' MUHAMMAD AZAM KHAN, J.--- The appellant, Mehboob Ali alias Maqbali son of Atlas Khan and Umar Baz son of Wazir Baz, were tried by the Court of Session on the charge that they on 30-5-1992 at 14-30 hours on the road leading to Sepan near the Baithak of Umar Baz, in the limits of Village Aza Khel Bala, alongwith their absconding co-accused Salim, in furtherance of their common intention committed the murder of Farzand Ali, by firing at him and also ineffectively attempted at the lives of Muzafar Khan complainant and P.Ws. Fazal Ahmad and Niaz Ali.
' The learned Sessions Judge, Nowshera vide the impugned order, dated 12-6-1994, convicted the appellant Mehboob Ali under section 302, P.P.C. And sentenced him to undergo life imprisonment with a fine of Rs,10,000 and also to pay compensation of Rs,10,000 to the legal heirs of the deceased or in default to undergo two years further R.I. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant. However, Umar Baz was not held responsible for the commission of the offence and was acquitted of the charge levelled against him.
' Aggrieved of his conviction and sentence the appellant has approached this Court in appeal (Jail Criminal Appeal No,171 of 1994), while Muzafar Khan complainant has filed Criminal Revision (Criminal Revision No,84 of 1994), for enhancement of amount of fine, compensation and the sentence of imprisonment for life -to death. As both the matters arise out of the same judgment, therefore, we propose to dispose them of by this single judgment.
2. The facts of the case briefly stated are that Muzafar Khan complainant reported the incident to Inayatullah Khan, A.S.-I. In P.P. Aza Khel wherein he stated that he alongwith his sons Fazal Ahmad, Niaz Ali and Farzand Ali, were going back to their house after attending the funeral prayers in the Janazgah. When they reached near the Hujra of Umar Baz situated near Sepan Road and Farzand Ali was going ahead of them, accused Umar Baz, Maqbali and Salim absconding co-accused came out from there duly armed with kalashnikoves. On seeing them they started firing at them.
Farzand Ali was hit and died. After the commission of the offence the accused made good their escape. The occurrence was witnessed by Fazal Ahmad and Niaz Ali sons of the complainant.
' The motive for the offence was that some days prior to the occurrence, there was an altercation between the deceased and the accused. The report was reduced into writing in the shape of Murasila Exh.P.A./1 which was sent to the Police Station Nowshera Kalan for registration of the case where it was incorporated into F.I.R. Exh.P.A. As the dead body of the deceased was taken to P.P., therefore, the Police Officer prepared the injury sheet and inquest report Exhs.P.M. And P.M./1 respectively and sent the dead body to the mortuary for post-mortem examination under the escort of F.C. Muhammad Shuaib.
3. Dr. Nasrullah (P.W.10) conducted autopsy on the dead body of Farzand Ali and found the following injuries external examination:--
(1) Multiple fire-arm wounds on head, face, right eye and a lacerated wound on right cheek with fracture mandible with resultant disfigurement of head and face.
(2) Four entry wounds on right lateral side of body with its correspondence exit wound on right aliac fossa two on right side chest and left side abdomen.
(3) An injury on right upper shoulder with shattered muscles on right upper arm.
(4) A lacerated wound on right elbow joint with complete destruction of right elbow joint anatomy.
(5) Entry wound left medial thigh measuring 1/2" x 1/2" / 2" x 3" and its correspondence exit on left thigh measuring 1" x 1" x 3".
(6) Entry wound on left thigh measuring 1/2" x 1/2" x 3" with exit on left thigh measuring 1" x 1" x 3".
' On internal examination the doctor found peritoneum, mouth, small and large intestine injured.
Small intestine contained semi-digested food whereas large intestine contained faeol matter.
Stomach was healthy and contained semi-digested food.
' Skull bone fractured, brain and its membrance; spinal card damaged. Thorax wall, ribs, pleaurae, right lung injured. Death was due to shock and bleeding. Time between injury and death 1/2 hours and between death and postmortem examination three hours.
4. Inayatullah Khan, A.S.-l. (P.W.8) after sending the dead body to the mortuary proceeded to the spot. He inspected the spot, took into possession and sealed into parcel blood-stained earth vide memo. Exh.P.R., picked up from the spot 4 empties of kalashnikov P.1 and 4 bullets P.2 giving fresh smell of discharge vide memo. Exh.P.R./1 in the presence of marginal witnesses. He also took into his possession blood-stained clothes of the deceased Exhs.P.3 to P.6 bearing corresponding cuts brought by Muhammad Shuaib F.C. From the hospital vide memo. Exh.P.R./2. He prepared the site plan Exh.P.B. Correct with all its notes, drawing and sketches, at the instance of the P.Ws. He also sent the blood-stained earth and the blood-stained clothes of the deceased to the Forensic Science Laboratory, the report is Exh.P.L./1. He obtained warrants under section 204, Cr.P.C. Against the accused Maqbali, Umar Baz and Salim and also obtained proclamation under section 87, Cr.P.C. Against them and entrusted to the D.F.C. For service. He recorded the statement of the P.Ws.
The accused were absconding and he handed over the case file to the S.H.O.
' Sher Dil Khan, Inspector F.I.A., Peshawar, then S.H.O. Police Station Nowshera Kalan (P.W.12) formally arrested the accused Mehboob Ali on 29-11-1992. The accused was apprehended by the local police of Police Station Risalpur and from his possession they had recovered one kalashnikov P.7, Bandolier Exh.P.8, 3 chargers P.9 and 73 live rounds P.10, The S.H.O. Took all these articles into his possession and prepared the memo. Exh.P.R./3 in presence of the marginal witnesses. He sent the kalashnikov alongwith the empties recovered from the spot to the Arms Expert. He submitted supplementary, challan against the accused Mehboob Ali and Umar Baz.
' Pervez Khan S.H.O. (P.W.7) had submitted challan under section 512, Cr.P.C. Against the absconding accused Salim.
5. The accused were formally charged to which they did not plead guilty and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. Out of the P.Ws. Muzafar Khan (P.W.4), and Niaz Ali (P.W.5) are ocular witnesses to the occurrence. After close of the prosecution evidence the accused were examined under section 342, Cr.P.C. Both the accused have neither produced evidence in defence and they have given statement on oath.
6. We have heard the learned counsel for the appellant (Mr. Abdul Fayaz Khan), Mr. Qasim Jan, Law Officer for the State and Mr. Jehanzaib Rahim, Bar-at-law, Mr. Abdur Rauf Gandapur, for the complainant and have gone through the record of the case.
7. The important witnesses to the occurrence in the instant case are Muzafar Khan (P.W.4) and Niaz Ali (P.W.5). Muzafar Khan is the father of the deceased while P.W. Niaz Ali is the cousin of the complainant Muzafar Khan. Both the witnesses have specifically stated that on the eventful day of occurrence their relation namely, Akbar Khan had died in the village and that these two witnesses accompanied by Farzand Ali deceased and one Fazal Ahmad had gone to attend his funeral ceremony. After having attended the funeral ceremony they were returning back and when they reached near the Baithak of Umar Baz accused at 2-30 p.m. The appellant namely Mehboob Ali and the acquitted accused Umar Baz alongwith the absconding accused Salim came out from the Baithak duly armed with kalashnikoves and that all the three accused started firing at the deceased who was hit and killed on the spot. Thereafter, the accused decamped from the spot.
There is no previous enmity between the parties but the motive given by the witnesses at the trial is that a month prior to the incident the deceased had altercated with the accused. These two witnesses were cross-examined in detail by the defence counsel but no material favourable to the accused-appellant could be brought on the record to create doubt in the prosecution case. The trial Court while convicting the appellant relied on the testimony of these two witnesses, the motive for the offence, the abscondence of the accused and the fact that the appellant arrested alongwith a kalashnikov by the local police of Police Station Risalpur which later on matched with the empties recovered from the spot.
8. The learned counsel for the appellant raised the following points.
(i) that the alleged two ocular witnesses being relation to the deceased were interested witnesses;
(ii) that the medical evidence does not commensurate with the ocular account; and
(iii) that the 4 empties of 7.62 bore recovered from the spot were not fired from the kalashnikov recovered from the possession of the accused-appellant.
' According to the learned counsel the prosecution has also failed to prove the motive for the offence as the same has not been explained in detail.
' The learned counsel for the complainant and the learned State Counsel, supported the impugned judgment, by reiterating the reasons contained therein and added with vehemence that Muzafar Khan (P.W.4) and Niaz Ali (P.W.5) were the natural witnesses to the occurrence and had given a uniform and consistent version of the occurrence and their testimonies are fully corroborated by the medical evidence, the motive, the recovery of the crime-empties and their matching with the weapon of offence.
9. We have also examined the record minutely and have come to the conclusion that the testimony of the two witnesses namely, Muzafar Khan (P.W.4) and Niaz Ali (P.W.5) is consistent and is in confirmity with the circumstantial evidence. It is a broad daylight occurrence and admittedly the complainant party had gone to attend the funeral of their relation Akbar Khan and on return they met the incident. There is no suggestion on the record on behalf of the defence with regard to the previous enmity between the parties, therefore, the chance of false accusation is quite remote in the instant case. In this case the record suggests that the two witnesses of the prosecution are independent witnesses and they have no motive to falsely charge the present appellant in substitution of the actual culprit. Reliance has been placed 1999 SCMR page 329. The testimonies of these two witnesses are fully corroborated by the fact that after the occurrence the accused absconded for more than six months as the accused was arrested on 29-11-1992. Besides he was arrested by the local police of Risalpur duly armed with kalashnikov which later on revealed to have been used in the commission of the offence as 4 empties of 7.62 bore recovered from the spot were found to have been fired at with the same weapon. The objection of the prosecution with regard to the despatch of the crime-empty to the Arms Expert at a belated stage i,e, on 25-1-1993 cannot be of any help to the appellant because no question has been put to the Investigating Officer in the cross-examination with regard to the tampering of the seals of the crime-empties eversince its recovery till these were sent to the Forensic Science Laboratory for analysis, therefore, there cannot be any justification for suspicion regarding the fabrication of the crime-empties.
Reliance can be placed on NLR 1999 (Criminal) page 224 (sic), 1982 SCMR page 531. Since no suspicion could be pointed out in respect of fabrication of the crime-empties, therefore, their matching with the weapon of offence in the instant case can be considered as a corroborative circumstance.
We are, therefore, inclined to hold mat the eye-witnesses to the occurrence were natural witnesses, they had no motive to falsely implicate the accused and their testimonies were reliably corroborative by the evidence discussed above. We, therefore, decline to interfere with the impugned order and the appeal accordingly is dismissed. Consequently, the revision petition fails and is dismissed.