TAJ MUHAMMAD vs PESHAM KHAN And Other

MIAN BURHANUDDIN KHAN, J.--Leave was granted bye this Court, vide order, dated 11-11-1984 against Pesham Khan, Mir Hatam Khan, Ahmad Khan (alias Ahmad) and Aslat Khan, on account of their long abscondence, while leave was refused to Mahabat Khan, Waris Khan, Haji Muhammad Ali and Haji Dur Muhammad. All these eight accused /respondents were tried by the learned Additional Sessions Judge, Lakki under sections 302, 307, 148, 149 and 404, P.P.C., they were found guilty and sentenced as follows:- Under section 302/149:-- Two counts death sentence and fine Rs.5,000 each. , Under section 307/149--Two counts--ineffective firing---7 years' R.I. And fine Rs.5,000 each.

Under section 404/149--3 years' R.I. And fine Rs.2,000 each.

Under section 148--3 years' R.I. And fine Rs.2,000 each.

In each case of default, 3 months' S.I. Half of the amount of fine, if realized, was ordered to be paid to the heirs of the two deceased in equal shares.

Leave was granted to consider whether the contradictions pointed out by the High Court were not significant; that the High Court had erred in assuming that all the entrance wounds were on the back and the exit wounds on the front of the deceased and that the delay in loding the F.I.R. Had been explained by the fact that the complainant had first gone to the village some 5/6 miles and from there brought cots to the spot on which the victims were taken to the village and from there he had gone in a bus, alongwith the dead bodies, to the police station which was 12/13 miles away.

It is also submitted that even though enmity subsisted between the parties the evidence of the ocular witnesses could not be discarded merely because they had received no injury.

2. All the convicts filed appeal before the High Court and a learned Division Bench, vide the impugned judgment, acquitted all of them observing as follows:- "Taj Muhammad P.W.10 and Shadi Khan P.W.11 who are admittedly close relations of the two deceased. Taj Muhammad is the brother of Ghulam Muhammad deceased and Shadi Khan P.W., a real uncle of the said deceased, therefore, both were 'chance witnesses' par excellence. The trial Judge has misdirected himself on a most crucial point, leading to a gross miscarriage of justice, that no recoveries were made from any of the appellants and there is absolutely no support for the charges under section 404/149 or 307/149, P.P.C., that the learned trial Judge has failed to appreciate the glaring conflict between the medical evidence and the prosecution case, which is further supported by the location of recovered spent bullets on the spot. The learned trial Judge has tried, in vain, to explain away all the awkward facts and circumstances, which must have stared him in the face, that the learned trial Judge has simply relied on the bare statements of the two prosecution witnesses, Taj Muhammad P.W.10 and Shadi Khan PW.11 without making any effort to scrutinize their testimony in accordance with the well-established principles of criminal jurisprudence. The background of blood feud, the close relationship, the clear unexplained delay in lodging the F.I.R. Their extraordinary claim of being in the company of the two deceased, without any rhyme or reason (only to figure as witnesses at the trial) have ell been brushed aside or ignored ...."

3. In nutshell the prosecution case against the accused/respondents is that on the fateful day the two deceased namely Abdul Baqi and Ghulam Muhammad, alongwith Taj Muhammad P.W.10 and Shadi Khan P.W.11 and Maazullah had set out for a shoot in the hill known as Zarifwal Mountain in the morning time on 15-5-1981 Ghulam Muhammad deceased was carrying his licensed D.B.

Shotgun alongwith bandolier full of cartridges; Abdul Baqi deceased had a S.B. Shotgun while Taj Muhammad, Shadi Khan and Maazullah were empty-handed. On' return from the shoot in the afternoon the two deceased were going ahead of the witnesses; when they reached near Khulla Tangi (hill torrent) Mohabat, Waris, Aslat and Mir Hatam accused /respondents got up from behind small bushes on the western side of Khulla Tangi, they were duly armed, then Muhammad Ali, Dur Muhammad, Ahmad Khan (Ahmand) and Pesham Khan also got up, from the same side, armed with Topaks. Mohabat Khan ordered the accused/ respondents saying that the opportunity should not be lost and the deceased and their companions should be killed. Mohabat Khan, Waris, Aslat and Mir Hatam simultaneously fired effectively at Ghulam Muhammad deceased who turned to the right side and dropped down. Abdul Baqi deceased was fired upon by Muhammad Ali, Dur Muhammad, Ahmand and Pesham khan, effectively. Ghulam Muhammad deceased was fired at again by Mohabat Khan and his companions while Muhammad Ali fired again another volley of shots at Abdul Baqi deceased who turned round to the right side and dropped to the ground. It is stated that all the accused/ respondents then fired at Taj Muhammad, Shadi Khan and Maazullah P.Ws. Who had by then, ran away for a considerable distance from the spot. On the departure of the accused /respondents when the witnesses returned, they found both the deceased dead and their shotguns taken away by the accused /respondents. Taj Muhammad left for his village Ahmad Khan lying at a distance of about 5 miles from the spot, in order to arrange for the cots so as to carry the dead bodies and inform the relations in the village, while Shadi Khan and Maazullah remained on the spot with the dead bodies. Taj Muhammad returned alongwith the villagers; carried the dead bodies of the two deceased to the village wherefrom the bodies were taken 'to the police station in a bus where Taj Muhammad lodged the F.I. R. Giving the time of occurrence as 1- 45 p. m. On 15-5-1981.

4. As already stated complainant Taj Muhammad P.W.10, real brother of deceased Ghulam Muhammad, was examined at the trial and he gave ocular account of the occurrence as narrated above. Shadi Khan P.W.11 is uncle of Taj Muhammad while Maazullah is Tarboor (cousin) of Taj Muhammad. Shadi Khan P.W.11 gave same details of occurrence as was given by Taj Muhammad Maazullah was given up by the prosecution as unnecessary and rest of the witnesses were formal, of which Omar Daraz F.C. P.W.1 is worth mentioning. He was entrusted with the search-warrants under section 204, Cr.P.C. For the arrest of Mir Hatam (EXh. P.S); Aslat Khan (Exh. P.T.), Pesham Khan (Exh. P.U.) and Ahmad Khan (Exh. P.V.) He searched for the accused in their villages as well as in - the surrounding villages, and returned the warrants un-served. He also carried the proclamations under section 87, Cr. P.C. Against the accused /respondents.

5. Dr. Muhammad Younas performed the post-mortem examination on the dead body of Abdul Baqi and found the following injuries on it:-

(1) Entrance wound at the middle of right posterior exillary line -- " x -- ".

(2) Exit wound on the front of the chest at the middle of sternal body 2" x 2"

(3) Entrance wound on the lateral side of left chin (lorant) -- " x -- ---.

(4) Exit wound at the left calf (middle) size 2" x 2".

(5) Entrance wound at the left elbow joint lateral side -- " x -- ".

(6) Exit wound at medical side of left elbow joint size 1" x 1".

(7) Lacerated wound 4 the tip of left big toe size 1" x -- ".

The pleurae, right lung, heart and pericardium were found injured and the sternum, left elbow and left tibia were found fractured and in the opinion of the doctor the deceased died due to injuries to vital organs and profused haemorrhage.

6. The same doctor conducted the post-mortem examination on the body of Ghulam Muhammad deceased and found the following injuries on the person of the deceased:--

(1) Entrance wound on the lower end of interal side of left thigh 3" above knee joint -- " x -- ".

(2) Exit wound on medial size of left thigh 2" above knee joint sie 1" x 1".

(3) Entrance wound on right knee joint medial side -- " x --

(4) Entrance wound on the back of right side size -- x -- ---.

(5) Exit wound in the right iliac fossa size 1" x 1".

(6) Entrance wound in chest right side, 1" behind right posterior, exillary line --x -- .

(7) Entrance wound No.7, 1" above wound No. 6 size --x -- .

(8) Exit wound in the neck right side base size 1" x 1".

The doctor found injuries to pleurae, right lung, large intestine, liver alongwith peritonium and left thigh was found fractured and in his opinion death of the deceased occurred due to damage done to vital organs and profused haemorrhage.

7. We have heard Raja Muhammad Anwar, Senior Advocate learned counsel for the appellant Taj Muhammad complainant, Mr. Zahoorul Haq learned counsel for the respondents and Mr. Bashirullah Khan, Assistant Advocate-General, N.-W.F.P. The main contention raised by the learned counsel for the appellant is that the two witnesses have given a graphic account of the occurrence; there is no discrepancy whatsoever in their statements and the medical evidence; that it is common knowledge that people do accompany their friends and relations when they go for shooting and there is nothing unnatural in it; that the medical evidence, in no way, contradicts the ocular testimony of the two witnesses; that the deceased had injuries on various parts of their bodies indicating that the moment they saw their assailants they turned round and ran for their lives and were fired at by the accused /respondents with shotguns and other fire-arms description whereof could not be given by the witnesses accurately; that the delay has also been explained by Taj Muhammad P.W.10 i.e. He carried the dead bodies to the village, lying at about 5 miles, for getting necessary help and thereafter he arranged transportation of the dead bodies, to the police station in a bus, which must have taken quite long. It was lastly contended by the learned counsel that mere relationship or enmity would not always suffice to discredit the natural and truthful witnesses, as in the instant case.

8. We have examined the contentions raised by the learned counsel and find that the impugned judgment is well-founded. The witnesses who claimed to be present on the spot, could not stand the acid test of credibility as laid down by this Court. It is admitted at all hands that the deceased and the accused respondents had blood feud and a copy of report regarding earlier occurrence Exh. P.P. Is placed on the record. In such circumstances it is necessary to find very strong corroboration of the testimony of the eye-witnesses. Mere abscondence would not be enough to sustain conviction of the accused/respondents, and to distinguish their case from the other four accused/ respondent against whom leave had been refused by this Court. Regarding the delay, we are not convinced that it has been satisfactorily explained. Taj Muhammad P.W.10, in his statement admitted that village Zarifwal was nearer to the spot and in his statement Shadi Khan, P.W.11 also admitted that village Zarifwal was lying at a distance of about two furlongs from the spot.

Therefore, they could get assistance or bring cots from' this village (instead of village Ahmed Khel, lying at about 5/6 miles from the spot) which are normally available and the people of hamlet would not have refused to carry the dead bodies to the village of the deceased. Thus, having agreed with the observation of the learned High Court Judges, we find no reason to interfere with the impugned judgment. Appeal dismissed. The accused /respondents shall be set at liberty forthwith, if not required in any other case.