' SHAH JEHAN KHAN AKHUNDZADA, J.---Muhammad Rehman, appellant has called in question the judgment dated 20-12-2011 passed by the learned Addl. Sessions Judge-VII, Peshawar whereby he was convicted under section 324, P.P.C. And sentenced him to ten years' R.I. With a fine of Rs.20,000 or in default thereto to further undergo six months' S.I. He was also sentenced to pay Rs.3,21,880 as `Arshi (half of Diyat as per section 337-R P.P.C.) and also to suffer seven years' R.I. Under section 336, P.P.C. All the above sentences were directed to run concurrently. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. The facts forming background of the present case are that on 31-12-2006 at 7.50 hours Mst.
Mushtari wife of Dost Muhammad in an injured condition was brought to Casualty Ward of L.R.H.
Peshawar by her son Faisal and daughter Mst.Pukhraj where she made report to the local police on duty to effect that on the day of occurrence (same day) at about 7.00 hours she was present in her house situated in Koocha Kalaran Chowk Shadi Pir within the vicinity of Police Station Kotwali, meanwhile somebody knocked the outer door of her house, on which she opened it and her nephew Muhammad Rehman son of Gul Rehman resident of Urmar Payan District Peshawar came inside her house. She wanted to shake hands with him, but she asked her as to why she was not ready to give the hands of her daughter to him in marriage, being already betrothed with him and thereafter took out his pistol and started firing at her with the intention to kill her, as a result whereof she was hit and got injured on her left shoulder, left ear and eye. The occurrence was stated to have been witnessed by her daughter Mst. Pukhraj
3. This report of the complainant injured Mst.Mushtari was reduced into writing in the shape of murasila by Muhemmad Gul A.S.-I. Present on duty in the Casualty Ward of LRH, Peshawar, who after scribing the same got obtained the thumb impression of the complainant on it. He sent this murasila to Police Station Kotwali for registration of the case on the basis of which, case vide F.I.R.
No.736 dated 31-12-2006 Exh.PA was registered against accused Muhammad Rehman son of Gul Rehman resident of Urmar Payan, Peshawar. Thereafter he prepared injury sheet of the complainant and referred her to Doctor on duty for medical examination and treatment.
4. Investigation in this case was entrusted to Shahi Mulk, now retired (P.W.12), for the purpose of carrying out investigation in this case after receipt of copy of the F.I.R. He went to the spot and prepared the site plan Exh.P13 at the instance of Mst.Pukhraj eye-witness. During the spot inspection he recovered and took into his possession blood through cotton and sealed it into a parcel No.1 by affixing three seals having a monogram of SM. He also recovered and took into possession one empty shell of .30-bore freshly discharged and sealed it into a parcel No.2 by affixing seal of the same monogram on it. Likewise he also recovered one spent bullet, sealed it into a parcel No.3 and affixed seal of the same monogram on it. To that effect he prepared recover memo Exh.P.W.3/1.
Vide recovery memo Exh.P.W.12/1 he took into possession blood-stained clothes of the complainant consisting of `Qamees' and `Shalwar ' of light yellow, black colour and one 'Chadar' having cut marks produced by Haji Dost Muhammad husband of complainant in presence of the marginal witnesses. He sealed it into a parcel No.4 and affixed three seals of the monogram of SM on it. All the above documents prepared by him bore his signature. Thereafter he raided the house of the accused for his rest, but could not find him there. Then he placed on file discharge report of the complainant Mst.Mushtari Exh.P.W.12/2 and he also sent the bloodstained articles to the FSL Peshawar and received its report. As the accused was avoiding his lawful arrest, therefore, he vide application Exh.P.W.12/3 applied to the Illaqa Magistrate for issuance of warrant under section 204, Cr.P.C. After receiving it from the court of law, he marked it to DFC concerned for execution who returned the same unexecuted and thereafter he applied for obtaining proclamation notice under section 87, Cr.P.C. Vide his application Exh.P.W.12/4 against the accused and after receipt of it from the court of law he again entrusted it to the same DFC for, its execution, who after its due execution in accordance with law returned the same to him and then, he after completion of investigation and proceedings under sections 204 and 87, Cr.P.C. Submitted challan against the accused to the S.H.O. In terms of section 512, Cr.P.C. The S.H.O. Concerned submitted challan against the accused under section 512, Cr.P.C. To the Court of competent jurisdiction.
5. The trial Court after receipt of challan initiated proceedings. Within the meanings of section 512, Cr.P.C. And after completion of it the accused-appellant was declared proclaimed offender vide order of the trial Court dated 7-11-2008 passed by the learned ASJ-IV, Peshawar.
6. After arrest of the accused-appellant, a supplementary challan was submitted before the Sessions Judge, who in turn sent it to the court of ASJ-VI, Peshawar for trial of the accused. The learned trial Court summoned the accused and after compliance with the provisions of section 265-C, Cr.P.C. Formal charge was framed against him for the offences with which he was charged with, but the accused did not plead guilty to the charge and claimed trial. Thereafter the prosecution produced before the said trial Court in all thirteen witnesses. Brief resume of which has been recorded in the impugned judgment of the trial Court.
7. Thereafter, accused-appellant was examined under section 342, Cr.P.C., but he denied all the allegations made out against him by the prosecution and professed innocence. He neither opted to produce defence evidence nor wished to record his own statement under section 340(2), Cr.P.C..
And then after hearing counsel for the parties the learned trial Court sentenced and convicted him vide impugned order and judgment details of which have been given in the earlier part of this judgment.
8. I have heard the arguments of learned counsel for the appellant, learned counsel for the State assisted by the learned counsel for the complainant and have gone through the record.
9. Perusal of the record and evidence on file shows that the appellant-convict has been charged by the complainant Mst. Mushtari in a promptly lodged F.I.R. The occurrence has taken place at 7.00 hours, while she had charged the present accused in her report recorded in the shape of murasila Exh.PA/1 in the Casualty Ward of L.R.H. Peshawar at 7.50 hours, which is at a distance of about 3/4 kilometers from the place of occurrence. Thus, keeping in view the distance between the hospital and place of occurrence, the F.I.R. Seems to have been lodged with promptitude, which leaves no room for consultation and deliberation. Furthermore, it is a daylight occurrence, accused-appellant being nephew of the complainant is fully known to her. He has been charged by her only and there is nothing on the record that the complainant has any previous grave enmity with the appellant- accused to substitute him for the real culprit. Complainant Mst.Mushtari and her daughter Mst.Pukhraj being inmates of the house where the occurrence has taken place are the natural witnesses of occurrence, out of whom one has received dangerous to life injuries on her person and they have fully corroborated each other on material points in their statements recorded before the trial Court, though they have been cross-examined at length by the defence counsel, but nothing detrimental to the prosecution case has been brought on record to shatter their testimony.
From perusal of it, I find that they are consistent regarding time of occurrence, place of occurrence, the mode and manner in which the occurrence has taken place. Though both the witnesses are closely related to each other, but they have no grave or enmity with the accused, therefore, in these circumstances, their testimony having not been shattered during cross-examination and fully corroborate each other on material particulars, cannot be discarded on this score alone.
Rather their testimony in the absence of any material contradictions or deliberate improvements in it is worth consideration and it is established from their testimony that it was accused only, who, fired at the complainant Mst.Mushtari in her house at about 7.00 hours with his pistol, in order to kill her, as a result of which she has sustained dangerous to life injuries on her person on account of which her left eye has been damaged and thus has been removed.
10. Needless to mention here that Dr. Muhammad Humayun Khan P.W.10 had fully supported and corroborated the testimony furnished by Mst. Mushtari and her daughter Mst.Pukhraj in the medico legal report Exh.P.W.10/1.7. Mst.Mushtari complainant duly testified by him in his testimony before the Court which was not shattered during cross-examination.
11. Furthermore it is also proved from the evidence produced by the prosecution that the motive behind the occurrence has been fully established by Mst.Mushtari and her daughter Mst. Pukhraj eye-witnesses of the occurrence by saying in their statements that the accused has the grudge with the complainant for not handing over the hands of her daughter to him in marriage.
12. It is also established from the record that accused-appellant has remained fugitive from law for pretty long time and his long abscondence has been fully established and proved by the prosecution while carrying out proceedings under sections 87 and 204 Cr.P.C. At the time of investigation against him and at the time when his case was challaned to the court of competent jurisdiction for proceedings under section 512 Cr.P.C, wherein the trial Court after proceedings against him within the meaning of section 512, Cr.P.C. Has declared him proclaimed offender.
13. Thus, in view of the above discussion, I am of the considered view that the prosecution has fully established its case against the appellant-accused beyond any shadow of doubt and thus the impugned order and judgment of the learned trial Court is well-reasoned and well founded.
Learned counsel for the appellant at the end of his arguments has requested this Court that leniency should be made with the appellant for awarding lesser penalty instead awarding him severe penalty, which has been awarded by the trial Court. However, this contention of the learned counsel for the appellant in view of the established facts and circumstances of the case, by trying his level best to kill the complainant with pre-meditation intention by firing at the complainant on her vital part of her body more than one shot, is not tenable because he has tried his level best to kill her, but it was Almighty Allah who saved her life. In these circumstances, the appellant does not deserve the concession of any leniency and thus, in view of the above discussion, I find no substance in the present appeal and the same being devoid of force is dismissed.