MIAN BURHANUDDIN KHAN, J.--This is direct appeal against the judgment and order of the Peshawar High Court, dated 29th April, 1980 passed in Criminal Appeal No. 199 of 1978 whereby the order of acquittal passed by the learned Sessions Judge, Bannu in favour of the accused /appellant was set aside; and he was convicted under section 302, P.P.C. And sentenced to life imprisonment and a fine of Rs.5,000 to be paid as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Or in default, to suffer further R.I. For six months vide the impugned judgment, dated 29-4-1980.
2. On 30-5-1976 at about Deegarvela on the Bannu-Kaki Road in the vicinity of Faiz Talab within the limits of Police Station, Mandan the first informant Muhammad Gul P.W. 1 alongwith his son Islam Gul deceased and a friend Daud Khan, were proceeding to their village on bicycles. The complainant was ahead of the other two while the deceased was following him. As they reached the Bannu-Kaki Road the accused/ appellant appeared with a pistol and fired at the deceased from behind, who was hit and fell to the ground; that on looking back he saw the accused /appellant running away with a country-made pistol which he threw in a vial water drain and ran away towards Bannu; that on approaching the deceased he found him dead, and, therefore, leaving Daud Khan with the dead body, he went to the Police Station, Mandan where he lodged the F.I.R. Exh. P.A. In the report the complainant had stated that Mst. Mir Zabana, wife of Imtiaz, his another son, had left her husband's house on account of her strained relationship with Imtiaz and had started living with the accused/appellant Azad Khan alias Azadai a month prior to the occurrence. Islam Gul deceased was insisting that Azadai should submit himself to the decision of Shariat but the accused /appellant refused to do so. The learned trial Court acquitted the accused /appellant with the following observation regarding the statement of Muhammad Gul P.W. 1:- "In the examination-in-chief he deposed that while going on their cycles on Bannu-Kaki Road ahead of the deceased followed by Daud Khan P.W. He heard report of fire shot and when he turned his face he saw the accused with pistol in his hand running towards Bannu City. He is not supported by the site plan Exh. P.B. Prepared by the I.O. That he alongwith the deceased and Daud Khan were going on Bannu-Kaki Road on their cycles in one line. Islam Gul deceased was shown at Point No. 1, towards the East of the metalled road. Muhammad Gul P.W. Was shown at Point No. 8 on the west of the metalled road. Daud Khan P.W. Was shown at Point No. 9 also on the West of the road. The accused presence was shown at Point No. 2. It is in the evidence of the doctor that death was instantaneous, and corresponding holes with blackening was present on shirt, bunyan and jacket of the deceased. It is, therefore, clear that if Muhammad Gul P.W. Was being followed by the deceased, then the deceased should have fallan on the West of the road, and not on the East as the site plan shows.---"
The other reason which prevailed with the learned trial Court is that the accused /appellant, after having fired at the deceased, had thrown the pistol in Vial and it seems unnatural that Muhammad Gul should not have chased the accused /appellant and apprehended him. While dealing with the statement of Daud Khan P.W. 2, the learned trial Judge disbelieved him on account of his being casual witness and not being present when the occurrence took place; and that it did not appeal to reason as to why he should have been taken by the deceased as guest to his village, as according to the custom, the deceased, who had come from D.I. Khan, should have been treated as guest.
3. The above observations could hardly be of any substance for the reason that the site plan, by itself, is not a substantive piece of evidence unless a witness is confronted with the situation /wherein he has made his presence marked at certain point, and this contradicts the earlier statement. It is in evidence that all the three persons, including the deceased, were proceeding on the Bannu-Kaki road and it is but natural that the formation in which they were proceeding on their bicycles towards the village, would not be particularly noted by any witness till an event of some consequence happens.
4. We are of the opinion that the medical evidence supports the prosecution case. Dr. Muhabbat Khan P.W. 4, who performed the post, mortem examination on the dead body of Islam Gul, found eight inlet wounds 1/4" x 1/4" each chest deep on the back of right chest which perforated the vital organs en route through the chest cavity.
5. There is also the statement of Hadi Hussain Shah then S.H.O. Police Station Mandan (P.W. 8) who, after recording the statement of Muhammad Gul, proceeded to the spot and made an Inspection Note Exh. P.B. And found Daud Khan P.W. 2 present on the spot; recovered a .12 bore pistol from the vial near the spot freshly discharged; took the same into possession vide Memo. Exh. P.D. And sealed the same into a parcel, empty in the chamber of pistol was sealed separately. He also found the bicycle of the deceased which was also taken into possession vide Memo Exh. P.F.
6. The recovery of pistol Exh. P. 1 is an important factor in the prosecution case. It was recovered, as stated above, immediately on the pointing out by the witness, from the water drain with smell of freshly gun-powder discharge.
7. The accused/appellant had absconded after the occurrence. Search was made by Gul Nawaz Khan F.C. P.W. 7 who looked for the accused in his village but could not trace him as he was reported to have gone to the trial territory and the warrant Exh. P.N. Was returned un-served.
8. The accused/ appellant when questioned, denied the commission of offence and as regards his absence from the village he stated that being a businessman he had gone on a business trip before the occurrence; and when, on his return, he learned about the charge, he surrendered himself; and added that he was falsely charged on account of the so-called strained relations which had cropped up in the mind of Muhammad Gul. He denied the recovery of the pistol and using the same in the commission of the crime. The learned Judges of the High Court have thoroughly examined these points which weighed with the trial Court and held them to be of no consequence; and immaterial in the context of the present case. They observed as follows in the impugned judgment:.
"The learned trial Judge seems to have not taken note of the fact that the accusation against the accused/ respondent of having illicit relations with the wife of Imtiaz, had brought dishonour and disgrace to the entire family and the deceased must have strongly reacted against it. The recovery of the pistol with empty is a corroborative piece of evidence to connect the accused/ respondent with the crime. P.W. Muhammad Gul had mentioned it in the F.I.R. That after firing at the deceased, the accused/ respondent was seen by him throwing the pistol in the nearby drain. The I.O.
Recovered the same while inspecting the spot. We do not think that the I.O. Would be so cruel as to foist the pistol on the accused /respondent to make out a case against the accused /respondent even if he was innocent. The other circumstances which has impressed the learned trial Judge in support of his acquittal order, is that during the days of occurrence the deceased was living at D.I.
Khan and as the prosecution case is that P.W. Daud Khan was going with the deceased party as a guest to their village, it makes the case of the prosecution doubtful because it should have been the deceased who had come from D.I. Khan to have been treated as a guest. Bannu and D.I. Khan are not abnormally distant places. The deceased must have come once in a week to his village, if not daily. So, in these circumstances, there would be no question of treating the deceased as a guest by P. W. Daud Khan. . . .."
Agreeing with the above observation of the learned High Court Judges we find that the prosecution had proved the guilt of the accused/ appellant and there is no such discrepancy which would cut at the root of the case. Consequently, the appeal is dismissed. However, benefit of section 389-B, Cr.P.C. Is granted to the accused /appellant.