1990 PLP 571 (SCMR)

Nemo for the State. Date of hearing: 2nd July, 1989. S. USMAN ALI SHAH, J.‑‑Petitioners alongwith Bakht Baidar and? another person of Wazir Caste named Aurangzeb were tried by the Sessions Judge Bannu under section 302/307,/148/149, P.P.C. for the murder of Badiuz Zaman and Zar Khan on 29‑12‑1971 at 16‑35 hours, outside Hawed Gate Bannu Bazar in front of Shop of Bakht Zamen, by firing at them with their respective weapons, the F.I.R. of which was lodged by Arab Khan cousin of Badiuz‑Zaman deceased and recorded by Ghulam Oasim Khan DSP/SHO at 16‑35 hours the same day. Bakht Baidar was arrested on 22‑4‑1975 and a complete challan against him was put in the Court of Sessions Judge Bannu for his trial. The learned Sessions Judge vide his judgment dated 17‑1‑1976 found the case against him doubtful and acquitted him of the charges by giving him the benefit of doubt. Appeal of the State against him in the High Court was accepted and he was convicted under section 302/149, P.P.C. and sentenced to imprisonment for life with fine on two counts. He was also convicted under section 148, P.P.C. and sentenced to three years' R.I. His appeal before the Supreme Court was accepted and he was acquitted vide judgment dated 21‑2‑1981. Zangobar and Umarzad petitioners surrendered on 31‑5‑82 and Arzumand surrendered on 22‑2‑1985 and their supplementary challan was put in the Court of Sessions Judge Bannu, while Aurangzeb was still in abscondence. The learned trial Judge vide his order dated 22‑7‑87 found all the three accused guilty of the offence under section 302/34, P.P.C. on two counts and sentenced each of them to imprisonment for life on two counts and tine of Rs.5,000 was also imposed on each of them on two counts and in default of payment of fine on each count they shall suffer further R.I. for two years' R.1.On realization of fine 2/3rd of it was ordered to be divided in the legal heirs of both the deceased on 50% basis as compensation under section 544‑A, Cr.P.C. and the remaining fine shall go to State. D.M.Bannu was also directed that Aurang7eb absconder accused be declared as proclaimed offender. Appeal of the accused petitioners before the High Court was dismissed and their sentence under section 302/34,P.P.C. on two counts was maintained but it was directed that their substantive sentences under each count shall run concurrently. The criminal revision filed by the complainant party was also dismissed vide judgment dated 15‑11‑1988. Now the petitioners seek leave to appeal before this Court. Learned counsel for the petitioners has referred to the relevant parts of the evidence and has tried to urge that the two eye‑witnesses; namely, Arab Khar: (PW‑7) lodger of the F.I.R. and Afsar Ali (PW‑ 9) are interested witnesses as they are related to Badiuz‑Zaman deceased and their evidence should be discarded carries no weight. After hearing the learned counsel we are satisfied that there is no misreading by the High Court on any substantial point. Nor in the circumstances, there is such appraisal of evidence by the High Court which has resulted in miscarriage of justice. It is obvious from the evidence on record that Arab Khan (PW‑7) lodger of the F.I.R. met Badiuz‑Zaman deceased armed with D.B. shotgun sitting on the front seat and Zar Khan deceased armed with S.B. shotgun, sitting on the rear seat of the tonga and shook hands with them. Afsar Ali (PW‑9) who was on a bicycle and standing behind the tonga in which both the deceased were sitting. According to them Bakht Baidar acquitted accused and Aurangzeb absconder accused were armed with .303 rifles, Arzumand, Zangobar armed with D.B. shotguns and Umerzad armed with S.B. shotgun came out of the shop of Hameedullah Khan and started firing at Badiuz‑Zaman and Zar Khan while they were sitting in the tonga and as a result of which both of them received fatal fire arm injuries. Both these witnesses have consistently charged the petitioners alongwith their co‑accused for the murder of the two deceased. Although both the eye‑witnesses are related to the deceased but their evidence finds corroboration from the recoveries and the medical evidence, therefore, their evidence can be taken into consideration, irrespective of their relationship with the deceased, because their presence at the spot is established so the evidence given by them inspires confidence. The arguments of the learned counsel in support of this petition carry no weight because Afsar Khan (PW‑9) had produced the shotgun which he had taken from the person of Badiuz‑Zaman deceased after he was being taken to the Police Station by Arab Khan (PW‑7) and produced the same to the I.O. in the Police Station when he arrived there alongwith the dead body of Zar Khan deceased. The I.O. confirmed the taking into possession of the said shotgun which was blood‑stained from Afsar Ali. The details supplied by the said eye‑witness are a sufficient corroboration of his presence on the spot and to have witnessed the occurrence. For the foregoing reasons we are of the opinion that the prosecution has successfully established its case against the petitioners and they had rightly been convicted under section.302/34 P.P.C for the twin murder of the deceased. We do not find any reason for interference in the impugned judgment of the High Court. The petition is accordingly dismissed. N.H.Q./U‑29/S Petition dismissed.