1969 PLP 846 (SCMR)

MUHAMMAD SHARIF, J.‑On the evening of November 1953, after the 45‑Up train had moved from the Railway Station Massan in the Mianwali District, there was a firing at the railway station in the course of which one Fateh Khan was killed and Pahar Khan and Aitbar Khan were injured. The police investi gation revealed that six persons were concerned in the crime. One Ghulam Muhammad was absconding and the other five‑were placed upon trial. The learned Sessions Judge, Mianwali convicted Fateh Khan and Tayyab under section 302 read with section 34, Pakistan Penal Code, and also under section 307 read with section 34 and sentenced each of them to transportation for life on each count. The other three were acquitted. On appeal, the High Court maintained the convictions, but, in exercise of the revisional powers, enhanced the sentence of transportation for life to one of death on both the convicts. They were granted special leave to appeal. The relations between the parties were positively inimical. The origin of this enmity goes back to about six years ealier when Muzaffar Khan, the father, and Mehar Khan, the uncle of Fateh Khan appellant, were murdered. Twelve persons were prosecuted for the same, including Sardar Khan (P. W. 13) and his three sons, Ghulam Muhammad (P. W. 6), Muhammad Pahar Khan (P. W. 15) and their other near relations. There was also a cross‑case under section

307. Both the cases ended in acquittal of all the accused persons. The prosecution case is that it was to avenge these murders that firing was resorted to on that night. It is undisputed that both the parties were being proceeded against under section 107, Criminal Procedure Code, in the Court of a Magistrate at Mianwali. Tayyab appellant with the acquitted accused Sher Khan, Sarfaraz, Jahangir, etc. were on one side and the nine out of the twelve, who had been previously acquitted of the murders of Mehar Khan and Muzaffar Khan, on the other. The parties attended the Court at Mianwali on the 9th of November 1953. They were returning to their respective villages and travelled by train from Mianwali to Massan which reached Massan at 8‑48 p. m. After the passengers had alighted from the train and the Station Master had collected the tickets, the station staff and other passengers were warned to save themselves as shots were going to be fired. Challenging shouts towards Sardar Khan and Pahar Khan were also heard and the firing started simultaneously. Fateh Khan died on the spot and Aitbar Khan and Pahar Khan P. Ws. were injured. After the commotion had subsided, the Station Master Shah Muhammad (P. W. 12) came out and found a person lying dead at a little distance from the platform. This was Fateh Khan deceased. A telegram was later sent to Kundian Railway Station intimating that an attack by some persons had resulted in the death of one. At that moment, the Station Master had not come to know of injuries to two others. There is no raised platform at Massan Railway Station. It is on a level with the railway track. The Station Master's office is situated at a higher plinth and, in order to reach it, one has to climb some steps and cross an open space. A lamp was burning in the verandah shedding light on the open ground in front of it and towards the platform. This was fixed in the wall of the office. Another lamp was burning in the office itself on a table and the third one was in the waiting room. Direct evidence in the case is given by P. W. 13 Sardar Khan, P. W. 14 Aitbar Khan, P. W. 15 Pahar Khan and P. W. 16 Ghulam Muhammad Khan. Sardar Khan deposed that the appellants along with their other companions got into the train at Mianwali and he in the company of Aitbar Khan and Pahar Khan P. Ws. and Fateh Khan deceased also travelled by the same train. He further stated that he saw Jehangir Khan, Sarfraz Khan and Sher (acquitted accused) and Tayyab appellant ascending the steps at the Railway Station. His party followed them. The deceased was in front followed by Pahar Khan and Aitbar Khan and then by the witness himself. It is alleged that as the accused reached the open space in front of the railway building, two persons joined them. The light was sufficient to observe them. The two persons, who joined at the railway station, were said to be Fateh Khan appellant and the absconder Ghulam Muhammad. The first warning shout was uttered by Fateh Khan appellant and it was he who fired, in consequence of which Fateh Khan, his own companion fell down and died. The other shout was raised by Tayyab appellant reminding the witness and his friends that now the opportunity had arrived to avenge the murder of "somebody's father". Tayyab Khan too fired and this injured Pahar Khan. Ghulam Muhammad absconder is then said to have raised a shout "why single out two parsons" and exhorted his companions to kill all. His firing hit Aitbar Khan. The other persons including the witness, saved themselves by throwing themselves on the ground. In all, about 12 shots were fired. After the firing, the culprits ran towards the east. The witness attended to the injured who were removed to a mosque nearby. The head of Fateh Khan was found to be blown out. The witness and his companions remained in the mosque during the night for fear of being attacked. The police reached the next morning. They recovered the empty cases and recorded the statements of the witnesses. To the same effect and on the same lines are the statements of the other P. Ws. The evidence that has been examined in the case is undoub tedly of partisan character, but the main incidents are corrobora ted by the Station Master who is really a disinterested witness. He refers to the shouting in the terms stated by the witnesses and also to the fact that he saw Sardar Khan whom he knew already by face after the telegram had been despatched. This accounts for the ‑absence of any mention of the names of the supposed assailants. The Station Master, as already mentioned, was not aware that any persons had been injured by firing as they had been removed from the railway platform. It was contended that the omission to mention the names of the assailants in the telegram was a proof positive that they were not known and out of enmity, Sardar Khan and his friends had charged their old enemies with the crime. The Station Master thought it his duty to send immediate information of what had happened at the railway station and it was not business of his to make enquiries as to who was responsible for the attack. The presence of the P. Ws. could not be doubted as also of some of the opposite‑party, as they had both travelled by the same train and were coming from Mianwali after attending the Court: The shouts raised on the occasion were extremely significant and Sardar Khan and his companions were in a position to understand the meaning of the shouts and to recognise the voices. The argument that the injuries were received on the back and that the victims, therefore, could not see the assailants, cannot be attached much weight in view of the circumstances of the case. As they were ascending steps in front of the Station Master's office, they were certainly looking ahead and when the shouts were raised and shots were fired, instinctively they might have turned round and thus received shots on their backs. The learned Judges of the High Court have carefully scrutinized the evidence and after considering all the points raised they have come to the conclusion that the appellants were the persons responsible for the murder and the injuries to the two P. Ws. This is no more than appreciation of evidence and no question of principle is involved which might attract the extraordinary jurisdiction of this Court. The appeal is consequently, dismissed. Appeal dismissed.