' MUHAMMAD BASHIR KHAN JEHANGIRI, J.--- This Jail Appeal is directed against the judgment of learned Additional Sessions Judge II, Haripur, dated 16-104991 whereby he convicted Muhammad Aslam Shah, aged about 80 years, under section 302, P.P.C. For causing the death of Sideman Shah and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs,10,000 or in default thereof to suffer further rigorous imprisonment for 4 years. The fine, if realized, was directed to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. He was, however, extended the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved Muhammad Aslam Shah, convict-appelllant, has preferred this Jail Appeal.
3. Mr. Muhammad Aslam Khan, learned AA.-G. Argued on 20-12-1991 and on conclusion of the arguments by a short order we had dismissed the appeal. We are giving reasons for the order passed by us on 20-12-1992.
4. According to the first information report lodged on 27-9-1986 at 9-00 a.m. By Phul Hussain Shah (P.W.7), about 16/17 years earlier Mst. Muhammad Jan mother of Suleman Shah deceased had contracted her second marriage with Sultan Shah, son of Mir Haider Shah, and after the death of Sultan Shah, his son Muhammad Aslam Shah accused turned out her stepmother Mst. Muhammad Jan from his house. She started residing with Suleman Shah deceased, her deceased son from her previous husband, for the last about 1 year prior to the occurrence. Mst. Muhammad Jan had inherited 1 Kanal 11-1/2 Marlas of land from Sultan Shah. She sold that land to one Rahim Shah for a sum of Rs,9,500. Muhammad Aslam Shah convict was, therefore, annoyed. As to the actual occurrence, it is alleged that on the day of occurrence at about 8 a.m. Suleman Shah deceased was going to the house of his nephew Qasim Shah (P.W.8) for asking him to help him in harvesting the Maiz crop. Phul Hussain Shah (P.W.7) was following the deceased at some distance. When deceased Suleman Shah reached near the house of Muhammad Aslam Shah accused-convict, the latter who was armed with .12 bore shotgun fired at him, which hit the deceased, Suleman Shah on the right side on the base of his neck. The deceased fell dead on the spot instantaneously. On the report of fireshot, Qasim Shah (P.W.8) and Ashiq Shah (not examined) were attracted to the spot alongwith a host of others. The accused, thereafter, decamped towards the back of his house with his shotgun.
5. Nisar Muhammad S.H.O. (P.W.9), while on surveillance duty near Jharri Kass Bridge, received the information of the murder of Suleman Shah and he rushed to the spot where he found Phul Hussain Shah P.W. Present with the dead body. Nisar Muhammad S.H.O. Took down the report Exh.PA./1 of Phul Hussain Shah, on the basis of which F.I.R. Exh.PA. Was drawn the same morning at 10-15 hours.
The S.H.O. Then prepared the injury sheet Exh.P.W.9/1 and inquest report Exh.P.W.9/2 and despatched the dead body to Civil Hospital, Haripur, for post-mortem examination. He then prepared the site plan Exh.P.B. At the instance of the P.Ws. He also secured blood-stained earth and blood-stained straws. He took into possession an empty shell P.2 of .12 bore giving fresh smell of fresh discharge and sealed it into a parcel vide memo. Exh.P.W.1/2. After the post-mortem examination, Muhammad Zaman F.C. (P.W.2) brought from the hospital shirt P.3 bloodstained having cut and charring marks, a phial P.4 containing wads and another phial P.5 containing the pellets duly sealed by the doctor were taken into possession vide recovery memo. Exh.P.W.1/3. Syed Bazurgh Shah (P.W.3) had produced to the S.H.O. Shotgun P.6, 4 live cartridges P.7, saying that the convict was his relative and had approached him in his house and produced the gun and the cartridges aforesaid saying that he was going to lodge the report; that after lodging the report he would collect the same on his return. He also demanded Rs,50 from him as loan. The shotgun and the cartridges were sealed into a parcel vide memo. Exh.P.W.1/4. Later on, Jumma Shah P.W. Not examined, produced to the S.H.O. The licence copy P.1 in respect of the gun produced by Bazurgh Shah P.W. To the I.O. Who sealed it into a parcel vide memo. Exh.P.W.5/1. The gun and the empty P.2 were despatched to the Forensic Science Laboratory. The report Exh.P.W.9/4 of the Arms Expert showed that the crime-empty marked "C" had been fired from .12 bore S.B. Shotgun in question and further that the pieces of wads marked W.1 and W.2 and the 6 crime pellets marked P.1 to P.6 can be used in .12 bore cartridges and can be fired through any smooth bore weapon.
6. After recording the statements of P.Ws. He arrested the accused and challaned him into the Court to stand his trial. In support of its case, the prosecution placed reliance on the ocular evidence of Phul Hussain Shah (P.W.7) and Qasim Shah (P.W.8), the medical evidence furnished by Dr. Noor Wahab Shah Medical Officer Incharge Civil Hospital, Haripur (P.W.10), the shotgun P.6 and 4 cartridges P.7 produced by Bazurgh Shah (P.W.3) and the report Exh.P.W.9/4 of the Arms Expert in the Forensic Science Laboratory.
7. On 27-9-1986 at 11-50 a.m. Dr. Noor Wahab Shah (P.W.10) conducted post-mortem examination on the dead body of Suleman Shah, aged about 50/51 years and found, on external examination, a fire-arm entrance wound of 2-1/2" x 2-1/2" in size on the base of right side neck just above the medial part of clavical. Charring was also detected by him. In the opinion of Dr. Noor Wahab Shah (P.W.10) the death had occurred due to shock and haemorrhage on account of injury to the subclavian artery, aorta and lung, caused by the fire-arm. The death according to the doctor was instantaneous but the time between death and post-mortem was about 4 hours. The stomach was found healthy and contained semi-digested food.
8. The defence of the accused when examined under section 342, Cr.P.C. Was of bare denial. Phul Hussain Shah (P.W.7) after giving out his relationship with the deceased and that of Qasim Shah with himself and the deceased has stated that on the day of occurrence at about 8 a.m. While the deceased was on his way to the house of his nephew Qasim Shah (P.W.8) for asking him to help in the harvesting the Maize crop, he (P.W.7) was following the deceased at some distance when Muhammad Aslam Shah convict-appellant fired a shot with his .12 bore shotgun near his house felling him to the ground. On the report of fire shot Qasim Shah (P.W.8) whose house is in the same vicinity rushed to the spot followed by others and had witnessed the accused running away from the spot with a shotgun in his hands. His evidence further is that after about half an hour the police reached the spot on learning about the occurrence where Phul Hussain Shah lodged the report Exh.P.A./1. Qasim Shah (P.W.8), on his part conceded, that Suleman Shah was his uncle while accused was also related to him, as uncle. According to him, as his house was contiguous to the house of the convict, on the day of occurrence at about 8 a.m. He came out of his house on hearing the report of fireshot and saw Suleman Shah deceased lying dead on the ground and also noticed Muhammad Aslam Shah accused with a shotgun going towards his house. Phul Hussain Shah was standing by the dead body and informed him that the convict-appellant had fired at the deceased. According to Qasim Shah P.W., the convict-appellant was his real uncle while Suleman Shah deceased was distantly related to him.
9. Both the P.Ws. Were cross-examined at length.
10. The learned trial Judge believed the version of the prosecution, as also the motive, the medical evidence furnished by Dr. Noor Wahab Shah (P.W.10), the production of the crime weapon by Syed Bazurgh Shah (P.W.3) and the report Exh.P.W.9/4 of the Arms Expert in the Forensic Science Laboratory and convicted and sentenced the appellant as stated above.
11. We have gone through the record of the case carefully with the assistance of the learned AA.-G.
And have reappraised the entire evidence that has been produced by the prosecution and have read the statement of the convict-appellant under section 342, Cr.P.C. We have not been able to satisfy ourselves that there was no creditworthy evidence against the appellant for recording conviction against him for the murder of Suleman Shah Deceased in this case. We fmd that the occurrence had taken place in front of the house of the convict-appellant at about 8 a.m. When there was sufficient light to identify the assailant. The appellant being a co-villager of the two P.Ws.
Was also related to them and was thus previously known to Phul Hussain Shah and Qasim Shah P.Ws. There is not even a semblance of evidence that Phul Hussain Shah and Qasim Shah were chance witnesses. Phul Hussain Shah (P.W.7) has given a plausible cause of his presence on the spot at the time of occurrence. No circumstance has been pointed out to suggest that the presence of Phul Hussain Shah (P.W.7) at the time and place of occurrence was a sheer concoction. The time of occurrente was such that the two P.Ws. Could be present at the spot. The presence of Phul Hussain Shah (P.W.7) at the time and place of occurrence is, therefore, proved beyond any reasonable doubt. The evidence of Qasim Shah (P.W.8) on the other hand was, in its nature of "Res-Gestae". According to him, he had rushed to the spot on hearing the report of fireshot and found the deceased lying dead while Phul Hussain Shah was standing near the dead body. Further that when he reached at the spot he was informed by Phul Hussain Shah that the convict-appellant has fired the deceased to death. The evidence of Qasim Shah further is that he had seen the convict-appellant going away from the spot with the gun in his hands. Article 19 of Qanun-e-Shahadat, 1984 corresponding to section 6. Of the Evidence Act, 1872, enacts the rule which in English Text-Books is treated under the head Res Gestae. Rest gestae has been broadly defmed as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of the participants; the circumstances, facts and declarations which grow out of the main fact are contemporaneous with it and serve to illustrate its character. It has also been defmed as including everything that may be fairly considered an incident of the event under consideration. The statement of Phul Hussain Shah (P.W.7) made to Qasim Shah (P.W.8) and the factum of his seeing the convict-appellant going away from the spot immediately after the occurrence holding a gun in his hand were made under immediate influence of a transaction in order to characterise it and explain circumstances connected therewith which are admissible under Article 19 of the Qanun-e-Shahadat, 1984, particularly when there was no further time for thinking and fabrication. The statement made by Phul Hussain Shah to Qasim Shah P.W. Was substantially contemporaneous with the act. The interval between the act of firing the deceased to death and the declaration was not such as to allow of fabrication. In consequence, the evidence of Qasim Shah would be admissible under Article 19 of Qanun-eShahadat, 1984 and no possible exception could be taken thereto.
12. The medical evidence of Dr. Noor Wahab Shah fully corroborates the prosecution case as unfolded by Phul Hussain Shah both in his report Exh.P.WA/1 as well as in the witness-box when he was examined as P.W.7. The evidence of the two P.Ws., namely, Phul Hussain Shah and Qasim Shah is B not shown to be discrepant on any aspect of the case still requisite corroboration is forthcoming from the production of the crime weapon by Bazurgh Shah (P.W.3) to the I.O. Who is not shown to have got any animus for false charge and the crime empty recovered from the spot was found to have matched with it vide report of the Arms Expert in the Forensic Science Laboratory.
13. We are satisfied that the conviction of the appellant under section 302, P.P.C. Is well-founded.
The sentence of life imprisonment was also proper because the learned trial Judge has taken the advance age of the convict- appellant as an extenuating circumstance and we would, therefore, also confirm the sentence of imprisonment for life. The sentence of fine and the direction qua the payment thereof to the heirs of the deceased is also confirmed.
14. This appeal from jail has, therefore, no substance which is accordingly dismissed. The convict- appellant shall be informed through the Superintendent Central Jail, Haripur, about the fate of the appeal filed by the convict-appellant. A copy of the judgment shall also be furnished to the appellant through the Superintendent Central Jail, Haripur.