' IJAZ-UL-HASSAN. J.--- Shaukat Rehman alias Jarnail appellant and his brother Fida Rehman (acquitted co-accused) were tried jointly by learned Additional Sessions Judge/Judge, Special Court, Hangu on the allegation of having on 9-7-1994 at about 10-15 hours near Bridge Darasmand, District Hangu, alongwith their absconding co-accused namely Karnail Khan, Sharif Khan and Riaz Khan duly armed formed an unlawful assembly and in prosecution of their common object used force by firing resulting in the murder of Noor Rehman and attempted murder of complainant Rahim Noor father of Noor Rehman deceased. At the conclusion of trial, by means of judgment, dated 6-12-2000 the appellant was convicted under section 302, P.P.C. And awarded death sentence. He was also directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default of payment he was to undergo six months' S.-I. He was, however, acquitted from the remaining offences under sections 324/148/149, P.P.C. Fida Rehman co-accused was also extended benefit of doubt and acquitted of the charges.
2. The appellant has filed Criminal Appeal No,493 of 2000 challenging his conviction and sentence.
The-learned Additional Sessions Judge has made a Murder Reference No,39 of 2000 to this Court under section 314, Cr.P.C. State through Advdcate-General has also filed Criminal Appeal No,18 of 2001 under section 417, Cr.P.C. Against the acquittal of Fida Rehman co-accused. All these matters shall be disposed of through this judgment.
3. The crime in question having taken place on the date, time and the venue of occurrence mentioned above, the report (Exh.P.A.) about it was lodged the same day at 10-45 hours by complainant. Rahim Noor P.W. Father of the deceased and it was recorded by A.S.-I. Said Muhammad (P.W.8).
4. The prosecution story as reflected in the F.I.R. Is, that on the day of occurrence, the complainant accompanied by his son Noor Rehman deceased had gone to Hangu for making purchases and on return in flying coach No,MRB-4742 when they reached near turn Darasmand, they were intercepted by Shaukat Rehman, Karnail Khan, Fida Rehman, Sharif Khan and Riaz sons of Mirza Khan, sitting in pick-up No,DR-9338. The moment, the door of the Flying Coach was opened, the accused persons resorted to indiscriminate firing as a result of which Noor Rehman got hit and lost his life. The complainant escaped unhurt. The existence of enmity between the two families was stated to be a motive leading to the turmoil. The complainant and other passengers of the flying coach were shown to have witnessed the occurrence.
5. After registration of the case vide F.I.R. (Exh.P.A.) A.S.-I. Said Muhammad (P.W.8) prepared injury sheet and inquest report of the deceased (Exh.P.W.8/3 and Exh.P.W.8/4) respectively. He then proceeded to the spot and prepared site plan (Exh.P.W.8/5) at the pointation of the complainant.
He recovered and took into possession flying coach No, MRB-4742 having marks of bullets on it.
Some pieces of broken glasses alongwith key and registration book were also taken into possession vide recovery memo. (Exh.P.C./2) in presence of marginal witnesses. During the spot inspection three empties of .30 bore giving smell of fresh discharge (Exh.P.1) and one spent bullet (Exh.P.2) were also secured into possession vide memo. (Exh.P.C./3) in the presence of marginal witnesses. Some blood was also picked up from the spot and taken into possession and sent to Chemical Examiner for report. The last-worn clothes of the deceased brought from the hospital were also taken into possession. Immediately after the incident, the official of Police Station Darsamand brought Shaukat Rehman accused alongwith Pick-up No,DR-9338 to the police station.
Accused was arrested and the pick-up was taken into possession vide recovery memo. Exh.P.C./1.
As the accused was in injured condition a case was registered under section 337, P.P.C. Vide F.I.R.
No,236, dated 9-7-1994 which was subsequently cancelled.
6. Dr. Mubarik Khan (P.W.9) on 9-7-1994 at 11-45 hours conducted the post-mortem examination of the deceased and noted the following on external examination:--
(1) Fire-arm injury entry wound on the left side of the neck at the lower 1/3rd size 1/3" x 1/3" direction up downward.
(2) Fire-arm injury exit wound on the right clavicula fossa size 1-1/2" x 1-1/2".
(3) Fire-arm entry wound on the left temporal region of the head size 1/3" x 1/4".
(4) Fire-arm exit wound on the posterior side of head 1" x 1" direction oblique upwards.
' On internal examination, cranium, spinal card, scalp, skull, membranes, brain, pleurae and left common carote artery were found injured. The death was opined to have been caused due to fire- arm injury to vital organ i,e, brain and acute haemorrhage, shock due to injury to the common caroted artery. Probable time between injury and death was found 30/40 minutes.
7. The prosecution in order to prove its case produced twelve witnesses in all including the complainant, Investigating Officer, doctor and other relevant persons.
8. Keeping into consideration the material available before him the learned, trial Judge convicted and sentenced the accused-appellant holding:-- "All the prosecution witnesses were put to lengthy cross-examination but nothing was brought from their mouths favourable to the accused. Though there some omissions but the same are excused as on one hand such omissions usually do Occur in the evidence of the witnesses examined after a period of about six years and on the other hand, they are so minor that they are excluded from consideration. It is true that at some stage of the cross-examination, one or two witnesses have given some concessions by admitting certain suggestions of the defence but if they are tallied with the other prosecution evidence, then it becomes crystal clear that these concessions were wilful just to favour the accused."
9. The appellant and the acquitted co-accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegation, and claimed to have been falsely charged on account of enmity between the two groups. They led no evidence in defence.
10. Khawaja Muhammad Khan Gara, Advocate for the appellant, in support of the appeal, attempted to argue that the ocular testimony of the complainant belied by host of Circumstances was not sufficient enough to prove guilt of the appellant and the learned trial Judge had no valid reason to place implicit reliance on it in absence of independent corroboration. The learned counsel contended that though the passengers of the flying couch are stated to have witnessed the occurrence but neither the driver nor any passenger of the flying coach has been examined which has made dent in the prosecution case. The learned counsel also submitted that abscondence, if any, attributed to the appellant is meaningless and cannot cure the defect of the prosecution case. Additionally he urged that the acquittal of co-accused Fida Raman by the trial Court to whom similar role has been attributed is sufficient to shatter the prosecution story and set aside the impugned judgment.
11. Mr. Akhtar Naveed, Deputy Advocate-General assisted by Mr. Assadullah Chamkani, learned counsel for the complainant, on the other hand, maintained that prosecution has brought sufficient evidence on record to connect the appellant and acquitted co-accused with the commission of crime and as such the impugned judgment relating to the appellant is unexceptional and warrants no interference.
12. Learned counsel for the appellant feeling himself not in a position to meet the arguments addressed on behalf of the State, stated that he does not press this criminal appeal and the appellant would be satisfied, if some lenient view is taken and the sentence is reduced to the sentence already undergone.
13. We have heard at length the arguments of learned counsel for the parties in the light of the material on file and we find that the submission of learned counsel for the appellant regarding reduction in sentence is forceful and carries weight.
14. There is no denial of the fact that five brothers are charged in this case and all of them have been assigned the role of firing culminating into the murder of Noor Rehman deceased. It is true that the appellant is one of the accused persons directly nominated in the promptly lodged report for having participated in the firing but the fact cannot be lost sight of that during the post- mortem examination two entry wounds have been found on the corpse of the deceased. It is not ascertainable as to whose fire shot proved fatal. Keeping this mitigating circumstance into consideration, we are not inclined to confirm the sentence of death awarded to the appellant and are of the view that the sentence of imprisonment for life shall sufficiently meet the ends of. Justice.
We, accordingly, while maintaining the conviction of the appellant under section 302, P.P.C. Reduce his sentence from death to the imprisonment for life. The other sentences shall remain intact.
Benefit of section 382-B, Cr.P.C. Shall also be extended to the appellant.
15. With the above modification in the sentence we dismiss the appeal and answer the Murder Reference. The death sentence is not confirmed.
16. Adverting to the connected Criminal Appeal No,18 of 2001 filed against the acquittal of Fida Rehman respondent, we feel that sufficient material was available on the file to implicate the respondent with the guilt which has been ignored by the learned trial Judge without assigning any reason, which has resulted in grave miscarriage of justice. It is pertinent to mention here that the respondent has been assigned similar role of firing qua the appellant and the absconding co- accused which culminated in the murder of Noor Rehman deceased but the prosecution evidence regarding appellant has been believed while the same set of evidence has been disbelieved against the respondent. Having gone through the entire material on record we find ourselves in agreement with learned Deputy Advocate-General that the trial Court did not appreciate the evidence of the prosecution in its true perspective and had not given good reason to pass a finding of acquittal in favour of the respondent.
17. As the respondent despite all efforts to secure his attendance, did not surrender we, therefore, heard Khawaja Muhammad Khan Gara, Advocate appearing for his co-accused appellant Shaukat Rehman.
For the reasons stated by us while disposing appeal of Shaukat Rehman read with para. 16 in particular the appeal filed against acquittal by State through Advocate-General, N.-W.F.P. Is allowed, judgment, dated 6-12-2000 acquitting Fida Rehman respondent is set aside, he is convicted and sentenced under section 302/34, P.P.C. To life imprisonment and to pay Rs,1,00,000 (Rupees one lac) as compensation to the legal heirs of the deceased or in default to undergo six months' S.I.
' Perpetual warrants of arrest be issued against him which shall remain in force until respondent is arrested and after his arrest he shall undergo the sentence of imprisonment awarded as above.