' ZAFFAR HUSSAIN MIRZA, J.-Appellants Syed All Shah alias Asad All Shah alias Saeed Badshah (Cr. A.
No, 20-P of 1980) and Tor Ali Shah (Cr. A. No, 21-P of 1980) were tried together and convicted by the same judgment of the trial Court. These appeals will, therefore, be disposed of by this common judgment.
2. Leave was granted in the case of Syed All Shah (to be referred to as the first appellant) as he was convicted on the ocular testimony of Mst. Bahadur Jana corroborated by the recovery of the pistol and the empty which matched with the pistol but as the pistol was secured from the residential Khotha of Abbas All Shah, acquitted co-accused, the question whether this recovery could furnish corroboration of the ocular evident against him was considered to require examination. In regard to appellant Tor Ali Shah (to be referred to as the second appellant) the question for examination was whether Mst. Bahadur Jana's evidence received corroboration by his abscondance and from the fact that numerous injuries o different dimensions on the person of the deceased indicated the use of more than one weapon.
3. In this case the appellants were sent up for trial alongwith accused Saccdul Abbas alias Syed Abbas Ali Shah alias Saeed Badshah and Dawood Shah but pending the trial the last mentioned accused expired, with the result that the remaining three accused were put to trial. The occurrence in this case in which Mst. Khursheed Begum was done to death brutally, took place on 29-12-1975 in the house of her father Yousuf Shah in village Shahbaz Khan, Tehsil and District Bannu. The report was lodged by one Hassanzad Shah (P. W. 1) at 2.15 p.m. On the basis of a Murasla containing the statement of the informant recorded by Maqbool Hussain Shah, A. S.-I. At 12.30 p.m. According to the said informant on the same day he was sitting in his house when he heard the report of firearm shots coming from the side of the house of Yousuf Shah. He immediately reached the house of Yousuf Shah and saw the aforesaid four accused being armed with firearms ascending the staircase leading to the roof of the house of Yousuf Shah, from where they went down to the house of accused Saeed Badshah. On his enquiry as to how the accused had entered Yousuf Shah's house, Mst. Bahadur Jana (P. W. 2) informed him that the accused had entered through the main gate of the house on the unchaning of the door by Mst. Sardara the mother of the deceased. She further gave him the details of the occurrence that the deceased Mst. Khursheed Begum was sitting with her in the kitchen preparing meals, when the four accused entered the house through the door armed with their weapons and fired at her from a close range with the result that she was hit, being knocked down on the ground and died instantaneously. Hassanzad Shah (P. W. 1) then left for the police station in order to lodge the report. He, however, met the aforesaid police officer on the way on the katcha road and reported the matter to him, on which his statement was recorded.
4. It may be stated that Syed Ali Shah the first appellant was the husband of the deceased whereas accused Saeedal Abbas and Dawood Shah (since deceased) were collaterals of both the deceased and the accused. Tor Ali Shah the second appellant was the tenant of the deceased and is also related to Saeed Badshah accused. The motive for the offence is stated to be the scramble over the immovable property forming the estate inherited by the deceased from her father Yousuf Shah. The dispute related to the claim made by the accused over the property to which she did not agree and thereby caused annoyance to them. It was further stated that three months prior to this occurrence the deceased was fired at by Dawood Shah and one Asghar Ali Shah a distant relation of accused Saeed Badshah in connection with the same dispute and a case in this behalf was pending in the Court. Mir Shahzad the husband of Mst. Bahadur Jana (P. W. 2) is the brother of Hassanzad Shah (P. W. 1). The first appellant was serving in the postal department and at the time of occurrence he was posted at Dera Ismail Khan but is said to be on leave on the day of occurrence. The deceased had four children from the first appellant, out of whom the eldest son and one daughter were living with the latter at the time of the occurrence, while one son and one daughter were living with the deceased in her house where the occurrence took place. Mst.
Bahadur Jana (P. W. 2) was living alongwith her husband Mir Shahzad in the same house.
5. The ocular version of the occurrence was furnished by Mst. Bahadur Jana (P. W. 2) who fully supported the case of the prosecution. According to her at the time of occurrence she alongwith daughter Mst. Malikzada and the deceased were present in the house in the morning when there was a knock at the outer door of the house. Mst. Sardara. The mother of the deceased opened the door and the accused entered the house through the door. She saw that the first appellant had a Tamancha, the second appellant a D. B. Gun, whereas Saeedul Abbas was armed with a stengun and deceased accused Dawood Shah had also a D. B. Gun. All the four culprits are said to have fired at the deceased effectively by firing several shots at her. They then collected the empties from the spot and after firing again went out of the house by climbing on the roof of the-Khotha by means of a ladder and decamped from the scene.
6. The appellants before us, in their statements under section 342, Cr. P. C. Denied the charge against them. Syed Ali Shah admitted that his wife Mst. Khursheed Begum deceased had inherited substantial property from her father but denied that he claimed the same. He also denied his abscondence from the date of occurrence till his arrest on 9-1-1976. His explanation was that he was in Dera Ismail Khan and was lying sick but the local police did not take any steps to arrest him and finally he surrendered to the police on his own. With regard to the witnesses he stated that they were deposing against him because Hassanzad Shah (P. W. I) and his brother Mir Shahzad Shah, husband of Mst. Bahadur Jana (P. W. 2), were charged for the murder of the deceased by her mother Mst. Sardara and, tharefore, they were motivated to falsely implicate him. The statement of Tor All Shah appellant was more or loss on the same lines.
7. At the trial the case of the prosecution rested mainly on the sole ocular testimony of Mst.
Bahadur Jana (P. W. 2) as corroborated by the evidence of Hassanzad Shah (P. W. 1) who was the maker of F. I. R. The only other confirmative evidence produced was that of the recovery of one empty 12 bore from the spot and an unlicensed pistol of '12 bore from the Khotha of Saeedul Abbas, acquitted accused vide recovery memo. Exh. P/C and Exh. P/M respectively. The empty was secured by Investigating Officer Maqbool Hussain Shah, A. S. J. (P. W. 9) and the pistol was recovered by Amanullah Khan, A. S. I. (P. W. 4). Both these articles were seized on the day of the occurrence soon after the arrival of the police officers at the scene. It is in the evidence of Haji Hadi Hussain Shah, the then S. H.
0., Mardan (P. W. 7) that Syed Ali Shah appellant was arrested on 9-1-1976, Tor Ali Shah and Saeedul Abbas, acquitted accused from whose Khotha the pistol was secured, were arrested on 22-1-1976.
Clearly, therefore, the pistol was not secured in consequence of information received from any of these accused persons after they were taken into custody. The further pieces of evidence relied upon by the prosecution were, the evidence of motive and abscondence of the accused. The medical evidence revealed as many as seven fire-arm injuries on the deceased on vital parts like the head, chest abdomen and pieces of cardboard as well as pellets were secured from some of the wounds.
8. The trial Court held that Mst. Bahadur Jana was "a natural witness as she was living in the house of the deceased and her statement is also ringing true". Hassanzad Shah who saw the accused armed leaving the scene of occurrence soon after the firing, was also held to be a truthful witness, inter alia, because "he has not made any exaggeration, otherwise there was nothing to stop him to pose as an eye-witness of the exact occurrence of the firing". The trial Court further found the statement of these witnesses corroborated by strong motive, recoveries of the empty, pellets and cardboard from the spot, medical evidence, the opinion of the Forensic Expert in respect of the crime empties to the effect that it matched with the '12 bore pistol secured from the residential Khotha of Saeedul Abbas acquitted accused and the conduct of the accused having absconded after the occurrence. As to the medical evidence the trial Court observed that it revealed that there were numerous injuries on the person of the deceased of different dimensions and thus the version given by the prosecution about the number of accused is commensurate with the damage found to have been sustained by the deceased.
9. The trial Court in view of its appraisal of the prosecution evidence as noted above, found all the three accused guilty under section 302/34 of the Pakistan Penal Code for the murder of Mst. K hursheed Begum and sentenced each one of them to life imprisonment. In addition the accused were also sentenced to pay a fine of Rs, 2,000 each or in default undergo one year's rigorous imprisonment. The accused were further directed to pay compensation of Rs, 1,000 each to the heirs (except Mst. Sardara Begurn) of the deceased or in default undergo further three months' simple imprisonment.
10. When the matter came up before the Division Bench of the Peshawar High Court in appeal preferred by the convicts, a request was made on behalf of the Syed Ali Shah appellant that as his plea was to the effect that he was on leave from his official duty during the days of the occurrence, his leave application may be permitted to be brought on record and his request was allowed. The case was sent back to the trial Court to record additional evidence and resubmit the case after the needful is done for the hearing of appeals. Noor Muhammad (C. W. 2) was accordingly examined who stated that Syed Ali Shah appellant, was serving as postal clerk in Dera Ismail Khan head office at the time of occurrence. He further stated that the said appellant was on leave from 29-12-1975 to 31-12-1975 (both days inclusive) but his leave application was not available on record so that the ground upon which the leave was asked could not be ascertained. The witness further revealed that the said appellant had taken medical leave from 5-1-1976 to 3-2-1976 but had not availed of the entire period as he resumed duties on 9-1-1976, the day on which his arrest was effected.
11. On a reassessm ent of the evidence originally recorded at the trial as well as the additional evidence, the learned Judges of the Division Bench of the Peshawar High Court agreed with the finding of the trial Court that the original liability of the appellants was fully established on the ocular evidence of Mst. Bahadur Jana (P. W. 2) who was an independent witness and did not have any motive of her own to involve Syed Ali Shah appellant in a false case. Similarly the evidence of Hassanzad Shah who corroborated the version of the first mentioned witnesses was also held to be unimpeachable, as there existed nothing on the record to show that he was on inimical terms with the appellants. The participation of Saeedul Abbas was, however, found to be doubtful, as according to the solitary eye-witness he was armed with a stengun, which if used effectively, in the opinion of the learned Judges, would have resulted in causing far more injuries than were found on the person of the deceased. Reference in this connection was made to the medical report which describes the injuries on the person of the deceased to have been caused by heavy pellets fired from a shot gun or .12 bore pistol. In this view of the matter Saeedul Abbas was acquitted. However, the guilt of the appellants in the present two appeals was held to have been fully established on the ocular testimony supported by a strong motive on the part of Syed Ali Shah to kill his wife, in view of her strained relations with him and her attempt to transfer a part of the property to Mir Shahzad Shah, as well as the fact that the latter had been living in the house of the deceased. As regards Tor Ali Shah appellant it was observed by the learned Judges that there existed no or enmity against him as far as the prosecution witnesses are concerned and he had also absconded after the occurrence. It is in this context that the learned Judges observed that the injuries on the person of the deceased was the work of more than one person.
12. We have heard the learned counsel for the appellants at length and have perused the evidence on the record. He contended that the evidence of the alleged two eye-witnesses is not sufficient to sustain the conviction of the appellants as they are interested witnesses in so far as they were interested in the property of the deceased. In the absence of independent corroboration to support their evidence, it was urged it will be unsafe to base the conviction on the testimony of such interested witnesses. There is no doubt that it has come in the evidence that mutation proceedings concerning the proposed transfer of some land in favour of Mir Shahzad Shah, husband of Mst.
Bahadur Jana (P. W. 2) by the deceased were pending but the mutation was yet to be attested. In the mentime, however, Syed All Shah had filed a suit and obtained an injunction from the Court of the Senior Civil Judge, Bannu, to stay the further progress of the mutation proceedings. The death of the deceased, when the mutation was yet to be attested and finalised, would clearly be against the interest of Mir Shahbaz Shah and for that matter his wife Mst. Bahadur Jana (P. W. 2). Thus, it is inconvincable that they would have any grudge against her, on the contrary this fact is a strong proof of the motive of the grudge nurtured by Syed Ali Shah against the deceased, so that in order to prevent her from dissipate the property she had to be eliminated. By involving the husband of the deceased falsely in the present case Mir Shahbaz Shah or his wife would not have achieved any gain so far as the deceased is concerned. Mst. Bahadur Jana and Hassanzad Shah are, therefore, rightly held to be independent and disinterested witnesses. It was not disputed before us that Mst. Bahadur Jana was living with the deceased in the same house at the time of the occurrence and since the occurrence took place inside the house, her presence cinnot be doubted.
So far as the recovery of the pistol is concerned, it is no doubt not an incriminating piece of evidence qua the present appellants. Although according to the evidence of the witness Syed Ali Shah was armed with .12 bore pistol, the pistol produced in the evidence was secured, as already mentioned, not in consequence to information received from either of the appellants but in a search of the house of Saeedul Abbas in the absence of the accused. It is, therefore, not a material piece of evidence as far as the present appellants are concerned. However, even if this piece of evidence is excluded, the remaining evidence is sufficient to sustain the conviction of the appellants. The abscondence of the appellants has been proved from the evidence of Hadi Hussain Shah, S. H.
0., Mardan (P. W. 7) who has testified that warrants under section 204, Cr. P. C. Were issued against the appellants and proceedings under section 87/88, Cr. P. C. Were also taken. So far as Syed Ali Shah appellant is concerned, as pointed out by the High Court his abscondence or disappearance after the occurrence has assumed special significance inasmuch as deceased was his wife and he was normally expected to be around and to participate in her funeral ceremony. The abscondence in the present case, therefore, furnishes corroboration to the ocular testimony.
13. On an overall consideration of the facts and circumstances of this case we are satisfied that the participation of the appellants has been fully established by the prosecution evidence and no exception can be taken to the judgment of the High Court in appeal. Both these appeals, therefore, fail and are accordingly dismissed.