' ABDUL LATIF KHAN, J.---Through this single judgment we propose to decide Criminal Appeal No.42- D of 2012 filed by appellant Sher Dad son of Khaliq Dad against his conviction passed by learned Additional Sessions Judge-II, D.I. Khan dated 21-6-2012 vide which he has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and with payment of Rs.1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heir of deceased. In default thereof further to undergo six months' simple imprisonment. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Complainant Sher Dad son of Gul Dad has filed Criminal Revision No.15-D of 201.2 for enhancing the sentence of appellant from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above Criminal Appeal and Criminal Revision are arising out of the same judgment passed by the learned trial Court, therefore are taken together for decision, through this single judgment.
3. Succinct facts of the present case as per F.I.R. Are that on 3-12-2000 at 1400 hours, the complainant Sher Dad son of Gul Dad lodged a report that he along with his son Tariq and Allah Nawaz was present at brick kiln of Karamat Khan. Tariq son of the complainant and Allah Nawaz started towards road side and when they were about to reach near the road, there accused Sher Dad son of Khaliq Dad armed with Kalashnikov appeared and opened fire at Tariq with intention to kill him, as a result of which Tariq received injuries. The complainant gave no motive behind the occurrence and the occurrence was witnessed by the complainant and Allah Nawaz, hence F.I.R.
No.297 dated 3-12-2000 registered under section 302, P.P.C. At Police Station, Kulachi District D.I.
Khan.
4. Challan against the appellant was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant refused to plead guilty in response to the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the accused.
5. The prosecution examined nineteen witnesses during trial against the accused and then closed its evidence. Whereafter statement of accused was recorded under section 342, Cr.P.C.
6. The learned trial Court after hearing arguments of both sides convicted the appellant and sentenced him as per detail given in first Para. Of this judgment.
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7. Mr. Saleemullah Khan Ranazai, Advocate learned counsel for the appellant contended that there are material contradictions in the statement of the P.Ws. Which have been overlooked by the trial Court treating them as minor discrepancies which is not warranted by law. He contended that the benefit of doubt of the same mus* be given to the convict appellant and the trial Court has wrongly construed otherwise. He referred to the statement of the P.Ws. And contended that the same are not in line with the recovery allegedly made by the police. He also referred to the site plan and argued that the ocular account is not supported by site plan as well as recoveries. He contended that recovery memos and points shown in the site plan are also contradicting each other. He referred to the statement of P.W.15 who has deposed about the recoveries in contradiction to the site plan. He attacked the statement of alleged eye-witness and complainant examined as P.W.12 and P.W.13 as full of contradiction and termed these statements not supporting the prosecution case. He contended that the convict appellant was arrested on 3-10-2010 and recovery of Kalashnikov was allegedly made from him, however, the laboratory report bear any date. He argued that the FSL report bears the date i.e. 2-10-2010, prior to the arrest of convict appellant. He argued that the F.I.R. No.187 under section 13, Arms Ordinance was registered against the convict appellant on 3-10-2010, on the day of alleged arrest of the convict appellant but the FSL report makes the case of the convict appellant doubtful with regard to the date mentioned therein.
He contended that the complainant was away at a distance from the place of occurrence at the crucial time and as such has not seen the occurrence. He contended that no evidence has been produced to the effect that the convict appellant was also working in the brick kiln of Karamat Khan. He argued that the owner of brick kiln namely Karamat Khan, who was an important witness has not been produced as such the findings of the trial Court are not sustainable under the law.
8. Mr. Sanaullah Khan Shamim Gandapur learned Additional Advocate-General, assisted by Muhammad Ismail Khan Alizai, Advocate learned counsel for the complainant, contended that the FSL report in case under section 13, Arms Ordinance, If perused in juxtaposition would suggest that in fact the date of FSL report i.e. 2-12-2010 instead of 2-1-2010, which has been entered inadvertently. It was argued that Para 3 of the report also supports his version regarding the date as 2-12-2010 instead of 2-1-2010, He referred to the site plan and contended that eastern side there is no forestation though on the western side it does exist. He argued that convict appellant was shown at point No.2 wherefrom the recovery was made and the points shown in the site, plan has been explained by the convict appellant in disregarding of the evidence available on the file. He contended that there was no visible hindrance between the points shown in the site plan. He contended that the complainant cannot replace anyone to the actual accused in case of murder of his son. He vehemently argued that there is a single accused in the case and the convict appellant remained absconder for considerable period of ten years and the prosecution story is supported by the evidence available on file and the trial Court has rightly recorded the conviction of the convict appellant in accordance with law.
9. We have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
10. Perusal of the record would reveal that the occurrence took place at 1400 hours on 3-12-2000 and on the report of Sher Dad son of Gul Dad recorded vide murasila dated 3-12-2000, F.I.R. No.297 was registered against the convict appellant namely Sher Dad son of Khaliq Dad. The occurrence was witnessed by the complainant and Allah Nawaz. The convict appellant decamped from the spot and remained absconder for more than 10 years. Against which proceedings under section '512, Cr.P.C. Were also initiated. The evidence of the P.Ws. Recorded in proceedings under section 512, Cr.P.C. Was placed on the record of this case on the application of learned counsel for the complainant in terms of Article 46 of the Qanune-Shahadat Order, 1984.
11. The prosecution examined as many, as nineteen witnesses including the complainant P.W.13 and the eye-witness Muhammad Nawaz as P.W.12. The occurrence 'took place at 1400 hours and the report was made at 1430 hours by the complainant Sher Dad son of Gul Dad in the Hospital, wherein the convict appellant was directly charged. The site plan was prepared on the pointation of complainant namely Sher Dad and eye-witness Allah Nawaz, near the brick kiln of one Karamat Khan where the convict appellant and complainant party were working as labourer. The presence of the deceased, convict appellant, complainant and eyewitness shown on the points mentioned in the site plan, duly supported by the evidence produced by the prosecution. The arguments of learned counsel for the convict appellant that working as labour of convict appellant in the brick kiln was not proved, is not well-founded for the reason that convict appellant in reply to question No.15 of his statement under section 342, Cr.P.C. Deposed that he was working as labour in the brick kiln of Karamat Khan. The convict appellant has, however, not examined as his own witness under section 340(2), Cr.P.C. Nor wished to produce any evidence in support of his defence and simply denied the occurrence in his statement. The recovery of the blood-stained earth, empty shell of 7.62 bore from spot at point A and 2 is also supported by evidence. The recovery of blood from the spot through cotton along with blood-stained garments of the deceased sent to the FSL, the report of which is on file as Exh.P.W.16/11. The recovery of the Kalashnikov made from the convict appellant after his arrest which was also sent to the FSL, report of which was positive, available on the file as Exh.P.W.10/2. The contention of learned counsel for the convict appellant that the card of arrest of the convict appellant shows the arrest of convict appellant as 3-10-2010 whereas the FSL report contained the date i.e. 2-1-2010 which is not possible, is in fact misconceived. The convict appellant admittedly arrested on 3-10-2010 and on the same day recovery of Kalashnikov was made from him which was also sent to the FSL in case F.I.R. No.187 under section 13, Arms Ordinance, report of which in that case sent to FSL dated 2-12-2010 which suggests that the date mentioned on FSL report in the present case as 2-1-2010, inadvertently mentioned and in fact it was 2-12-2010. These observations also find support from Para 3 of the opinion given by report of Fire Arms Expert Exh.P.W.10/2. .12. Scanning of the evidence particularly the complainant and eyewitness examined as P.W.13 and P.W.12 would suggests that the story narrated by the prosecution was fully corroborated by the evidence available on file. The learned counsel has tried level best to point out discrepancies in the statement of the P.Ws. Which were minor in nature and not contradiction, grave in nature, could be pointed out in the evidence of prosecution. Such minor discrepancies would not benefit the convict appellant, particularly in a case where tangible evidence is available against the convict appellant.
13. The medical evidence available on the file reveals that vital aspect of fire-arm injuries which are in line with the prosecution case fully supports the ocular version. The site plan and recoveries also supports the version of prosecution. The convict appellant was directly charged in the F.I.R. In daylight occurrence, witnessed by eyewitnesses, who decamped from the spot and remained fugitive from law for about more than 10 years for which no explanation has been made by the convict appellant. The parties are known to each other as the convict appellant belongs to the same village to which the complainant belongs. There is no chance of substitution as single accused has been charged. The story of the prosecution has been made in natural manner without any addition or deletion. The evidence of tangible nature produced by the prosecution successfully bring home the guilt of convict appellant supported by all aspect of the case, necessary for conviction. The trial Court has evaluated the evidence properly and has sentenced the convict appellant in accordance with law to which no exception can be taken.
14. In view of our above discussion, we dismiss the appeal of the convict appellant and maintained the conviction and sentence awarded to him by the learned trial Court.
15. As far as Criminal Revision bearing No.15-D for 2012 is concerned we are of the view that the trial Court is proper forum to decide the quantum of sentence to be awarded. Learned trial Court has given sufficient ground in the impugned judgment for awarding lesser punishment to which, we agree and accordingly dismiss the Criminal Revision No.15-D of 2012.