' MIAN BURHANUDDIN KHAN, J.-This appeal is directed against the judgment and order of the Peshawar High Court dated 15-9-79 passed in Criminal Appeal No, 217/79 and Murder Reference No, 40/78 whereby death sentence awarded to the appellant by the learned Additional Sessions Judge, Bannu at Lakki, per judgment dated 31-7-1978 was confirmed.
2. Leave was granted by this Court vide order dated 15-3-1980 on the ground that the deceased had suffered all the injuries in his chest and, therefore, the evidence of the two eye-witnesses to the effect that after the first shot fired at him went astray the deceased started running, and consequently, was brought down by the second shot fired at him by the appellant. In that case. The deceased should have sustained injuries on his back ; that the medical evidence revealed that the stomach of the deceased was found empty and, therefore, possibility could not be excluded that he had been done to death some tiine in the early hour of the night that the Courts below have not taken into consideration and properly weighed the prosecution evidence as the story unfolded shows the appellant had followed the deceased right from the village, armed with a shot gun and, therefore, she could not have waited to kill the deceased just on the outskirts of the town when the chances of his apprehension would be more imminent; that the learned High Court has not taken into consideration, the fact that no notice was issued to the appellant for the production of gun as required under the law and as such this instance could not be a corroboration of the guilty conscious of the appellant.
3. According to the prosecution, on 3-6-1976 the deceased, accompanied by his brother Ghulam Rohani P. W. 6 and his friend Muhammad Israil, P. W. 7, left his village at about 6 a.m. For the market at Naurang with a view to sell gram there which was loaded on two camels. The accused/appellant Abdullah Jan followed them. Having covered 8/9 miles when the deceased reached the outskirts of Naurang, he alongwith his two companions, stopped near the water channel, the accused/appellant who was following them from the village, armed with a shot gun, fired a shot at the deceased which went amiss, then he fired a second shot which hit the deceased who fell into the water channel and died instantaneously. After having accomplished his design the accused/appellant decamped and remained fugitive from justice till 5-1-1978 when he finally surrendered to the political authorities.
4. The motive for the crime is stated to be that the deceased had informed two outlaws namely Bazed and Nadir that the accused/appellant was hired by one Tootionj Mir Afzal to kill them for an amount of Rs, 25,000. According to the custom of the area, the appellant is said to have satisfied the two outlaws on oath had not done any such thing. It is further mentioned in the F. I. R. That the/accused owned some money to the deceased on account of some purchases made by him which the later had demanded but the appellant put off the payment on one pretext or the other.
5. At the trial the prosecution relied on the ocular testimony of Ghulam Rohani P. W. 6 and Muhammad Israil P. W. 7 ; abscondance of the accused/ appellant and recovery from the spot of two empties '12 bore as well as cardboard discs etc.
6. Report was lodged by Ghulam Rohani on the same day at about 8-30 p.m. Giving the prosecution story as stated above. This report was recorded by Anwarullah Khan S. I. P. W.
9. He inspected the spot and made a search for the accused/appellant who was not traceable. He sent the deady body to mortuary after preparing the injury sheet Exh. P. H. And inquest report Exh. P.
J. He also prepared site plan Exh. P. B. At the instance of Ghulam Rohani P. W.
6. He recovered and took into possession blood-stained earth from verkha (water channel) and sealed it into parcel. The 1.
0. Also recovered a freshly discharge empty shell and two empties Exh. P. 2 and Exh. P. 3 from the spot, in addition to a lungi allegedly belonging to the accused/appellant.
7. Dr. Mir Khatim Khan conducted the post-mortem examination on 3-6-1976 at 11-15 a.m. And found
(i) On the front of the chest 3 penetrating wounds over the left nipple.
(ii) One penetrating wound in the mid internal line 5/2" above and medial to the left nipple.
(iii) Four penetrating wounds on left side chest medial to wound (ii)
(iv) One wound on the front of left shoulder.
(v) Two wounds on the left axilla.
(vi) One wound on the back left side below tip of left scapula 2' left later to vertebral column.
' On internal examination the Doctor found the left lung, II pleen and small intestines injured; stomach was found empty and three pellets were recovered from the back side near injury (vi).
According to the Doctor, the decased died due to shock and cardio-respiratory collapse due to injury to the vital organs caused by firearm. Time between injury and death was instantaneous while the time between death and post-mortem was 3/4 hours.
8. Learned counsel for the appellant's contentions need examination in view of the statements of Ghhlam Rohani P. W. 6 and Muhammad Israil P. W.
7. Ghulam cohani is brother of the deceased while Muhammad Israil is not related to Ghulam Muhammad Din deceased. According to Ghulam Rohani P. W. 6 he, alongwith the deceased, started for the cattle Fair at Naurang with two camels loaded with gram. Muhammad Israil P. W. 7 also joined them loading his gram on the camels. Acccording to Rohani, when they reached near the hospital at Naurang he was proceeding ahead of Ghulam Muhammad Din deceased and Muhammad Israil P. W. ; when he heard report of a shot from behind, turned round and saw the accused/appellant re-loading his gun and the deceased jumped on the side of verkha (water channel) to take shelter ; the accused/appellant fired a second shot which hit the deceased on his front ; thereafter the accused/appellant ran away from the spot ; he and Muhammad Israil took the deceased out of the verkha. Muhammad Israil went to the house of Muhammad Rasool Khan, a resident of the nearby area, and brought a cot; they placed the body of the deceased on the cot ; and he went to the police station Naurang where he lodged the report Exh. P. A. He gave the motive as mentioned in paragraph 4 above. He was cross-examined. We find nothing on the record to show that this witness had made false statement on account of enmity or personal grudge against the accused/appellant.
9. As regards the conflict in the statement of Ghulam Rohani P. W. 6 and the medical evidence, we find nothing of the short in the cross-examination of the Doctor who stated.
"The injuries on the axilla and the injuries on the front portion of the deceased are the result of one shot. The injuries on the front and on. The exilla cannot be the result of two fire shots in the instant case The injuries on the exilla had definitely are the entrance wounds and the projectile had entered the front of the body. .."
10. Similarly, the statement of Muhammad Israil P. W. 7 cannot be brushed aside in the present case. He was accompanying the deceased from the village in order to dispose of his gram which was loaded on camels. His statement is in no way contradictory to the statement made by Ghulam Rohani P. W. 6 rather he has supported him on all material points. In his cross-examination nothing has been elicited to discredit him and throw his testimony over board. He admitted that he had friendship with Ghulam Muhammad Din deceased since five, years prior to the occurrence and used to associate with him and that it was incorrect that he was ever beaten or assaulted by the accused/appellant prior to the occurrence. This we find his statement to be of impartial nature and the Courts below have rightly placed full reliance on his testimony. We find no reason to doubt this view. Moreover, there is a long period of absence of the accused/appellant from his ordinary place of residence and Paya Din L. H. C. P. W. 2 has been examined by the prosecution to establish this fact. Paya Din P. W. 2 was entrusted with the search warrant under section 204, Cr. P. C. He conducted the search in the village of the accused/appellant and got thumb-impressions and signatures of the notables of the village. Thereafter he was entrusted with the proclamation under section 87, Cr. P. C. He stated that a copy of the proclamation was affixed on the residence of the accused/appellant and another in the Court premises.
11. Bahadur Sher A. S. I. P. W. 4 was summoned by the District Magistrate, Bannu to arrest the accused/appellant who had surrendered to the political authority. This witness formally arrested the accused/appellant on 5-1-1978 and got a notice served on the accused by the S. D. M. Lakki Marwat to produce the licensed gun alongwith the licence as the same were required in the case but the accused/appellant failed to do so.
12. In the light of above-mentioned facts we hold that the case against the accused/appellant has been proved beyond any reasonable doubt and he Committed the murder of Ghulam Muhammad Diu deceased without any rhyme or reason and, therefore, the appellant merits the punishment awarded by the trial Court and confirmed by the learned High Court.