' WAZIR SHAKEEL AHMED, J.---The above named appellants through this criminal appeal have assailed the judgment/order dated 24-9-2011 of the learned Additional Sessions Judge Diamer, whereby the appellants Nos.1 and 2 were convicted and sentenced to life imprisonment with the direction to pay compensation of Rs, 200,000 (two Lac) to the legal heirs of deceased Jamshed failing which to undergo further 6 months' R.I. In the case F.I.R. No,32/08 chalked on 20-10-2008 at police station Thore Chilas under section 302/324/34 P.P.C. Appellants Nos. 3 and 4 were also convicted and sentenced to suffer 7 years' rigorous imprisonment and fine of Rs,30,000 each and to further undergo imprisonment of 3 month in case of failing to pay the above compensation amount under section 329 of P.P.C. In the case.
2. Brief facts of the case are that one Altaf Hussain son of Diyar resident of Pariika Thore District Diamer registered a case under F.I.R. No,32/2009 on 20-10-2008 at about 1700 hours before police at Thore stating therein that at about 1600 hours Mst Jahan wife of Safa had let out her cattle in the fields of complainant party whereupon Shafi son of Ghafoor got the above cattles out of their field by pelting stones. On the information of the above incident by Mst Jahan to the inmates of her house Safa, Mir Wali, Riaz sons of Bakha , Gul Muhammad son of Safa came out of their house in anger with lethal weapon in the fields and started firing towards their houses. In the result of which the bullets fired by Safa and Gul Muhammad hit her brother Jamshed who died on the spot while Mst. Zulekha daughter of Mir Khan was injured by the hitting of bullet fired by the Mir Wali and Riaz.
The occurrence has been witnessed by Muhammad Ghani son of Zaman and Muhammad Wali son of Furmas Khan. The Waja Enaad (Motive of occurrence) is said to be the long standing enmity between the parties.
3. Police after necessary investigation of the case submitted challan before the court of competent jurisdiction under sections 302/324/34, P.P.C. Against the appellants who were accordingly charged but they did not plead guilty and claimed trial. Prosecution in support of their case recorded statements of P.W.1 Altaf Hussain, P.W.2 Muhammad Ghani, P.W.3 Muhammad Wali and P.W.4 Mst Zulikha as complainants and eye-witnesses while P.Ws.5 and 6 were examined as witnesses of recovery memos, likewise P.W.7 is the witness of recovery of weapon of the offence by convict Safa and P.W.8 is Doctor who got exhibited injury sheet of Mst. Zulikha while P.Ws. 9 to 12 are the Police officials associated with the investigation of the case in hand.
4. After full trial the learned trial Court convicted the appellants as mentioned above vide its judgment/order dated 24-9-2011 which has been impugned before this Division Bench.
5. Mr. Haq Nawaz Advocate appearing on behalf of the appellants, started his arguments entering into the controversy of who and where the application for investigation of the case (F.I.R.) was scribed which according to him made the contents of the F.I.R. Doubtful. The learned counsel further pointed out the cross-examination of P.W.9 Niamatullah SHO, wherein he admitted that he has not examined the dead body of the deceased as whether the deceased received bullet injuries or not, likewise the said I.O. Further admitted that he has not seen injuries of Mst. Zulikha P.W.4 and the P.W.8 Doctor Ikramullah also not personally examined P.W.4 Mst. Zulikha while preparing injury sheet. The learned counsel further argued that the fire arm weapon allegedly recovered on the pointation of the appellants appears td be planted which was sent to laboratory at Lahore with an inordinate delay but the report obtained is from that of Peshawar and as such it is not clear that who carried the weapon to the laboratory at Peshawar. The learned counsel further argued that the prosecution failed to prove the number of bullets fired by the appellants at deceased as well as injured Mst. Zulikha through witnesses, he also argued about having enmity between the complainants/ deceased party and appellants by stating that Mst. Zalikha P.W.4 was divorced by real brother of appellant namely Otail some time back due to that she falsely deposed against the appellants. He finaly submits that the case is full of doubts and suspicion because of no independent witnesses were produced against the appellants.
6. On the other hand Mr. Amjad Hussain Advocate for the complainant and the learned Assistant Advocate General for the State argued that the occurrence is that of broad daylight. The report of the same has been promptly lodged, directly charging the appellants with their specific role in the commissioning of the alleged offence. The names of the eyewitnesses are also mentioned in the F.I.R. Whose statements before the trial court were remained un shattered and nothing was brought before by defence on record to show that the eyewitnesses had any personal malice for falsely implication of the appellants/convicts in the case in hand. They further argued that the recovery of blood stained earth from the scene of occurrence, the inquest report, chemical examiner's report, fire arm expert's report, radiologist's report and the recovery of the crime weapon recovered on the pointation of the appellants Nos.1 and 2 and recovery of empty shells from the place of occurrence prove the case against the appellants beyond any shadow of doubt. They finally prayed that the appeal in hand filed by the appellants be dismissed and by accepting the Criminal Revision Petition No,13/2011, the impugned conviction of the appellants Nos.1 and 2 be converted into death sentence to meet the ends of justice.
7. Besides giving a patient hearing to the counsel for the parties we have also gone through the record of the case with their able assistance.
8. The prosecution case admittedly revolves upon the statements of the eye-witnesses/direct evidence, motive and recoveries. Let us assess the evidence produced by the prosecution in the light of record of the case. P.W.1 is the F.I.R. Lodger and the real brother of deceased Jamshed who narrated the actual account of the occurrence that he has earlier, submitted before the S.H.O., Thore while registering the case in hand. Admittedly he is not an eye-witness of the occurrence and reached at the scene of occurrence after hearing fire shots and he found the deceased breathing his last, while Mst. Zulikha had also sustained bullet injuries. According to his statement the two eye-witnesses namely Muhammad Ghani P.W.2 and Muhammad Wali P.W.3 were also present on the scene of occurrence and on his inquiry they narrated the details of the occurrence as mentioned in the contents of the F.I.R. And also discussed in para-2 supra. Nothing material was dug out during the lengthy cross-examination from this P.W./complainant except the admission of the complainant regarding the relationship of the eyewitnesses P.W.2 and P.W.3 with the deceased (brother of complainant).
9. The 1st eye-witness Muhammad Ghani appeared as P.W.2 who stated that on 20-10-2008 at about 4:00 PM he and P.W. Muhammad Wali were busy in their field situated near their homes. Mst.
Jahan wife of Safa appellant rushed towards her home from the field of the P.W.2 and 3 (Ghani and Muhammad Wali). In the meantime the appellants came out of their houses along with fire arms.
Appellant Safa and Gul Muhammad started firing towards the house of deceased who was standing near the door of their house, resultantly deceased received bullet injuries and fell down on the ground, whereupon P.W.4 Zulikha rushed towards the deceased. As soon as she reached near the deceased, appellants Mir Wali and Riaz opened fire on her and she got bullet injuries on her left leg and fell down on the ground. This P.W.2 Muhammad Ghani and P.W.3 Muhammad Wali went towards the place of occurrence and shifted, Mst. Zulikha P.W.4 from the spot to veranda of her house. Thereafter they both went to the place where the deceased was lying and found that he had expired. After the occurrence the appellants went to their respective houses, thereafter the injured lady was shifted from the place of occurrence to D.H.Q. Hospital Chilas by her son. Motive behind the occurrence is old enmity.
10. The statements of the 2nd and third eye-witnesses namely Muhammad Wali P.W.3 and Mst.
Zulikha P.W.4 are almost replica of the above statement of P.W.2 Muhammad Ghani hence need not to reproduce here with the slight difference to the extent of statement of P.W.4 who in addition to the ocular accountant of the incident as narrated by P.Ws. 2 and 3 in her statement sated before the court that she had married with the brother of the appellant Safa and whose wedlock they have two daughters and 2 sons. After the death of his husband, she contracted 2nd marriage with one Otail brother of the above appellant Safa who due to an alleged illicit relation with one woman migrated to down country. According to her statement recorded before the trial court. The 2nd husband of the P.W.4 Mst. Zulikha namely Otail has already three wives who had also migrated along with him. She demanded livelihood from the brothers of the Otail but they refused rather forced to leave her house, accordingly she went to her brother's house and started residing there.
According to her statement recorded before the trial 'Court on the day of occurrence at Asr prayer time she along with P.W.3 Muhammad Ghani and P.W.2 Muhammad Wali were collecting their crops from their fields in the meantime Jahan wife of Muhammad Safa rushed to her house, in the meantime the appellant came out of their house armed with fire arm and further narrated the same story as of the P.Ws. 2 and 3 as mentioned above.
11. Record of the case viz the statements of the above three eyewitnesses reveals that nothing material was dug out by the lengthy cross-examination by the counsel of the defence except relationship of the P.Ws. Which has been admitted by these eye-witnesses, rather the prosecution case was further proved by material suggestion put forward by the counsel of the appellants. The glaring example of the same can be noticed from the questions put to these eye-witnesses for instance it has been categorically stated by P.W.2 that the deceased is related to him however the appellants are also closely related to him and nothing on record is available on rebuttal of the above claim of this P.W. By the defence side. The shifting of the injured lady to D.H.Q. Hospital by his son has also been confirmed through cross-examination. The alleged occurrence and the presence of the deceased and the appellants on the scene of occurrence are also established through cross-examination. The relevant portion of the same is worth reproducing which runs as "the accused had fired in standing position. It is correct that the deceased was standing at the door of his house at the time of occurrence. It is incorrect to suggest that deceased had also opened fire on the accused in retaliation. Further says in cross-examination that "I have personally seen accused Safa and Gul Muhammad were opening fires on the deceased. I cannot tell whose fire hit the deceased." In the last portion of the said cross-examination the nature of wound has also confirmed as "I have not examined the dead body of the accused." However the deceased has sustained 2 bullet wounds as I have personally seen. One bullet hit on the left shoulder and the other was quit (sic) on the right side of the deceased. It is correct that I cannot tell that out of accused Safa and Gul Muhammad whose fire hit on the shoulder and right side of the deceased. It is correct to suggest that accused Riaz and Mir Wali had opened fire on the injured lady but I cannot tell that whose fire hit her."
12. The remaining ambiguity left in the mode and manner of commission of offence by the appellants has been cleared in the cross-examination of the P.W.3 Muhammad Wali; the relevant portion is reproduced as "it is incorrect to suggest that I have not seen who had hit the deceased.
Himself stated that both the accused Safa and Gul Muhammad hit the deceased." Further stated in the cross-examination as "it is incorrect to suggest that I and deceased Jamshad had also opened fire on the accused parties in retaliation." "it is incorrect to suggest that at time of firing the accused and the deceased were in front of each other. The deceased had received two bullet injuries. One of the bullet hit on the right arm while the other bullet had hit on the rib of deceased." Further confirmed that "the accused had opened fire in standing position from the wall of the field."
13. The cross-examination of the 3rd eye-witness P.W.4 Zulikha also confirms the presence of the appellants at the scene of occurrence along with the eye-witness and her injury caused by appellant Riaz and Mir Wali by stating that "the distance between the place where the deceased was lying and the place where I received bullet injuries is about 30 paces. Both the accused namely Mir. Wali and Muhammad Riaz had opened fire on me but I do not know whose fire had hit me. Further confirming that" the face of the deceased was towards the accused. I do not know whether deceased had opened fire on the accused or not."
14. In the circumstances narrated above even a man of an ordinary prudence can gather that the occurrence had been made to occur exactly according to the version of the prosecution and the statements of the eyewitnesses are nothing than the true account of story which has been substantiated through cross-examination and suggestions put forward to these eye-witness as discussed in detailed supra. Nothing to mention here that under the circumstances narrated above, the corroborative evidence cannot be even looked into in presence of un shattered confidence inspiring and true account of eye-witnesses which are enough to prove the guilt of the appellants and there is no need whatsoever to further look into the other corroborative evidence like that of recovering of bloodstained earth, empty shells, weapon of the offence and inquest and medical report and .Other report pertaining to fire arm expert and chemical examiner.
15. In the light what has been stated above we see no force in this appeal which is hereby dismissed maintaining the conviction/sentences awarded to the appellants but we feel that amount of compensation of Rs,200,000 awarded to appellants Nos. 1 and 2 is insufficient which is enhanced to Rs,300,000 by accepting the' Criminal Revision No,13 of 2011 to this extent which to be paid to the legal heirs of the deceased; in case of failure, the appellants Nos. 1 and 2 shall undergo further imprisonment for 6 months. File.