1. JAVID IQBAL J.-- This appeal of Rehman Shah and Anwar Shah appellants, both brothers, has been filed through jail. Both of them were tried by the Additional Sessions Judge, Mardan who vide his judgment dated 31st January, 1978 convicted both of them under section 302/34, P.P.C., and sentenced each of them to imprisonment for life. They were, however, ordered to pay Rs.2,000 each by way of compensation under section. 544-A, Cr.P.C. To the heirs of the deceased or in default to undergo further six-months R.I. Each. In appeal a Division Bench of the Peshawar High Court Peshawar maintained the conviction as well as the sentence awarded to them and their appeal was dismissed. Hence the present appeal through jail.
2. As stated above both the appellants are brothers and their sister Mst. Kishwaro was married to Nazir deceased. The motive for the commission of the crime is that at about noon time on the day of occurrence over some domestic matter Nazir deceased gave a beating to his wife Mst. Kishwaro who as a result left the house and went to the house of her parents and must have narrated the incident to them. It is in this background that the appellants being brothers of Mst. Kishwaro fired at the deceased in order to teach him a lesson. The occurrence took place at Deegarwela on 15th August, 1976 when the deceased was returning from village Chamdheri, Police Station, Shahbaz Garhi, district Mardan where he had taken grains for grinding. When he reached near the shrine of Sheikh Dilawar Baba he saw both the appellants standing armed with rifles. On seeing him both of them fired three shots at him out of which two hit him on his legs and as a result he fell down. The occurrence was witnessed by Mst. Hamdama P.W. 11 as well as Mst. Amtari (not produced) both real sisters of the deceased. The deceased while still in an injured condition was carried to the hospital by the villagers but on his way he met Sher Khan A . S . I . P.-N.6 who was on Gasht duty and who recorded the statement of the deceased while he was still alive. It was on the basis of this statement that formal F.I.R. Was registered. Initially the case was registered under section 307/34, P . P . C . Against the appellants but later on when Nazir deceased succumbed to his injuries in the hospital the section was changed to 302 , P . P . C . And the statement of the deceased on which F . I . R . Was recorded was considered as a dying declaration of the deceased.
3. It may be pointed out at this stage that both the appellants are maternal-aunt's sons (Khala's sons) of the deceased as well as Mst. Hamdama P.W. The motive has been stated above as provided by the deceased. Also according to the statement of Mst. Hamdama P.W. On the day of occurrence the deceased had quarrelled with his wife Mst. Kishwaro over the making of tea and she went to the house of her brothers while the deceased proceeded to the flour mill at village Chamdheri. After sometime Anwar Shah appellant came to the house of the deceased and asked Mst. Hamdama P . W . As to the whereabouts of the deceased. At that time he was armed with a fire-arm and looked very furious. She told him that he had gone to the flour mill. Thus, apprehending danger at his hands she and her sister Mst. Amtari followed him. When both these women crossed the Khowar, Rehman Shah appellant who was waiting for Anwar Shah appellant and who was also armed with a fire-arm joined him. Then both of them proceeded towards the flour mill and were followed by the two women. The deceased was returning from the flour mill and when he reached near the shrine of Sheikh Dilawar Baba both the appellants fired at him. They had fired three shots at him and the deceased was hit and fell down. The appellants ran away from the spot. At the alarm of the women villagers gathered on the spot, put the deceased in an injured condition on a cot and carried him towards the hospital. As it has been pointed out, later the statement of the deceased was also recorded by the police officer, which had been subsequently treated as a dying declaration. Dying declaration is to the same effect except that it is stated therein that the occurrence was witnessed by Mst. Hamdama P.W. And the name of Mst. Amtari does not appear in it.
4. Lady Doctor Bhagwant Devi P.W. 12 examined Nazir deceased on 15th August 1976 at 10 p.m. While he was still alive and found on his person a fire-arm wound on right knee and a fire-arm exit wound on right leg. Also a fire-arm wound on the back of the left leg and a fire-arm exit wound in front of left leg. The injured died and Dr. Ehsanullah Khan P.W..13 performed post-mortem examination on the dead body of the deceased at 9-45 a.m. On 16th August 1976 and noted the same injuries on his person. As a result of these injuries left tibia and fibula bones were broken into pieces. Right knee joint was injured and patella was fractured. Similarly right tibia upper and lower was also fractured. According to the medical evidence it appears that the deceased had received two shots fired at his legs which eventually resulted in his death. The injuries on the legs were suffered one from the front and the other from the left side and the cause of death was excessive haemorrhage. The prosecution case was based on the ocular account given by Mst. Hamdama P .
5. W . Sister of the deceased, dying declaration of the deceased, the motive version, the medical evidence and the abscondence of the appellants who had pleaded total denial. Both the trial Court as well as the appellate Court believed the entire prosecution case. However, the reason why leave was granted in this case was to consider as to whether the findings of guilty against both the appellants were based on accepted principles of safe criminal justice; as to whether if both the appellants had participated in the attack then in the circumstances of this case the conviction should or should not have been under section 302/34, P.P.C. Or under sections 304, Part I or Part II, 34, P.P.C. Or under section 326/34, P.P.C. Because if the intention was discernible from the conduct of the appellants as it could be gathered from the number of shots fired and the seats of injuries and could such an inference be drawn that the intention was not to murder but to punish the deceased by breaking his legs for having beaten up the sister of the appellants; as to whether such an intention would counteract other elements which constitute the offence of murder in this case; and finally as to whether in the same context it was not possible to hold that out of three shots the ineffective one was fired by one and the others by the second co-accused and that if that was so then benefit could have been given to the one or to the both of them in the light of the possibility as visualised above that there was prima facie no common intention to commit the murder of the deceased.
6. It was argued before us by the learned counsel appearing for the appellants that the dying declaration was not reliable as it mentioned only one eye-witness namely Mst. Hamdama P.W. And not the other i.e. Mst. Amtari. It was next submitted that Mst. Hamdama P.W. Being sister of the deceased naturally had sympathy with him and, therefore, should be considered as an interested witness with a motive to falsely implicate the appellants. It was pointed out that the possibility could not be ruled out that it was a night time occurrence and the shots had been fired at the deceased by some unknown or unidentified assailants who might have concealed themselves. It was next pointed out that even if it was to be assumed that the appellants had a motive to commit the crime and had in fact fired at the deceased, then according to the prosecution version three shots were fired out of which one had been missed and it could not be ascertained as to which of the two appellants had fired that shot. It was next argued that although Rahman Shah appellant was 30/32 years old his brother Anwar Shah appellant was only 15 years old and he might have acted under the influence of his elder brother and that furthermore it was possible that shot fired by him had missed. It was then argued that the shots fired at the deceased were on his legs which likewise indicated that there was no common intention to murder but only to teach a lesson to the deceased.
7. We have carefully considered the arguments raised before us but we do not find any force in them.
8. The parties are closely related. There is no background of long-standing previous enmity. The occurrence took place because the deceased had given a beating to Mst. Kishwaro his wife who was sister of the appellants. She left the deceased and went back to the house of her parents and must have complained to her brothers about the behavior of the deceased. As a result the appellants became infuriated, picked up their rifles and one of them namely Anwar Shah appellant went to the house of the deceased in order to find out as to where he was. It is at this stage that Mst. Hamdama P.W. Comes into the picture. She found him armed with a fire-arm and in a furious state of mind. She told him where the deceased had gone and thereafter she and her sister followed him. He was joined by Rahman Shah appellant on the way. Then when they saw the deceased returning they both are stated to have fired three shots from their respective fire-arms out of which two hit the deceased on the legs and as a result the deceased fell down and subsequently died. In the dying declaration if Mst. Hamdama P.W. Has only been mentioned it is quite possible that the deceased at that time might have not noticed Mst. Amtari being also present there. Anyway the dying declaration is consistent and is corroborated by the ocular testimony of Mst. Hamdama P.W. And is further supported by motive version as well as the medical evidence. Both the appellants in the instant case were stated to be armed with rifles and the injuries received by the deceased were bullet injuries. If the two assaillants who were armed with rifles fired rifle shots at the deceased victim which hit him on his legs and which resulted in his death, it could not be said that both of them did not, have common intention to murder. The very firing of fire-arms like' rifles by both the appellants together at the deceased irrespective of the fact that the two out of three shots had hit at the legs of the deceased and had resulted in his death would not indicate that the common intention was not to commit the murder of the deceased but only to punish him. In our considered opinion the benefit has already been given to both the appellants for the mitigating circumstance in the present case. The argument of the learned counsel to the effect that the younger brother may have acted under the influence of the elder brother is also of no persuasive value as in such circumstances lesser penalty is usually given to the one who acted under the influence of the other. However, in the present case both the appellants have already been awarded lesser penalty and they deserve no further leniency in the facts and circumstances of the present case.