' MUHAMMAD AZAM KHAN, J.---The appellant, Fazal Hakim son of Noor Hakim, resident of Dheri Kati Khel, District Nowshera was tried by the learned Additional. Sessions Judge, Nowshera, in case F.I.R.
No,50, dated 16-2-1993 under section 302/34, P.P.C. Qisas and Diyat of Police Station Nowshera Cantt. And vide judgment and order dated 25-1-1996, he was convicted under section 324, P.P.C.
For attempting at the life of P.W. Ravail and sentenced to 5 years R.I. And to pay a fine of Rs,10,000 or in default to suffer further one year S.I. The fine if realised, half of it shall be paid to P.W. Ravail as compensation.
' The appellant was further convicted under section 302, P.P.C. For committing the Qatl-e-Amd of Hashmat Khan deceased and sentenced to life imprisonment and to pay Rs,50,000 to the legal heirs of the deceased or in default to suffer further two years S.I. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Feeling aggrieved of the aforesaid convictions and sentences, the appellant has preferred the present appeal for setting aside the impugned judgment and order and his acquittal of the charges.
3. Hashmat Khan Complainant (deceased) in injured condition lodged a report at Police Station Nowshera Cantt. To the effect that he alongwith his brother namely, Ravail were sitting in the shop of one Gul Bahader when in the meantime the accused Fazal Hakim came armed with .30 bore Pistol and started firing at Ravail, who escaped unhurt while he (complainant) received injuries. The occurrence was witnessed by his brother and the shopkeeper.
4. Bashir Hussain Khan A.S.I. (P.W.6) after recording the report of Hashmat Khan son of Mian Khan complainant registered the case under section 324, P.P.C. As at that time he was alive. He prepared his injury sheet. Since he was an army personnel, therefore, his injury sheet prepared by him was retained by the concerned doctor in the C.M.H. The injured was referred to the hospital, under the escort of Muhammad Hand F.C. And he himself went to the spot, inspected it at the instance of P.W.
Ravail and prepared the site plan Exh.P.B. He recovered from the spot five empties of .30 bore freshly discharged Exh.P.5. And he took into possession the same vide recovery memo. Exh.P.D. He arrested accused Fazal Hakim from the Hujra of Atlas Khan. He recovered a pistol of .30 bore country made No,A8090 with 8 live cartridges in its chamber and was giving smell of fresh discharge, vide memo. Exh.P.D/1. He had unloaded the pistol of 8 cartridges. He also took into possession the blood-stained clothes of the deceased consisting of a Wasket P.1, Banyan P.2, a shirt P.3 and Shalwar P.4, blood stained having corresponding cut marks produced to him by Sabir Hussain Army Subaidar vide memo. Exh.P.C. He produced the accused before the Magistrate for recording his confessional statement. Hashmat Khan injured then succumbed to his injuries on 18- 2-1993, so he changed the section of law from 324, P.P.C. To 302 Qisas and Diyat Ordinance. The report of the chemical analyst with regard to the garments of the deceased is Exh.P.W.6/2. He also sent the crime weapon and the empties to the arms expert for examination whose report is Exh.P.W.6/5. The Investigating Officer recorded the statements of the P.Ws. On completion of the investigation he handed over--the case file to the S.H.O. For further completion and onward submission. He had prepared the inquest report of the deceased in C.M.H. Which is Exh.P.W.6/6.
Salahuddin Khan, S.H.O. (P.W.2) submitted complete challan against the accused in the competent Court.
5. Dr. Maj. Muhammad Rafi Butt (P.W.7) conducted post-mortem examination on the dead body of Hashmat Khan deceased and found the following injuries on external examination:--
(1) At mid point of the left arm, there was mark of tatooing. Entry wound was present anterolaterally 1.75 x 1.75 c.m. Exist wound was present posteromedially of the size of 2 c.m. x 2 c.m.
(2) Entry wound was present anteromedially in upper thigh. Size of wound 1.75 c.m. x 1.75 c.m. There was no mark of tatooing. Exit wound was present posterolaterally near gluteal fold. Size 2 c.m. x 2 c.m.
(3) Only entry wound on chest was present. No mark of tatooing. The wound was present in the 8th intercostal space (left) at mid-axillary line.
' On Internal examination the lumber vertebrae was sent to be normal and bullet was recovered from spinal canal by cutting the spine. Left plural cavity contained blood-stained fluid, left lung was bruised on lateral side. Right plural cavity and lung was normal. The pericardium, heart and its branches of aorta were normal. Laboratory incision was present in left upper abdomen. On right upper quardant colostomy was present. Body of spleen was damaged and stitches were seen.
Body and tail of pancreas was seen raptured and sutured. Both greater and lesser omenta were seen sutured. Scalp was normal, skull bones were intact. No injury or abnormality was found inside the skull.
' Death was due to firearm injuries causing severe damage to vital organs.
6. After complying the provisions of section 265-C, Cr.P.C. The appellant was formally charged to which he did not plead guilty and claimed trial.
7. The prosecution in support of its case examined as many as 7 witnesses and after close of the prosecution evidence the appellant was examined under section 342, Cr.P.C. Wherein he professed innocent.
8. The conviction of the appellant is based by the trial Court on the ocular account of P.W.5 Ravail who is brother of Hashmat Khan deceased and the report Exh.P.A./1 lodged by the deceased himself in the Police Station when he was alive and was in command of full senses. This evidence has the support and corroboration of the retracted confession of the accused Exh.P.S. Recorded on 17-2-1997 on the following day of the arrest of the accused coupled with the fact that the appellant was arrested soon after the occurrence alongwith the weapon of offence i,e, 30 bore pistol having 8 live rounds in its chambers, from the Hujra of one Atlas Khan in the presence of P.W. Hazrat Mir and Muhammad Hanif. Basides, 5 crime empties of .30 bore pistols were also recovered from the spot which were later on sent to the firearm expert for comparison and it was found that these have been fired with the pistol recovered from the possession of the accused. The trial Court having been impressed by the above evidence which had been sufficiently corroborated was obliged to record the conviction of the appellant.
9. Assailing the prosecution case the learned counsel for the appellant contended that the accused was not arrested at the spot and that the ocular witness Gul Bahadur, the alleged vegetable vendor had been withheld by the prosecution; therefore, the evidence of the prosecution already available on the record was interested. Besides, the learned counsel contended that there was no motive mentioned in the report and the alleged dying declaration of the deceased was not certified by the doctor hence it cannot be used against the accused.
' The learned counsel for the complainant and the learned Additional Advocate-General for the State on the other hand, supported the impugned judgment.
10. Having given our anxious consideration to the contentions of the learned counsel for both the parties we are constrained to observe that there was no previous enmity between the appellant and the deceased. The motive which developed later on on the record was from the retracted confessional statement of the appellant. According to the confession of the appellant Ravail P.W.
Who is the brother of Hashmat Khan deceased was employed alongwith the appellant with a contractor at Taxila. Ravail (P.W.5) used to taunt the appellant that his younger sister was his daughter meaning (illegitimate). Ravail used to repeat the sentence to him which disturbed his mind and while coming across him on the day of occurrence he fired at him with which the deceased was hit and injured. The appellant alleged that he had committed the offence on account of "Ghairat".
11. The occurrence admittedly took place at Digar time inside the village Abadi on a thoroughfare near the Hujra of Atlas Khan. The deceased was an employee of Armed Forces had come to his village, therefore, his presence with his brother Ravail Khan cannot be ignored. In his statement recorded under section 342, Cr.P.C. The appellant has admitted his presence at the spot. In reply to question "It is in evidence that on 16-2-1993 at 1630 hours you armed with a pistol of .30 bore country made in order to commit Qatl-i-Amd fired at Ravail, P.W.5 at the shop of Gul Bahadur Vegetable Seller situated in village Dher Khati Khel with which Hashmat Khan (deceased) got mortally injured whereas Ravail his brother escaped unhurt. What do you say about it?" he stated in the following words:- ' The entire allegation is incorrect. Neither I had a pistol nor had I fired at the deceased. The pistol is owned by Ravail who wanted to kill me and instead he fired at his deceased brother."
In such circumstances, we have to evaluate the plea of both the parties on their own merits. The appellant in support of his plea failed to produce the defence version and also refused to be examined on oath as his own witness under section 340, Cr.P.C., therefore, his stance lacks material support and can be ignored straightaway.
12. On the other hand, the prosecution version is supported by the ocular testimony of P.W. Ravail, P.W.6 Bashir Hussain Khan, S.I. Who recorded the dying declaration of the deceased Exh.P.A./1 which gave the full detail of the occurrence and is corroborated by the recoveries from the spot, arrest of the accused soon after the occurrence with the weapon of offence which matched with the crime empty and the medical report. The deceased after receiving the injuries remained alive for two days and there is nothing available on the record to suggest that the deceased was not capable of making a statement at .The time of report till the time of his death. His version, therefore, qualifies all the tests of a dying declaration which cannot be brushed aside.
13. The aforementioned circumstances suggest that the prosecution version inspires confidence and it cannot be ignored on mere assumption, therefore, there is no material on the record which could override the prosecution evidence which otherwise proves the charge against the appellant.
' In view of what has been stated above we hold that the appellant has rightly been convicted and sentenced by the trial Court. This appeal, therefore, fails and is accordingly dismissed.