1989 PLP 529 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal by leave through jail petition is directed against the judgment and order of the Peshawar High Court, Peshawar dated 6‑4‑1976, whereby the Criminal Appeal No.13/75 filed by the appellant against his sentence for life imprisonment, under section 302, P.P.C., passed by the learned Sessions Judge, Bannu, on 1.0‑12‑1974 was dismissed. According to the F.I.R. (Ex.PA.) the prosecution case is that on 7‑8 1966 Watan Khan deceased had come to the house of Abdullah Jan (P.W.11) and stayed for night as guest in his house. On 8‑8‑1966 after morning prayers when the deceased was lying on Charpai taking rest on his elbow support, Zargul appellant herein armed with a shotgun entered the house of Abdullah Jan (PW.11) and from a distance of 5‑6 paces fired a shot at the deceased, witnessed by Mst. Zaro Jana (P.W.4) daughter of Abdullah Jan, present in her courtyard hearth and was preparing tea. Abdullah Jan (PW‑11) and Maizullah were also alarmed at the report of the fire shot and they saw Zargul accused appellant standing at a distance of few paces from the cot of the deceased with a shotgun in his hand. The PWs also saw Mahi Gul acquitted accused standing on the roof of his Kotha, who also fired. from there at the deceased. Mahi Gul acquitted accused then called out Zargul appellant that he should again fire at the deceased so that he is put to death once for all. The appellant fired a second shot at the deceased and hit him. The witnesses out of fear went towards the Chappar and Maizullah went inside the Kotha. While they were going to hide themselves, Zargul appellant told them that they were not to be harmed. Zargul appellant asked Mahi Gul to threw his Chaddar from the roof, he did so and thereafter both of them left the spot. Watan Khan died on the spot as a result of injuries. Abdullah Jan (P.W.11) alongwith Maizullah (P.W.7) went .to Malik Abduldah Khan (P.W.6), who directed Nazam Chowkidar to accompany Abdullah Jan to Police Station. Abdullah Jan lodged the F.I.R. which was recorded by A.S.I. Fatehullah Khan (P.W.10) on the same day at 8.30 a.m. The A.S.I. Fatehullah Khan visited the spot and found the dead body lying in the house of the complainant. First of all the A.S.I arrested Mahi Gul acquitted accused from his house and recovered S.B. 12 bore shot gun from his house and secured it into parcel. He prepared injury sheet (Exh.P.J), inquest report Exh.PJ/1 and collected blood‑stained earth and secured it into a sealer' parcel vide memo (Exh.PF). The A.S.I. also recovered 9 card‑board discs and 3 pellets from the spot vide memo. (Exh.P.G) and prepared the site plan. He sent the dead body to the hospital for post‑mortem examination. Zargul accused absconded in this case. The motive for the occurrence was that the deceased had developed intimacy with Mst. Gulo Jana (P.W.4), wife of Mahi Gul acquitted accused. Dr. Haq Dad Khan of Civil Hospital Lakki conducted the autopsy on the dead body of Watan Khan on 8‑8‑1966 at 4‑30 p.m. and found 14 injuries on the dead body. In the opinion of the doctor the death of the deceased occurred due to haemorrhage and shock which was caused due to fire‑arm injuries sustained by the deceased. The challan of Mahi Gul alone was put up before the trial Court. The learned trial Judge convicted him under section 302, P.P.C. and sentenced him to life imprisonment. However, on appeal against his conviction and sentence, he was acquitted by the learned appellate Court. Zargul appellant was arrested on 14‑5‑1968 alongwith a 303 bore rifle ,ants, a dagger m a police raid at the thrashing floor in the vicinity of village Shehab Khel. After completion of investigation formalities his subsequent challan was put up before the Court. The learned trial Judge believed the ocular account of the three witnesses and the medical evidence corroborating the prosecution's case that the deceased had 14 fire‑arm injuries which has caused the death of the deceased and also the abscondence of the appellant for 21 months, sufficiently proved Zargul appellant guilty of the offence without any reasonable doubt, accordingly convicted him under section 302, P.P.C. and sentenced him to life imprisonment. A fine of Rs.500 was also imposed on him which on realization to be paid to the heirs of the deceased or in default to suffer further R.I. for one year. On appeal the learned Judges of a Division Bench of the High Court of Peshawar re‑examined the entire evidence and found on the facts of the case that there is no material discrepancy between the medical evidence and the ocular account of the witnesses to prove the case against the appellant and dismissed the appeal of the appellant by the impugned judgment. Leave was granted to the appellant through his jail petition by this Court, in addition to other point, mainly, on the ground of quantum of sentence to be suffered by the appellant. Mr. Hafiz S.A. Rahman. Advocate appeared on behalf of the appellant. The record of the case will show that Zargul appellant committed the murder of Watan Khan on 8‑8‑1966 at 5‑30 a.m. in the house of P.W. Abdullah Jan. After commission of the offence the appellant remained in abscondence until 14‑5‑1968 when he was arrested by the police in a raid at the thrashing floor in Shehab Khel. The appellant was main character in enacting this tragedy, although his brother Mahi Gul also performed the side role in the said murder but the prosecution had failed to prove its case against him beyond any shadow of doubt. Therefore, he was given the benefit of doubt and was acquitted from the charge of murder. As far as the charges of the said murder against the appellant is concerned, the ocular version of P.Ws. Abdullah Jan and Maizullah supported by Mst. Zaro Jana and Gulo Jan was very strong to support his conviction. Furthermore, on his arrest after 21 months the appellant did not give any cogent reason to satisfy the Court but the reason he had given was that he was doing labour job in Punjab. This reason given by the appellant for justifying his abscondence was disbelieved by the trial Judge for the reason that the fact was known to him that his brother Mahi Gul was involved in a murder case and undergoing his trial but the appellant returned from Punjab only after he was acquitted. Under the circumstances, we therefore, find that the prosecution in our view, has succeeded in proving its case beyond any reasonable doubt against the appellant. The learned trial Judge has rightly apprised the testimony of the witnesses, came to a correct conclusion and similarly, the learned Division Bench of the High Court on a fair scrutiny of the evidence has rightly upheld the finding of the trial Court. The learned counsel for the appellant did not press the merit of the case any further but mainly concentrated iris arguments upon the question of sentence. He urged that the learned High Court has failed to assess the quantum of sentence awarded to the appellant while maintaining the finding of the trial Court. It is a matter of record that tire offence was committed by the appellant on 8‑8‑1966 when the expression used in section 57, P.P.C. was "Transportation for Life" and not "Imprisonment for Life", the penalty then prescribed for transportation for life was scrvitude for 20 years. In 1972 when the Law Reforms Ordinance XII was promulgated, the said expression was substituted by I "Imprisonment for Life", the servitude of which is now 25 years duration. The h appellant was convicted under section 302, P.P.C. on 1C‑12‑1974 and sentenced to life imprisonment when the said Ordinance was already in force and the terns transportation for life had been substituted by the expression imprisonment for life. The same finding of the trial Judge was upheld by the learned Division Bench of the High Court. We, therefore, agree with the learned counsel for the appellant and alter the sentence of imprisonment for life of the appellant to that of "transportation for life" The result is that with the above modification the appeal is dismissed. MA.K‑/Z‑45/S Order accordingly.