SARDAR MUHAMMAD RAZA, J.--- Hameedullah son of Saadullah resident of Mohallah Rustam Khel, Mardan, alongwith his co-accused Nowsherwan was tried under section 302/324/34, P.P.C. For the murder of one Mst. Yasmin with reference to F.I.R. No,214, dated 18-4-1993 of Police Station Takhat Bhai, by learned Additional Sessions Judge, Mardan at Talat Bhai. Through judgment, dated 6-11- 1994 the learned Additional Sessions Judge acquitted Nowsherwan but convicted Hameedullah and sentenced him under section 302(e), P.P.C. To imprisonment already undergone (reported to be fifteen months) and also to the payment of Rs,1,50,000 as Diyat to be paid to the children of the deceased excluding the share of Muhammad Zafar, the husband.
2. Mst. Humaira and others, the legal heirs of Mst. Yasmin have filed a revision petition for the enhancement of sentence of Hameedullah challenging that the conviction recorded under section 302(c), P.P.C. Was wrong and that it should have at least been passed under section 302(b), P.P.C.
They, however, did not challenge the acquittal of Nowsherwan.
3. On the other hand, Hameedullah convict has filed Criminal Appeal No,305 of 1994 against his conviction which being subsequent in time to the instant criminal revision, shall be decided through this single judgment.
4. The detailed background of the occurrence is that Muhammad Zafar son of Abdul Ghafoor of Rustam Khel, Mardan, the complainant, alongwith his wife Mst. Yasmin on 18-4-1993 had gone to Arbi Bandha to condole the death of a child Yasin son of Aurangzeb who was a relative and who had died about one week prior to the occurrence. After such condolence, both the husband and wife alongwith Kalam Bacha and Izhar Ali started back in a pick-up No,DNA 7003 towards Sri Behlool.
5. When the pick-up reached Arbi Bandha Khawar (dry Nulla) the convict Hameedullah and his companion Nowsherwan were seen duly armed with fire-arms. They signalled the pick-up to stop and the driver responded to the signal. Hameedullah appellant opened fire at Muhammad Zafar complainant and his wife. The husband escaped unhurt but the wife was hit somewhat above the left ear. The bullet pierced through the brain and exited from above the right ear. The lady died on the spot. The motive for the occurrence is alleged to the effect that Hameedullah was the sister's son of the complainant and had been demanding his mother's share in the property from his maternal-uncle Muhammad Zafar.
6. The occurrence had taken place at 17-30 hours whereafter the pickup was rushed to the Civil Hospital, Mardan, where Muhammad Zafar complainant within thirty minutes of the occurrence lodged a report at 18-00 hours before Abdul Ghani, A.S.-I., reduced in the shape of Murasila Exh.P.A./1 subsequently incorporated into F.I.R. No,214 at Police Station Takht Bhai.
7. Hameedullah absconded after the occurrence and after three months, he surrendered on 19-7- 1993. During trial the companions in the pick-up namely Kalam Bacha and Izhar Ali were examined as eye-witnesses while Muhammad Zafar complainant was abandoned having been won-over.
The prosecution relied upon the ocular testimony of two witnesses supported by a promptly lodged F.I.R. Within thirty minutes after covering a distance of 12/13 kilometers. It was alleged to be a broad daylight occurrence where Hameedullah was identified by the complainant as well as by the witnesses who were related to each other and had no enmity with Hameedullah at the time of occurrence so as to exclude the possibility of false charge. The testimony was further claimed to have been supported by the post-mortem report, the recoveries of empties of 30 bore from the spot and the unexplained abscondence of Hameedullah. No stress was made qua the co-accused Nowsherwan either by the prosecution or by the legal heirs of the deceased.
8. The learned trial Court agreed with the above claim of the prosecution but the conviction aforesaid was recorded on the ground that Muhammad Zafar complainant by not appearing in Court seemed to have compromised the matter and to have waived his right of Qisas. Inferring the matter to be one of compromise and waiver the conviction was so recorded and the sentence so passed as already mentioned.
9. We would say at the very outset with regrets that the learned trial Judge has committed a grave illegality unprecedented as well in suo motu making an inference of compromise and waiver on the part of Muhammad Zafar complainant when such complainant never appeared before him to make such assertion and was, in turn, abandoned as having been won-over. We also appreciate, in the circumstance, that his having been won-over was quite logical because on the other side his real sister was involved who, being the mother of Hameedullah was most likely to have had made such persuations. In questions of compromise and waiver, the Courts cannot and are not supposed to make inferences when the person involved does not at all appear before the Court to make any statement to that effect. The Court tends to have shown leniency towards Hameedullah, least supported by any evidence. We, therefore, hold that the conviction, if otherwise justified through evidence, was wrongly made under section 302(c), P.P.C. And it should have been under section 302(b), P.P.C., in the given circumstances, as the evidence on record was not sufficient to award punishment as Qisas under section 302(a), P.P.C.
10. Before adverting to the evidence on record, we would first like to attend to a legal objection raised by Khawaja Muhammad Khan learned counsel for accused-appellant to the effect that the conversion of conviction from section 302(c) to 302(b), P.P.C. Amounted to a conversion of conviction under a different section which was beyond the scope of a revision. That the legal heirs of the deceased having not filed an appeal, the needful could not be done under a revision. We have given considered thought to the problem and believe that the conviction recorded under subsections (a) to (c) of section 302, P.P.C. Shall always be deemed to have been recorded under section 302, P.P.C. And the difference in the subsections is that of the quantum of sentence alone which prayer can be covered by filing a revision for the enhancement of sentence. There is another aspect of the matter that even if it is presumed for the sake of arguments that the needful cannot be done without filing an appeal, we have observed that the instant revision petition, excluding the time spent in 'obtaining the copy of judgment, was filed within a period of 22 days which was sufficient for filing an appeal and hence we propose to convert the revision petition into an appeal and will dispose of the same accordingly.
11. Coming to the merits of the case, the learned counsel raised an objection that the deceased lady had received inlet wound on the left side of her face which in view of the site plan and in view of the statement of the eye-witnesses was not possible. We have closely examined the ocular testimony of P.W. Kalam Bacha and P.W. Izhar Ali and have also thoroughly examined the site plan and hold that the objection is unfounded.
' It has come on record that the two witnesses were seated on the left side seat of the Pick-up while the complainant and his wife were sitting on the right side seat of the pick-up. Anyone, so seated will have the left side of his body towards the assailants who have fired from the rear. In the circumstances, the victim will receive the inlet wound obviously on the left side. In this behalf, the testimony of the eye-witnesses is supported by the site plan as well as the post-mortem report.
12. One eye-wimess has stated that the assailants were present on the right side of the pick-up.
The learned counsel claimed that they could not have fired from the right side and that in the site plan the assailants are shown to have been located behind the pick-up. This leads to no confusion or contradiction because the presence of the assailants towards the right is mentioned in connection with their first signalling the pick-up to stop. At such occasion they were on the right side of the pick-up and so are they shown at point "A" which is to the right side of the pick-up even in the site plan. This confusion is not at all material. So far as the at of firing is concerned, obviously they could not have fired from the right because the pick-ups are always closed from the sides and hence they had to fire somewhat from the rear. So is the version of the eye-witnesses.
13. We may point out at this stage that no doubt the eye-witnesses are related to the deceased and so also to the complainant but till the time of occurrence they had no enmity whatsoever with Hameedullah and, thus, in the instant case, the chances of false charge due to ulterior motives are totally excluded. In the circumstances, when the witnesses had no enmity at all with the respondent-accused, their testimony does not even require corroboration, muchless independent.
Whereas, in the instant case, their testimony is strongly corroborated by a most promptly lodged F.I.R., by the medical report, by recoveries of empties from the spot and by three months abscondence of Hameedullah.
14. Learned counsel, however, disputed the presence of P.W. Kalam Bacha and P.W. Izhar Ali on the ground that they were chance witnesses and had no reason to be travelling with the complainant party. Rather, they were supposed to have stayed back in the house at Arbi Bandha where the death of Yasir was being condoled, for, they were the relatives of Yasir. This also is not tenable because Yasir had died a week prior to the occurrence and hence it was not necessary for all the relatives to remain at home for all times and for a period of seven days after the death. Moreover, they have stated that they were going to Mardan and such statement was never shattered in the cross-examination. Rather, no question at all was asked to this effect and hence their version would be deemed as proved. Even otherwise their accompanying the complainant party cannot be doubted. Their names as eyewitnesses were mentioned in the promptly lodged F.I.R. Where no time was wasted in covering a distance of 12 to 13 kilometers. Their testimony by itself is ,sufficient to prove the prosecution case and the same was never shattered in the crc as-examination.
15. The next objection of the learned counsel was that the motive is not proved because complainant Muhammad Zafar who alleged the motive in the F.I.R. Has not been produced. It is already clear that Muhammad Zafar was won-over and was rightly abandoned by the prosecution. Anyhow, the factum of recording of F.I.R. And that said F.I.R. Was lodged by Muhammad Zafar is proved through the statement of Abdul Ghani, A.S.-I. As well, who recorded the Murasila and who had no axe in his own to grind. We are also alive to the matter that the motive in the instant case is not even necessary to be proved because had there been no motive, a real maternal-uncle would not have charged the respondent-accused Hameedullah. No murders are committed without motives particularly when a close relative charges another close relative.
16. It has come in the judgment of the trial Judge that Muhammad Zafar complainant has stated that he had charged the respondent at the instance of the relatives of the deceased lady. About these remarks of the learned trial Judge, there is not an iota of evidence on the judicial file. We believe that some statement under section 164, Cr.P.C. Of Muhammad Zafar complainant is relied upon to such effect but no such statement can be relied upon unless Muhammad Zafar appears in Court to confirm the same and to depose accordingly. We are convinced that any such statement of Muhammad Zafar under section 164, Cr.P.C. Is neither admissible nor true because it was obtained after when he had been won-over. It is false because it is the statement, if at all, of a dishonest man who being an eye-witness absolves the real culprits and involves someone at the instance of the others. The conduct of Muhammad Zafar in the instant case was not up to the mark and becoming of a conscientious man.
17. The next weakness in the prosecution case is pointed out qua the non-production of Raza Khan, the driver of the pick-up. The learned counsel for the respondent alleged that this Raza Khan driver was examined under section 164, Cr.P.C. But still abandoned. Such statement was even read out in the Court. It is quite interesting to note that the defence mostly relies upon such statement under section 164, Cr.P.C., the deponents whereof have never been produced in Court. Anyhow, for the sake of the satisfaction of defence, we would say that the occurrence is even proved from the statement of Raza Khan driver under section 164, Cr.P.C. Read out in the Court with clarity of all details except that Raza Khan driver did not identify the assailants. It is but natural because he was a stranger. This factum we have mentioned and the statement we have referred to only- to appreciate that it never went against the prosecution and hence Raza Khan was rightly abandoned either as won-over or as unnecessary because both the eventualities could be rightly confronted.
18. The next objection is to the effect that no bullet marks were found on the vehicles which rendered the case as doubtful. We do not agree to this minor omission because it could have been a laxity on the part of the Investigating Officer who failed to go into minute details. Such minor omission cannot lead to discarding the otherwise confidence inspiring evidence of the eye- witnesses.
19. Last was the objection that the case is not proved because of the non-appearance of Muhammad Zafar complainant. It has already been discussed as to what were the circumstances that Muhammad Zafar did not appear or had been won-over. His abandonment does not affect at all the case of the prosecution because it is fully proved by P.W. Kalam Bacha and P.W. Izhar Ali.
20. Consequently, Criminal Appeal No,305 of 1994 of Hameedullah is hereby dismissed, the instant revision petition converted into appeal is hereby accepted. The conviction of respondent Hameedullah is altered from section 302(c), P.P.C. To section 302(b), P.P.C. And upon such conviction he is hereby sentenced to imprisonment for life and further to pay a sum of Rs,100,000 (one hundred thousand) as compensation under section 544-A, Cr.P.C., in default of payment whereof, he shall suffer further imprisonment for six months which shall run consecutive to the main sentence. This imprisonment in default of payment of fine shall be in addition to the mode of recovery provided in the section itself. Respondent Hameedullah is taken into custody to serve the sentence awarded today.