1983 PLP 266 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Sher Daraz Khan, accused/appellant was tried by the Additional Sessions Judge, Bannu under section 302, P. P. C. for committing the murder of Nawaz Khan son of Sayyed Hussain by firing at him with a gun on 28‑7‑1968 at about evening time in the limits of Khojri Khan, Police Station Choriawala, District Bannu. He was found guilty. convicted and sentenced to death by the learned trial Judge vide his judgment dated 26‑2‑1976 whereby a fine of Rs. 2,000 (rupees two thousand) was also imposed on the accused, which, if deposited, was ordered to be paid to the heirs of the‑deceased, or in default further six months' R. I. The appellant filed an appeal against his conviction and sentence and Murder Reference was also placed before the Peshawar High Court for confirmation and the learned High Court Judges confirmed the death sentence and dismissed the appeal of the appellant. He then. filed a petition for leave to appeal against the judgment of the High Court and leave was granted by this Court on 13‑3‑1978 to consider the question of sufficiency of evidence against the appellant and the conflict between the statements of the doctor and the eye witnesses which belied the ocular testimony of the two eye‑witnesses namely Jabali, P. W. 8 and Muhammad Sher Khan, P. W. 9.

3. According to the complaint, on the day of occurrence at about evening time he, along-with Muhammad Sher Khan, P. W. 9 who is his Masizad (son of maternal‑aunt) came to the Chowk (Hujra for Males) and sat down on separate cots there. Shortly afterwards his father Nawaz Khan deceased also came and sat on a separate cot. Ten minutes later Sher Daraz came, armed with a gun and sat on the ground, at some distance and thereafter he fired shot at the deceased who was hit. He, along-with the deceased, ran towards their house but the deceased fell when 'he reached the door of the courtyard of the house and died instantaneously. According to the complainant, two years prior to the occurrence his grandfather Sayed Hussain transferred 6 kanals of land to the deceased and 6 kanals to the accused/appellant Sher Daraz out of his agricultural land and kept about 10 kanals for his own maintenance that Sayed Hussain was living with the complainant's father, the accused/appellant Sher Daraz had been continuously pestering Sayed Hussain to transfer the remaining land to him but the deceased used to prevail upon his father not to do so.

4. Jabali, P. W. 8 went to the police post and lodged the report which was recorded in the Daily Diary at S. No. 18 and was transmitted to the Police Station Choriawala on telephone, The accused absconded after the occurrence and was arrested on 1‑7‑1975. 'Muhammad Shah A. S. I. was incharge of Police Post Kakki. He recorded the report of Jabali, P. W. 8 at 10‑30 p.m. on 28‑7‑1968 Exh. P/1 and copy of the same placed on record of the case. Thereafter, he proceeded to the spot. He started investigation, prepared the site plan Exh/P. B. and other documents. He searched for the accused who was not traceable, obtained warrant for his arrest and carried out proclamation under section 87 of the Cr. P. C. The two eye‑witnesses Jabali, P. W. 8 and Muhammad Sher, P. W. gave ocular account of the occurrence.

5. Dr. Muhammad Aman Khan, P. W. 7 performed the post‑mortem examination of the body of Nawaz Khan and found the following injuries on the person of the deceased. (1) 3 fire‑arms wounds of entry on the right shoulder joint in a diametre of 2". (2) 1 fire‑arms wound of inlet on the right side of face and exit wound of this below the left ear. (3) 1 fire‑arm wound of entry on the back in the upper part in a dia meter 1/6 x l' and exit wound of this 3" away from it. (4) A lacerated type of injury on the right index finger size 1/4` x 1/4. According to' the doctor the injuries on the deceased were result of more than one shot and injury (3) could be caused by a bullet or pellet.

6. Learned counsel contended that the medical evidence is in conflict with the ocular testimony ; that the two eye‑witnesses are `interested' witnesses and their testimony is fully belied by the fact that the deceased was hit on the front as well as on the back whereas the said two eye‑witnesses have stated that the shot was fired by the accused/appellant from a distance of 12/13 paces hitting the deceased on the right side, that the doctor has further made it clear that the deceased could not walk after the receipt of injuries whereas the eye‑witnesses stated that the deceased walked for about few paces and then fell in the door of his house, and lastly he contended that the report was lodged after considerable delay as the occurrence took place, according to the prosecution, at about evening time whereas the report was lodged at the police post, lying at a distance of about 3 miles, at 10‑30 p.m.

7. We have gone through the evidence and find that there is no reason for the two witnesses to falsely implicate the appellant as they are clearly related. Their presence on the spot could not be questioned as they were sitting in common Chowk where the occurrence took place and male members of the families in a village normally come out after the evening zeal for a brief chit‑chat. The appellant also remained absconder for a long time and could not offer any plausible reason for his absence from the village. When examined under section 364, Cr. P. C. he stated that his father died before the present occurrence, and his mother and his brother quarrelled with him, so he went to Mirali where he started working in a tea shop. This explana tion is not worth consideration.

8. In the end the learned counsel urged that as there being no motive for the crime and the one put forward by the prosecution has been proved false, there must be some dispute earlier which annoyed the accused/appellant and he committed the crime under an agitated state of mind. He referred to the statement of Jabali, P. W. wherein he stated that it was wrong to suggest that Sher Daraz was annoyed because the deceased had purchased land from Noor Zaman and was not going to share the same with the accused. He further replied to a question that he had stated in his statement under section 512, Cr. P. C. that the dispute over the land was over the land of our grandfather (confronted not so recorded). Thus, it appears that there was something on the spur of moment which resulted in the present occurrence. Considering this we alter the sentence of death to life imprisonment and fine of Rupees ten thousand (Rs. 10,000) or in default, 5 years' further R. I. and Rupees one thousand fine as compensation in default, six months' R. I. The total amount, if recovered, will be paid to the deceased family. The accused appellant shall be allowed the benefit of section 382, Cr. P. C, Appeal dismissed. Sentence reduced.