RAMZAN Versus STATE

1. HAMOODUR RAHMAN, C. J.‑ The two petitioners before us were charged along with 3 others for having formed themselves into an unlawful, assembly armed with fire‑arms and in prosecu tion of the common object of that unlawful assembly committed the murders of 3 persons and made murderous assaults on 3 others in the area of village Nawi Killi within Police Station Hangu, District Kohat, on the 21st of April 1971, at Qaza Pesht time.

2. The 3 others having absconded only the petitioners were committed to trial and were convicted on all counts by the Additional Sessions Judge, Kohat, who sentenced them to life imprisonment each on 3 counts under section 302/149, P. P. C. and to 3 years' R. 1. each on 3 counts under section 307/149, P. P. C. and one year's R. I. under section 118, P. P. C. The lesser sentence was given, because, the learned Sessions Judge found it difficult to hold with certainty as to whose shot had killed whom and injured whom.

3. According to the prosecution, the complainant, the deceased Mirza Khan, the deceased Kamin Bibi, and the injured were, along with Lal Badshah, Khial Badshah and Kinar Gut, helping Mistri Chinar Gut in constructing the wall of Mirza Khan deceased by carrying stones from outside to the wall. At this time the petitioners and the‑ absconders came from the front and started firing at the complainant‑party with their respective weapons so indiscriminately that even a baby, Ahmad Khan, then being carried in the lap of Mst. Zar Tukma was also hit.

4. It appears that on an earlier occasion another fight had taken place between the two sides on 28‑6‑70 in which one person from each side had been killed. In that case the complainant side had been acquitted but the petitioners and the absconders had been bound down under section 107, Cr. P. C. for keeping the peace.

5. The story of the prosecution is that due to this previous enmity and the desperate nature of the attack the complainant side were so frightened that they ran and took shelter within their houses and bolted their doors. They did not dare to come out until the Police Officer arrived there on hearing the cries of persons weeping inside.

6. The Police Officer says that he was out on gasht in this village when he heard the cries of persons weeping and then knocked at the door of Musa Khan. There he came to learn of the incident and recorded an F.

1. R. at 9‑15 p.m. on the dictation of Musa Khan. Then he heard persons weeping in the house of the accused. He went there and also recorded another F. I. R. on the dictation of Mst. Gut Bibi relating to the murder of Mst. Gut Jutna wherein she charged Musa Khan, a prosecution witness in this case, Kinar Gut and others.

7. The defence alleged false implication because of this cross case. Nevertheless, the trial Court relying largely on the evidence of Mistri Chinar Gul who had no relationship or enmity with xar either of the parties, came to the conclusion that the prosecution Spa case against the petitioners had been proved beyond any reason able doubt. It rejected the defence version that the complainant side were the aggressors because of the fact that a woman and a R ' child had also been killed on the complainant side and 3 other women injured. If the complainant side were the aggressors they would not have gone for the fight with their women‑folk and one of them actually carrying a child in her lap. The petitioners were, accordingly, convicted and sentenced as aforesaid.

8. On appeal, the High Court acquitted the petitioners in respect of the charge under section 307/149, P. P. C. for the murderous assault on Daulat Bibi, as the injury on her was found to have been caused by a blunt weapon and Daulat Bibi was not examined at the trial. The convictions and sentences of the petitioners on all other counts were maintained.

9. The petitioners now seek special leave to appeal and the learned counsel appearing in support of this petition has con tended ; (1) that there was inordinate delay in lodging the F. I. R. which had in fact been recorded at the place of the incident by the Police Officer after he had started investigation ; (2) that the prosecution witnesses had been contradicted by the medical evidence and their respective police statements and (3) that the prosecution had suppressed the murder of Mst. Gut Juma for which the cross‑case had been started against five persons including Musa Khan, the informant in the present case himself'.

10. In these circumstances, it is contended, relying on the observations of this Court in the case of Tho6a v. The State (P L D 1963 S C 40) that in this case, involving a capital charge, the ocular evidence neither comes from an unimpeachable source nor is it supported by such strong circumstances "as might serve to overcome the inherent doubt by which such evidence is necessarily affected".

11. We are conscious of the necessity of the ocular evidence in such cases being of an unimpeachable character but having examined the facts of the case now before us we are unable to say that the prosecution evidence suffers from any inherent doubt. The evidence of Mistri Chinar Gul, a completely independent witness, dispels all doubt. His evidence can safely be considered to be unimpeachable and in so far as his evidence supports the other witnesses, of whom two were actually injured during the course of the incident, we see no reason to reject their testimony.

12. The contention that the complainant party were the aggressors as been rightly rejected by the Courts below. We are in agreement with them that if the complainant party were the aggressors they would slot have gone out to attack along with their women folk including one carrying a baby in her arms nor would the incident have taken place just outside their house.

13. The cross‑case has no material bearing in this case which has to be decided on the evidence adduced herein and not on the basis of the evidence in the cross‑case.

14. In any event, all the points raised go merely to the apprecia tion of evidence which is not a function normally undertaken by this Court. We are of the opinion that the evidence has been rightly appreciated by the Courts below and no fundamental a ' principle or rule relating to the appreciation of evidence has been disregarded.

15. The prosecution evidence establishes that the deceased persons and the injured witnesses were moving about outside the house of Mirza Khan carrying stones for the purposes of the construc tion of a wall. They were, therefore, not stationary. The locations of the injuries found on their persons, therefore, do not contradict their versions. In such a state of affairs when five persons were firing at random it would have been too much to expect each witness to fix accurately the person whose shot injured him or her. The discrepancies with regard to the injuries, therefore, are not at all material, The identity of the assailants in this daylight incident having been well‑established, they have rightly been held to be constructively liable for the murders and the murderous assaults committed in furtherance of their common object.

16. We see no ground for interference in this case and, accordingly, dismiss this petition.

17. Leave refused.