MUHAMMAD QAIM JAN KHAN, J.---This is a criminal appeal by Noor Shah and Sher Shah sons of Mazloom Shah against their conviction and sentence passed by Additional Sessions Judge, Haripur vide his order dated 4-12-2000. The appellants are charged vide F.I.R. No. 159 dated 11-10-1997 under sections 302/336/324/34, P.P.C., Police Station Hattar, Tehsil and District Haripur for the murder of Zulfiqar Shah and attempting at the life of Mukhtar Shah P.W. The appellants have been convicted by Additional Sessions Judge, Haripur and appellant-accused Noor Shah sentenced to life imprisonment under section 302/34, P.P.C. And sentenced to 5 years' R.I. Under sections 336/34, P.P.C. And also to pay 1/4th of Diyat amount to Mukhtar Shah injured and under section 324, P.P.C.
He is sentenced to undergo 7 years' R.I. And to pay a fine of Rs.10,000 or in default to undergo further 6 months' S.I. Vide the same judgment appellant Sher Shah has been convicted under sections 336/34, P.P.C. And sentenced to 5 years' R.I. And also to pay 1/4th of Diyat amount to injured Mukhtar Shah. Also sentenced under section 324, P.P.C. To 7 years' R.I. And to pay a fine of Rs.10,000 or in default to undergo further 6 months' S.I. Both the appellants were directed to pay the Diyat amount as per probable value at the time of delivering the order but shall be paid before release after the sentences are over or earlier. It is further ordered that all the sentences shall run concurrently. However, the benefit of section 382-B, Cr.P.C. Was extended to the appellants. The 3rd accused Daud Shah was acquitted by the same judgment.
2. Facts of the case are that on 11-10-1997 at 16-15 hours Tasadaq Shah reported to Zahid Anwar Khan, S.H.O. Police Station, Hattar at the spot that today, i.e., on 11-10-1997 at about 15-15 hours he was in his house when he heard some commotion near his house, so he rushed outside from his house and came to the street where he saw that his son Zulfiqar Shah and Mukhtar Shah and the accused Daud Shah, Noor Shah, Sher Shah sons of Mazloom Shah are quarrelling. Noor Shah had a single-barrel shot gun in his hand while Sher Shah had got a pistol. Daud Shah was empty-handed and in the presence of the complainant Noor Shah fired at Zulfiqar Shah with which he was hit, fell down and died on the spot. Sher Shah and Noor Shah also fired at his son Mukhtar Shah with which he was hit on his face and left shoulder and fell down. The occurrence has been witnessed apart from the complainant by one Dildar Shah son of Inayat Shah who was present there. Motive for the offence is that Sher Shah has climbed the roof of his house, upon which Mukhtar Shah rebuked him that the sanctity of their ladies in the house has been injured and he should not climbe over the roof, hence this occurrence. The accused were arrested on the same day by the Investigating Officer and after completion of the investigation challan was submitted in Court. The accused were brought before the Court and charged for Qatl-e-Amd' (murder) of Zulfiqar Shah and attempting at the life of Mukhtar Shah P. W. Effectively to which they pleaded not guilty and trial. Trial commenced. The prosecution examined almost 15 P.Ws. As well as one C. W. And closed its case.
On 23-2-2000 accused have been examined section 342, Cr.P.C. They pleaded innocence but produced no defence nor wished to be examined on oath.
3. A gist of the prosecution evidence is that P.W.1 Muhammad Zaman F.C. No.327 escorted the dead body to the mortuary for post-mortem examination and after the post--mortem examination he wag handed over the clothes, one phial, alongwith post-mortem report which he handed over to the Investigation Officer. P.W.2 Sher Bahdadur was present with the Investigating Officer at the spot who recorded the report of the complainant in the shape of Murasila which was handed over to him for registration of the case and he handed over the same in the police station on which the F.I.R. Was lodged. He is also the marginal witness to pointation memo. Exh.P.W.2/1 vide which the accused Noor Shah while in handcuffs led the police party to the place of occurrence and pointed out various places. P.W.3 Ali Khan was Maddad Muharrir in Police-Station Hattar in those days. On receipt of Murasila Exh.P.A/1 registered the case vide F.I.R. Exh.P.A. Which is in his hand and bears his signature correctly. P.W.4 Muhammad Sarfraz, A.S.-I. Is the marginal witness to recovery memo.
Exh.P.W.4/1 vide which the Investigating Officer took into his possession a shot gun bearing No.4885 alongwith 5 live cartridges of .12 bore from the house of Noor Shah accused. The memo. Correctly bears his signature. P.W.5 is the statement of Abdul Ghafoor Qureshi, Judicial Magistrate/Civil Judge-I, Haripur who on 14-10-1997 recorded the confessional statement of accused-appellant Noor Shah after complying with all the legal formalities. P.W.6 is the statement of Dr. Latif Shah, Eye Specialist, D.H.Q. Hospital, Abbottabad, who examined injured Mukhtar Shah and on examination it was found that his left eye was badly damaged because of gunshot injury and there was bleeding from the eye. According to this P.W. The patient was having foreign bodies many in number in the right eye as well and during operation foreign bodies were removed from his right eye successfully but the left eye of the patient was badly damaged because of gunshot injury and it was irreparable and could not be saved, so it has to be removed during operation of left eye. He was operated on 18-10-1997 and discharged on 23-10-1997. The nature of injury is grievous due to loss of eye. His report Exh. P. W.6/1 is correct and correctly bears his signature. P.W.7 Khalilur Rehman's, M.H.C. Is the marginal witness to the recovery memo. Exh.P.W.7/1 vide which Muhammad Zaman F.C. No.328 brought the clothes of deceased Zulfiqar Shah after post--mortem examination alongwith post-mortem report and a phial sent by the doctor. The memo. Correctly bears his signature. P.W.8 is the complainant Tasadaq Shah who narrated the same story as reflected from the F.I.R. On his pointation the Investigating Officer prepared the site plan and according to him his son Mukhtar Shah remained admitted in the hospital for his injuries and an amount of Rs.50,000 was spent on his treatment, P.W.9 is the statement of Mukhtar Shah the injured P.W. He also narrated the same story as told by the complainant and charged the accused for the present offence. P. W.10 is Tanveer Shah son of Dildar Shah who is marginal witness to the recovery memo.
Exh.P.W.10/1 vide which the Investigating Officer took into his possession blood-stained earth, one empty of .12 bore alongwith plastic dot and another plastic dot which were sealed in parcels separately and the memo. Correctly bears his signature. According to him, Dildar Shah the other marginal witness is dead. P.W.11 Qazi Gohar Imtiaz Inspector was posted in those days as S.H.O. In Police Station Hattar and after completion of the investigation he submitted complete challan against the accused in Court for trial. P.W.12 is the Dr. Muhammad Idris, A.D.H.O., D.H.Q. Hospital, Haripur who on 11-10-1997 conducted the post-mortem of deceased Zulfiqar Shah and found the following:-- External examination A young man of 35/36 years of age, he is of medium built, bearing white clothes, shirt socked in blood and has multiple small holes on left side of lower chest over lateral and posterior aspect.
Rigor mortis fully developed. No Hypostasis. Multiple small holes of 1/2 c.m. Diameter round in shape on the posterio lateral aspect of left side of chest over 5th-12th ribs, no burning or tatooing, the entrance wounds are scattered 6" x 4". No ligature mark on neck.
Internal examination Ribs of left side of chest from 5th to 12th ribs are fractured where the pellets had impact left haemothorax is full of blood amounting to 400-450 C.C. Of blood with multiple penetrations of rounded shape at its lower parts. Left lung has pellets in its lower lobe and is of bluish black colour over the lower half of lower lobe. Stomach and its contents intact, healthy and empty.
P.W.13 is Dr. Tariq Qureshi, Medical Officer, D.H.Q. Hospital, Haripur who on 11-10-1997 at 5-45 p.m.
Examined Mukhtar Hussain Shah and found the following:--
1. Multiple lire-arm entrance wounds on face including neck and left eye which is almost damaged.
P.W.14 is the statement of Muhammad Sarfraz, I.H.C. Who was working in those days in Police Station Hattar. According to him he worked with S.H.O., Zahid Anwar Khan of Police Station, Hattar being a subordinate and is well acquainted with his signatures. So he testified all the signatures of the Investigating Officer Zahid Anwar Khan who was not available in those days. Later on Zahid Anwar Khan also appeared before the Court and recorded his statement as P.W.15. According to him (Zahid Anwar Khan) on 11-10-1997 at 16-45 hours he recorded the report of the complainant in the shape of Murasila on the spot and despatched the same to the police station for registration of the case. All the proceedings were written by Sarfraz on his dictation and in his presence as his hand was injured. The injury sheet Exh.P.W.14/2 bears his signature correctly. The injury sheet of Zulfiqar Shah deceased Exh.P.W.14/3 also correctly bears his signature. He despatched the dead body for post-mortem examination under the escort of Muhammad Zaman F.C. Inquest report is'
Exh.P.W.14/4 which also bears his signature correctly. During spot inspection he took into his possession blood--stained earth, an empty of .12 bore Exh.P.5, dot plastic Exh.P.6 and sealed the same in separate parcels and prepared memos. Exh.P.W.10/1 which correctly bears his signature.
He also drafted site plan EXh.P.W.14/1 which is correct with all its foot notes and correctly bears his signature. Vide Exh.P.W.4/1 a .12 bore shot gun was recovered from the house of accused Noon Shah alongwith 5 cartridges of the same bore. The shot gun was giving fresh smell of discharge of gun powder. Vide Exh.P.W.7/1 the garments of the deceased were taken into possession brought by Muhammad Zaman F.C. Exh.P.W.15/1 is the receipt of dead body which bears his signature correctly.
Vide application Exh.P.W.14/4 .12 bore shot gun one empty alongwith dot and 5 live cartridges were sent to the Arms Expert whose report is Exh.P.W.14/9 and placed on record. Vide Exh.P.W.14/7 he sent the blood-stained earth and garments of the deceased to the Forensic Science Laboratory and the report is Exh. P. W.14/8 which is positive. Vide Exh.P.W.2/1 accused Noor Shah and Daud Shah pointed out the places of occurrence while in handcuffs and led the police party to the places. The memo.
Correctly bears his signature. He produced accused Noor Shah and Daud Shah vide his application Exh.P.W.5/D-1 before the Judicial Magistrate for their confessional statements and the confessional statement of Noor Shah is Exh. P. W.5/2. He recorded the statements of the P. Ws. And after completion of the investigation, challan was submitted in Court. According to him as he was injured on his hand and was unable to write therefore, all the memos. Are written on his dictation by Sarfraz I.H.C. And he has signed all the memos. It is to be noted that this Zahid Anwar Khan on 18-4-2000 was again examined as C.W.1. This is the gist of the prosecution evidence.
4. Learned counsel for the appellants strenuously argued that the recording of the report is doubtful; the recoveries are fake and nothing has been recovered from the house of the accused Noor Shah. He further stressed that the so-called confessional statement of accused-appellant Noor Shah has been retracted and that there is no motive in the instant case and the F.I.R. Has been lodged with sufficient delay. Further argued that there is great contradictions in the statements of P. Ws. And that the concerned Magistrate has not observed the legal formalities.
There is no previous blood-feud and no incriminating article has been found by the Investigating Officer Learned counsel further argued that there are no pellets marks on the house of the accused nor in front of the wall on the place of occurrence and that in the site plan the house of the complainant has not been shown, although the house of the complainant is lying near to the house of the accused. According to him no common intention is proved and the eye-witness Dildar Shah has died and there is no eye-witness of the occurrence. He further argued that there is no charring marks at the deceased and he was hit on his back and that the witnesses were not present at the relevant time and the occurrence has been shown in a different manner. Learned State Counsel and counsel for the complainant rebutted all these arguments and stressed that the accused are directly charged in the F.I.R. With no mis-identification. Specific role has been attributed to each of the accused and that the prosecution case is proved beyond any doubt by ocular, medical as well as circumstantial evidence.
5. We have heard the learned counsel for the parties at length and with their help we have scrutinized the available record.
6. Admittedly, the prosecution witnesses were put to a hard and severe test of cross-examination but nothing substantial came out from their mouths which can cast doubt on the prosecution case. It is a day light occurrence. The parties are distant cousins. There is no mis-identification.
Each of the accused has been attributed specific role and has been attributed specific weapon of offence, i.e., .12 bore S.B. Shot gun and .12 bore pistol. The prosecution case is also supported by medical evidence, site plan as well as circumstantial evidence like recoveries of an empty and two plastic dots from the spot and from the place of the accused. As far as the confessional statement is concerned that also proves the guilt of the appellants-accused in which the accused-appellant Noor Shah has given a detailed description and this confessional statement is duly proved by the ocular evidence but if for arguments sake even if we exclude the confessional statement even then the prosecution case is proved beyond any doubt as the defence desperately failed to extract anything from the mouths of the P. Ws. (eye-witnesses) which can go in favour of the accused or can cast any doubt on the prosecution version. P.Ws. Have been put to a lengthy cross- examination but of no avail. Admittedly there are certain discrepancies but this fact is to be borne in mind that these statements are recorded after about 2 years of the occurrence. So these minor contradictions would not be fatal for the prosecution. Moreover the Investigating Officer has tried his best to give some concessions to the accused but even then those concessions are of no help to the defence. With regard to the plea of self---defence by the appellants-accused, it is proved from the record that the complainant party was empty-handed and the accused party was armed, so the plea of self-defence has got no weight. In the instant case the prosecution has proved its case beyond any doubt but even otherwise the appellants-- accused admit their presence on the spot, the presence of the complainant party, their own presence as well as the occurrence but in a different shape. In this regard in the statement of accused Noor Shah reply to Question No. 12 is worth perusal. So the venue of offence, the presence of the complainant party and accused party, and tussle has been admitted even by the defence but they have given a different shape to the occurrence. With regard to the quantum of sentence the order of the trial Court seems reasonable as it is crystal clear from the record that there was no previous motive and the fight took place at the spur of the moment, hence the sentence of death is not given. In this background of the case the conviction and sentence passed by the trial Court is well reasoned and we are not inclined to interfere, hence the appeal in hand is hereby dismissed.