1. ANWARUL HAQ, J.-The appellant Muqaddar Shah was tried, along with his step-father Abdul Ghaffar and his uterine brother Shah Zaman, by the learned Sessions Judge of Peshawar for the murder of their co-villager Saifullah Khan, and the attempted murder of his nephew Akbar Khan (P.
2. W. 9). All the three accused were convicted uqder sections 302 and 307 of the Pakistan Penal Code read with section 34 thereof. On the first count, the appellant and his brother Shah Zaman were sentenced to death whereas their father Abdul Ghaffar was sentenced to undergo transportation for life. On the second count each of them was sentenced to undergo rigorgus imprisonment for five years and to pay a fine of Rs. 500.00 or in default to undergo further rigorous imprisonment for one year. On appeal, a Division Bench of the Peshawar High Court acquitted Shah Zaman and Abdul Ghaffar, but maintained the convictions and sentences recorded against the appellant on both the counts.
3. Leave to appeal was granted by this Court on the ground that, in view of several material discrepancies in the statements made by the two eye--witnesses during the investigation and at the trial, the evidence needed to be scrutinised and re-examined to see whether the conviction of the appellant was in accordance with the principles of safe administration of criminal justice.
4. According to the p'. I. R., lodged by Akbar Khan (P. W. 9) at Police Station Mitani, at 8-30 a.m., on 11- 9-68, the incident occurred that morning when the first informant, his maternal uncle, Saifullah Khan deceased and their servant or tenant Abdul Qayyum, were irrigating their lands. They were interrupted by the three accused persons, who were all armed with Topaks. Abdul Ghaffar wanted to know why the complainant party were using irrigation water which had been purchased by him from P. W. Akbar Khan's father Mahmood Khan for a sum of Rs. 800. The deceased and his companions replied that it was their turn of water and, therefore, they were going to use the same.
5. On hearing this reply Abdul Ghafar ordered his companions to fire at the complainant party.
6. Thereupon, the appellant Muqaddar Shah fired at the deceased and Shah Zaman fired at Akbar Khan, hitting him on his right upper arm and on the front of the chest. Saifullah died at the spot and the assailants managed to escape. The incident was witnessed by Abdul Qayyum and Muqaddar Shah son of Munawar Shah, who appeared at the trial as P. W.
10. Akbar Khan added that the dispute over irrigation water had been going on between them for some time and had been previously agitated before the civil Court, the Union Council and the village elders.
7. The autopsy of the dead body, as conducted by Dr. Nawab Hassan Khan. Showed that the deceased had sustained about 125 small entry wounds, each about 1' x,1', situated on the right side of the neck, the front of the neck and upper part of the chest. Slight discolouration due to gun powder was present around the injuries. The medical examination of the injured Akbar Khan was conducted by Dr. Nazir Ahmad and he was found to have sustained two entrance wounds, each 1 /8' in diameter, one near the .Left nipple and the other near the right nipple; and a single pellet hole of the same size on the right upper arm. Both the injuries were simple in nature and had been caused by a fire-arm.
8. The accused Abdul Ghafi'ar was arrested on the same day, and Shah Zaman on the 26th of October 1968, but the appellant absconded and was apprehended nearly nine months later on the 25th of June 1969.
9. At the trial all the three pleaded not guilty, and attributed the case to enmity. Muqaddar Shah explained his absence for nine months by saying that he had gone to the Punjab in search of livelihood. They did not, however, produce any evidence in defence.
10. The prosecution produced the first informant Akbar Khan (P. W. 9) and his cousin Muqaddar Shah (P. W. 10) in support of its case. The third eye-- witness, Abdul Qayyum, named in the F. I. R. Was given up by the Public Prosecutor on the ground that he had been won over. We have examined the statements made by the two eye-witnesses at the trial, and we find that it is indeed correct that they have departed in several respects from their previous statements. For instance, in the F. I.
11. R. Akbar Khan had stated that all the three accused were armed with Topaks, while at the trial he took up the position that Abdul Ghaffar was empty-handed and Shah Zaman was armed with a 5 shot rifle. We have already referred to the medical evidence, which did not disclose any bullet injury on Akbar Khan. Akbar Khan also made another improvement at tile trial by stating that the appellant Muqaddar Shah also fired at him after he had been hit by Shah Zairian. No such statement was made by trim in the F.
1. R. The witness bluqaddar Shah asserted at the trial that both the appellant and Shah Zaman were armed with shot-guns,. Although the third accused Abdul Ghaffar was empty-handed.
12. It was on account of these discrepancies as to the weapons carried by Abdul Ghafifar and Shah Zaman and the injuries said to have been inflicted by them that the High Court gave the benefit of doubt to both these accused persons. We are, however, satisfied that these discrepancies do not in any manner affect the prosecution case against the appellant. It must be remembered that the first information report was made by Akbar Khali without any delay, and at the earliest opportunity the fatal shot was ascribed to the appellant. It has not been shown that Akbar Khan had any, reason to falsely implicate the appellant in the matter of firing the fatal shut at the deceased Saifullah Khan. The evidence of both the eye-witnesses is throughout consistent in so far as the appellant is concerned. It was conceded before us by-the learned counsel for the appellant that the word Topak, as used in the F. I. R., is commonly employed in this part of the country to describe both a gun and a rifle. There was thus no contradiction as regards the nature of the weapon carried and used by the appellant at the relevant time.
13. It was strenuously contended by the learned counsel for the appellant that in fact this is a case of an unwitnessed crime and the appellant and his rnmnanin11fi were palely implicated after the dead body of Saifullah Khan was discovered in the fields on the morning of the 11th of September 1968. In support submission the learned counsel contended that Akbar Khan had deliberately suffered two simple injuries on his person so as to make it appear that he was present at the time of the shooting.
14. We regret we cannot accept this submission. The injuries found on .The person of Akbar Khan have not been shown to be self-suffered. No question was put to Dr. Nazir Ahmad Khan in this behalf although he was cross-examined twice. We also find that the two entrance wounds being on the chest of Akbar Khan, it is difficult to imagine that lie voluntarily undertook such a dangerous venture simply to make it appear that he was an eye-witness of the crime. We are, therefore, satisfied that Akbar Khan was indeed present at the spot and received these injuries during the incident.
15. Another important factor in this behalf is that the post-mortem examina--petition showed that the stomach of the deceased was full of food material (bread) which .Was in early stages of digestion.
16. If the deceased had been killed during the hours of darkness, the condition of the stomach would have been different. Further, the death was formed to have occurred between 4 to 6 hours of the post-mortem examination which was conducted on 12-30 p.m. On the day of the incident. This would show that the death occurred between 6 a.m. To 8 a.m. On that day. These timings would rule, out the possibility of the death having occurred during the hours of darkness. It seems to us, therefore, that this cannot be, described as a case of an unwitnessed crime.
17. For the foregoing reasons we are satisfied that the appellant has been rightly convicted under section 302, P. P. C. For causing the death of Saifullah Khan. However, we are of the view that the appellant's conviction under section 307, P. P. C. Cannot be sustained for the reason that in the first information report Akbar Khan had not attributed his own injuries to the appellant. The benefit of this omission must be given to the appellant. As a result, we would set aside his conviction and sentence under section 307, P. P. C.
18. The learned counsel finally submitted that as only one shot was fired over a dispute concerning irrigation, the extreme penalty was not called for in this case. We do not see any merit, in this submission for the reason that the appellant has clearly acted in a cruel and wanton manner in killing outright an unarmed person over a dispute which had been going on between the parties for some time. The evidence does not disclose anything in the nature of mitigating circumstances in favour of the appellant.
19. For the foregoing reasons the conviction of the appellant under section 302, C. P. C. And the sentence of death awarded to him on this count are maintained. The appeal is dismissed, except to the extent that the conviction and sentence of the appellant under section 307 of the Pakistan Penal Code are set aside and he is acquitted of this charge.