' IBNE ALI, J.--Accused Qasam Jan son of Abdul All resident of Gara Tajak Tehsil and District Peshawar was tried under section 302/34 P.P.C. By the learned Additional Sessions Judge, Peshawar, on the allegations that on 17-8-1986 at 10.00 hours, he alongwith absconding accused, namely, Shams-ur-Rehman and Gul Rehman duly armed. With deadly weapons and in furtherance of common intention committed the murder of Taus Khan son of Saifullah Khan resident of the same village by firing at him on the thoroughfare of village Gara Tajak near the fields of one Habibur-Rehman and within the limits of police station Mathra. In consequence of the trial, the learned Additional Sessions Judge, Peshawar found Qasam Jan guilty of the charge under section 302/34 P.P.C. For causing the murder of Taus Khan deceased and sentenced him to imprisonment for life and a fine of Rs,5,000 or in default further R.I. For two years with the direction that the fine if recovered shall he paid to the heirs of. The deceased by way of compensation.
2. The convict feels aggrieved of his conviction and sentence, therefore, he has preferred this appeal.
3. Briefly, the prosecution story is that on the day of occurrence Shah Nawaz complainant alongwith his father Taus Khan, and his paternal aunt Mst. Mahjabina, widow of Alamos Khan had gone to the Ziarat of Ghazi Baba and on their return to the village when they reached near the lands of Habibur Rehman situated in the vicinity of village Gara Tajak, they saw Qasam Jan (appellant), his brother Shams-ur-Rehman and Gul Rehman absconders of the same village duly armed with deadly weapons present on the thoroughfare. All the culprits opened fire ,by whigh Taus Khan was hit and died on the spot and thereafter they decamped from the scene of occurrence. The occurrence was allegedly witnessed by Shah Nawaz complainant and Mst.
Mahjabina. The motive as alleged by the prosecution is that Taus Khan deceased had some friend relations with Mst. Pari Mentaja, the wife of Shams-ur-Rehman absconding accused over which Sams-urRehman was annoyed and hence the present occurrence.
4. Sultan Akbar SI recorded report on 17-8-1986 at 11.00 A.M. At the instance of Shah Nawaz (P.W.7) and registered the case under section 302/34 P.P.C. Vide F.1.R. Ex.P.A. The I.O. Prepared the injury sheet Ex.P.M/1 and inquest report Ex.PM/2 and sent the dead body of the deceased to the mortuary under the escort of Shad Ali FC. He thereafter went to the spot, recovered blood-stained earth Ex.P.4 and empty of 30 bore Ex.P.5, vide recovery memo Ex.PB/1. He then prepared the site plan Ex.PB at the instance of the eye-witnesses. He also took into possession blood-stained shirt ex.P.1, Shalwar Ex.P.2 and Jacket Ex.P.3 of the deceased, vide memo Ex.PB/2. As the accused were absconding, therefore, he obtained warrants of arrest under section 204 Cr.P.C. And then obtained the order of proclamation. He arrested Qasam Jan accused while the other two accused namely Shamsur Rehman and Gul Rehman were declared as proclaimed offenders. The challan was submitted by him before the Court for trial on 30-8-1986.
5. The prosecution relied upon the ocular account furnished by Shah Nawaz P.W. , Mst. Mahjabina PW, medical evidence and motive. The accused denied the charge against him saying that he is innocent and falsely charged. He stated that he is related to the absconding accused and on that account has been involved in the present case. He refused to be examined on oath under section 340(2) Cr.P.C. As his own witness and also did not wish to produce evidence in defence.
6. The death of the deceased by violence is not denied. Dr. Bilal Ahmed (P.W.6) conducted the autopsy on the dead body of the ddceased on 17-8-1986 at 2.00 P.M. And found the following:- External Examination.
' A man of 50 to 55 years of age of normal built, is dead. Rigor mortus has started. Post-mortem staining is absent.
(1) Fire-arm entry wound 1" x 1" in size on left side in front of left ear adjacent to the pinna of left ear, 3" below the outer canthus of left eye.
(2) Fire-arm exit wound 3" x 4" into 1/2" in size on front of the neck 1" on left side to midline 21" above supra clavicular fossa.
(3) Fire-arm entry wound 1/4" x 1" in size on the left side of the face 1" from the angle of the mouth.
(4) Fire-arm exit wound 1" x 1/2" in size on the right side 1" below mandible two inches from midline.
(5) Fire-arm entry wound 1" x 1" in size on left side of the chest 5" from midline 3" below and lateral to left nipple.
(6) Fire-arm exit wound 1" x 1" on the right side of the back 3" from midline 6" below and medial to inferior angle of right scapula. Internal Examination.
' Skull was fractured on left side. Brain injured. Membrane injured. Thorax injured, cavity full of blood.
Left lung injured. Plurea injured. Pulmonary blood vessels injured.
' Abdomen:- Peritoneum injured. Stomach injured and contained some semi-digested food. In the opinion of this PW, the deceased had died due to severe haemorrhage and shock caused by the injuries to vital organs. The probable time between injury and death, according to this PW, was instantaneous and between death and post-mortem examination within six hours. The post- mortem report in this respect, is Ex.PM/3 which is signed by this PW.
' In cross-examination, he stated that injuries Nos.1,3 and 5 were entrance wounds, that injuries Nos.3 and 5 were of the same dimension, that according to his post-mortem examination the missile in case of injuries Nos.1 and 3 had travelled from right to left while in case of injuries Nos.5 and 6 from front to back, and that the exit of wound No,1 was corresponding to wound No,2 and that the direction of the missile in injuries Nos.1 and 2 is from up to down.
7. We have heard the learned counsel for the appellant and the learned State counsel, gone through the evidence on record and perused the impugned judgment.
8. The complainant party had no enmity with any other family, therefore, there was no reason for them to falsely implicate the accused. The occurrence had taken place in broad daylight and the question of mistaken identity also does not arise. Correct, that the A eye-witnesses are related to the deceased but mere relationship of the eye-witnesses with the deceased would not be the ground to disbelieve their evidence. The occurrence had taken place on a path leading to the graveyard from the village. The prosecution case is that on the second day of Eid, the complainant party had gone to the graveyard for offering Fateha to their dead relatives. It is customary in this part of the country that people on religious days of festivities particularly on Eid days do visit the holy shrines and graveyard to offer Fateha. It is, therefore, not surprising .That on the second day of Eid, the complainant party had gone to the graveyard and particularly when notice is taken of the fact that the occurrence in the present case took place on a path from the graveyard to the village.
9. The delay of one hour in lodging the F.I.R. Has been satisfactorily explained away by PW Shah Nawaz. The police station is at some long distance from the place of occurrence. After the occurrence, the witnesses first went to the village and informed the people. A 'Cot' was brought to the place of occurrence from where the dead body was taken to the public station. In this behalf, no exception can be taken against the conduct of the complainant party. B It is clear from the record that the witnesses were .Lay persons and never before litigated in law Courts. Moreover, the eye-witnesses are two, one male and the other female of the same family. It was, therefore, natural for them to have gone to the village and in the circumstances, the so-called delay in lodging the report, in our view, is immaterial.
10. The learned counsel for the appellant contended that the eye-witnesses in their evidence at the trial stated that the minors Siad Nawaz aged four years and Farakh Naz aged five years were taken by them to the graveyard on the day of occurrence but there is no mention of their names in the F.I.R. He, therefore, urged that if the eye-witnesses were really present on the spot and had seen the occurrence, the lodger of the F.I.R. Would have mentioned the names of the minors in the F.I.R. But as he has not mentioned their names, it, according to him, shows that the eye-witnesses were not present on the spot and involved the accused in the case after deliberations and consultations. We do not see, any force in this contention. The minors are aged four and dive and their mention in the F.I.R. Would have been of no significance whatever. It is conceded that minors of such tender age would not give evidence, therefore, their omission in the F.I.R. Was natural.
11. The learned counsel next contended that there was sugarcane crop standing in the field and also a 'Ghaz' tree near the place of occurrence. According to him, the deceased was fired upon by some unknown persons from the sugar-cane crop or behind the tree. We have not been able to appreciate this contention. As observed above, there is no evidence on the record to show that the complainant party has any enmity with any other person. There was, therefore, no chance for the complainant party to falsely charge the accused for the murder of the deceased. It is clear that the accused party wanted to do away with the life of the deceased and it was possible only if they were to fire upon him from some sure point. Reference in this behalf may be made to the site plan.
The occurrence took place on a path. The present appellant is shown at point No,4 and the deceased is shown at point No,1 while the two eye-witnesses have been shown respectively at points Nos.2 and 3. Point No,4 is visible from points Nos.2 and 3. Thus, in our view, the occurrence was witnessed by the eye-witnesses who charged the appellant alongwith the absconding accused for the murder of the deceased by firing at him and as the learned counsel for the appellant was unable to show that in the facts and circumstances of the case, the witnesses have falsely substituted the appellant, we are satisfied that the (appellant) is responsible for the murder of the deceased.
12. The learned counsel for the appellant also contended that according to the medical evidence, the deceased sustained threefire-arm injuries but according to the recovery memo, two empties of .32 bore were recovered from the place of occurrence, one on the day of occurrence and the other 2/3 days thereafter. He urged that as two empties were recovered, the offence was committed by the two absconding accused and he appellant was falsely involved in the case due to the fact that he was closely related to them. This contention is also without force. It may be observed that recovery of any number of empties would always not, be the ground to exonerate an accused from the commission of the offence. If this would be the ground, we would be laying down a law that in a case of this nature the number of accused would be responsible for the commission of offence according D to the number of the empties recovered from the spot. But it is nct so. In a criminal case, no empty is recovered from the spot and yet the accused is held responsible for the commission of offence. In other words, if the prosecution case upon the evidence is plausible and trustworthy, the recovery or non-recovery of empties will have no value.
13. In view of what has been discussed above, there is no force in this appeal which is hereby dismissed.