' ALI HUSSAIN QAZILBASH, J.--Abdur Raziq and his brother-in-law Abdul Manan, residents of Mingora, have been convicted by the learned Sessions Judge, Swat, vide his judgment dated 30-8-1978, under sections 302 and 307 (two counts) read with section 34, P.P.C. And sentenced to life imprisonment under section 302, P.P.C. And one year's R.I. Under section 307, P.P.C. With a fine of Rs,2,000 each or in default to six months' further R.I., for the murder of Muhammad Younis and injuries to the prosecution witnesses. Their appeal before the High Court failed through the impugned judgment.
2. The prosecution case is that Muhammad Younis deceased and Abdul Wadood and Tahir Shah P.Ws. Were friends. Most of the time they moved together. On 7-10-1976 at evening time they went to the house of Abdur Raziq as they knew that he used to keep liquor. Abdur Raziq and Abdul Manan lived in adjacent houses. The deceased called Abdur Raziq and asked him for liquor which was accordingly provided but as it did not taste good it was returned and Abdur Raziq was asked to bring a better quality liquor but he refused to do so and said that he would not sell liquor to 'dalagan' like them. On this a scuffle took place and the deceased party was given beating by kicks and fists injuring P.W. Abdul Wadood on his nose which started bleeding. In the scuffle Abdul Wadood lost three buttons of his shirt which he was wearing. They were separated.The deceased and his companions left the baithak of Abdur Raziq and went to the side of 'khawar' where Abdul Wadood P.W. Sat down and washed his nose. Muhammad Younis deceased and Tahir Shah P.W.
Also sat down near him. In the meantime the accused appeared duly armed with shotguns. They were also accompanied by Muhammad Roshan (acquitted accused) empty-handed. On seeing them, Muhammad Younis deceased got up and told Abdur Raziq to forget about the past but Abdur Raziq who was still smouldering with anger fired at him with his shotgun which hit the deceased. His other companion Abdul Manan then fired at the deceased which also hit him and felled him down. Abdul Wadood and Tahir Shah P.Ws. Tried to pick up the deceased but Abdur Raziq again fired with which Tahir Shah P.W. Was injured. The accused then fled from the scene, the P.Ws. Left the dead body of the deceased at the spot and Abdul Wadood P.W. Proceeded to the police station for report.
3. Amirpayo Khan, S.H.O. Police Station Mingora, was on gusht when he came to know of the incident and proceeded to the spot. On reaching there he took down the report of Abdul Wadood P.W. Which is Exh.P.A./1. The dead body was lying there where his injury sheet and inquest report was prepared. The site plan was also prepared. The police officer during spot inspection secured blood vide memo. Exh. P.W.2/3. He also recovered four cardboard discs Exh. P.6. In the meanwhile some relations of the deceased arrived at the spot. They demanded that the dead body should not be sent for post-mortem examination and took the same. However, the shirt and the bunyan of the deceased having blood stains were taken into possession vide memo. Exh. P.W.5/5. The investigating officer then went to the baithak of Abdur Raziq. He found some blood outside the baithak and picked it up vide memo. Exh. P.W.6/6. He also found three buttons of the shirt inside the baithak which were taken over through the relevant memo. The investigating officer then conducted the house search of the other accused and recovered from there a shotgun (Exh.P.2/5).
The investigating officer also took into possession the shirt of Abdul Wadood P.W. And prepared his injury sheet and sent him to the hospital for medical examination. Abdur Raziq was taken into custody the following morning and he led the police to his house and produced before it his gun Exh. P.7 alongwith its licence which were taken into possession. An empty (Exh.P.9) alongwith three live cartridges was also produced which were sealed vide memo. Exh. P.W.5/6. Tahir Shah P.W. Also appeared before the investigating officer on the following morning, his injury sheet Exh. P.W.5/10 was prepared and he was referred to the hospital. His shirt and shalwar which had pellet marks were taken into possession. The blood-stained clothes of the deceased as well as the weapons recovered from Abdur Raziq and Abdul Manan were sent for examination and the result is in positive.
4. After the completion of the investigation, the accused were put to trial, where the prosecution in support of its case produced as many as eight witnesses. Abdur Raziq appellant in his statement under section 342, Cr.P.C, completely denied the occurrence and the production of shotgun Exh.P.7 with its licence Ex.P.8, an empty Exh.P.9 and three live cartridges. He, however, admitted that Abdul Manan and Roshan Khan are his brothers-in-law. He pleaded innocence and deposed that he has been falsely implicated. Abdul Manan appellant also denied the occurrence and the recovery of the shotgun Exh.P.W.2/5. In reply to a question about the visit of the deceased alongwith Abdul Wadood and Tahir Shah P.Ws. To the baithak of Abdur Raziq and their demand for liquor he deposed: "At 9 p.m. On the night of occurrence the deceased alongwith P.W. Tahir Shah, Abdul Wadood and Zahir Shah brother of P.W. Tahir Shah, came to the house of accused Abdur Raziq. The latter was not in the house. They demanded wine but were told by the wife of accused Abdur Raziq that there was no wine. They were drunk. They intended to do mischief. The wife of accused Abdur Raziq, who is our sister shouted to us for help. I was in the house alongwith my brother co-accused Muhammad Roshan. On her shout we rushed out.They were holding our sister whom we rescued and got her released. They thereafter left from there and proceeded towards the Khawar. Later on we learnt that the deceased had been murdered. We have no hand in the murder of the deceased.
The deceased belonged to a rich family while we are poor."
5. The trial, however, culminated in the conviction of the appellants as aforesaid but Muhammad Roshan was acquitted, as per judgment of the Sessions Judge, Swat, dated 30-8-1978.
6. The appeal having been dismissed by the High Court on 15th June, 1980, the appellants have approached this Court where leave has been granted to examine the evidence.
7. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below. The learned counsel for the appellants has not been able to dig out any material which could create doubt about the version of the incident given by the eye-witnesses. On the other hand their evidence is not only consistent in accusing the appellants for the commission of the crime but is also supported by the report of the Fire-arms Expert. In the circumstances the order of conviction and sentence of the appellants is well-founded and is hereby maintained.
8. The perusal of the judgments of the Courts below has, however, revealed that the appellants have not been given the benefit of the provision of section 382-B, Cr.P.C. We think that it would be in the fitness of things if this benefit is extended to them.
9. As a result, the appeal fails and is dismissed but the benefit of the provision of section 382-B, Cr.P.C. Is allowed to the appellants.