NAZIR AHMED BHATTI, J.---- Sher Ali and Qaimat Wali appellants have been convicted under section 302/34, P.P.C. By learned Sessions Judge, Mardan on 19-8-1989 and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000 each or suffer rigorous imprisonment for two years on two counts. Half of the fine if realized has to be paid as compensation to the heirs of deceased. By the appeal in hand they have challenged their conviction and sentences.
Complainant has also filed Criminal Revision No.75 of 1989 for enhancement of the sentences.
Judgment in the appeal in hand will also dispose of the aforesaid revision petition.
2. Complainant Gharib Dali his brother Kajir Wali, his cousin Faqir DA Bakhmal Wali, Akhtar Wail, and Hassan Wali of the complainant party and Sher Ali, Qaimat Wali appellants and Nazir Wali and Zamin Wali of the accused party were sitting in the Hujra on 25-12-1986. Since a dispute about the Hujra had arisen between the parties 2/3 days ago, they were talking about the same when tempers rose high at about 15-00 hours and appellant Sher Ali and Qaimat Wali appellants fired at Kajir Wali and accused Nazir Dali and Zamin Dali fired at Faqir Dali. Kajir Dali and Faqir Dali were both hit and died at the spot. Deceased Kajir Dali was in possession of a .7 mm rifle which was also taken away by appellant Sher Ali. Gharib Dali complainant took the dead bodies of the two deceased to Police Station, Katlang, where he recorded F.I.R. No.334 at 16-40 hours. Appellant Sher Ali was arrested on 17-1-1987 and appellant Qaimat Wali was arrested on 17-6-1987. The other two co-accused Nazir Dali and Zamin Dali are still absconders. After investigation both the appellants were sent up for trial before the learned Sessions Judge, Mardan, where they were charged under section 302/34, P.P.C. Appellant Sher Ali was also charged under section 404, P.P.C. Both of them pleaded not guilty and claimed trial.
3. The State produced 12 witnesses in proof of the prosecution case. P.W.5 Dr. Nisar Muhammad conducted autopsy on the dead body of Faqir Dali on 25-12-1986 at 8-00 p.m. And found one fire- arm wound of entrance on chest left side at interior axillary line at the level of 5th intercostal space size 1/2" x 1/3" and a corresponding exit wound on chest left side 1/2" to the left of sternum at the level of 5th intercostal space. The doctor found thorasix walls, pleurae, left lung, heart, blood vessels injured Ad 4th and 5th ribs on left side fractured. The death occurred instantaneously due to injury to vital organs. On the same day the said doctor conducted autopsy on the dead body of Kajir Wali at 6-00 p.m. And found the following injuries on his dead body:-- (1)Fire-arm wound of entrance on chest left side 2" x to the left of sternum 3" below the clavical 1/3" x 1/3".
(2)Fire-arm wound of exit on back right side 2-1/2" to the right of spinal column at the level of dorsal 5th vertebra, 1/2" x 1/2".
(3)Fire-arm gutter wound on back left side at the lateral border of the left scapular region starting at the top of the shoulder.
(4)Fire-arm wound of entrance on right forearm 5" below the elbow and interior side 1/3" x 1/3".
(5)Fire-arm wound of exit on right fore-arm 5" below the right elbow joint, 1/2" x 1/3".
The doctor found thorax walls, ribs, cartillages, pleurae both lungs, peritoneum, heart and blood vessels injured. Death occurred instantaneously due to injuries of vital organs.
4. 3 persons, P.W.9 complainant Gharib DA P.W.10 Bakhmal Wali and Hassan Wali, have been mentioned as witnesses in the F.I.R. But at the time of trial only two were produced, P.W.9 Gharib Dah complainant and P.W.10 Bakhmal Wali. P.W.9 Gharib Dali complainant has stated that both the parties were present in the Hujra and talking to each other when at about 3-00 p.m. Both the deceased and the accused started altercation with each other and appellants Sher Ali and Qaimat Wali started firing at Kajir Wali deceased and absconding accused Zamin Dali and Nazir Dali started firing at deceased Faqir Dali. Both the victims were injured as a result of the said firing and died at the spot. This witness has further stated that appellant Sher Ali also took away .7 mm rifle of deceased Kajir Dali He has also narrated the same motive which has been disclosed in the F.I.R. He also deposed that they had to wait for some time for a Datsun for transporting the dead bodies to the police station, where he lodged the F.I.R. P.W.10 Bakhmal Wali has corroborated testimony of the complainant in all respects.
5. The Investigating Officer recovered two empties of .7 mm and one spent bullet from the spot. He also took into possession a Suzuki Pick-up belonging to appellant Sher Ali from a field near the place of occurrence.
6. The learned counsel for the appellants has contended that there is an unexplained delay of more than one hour in reporting the occurrence at the police station. His contention is that the dead bodies were taken in a vehicle but still the report was lodged with a delay of one hour and 40 minutes. We have given our serious thought to this contention of the learned counsel for the appellants but we are unable to agree with him for the reason that the occurrence took place suddenly, the complainant party had to make arrangement of the vehicle to take the dead bodies to the police station which is at a distance of 20/21 Knrs. From the place of occurrence. All this must have taken time and there does not appear to be any delay on the part of the complainant party to make the report. Even otherwise the delay in making the report is immaterial for the reason that it was a day time and both the parties were present in the Hujra and there was no question of false charge or to fabricate a false prosecution story. The complainant party has not gained any advantage in making a report after an hour and 40 minutes.
7. The learned counsel for the appellants has further contended that there was only one injury on the person of Kajir Wali for which two persons have been charged and that excluding the gutter wound on the body of Faqir Wali the other two wounds could also be caused by one person and that at least two persons have been charged falsely. We have also considered this aspect of the matter very carefully but we are unable to accept the contention of the learned counsel for the appellants. Except the previous oral altercation between the parties there was no serious enmity of any kind between the parties which could be the reason for a false charge. The presence of only one injury on the body of the deceased Kajir Wali would not mean that only one person had fired at him. It is quite possible that some shots might have missed their target. We do not find any lacuna or any contradiction whatsoever in the testimony of both the eye-witnesses in order to accept the contention of the learned counsel for the appellants. It is also noteworthy that the learned counsel for the appellants has not pointed out any discrepancy or any contradictions in the testimony of both the eye-witnesses. He has further contended that since only two empties were recovered from the spot, it raised a presumption that only two shots were fired. We also cannot accept this argument because the number of empties found at the spot would not mean that the same number of shots were fired.
8. Appellant Sher Ali took up the plea of alibi as being in Islamabad during the days of occurrence but he did riot make any serious effort to prove the same. In their statements recorded under section 342, Cr.P.C. Both the appellants denied the commission of the offence and stated that they have been falsely charged on account of family ill will and that the deceased had many other enmities in the village. However, they did not appear as witnesses on oath to disprove the charge levelled against them.
9. No doubt, both the eye-witnesses are related to the deceased but there was no previous enmity between the parties. As such, their evidence, which does not suffer from any infirmity or contradiction, has to be taken at its intrinsic value. The occurrence took place in broad daylight.
Both the parties were present in the Hujra and talking to each other and with a sudden flare up of tempers the occurrence took place. The presence of the witnesses at the spot at the time of occurrence is also established. The offence, with which the appellants have been charged, was proved against them beyond any doubt whatsoever. Although the occurrence took place suddenly and without any premeditation yet both the appellants started firing at deceased Kajir Dali and they both are equally guilty of the offence with which they have been charged for committing the same in furtherance of their common intention. We will, therefore, uphold the conviction and sentences of both the appellants on two counts under section 302/34, P.P.C. And also the conviction of appellant Sher Ali under section 404, P.P.C. In so far as the question of sentence is concerned, since the occurrence took place without any premeditation, the sentences awarded by the learned Sessions Judge are commensurate with the offence committed by the appellants. The appeal and the revision are both dismissed.