ABDUL QADEER CHAUDHARY, J.---The petitioners seek leave to appeal against the judgment of Peshawar High Court, Peshawar dated 19-12-1993 whereby their appeal was dismissed.
2. The petitioners were convicted by the learned Additional Sessions Judge, Kohat under section 302/34, P.P.C. And sentenced them to life imprisonment and fine of Rs.20,000 each or in default to suffer R.I. For two years each. Benefit of section 382-B, Cr.P.C. Was also given to them. They were acquitted of the charge under section 307/34, P.P.C. Their appeal was dismissed by the High Court with the modification that sentence in lieu of payment of fine was reduced to six months' R.I. Each.
Rs.50,000 each was awarded as compensation under section 544-A, Cr.P.C. To the heirs of the deceased or in default to suffer six months' S.I. The criminal revision filed by the complainant for the enhancement of sentence was dismissed.
3. The facts to be noted are that Haji Izat Gul P.W.5 lodged a report at the police station that he alongwith his son Naikzad Gul (deceased) on 12-4-1985 were returning to their house after offering Juma prayers. They were fired at by both the petitioners with the result that Naikzad Gul fell on the ground and expired. The complainant did not receive any injury. The motive for the offence is that the petitioners were annoyed over the marriage of Mst. Tahira with Noorzad Gul, brother of the deceased.
4. The prosecution in order to bring home the charge relied upon the ocular testimony of P.W.5 and P.W.6 Haji Izat Gul and Mst. Salamat Jan espectively. Mst. Salamat Jan is the wife of P.W.5.
According to these witnesses they had .-seen the occurrence. According to P.W.8 Dr. Muhammad Yunus the deceased had died on account of fire-arm injuries. Another circumstance against the petitioners is that they absconded after the occurrence. Petitioner Khial Badshah was arrested on 12-11-1989 and petitioner Khush Rang Badshah on 22-10-1990. The police raided their house and apprehended them. They could not explain their long abscondence .And according to the learned High Court they gave evasive reply to the question put to them about their abscondence while recording their statements under section 342, Cr.P.C.
5. The learned counsel for the petitioners has submitted that the ocular testimony is belied by the medical evidence as according to the prosecution case the accused had made two fire-shots but according to the medical evidence the deceased had received three gunshots injuries. According to the doctor the deceased had received the following injuries:- "(1) Fire-arm entry wound back of left shoulder-joint, 1/4" x 1/4" in size.
(2) Fire-arm exit wound tip of left shoulder-joint, 1/4" x 1/4".
(3) Two fire-arm entry wounds 2" above each other, one on the medial side of right side buttock and one on the level of innel left, each 1/4" x 1/4" in size.
(4) A large fire-arm exit wound left iliac fossae 3" x 3" in size.
(5) Scratch on left knee joint 1" x 1" in size."
Injury No.3 appears to be the, result of one fire shot. The doctor was not questioned by the defence that the deceased had received three gunshot injuries. There is no conflict between the medical evidence and the direct evidence. The A next infirmity pointed out by the learned counsel is that according to the doctor the deceased might have survived for half an hour but according to the complainant the deceased died after receiving the injuries. The doctor had not given any positive statement. He stated that the deceased could have survived for about half an hour after the receipt of injuries. In the absence of the positive statement it cannot be said that the ocular testimony is belied by the medical evidence. The next argument advanced by the learned counsel is that according to the complainant they had not taken any food before proceeding to mosque for offering Juma prayers but according to the doctor there was semi-digested food material which was not identifiable. The two Courts have considered the statement of the doctor on this point and the High Court has rightly observed that there is possibility of having eaten other thing by the deceased. The occurrence had taken place in the broad daylight. The accused/petitioners were B known to the complainant prior to the occurrence. The complainant has explained as to why no other person from the locality had attracted to the scene.
' He has stated that nobody from the surrounding was attracted to the spot as routine of their village practice no one would come out from their houses while hedring the report of fire shot.
There is no misreading of evidence. The evidence has been properly appreciated by the two Courts below. There is no force in this petition and the same is dismissed': Leave to appeal is refused.