' ZAFAR PASHA CHAUDHARY, J.---Murder Reference No,235-T of 2000 as well as Criminal Appeal No, 426 of 2000 arise out of common Judgment, dated 13-3-2000 deliverd by Ch. Javed Iqbal, learned Special Judge under A.T.A. Sargodha, wherein, the accused-appellant Tahir Khan was sent to face trial in case F..I.R. No,173, dated 12-8-1998 registered with Police Station Mochh, District Mianwali. The learned trial Judge on conlcusion of the trial convicted and sentenced the appellant as under:-,
(i) Convicted under section 302, P.P.C. For the murder of Muhammad Amir and sentenced to death, also with a fine of Rs,50,000 in default whereof to further undergo R.I. For five years.
(ii) Convicted under section 302, P.P.C. For the murder of Atta Muhammad and sentenced to death, also with a fine of Rs,50,000 in default whereof to further undergo R.I. For five years.
(iii) Convicted under section 302, P.P.C. For the murder of Muhammad Naseer and sentenced to death, also with a fine of Rs,50,000 in-default whereof to further undergo R.I. For five years. The amounts of fine, if recovered, were orderd to be paid to the legal heirs of all the three deceased.
(iv) Convicted under section 7 of A.T.A. And sentenced to imprisonment for life, with a fine of Rs,50,000 in default whereof to further undergo five years' R.I.
2. The proceedings commenced against the appellant with the recording of the F.I.R. No,173 with Police Station Mochh, District Mianwali on 12-8-1998 at 9-00 a.m. With regard to the incident which took place on 11-8-1998 at .9-00 p.m. By that time two persons i,e, Muhamamd Amir and Atta Muhammad had been murder, whereas Muhammad Naseer received serious fire-arm injuries who was removed to the Civil Hospital, Mianwali. Muhammad Naseer also expired and succumbed to the injuries in the Hospital subsequently, therefore, charge for the murder of three persons was framed against the accused appellant Tahir Khan.
3. To start with the prosecution version, it would be pertinent to note that Ghulam Hussain son of Sher Muhammad lodged the report Exh.PZ which was transformed into formal F.I.R. And investigation was embarked upon thereafter. Statement was recorded by Ghulam Murtaza Inspector S.H.O. P.W.17. Ghulam Hussain complainant was not examined as a witness and was given up by the prosecution. The version given by him was, however, found to be incorrect as it was result of some misconception and as such was not adhered to. The version put forward by him in brief as recorded in Exh.PZ is that on 11.-8-1998 at about 9-00 p.m. He alongwith Ghulam Muhammad and Sultan Mehmood was sitting in his house. They heard the reports of gun fire and saw Ghulam Abbas armed with Klashnikov, Nazar Abbas armed with Klashnikov, Manzoor armed with fire-arm, Ghulam Hussan armed with Klashnikov, Ghulam Habib armed with Klashnikov and Sultan Ahmad armed with another fire-arm, started firing as a result of which Muhammad Amad and Atta Muhammad received injuries and died at the spot. Muhammad Naseer received serious injuries and was removed to Hospital. Thereafter, the accused persons fled away from the place of occurrence. The first informant was neither produced nor he appeared in Court in support of his version in Court, therefore, the same remained as unattested and unverified.
4. The prosecution case which in fact was found to be correct and stood proved before the Investigating Officer has been given in Exh.PU which is the. Dying Declaration of Muhammad Naseer son of Ghulam Muhammad, who received injuries at the spot and died subsequently in. Hospital This statement was recorded on 13-8-1998. It would be pertinent to refer to the statement of Dr. Azmat Ullah, Medical Officer P.W.14 who apart from holding autopsy of deceased Atta Muhammad and Muhammad Amir, proved the application Exh.PT by deposing in Court that on 12-8-1998 Le. On the very day of recording 'of the .F.I.R., application Exh.PT was moved before him making a query whether Muhammad Naseer deceased (injured at that time) was fit to make a statement or not.
After examining the injured a certificate Ddi.PT/1 contained at Exh.PT was issued, observing that patient was "unfit for statement" signed by the doctor. Then again on the next date i,e, 13-8-1998 another query was made from the Doctor as to whether Muhammad Naseer was fit to make a statement or not. It was certified vide endorsement Exh.PT/2 contained in Exh.PT itself, that Muhammad Nasir was 'fit for statement' on 13-8-1998 at 4-30 p.m.
5. The statement of Muhammad Naseer aged 35/36 years was recorded which is the primary evidence brought on record by the prosecution, the same is as under:-- "I am resident of Wandha Syed Muhammad Wala and am employed in WAPDA. On 11-8-1998 at about 9.30 or 10.00 p.m. I alongwith Atta Muhammad my brother (deceased), Muhammad Amir son of Ahmad (deceased) paternal cousin were coming back from the house of Syed Abdul Sattar Shah my cousin after enquiring about his health as he was suffering from fever. When. Atta Muhammad my brother reached in front of his Baithak in the street, Tahir Khan (convict/appellant) who is a proclaimed offender, armed with Klashnikov was standing by the side of wall. He raised a Lalkara that no one shall be spared. He simultaneously opened fire on Atta Muhammad, my brother, Muhammad Amir my paternal cousin and myself with his Klashnikov. Atta Muhammad and Muhammad Amir both were killed at the spot. I was also injured with his tiring. Thereafter, Tahir Khan fled away from the site by waiving his Klashnikov in the air. A short while thereafter, my relations carried me to Civil Hospital, Mianwali in Datson Pickup. I am under treatment in Mianwali Hospital. There is no one else as our accused except Tahir Khan son of Sana Khan." .6. This statement was thumb-marked by Muhammad Naseer. And was exhibited as Exh.PU in Court which was attested by the doctor Azmat Ullah P.W.14 at Exh.PU/1 and was also attested by the Investigating Officer Ghulam Murtaza Inspector P.W.17. Dr. Azmat Ullah P.W.14 when appeared in Court deposed that the statement was read over to Muhammad Naseer and he thumb marked the same which was attested by him by affixing his signatures at Exh.PU/1. The patient remained in his senses throughout making of his statement.
7. The prosecution version in net shell as was subsequently proved during trial is in fact the statement/dying declaration Exh.PU recorded on the statement of Muhammad Naseer who expired in the Hospital.
8. The investigation was taken up by Ghulam Murtaza, Inspector who after recording the statement of Ghulam Hussain proceeded to the place of occurrence and thereafter, performed the necessary formalities. He despatched the dead bodies for post-mortem examination. He also secured the blood-stained earth from the places where the two deceased and one injured had received the injuries. He also collected seven empties of Klashnikov Exh.P-9/l-7 which were secured vide memo.
Exh.PY. During investigation it was found that story narrated by Ghulam Hussain in Exh.PZ was in fact incorrect and was the result of some misconception. After recording the statement/dying declaration of Muhammad Naseer the deceased, the course of investigation got diverted and relevant evidence against Tahir Khan convict-appellant also came on record whereon he was found to be sole accused guilty for the murders of three deceased and was sent up to face trial in the Court of Ch. Javed lqbal, learned Special Judge, A.T.A. Sargodha, who as noted above on conclusion of the trial held him guilty and imposed the sentence.
9. The prosecution in support of its case examined seventeen witnesses, out of which Dr. Mehr Khan P.W.1 who had medically examined Muhammad Naseer aged 35/36 years, on 11-8-1998 at. 11-55 p.m. And noted the following injuries.
(1) An entry - . Wound of fire-arm projectile 1-1/2 x 1/2 on the outer side of right buttock. 7 c.m. Below the right enterior superior, illicac spine.
(2) An exit wound of tire-arm 2/3 x 2/3 on the posterio lateral aspect of the left buttock with bleeding. There were corresponding holes in the Shalwar.
' It would be pertinent to note that the injured was in a state of shock and the injuries sustained by him were kept under ottervatoin. During cross-examination the doctor, however, stated that patient did not desire to make any statement at the time of medical examination before 'him.
10. Dr. Arshad Mehmood P.W.12 conducted the post-mortem examination of Muhammad Naseer on 3-9-1998 at 10-30 a.m. And noted the following injuries:--
(1) Left sided clastamy seen.
(2) Left para medial laprotony incision or 10 c.m. Inside with nine stitches seen.
(3) Tracheostomy wound was seen in front of neck.
(4) Both buttocks had been opened by the Surgeon and were fully exposed.
(5) According to MLC a wound of firearm projectile 1/2 x 1/2 c.m. On the otuside of right buttock. 7 c.m. Below right enterio posterio illica spine.
(6) An exit wound according to MLC 2/3 c.m. x 2/3 c.m. On the posterial lateral aspect of left buttock but injuries Nos.5 and 6 were not visible due to surgical incision.
11 Dr. Azmat Ullah P.W.14 conducted the post-mortem examination of Atta Muhammad deceased and observed the following injuries:--
(1) An entry wound of fire-arm 1/2 x 1/2 c.m. On the back of right thigh, 20 c.m. Above the joint and 30 c.m. Blow the crest of hip bone. Edges were burnt and blackening was present around the wound.
(2) A wound of fire-arm 7 x 4 c.m. On the front of right thigh, 14 c.m. Above the knee and 20 c.m.
Below the enterior, superior, illica spine, ' The bullet was recovered from this wound. It was an exit wound.
(3) An entry wound of oblique 2 x 1 c.m. Of fire-arm on the outer side of left knee joint, - 40 c.m.
Above the ankle joint left side. Blackening was present and the edges were burnt.
(4) An exit wound of fire-arm 9 x 4 c.m. On the inner side of left thigh about 17 c.m. Below scrotum and 4 c.m. Above the knee joint.
' The death had been caused as a result of Injuries Nos.1 and 3 which were ante-mortem and sufficient to cause death in ordinary course of nature.
12. This doctor on the same day, also conducted the post-mortem examination of Muhammad Amir deceased and observed the following injuries on his dead body:---
(1) An entry wound of fire-arm 1/2 x 1/2 c.m. On the outer surface of left shoulder joint, 6 c.m. Below the tip of the left shoulder and 25 c.m. Above the left elbow joint. Edges were burnt and blackening.
(2) An entry wound of fire-arm 1 x 1 c.m. On the back of left shoulder, 10 c.m. Below the top of the shoulder and 10 c.m. From mid line. Edges were burnt.
(3) An exit wound of injury No,1, 11 x 4 c.m. On the right side of back, starting from mid line and 13 c.m.
Below the top of shoulder.
(4) An entry wound of fire-arm 1-1/2 c.m. x 1 c.m. On the left side of base of penis, 15 c.m. Below the umbilicus and 20 c.m. From the left enterior, superior illica spine.' Edges were burnt.
(5) An exit wound of injury No:4; 3 x 1 c.m. On the right side of base of penis, 18 c.m. Below the umblicicus and 22 c.m. From the right enterior, superior illiac spine. The same exit wound caused the entry wound from the inner side of right thigh 20 c.m. Below the umbilicus and final made the exit wound 2-1/2 x 1-1/2 c.m. On the lateral side of right thigh outerside about 18 c.m. Below the illica crest and 24 c.m. Above the knee joint.
(6) An entry wound of fire-arm 1/2 x 1/2 c.m. On the inner side of right thigh, 21 c.m. Above the knee joint. Edges were burnt and blackening.
(7) An exit wound of injury No,6, 3 x 2-1/2 c.m. On the outer side of right thigh, 20 c.m. Above the right knee joint.
(8) A fire-arm wound on the little finger of left hand which led to the fracutre of bone and the finger was hanging with the tag of skin.
' All the injuries were ante-mortem, had been caused with fire-arm and Injuries Nos.1, 2 and 4 were sufficient to cause death in ordinary course of nature.
13' This Doctor i,e, Dr. Azmat Ullah P.W.14 made the statement on 12-8-1998, reference to which has been made supra as well, that a query was made from him vide, Exh. PT regarding the , capability of Muhammad Naseer injured to make a statement and this witness vide Exh.PT/1 declared that patient was unfit for statement. Subsequently anyhow the patient was again examined by this doctor and vide his Certificate Exh.PT/2 he obseved that patient was fit to make a statement.
Exh.PT/2 had been signed by this witness which was proved by him in Court. The patient was examined by Ghulam Murtaza Inspector P. W.17. In his presence the statement Exh. PU was made which was read over to Muhammad Naseer injured at that time who accepting the same affixed his thum-impressions on it. The statement was duly attested by the doctor by affixing his signatures thereon. It was certified that Muhammad Naseer remained in senses during his statement' throughout. During the course of cross-examination in answer to question, the doctor explained that there was no relation of the deceased present when his statement was recorded in Ward.
14. Dr. Muhammad Saleem P.W.15 issued the Death Certificate on 2-9-1998 that Muhammad Naseer had expired in the Hospital at 8-00 a.m. The gun shot injury had shattered rectum causing septicimia and multi failure of organs. The cause of death was cardio pulmonary arrest. The death certificate Exh.PV was filed by him.
15.Amongst the remaining witnesses, the most relevant witnesses are Gul Muhammd P.W.16 who is an eye-witness of the occurrence and Zamurd Abbas P.W.13 who is witness of encounter which he.
Had with the accused just after the occurrence. According to Gul Muhammad P.W.16 he was present in his house and on hearing the reports of fire rushed towards the lane near the Baithak of Atta Muhammad where he saw Tahir Khan appellant present in Court, armed with Klashnikov behind the wall of Baithak of Atta Muhammad deceased. Due to fires made by Tahir accused, Atta 'Muhammad, Muhammad Amir and Muhammad Naseer were injured. Atta Muhammad and Muhammad Ameer died at the spot. Tahir Khan fled away after the occurrence. Ghulam Hussain the first informant reached the site of occurrence and removed Naseer to the Hospital. He, however, remained present with the dead bodies. The motive was stated to be that Tahir Khan appellant intended to take away Zamurd Abbas P.W. With him but Muhammad Naseer and Atta Muhammad forbade and prevented Zamurd Abbas not to accompany Tahir Khan accused due to which the appellant bore grudge against the deceased. This witness joined the investigation and the recoveries effected from the place of occurrence were attested by him. He was subjected to quite lengthy cross-examination. He stated that Ghulam Hussain (the first informant not produced) reached the spot two mintues after the occurrence and by that time Tahir Khan had already fled away. This tvitness made a statement to the police whereas Ghulam Hussain made a supplementary statement, wherein, +Le, according to hire, put up the true version. A straight question was put to this witness as to whether he was aware who were the accused Khan fled away after the occurrence. Ghulam Hussain the first informant reached the site of occurrence and removed Naseer to the Hospital. He, however, remained present with the dead bodies. The motive was stated to be that Tahir Khan appellant intended to take away Zamurd Abbas P.W. With him but Muhammad Naseer and Atta Muhammad forbade and prevented Zamurd Abbas not to accompany Tahir Khan accused due to which the appellant bore grudge against the deceased.
This witness joined the investigation and the recoveries effected from the place of occurrence were attested by him. He was subjected to quite lengthy cross-examination. He stated that Ghulam Hussain (the first informant not produced) reached the spot two mintues after the occurrence and by that time Tahir Khan had already fled away. This tightness made a statement to the police whereas Ghulam Hussain made a supplementary statement, wherein, +Le, according to hire, put up the true version. A straight question was put to this witness as to whether he was aware who were the accused who was cousin of his father Naseer. On 11-8-1998 at about 9-00 p.m. He alongwith Ghulam Abbas was present at a distance of about one Killa from his house. On hearing the reports of fires he (Zamtird Abbas) and Ghulam Abbas were attracted to the site of 'firing. They saw that Tahir Khan armed with Klashnikov passing by them, they enquired from him as to what was the firing about, on which he aimed his Klashnikov on them that he has already murdered three persons, therefore, he will kill them also. This witness went forward to the place of occurrence and found that Atta Muhammad and Muhammad Ameer were lying dead and his father was injured, who was despatched to the Mianwali hospital. This witness also stated about the motive that appellant wanted him to become his companion in' his errands for committing offences but the deceased persons forbade and stopped him from joining Tahir Khan accused appellant due to which the appellant nourished grudge against the deceased which culminated into their murders.
15. Ghulam Murtaza, Inspector P. W.17 arried out the investigation. He moved .1";" application Exh.PT for obtaining permission from the doctor and verification of the fitness of Muhammad Naseer injured to make a statement. He after obtaining Certificate Exh.PT/2 by the doctor proceeded to record statement of Naseer Exh. PU which was read over to the deceased and this witness attested the same by affixing his signatures. Detailed questions with regard to abscondence of the appellant were put to him, who had absconded after the occurrence and Muhammad Asian', Constable vide Exh.PF had obtained warrants of his arrest, subsequently vide Exh.PB proclamation under section 87, Cr.P.C. Was obtained from concerned Magistrate, Mianwali and "thereafter, appellant was declared as absconder. He was arrested about nine months after the occurrence on 17-5-1999 by a raiding party convened by D.S.P. CIA, of which this witness i,e, Ghulam Murtaza, Inspector was also a member. Various raids were conducted, whereafter, the appellant-was arrested alongwith Klashnikov, five magzines P-6/1-5 containing 125 live bullets P.7/1-125 containing a bandoleer P.8. The klashnikov and other articles were secured into possession vide memo. Exh.PA.
On completion of the investigation, as sufficient material and evidence had been collected, the appellant was sent up to face tial in the Court of Ch. Javed Iqbal, learned Special Judge A . T. A . , Sargodha.
18. The appellant was examined under section 342, Cr.P.C. Wherein he denied the allegations against him and in answer to Question No,8, he made the following reply:- "During the days of my ascension. In another case, Mst. Beebo came over to me as my beloved. She is the daughter of Muhammad Amir deceased. On interference of elders she was sent back to her parents. On that account the complainant party had animus against me and on that account I had been falsely implicated in this case. All the witnesses are family members of the deceased and due to his grudge they appeared against me. I am innocent."
' He did not produce any evidence in defence nor he opted to appear as his own witness.
19.. From the above description of facts and narration of incidence, the prosecution case rests upon the evidence of dying declaration Exh. PU and statement of Gul Muhammad and Zamurd Abbas P.W.16 and P. W.13 respectively. As described in brief all the three pieces of evidence are corroborative to each other on all material points. The learned counsel for the appellant has, however, assailed and challenged the conviction rather vigirously and advanced arguments. The main thrust of argument was of course with regard to the F.I.R. Exh. PZ which' had been recorded at the instance of Ghulam Hussain who is a close relation of the deceased. According to the learned counsel, it was ,not unconsidered or wanton statement made by Ghulam Hussain, rather he made the statement by giving the details of the incident and he specifically named four accused persons alongwith their respective weapons and they had been specifically attributed firearm injuries on the person of the deceased. According to the learned counsel, it was he Who removed the injured to Hospital. According to learned counsel Exh.PZ being the first version merits reliance and the subsequent version put forward by the witnesses and the deceased is doubtful and may not be relied upon; that in fact the occurrence took place at 9-00 p.m. When it was quite dark being late evening, therefore, it could not be ascertained as to who could be assailant. The prosecution version that accused appellant was one who had committed the murder could not have been identified at the place of occurrence; that had Gul Muhammad or Zamurd Abbas seen the occurrence or the appellant soon after the occurrence then they must have informed Ghulam Hussain and he would not have come forward with story as put forward in the F.I.R. It is, therefore, inferred that these two witnesses have not seen the occurrence; that although empties have been recovered from the place of occurrence but Klashnikov and the empties were not sent to the Forensic Science Laboratory for comparison and for getting the Klashnikov and empties examined together; that the dying declaration is not acceptable for the reason that no Magistrate was asked to superwise the statement made by Naseer deceased, therefore, in absence of any attestation by a Magistrate, statement recorded at the instance of Naseer deceased becomes doubtful and should be excluded from consideration.,
20. The learned counsel for the complainant and the State have fully supported the prosecution version. According to them, witnesses are truthful and the dying, declaration made by Naseer deceased was abolutely true and reliable, a perusal of the same inspires confidence. They therefore, have supported the conviction and sentence as awarad to the appellant.
21. The first contention with regard to non-production of Ghulam Hussain and the fact that first version contained in Exh.PZ is altogether different from the subsequent version. Brought on record, i,e, report under section 154, Cr.P.C. It is true that normally the first version given to the police by way of F.I.R. Is treated quite significant and importance is attached to it. However, it stands undisputedly settled that F.I.R. Is not a substantive piece of evidence. It can be used as previous statement of a witness and he can be confronted with the same if the first informant appears in Court and makes a statement. In absence of examination of maker of the F.I.R., same cannot be treated as a part of evidence. Apart from that legal hitch or technicality, an extremely credible evidence has come on record which negates and nullifies the story of Ghulam Hussain. Not only that Gul Muhammad P.W.16 has unequovocally stated on oath in Court that Ghulam Hussain reached the place of occurrence about 2/3 minutes after the incident and by that time Tahir Khan had fled away. It appears that as it has become a practice with the police or with the prosecution that efforts are made to obtain statements of close relations or some other person who in the opinion of the police would be acquainted with the facts of the case. If the first informant or the complainant appears to be undoubtedly present at the time of incident or had seen the occurrence then this statement or version would carry a substantive weight but if it transpires that the first informant had not seen the occurrence or had just acquired the knowledge from some unreliable source or his version was based on mere presumption or suspicion then the Investigating Agency as well as the Court should make all the just and fair attempts to dig out the truth and ascertain true facts. The F.I.R, after all cannot be equated with the plaint in a civil suit. It has been noticed in number of cases that F.I.R. Is regarded like a plaint and even if some erroneous information is laid down out of some confusion or misconception, the same is adhered to or is treated as substantive piece of evidence. Adverting to the facts and circumstances of the case in hand and not considering the F.I.R. In generality, an undeniable fact has come on record that Naseer deceased did not die at the spot and was removed to the Hospital in an injured condition. Obviously he was under a. Shock and distressed trauma when he was examined by the doctor. The doctor also described that patient was under a deep shock. Naseer being victim of the assault was one of the deceased person. He had definitely seen his assailant who mounted attack on him and his two companions who succumbed to the injuries at the spot. At the time of his medical examination by the doctor he (Naseer) was not fit to make a statement. The opinion of the doctor is supported by the gravity of injuries sustained by him which must be extremely painful. After receipt of some aid or medical treatment, the injured gained senses and he was in a better frame of mind and as such was certified to be capable of making a statement.
22. The statement Exh. PU is most credible and valuable piece of evidence brought on record. The doctor who examined the patient on first examination did not find him fit to make statement but subsequently he was found to be fit to make a statement. First query was made by the Investigating Officer and then the second query was made by him which indicate and suggest the efficiency and anxiety of the Investigating Officer to find out the truth as to who were the real culprits. This anxiety on the part of the Investigating Officer is indicative of the fact that he perhaps was not satisfied with the description of the accused persons in the F.I.R. When the statement of Naseer was recorded only the Investigating Officer and the doctor were present and no other witness or relation or any friend was present near the injured. Had that not been so, he perhaps would not have come forward with the statement as has been made by him. The very perusal of the statement . Reflects that same was made voluntarily. The injured, was under imminent danger of death. He was suffering from tremendous pain, in such a situation it appears not only improbable rather impossible that the injured would have made a false statement. According to him the attack was mounted and all the . Three victims including Naseer himself lost their lives, as a result of shots fired by Tahir Khan appellant. At the close of his statement, Naseer deceased was so firm and positive that he reiterated by pressing that Tahir Khan alone was the culprit and no one else was associating. With him. This sentence adds a lot to his credibility because no attempt was made to falsely implicate any innocent person. It is generally known that in District Mianwali where the occurrence took place enmities in between the various persons and factions are very common.
The deceased did not in any manner intend to pollute his statement with even a trace of , falsehood. A short and concise statement was made which was read over to him and on revivification it was attested by the doctor. A doctor to our mind is absolutely independent witness.
In the circumstances of the case, his credence or testimony cannot be doubted. His attestation as such is as authentic as that of any Judicial Magistrate. An explicit reliance can safely be placed on the testimony of Naseer deceased (Exh. PU) and there is no doubt that same in any manner lacks any of the ingredient of dying declaration. It is also settled law that if a dying declaration appears to be truthful and voluntary then conviction can be, based on this sole piece of evidence.
23. The dying declaration is supported by Gul Muhammad P.W.16 whose testimony cannot be undermined or doubted because he is also a natural witness. He resides within the vicinity of the place of occurrence and his attraction to the place of occurrence and having witnessed the same cannot be doubted. He has supported the statement dying declaration made by Naseer deceased, on all materail points. His statement is further supported by Zamurd P.W.13 who is son of one of the deceased and close relation of two other deceased. After his father had been murdered and two of his uncles also met the same fate, he could not have falsely implicated 'Tahir Khan appellant.
Assessing and analysing the intrinsic value of the dying declaration and the statements of the witnesses, fact that inspite of murder of, three persons no attempt has been made to implicate, anyone else other than Tahir Khan appellant, had there been any intention to falsely implicate any innocent person out of some vindictive purpose the same could have very conveniently been done by the witnesses; the fact that all the three murders have been attributed to appellant Tahir Khan alone, leave no doubt in mind that he is the actual culprit. 'The implication of Tahir Khan appellant further finds strength from his conduct. He after the occurrence fled away from the place of occurrence and could be arrested nine months after the incident. He was arrested while armed with Klashnikov and with heavy amount of ammunition carried by him. Although the learned counsel has contended that abscondence has not been proved and even if same is done, abscondence by itself cannot be treated as an incriminating evidence. The contention may contain some substance but the fact remains that abscondence in the present case does lend credible support to the prosecution case. The statements of the witnesses are supported by the medical evidence. All the three doctors have described the injuries on the person$ of dead had been caused with fire-arm as alleged by, the prosecution. This support by medical evidence is another reliable piece of evidence.
24. Although evidence with regard to motive has not been brought in detail yet the fact remains that two witnesses have stated on oath that appellant intended to associate Zamurd P.W.13 with him as a member of his gang. As he was prevented by his elders, all the three had been done to death. This motive not only proves the case of the prosecution, rather further specifies that how dangerous and desperate person the appellant is.
25. By taking all the aforesaid pieces of evidence together, we find that prosecution has proved the guilt of the appellant beyond any doubt. He has rightly been convicted under section 302, P.P.C. For the murders of three deceased. His conviction under section 302; P,P.C. On three counts is, therefore, upheld and maintained,
26. Although the learned counsel argued halfheartedly that it was a night occurrence and possibility cannot be ruled out that Tahir Khan may be accompanied by someone else as well, therefore, sentence of death may be converted to that for imprisonment for life. The contention does not contain any force. All the three murders stand proved to have been committed by Tahir Khan accused appellant, therefore; there is absolutely no extenuating or mitigating circumstance in his favour. The imposition' of death on all the three counts is fully justified which is upheld and maintained.
27. An error appears to have crept-in while recording the Judgment by the' learned trial Judge with regard to imposition of fine, as under section 302, P.P.C. No fine can be imposed, therefore, the same is set-aside. However, under section 544-A, Cr.P.C. The imposition' of .Fine of Rs,50,000 on three counts is converted into compensation after notice to the learned counsel for the appellant.
The appellant would, therefore, pay Rs,50,000 as compensation to the legal heirs of each three deceased. In absence of which, he will further suffer six months' S.I. On each of three counts.
28.. The conviction has been passed under section 7 of A.T.A. As well. The manner in which the occurrence took place and loss of three lives was caused does not leave any doubt that the appellant committed a terrorist act within the meaning of section. 6 of the Anti-Terrorism Act.
Therefore, his conviction and sentence under section 7, A.T.A. Is also upheld and maintained.
29. As- a result of above discussion, Criminal Appeal No,426 of 2000 on behalf of Tahir Khan accused appellant is dismissed.
' Murder Reference is answered in affirmative.
Sentence of death on three counts is confirmed.