GHUNCHA GUL vs The STATE

1. SAJJAD AHMAD, J.-The appellant, Ghuncha Gul, was tried along with his brother, Badshah Gul, and their cousin, Akram under section 302/34, P. P. C., for the murder of their co--villager, Abdullah Jan, which took place at peshin time on the 19th of December 1967. Another brother of the appellant, Nabi Gul, was also named as a co-accused in this crime. He had absconded after the occurrence, and is stated to be still at large. The trial Judge acquitted Badshah Gul and Akram, but convicted the appellant, and awarded him the penalty of death, which has been confirmed, on appeal and reference, by the High Court (Peshawar).

2. The alleged motive for the murder was that some 22 years ago, a brother of the appellant, named Anar Gul, was killed for which a charge was laid against Abdullah Jan, deceased, and some others, which did not succeed in Court, and the accused were acquitted.

3. The occurrence was reported at the Police Station Thati Nasrati (distance 18 miles) the same night at 11-30 p.m. By P. W. Azad Gul, a tarbor of the deceased. It was stated in the report that the 4 accused, including the absconder, had fired one shot each at the deceased in front of the staff rooms of the Kohat Coal Mines at Lando Stop where the deceased had gone for labour. At peshin time, he had come to the staff quarters to collect his wages, and just as he entered the court yard of the staff rooms, the accused fired at him. Badshah Gul and Akram, the acquitted accused, had a rifle each in their hands while Ghuncha Gul and Nabr Gul were armed with shot-guns. The shots fired by Badshah Gul and Akram went amiss but those of the other two were effective. The incident was witnessed, amongst others, by P. Ws. Azad Gul, Khial Jan and Rasha Din.

4. The post-mortem examination of the deceased revealed that he had sustained,

(1) A wound of entry 2" x 2" on the left eye, which smashed his left eye and a part of his nose, with a corresponding exit wound on the right eye and cheek bone, and

(2) Two wounds of entry on the right buttock, each 1/8" in diameter, with their exit at the front of the right thigh.

5. All these were gun-shot injuries. It was stated at the trial that injuries on the right buttock of the deceased were caused by the shot fired by the appellant, Ghuncha Gut, after which the deceased fell down on the ground, and then Nabi Gut, the absconder, fired his shot, which struck the deceased on his face, causing his instant death In considering the evidence of the eye-witnesses against the appellant, the learned Judges of the Division Bench in the High Court have observed as follows :- "We have already come to the conclusion that Azad Gut and Khial Jan P. Ws. Are not only interested but also inimical---------------..

6. Had the evidence against the appellant comprised only of the statements of Azad Gut and Khial Jan, we would have hesitated to maintain the conviction, but their evidence is supported by Rasha Din. We find from the statement of Khial Jan that Mst. Gut Jamina is the mother of Azad Gut P. Ws.

7. She is the daughter of Latif, an uncle of Rasha Din. The relation--ship of Rasha Din, in our opinion, is remote. He had no interest or motive to depose against the appellant falsely."

8. At another place, they have remarked as follows: "We are inclined to accept the evidence of Azad Gut and Khial Jan, which is corroborated by Rasha Din, whom we consider as a disinterested person, and proceed to act on it."

9. We feel that there should have been no reluctance on the part of the learned Judges to accept the testimony of P. Ws. Azad Gut and Khial Jan in spite of their near relationship with the deceased, as their presence at the scene of occurrence could not be doubted, and was supported by circumstantial evidence. One conspicuous merit of their statements is that before the medical examination of the deceased, it was stated in the First Information Report lodged by Azad Gul, in which he had also mentioned the presence of Khial Jan and Rasha Din as eye--witnesses, that the effective shots on the deceased were those which had been fired by the appellant and the absconder with their shot-guns respectively, and that the rifle shots fired by the other two accused had gone amiss. This found support from the gun shot injuries as revealed by the pot-mortem examination of the deceased. P. W. Rasha Din is also connected with the deceased, although remotely, but it would be wrong to discard the evidence of relation witnesses merely on the ground of their relationship, if otherwise it induces confidence and finds support from circumstantial evidence. The presence of the appellant at the scene of occurrence was proved by two independent witnesses) namely. P. Ws. Ayub and Abdur Rahman. He had gone to the shop of the former a little while before the occurrence to pay off his debt to him for the price of the articles that he had been buying from him, and he had gone to the latter to collect his wages from him. Both of them stated that they had seen the accused un-armed at that time, but that does not prove that the appellant did not have the shot-gun with him at the time he fired at the deceased, as alleged by the prosecution. It may be that the two witnesses, mentioned above, did not notice the shot-- gun with him, which he may have been carrying in the normal routine. Carrying of weapons in this part of the county is a very normal incident, which need not attract notice. It may also be that the appellant had kept his gun aside when he went to these witnesses, and he may have got hold of it later before its actual use. As the evidence of the eye-witnesses, which is free from doubt, fully establishes his guilt, it would be wrong to indulge into conjectures as to whether or not he was carrying his gun at the time when he visited these witnesses.

10. The learned counsel for the appellant argued that the motive for the murder of the deceased as alleged by the prosecution, could not be accepted against the appellant, as he was himself one of the accused along with the deceased Abdullah Jan in the murder case of Anar Gut. As already stated, the murder of Anar Gut had taken place 22 years ago, and it is not clear how was the present appellant associated with that murder along with the deceased. Blood being thicker than water, it is quite possible that the emotions of the appellant were freshly ignited to avenge the murder of his brother at the hands of the deceased, even though rightly or wrongly he was also implicated in that murder along with the deceased at that time. However it is irrelevant to discover the real motive of an accused person when, as in this case, his guilt for the offence is proved by direct and acceptable evidence.

11. It was lastly argued by the learned counsel that as the injury caused by the appellant to the deceased was not fatal, being on his buttock, he could not be held guilty under section 302, P.P.C.

12. Particularly as the trial Judge had held him to be individually responsible for his action and not making him liable construc--tively for the action of his co-accused, Nabi Gut, who had ceased the fatal injury to the deceased. This argument is wholly untenable. There could be no mistake about the intention of the accused, which was to kill the deceased, and he would be responsible for the result achieved both singly and jointly with his co-accused. The result is that this appeal is dismissed.