FAIZ MUHAMMAD KHAN, J.-Fazal Anwar, son of Fazal Ahmad, aged about 32/33 years, resident of village Shaido, was tried by the Additional Sessions Judge, Nowshera for committing, on 17-1-1978 at 14.00 hours, within the limits of Shaido, the murder of Sultan Mahmood by firing at him and the criminal intimidation of . Mst. Sultan Zari. The learned trial Judge, finding the accused guilty of the offence with which he was charged, senten--ced him
(i) to death, under section 302, P. P. C., and to pay a fine of Rs. 2,000, or in default to undergo one year R.1. And also to pay a fine of Rs. 3,000 as compensation to the heirs of the deceased or in default to undergo six months' R. I., for committing the murder of Sultan Mahmood deceased,
(ii) to one year R. I. For committing offence under section 506, P. P. C.
2. The report of the occurrence was lodged by Mst. Sultan Zari in the Police Station, Akora on 17-1- 1978 at 14.45 hours, stating therein that her brother Sultan Mahmood deceased was residing at Kohat for the last 5-6 years, who had come to visit her and after spending in her house one night he was a. Little while ago going back to Kohat when he, on way, met one Ihsan-ud-in, blacksmith, with whom he stopped and started talking. She further stated in the F. I. R. That she also came upto the outer door of her house to see her brother off and while the deceased and Ihsan-ud-Din were busy talking to each other, Fazal Anwar, son of Fazal Ahmad arrived there armed with `Tamancha' and fired 3/4 shots, in quick succession, at Sultan Mahmood deceased, who was hit and fell down on the ground. She also stated that after raising alarm she ran towards Fazal Anwar accused who threatened her on pistol point not to come near him or otherwise she would also be killed. The motive for the offence disclosed by Mst. Sultan Zari in the F. I. R. Was that her sister Mst. Sherin was killed for which Muhammad Wahab alias Khattak, brother of Fazal Anwar accused, was charged.
3. Khalid Khan, A. S. I.. (P. W. 10), was then A. S. I., P. S. Akora. Ire was present in the police station when Mst. Sultan Zari complainant had arrived-thane. He recorded the First Information Report (Exh. P. A.) which was read over by him to the complainant who after admitting it correct thumb-impressed it.
Khalid Khan, A. S. I. Then went to the spot, accom--panied by the complainant. He prepared the injury sheet and the inquest report of the deceased, which are Exh. P. E. And Exh. P. E./1 respectively.
He then despatched the dead body of Sultan Mahmood deceased to the mortuary for post- mortem examination under the care of Said Rasool F. C. Thereafter Khalid Khan A. S. 1. (P. W. 10) prepared the site plan Exh. P. B. At the instance of Mst. Sultan Zari (P. W. 8) and Ihsan-ud-Din (P. W.
9). He picked up blood-stained earth from the spot and sealed the same into a parcel, vide memo.
Exh. P. C. He also recorded the statement of Ihsan-ud---Din on the same day. In order to make arrest, he searched for the accused, who was, however, found not present.
4. On the following day, Khalid Khan A. S. I. (P. W. 10) handed over investigation of the case to Sardar Khan S. H. O. (P. W. 7), who partly investigated the case. He took into possession one shirt Exh. P. 1, one jacket Exh. P. 2 and one vest Exh. P. 3, all blood-stained having corresponding cut marks, belonging to the deceased, and one sealed bottle containing a spent bullet recovered from the dead body of the deceased, vide memo. Exh. P. D. These articles were brought to him by Said Rasool F. C. From the hospital. The S. H. O. Obtained from the Court the warrants for the arrest of the accused under section 204, Cr. P. C. As well as proclamations under section 87, Cr. P. C., which were handed over to Mussarat Ali D. F. C. (P. W. 2) for execution, who after doing the needful returned the same to the Court along with his report thereon, which he proved as correct while giving statement at the trial. Since the accused was absconding, the S. H. O. Submitted challan against the accused under section 302/506, P. P. C. And section 512, Cr. P. C.
5. The post-mortem examination, on the dead body of Sultan Mahmood, was conducted by doctor Fazal Qayum on 18-1-1978 at 9-30 a. m. He found the following injuries on the person of the deceased : External Examination.-(1) Fire-arm entrance wound measuring 1/4" x 1/4' on the right side of forehead.
(2) Fire-arm entrance wound on the right side of -the face near right angle of mandible.
(3) Fire-arm entrance wound measuring 1/4" x 1/4" on front of chest near the middle line in level with the 4th inter space.
(4) Fire-arm exit wound corresponding to wound No. 3 on the back behind the posterior fold of axilla in a 5th inter space measuring 2/5" x 2/5'.
Internal Examination.---Scalp and skull injured at the site of the wounds. Membrane injured at the site of wounds. Frontal lobe of right cerebral hemisphere and brain stem injured.
Thorax.-Walls, ribs, cartilages, pleurae and right lung injured.
Abdomen.-Stomach normal and containing semi-digested food. Muscles injured at the site of the wounds. Sternum and mandible fractured.
In the opinion of the doctor, the deceased had died as a result of fire--arm injuries to the vital organ, i. e. Brain, resulting in haemorrhage, shock and death. The death was instantaneous and the probable time between death and post-mortem examination, according to doctor, was within 24 hours. The Post-mortem Report Exh. P. F. And the remarks on the Inquest Report Exh. P. E. Were testified by the doctor as correct. He also stated to have handed over the blood-stained clothes of the deceased and one spent bullet recovered from the dead body insealed bottle to the F. C.
6. Hidayatullah, S. I. (p. W. 1), who was posted as S. H. O., P. S. Akora in the year 1979, arrested Fazal Anwar accused on 3-10-1979 and submitted Supplementary Challan against him.
7. The accused faced trial in the Court of Additional Sessions Judge, Nowshera and pleaded innocence and false charge. He claimed trial. He also denied his abscondence. The learned Additional Sessions Judge, on the conclusion of the trial, however, found Fazal Anwar accused guilty of the offence with which he was charged and sentenced him as aforesaid.
8. Against his conviction and sentence, Fazal Anwar accused has come to this Court in appeal and the learned Additional Sessions Judge has also forwarded the case to this Court for confirmation of the death sentence awarded by him to the accused. This judgment would dispose of both the appeal and the murder reference.
9. At the trial the prosecution relied on the statements of Mst. Sultan Zari (P. W. 8) and Ihsan-ud-Din (P. W. 9), the medical evidence and the abscondence of the accused. Relying on this evidence the learned trial Judge convicted the accused and sentenced him as aforesaid.
10. In her statement given at the trial Mst. Sulran Zari (P. W. 8) repeated the same story which she had stated in her first report lodged at Police Station, Akora. She stated that her brother Sultan Mahmood deceased was living at Kohat and a day prior to the day of occurrence he had come to her house where he stayed for the night. On the day of occurrence, after noon time, the deceased, in order to go to Kohat, came out of the house and she accompanied him upto the outer door of her house in order to see him off. She stated that the deceased went towards the mosque side and on way he met Ihsan-ud-Din (P. W. 5) with whom he stood for a while. In the meantime, while she was still standing at the door of her house to see her deceased brother off, the accused appellant armed with a 'Tamancha' arrived there and fired three or four shots at the deceased, with which he was hit and fell down on the ground. She stated that she rushed towards her brother but the accused appellant ,at the pointation of the 'Tamancha', threatened her not to come near him, or else she would also meet the same fate. She stated that the accused appellant then decamped from the spot. The motive for the offence, stated by her, was previous blood-feud between the parties. From the spot she then went to Police Station, Akora where she lodged the First Information Report (Exh. P. A), which she owned at the trial. In her cross-examination she admitted that during the days of occurrence her husband was working in Kuwait as a Car-Mechanic. She also admitted having one son aged 23 years and one daughter aged 24 years. She also admitted that she was `Pardah'-- observing lady. She also admitted that her deceased brother had come to her house at about evening time one day prior to the day of occurrence and he remained in her house till his departure for Kohat and none of the other relatives visited him nor had he gone out of the house to meet them. She also admitted that her deceased brother left her house after taking noon meals.
She also stated that the occurrence took place after Peshin prayers had been offered. She denied the suggestion that occurrence took place at about 9 a. m. She also denied the suggestion that she was not present on the spot at the time of occurrence.
11. Ihsan-un-Din (P. W. 9) gave a brief story at the trial. He frankly admitted that he was neither related to the deceased nor to the accused appellant. He also admitted that he had no enmity with the accused appellant. He stated that on the day of occurrence, at about 2 or 2'15 p. m., he went to the mosque for offering Peshin prayers. Near the mosque he met Sultan Mahmood deceased, who was coming from the house towards the mosque side. The both stopped there talking to each other. The deceased then took leave from him to go to Kohat. 'He stated that he had just ascended four stairs when he heard the report of fire shots and saw the deceased falling on the ground.
Ihsan-ud-Din (P. W. 9) further stated that he also saw accused appellant going from the spot towards the south armed with a pistol. The witness stated that he left the spot out of fear. Ihsan-- ud-Din (P. W. 9) in his cross-examination admitted that there were other houses and shops situated near the scene of occurrence but he had not seen anybody else near the spot. He also stated that even after the firing he did not see any body else in the street, and admitted to have stayed at the spot for about a minute and after seeing the deceased falling on the ground he ran away from the spot. He also admitted that during that period he had not seen any body approaching the deceased. He admitted that after the occurrence the accused appellant was going at his normal speed and that he had seen him from his back and the pistol which he had was in holster hanging on the shoulder of the accused appellant. The witness denied the suggestion that his statement was recorded by the Police under section 161, Cr. P. C., He stated that if any such statement was available on the record, that might have been written by the Investigating Officer of his own.
12. The medical evidence furnished by Doctor Fazal Qayum at the trial disclosed that the deceased had on his body three fire-arm entrance wounds and one fire-arm exit wound. The death of the deceased was caused by the fire-arm injuries to the vital organs of his body. One spent bullet was also recovered from the dead body of the deceased, which was handed over by the Doctor to the Police and was taken into possession by the I. O., vide memo. Exh. P. D. The deceased also had in his stomach semi-digested food.
13. The relationship between the deceased, Mst. Sultan Zari (P. W. 8) and the accused appellant stands admitted on the record. The previous blood-feud enmity between the parties is also admitted as well as proved. In such circumstances, the statement, given by Mst. Sultan Zari (P. W.
8), the sister of the deceased, at the trial can only be relied upon if it is corrobo--rated in material respects by the other evidence brought on record. The learned trial Judge was of the view that corroboration was available to the statement of Mst. Sultan Zari (P. W. 8) by other evidence brought on record. He was also of the view that she gave a consistent story about the occurrence in the F. 1.
R. As well as at the trial and before lodging F. I. R. She had no chance or occasion so consult any one else. In the opinion of the learned trial Judge, the false implication of the accused appellant in the crime by MsP. Sultan Zari was, therefore, out of question. The learned trial Judge accepted Mst.
Sultan Zari (P. W. 8) as a natural and truthful witness and since her statement stood corroborated by other evidence brought on record, it was made basis for the conviction of the accused appellant.
14. We have given our anxious consideration to the entire evidence brought on record and for the reasons hereinafter stated we are of the view that the prosecution has succeeded in proving the case against the accused-- appellant beyond reasonable doubt. Right from the beginning till the end, Mst. Sultan Zari (P. W. 8) has consistently charged the accused appellant for committing the murder of her brother Sultan Mahmood deceased. The venue of crime is undisputedly the place shown as such in the site plan and claimed as such by Mst. Sultan Zari (P. W. 8) in her statement given at the trial. The occurrence took place after noon time near the house of Mst. Sultan Zari (P.
W. 8). According to the prosecution story the deceased, who was living at Kohat for the last so many years, had come to visit his sister Mst. Sultan Zari (P. W. 8) with whom he stayed for the night and after taking noon meals he was going back to Kohat when he, on the way, met Ihsan--ud-Din (P. W. 9) with whom he stopped for a while. They both were standing near the mosque, which fact has, in his statement at the trial, been admitted by Ihsan.Ud-Din (P. W. 9), who, according to him, had come to mosque to offer Peshin prayers and had met the deceased near the mosque. In such circumstances, the presence of Mst. Sultan Zari (P. W. 8) in her house at the relevant time when she was having her brother as guest was quite natural and certain. It was also quite natural for Mst.
Sultan Zari (P. W. 8), as stated by her and accepted by the learned trial Judge, that she had come to the outer door of her house to see her brother off,. Who was going to Kohat, and that she had kept on standing in the door looking at her deceased brother, who was going on the path towards the mosque side where he stopped for a while with Ihsan-ud-Din (P. W. 9) and where he was fired at by the accused-appellant. Her statement that she saw her deceased brother standing with Ihsan-ud-Din (P. W. 9) when he was fired at by the accused-appellant receives support from the statement of Ihsan-ud-Din (P. W. 9), who also admitted to have met the deceased near the mosques and soon after he was fired at and the only person seen by Ihsan-ud-Din (P. W. 9) at the place o C occurrence at that time was the accused-appellant, who was also armed with `Tamancha'. These material facts were reported to the police by Mst. Sultan Zari (P. W. 8) in her promptly lodged First Information Report, which, according to the material brought on record, was free from outside prompting.
15. The ocular testimony furnished by Mst. Sultan Zari (P. W. 8) that the deceased was standing with Ihsan-ud-Din (P. W. 9), when he was fired at, that at the relevant time the deceased was busy talking to Ihsan-ud-Din (P. W. 9), that the accused appellant armed with `Tamancha' was present on the spot at the relevant time and that the occurrence took place after Peshin prayers time is fully corroborated by the statement given by Ihsan-ud-Din (P. W. 8) at the trial. Her statement that three or four shots were fired at D the deceased is corroborated by the medical evidence and the Post-mortem Report which prove that three fire-arm entry wounds were found on the body of the deceased and a spent bullet was also recovered from the dead body at the time of post-mortem examination. We are, therefore, of the firm view that the ocular testimony of Mst. Sultan Zari (P. W.
8) is corroborated in material particulars by other unimpeachable evidence brought on record.
16. When there is available on the record the ocular testimony of a witness, no matter he/she may be a close relative of the deceased and inimically disposed towards the accused, supported in material particulars by the statement of a totally disinterested witness, as in the present case, then the proved abscondance of the accused for a long time, as in this case, cannot be ignored by the Court, specially when no plausible explanation may be available on the record for such a long absence.
17. The learned counsel for the accused appellant argued that the deceased had other enemies in the village and the possibility that he was e to death by them and not by the accused appellant could not be excluded in this case. We do not accept this suggestion of the learned counsel for the accused appellant. Had the fact been as suggested by him, there was no reason why Mst. Sultan Zari (P. W. 8), whose presence on the spot at the relevant time is accepted by us, would make a false substitution, and that also of her real cousin. Neither the statement of Ihsan-ud-Din (P. W --- 9), nor any other material brought on record lend support to the suggestion made by the learned counsel for the accused appellant. In a day occurrence the mistaken identity of the assailant was also out of question.
18. The learned counsel for the accused appellant argued that according to medical evidence the stomach of the deceased contained semi-digested food. To me to the statement of Mst. Sultan Zari (P. W--- 8), in which she stated Referring e deceased had left her house after taking the noon meals, the learned that the counsel submitted that these two facts are not reconcilable, because if the deceased had left the house of Mst. Sultan Zari (P. W. 8) after taking the meals and was soon after fired at and killed, then his stomach could not have, contained semi-digested food. He, therefore, urged that the only inference could be drawn from these circumstances was that Mst.
Sultan Zari (P. W.8 ) was not present in her house when the deceased had left her house. He had, therefore, not seen the occurrence. We are not impressed by this argument of the learned counsel for the accused appellant, for it has not this stated by Mst. Sultan Zari (P. W. 8) that her deceased brother had left been use immediately after taking noon meals and, for reasons already given in paragraphs 14 and 15 of this judgment, we have absolutely no doubt in our mind about the presence of Mst.Sugmn sari (P. W. 8) in her house and on the spot at the relevant time.
I9. The learned counsel for the accused appellant further argued that in the light of medical evidence the site plan does not support the prosecution story. Referring to the site plan (Exh. P. B.) and the medical evidence, he submitted that a person at point No. 1 shown in the site plan when talking to a person standing at point No. 3 could not have been hit on his right side and front by shots fired by a person from point No. 2 shown in the site plan. This argument is equally without substance because, firstly, the site plan is not a substantive piece of evidence and cannot therefore be relied upon for the purpose of showing the exact location of the persons on thespot at the material time, secondly, the victim was not static or tied down to an object and he, therefore, could move, change or face any direction-, thirdly, the medical evidence instead of contradicting the prosecution story supports it in material respects, and fourthly, in presence of trustworthy ocular evidence on the record, such , minor discrepancies have no value or importance.
20. The learned counsel for the accused appellant also argued that the statement of Ihsan-ud-Din (P. W. 9) totally excludes the presence of Mst. Sultan Zari (P. W. 8) on the spot at the relevant time when be stated that he saw none else present in the street at the relevant time-,or approaching the deceased when he fell down after being hit. In our view, while Ihsan-ud-Din (P. W. 9) had deliberately made giving statement at the trial, some concessions in favour of the accused appellant, which is a common feature when a disinterested witness has to give evidence against his co villager in a trial o--n a ca ital charge. From the evidence brought on record, we are convinced that Mst. Sultan Zari (P. W. 8) was present at the spot and had seen the occurrence with her own eyes and that Sultan Mahmood deceased was killed by the accused appellant in the manner stated by Mst. Sultan Zari (P. W. 8).
21. The last argument of the learned counsel for the accused appellant was that in case the Court was not inclined to accept the suggestion that the prosecution had failed to establish the case against the accused appellant beyond reasonable doubt, then the accused appellant deserves lenient treatment` as he had, according to evidence brought on record, avenged the murder of his father, who was killed by Sultan Mahmood deceased. He, therefore& suggested that the extreme penalty of death may not be awarded in this case. We are afraid, this argument of the learned counsel for the accused appellant cannot prevail. No doubt, it has come on the record in the statement of Khalid Khan, A. S. I:, recorded in the High Court on 8-12-1981, that the father of the accused appellant was killed and a charge for that murder was laid against Sultan Mahmood deceased, but it is also evident from that statement that in that case Sultan Mahmood deceased was then sentenced to transportion for life, vide order dated 20-10-1962 passed by the Sessions Judge, Peshawar. It has also come in that statement that Mst. Sherina, the sister of Sultan Mahmood deceased, was also killed the same day by the brother of the accused appellant, who was also sentenced to transportation for life for the said murder. The F. I. Rs. Of both these cases are Exh. P. A. 1 and Exh. P. A. 2 on the file. There was, therefore, absolutely on justification for the accused appellant to have killed Sultan Mahmood deceased in a cold-blood manner to avenge the murder of his father. In the circumstances, therefore, the accused appellant did not deserve any lenient treatment. There being no mitigating circumstance available, he was, rightly convicted and sentenced by the learned trial Judge to normal penalty of death, which we hereby confirm.
22. In the end, the appeal must fail, which is hereby dismissed. Murder reference answered accordingly.
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