' WAZIR SHAKEEL AHMED, J.---This Cr. Appeal calls in question the judgment dated 19-12-2011, passed by the Sessions Judge Diamer in case No,56/98, whereby the appellants/convicts were found guilty of offence under section 302/B-P.P.C. And sentenced them to life imprisonment and fine of Rs,1,00,000.
2. Facts gathered from the record of the case briefly are that one Mayoon son of Ghulam got recorded an FIR before Police at Police Station Chilas stating that at about 9.00 hrs on 20-10-1996, he and P.W. Juma Khan and his brother Ajab Khan (deceased) were going to Phalyat from Gotmal, when they reached near the lands of Aman at Phalyat, all of a sudden accused Wazir son of Bato and Noor Jehan son of Juma Khan started firing at the deceased from the rear side. The above Ajab Khan on the result of which fell down on the ground, the complainant recited Kalima but the injured succumbed to his injuries. The motive behind the above episode was reported to be an old enmity between the parties.
3. 12 P.Ws. Got their statements recorded before the trial Court 5 P.Ws. Were abandoned while statement of P.W. Younus SIP/I.O. Of the case could not be recorded due to his death, out of which the two persons namely Mayoon (complainant) and Juma Khan are cited as eye-witnesses. While P.Ws.3 and 4 are witnesses of recovery of dead body and empty shells respectively while P.W.5 is the witness regarding proceedings under section 204, Cr.P.C. In connection with execution of warrant against the accused. P.W.6 was the then I.O. Who after getting the case entrusted, arrested the accused by raiding their house on 17-12-97 and got recovered a sami automatic rifle from the possession of appellant Noor Jahan and five shot from Nazir appellants respectively through recovery memos P.W.7/A and P.W.7/B. P.W.6 is also the marginal witnesses cartriges of 7.62 and other recovered weapon mentioned above. Abdul Mubeen P.W.8 got registered P.W.1/A, the FIR of the case and P.W.9 is a marginal witness of inquest report. P.W.10 is Alam Shah Tasildar recorded statement of FC Mujawas Shah, P.W.5 in connection with the proceeding under section 204, Cr.P.C.
SIP Muhammad Hussain is also a witness of above proceeding and lastly Muhammad Amir P.W.12 was made to appear before the Court, who got his. Statement regarding raid on the house of accused on spy information.
4. The accused thereafter were examined under section 342, Cr.P.C. On 4-4-2011, but they did not opt to get their statements recorded under section 340 to produce any witness to negate the allegation against them.
5. The learned trial Court initiating the above proceeding and after hearing the pro and contra arguments, counsel of the petitioner and the state passed judgment order on 19-12-2011, which has been made impugned before this Court.
6. We have heard the learned counsel of the appellants and learned A.A.G. At length and also gone through the record with their assistance and found that:--
(a) The case in hand is that of promptly lodged FIR charging directly the two accused and also mentioning the name of eye-witness of the occurrence.
(b) The motive old enmity behind the offence charged is also shows in the first information report which does not negated rather admitted by the accused appellant during the proceeding under section 342, Cr.P.C.
(c) The scene of occurrence and the presence of the eye-witnesses (the complainant Mayoon and Juma Khan and the manner of commission of offence has established rather the same is strengthen through the cross-examination.
' Cross-examination nothing material was dig out. The defense side has also tried to attribute the charged offence towards the complainant alleging that in fact the murder of the deceased was committed by the complainant themselves as he was planning to get married with the wife of deceased Ajab. As according to the custom of the area the widow of the deceased was to be given in the wedlock of deceased brother. Here in this case the complainant happens to be maternal brother of deceased (who were given birth by the same women) with wedlock of two husbands. In this connection a copy of a FIR protested (sic) before the trial Court which was chalked by the father in law of the accused Ajab against the complainant on the offence of abduction, but after four years of the occurrence of the present untoward incident of murderous assault causing death of deceased Ajab.
' This version can otherwise no weight due to the fact that both the wife of deceased and his father was pursuing the case initialed by the complainant before the trial Court.
7. The abscondence of the accused was also proved in the case in hand in this regard the statement of P.Ws. Were unshelled.
8. Admittedly the eye-witnesses are related to the deceased as complainant is the maternal brother of deceased while the other P.W.2 is the real husband of sister of deceased but nothing was on record to suggest that they had any enmity with the accused so as to implicate them in a case of a capital punishment the mere relationship of the eye-witnesses is sufficient to discard their terlimany, furthermore the P.W.1 is also reported to be related with deceased.
9. We in the circumstance of the above findings are of the opinion that the trial Court has rightly convicted the appellants, but the life imprisonment awarded to the appellant is still harsh and Keeping in view the circumstances of this peculiar case and the one of short comings such as: ' The recovery proceedings were admittedly not proved and the relevant P.Ws. Were turned hostile.
(b) The recovered guns were neither sent to the armed expert nor were presented before the trial Court.
(c) Contradictions regarding making of site plan of the scene of occurrence between the statements of two eyewitness .
(d) Lot should have been clarified if the important I.O. Who initiated the case could have alive and record his statements before the Court, but the (sic) have could not be done to his death during trial.
' In the light of what has been discussed above the judgment order of the trial Court is therefore varied to the extent of life imprisonment. The appellants/ convicts shall undergo 14 years' imprisonment, maintaining the other terms of the sentences.
' File be consigned to record.