2009 PLP 220 (MLD)

TARIQ PERVEZ KHAN, C.J.

Our this judgment is intended to disposed of three matters which are interconnected, as they are the outcome of single judgment delivered by learned Additional Sessions Judge/Izafi Zilla Qazi Swat on 19-3-2008.

2. Criminal Appeal No.126 of 2008 is filed by Bacha Muhammad alias Bacha Khan appellant, who ,has been awarded life imprisonment under section 302(b), P.P.C. with a fine of Rs.50,000 and in default to suffer further 6 months' S.I.

3. Criminal Revision No.46 of 2008 is filed by Hazir Muhammad, petitioner, seeking enhancement of the sentence of above named appellant. Hazir Muhammad has also filed Criminal Appeal No.231 of 2008 against acquittal of the above named appellant under section 447, P.P.C.

3. Short facts of the case are that Hazir Muhammad (P.W. 5) while present in his house along with the dead-body of his brother Jan Muhammad, deceased, made a report to Behr-ud-Din S.H.O. (P. W .4). In his report he has stated that on the day of occurrence he along with his deceased brother Jan Muhammad were present on the spot and they forbade the appellant, Bacha Muhammad alias Bacha Khan, and his acquitted co-accused Ali Muhammad, who were allegedly raising a wall in the field belonging to the complainant-party, which annoyed the accused. It was said that acquitted accused Ali Muhammad directed his brother Bacha Muhammad the Appellant to go to the house and fetch a rifle and kill the deceased which was accordingly done i.e. Bacha Muhammad went to the house, adjacent to the spot, brought the rifle and fired at the deceased, who was hit and got wounded.

4. Occurrence took place on 5-9-2000 at 8-30 a.m. but was reported at 4-00 p.m. the same day. To support the ocular account, furnished by Hizar Muhammad, prosecution also examined Ali Mukhtiar as P.W.6, who is nephew of the deceased.

5. Learned counsel for the appellant argued that there is delay of about 7-1/2 hours in making the report, that Ali Mukhtair (P.W.6) is a chance witness, therefore, he shall not be believed, that since motive has not been proved, therefore, even Hizar Muhammad (P.W.5) should be taken to have made out a false case because the very perusal of the site plan would show that the wall, if any, was raised right in front of the house of accused and not in the property of the complainant side. He further argued that motive was common then why Hizar Muhammad was not filed at, so much so that no charge under S.324, P.P.C. was framed nor this section was added to the F.I.R. His next contention is that though single accused is charged but where prosecution evidence suffers from inherent difficulties, it has to be excluded.

6. Learned counsel for the complainant as well as learned counsel appearing on behalf of the State, however, argued that single accused is charged for effective shot, that 'the parties are interrelated, as they are cousins, that no motive exists for falsely accusing the appellant for an offence punishable with capital punishment.

7. Though apparently there appears to be delay of 7-1/2 hours because occurrence is said to have taken place at 8-30 a.m. and was reported at 4-00 p.m. but it has been brought in the cross-examination of the complainant that after the occurrence they arrange the cot, as deceased was then injured and they left on foot but after covering some distance, found the deceased then injured was dead and then they went back to their house. It is also in his cross-examination that he informed the police in the Police Station but through telephone and that the information was conveyed at 10-00 a.m.

8. Behr-ud-Din, Investigating Officer, does not give the time as to when information was received in the Police Station but admits that information was given to the Police Station when he was present there and that thereafter he has left for the house of the complainant which was on a distance of 22/23 kilometers from the Police Station.

9. It is also in the statement of the Investigating Officer and admitted by the complainant that when the Investigating Officer reached the house of the deceased where he recorded murasila he has taken along the doctor.

10. In PATA, it is practice that postmortems are not conducted and the doctors only conduct external examination.

11. After the information about the occurrence was received in the Police Station, it is a distance of 22/23 kilometers and as the area is hilly terrain and that service of a doctor was to be obtained, this must have consumed time and, therefore, if report is made at 4-00 p.m. it cannot be taken as inordinate delay.

12. Even otherwise, delay in making of report is taken with caution if number of accused is charged because it is only in such cases where time is consumed by the complainant party consulting each other for enlarging net by increasing the number of assailants. In this case single accused is charged, therefore, no question of deliberation and consultation.

13. Seeing from yet another angle where delay has taken as vital to the prosecution case, there is already blood feud enmity between the parties. In this case except for the altercation which took place on the spot the time of occurrence or minutes before, there is no history of c hostility between the parties. Where there is absence of enmity then delay, if any, in making the report is not taken into consideration.

14. The accused appellant remained absconder for nearing six years which would lend corroboration to the testimony of the complainant. Besides complainant there is yet another eye-witness, who is though related to the deceased but has not any personal motive to bring a false charge.

15. Therefore, we hold that in this case prosecution has brought home the charge against the appellant and conviction has been rightly recorded by the learned trial Judge. This appeal stands dismissed.

16. There is a revision for enhancement of sentence of the appellant which his though in motion but after hearing the learned counsel for the petitioner, we do not find that there is any scope for enhancement of sentence because firstly, as per prosecution evidence appellant acted under the command of his acquitted co-accused, secondly, he has made only one shot and thirdly, that preceding the firing there was an altercation between the parties. These were sufficient grounds for mitigating the sentence awarded to the appellant. Therefore, the revision merits dismissal.

17. Appeal against acquittal where appellant, who is respondent namely Bacha Muhammad has been acquitted of the charge under section 447, P.P.C. is not pressed by the respondent, who is appellant namely, Hazir Muhammad. The same is also stands dismissed as such.

18. The conclusion would be that conviction and sentence of imprisonment of the appellant Bacha Muhammad alias Bacha Khan are maintained, as his appeal fails. However, the amount of fine of Rs.50,000 has been wrongly awarded because as under the law there is no provision of imposing fine under section 302, P.P.C. but said amount is converted into compensation amount under section 544-A, Cr.P.C. which shall be payable to the legal heirs of the deceased, recoverable as arrears of land revenue. H.B.T./200/P Appeal dismissed.