' MUHAMMAD AZAM KHAN, J.--- The appellant, namely, Surat Khan, aged about 35/36 years, and Aziz-ur-Rehman son of Haji Khanmir Khan, aged about 32/33 years, both residents of village Abba Khel, District Lakki Marwat, were tried by the learned Sessions Judge, Lakki on the charge under section 302/34, P.P.C. For having committed the murder of Kifayatullah with fire-arms on 15-7-1990 in village Abba Khel, within the limits of Police Station Lakki Marwat. Surat Khan was found guilty of the offence charged for and vide judgment, dated 3-3-1995 of the learned trial Judge, he was convicted under section 302, P.P.C. And sentenced to undergo imprisonment for life with a fine of Rs,50,000, or in default whereof to suffer further five years' R.I. The fine if realized 2/3rd of the same was ordered to be paid to the heirs of the deceased. Benefit under section 382-B, Cr.P.C. Was also extended to him. The co-accused, namely, Aziz-ur-Rehamn was, however, extended the benefit of doubt and was acquitted of the charge on the, plea of alibi and the law laid down in the cases reported in 1994 PCr.0 1137 and 1375 and PLD 1993 Lah. 533 citation on page 534.
2. Through the instant Appeal No,48 of 1995, the convict has challenged his conviction and sentence and we have also before us Criminal Appeal No,53 of 1995 filed by the complainant Dost Muhammad Khan against the acquittal order of Aziz-ur-Rehman. Similarly, the complainant Dost Muhammad Khan has also filed Criminal Revision No,8 of 1995 for enhancement of the sentences awarded to the convict-appellant. Since all the three matters are the outcome of one and the same judgment of the Court below, therefore, the same are disposed of by this common judgment.
3. Facts of the case, briefly stated, are that on 15-7-1990 at 12-00 houts complainant Dost Muhammad Khan carried the dead body of his deceased son named Master Kifayatullah Khan to the Police Station Lakki Marwat and made the present report to the effect that on the eventful day at 10-30 a.m. He along with his two sons, namely, Master Kifayatullah and Mushtaq together with brother Abdul Aziz P.Ws. Were sitting under the shadow of a tree in front of their Baithock when his son Kifayatullah stood up and proceeded towards the shop of Haji Amir Nawaz, who was followed by them and on reaching near the said shop, the accused/appellant Surat Khan and Azizur Rehman appeared on the scene duly armed with Topaks and after raising Lalkara, both of them started firing at him with which he was hit and expired there and then. According to him, both the culprits decamped thereafter, from the spot and the occurrence was stated to have been witnessed by him and the two witnesses aforementioned. Motive for the offence was given to he a dispute between the parties over a water channel (Nala Barani). This report was incorporated into F.I.R. No,2I4 of the same day by P.W.7 A.S.-T. Muhammad Ali of the said police station. After registration of the case, the said P.W.7 prepared the injury sheet and inquest report of the deceased and despatched the dead body for post-mortem examination. He, thereafter, proceeded to the spot where he prepared the site plan Exh.P.B. At the instance of the complainant.
From the spot, he took into possession blood-stained earth from point No,1 vide memo. Exh.P.C.
Which was sealed into a parcel. No other incriminating recovery on that day was made by him but arrested co-accused Azizur Rehman from his Hujra. The convict/appellant Surat Khan was not traceable, therefore, he was proceeded against under section 512, Cr.P.C.
4. Autopsy on the dead body of the deceased was conducted by Doctor Ghulam Nabi on 15-7-1990 at 12-15 hours who found the following injuries on his person:-- External
(I) An entrance wound of fire-arm on the left side of the chest about 4" below and lateral to the left nipple sizes 1/4" x 1/4" skin muscles and cavity deep.
(2) A graze wound of fire-arm at the left hypochondria skin deep.
(3) An entrance wound of fire-arm at lateral surface of the upper third of the left thigh. Skin and muscles deep sizes 1/4" x 1/4".
(4) An exit wound of fire-arm at the anterior surface of the upper third of the left thigh size 1/4" x 1/4".
Internal ' Thoracic walls, plurae, right lung, pericardium and heart injured. Stomach healthy and containing fluid juices.
' In his opinion, the death had occurred as a result of injury to the vital organs, i,e, heart, pericardium right lung, left lung causing hemorrhage shock and death.
5. Accused Aziz-ur-Rehman set up the plea of alibi regarding his innocence which was confirmed by the Investigating Officer and was, therefore, released under section 169, Cr.P.C. By the S.D.M., Lakki. Feeling aggrieved therefrom, the complainant filed a petition under section 561-A. Cr.P.C.
Before this Court for abashment of the aforesaid order, but was turned down by order, dated 27-4- 1997 with the observation that the aggrieved was at liberty to file a private complaint if he so wished. Aziz-ur-Rehman was, therefore, placed in column No,2 of the challan. While Surat Khan convict was arrested on 23-10-1992 after delay of almost two years.
6. The prosecution evidence consists of eight witnesses, while Abdul Aziz was abandoned as unnecessary. Both the accused were examined under section 342, Cr.P.C. Surat Khan accused denied the accusation against him and pressed his innocence. Same was the plea of Aziz-ur- Rehman co-accused, but he claimed the plea of alibi and produced two defense witnesses, named D.W.1 Fazlur Rehman and D.W.2 Younis Khan in his defense.
7. The conviction of the appellant Surat Khan is based on the ocular evidence of the two witnesses, namely, P.Ws. Dost Muhammad Khan complainant and his son Mushtaq coupled with the motive and surrounding circumstances on which implicit reliance has been placed by the trial Court.
8. Assailing the prosecution's case learned counsel for the appellant Surat Khan raised the following contentions:-
(1) Firstly, that the two ocular witnesses were not present at the spot at the time of occurrence;
(2) Secondly, that identity of the culprits was doubtful, as they were allegedly present at the spot behind some bushes;
(3) Thirdly, that the shot attributed to the two accused do not commensurate with the post- mortem report, as only one pellet was recovered from the dead body of the deceased, and
(4) Fourthly/lastly, that no incriminating empties were recovered from the spot besides that it was an unseen incident.
9. Learned counsel for the complainant and State supported the impugned judgment by reiterating the reasons contained therein.
' Both of them added with vehemence that the two eye-witnesses though related to the deceased had no motive to falsely charge the accused as they were natural witnesses to the occurrence.
According to them, identity of the culprits was known to them and both the parties live in the same locality in front of each other, at the spot where the occurrence took place, the place where the witnesses were present and the place wherefrom the accused had fired, were clearly visible, as is supported by the site plan.
' According to them, the incident took place on Sunday which was a holiday and it is natural that during the month of July, people took shelter under the trees in front of their houses/Bait hocks.
10. We have anxiously considered the arguments advanced at the Bar and minutely examined record of the case.
11. There is force in the contention that the occurrence took place at broad A daytime at the venue mentioned in the F.I.R. Perusal of the site plan shows that both the parties live in the same vicinity so much so that their houses are visible to each other. There appears to be no serious enmity between the parties and dispute between them as alleged was over a water channel which was not sufficient to discard the ocular evidence of the witnesses unless their statements motivate towards the accused which is not available in the case in hand. Here the report has been made at 12-00 hours without any delay, which per se cannot be fatal to the prosecution's case specially in cases where identity of the culprits is known to the complainant and supported by the fact that it is a day light incident. The complainant might have consumed some time in arranging a vehicle to carry the dead body of the deceased from a distance of about 7/8 kilometers from the spot. In the instant case, there is sufficient corroboration available to the statements of the ocular witnesses.
Prolonged ascendance of the appellant Surat Khan for more than two years supports his guilt coupled with the recovery of blood-stained earth shown in the site plan and in front of his house c in the dried Nalla. Besides, no evidence is forthcoming on record to suggest that the accused was falsely implicated in the case in hand, as the two P.Ws. Are consistent with all the material aspect of the case. On the other hand, the points urged by the learned counsel for the appellant had not been pressed at trial and the witnesses have not been confronted with these points at the time of cross-examination, which on record seems to be extremely poor. The only suggestion put to the witnesses was that on the day of occurrence they were not present in the village and that the charge was suspicious. This material by itself was insufficient to discard the testimony of the two ocular witnesses who happened to be the residents of the same locality and who were specially enjoying a D holiday as it was Sunday and they being in service had to be present in the village unless proves otherwise. With regard to the allegation of the appellant's counsel that injuries on the person of the deceased were not in conformity with the site plan, we are of the views that in absence of any suggestion made to the witnesses in the cross-examination to create a doubt, this aspect of the said contention would not come to rescue of the appellant. It might be possible that the deceased during firing might have changed his position in order to save himself. In the present case, the trial Court has acquitted co-accused Azizur Rehman on the basis of his plea of alibi supported by the case-law cited at the Bar. It is important to mention here that the complainant party did not file any private complaint against him as suggested by this Court in its order, dated 27-4-1998 in the quashment proceedings under section 561-A, Cr.P.C. It is an admitted fact that having been released under section 169, Cr.P.C. Azizur Rehman could not be deemed as an accused in the instant case. The observations of the trial Court with regard to his acquittal are, therefore, correct and need no interference. We are further firm in our minds that the trial Court has taken a correct view in passing the impugned order in respect of accused Surat Khan. We, therefore, confirm his conviction and sentence and dismiss his appeal. Likewise, both the criminal appeal and criminal revision of the complainant, i,e, against the acquittal of Aziz-ur-Rehman and enhancement of sentences awarded to the convict/appellant shall follow the events accordingly.