' WAQAR AHMAD SETH, J.--- This Criminal appeal is directed against the judgment dated 28-6-2011 passed by the learned Additional Sessions Judge-I, Mardan, whereby, Fazal Mir, appellant herein was convicted under section 302(b), P.P.C. And sentenced to Death as `Tazie with compensation of Rs.2,00,000 within the meaning of section 544-A of the Cr.P.C.; convicted under section 324, P.P.C.
And sentenced to five years rigorous imprisonment with a fine of Rs.30,000 and in default thereof, to suffer further three months simple imprisonment; convicted under section 337-F(ii), P.P.C. And sentenced to three years imprisonment as `Tazir'; convicted under section 449, P.P.C. And sentenced to three years', R.I. With a fine of Rs.25.000 and in default therof to further suffer three months' S.I. All the sentences were ordered to be run concurrently. Benefit of section 382-B, Cr.P.C.
Was also extended to the appellant.
2. Brief facts of the case, according to the F.I.R. Are that, on 22-5-2002 Yasir Ghani, complainant of the instant case, in injured condition, reported the matter to the police at Casualty of DHQ Hospital, Mardan, in terms, that on the fateful date at about 1200 hours, he along with his grandmother Mst.Khan Khela, relative Muhammad and other relatives were present in his house. In the meanwhile, accused Fazal Mir, Noor Bacha and Ajmeer entered the house duly armed with firearms and started firing at them, due to which, Muhammad was hit and died on the spot while the complainant and his grandmother received injuries on their persons. The occurrence, besides them, was also witnessed by the other inmates of the house. Motive for the occurrence was women dispute. He charged the accused for the commission of offence. The accused, after the occurrence, decamped from the spot. Accordingly, a case under sections 302/324/449/337-F (ii)/34, P.P.C. Was registered against the appellant etc. At Police Station Sheikh Maltoon Town, Mardan vide F.I.R.
No.153 dated 22-5-2002.
3. On completion of investigation, the appellant was challaned to the Court for trial. The copies of the relevant documents under section 265-C, ,Cr.P.C. Were supplied to him. The charge was framed against him, to which he did not plead guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant produced 13 witnesses in all. Rasheed Iqbal S.-I. Appeared as P.W.1, who transferred the appellant from Adyala Jail Rawalpindi to Mardan, issued his arrest card and later on handed over him to P.S. Sheikh Maltoon Mardan for investigation. P.W.2 is Zahir Shah Khan A.S.-I., who produced the appellant before 11laqa Judicial Magistrate for obtaining his physical custody vide application Exh.P.W.2/1 and also recorded his statement under section 161 Cr.P.C. P.W.3 is. Mir Qasim FC No.569, who is marginal witness to recovery memos Exh.P.W.3/1 and Exh.P.W.3/2 vide which the 1.0. Took into possession blood-stained clothes of Mst.Khan Khela and Yasir Ghani, respectively. Khan Khel, Inspector appeared as P.W.4, who submitted complete challan before the court on 28-2-2010. Sardar Ghani appeared as P.W.5, who is marginal witness to recovery memos Exh. P. W.5/1 to Exh. P. W .5/3, respectively vide which the I.O. Took into possession blood through cotton from the place of deceased, 15 empties of 7.62 bore and blood-stained clothes belonging to deceased. Yasir Ghani complainant and Mst.Khalida (eye-witnesses) appeared as P.W.6 and P.W.7, respectively who reiterated the same story as narrated in the first report. P.W.8 is Dr.Salih Shah, District Coordinator, Mardan, who conducted autopsy on the dead body of deceased on 22-5-2002 at 2-30 pm. P.W.9 is Qimatullah Khan, Inspector, who on receipt of murasila incorporated its contents into F.I.R. Exh.P.A. Dr.Iqbal SMO, Civil Hospital, Lund Khwar, appeared as P.W.10, who medically examined the complainant on 22-5-2002. P.W.11 is Lady Dr.Rashida (Rtd), who medically examined Mst.Khan Khela on the same date. P.W.12 is Muhammad Israr FC No.1448, who carried out proceedings under sections 204 and 87, Cr.P.C. Against the accused Fazal Mir, Ajmeer and Noor Bacha. P.W.13 is Mumtaz Bacha, Inspector, who conducted investigation in the case. He visited the spot, prepared the site plan Exh.PB at the instance of P.W. Mst.Khalida, prepared injury sheet Exh.P.W.13/1 and inquest report Exh.P.W,13/2 of deceased. Muhammad vide recovery memos Exh.P.W.5/1 to Exh.P.W.5/3, respectively. He also took into possession blood-stained earth through cotton Exh.P3 at the point of deceased, 15 empties of 7.62 bore and blood-stained clothes of deceased. This witness took into possession bloodstained shalwar of Mst.Khan Khela Exh.P1 and Yasir Ghani Exh.P2 having corresponding bullet cut marks vide his application Exh.P.W.13/3 and sent the above articles to FSL for chemical analysis and received its report as Exh.PZ. Vide his application Exh.P.W.13/4, he sent 15 empties of 7.62 bore to Arms Expert and received his report as Exh.PA/1. He also obtained warrants under section 204, Cr.P.C. And proclamation notices under section 87, Cr.P.C. Against the accused vide his applications Exh.P.W.13/5 and Exh.P.W.13/6. After completion of investigation, this witness handed over the case file to S.H.O. For submission of challan in the case.
5. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. He, in his statement, denied the charges and pleaded innocence. He, however, did not opt to lead any evidence in his defence or to appear as his own witness in terms of section 340(2), Cr.P.C.
6. The learned Additional Sessions Judge-I, after hearing the arguments of both the parties and on appraisal of evidence, convicted and sentenced the appellant as stated above, which he has questioned through the instant appeal.
7. The learned counsel appearing on behalf of the appellant contended that presence of both the eye-witnesses on the place of occurrence is highly doubtful for the reasons that Yasir Ghani, P.W.6 was present, in his house, which is far away from the place of occurrence at about 200 paces and this fact is also admitted by him in his statement, whereas, presence of Mst. Khalida, P.W.7 is concerned, she was not named in the F.I.R. By the complainant to be present on the spot. The learned counsel further submitted that testimony of both these witnesses can't be relied upon being related to the deceased, hence their deposition is highly doubtful. The learned counsel was also of the view that the site plan prepared on the pointation of Mst.Khalida (P.W.7) is also not believable because the place assigned to her could not be the same and in fact she was present inside the room wherefrom she could not see the occurrence. The learned counsel further added that the injuries caused to the complainant are also doubtful because had he been fired at the scene of occurrence by the accused, there would have been some blood available whereas no recovery of blood has been effected by the police. He further contended that motive is against absconding accused Ajmeer, which could not be used to prompt the murder of onc person and injuries to others. So far as the abscondance is concerned, the learned counsel contended that it cannot be taken into account as the other evidence available on the record is not supporting the prosecution version.
8. To the contrary, learned counsel appearing on behalf of the State duly assisted by counsel for the complainant party argued that both the eye-witnesses are the natural witnesses available on the spot at the time of occurrence, which is proved from the record as both of them received injuries during the occurrence. So far as presence of Mst.Khalida (P.W.7) is concerned, though, she was not nominated in the F.I.R. But was included in the list of other inmates as disclosed by the complainant. Moreover, soon after the occurrence, she was examined by the police under section 161, Cr.P.C. And on her pointation, the Investigating Officer prepared the site plan, which clearly transpired that she was present on the spot. Apart from this, she was inmate of the house and was supposed to be present inside the house, there was no suggestion put by the defence in her cross- examination that she was not present in the house or on the spot at the time of occurrence and was not the eye-witness of the present occurrence. It was also contended that the appellant, soon after the occurrence, decamped from the spot and remained fugitive from law for sufficient long time, which alone can base for connection with the commission of offence. Regarding the defects in the site plan, it was contended that the site plan is not a substantial piece of evidence and the guilt of the accused is proved from the ocular as well as circumstantial evidence, hence the same being irregular cannot be taken into consideration and require to be ignored. It was also contended that fifteen empties of 7.62 bore were recovered from the spot; which were sent to Expert opinion, according to which, these empties were fired from different weapons, therefore, the objection of the learned counsel for the appellant whether these empties were fired from one weapon or more than one weapon is without force. They further submitted that the prosecution has failed to point out any or enmity on the part of eye witness to give false statement and also there is no reason to prove or establish on the part of witnesses to enrope innocent persons.
' We have heard learned counsel for the parties and perused the record available before us.
9. The defence disputed the presence of P.W.7 Mst.Khalida at the time of occurrence that is why her name was not mentioned in the first report. Though the said P.W. Has not been nominated in the F.I.R. But this fact has been clarified by P.W.6. While deposing before the court as she being inmate of the house and permanently resides in the same, therefore, her presence at the place of occurrence is natural and cannot be doubted. Moreover, detailed facts are not reduced into writing.
10. The defence also raised objection regarding testimony of P.Ws. 6 and 7 being relative and interested witnesses. In this respect, it is held that mere relationship of a witness would not diminish his/her testimony as doubtful until and unless there being any allegation of enmity between P.Ws.
And accused sufficient enough to dub him/her as interested witness and that too when his/her testimony was found trustworthy and reliable. Though the said witnesses are related to the complainant but no element of previous (enmity is available on record to dub them as inimical towards the appellant, hence this objection is not sustainable.
11. As far as the place of P.W.7 in the site plan is concerned, it is held that the same was prepared by the I.O. And while riot attributing the specific place, it cannot be rendered valueless.
12. The medical evidence in the shape of injury sheet, Medico-legal Report, post mortem report coupled with the recoveries of blood-stained earth, blood-stained clothes with positive report of FSL, corroborates the prosecution version.
13. The appellant remained fugitive from law for a long span of 8 years, which has not been explained reasonably. ##ES##
14. Motive for the crime is stated to be women-folk. Though, no details were given at the time of lodging the F.I.R., which fact is admitted by P.W.6 in his statement, however, P.W.7 explained it in clear terms that wife of accused Ajmeer had come behind Younas, nephew of the deceased, who was returned by deceased honourably, A which aggrieved the appellant and other accused, hence the motive has been fully established.
15. In the instant case one Muhammad lost his life while the complainant Yasir Ghani P.W.6. And his grandmother Mst.Khan Khela sustained fire arm injuries. The prosecution in support of its case produced 13 witnesses in all, who were found consistent, reliable and trustworthy. They were subjected to lengthy and taxing cross-examination but nothing favourable to the appellant could be extracted from their mouth. The motive as well as the recovery of incriminating material coupled with medical evidence establishes the guilt of appellant beyond any shadow of doubt, therefore, the conviction recorded by learned trial court through the impugned judgment is maintained, however, the quantum of sentence requires consideration.
16. It is the case of the prosecution that the complainant along with his grandmother Mst.Khan Khela, relative Muhammad and other inmates were present in their house when in the meanwhile the appellant Fazal Mir, Noor Bacha and Ajmeeer duly armed with fire arms entered there and started firing at the above persons, which resulted in death of Muhammad while the complainant and his grandmother Mst.Khan Khela sustained several injuries on their persons.
17. P.W.7 in her statement before the court while clarifying the motive deposed that wife of absconding accused Ajmeer had come behind Younas, nephew of deceased, which aggrieved the appellant and co-accused which resulted in the present occurrence, thus, it is clear that it was Ajmeer with whom the motive was related but the learned trial court erred in law and I attributed the same to appellant by awarding death sentence to him. Moreover, no blood from the place assigned to complainant in the site plan has been recovered. The record is also suggestive of the fact that the I.O. Mumtaz Bacha had recovered 15 empties of 7.62 bore from the place of occurrence and the report received in this respect from chemical analysis revealed that it was fired from different weapons. The question arises as to whether the fire shots of appellant or that of other co-accused proved fatal, which caused the death of deceased Muhammad and injuries to complainant and Mst.Khan Khela. The learned trial court attributed the fatal shots to appellant but as the other co-accused are abscotxling, therefore, total responsibility putting on the appellant by learned trial court is not appealing to prudent mind, hence benefit whereof must go to appellant.
18. From the combined study of material on record, while maintaining the conviction, the sentence of death awarded to appellant under section 302, P.P.C. Is converted into life imprisonment.
However, the other sentences recorded by learned trial court through the impugned judgment under sections 324, 337-F(ii) and 449, P.P.C. As well as fine etc. With benefit of section 382-B, Cr.P.C.
Shall remain intact.
' The Murder Reference sent by learned trial court is not confirmed and answered in the negative.
' Appeal partially allowed in the above terms.
Sentence reduced.