MIAN BURHANUDDIN KHAN, J.-Akram Khan (50) and his two younger brothers, Anwar Khan (38) and Muhammad Ali (35) sons of Habib Khan, their nephew Ajmal Khan (25) son of Janan, resident of Lachi village, Police Station Lachi, District Kohat, stood their trial in the Court of learned Sessions Judge, Kohat, for the murders of Badshah Gul (45) son of Hakeem Gul and Shahzad Gul (40) son of Hazrat Gul, residents of Lachi Bala, committed in furtherance of their common intention by firing at the two deceased on the 30th of March 1975, at about 5 a.m. In the graveyard of Lachi village, at a distance of two furlongs from P. S. Lachi. They were found guilty of the murder of Badshah Gul, deceased, and sentenced to imprison--ment for life each and a fine of Rs. 5,000 each, payable to the heirs of Badshah Gul, deceased, as compensation under section 544-A, Cr. P. C. In default, the accused were to suffer further six months' R. I., vide judgment of the learned Sessions Judge, Kohat dated 29-6-1977.
2. All the four convicts have come up on appeal to this Court against their conviction and sentences.
3. The prosecution case rests on the F. I. R. Lodged by Badshah Gul, deceased on the same day in Police Station, Lachi at 6 a.m., which is to the following effect: That at 5 a.m. He alone with his `tarboor' Shahzad Gul were driving their camels for fetching `Bajra' crops from a place known as "Sanda Khuram". When they reached near the graveyard of the village Akram Khan Anwar Khan, and Muhammad Ali, appellants, sons of Habib and Ajmal Khan son of Janan, their co-villagers, got up from the graveyard duly armed and started firing at them.
With these shots, Badshah Gul was hit on the right hand, leg and left shoulder. But he was not sure whether Shahzad Gul was hit with these shots or not. He, however, ran away from the spot; that after the firing the four appellants decamped that the occurrence was witnessed by Shahzad Gul.
According to this report, enmity between Shahzad Gul and Muhammad Ali appellant existed over a vacant site in the `shamilat' of the village and that a day prior to the occurrence the parties were challaned for security proceedings.
4. The above report was recorded by Jehan Khan, S. H. O., whose statement has been transferred to the Sessions file as the witness was since dead at the time of trial.
5. At the trial, the prosecution examined Dr. Kausar Ali Shah P. W. 1 who conducted P. M. Examination on the dead body of Shahzad Gul (35/40) son of Hazrat Gul at 11 a. m. On 30-3-1975, and found the following injuries on external examination:
(1) One lacerated wound on the left forearm 3--- x 2--- in size.
(2) One incised wound on the right cheek 2--- x 1--- in size.
(3) One lacerated wound on the right side of the chin 2" x 1--- in size.
(4) One lacerated wound on the right parieto-occipital region of head, 3--- x 1--- in size.
(5) One lacerated wound on the upper part of right side of neck, 2--- x 1--- in size.
(6) One lacerated wound on the tip of chin 1--- x 1--- in size.
(7) One incised wound on the left side of chin 2--- x ----- in size.
(8) One incised wound on the left side of chin 2--- x ----- in size.
(9) Multiple abrasion on the left wrist and elbow.
(10) Multiple abrasions on the front of left ankle and knee.
On internal examination the doctor found:
(1) The left parieto-occipital bones were fractured.
(2) The left mandible was fractured.
(3) The right xygomatic bone were fractured.
(4) The bridge was fractured.
(5) The membrane covering the brain were damaged on the left side.
(6) The brain matter was damaged on the left side.
(7) The right radius and ulner bones were fractured.
(8) The stomach was half filled with semi-digested food.
Dr. Muhammad Siraj, P. W. 2, performed the autopsy on the dead body of Badshah Gul on 3-4-1975 at 10 a.m. And found the following injuries on external examination
(1) 2 firearm entrance wounds on medial side of right thigh, size ----- in diameter.
(2) 2 firearm exit wounds on lateral side of right thigh, size ----- in diameter.
(3) A firearm entrance wound on abdomen in left para umbilical, size ----- in diameter.
(4) 5 pellet wounds of firearm on the back of left shoulder, size ----- in diameter.
(5) A lacerated firearm wound on the dorsum of right hand, size 2-----.
On internal examination the doctor found abdominal wall injured, peritonium injured, small intestines injured, large intestines injured, right femur fractured, multiple fracture right hand.
Ghulam Hussain, P. W. 2, attested the recovery memo. Exh. P. H. Vide which the Investigating Officer took into possession shot-gun, Exh. P. 1, bandolier Exh. P. 2, containing 21 live cartridges, and copy of licence, Exh. P. 3, in the name of Ajmal Khan, appellant.
Isam Gul, P. W. 3, signed the recovery memo Exh. P. C. By which the I. O. Recovered the dead body of Shahzad Gul deceased from a well and a white cap, Exh. P. 4, blood-stained chaddar, Exh. P. 5, and also memo. Exh. P. D. Relating to taking into possession of blood stained earth from the spot where Shahzad Gul deceased was murdered. These articles were also sealed vide the same memo. In his presence. He also witnessed the recovery of card boards, Exh. P. 6, and an empty of ' 12 bore Exh. P.
7, from the Southern side of Kohat Bannu road, vide memo. Exh. P. E. He also signed the memo. Exh.
P. F. By which the I. O. Took into possession another empty of '12 bore, Exh. P. 8, from the place where Shahzad Gul was allegedly fired at Memo Exh. P. G. Was also attested by this witness relating to the taking into possession of some blood-stained earth from the spot where Badshah Gul deceased was hit and fell to the ground. Two card boards, Exh. P. 9 and one empty of '12 bore, Exh. P. 10, were also recovered from this point and these were also taken into possession vide the same memo.
Sakhi Badshah, P. W. 4, escorted the dead body of Shahzad Gul deceased, from the spot to the mortuary.
Ilam Nawaz, F. C. P. W. 5, accompanied the dead body of Badshah Gul, deceased, from L. M. H.
Kohat to the mortuary, when he died on 3-4-1975.
Ahmad Ali H. C. P. W. 6, attested the recovery memos. Exh. P. L. And Exh. P. M. By which the I. O.
Recovered licence copy. Exh. P. 14, shot-gun Exh. P. 15, licensed in the name of Akram Khan, appellant, which was lying in the house of Taj Muhammad. The gun was sealed in his presence vide the same memo.
Jamilur Rahman, A. S. I. P. W. 7, stated that during the days of occurrence he was attached to P. S.'
Lachi: that Jehan Khan, the then S. H. O., P. S., Lachi, had investigated the instant case and that he is since dead; that he knew Nazar Gul P. W. Who was subsequently mardered and he had investigated the case partly that he prepared the injury statement, Exh. P. P. Of Shahzad Gul deceased and his inquest report, Exh. P. Q., on the spot; that he also took into possession cap and 'chaddar' belonging to Shahzad Gul deceased, vide memo. Exh. P. C. In cross-examination he stated that the report by Badshah Gul was recorded by Jehan Khan, S. H. O. In his presence, at the instance of Badahah Gul deceased, who was brought to the Police Station in an injured condition; and that he was in possession of full senses at the time of making the statement, Exh. P.A.
Asadullah Khan S. I. P. W. 8, took into possession during the house search of Ajmal Khan appellant, his licensed shot-gun, Exh. P. 1, along with the bandolier Exh. P. 2, copy of licence Exh. P. 3, vide memo. Exh. P. H.
Hazrat Gul, P. W. 9, stated that Shahzad Gul deceased was his son and Badshah Gul deceased was his `tarboor' that on the day of occurrence at about sunrise time he was informed by Nazar Gul and Munawar Gul, P. Ws. About the occurrence but they did not mention the names of the culprits at that time; that he raised a `chigha' party and rushed towards the spot, found Badshah Gul deceased lying injured, who was alive and was able to talk coherently; that on his inquiry Badshah Gul deceased stated that he and Shahzad Gul deceased were fired at by the appellants and injured; that thereafter a `cot' was brought by the villagers and they carried Badshah Gul to Police Station, Lachi; that he along with Munawar Gul, Nazar Gul and some other villagers searched for Shahzad Gul deceased and located his dead body lying in a well in the Military Exercise Ground; that in the meanwhile Jamilur Rehman, A. S. I. P. W. 7, reached the spot and in his presence body of Shahzad Gul was taken out of the well. He also reiterated the motive given by the deceased Badshah Gul, stating that a vacant piece of land lying near the village mosque belonged to Khans of Lachi village but it was attached with the mosque and the appellants wanted to construct a house on the vacant site and Shahzad Gul deceased stopped them from doing so. This happened about 3, 4 days prior to the occurrence.
Munawar Gul, P. W. 10, gave ocular account at the trial. According to his statement he along with his father, Nazar Gul, started for village Togh from Lachi, loading their camels with `Bhoosa', in order to sell it in the market; that when they reached near Kohat-Bannu road they heard a cry of Badshah Gul deceased; calling his father Nazar Gul; that he and Nazar Gul went over towards that direction; that it was dark and there was no light. The witness was declared hostile at the request of the prosecution and the statement recorded by the lower Court on 6-11-1975 was transferred to the Sessions file under section 288, Cr. P. C. In cross-examination by the Public Prosecutor he admitted having made a statement before the Magistrate correctly. He also admitted that on the day of occurrence about morning time he and his father, Nazar Gul were carrying `Bhoosa' on their camels towards Togh, when they saw Badshah Gul and Shahzad Gul, deceased, going ahead of them with their camels; that Akram Khan and Muhammad Ali, appellants, armed with `topaks' got up from the right side of the road while Anwar Khan and Ajmal Khan appellants, also armed with 'topaks', got up from the left side and they fired one shot each on the two deceased; that seeing this he and his father ran back; that thereafter he heard the report of two more shots but he was not sure as to which of the appellants fired these two shots. However, he heard Badshah Gul deceased shouting for help saying that he was injured, that he along with his father returned to the village and informed Hazrat Gul, P. W. About the occurrence and along with them came back io the spot where they found Badshah Gul lying injured, but in possession of his senses and able to speak.
He was cross-examined by the counsel for the appellants and to a question he stated that he and his father started at about `Azan Wela' for Togh village and it was still dark when he heard the report of gun shots; that he was present when Badshah Gul made a statement in the Police Station, which was recorded by Jehan Khan, P. W. And that Nazar Gul was present when Badshah Gul was lodging the report; that Badshah Gul was not a man of good character and was once charged for a murder in Karachi.
Muhammad Siyyar Khan, Arms Expert, P. W. 14, stated that he received sealed parcels on 14-5-1975 containing empty cartridges of ' 12 bore P. C. Which he marked C1, C2, and C3, one '12 bore S. B.
Shot-gun No. 1950 marked :A'; another '12 bore S. B. Shot-gun No. 2202 marked B', along with six live cartridges of the same bore, for test purposes; that he carried out the examination of the crime empties under the Forensic Comparison Microscope and found that the 2 empties of '12 bore, crime empties marked C1 and C2 were fired from '12 bore shot-gun No. 2202, marked B', and one '12 bore crime empty C1 was fired from S. B. Shot-gun No. 1940, marked `A'. (Note.-This crime empty, in. Fact, should have been C3, as it appears from the microphotographs; that . F/1 relates to the crime empties C1 and C2, whereas P. F. Relates to C3). The witness also gave the points of identification between the crime empties and the test empties.
Statement of Nazar Gul, P. W. Recorded by the Magistrate on 6-11-1975 was transferred to the Sessions file under section 33 of the Evidence Act, as the witness was dead at the time of the trial. In this statement he had given the ocular account of the occurrence.
Jehan Khan, S. H. O., whose statement has also been transferred to the Sessions' file, stated that he recorded the report, Exh. P. A. At the instance of Badshah Gul deceased, who was then in possession of his full senses; that after completing the statement he went to the spot where Jamilur Rahman, A. S. I. P. W. 7, deputed earlier by him, was busy in the investigation of the case. The witness found the dead body of Shahzad Gul and sent it to the mortuary for post-mortem examination and thereafter prepared the site plan, Exh. P. B., with its footnotes correctly. He took blood-stained earth lying near the edge of the well. He also took into possession card boards, Exb.
P. 6, and one empty of '12 bore, Exh. P. 7, from the Western side of the road and prepared the memo.
Exh. P. E., with regard to this recovery. He also took another empty of '12 bore, Exh. P. 8, freshly discharged, where Shahzad Gul deceased was allegedly murdered, vide memo. Exh. P. -F. He took some earth from the place where Badshah Gul, deceased, was injured. Another card board, Exh. P.
9 was also taken into possession and a '12 bore empty cartridge, Exh. P. 10, from this place and sealed all these into a parcel vide memo. Exh. P. G. He also took licensed shot-gun No. 2202, Exh. P.
15, copy of licence Exh. P. 14, vide memo. Exh. P. L. And sealed them into a parcel and despatched it to the Arms Expert. He also sealed into a parcel shot-gun No. 1940 belonging to Ajmal Khan, appellant.
6. The appellants were examined under section 342, Cr. P. C. They admitted the relationship inter se.
However, they denied the motive and the commission of the crime and produced no defence.
7. The learned counsel for the appellants contended that the prosecution evidence mainly rests on the report-cum-dying declaration, Exh. P. A., of Badshah Gul, deceased, and that the other witnesses not being mentioned in this report, would hardly be worthy of any credence; that the dying declaration is a very doubtful piece of evidence as Dr. Muhammad Siraj P. W. 12, stated in cross-examination that after receiving the injuries the victim, i.e. Badshah Gul had gone into irreversible "shocks" on account of haemorrhage and when a patient goes into irreversible shocks the chances of his survival are very remote, and, that in a state of irreversible shocks the patient would be usually in comma and would not be able to talk; that besides this the hostile witness, Munawar Gul stated that Nazar Gul, P. W. Was present with Badshah Gul in the police station at the time of lodging the report and as such, the statement of Badshah Gul, Exh. P. A, was the result of prompting by Nazar Gul, who was an uncle of the deceased; that the injuries on Shahzad Gul deceased, according to the statement of Dr. Kausar Ali Shah P. W. 1, were caused by a sharp and blunt weapons and that he was positive that no firearm injury had been caused to Shahzad Gul deceased; and that the death of Shalizad Gul took place on 29-3-1975 at 11 p.m.
8. On going through the statement of the doctor we find that Badshah Gul deceased sustained gunshots wounds on the medial side of the right thigh, with exit in the lateral side of the thigh and another firearm entrance wound on the abdomen in the left pari-umbilical region, 5 pellet wounds of fire-arm on the back of the left shoulder, and lastly, a lacerated fire-arm wound on dorsum of right hand. Internally these projectiles had injured the abdominal walls, peritoneum, small and large intestines, and, therefore to exclude the possibility that Badshah Gul was not in a position to make a statement is inconceivable. The statement of Badshah Gul was recorded within one hour or so of the incident and the Police Officer who recorded the same positively stated that the victim was in full senses, and the defence has attributed no motive to him. We, therefore, accept the statement of Badshah Gul, deceased, Exh. P. A., as true and genuine. In this connection, we may point out that there are many cases in which more extensive and severe injuries were sustained by the victims, yet they had the power of volitional act and many cases are known to the students of medical jurisprudence, in which the victims were able to perform some act as that of walking or climbing and survived for some hours or days after receiving very grave injuries, which would ordinarily have proved rapidly fatal and a medical witness should always give very guarded reply when dealing with such cases. We knew that Badshah Gul, deceased, lived up to 3-4-1975 and the injuries would also show that neither his power of speech, nor power of thinking were completely damaged. The internal injuries were injuries which would not have impaired the senses of the victim completely as the doctor has liked us to believe.
9. It is also not very convincing argument that Nazar Gul's presence at the time of recording of the report of Badshah Gul in the Police Station, would amount to prompting by the former, as no question has been put to the witnesses regarding any interference by Nazar Gul when the statement was being recorded. The deceased Badshah Gul was unaware of the fate of Shahzad Gul as according to dying declaration Exh. P. A, he saw only Shahzad Gul running away when the first volley of shots was fired. Had there been any prompting, he would have mentioned the fate of Shahzad Gul in the same sequence. This is also evident from the site plan that Shahzad Gul was chased upto some distance where he was subsequently overpowered and done to death by the appellants, who thereafter threw him in the well as he was directly involved in the dispute over the vacant site, which the appellants claimed for construc--tion of a house.
10. Dr. Kausar Ali Shah's statement that most of the wounds were lacerated wounds on Shahzad Gul, would not cast any doubt that these were caused with missiles like pellets or bullets, as lacerated wounds are produced by blows with blunt objects and missiles. It is also common knowledge that injuries produced by projectiles discharged from firearms present the characteristics of contused and lacerated wounds, but their appearances vary according to the nature of the projectile, the velocity at which it was travelling at the moment of impact, the distance of the firearm from the body at the moment of discharge and the angle at which it struck the part of the body, and bullets or pellets sometime cause extensive laceration of the tissues and communicated fractures of the bones if they strike the body at a right angle. But their course is deflected if they strike the body at a different angle. However, as the learned trial Court has not taken into consideration these facts and has recorded a verdict of acquittal with regard to the murder of Shahzad Gul deceased and there is no State appeal, we need not further dilate upon the doctor's opinion.
11. We also do not approve of the statement of Dr. Kausar Ali Shah, with regard to the time of death of Shahzad Gul deceased, as he has given no positive data for arriving at the conclusion that he had met his death on the 29th of March 1975, at 11 p.m.
12. The learned Sessions Judge finding the appellants guilty of the murder of Badshah Gul, deceased, has referred to the recovery of guns of .12 bore, licensed in the name of Ajmal Khan, appellant No. 1940, and S. B. Shot-gun 2202 licensed in the name of Akram Khan, appellant, but has omitted to put these questions to these appellants in order to elicit their explanation regarding the tallying of the crime shells, with the strikers of their guns, recovered from the scene of occurrence where the two victim were fired at. This omission on the part of the trial Court is regretted. Time and again, we have reminded the trial Courts to apply their mind to the prosecution evidence and call for the explanation of the accused person, which may be offered regarding an incriminating evidence brought on the record.
13. We are also surprised to note that the learned Sessions Judge has abstained from awarding the normal penalty of death provided by the law. In the concluding para. The learned Sessions Judge has merely remarked "as the sentence of imprisonment for life seems sufficient to meet the ends of justice, I therefore do not award the normal sentence of death provided for a case of murder." We fail to understand how he has come to the conclusion that it was a case where normal penalty was not called for. The intention of the learned Sessions Judge is invited to the provisions of clause (5) of section 367, Criminal Procedure Code, which runs as follows: "(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed: Provided that, in trials by jury, the Court need not write a judgment, but, the Court of Session shall record the heads of the charge to the jury."
14. We may point out that the extreme sentence is the normal sentence; the mitigated sentence is the exception. It is not for the Judge to ask himself whether there are reasons for imposing the penalty of death, but whether there are reasons for abstaining from doing so. In the present case, therefore, if the learned trial Judge did not think it proper to pass a sentence of death, he was bound to record reasons why sentence of death were not passed upon the appellants, that is to say, he must find that there are really extenuating circumstances and not merely an absence of aggravating circumstances. All what the learned Sessions Judge ha done in the present case is to say at the end of his judgment "Sentence of imprisonment for life seems sufficient to meet the ends of justice", but what those ends of justice in the case were and whether they served to justify him in abstaining from passing capital punishment are not recorded in his judgment. That he was bound to do under the law as it stands at present.
14. We note, however, that there is no petition for enhancement of sentence on behalf of the State, and we do not think it proper of our own accord to call upon the appellants to show cause-why their sentences should not be enhanced, particularly, when the learned counsel for the appellant has made a statement at the opening of the case that there is a genuine compromise between the parties, pending before the District Magistrate, Kohat, we believe that his statement is based on correct information. In our opinion the guilt of the appellants has been proved beyond all reasonable doubt and the sentences passed upon them err, if anything on the side of leniency. We accordingly diSmi3S their appeal and confirm the conviction and sentences passed upon them.