SARDAR TARIQ MASOOD, J.---Through this petition, petitioner Ghaf far Ali has impugned the judgment dated 16.11.201 1 passed by the division Bench of the Peshawar High Court, Peshawar whereby appeal filed by the petitioner was partly allowed and while maintaining his conviction under section 302(b) of the Pakistan Penal Code (`P.P.C.') on three counts, his sentence of death was altered to imprisonment for life on three counts.
2. Precise facts of the case are that the petitioner Ghaf far Ali was indicted in case FIR No.232 dated 24.04.2009 registered under sections 302/324, P.P.C. at Police Station Prang, District Charsadda. After a full dressed trial, the learned Judge of the trial court vide judgment dated 30.08.2010 convicted the petitioner under section 302(b), P.P.C. on three counts and sentenced him to death on three counts. He was also directed to pay fine of Rs.3,00,000/- and in default of payment of fine to further undergo two years simple imprisonment. Petitioner was also convicted under section 324, P.P.C. and sentenced to five years' rigorous imprisonment with fine of Rs.30,000/ and in default of payment of line to further undergo six months simple imprisonment. The amount of fine so recovered was ordered to be paid to the legal heirs of the deceased in equal shares as well as to the complainant for the fine awarded under section 324, P.P.C. within the meaning of section 544-A of the Code of Criminal Procedure ('Cr.P.C.'). Aggrieved thereof, petitioner preferred appeal before the Peshawar High Court, Peshawar which was partly allowed while maintaining his conviction under section 302(b), P.P.C. on three counts, his sentence of death was altered into imprisonment for life on three counts. However , the compensation amount of Rs.300,000/- was enhanced to Rs.600,000/- to be paid on each count and in default to suffer six months simple imprisonment on each count while rest of the sentences awarded by the trial court under section 324, P.P.C. were remained intact. All the sentences were ordered to run concurrently . Benefit of section 382-B of the Code of Criminal Procedure (`Cr.P.C.') was withheld. Murder Reference sent by the trial court was answered in negat ive.
Hence, this petition for leave to appeal by the petitioner .
3. We have heard the learned counsel for the parties and perused the available record along with impugned judgment with their able assistance.
4. It is a broad day light occurrence committed by the petitioner on the marriage ceremony of Inayatullah (PW 5).
The occurrence, according to prosecution, took place at 4 pm, injured and deceased were shifted to the hospital where injured was medically examined at 5.10 p.m. The report was lodged to the police in the hospital at 5.10 p.m. and formal FIR was chalked out at 5.40 p.m. So within one hour and ten minutes of the occurrence the injured and the deceased were shifted to the hospital and police arrived there and matter was reported by the complainant to the police at 5.10 p.m. There was hardly any time left in between for consultation and deliberation. The petitioner after an altercation with Tehseen Ullah deceased acted in a ruthless manner and committed murder of three persons and caused injury to the complainant Inayatullah by firing with Kalashnikov . The role of causing murder of three persons and causing injury to the complainant is specifically attributed to the petitioner in promptly lodged FIR.
5. During trial, two witnesses have been examined as eye-witnesses in this case one is Inayatullah (PW 5) and the other Abdul Khaliq (PW 6). They both are although related to the deceased persons but also related to the accused as accused was husband of the sister of Inayatullah who is also maternal niece of Abdul Khaliq. The presence of Inayatullah being groom at the spot is established whereas Abdul Khaliq being maternal uncle of Inayatullah was the participant of the marriage ceremon y. Although name of Abdul Khaliq is not mentioned in the FIR but it is specifically mentioned that occurrence was witnessed by complainant, Aamir deceased (then injured) and other participants of Barat. Inayatullah (PW 5) being groom and injured in the occurrence, established his presence at the spot likewise Abdul Khaliq (PW 6) be in participant of Barat also established his presence at the spot. Both the witnesses have no reason to falsely implicate the petitioner in this case. They remained consistent on each and every material point. Although learned counsel for the petitioner pointed out some discrepancies between their statements- and the site plan but the said minor discrepancies are properly explained during cross-examination by the said witnesses. They remained consistent on each and every material point and remained affirmed on the point that it was the petitioner alone who caused murder of three persons and attempted on the life of complainant.
Despite cross-examination their testimonies remained unshaken and we on our own evaluation of the evidence found them truthful and reliable. The learned Bench of the High Court had wrongly presumed that names of both the witnesses i.e. Inayatullah (PW-5) and Abdul Khaliq (PW-6) are not mentioned in the FIR whereas Inayatullah (PW.-5) lodged the FIR and he is the complainant and also an injured eye-witness. So this was a misreading on the part of the learned Bench but that too was made in favour of the petitioner against the record. The postmortem was conducted on the same day at 5.30 p.m., 5.50 p.m. and 7.15 p.m. regarding Tehseen, Tariq Sher and Aamir deceased respectively . The medical evidence fully supported the ocular account qua the weapon used, seat of injury , duration etc. So the medical evidence lends full support to the ocular account which otherwise is trustworthy and reliable. It is a circumstance that fifteen crime empties of 7.62 bore were recovered from the place of occurrence which were sent to the forensic expert and according to the report of Forensic Science Laboratory all the fifteen crime empties of 7.62 bore were fired from one and the same weapon of 7.62 bore in view of the similarity of major points i.e. striker pin marks, breach face marks, ejector marks, magazine marks etc. So this report also confirms the participation of one assailant who according to truthful eye-witness was the petitioner . The conduct of the petitioner is also a circumstance that he was arrested and was sent to jail and upon a terrorist attack on the jail the jail was broken and he succeeded in running away , remained outlaw for seven years and was arrested on 17.08.2019. This was a noticeable and unexplained abscondence giving strong corroboration to the ocular account. The prosecution had proved the case against the petitioner beyond any doubt and both the courts below bad rightly concurred with each other regarding the guilt of the petitioner and we on our own independent evaluation of the entire evidence not able to dif fer with such conclusion of the guilt.
6. We have observed that High Court mentioned in the judgment that complainant and the witnesses had made improvement in order to establish the motive and extended the benefit of this to the petitioner by awarding him the lesser sentence but we observe that the witnesses had not made any improvement in their examination in chief and the detail of motive was brought on record during cross-examination and in such manner the same cannot be considered as improvement because in the FIR it is mention that a quarrel took place between the petitioner and Tehseen Ullah deceased and he being outraged started firing with Kalashnikov resulting into the death of three persons and injury to one.
The stance of both the witnesses remained the same but during cross-examination they disclosed that as wife of the petitioner was not invited hence a quarrel took place. Although this was not a valid reason for mitigation of the sentence but we observe that occurrence took place suddenly at the spur of the moment after a quarrel between complainant an Aamir and petitioner fired indiscriminately . This could be a ground for mitigation and the High Court rightly extended such benefit to the petitioner by altering the sentence of death on three counts to imprisonment for life on three counts. We observe that High Court had withheld the benefit of section 382-B of the Cr.P.C. which was against the mandate of the said provision, hence the benefit of section 382-B, Cr.P.C. is extended to the petitioner .
With the above modification, this petition is dismissed and leave to appeal is declined.