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Criminal Appeal No. 66 of 1979 and Criminal Petition No.63‑Pof 1978, decided on 28th October, 1985.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 27‑6‑1978 passed in Criminal Appeal No. 161 and Criminal Revision No. 102 of 1977).

‑‑‑S. 302/307/34‑‑Conviction and sentence on charge of three murders‑ Case of sudden flare‑up‑‑No previous enmity‑‑No proof of pre‑meditation and pre‑planning‑‑Extreme penalty not awarded‑‑Conviction and sentences upheld by High Court with slight modification, challenged‑‑One of accused, though implicated in F.I.R. for commission of offence alongwith others, found dead on spot‑‑No explanation furnished for his death‑‑Prima facie case of suppression of truth‑‑Possibility of sudden fight having occurred between rival parties, not ruled out‑‑Benefit of doubt accorded to accused‑‑Convictions under S. 302, P.P.C. altered to S.304, Part‑I, P.P.C. and sentences reduced‑‑Conviction under S.307/34 set aside‑‑Appeal dismissed subject to modifications.

Ch. Tariq Azam, Advocate Supreme Court instructed by M.A. Siddiqui, Advocate‑on‑Record (absent), for Appellants (in Criminal Appeal No. 66 of 1979).

Basharatullah Khan, Asstt. Advocate‑General, N.‑W.F.P. assisted by M. Qasim Imam, Advocate‑on‑Record (absent) for Respondents (in Cr. Appeal No. 66 of 1979).

Ahmed Raza Khan Kasuri, Advocate Supreme Court with M. Qasim Imam, Advocate‑on‑Record (absent) for Petitioner (in Cr. Petition No. 63‑P of 1978).

Ch. Tariq Azam, Advocate Supreme Court instructed by M.A. Siddiqui, Advocate‑on‑Record (absent) for Respondents (in Cr. P. No. 63‑P of 1978).

Date of hearing: 28th October, 1985.

This appeal is from the judgment and order of the Peshawar High Court, Peshawar, dated 27‑6‑1978 whereby the conviction and sentence of life imprisonment awarded to the appellants by the learned Sessions Judge, Mardan, vide his judgment, dated 14‑11‑1977 was maintained with some modification and their appeal was dismissed.

2. The appellants were tried by the Sessions Judge, Mardan for the murder of Khaista Khan and his sons Ramdad and Aseem Khan on 3‑7‑1974 alongwith Muhammad Imran, Ayub and Abdul Majid. Another accused Nisar, whose name also figured in the F.I.R. shown as killed.

3. The occurrence was reported to have taken place on 3‑7‑1974 at 1700 hours (Deegar Walla) in fields in the area of Khaista Khan Karoona situated within the area of Police Station Takht Bai, District Mardan, which was about six miles away from the said police station. The complaint was lodged by Sarfaraz son of Khaista Khan (deceased) P.W. 6, and brother of the other two viz. Ramdad and Aseem Khan. It was recorded on the same day at 19.15 hours. No motive for the murder was disclosed in the F. I. R. and on the contrary it was stated that there existed no enmity between the parties.

4. The prosecution story shortly stated is that on the day of occurrence at about 5.00 p.m. Sarfaraz complainant (P.W. 6) and Aseem Khan deceased were going to their field. On reaching there they saw Israr accused demolishing their Pullah. The complainant restrained them from doing so and offered to settle the dispute through the elders. On this Israr accused, went away to his house and in the meantime complainant's father Khaista Khan, Ramdad and Noor Zaman came to the field. The complainant and Aseem Khan were busy in plucking lady fingers. The complainant informed his father about what had happened between him and Israr accused. After a short while Israr armed with a Kudali, Nisar (shown killed in the cross‑case) empty‑handed, Abdul Majid, Abdul Wahab, Ayub, Abdul Wajid all armed with shot guns and Muhammad Imran armed with rifle appeared on the spot. The accused started firing at the complainant party. Aseem Khan was hit with the fire shot of Abdul Majid while Ramdad was hit with the fire shot of Abdul Wahab and they both fell down. Nisar accused caught hold of Khaista Khan while Israr gave him blows with the handle of Kudali, who also felt down. The accused then ran away.

5. The eye‑witness account in the case was furnished by Sarfaraz (P.W. 6) and Mir Zaman (P.W. 7) both sons of Khaista Khan. Another person Hassan Khan who was also named in the F.I.R. was given up by the prosecution as being unnecessary. The recoveries from the spot comprised of blood‑stained earth, 7 cardboard wads (Exh. P.7), 3 empties of 7 mm (Exh. P. 8) and one missed round (Exh. P. 9). The only personal recovery made in the case was a shotgun, licensed in the name of Abdul Khaliq from the accused Abdul Majid. This was secured on 4‑7‑1974. According to the medical evidence the deceased had suffered injuries as under:‑

(1) A bruise on the left lower side of the abdomen size about 5" x .

(2) Bruise on the epigastrium size 4 " x 1".

(3) A bruise on the left side of the chest on the 3rd and the 4^th space ribs fractured.

(4) Scrotam haemotoma with crused left testis.

(5) A bruise on the back of the upper part of the chest size 3" x 1".

(1) An entrance wound in the 5th space on the left side of the chest in the axillary line size 1/3" x 1/3". No exit wound not charring mark.

(2) An entrance wound in the left hypogastrium below the costal margin size 1/3" x 1/3". No exit no charring.

(3) An entrance wound on the lateral aspect on the middle of the left arm size 1/3" x 1/3". No charring marks but with a corresponding exit wound No. 1‑A on the medial side of the same arm. Size " x ".

(4) An entrance wound on the lateral aspect of the lower third of the left humerus size 1/3" x 1/3". No charring but with exit wound No. 4‑A on the medial side of the left elbow joint size " x .

(5) An entrance wound on the dorsal aspect of the lower one‑third of the forearm size 1/3" x 1/3" with exit wound No. 5‑A on the ventral aspect of the lower part of the left forearm.

(6) An entrance wound on the dorsam of the left hand size 1/3" x 1/3" with exit wound 6‑A.

(1) An entrance wound on the left perital eminence (skull) size about 3/4" x 3/4". No exit no charring.

(2) An entrance wound on the left side of the chin size 1/3" x 1/3". No charring marks with exit wound 3" just. below the interior remuas of the right mendeble, at a distance of 2 " from, wound No. 2. Size " x ".

(3) An entrance wound at the root of the left side of the neck interior 1/3" x 1/3". No charring. Pellets recovered from the site (6) chest wall right side.

(4) An entrance wound just above the mid‑point of the right clavical 1/3" x 1/3". No charring no exit. Pellet recovered from side No. 6 right arm.

6. On trial the learned Sessions Judge, Mardan held that the prosecution had succeeded in bringing home the charges of murder of Khaista Khan, Ramdad and Aseem Khan against the appellants and Nisar deceased. The case against Nisar was held abated on account of his death. The accused Ayub, Muhammad Imran and Abdul Majid were acquitted on the finding that the prosecution had failed to prove their involvement in the offence. The appellants Abdul Majid and Abdul Wahab were also held guilty for the attempt of murder on Sarfaraz and Mir Zaman (P.Ws.) ineffectively. Muhammad Israr appellant was convicted under section 302/34, P.P.C. whereas Abdul Majid and Abdul Wahab were convicted under section 302/307/34 of the Pakistan Penal Code. On the question of sentence the learned trial Court held that since it was a case of sudden flare up and there was no proof of pre‑meditation and pre‑planning, the extreme penalty of death was no warranted. Muhammad Israr was, therefore, sentenced under section 302/34, P.P.C. to imprisonment of life and fine of Rs.2,000 by way of compensation under section 544‑A, Cr.P.C. or in default to one year's rigorous imprisonment also. Abdul Majid and Abdul Wahab each were sentenced to imprisonment of life under section 302, P.P.C. and seven years' rigorous imprisonment each under section 307/34, P.P.C. They were also sentenced to pay a fine of Rs. 2,000 each by way of compensation under section 544‑A, Cr.P.C. The fine, if realised, was ordered to be paid to the heirs of the deceased in equal shares.

7. On appeal from the judgment of the learned Sessions Judge by the appellant, their convictions were maintained by the learned High Court and the appeal dismissed. The only modification made by the learned High Court was in respect of Muhammad Israr inasmuch as his conviction under section 302, P.P.C. alone was sustained alongwith fine and in default he was ordered to undergo six months' rigorous imprisonment.

8. We heard the learned counsel for the appellants and the learned Assistant Advocate‑General for the State and have gone through the record of the case.

9. One striking feature of the case which, stares in the face, is that although Nisar deceased was implicated in the F. I . R . for the commission of the offence alongwith the other co‑accused yet significantly no explanation whatsoever was furnished for his death. All that was said by the eye‑witnesses was that he might have been killed by the shots fired by the other co‑accused. Such a vague assertion prima facie has a ring of suppression of truth.

10. Admittedly the three persons from the complainant side and Nisar of the accused party were all killed and found lying in the same field of the complainant party from where blood was also recovered. While the eye‑witnesses have given detailed account as to the manner in which Khaista Khan, Ramdad and Aseem Khan were killed but it has not been stated how the accused Nisar was killed. According to the F.I.R. as well as the prosecution witnesses the deceased Nisar was empty‑handed. It was alleged that he had caught hold of Khasista Khan while Israr gave him blows with the handle of Khudali. Sarfaraz complainant (P.W. 6) said nothing about the killing of Nisar in his examination‑in‑chief and when cross‑examined all that he had to say was that he had seen Nisar lying in the field and he might have been killed by his companions. In the same breath he volunteered to State that none of his party men was responsible for his killing. Mir Zaman (P W, 7) gave a different version, as according to him, Nisar had run back after having 'fired' at the complainant party. The statement of Sarfaraz (P.W.) and the contention of the prosecution that Nisar may have been killed as a result of some stray shot fired by one of his own party‑men does not furnish any explanation. Although the failure to explain the killing of Nisar may not render the testimony of the prosecution witnesses unbelievable, yet it is a circumstance, which cannot be ignored and for which the benefit must be accorded to the accused /appellants, particularly in view of the admitted fact that there existed no previous enmity between the parties. For these reasons the possibility of sudden fight having occurred between the rival parties cannot be ruled out. On this view of the case the offence committed by the appellants falls under section 304(1), P.P.C.

11. We, therefore, alter the conviction of the appellants from section 302, P.P.C. to section 304‑I, P.P.C. and sentence each one of them to undergo rigorous imprisonment for 10 years; and set aside the convictions and sentences of Abdul Majid and Abdul Wahab under section 307/34, P.P.C. While maintaining the sentence of fine under the altered section and the sentence in lieu thereof, we direct Muhammad Israr, Abdull Majid and Abdul Wahab to pay a compensation of Rs.20,000 each to the heirs of Khaista Khan, Ramdad and Aseem Khan, respectively or in default to suffer rigorous imprisonment for six months. The benefit of section 382‑B, Cr.P.C. shall be extended to the appellants while computing the period of imprisonment.

12. The appeal is accordingly dismissed subject to the above modifications. As a result therefore, Criminal Petition No. 63‑P of 19781 stands dismissed.

M. I. Order accordingly.

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