' MUHAMMAD AZAM KHAN, J.---The appellant, Naimat Khan, his brother Awal Khan sons of Zabta Khan and Zabta Khan son of Khan Muhammad, residents of Kiri Sheikhan now residing in Jandiwal Kunwa Building, Bilitang, District Kohat, were tried by the learned Additional Sessions Judge, Kohat under section 302/34, P.P.C., for committing the murder of Syed Ahmad deceased on 19-7-1993 within the limits of Police Station Saddar, Kohat.
2. Appellant Naimat Khan was found guilty of the offence charged with and he was convicted under section 302/34, P.P.C., vide order, dated 8-5-1996 of the learned Additional Sessions Judge, Kohat, whereby the appellant was sentenced to imprisonment for life, with a fine of Rs,40,000 or in default to suffer one year R.I. The fine, if realized, half of it be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., ' The other two co-accused namely, Awal Khan and Zabta Khan were, however, acquitted vide the impugned order for lack of proof against them.
' The convict has challenged his conviction and sentence through the present appeal.
3. The facts of the case briefly stated are that on 19-7-1993 at 9-30 a.m. Jumma Shah complainant (P.W.5), his wife Mst. Benazira (P.W.6) and Syed Ahmad deceased, brother of Mst. Benazira who had come as a guest on 18-7-1993 from village Harichand, District Charsadda to the house of the complainant, were present in his house. The appellant Naimat Khan and his co-accused Awal Khan and Zabta Khan who have a contiguous house climbed on the roof of their house for plastering the 'same. The accused had not asked the complainant party for 'Pardah' upon which the deceased objected. After some oral altercation, the accused descended from the roof of their house and thereafter both the parties came out of their houses. Naimat' Khan appellant and his two companions who were armed with firearms started firing at the deceased and with the fire shot of Naimat Khan appellant the deceased was hit and killed. The occurrence was witnessed by Mst.
Benazira and the complainant and there was no previous enmity between the parties.
4. Having come to know about the incident Mujahid Khan, A.S.I. Of P.P. Bilitang rushed to the spot where at 10-15 a.m. Jumma Shah (P.W.5) made the report Exh.P.A./1 before him. This report was sent to the Police Station for the registration of the case where it was correctly incorporated into F.I.R.
Exh.P.A. Of the same day. Mujahid Khan, A.S.I. Took over the investigation. He went to the spot where the dead body of the deceased was lying, prepared the injury sheet Exh.P.M: and inquest report Exh.P.M./1 of the deceased and despatched the dead body to the mortuary for post-mortem examination under the police escort. At the pointation of the ocular witnesses he prepared the site plan Exh.P.B. From the spot he took into possession blood-stained earth and an empty of .12 bore Exh.P.1, vide memo. Exh.P.C./1. These were sealed in separate parcels. He then searched the house of the accused Zabta Khan from where he recovered an S.B. Shotgun No,28022/DSA Pak. Made Exh.P.2 along with 15 live cartridges Exh.P.3 of .12 bore and a licence copy of the weapon Exh.P.4 in the name of Zabat Khan vide memo. Exh.P.C/2. After the post-mortem examination a shirt of the deceased bloodstained and having corresponding cut marks was brought from the mortuary which he took into possession vide memo. Exh.P.C.
5. He then arrested Zabta Khan and Awal Khan accused and obtained, warrant under section 204, Cr.P.C., against Naimat Khan who was then avoiding his arrest.
' During the investigation the Investigating Officer sent the Shot gun Exh.P.2 and the crime empty Exh.P.1 to the Fire-arm Expert for examination whose report is positive in nature and is Exh.P.E. The blood-stained earth and the shirt of the deceased were sent to the Chemical Examiner for examination whose report is Exh.P.F.
' Accused Naimat Khan surrendered before D.I.-G., Kohat on 20-8-1993 where after he was arrested in the present case and handed over the investigation to the S.H.O. Who submitted complete challan in the case in competent Court.
6. Dr. Fakhr-ud-Din (P.W.9) conducted autopsy on the dead body of Syed Ahmad on 19-7-1993 at 12-30 p.m. And found the following:-- ' A man of middle age of good physique.
(1) Fire-arm entry wound on the lower side of left labial region 1/4" x I/2" in size.
(2) Fire-arm exit wound on Hover side of right lower labial region 1/2" x 1/2" in size..
(3) Fire-arm entry wound on the left side of neck 1/4" x 1/2" in size.
(4) Fire-arm exit wound on right side 1/2" x 1/2" in size.
(5) Fire-arm entry wound below the left clavicle 1/4" x 1/2" in size.
(6) Fire-arm exit wound below the right clavicle 1/2" x
(7) Fire-arm grazing wound on the front of chest between the two sternal region 2" in size linear in nature.
' On internal examination the doctor found thorax walls, ribs and cartilages fractured. Pleurae both ruptured, Larynx and trachea injured, right and left lung injured, blood vessels ruptured. Ribs, muscles and blood vessels injured, ribs lower jaw fractured.
' In the opinion of the doctor death occurred due to injury to vital organs i,e, both lungs, blood vessels, a and chest which led to haemorrhage. Time between injury and death within 10 minutes and time between death and post-mortem examination about three hours.
7. The accused was examined under section 342, Cr,P.C., who denied the accusation against him and professed innocence.
8. The trial Court has based the conviction of the appellant on the testimony of the ocular witnesses namely, Jumma Shah (P.W.5) and his wife Mst. Benazira (P.W.6) who are the inmates of the house and are natural witnesses to charge the accused in the absence of previous enmity, the recoveries from the spot and the recovery of a shot gun which matched with the crime empty coupled with the abscondence of the accused for more than 1-1/2 months.
9. We have heard the learned counsel for the appellant and the learned Law Officer for 'the State and have gone through the record of the case.
10. Assailing the prosecution case the learned counsel for the appellant raised the following contentions:
(i) That it was an unseen occurrence because the deceased had been killed outside the house in the fields;
(ii) that the evidence of the prosecution lacked corroboration as it did not commensurate with the medical evidence, according to him the injuries on the body of the deceased could not be caused with pellets;
(iii) that the trial Court has disbelieved the ocular testimony in case of the two acquitted accused, therefore, the same evidence was not credible to record the conviction of the present appellant and as such the conviction was bad in law.
' The learned Law Officer supported the impugned judgment in totality.
11. Admittedly the occurrence took place near the house of Jumma Shah complainant where his wife Mst. Benazira was naturally present as a house wife and the deceased who was the brother of Mst. Benazira had come to the house of the complainant a day earlier to the incident as a guest.
He, therefore, had no animosity with the appellant and his co-accused. Besides, there is no other evidence forthcoming on the record to suggest that the complainant namely Jumma Shah and his wife Mst. Benazira had some dispute or with his closed neighbour i,e,, the appellant prior to the present incident. The occurrence allegedly took place at 9-30 a.m. In the month of July and according to the \ prosecution version the complainant party at that time was present in the courtyard of their house which is overlooked from the roof of the house of the appellant the presence of the appellant on the roof without asking for 'Pardah' to the neighbour would affect the privacy of the house of the complainant.
12. The prosecution version in the absence of any other motive on the record, therefore, finds support from the site plan that the privacy of the complainant party was at stake, therefore, the deceased being the brother of Mst. Benazira was likely to be offended and disturbed. His objection with regard to the presence of the appellant on the roof was therefore, natural which was taken ill by the accused party resulting assault on the complainant party. The complainant party were settlers in the area and had migrated from Charsadda.
13. We are, therefore, convinced that the prosecution witnesses who had not motive to falsely charge the appellant have correctly brought the charge against the appellant which is positive and undisturbed. However, the petty discrepancies in their statements which do not disturb the case of the prosecution are negligible, therefore, the testimony of the ocular witnesses discussed above are supported and are fully corroborated in all material particulars.
14. The recovery of the shot gun from one of the accused after the occurrence which matched with the empty recovered from the spot is otherwise quite genuine and we have no reasons to doubt such a recovery as it is not doubtful and the same is supported by the statements of the marginal witnesses. Besides the abscondence of the accused-appellant for about a month or above also strongly corroborates the ocular account.
' Keeping in view the above circumstances we are of the view that the prosecution has proved its case beyond reasonable doubt against the appellant, therefore, the learned trial Court has rightly passed the conviction of the appellant. As a consequence the appeal is dismissed with a modification that the appellant was not allowed the benefit of section 382-B, Cr.P.C., in view of 1997 SCM R 55 and 1998 SCM R 1539, we are obliged to extend the benefit of section 382-B, Cr.P.C., to the appellant.