' This Judgment will dispose of Criminal Appeal No, 428 of 2000 filed by Aziz-ur-Rehman and Noor Muhammad, appellants who were convicted under sections 302/34, P.P.C. And sentenced to imprisonment for life and to pay Rs,50,000 each as compensation in default S.I. For six months each by the learned Sessions Judge, Khushab vide judgment dated 31-1-2000.
2. Occurrence in this case had taken place at 11 a.m. On 29-6-1999 at a distance of 5 kilometers from Police Station Nowshera District Khushab while the matter was reported by Allah Yar, complainant at 12-05 p.m. On the same day and the formal F.I.R. Exh.P.H was recorded by Jehan Khan S.I./S.H.O.
3. Briefly stated the facts of the case are that the complainant Allah Yar Khan is resident of Mardwal. Faqir Muhammad Khan his brother is residing in Dhok Bani Dakhli Mardwal. On 29-6-1999, he (complainant) came to house of Faqeer Muhammad Khan. At about 11 a.m., Faqeer Muhammad Khan was making fire-woods in front of his house when Aziz-ur-Rehman armed with revolver, Noor Muhammad armed with hatchet came there. Aziz-urRehman raised, Lalkara that he will be teaching a lesson to Faqeer Muhammad Khan for issuance of adverse taveez. Thereafter, he opened fire with his revolver which hit Faqir Muhammad Khan at chin on left side. Noor Muhammad inflicted hatchet blow which hit Faqeer Muhammad at his head. After sustaining hatchet blow, Faqeer Muhammad fell down on the ground. Then Noor Muhammad inflicted further hatchet blows which hit Faqeer Muhammad Khan at neck, head and back of chest. Thereafter, accused persons fled away. Faqir Muhammad Khan died at the spot.
4. After registration of the formal F.I.R, Jehan Khan S.I./S.H.0 (P.W.11) went to the place of occurrence where the dead body of Faqeer Muhammad was lying, prepared inquest report Exh.P.F, injury statement. Exh.P.G, took into possession blood-stained earth vide memo. Exh.P.J, prepared the site plan without scale Exh.P.L, on 1-7-1999 Aziz-ur-Rehman was arrested along with .32 bore pistol P. 4 which was secured vide memo. Exh.P.B, he being injured was also got medically examined, Noor Muhammad was arrested on 5-7-1999, he while in custody led to the recovery of hatchet which was secured vide memo. Exh.P.0 and after completion of the remaining formal investigation, both the accused were challaned to face the trial.
5. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that it was an un witnessed occurrence, both the eye- witnesses were not the residents of the place of occurrence, in fact they are chance witnesses, complainant is real brother of the deceased, the injuries allegedly caused by Aziz-ur-Rehman were not contributory to cause the death of the deceased Faqeer Muhammad Khan, Dr. Muhammad Saleem who conducted the post-mortem examination on the dead body of the deceased was under undue influence of Dr. Sarwar who was related to the complainant party from the mother side, F.I.R. Was got recorded after the deliberation and consultation, names of the accused persons were neither mentioned in the injury statement nor in the site plan prepared without scale, injuries on the person of Azizur-Rehman accused were never put to him in his statement under section 342, Cr.P.C. And that the recoveries have been disbelieved by the learned trial Court itself. Concluding his submissions, learned counsel for the appellants submits that the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt.
6. Learned counsel for the complainant submits that the appellants were named in the promptly lodged F.I.R. With specific roles, it was a broads day-light occurrence, the parties were known to each other so there was no question of mistaken identity of the accused, ocular account is fully corroborated by the medical evidence and that the prosecution has. Been successful is proving its case against the appellants. He in nutshell supports the judgment of learned trial Court.
7. I have heard learned counsel for the parties at length and gone through the record with their able assistance. Occurrence in the instant case had taken place at 11-a.m. On 29-6-1999 in broad- day-light. The matter was reported -to the Police in the Police Station at 12-5 p.m. On the same day although distance between place of occurrence and the Police Station is 5 kilometers. In the F.I.R., the names of the accused, the weapons they were carrying and the roles they played were fully described, so it was a case of promptly lodged F.I.R.
8. Allah Yar Khan, complainant (P.W.8) is real brother of the deceased. It is correct that he was not resident of place of occurrence but he had stated before the trial Court that he had gone to the house of his brother (deceased) in order to see his mother. Mansab Khan (P.W.9) is not related to the complainant party in any way and was not inimical towards the appellants having no reasons to state against them. Dr. Saleem Awan (P.W.7) who conducted post-mortem examination on the dead body of the deceased has nothing to do with Dr. Sarwar as he was not under his influence. He has mentioned injuries on the body of the deceased having been caused with fire-arm, blunt and sharp-edged weapon. These injuries were also stated to have been caused by the accused on the person of the deceased before the Police and also before the learned trial Court by the complainant and Mansab Khan, P.W. Had Dr. Saleem been on the side of the complainant, he would not have mentioned the injuries on the person of Aziz-ur- Rehman, accused-appellant. No doubt the injuries caused by Noor Muhammad proved to be fatal but though the injury caused by Aziz-ur-Rehman appellant did not prove fatal but it was on vital part of body of the deceased, i,e, jaw.The injuries on the person of Aziz-ur-Rehman, ,appellant are of trivial nature and can be caused by friendly hand or even can be self suffered.
' Unfortunately, no question was ever asked by any of the P.W. That Aziz-ur-Rehman was also given injuries by the deceased and even no question was put to Investigating Officer that Aziz-ur- Rehman appellant received injuries in the occurrence. Aziz-ur-Rehman has also not taken any plea during the trial or in his statement under section 342, Cr.P.C. It may be mentioned that in the inquest report which was prepared after registration of the F.I.R. Case number is given in the column of "brief facts"
9. The version put , by the appellant during the trial while cross-examining the witnesses was that wife of Noor Muhammad who was sister of Aziz-ur-Rehman used to go to the deceased and the deceased who was a Peer misbehaved with her This defence version was neithe1 put by the appellant in their statements under section 342, Cr. P.C. Nor the wife of Noor Muhammad, appellant was produced either before Police or before the trial Court. It is settled law that when a specific plea is, taken by an accused and he wants to bring his case in one of the exceptions of section 300 P.P.C. As it then was or under section 302(c) P.P.C., then onus lies on such accused to prove his plea as required by Article 121 of the Qannun-eShahadat Order, 1984 which reads as under:- "121. Burden of proving that case of accused comes within exceptions. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Panal Code (Act XLV of 1860), or within any special exception of proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
10. Mere disbelieving the recoveries by the learned trial Court from the appellants does not advance the case of appellants any further because recoveries are corroborative piece of evidence and if otherwise the case is fully proved through ocular account and the ' medical evidence, the recoveries loses its .Significance.
11. After taking into consideration the overall facts and circumstances of the case, the evidence produced by the prosecution and the defence taken up by the appellants during cross- examination, I am of the considered view that the prosecution has been successful in proving its case against the appellants to its hilt and despite lengthy cross-examination on the P.Ws., the defence remained unable to shake the testimony. Resultantly; appeal filed by the appellants is dismissed. Conviction and sentence recorded against the appellants by the learned trial Court is maintained in toto.