1989 PCr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This criminal appeal arises from the judgment of learned Judge, Punjab Special Court for Speedy Trials No. VI, Bahawalpur, whereby he on 8‑5‑1988, while acquitting Ghulam Rasool, Kala Yaqoob, Shahnawaz and Baggu co‑accused, convicted Sahaba appellant (20/22) and sentenced him as under:‑

Under section 148 P.P.C. to 3 years' R.I. and a fine of Rs.5,000, in default thereof one year's R.I. Under section 302/149 P.P.C. for causing death of Kingoo and 17 others, to death arid a fine of Rs.10,000 in default thereof 2 years' R.I. on 18 counts. It was directed that the fine if recovered, half of the same be paid to the legal heirs of each deceased in equal share. Under section 17/149 form murderous assault on Mst. Khundal and Mst. Haleema to 10 years' R.I. and a fine of Rs.7,000, in default thereof 1 1/2 years' R.I. on each count, wrath the direction that the fine if recovered half of the same be paid to each injured in equal share. Under section 436/149, P.P.C. to 10 years' R.I. and a fine of Rs.20,000 in default thereof 5 years' R.I.

2. The occurrence took place on 3‑2‑1988 at about 5‑00 p.m. in Basti Daulatabad at a distance of 45 k.m. from Police Station Machka. F.I.R. Exh.P.X. was lodged by Abdul Rehman P.W.10, paternal‑uncle of Kingoo deceased on 4‑2 -1988 at 12‑30 a.m. and was recorded by Bashir Ahmad S.H.O‑/S.I.P.W.12.

3. The motive as alleged by the prosecution was that 15 years before the occurrence Matara, uncle of Abdul Rehman complainant P.W, had committed double murder of his wife and Sharu, brother of Sahaba appellant on the suspicion of their illicit relations. To take the revenge of the murder of his brother, the appellant and his co‑accused have killed the 18 deceased and caused injuries to the P.Ws.

4. As for the main occurrence, it has been stated that at the fateful time, 18 deceased namely Kingu, Godha, Mohar, Buland, Haji, Ali Nawaz, Mst. Sachal, Mst. Saini, Mst. Sat Bharai, Mst. Pathani, Mst. Bai, Mst. Anwar Mai, Mst. Asoodi, Mst. Sakina, Mst. Jammul, Mst. Hurmat, Mst. Hanifan, Mst. Goheeri and the two injured namely Mst. Haleema P.W. and Mst. Khundal (not produced), were present in different Sahals situated in Basti Daulatabad when Sahaba appellant and 10 others duly armed with kalashnikov and rifles came there and started firing hitting the aforesaid 18 deceased and the injured P.Ws. The occurrence was seen by Mst. Haleema, Mst. Jannat, Mst. Begum, Abdul Rehman and Muhammad Akbar P.Ws. Kingu and 17 others succumbed to the injuries on the spot.

5. On 4‑2‑1988 Dr. Abdul Wabab, P.W.1 medically examined Mst. Haleema P.W. and found 3 firearm injuries on her person. On the same day he medically examined Mst. Khundal, aged 7 years and found 2 fire‑arm wounds on her person. On 5‑2‑1988, he conducted post‑mortem examination on 18 dead bodies. He found 9 fire‑arm wounds on the dead body of Mst. Goheeri, 2 fire‑arm wounds on the dead body of Mst. Sakina, 5 fire‑arm wounds on the dead body of Mst. Asoodi, one fire‑arm wound on the dead body of Buland, 2 fire‑arm wounds on the dead body of Mst. Jummu, 2 fire‑arm wounds on the dead body of Mst. Sayani, 6 fire‑arm wounds on the dead body of Goha, 2 fire‑arm wounds on the dead body of Kingu, 5 fire‑arm wounds on the dead body of Mst. Hurmat, 2 fire arm wounds on the dead body of Ali Nawaz, 4 fire‑arm wounds on the dead body of Mst. Hanifan, 2 fire‑arm wounds on the dead body of Mst. Sat Bharai, 2 fire -arm-wounds on the dead body of Haji, 2 fire‑arm wounds on the dead body of Mst. Bal, 2 fire‑arm wounds on the dead body of Mehar, 2 fire‑arm wounds on the dead body of Mst. Anwar Mai, 2 fire‑arm wounds on the dead body of Mst. Pathani, 2 fire‑arm wounds on the dead body of Mst. Sachal. In his opinion, the cause of their death was shock and heamorrhage. The injuries were ante‑mortem and were caused by fire‑arm. The time between injuries and death was between 36 and 48 hours.

6. The appellant was arrested on 5‑4‑1988 by Bashir Ahmad, S.I./S.H.O, P.W.12. No weapon could be recovered from him during investigation.

7. To prove its case, prosecution produced 12 witnesses. Mst. Haleema P.W.2, Mst. Jannat P.W.8, Mst. Begum P.W.9, Abdul Rehman P.W.10 and Muhammad Akbar P.W.11 have given the ocular account of the occurrence. They claim to have seen the appellant recklessly firing with his kalashnikov alongwith his co‑accused, who, too, were firing with their weapons. The witnesses also claim to have identified the appellant at the time of occurrence. Abdul Rehman P.W.10 has also deposed about the alleged motive for the crime, Dr. Abdul Wahab P.W.1 has proved the medico‑legal reports of the injured P.Ws. and the post‑mortem examination reports of the 18 deceased. Abdul Hameed Qadafi, A.S.I. P.W.7 was entrusted with non‑bailable warrants for the arrest of Sahaba appellant. He has proved his report Exh.P.7/A‑

3. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He declined to give evidence on oath in disproof of the charges against him. No witness was produced in defence.

9. Believing the alleged motive, the ocular evidence and the circumstance of absconsion of the appellant proved by Abdul Hameed A.S.I. P.W.7, the trial Court has convicted and sentenced him as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubts, inasmuch as there is a delay of about 19 hours in lodging the F.I.R. that the absconsion of the appellant has not satisfactorily been proved; that the eye‑witnesses are related to the deceased; that no parade for identification of the appellant was held and that there are major contradictions/material discrepancies in their statements. The learned Assistant Advocate‑General has supported the judgment of the trial Court.

11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement of the appellant recorded under section 342, Cr.P.C. and the circumstances appearing in the case, carefully. We do not feel persuaded to agree with the learned counsel for the appellant. No doubt, F.I.R. was lodged after about 19 hours of the occurrence but this delay has satisfactorily been explained in the F.I.R. and in statement of the complainant before the Court. The complainant stated that because of the fear he could not go to the police station on the night and proceeded towards the police station on the following day to lodge report. The place of occurrence is 45 k.m. from the police station. Eighteen persons of the Bradri of the complainant had been killed by the appellant and his co‑accused. In these circumstances, his statement that because of the fear he could not leave for police station on the night, appears to be true.

12. Adverting to the ocular evidence, we find that five witnesses namely Mst. Haleema, Mst. Jannat, Mst. Begum, Muhammad Akbar and Abdul Rehman, P.Ws. had no motive to depose falsely against the appellant. Brother of the appellant was killed about 15 years before the occurrence by Matara, a relative of the witnesses and no untoward incident had taken place till the present occurrence. The statements of the eye‑witnesses cannot be discarded on account of mere relationship with the deceased. Mst. Haleema P.W. is an injured witness. By the fact of injuries, her presence on the spot is very much established. Mst. Jannat, Mst. Begum, Abdul Rehman and Muhammad Akbar P.Ws. being residents of the village where the occurrence took place, are the natural witnesses. All the eye‑witnesses have successfully faced the test of cross-examination. The statements made by them are in consonance with probabilities and materially fit in with the rest of the evidence. The statements made by them do not suffer from material discrepancies/major contradictions or dishonest improvements. They have consistently stated in the F.I.R., statements under section 161, Cr.P.C. and statements before the Court that they had seen and identified the appellant as one of the culprits, who had murdered the 18 deceased and injured P.Ws. by firing shots from kalashnikovs and rifles. The number of the culprits named by them commensurates with the number of the injuries received by the 18 deceased and the two injured witnesses. In view of large number of the deceased and the injured P.Ws. the eye‑witnesses could easily involve other relatives of the 11 accused or their enemies, but they have not done so. We are convinced that 5 eye‑witnesses were in fact present on the spot and had correctly p identified the appellant as one of the offenders and conviction can safely be upheld on their testimony without independent corroboration qua the appellant. If the rule of prudence still requires corroboration of the eye‑witnesses, the same is also available in the shape of circumstances of absconsion of the appellant proved by Abdul Hameed A.S.I. P.W.7. The occurrence took place on 3‑2‑1988. Non‑bailable warrants for his arrest were issued, efforts were made to arrest him but he could not be found. We do not see any reason to disbelieve Abdul Hameed A.S.I. The submissions made by the learned counsel for the appellant are devoid of force and substance. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction recorded by the learned trial Judge, the appeal is dismissed. M.Y.H./A‑579/L Appeal dismissed.