., a component of Yousaf Travel Company, and according to route permit he plies it between Peshawar and Mingora; that on the day of incident while driving the bus he started from Peshawar for Mingora at about 3-30 a. m. That Raza Khan the deceased was conductor of the bus, while-his son Siraj deceased was helping in the issue of tickets; that only ten passengers were occupying the bus; that when the bus crossed village Taru Jabba on the G. T.
Road all of a sudden he heard the report of fire shots in the bus ; that two persons put their pistols on his head and asked him to vacate the driver seat, consequently he handed over the steering to one of the two culprits, both of whom had muffled their faces ; that the bus was diverted from the main road to Pabbi-Chirat Road by the culprits and on the way the robbers four in number started robbing the passengers of their valuables ; that he too was relieved of a wrist watch and a sum of Rs. 70 ; that he could not identify any of the culprits who later on stopped the bus on the way and alighted therefrom and then decamped and that thereafter he drove the bus to Police Station Pabbi where he lodged the report Exh. P. A., the contents of which he admitted to be correct.
11. Amir Badshah (P. W. 27) stated that on the day of occurrence at about 3-30 a. m. He boarded at Peshawar the bus of Yousaf Travel bound for Mingora and occupied the second seat behind the driver. He was to alight from the bus at Chakdara. He was carrying a licensed pistol and as it was still dark, therefore, he loaded it. The person who was sitting by his side saw him loading the pistol.
After the bus crossed Taru Jabba and it had travelled for 4/5 minutes the person who was sitting by his side aimed his pistol at him and commanded him thrice to hand over the pistol to him and ultimately he himself took out the pistol from his pocket. Simultaneously another person who was sitting near the driver took over the control of the steering of the bus. At that time he heard the report of fire shots in the rear of the bus. After firing, the four robbers started searching the pockets of the passengers and deprived them of their belongings. From him a sum of Rs. 170 and one Camy Watch were taken away. The bus was diverted to Pabbi-Chirat Road when one of the two passengers from Parachinar jumped out of the bus, he was fired at by one of the robbers. After committing robbery the culprits leaving the bus on the road decamped. The bus was brought to P.
S. Pabbi where it was discovered that on account of the firing both the conductors of the bus had been killed. In his presence the I. O. Took into possession vide recovery memo. Exh. P. F. Blood from inside the bus and two empties of '32 bore and the memo. Bears his signature as its marginal witness. He had watched the accused who had snatched the pistol from him and later on he had correctly identified him in an identification parade held by Magistrate at Charsadda. He had also produced receipts Exh. P. 15 of a wrist-watch and Exh. P. 16 of a pistol besides the licence copy Exh.
P. 17 with regard to pistol Exh. P 13 which was snatched away from him. Exh. P. 13 is the same pistol which belongs to him.
12. Zahir Shah (P. W. 28) stated that he was one of the passengers of the bus and was occupying the front seat. There were 11/12 passengers travelling by that bus and when it reached near Tarn, Jabba a passenger attacked Amir Badsbah (P. W.) and took away his pistol. When the bus travelled a little ahead the person who had deprived Amir Badshah of the pistol directed his companion to take control of the steering which the latter accordingly did. He then heard the reports of firing in the rear of the bus. On reaching Pabbi the bus was diverted towards Chirat. The robbers then started depriving the passengers of their belongings and he then was robbed of Rs. l I.
The bus was stopped on the road and the culprits then decamped. He had identified one of the accused who looted the passengers and the witness pointed out in Court Ghulam Qadir accused appellant to be that person. He had seen Ghulam Qadir accused when he was busy in relieving Amir Badsbah (P. W.) of his pistol. He had correctly identified Ghulam Qadir accused to be one of the robbers in the identification parade held at Charsadda. After the robbers decamped the bus was brought back to P. S. Pabbi by the driver.
13. Khalid Khan (P. W. 33) stated that during the days of occurrence he was employed in the Telegraph Office, Peshawar as Task Work Messenger.
On the day of occurrence he boarded the bus of Yousaf Travel at 3-30 a.m. At Peshawar in order to go to his village Batkhela. There were 7/8 other passengers in the bus and when it reached near Taru Jabba one of the passengers who happened to be a robber placed a pistol on the head of the driver and his companion unseated the driver and took control of the steering. He then heard the reports of firing and the bus was diverted towards Chirat and after covering some distance the robbers after depriving the passengers of their belongings alighted from the bus and disappeared in the darkness. He was robbed of a sum of Rs. 160 and that he was sure about the identity of one who had robbed him and had identified two of the robbers in the identification parade held by the Magistrate. The witness pointed out Bacha Said and Gbulam Qadir accused to be those whom he had identified in the identification parade.
14. Syed Abdul Wakil Shah (P. W. 25) Magistrate Ist Class, Charsadda, averred that on 8-5-1976 Ghulam Qadir and Islam Gut accused were produced in his Court for holding their identification parade. He held the same in his Court Room and the witnesses were summoned one by one to identify them. Amir Badshah, Khalid Khan and Zahir Shah (P. Ws.) correctly identified Ghulam Qadir accused to be the person who robbed them. However, all the witnesses could not identify Islam Gut accused. The memo. Regarding the identification parade Exh. P. B. Is at page 66 of the file.
15. Mohammad Akbar Khan (P. W. 26) Magistrate 1st Class, Peshawar, stated that on 6-5-1976 Ghulam Qadir accused was brought to him by the police for recording his confessional statement.
His handcuffs were removed and he was made to sit on the dais and after giving him sufficient time to ponder and after observing all the legal formalities he correctly recorded his confessional statement Exh. P. 2/1.
16. It will be in all fitness to reproduce the gist of the confessional statement of the accused appellant which is relevant for the disposal of this appeal. After stating how the four accused had met and planned to rob the passengers of the bus bound for Mingora, they boarded the bus at 3- 00 a. m. At Peshawar and when the bus reached Railway Station, Pabbi he and Bacha Said got up.
First of all he relieved a passenger who was sitting ahead of him of his pistol and Bacha Said commanded the bus driver to stop the bus who accordingly did. At that time he was armed with a pistol of 32 bore of Star Mark. Bacha Said took the control of the bus and sat at the steering and started driving the same towards village Saleh Khan. The passengers of the bus started raising hue and cry and on this Izzat Muhammad accused started firing at the passengers of the bus. He asked Izzat Muhammad accused not to fire. On the way reaching an ascent he asked Bacha Said to stop the bus which he accordingly did and simultaneously a passenger jumped from the bus and started running. Islam Gut and Izzat Muhammad accused also jumped down from the bus after that person and Izzat Muhammad accused fired two shots at the passenger, who was running and the three of them disappeared. He then asked Bacha Said to leave the place and told him that some of the passengers got injured with the fire shots and were dead. He and Bacha Said also then left the bus and went away. Near village Momin Dheri he and Bacha Said crossed the river in a boat and on the other bank saw Islam Gut accused sitting there. He asked Islam Gut about the robbed money, who informed him that he had two wrist-watches and some money and had given a wrist- watch to Izzat Muhammad accused who had gone away. Three of them then sat there and be also produced the pistol and Rs. 13 which he bad robbed from the passengers. Likewise Islam Gut also produced some robbed goods. They divided the booty and each one of them got a sum of Rs. 40 and a wrist-watch. The pistol which he had taken from the passenger was retained by him. He went to his village where in the evening Bacha Said and Islam Gut accused also reached. They spent the night in the village. The following morning they assessed the price of the robbed pistol to be Rs. 1,300 and as such he paid Rs. 430 each to Bacha Said and Islam Gut and kept the pistol. Later on be sold the robbed pistol to a person by the name of Khan Said of village Harichand.
17. Abdullah Jan F. C. (P. W. 30) accompanied the dead bodies of the two deceased to the mortuary and from there brought back the clothes of the two deceased and produced these to the I. O. Who took the same into posses--sion vide memo. Exh. P. B.
18. Syed Tajammul Shah (P. W. 32) S. I. Stated that during the days of occurrence be was S. H. O., P. S. Pabbi when on 29-2-76 at 6-00 a.m. Gut Rehman (P. W.) brought the dead bodies of the two deceased in a bus to the police station and lodged the report Exh. P. A. Which was read over to him, who after admitting the same to be correct thumb-impressed it. He after preparing the injury sheets and the inquest reports of the two deceased sent the same under the escort of Abdullah Jan (P. W.) F. C. To the mortuary. On search of the bus and from its inside he collected blood and two empties Exh. P. 5 of .32 bore smelling of fresh discharge and sealed the blood and the empties in a parcel vide memo. Exh. P. F. He also correctly prepared the site plan Exh. P. C. At the instance of Gut Rehman and other (P. Ws.) Abdullah Jan F. C. Brought back from the hospital the clothes of the deceased which he took into possession vide memo. Exh. P. B.
19. The learned counsel for the appellant attacked the judgment under appeal on three-fold ground. Firstly he contended that there was no reliable evidence to connect the accused appellant with the crime. About the confession he maintained that the same was retracted and there is no corroboration of the same from any quarter and that the identification parade of the accused appellant was held in such circumstances that the witnesses who identified him had the opportunity to see him prior to the identification parade ; that the three witnesses, namely Amir Badshah, Zahir Shah and Khalid Khan, are tutored witnesses and they have not deposed the whole truth ; and that according to the evidence of Gut Rehman (P. W. 17) the two of the culprits who put pistols on his head and bad asked him to vacate the driver seat had muffled their faces and he had not identified them. As such the evidence to the effect that the witnesses had identified the accused appellant could not be relied. Secondly that it is in the evidence that the accused appellant did not fire at any of the two deceased and had no common intention with the co- accused who had committed the murders and as such is not vicariously liable for the offence under section 302/34, P. P. C. And lastly he urged that even if the charge of murders is proved against the appellant the sentence of death is not warranted in the case as the accused appellant was held construc--tively liable for the murders.
20. Taking up the first contention first, we are of the view that the same has no substance. Three of the passengers namely Amir Badshah (P. W. 27), Zahir Shah (P. W. 28) and Khalid Khan (P. W. 33) have in an unequivocal manner deposed against the accused appellant to be one of the robbers who deprived them of their belongings. All the three for all intents) and purposes are independent witnesses. Nothing has been brought on~ the record to show that they bad any animus against the accused appellant/ or any other reason to implicate him in the crime. According to the evidence the inside of the bus was as is usual, illuminated by which they could identify him. Even otherwise as regards Amir Badshah (P. W. 27) he was the person who was sitting beside the appellant and it was the appellant who deprived him of his licensed pistol. This pistol was later on recovered from one Khan Said to whom the accused appellant had sold the same. This witness had all the time and the opportunity to observe the accused appellant. The evidence of the three witnesses implicating the accused appellant inspires confidence and is consistent. The confession Exh. P. Z./1 of the accused appellant was recorded by Mr. Mohammad Akbar Khan (P. W.) Magistrate 1st Class, who testified about its voluntariness, though retracted, it stands) corroborated, firstly by the evidence of the three eye-witnesses; secondly according to the confession the robbed pistol of Amir Badshah (P. W. 27)1 was sold by the appellant to Khan Said and about its recovery from Khan Said there are the statements of Misri Khan (P. W. 4) F. C. And Mohammad Tahir (P. W. 13) S. I., who both have stated that pistol Exh. P. 13 was produced by Khan Said and the recovery memo. Exh. P. O.
Dated 8-5-197 verifies the fact. Khan Said was also cited as prosecution witness but had to be abandoned as he was not traceable and his attendance could not be B procured. The recovery of the pistol which is licensed in the name of Amir Badshah (P. W. 27) goes a long way to furnish a substantial reliable corroboration of the confession Exh. P. Z./1 of the accused-appellant. The objection about the identification parade also holds no water. The witnesses have stated that they had no opportunity to see the accused prior to the holding of the identification parade. Had it been so then they would have also identified Islam Gut accused who was also arrayed in the same identification parade. Its being held in a proper manner is confirmed by Syed Abdu Wakil Shah (P.
W. 25) Magistrate Ist Class. Admittedly Gut Rehman (P. W.) was driving the bus and facing the road.
Even if we accept his statement that when the two assailants went close to him at that time they had muffled their faces, would pot in any way shelve the depositions of Amir Badshah (P. W.) and the two others. The accused appellant was sitting beside Amir Badshah (P. W.) who saw him loading the pistol, both of them travelled together from Pesbawat till the scene of occurrence and in these circumstances it is but natural' that he (Amir Badshah P. W.) and the others, who were seated in the bus, did observe him. Moreover, no suggestion has even been put to any of the three witnesses who stated that they had identified the accused appellant as to whether he bad covered his face. In this part of the country and at that odd hour of the night, the occupants of they bus, particularly the driver and the cleaner, would not have allowed any passenger to sit in the bus with the muffled face as this would immediately arouse their suspicion about the bona fide of the passenger.
21. Arguing the second point that as the accused appellant bad not taken part in the commission of murders, he cannot be held liable constructively under section 302/34, P. P. C. The learned counsel relied on two reported cases, one of Rahmtullah v. The State. (PLD 1963 Kar. 745), and the second Saadat Mian v. The State (PLD 1963 Kar. 745). In the first cited authority from Lahore, three persons R, D & B entered a house for the purpose of committing theft and in the course of the commission of this offence, R, who had a revolver with him killed the person in whose house they had entered for committing theft. At the trial it turned an approver. The stolen property was recovered from D, and both R and D were charged and convicted under sections 302/34 and 325/34 of the Penal Code. No charge, however, was framed against D in regard to theft or robbery of the stolen property recovered from him, nor was there any evidence against him that he knew that R had a revolver with him. In the circumstances, their Lordships were pleased to hold that even if D was present at the material time, he could not be convicted under section 302/38, P. P. C., because of the three, only R was armed with the revovler, and there was no evidence to show that it had been mutually agreed between them that that revolver would be used to kill any person who resisted them, and in the absence of any evidence from which it could be inferred that the three accused had a common intention, formed prior to the occurrence, to use the revolver if resisted, the common intention which could be safely attributed to them was, at the worst, the intention to commit robbery with the added knowledge that murder was a crime which was likely to be committed in the prosecution of their common object.
It has been observed time and again by the superior Courts that strictly speaking there are no precedents in criminal matters, each case has to be decid--ed on its own facts, and even the general principles of law have to be construed and applied, taking in view the facts of a particular case. The authority cited from the Lahore jurisdiction to some extent supports the contention of the learned counsel for the appellant. But there are on facts distinguishable features of that case from the one in hand. There the accused had gone to commit theft which is always done in a surreptitious manner and the co-accused had not the knowledge that one of them was carrying a pistol. In the instant case, it is evident that all the accused were armed with fire-arms and they intended to rob the passengers of the bus on the highway, the natural consequence of which could have been foreseen in case anyone of them was resisted in the execution of the agreed plan. The cited judgment from Lahore was considered in a similar case, Rasool Bakhsh v. The State (PLD 1970 SC 316), and it was distinguished. At pages 321 and 322 their Lordships were pleased to observe as follows: - "There is no doubt that to bring a case within the ambit of section 34, P. P. C. It is necessary that some overt act or acts must be established to lead to the inference that the participators in the crime acted in pre-concert or under some pre-arranged plan but this does not mean that every participant in the crime must be shown to have committed the same kind of act. It is sufficient to show that they joined together in the commission of a particular act, for, then they must all be deemed to have intended the natural and inevitable consequences of that act even if some of them did nothing but merely helped by their presence in the commission of the act. It is in this sense that the Privy Council in Barendra Kumar Gosh's case observed that "even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things, they also serve who only stand and wait". The question thus resolves itself into this, namely, as to whether the person sought to be made constructively liable did do anything with an intention to cooperate in the offence, if so, he is liable.
PLD 1964 SC 81), their Lordships of the Supreme Court found the accused guilty of murder who had only entered the house alongwith his co-accused to commit robbery and during the course of that his co-accused committed the murder. At pages 84 and 85, it was observed "The principal question that arises in the case of Abdul Jabbar is whether the High Court were right in holding that Abdul Jabbar was also guilty of the murder of Pershotamadas. On a careful consideration of the evidence on record we see no ground to differ from the appraisal of that evidence by the High Court. Both Mitho and Abdul Jabbar were armed with deadly weapons, ostensibly to commit robbery in the house of Pershotamadas. The nature of the weapons carried by thern would legitimately lead to the inference that they were prepared to use them if resisted in their adventure. Mitho actually stabbed the deceased fatally when he was thwarted in his purpose.
Simultaneously, Abdul Jabbar held off the other inmates of the house by pointing a pistol at them and sought to suppress their effort to seek assistance from outside. This was a sufficient indication that Abdul Jabbar associated himself with the act of murder committed by his co-accused Mitho and it follows that he shared a common intention with him as far as the killing of Pershotamadas was concerned. Section 34, P. P. C. Was attracted to the case and the conviction of Abdul Jabbar under section 302 read with section 34, P. P. C. Does not therefore appear to us to be open to exception."
When four persons armed with fire-arms join together for committing robbery we may presume that the intention of the four is to use the weapons should the necessity arise, and it could be postulated that the act of shooting of the two accused was committed in furtherance of the common intention of all the four, and in such a case, it is not necessary in order to bring into play section 34, P. P. C. To establish that there was the pre-arranged plan for the murders of the victims in the course of committing the offence of robbery.
22. The last contention of the learned counsel about the quantum of sentence is too devoid of any force. The evidence on record would show that the accused appellant had played a prominent role in the whole tragedy. F He was the first to take the initiative by disarming Amir Badshah (P. W. 27) and relieving him of his pistol, and as such the penalty of death, which is the normal sentence for murder, there being of two young men in the instant, case, requires no interference. Consequently for what has been observed here before, the appeal is dismissed. The sentence of death of Ghulam Qadir accused appellant is confirmed on two counts and the murder references is answered accordingly.