' NAZIR AHMAD BHATTI, J.--- Mir Rehman, appellant, herein has been convicted under section 302/307/34, P.P.C. For the murder of Danish Khan and injuring P.W.4. Inayatullah by the Additional Sessions Judge-II, Peshawar by judgment dated 4-1-1988 and sentenced to undergo imprisonment for life and a fine of Rs,5,000 or in default to suffer two years' rigorous imprisonment and the tine if realized is to be paid to the legal heirs of the deceased as compensation and to undergo rigorous imprisonment for three years respectively. By the appeal in hand the convict has challenged his conviction and sentence. Muhammad Ilyas son of the deceased has also filed a revision petition for enhancement of the sentence of the accused to death. This petition has been registered under No,6 of 1988. Judgment in the appeal in hand will also dispose of the said revision petition.
2. Complainant Danish Khan was taken in injured condition to Casualty Ward of the Lady Reading Hospital on 6-7-1986 where at 17-45 hours he reported that he and his sons Muhammad Ilyas and Abdul Hakim and Riaz, Yaqoob and Inayatullah were going to village Surezai from Kandi Babu Chet Bala, Badaber and when at 16-00 hours they reached near Sra Zmaka' they saw appellant Mir Rehman and his co-accused Idrees Khan sitting there armed with rifles. On seeing the complainant party both the said accused started firing at the complainant party whereby the complainant was hit and injured on the right chest and back, Inayatullah was also injured. The motive for the offence was previous blood feud enmity between the parties. This report of the complainant Danish Khan was also attested by P.W.3 Dr. Fazlur Rehman. A Murasila was sent to Police Station Badaber where F.I.R. No,244 was recorded on the same day and the appellant and his co-accused were accused under section 307/34, P.P.C. Danish Khan complainant succumbed to his injuries at 19-45 hours on the same day in the hospital and the charge under section 302, P.P.C.
Was also added against the accused. After the occurrence both the accused absconded. However, the appellant was arrested on 27-8-1986 whereas his co-accused Idrees Khan is still absconding.
After investigation the appellant was sent up for trial before the Additional Sessions Judge-II, Peshawar. The learned trial Judge charged the appellant under section 302/34, P.P.C. For committing the murder of complainant Danish Khan and under section 307/34, P.P.C. For attempting at the life of Inayatullah and for ineffectively firing at Muhammad Ilyas and Abdul Hakim. The appellant pleaded not guilty and claimed trial. The State produced 7 witnesses in proof of the prosecution case out of whom P.W.4 Inayatullah and P.W.5 Noor Muhammad are eye- witnesses of the occurrence. The report made by deceased Danish Khan was treated as dying declaration.
3. P.W.3 Dr. Fazlur Reitman had attended complainant Danish Khan at 17-45 hours on 6-7-1986 who was brought injured to the hospital and he found the following two injuries on his person:--
(1) Entry wound, it was in 3rd right interior intercostal space mid-clavicle line (right chest).
(2) Exit wound, it was in 8th posterior intercostal space, posterior axilary line (left chest).
' According to the opinion of the doctor the injuries were caused by fire-arm within one hour. The complainant died on the same day at 19-45 hours and the same doctor performed post-mortem examination on his dead body on the next day at 8-20 hours. He confirmed the external injuries and on internal examination found both lungs with small vessels injured. According to the opinion of the doctor Danish died due to hemorrhage and shock with respiratory distress. The same doctor examined P.W.4 Inayatullah on 6-7-1986 at 18-15 hours and found one fire-arm entry wound on the right medial side of upper thigh with an exit wound about 1" lacerated at right thigh posterior lower buttock. The injury was caused within 1-1/2 hours and was found to be simple and the patient was discharged after treatment. In cross-examination the doctor admitted that the exit wound in case of deceased Danish was at a lower level than its entrance and the direction of travelling of missile was from up to down. However, the doctor could not exclude the possibility of straight travelling of missile as the difference in level between the entrance and exit was not much. He has further stated that he had first examined the injured and had then endorsed the Murasila on the basis of which the F.I.R. Was recorded. He denied the suggestion that Danish lost mental capacity after the lapse of 40 minutes of receiving the injury. P.W.4 Inayatullah has stated that deceased Danish was the husband of his paternal aunt and the appellant was Tarboor of deceased. P.W.5 Noor Muhammad was also related to the deceased. Both these witnesses stated at the trial that they were accompanying the deceased, Muhammad Riaz, Muhammad Ilyas and Abdul Hakim to village Surezai at about 4-00 p.m. And when they reached the land known as Sra Zmaka' and were passing on the Pulla they saw the appellant and the absconder Idrees Khan sitting towards their right. They have further stated that on seeing the complainant party both the appellant and the absconding accused started firing at them with their rifles with which Danish Khan and Inayatullah were hit and injured. They have further stated that both the injured were taken to the hospital. P.W.4 Inayatullah has further stated that Danish Khan was alive and could talk and himself lodged the report in the Casualty Ward. This witness has further stated that he was also examined by the doctor. P.W.4 Inayatullah has further stated in cross-examination that they were fired at from the right side from a distance of about 50/60 paces. About the motive P.W.4 Inayatullah disclosed that Libas Khan son of deceased Danish was murdered for which Bahadur Khan and Nasrullah were charged out of whom the former is the husband of sister and the latter is the brother of the appellant and the aceused party in the present case were pressing the deceased to effect a compromise. However, statement of P.W.4 Inayatullah under section 161, Cr.P.C. Was recorded on 23-8-1986.
4. The site plan Exh.P.B./3 was prepared by P.W.6 Ihsanullah Khan S.H.O. Police Station Badaber with the assistance of the eye-witnesses. The perusal of the site plan would disclose that the complainant party were proceeding on the bank of the water channel towards the north at points Nos. 1 to 6, whereas the appellant and his absconding co-accused Idrees were present at points Nos. 7 and 8 towards the south on the path shown as 'A' and 'B'. The distance between both the parties was 72-77 paces. The injured Danish was present at point No,1 at the time of occurrence which is a field and three feet lower than the other lands. The site plan further shows that there was a three feet high wall adjacent to the path shown as 'A' and 'B'.
5. The evidence produced by the State in the case consisted of the dying declaration of deceased Danish Khan and the ocular testimony of Inayatullah injured P.W.4 and Noor Muhammad P.W.S. Since complainant Danish and P.W.4 Inayatullah were injured, their presence at the spot at the time of occurrence cannot be ruled out. It has also come in evidence that complainant Danish was in possession of his senses when he reported the occurrence in the hospital in the presence of P.W.3, Dr. Fazlur Rehman and the latter had confirmed the fact that at the relevant time Danish Khan was in possession of his senses and had himself disclosed the occurrence. The dying declaration further finds support from the medical evidence in so far as the injury is concerned. The dying declaration discloses that there were two injuries on the person of Danish and the doctor has clearly stated that one was entrance wound and the other was the exit of the missile. The report made by the deceased, when he was alive, is a very straight and simple narration of the occurrence and there is neither any ambiguity therein nor any sign of prompting for making out any false case.
6, It was contended by the learned counsel for the appellant that it is admitted that since the assailants had fired from behind a wall, they could not be identified by the complainant party.
However, this assertion cannot be accepted for the reason that at the time of firing the assailants must have stood up because they could not resort to firing sitting behind a three feet high wall. In the same context the learned counsel further contended that there was distance of more than 150 feet between both the parties and the identity of the assailants by the complainant party was impossible or highly improbable. But this contention is also not acceptable because the occurrence took place at day time at 16-00 hours in the month of July when there is ordinarily snfilcient sunshine and people can be identified from a far away distance.
6. It was also contended by the learned counsel for the appellant that injured Inayatullah was examined by the Investigating Officer more than a month and a half after the occurrence. His contention is that the occurrence took place on 6-7-1986 whereas Inayatullah was examined on 23-8-1986 which showed that injured Inayatullah was not supporting the version of the occurrence as disclosed in the dying declaration. We have considered this aspect of the matter very minutely but we find from the evidence that injured Inayatullah had stated at the trial that he had made himself available to the Investigating Officer for recording his statement but it was the latter who was postponing the matter. We, therefore, do not find any fault on the part of the injured Inayatullah in so far as the delay in recording his police statement is concerned.
7. The learned counsel for the appellant then contended that no empty of any fire-arm or any other incriminating evidence was found from the spot and that there was an element of doubt in the occurrence. The Investigating Officer had found blood-stained earth from the place where Danish'
Khan and Inayatullah were injured which would clearly indicate that they were attacked when they were present at that place.
8. The non-availability of any empty of any fire-arm would not negate the presence of the assailants at points Nos. 7 and 8. It has come in evidence that there was water channel situate in the fields where the complainant party were present at the time of occurrence. It is common knowledge that people do travel on the banks of a water channel situate in the fields and the bank is generally at a higher level than the fields. This would also show that Danish Khan might be travelling in the field when he was hit and this fact would explain level of the entrance and exit wounds at being higher and lower levels.
9. The learned counsel for the appellant further contended that since there was previous blood feud enmity between the parties and both the eye-witnesses are related to the deceased, their evidence was not worthy of any-credit as they were not only interested witnesses but were also inimical to the appellant. This contention is only partially true. No doubt both the eye-witnesses are'related inter se and were also related to deceased Danish Khan and there was also previous blood feud enmity between them but the presence of P.W.4 Inayatullah is clearly established at the spot as he also sustained injuries alongwith the deceased at the spot and during the said occurrence.
10. There is one more important aspect of the case. The absconding co-accused Idrees Khan is neither related to the appellant nor he has any previous enmity with the complainant party and he has been charged for the commission of the offence alongwith the appellant. No reason has been brought on the record to show that a false charge was laid against him. He could not be falsely charged for the simple reason that there was neither any motive nor any animosity with the complainant party for laying a false charge against the absconding co-accused.
11. The State had successfully proved the guilt of the appellant beyond any reasonable doubt. There was more than sufficient evidence available on the record to connect the appellant with the commission of the offence of effectively E attempting at the lives of Danish Khan and P.W.4 Inayatullah and ineffectively attempting at the lives of the other witnesses and the injury caused to complainant Danish Khan subsequently proved fatal and he succumbed to it about three hours later. We will, therefore, uphold the conviction of the appellant under section 302/307/34, P.P.C. In so far as the sentence is concerned we will also uphold the same. No doubt there was previous blood feud enmity between the parties and it also appeared to be a premeditated action on the part of the appellant but since no evidence was available on the record to prove as by whose shot separately out of the two accused the deceased and P.W.4 Inayatullah were injured, the learned trial Judge, therefore, appropriately awarded the sentence of imprisonment for life to the appellant instead of death for the murder of Danish Khan. We neither find any merit in the appeal in hand nor in the revision petition. Both are dismissed.