' Bahadur Khan was tried by the learned Sessions Judge, Mianwali, under section 302/307, P.P.C. For the murder of Mst. Gulla Khela, deceased, and attempt on the life of Mst. Nasar Khela P.W.9. The learned trial Judge, by his judgment, dated 15-3-1983, convicted Bahadur Khan, accused, under both the said sections and sentenced him under section 302, P.P.C. To undergo life imprisonment and to pay a fine of Rs,5,000 or, in default thereof, to undergo further rigorous imprisonment for five years and under section 307, P.P.C. To five years' rigorous imprisonment and to pay a fine of Rs,2,000 or, in default thereof, to further undergo one year's rigorous imprisonment. The fine imposed under section 302, P.P.C. If realised, was ordered to be paid to the heirs of Mst. Gulla Khela, deceased, and that imposed under section 307, P.P.C. If realised, was ordered to be paid to Mst.
Nasar Khela P.W.9. Both the sentences were ordered to run concurrently. The appeal (Cr. A. 335 of 1983) filed by the convict is now before me for disposal.
2. The prosecution case in brief is that the house of Bahadur Khan, accused, adjoins that of Mst.
Nasar Khela, complainant, P.W.9, who is the wife of Gul Marjan and had been married to him for the last seven years. Bahadur Khan, accused, had been trying to cultivate illegitimate relations with Mst. Nasar Khela P.W.9, but she had not responded to his solicitations. On 13-3-1981 at about Isha prayer time, Bahadur Khan, accused, was standing on the roof of his Kotha with a .12 bore gun. Mst.
Nasar Khela P.W.9, her mother-in-law, Mst. Gulla Khela, deceased, and Mst. Zohra Jan P.W.10, a twelve years old daughter of her husband out of a former wife, were present in the courtyard of their house and were going to the fields outside for easing themselves. The accused, who had in the past been unsuccessfully soliciting friendship of Mst. Nasar Khela P.W.9, shouted at her, saying that she should cultivate relations with him, otherwise he would shoot her. Mst. Nasar Khela P.W.9 rebuked him, whereupon the accused fired at her, which shot hit her chest and left arm. Her mother-in-law, Mst. Gulla Khela, came forward to rescue her and reproached the accused, whereupon the accused fired at her and felled her. Mst. Zohr Jan P.W.10 took shelter in the Kotha. On hearing the fire report, Gul Amir P.W.8, who was the brother of Gul Marjan, husband of Mst. Nasar Khela complainant P.W.9, also reached the spot and saw the occurrence.
3. Mst. Gulla Khela, deceased, and Mst. Nasar Khela P.W.9 were thereupon placed on cots and taken to their Kotha. Arrangements were made to hire a truck, which took sometime.. Thereafter, the two inured were taken to Police Station Kamar Mushani by Shera Jan and All Marjan, the father and uncle of the complainant. On 14-3-1981 at 8-30 a.m. Mst. Nasar Khela P.W.9 lodged F.I.R. Exh.P.L. At the said police station, which was recorded by Abdul Majid A.S.I. P.W.12. Mst. Gulls Khela breathed her last at the police station. After preparing the necessary papers, the police officer sent the dead body of Mst. Gullah Khela, deceased, for post-mortem examination, and Mst. Nasar Khela P.W.9, who had injuries on her person, for medical examination.
4. The investigation was then taken up ,by Asghar Ali S.I. P.W.13,who went to the spot of occurrence, from where he collected blood-stained earth vide memo. Exh.P.J.
5. On 14-3-1981 at 11-30 a.m. Dr. Muhammad Mushtaq Ahmad P.W.1examined Mst. Nasal. Khela P.W.9 and found four fire-arm wounds of entrance 4 c.m. x 4 c.m. On the dorsal side of upper half of left upper arm in an area of 7 c.m. x 14 c.m. a grazed fire-arm wound 2 c.m. x 4 c.m. On the dorsal side of upper half of left upper arm and an entrance fire-arm wound 1/2 c.m. x # c.m. On the front of left chest. All the injuries were found simple and to have been inflicted within a duration of about twelve to eighteen hours. The same day at 1-00 p.m. The same doctor conducted the post-mortem examination on the dead body of Mst. Gulla Khela, deceased, and found a fire-arm wound of entrance 2 c.m. x 14 c.m. On the right side of head and a grazed fire-arm wound 5 c.m. x 14 c.m. x skin deep on the left side of head. The vault of the skull was fractured transversely. The meninges of the brain were found injured on the right side. Cranial cavity contained blood. Both the sides of the brain were inured. A pellet was found lying in the centre of the left side of the brain. The death was due to shock and haemorrhage as a result of the first fire-arm wound, which was found sufficient in the ordinary course of nature to cause death. Probable time between injuries and death was about twelve hours and that between death and post-mortem examination between four to six hours.
6. On 17-4-1981 Sakhi Marjan produced Bahadur Khan, accused, before Abdul Majid A.S.I., P.W.12, to whom the investigation had been transferred three days earlier. He formally arrested the accused.
7. On 27-4-1981 Bahadur Khan accused, led to the recovery of an unlicensed carbine P.5 from behind Check Post, Vanjari, which was taken into possession by the police vide memo. Exh.P.H. In the presence of Faqir Hakeem F.C., P.W.6, Abdul Majid A.S.I., P.W.2 and Muhammad Amin (won over P.W.).
8. After completing the necessary investigation, the challan against the accused was sent up,
9. At the trial, the prosecution produced Gul Amir P.W.8, Mst. Nasar Khela P.W.9 and Mst. Zohra Jan P.W.10 in proof of the motive and ocular account, Faqir Hakeem F.C. P.W.6, Gul Faraz P.W.7 and Abdul Majid A.S.I. P.W.12 in support of the recoveries and Dr. Muhammad Mushtaq Ahmad P.W.1 to corroborate the medical testimony.
10. The accused denied all the accusations that were levelled against him, including the recovery effected at his instance. He imputed his false involvement to enmity and in his statement under section 342, Cr.P.C. Stated that as Mausam Jan, a cousin of Shera Jan, father of Mst. Nasar Khela P'.W.9, was murdered on 10-9-1958, for which his maternal-grandfather, Sher Mast Khan, had been involved, in which case Shera Jan was a prosecution witness and Sher Mast Khan was convicted, he had been falsely implicated. He also produced Muhammad Akram, Naib-Muharrir D.W.1 in his defence who proved Exh.D.E, the copy of F.I.R. No,66, dated 10-9-1958 recorded at Police Station Kamar Mushani, and Exh.D.F. Copy of F.I.R. No,156, dated 7-8-1975 lodged at the same police station.
11. The learned trial Judge, relying upon the ocular account and the medical testimony, convicted and sentenced the accused, as stated in para. 1 above.
12. This is a jail appeal. Mr. Shabbir Lali, Advocate, has appeared for the State. With his assistance, the oral and documentary evidence has been perused. The evidence as regards motive is furnished by Gul Amir P.W.8, Mst. Nasar Khela P.W.9 and Mst. Zohra Jan P.W.10. According to their testimony, before firing at Mst. Nasar Khela P.W.9, the appellant had shouted at her stating that he had been asking her to develop illicit relations with him and since she had been adamant, he would not spare her and he had then fired at her. In cross-examination Mst. Nasar Khela P.W.9 stated that on previous occasions also the appellant had been trying to cultivate illicit relations with her, but she had not reported the matter to her husband as he and the appellant were related.
Nothing has been brought out in cross-examination to discredit her statement or to show that the same cannot be accepted with any safety. In these circumstances, the motive stands adequately proved. Even assuming for the sake of argument that the motive does not stand established, the prosecution case would not stand destroyed purely on that account alone.
13. The ocular account in this case is furnished by Gul Amir P.W.8, Mst. Nasar Khela P.W.9 and Mst.
Zohra Jan P.W.10, who happen to be the son, daughter-in-law and grand-daughter of Mst. Gulla Khela, deceased. Bahadur Khan, appellant, is closely related to the witnesses. Muhammad Jan, the husband of Mst. Gulla Khela, deceased, and Bahadur Khan, appellant, are paternal-cousins through Abdul All Khan out of different wives. An attempt has been made to show that one Mausam Jan, a paternal-cousin of Shera Jan, the father of Mst. Nasar Khela P.W.9, was murdered in September, 1958, in which case Sher Mast Khan, the maternal-grandfather of Bahadur Khan, appellant, was involved, but apart from the statement of the appellant, there is nothing on the record to show that Sher Mast Khan was his maternal-grandfather, or that Shera Jan had actually appeared as a witness for the prosecution in that case, although he is mentioned as a witness in the F.I.R. But even assuming for the sake of argument that Sher Mast Khan, the maternal- grandfather of the appellant, murdered Mausam Jan, a cousin of Shera Jan, it seems rather improbable that twenty-three years after the incident Shera Jan could only find Bahadur Khan, appellant, to implicate and not any of the other sons or relatives of Sher Mast Khan. In these circumstances, there appears to be no enmity between the prosecution witnesses and the appellant. The ocular account, as furnished by Gul Amir P.W.8, Mst. Nasar Khela P.W.9 and Mst.
Zohra Jan P.W.10, is mentioned in para. 2 above, and need not, therefore, be repeated. On behalf of the appellant, the following submissions have been made to disprove the ocular testimony. First, that the F.I.R was recorded after great delay and consultation. Second, that there are material discrepancies in the statements of the prosecution witnesses, which tend to show that they did not see the occurrence. In this connection it is submitted that the witnesses have given varying accounts of the position in which the two injured were standing when they were hit by the sunshots and the varying distances at which they were standing from the houses of the Bashir, appellant, Sahib Dad, Muhammad Jan, etc. Third, that the medical evidence is in conflict with the medical testimony. In this connection it is submitted that though both the injured are stated to have been hit by fire shots from almost the same distance, but whilst fire-arm injuries of Mst. Nasar Khela have blackening around thim, whereas those on the person of Mst. Gullah Khela, deceased, have none.
Fourth and last, that the Investigating Officer had found the appellant innocent. With regard to the first submission, it is clear from the statement of Mst. Nasar Khela P.W.9 and Mst. Zohra Jan P.W.10 that sometime was taken to arrange for a truck in order to carry the two injured to the police station and that it was not until about mid-night that such a truck was available. The distance between the place of occurrence and Police Station Kamar Mushani is twenty-four kilometers.
Some time was also taken in summoning Sher Jan and All Marjan, the father and uncle respectively of Mst. Nasar Khela P.W.9, who accompanied the injured to the polilce station. The delay, therefore, in recording the F.I.R. Stands explained. With regard to the second submission, it is true that there are some minor discrepancies with regard to the places where the two injured were standing when they were hit by gunshots of the appellant or as to the direction of their faces and position when they were hit, or as regards their distance from the houses of Bahadur Khan, appellant, Sahib Dad, etc., but these are minor and natural discrepancies and are ones which are bound to occur in the statements of truthful witnesses. According to the site plan Exh.P.F., the Kothas of Mst. Nasar Khela P.W.9, her father-in-law Muhammad Khan, of Sahib Dad and of Bahadur Khan, appellant, are small structures, constituting the outer rim of a Haveli, with a courtyard 30' x 30' in the middle. The Haveli and the courtyard both being very small, hardly anything turns on discrepancies arising in the submissions made by the learned counsel for the appellant. The three ladies were proceeding out of the courtyard of the Haveli to ease themselves. Mst. Nasar Khela P.W.9 and Mst. Gulla Khela, deceased, were fired upon whilst they had travelled almost two-third of the distance of the courtyard. Mst. Zohra Jan P.W.10, according to her statement, was just near the door-way, when the firing took place. Gul Amir P.W.8 admitted in cross-examination that he was inside the Kotha when the first shot was fired, but he had come out when the second shot was fired at his mother Mst.
Gulla Khela, deceased, which he saw. It is, therefore, clear that Mst. Nasar Khela P.W.9 and Mst.
Zohra Jan P.W.10 both saw the appellant fire the two shots, whereas Gul Amir P.W.8 saw the appellant fire the second shot only. The minor discrepancies, therefore, do not discredit the witnesses. This submission, therefore, has no merit and is rejected. With regard to the third submission, the evidence of Dr. Muhammad Mushtaq Ahmad P.W.1 shows that Mst. Gulla Khela, deceased, suffered two fire-arm wounds, one, a clear entrance wound 2 c.m. x 14 c.m. On the right side of head fracturing the vault of the skull with a pellet lying embedded in the centre of the left side of the brain and second, a grazed fire-arm wound on the left side of the head. The transverse fracture is a horizontal fracture. The vault of the skull is not shown to have been smashed. There is no exit wound to the first entrance wound. A pellet was extracted from the left side of the brain. I have inspected that pellet. The two fire-arm wounds are, therefore, the result of two separate pellets. Very likely they are the result of a single gunshot. Likewise, the fire-arm injuries on Mst.
Nasar. Khela P.W.9, which have already been described in para. 4 above, also appear to be the result of a single gunshot. The doctor in his medico-legal report noted blackening around the four fire-arm entrance wounds and also around the solitary fire-arm grazed wound on the left upper arm and the one on the chest, but this appears to be an error. The four entrance wounds on the dorsal side are spread over an area of 7 c.m. x 14 c.m. This means that the gunshot was fired from a distance of three yards or more. As such, there could be no blackening. The fire-arm injuries on Mst.
Nasar Khela P.W.9 are so spread out as to exclude any possibility of any blackening being present.
Perhaps what the doctor saw was coagulated blood, which had turned blackish, and inadvertently thought the same to be blackening. Both Mst. Nasar Khela P.W.9 and Mst. Gulla Khela, deceased, appear to have been hit from a distance between three to five yards, which fairly corroborates the ocular testimony. Thus, there is no conflict between the medical testimony and the ocular account.
With regard to the fourth and last submission, the Investigating Officer did state that according to his report in the Zimini, certain people had told him that the appellant was innocent, but he also added that it was also recorded therein that as the appellant had not then been arrested, nothing final could be stated. Nothing was brought out in cross-examination as to how the Investigating Officer had formed his opinion, or which of the witnesses had supported the plea of innocence of the appellant. In these circumstances, nothing turns on the concession given by the Investigating Officer to the appellant in his cross-examination. This submission, therefore, must be rejected.
Taking all circumstances into consideration, the ocular evidence appears to be natural and convincing. No question of mistaken identity in this case arises as the appellant fired at the two ladies from a reasonably close distance. The ocular account, therefore, establishes the case of the prosecution to the hilt. Since the witnesses are disinterested, no corroboration is required in the instant case.
14. Notwithstanding the above, the medical testimony furnished by Dr. Muhammad Mushtaq Ahmad P.W.1 lends ample corroboration to the ocular account. The number and nature of the injuries on the two ladies clearly show that they were caused by gunshots from a distance between three to five yards. Sufficient has been said about the medical testimony already in the para. Last aforementioned. The medical testimony clearly and fully corroborates the ocular account.
15. The upshot of the above discussion is that the motive, the ocular account and the medical testimony fully establish the case of the prosecution to the hilt against the appellant. The appellant appears to have been properly convicted and sentenced.
16. For the foregoing reasons, there being no merit in this appeal, the same is dismissed. The benefit of section 382-B, Cr.P.C. Shall be granted to the appellant.
' Jail .