' FAZAL 1LAHI KHAN, J.-Salim Khan son of Taj Muhammad resident of Bara Banda, Tehsil Nowshera, aged about 35/36 years convicted order section 302/34, P. P. C. For the murder of Mir Bahadur, by the learned Additional Sessions Judge vide his judgment and order, dated 25th of May, 1983 and sentenced to death and a fine of Rs, 40,000 has come in appeal to this Court. The sentence of murder has also been referred to this Court under section 374, Cr. P. C. For confirmation Both the appeal as well as the murder reference are disposed of by this single judgment.
2. The occurrence took place at 8-30 a.m. On 2-9-1979 near the house of the deceased at a distance of about 2/3 miles from Police Station, Risalpur, Tehsil Nowshera. Report of the occurrence was lodged by Ali Haider P. W. Brother of the deceased which was recorded by Ijaz Hussain A. S. I. (P.
W. 14) vide F. I. R. Exh. P. A. In the F. I. R. The occurrence is stated to have taken place when the complainant alongwith his brother Mir Bahadur deceased and his mother Mst. Badrai were busy in plastering of their house. At that time their domestic dog was lying over a heap of mud outside the house. All of a sudden the dog having been hit with a stone entered the house shrieking. At this all the 3 inmates of the house came out where they saw Salim son of Taj Muhammad (the appellant) armed with a Topak and Shamshad Khan son of Khan Muhammad empty-handed standing in front of their house. When asked about the cause for hitting the dog Shamshad hurid abuses and directed Salim 'Marro'. At this Salim fired at Mir Bahadur with which he was hit. Shamshad hit him (the complainant) with a stone which injured him on his head. All this attracted the people from the vicinity while the accused decamped from the spot. Motive for the offence was given out to be an altercation which had taken place a year before. Mst. Badrai was mentioned to have witnessed the occurrence.
3. After recording the F. I. R. Ijaz Hussain (P. W. 14) prepared the injury sheet Exh. P. D/1 of Ali Haider while Umara Khan A. S. I. (P. W. 2) prepared the injury sheet of Mir Bahadur and sent both of them to the hospital for medical treatment under the escort of F. Cs. Muhammad Zafar and Muhammad Akram (P. W. 16). Thereafter he visited the spot and prepared the site plan Exh. P. B. With all its foot notes, drawing and sketches. He also recovered one card-board disc Exh. P. 4 and a small stone from the spot. These were taken into possession vide recovery memo. Exh. P. C./2. Mst. Badrai (P. W.
9) produced at the spot an S. B. Shot gun P. 2 alongwith a cartridge Exh. P. 3 to the Investigating Officer which was taken into possession vide recovery memo. Exh. P. C./1. On the arrival of Fazal Muhammad Khan, S. I. (P. W. 13) to the spot investigation of the case was handed over to him. He took into possession vide recovery memo. Exh. P. C./3, bloodstained clothes Exhs. P. 5 and P. 6 of the deceased produced by F. C. Muhammad Akram who had brought the same from the hospital.
4. As both the accused were not available for their arrest, they were, therefore, proceeded against under section 204, Cr. P. C. And challan was put in Court against both of them under section 512, Cr.
P. C. On the arrest of Salim accused supplementary challan was put against him in Court.
5. In support of its case the prosecution placed reliance on the eyewitness account furnished by Ali Haider, Mst. Badrai (P. W. 9) and Mst. Basmina (P. W. 7) corroborated by medical evidence, the recovery of the shot-gun, the opinion of the Arms Expert and the ascendance of the accused.
6. After close of the prosecution case, in his statement recorded under section 342, Cr. P. C., the accused-appellant denied having hit the dog of the complainant at the time of occurrence and also denied his having fired at the deceased. When questioned about his ascendance from the village just after the commission of the offence he stated that he was away from his village in connection with his work. He further denied having been disarmed of the shot-gun Exh. P. 2 by Mst.
Badrai and pleaded his innocence. He refused to produce any evidence in defence. The learned Additional Sessions Judge relying on the prosecution evidence consisting of the statements of Ali Haider lodger of the F. I. R., Mst. Badrai and Mst. Bismina corroborated by the medical evidence, abscondence of the accused found him guilty of the murder of Mir Bahadur and convicted him as stated earlier.
7. At the time of hearing of the appeal in this Court an application was moved by the learned counsel for the accused-appellant under section 428, Cr. P. C. For recording statement of the Investigating Officer in case F. I. R. No, 205, dated 2-9-1979 and that of the doctor who had examined the injured Nisar Muhammad and Mst. Naurina who received injuries in the case referred to as a cross-case to the present one. On the acceptance of this application statement of Dr. Iftikhar Ali Khilji and Ijaz Hussain (the Investigating Officer) were recorded in this Court. Accused was again examined in this Court on 9-5-1984. When questioned as to what he had to say after hearing the statements of the two witnesses recorded in this Court as C. Ws. The accused made the following statement :- "I heard their evidence. On the day of occurrence I was present with Shamshad in his house I heard the report of the cries of my mother. I and Shamshad came out and saw that Mir Bahadur and Ali Haider were giving beating to my mother Mst. Noorina and my brother Nisar. Shamshad my cousin was armed with a D. B. Shot-gun. When he appeared Mir Bahadur and Ali Haider attacked us and in order to save ourselves Shamshad fired two shots with his D. B. Shot-gun. Later on my brother Nisar made a report about which evidence has been recorded."
8. The learned counsel for the appellant while arguing this appeal raised the following contentions :-
(i) that there is material contradictions in the statements of the eye-witnesses and the medical evidence.
(ii) that the recovery of shot-gun from the accused by Mst. Badrai is not mentioned in the F. I. R. Nor the presence of Mst. Basmina is shown hence no reliance could be placed on this evidence ;
(iii) that the prosecution had concealed the injuries caused to the accused-party hence their evidence was not worthy to be placed reliance on ;
(v) that it was a sudden quarrel without any pre-meditation in which both the sides sustained injuries of which two cross-cases were registered ; and
(v) in absence of any positive evidence as to who initiated the attack the conviction of the accused was unfounded.
9. The learned counsel for the appellant cited several reported judgments of the Supreme Court of Pakistan and various High Courts in support of his aforementioned contentions. After going through the entire evidence with the help of the learned counsel for the parties and perusal of the law cited we would like to deal with these contentions one by one.
10. The contradictions in the statements of the eye-witnesses pointed out by the learned counsel has got no material bearing on the credibility of the witnesses whose presence on the spot is established beyond any shadow of doubt even through the statement made by the accused in this Court after the examination of the Court witnesses at the instance of the accused. In his statement the accused has to a greater extent corroborated the prosecution version of the case. The contents of the case. The contents of the F. I. R. Is fully supported by the statement made by Ali Haider in the proceeding under section 512, Cr. P. C. As well as by Mst. Badrai (P. W. 9) and Mst. Basmina (P. W. 7) respectively. Though the learned counsel for the appellant objected to the reliance on B the statement of P. W. Ali Haider and its admissibility under section 33 of the Evidence Act he did not press his arguments when it was pointed out to him that the learned trial Judge has based the order of conviction independently on the evidence of the aforementioned two witnesses corroborated by the other circumstantial evidence. The learned counsel objected to the statement of Mst. Badrai as according to him she in her statement has introduced Mst. Basmina to be the eye-witness of the occurrence although her name does not find mention in the F. I. R. It is true that Mst. Basmina is not mentioned in the F. I. R., however, she I being one of the inmates of the house where the occurrence has taken place her presence in the house at the time of occurrence is natural. Her name could not find place in the F. I. R. As at the relevant time the names of those persons were disclosed to the police who were busy in the plastering of the wall at the relevant time. In her statement under C section 161, Cr. P. C. Mst. Basmina has given an honest version with which she was confronted, wherein she has stated that she had given birth to a child and was inside the Kotha when she was attracted by the noise. Her denial, in the Court having stated to the police that she was in the Kotha at the relevant time is a minor contradiction having no material bearing on the case. Similarly contradiction in her statement as to whether Shamshad hit the complainant with the stone first or that the deceased was the first to have been fired at by the accused is also not helpful to the defence These contradictions are, in the circumstances of the case but natural. The opinion of the doctor which has been highlighted to be contradiction of the statement of Mst. Badrai on the point of a number of D shots fired by the accused is also misconceived. The doctor has simply stated that the injuries on the person of the deceased Mir Bahadur can be the result of two fires is not of an unimpeachable character. In State v. Aminullah and another (1), it was held that :- "A Court is not bound to accept as gospel truth each word of what a doctor states as an opinion. In law the statement of an expert stands on precisely the same foo in as that of any witness and may or may not be accepted by Court. Ordinarily, the Court will be slow to reject the opinion of a witness who is an expert in the matter he deposes about but that is not to be understood to mean that the word of an expert is like law to the Court called upon to deal with his evidence as a witness."
The learned counsel, therefore, utterly failed to point out contradictions', in the statements of the eye-witnesses materially effecting the prosecutionr case.
11. As far as the recovery of the shot-gun from the possession of the accused and non-mention of it in the F. I. R. Is concerned, the learned counsel failed to convince us wherefrom this shot-gun was recovered, how it reached to die hands of Mst. Badrai when it was produced to the Investigating Officer on his arrival to the spot. This shot-gun is admittedly licensed in the name of Niaz Muhammad, a near relation of the accused and when questioned under section 342, Cr. P. C. The accused failed to furnish any plausible explanation but made a bare denial. Later on though the accused admitted that Snamshad, his F cousin the absconding accused, was armed with a D. B.
Shot-gun with which he had fired two shots at the complainant and the deceased no mention is made of the shot-gun having been snatched from the accused. For the reason that recovery of the shot-gun by Mst. Badrai from the accused stands proved even if not mentioned in the F. I. R.
12. The learned counsel for the appellant brought it from the mouth of Dr. Iftikhar Ali K.Hilji, Assistant District Health Officer in his statement recorded as Court witness that Mst. Noorina wife of Taj Muhammad, examined on 2-9-1979 had the following injury on her person :- "Loss of function right hand and arm. X-ray was done and a fracture was seen. The injury was caused by blunt weapon and was grievous in nature which was caused within six hours of the examination."
' Similarly the following injury was found on the person of Nisar Muhammad son of Taj Muhammad complainant in F. I. R. No, 205 of the same day :- "Lacerated wound on top of head 1/2" x x 1/6" which was caused with a blunt weapon and the nature of the injury was declared as simple. The duration of the injury is within six hours from the examination."
The story put forward by Nisar Muhammad in his F. I. R. Was that while he was. Present in his house he heard some noise which drew him out of the house where he saw Ali Haider and .vIir Bahadur on the one side Salim Khan and Shamshad his aunt's son from the other grappling with each other.
While he was effecting separation All Haider who had a `Kodali' in his hand gave him a blow with it injuring him on his fore-head. No further details of the occurrence resulting in the death of Mir Bahadur was given there in the report. The injuries sustained by the two persons as stated by the doctor were simple in nature G and were not alleged to have been caused in the same transaction in which Mir Bahadur was murdered. Even in the F. I. R. Which has been exhibited in this case and the statement of C. W. Ijaz Hussain no mention is made of the presence of Mst. Norina wife of Taj Muhammad nor of the injury allegedly caused to her. It, therefore, cannot he said that both these persons received injuries from the hand of the accused in the same occurrence, more so when no such defence was taken by the accused in his earlier statement. For the reason it cannot be said that the complainant concealed these injuries while lodging the report.
13. The arguments of the learned counsel for the appellant that it has not been established who initiated the attack, on the face of it, has no substance. The counter-case set up by the accused that he was present in his house when he heard the report of cries of his mother which attracted him and Shamshad to the spot where he saw Mir Bahadur and Ali Haider giving beating to her is highly improbable and unsupported by any cogent evidence. Even no such case was set up while cross-examining Mst. Badrai and Mst. Basmina, The counter-version in order to benefit the accused must have some foundation for creating reasonable doubt in the prosecution case for extending benefit to the accused. For the reason stated above we have no hesitation in holding that prosecution was successful in proving the guilt of the accused beyond any reasonable doubt.
14. The last contention of the learned counsel for the appellant that it was a sudden quarrel without any premeditation hence the penalty of death should not have been imposed on the accused- appellant, to some extent, is worth consideration in the circumstances of the case. It is evident that both the parties reside in the same vicinity and that altercation ensued between the parties over the hitting of the dog of the deceased. It is also in the evidence that during the altercation the accused flared up and fired a shot. Motive for commission of capital offence is also not satisfactorily proved on this file to which the present occurrence can be attributed. We are, therefore, of the considered view that penalty of death should not have been imposed on the accused. Similarly the sentence of fine is also too severe. Consequently, we partially allow Cr. A. No, 54 of 1983, alter the sentence of the accused from death to life imprisonment and reduce the fine imposed to Rs, 5,000 or in default to undergo further two years' R. I. Out of the fine if realised a sum of Rs, 3,000 shall be paid to the heirs of the deceased as compensation. Murder Reference is answered in the negative and the death sentence is not confirmed. Ipso facto Criminal Revision No, 2 of 1984 stands dismissed.
Appeal party allowed.