' S. IBNE ALI, ACTG. C.J.---Accused Guldali Shah Ali. Badshah, Jalil Badshah, Noor Shahzada, Zardali Shah and Gulwar Jan residents of Village Sarki Lauaghar, Tehsil and District Karak were charged under section 302/ 324/148/149, P.P.C./Qisas and Diyat Ordinance for the murder of Tehsil Badshah and dealing stab injuries to P.Ws. Usman Gul, Wazirzada, Rashid and Sanab Gul. The learned Sessions Judge, Karak who tried them found accused Jalil Badshah and Gulwar Jan guilty for the offences, therefore, he convicted and sentenced them as under vide his judgment, dated 22-9- 1992:--
(a) Accused Jalil Badshah urder section 302/34, P.P.C. For the murder of Tehsil Badshah and sentenced him to life imprisonment as `Tazir with a fine of Rs,20,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Or in default S.I. For 6 months. He was further convicted under section 337-F(ii) for causing stab wounds to P.W. Wazirzada and sentenced him to 3 years' R.I. With further direction that he will pay Damman in the sum of Rs,10,000 to the victim.
(b) Accused Gulwar Jan was convicted under section 337-D for causing fire-arm injury to P.W.
Sanab Gul and sentenced him to 7 years' R.I. As `Tazie with further direction that he will pay a sum of Rs,60,000 as `Arch' to the victim.
' The sentences awarded to the accused were ordered to run concurrently. They were given the benefit of section 382-B, Cr.P.C. The other accused were not found guilty by the learned Sessions Judge, therefore, they were acquitted.
2. Feeling aggrieved of their convictions and sentences accused Jalil Badshah and Gulwar Jan have filed the appeal in hand in this Court. The State has also filed appeal against the acquittal of acquitted accused Zarwali Shah, Noor Shahzada, Gulwali Shah and All Badshah. The complainant has also filed a revision petition for enhancement of the sentence to accused-appellants Jalil Badshah and Gulwar Jan.
3. Briefly, the prosecution case is that on 13-2-1991 at 8-30 a.m. P.Ws. Usman Gul, Wazirzada and deceased Tehsil Badshah were going to school. On reaching near Tato Koroona' accused Guldali Shah, Jalil Badshah, All Badshah, Noor Shahzada, Ghafoor Badshah, Zardali Shah, Gulwar Jan and absconding accused Mir Sultan armed with Topaks came across them. No sooner the accused party reached near the complainant party, then they started firing at them. As a result P.W. Usman Gul was hit with the shots fired at him by accused Guldali Shah and All Badshah; P.W. Wazirzada was hit with the shot fired at him by accused Noor Shahzada; accused Jalil Badshah stabbed Wazirzada; deceased Tehsil Badshah was hit with the shots fired at him by accused Zardali Shah and absconding accused Ghafoor Badshah as a result of which he died on the spot. Meanwhile P.Ws. Rashid Khan and Sanab Gul rushed to the spot for the rescue of the complainant party, who were also fired upon by the accused party. P.W. Rashid Khan was hit with the shot fired at him by absconding accused Mir Sultan while P.W. Sanab Gul was hit with the shots fired at him by accused Gulwar Jan and Mir Sultan. After the occurrence the accused decamped from the spot. The motive attributed to the accused was that there was a dispute between the parties over a path.
4. After the occurrence P.Ws. Usma n Gul, Wazirzada, Rashid and Sanab Gul went in injured condition to Police Station, Takht Nasrati in a pick-up. P.Ws. Usman Gul lodged the report vide F.I.R.
Exh.P.A. Recorded by H.C. Amir Atalas P.W.2.
5. After registration of the case the Investigating Officer proceeded with the investigation. He prepared injury sheet of the above named victims and sent them to the hospital for medical examination. He left for the spot and on the way came across the village people taking the dead body of the deceased. He prepared the injury sheet and inquest report and sent the dead body to the mortuary for post-mrotem examination. Meanwhile A.S.I. Prepared site plan Exh.P.W.17/1 at the instance of the eye-witnesses. He Inspected the spot, from where he took blood-stained earth and pebbles from the place where the deceased had expired and the victims had received injuries. The Investigating Officer also took blood-stained clothes of the deceased and other victims. He examined the injured P.Ws. Under section 161, Cr.P.C.
' Accused Jail Badshah, Noor Shahzada, Guldali Shah and All Badshah voluntarily surrendered. The Investigating Officer arrested them on 18-2-1991, 28-2-1991 and 13-3-1991. On 5-8-1991 accused Zardali Shah and Gulwar Jan also surrendered and were arrested. On completion of the investigation challan was submitted in the Sessions Court for trial of the accused and in consequence of the trial Jalil Badshah and Gulwar Jan were convicted and sentenced as mentioned above.
6. In support of its case, the prosecution mainly relied on the eye-witness account of the victims, medical evidence as well as circumstantial evidence. As against it, the accused denied their guilt saying that they are innocent and falsely charged. They, however, denied to produce evidence in defence or to be ' examined under section 340(2), Cr.P.C.
7. We have heard the learned counsel for the parties and perused the record.
8. It is common ground between the parties that they are related inter se. It is also a matter of record that not a single disinterested person has come forward in support of the prosecution case.
9. The learned trial Court after examination of the evidence on record was of the opinion that the occurrence has not taken place at the same place and time, but at different places and on different occasions. In support of his conclusion he referred to the version in the F.I.R. And medical evidence as well as evidence of the eye-witnesses at the trial. He observed that no doubt the witnesses bore the stamp of injuries, but their evidence is contradictory and suffers from discrepancies. Yet he scanned the evidence in order to find out the real culprits who actively took part in the commission of the offence. Consequently he laid his hand upon accused Jalil Badshah and Gulwar Jan to have been responsible for the murder of deceased Tehsil Badshah and stab injuries to P.W. Wazirzada.
10. In the F.I.R. It is alleged that accused Noor Shahzada caused fire-arm injury to P.W. Wazirzada.
But according to the medical evidence there was no such injury found on the person of P.W.
Wazirzada. Thus, the charge of firing by accused Noor Shahzada at P.W. Wazirzada falls to the grounds.
11. P.W. Usman Gul is the lodger of the F.I.R. (Exh.PA.) in which he charged accused Guldali Shah and Ali Badshah for his fire-arm injuries. The Medical Officer who examined him found the following injuries on his person:-- "(1) Fire-arm entry wound on the medial side of right leg about 4" below knee-joint size about 1" x 1/2".
(2) A wound (stab appearance) size about 1/2" x 1/4" in size situated at the inferior angle of scapula left side."
12. As in the F.I.R. He did not mention a word about the stab wound on his person the learned trial Judge disbelieved him observing that:-- "It should be a strange phenomenon to observe that Usman Gul is particular about the stab wound sustained by P.W. Wazirzada at the hands of accused Jalil Badshah while he is absolutely silent about the stab wound that was inflicted upon his own person. One can hardly ignore the fact that the nature of injuries sustained by complainant Usman Gul have been declared as 'simple'.
Apparently the fire-arm wound was on the non-vital part of his body while he failed to account for the existence of stab wound on his body (wound No,2) totally. This would make one feel doubtful about the prosecution claim that complainant Usman Gul was wounded with fire shots of accused Gul Dalishah and Ali Badshah, at least on the spot and at the time when the assassination of Tehsil Badshah took place."
13. In the F.I.R. P.W. Usman Gul has specifically alleged that when the parties came across each other in the way, accused Zardali Shah and Ghafoor Badshah fired at deceased Tehsil Badshah as a result of which he was hit and died on the spot. Before proceeding in this connection, we pause here to record that neither in the F.I.R. Nor in their evidence before the trial Court the eye-witnesses have stated that accused Jalil Badshah had effectively fired at the deceased who expired on the spot. Very strangely, however, the learned trial Judge has held accused Jalil Badshah responsible for the murder of deceased Tehsil Badshah by effectively firing at him. He accordingly convicted him under section 302/34, P.P.C. As well as under section 337-F(ii), Qisas and Diyat Ordinance. In doing so, the learned trial Judge was wrong and did not exercise care and caution while evaluating the evidence against accused Jalil Badshah who was charged only for causing stab injuries to P.W.
Wazirzada. We will examine the evidence against accused Jalil Badshah at an appropriate stage in this judgment.
14. Now, as stated earlier, the prosecution has charged accused Zardali Shah and Ghafoor Badshah for the murder of deceased Tehsil Badshah .By firing at him. In this respect, reference to the medical evidence will be relevant. Dr. Asif Iqbal (P.W.12) had conducted autopsy on the dead body of deceased Tehsil Badshah and found the following external injuries on his person:-- "(1) FA.I. Entry wound on the back on right side at the 10 intercostal space about 2" from midline size about 1/4" x 1/4" in diamention.
(2) FA.I. Exit of wound No,1 on the front right side of chest at the sixth itnercostal space about 1" from midline size about 1" x 1-1/2". Corresponding holes in the Qamis and Banyan found and bloodstained.
Internal Cranium and spinal card. Scalp, skull and vertebrae Healthy.
' Membranes, spinal card.... Healthy. Thorax ' Walls, ribs and cartilages..... Thoracic wall injured 6th rib fractured.
' Pleurae.... Injured.
' Right lung..... Injured.
' Blood vessels Thoracic blood vessels on the right side of chest.... Injured.
Abdomen ' Upper part of abdominal wall from back injured. Peritoneum and diaphragm on the right side injured.
' Stomach. Contains semi-digest food.
' Liver.... Injured.
Muscles, bones and joints.
' Intercostal muscles and muscles on the back injured.
' 6th rib fractured."
' Death in the opinion the doctor occurred from injury to vital organ e.g. Right lung, liver and major blood vessels in the thoracic cavity resulting into severe bleeding, shock and death caused by fire- arm. Probable time between injury and death given was within half an hour and between death and P.M. Was 3 to 6 hours.
15. It is clear from the above that the deceased was caused only one firearm injury with an entrance on the back and exit on the front near the chest. It, therefore, does not stand to reason that the deceased was facing the accused when he was fired upon, as the F.I.R. And the site plan suggest. Faced with this situation, the prosecution shifted its stand to show that the deceased while running for fear of his life was fired upon from behind in the back. The witness, therefore, introduced a different story in their evidence at the trial by saying that deceased Tehsil Badshah was escaping when accused Zardali Shah commanded accused Ghafoor Badshah not to spare him. Accordingly, accused Ghafoor Badshah effectively fired at the deceased as a result of which he succumbed to the injuries on the spot. The learned trial Judge disbelieved this story and observed:-- "This is quite contrary to the contents of the F.I.R. Wherein the complainant has alleged that Tehsil Badshah was killed with the firing of Zardali Shah and Ghafoor Badshah. Instead of active role attributed to accused Zardali Shah in the F.I.R., the P.Ws. Have in their Courts statements confined his involvement to commanding his co-accused Ghafoor Badshah to eliminate Tehsil Badshah.
Since the P.M. Report of deceased Tehsil Badshah did not fit in the prosecution scheme of attributing effective firing to Zardali Shah alongwith Ghafoor Badshah, it was though best to restrict his role to mere command. This must lower the credibility of prosecution witnesses, as regards the involvement of Zardali accused."
16. We do not see any reason to disagree with the above observations. We accordingly uphold his finding.
17. With regard to the fire-arm injuries sustained by P.W. Rashid Khan and Sanab Gul, it is alleged in the F.I.R. That in the course of occurrence, these two witnesses rushed to the spot for the rescue of the complainant party. Meanwhile, accused Mir Sultan fired at P.W. Rashid Khan who suffered injuries. While accused Gulwar Jan and Mir Sultan both fired at P.W. Sanab Gul who too sustained injuries.
18. We are not concerned in these proceedings with the fire-arm injuries of P.W. Rashid Khan allegedly caused to him by accused. Sultan who is absconding, his guilt or innocence will be determined when he surrenders or is arrested and put to trial.
19. In so far as the fire-arm injuries caused to P.W. Sanab Gul are concerned, reference in this behalf to the medical evidence will be relevant. The Medical Officer who examined P.W. Sanab Gul found the following on his person:-- "(1) Fire-arm injury entry wound on the front of abdomen 2" to the left from umbilicus size about 1/4" x 1/4" in diamension.
(2) Fire-arm injury exit of wound No,1, on the back of abdomen on the left side at the level of left iliac crest upper margin in the posterior axillary line size about 1/2" x 1" fat protruded out through exit wound."
20. Now P.W. Sanab Gul has charged accused Gulwar Jan for firing at him. His evidence cannot be doubted; firstly because it was a daylight occurrence and there can be no question of mistaken identity. Secondly, this conclusion is strengthened by reference to the site plan according to which P.W. Sanab Gul was facing accused Gulwar Jan when the latter fired upon the former. The learned counsel for the accused contended that in the F.I.R. Accused Mir Sultan and Gulwar Jan both have been charged to have fired at P.W. Sanab Gul, but as according to the medical evidence, he had suffered only one fire-arm injury, the prosecution cannot be said to have satisfactorily proved its case against accused Gulwar Jan. He urged that when according to the F.I.R. The victim was fired upon by the two culprits, he would have suffered more than one fire-arm injury. This conclusion is without any significance. Correct that in the F.I.R. It is alleged that accused Mir Sultan and Gulwar Jan both have fired at P.W. Sanab Gul but he (Sanab Gul) is not the lodger of the F.I.R. P.W. Sanab Gul has in his evidence held accused Gulwar Jan responsible for the fire-arm injury suffered by him in the occurrence. Not only had this but the other witnesses also supported him. The finding of the learned trial Judge as regards the guilt of accused Gulwar Jan, in our view, is based on proper appreciation of evidence. We accordingly uphold it.
21. This brings us to examine the evidence with regard to the charge against accused Jalil Badshah.
We have earlier pointed out in para. 13 that the learned trial Judge had wrongly held him responsible for the murder of deceased Tehsil Badshah. As a matter of fact, the prosecution has charged him for stabbing P.W. Wazirzada. According to the medical evidence, P.W. Wazirzada had the following injuries on his person:-- "(1) Stab wound on the postero lateral aspect of right leg about 6" above the right ankle-joint. Size about 1" x 1/4" and 1/2" deep.
(2) Stab wound on the left buttocks size about 1/2" x 1/4" and 1/2" deep."
22. Now the charge against accused Jalil Badshah that he had stabbed P.W. Wazirzada would appear to be consistent and forthright. In the F.I.R. P.W. Usman Gul has held accused Jalil Badshah responsible for causing stab injuries to P.W. Wazirzada. In the trial Court too, the eye-witnesses have not uttered a single word as to create doubt in their charging accused Jalil Badshah for inflicting stab injuries on P.W. Wazirzada who too has charged none but accused Jalil Badshah for the stab injuries suffered by him. As the evidence against accused Jalil Badshah for causing stab injuries to P.W. Wazirzada is I consistent and does not suffer from any discrepancy or exaggeration whatever, D the charge against him is, therefore, proved beyond any doubt.
23. As a result of the foregoing discussion, the conviction and sentence awarded to accused Jalil Badshah under section 302/34, P.P.C. By the trial Judge is set aside but the conviction and sentence awarded to him under section 337-F(ii), Qisas and Diyat Ordinance is maintained. Similarly the conviction and sentence awarded to accused Gulwar Jan under section 337-D of Qisas and Diyat Ordinance is also maintained.
24. With the above modification in the conviction and sentence of accused Jalil Badshah only, his and the appeal of Gulwar Jan is dismissed.
25. Consequently, the State appeal and the revision petition of the complainant ipso facto fail and are dismissed. 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.