ljaz-ul-Hassan, J.--Appellant Shah Room Khan alias Shero alongwith acquitted co-accused Fazal Rehman, was tried under Section 302/34 PPC by Syed Ihtesham Ali, Additional Sessions Judge/Izafi Zilla Qazi, Swat for commission of murder of Amir Said (12/13) by firing and was convicted under Section 302(b) PPC vide the impugned judgment dated 31.10.2003 and sentenced to suffer life imprisonment with benefit of Section 382-B Cr.P.C. However, co-accused Fazal Rehman was extended benefit of doubt and acquitted of the charge.
2.The appellant has preferred instant Cr. Appeal No, 782/2003 to call in question his conviction and sentence, whereas Mst. Noor Jehan complainant has filed Cr. Revision No, 26/2005 seeking enhancement in sentence from imprisonment for life of the appellant to that of penalty of death and any other relief the Court may deem it proper in the circumstances of the case. Since both the matters have arisen out of one and the same judgment, therefore, we propose to dispose of the same through this single judgment.
3.The occurrence in this case took place in the house of Mst. Noor Jehan complainant situate at `Mian Baila Kas' at 10.00 a.m. on 7.5.2001, the report of which was made on the same day at 3.00 a.m. by the complainant and it was recorded by ASI Zafar Ali Khan (PW-9) who happened to be on routine 'gasht' of the area.
4.The brief facts of the case as contained in the FIR are, that on the day of occurrence i,e, 7.5.2000, Mst. Noor Jehan complainant, her daughter Mst. Nasib Sultana PWs and her brother's son Amir Said (deceased) were present in the house when at about 10.00 a.m. appellant Shah Room Khan alias Shero armed with shotgun and co-accused Fazal Rehman armed with Kalashnikov, came near the house of the complainant and asked about Momin Khan son of the complainant. The complainant expressed her ignorance about whereabouts of Momin Khan. In the meanwhile, appellant fired at Amir Said with his shotgun, as a result whereof the victim was hit on the cheek and died there and then. After accomplishing the mission, both the accused decamped from the spot. Explaining the motive it was disclosed that 5/6 years prior to the occurrence, Fazal Qadir son of Rahim had insulted the complainant, whereafter Fazal Qadir was murdered. Rahim father of Fazal Qadir suspected that Fazal Qadir has been murdered at the instance of Kotay, husband of the complainant.
5.After registration of the case, ASI Zafar Ali Khan (PW-9) started investigation of the case. He prepared inquest report and injury sheet of the deceased and sent the dead-body to the mortuary for post-mortem examination under the control of Constable Refiullah. However, the dead-body of the deceased was not subjected to post-mortem examination in view of the application of the heirs of the deceased. The witness in hand also prepared site-plan Ex. PW. 3/1 at the instance of the eye-witnesses, secured blood stained earth and an empty of 12 bore shotgun from the spot in the presence of marginal witnesses, arrested the accused on 12.5.2001 and recovered a shotgun Ex. P. 1 from the possession of accused Shah Room Khan. Blood stained earth and blood stained clothes of the deceased were sent to the Serologist for report. The crime empty and the gun in question were also sent to the Fire Arm Expert for report. The reports Ex. PW. 9/4 and Ex. PW-9/10 of the experts were placed on file. The remaining investigation was conducted by SHO Behramand Khan (PW-1).
He submitted complete challan in Court.
6. Dr. Muhammad Afzal Khan (PW-6) Medical Officer, RHC Deolay, Swat on cursory examination of the dead-body of Amir Said, noted the following:-- Wounds Identification:
1. One wound 4x4 circular on left check. Entry present but no exit. The wound margins coloured with black smoke with burnt flaps and deep to the roof of mouth cavity.
2 Nasal clotted blood present and on moving the head blood comes out.
3 Body rigid with no hypostatic points. The injury was found to have been caused by Fire Arm.
Cause of death was due to excessive bleeding.
7. The prosecution in support of its case produced nine-witnesses in all. Mst. Noor Jehan complainant and her daughter Mst. Nasib Sultana PWs were examined as eye-witnesses of the occurrence, in addition to PW Bacha Said. These eye-witnesses while repeating the prosecution story as contained in the FIR, fully supported the same at the trial. The accused in his statement recorded under Section 342 Cr.P.C. repudiated the prosecution allegations and claimed to have been falsely involved in the case at the instance of Mst. Noor Jehan complainant. He maintained that in fact the deceased was done to death by Momin Khan , son of the complainant and he has been implicated falsely in order to save the skin of Momin Khan. He did not appear as his own witness on oath as required under Section 340(2) Cr.P.C. nor produced any evidence in defence.
8. After hearing arguments of learned counsel for the parties in the light of the material before him, learned trial judge came to the conclusion that prosecution has succeeded to prove its case to the hilt to the extent of the accused and the accused is responsible for the murder of Amir Said deceased. Resultantly, the accused was convicted and sentenced as mentioned hereinabove.
9. M/s. Said Tahar Khan and Noor Alam Khan, Advocates for the appellant bitterly criticized the impugned judgment and attempted to argue that the witnesses produced by the prosecution were closely related to the deceased and as such were interested witnesses; that their statements contain not a particle of truth in them; that no corroboration was forthcoming to establish the prosecution version; that the medical evidence was in conflict with the ocular account; that the appellant had no reason to spare the complainant against whom he had a grouse and instead fire at the deceased; that the impugned judgment was discriminatory on the ground that co-accused Fazal Rehman, who had been narrated by the complainant to have been seen by her in the company of the appellant was given the benefit of doubt and acquitted of the charge while the appellant was convicted and sentenced; that search and alleged recovery of shotgun from possession of the appellant was, doubtful and the prosecution has lawfully failed to establish the case against the appellant beyond any shadow of doubt. The prosecution evidence is pregnant with innumerable infirmities and real doubts of substantial nature, float on the surface of the evidence. In this regard reliance was placed on Tayyab Hussain Shah vs. The State (2000 SCM R 683), Muhammad Mad vs. Ahmed Ali and 2 others (PLD 2003 Supreme Court 14), Bahadur Khan vs. The State (PLD 1995 SC 336), Allah Ditta vs. The State (1997 SCM R 251 and State through Advocate- General, Sindh vs. Bashir and others (PLD 1997 SC 408).
10. As against that, Mr. Shah Nawaz Khan, Advocate appearing on behalf of the State assisted by Mr. Afridi Khan, Advocate for the complainant supported that impugned judgment qua convicted of the appellant and maintained that the eye-witness account was confidence inspiring; that medical evidence, recovery, motive and abscondence of the appellant fully corroborated the prosecution story and the learned trial judge had no justifiable reason to take lenient view of the matter was withhold the normal penalty of death and award lesser punishment to the appellant.
11. We have heard at length the arguments of learned counsel for the parties and have gone through the available record with their able assistance.
12. The ocular account of the occurrence stands furnished through the statement of Mst. Noor Jehan complainant and her daughter Mst. Nasib Sultana PWs in addition to the statement of Bacha Said PW. The evidence of the complainant and her daughter having seen the appellant firing at the deceased with his shotgun cannot be disbelieved or doubted as they being the inmates of the house were the most natural witnesses. Their statements are not questionable. Therefore, the ocular account of natural witnesses in the present case would need no corroboration to establish the charge against the appellant but still it is supported by the medical evidence and the recovery of the crime weapon from possession of the appellant. The appellant was nominated accused in the FIR. There is no previous enmity between the parties for false implication or substitution of the accused. The report of the incident was lodged promptly containing all the material facts relating to the occurrence. The defence despite lengthy cross-examination has not been able to dislodge the eye-witnesses on any material point. There is no reason to disbelieve both the eye-witnesses, though, they are closely related to the deceased but cannot be termed as interested or inimical witnesses. The eye-witness account is supported by the medical evidence according to which the deceased sustained injury on his check. The recovery of the shotgun would also be another important source of corroboration to the ocular account. The discrepancies pointed out by the learned appellant's counsel are of minor nature and not fatal to the prosecution case. Mere relationship with the deceased or inter se of the PWs is no ground to discard their testimony. It is well settled law that mere' relationship of the eye-witnesses with the deceased, in the absence of any animus on their part against the accused cannot be made the basis of brushing aside their testimony which is otherwise convincing in nature. In this regard reference can be made to PLD 1971 SC 751 and 1969 SCM R 64.
13.Adverting to the case of co-accused, we find that no effective role has been attributed to him in the commission of crime. His mere presence at the spot was not sufficient to even make him vicariously liable for the acts of the appellant. Learned counsel for the appellant have failed to show that the appellant has been treated indiscriminately qua the co-accused. The roles attributed to the appellant and the co-accused are quite distinguishable.
14. In view of the above, we are satisfied that the prosecution has succeeded to prove its case against the appellant beyond shadow of reasonable doubt and the appellant is perpetrator of the of the crime in question. The appeal of the appellant is devoid of force. The same is dismissed. The complainant in this case has also filed criminal revision against the impugned judgment seeking death penalty for the appellant or any other relief the Court may deem it proper in the circumstances of the case. It is not felt proper by us to award him death penalty as is requested by the complainant. The sentence awarded to the appellant, in our view, is proper in the circumstances of the case and warrants no interference. It may be observed here that no compensation has been awarded in this case in terms of Section 544-A Cr.P.C. The appellant shall pay a sum of Rs, 50,000/-as compensation to the legal heirs of the deceased or in default thereof shall suffer further simple imprisonment of three years. The benefit of the provisions of Section 382- B Cr.P.C. shall remain available to the appellant. The revision petition is disposed of in the above terms.