' MUHAMMAD AZAM KHAN, J.--Accused/appellant, Masta Mir son of Arnir Khan, aged about 42/45 years, resident of Ghazni Khel, Tehsil and District Lakki Marwat, stood trial before the Court of Sessions Judge, Lakki Marwat, along with his absconding brother co-accused named Hazrat Mir, on the charge that they oil 5-12-1982 at 1330 hours, in furtherance of their common object, committed the murder of deceased Nekam Khan by firearms. However, the co-accused Hazrat Mir, after obtaining the confesses:, of bail absconded during trial on 1-4-1993 and. Therefore, proceedings against him under section 512, Cr.P.C., were ordered on 3-5-1993 by the Trial Court. After conclusion of the trial against accused Masta Mir, he was found guilty of the charge brought against him and was, therefore, convicted and sentenced under section 302, P.P.C., to undergo imprisonment for life with a fine of Rs,30,000, in default whereof to further suffer three years R.I. On realization of the fine, 2/3rd of the same was ordered to be paid to the legal heirs of the deceased as compensation, vide his judgment, dated 11-7-1995. Benefit of section 382-B, Cr.P.C., was also extended to him. The accused Masta Mir being unhappy over the said conclusion of the learned trial Judge and has, therefore, filed the appeal in hand for setting aside the same.
2. The prosecution's story as gleaned from the first information report of the complainant (then injured), in brief, is that on the eventful day and time, he (the complainant Nelcam Khan) was going towards village Mosque of Ghazni Khel for offering prayers when on the way accused/appellant Massa Mir and his brother, absconding co-accused Hazarat Mir, duly armed with Topaks, emerged in the street and opened fire at him. With the fire-shot of appellant Masta Mir, he was hit and he fell down to the ground. Motive for the offence was given to be previous firing over a previous enmity between the parties. Both the accused decamped after the occurrence, which was stated to have been witnessed by Abdur Rashid son of Soor Kamand. A case under section 302/34; P.P.C., was accordingly registered at Police Station Ghazni Khel, vide F.I.R. No,101, dated 5-12-1982. The complainant had, however, expired in the hospital.
3. In order to prove its case against the accused/appellant, the prosecution produced eleven witness in all, out of whom P.W.1, Muhammad Irshad Khan S.H.O. Police Station Ghazni Khel was examined in support of the arrest of accused Hazrat Mir, P.W.2, Mamizullah is a marginal witness to the recovery memos. Exh.P.C., Exh.P.C/1 and Exh.P.C./2, while P.W.3, Nawaz Khan F.C. No,288, was entrusted with the warrants under section 2'04, Cr.P.C., P.W.4, Abdul Majid, had identified the dead body of the deceased before the police and the Medical Officer. P.W.5, Noor Muhammad Khan A.S.I., had prepared the injury sheet and inquest report of the deceased as Exh. P. W.5/1 and Exh.P.W.5/2.
P.W.6, Nawaz Khan, the then S.H.O., of Police Station Ghazni Khel, had arrested accused/appellant Masta Mir on 11-10-1992 and submitted supplementary challan against him on 13-10-1992.
4. P.W.7, Doctor Muhammad Aslam Khan Masood had examined the injured! Complainant Nekam Khan on 5-12-1982 at 0400 p.m. And found the following wounds on his person:-- ' Wounds
(1) Firearm inlet wound 1/4" x 1/4" on the left buttock 2" below the left iliac crest.
(2) Firearm outlet wound 2" x 2" on the right buttock 3" below the right iliac crest.
(3) Firearm inlet wound 1/4" x 1/4" on the left forearm 3" above the wrist joint medically.
' Thereafter, the injured expired on 6-12-1982 at 2-55 a.m. And on the same day at 8-35 a.m. The same Doctor conducted autopsy on his dead body and found that the dead body was stout, P.M.
Staining and rigidity present. External wounds were declared to be the same as found in his first medico-legal report, dated 5-12-1982 at 4-00 p.m. On internal examination, right iliac aortry, small intestines and segomid colon were found damaged, while the stomach was empty containing rol's tube. In opinion of the Doctor, the injured died due to firearm injury caused to small and large intestines, right iliac aortry leading to haemorrhage shock and death. Probable time that elapsed between injury and death was opined to be 10-55 minutes to 14-55 minutes.,P.W.8, Abdur Rashid, an eye-witness of the occurrence, has supported the narration of the complainant given in his dying declaration, while P.W.9 Habib Khan had appeared in support of the motive. P.W.10, Darya Khan I.H.C. Had prepared the injury sheet of the injured (Exh.P.W.10/1) and had incorporated the contents of the report of complainant into the F.I.R. (Exh.PA). P.W.11, Ghula Habib Khan, had proceeded to the spot on hearing reports of firing, prepared the site plan Exh.P.B. At the pointation of the eye-witness named Abdur Rashid, recovered bloodstained earth, two pellets and one bullet of .12 bore vide recovery memo. Exh.P.C. He had recorded the statements of P.Ws., prepared the inquest report of the deceased (Exh.P.W.11/1), took into possession clothes of the deceased vide recovery memo. Exh.P.C./2 and had submitted complete challan under section 512, Cr.P.C., against the accused. In this background of the matter, the appellant has been convicted and sentenced as stated earlier.
5. .Messrs S. Zafar Abbas Zaidi assisted by Mr. Dost Muhammad Khan, counsel for the appellant, criticized the aforesaid conclusion of the learned trial Judge on the following grounds:--- ' Firstly; that the dying declaration of the deceased is in material contradiction with the medical evidence as also the ocular account; ' Secondly; that the prosecution's case is discrepant as exact time of the occurrence is shrouded in mystery if taken up with the statement of the Investigating Officer, dying declaration of the deceased and the eye-witness account.
' Thirdly; ''that the site plan prepared in the case is not in conformity with the medical evidence;-- ' Fourthly; that the recoveries effected from the spot are not establishing/supporting the dying- statement of the deceased.
' Fifthly; that investigation conducted by the Investigating Officer in the instant case was dishonest which is a legal infirmity and favours the accused/appellant; ' Sixthly; that both the accused were shown present at point No,2 and indiscriminate firing is assigned to both of .Them, therefore, it is difficult in the given circumstances as to with whose shot the deceased was hit and lastly that the dying declaration of Seventhly the deceased is not corro- borated by any material particulars, as he was profoundly bleeding at the time of making report and, therefore, the conviction based on its basis is unfounded.
' In support of ill& aforesaid contentions, reliance was placed on the cases reported in 1997 SCM R 449, 1999 PCr.0 1305, 1998 PCr.LJ 1927, 1999 PCr.LJ 707, PLD 1995 Peshawar 144 and 1997 SCM R 449.
6. Bhai Khan son of Sur Kamand, brother of the eye-witness Abdur Rashid, is also not contented with the verdict given by the learned trial Judge and has, therefore, filed Criminal Revision No,6 of 1995 there against, praying for enhancement of the sentence to that of normal penalty of death and awarding of suitable compensation to the legal heirs of the deceased. Since both the matters, i,e, the appeal and revision, are the outcome of one and the same judgment, these are, therefore, being disposed of by this common judgment.
7. Mr. Sanaullah Khan Gandapur, Advocate representing the petitioner argued that the dying declaration of the deceased rings true and the investigation in the case has out rightly favoured the accused, as the Investigation Officer despite the fact that be had not mentioned P.W. Abdur Rashid to have accompanied him after his return from the police station, yet the site plan was prepared at his instance, and the said Abdur Rashid would have definitely gone to the police station along with the Charpai of the deceased. He was of the view that the prosecution's case was fully established from the evidence brought on record and the appellant was required to have been awarded penalty of death instead of the awarded imprisonment , for life with adequate compensation to the legal heirs of the deceased: In this context, he relied on 1997 SCM R 449, PLD 1992 SC 211, 1997 SCMR 1276 and 1968 SCM R 161.
8. Syed Saeed Hassan Sherazi, the learned Assistant Advocate-General for the State has, however, supported the impugned judgment of the Court below on variety of grounds.
9. We have given our anxious considerations to the respective arguments advanced at the bar and are of the firm view that the impugned conclusion of the learned trial Judge is the result of proper appraisal of prosecution's evidence brought on record. Learned counsel for the appellant have led much stress on the doubtfulness of the dying declaration of the deceased, but Doctor Muhammad Aslam Khan who had medically examined the injured had categorically stated that he (the injured) was neither in coma nor unable to speak coherently, rather he was in full senses and able to speak coherently. Both the parties are co-villagers and the question of misidentification of the culprits is out of question. The F.I.R., cum-dying-declaration is genuine, intrinsically rings true and free from prompting through outside, as none of his relations was stated to be present at the time of occurrence. The appellant is directly charged by the injured/complainant for effectively firing at him in a daylight. He had remained fugitive from law for a sufficiently long and unexplained period of more than ten years and this, by itself, is a sufficient corroboration towards his guilt, besides that the medical evidence is in line with the prosecution's version and the recoveries effected in the case fully support the same. There is a strong motive behind the occurrence duly admitted by the appellant in his statement recorded under section 342, Cr.P.C. Report of the incident was promptly lodged by the deceased then injured who was not accompanied by anyone of his relatives and, therefore, the apprehension of prompting him from outside quarter at the time of report is out of consideration.
10. In view of the above discussion, we hold that the prosecution has been able to bring home the charge against the accused/appellant and he deserves no leniency.
11. In so far as the quantum of sentence is concerned, since the appellant had fired only one shot and not acted in any inexorable and, reluctance manner, therefore, the learned trial Judge was perfectly right in passing the impugned conviction and sentence and we accordingly maintain the same.
12. In consequence, both the appeal and revision are dismissed.