ASLAM RIAZ HUSSAIN, J.-- This appeal was partly accepted by us by a short order, dated 18-9- 1984, the reasons, wherefore, were to be recorded later. We now proceed to record the same.
2. Briefly stated, the prosecution case is that Mst. Walajan.(P.W.4) was married to Shamsherwan appellant. They had four children out-of the wedlock. The eldest son was Badshah Mian (absconding co-accused). The other three were minor children, named Bilal, Husan Bano and Umer Farooq. The relations between spouses became strained and Mst. Walajan went over to the house of Muhammad Ishaq, complainant, to seek protection. Shamsherwan appellant filed a criminal complaint under section 498 of the Pakistan Penal Code against Muhammad Ishaq which was subsequently dismissed. Later on Mst. Walajan got a divorce from the appellant and got married to Muhammad Ishaq, complainant. Two of their above-named children, namely, Badshah Mian (co-accused) and Bilal remained with the father, Shamsherwan appellant, while the remaining to, namely, Umer Farooq and Husan Bano were taken by their mother, Mst. Walajan with her. The conduct of Mst. Walajan was deeply resented by Shamsherwan appellant and her elder son Badshah Mian (absconding accused).
3. According to Mst. Walajan, on the day of occurrence she was washing clothes in the house of Muhammad Ishaq, complainant when her ex-husband, Shamsherwan appellant and her son Badshah Mian (absconding accused) came there armed with .12 bore gun and a pistol respectively. On entering the house they started firing. She, however, closed the door in the and prevented them from coming in. But the window of the house was left open. Her son Badshah Mian fired from the window, hitting Khawaja Muhammad, a nephew of the complainant, who fell down and died on the spot. The appellant also fired with his .12 bore gun, hitting his to children, Husan Bano and Umer Farooq, both of whom were injured. The to accused then ran away. Muhammad Ishaq, complainant was informed about the incident by his nephew Qadim Khan, whereupon he lodged a report with the police at police station Baldia, at .12 noon on the same day. The F.I.R. Was recorded by Maqbool Hussain, S.H.O. (P.W.12). After recording the report the S.H.O. Went to the spot and sent the dead body for post-mortem and sent Mst. Walajan and the to injured children to the hospital for treatment. He also recovered five empties of .12 bore from the spot. Dr. Ibrahim (P.W.11), who examined Mst. Walajan and the to children, found several pellet injuries on their person while Dr. Anwar (P.W.10), who performed the post-mortem examination, found the following injuries on the body of the deceased:- (1)Punctured wound 1-1/2" x 1" right side face below right eye into bone deep. Charring and blackening around the wound, which is wound of entry. Margins inverted.
(2)Multiple punctured wound in area of measuring 1" x 6" on left thigh on interior aspect upto knee.
Wounds were muscle deep.
The police then look for the 3ceused. Shamsherwan appellant was arrested on 7-9-1979. But Badshah Mian had absconded and could not be found. Shamsherwan was, therefore, tried alone.
The prosecution relied only on the ocular testimony of Mst. Walajan (P.W.4) and Husan Bano (P.W.5), the ex-wife and the real daughter of the appellant respectively. Both of them fully supported the prosecution version. The prosecution also relied on the medical evidence; the evidence of recoveries and the motive. The accused simply denied the allegations made against him and pleaded innocence. He admitted that Mst. Walajan was his wife but said that he had not divorced her.
4. The learned trial Court believed the prosecution version and convicted Shamsherwan under section 302 read with section 34 of the Pakistan Penal Code and sentenced him to death. It also convicted and sentenced him under section 449 of the Pakistan Penal Code to suffer ten years' rigorous imprisonment and fine of Rs. 2,000. In default of payment of fine he was ordered to suffer another six months' rigorous imprisonment. He was also convicted under section 307 of the Pakistan Penal Code and sentenced to ten years' rigorous imprisonment and a fine of Rs. 2,000 as compensation to each of the three injured persons. He was further ordered to pay Rs. 10,000 as compensation under section 544-A, Cr.P.C. To the heirs of deceased Khawaja Muhammad.
5. Shamsherwan filed an appeal before the High Court which is dismissed by the impugned judgment. The High Court, however, reduced the sentence of death to that of imprisonment for life.
Not feeling satisfied the appellant filed a Petition for Leave to Appeal before this Court and 'leave was granted to him by a Division Bench of this Court on 17-1-1984 to consider whether he has been rightly convicted for the murder of Khawaja Muhammad by application of section 34 of the Pakistan Penal Code specially in view of the fact that prosecution witnesses had not attributed any injury to the deceased by him.
6. We have heard the learned counsel for the appellant as well as learned State counsel at considerable length and have gone through the entire evidence on record as well as the judgments of the Courts below. We find that the High Court maintained its conviction under section 302 read with section 34 of the Pakistan Penal Code on the following reasons, recorded by it in paragraph 13 of the impugned judgment; "We would now refer to the arguments of the learned counsel for the appellant. His plea is that the present appellant had no intention to murder Khawaja Muhammad and at the most he would be liable for firing and causing injuries to Mst. Walajan, Mst. Husan Bano and Umer Farooq. Firstly there is no recovery of any weapon from the present appellant and he was possibly not present at the Wardat and was at his village at Sawat. Secondly he did not fire at the deceased who died due to pistol shots fired by the absconding accused. This piece of arguments has no weight as to independent eye-witnesses had identified the present appellant armed with gun and firing at the injured which is further corroborated by the evidence of the Medical Officer inasmuch as that the pellet wounds on the thigh of the deceased are caused by gun shots of the present appellant.
Therefore, it is clear that the present appellant also fired at the deceased. The appellant cannot escape from the liability of murdering Khawaja Muhammad."
We notice on going through the evidence that none of the witnesses have stated that Shamsherwan appellant had neither fired at Khawaja Muhammad nor caused any injury to him. He is only stated to have fired at his to children, Husan Bano (P.W.5) and Umer Farooq, both of whom sustained .12 bore pellet injuries. Learned counsel for the appellant contended, that the High Court had erred in treating the medical evidence as substantive evidence in the case inasmuch as it based the conviction of the appellant under section 302/34 of the Pakistan Penal Code on the basis of the presence of certain pellet marks, (described in injury No.2) on the left thigh of the deceased on the assumption that these must have been caused by a shot fired at the deceased by the appellant. Learned counsel submitted that medics evidence is merely 'corroborative evidence' which can be used only t corroborate the ocular testimony in the case and that conviction cannot be recorded merely on the basis of the presence of injuries on the dead body without there being any evidence on the record that he had caused the same. We are inclined to agree with this submission. We notice that the prosecution case has consistently been that the appellant had fired only at the to children and had not caused any injury to the deceased. The to witnesses who had seen the occurrence have also not attributed any injuries to the deceased to the appellant. There- -fore, the presence of pellet injuries on the deceased's body cannot, by themselves, form the basis of his conviction on a capital charge. Moreover the appellant cannot be said to have had a 'common intention' with the absconding accused to kill Khawaja Muhammad deceased, firstly because they had evidently come with a motive to kill Mst. Walajan (P.W.4). Secondly they did not know whether Khawaja Muhammad deceased, who is a nephew of Muhammad Ishaq, complainant, could even be present a the latter's house. As such they could not have had a common intention to kill him.
7. In view of the above discussion we feel that the provisions of section 34 of the Pakistan Penal Code are not attracted to the facts o the present case and, therefore, the Courts below have erred in convicting the appellant by application of the said section.
8. We, therefore, accept the appeal to the limited extent that the conviction of Shamsherwan appellant under section 302 of the Pakistan Penal Code is set aside, while his conviction and sentence under sections 307 and 449 of the Pakistan Penal Code are maintained.