Ijaz-ul-Hassan, J.--Appellant Ajmal Khan son of Bakhmal Khan, aged about 24/25 years, was tried by learned Sessions Judge Kohat, for committing Qatl-e-Amad of his mother-in-law Mst. Makhmal Jana and attempted murder of Mst. Piyao Jan daughter of the deceased. At the conclusion of the trial, he was found guilty of the offences charged with and vide judgment dated 14.9.2000 was convicted under Section 302(2) PPC and sentenced to suffer life imprisonment. He was also convicted under Section 324 PPC and sentenced to undergo seven years R.I. and fine of Rs, 30,000/-or in default to suffer further six months S.I. Both the sentences were directed to run consecutively. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant. The appellant has challenged his conviction and sentence by filing the present Criminal Appeal No, 456 of 2002, which is before us for consideration.
2. The crime in question is alleged to have taken place on 23.4.1996 at 6.30 a.m. in the houses of Mst. Makhmal Jana deceased and Mst. Piyao Jana injured situated in villages Mohammadzai and Navay Kalay Peshawar. The matter was reported to the police the same day at 7.30 a.m. by complainant Nasrullah Jan, husband of Mst. Makhmal Jana deceased.
3. Upon receipt of information on 23.4.1996 that a dead body has been brought to Liaqat Memorial Hospital, Kohat, ASI Noor Muhammad PW proceeded to the hospital, where complainant Nasrullah Jan made a report to the effect that on 22.4.1996 his son in law Ajmal Khan appellant had come to their house to spend night. On the following morning an altercation took place between the appellant and the deceased. The appellant drew out a pistol and fired at the deceased with which she was fatally hit and died at the spot. The appellant then went to the house of his daughter Mst.
Piyao Jana and also fired at her with which she sustained injuries. Explaining the motive, the complainant stated that his step son namely Nader khan was charged for the murder of the mother of the accused on account of which the latter was nursing grudge in his mind.
4. After recording the report EX.PA/1, ASI Noor Muhammad PW prepared injury sheet and inquest report of Mst. Makhmal Jana deceased and injury sheet of Mst. Piyao Jana. He dispatched the report Ex. PA/1 to Police Station where it was incorporated into FIR EX.PA by HC Wilayat Khan PW. He then repaired to the spot and on reaching there prepared site-plans Ex.PB and Ex.PB/1. He took into his possession from the place of deceased, blood stained earth, two empty bullets, one wooden seat and three empties of 30 bore, vide recovery memo Ex.PC in the presence of marginal witnesses. He also recovered blood stained earth from the place of Mst. Piyao Jana injured, two spent bullets and three empties of .30 bore from the place of accused vide recovery memo EX.PC/1.
He also took into possession one shirt, one shalwar and one chaddar belonging to Mst. Makhmal Jana deceased, a shirt and shalwar belonging to Mst. Piyao Jana injured vide recovery memo Ex.PC/2. The blood stained clothes were sent to the laboratory for opinion and report (Ex.PE). The witness in hand recorded statements of prosecution witnesses and handed over the remaining investigation to Inspector Khursheed Khan PW who submitted challan under Section 512 Cr.P.C. on 16.5.1996.
5. The prosecution in order to prove its case produced 13 witnesses in all. They eye-witness account of the occurrence has been furnished by complainant Nasrullah Jan , Mst. Piyao Jana and Sher Zaman PWs.
6. Lady Dr. Falak Naz, PW, Medical Officer, Liaqat Memorial Hospital, Kohat, on 23.4.1996 at 8.45 a.m. conducted the post-mortem examination of Mst. Makhmal Jana deceased and noted the following :- External examination:
1. Fire-arm entry wound on left breast in 3rd intercostal space measuring about 1/4" in size.
2. Fire-arm exit wound present in mid clavicular line on back side of the chest measuring about 1" in size.
3 Fire-arm entry wound in right side of umbilicus region measuring about 1/4" in diameter.
4 Fire-arm exit wound in left lumber region measuring about 1" in size.
5 Multiple small lacerations on right iliac crest.
International Examination: Thorax: Walls, Ribs and Cartilages injured. Pleaurea, left lung, blood vessels injured.
Abdomen: Walls, Peritoneum, small intestines, large intestines, left kidney all were injured.
Muscles, Bones, joints: Muscles and bones corresponding to the firearm injuries were injured.
Remarks: In the opinion of the doctor death occurred due to injuries to the major vessels of the chest and abdomen and left kidney leading to haemorrhage shock and death.
Probable time between injury and death within about 2 hours and probable time between death and post-mortem within an hour.
7. Dr. Jan Alam PW Medical Officer, Liaqat Memorial Hospital Kohat examined Mst. Piyao Jan on 23.4.1996 at 7.35 a.m. and found the following: 1 Anentry wound situated on right umber area 1/2 cm in diameter.
2 An exit wound situated on right hypochondrium having a diameter of 1-1/2 cm.
3 An entry wound situated on left lumber area having a diameter of 1/2 cm.
4 An exit wound situated on front of abdomen below the umbilicus having a diameter of 1-1/2 cm.
Nature of injuries- grievous Probable duration-1 to 1-1/2 hours.
Kind of weapon used-firearm.
8. In his statement recorded under Section 342 Cr.P.C., the appellant admitted his relationship with the complainant party. He also admitted that his mother was murdered and Nader Khan step son of complainant Nasrullah Jan was charge for it, However, he denied the prosecution allegations and claimed to have been charged falsely on mere suspicion. The appellant led no evidence in defence and declined to be examined on oath.
9. The learned trial Judge, acting on the material available on the record, arrived at the conclusion that prosecution has succeeded to establish its case beyond pale of reasonable doubt. He convicted and sentenced the appellant as mentioned and detailed above.
10. Appearing on behalf of the appellant, Mr. Kamran Arif, Advocate, bitterly criticized the impugned judgment and attempted to argue that prosecution evidence is full of contradictions and improvements; that there is no independent eye witness to prove the crime; that the motive for the alleged offence has not been proved and that the medical evidence is in conflict with the ocular testimony. Additionally, he urged that the appellant is blamed to have fired to death Mst. Makhmal Jana in her house in village Muhmmadzai and he is also accused to have fired effectively on Mst.
Piyao Jana in her house in village Navay Kalay Peshawar. The learned counsel added that how could the appellant accomplish the two missions simultaneously. This fact alone is sufficient to indicate that appellant has no hand in the crime and that he was falsely implicated in the case.
The learned counsel also submitted that no question regarding abscondence having been put to the appellant in his statement under Section 342 Cr.P.C. the factum of abscondence could not have been taken into account and used against the appellant. He relied on Kaura vs. The State (PLJ 1978 Criminal Cases (B.J.) 164).
11. Mr. Jamshed Khan, Advocate learned counsel for the State, on the other hand, supported the impugned judgment and submitted that the appellant is directly nominated in the promptly lodged report for: the commission of crime and there is no reason to discard or disbelieve the prosecution story, duly corroborated by the supporting evidence on record.
12. We have heard at length the arguments of learned counsel for . the parties addressed at the bar. We have also perused the entire evidence with their able assistance. We are satisfied that the learned trial Court has properly appreciated the evidence on record and has rightly proceeded to hold that prosecution has succeeded to establish its case against the appellant beyond a shadow of reasonable doubt and the appellant is the author of the crime.
13. It is known and settled principle of law that prosecution primarily is bound to establish guilt against the accused, without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt then the accused becomes entitled to for his release on getting benefit of doubt in the prosecution case.
14. In the present case, the offences in question are alleged to have taken place on the morning of 23.4.1996 in the houses of Mst. Makhmal Jana deceased and Mst. Piyao Jana injured, in 'Mohammadzai' and Naway Kalay', Peshawar. The distance between the two villages is hardly two or three kilometers per statement of ASI Noor Muhammad PW. The appellant committed the murder of his mother-in-law Mst. Makhmal Jana in her house in `Mohammadzai'. He did not feel content and in order to quench his thirst went to the house of his sister in law Mst. Piyao Jana in Naway Kalay. He knocked at the door and on opening the door he started firing upon Mst. Piyao Jana. This short distance was covered by him within 9/10 minutes. Immediately after the occurrence the deceased and her injured daughter were removed to Liaqat Memorial Hospital, Kohat. The matter was reported to the police promptly and no time has been consumed in consultation and deliberation. The appellant has been directly nominated in the report and a specific role of firing has been attributed to him. The witnesses of the spot namely Nasrullah (complainant), Mst. Piyao Jana (injured witness) and her husband Sher Zaman have fully supported the prosecution case and justified their presence at the spot. The perusal of the statements of the PWs would reveal that they without any omission or addition narrated the prosecution. version as contained in the FIR which stands corroborated by the medical evidence and recovery of crime empties from the spot. We may observe that the prosecution version is supported by the natural and independent witnesses including Mst. Piyao Jana who bore stamp of injuries on her person. The defence despite lengthy cross-examination has not been able to dislodge the presence of the witnesses either in the village on the fateful day or near the place of occurrence. The mere fact that they are closely related to the deceased, by itself, is not sufficient to discard their testimony. It is well settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence, unless the witness has motive to falsely implicate the accused. The medical evidence is in line with the ocular testimony. There exists no such serious enmity which could be served as a motivating factor to falsely involve the appellant in such like offence and why the real culprit should be spared to involved the appellant falsely as the substitution is a rare phenomenon. Muhammad Muslim vs. Mazhar Malik (1999 SCM R 103) and Jafar Shah vs. Mian Yahya Shah (1999 SCM R 20).
15. While criticizing the impugned judgment, learned counsel for the appellant also contended with vehemence that the eye-witness account of the incident is not in consonance with the medical evidence in as much as no charring marks were found on the person of the deceased though she was alleged to have been fired from a close range. The submission of the learned counsel has not impressed us. The witnesses have given the distance approximately and not the exact distance.
Possibility of the distance being little more than that cannot be excluded in the circumstances of the case. On the basis of presence or absence of blackening and split of the pellet no definite opinion about the distance from which a fire-arm was discharged can be given while dealing with the question of the distance of the fire-arm. In his Medical Jurisprudence 13th Edition Modi has observed as under:- "In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a fire-arm was discharged. According to Taylor no general rule can be laid down."
Thus the medical evidence in present case cannot be said to be in conflict with the ocular evidence. In case of country made pistol even pellets can spread to some extent when fired from such distance. There can be no definite opinion on the question of distance from which fire was made on the basis of split of the pellets and absence of blackening as it depends upon the matter of the powder used in the cartridge.
16. Having examined the case from all angles and attending to the submissions made by the learned counsel for the parties we are of the considered opinion that prosecution has brought sufficient evidence on record to connect the appellant with the commission of crime and the evidence has been evaluated and assessed in right direction. The minor contradictions and omissions pointed out in the testimony of eye-witnesss are insignificant and do not damage the prosecution case. The appellant has been rightly found guilty for the crime in question and thus the impugned judgment dated 14.9.2000 being unexceptionable warrants no interference of this Court.
The appeal fails which is hereby dismissed. The impugned judgment is maintained.