' QAZI MUHAMMAD FAROOQ, J.---Aseel Badshah alias Sail Badshah, aged about 51 years, Ibrar Khan, aged about 23/24 years and Muhammad Younas aged about 17/18 years, residents of Masti Khan Banda, Tehsil and District Karak, were tried by the learned Sessions Judge, Karak, under section 302/34, P.P.C. For committing the murder of one Allah Dad, in furtherance of their common intention. By judgment, dated 28-5-1991, all of them were found guilty and resultantly convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,20,000 each or in default to undergo two years' further R.I. Each. A sum of Rs,30,000 out of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. Feeling aggrieved all the three convicts have preferred an appeal while Abdullah Khan complainant has tiled a Criminal Revision (38/91) for enhancement of their sentence. We propose to dispose of the appeal and the criminal revision by this single judgment.
2. The occurrence took place at about 4-00 p.m. On 4th January, 1990 in Gardy Banda distint about 12/13 kilometres from Police Station Latambar and the F.I.R. Was lodged on the same day at 5-30 p.m. By Abdullah Khan (P.W.7), brother of the deceased, and it was recorded by Awal Khan S.H.O.
Police Station Karak (P.W.9).
3. Briefly, the prosecution version of the occurrence is that on the fateful day at about 4-00 p.m.
While the complainant, the deceased and his wife Mst. Ilam Jana (P.W.8) were cutting gram crop in their land, the three appellants came there armed with `Topaks'. Ibrar Khan and Muhammad Younas fired one shot each at the deceased but their shots missed the target. Thereafter, Aseel Badshah appellant fired at the deceased and killed him.
4. The motive for the crime was that 3/4 days prior to the incident the deceased had abused the wife of Jangi Badshah, brother of Sail Badshah appellant.
5. Ibrar Khan and Muhammad Younas appellants were arrested on 9-1-1990 but Aseel Badshah appellant had made himself scarce and the requisite warrant under section 204, Cr.P.C. And proclamations under sections 87/88, Cr.P.C. Were duly issued concerning his abscondence.
However, he had surrendered himself to the Police on 6-5-1990.
6. Dr. Zafrullah Khan, Medical Officer, Rural Health Centre, Latambar performed autopsy on the dead body of the deceased on 5th January, 1990 at 8-00 a.m. And found the following:-- External:
(1) 1/4" x 1/4" fire-arm injury entry wound over the fifth dorsal vertebra at the back.
(2) 1-1/2" x 1" fire-arm exit wound over the front of right side chest 1" below and lateral to the right nipple. Rigor mortis and post-mortem staining fully developed.
Internal: Cranium and Spinal Cord.
' Vertebra and spinal cord are injured.
Thorax: Walls, ribs, pleurae, right lung and blood vessel at the site of the injury are all injured.
Abdomen.
' Stomach contained semi-solid food.
Muscles, Bones and Joints.
4th and 5th ribs on right side and 5th dorsal vertebra are fractured.
' Time between injury and death was within half an hour and between death and post-mortem examination 15 to 18 hours.
' In his opinion the deceased had died as a result of injuries to the vital organs like vertebral column and lungs caused by fire-arm.
7. As mentioned earlier the F.I.R. Was recorded by Awal Khan S.H.O. (P.W.9) at Police Station Latambar who had also prepared the injury sheet and the inquest report Exh. PB/1 of the deceased.
He had also recorded the statement of Mst. , Ilam Jana (P.W.8) at the police station and then had proceeded to the spot for inspection but could not prepare the site plan due to darkness. However, he took into possession blood-stained earth and cut grass etc. Vide recovery memo. Exh. PC and made the same into separate parcels. On 5-1-1990 he again inspected the spot and prepared the site plan Exh. PD and vide recovery memo. Exh. PC/1 took into possession two empties of .303 bore from the spot from where the appellants Said Badshah and Ibrar Khan had allegedly fired at the deceased. It was specifically mentioned in the memo. Exh. PC/1 that both the empties were smelling of freshly discharged gun powder. He also took into possession the garments of the deceased, vide memo. Exh. PC/2, which were brought from the hospital by Bakhta Gul FC.
' He had also recorded the report of the cross-case under section 506/34, P.P.C. At the behest of Ayaz Khan, which having been cancelled did not see the Judicial light.
8. To prove its case, the prosecution examined as many as nine witnesses including the two eye- witnesses Abdullah Khan (P.W.7) and Mst. Ham Jana (P.W.8), Dr. Zafrullah Khan (P.W.1) and Awal Khan S.H.O. (P.W.9).
9. The appellants in their statements under section 342, Cr.P.C. Had spurned the prosecution allegations and professed innocence. Their plea was one of complete denial of the occurrence and false implication. Regarding his alleged abscondence Aseel Badshah appellant took the stance that he was serving in the Agriculture Department and prior to the occurrence he had obtained four months' leave and had gone to Karachi and on return from Karachi had learnt about the occurrence and had voluntarily surrendered before the police. He, however, did not examine himself on oath nor produced any evidence to lend support to his stance.
10. The death of Allah Dad deceased by violence namely firing stands proved beyond any doubt in the light of the medical evidence, therefore, the point for determination is whether the tragedy was enacted by the appellants or not.
11. The facts and features of the case highlighted above make it manifest that the prosecution case against the appellants rests on the ocular evidence furnished by Abdullah Khan (P.W.7) and Mst.
Ilam Jana (P.W.8), medical evidence, motive, recovery of crime empties and abscondence of Asil Badshah appellant after the occurrence.
12. The ocular evidence is confidence inspiring and does not suffer from A any serious doubt or infirmity. Both the eye-witnesses have given a straightforward and consistent account of the occurrence and there is nothing in their cross-examination to make their credentials doubtful.
There is also nothing on the record to show that they or the deceased had any previous enmity with the appellants to swa y them to incriminate the appellants falsely. For this very reason they cannot be branded as interested witnesses despite their close relationship with the deceased.
However, out of abundant caution and for the sake of safe dispensation of justice we propose to place reliance on the ocular evidence in respect of only that appellant against whom corroborative evidence is available from an independent source. Of the three appellants Asil Badshah alias Sail Badshah had absconded after the occurrence and it is abundantly clear from the testimony of Abdul Raziq (P.W.2) that after the occurrence a warrant under section 204, Cr.P.C. Was issued against him and proclamations under section 87/88, Cr.P.C. Were also duly published but in vain.
He had surrendered himself four months after the occurrence and was arrested on 6-5-1990 as stated by Awal Khan S.H.O. (P.W.9). The explanation B furnished by him in this regard in his statement under section 342, Cr.P.C. That he was a Government servant and had proceeded to Karachi prior to the occurrence on four months' leave is not plausible because there is nothing on the record to support it. The solitary shot that had caused the death of the deceased according to the medical evidence was also attributed to him in the F.I.R. As well as at the trial. Being real brother of Jangi Badshah whose wife was abused by the deceased he shared the motive also. The ocular evidence against him is thus corroborated from independent sources and as such his conviction does not warrant interference. As regards the remaining two appellants, namely, Muhammad Ibrar Khan and Muhammad Younas, who have been charged for firing inefffectively at the deceased, it would suffice to say that the ocular evidence qua them is not corroborated by any independent evidence, therefore, their conviction is not sustainable.
13. The learned counsel for the appellants contended that it was an unseen occurrence and the ocular evidence was trumped up. His reasoning was that there was no circumstantial evidence to prove the presence of the eyewitnesses on the spot of occurrence as they were allegedly cutting gram crop but no sickle or Chaddar was recovered from the spot, that the eye-witnesses in general and Abdullah Khan (P.W.7) in particular had no business to be present in the field of the deceased, that, the ocular evidence was in conflict with the medical evidence as according to the eye-witnesses the deceased was hit while running but according to the medical evidence the entrance wound was lower than the exit wound and the missile had travelled from left to right which was possible only if the deceased was bending when hit or the assailant was sitting when firing, that the eye-witnesses had made an improvement on the story set up in the F.I.R. By stating that the deceased was running when hit and that the eye-witnesses account was discrepant as Abdullah Khan (P.W.7) had stated that they had worked in the field for about 10/15 minutes and then the occurrence had taken place while Mst. 11am Jana (P.W.8) had stated that they had worked in the field for about an hour before the occurrence.
14. The contentions raised by the learned counsel are devoid of substance. It is a matter of common knowledge that gram crop can be easily plucked with hands and for this very reason Abdullah Khan (P.W.7) while answering a question in this context had stated in his cross- examination that they were plucking the crop for the cattle with the help of their hands. The absence of sickles etc. From the spot thus stands explained. The Investigating Officer namely Awal Khan S.H.O. (P.W.9) had taken into possession some plucked gram crop and grass from the spot of occurrence vide recovery memo. Exh.P.C. And this fact also lends support to the assertion of the eye-witnesses that they and the deceased were working in their field at the time of occurrence.
Both the eye-witnesses are natural and probable witnesses as they being members of the family of the deceased were helping him in his work. It is needless to mention that in the rural areas men and women work side by side in the fields and due to joint family system brothers quite often work in unison. The conflict between the ocular and the medical evidence pointed out by the learned counsel for the appellants is more speculative than real as the exact position of Aseel Badshah appellant at the time of firing the fatal shot cannot be gathered from the ocular evidence and the deceased was a human being and not a robot so he might have bent a little while running from the spot. The ocular evidence cannot be rejected simply for the reason that the complainant Abdullah Khan (P.W.7) had not stated in the F.I.R. That when Ibrar and Younus appellants had fired at the deceased ineffectively he had started running from the spot because F.I.R. Is not a detailed and self-contained document and the mentioned fact indubitably pertains to the details of the occurrence. As regards the discrepancy indicated by the learned counsel for the appellants it would be enough to mention that it is too insignificant to demolish the ocular evidence.
15. The F.I.R. Was criticised by the learned counsel for the appellants on the grounds of delay and consultation. It was contended that the occurrence had taken place at 4-00 p.m. But the F.I.R. Was lodged at 5-30 p.m. At Police Station Latambar which was at a distance of about 12/13 kilometres from the spot and that the F.I.R. Was lodged after consultation with relatives as admitted by Ilam Jana (P.W.8) in her cross-examination. The dead body of the deceased was taken to Police Station Latambar in a Datsun van and it is in the statement of the lodger of the F.I.R. That he had brought the Datsun van from the nearby village Reshmin. It must have taken some time to arrange for the transport, therefore, there was no unreasonable delay in lodging the F.I.R. In so far as E the consultation alluded to in the cross-examination of Ilam Jana (P.W.8) is concerned it essentially pertains to the discussion as to who should lodge the F.I.R. And does not point out to the fabrication of the prosecution story. There is thus no force in the contentions of the learned counsel for the appellants.
16. It was lastly contended by the learned counsel for the appellants that the recovery of crime empties having been made on the next day of occurrence was highly doubtful and in any case it was meaningless as no crime weapon had been recovered. This contention has substance and for this very reason we have not treated the recovery of crime empties as a corroborative piece of evidence.
17. Coming to the connected revision petition for enhancement of sentence we find no merit in it for the short reason that the prosecution case itself points out to a motive involving family honour which is a mitigating factor for awarding lesser penalty.
18. In the light of the above discussion and conclusions the conviction and sentence of Aseel Badshah alias Sail Badshah appellant is upheld and his G appeal is dismissed. He will be entitled to the benefit envisaged by section 382-B, Cr.P.C. The compensation payable to the heirs of the deceased out of fine stands reduced to Rs,15,000. The revision petition filed by Abdullah Khan complainant is also dismissed. The appeals of Muhammad Ibrar Khan and Muhammad Younas appellants are accepted, their conviction and sentences are set aside and they are acquitted of the charge. They shall be set I at By a short order, dated 14th April, 1992 we had dismissed the appeal of Aseel Badshah alias Sail Badshah and allowed the appeals of Muhammad Ibrar Khan and Muhammad Younas for reasons to be recorded later. Herein above are the reasons for the same liberty forthwith if not required in any other case.