NASIM HASAN SHAH, J.--Ghazi Khan, petitioner, by this petition through Jail, seeks leave to appeal against the judgment, dated 12-3-1984, passed by a Division Bench of the Peshawar High Court, Peshawar, in Criminal Appeal No. 60 of 1983/Murder Reference No. 8 of 1983, whereby the petitioner's conviction under section 302, P.P.C., for committing the murder of Khanzada (deceased) by firing at him with a pistol (Tamacha) at 16.30 hours on 13-10-1981, in the area of Kandi Achhar, Police Station Bhana Mari, Tehsil and District Peshawar, was maintained and the sentence of death as well as fine, recorded by the learned Additional Sessions Judge-III, Peshawar vide judgment, dated 4-5-1983, was confirmed.
2. Report about this murder was recorded by Muhammad Akbar Khan, S.I. (P.W. 10), who was then on Gasht in Kandi Achhar. Having learnt about the occurrence, the said S.I. (P.W.10) went-to the spot at 17.00 hours, where Mst. Aulia (P.W.7) widow of the deceased, lodged the report in the form of a Murasila (Exh. PA/1), which later on constituted the F.I.R. (Exh.P.A).
3. The details of the occurrence, as given in the F.I.R. (Exh.P.A) are that the complainant, Mst. Aulia (P.W.7), was present outside her house and her husband, Khanzada (deceased) was grazing his donkey, when Ghazi Khan (petitioner) came there; he shook hands with Khanzada (deceased) and then immediately started firing at him a pistol with a (Temecha); on the alarm and cries of Mst.
Aulia (P.W.7), Mst. Mazara, daughter and Muhemmadzada (P.W.8), son of the deceased came there and tried to catch hold of the petitioner; and ultimately, with the help of other people, they succeeded in apprehending him alongwith a pistol (Tamecha) in his hand.
4. The motive, as stated by the complainant, Mst. Aulia (P.W.7), is that a year prior to the occurrence, Mst. Shirin Gula, sister of the petitioner, was married to (P.W.8) Muhammadzada, son of the deceased. She had been taken to Parachinar by Hanif Khan, a brother of the petitioner 2/3 days before the occurrence.
5. According to the Investigating Officer, blood-stained earth (Exh.P.1) was collected by him from the spot vide memo. Exh. P.S/1. He also recovered from the spot to empties of .32 bore smelling of fresh discharge (Exh.P.2) vide memo. Exh.P.R/2.
Dr. Liaqat Ali Khan (P.W.11), conducted autopsy on the dead body of the deceased on 13-10-1981 at 17.30 hours (5.30 p.m.) and found the following injuries on external examination:--
(1) Fire-arm entry wound --" x --" on the right lumber region posteriorly, 2" from the medial line. Exit wound -- x -- on the right 8th intercostal space anterior axillery line.
(2) Fire-arm entry wound --" x --" on the left lumber region posteriorly to inches from the medial line.
(3) Fire-arm entry wound --" x -- " on the left 6th intercostal space posteriorly 3" from the medial line. Exit wound --" x 1/3" on the left 2nd intercostal space 1 -- anteriorly it" from the medial line.
(4) Fire-arm entry wound -- " x -- " on the lateral side of right forearm. Exit wound 1/2" x 1/2" on the lateral side of right forearm. Exit wound --" x --" on the medial side of right forearm.
7.On internal examination, the doctor found that chest wall, left pleurae, left lung, heart, blood vessels, peritoneum, diaphragm, large intestine and the liver were injured. Stomach was healthy and half full of semi-digested food spinal card, membranes were also injured and fourth and fifth lumber vertebrae were found fractured. Death in the opinion of the doctor 'was due to injuries of the vital organs, caused by fire-arm.
8. The petitioner when examined under section 342, Cr.P.C. Denied having committed the murder and stated that he has been falsely implicated in the case. He, however, did not produce any evidence in defence.
9. At the trial, the prosecution in support of its case examined as many as eleven witnesses including the Police Officials and the Medical Officer.
10. The learned trial Judge found that the to eye-witnesses, namely, Mst. Aulia (P.W.7), widow of the deceased and Muhammadzada (P.W.8), son of the deceased could be relied upon as they had no reason to implicate the petitioner falsely on a capital charge. He also found that the account given by them was fully corroborated by the other evidence on record in the shape of the blood-stained earth and empties from the spot, the reports of which are positive in nature. Accordingly the learned trial Judge found the petitioner guilty and convicted him under section 302, P.P.C. And sentenced him to death and also awarded a fine of Rs.3,000 to be paid to the heirs of the deceased by way of compensation or in default to undergo six months' R.I.
11. On appeal and reference, the High Court agreed with the findings arrived at by the learned trial Judge. Consequently the appeal of the petitioner was dismissed and the death sentence was confirmed. Hence this petition for leave to, appeal (Through the Jail Authorities).
12. We have heard the learned counsel in support of this petition at some length and have also perused the relevant petitions of the evidence on record as well as the judgments of both the Courts below and we consider that in determining the guilt of the petitioner, the following aspects of the inter alia have escaped notice of the learned trial Judge as well as the learned Judges of the High Court:--
(1) In the F.I.R. (Exh.P.A.) the complainant, Mst. Aulia (P.W.7), wife of the deceased, stated that after the occurrence, the petitioner was apprehended at the spot alongwith the pistol (Tamacha)in his hand whereas in her evidence before the learned trial Judge, she stated that he was apprehended at the (Dera Hujra) of Gul Rehman.
(2) In their statements before the learned trial Judge, the to eye-witnesses, namely, Mst. Aulia (P.W.7) and Muhammadzada (P.W.8), deposed that Khanzada (deceased) was hit on the head with the fire of the petitioner whereas the medical evidence disclosed no such injury;
(3) that the motive according to the prosecution evidence was that the petitioner desired the deceased (Khanzada) to have her sister (Shirin Gula) divorced from the son of the deceased, namely, Muhammadzada (P.W.8) but the deceased refused to do so. However, the evidence led at the trial was to the effect that the sister of the petitioner (Shirin Gula) had already been taken to Parachinar by Hanif Khan, a brother of the petitioner. Thus the dispute, if any, could have been raised by the complainant party, who would be desirous for the return of their daughter---in-law;
(4) In any case the immediate motive for the petitioner to fire upon the deceased (Khanzada), remains shrouded in mystery. The question whether the sentence 'of death awarded to the petitioner is the appropriate sentence in the circumstances of the case also requires consideration.
We would accordingly grant leave to appeal.