' MUHAMMAD AZAM KHAN, J.--Azizur Rehman.Son of Said Rehmat, resident of Shah Beka, Police Station Kabal, District Swat, was tried for having committed the murder of Sultan Zada deceased along with his co-accused namely, Aqal Zada (now acquitted) in case F.I.R. No, 262, dated 13-6- 1994 of Police Station Kabal, Swat for off rites under section 302/307/34, P.P.C.
' He was found guilty for the offence of 'Qatl-i-Arrid. And was convicted by the learned Sessions Judge/Zilla Qazi, Swat vide his order, dated 4-6-1997 and sentenced to death as 'Tazir'. The convict has challenged his conviction and sentence through this appeal (Criminal Appeal No,166 of 1997).
We have also before us Murder Reference No,8 of 1997, therefore, we propose to dispose of both the matters by this single judgment.
2. Facts of the case briefly stated are that Syed Ghani Shah A.S.I. (P.W.9) P.P. Shah Dheri of Police Station Kabal on 13-6-1994 at 9.30 a.m. Received information that a murder had taken place at village Nusrat in a grave-yard. He accordingly rushed to the spot where he met Ali Rehman (P.W.7) by the side of the dead body of Sultanzada deceased who made the report before him to the following effect:-- "On the eventful day at about 8.15 a.m. He along with his brother Amir Rehman and his nephew Sultanzada deceased .And one Dilawar were proceeding to village Shah Dheri in a Bus and had descended at Nusrat Bus stop and thereafter, proceeded on foot, when they were followed by Azizur Rehman appellant accompanied by his co-accused Aqalzada who were armed with firearms. When they reached the graveyard the two culprits aforesaid started firing at Sultanzada deceased who was hit and killed while he and his companions escaped unhurt. According to him the occurrence had been witnessed by his companions aforesaid The motive given by him was a dispute over womenfolk."
3. After having recorded the aforesaid report Exh.P.W.7/1 it was sent to the Police Station for the registration of the case where it was incorporated into Exh.P.W:.10/4 on the same day at 10.30 hours.
4. Syed Ghani Shah, A.S.I. (P.W.9) then prepared the injury sheet Exh.P.W.8/1 and inquest report Exh.P.W.8/2 of the deceased and then handed over the dead body of the deceased to the doctor who had also arrived at the spot along with the S.H.O. Musharraf Khan (P.W.10).
' Musharraf Khan, S.H.O. (P.W..10) took over the investigation. He recovered the blood-stained earth Exh.P.2 from, the spot vide memo. Exh.P.W.3/1 and then prepared the site plan Exh.P.W.10/1 at the instance of the ocular witnesses. On 14-6-1994 he arrested the co-accused Aqal Zada and from his house search he recovered a Kalashnikov No,56-1xx 241688 China Made along with 5 rounds of the same bore ' vide memo. Exh.P.W.10/2. On 18-6-1994 he took into possession the blood stained shirt of the deceased having a bullet' mark vide memo. Exh.P.W .2/1. He took into possession a letter dispatched by one Abdul Mafin to the deceased threatening him with dire consequences, dated 1- 1-1993 vide mono. Exh.P.W.5/1. This letter is at page 32 of the paper book. He then sent the blood- Stained earth and the clothes of the deceased to the Chemical Examiner whose report is Exh.P.W.10/3. The accused were absconding and he obtained warrants under section 204, Cr.P.C.
And proclamation under section 87, Cr.P.C. Against Ahem. However, the appellant was arrested on 11-6-1996.
5. The examination of the dead body of the deceased was carried by Dr. Faribullah (P.W.1) whose report is Exh.P.W.1/1, and he found the following injuries on the person of the deceased:--
(1) One entry wound present at the left inferior angle of the scapula..
(2) One wound 3" inches below from the 1st wound, vertically downward.
(3) Two wounds, 2" apart present at the base of the neck.
(4) Four (4) wounds present at shoulder scattered in an area of 4 inches. Each wound is 1 c.m. And edges of the skin are inverted.
(5) Two exit wounds present in chest anteriorly on the left side.
' One at the 3rd castal cartilage on the left side of the sternum.
' The other wound is 2 inches to the left of downward of the 1st wound.
' The edges of both the wounds are everted and are 1.5 c.m. Each ' Two round big pellets are present auteriorly at the shoulder joint, just under the skin. They are 1-1/2 inch apart from each other.
' Death was due to excessive haemorrhage, shock and injury to the: vital organs.
6. The accused was examined under section 342,, Cr.P.C. Wherein he denied the accusation levelled' against him and professed innocence.
7. The prosecution relied on the testimony of 10 witnesses out of which the important witnesses are Ali Rehman (P.W.7) who is the complainant in the case and is uncle of Sultanzada deceased. At the trial he supported the contents of his report Exh.P.W.7/I, in totality. His statement was corroborated at the trial by Amir Rehman (P.W.8) who is the father of the deceased and uncle of Azizur Rehman appellant. He also in all material particulars brought a consistent charge of effective firing at the deceased by the appellant. However, at the trial he explained the motive for the offence in detail which has not been described in the F.I.R. According to him Azizur Rehman appellant had made a report in P.P. Shah Dheri a day earlier to the incident wherein he had alleged that the deceased had committed Zina with his wife, therefore, the prosecution relied on the testimonies of these two witnesses and the learned trial Court has also based the conviction of the appellant upon the testimony of the aforesaid witnesses coupled with the fact that motive for the offence though not reported in the F.I.R. Had already been established from the examination of the evidence recorded at the trial. The trial Judge has observed in his judgment that according to the custom of the area with regard to .a female shame no instance is reported to the, police and the practice in the area is that the police summon both the parties to the police station or police post for investigation where after action is taken. It is in evidence that on the eventful day both the parties were proceeding to P.P. Shah Dheri in connection with the complaint lodged by the appellant against the deceased.
They descended from the bus at Nusrat Killy and had followed the regular path on foot, where the appellant effectively fired at the deceased and killed him. The occurrence was obviously reported at the spot by Ali Rehman before Syed Ghani Shah A.S.I. Who had reached the spot soon after the occurrence. The presence of Ali Rehman at the spot, therefore, has been established beyond reasonable doubt. He is the cousin of the deceased as well as that of the appellant and had no motive to falsely implicate the appellant. In the report Ali Rehman has charged the appellant and his co-accused namely, Aqalzada who is his son-in-law and with whom he had effected a compromise in consequence of which he was acquitted. The medical evidence suggests that the deceased was hit and killed with the fire shots of pellets fired from a shot gun and the evidence also suggests that the appellant was attributed shot gun at the time of occurrence with which he committed the offence.
8. The learned counsel for the appellant vigorously urged that the F.I.R. Was recorded after preliminary investigation hence no credibility is attached to it. He further added that it was an unseen occurrence, the evidence produced by the prosecution was interested as Ali Rehman and Amir Rehman ocular witnesses were related to the deceased.
' The learned counsel for the complainant and the learned State counsel supported the impugned judgment in its material particulars.
9. Having closely scrutinized the testimony of Ali Rehman (P.W.7) and Amir Rehman (P.W.8) coupled with the fact that there was a motive for the appellant to retaliate the assault allegedly brought by the deceased against him in connection with this objectionable relations with his wife and his prolong abscondence of about two years would suggest that the ocular account in the instant case intrinsically rings true and inspires confidence. The assertions of the learned counsel for the appellant have not impressed us. The two witnesses of the prosecution, All Rehman (P.W.7)Nand Amir Rehman (PW.8) are equally related to the appellant, therefore, their relationship per se is no ground to disbelieve them unless and until it is shown that' they had strong motive to implicate the accused or that their presence at the spot was doubtful. Mere relationship, therefore, of ocular witnesses is not coffin dent to' disbelieve their testimony and reference in this connection is made to PID 1976 SC p.53.
We are of the view that the material available on the record is reasonable and sufficient so far as the culpability of the appellant is concerned. As it is net a case for death penalty because the motive suggests that the occurrence was the result of a dispute arising out of the illicit relations of the wife of the appellant with the deceased, therefore, while maintaining the conviction of the appellant we reduce the sentence from the penalty of death to life imprisonment and to pay Rs,5,000 as compensation under section 544-A, Cr.P.C. To be paid to the, legal heirs of the deceased failing which he shall suffer further six months S.1. The "benefit of section 382-B, Cr.P.C.
Shall also be extended to the appellant. The Murder Reference is answered in the negative. The appeal is partially accepted accordingly.
Sentence reduced. 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.