' NAZIR AHMAD BHATTI, J.-Appellant Azam Khan has been convicted by the learned Additional Sessions Judge-ll, Peshawar vide judgment, dated 8-5-1983 under section 302/34, P. P. C. On two counts, for committing murders of Afsar Khan and Ali Akbar, and sentenced to suffer death on each count and to pay a fine of Rs, 5,000 also on each count or in default to undergo R. I. For one year also on each count. The fine, if realized, has to be paid to the heirs of both the deceased in equal shares. He has also been held guilty under section 449/34, P. P. C. And sentenced to suffer for five years.
2. By this appeal, the appellant has challenged his conviction and sentence. A Murder Reference (No, 9 of 1983) has also been forwarded by the learned Additional Sessions Judge for confirmation of the sentence of death. The present judgment will also dispose of the said criminal R. I. Reference.
3. The first information report of the case was lodged by Mst. Hussan Zeba on 1-1-1976 at 9 hours in P. S. Shabqaddar under No,
1. According to this F. I. R. The complainant Mst. Hussan Leba, her son Afsar Khan, ber daughter-in-law Mst. Haya Dara and her daughter Mst. Bakht Mina were present in the house at 7-30 a.m., when in the meantime accused Saifullah son of Shahzada, accused Saadat and Azam Khan sons of Dorane, entered the house of the complainant, armed with 'to paks'.
Accused Saifullah ordered accused Saadat Khan to kill Afsar Khan whereupon accused Saadat Azam fired at her son with which he was injured. All the three accused then went out of the house, followed by the complainant party who were making hue and cry. At that very time, Ali Akbar, son- in-law of the complainant, was coming towards the house, who was also fired at with `topale by accused Saifullah with which he was injured and died at the spot. The complainant charged all the three accused for injuring her son Afsar Khan and committing the murder of her son-in-law, Ali Akbar on the motive of previous blood rued enmity.
' The appellant who had absconded after the occurrence was arrested on 16-6-1981. He was charged under section 449/34, P. P. C. And 302/34, P. P. C., to which he pleaded not guilty and claimed trial. Accused Saifullah is still absconding whereas accused Saadat was tried, convicted and sentenced to life imprisonment.
5. The State produced nine prosecution witnesses out of whom P. W. 6 Mst. Hussan Zeba and P. W. 7 Mst. Haya Dara are the eye-witnesses of the Occurrence.
6. P. W. 6 Mst. Hussan Zeba has generally corroborated the contents of the F. I. R.. Which was lodged by her. However, about the motive, she states that four days before the occurrence both the deceased were irrigating their fields but all the three accused diverted water to their own fields by force whereupon an altercation started but she reached the spot and restrained her sons from picking up an altercation. She has further stated that her son deceased Afsar Khan was fired at by the convicted accused and the present appellant with which her son was hit and fell down. But the F. I. R. Does not show that accused Saadat had also fired at her son. She has further stated that then the accused started going out of her house and deceased Ali Akbar met them in the street near the house and all the three accused fired at him with which he was hit and killed. Her son was still alive when she left the house to report the occurrence at the police station. She has further stated that her son-in-law Ali Akbar was fired at by the absconding accused Saifullah followed by the appellant Azam and convicted accused Saadat but he was injured as a result of the shot fired by Saifullah whereas she could not say whether the shots fired by the other two accused also hit him or not. She was examined as a witness on 24-7-1979 in the case against accused Saadat wherein it was incorrectly recorded that the present appellant had not fired at her son-in-law. The F. I. R. Also does not show that the convicted accused Saadat had also fired at her son-in-law Ali Akbar. She admitted that there was blood fued enmity between them prior to the present occurrence. P. W. 7, Mst. Haya Dara has stated that the complainant party was present in their house at morning time when the three accused entered their house and accused Saifullah ordered accused Azam and Saadat to fire at her husband Afsar Khan. Both fired simultaneously at Afsar Khan who was hit with both the shots and fell down. All the accused went outside but deceased Ali Akbar was attracted to the spot by their hue and cry and on seeing him, the absconding accused Saifullah and convicted accused Saadat tired at him with which he was injured and fell down and died on the spot, but her husband Afsar Khan was in the agony of death at that time. She was examined by the police but that statement does not show that appellant Azam and convicted accused Saadat had fired one shot each at her husband. She has further stated that absconding accused Saifullah had not fired at her husband, and the appellant had not fired at All Akbar deceased and only accused Saifullah and Saadat had fired one shot each at Ali Akbar.
7. P. W. 3, Dr. Anwar Gul performed autopsy on the dead body of Afsar Khan on 1-1-1976 at 1 p. m.
And found the following injuries on external examination :
(1) One inch circular one wound and three other wounds (entrance) 1/4' each in diameter located in an area of one inch below the big wound mentioned above in the left axilla.
(2) 2' x 2' grazing wound on upper and medial side of left arm.
(3) A circular exit wound 1/3' in size on the left side of back.
' On internal examination the dwtor found thoracic wall injured and 5th an 6th ribs fractured. Left side of pleura was injured. Left lung was injure badly. Blood vessels of the left arm brachial injured.
According to the opinion of the doctor death was caused by injuries to vital organs, resulting in shock and bleeding and time between injuries and death was within two and a half hours. The doctor recovered three pellets from the dead body o Afsar Khan and handed over the same to the police. The same Oct performed post-mortem examination on the dead body of Ali Akbar on the same day at 2 p.m. And found the following on external examination :---
(1) One inch circular wound of entrance on the epigastrium and four entrance wounds 1/4' diameter each scattered in an area of two inches in diameter around the big wound mentioned above.
(2) Circular exit wound 1/3' present on the back of left lumber region. It is the exit of wound No, 1.
(3) 1/2' x 1' steliate (oblique type) entrance wound on the left side of neck.
(4) 1/2' circular exit wound on the right side of back. This is exit of wound No, 3.
' On internal examination the doctor found first rib left side fractured and thoracic wall also injured on left side. Both lungs, abdominal walls, peritonium, stomach, pancrea, small intestine, large intestine and liver were found fractured. In the opinion of the doctor death was due to shock and bleeding caused by injuries to vital organs. The doctor has further stated that injury No, 1 was caused by shot-gun while injury No, 3 was caused by a bullet. The doctor recovered one pellet from abdomen back side wall of the deceased and handed over the same to the police, and time between injuries and death was about half an hour. The doctor has further stated that both the deceased were done to death by fire-arm injuries. In cross-examination, the doctor has admitted that the grazed wound on the body of Afsar Khan could not be caused by a bullet. He had previously given opinion that injury No, 3 was caused by bullet due to the size of this injury. He was of the opinion that injuries on Afsar Khan were the result of one fire shot.
8. The F. I. R. Of the case was recorded by P. W. 9 Abdul Hafi Khan, who was A. S.
1. At that time. He went to the spot and both the dead bodies were lying in the house of Afsar. Khan where he prepared their injury sheets and inquest reports and sent both the dead bodies for post- mortem examination. He prepared the site plan, Exh. P. B., of the place of occurrence of deceased Afsar Khan and site plan, Exh. P. D./3, where All Akbar was killed. He picked up blood from both the spots. He recovered one empty, shell of '12 bore shot-gun and one empty shell of 7 mm from the place where Ali Akbar was done to death. He investigated the case. The other witnesses are formal witnesses.
9. The appellant was examined under section 342, Cr. P. C. He admitted that the convicted accused Saadat is his brother and daughter of absconding accused Saifullah is married to his other brother Osman. He also admitted that he owned landed property close to the land of the deceased but be denied that any dispute had arisen about the irrigation of their fields. He denied the commission of the offence but admitted that there was previous blood-fued enmity between them. He further stated as under :- "One Ilyas son of Sherin and a nephew of Ali Akbar deceased was murdered for which my brother Ajab was charged. This murder took place prior to the present occurrence. My brother Ajab absconded and endeavoured to compromise the murder case of llyas with Sherin and Ali Akbar through the father of Afsar deceased. On the night of occurrence, my brother Ajab had been summoned by ..He father of Afsar Khan deceased and later on my brother was killed outside the house by persons named in F. I. R. No 2, dated I.1,1976 2 of P. S. Shabqaddar, Exh. D. X. An attested copy of the site plan of that case is present on the file of the previous trial as Exh. D. X-1 on which I also rely, though the place of the murder of my brother Ajab is shown in the said site plan at some distance but the witnesses have admitted that it is closer than that. The police intentionally equaled the case of my brother Ajab in which the relations of Alibar Khan deceased were charged.
The police gave an opinion in that case that my brother was killed by one Ruhullah but his man was not charged at all. I have been falsely implicated in this case."
He did not produce any defence.
10. The F. I. R. No, 2, mentioned in the statement of the appellant, charges Falzur Rebman, Waris Khan and Rashid for the murder of his brother Ajab Khan on the same day at morning `Azan' time while this report was made at 11 a.m. Mir Alam is the complainant in this report and according to it Ajab Khan was murdered to take revenge of the murder of Ilyas, who was brother of Rashid and Wails accused of that case, and that they had been summoned by one Gulfaraz for effecting a compromise in that case.
11. It was urged by the learned counsel for the appellant that all the injuries on deceased Afsar Khan were caused by one shot and most probably a 12 bore shot-gun, whereas injuries on deceased All Akbar were caused by two shots, injury No, 3 by rifle and injury No, 1 by a shot-gun; and that the eve-witnesses had made a departure from the earlier prosecution story. His contention was that according to this F. I. R. Accused Saadat and Azam had sired at. Afsar Khan, who was hit by both the shots and deceased Ali Akbar was fired at by absconding accused Saifullah, whereas in their evidence before the trial Judge both the eye-witnesses have stated that Ali Akbar was fired at by all the three accused. The contention. Of the learned counsel for the appellant was that the doctor had opined that the injuries on the person of Afsar Khan were the result of one shot, whereas the dimensions of the injuries sustained by the deceased Ali Akbar showed that they were caused by two shots and in this context there was a conflict between the medical evidence and the ocular evidence. We have given a serious thought to this aspect of the matter and we are of the confirmed opinion that injury No, 1 on the person of Afsar Khan could well be caused by a '12 bore shot-gun but we cannot exclude the possibility of the injury No, 2 having been sustained by another weapon and most probably by a rifle. It is possible that a shot fired from a rifle may have only caused a grazed wound on the medial side of the left arm of the deceased. The possibility of this wound having been caused by a bullet which may have passed by the arm and very close to it cannot be excluded. He was fired at from a close range and the bullet might have pressed against the arm with great force and in this way this injury with such high dimension could have been caused. We, therefore, do not feel inclined to accept this contention of the learned counsel. In this connection it was further urged by the learned counsel for the appellant that neither any empty shell of any shot-gun, nor any spent bullet of a rifle was recovered from the place where Afsar Khan was done to death and this shows that the prosecution story has not corroborated the circumstantial evidence. We also do not subscribe to this idea for the simple reason that non- recovery of any empty shell or a spent bullet would not exclude the possibility of shots having been fired from a shot-gun and rifle.
' In so far as the case of deceased All Akbar is concerned, the learned counsel for the appellant drew our attention to the contents of the F. I. R. And the ocular testimony in this respect. His contention was that according to the F. I. R., Ali Akbar was fired at by accused Salfullah only, whereas in their evidence both the eye-witnesses have stated that Ali Akbar was fired at first by the absconding accused Saifullah and then by the appellant and convicted accused Saadat. He urged that in this way a conflict has arisen between the contents of the F. I. R. And the evidence recorded during the trial; and that the eye-witnesses have either made a false statement or have made material improvements upon the prosecution case. We have considered this aspect of the case as well. The dimensions of both the entrance wounds 1 and 3 on the body of Ali Akbar show that they were caused by two different weapons.. Injury No, 1 appears to be the result of a '12 bore shot-gun, while injury No, 3 appears to be the result of a bullet. This conclusion finds further support from the recovery of one empty shell of. 12 bore shot-gun and one empty shell of 7mm from the place where Ali Akbar was done to death. It is, therefore, proved beyond any doubt that injuries on the person of All Akbar were caused by two different weapons and at least two, if not all the accused, fired at him. The possibility that the shot of the third accused having missed its target can also not be excluded.
13. No doubt, there appear to be some discrepancies in the 1.
1. R. And the ocular testimony but the fact which is of prime importance in this case is that both the eye-witnesses are natural witnesses. Their presence in the house at that time cannot be excluded.
In the month of January, 7-30 a.m. Is just the time when mostly all the inmates of a house are present in the house and arrangements for breakfast are being made. We candor therefore, exclude the presence of P. W. , Afst. Hussan Leba mother and P. W. 7 'Ms/. Haya Dara widow of Afsar Khan because they must be busy A preparing tea and breakfast for the members of the family. It has also been established that Afsar Khan was done to death inside the house and immediately thereafter Ali Akbar was done to death outside and close to the house. Consequently, both the ladies are natural witnesses of the occurrence. Their presence at that time is. Confirmed. The mere fact that they are close relations of the deceased would not cast any doubt on their evidence.
Once the presence of a witness is tatablishectat the spot, his relationship with the deceased would be immaterial and especially so when the evidence of that witness is corroborated by the circumstantial and medical evidence. The eye-witnesses both being ladies, some concession has to be given to them for Omitting to state certain facts or circumstances in the F. I. R. Moreover, it is now well settled that F. I. R. Is not an exhaustive piece of evidence. It would be sufficient if it discloses the facts in its broader circumstances.
14. The use of different type of weapons also proves the presence of more than one accused at the spot and the different dimensions of injuries prove that all of them took part in the commission of the offence.
15. The appellant absconded after the occurrence and was arrested about!, five and a half years afterwards. This long abscondence would also be a:- strong circumstance in proving his guilt.
16. We also take judicial notice of the fact that co-accused Saadat was tried and convicted and his sentence of life imprisonment was maintained uptil the Supreme Court. This would show that the offence committed by that accused had obtained the judicial recognition of correctness. We, therefore, do not find any material to accept this appeal. However, the sentence of death awarded to the appellant has taxed our minds very much. His co-accused Saadat, who is his real brother, has already been tried and convicted to life imprisonment. We cannot separate the case of the present appellant from his brother to confirm the extreme sentence of death. Both these accused are charged for committing the murder in similar circumstances and it is difficult to sentence the appellant to death while his brother was sentenced to life imprisonment. We are of the opinion that the same' treatment should have been given to the appellant in the matter of sentence and in this connection we are supported by the case of Shahib Ali v. The State (1).
17. We would, therefore, partially accept this appeal to the extent that we will maintain the conviction of the appellant under section 302/34, P. P. C. (on two counts) but would reduce the sentence to imprisonment for life on both the counts. We would maintain the sentence of fine and also conviction under section 449/34, P. P. C and the sentence awarded to the appellant for this offence by the learned trial Judge. However, both the sentences shall run concurrently. The murder reference is answered in the negative. {{FOOT NOTE}}
(1) PLD 1970 SC 447 {{FOOT NOTE}}