' MALIK HAMID SAEED, J.---The appellant, Shahzar Khan, aged about 55/56 years, son of Begu Khan, resident of Wanda Begu Khan, situated within the limits of Police Station, Dadiwala, was tried by the learned Additional Sessions Judge Lakki, on the charge that he alongwith his absconding son co- accused named Shabbir Ahmed on 3-11-1989 at about "'Aser" Prayers time" near the house of complainant Begu Khan, armed with deadly weapon, committed the murder of the deceased Mst.
Shahzad Bibi by firing at her in furtherance of their common object to kill her, and by ineffectively firing at the complainant Muhammad Ghulam and his son Gul Rahim, On conclusion of the trial, the learned trial Judge found the accused/appellant guilty of the charge of murder of the deceased brought against him and on conviction sentenced him to rigorous imprisonment for life with a fine of Rs,10,000 and in default thereof to suffer one month simple imprisonment. On realization of the fine, it was ordered to be paid to the legal heirs of the deceased as compensation. He has been further convicted and sentenced to two years R.I. For ineffectively attempting at the lives of the complainant and his son, vide judgment dated 11-10-1994, impugned herein, recorded by the learned Additional Sessions Judge Lakki.
2. Both the convict and complainant are not satisfied over the aforesaid conclusion of the learned trial Judge and have independently come up to this Court for redress of their grievances. The convict Shahzar Khan has challenged his convictions and sentences through Criminal Appeal No,37 of 1994, while the complainant has filed Criminal Revision No,11 of 1994 there-against. Since both of them have arisen out of a common judgment of the learned trial Judge, as narrated above, therefore, we propose to dispose it of by this single judgment.
3. The prosecution's case as gleaned from the First Information Report (Exh.P.A.) is that on the eventful day at 2300 hours, the complainant Muhammad Ghulam, his son Gul Bailin] and daughter Mst. Shahzad Bibi had gone out of their house. To tic their cattle, which as usual had come back after grazing, when meanwhile Shahzar Khan and his son Shabir Ahmad, duly armed with shotguns and sitting outside the house emerged and opened fire at them. As a result of the said firing, Mst.
Shahzad Bibi was got hit who fell down to the ground and expired there and then. However, the complainant and his son escaped unhurt. Motive for the offence was given to be a dispute over landed property. In consequence, a case under sections 302/307/34, P.P.C. Was registered vide F.I.R.
No,55, dated 3-11-1989 at Police Station Dadiwala against the accused/appellant and his son/absconding co-accused.
4. In order to prove its case against the accused/appellant, the prosecution examined eleven witnesses in all. Of them, P.W.1 Miran Shah, Head Constable, had registered the case P.W.2, Gul Jana had arrested the accused, P.W.3 Khadim Hussain Foot Constable, had escorted the dead body of the deceased from the spot to the mortuary. P.W., Said Rehman, is a marginal witness to the memo.
Exh.P.C. Vide which bloodstained clothes of the deceased were scaled and taken into possession by the Investigating Officer P.W.5, Ali Akbar, had identified the dead body of the deceased, P.W.6 Nasrullah Khan S.H.O., had partly investigated the case, while P.W.7 had completed the remaining investigation and sent to Forensic Science Laboratory, Peshawar the bloodstained Chaddar of the deceased vide Exh.P.W.7/1 and had submitted complete challan of the case, after arrest of the appellant.
5. P.W.8, Doctor Muhammad Salim had conducted autopsy on the dead body of the deceased on 4-11-1989 at 11-30 a.m. And found the following injuries on her person:-- External Examination
1. One entrance wound on left side of forehead extending towards the exit wound about half inch above the left eyebrow.
2. One exit would extending from entrance wound on left parietal area of the skull extending towards occipital area of the skull about 3" x 5", brain and membrances lying out side of the skull.
Internal Examination ' Stomach healthy and contained semi solid food. Small intestines healthy and contained faeces.
Scalp and skull injured. Memberance and brain injured. Thoraic, healthy. Frontal bone, left parietal bone, occipital bone and right parietal bone, occipital bone and right parietal bone fractured.
' In his opinion, the death of the deceased had occurred due to injury to the vital organs, i,e, brain which leaded to haemorrhage, shock coma and death.
' Probable time that elapsed between injury and death was opined as 10 to 30 minutes, while between death and post-mortem examination 17 to 20 hours.
6. P.W.9, Muhammad Gh ul am complainant of the case had deposed that the convict/appellant, namely, Shahzar Khan, is his brother while the absconding accused being son of the appellant is his nephew. The deceased, namely, Mst. Shalizad Bibi as his daughter. He had categorically admitted in cross-examination his assertion given in his First Information Report and the motive disclosed therein.
7. P.W.10, namely, Gul Rahim, son of the complainant (P.W.9) and an eye-witness of the occurrence had almost narrated the same story as given by his father-complainant while making first report of the incident. He is also marginal witness to the recovery memo. Of the blood-stained earth (Exh.P.C.1) and in his presence the Investigating Officer has recovered one empty shell of .12 bore (Exh.P.C.) from Point No,4 and Exh.P.2 from Point No,5 together with ten card board (Exh.P.3) from Point No,A. All these articles were packed and sealed in his presence by the Investigating Officer into a separate parcel vide recovery memo. Exh.P.C.2.
8. P.W.11, Akhto Jan, M.H.C. Had prepared the injury sheet and inquest report of the deceased. He had sent the dead body to the mortuary, had prepared site plan on pointation of the complainant and recorded statements of the Prosecution witnesses. He had effected recoveries from the spot and had remained associated with almost entire investigation of the case., In this background of the case, the learned trial Judge had drawn the impugned conclusion.
9. Learned counsel for the appellant challenged the aforesaid conviction and sentence awarded to the appellant on the following grounds:-- ' Firstly; that there is an inordinate delay in lodging the F.I.R. With no plausible explanation therefor; ' Secondly; that the motive given in the report is not of a nature which could compel a brother to kill his real niece or his own brother; ' Thirdly; that there is material contradictions between ocular and medical account; ' Fourthly; that from the given circumstances, it is an act of a solitary accused while two are charged for the same; Fifthly; that the statements of P.Ws. 9 and 10 are highly improbable and unbelievable; AND LASTLY ' Sixthly; that the recoveries are extremely doubtful and not witnessed by any independent witness.
' In support of the above submission, learned counsel for the appellant relied on the cases reported in 1976 SCM R 368. 1974 PCr.LJ 385 (389), 1994 SCM R 6 and 1989 M LD 3467.
10. Learned counsel for the State and complainant while supporting the impugned judgment of the learned trial Judge argued that the convict/appellant is directly charged in the promptly lodged report and the delay, if any, has been sufficiently explained. The incident has taken place in front of the house of the eye-witnesses who are natural and cannot be doubted in any manner, so as to hold them unnatural, interested or to doubt their credibility_ The appellant had remained fugitive from law for a sufficiently long and unexplained period and the medicid ocular evidence and recoveries effected from the spot support the prosecution's case. With these submissions, learned counsel for the complainant also prayed for acceptance of the criminal revision and enhancement of the conviction and sentences awarded to the convict-appellant.
11. After giving our careful consideration to the respective arguments of the learned counsel for the parties and weighting the entire evidence brought on record, from whatever angle we see, we find that the prosecution had been able to prove its case against the convict/appellant beyond any shadow of doubt. The ground of delay taken up by the learned counsel for the appellant was not available to him, as it had been sufficiently explained by the complainant in the words that due to enmity with the accused and dark hours of night and in presence of a dead body of an innocent daughter coupled with the fact of non-availability of transport and distance between the police station and the spot of occurrence, the delay, if any, was unavoidable.
12. About the motive attacked by the learned counsel for the appellant, Samoor Khan and Mamoor Khan had appeared in the witness-box as D. Ws. Nos.1 and 2 respectively and had categorically stated that they alongwith Mir Aslam etc., had gone to the houses of both the parties for settlement of the dispute over a landed property but could not solve the same and hence it had stood proved.
Insofar as its nature as urged by the learned counsel for the appellant is concerned, land dispute is a sufficient cause for anyone and its consequence had always proved unbearable. Regarding the objection of contradictions between ocular and medical evidence, the deceased was examined by the Doctor named Muhammad Salim (P.W.8) whose report support the version of the prosecution in toto and the defence had miserably failed to pin point any conflict therein and hence it holds no water. Insofar as the fourth ground of the defence counsel is concerned that it was an act of a solitary accused while two have been nominated therefor, both the complainant and appellant are real brothers and the injuries sustained by the Deceased categorically support the case. This ground too is, therefore, without any substance and worth to be thrown away.
13. The objection -that the statements of P.Ws. 9 and 10 are highly improbable and unreliable is highly. .Objectionable as P.W.9, namely, Muhammad Ghulam is the complainant and real brother of the appellant, while P.W.10, named Gul Rahim is son of the complainant and both have given the true picture of the case. Their credibility cannot be doubted as they are natural and truthful witnesses. Learned counsel for the appellant had miserably failed to bring to our notice an iota of evidence to shatter their truthfulness and, therefore, it to merits outright overruling. The last/six submission of the learned counsel for the appellant is also baseless as the recoveries from the spot were effected in presence of independent witnesses and is accordingly rejected. In view of the above facts and circumstances of the case, the prosecution had been able to prove its case against the convict/appellant and no interference is required therein.
14. Now coming to the quantum of sentence awarded to the appellant by the learned trial Judge, keeping into consideration the old-age of the appellant and real brotherhood of the complainant, its enhancement to death is not warranted and is accordingly maintained. Learned counsel for the complainant also could not prove any valid ground so as to award the capital sentence of death to the convict/appellant and his prayer for enhancement of the sentences also fails and is accordingly rejected.
15. The upshot of the above discussion is that both, the appeal and the criminal revision fail and are, therefore, dismissed.
Appeal dismissed/