' MIAN BURHANUDDIN KHAN, J.--Niaz Muhammad son of Ahmad, resident of Cheli Payan, Police Station Mathra, stood his trial in the Court of Session under sections 302/307 read with section 34 of the Pakistan Penal Code for causing the murder of Rehmat Khan, his co-villager and attempting on the LIFE of Shakar Khan, P. W. 3, by firing at them in furtherance of his common intention with the absconding accused, Muhammad Zaman, on the 8th of November 1973, at 10-00 a.m. In village Cheli Payan. He was convicted and sentenced under both the charges, i,e,, under section 302/34, P.
C., to life imprisonment and a fine of Rs, 2,000 in default, further two years R. I. And under section 307/34,, P.- P. C. To five years R. I. And a fine of Rs, 1,000 in default, one year further R. I. The fine, if realized, was ordered to be paid to the heirs Of the deceased and the complainant, as compensation under section 544-A, Cr. P. C., vide order dated 27-1-1976, by the learned Additional Sessions Judge, Peshawar.
2. The convict has come up on appeal against the order of his. Conviction and sentences and there is also a revision-petition for the enhancement of his sentence of imprisonment for life to that of death under section 302/34, P. P. C., filed by Shakar Khan, P. W. Which was admitted to full hearing on 29th of April 1976. On the question whether the appellant was immature on account of his tender age, but it was found that in the police Zimnis age was mentioned on thirty-one years. This judgment will dispose of both the appeal and the revision.
3. The facts, according to the prosecution case as stated in the first information report by Shakar Khan, P. W. 3, are that at about morning time he alongwith Rehmat Khan son of Daulat Khan, his cousin, (the deceased) was carrying manure, lying in a heap, in a cart to their field and had taken one load and were about to load the cart for the second time, when in the meantime Niaz Muhammad, appellant son of Ahmad Khan and Muhammad Zaman son of Noor Ahmad (the absconding-accused), resident of Cheli, came armed with fire-arms and both started firing at them and he and the deceased got injured with these shots ; that on the spot Khalilur Rahman son of Lakhar (P. W. 4) and Sher Azam son of Raza Khan (P. W. 5) and Mina son of Ghulam (dead) witnessed the occurrence; that on the way to the hospital Rehmat Khan succumbed to his injuries.
Motive furnished in this report is that blood feud existed between the parties.
4. This report was recorded in the Casualty Department of the -Lady Reading Hospital, Peshawar at 11 a.m. In the form of a inurasila Exh. P-A/I, which was sent to Police Station Mathra where a case was registered vide F. I. R., Exh. P. A. At 1 p.m.
5. Dr. Hussain All Shah, P. W. 1, performed the autopsy on the dead body of Rehmat Khan son of Daulat Khan (28/29) on 8-11-1973 at 1-30 p.m. And found the following injuries on external examination :-
(1) Fire armentrance wound is x in the left flank in 10th inter- costal space, 7" blow the arm pit and 3I" above the iliac crest. Slight charring was present.
(2) Exit wound If X r right chest 2" below and slightly outside the right nipple.
On internal examination the doctor found walls of the thorax about the entrance and exit 5th and 6th ribs on right side fractured about the exit. Pleaurae on the right side was injured, cavity was full of blood and right lung was injured, blood vessels on right side were injured, walls of the abdomen and peritoneum were injured, diaphragm on right side above the liver was injured, stomach was injured through and through and contained semi-liquid food material, liver was injured through and through and so was the spleen. P. W. 2, Dr. Ali Gauhar Khan stated that he knew Dr. Muhammad Haleem, who was his colleague in the year 1973, and who has now gone abroad. He proved the medicolegal report, Exh. P. A/1, according to which Shakar Khan son of Akram Khan was examined by Dr. Muhammad Haleem on 8-11-1973, at 11 a.m. Who had the following injuries on his person
(1) One wound of entrance on side of the left elbow joint, l'X 1" with charring around.
(2) One exit wound with ragged out margins, ex 2', on the inner side of the left elbow joint, communicating with injury No, 1.
(3) Four entrance wounds on the left side of the back of the chest at the level of the 7th, 8th and 9th intercostal spaces, cavity deep.
(4) Two lacerated wounds, oblique in direction, on the back of the left side of the chest, adjacent to the previous injury. Nature of injuries 1 and 2 was grievous, while that of injuries 3 or 4 simple.
6. The ocular evidence in the case is furnished by Shakar Khan, P. W. 3 and Khalilur Rahman, P. W. 4 and Sher Azam, P. W.
5. According to the statement of Shakar Khan, P. W. 3, he alongwith the deceased was loading manure on the buffalo-cart when the appellant and the absconding-accused appeared, the appellant was armed with a rifle while the absconder was carrying a shot-gun ; that Niaz Muhammad, appellant, fired at Rehmat Khan, deseased, from a distance of about three paces, with which he was hit and ran for some distance and then fell down ; that Muhammad Zaman, absconder, fired at him when he jumped from his raira and was hit on the left arm and ribs and fell down injured and thereafter the appellant and the absconding accused ran away from the spot ; that Khalilur Rehman, P. W. 4, and Sher Azam, P. W. 5, raised bus and cry and many people collected on the spot ; that they were placed on separate 'cots' and carried to the hospital in a Bus ; that Rehmat Khan deceased died on the way to the hospital whereas he made a report, Exh. P. A/1, in the Casualty Department, L. R. H., Peshawar, which was read over to him and admitting the same to be correct, thumb impressed it. He further admitted that he had given the motive that father of Riaz Muhammad, appellant, was murdered three years prior to this occurrence, for which Rehmat Khan, deceased, and Sher Azam, P. W. Were charged ; that a compromise was effected later on in that murder case through the intervention of the elders of the village and both the parties had taken oath on the Holy Qur'an and thereafter both the parties moved about freely without apprehension or fear of retaliation : that the murder case of Niaz Muhammad's father was pending and the deceased was on bail.
' Khalilur Rahman, P. W. 4, and Sher Azam, P. W. 5, gave similar statements, stating that they were proceeding to Peshawar City for making purchases and when they reached near the hujra of Daulat Khan, father of Rehmat Khan deceased, located close to the scene of occurrence, they witnessed the occurrence.
' Gul Mast, F. C., P. W. 6, stated that he was entrusted with warrant of arrest against Niaz Muhammad, appellant, under section 204, Cr. P. C. And proclamation under section 87, Cr. P. C. And that he searched for him in his village and the surroundings villages but he was not available that a copy of proclamation was affixed outside the house of the appellant.
' Khaista Gui, P. W. 9, joined the investigation and in his presence the Investigating Officer recovered a card board, Exh. P. 1 and also took blood-stained earth from the place where the deceased Rehmat Khan had fallen wounded, vide memo, Exh. P. C.
' Fiaz Rasool, A. S. I., P. W. 10, stated that he was posted at the Casualty Department, Lady Reading Hospital, Peshawar and that on 8-11-1973, at 11 a.m. He recorded the report of Shakar Khan, P. W. 3 and read it over to him, who admitted it correct and thumb impressed the same ; that he sent the murasila, Exh. P. A/1 for the registration of the case to Police Station Mathra, that he prepared the injury sheet, Exh. P. C. And inquest-report, Exh. P. C/1, of the deceased and injury sheet, Exh. P. E. Of Shakar Khan, P. W.
3.
' Shamsul Qamar, S. I., P. W. 11, registered the case vide F. I. R., Exh. P. A. And proceeded to the spot where he prepared the site plan, Exh. P. B. Correctly with all the foot-notes. He indicated the heap of manure by 'A, B, C and D' in the site plan, lying in an area of 10 x 10 feet wherefrom manure was being removed in a buffaloe cart by the deceased and Shakar Khan, P. W.
3. He found the cart at point 'E', containing some manure, while some had fallen on the ground. He gave the other points which will be referred to later on while discussing the other evidence.
7. The appellant pleaded not guilty when he was examined under section 342, Cr. P. C. He, however, admitted that the Rehmat Khan, deceased, was charged for the murder of his father but he had compromised with the deceased party though his uncle, Muhammad Zaman, absconder, was not present in the compromise. Regarding his absence he stated that he was away from his village till the date of arrest, viz., 6-7-1974, out of fear. He, however, produced no defence.
8. The learned counsel for the appellant argued that the medical evidence is in conflict with the ocular evidence ; that the injuries sustained by Shakar Khan P. W. 3, could be with two separate shots ; that Shakar Khan, P. W. 3, has only charged Muhammad Zaman, absconder, for firing at him only one shot ; and that all the eye-witnesses are interested and inimical towards the appellant.
9. We may mention here that the learned trial Court has discarded the evidence of Khalilur Rehman and Sher Azam, P. Ws. 4 and 5, for the reason that they were inimical and were directly involved in blood feud with the accused's party and that their presence on the spot was highly doubtful, they being chance witnesses. The learned trial Judge based the conviction on the statement of Shakar Khan, P. W. Considering his statement A supported by the injuries he had sustained and the medical evidence which corroborates his testimony regarding his own injuries and that of the deceased. In the medical evidence we find that the deceased had been hit with a single shot of the diamension off" x f" with slight charring present, and an exit of 1 x f, which could be caused by a bullet, and the doctor has also stated so. This injury is attributed to the appellant in the evidence. As regards the injuries of Shakar Khan, P. W. Injury No, 1 is of a larger diamension of l' x 1" with charring around, on the left elbow joint with an exit of 4" x 2" and other entrance wounds on the left side of the back of the chest at the level of the 7th, 8th and 9th intercostal spaces, cavity deep, and two more lacerated wounds, oblique in direction, on the back of the left side of the chest, adjacent to injury No,
3. This finds ample support from the statement of Shakar Khan, P. W. Who stated that he jumped from the raira the moment he was fired at by Muhammad Zaman, absconder, with an S. R. Shot-gun. And according to Fifth Edition of Medical Jurisprudence and Taxicology by Modi also at a distance of six feet the central aperture is surrounded by separate openings, in an area of about two inches in diameter made by a few pelletts of the shot which spread out before reaching the mark and the skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. We find that the injuries on the person of Shakar Khan, P.
W. Could be possible with a single shot, fired by Muhammad Zaman, absconder, with a shot-gun from a close quarter. In the light of these observations we consider that the statement of Shakar Khan, P. W. Cannot be discarded for any reason and the presence of injuries of serious nature on his person establishes his presence at the time of the occurrence, moreso when the deceased and the injured witness were carried together to the hospital without any loss of time and within an hour the report was made by the latter, charging the appellant and the absconding accused for the commission of the offences. We, therefore, think that the learned trial Court has rightly relied upon his statement.
10. As regards Khalilur Rehman and Sher Azam, P. Ws. We also agree with the learned trial Court that their presence on the spot is doubtful and evidence worthy of no credence, which has been rightly conceded by the learned Assistant Advocate-General, appearing for the State. The appellant has also admitted his absence from the village till his arrest on 7-7-1974, which, in the circumstances of the present case, corroborates the testimony of Shakar Khan, P. W.
11. As regards the sentence, the learned counsel for the appellant has not been able to point out on the record any evidence to show that the appellant was of tender age, and immature. On the other hand, the appellant was mainly motivated for the commission of the offence as his father was allegedly murdered for which Rehmat Khan deceased and others were charged.
12. In support of revision-petition the learned counsel for the petitioner has urged that the age of the appellant cannot be termed "tender age" and there is no evidence to that effect not the defence has been able to place before us any unimpeachable evidence in this respect. The learned counsel for the petitioner further referred to the judgment of the learned Additional Sessions Judge wherein he had awarded the lesser penalty in the following words :- "The sentence of death is the ordinary penalty for the offence of murder, but in the instant case the record reveals that Muhammad Zaman, absconder, had not effected a compromise with Rehmat Khan, deceased, in the murder case of Ahmad, though Niaz Muhammad accused had done so and both the parties had no fear from each other and they had decided to live peacefully. Therefore, th possibility is that Niaz Muhammad accused was influenced by his uncle, the co-accused. He played in his hands and has committed the offence. Also keeping in view the previous enmity between the parties, I am of the view that the lesser sentence is called for As already stated that there is nothing on the record to suggest that th appellant was of tender age or immature of understanding at the time of the occurrence so as to be influenced by his uncle Muhammad Zaman, absconder. And it would be rather putting a premium on the question of retaliation and vengeance if we consider the btood feuds between the partie as a mitigating circumstance for awarding the lesser penalty.
13. The upshot of the above discussion is that we dimiss the appeal filed by the appellant and while 'accepting the revision petition we enhan his sentence of imprisonment for life under section 302/34, P. P. C. To that of death. Rest of the sentences passed on him by the learned trial are maintained. We further direct that the appellant shall be hanged by his neck till he is dead.