' ABDUR REHMAN KHAN, J.----Petitioner alongwith Mst. Maqbool Jan, was tried for the murder of Mst. *Shabana by the learned Additional Sessions Judge, Peshawar and by judgment, dated 21-11-1998, petitioner was convicted under section 302(b), P.P.C. And was sentenced to death, and was also directed to pay Rs.1,00,000, half of which was ordered to be paid to the legal heirs of the deceased.
The co-accused Mst. Maqbool Jan was acquitted. A learned Division Bench of the High Court by the impugned judgment, dated 16-12-1999, dismissed the appeal filed by the petitioner and confirmed the death sentence. Petitioner has filed this petition for leave to appeal to call in question the legality of the impugned judgment.
2. Samin Jan (P.W.7) reported the murder of his daughter Mst. Shabana in police post at 8-30 p.m.
Which had occurred the same day at 6-30 p.m. It was stated in the report that he alongwith his wife Mst. Mehrin (P.W.8) and daughter Mst, Shabana (deceased) were proceeding towards the .House of Sher Zaman butcher. On the way Amir Khan (petitioner) and one Afghan Mohajir, whose name and address is not known, met them and both of them threw acid from glass bottle over Mst.
Shabana aged 15/16 years, with which she was burnt. Both the accused then decamped. He tried to treat his daughter but she expired and her dead body was lying in the house.
3. Motive for the crime was that Amir Khan (petitioner) wanted to marry the deceased which they had refused.
4. The learned trial Court based conviction of the petitioner and the following items of evidence:--
(i) There was no delay in reporting the matter to the police.
(ii) There was no motive for false charge or substitution of the petitioner for the real culprits.
(iii) The two eye-witnesses i.e. Samin Jan and Mst. Mehrin (P.Ws.7 and 8), although parents of the deceased, had no reason to pick up the petitioner for the false charge or to substitute him for the actual perpetrator of the crime. They are, therefore, disinterested and natural witnesses. Moreover their evidence is consistent, persuasive and natural and could not be discredited on any count by the defence.
(iv) The testimony of the eye-witnesses find support from the medical evidence.
(v) Voluntary and believable confession of the petitioner.
(vi) Motive stood established.
(vii) Recovery .Of bottle containing acid used in the commission of offence at the behest of the petitioner.
' A learned Division Bench in appeal agreed with the line of reasoning and the conclusion reached by the trial Court and, accordingly, dismissed the appeal. The legality of the above judgment is impugned in this petition.
5. The learned counsel appearing for the petitioner argued that the statement of Dr. Shahida Islaveed (P.W.9) shows that the Kerosene oil smell was coming from the clothes of the deceased and that "It is also correct that the deceased had blackening on the chest and abdomen present, and this blackening has been caused by kerosene oil burn and not by acid. It is correct that the deceased died of burns caused by kerosene oil and not by acid". It was, therefore, submitted that the prosecution version that the deceased died of injuries caused to her by acid was belied by the said statement.
' The aspect of the case had been aptly and exhaustively dealt with by the trial Judge in his judgment. The relevant portion of which is reproduced:-- "Defence has tried to make much capital from P.M. Report and the statement of lady doctor who had performed the autopsy on the dead body of the deceased Mst. Shabana. Lady Doctor has written in the P.M. Report that smell of kerosene oil was emanated from the body of the deceased and burning of hems the result of the kerosene. Now the question arises whether the preference will be given to the opinion of the lady doctor who had performed the autopsy on the dead body or to other overwhelming evidence available on file. Lady doctor has simply stated that smell of kerosene oil was emanating from the clothes of the deceased and the burnings were result of kerosene oil. But blackening was only around the chest and not on the other part of the body. If burning were result of kerosene oil then the burning should have been on the entire body as according to the report of the doctor the clothes were burnt. The said burning of the chest area suggests that the same was the result of acid. Moreover, lady doctor was again summoned by the office without proper order but both the counsel for the parties agreed not to re-examine her. There is report of medical analyst about the contents of the bottle. The burning of the piece of Shalwar, brazier and chappal wherein the chemical analyst has specifically mentioned that bottle contains sulphuric acid and burning of the articles were the result of sulphuric acid. Besides, the learned defence counsel has specifically put question while P.W.8 was under cross-examination that the deceased had committed suicide by burning herself alive with acid. Similarly, both the accused while were being examined under section 342, Cr.P.C. Have specifically stated that deceased had committed suicide by throwing acid on her body. In the presence of such evidence and own admission of the accused priority will not be given to the opinion of the doctor who has even left the column of time between injury and death blank."
It has time and again been held by the superior Court that if a bald statement of a medical expert is opposed to the proved and admitted confidence inspiring and reliable account of the eye- witnesses or other A material and trustworthy evidence on record, then the latter are to be preferred against the former. In this case it is not understandable how could the lady doctor determine the' nature of the injuries by certain smell. It is on record as referred to in the above para. from the trial Court judgment that the trend of cross-examination by the defence itself was that the deceased received burnts/hurts with acid. The eye-witnesses have consistently stated that the acid was thrown on the deceased. The report of the Chemical Examiner from Forensic Science Laboratory also shows that the clothes etc. Of the deceased were burnt with "sulphuric acid". In view of this confidence inspiring evidence the gratuitous remarks of the medical officer without any valid basis have no significance. It appears that the defence availing the above remarks of the medical officer tried to build the foundation of the defence story on it as is apparent from the defence evidence given by the two minor defence witnesses D.W.3 and D.W.4. The defence evidence to say the least is ridiculous and cooked up and cannot be .Relied as against truthful evidence of the eye-witnesses. It was next argued that there was delay of 2- 1/2 hours in making the report which makes the prosecution case doubtful. This argument cannot prevail; firstly, that in the circumstances of the case there appears no delay in lodging the report; and secondly, as there was no previous enmity between the parties, therefore, the delay, if any, would not be of much importance. The learned counsel also, criticised the recovery of the bottle with small quantity of acid which was used in the commission of offence. However, he could not advance any cogent reasons for discarding it. It was next pointed out that according to CIA Police the defence version was correct. The CIA report is neither binding on Court nor it is believable against the positive and reliable evidence of the prosecution.
6. We are of the view that the prosecution has been successful in proving the guilt of the petitioner through the evidence as commented upon in the judgment of the trial Court and High Court as referred to above. The learned counsel was unable to point out any valid flaw in the evidence relied upon for conviction by the trial Court and the High Court. This petition is, therefore, dismissed and leave is refused.