1989 P Cr (PLP)

(4) One circular inlet wound 1" x 1" by size, on right arm posterior side 1/2" above from elbow joint and causing one irregular outlet wound 2" x 1/2" by size,‑internal side of the same arm two inches above from the elbow joint and has caused another inlet wound 2" x 2" by size, on right chest lateral side at a point 1/2" just below from right armpit going deep into the chest and its outer wound could not be found, but six pellets found subcutaneously in right chest posteriorly along the medial border of right scapular bone, spread in an area of 2" x 3". On internal examination the doctor found skull; right temporal bone and occipital bone fractured into pieces, manages full of blood, brain severely injured, chest or both pleural cavities full of blood, both pleurae found through an& through perforated, both the lungs found injured and through and through perforated; two pieces of cardboard found in the substance of the right lung, left clavicular bone and first and second rib of left side found fractured, right sixth and seventh ribs found fractured, diaphragm found perforated. Abdomen; liver found injured -stomach contained semi‑digested food material, urinary bladder contained half ounce of urine, right arm, right elbow joint found fractured, muscles and vessels injured. N.B: ‑ Two pellets and three pieces of card board found in the clothes of the deceased.

4. The same doctor also performed post‑mortem examination on the dead body of Zar Khan (48/50) son of Lachi Khan, on 30‑12‑1971 at 9‑30 a.m. and found the following injuries on external examination:‑‑ (1) One circular inlet wound 1/4" x 1/4" by size, on base of skull posteriorly at a point 4‑1/4" just above from seventh cervical rib going deep into the skull and causing one irregular outlet wound 1" x 1/4" by size, just over right external ear. (2) One circular inlet wound 1/4" x 1/4" by size, on left parietal region at its apex going deep into the skull and causing one irregular outlet wound 1" x 1/4" half by size, right front parietal region, at a point 5" just above right eye. (3) One irregular inlet wound 1/2" x 1/2" just above and 1/2" behind right ear going deep into the skull and causing one irregular outlet wound 2‑1/4" x 1" by size, left perietal region at a point three inches above and two inches behind left ear. (4) One grazing wound 1/2" x 1" by size, on right elbow joint internal side. (5) One grazing wound 1" x 1/4" by size, on right lower chest seven inches just below right nipple. (6) One grazing wound 1" x 1/4" by size, on abdomen at a point 1‑1/2" below and one inch right laterally from ublicus. On internal examination the doctor found skull cavity full of blood, all sides of brain severely injured, damaged and perforated, manages injured and perforated, abdomen‑ stomach was, containing semi‑digested food material, urinary bladder containing one ounce of urine, all abdominal contents were normal.

4. All the five accused decamped from the spot. However, Bakht Baidar the acquitted accused surrendered on 22‑4‑1975 and a complete challan against him was put in the Court of the Sessions Judge, Bannu. On the completion of the trial the learned Additional Sessions Judge, Bannu by his judgment, dated 17‑1‑1976 extending him the benefit of doubt acquitted him. However, on the appeal filed by the State under section 417, Cr.P.C. (Criminal Appeal No. 123 of 1976) a Division Bench of this Court comprising Mr. Justice Mian Burhan‑ud‑Din Khan and Mr. Justice Sardar Fakhr‑e‑Alam Khan by their judgment, dated 9‑5‑1978 setting aside the acquittal of Bakht Baidar convicted him on two counts under section 302/149, P.P.C. and section 148, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.1,000 or in default to undergo six months further R.I. He was also convicted under section 148, P.P.C. and was sentenced to three years' R.I. All the sentences were directed to run concurrently. Dissatisfied by the conclusion arrived at by this Court Bakht Baidar preferred appeal in the Supreme Court of Pakistan and the august Supreme Court by its judgment dated 21‑2‑1981 accepted the appeal and setting aside the order and judgment of this Court restored that of the trial Court with the result that Bakht Baidar accused stood acquitted. Zangu Bar and Umar Zad convict‑appellants surrendered on 31‑5‑1982 and Arzumand on 22‑2‑1985. A supplementary challan was put in the Court of the learned Sessions Judge, Bannu against all the three accused appellants while Aurang Zeb is still fugitive from law.

5. In order to establish its case, besides formal and official witnesses, the prosecution examined Arab Khan the lodger of the F.I.R. (P.W.7) and Afsar Ali (P.W.9) as witnesses of the occurrence. According to Arab Khan on the day of occurrence at `Pashin Oaza' time he had gone to the Bazar outside Hawed Gate for making some purchases when in the meantime Badi‑uz‑Zaman and Zar Khan the two deceased came out of Hawed Gate from the direction of the Bazar in a tonga. They stopped near the shop of Bakht Zaman. Badi‑uz‑Zaman was armed with D.B. shotgun and was sitting in the front seat whereas Zar Khan armed with S.B. shotgun was occupying the rear seat of the tonga. He shook hands with both the deceased and also noticed Afsar Ali (P.W.) standing behind the tonga on a cycle. Thereafter he went to the shop of Yaqoob Badi when he saw the three convict‑appellants, Aurang Zeb the absconding‑accused and Bakht Baidar the acquitted‑accused duly armed with fire‑arms coming out of the shop of Hamidullah and started firing at the deceased as a result of which they were both hit while the accused after reloading their arms and firing in the air decamped from the spot. Badi‑uz‑Zaman, when the witnesses approached him had already expired while Zar Khan was breathing his last and was unable to talk. A cot was arranged on which Zar Khan was placed while the witness taking the dead body of Badi‑uz‑Zaman in the same tonga went to the police station and lodged the report. Motive for the offence was previous blood‑feud enmity between the accused party and the deceased party. Afsar Ali Khan the next eye‑witness of the occurrence deposed at the trial that on the day of occurrence he had accompanied Badi‑uz‑Zaman and Zar Khan the two deceased from the village to Bahnu city. He was riding a cycle while the two deceased had hired tonga. The witness went to the Bazar while the two deceased proceeded to the Court. It was agreed between the two deceased and the witness that they would meet again at `Pashin Qaza' time at the shop of Sher Khan. Accordingly they met each other at the shop of Sher Khan and while the two deceased hired the Conga of Zaman Khan he followed them on a cycle. Badi‑uz‑Zaman deceased sat in the front seat and Zar Khan occupied the rear seat. The witness handed over his shotgun" alongwith bandolier to Badi‑uz‑Zaman. When they reached outside Hawed Gate they stopped near the shop of Hamidullah Khan, immediately thereafter the five accused came out of the shop and fired at the two deceased sitting in the tonga. Badi‑uz‑Zaman on receipt of the injuries fell inside the tonga while Zar Khan fell down to the ground. The five accused then fired shots in the air and decamped from the spot. The dead body of Badi‑uz‑Zaman was taken in the same tonga to the police station while the witness alongwith others lifted Zar Khan on a Charpai for the police station. This witness had also taken back the shotgun from the person of Badi‑uz‑Zaman deceased but the bandolier remained on the person of Radi‑uz‑Zaman deceased. In the police station this witness also surrendered the said shotgun to the police.

6. In this case the occurrence had taken place at `Qaza pashin' time and the report was lodged in the police station which lies at a distance of 5/6 furlongs from the spot at 16‑35 hours. It was the month of December and if we take `Pashin Qaza' time to be round about 4‑00 p.m. the report having been lodged at 4‑35 p.m. it can well be termed as a very prompt report having been lodged in the police station. Full details on each and every material particular have been given in the F.I.R. The death of the two deceased as a result of fire‑arm injuries established. The venue of occurrence also stands established. The two eye witnesses namely Arab Khan and Afsar Ali have consistently charged the three convict‑appellants alongwith Bakht Baidar the acquitted accused and Aurang Zeb absconder for the murders of the two deceased. Learned counsel for the convict appellants, however, argues that the presence of the blood‑feud enmity between the deceased party and the accused party would render the evidence of the two prosecution witnesses as interested because they are both related to the deceased Badi‑uz‑Zaman and, therefore, the credibility which in the ordinary course is attached to a disinterested witness is wanting in this case. We fully agree with the learned counsel on this score but it is well-settled that testimony of eye‑witnesses which is consistent and is corroborated by the recoveries and the medical evidence can well be acted upon notwithstanding the relationship of such witnesses either inter se or with the deceased. Even the evidence of the witnesses whose presence on the spot is established even if they are proved to be inimical with the accused can be taken into consideration if it is established that the evidence given by them is' confidence inspiring and is consistent with the prosecution case. The report was lodged by Arab Khan without any delay and Afsar Ali the next prosecution witness has been named to have witnessed the g occurrence. Afsar Ali on the other hand has in full details explained his presence at the spot at the crucial moment. Thus the objection of the learned counsel that the two witnesses being related to the deceased are interested witnesses and their evidence should be discarded carries no weight. In this sequence learned counsel for the convict‑appellants also argued that although the occurrence has taken place in a rendezvous place, no disinterested person from the entire locality has been produced at the trial to support the prosecution version. Firstly it is not incumbent upon the prosecution to produce all the persons who are said or are believed to have witnessed the occurrence. Secondly it is a matter of judicta, observation that people ordinarily are not prepared to involve themselves in tile enmity of others and particularly in this part of the country the introduction of a stranger to have witnessed the occurrence is not free from damaging the prosecution case because at any subsequent moment such a witness might either be won over by the accused party or with a view to avoid confrontation with the accused party such a witness might give concessions. It has happened in so many cases that stranger or a passerby when made a prosecution witness, has never stuck to what he deposed at the initial stage and in this case this observation has been proved when we see that one Noor Ali who also received fire‑arm injury as a result of firing by the accused is silent about the assailants and which obliged the prosecution to abandon him from production at the trial because he had been won over. If the prosecution is in a position to establish its case by production of one or two witnesses the non‑production of the disinterested person out of the congeries is not material. Learned counsel for the convict‑appellants also argued that the evidence of Afsar Ali (P.W.) of his having witnessed the occurrence is doubtful from another aspect too because according to him when the dead body of Zar Khan was brought to the police station in the `Karwai' of police nowhere name of said Afsar Ali is mentioned and that this would suggest that Afsar Ali introduced himself to be an eye‑witness at some subsequent stage and that he had not witnessed the occurrence. This argument of the learned counsel also carries p no weight because according to Afsar Ali he had produced the shotgun which he had taken from the person of Badi‑uz‑Zaman deceased after he was being taken to the police station by Arab Khan and produced the same to the I.O. in the police station when he arrived there alongwith the dead body of Zar Khan deceased. The I.O. has confirmed the taking into possession of the shotgun in question vide memo. Exh.P.G. from Afsar Ali the licensee thereof in the police station prior to his departure to the spot and that the said shotgun was blood stained. In this connection it may be pointed out that according to Afsar Ali while he was following the tonga in which the two deceased were proceeding on a cycle he had given his licensed shotgun alongwith the bandolier to Badi‑uz‑Zaman deceased which he was carrying when he was shot at by the accused party. The production of the shotgun at the police station which was blood‑stained in view of the details given by Afsar Ali is a sufficient corroboration of his presence at the spot and witnessing the occurrence. It was also argued by the learned counsel for the convict‑appellants that there being blood‑feud enmity and the two witnesses being the relations of Badi‑uz‑Zaman deceased why the assailants did not attempt at their lives and spared them. This argument in our view is just an argument for the sake of argument because it is the vengeance which is satisfied by the assailants and once they succeeded in committing the murders of their enemies it is immaterial to say why the others were spared. May be either they were not visible to the assailants or they had no intent to commit their murders. Be that as it may, we are concerned with the only question whether the murders of the two deceased were committed in the manner alleged by the prosecution and whether the incident was witnessed by the two prosecution witnesses or otherwise. From the facts and circumstances explained by the two prosecution witnesses in detail and in view of their consistent evidence it has been established that they did witness the occurrence and are truthful witnesses.

7. As we have observed earlier the evidence of interested witnesses even though they may be inimical to the accused party can well be termed credible if their testimony finds corroboration from the circumstances, the recoveries and the medical evidence. The perusal of the site plan would suggest that the tonga in which the two deceased were sitting was at point No.1 while Afsar Ali (P.W.) was at point No.4. The accused are alleged to be at points 2 and

3. Arab Khan (P.W.) was at point No.5. According to Afsar Ali he was chasing the tonga on a cycle. It would thus appear that the tonga was proceeding from north to south. At point No.2 Bakht Baidar the acquitted accused, Zangu Bar and Arzumand the convict appellants are shown while at point No.3 Umar Zad convict‑appellant and Aurang Zeb absconder are alleged to be present. Now if we turn to the medical evidence it is completely in conformity with the evidence of the eye‑witnesses. It is G not possible for a Medical Officer in such a situation to ascertain which injury on the person of the deceased is the first one. 1n the light of the evidence produced at the trial in this case it is to be seen whether in that situation the injuries observed by the medical officer could be caused or not. Badi‑uz‑Zaman deceased sitting in the front seat of the tonga at the relevant time must be facing south and naturally his right side would be exposed to the assailants who were on the north west back side. Injury No.1 on the person of Badi‑uz‑Zaman deceased which is on the right temporal region and injury No.2 on the left parietal region of Zar Khan deceased could naturally be caused as a result of fire shots at the hands of the accused who, as observed earlier, were on the north‑west back side. The rest of the injuries are immaterial for the purposes of contradicting the eye‑witnesses because after having been hit even in the case of instantaneous death it cannot be presumed that the deceased remained statues and did not move or change their positions. Thus from the medical evidence too the version of the two prosecution witnesses has been reasonably established.

8. Learned counsel for the accused‑appellants also referred to the recovery of pellets and cardboard discs in the tonga and half‑heartedly contended that prosecution has failed to satisfactorily explain the presence of these article and in his view the chance of use of fire‑arm on the part of the deceased who were admittedly armed with shotguns could not be altogether eliminated. The argument, however, in our view is just an eye‑wash because the I.O. has satisfactorily explained this aspect of the matter and even from the other prosecution evidence also it has been established that one cartridge of .12 bore Exh.P.8 had been torn, naturally as a result of firing by the accused with the result that the pellets and powder came out of the same and also from the of her torn cartridges Exh.P.10 besides ten cardboard discs Exh.P.12 and one base hxh.P.13. The recovery of these pellets and cardboard discs in our view further establishes the truthfulness of the evidence given by Afsar Ali (P.W.) that he had handed over his shotgun alongwith the bandolier to Badi‑uz‑Zaman (deceased) when he was to chase the tonga on a cycle from Bannu city towards Hawed Gate. Learned counsel for the convict‑appellants contended that on the basis of the evidence which has been given in this case the honourable Supreme Court had set aside the verdict of conviction by the High Court and had restored the findings of the trial Court whereby Bakht Baidar the co‑accused of the convict‑appellants was acquitted. We have gone through the observations of the honourable Judges of the Supreme Court m their judgment, dated 21st November, 1981 and we have nowhere found that the Honourable Supreme Court‑had either disbelieved the evidence adduced by the two eye‑witnesses or that it had 'teen observed that there was any discrepancy between the medical evidence and the eye‑witness account. It would be of advantage to reproduce the observations of their Lordships of Supreme Court which run thus:‑ "We would observe that the three absconders have yet to be arrested and tried and, therefore, we are not inclined to comment on the question whether the evidence of the eye-witness was, indeed, satisfactory or not but would merely observe that the eye‑witnesses were interested witnesses and that their evidence, therefore, required corroboration before it could be relied upon. The High Court found such corroboration in the circumstance of the abscondence of the appellant of nearly 3/4 years but the learned Additional Sessions Judge had accepted the explanation and was of the opinion that in the circumstances mentioned by the appellant he could not be held to have absconded. The only question, therefore, is whether the learned Judges in the High Court were justified while hearing an appeal against acquittal in substituting their opinion on this question for that of the learned Additional Sessions Judge. Although in the course of an appeal against acquittal under section 417, Cr.P.C. there is no limitation on the power of the superior Courts to interfere with every finding recorded by the trial Court but the superior Courts have themselves laid down certain principles relating to their jurisdiction in the case of acquittal appeals. See Sheo Swarup and others v. King‑Emperor A I R 1934 PC 227 which was referred to with approval in Billu alias Tnayatullah v. The State P L D 1979 SC

934. It has been laid down that although the High Court in such appeals has fall power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed but it has also been observed that in exercising the power conferred by the Code in such cases and before reaching its conclusions upon fact, the High Court should give proper weight and consideration to the view of the learned trial Judge in inter alia, disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses and we might add of hearing the accused. The learned Additional Sessions Judge had recorded a finding that in the circumstances narrated by the appellant he could not be considered as having absconded and we feel that such a finding of fact should not have been disturbed by the High Court in the course of an appeal against acquittal merely because another view could be taken of the same facts by the learned Judge. If the said finding was not disturbed the only evidence left against the appellant would be that of the eye‑witnesses, who being, as seen above, to be interested witnesses, could not be relied upon without corroboration. If the appellant's absence from the spot for the fairly long period after the incident is not treated as abscondence, there is no corroboration available to the testimony of the eye‑witnesses. In these circumstances, it was not safe to convict the appellant on the uncorroborated testimony of the aforesaid two witnesses. The main stress made by the august Supreme Court was that in an appeal against acquittal according to the well‑established principles a finding of fact recorded by the trial Court should not be interfered and that proper weight and consideration to the views of the learned trial Judge in acquitting the accused should be given and it was only on this point alone that the order of the High Court convicting Bakht Baidar co‑accused of the convict‑appellants was set aside. In the instant case on the other hand the learned trial Judge has placed full reliance on the evidence produced at the trial and rightly so because of our discussion coupled with the views of the learned trial Judge. In this case we have seen the corroboration of the evidence given by the two witnesses not only through medical evidence but also through other circumstances explained above. The long abscondence after the occurrence of the convict‑appellants and their surrender to the law of the land after the verdict of Supreme Court acquitting Bakht Baidar co‑accused of the convict‑appellants is a further circumstance connecting the convict‑appellants with the commission of the crime. We are aware of the well -recognized principle of criminal practice that abscondence by itself is not sufficient to corroborate the prosecution case but in this case the prosecution evidence having been found to be credible fully corroborated by the medical I evidence and the other circumstances, the abscondence of the convict‑appellants is a further piece of corroborative evidence.

9. For the foregoing reasons we are firm in our view that the prosecution has successfully brought home guilt to the convict appellants and they were rightly convicted.

10. Before we part with we would like to observe that the learned trial Judge has materially erred in not charging the convict‑appellants with sections 149 and 148, P.P.C. and instead convicting them under section 302/34, P.P.C. The fact that one of the accused was acquitted by the august Supreme Court is no ground for altering the sections of law with which the accused are charged and in view of the fact that five persons were charged for the murders of the two deceased the learned trial Judge must have framed a charge under section 302/149 read with section 148, P.P.C. However, since there is no appeal or revision in that respect before us we would refrain from altering the conviction.

11. Accordingly we dismiss this appeal by maintaining the conviction and sentences of the convict‑appellants. However, m view of section 35, Cr.P.C. the order of the trial Judge directing the sentences to run consecutively is not called for. Accordingly we maintain the sentences of the convict‑appellants under section 302/34, P.P.C. on two counts but direct that the substantive sentences under each count shall run concurrently. The criminal revision petition meriting no consideration is accordingly dismissed. SA./715/P Appeal dismissed.