LAL JAN KHATTAK, J. Through this judgment we shall also decide the connected Cr.R. No. 35P/2021 titled "Muhammad Ishaq v. Ulan and others", as both the matters are the outcome of same judgment dated 16.01.2021 of the learned Judge Model Criminal Trial Court/ASJ-II, Kohat, delivered in case FIR 484 dated 18.08.2018 under sections 302/324/34, P.P.C. of police station Cantt. District Kohat whereby the appellant has been convicted and sentenced to undergo life imprisonment as Tazir on two counts with fine of Rs.5,00,000 (five lac) as compensation to legal heirs of both the deceased, or in default whereof to further undergo six months' SI. Benefit of section 382-B, Cr.P.C. was extended to him. In the connected criminal revision, the petitioner therein has sought enhancement of the awarded sentence to the normal penalty of death.
2. Brief facts of the case are that on 18.08.2018, complainant Muhammad Mushtaq (PW-5) reported to Atif Khan ASI (PW-6) at LMH hospital Kohat to the effect that he and his deceased brother Muhammad Jalil were proceeding to the house of their relative Muhammad Ayaz (PW-6) for having a look at the sacrificial animal he had purchased and when they reached the place of occurrence, there appellant Wan alongwith absconding accused Muzamil and Mudassir appeared and, on seeing them, started firing at them as a result Muhammad Jalil and a minor passerby Rahimullah aged about 8/9 years got hit and died on the spot while another passerby Muhammad Bilal too received injuries. Per contents of the murasila (EX.PA/1), the complainant escaped unhurt.
Motive for the occurrence was given as previous blood feud. On the basis of murasila (Ex.PA/1) formal FIR (Ex.PA) was registered.
3. On conclusion of investigation, challan was put in Court, which indicted the accused for commission of the offence to which he pleaded not guilty and claimed trial while challan under section 512, Cr.P.C. against the absconding co-accused Mudassir and Muzamil was submitted.
Prosecution in order to substantiate its case produced and examined 13 witnesses in all, whereafter statement of the accused was recorded wherein he professed his innocence. The learned trial court, after conclusion of the trial, found him guilty of the charges and while recording his conviction sentenced him as mentioned above.
4. Arguments heard and available record gone through.
5. Prosecution in support of its case produced ocular account through complainant and Muhammad Ayaz who appeared before the learned trial Court as PW-5 and PW-6 apart from production of medical evidence of the case relating to both the deceased and circumstantial evidence in the shape of arrest of the appellant just after commission of the offence along with weapon of the offence i.e. the Kalashnikov (Ex.P1) along with one fixed and a spare magazine containing ten live rounds of 7.62 bore.
6. First we take up for discussion the ocular account so, furnished by the prosecution through PW-5 and PW-6. While appearing as PW-5, complainant of the case Mushtaq Ahmad stated before the Court that on the day of occurrence he along with his brother Muhammad Jalil (the deceased) was proceeding towards the house of his relative Muhammad Ayaz and when they reached near the place of occurrence at 1100 hours, there appellant Irfan and absconding accused Muzammil and Mudasir appeared duly armed with Kalashnikovs and on seeing them they started firing at them with which his brother - Muhammad Jalil and one minor passerby namely Rehim Ullah aged about 8/9 years were hit and died on the spot. According to the evidence of PW-5, with the fire shots of the accused another passerby namely Muhammad Bilal too was hit and got critical injuries on his person while he i.e. the complainant escaped unhurt. Though PW-5 is brother of the deceased but on the basis of his being closely related to the deceased his evidence cannot be brushed aside as same is fully corroborated by medical evidence and other circumstantial aspects of the case. The testimony furnished by PW-5 is quite in line with what has been reported by him in his FIR. He has given a detailed account of the occurrence that how the appellant came to spot along with his absconding accused and how all the accused fired at his brother and that how with the fire shots of the appellant and of the two absconders, two passerby were hit, out of whom one died and the other sustained injuries on his person. The defence put the witness to cross-examination but he withstood such test successfully and no dent was caused in his evidence. His evidence inspires confidence and gets impetus from rest of the case materials, therefore, there is no reason to disbelieve it.
7. Further, to give corroboration to the testimony of the complainant his relative namely Muhammad Ayaz recorded his statement as PW-6 who testified before the Court that on the day of occurrence he was present in front of his house when appellant Irfan and co-accused Mudasir and Muzamil armed with Kalashnikovs walked past of him and told him to go and tackle the matter on which he went to the spot where large number of people had gathered and his cousin Muhammad Jalil (the deceased) was found lying on the ground murdered along with one minor and another was also got injured. This witness too is closely related w the deceased and the complainant but his testimony could not be discarded on the ground of his being closely related to the complainant's side as same is duly supported by circumstantial aspects of the case. Besides, the evidence furnished by PW-6 is res gestae in nature which evidence is very much relevant in criminal cases as same connects the accused with the main occurrence because just after the occurrence he is seen leaving the crime spot. According to PW-6 just after the occurrence the appellant and the co-accused crossed him and asked him to see what had happened, therefore, the testimony of PW-6 is very material and is admissible which connects the appellant with the crime he is charged with. This witness was also put to the test of cross-examination by the defence but his evidence could not be shattered.
8. In addition to the above, another pertinent aspect of the case is arrest of the appellant by PW-9 namely Mukamil Khan SI on the day of occurrence who stated before the Court that on the eventful day he along with other police personnel was present with the SHO Fayaz Khan on patrol of the area, when received information about the occurrence on which they proceeded towards the place of occurrence, where the murder was committed and when reached village Muhammad Zai there in the fields they noticed two accused duly armed who on seeing the police started firing at them and in self-defence police also opened fire, as a result of the cross-firing one of the accused fell on the ground who was arrested in injured condition while the other made his escape good.
According to the evidence of PW-9, the SHO arrested the fallen injured accused and from his possession a Kalashnikov along with one fixed and a spare magazine containing ten live rounds of 7.62 bore was recovered vide recovery memo Ex.PW9/1 and a separate case vide FIR No.485 under sections 324, 353, P.P.C. was registered.
9. Station House Officer Fayaz Khan who had arrested the appellant vide case FIR No.485 along with Kalashnikov appeared as PW-10 and testified quite in line with what PW-9 has deposed. It is worth to mention that Investigation Officer of the case FIR No. 484 had taken into possession 28 empties of 7.62 bore from the spot (Ex.P-B) vide recovery memo (Ex.PW-7/1) and as per the FSL report (Ex.PZ- 1) 15 empties marked as C 1 to C 15 were fired from 7.62 MM bore (SMG) Rifle No.19051700 which was recovered from possession of the appellant by PW-10 as mentioned above. Arrest of the appellant in case FIR No. 484 along with Kalashnikov is very strong corroborative evidence against him showing his connectivity with the murders as not only the empties of the main case have matched with the recovered Kalashnikov per FSL report mentioned above but he was arrested just after commission of the occurrence in a chase by the police who were informed through wireless message about the occurrence.
10. Medical examination of both the deceased and that of Muhammad Bilal too has corroborated the prosecution case according to which multiple firearm injuries have been found on their persons. Though there are no exit wounds on the body of deceased Muhammad Jalil and as per site plan (Ex. PB) the distance between the appellant and the deceased is two paces and ordinarily when someone fires with 7.62 bore rifle from a close range of 02 paces, then exit wounds must exist but non-existence of exit wounds on the person of the deceased Muhammad Jalil cannot be made a base to discard the otherwise trustworthy, reliable and corroborative evidence available on the case file as sometime non-mentioning of exit wounds may be an omission of the medical officer and for his such negligence and inefficiency the accused cannot be given any premium.
11. Thorough and careful examination of the case record would show that the prosecution has proved its case through cogent and reliable evidence and the conclusions drawn by the learned trial court are borne out of the case evidence and as such no exception could be taken to the impugned judgment.
12. For what has been discussed above, this appeal bearing No. 61-P/2021, being bereft of any merit, is hereby dismissed.
13. So far as the criminal revision for the enhancement of sentence to the convict is concerned, suffice it to say that as the firing was unleashed by three accused and it is not proved by the prosecution specifically that whose fire shots proved effective, therefore, in such circumstances the sentence awarded by the learned trial Court to the convict seems to be just to which no exception could be taken by this Court, therefore, the criminal revision too is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.