ANWARUL HAQ, C. J.-Appellant Gut Raider was tried by the learned Sessions Judge, Mardan, for the murder of his step-brother Khushhal Khan, and acquitted. The State filed an appeal under section 417 of the Criminal Procedure code, which was accepted by a Division Bench of the Peshawar High Court by its judgment dated the 9th of March, 1977, the appellant was convicted under section 302 of the Pakistan Penal Code, and sentenced to death. He was also directed to pay a fine in the sum of Rs. 2,00(1, which, if recovered, was to be paid as compensation to the heirs of the deceased under section 544-A of the Criminal Procedure Code.
2. The occurrence is said to have taken place at 1-30 P.M. On the 11th of August, 1972, in front of the house of the deceased in Deb, Amber, at a distance offive miles from Police Station Labor in Mardan District. The F. I. R. Was made the same day at 3-45 p. m. By the widow Mst. Gohar Taja (P.
W. 7)
3. According to the prosecution, Mst. Gohar Taja, Mst. Ulfat Jan (a sister of the deceased), and Abdul Samad Khan (P. W- 8) a nephew of the deceased were present in the house, when the deceased was getting ready for Jumma prayers. Someone knocked at the door of the house, whereupon the deceased proceeded to the door followed by his wife, his sister and his nephew.
The moment the deceased opened the outer door, there was the report of a gun--shot, upon which the witnesses went to the outer door and saw that the deceased was lying injured on the ground at a short distance from the outer door and the appellant Gut Raider alias Gula armed with a single barrel gun, was proceeding towards village Mund. The deceased, who was alive at that time, told the witnesses that Gut Raider had fired and injured him with the gun. Among those, who gathered at the spot, was Sher Adam (P. W. 9), who was also told by the deceased about the identity of the assailant.
The motive for the crime was stated to be dispute over property between two branches of the family, the father of the appellant and the deceased having married two wives. It appears that arrangements had been made for a private partition of the property between the appellant on the one side and the deceas--ed and his real brothers on the other, and an official was to visit the village on the 12th of August, 1972 for carrying out the partition at the spot.
4. The autopsy on the dead body of the deceased showed that he had sustained one fire-arm entrance wound on the abdomen, which was surround--ed by wounds which were the entry wounds of pellets 135 in number scattered in an area of about 3' around the injury. The appellant was arrested on 9-12-1972, and his licensed gun had already been recovered on the 17th of August, 1972, which did not connect with the crime as no crime empty had been found.
5. At the trial, the prosecution placed reliance on the eye-witness account of the incident as furnished by the widow of the: deceased, namely, Ist. Gohar Taja (P. W. 7) and his nephew Abdul Samad (P. W. 8) supported by the dying statement proved by Sher Aslam (F. W: 9) and the abscondence of the appellant was proved by P. C. Gul Afzal (P. W. 1) and S. H. O. Musanif Gal (P. W.
13). There was also the evidence of Rahim Gal (P. W. 10) who had supplied a skin to the appellant to enable him to swim across the river,
6. The appellant denied the allegations, and asserted that he had been falsely implicated at the instance of Mst. Gohar Taja and, Abdul Samad Khan, who bad developed illicit intimacy with each other and had been rebuked by the appellant, as he was the eldest brother in the family. He also stated that witness Sher Aslam was under the influence of Mst. Gohar Taja.
7. The learned -trial Judge- disbelieved, the, eye-witness account of the incident on the ground that both the witnesses had made improvements. He al: o rejected the dying statement proved by Sher Aslam, and took note of the non-production of Mst. Uat Jan who was admittedly present at the scene of the crime, and was real sister of the deceased. The learned trial Judge thought that although abscondence had been proved, but it was not sufficient to serve as a basis for conviction.
On this view of the evidence, he acquitted the appellant.
8. However, in appeal the learned Judges have-reversed these findings, holding that the learned Sessions Judge was not justified in discarding the testimony of Mst. Gohar Taja, Abdul Samad Khan and Sher Aslamthat the opinion of the Doctor that the deceased died instantaneously was not borne out by the nature of the injury found on his person, and the fact that the deceased made a dying statement had been promptly mentioned by Mst. Gohar Taja in the F. I. R. That there was circumstantial evidence in the nature of the recovery of the gun as well as of the swimming skin- borrowed by the appellant from witness Rahim Gal. The High Court has also accepted the motive for the crime as the Tehsildar had visited the village on 7-8-1972 and had fixed 12th of August, 1972, for final adjudication regarding the private parti--tion, and the mutation of inheritance supported the prosecution version that the property had been jointly inherited by the appellant and the deceased and their other brothers, and a private partition was to be carried out. They also relied upon the abscondence of the appellant as furnishing corroboration of the other evidence brought on the record by the prosecution. On this view of the matter they set aside the acquittal of the appellant and convicted and sentenced him as already stated.
9. It is contended by Mr. M. B. Zaman, learned counsel for the appellant, that there was no motive for the appellant to murder his step-brother, as a mutation of inheritance had already been entered and decided in 1965, and, accordingly, there was no occasion for any further dispute between the parties. He next submits that this was, in fact, an unwitnessed crime, and accused had been named on suspicion, as the incident took place outside the house where Mst. Gobar Taja was not presentand similarly Abdul Samad Khan could not be present as he ordinarily resides in village Zaida.Which is two miles away from the spot. Mr. Zaman further contends that the dying statement, as proved by Sher Aslam, could not be genuine, as in the opinion of the medical witness death was instantaneous on receiving the fire-arm injury. The learned counsel has also criticised the evidence as regards abscondence of the appellant and the recovery of the skin said to have been supplied by Rahim Gal for crossing the river., In the circumstances, Mr. Zaman contends that the guilt of the appellant could not be said to have been proved on the record beyond reasonable doubt and accordingly, the order of acquittal recorded by the trial Court could not have been set aside by the High Court. Finally, the learned counsel submits that, in any case, there was no justification for the imposition of the death penalty, as no one had seen the origin of the quarrel between the two brothers, and the benefit of this circumstance should have been given to the appellant.
10. After' examining the record with the help of the learned counsel for the appellant and the learned Additional Advocate-General of the North-West Frontier Province, we have formed the view that there is no merit in these submissions.
It will be seen that the incident took place in the middle of the day at the doorstep of the deceased, and, accordingly, the inmates of his house would be natural witnesses of the occurrence. Mst.
Gohar Taja appears to us to have acted very honestly in not asserting that she had seen the appellant firing at her husband on the contrary she stated in the F. I. R. That when she rushed to the outer door she saw her husband lying injured and the appellant going away from the spot, carrying a single-barrel gun. In the circumstances, the learned trial Judge was clearly in error in rejecting the testimony of this witness simply for the reason that there were some improvements upon he previous statement. Similarly, it appears to us that Abdul Samad Khan has given a satisfactory explanation as to his presence in the house of the deceased, and had had no reason to falsely implicate the present appellant, who was, in any case, also a maternal uncle, even though a step- brother of his mother. Nothing was brought out in cross-examination to show that Abdul Samad Khan had any reason to falsely substitute the appellant for the real assailant. It seems to us, therefore, that the learned Judges in the High Court were right in placing reliance on the ocular testimony of these two witnesses.
11. Even though the medical witness gave the opinion that death was instantaneous, it seems to us that the learned Judges in the High Court were right in discarding this opinion on account of the nature of the injury, namely, on the abdomen of the deceased. Such an injury need not necessarily cause instaneous death. As observed by this Court in Yakoob Shah v. The State (1), "It is well- established principle that expert evidence, may it be medical or that of a Ballistic expert; is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence, as in the instant case, which is definite, forth right and at the same time creditworthy, confirmatory evidence is not of much significance, cannot, at any rate, outweigh direct evidence unless it is, for any reason, deficient in quality. This case in our opinion is not of that kind." These observa--tions apply with full force to the facts of the present case before us. The learned Judges have given cogent reason for holding that the deceased could not have died instantaneously in view of the nature of the injury sustained by him on his abdomen. There was, accordingly, no reason to reject the testimony of Sher Aslam as to the contents of the dying statement mad before him by the deceased shortly after he had been injured by the appellant.
Nothing was said at the bar to persuade us to doubt the evidence of Rahim Gul (P. W. 10) as to the supply of a skin to the appellant for swimming across the river after the incident. The recovery of the skin as well as the licensed gun of the appellant stands satisfactorily proved on the record.
For all these reasons we have no doubt at all that the guilt of the appellant had been proved on the record beyond any reasonable doubt, anti he was, therefore, rightly convicted by the High Court.
The order of acquittal made by the learned trial Judge was clearly opposed to established principles of appreciation of evidence in cases of this kind, and bad resulted in a grave miscarriage of justice.
12. As to the question of sentence, it is true that none of the witnesses has deposed to have seen the actual manner in which the incident took place, but it does not need much imagination to reconstruct the scene. Mst. Gohar Taja and Abdul Samad Khan have clearly stated that there was a knock at the door, and as soon as the deceased opened the outer door, they heard the report of a gunshot, as a result of which the deceased lay injured on the road front of his house. It is clear therefore, that nothing untoward had happens on the spot between the deceased and the appellant. The learned Judges the High Court have rightly taken note of the fact that the appellant had specially come to the house of the deceased with the intention of murdering him, as at the relevant time the two brothers were living in different villages, It was, therefore, a premeditated and cold-blooded murder, committed on the eve of the visit of the Revenue Official to the village for the purpose of carrying out a partition of the joint holding of the parties. In the circum, stances, there was no reason for imposing the lesser penalty permitted by law.