' MUHAMMAD QAIM JAN KHAN, J.--- The instant criminal appeal is directed against the conviction and sentence recorded by the Additional Sessions Judge, D.I. Khan, vide his order, dated 4-3-1998, against the present appellant vide which the appellant Anwar Ali Shah alias Athar Ali Shah has been convicted and sentenced under section 302, P.P.C. To life imprisonment and also a fine of Rs,50,000 or in default to suffer 2 years' R.I. Half of the fine, if recovered, was ordered to be paid to the L.Rs, of the deceased under section 544-A, Cr.P.C. As compensation. The appellant was further convicted under section 449, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000 or in default to suffer further six months' R.I. He is also convicted under section 452, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000 or in default to suffer further six months' R.I. The appellant is also convicted under sections 337-A(ii) and 337-A(iii), P.P.C. For causing injuries to Muhammad Rafi and sentenced him to Arsh (5% of Diyat) and Arsh (10% of Diyat), respectively, with five years' R.I.
Under each head. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Is extended to the accused/appellant. While the co-accused Azhar Ali Shah alias Ajji Shah is acquitted. Case property was ordered to be kept till decision of the appeal/revision.
2. Brief facts of the case are that on 10-9-1995 at 19-50 hours, Muhammad Rafi, complainant reported to the Police Officer while in injured condition in Emergency Room Civil Hospital, D.I. Khan, to the effect that today at Shamvela, he alongwith his brothers Muhammad Imran and Qamar-uz- Zaman, sisters Mst. Shamshad Bibi, Mst. Zahida Bibi, sister-in-law Mst. Rubina Khatoon and their mother were present in their house, watching an Indian Film on V.C.R. In the meanwhile, two accused, namely, Athar Ali Shah and Azhar Ali Shah, both of them were armed with pistols, entered their house. Accused Azhar Ali Shah entered the house from the roof of adjacent Kotha while accused Athar Ali Shah entered the house from the main gate. Accused Athar Ali Shah started firing at his brother Qamar-uz-Zaman, with which he was hit and fell down. Thereafter, accused belaboured the inmates of the house with the Butts of their pistols, as a result of which, the complainant, his brother Muhammad Imran, Mst. Shamshad Bibi, Mst. Zahida Bibi and Mst. Roobina Khatoon were injured. The accused decamped from the spot after the occurrence. There was sufficient light as electric bulbs were "on". The occurrence has been witnessed by complainant, his mother, brother, sisters and sister-in-law. The motive for the offence is that Mst. Rubina Khatoon who married Qamar-uz-Zaman, the brother of the complainant, against wishes of his father and brothers. Qamar-uz-Zaman later on succumbed to the injuries and died in the hospital. A case under sections 302/324/452/34, P.P.C. Was registered against the accused vide F.I.R. No,298, dated 10-9-1995 of Police Station City, D.I. Khan.
3. Accused Athar Ali Shah alias Anwar Ali Shah was arrested on 28-10-1995 while accused Azhar Ali Shah alias Ajji Shah was arrested on 10-10-1995. After completion of the investigation, challan was submitted to the Court. The accused were summoned and charged for the abovementioned offences to which they did not plead guilty and claimed trial. The trial commenced. The prosecution examined almost 16 P.Ws. And closed its case. The accused were examined under section 342, Cr.P.C. On 6-12-1997. They pleaded innocence but produced no defence. They also refused to be examined on oath under section 340(2), Cr.P.C. Consequently, after going through the evidence thoroughly and hearing the prosecution and the defence, the trial Judge, vide his judgment, dated 4-4-1998, convicted and sentenced accused Anwar Ali Shah alias Athar Ali Shah, under section 302, P.P.C., to undergo life imprisonment and a fine of Rs,50,000, or in default thereof to suffer two years' R.I. It was ordered that the fine, if recovered, half of it be paid to the legal heirs of deceased under section 344-A, Cr.P.C. He was further convicted under section 449, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000 or in default to suffer six months' R.I. He was also convicted and sentenced under section 452, P.P.C. To five years' R.I. With a fine of Rs,5,000 or in default to suffer further six months' R.I. He is also convicted under sections 337-A and 337-A(iii), P.P.C. And sentenced to "Arsh" (5% of Diyat) and "Arsh" (10% of Diyat), respectively, with five years' R.I.
Under each head. It was ordered that the sentences are to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the accused/appellant. The other co-accused Azhar Ali Shah alias Ajji Shah was acquitted from the charge levelled against him.
4. Aggrieved from the said conviction and sentence, accused Anwar Ali Shah alias Athar Ali Shah- has preferred the instant appeal on the grounds that the trial Judge has failed to take notice of the very intrigues in which the F.I.R. Was lodged. The time, the place and even the author of the F.I.R. Are in doubt, that the investigations are dishonest, the evidence has not been scanned with critical approach and that the statements of P.Ws. Are contradictory and not confidence-inspiring. The case of the prosecution is hollow and is based upon a tailored story.
5. We have heard the learned counsel for the appellant, respondent and the State and have scrutinized the record with their assistance.
6. As far as the F.I.R. Is concerned, it is a promptly lodged F.I.R. By injured complainant Muhammad Rafee. The prosecution story is duly supported by the medical evidence and recoveries apart from blood-stained earth. One empty of .12 bore, one wad, one live cartridge of .12 bore, one bulb, and one ladder as well as six pellets from the wall and 20" black and white T.V. And V.C.R. Have been taken into possession by the Investigating Officer from the spot. Similarly, the site plan also supports the prosecution version. Coming to the ocular evidence, there are six eye-witnesses in the present case. P.W.7 Muhammad Rafee is the complainant and injured witness. P.W.8 is Mst. Meraj Bibi, the mother of the complainant and deceased Qamar-uz-Zaman, P.W.9 Mst. Shamshad Bibi is the sister of the complainant Muhammad Rafee and deceased Qamar-uz-Zaman, P.W.10 Mst.
Zahida Bibi is also sister of complainant and the deceased. P.W.11 Mst. Salma Bibi is the sister of complainant and deceased and P.W.12 Muhammad Ibram is brother of the complainant and deceased. All the P.Ws. Have stated the same story in an unequivocal term. They are natural witnesses being inmates of the house and had got no enmity or rancour with the accused and even they have got no enmity with the other people of the locality. The accused being residents of the same Mohallah were known to them right from their childhood. Thus, no question of false implication or substitution can arise. The defence desperately tried to extract some thing from the mouth of these P.Ws. In favour of the accused but could not succeed as is clear from the cross- examination of these P.Ws. Similarly, in a desperate attempt, the defence termed the investigation as dishonest but failed to express anything with regard to dishonesty from the mouth of Investigating Officer Nasrullah Khan, retired Inspector, P.W.16. The objection of the learned counsel for the appellant/convict with regard to the place, time and author of the F.I.R. Holds no ground in the presence of strong ocular evidence. Moreover, minor contradictions, if any, cannot mar the prosecution versions. On the other hand, the accused, in a desperate attempt, firstly, disowned Mst.
Rubina Khatoon to be their sister but sufficient record in this behalf in the form of Nikahnama and other documents negates the defence version and in the second attempt,. They concealed her sister (Mst. Rubina Khatoon) and did not allow her to appear in Court as P.W. And in this behalf hectic efforts were made by the trial Court but her whereabouts were not known which too goes against the accused/appellant. The motive in the instant case is established beyond any doubt.
The accused belong to Sayyid family and in this way pose themselves to be a prestigious class.
Mst. Rubina Khatoon their sister, married deceased Qamar-uz-Zaman against the wishes of her father and brothers. So, the accused were waiting for suitable chance for revenge. Deceased Qamar-uz-Zaman and Mst. Rubina Khatoon were reported to be living at Multan and they had arrived in D.I. Khan just a day before the occurrence.
8. So, in order to view the instant case in the light of ocular evidence duly supported by medical evidence and recoveries, weapon of offence has been correctly identified, an empty of .12 bore, live cartridge of .12 bore as well as pellets were recovered from the wall of the room, the strong, motive and disappearance of the accused for sufficient time after the occurrence, all these factors prove the prosecution case beyond any reasonable doubt.
9. The trial Court has not applied his mind in appraising the evidence with regard to accused Azhar Ali Shah alias Ajji Shah who took active part in the commission of offence with his brother Anwar Ali Shah alias Athar Ali Shah. He fired at the complainant Muhammad Rafee with his pistol from the line of firing 6 pellets have been recovered from the wall. He has also belaboured Mst. Zahida Bibi, Muhammad Imran as well as Mst. Rubina Khatoon, with the Butts of his pistol and got them injured.
His presence and taking par/ in the commission of offence is duly established from the record. So, the reasons given by the trial Court for his acquittal are flimsy and based on no cogent evidence.
10. With the above observations, Criminal Appeal No,11 of 1998 filed by the convict/appellant, namely, Anwar Ali Shah alias Athar Ali Shah, is dismissed, his conviction and sentence maintained but because in view of amendment in section 302, P.P.C., the amount of Rs,50,000 ordered as fine by the trial Court, is converted into compensation under section 544-A, Cr.P.C. And in default of payment of such compensation, to suffer 2 years' R.I.
In view of our findings recorded in para. No,9 of this judgment and in view of the fact that we have dismissed the appeal of the appellant Anwar Ali Shah alias Athar Ali Shah, we allow Criminal Appeal No,9 of 1998, filed by the complainant Muhammad Rafee against the acquittal of co- accused Azhar Ali Shah alias Ajji Shah, as accepted and he is also convicted under section 302, P.P.C. And sentenced to life imprisonment plus compensation of Rs,50,000, in default thereof to suffer two years' R.I. Half of the amount of compensation, if recovered, shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. He is further convicted and sentenced under section 449, P.P.C. To undergo 5 years' R.I. With a fine' of Rs,5,000 or in default to 6 months' R.I. He is further convicted under section 452, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000 or in default to suffer five months' R.I. The said co-accused Azhar Ali Shah alias Ajji Shah is also convicted and sentenced under sections 337-A(ii) and 337-A(iii), P.P.C. To "Arsh" (5% of Diyat) and "Arsh" (10% of Diyat), respectively with five years' R.I. Under each head. The sentences are to run concurrently and benefit of section 382-B, Cr.P.C. Is also extended to him.
11. As regards Criminal Revision No,2 of 1998 filed by the complainant Muhammad Rafee for enhancement of the sentence awarded to convict/appellant Anwar Ali Shah alias Athar Ali Shah, we do not want to interfere with the same, as the reasons given by the trial Court for not giving capital punishment, are cogent. Therefore, the criminal revision, stands dismissed.