2002 PLP 945 (MLD)

SARDAR MUHAMMAD RAZA KHAN, C.J.‑‑‑Sher Dad son of Hussain of Dana Darra Buner, has filed this appeal through Jail Authorities against judgment dated 2‑12‑1997 of the learned Sessions Judge/Zilla Qazi, Buner, whereby he was convicted and sentenced under sections 302/307, P.P.C. for the murder of one Amir Sultan and for effective attempt at the life of Awa1 Dad complainant. In the former offence, he was sentenced to imprisonment for life and a fine of Rs.30,000, half of which was to be received by the legal heirs of the deceased and in default whereof, he was to suffer further imprisonment for three years. In the latter offence, he was sentenced to imprisonment for five years and a fine of Rs.10,000, half of which was to be paid to the 0victim and in default whereof, he was to suffer further imprisonment for one year. He was, however, given the benefit of section 382‑B, Cr.P.C. and both the principal sentences were directed to run concurrently.

2. On 15‑4‑1988, Bahruddin, A.S.‑I./Incharge police Post Jawar, had received information that, some injured were brought to the Basic Health Unit, Jawar. He reached there at 18‑00 hours. Awal Dad son of Haji Rosham Khan lodged report before him in the shape of Murasila that, in the morning of the same day, he alongwith Amir Sultan had gone to the mountain named Spin Wahojai in order to make charcoal. That, while they were preparing charcoal, Sher Dad appellant of Dana Darra came to the spot and claimed that the fuel wood belonged to him. They altercated over the claim whereafter, the accused left the spot but after sometime came armed with a 5‑shot rifle and opened fire at Awal Dad as well as Amir Sultan. He had fired five shots with one of which Amir Sultan got hit on the head and died on the spot while the complainant sustained injuries on the right arm and both the legs.

3. Having drafted the Murasila, Bahruddin, A.S.‑I. went to the spot, examined the dead body, prepared the injury sheet as well as inquest report and avoided to send the dead body for post‑mortem examination, because the legal heirs declined permission. He further recovered blood‑stained earth/stone and charcoal, in addition to a spent bullet, an axe, a pickaxe and a spade.

4. Proceedings under sections 87, 88 and 204, Cr.P.C. were also taken against the accused who was subsequently arrested on 28‑4‑1988 and on his pointation the spot of his presence‑vas marked in the site plan. It would be proper to mention at this stage, that due to injuries sustained by the complainant, the site‑plan was not prepared at his instance.

5. The prosecution examined many witnesses, out of whom the solitary injured eye‑witness named Awal Dad as most relevant. The accused, in addition to his examination under section 342, Cr.P.C., produced two witnesses in defence about which it is pertinent to mention that they were abandoned by the prosecution.

6. At the close of trial, the prosecution relied upon the statement of injured witness/complainant Awal Dad, various recoveries from the spot, medico‑legal report, the motive for the occurrence sans previous enmity and thirteen days abscondence of the appellant. The prosecution case seems to be established from the statement aforesaid of the injured eye‑witness. It is supported by the recoveries of blood‑stained charcoal, the pickaxe, the axe and the spade which are usually required on the spot for making charcoal from fuel wood. Admittedly, there is no previous enmity between the parties and every thing had occurred on the spot over the ownership of fuel wood and hence one can safely repel any doubt about false charge which also is singular in nature.

7. The allegation of five fire shots on the spot, is also supported from the medico‑legal report of the deceased as well as the complainant, which indicate that at least four shots were proved effective and the fifth one might have gone amiss: The charge is supported by the recoveries from the spot as well as by the medico‑legal reports on file. This is further supported by the abscondence of the accused and hence the conviction as well as the sentence cannot be taken an exception to.

8. The learned counsel for the appellant argued, that the deceased and the complainant might have had sustained injuries on `the same day but those were not sustained in the same transaction. We failed to understand the implication of the argument because not a word to that effect had ever been brought during the cross‑examination of the complainant or the Investigating Officer. So much so, that even the defence witnesses did not mention of any two occurrences having taken place between the parties on two different occasions or at two different places. The argument is hot tenable. According to the learned counsel, the weapon used in the offence turned out to be of 7.62 bore but the complainant instead had mentioned the fire‑arm to be 5‑shot rifle. This, in our view, is no discrepancy at all, because in present times 5‑shot rifles which are generally 7MM, are so manufactured even with p folding butt that they resemble a Kalashnikov of 7.62 bore. In these circumstances, a witness is most likely to get confused over the description of weapons that have close resemblance.

9. Learned counsel also was of the view that the injuries of complainant had no exit and hence the shots were most likely to have been fired from a .12 bore shotgun. This argument by itself, ig not a conclusive proof of the fact that the injuries which do not have an exit, must always' be caused by a .12 bore shotgun.

10. The most interesting aspect of the case is, that the version of the complainant in the F.I.R. happens to seek support from the defence evidence. We would refer to Sher Afzal (D.W.1) who is an abandoned witness of the prosecution in support of the fact that he had seen the assailant running away from the spot. One thing should be noted at the very outset that he, admittedly, is related to the accused Sher Dad. It was Sher Afzal (D. W .1) in whose house the injured complainant, immediately after the occurrence, had taken refuge. The witness admits this fact and also that the injured had begged him (the witness) to save his life. Such begging persuasions are always made when the victim has already encountered some adversity, is in the process of escape and begs for help of anyone that comes across immediately. Meaning thereby, that his begging for help and the occurrence had taken place in the same transaction. When Sher Afzal admits of the request for help by the injured, he must have had seen the assailant as well, but such portion of his previous statement, he happened to deny in the witness‑box, obviously, to screen out the offender because the latter happened to be his relative:

11. The similar circumstance of begging for help having already come in the statement under section 164, Cr.P.C. of Lajbar (T).W.2) is admitted by the witness even in his Court statement. It was admitted by the both witnesses that the complainant was injured and such injuries are specified by Lajbar, supporting the‑ case of the prosecution. Both the witnesses similarly are suppressing the factum of having had seen the accused running away from the spot but are admitting the fact of the injured, seeking help from the witnesses. When once the assailant had run away with such a gap that there was no chance of his having been seen by anyone and when once the danger had been over, there was no occasion for the injured to beg for help. The begging would be natural only when the danger is still impending.

12. The charge seems to be truthful as well, because had it been false, the complainant could have straightaway said that the accused came armed on the spot. It was not so stated and it is rather aggravating that after verbal conflict with the complainant and Amir Sultan,' the accused left the spot and again arrived there while armed with a rifle. His second arrival on the spot is indicative of the fact that he meant business. In. the circumstances, the prosecution has proved the case beyond any shadow of reasonable doubt and hence the appellant was rightly convicted and sentenced. The impugned convictions and sentences recorded by the learned Sessions Judge/Zilla Qazi, Buner at Dagger, vide his judgment dated 2‑12‑1997, are upheld and the appeal is hereby dismissed. N.H.Q./42/P Appeal dismissed.