' MIAN MUHAMMAD AJMAL, J.---By this judgment we also propose to dispose of Jail Criminal Appeal No,161 of 1995, as both of them have been filed against one and the same judgment of the learned Additional Sessions Judge, Swabi, dated 21-2-1995 whereby the appellants were convicted and sentenced as given below:
2. The appellant in Jail Criminal Appeal No,160 of 1995, Khair Nabi has been convicted under section 302-B, P.P.C., and sentenced to life imprisonment as "Tazir", while Gull Nabi appellant in Jail Criminal Appeal No,161 of 1995 has been convicted under section 302-C, P.P.C. And sentenced to 14 years R.I.
Both of the appellants have also been convicted under section 324, P.P.C. For sharing common intention in attempting at the life of Mst. Said Mardan by firing at her effectively and sentenced Khair Nabi appellant to 4 years R.I. With a fine of Rs,5,000 or to suffer further R.I. For one year and Gull Nabi was sentenced to 8 years R.I. With a fine of Rs,10,000 or in default to suffer further R.I. For 2 years. Gull Nabi appellant was also held liable to pay "Daman" to the extent of Rs,10,000 for causing injuries to the complainant. The amount of fine, if recovered from both the accused, half of it was ordered to be paid to the complainant and P.W. Amir Shah as compensation under section 544-A, Cr.P.C. The sentences were ordered to run concurrently.
3. The prosecution machinery was set in motion when Mst. Said Marjan complainant reported the matter to the police, stating therein that she along with her husband Amir Shah and Mst. Rifat Bibi, her grand-daughter were present in the house. In the meantime Gul Nabi and Khair Nabi sons of Fazal Rabi armed with pistols came and started firing at .Ter and her granddaughter. Mst. Rifat Bibi, who was present inside the 'Kotha' was hit with the fire shot of Khair Nabi and expired on the spot, while fire shot of Gul Nabi, hit her on the left shoulder. Motive for the occurrence was stated to be quarrel between granddaughter of the complainant Fauzia and the sisters of the accused. The occurrence was witnessed by Amir Shah, husband of the complainant.
4. After completion of the investigation Chillan was submitted in Court. Both the accused were produced in custody on 21-8-1993. Provisions under section 265(c), Cr.P.C. Were complied with.
'Formal charge was framed on 12-9-1993. The accused did not plead guilty and claimed trial.
5. In support of its case, the prosecution examined as many as eight witnesses. Mir Afsar (P.W.1), Muhammad Anwar I.H.C. (P.W.2), Dr. Ibrarullah (P.W.3), Azizur Rehman, S.H.O. (P.W.4), Munawar Khan, A.S.-I. (P.W.5), Muhammad Iqbal, FC (P.W.6), Mst. Said Marjan (P.W.6) (probably inadvertently repeated) and Amir Shah (P.W.7) were produced and the others were abandoned as being unnecessary.
7. Mst. Said Marjan complainant has deposed that Fazle Rabbi is the father of both the accused.
Her daughter Mst. Hussan Pari is the second wife of Fazle Rabbi. Mst. Gulrisha, her other daughter was married to Taj Muhammad. She was pregnant, when Taj Muhammad divorced her. She gave birth to Mst. Riffat Bibi in complainant's house. After about one year, Mst. Gulrisha contracted second marriage in village Gujrat District Mardan. Mst. Riffat Bibi was brought up by the complainant and was living with her. The father of the appellants Fazle Rabbi demanded the hands of Mst. Riffat Bibi, but since he was married to the real daughter of the complainant, therefore, he was refused the hands of Mst. Riffat Bibi, as it was against the 'Sharia'. This caused annoyance to Fazle Rabbi, who through his two sons, the appellants, murdered Mst. Riffat Bibi and injured Mst.
Said Marjan.
7-A. Amir Shah, P.W.7, husband of Mst. Said Marjan complainant, supported the story as given by the complainant in her deposition.
8. Dr. Ibrarullah (P.W.3) examined Mst. Said Marjan 'and found the following:--
(1) A fire-arm wound of entry size 1/2" x 1/3" in front on the left fold of neck.
(2) A fire-arm wound of exit size l " x 1" on the back of the fold of the neck.
' Nature of injuries: Simple.
' The same Medical Officer conducted the autopsy on the dead body of the deceased Mst. Riffat Bibi and found the following:-- External Examination:
(1) A fire-arm wound of entry size 1/2" x 1/3" in front on the forehead.
(2) A fire-arm wound of exit to No,1 on the back of the skull, size 2" x 1". The brain matter is coming out of the wound.
Internal Examination.
' Scalp, skull, membranes and brain were injured. The stomach was normal and contained semi- digsted food and fluid.
' In the opinion of the doctor the death was due to hemorrhage and shock and injury to the brain, caused by fire-arm.
' Probable time between injury and death was instantaneous and between death and post- mortem examination was 2 to 3 hours.
9. We have heard learned counsel for the parties and gone through the record of the case with their assistance.
10. Mst. Said Marjan (P.W.6) mother-in-law of the father of the appellants has directly charged them in the F.I.R. Within half an hour of the incident, such promptly lodged report eliminates the possibility of fabrication or false implication of the accused/appellants in the case. She in her statement before the Court stood firm to her stance taken by her in her report. She being the inmate of the house is a natural witness with the stamp of fire-arm injury on her body which further lend support to the fact of her presence at the scene of occurrence and whose testimony finds support from the other evidence on the record. Amir Shah (P.W.7) husband of Mst. Said Marjan (P.W.6) is also an inmate of the house and a natural witness. The depositions of both the witnesses, who are closely related to the accused and had no animus against the appellants to involve them falsely, are unanimous on all material aspects and support each other in all respects. There may be some minor discrepancies/improvements in the statements of the witnesses which are insignificant and they rather and more credibility to them as two persons are not expected to narrate the facts in the same manner. The ocular account find complete corroboration from the medical evidence as both the deceased and the injured witness have received one fire arm entry wound each with its exit. Common intention of the accused can be gathered from the conduct of the accused and the attending circumstances of the case. Both the accused armed with pistol entered the house of the complainant where they both opened fire on the complainant and her granddaughter whereby former got injured while latter died on the spot, in such circumstances commission of such an offence can be said to be in furtherance of their common intention as it shows that it was committed with pre-arranged plan and prior meeting of mind. Therefore, both of them under section 34, P.P.C. Are equally guilty for the commission of the crime. According to Fire Arms Expert Report (Exh.PK/1) empty recovered from the spot matched with the pistol recovered from the house of the accused, which is another corroborative evidence.
11. In the first instance the motive as given in the report was that due to the quarrel between Fauzia (grand-daughter of the complainant P.W.6) and the sister of the accused, the incident took place, but at the trial both the witnesses P.Ws.6 and 7 stated that appellant's father was annoyed due to the refusal of the hand of Mst. Riffat Bibi to him, who persuaded his sons to kill the complainant and Mst. Riffat Bibi. The motive is always in the mind of the accused who commit the crime for the reasons best known to him. The apex Court of the country about motive has observed in case of Ahmad Nisar v. The State 1977 SCM R 175 as under:--- "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others.
Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable."
' In view of the above, we concur with the trial Court that prosecution succeeded in bringing home the charge against the appellants and, thus, they have been rightly convicted and sentenced which does not warrant any interference.
Consequently, both the jail criminal appeals are hereby dismissed.