IFTIKHAR HUSSAIN CHAUDHRY, J.- Hamza Khel, Hathi Khel sons of Pehlwan and Zahid Khel son of Hamza Khel were convicted for offence under Section 302/324/34 PPC and Hamza Khel appellant was awarded death sentence while Hathi Khel and Zahid Khel were awarded imprisonment for life.
All the three accused were directed to pay Rs. 15,000/- as compensation to the legal heirs of the deceased. In the event of default they were to further suffer rigorous imprisonment for two years, each, on two counts. They were further ordered to pay Rs.5,000/- as fine on two counts, In case of default in payment of fine they were to further suffer rigorous imprisonment for six months on each count by judgment dated 11.10.1995 passed by Sessions Judge, Mianwali in case FIR No. 49, dated 29.3.1993, under Section 302/324 on two counts read with Section 34 PPC registered at Police Station Kamar Mashani, District Mianwali.
2. The case was registered on the statement Ex.PD, of Shera Jan PW-10. According to complainant he alongwith his wife Mst. Jani, sons Amir Jan, Khial Jan and Rustam Jan were watching the wheat- crop and were cutting the feeder for animals. At about Jhikki Deegarwela, Mai Khel, Hamza Khel, Hathi Khel and Zahid Khel armed with guns came there. Mai Khel raised a lalkara that Amir Jan, Khial Jan and Rustam Jan should not be left alive. Zahid Khel find at Rustam Khan which hit him on right thigh. He fell down due to the injury. In order to save their lives Amir Jan and Khial Jan ran away. When they reached near the house of Aaltaf Khan, Hamza Khel find a shot which hit on the right side of the abdomen of Amir Jan. He fell down. Shot find by Hathi Khel hit on the left side of the ear of Khial Jan. Due to alarm raised by Mst. Jai, Gul Zar Jan attracted to the spot. The accused went towards their houses by raising alarm. Amir Jan succumbed to the injuries at the spot.
Motive behind the occurrence, as stated by the complainant was that Hamza Khel suspected Rustam Jan having illicit liaison with Mst. Patri Jamala, his daughter.
3. ^ Shera Jan leaving the dead-body of Amir Jan in the custody of Gul Zar Jan and Akbar Jan went to Police Station accompanied by Rustam Jan and Khial Jan injured.
4. Muhammad Anwar, ASI recorded statement Ex.PD of Shera Jan, prepared injury statements Ex.PT and Ex.PU of Khial Jan and Rustam Jan and then despatched the injured to the hospital. He proceeded to the spot, prepared injury statement Ex.PQ and inquest report Ex.PR of Amir Jan deceased. He had despatched the dead-body to mortuary for post-mortem examination. The ASI collected blood-stained earth vide memo. Ex. P.S.. He took into possession last worn clothes of the deceased vide memo. Ex.PA. He had recorded the statement of PWs under Section 161 Cr.P.C. The investigation was then transferred to Muqarrab Khan, SI PW-15. On 11.4.1993 he formally arrested Hamza Khel, Hathi Khel and Zahid Khel accused having been produced by one Amir Badshah who had also guns Ex.PS and Ex. P6 alongwith licences belonging to Hamza Khel and Hathi Khel which were taken into possession vide memos. Ex.PE and Ex.PF. He had also recovered rifle Ex. P7 alongwith five cartridges Ex. P8/l-5 at the instance of Zahid Khel accused and were taken into possession vide memo. Ex.PG. The S.I. Formally arrested Mai Khel accused on 1.5.1993, having been produced by Amir Badshah. He prepared final report under Section 173 Cr.P.C, against the accused and submitted the same in Court.
5. The prosecution in order to prove its case produced 23 witnesses at the trial.
6. Dr. Ghulam Hasnain Khan PW-7 on 29.3.1993, at 9.15 p.m. Had examined Rustam Jan and noted the following injury: A firearm entry wound 1 cm. x 75 cm on the upper part of the right thigh about 4 cm on the right side of root of penis.
On the same day he had examined Khial Jan and found the following injury on the person: A fire arm lacerated wound 2.5 cm x 75 cm, skin deep on the left of face about 5 cm directly below lower end of the base of pinna of left ear over line a small diffused swelling which was associated with firearm entry wound 1.25 x .5 cm about 1 cm behind the above-mentioned root.
Dr. Aal-i-Rasool PW-8 conducted post-mortem examination on the dead-body of Amir Jan deceased and noted the following injuries on the dead-body:
(1) Two fire-arm entry wounds 1 cm x 1 cm, each in right iliac fossa, 4 cm apart.
(2) One fire-arm entry wound on outer side of right thigh.
All the injuries were ante-mortem and were caused by fire-arm
7. Muhammad Siddique PW-3, Patwari Halqa Karandi prepared site plan Ex.PC and Ex.PC/I. Rafi Ullah Constable PW-5 witnessed the recovery of rifle Ex. P7 alongwith five cartridges Ex. P8/l-5 from Zahid Khel accused. Altaf Khan PW-9 proved the recovery of blood-stained earth which was taken into possession vide memo. Ex. P.S.
8. Shera Jan, complainant appeared as PW-10. He re affirmed the narrative contained in the FIR.
Khial Jan PW-11 and Rustam Jan PW-12, injured witnesses, supported the version advanced by complainant.
9. Amir Khan PW-13 had identified the dead-body of Amir Jan at the time of postmortem examination.
1-0. Muhammad Anwar, SI PW-14 and Muqarab Khan PW-15 had testified about the various steps taken by then during investigation which have already been noted above. Muhammad Ashraf PW- 1, Muzaffar Khan Constable PW-2, Noor Muhammad HC PW-4 and Abdul Ghafoor Constable PW-6 were formal police witnesses.
11. In their statements recorded under Section 342, Cr.P.C, all the accused professed innocence and stated that the complainant twisted the real facts of the case in connivance with the police and to save their skin, the PWs have made false statements.
12. Learned Trial Court believed the prosecution case against Hamza Khel, Hathi Khel and Zahid Khail and convicted and sentenced them as noted above. Mai Khel was acquitted from the case.
13. The convicts submitted criminal appeal No. 681/1995, against conviction and sentence, awarded to them. Learned Trial Court had also referred the matter under Section 374, Cr.P.C, vide Murder Reference No. 247/1995 for confirmation or otherwise of sentence of death awarded to Hamza Khel.
14. Learned counsel for the appellants contended that the case against the appellant was fabricated by the prosecution and factual position was that Mst. Patri Jamala was tried to be abducted by the complainant party and Hamza Khel in order to rescue her had find a single shot at the culprits, but the complainant gave a complete twist to the incident and fabricated story in order to implicate all the appellants in the case, It was submitted that the ocular account in this case was belied by the medical evidence. According to the learned counsel on a proper appraisal of the medical evidence it would be seen that the injuries on the body of the deceased as well as the injured P.W. Were the result of a single shot and it was not the result of multiple shots as was claimed by the prosecution. It was contended that the medical evidence supported the version being advanced by the defence. It was submitted that the parties were related to one another and there was no occasion by the appellants to have assaulted the complainant party or to have shot to death the deceased. It was submitted that the registration of the case was done after a considerably deliberation that the Investigating Officer did not visit the place of occurrence and the recovery at the Plantation of the appellant/accused was fabricated and all these factors go a long way in showing the falsity of the prosecuting case. It-was submitted that Hamza Khel appellant had acted in defence of his honour and person of his daughter Mst. Partri Jamala and had not committed any offence under the germane law. Learned counsel for the State on the other hand supported the impugned judgment. It was submitted that the FIR was lodged promptly and that was made by the complainant with the police official on the way to the Police Station which did not mean that the FIR was registered after preliminary investigation. It was contended that the prosecution case was proved on the basis of ocular account which included the testimony of injured witness and recovery of incriminating articles and therefore, the accused were rightly convicted.
15. Learned counsel for the parties have been heard at length and record seen with their assistance. The occurrence in this case took place on 29.3.1995, at 'deegarwela'. Shera Jan complainant claims that he met Muhammad Anwar, ASI near Makkarwal at.7.00 p.m. While he was on the way to Police Station Kamar Mashani to lodge the report. There is considerable case-law on the subject that where the criminal case is not registered at the Police Station, but it is claimed by the police officer that the complainant had met him while coming to the Police Station at a place other than the Police Station, it will give rise to reasonable suspicion that the FIR, was recorded after the police had gone to the spot and had conducted preliminary investigation or the same was recorded after certain deliberation. In the case in hand, the inquest report did not carry the number of FIR, which would show that this report was prepared prior to registration of criminal case at the Police Station. Omission on the part of the police to mention the number of the case in the inquest report leads to the inference that the police had gone to the spot, had prepared the inquest report and thereafter the criminal case \yas registered and omission to mention the number of the case occurred on account of that. The registration of case after preliminary investigation makes the prosecution story doubtful from the start.
16. The motive for the incident was stated to be that Hamza Khel suspected Rustam Jan as having illicit liaison with his daughter Mst. Patri Jamala, and thereafter, all the accused had launched attack on the complainant party. Shera Jan claimed that prior to this the accused had made a complaint to his brother Rustam Jan about illicit liaison with Patri Jamala, on which the complainant offered special oath to satisfy Hamza khel, but he did not feel satisfied. Other than this not other evidence was led by the prosecution about the illicit liaison between Rustam Jan and Mst.
Patri Jamala. It is difficult to bring any tangible evidence to prove such motive but since the occurrence in this case was admitted by Hamza Khel, the motive in this case would lose much significance.
17. Shera Jan is father of Amir Jan deceased while Rustam Jan and Khaval During investigation no evidence was collected by the Investigating Agency which showed that the members of the complainant party had gone to the spot to cut fodder from the find. It was not ascertained whether any fodder crop existed at the spot or not. The implements/tools of agriculture required for cutting of fodder or for fetching the same back home was also not collected. The Investigating Officer did not visit the spot and this leads to an inference that this part of the story was introduced by the complainant and the prosecution witnesses to show their presence at the spot at the relevant time, otherwise, they had no reason or occasion to be present at the spot. When the presence of members of the complainant part, at the place of Occurrence is not explained satisfactorily, an adverse inference has to follow forward.
18. The recovery of rifle Ex. P7, or bullet Ex. P8/l-5 at the instance of Hamza Khel accused was disbelieved. Gun Ex. P5, P6 belonged to Hamza Khel and Hathi Khel and are licensed weapons. They were produced by one Badshah Mir before the Police and therefore, recovery of the crime weapons is not considered to be incriminating piece of evidence against that deceased/convict.
19. The members of the complainant party and the accused are collaterals and had not background of enmity and in this view of the matter the story advanced by the prosecution that all the accused having variously armed attacked the complainant party to avenge a supposed insult, does not appeal to reason.
20. After having considered all the facts and circumstances of the case, it is considered safe to conclude that the occurrence did not take place as was claimed by the prosecution, but since Hamza Khel had himself admitted that he had find at the deceased when they were trying to take away his daughter Mst. Patri Jmala, he cannot be exonerated from the commission of offence.
Hamza Khel had admitted shooting at the deceased but has given a background for that shooting.
There is no independent corroboration of the stand taken by Hamza Khel, that the accused was trying to take away his daughter. No doubt, it is difficult I those areas in which this incident took place to bring forward the woman-folk to depose in favour of a particular story being advanced by the accused because that is considered to be a great humiliation. Therefore, non-production of Mst. Patri Jamala, before the Police or before the Trial Court would not strongly react on the defence version. The parties are closely relaed to one another and Hamza Khel an all probebeility had fired on deceased to indicate the family honour if not to dave the family honour. The medical evidence revealed that only singly short was fired at the deceased Amir Jan and had injured Kheyal Jan and Rustam Jan.
21. The convict of Hamza Khel for offense under Section 302(b) P.P.C. as record by the trail court is maintained. However, since the offense was committed to vindicate the family honour, the sentence of death imposed on Hamza Khel is considered to be unwarranted and the same is converted into rigorous imprisonment for life Hamza Khel shall pay a sum of Rs.50,000/- as compensation to legal heirs of the deceased and shall undergo six months rigorous imprisonment in default thereof. The sentence of 2 years' R.I. Imposed on Hamza Khel for offence under Section 324 P.P.C, is also maintained. All the sentences however, shall run concurrently.
22. The conviction and sentence awarded to Hathi Khel and Zahid Khel is set aside. They shall be released from custody, if not, wanted in any criminal case.
23. Criminal Appeal No. 681/95, is partly allowed in the above-noted terms. Murder Reference No. 247 of 1995 is answered in the negative.