1. ' TANVIR AHMED KHAN, J.---This appeal with leave of the Court is directed against the judgment dated 19-10-1998 of a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby Criminal Appeal No,39 of 1994 filed by the present appellant Muhammad Sharif and his co-accused Muhammad Hanif was dismissed to the extent of the appellant by confirming his death sentence, whereas the same in respect of Muhammad Hanif was accepted.
2. ' The facts briefly stated are that F.I.R. No, 138 of 1990 was got recorded on 9-7-1990 at 12-50 noon at Police Station Rojhan, District Rajanpur, under sections 302/148/149, P.P.C. At the instance of Bakhat Ali (P.W.7) for an occurrence stated to have taken place on the same day at 12-00 noon respecting the murders of Murad and Manghar, both his real brother, and injuries to Sanaullah, Taxi Driver. It was his case that he alongwith his brother Muhammad Murad and Manghar, and uncle Umeed left for Kashmore on 9-7-1990 in early hours of the morning and got a taxi cab bearing No,255- 588/86/87 Karachi hired in order to attend a criminal case registered under Arms Ordinance against said Murad and Manghar before a Magistrate of Rojhan. While they were returning to their houses after attending the Court, on Rojhan-Kashmore Road at about 12-00 noon when they reached near Railway Station Wali Mazari in the vicinity of Mauza Kin, the taxi was being driven at a slow speed because of repairs carried to the metalled road. All of a sudden the appellant alongwith his. Co-accused emerged there armed with lethal weapons behind the Beem trees and started firing which hit the wind screen of the car and caused injuries to Sanaullah driver. Murad alighted from the car and started running when fire opened from the back by Sajan co-accused with his gun hit him on his back resulting in serious injuries upon which he fell on the ground. The complainant as well as Umeed Ali P.W. Came out of the car and started beseeching the accused to spare them. Manghar came out of the car and he was inflicted hatchet blows by the present appellant one after the other which hit him on his face, head and fingers of the right hand.
3. Manghar, in an injured condition, fell on the ground. Co-accused Sohna fired with his pistol at Manghar hitting him on his right shoulder. In the meantime, Sanaullah taxi driver in an injured condition took the taxi to Kashmore. The appellant Muhammad Sharif removed the head of Murad from his body by his hatchet and then all the accused decamped from the place of occurrence.
4. Aforesaid Murad and Manghar, both brothers of the complainant, succumbed to their injuries at the spot.
5. ' The motive for the occurrence as disclosed in the F.I.R. Was the murder of Nathu, father of the present appellant, three years prior to the present incident committed by the tribe members of the complainant and in order to avenge the same the appellant with his co-accused had done to death Murad and Manghar and caused injuries to Sanaullah, taxi driver.
6. ' After usual investigation challan against the appellant and his three co-accused was submitted in the Court while one of the co-accused namely Sajan was declared a proclaimed offender after fulfilling the legal formalities. The prosecution examined as many as 16 witnesses in order to establish its case. When the appellant and his co-accused were examined under section 342, Cr.P.C. They denied their participation in the offence and pleaded that they had been roped in due to enmity with the complainant party.
7. ' The learned Additional Sessions Judge, Rajanpur, after evaluating the evidence brought on record by the parties, through his judgment dated 28-2-1994 convicted the appellant and his co-accused Muhammad Hanif under section 302/34, P.P.C. And sentenced the former to death while the latter was awarded imprisonment for life. They were also directed to pay a fine of Rs,5,000 each or in default to undergo six months' R.I. They were further ordered to pay compensation to the tune of Rs,10,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was extended to Muhammad Hanif convict. Rest of the two co-accused were given the benefit of doubt and acquitted.
8. ' The appellant alongwith his co-convict Muhammad Hanif preferred Criminal Appeal No,39 of 1994 in the Lahore High Court, Multan Bench, Multan. Murder Reference No,59 of 1994 was forwarded by the trial Judge to the High Court for confirmation or otherwise of the death sentence imposed upon the present appellant. A learned Division Bench of the High Court through the impugned judgment dated 19-10-1998 dismissed the appeal to the extent of present appellant, whereas the same in respect of Muhammad Hanif convict was accepted and he was accordingly acquitted of the charge. Hence this appeal with leave of the Court.
9. ' It is argued by the learned counsel for the. Appellant that the eyewitnesses had not established their presence at the place of occurrence as, according to him, their names were not mentioned in Column No,4 of the inquest report. He has also taken exception to the recovery of hatchet from the appellant and the motive. According to him, had the witnesses been present at the site of occurrence, they would also had met the same fate as that of the deceased but on the contrary, they did not receive a single injury. He has further made reference to the semi-digested food present in the small intestine of Manghar deceased, whereas according to the ocular account, both the deceased only took tea and biscuits in a hotel at Wagon Stand at Kashmore at about 7- 00 a.m. While the occurrence in present case had taken place at 12-00 noon.
10. ' Learned counsel appearing for the State has supported the impugned judgment stating that the appellant was attributed specific role with a promptly recorded as the occurrence in this case took place at 12-00 noon while the F.I.R. Was lodged at 12-50 noon. The ocular version, according to him, had been supported/substantiated through the recovery of incriminating weapon which was stained with human blood according to the report of the examiner and the medical evidence.
11. ' We have considered the respective arguments raised by the learned counsel for the parties and have examined the entire material placed on record carefully with their assistance. We have noticed that the prosecution produced 16 witnesses to establish its case. The ocular version has been narrated in its material particulars by the complainant Bakhat Ali (P.W.7) and Umeed Ali (P.W.8). The occurrence in this case took place at 12-00 noon on a Highway which was 100 kilometres away from the residence of the deceased and the witnesses. The F.I.R. Was lodged by 12-50 noon stating all the particulars by mentioning specific roles to the appellant and his co- accused as well as the names of the eye-witnesses. It is but natural that the complainant, being real brother of the deceased, would accompany them to the Court of Magistrate at Rojhan where they were facing trial under the Arms Ordinance, particularly so when it had come on record that there was blood feud existing between the members of the tribe. Had the witnesses not been present at the spot their names could not have been incorporated in a promptly recorded F.I.R. 100 Kilometres away from the residence? At the cost of repetition it may be stated that the fateful incident occurred at 12-00 noon at Kashmore 100 kilometres away from the residence of the complainant side while F.I.R. Was got recorded with specific roles alongwith names of the appellant, his accomplices and the witnesses at 12-50 noon the same day. The eye-witnesses had established their presence at the place of occurrence through unimpeachable and trustworthy evidence and their depositions could not be discarded simply on the ground that their names were not mentioned in Column No,4 of the inquest report which only pertained to the names of persons who identified the dead bodies. It is worthmentioning that in the above column the names of other two close relatives were mentioned. The witnesses had clearly deposed that the appellant Muhammad Sharif gave 2 and 3 strokes of hatchet on the neck of Murad deceased and removed his head. Umeed Ali (P.W.8) had fully corroborated the stance taken by the complainant. The recovery of hatchet at the behest of the appellant stood fully established on record which was found to be stained with human blood.
12. ' The next argument of the learned counsel for the appellant that had Bakhat Ali (P.W.7) been present on the spot there was no occasion of the appellant to spare him, does not hold water. It is brought on record that there was tribal feud between the parties and by killing two brothers of an opposite tribe for the murder of appellant's father would certainly satisfy the feeling nourished/entertained by the appellant against the said tribe. The learned Division Bench has dealt with this issue in the following manner:-- ' "We are not oblivious to the proclivity of the tribes inhabiting the particular area from where the parties belong. The tribal feuds are common phenomenon in this belt which borders with Balochistan Province. Murder of a person of one tribe is considered to be a matter of personal vengeance to the whole tribe and usually leads to a blood feud between the respective tribes, therefore, in order to take revenge it is not necessary to kill particular assailants who are responsible for the murder. It would be considered to be sufficiently avenged if some one from the opposite tribe is killed. Therefore, the absence of direct connection or relation of the murderer of Nathu to the deceased of the present case pales into insignificance. The motive advanced by the prosecution in the present case stands sufficiently proved."
13. The next ground urged by the learned counsel for the appellant that apart from related witnesses no independent witness was produced by the prosecution is totally inapt in the circumstances of the case in hand. It has C come in evidence that occurrence had taken place on a Highway which was not surrounded by residential houses. On this very score the plea advanced by the learned counsel has got no value.
14. ' Learned counsel for the appellant has also argued that as per statement of P.W.15, Dr. Nasir Ahmed Khan, Medical Superintendent, T.H.Q. Hospital, Jampur, who had conducted autopsy on the dead bodies deposed that Manghar deceased had semi-digested food in his small intestines while, according to Bakhat Ali (P.W.7), they took tea and biscuit at 7-00 a.m. At a hotel at Kashmore on the fateful day. According to the learned counsel since the occurrence had taken place at 12-00 noon, there would not have been semi-digested food present in the small intestines of Manghar deceased after such delay. We are sorry to hold that this plea would not be of any assistance to the appellant as no question qua Manghar deceased that what type of food did he consume was put at the trial. Even otherwise, the other deceased Murad's stomach as well as his small intestines were almost empty as per medical report. In this view of the matter when it had not been specifically brought on record what type of food Manghar deceased consumed or whether he had taken anything subsequently, the above plea is devoid of any force.
15. ' Resultantly, keeping in view the promptly lodged F.I.R. Of a broad-I daylight occurrence with specific role assigned to the appellant and the medical evidence, which is completely in line with the ocular version as well as recovery of incriminating weapon, amply supports the case of the prosecution. The instant appeal being without any merit is, accordingly, dismissed.