' MUHAMMAD ALAM KHAN, J.---This appeal is directed against the judgment dated 10-5-2007 passed by the learned Additional Sessions, Judge-III Bannu, whereby the appellant Dilfaraz Khan son of Habib Khan, has been convicted under section 302(b), P.P.C. And sentenced to death (on three counts) and to pay compensation amounting to Rs,50,000 to the legal heirs of each of the three deceased, in default to suffer six months' simple imprisonment in each 'case vide F.I.R. No,97 dated 4-9-2005 of Police Station Basya Khel, Tehsil and District Bannu registered under section 302, P.P.C. There is also a Murder Reference No,2 of 2007 sent by the learned trial Judge under section 374, Cr.P.C. For confirmation of the death sentences awarded to the convict/ appellant and this judgment will commonly dispose of both these matters.
2. The prosecution story as narrated by the complainant Mst. Kishwara is to the effect that on the preceding night of 4-12-2005, she along with her husband Dil Faraz Khan (appellant herein) and other kids were present in their house when at about 0400 hours, her husband went out of the house and started firing with Kalashnikov. She followed him and in the meantime saw her father Zar Wali Shah, mother Mst. Gul Mehr Jana and brother Khalid Khan residing in the nearby house on hearing the report of fire shots came out therefrom and at about 0410 hours, her husband Dilfaraz Khan fired at them with which all the three were hit and fell to the ground, whereafter the accused decamped from the spot. Motive for the offence was stated to be monetary dispute between the accused and the deceased and the occurrence was alleged to have been witnessed by the complainant in the light of electric bulb installed at the scene of crime.
' After arrest of the accused and completion of investigation, challan was put against him in the Court where he was summoned and the requirements of section 265-C, Cr.P.C. Were complied with and he was formally charge sheeted under section 302, P.P.C. (on three counts) to which he did not plead guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution produced and examined thirteen witnesses and closed its evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. But his reply was complete denial from the charge, false implication in the case and professed innocence.
5. On evaluating the evidence brought on record, the learned trial Judge found the accused guilty of committing the Qatl-eAmad of the three deceased and thus on conviction sentenced him as mentioned above. Hence this appeal and the Murder Reference referred earlier.
6. Mr. Gohar Zaman Kundi, learned counsel for the appellant at the very outset on the last date of hearing, i.e, 17-6-2009 had stated at the bar that the convict/ appellant after conviction had become insane and he will have to see somebody to act and his next friend by submitting a proper application in this behalf and the case was posted for today. But today he came with a different stand not to press his earlier version. He vehemently criticized the impugned conviction and sentences of the appellant on the grounds, Firstly that the narration, of the complainant in her first report is unbelievable, Secondly, that the house of the appellant was not located near the house of the deceased as alleged by the complainant but rather in a deserted place far away therefrom, Thirdly, that it does not appeal to reasons that only the deceased had attracted on the aerial firing of the appellant which had contiued for almost thirty minutes and not anybody else. That the occurrence had taken place in odd hours of the night and neither any empty was recovered nor the weapon of offence; Fourthly that the medical evidence is not supporting the ocular account furnished by the complainant who was present in the house of her brother Imam Din P.W.11 at the time of occurrence where she was informed by her brother; that the alleged electric bulb was installed in the house of one Umer Khitab but he was not examined; that there is an inordinate and unexplained delay in lodging the report, as the occurrence had allegedly taken place at 0400 hours but its report was made at 0615 hours despite the fact that the venue of occurrence was situated at a distance of 2/3 kilometers therefrom; that the complainant had three other brothers but none from them had either reached the spot or to the hospital. Fifthly, that the site plan is not in conformity with the deposition of the complainant and Sixthly/lastly that there are material contradictions in statements of the P.Ws due to which the case of the prosecution is replete with grave doubts, the benefit whereof favours the convict/ appellant entitling him to outright acquittal.
7. In rebuttal, Syed Fakhruddin Shah, learned counsel for the complainant and Mr. Sanaullah Khan Shamim Gandapur, learned Deputy Advocate General representing the State vociferously defended the impugned conviction and sentences of the appellant on the grounds, inter alia, that the appellant is charged by his own wife for brutally committing the triple murders. The ocular testimony of the complainant is fully supported by the statements of the P.Ws ; blood stained earth was recovered from the scene of occurrence. The medical evidence is in line with the eye-witness account and the motive alleged by the complainant was duly proved through cogent and convincing evidence. The appellant is singularly charged for committing the murders of the three deceased. There is no chance of false implication or mis-identification as the appellant is the real husband of the complainant and out of the wedlock children were born. That in presence of the complainant, her real parents and a brother were brutally done to death by the appellant; that from the evidence brought on record, the prosecution had successfully proved its case beyond any shadow of reasonable doubt against the convict/ appellant and thus he was rightly convicted and sentenced by the learned trial Judge through the impugned judgment on three counts and he deserves no leniency.
8. We have threadbarely examined entire record of the case and anxiously considered the valuable arguments of the learned counsel for the parties advanced at the bar.
9. In this unfortunate occurrence, three persons, i.e, Zar Wan Shah, Mst. Gul Mehr Jana and. Khalid Khan, i.e, husband, wife and their younger son, have lost their precious lives at the hands of the convict/appellant, who were the real parents and brother of the complainant who is the legally wedded wife of the convict/ appellant and in whose presence this bloody incident had taken place.
The case of the prosecution rests on the ocular account of the complainant, recoveries made in the case, Expert reports, Medical evidence and motive.
10. Mst. Kishwar a complainant P.W.12 had furnished ocular account of the occurrence and charged her own husband for killing her father, mother and brother. A She is an illiterate Parda Nasheen lady and has given straightforward account of the incident by stating that on the date of occurrence she and her husband along with their two kids were in their house when her husband woke up, took the Kalashnikov, went out of the house, made aerial firing over which the three deceased came out of their house who were at points Nos.3, 4 and 5 as shown in the site plan and done to death by the appellant with Kalashnikov from point No,2-A. She is the only eyewitness of the occurrence and has witnessed the incident from point No,1-A shown in the site plan. She was put to a lengthy cross- examination but nothing favourable to the accused was squeezed out from her mouth and stated in accord with the site plan that her father Zar Wali Shah was followed by her brother Khalid Khan and then by mother Mst. Gul Mehr Jana. Thus the presence of the complainant at the time of occurrence on the spot was duly proved beyond any shadow of reasonable doubt. The argument of the learned counsel for the appellant that the report was lodged after deliberation and consultation as the occurrence had allegedly taken place at 0410 hours while the report was lodged at 0615 hours is baseless because the complainant being a female had to arrange three vehicle for the three deceased for shifting their dead bodies to the hospital for autopsy. So, the report was lodged with all reasonable promptitudes.
11. The complainant had stated that she had witnessed the occurrence in the light of electric bulb installed at the house of Umer Khitab situated close to the scene of crime. In the peculiar facts and circumstances of the case, the recovery of bulb has no much importance because the victims were successfully made target and the assailant and the eye-witness came out from house together and the witness was watching the incident while standing close to the assailant, who is her husband. The Investigating Officer during the spot inspection had picked the blood stained earth from the places of each deceased, taken into custody the bulb installed at the house of Umer Khitab vide recovery memo. Exh.P.W.5/1 in presence of witness Mehrullah IHC P.W. 5 and recovered an empty from the place of accused who had not refuted the recoveries, which c further corroborate the version of the prosecution.
12. The report of the Fire Arms Expert Exh.P.W.13/3 that the recovered crime empty P.1 was that of 7.62 bore and that the blood stained earth and blood stained clothes of the deceased were mottled with human blood were further corroborative piece of evidence to the case of the prosecution.
13. According to the medical evidence, all the injuries received by the three deceased were of fire arm, as the deceased Mst. Gul Mehr Jana had received inlet wound on her left breast, deceased Zar Wali Shah received inlet wounds on the left chest and right scapula while deceased Khalid Khan received entry wounds on his right chest and right knee. Lady Doctor Robina Gulp Tiaz P.W.3 had conducted autopsy on the dead body of the deceased Mst. Gul Mehr Jana at 0740 a.m. And opined that the time elapsed between death and post mortem examination was 2 to 3 hours, while Doctor Mir Azad P.W.9 had carried out the post mortem examination of the deceased Zar Wali Shah at 0830 hours and that of the other deceased Khalid Khan at 0930 hours had declared the time between their death and autopsy as 4 to 5 and 5 to 6 hours respectively which are in consonance with the time of occurrence i.e, 0410 hours as mentioned by the complainant in her initial report.
Therefore, the medical evidence is fully in conformity E with the eyewitness account of the complainant.
14. In her first report, the complainant had stated the motive behind the occurrence as monetary dispute between the convict/appellant and the deceased which she had elaborated in her cross- examination by stating that motive for the crime was the non-payment of maintenance allowance of her children by the accused and, F therefore, the case of the prosecution was fully established by the motive part as well.
15. Learned counsel for the appellant referred to the cross-examination of P.W.11 Imam Din which is in variance with the statement of complainant but Imam Din is only a witness of identification of the dead bodies and we feel that he has tried to give a concessional statement for accused which cannot create a dent in the strong prosecution case.
15-A. It is a single accused case witnessed by a solitary eyewitness who is the real wife of the convict/appellant and there is no chance of false implication in the matter. The case of the prosecution was duly established from the overwhelming eyewitness account of the complainant, recoveries effected from the spot of occurrence, reports'of the Fire Arm Expert, medical evidence of the three deceased and motive as alleged by the complainant in her initial report and affirmed subsequently in her statement before the Court and cross- examination.
16. From whatever angle we see, the prosecution had successfully brought home guilt of the convict/appellant and the learned trial :Judge on appraising the evidence brought on record had rightly drawn the impugned conclusion by awarding the death penalty to the convict on three counts which cannot be interfered with by this Court and are accordingly maintained.
17. Resultantly, we find no merit in this appeal which is accordingly dismissed and the Murder Reference is thus, answered in affirmative.