' DEEDAR HUSSAIN SHAH, J.---This appeal by leave of the Court is directed against the judgment, dated 6-1-1997, of the High Court of Balochistan, Quetta, passed in Murder Reference No,6 of 1996, Criminal Appeal No,77 of 1996 and Criminal Miscellaneous Quashment No,14 of 1996).
2. Briefly stated the facts of the case are that Zarak Khan complainant (P.W.1) lodged an F.I.R. On 10- 2-1991 alleging therein that a murderous attack was launched with Kalashnikov by Haji Muhammad Shafiq appellant alongwith his co-accused (absconders) at a place known as "barri", resultantly Sardar Faqir Muhammad, Muhammad Ayub, Mussa and Muhammad Ali died while Dr. Muhammad Shafique received serious injuries. Co-accused Abdul Jalil was also killed as a result of firing made by Mussa Jan. After the incident Abdul Razzaq and certain other persons caste Nasar including Dost Muhammad, Faiz Muhammad, Noor Muhammad, Muhammad Mar Jan, Sher Gul, Muhammad Ayub, Sardar, Yousaf, Muhammad Usman Rasheed, Tore, Haji Lalo and Mehrab managed their escape towards Quetta in a blue colour Toyota Pick-up No,LIT-5469. A case was accordingly registered under sections 302/324/109/34 and section 120-B, P.P.C. Against Haji Muhammad Shafiq appellant and other co-accused.
3. On 2-6-1994 charge was framed by the learned Special Court for Speedy Trial, to which the appellant pleaded not guilty and claimed trial. In support of its case the prosecution produced Zarak Khan P.W.1, Dr. Muhammad Shafique P.W.2, Para Din P.W.3, Ahmed Jan P.W.4, Dr. Muhammad Azeem P.W.5, Dr. Muhammad Amin Malghani P.W.6, Salamuddin P.W.7, Nazir P.W.8, Dr. Muhammad Amin Mengal P.W.9, Qadam Jan P.W.10, Abdullah Khan P.W.11, Baz Muhammad P.W.12, Malik Abdul Majeed/I.O. P.W.13 and Zafar Masood P.W.14. The statement of Haji Muhammad Shafique appellant was got recorded under section 342, Cr.P.C. He also got recorded his statement on oath under section 340(2), Cr.P.C. Wherein he denied the allegations. In his defence the accused-appellant produced Muhammad Anwar D.W.1, Tamoor Shah D.W.2, Bolan D.W.3, Najam-ul-Islam D.W.4, Naik Muhammad D.W.5, Shareen Khan D.W.6, Muhammad Azam D.W.7, Obaidullah D.W.8 and Capt.
(Retd.) Atta Muhammad D.W.9.
4. After completion of evidence, Ordinance III of 1994 was promulgated whereby Special Courts for Speedy Trials Act, 1992 was repealed, and the case was transferred to the Court of the learned Sessions Judge, Quetta for trial, who vide his judgment dated 2-5-1996 convicted the appellant under section 302, P.P.C. And sentenced him to death. Under section 324, P.P.C. The appellant was convicted and sentenced to 3 years' R.I. Plus fine of Rs,10,000 or in default of payment of fine to suffer S.I. For 6 months and under section 337-F(v), P.P.C. He was also directed to pay Daman amounting to Rs,10,000 and suffer R.I. For 2 years.
5. Kh. Sultan .Ahmed, learned counsel for the appellant at the very outset of his arguments submitted that in the circumstances of the case it can be presumed that it was a free fight between the parties and the appellant may have committed the crime by exercising his right of private defence, inasmuch as in this case levies people were not examined by the prosecution though an application was moved before the trial Court. Furthermore he pointed out that in view of the tribal feud between the parties the case is not fit for the capital punishment and the sentence may very kindly be modified from death to imprisonment for life.
6. Mr. M.Zafar, learned counsel for the complainant, submitted that the learned counsel for the appellant has not agitated in his arguments that the Courts below have not properly appreciated the evidence and merely has confined his, arguments that keeping in view the tribal feud between the parties the appellant's sentence May be modified.
7. Raja Abdul Ghafoor, learned counsel for the State submitted that the Courts below have properly appreciated the evidence and the learned counsel for the appellant has not pointed out any misreading or non-reading of the evidence by the Courts below.
8. We have considered the arguments of the learned counsel for the parties and have also perused the impugned judgments. The appellant was arrested having received injuries in the incident with kalashnikov in his hand, which was sent to the Ballistic Expert, whose report shows that the empties were matched with the kalashnikov recovered from the possession of the appellant. According to the prosecution case motive was available to the appellant for commission of the crime. Four persons were done to death in a very brutal mariner. The learned trial Court as well as the,learned High Court considered all the aspects of the case and delivered the judgments. It would be pertinent to reproduce below para. 13 of the judgment of the learned High Court:-- "13. We have carefully examined the evidence as led by the defence. The statement of accused was got recorded under section 342, Cr.P.C. A thorough examination of his statement would reveal that he admitted the nomination of Muhammad Ayub, Mussa Jan, Dur Muhammad, Sardar Faqir Muhammad and Muhammad Rafique for the alleged commission of murder of his son (Answer to Question No,2). He also admitted to be in White-coloured Pajero No,242-403 Model 86-87 alongwith Abdul Jalil Naser on the day of incident (Answer to Question No,4). He also admitted that he had crossed the official vehicles in which Dur Muhammad Tareen was sitting and which was being driven by Dr. Shafique (Answer to Question No,5). He further admitted that he was armed with his licensed kalashnikov (Answer to Question No,6). He also admitted the crossing of official vehicle, Pick-up No,PN-2922 (Answer to Question No,8). He admitted the turn of Pajero due to frozen water and snow (Answer to Question No,9). He admitted that death of Abdul Jalil Nasar accused due to firing of Musa Jan (Answer to Question No,13). He admitted injuries on his left hand and hip- joint during the alleged incident (Answer to Question No,15). He also admitted his arrest from Nalia (Answer to Question No,16 read with Answer to Question No,19). He also admitted the recovery of licensed Rifle with explanation that it was handed over to Levies at his own (Answer to Question No,17). He also admitted that Pajero was taken into possession (Answer to Question No,25). He admitted the ownership of kalashnikov but stated that it was falsely shown to be recovered from near the dead body of Musa Jan (Answer to Question No,26). On the basis of his admission it can be safely inferred that he did not dispute his presence at the spot, recovery of Rifle, death of Abdul Jalil Nasar, crossing of official Pick-up, turn of Pajero and happening of the incident. We have also examined his statement got recorded on oath. There are material contradictions in-between his statements got recorded under section 342, Cr.P.C. And 340(2), Cr.P.C. It is worth while to mention here that in his statement on oath he mentioned that he had neither seen nor crossed the vehicles of Tareen while leaving from Dukki but on the contrary while answering the Question No,5 of his statement recorded under section 342(2), Cr.P.C. He mentioned that he had crossed the official vehicle which was driven by Dr. Muhammad Shafique and also seen by Dur Muhammad Tareen. It is also to be noted that in his statement on oath he admitted that he gave signal to the Pick-up with his hand as well as with indicators to cross his vehicle. He also admitted the signal of double indicator but in the statement got recorded under section 342, Cr.P.C. While answering Question No,10 he denied that any signal was given. It is also to be noted that besides the contradictory pleas as taken by him his behaviour was not in accordance with human nature as on the one hand he crossed the vehicle of his enemies and on the other he himself took turn and gave signal to the vehicle of his enemies. In our view the strategy as adopted by the convict/appellant is unbelievable. It is also to be noted that he could not produce his licence for kalashnikov till his statement on oath was got recorded and even it was got registered after incident. The 1.0. Has made it abundant clear that at the time of incident kalashnikov licence was not produced and resultantly a case was got registered under section 13-E, Arms Ordinance. He could not mention certain details about the licence of kalashnikov and could not mention even the date when it was handed over to him and by whom. He also admitted the ownership of Regzine Bag (Article 8) which was given to him by the Haj Authorities. It is an admitted feature of the case that the place of incident is not a thickly populated area and it hardly makes any difference if the inhabitants were Nasar's or Tareen's. The plea of application of brakes at the turn/curve is also not believable as usually no one drives fast in curvy mountainous areas and it has also come on record that it was sunny day, the road was clean and there was no snow fall, even for the sake of arguments if it is admitted that the Pajero skidded and took 'U' turn but there was no justification to on both the indicators to invite his enemies for attack. He could have managed his escape easily in the mountain to safe his life. The 'U' turn of Pajero in our view was deliberate and intentional. The recovery of kalashnikov was also criticised on the ground that it was allegedly recovered from near the dead body of Musa Jan. Whatever may be the case this kalashnikov was admittedly used in the commission of alleged offence and its ownership was never denied, we may make it clear here at this juncture that possession does not mean physical possession. It is well-settled by now that the word "possession" connotes actual holding or occupancy; visible power of exercising such control as attach to lawful ownership. Possession can be feasible or actual as well as interruptive because it can be visible as well as invisible. It is invisible when the possession stands far away from the object which he possesses but is able to prevent encroachment on it, if and when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation. Possession in its primary sense is the visible possibility of exercising control over a thing coupled with the intention of doing so."
9. The above discussion shows that during trial proper questions were put to the appellant and answers were also correctly recorded. In view of the facts, circumstances and evidence, we find that the contentions of the learned counsel for the appellant for modifying the sentence on account of tribal blood feud between the parties and the possibility that the appellant may have exercised his right of self-defence are not tenable. The learned trial Court as well as the learned High Court have held that the defence plea was fabricated, self-contradictory and was also afterthought, which was rightly disbelieved.
10. Thorough and detailed scrutiny of the evidence shows that it was a pre-planned, well-thought and premeditated attack initiated by the appellant and his companions, therefore, he could not be absolved from the criminal liability on the ground that there was no common intention. The prosecution has proved its case beyond shadow of doubt, as the appellant and his companions followed the convoy, crossed official vehicles, took deliberate 'U' turn and opened indiscriminate firing with kalashnikovs which resulted into the death of Sardar Faqir Muhammad, Muhammad Ayub, Musa and Muhammad Ali, whereas Dr. Muhammad Shafique sustained grievous injuries apart from that Abdul Jalil Nasar, the nephew of the appellant also died as a result of firing. The incident shows that brutal pre-planned murder of 4 persons had been committed and normal sentence for murder is death. We also do not find mitigating circumstances in favour of the appellant, therefore, the argument of the learned counsel for modification of the sentence cannot be considered.
11. Having carefully gone through the judgments of the trial Court, the High Court and record we find that the same are entirely based on proper appreciation of evidence and are also within the four corners of the principles laid down by this Court for safe administration of criminal justice.
12. For the foregoing reasons, we are not persuaded to agree with the contentions raised by the learned counsel for the appellant, which are repelled. Resultantly, this appeal is dismissed.