' FAZAL-I-HAQ ABBASI, J.---Impugned herein is the judgment dated 5-3-2010. Passed by learned Sessions Judge/Zilla Qazi, Dir Upper, whereby Abdul Ahad son of Mir Alam was convicted and sentenced as follows:---
(i) under section 302(b), P.P.C. To death, with a fine of Rs, two lacs, if recovered payable to the legal heirs of deceased Mir Azam as compensation under section 544-A, Cr.P.C. Or in default of payment of fine to suffer one year's S.I.
(ii) under section 452, P.P.C. To five years' R.I. And a fine of Rs,2,000.
(iii) under section 364. P.P.C. To ten years' R.I. And a fine of Rs,1,000.
(iv) Under section 365, P.P.C. To five years' R.I. And a fine of Rs .5 ,000 .
(v) Under section 148, P.P.C. To one year's R.I.
' It was directed by the trial Court that if the death sentence is not confirmed by the High Court, then all the sentences of imprisonment shall run concurrently.
2. Abdul Ahad has filed Criminal Appeal No,192 of 2010 and the learned trial court has sent Murder Reference No,3 of 2010 for confirmation of the death sentence awarded to the accused.
3. We intend to dispose of the Criminal Appeal No,192 of 2010 and Murder Reference No,3 of 2010, through this judgment.
4. Mst. Nazia, P.W.3, lodged a report on 28-8-2006 at 10-00 a.m. That Mst. Taj Baro, sister-in-law of her husband, was married to one Jan Muhammad. Due to strained relations between the spouses, she left the house of her husband, whose whereabouts were not known. On the previous night when they were sleeping in their house, at Fajar Azan vella, she came out from her room for bringing water, in the meantime, Abdul Ahad alias Dulat, Sherin, Nisar along with some unknown persons duly armed with fire arms entered into their house and enquired from Mir Azam, her husband, regarding the whereabouts of Mst. Taj Baro, to which her husband replied that he is not in knowledge of the same. On this the above said persons abducted her husband Mir Azam and her daughter Mst. Bakht Pari, aged 15/16 years, from the house. The occurrence was witnessed by Mst.
Jan Saila, co-wife, besides her. Report was recorded by Ihsan Ullah, SHOT, P.W.2, and a case vide F.I.R. No,109 under sections 452/365/148/149, P.P.C. Was registered at Police Station Sharingal.
5. Investigation was entrusted to Waheed Ullah Khan, SI, P.W.6, who was accompanying the SHO. He found the dead body of Mir Azam lying murdered in a mountain, prepared the injury sheet, Exh.PE, and inquest report, Exh.PF, of the deceased. The heirs were not willing for postmortem examination of the deceased, so the dead body was handed over to them through memo, Exh.PC/1. He prepared the site plan, Exh.PC. Through memo, Exh.PC/2, he took into possession bloodstained earth and three empty shells of 7.62 bore from the place of occurrence and sealed the same into parcels.
Through memo, Exh.PC/3, he secured shirt and shalwar of the deceased, produced by the complainant. He added sections 302/364, P.P.C. In the charge. Umar Khitab son of the deceased offered a statement, wherein he charged Muhammad Hakeem, Abdul Hakeem, Purdil, Bahadar, Aziz ur Rehman, Noor Muhammad, Hassan Muhammad, Jan Muhammad and Jalat Khan for instigation and abetment of the offence committed by the accused, named in the F.I.R., as such, section 109, P.P.C. Was also added in the charge. Abdul Ahad, Muhammad Hakeem, Jalat Khan, Hassan Muhammad, Noor Muhammad, Bahadar and Aziz ur Rehman were arrested. Proceedings under sections 204 and 87, Cr.P.C. Were carried out against the remaining accused. Blood-stained articles were sent to the Serologist report is Exh.PZ. After completion of the investigation complete challan against the accused in custody and under section 512, Cr.P.C. Was submitted against the absconding accused by SHO.
6. Learned trial Court after compliance of the legal formalities, framed the formal charge to which the accused did not plead guilty and claimed trial.
7. Prosecution examined eight witnesses in order to prove its case, thereafter, the statements of the accused under section 342, Cr.P.C. Were recorded by the trial Court. Accused pleaded their innocence, however, did not produce defence evidence nor appeared as their own witnesses in terms of section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the parties, convicted and sentenced Abdul Ahad, accused, as stated above, while the remaining accused facing trial were acquitted and perpetual warrants of arrest were issued against the absconding accused.
8. Learned counsel for the appellant argued that it was a night occurrence and the appellant was charged in a belated F.I.R. After due consultations and deliberations. He further contended that the occurrence of murder was unwitnessed and the postmortem examination of the deceased was not conducted, as such, his death could not be proved to be unnatural. Learned counsel averred that the alleged eye-witnesses of the abduction were contradicted by the site plan and that motive was neither proved nor put to the appellant in his statement recorded under section 342, Cr.P.C. He further contended that on the same evidence the co-accused facing trial were acquitted, therefore, the appellant also deserves the same treatment.
9. Learned counsel for the complainant and A.A.G, appearing on behalf of the State, argued that the appellant and his co-accused, named in the F.I.R., being related to the complainant party, were known to the eye-witnesses and there is no question of misidentification or a false charge. They submitted that Mst. Bakht Pari has not been recovered so far. They contended that the appellant is vicariously liable for the commission of offence and was rightly convicted and sentenced.
10. We have heard the arguments and perused the record.
11. Mst. Taj Baro, sister of Mst. Jan Saila, P.W.4, was married to Jan Muhammad who is the real brother of Abdul Ahad, appellant, as such, being related tip the complainant, P.W.3, and P.W.4, there is no question of misidentification. Both the eye-witnesses charged the appellant in their statements recorded before the trial court. No or animosity was suggested to them for false implication. Their statements went unchallenged. It is clearly stated by both the eyewitnesses that there was no other male member of the family in the house except minor children. Rasool Khan, brother of deceased, came to their house from sufficient distance after hearing hue and cries.
House of the complainant is situated in a far-flung area at a distance of 13/14 kilometers from the police station. Delay in the FIR., in such circumstances, was of no significance and that too, when the witnesses were not cross-examined on the point of such delay nor any suggestion was put to them regarding deliberation and consultations. There was no previous enmity between the parties and due to relationship between them false implication of the accused was beyond consideration.
Both the eye-witnesses remained consistent in their depositions.
12. Amir Azam along with his daughter Mst. Bakht Pari were abducted by the appellant and his co- accused, charged in the F.I.R. And thereafter dead body of Amir Azam was found murdered on the same day. Injury sheet and inquest report of the deceased was prepared by Waheed Ullah Khan, SI, P.W.6, who also secured blood-stained earth and three empty shells of 7.62 bore from the crime spot. According to inquest report, Exh.PF, three fire arm injuries were found on the dead body, which proved that deceased, was done to death by firing at him. In Malakand, Kohistan Area of this Province and some parts of Balochistan, post mortem is not conducted on the request of the legal heirs of the deceased. When the cause of death is apparent then non-conduct of postmortem is not fatal to the prosecution case. Even the unnatural death of the deceased was not disputed by the defence. In such a situation, non-conduct of post mortem is of no consequence.
13. Initial occurrence of abduction took place in the house of the complainant, any variation in the site plan is of no consequence because in a dramatic situation and state of panic no one can remember the minute details nor photographic view can be given. Even otherwise site plan is not a substantive piece of evidence and the same cannot be used to contradict the witnesses nor they can.Be confronted with the same in order to discredit the testimony.
14. Motive was alleged in the F.I.R..And proved in the statements of the complainant and the other eye-witness of the occurrence but the same was not put to the appellant in his statement recorded under section 342, Cr.P.C. In such a situation, this factor can be considered while dealing with the question of sentence.
15. Acquitted co-accused were not charged in the F.I.R: but in the statement of Umar Khitab son of the deceased, who is not an eye-witness of the occurrence. They are not charged even in the statements of eye-witnesses, therefore, their acquittal is of no help to the present appellant.
16. Now coming to the question of sentence, the appellant along with co-accused was charged for abduction of Amir Azam and Mst. Bakht Pari from their house. Dead body of Amir Azam was found murdered, on the same day. Admittedly, there is no eye-witness of the murder. Three fire-arm injuries, i,e, one on head, second on the arm and third on the heel of the right foot of the deceased were found by the Investigating Officer. As mentioned in the inquest report, Exh.PF. Three empty shells of 7.62 bore were recovered' from the spot, which were not sent to the Expert to ascertain as to whether the same were fired from one or more weapons. In such a situation and keeping in view overall circumstances of the case, we are of the opinion that death sentence awarded to the appellant is not maintainable and the imprisonment for life will meet the ends of justice. In this view of the matter, death sentence awarded to the appellant under section 302(b), P.P.C. Is converted into imprisonment for life. Under section 302, P.P.C. No fine is provided, therefore, the fine of Rs,2,00,000 (two lacs) imposed upon the appellant is converted into compensation under section 544-A, Cr.P.C. Which shall be recoverable as arrears of Land Revenue. However, sentence of imprisonment in lieu of non-payment of compensation is kept intact. Learned trial Court has not awarded any sentence of imprisonment for non-payment of fine, imposed 'on him under sections 452/364 and 365, P.P.C., therefore, it is directed that in default of payment of fine under above referred sections of law, he shall further suffer three months' S.I., for each default. Remaining conviction and sentences are maintained. The sentences of imprisonment shall run concurrently.
Benefit of section 382-B, Cr.P.C. Is also extended to the appellant.
With above modification, this appeal is partially allowed and the J murder reference is answered in negative.