' MALIK HAMID SAEED, J.---Niaz Ali son of Fazal Qadir alias Khan, Caste Pashtoon, resident of village Jandari Killa, has been tried by the learned Sessions Judge Bannu on the charge under section 302, P.P.C. For the murder of Sher Qadir and sentenced to imprisonment for life coupled with to pay a fine of Rs,30,000 or in default whereof to suffer six months simple imprisonment, vide his judgment dated 18-4-1995. Benefit under section 382-B, Cr.P.C. Was, however, accorded.
2. Both the convict and complainant are aggrieved from the aforesaid conclusion of the learned trial Judge and have separately filed Criminal Appeal No,27 of 1995 by the accused/appellant while the complainant has come up through Criminal Revision No,4 of 1995. The appellant seeks the setting aside of his conviction and sentences while the complainant has prayed for enhancement of the sentence to that of death and to award adequate compensation to the legal heirs of the deceased in accordance with law.
3. Since both the appeal and revision have arisen out of a same judgment of the learned trial Judge, these are, therefore, disposed of by this common judgment.
4. The prosecution's case in brief is that complainant Tariq Khan lodged a report at Police Station, Mandan on 11-7-1991 to the effect that he alongwith his cousin Nisar Khan were sitting under a tree while his uncle Sher Qader was busy in making ablution on a nearby water channel when in the meantime the accused/appellant together with his co-accused Sharifullah and Maizullah emerged there. Under the command of Maizullah, the appellant and Sharifullah opened fire at Sher Qadir Khan with their D.B. Shotguns, of which the shot fired by the appellant proved effective while that of his co-accused Sharifullah went amiss. The deceased was died from the fire-shot of the appellant Niaz Ali Khan. Motive for the offence was given to be a water turn dispute.
5. All the three accused stood trial before the learned Sessions Judge Bannu where the prosecution produced as many as eleven witnesses and after conclusion of the trial convicted and sentenced the appellant as stated above while the other two were acquitted by extending them the benefit of doubt.
6. Doctor Abdul Rehman Qureshi (P.W.4) had conducted autopsy on the dead body of the deceased Sher Qadir and had found the following:--- ' External appearance: ' No legature marks observed. The condition of the body was stout, clothy and blood-stained.
' Details of external injuries:
(1) Fire-arm entry wound on right side of neck at the level of carotid size "1/2 x 1/2" with black powder stains;
(2) Subcutaneous pellet recovered on the left side above scapula (left shoulder post-aspect).
(3) Fire-arm entry wound at the right side chest wall, powder stained, size 1/2" x 1/2" right mamary line lateral aspect;
(4) Subcutaneous pellet recovered on the middle of spinal cord at the 5th thoricic vertebrae (post).
(5) Fire-arm wound on the middle exillary line; size 1/2" x 1/2" with no exit wound (powder stained).
Right side chest wall.
(6) Fire-arm wound at the right side abdomen lateral wall above right ill ic crest. No exit wound size 1/2" x 1/2", powder stained.
' Internal examination ' Thorax: Walls, ribs and cartilages-right side chest wall injured. Right side of pleasure injured. Right lung injured and right carotic artery also injured. Fifth thoricic spine was found fractured. The rest of the organs of the chest were found healthy.
' Abdomen: Peritoneum, small intestine and large intestine alongwith right side abdominal wall, found injured while the rest of the organs were found healthy.
' In his opinion the deceased had died due to injuries to the large blood vessels and vital organs causing profused heamorrahage and shock.
' Probable time that elapsed between death and post-mortem examination three to four hours, while that between injuries and death was instantaneous.
7. P.W.1, Gul Qaddar identified the dead body of the deceased. P.W.2 Ayub Khan M.H.C. Registered the case vide F.I.R. No, Exh.P.A. On receipt of Murasila Exh.P.A./1. P.W.3 Mohabat Khan had escorted the dead body of the deceased from the spot to the mortuary P.W.5 Tariq Khan lodged the report and supported the same during cross-examination. P.W. 6 an eye-witness of the occurrence had deposed in line with the P.W.5. P.W.7 had drafted the Murasila and registered the case. He had prepared the injury sheet (Exh.P.M.) and inquest report Exh.P.M./1 of the deceased, had prepared the site plan Exh.P.B., at the instance of the complainant and the other eye-witness. He took into possession blood-stained earth from the place of the deceased vide memo. Exh.P.R., an empty shell of .12 bore from the place of the accused and another empty shell of the same bore from the place of the acquitted co-accused Sharifullah vide memo. Exh.P.R./1. He had proceeded under sections 87, Cr.P.C. And 204, Cr.P.C. Against the accused. P.W.8 had witnessed the said exercise of the S.H.O. While P.W.9 had recovered the D.B. Shot gun alongwith cartridges and empties at the instance of the accused/appellant and sent the same for Arms Expert's Report. P.W.10 is also a marginal witness to recovery memo. Exh.P.R./4 while P.W. II had arrested the accused/appellant on 20-2-1992.
8. After conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. But they denied the charge and pleaded their innocence and claimed trial. The learned trial Judge passed the impugned judgment after scanning the entire evidence brought on record.
9. Learned counsel for the appellant argued that prosecution evidence is unanimous on the point that deceased fell down in the water channel after he was hit and his clothes were dismered with mud but there is no mention by the doctor about the condition of the clothes. He further submitted that according to the evidence the deceased was facing towards south but the injuries sustained by him were on his right side. He stressed that the appellant is attributed one shot from a distance of 15/16 feet and as per medical jurisprudence the pellets after discharge from the barrel of the gun goes in a bunch uptil 12 feet and thereafter, spreading of bullets would be 2/3 inches per yard as per Parikh's Text Book of Medical Jurisprudence and Taxicology page 278, 4th Edition of 1987, which reads as follows:--- "When a shotgun is. Fired with the muzzel in contact with or near the body, the shot enters as a mass and the gases produced by the explosion cause considerable laceration of the surface skin, destruction of the deeper tissues, and often fragmentation of bone. Scorching of the skin, signing of hair and blackening are generally seen upto about a yard but up to about three yards, a few particles of powder grains may still be found on careful search."
' He further emphasised that as per post-mortem report, there are powder stained found on injuries Nos.1, 5 and 6 which totally negates the prosecution version, and that according to the report of the Arms Expert, both the empties recovered from the spot were fired from one shot gun. His last argument was that the gun was in fact recovered from possession of brother of the appellant and not himself.
10. In reply, learned counsel for State and complainant submitted that the prosecution had successfully proved the murder charge against the appellant through reliable testimony of P.Ws. 5 and 6. They submitted that the conflict between the medical and ocular account in reference to spot of injuries on the person of deceased and that in the site plan is irrelevant as according to identification of fire-arms and Frozonic Ballastic by Maj. Geralled it is stated at page 60 as under:-- - "The proportion of unburnt powder to the whole charge depends on three factors:---
(1) The length of the barrel of the weapon;
(2) The pressure
(3) The type of powder.
' On page 61 it is mentioned in the following terms: 'During the past thirty years, I have repeatedly come across shot guns cartridges which had been loaded by gun makers and unmatenrs in which the fault lay in the use of cheap foreign cartridge cases capped with caps which were totally unsuited to the powders actually used so in the shot guns combustion is more likely to be incomplete than in rifles and consequently it is possible that unburnt powder grains may be present round a wound from a shot gun.'
' On page 63:--'Hence the larger the size of powder grains in any cartridge the greater will be the tendency to unburnt grains' ."
11. We have anxiously considered the facts and circumstances of the case in the light of the arguments addressed by the learned counsel for the parties at the Bar and perused the record. It is not disputed that the deceased was met with unnatural death. From the combined study of the whole case, it is established that the witnesses were present on the spot. The legal worth of the witnesses' ocular account is to be seen from the time of occurrence which is as per F.I.R. 'Pesheen Wela' and it is in the statement of the P.Ws.5 and 6 that they had gone to offer Zuhur prayers to the spot where a raised portion is meant for offering prayers near to which there is a water channel. It is common in villages that villagers use to get ablution from the water channel to get relief from the hot weather, villagers do, prefer to go on water channels and spins to get ablution with fresh cold water and offer prayers.
12. So for the contention of the learned counsel for the appellant that both the eye-witnesses are interested witnesses, their degree of interest is to be seen as to whether they are highly interested or inimical towards the accused. We find no such background in the case. Motive alleged was not such which could be termed a motive for the witnesses to depose against the accused. In absence of any enmity, the witnesses could not be labelled as interested and inimical towards the accused.
The statements of P.Ws.5 and 6 get support from the circumstantial evidence, i,e, recovery of pellets from the dead body of the deceased. Immediate disappearance of the accused appellant after the occurrence is also to be taken into account as a corroborative piece of evidence against the accused, keeping in view Article 21 of the Qanun-e-Shahadat. The appellant was arrested on 20-2-1992, i,e, about 8 months after the occurrence and by then all the proceedings under sections 204 and 87, Cr.P.C. Had been complied with by the prosecution and further the recovery of crime gun at the instance of the appellant left no room to doubt his involvement in the crime.
Defence,despite hectic efforts, failed to brought any material contradictions despite the fact that witnesses were examined three times during the trial and despite of the lengthy cross-examination nothing fatal to prosecution was brought on record. So far conflict in medical evidence and ocular account furnished by the witnesses on whose pointation the site plan was prepared is concerned, as contended by the appellant's counsel, we have considered this point and found that a complete answer to the controversy is available from pages 61 to 63 and in some portions of pages 68, 70 and 71 in the book written by Major Sir Gerald Burrard (author of the Modern Shotgun) named as 'The Identification of Fire Arms and Fronsic Blastics". We after perusal of the said pages of the book are of the views that in case of faulty combustion, due to weight of the pellet, gravity of force reduced the speed of pellets and dispersion of pellets would be more which definitely effects the distance as normally considered by all the authors on the subject, i,e, Modis, Tylor and Proxy. None of the pellets crossed the body of the deceased which gets support from the contention as given by Maj. Gerrelled in his said book. The said alleged conflict of the medical evidence with the site plan is further ignorable in the presence of direct and consistent eye account of two witnesses who had no reasons to falsely implicate the accused/appellant in the case. A sealed parcel containing clothes of the deceased was opened in the Court and we found it bismered with mud which further supports the prosecution version.
13. From what has been discussed above, we are of the considered view that conviction of the accused/appellant is well based, appraisal of evidence was in accordance with the settled principles of law and the guilt has been brought home to the appellant beyond reasonable doubt, we, therefore, dismiss the appeal and maintain the conviction. Now coming to the quantum of sentence awarded to the appellant by the learned trial Judge and violation of mandatory provisions of section 544-A, Cr.P.C., we are of the opinion that the learned trial Judge, keeping into consideration the young age of the accused/appellant coupled with the fact that he was armed with a D.B. Shot gun but he has only fired a single shot and has not repeated the act, has rightly awarded the lesser punishment. So far violation of mandatory provisions of section 544-A, Cr.P.C. Is concerned, 3/4th out of the imposed fine on the appellant be paid to the legal heirs of the deceased. However, we modify the impugned judgment to the extent that above the fine of Rs,30,000 imposed by the learned trial Judge, an additional sum of Rs,50,000 shall also be paid by the appellant to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. In default of payment of the additional fine he shall further undergo six months S.I. 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.