' ABDUR RAUF KHAN LUGHMANI, J.---This appeal by two brothers, namely, Afsar Ali and Asghar Ali, residents of Khujari, Police Station Kaki, District Bannu, is against order, dated 16-4-1995 of the learned Sessions Judge, Bannu, who convicted them under section 302, P.P.C., read with section 34, P.P.C., and sentenced them to suffer imprisonment for life with a fine of Rs,30,000 each or in default of payment of fine, to further suffer six months R.I. Each, 3/4th of the fine, if realized, was directed to be paid to the heirs of the deceased by way of compensation. The benefit of section 382-B, Cr.P.C., was also extended to the convicts. Daraz Khan complainant, has also filed Criminal Revision No,7 of 1995 seeking enhancement of the life imprisonment to death and also award of compensation in terms of section 544-A, Cr. P. C .
2. The case of prosecution, in short, is that on 5th June, 1984, Daraz Khan (P.W. 6) along with Abbas Khan (P.W. 7) took dead body of his brother Zarwali Khan to Police Station, Kakki, and made report with Nasrullah Khan, S.H.O. (P.W.10) at about 6-15 a.m. Regarding the occurrence taking place in the wee hours of the morning resulting the death of his brother and injuries to Abbas Khan (P.W.7). It was alleged in the initial report that he (complainant) had just offered his morning prayer, when his brother Zarwali Khan and Abbas Khan son of Gul Said entered the Mosque and started making ablution on the side of water pond. Meanwhile, accused Asghar Ali and Afsar Ali duly armed with D.B. Shot Guns, while accused Nazar Ali and Murad Ali armed with 7MM rifles, entered and started firing of Zarwali Khan and Abbas Khan. With the fire shots of accused Afsar Ali, Nazar Ali and Asghar Ali, Zarwali Khan was hit and fell into the pond, whereas Abbas Khan after the receipt of firearm injury at the hand of Murad All fell down. Mir Qadaz and Sher Muhammad who happened to be present in the Mosque also witnessed the occurrence. After the occurrence the four accused bolted away. The motive is stated to be blood feud between the parties.
3. After recording report Exh.PA, Nasrullah Khan, S.H.O. (P.W.10) read over the report to the deponent as well as Abbas Khan, who after admitting the same to be correct, thumb-impressed. He prepared injury sheet (Exh.PB) and inquest statement (Exh.PC) in respect of deceased Zarwali Khan and also prepared injury sheet (Exh.PE) regarding Abbas Khan. He sent the injured and the dead body to the Hospital. He proceeded to the spot and prepared site plan. (Exh.PN) with all its foot notes at the instance of P.W. Daraz Khan. The blood was taken up from the place where Zarwali Khan deceased was fired at by the assailants and also from the place of Abbas Khan P.W. Those were sealed into parcel, vide memo. Exh.PH. One empty of .12 bore (P-1), two empties of 7MM (P-2) which smelt freshly discharged and three empties of 7 mm (P.3) and 3 card board (P.4) were taken into possession, vide Memo Exh.PJ in the presence of marginal witnesses. Blood-stained trouser, bearing cut marks of P.W. Abbas Khan sent by the Doctor, was sealed into parcel, vide memo.Exh.PK. Likewise, one trousers (P-7) and Banyan (P-7), bloodstained without marks belonging to Zarwali Khan and a bottle containing 3 pellets sent by the Doctor were also taken into possession, vide memo.Exh.PL. He recorded statements of the P. Ws. And made a effort to arrest the culprits, but in vain. He obtained warrants under section 204, Cr.P.C. And successfully applied for issuance of proclamation under section 87/88, Cr.P.C.
4. Dr. Qadardad Khan (P.W.4) performed autopsy on the body of Zarwali Khan at 8-40 a.m. On 5-6- 1984 and found the following injures on external examination:---
(1) Firearm injury entry wounds 6 in number in group form on right thigh anteriorly size 1/4" x 1/4".
(2) Firearm injury exit wound four in number on right thigh posteriorly related to wound No,1 size 1/2" x 1/2".
(3) Firearm injury five in number entry wound in group form size 1/6" x 1/6".
(4) Firearm injury exit wound on the left Lumber Region five in number situated posteriorly related to wound No,3, size 1/2" x 1/2".
(5) Firearm injury entry wound on left side chest posteriorly size 1/4" x 1/4".
(6) Firearm injury exit wound on upper end of Sternum size 5" x 3";
(7) Firearm injury entry wound on lateral aspect of right shoulder joint, size 1/4" x 1/4".
(8) Firearm injury exit wound on medial aspect of right shoulder joint, in the Axilla size 1/2" x 1"; related to wound No,7;
(9) Firearm injury entry wound on left Axilla, size 1/6" x 1/6".
(10) Firearm injury entry wound on left Axilla 4" below wound No,9 size II" x 1/6".
Internal Examination ' Thorax, walls, ribs, cartilages, pleurae, larynx, trachea, right lung, left lung, pericardium, heart, blood vessels, abdomen, walls, peritoneium, diaphragm; stomach, small intestine, large intestine and kidney were injured. Right femour, right humorous and sternum were fractured. The stomach contained semi digested food.
5. Dr. Ahsanullah Wazir (P.W./9) examined Abbas Khan (P.W.7), brought by Ajmal F.C., at 8 a.m., on 5th June, 1984 and noticed the following injuries:---
(1) Entry wound on the lateral side left knee joint 1/6 ' ' '6".
(2) Exit wound on the medial side of left knee /cant 1/4 s 114 "
6. Accused Nazar Ali was arrested on 2-6-1987, after his pre-arrest bail was turned down. The remaining accused were absconding. At the conclusion of the trial, Nazar All was found guilty under section 302, P.P.C., and read with section 34, P.P.C., and sentenced him to imprisonment for life with a fine of Rs,10,000 or in default thereof to further suffer two years' imprisonment. Half of the fine, if realized, was directed to be paid to the heirs of the Zarwali Khan. The benefit of section 382- 8, Cr.P.C., was also extended to the accused by the Trial Court vide judgment, dated 11-3-1990.
7. Daraz Khan complainant also filed Criminal Revision No,5 of 1990 for the enhancement of sentence of life imprisonment to that of death and for award of suitable compensation under section 544-A, Cr.P.C. The High Court, vide judgment, dated 19-10-1992, upheld the conviction and sentence of Nazar Ali. However, criminal revision was accepted to the extent that the convict should pay compensation to the tune of Rs,30,000 to the heirs of deceased or in default thereof to undergo simple imprisonment for six months.
8. Nazar All sought leave to appeal against the judgment 'of this Court, dated 19-10-1992, but met with no success as the Supreme Court of Pakistan declined to grant leave, vide judgment, dated 16-10-1993.
9. Accused Murad All is absconder. Accused Afsar All and Asghar All were absconders. Asghar All was granted bail by the Court of Sessions on 19-2-1986 after his arrest but he subsequently again absconded. Accused Afsar All and Asghar All were arrested as a result of successful raid conducted by Kalam Rais Khan, S.H.O. On 20-3-1992.
10. 10 witnesses were produced by the prosecution in support of its case. Both the convicts, during the course of examination under section 342, Cr.P.C., did not admit to have committed crime, claimed innocence and false implication. As regards abscondence, the appellant Afsar Ali Shah simply stated that the allegations are incorrect and appellant Asghar Ali Shah claimed to have gone along with Afsar Ali Shah to Karachi to eke out his livelihood and when they left Karachi due to law and order situation and came to the village, where on coming to know of the case, they surrendered. However, no evidence was called in defence. The prosecution mainly relied on the ocular testimony furnished by Daraz Khan P.W.6 and Abbas Khan P.W.7, the motive, the recoveries, medical evidence and the long standing abscondence of the appellants. The Trial Court, relying on the prosecution evidence, convicted and sentenced the appellants as described in para.1 of the judgment.
11. Mr. Dost Muhammad Khan, learned counsel for the appellants, contended that the findings of the learned Trial Court holding his clients guilty of the charge are result of failure to appreciate the evidence and jarring features in the case making it wholly doubtful. He was critical of the lodging of the F.I.R., by P.W. Daraz Khan, instead of P.W. Abbas Khan, who having been allegedly injured was relegated to secondary position, would indicate reluctance of P.W. Abbas Khan to charge as many as four persons and later on he was prevailed upon to become a witness. It was submitted with reference to "morning prayer time" mentioned in the relevant column of the F.I.R., as time of occurrence to convince us that there was delay in making report for which no explanation whatsoever has been 'offered. Another grievance expressed by the learned counsel for the appellants is failure to produce independent witnesses. Lastly, it was stressed that the medical evidence contradicts P.Ws. Daraz Khan and Abbas Khan that the appellants fired from higher level of 7/7-1/2 feet.
12. On the other hand, Syed Saeed Hassan Sherazi, learned Assistant Advocate-General, did not agree with the criticism of the learned counsel for the appellants and justified the judgment of the Trial Court by stating that the initial report was lodged with promptitude by P.W. Daraz Khan. P.W.
Abbas Khan is an independent person having no reason to falsely involve the appellants and he fully supported the prosecution version. The various recoveries and unexplained long abscondence of the appellants, according to him, sufficiently corroborate the ocular testimony of P.Ws. Dual Khan and Abbas Khan.
13. Syed Zafar Abbas Zaidi, learned counsel for the complainant, not only defended the prosecution case, but also in support of his Criminal Revision No,7 of 1995 pleaded that the appellant deserves capital punishment, proper compensation was not awarded to the heirs of the deceased and also the appellants should have been fined.
14. There is nothing unusual if the report was made by Daraz Khan (P.W.6), he being brother of the deceased and witness to the tragedy. Further, P.W.7 Abbas Khan has also accompanied him to the Police Station, where the former also thumb-marked the F.I.R., meaning thereby that he fully supported the accusations against the accused party. No suggestion was put to P.Ws. Daraz Khan, Abbas Khan or the Investigating Officer that he (P.W. Abbas Khan) was hesitant to charge the accused party. In point of fact, the Investigating Officer, in the very beginning of his statement stated that P.Ws. Daraz Khan and Abbas Khan came to the Police Station and after recording the report at the instance of P.W. Daraz Khan, P.W. Abbas Khan admitted it to be correct and also thumb-impressed the same.
15. No exception can be taken to "morning prayer time" in the F.I.R. It is a matter of common knowledge that village rustics do usually specify the time as "Deegarvel "Peshinvela "Sham Qazavela" or "khuftanvela". We also do not find any delay in making the report. The morning prayer time on the eventful morning was up to 5-10 a.m. It is on record, notably in the statement of P.W.
Daraz Khan that the morning congregational prayer had been offered, when he went to the mosque and before the occurrence, he also offered prayer. The deceased and P.W. Abbas Khan came there to say their prayers .And that the deceased was in the process of making ablution when the accused party attacked. The time of occurrence comes to about 4-45 a.m. Considering that the gory occurrence in the early hours of the morning, taking of the dead body and arranging for a transport etc. Lodging of report by 6-15 a.m. In the Police Station, which is at a distance of about 5 Kilometers from the spot, can never be treated as delayed or result of an afterthought. It was, in our view, lodged without any loss of time.
16. P.W. Abbas Khan did concede presence of 3/4 persons < at the time of occurrence in the morning, but omission to produce them is not material for more than one reason. Firstly, P.W. Abbas Khan is an independent and impartial person having no ill will or grudge with the appellants. He bears stamp of presence on his person in the shape of firearm injury. Secondly, he equally stated that he did not remember, their names. It is well known that generally people are not prepared to appear as witnesses for fear of earning enmity.
17. As regards arguments of the learned counsel for the appellants, that the medical evidence is in conflict with the ocular testimony keeping in view that the fire was directed from a higher level. The distance between the assailants and the deceased is between 7 to 10 paces which comes to 21 to 30 feet. If this height is taken into consideration, the injury wounds would be higher than the exit wounds just by an inch. Again depending on the position of the victim whether he was standing or in the process of standing. Such a small difference of one inch cannot be determined by naked eye, unless measurement of injury and exit wound is from bone prominence. Further, the deceased cannot be expected to stand still like a statute at the time of firing. The sequence of the injuries sustained by the deceased is difficult to be determined. As is evident from the site plan Exh.PN, there is sufficient gap between two walls obviously for access to the place of ablution from the mosque and vice versa. The possibility of one or two assailants having come down cannot be ruled out. As stated earlier, apart from the statement of P.W. Daraz Khan, there is an independent person bearing a stamp of presence of his person. He has supported the accusations against the appellants. In a case "Manzoor and others v. The State and others" (1992 SCM R 2037) the Supreme Court of Pakistan relied on the ocular evidence with regard to the level of injuries as against the opinion of the doctor. In that case the convicts were riding horses at the time of firing at the deceased. It was held as under: "The level of the injuries as ascertained from the medical opinion is not destructive of the ocular evidence with regard to the actual firing done by the accused/ appellants. Such expert opinion cannot prevail over the reliable ocular ,evidence as held in Yaqoob Shah v. The State PLD 1976 SC 53."
18. P.W. Daraz Khan reiterated the version reflected in the F.I.R. No doubt, he is brother of the deceased but relationship per se is not enough to disbelieve him. He is supported and corroborated by the testimony of Abbas Khan (P.W.7), an independent witness and whose presence can in no manner be doubted. Both the P.Ws. Are consistent, clear and categorical that the appellants duly armed with D.B. Shot guns fired, resulting in the death of Zarwali and injury to Abbas Khan. In addition, there is long-standing abscondence of the appellant, in that, appellant Asghar Ali Shah was arrested on 2-7-1985 by Nasrullah Khan P.W. He after release on bail, absconded. Again, he was arrested along with appellant Afsar Ali Shah as a result of a raid by Kahan Rais Kitan P.W.8 on 20-3-1992. Appellant Afsar Ali C Shah did not .Admit his abscondence and simply termed it as incorrect.
19. The seizure of one empty of .12 bore, two empties of 7 MM which smelt freshly discharged, three empties of 7 MM and 3 card 'boards from the spot also furnish corroboration.
20. We are convinced that the learned Trial Court has rightly convicted the appellants.
21. As regards the quantum of sentence, suffice to say, that Nazar Ali co-accused, in the earlier trial, was found guilty and sentenced to suffer life imprisonment with a fine of Rs,10,000 or in default thereof to further suffer two years R.I. But the High Court, while maintaining the sentence of life imprisonment on the ground that the deceased died due to injuries of various dimensions, burdened the convict to pay compensation amounting to Rs,30,000 in addition to fine of Rs,10,000.
The compensation was to be paid to the heirs of the deceased or in default thereof to further suffer six months S.1. The appellants too deserve the same treatment. We, therefore, while maintaining the sentence of life imprisonment of the appellants and that of fine of Rs,30,000, direct that tIle fine if recovered, is to be paid to the heirs of the decease or in default to suffer six months S.I. And the convicts are further fined Rs,10,000 each payable to the State or in default thereof to further suffer six months S.I.
22. Accordingly, the appeal of appellants/convicts is dismissed, while the revision petition tiled by the complainant is disposed of in the above terms.