' Alam Sher aged 54 years, Fateh Khan aged 33 years and Sher Muhammad aged 30 years, sons of Muhammad Nawaz, Sardar Khan aged 28 and Muhammad Riaz aged 32, sons of Alam Shay, Amir Abdullah, son of Shah Nawaz aged 40 years and Qadir Khan son of Muhammad Sher aged 28 years were tried for an offence under section 302/307/148/149, P.P.C. By the learned Additional Sessions Judge, Mianwali who vide judgment, dated 27-11-1989 acquitted Alam Sher, Fateh Khan, Sher Muhammad, Sardar Khan, Amir Abdullah and Qadir Khan by giving them the benefit of doubt and convicted Muhammad Riaz appellant for the charge under section 302, P.P.C. And awarded him life imprisonment with a fine of Rs,20,000 or in default of payment of fine to undergo further R.I.
For six months. However, he was given the benefit of section 382-B, Cr.P.C.
2. This judgment will dispose of Criminal Appeal No,909 of 1989 filed by Muhammad Riaz appellant against his conviction and sentence and Criminal Revision No,224 of 1990 filed by Atta Muhammad against the acquittal of the acquitted accused and for the enhancement of the sentence of Muhammad Riaz appellant.
3. Brief facts of the case as disclosed in the F.I.R. Exh.P.K. Lodged by Atta Muhammad P.W.11 and recorded by Ubaid Ullah Khan S.I. On 6-4-1987, are that the complainant alongwith his father Khan Baig was sleeping on the roof of residential Kotha of his Dera, whereas Muhammad Khan, his real brother and Muzaffar Khan, his uncle was sleeping in the compound with other family members. At about 7 a.m. Muhammad Khan, his brother went out of the house to answer the call of nature when Alam Sher, Fateh Khan, Sher Muhammad, Sardar Khan, Riaz, Amir Abdullah and Qadir Khan armed with fire-arms encircled the Dera and the moment Muhammad Khan came out of the Dera they opened fire at him who took refuge behind stones and was saved. On hearing the fire-shots the complainant and his father Khan Baig woke up when Alain Sher etc. Fired at them and the fire made by Riaz accused with his rifle P.3 hit Khan Baig who died at the spot. Alam Sher, and Amir Abdullah accused were armed with .12 bore gun, Riaz accused with Rifle G.3, Fateh Khan with rifle .7 mm, Sher Muhammad and Qadir Khan with rifles guilty and Sardar Khan armed with rifle committed this occurrence.
4. The motive for the occurrence as disclosed was that about 15/16 years ago Tora Khan, uncle of complainant murdered Falak Sher brother of Alam Sher accused who was acquitted at the trial.
The accused thereafter murdered Gola Khan, uncle of the complainant and they were on bail in that case and now they have committed the murder of his father.
5. Dr. Mumtaz Khan, Medical Officer P.W.9 conducted the post-mortem examination on the dead body of deceased at 4 p.m. On 6-4-1987 and found the following injuries thereon:--
(1) A wound of entrance by fire-arm on the left upper arm on its lateral side 6 c.m. Below the tip of shoulder. It measured 1/4 c.m. x 1/4 c.m. In size.
(2) An exit wound 1 c.m. x 1/2 c.m. Over the outer side of the right upper arm, 10 c.m. Below the tip of shoulder and 20 c.m. Above the elbow.
' In his opinion the death was the result of injury Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature.
5. Ubaidullah Khan, S.I. P.W.13 collected blood-stained earth from the spot and took the same into possession vide memo. Exh.P.J. He took into three crime empties P.12/1-3 vide memo. Exh.P.L. Two crime empties P.13/1-2 through memo. Exh.P.M., six crime empties P.14/1-6 through memo. Exh.P.N., three crime empties P.15/1-3 vide memo. Exh.P.O., five crime empties P.16/1-5 vide memo. Exh.P.P., eight crime empties P.17/1-8 vide memo. Exh.P.Q. And eight crime empties P.18/1-8 through memo.
Exh.P.R. One pellet P.19 and a lead of bullet P.20 were also recovered through Exh.P.J./1.
6. After arrest the accused got recovered weapons of offence which were taken into possession on 30-4-1987 through separate memos., the details of which are given as below:-- ' Alam Sher .12 bore gun vide memo. Exh.P.L. Qadir Khan .12 bore gun vide memo. Exh.P.D., Sher Muhammad presented rifle gilty P.7 which was taken into possession vide memo. Exh.P.E., Fateh Khan got recovered rifle P.8 vide memo. Exh.P.F. The recovery memos were attested by Muhammad Iqbal A.S.I. Muhammad Riaz appellant produced rifle P.9 on 4-61987, Sardar Khan, Rifle P.10 and Amir Abdullah gun P.11 with licence on 4-61987 which were taken into possession vide memos. Exhs.P.F., P.G. And P.H., respectively.
7. The prosecution placing reliance on the evidence of motive, medical, ocular account and the recoveries examined 13 witnesses in all. Saifullah Khan, Head Constable P.W.4 and Muhammad Iqbal Khan, A.S.I. P.W.7 are the witnesses of recovery of the weapons of offence. Muhammad Iqbal Khan P.W.7 has also partly Investigated the case. Muhammad Iqbal A.S.I. P.W.8 kept the parcels in the Malkhana. Dr. Mumtaz P.W.9 has conducted the postmortem, of the deceased Ata Muhammad P.W.11 is the complainant and eyewitness of the case whose statement was further corroborated by Muhammad Khan, his real brother P.W.12. Ubaidullah S.I. P.W.13 investigated the case. The remaining witnesses are almost of formal nature. The prosecution tendered report of the Chemical Examiner Exh.P.U., of Serologist Exh.P.V. And that of Ballistic Expert Exh.P.W.
8. The accused denied the charge taking the plea that it was an, unseen occurrence and that they have been implicated due to enmity of the murder of Gola Khan, uncle of the complainant.
9. Learned counsel for the appellant contends that the people in the village do not sleep till 7 a.m.
In the month of April. According to him the occurrence took place much earlier in the dark hours and the occurrence being unseen the assailants are unknown. The medical evidence is in conflict with the ocular account as the injury in the F.I.R. Is on the right side of the arm whereas per medical evidence, it is on the left side. He has next contended that direction of the injury show that the assailant and the deceased were not at the same level which is evident from the evidence disclosing height of 18 feet of the deceased from the place of assailants and, therefore, it was not possible to receive such an injury. He next contended that the firing was attributed to all the accused but there was only one injury on the person of the deceased attributed to Riaz appellant.
He while pointing out the minor discrepancies submitted that the story put forth by the prosecution is doubtful.
10. Learned counsel for the complainant as well as the State submits that it is a daytime occurrence. The P.Ws. Being inmates of the house are natural witnesses and the evidence available on record sufficiently connects the appellant with the commission of offence.
11. I have heard the learned counsel for the parties and perused the record carefully with their assistance.
12. The place of occurrence is the house of deceased who was sleeping on the roof of the house with Atta Muhammad complainant. The emphasis of the learned counsel for the appellant that at 7 a.m. It is not possible that the deceased and the P.Ws. Were sleeping does not carry much force for the simple reason that the deceased or the P.Ws. Had to remain at home throughout the day and had not to go out of the home in connection with service or some job. Therefore, it is not unusual for such people to go on sleeping till 7 a.m. In the month of April in villages. Anyhow, keeping in view the other circumstances of the case, if occurrence took place earlier to 7 a.m. It will not materially affect the prosecution case as far that matter in the month of April the day breaks earlier than 5 a.m. And there cannot be any doubt with regard to the identification of the appellant. Both the eye- witnesses are inmates of the house and in normal circumstances they are supposed to be present at home in the morning at the time when the occurrence took place. Therefore, they being natural witnesses of the occurrence, their presence cannot be doubted. The report disclosing all material facts was lodged at 10 p.m. On the same day with the police station at a distance of seven miles.
The complainant had three hours time with him and he could easily change the time and place of occurrence but it looks that the F.I.R. Contains the natural story. The evidence of the P.Ws. Is corroborated by the contents of the F.I.R. On all material points. Next point urged by the learned counsel for the appellant that injury on the person of deceased from the distance and place as described by the P.Ws. Is not possible. According to him the deceased was at a height of 18 feet from the assailant and the seat of injury on the right arm in sleeping condition was not possible is without any force. The P.Ws. Have categorically stated that on hearing the fire-shot, the deceased and the complainant woke up and naturally they must have stood up and thereafter injury was received by the deceased while standing on the roof. This is not the case of defence that the assailants were just below the Chobara rather they were on the side at some distance. According to the site plan Exh.P.B. The appellant was at point No,6 which place is not below in a straight line to point No,1 at the roof of Chobara, the place of presence of the deceased. Keeping in view the distance, direction and height, it cannot be said that injury could not be caused from the ground.
The appellant armed with rifle 0.3 which has a wide range and, therefore, could easily cause injury from 18 feet. The parties are co-related and, therefore, no question of mistaken identification or substitution arises in the facts of the present case. Khan Muhammad P.W.12 has admitted that the deceased and Atta Muhammad P.W. Also fired which fact was further verified by Ubaidullah Si.
P.W.13 with the addition that MuzaTfar Khan P.W. Also fired with his licensed rifle .7 mm. A large number of recoveries of empties of different type from the spot indicate that both parties were active and there was exchange of firing and, therefore, in the circumstances it does not appeal to mind that the P.Ws. Or the deceased was sleeping or they could not know about their assailants.
However, it looks that both parties withheld some material facts with regard to the occurrence, for the reasons best known to them. Anyhow, deceased received injury at the roof of his house which fact indicates that the appellant and his companions went to the place of deceased and caused his death.
13. Be that as it may, there being no specific plea taken by the defence except the bare denial and no other material available on record, it is difficult to look for some other possibility. The ocular account seeking corroboration from medical evidence and the other circumstances of the case, proves the guilt of the appellant beyond all reasonable doubt.
14. The single fire-arm injury on the person of the deceased was attributed to Riaz appellant whereas the role of the acquitted accused was that of only of ineffective firing, therefore, their acquittal by the learned trial Court giving them the benefit of doubt is unexceptional in the circumstances of the case and is not liable to be interfered. Muhammad Khan was the target of the appellant who luckily saved and the shot fired by Muhammad Riaz appellant hit the deceased.
Anyhow, the manner of initiation of the occurrence being shrouded in mystry, the learned trial Court was fully justified to award lesser penalty to the appellant. I am, therefore, of the view that the learned trial Court has rightly exercised discretion in the matter of sentence which is not liable to be interfered by this Court.
For the foregoing reasons, both the appeal and the revision are dismissed. The conviction and sentence of the appellant is maintained.