1. ' WALT MUHAMMAD KHAN, J.---Saiful Malook and his son Rasta Baz Khan convict/appellant/petitioner have, through Criminal Appeal No,30- P/90 and Criminal Petition for Leave to Appeal ,No,51-P/90, called in question the judgment dated 14-5-1990 passed by the Peshawar High Court (Circuit bench D.I.Khan), whereby their appeal against their conviction passed by the Additional Sessions Judge, Bannu vide order dated 30-1-1989, was dismissed and on the acceptance of Revision Petition filed by the complainant Israr Ali PW-4 the sentence of life imprisonment imposed upon Saiful Malook appellant was converted into death sentence. Israr Ali complainant PW-4 has filed Criminal Petition for Leave to Appeal No,53-P/90 whereby leave has been sought for enhancement of sentence imposed upon accused/petitioner Rasta Baz Khan. This single judgment will dispose of appeal and both the petitions together.
2. ' The facts of the case, in a nutshell, are that on 25-7-1985 at 2100 hours the complainant Israr Ali- PW-4 alongwith his father Guldar Ali PW (since dead) and his brother Nazar Ali deceased, after offering their Khuftan prayers in the nearby mosque were sitting in the Chowk (open space) and were talking to each other, when Saiful Malook appellant duly armed with a topak and his son Rasta Baz Khan petitioner armed with a .12 bore pistol came there and the former fired at the deceased as a result of which he was hit and fell down on the ground followed by Rasta Baz Khan petitioner firing a shot with his pistol at the deceased but the PWs could not be certain whether it proved effective or not and thereafter both the accused decamped. The deceased, then injured, was taken to the District HQ Hospital, Bannu while the complainant went to the police station to lodge a report. The scene of occurrence had sufficient light on account of the electric bulb fixed on the nearby wall. Asghar Ali SHO who was present in the police station registered the case at the instance of Israr Ali complainant and thereafter went to the spot for investigation of the case.
3. Before the arrival of the complainant he had come to know that the occurrence had taken place and the injured had been removed to the hospital, therefore, he had already deputed Jan Muhammad ASI for doing the needful at the hospital, who on reaching the hospital prepared the injury sheet Exh.PC and inquest report Exh.PD of the deceased. On the arrival of the SHO on the spot, Jan Muhammad also joined him in the investigation and in his presence electric bulb of 100 Watt fixed in the verandah of the mosque and another bulb of 200-W fixed on the back side of the house of complainant were lit which were taken into possession vide memo Exh.PE, witnessed by Jan Muhammad ASI. Two cardboards Exh.P3 were also recovered from the spot vide recovery memo PF in the presence of the said witness. Both the accused were not available in their houses and warrants of arrest under section 204, Cr.P.C. Exhs.PJ/1 and PJ/1 and proclamations Exhs.PJ1/2 and PJ1/3 were issued against them and served through Taj Ali PW-2 and in spite whereof when the accused/appellant/petitioner did not surrender to face trial, proceedings under section 512, Cr.P.C.
4. Were initiated against them in which the statement of Guldar Ali PW was recorded and on account of his natural death before the commencement of the trial, the same was relied upon by the trial Court in support of the prosecution. The accused/appellant Saiful Malook was arrested on 9-6-1987 and Rasta Baz Khan accused/petitioner on 4-9-1986. After their arrest and necessary investigation in the case challan against them was submitted in the Court of Ilaqa Magistrate who, in his turn, sent them up for trial before the Court of Session. The learned Additional Sessions Judge framed necessary charge-sheet against them, recorded the prosecution evidence in the case, recorded the statement of the accused under section 342, Cr.P.C. And on the appraisal thereof found both the accused/appellant/ petitioner guilty .For the murder of Nazar Ali deceased in furtherance of their common intention and by convicting them under section 302/34, P.P.C. Sentenced both of them to life imprisonment and fine of Rs,10,000 or in default further 3 years' R.I. Each. The fine, on recovery, was to be paid to the heirs of the deceased. The appeal filed by them and the revision filed by the complainant Israr Ali were disposed of through the impugned order.
5. ' We have heard Mr. S. Akhtar Munir, Advocate, for the appellant and petitioner; Mian Shakirullah Jan, Advocate-on-Record, for the complainant; Mr. M. Azam Khan, Additional Advocate-General, N.-W.F.P., for the State; and have perused the record of the case. The learned counsel for the appellant/petitioner argued with vehemence that the occurrence took place at Khuftan time when the identification of the appellant/petitioner was not possible; that there was enmity between the parties and the witnesses being interested could not be relied upon in the absence of any strong independent corroboration; that the recovery of bulbs from the spot is doubtful as no independent witness of the locality has been produced in support of the same; that no blood was found at the spot which creates doubts about the venue of occurrence; that the medical evidence did not support the prosecution case inasmuch as the doctor found charring marks on the person of the deceased whereas the distances of the deceased and the assailants shown in the site plan at the time of firing are beyond charring range; and finally, that the injuries on the person of the deceased are the result of only one shot fired from a gun and there being no corroboration of recovery of more cardboards, bullets etc. From the spot, the participation of one of the accused is not free from doubt. The learned counsel for the complainant and the Additional Advocate-General, on the other hand, controverted these submissions and submitted that the parties are related to each other; that the accused/appellant/petitioner are directly charged in the F.I.R. Which was lodged without any loss of time; that the recovery of cardboard from the spot and the two bulbs still lit on the places wherefrom they were taken into possession by I.O. Immediately on his arrival on the spot are sufficient corroboration of the eye-witness account and finally, the abscondence of the accused for sufficiently long time go a long way to point to the guilt of the accused.
6. ' The venue of occurrence is close to the house of the complainant and is also near the house of the accused and mosque. It was the month of July and it is customary in villages that people after offering their Khuftan prayers sit in the open spaces, commonly known as 'hujras' during the summer, therefore, the presence of Israr Ali complainant and Guldar Ali PW at the time of occurrence is natural. The I.O. Found bulbs of 100-W Exh.P1 lit on the verandah of mosque and 200- W on the back side of the house of the complainant Exh.P2 when he visited the spot soon after the occurrence. He recovered two cardboards of .12 bore gun from the spot on the following morning.
7. The doctor extracted 5 pellets from the body of the deceased and sent them through Barkatullah FC in a sealed phial Exh.P5 which were produced to the I.O. And taken into possession. The very fact that the two accused were shown to be armed with gun and 12 bore pistol in the F.I.R. By Israr Ali PW establishes his presence at the spot as his version was corroborated from the recovery of two cardboards from the spot and the extraction of pellets from the dead body of the deceased by Dr. Abdur Rashid Khan PW-6. The strong motive for the accused/appellant/petitioner to do away with the life of the deceased is that a case under section 307, P.P.C. Was pending trial between the parties in which Guldar Ali PW (since dead), Nazar Ali deceased and Zafar Ali brother of the deceased were charged for causing injuries to Saiful Malook appellant and one Sher Zaman.
8. Besides, the abscondence of the accused for sufficient long time was an additional strong piece of corroboration of evidence. Taking all the circumstances into consideration the learned trial Court as well the appellate Court held the accused/appellant/petitioner guilty for the murder of the deceased and there is no reason to differ with them so far as the conviction of the appellant and petitioner under section 302, P.P.C. Is concerned.
9. ' As regards the sentence, the trial Court awarded life imprisonment to both the accused on the ground that there was only one fireshot injury on the person of the deceased whereas two persons were charged. Hence the capital punishment of death was not called for and a lenient view was taken. The learned High Court, on the other hand, enhanced the punishment of Saiful Malook appellant from life imprisonment to death mainly on the ground that the shot of Saiful Malook had hit the deceased while about the shot fired by Rasta Baz Khan the witnesses were not sure whether it had proved effective or not. Both the accused have been attributed the role of firing at the deceased and both of them were alleged to be in possession of fire-arm from which only cartridges containing pellets can be fired. Israr Ali PW is ppsitive that the shot fired by Saiful Malook proved effective but, strangely enough, he has not been able to notice whether the shot fired by Rasta Baz petitioner hit the deceased or not, though both of them are alleged to have fired in his presence and, more or less, from the same distance. In his statement in Court he deposed that Rasta Baz Khan petitioner fired at the deceased when he was lying on the ground and in such a situation the possibility that the shot may have proved effective particularly in the presence of charring mark's on the person of the deceased cannot be ruled out. We are, therefore, inclined to subscribe to the view of the trial Court that two persons (father and son) have been charged but only one shot having hit the deceased the death penalty was not called for.
10. ' We, therefore, partially accept Appeal No,30-P/90 filed by Saiful Malook and alter his sentence from death to life imprisonment and maintain the other sentences imposed upon him. We do not find any substance in the Criminal Petition No, 51-P/90 filed by Rasta Baz Khan against his conviction and Criminal Petition No, 53-P/90 filed by Israr Ali complainant for enhancement of sentence of Rasta Baz Khan and dismiss both the petitions. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.