1. ' MALIK HAMID SAEED, J.--- Azad Khan, Nourases Khan, Khiyalwal, Noor Janan and Zair Muhammad charged under section 302/324/ 148/149, P.P.C., vide F.I.R. No,19, dated 15-1-1994 of Police Station Domel, Tehsil and District Bannu, were tried by the learned Special Judge, Bannu who vide his judgment, dated 31-7-1997 convicted and sentenced them each to imprisonment for life and a fine of Rs,50,000 each or in default further six months' S.I. Each. The fine on realization was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to all the accused. Feeling aggrieved of their conviction and sentences the convicts have filed the appeal in hand.
2. Facts of the case in brief are that on 15-1-1994 at 9-00 a.m. The deceased complainant was present in her house when the appellants duly armed with Topaks encircled her house and started firing at her as a result whereof she was hit, got injured and fell on the ground. The accused- appellants after committing the offence decamped from the spot towards their houses. Motive for the offence is that a few days back a quarrel had taken place between the children of the parties.
3. The report was recorded by Faridullah Khan, S.H.O. Police Station Domel, Bannu (P.W.13) vide F.I.R./Dying Declaration (Exh.P.A.). It was read over to the complainant and she admitting it correct thumb-impressed it. He then prepared her injury sheet (Exh.P.W.8/2) and referred her for treatment and examination under the escort of Khanzada, Constable (P.W.5). He then went to the spot and carried out the spot inspection and took into his possession one spent bullet of 7.62 bore and four other bullets of the same bore vide memo. (Exh.P.W.4/3) in presence of the marginal witnesses. He also took into possession a pair of Chappal (P.8) from the place of the accused Azad Khan vide memo. (Exh.P.W.4/4). Vide memo. (Exh.P.W.4/1) he took into possession bloodstained earth from the spot. This witness also took into possession Shalwar (P.9) of the injured which was blood-stained with corresponding cut marks sent by the doctor which was taken into possession vide memo.
2. (Exh.P.W.4/5). Similarly, he took into possession seven crime-empties of 7.62 bore (P.1), six crime- empties of the same bore (P.2), 9 crime-empties of the same bore (P.3), four crime-empties (P.4) of the same bore. On 16-1-1994 he received a blood-stained shirt (P.1/A) of the complainant who had succumbed to the injuries by then which was sealed into a parcel in presence of the marginal witnesses vide memo. (Exh.P.C.). On getting information about the death of the complainant section of law was changed and section 302, P.P.C. Was inserted in all the relevant documents. The blood-stained articles were sent to the laboratory. The accused were absconding and he initiated and completed proceedings under section 204/87, Cr.P.C. Against them in the Court of Maga Magistrate. Thereafter, this witness was transferred.
3. ' Taj Ali Khan, Inspector, S.H.O. Submitted complete challan in Court on 25-2-1994 under section 512, Cr.P.C. Muhabat Khan, A.S.-I. (P.W.7) arrested accused Azad Khan and Nauroz Khan on 30-11-1994 as they voluntarily surrendered before him. Then he submitted supplementary challan against these accused in Court.
4. ' On 24-2-1996 Ashraf Zaman, S.H.O. (P.W.6) arrested accused Noor Janan and Zair Muhammad while Khial Wal accused was arrested on 4-2-1996 and, therefore, supplementary challan was submitted against these accused in Court.
5. ' The prosecution examined as many as thirteen witnesses in support of its case.
6. ' Lady Doctor Shahida Naveed, Medical Officer, Khyber Medical College, on 16-1-1994 at 11-05 a.m.
7. Conducted autopsy on the dead body of the deceased and found the following on external injuries on:
(1) Fire-arm entry wound 1/2 c.m. In diameter on the front of right lower abdomen; 3 c.m. From right liliac crest, 7 c.Ms. From mid-line.
(2) Fire-arm exit wound 1-1/2 x 1/2 c.m. On left hip 3 c.m. From mid-line.
(3) Fire-arm entry wound 2 x 1/2 c.m. On medial aspect of forearm; 11 c.m. Below the right elbow.
(4) Fire-arm exit wound 3 x 2 c.m. On lateral aspect of right forearm. Underlining bone was found fractured; 2 c.m. Below on the lateral aspect of forearm from wound No,3.
(5) A lacerated gutter wound on right outer aspect of forearm 10 x 4 c.m. And 2 c.m. From right wrist-joint.
(6) A gutter wound on left medial aspect of leg 4 x 1 c.m. And 21 c.m. Below the left knee-joint.
8. ' On internal examination the doctor found all the organs of the thorax healthy. Abdominal walls, peritoneum small intestine, colon of large intestine, bladder, and vaginal wall were found injured along with uterus. The rest of the organs were found healthy and stomach was found empty. Right ulna, radius and pelvic bone were found fractured.
9. ' The doctor opined that the deceased died due to fire-arm injuries to the vital organs like illiun, colon, bladder, uterus, vaginal wall and blood vessels resulting in shock due to fire-arm.
10. ' As it was a medico-legal case of the hospital, therefore, duration between injuries and death was not given while the duration between injuries and post-mortem examination is 3 to 5 hours.
11. ' The convict-appellants when examined under section 342, Cr.P.C. Pleaded complete innocence and stated that they had been falsely charged.
12. ' We have heard learned counsel for the parties and have also gone through the record of the case with their valuable assistance.
13. ' The learned counsel appearing on behalf of the appellants submitted that deceased has not seen the occurrence as she was inside the house and she sustained the bullet injuries inside the house.
14. His second contention was that Malik Khidmat, husband of the deceased and grandson Said Umar were present in the house at the time of occurrence but not examined by the police, in support of the occurrence though the said husband of the deceased subsequently was cited as marginal witness to the recovery memo. Exh.P.W.4/1 and his statement under section 161, Cr.P.C. Was recorded by the Investigating Officer, wherein he stated that his sons disclosed to him the names of the accused-appellants. Thirdly the learned counsel submitted that the deceased has not given the description of the weapons and further Syed Nawaz Khan (P.W.11) and Marwat Khan (P.W.12), sons of the deceased were not visible to her being outside the house and, therefore, her statement to this effect in the dying declaration is not free from suspicion; Fourthly it was contended that Investigating Officer has not bothered to collect the hay from the places where the said P.Ws.11 and 12 were present at the time of occurrence to support their contention that they were making "hay" in their fields and lastly it was submitted that as per prosecution evidence firing by the accused- appellants continued for 7/8 minutes but only one spent bullet was recovered from inside the house which was the target of the accused firing.
15. ' The learned counsel for the complainant and learned Assistant Advocate-General in reply submitted that the prosecution has successfully proved the murder charge against the appellants through reliable testimony of Syed Nawaz Khan (P.W.f1) and Marwat Khan (P.W.12) with a specific charge in the dying declaration and refuted the arguments advanced by the learned counsel for the appellants.
16. ' It is not disputed that the deceased was met with unnatural death. No objection was raised to the place of occurrence and the time of death. The bloodstained earth was secured by the Investigating Officer from the place of occurrence which establishes the venue of occurrence. No previous blood-feud enmity of the deceased and the eye-witnesses (P.Ws.11 and 12) with the accused-appellants was pointed out by the learned counsel for the appellants.
17. The prosecution has relied upon the evidence of Syed Nawaz Khan (P.W.11), Marwat Khan (P.W.12) and the dying declaration. The said two witnesses have corroborated, in substance, the prosecution version. In this case no previous enmity was noticed which could have prompted the deceased to falsely charge the accused. Being co-villagers, the accused were known to the deceased. The recovery of empties from five different places of the accused-appellants further supports the prosecution version in establishing the presence of all the five accused-appellants at the scene of occurrence. This piece of the prosecution evidence has totally gone rebutted.
18. ' Dying declaration is so short and brief consisting of twelve lines only which speaks by itself that there was no exaggeration on the part of the Police or the deceased and, therefore, it could not be said to have been tailored. Medical evidence furnished by three Doctors, which is in line with each other further corroborates the rest of the prosecution evidence.
19. ' Syed Nawaz Khan (P.W.11) and Marwat Khan (P.W.12) left the house as per their statements 10/12 minutes before the occurrence and this fact was in the knowledge of the deceased that her sons, the said two witnesses are working in the fields adjacent to the house and, therefore, they were named by her as eyewitnesses to the occurrence in the F.1.R.-cum-dying declaration. Both these witnesses arrived to see her injured mother just after the occurrence when the deceased was quite conscious and in such a situation, she has rightly named the said persons as eye-witnesses to the occurrence. We do not find even a single infirmity in the statements of the said two eye-witnesses which could be fatal to the prosecution case. Despite the detailed cross-examination both the eyewitnesses remained consistent.
20. ' In order to counterblast the F.I.R.-cum-dying declaration the accused-appellants also lodged a cross-report (Exh.P.W.13/D-1) which was subsequently cancelled. The cancellation of the said cross-report was challenged up to the august Supreme Court of Pakistan and under the orders of the Honorable Supreme Court, the challan of the cross-case was submitted to the learned trial Court but the Court refused to take the cognizance as per order, dated 7-6-1997 (Exh P.Y ).
21. The upshot of the above discussion is that this appeal being devoid of merits is hereby dismissed.