DOST ALI KHAN Versus THE STATE
SARDAR MUHAMMAD RAZA, J .--- This is an appeal by Dost Ali Khan son of Maizal of Noor Hamdi Killa, District Bannu, who, under section 302/307, P.P.C. was convicted and sentenced to death and an imprisonment of 10 years .with a fine of Rs.25,000 and Rs.10,000 respectively by the learned Additional Sessions Judge, Bannu in his judgment, dated 18-9 1994. Connected therewith is a Murder Reference made by the Court. Gul Ayub has filed a separate revision for the award of compensation under section 544-A, Cr.P.C. that failed to be granted. This judgment in the instant Criminal Appeal No.28 of 1994 shall also decide Murder Reference No.3 of 1994 and Criminal Revision No. 10 of 1994.
2. Brief facts of the prosecution case are that Raees Khan son of Mir Azam of Noor Mamdi Killa, District Bannu on 21-8-1985 at morning meals time alongwith his brother Gul Ayub, mother Gillamina and son Hazrat 'Khan (aged six years) were busy plastering the roof-top of their shop in their village when Dost Ali Khan son of Maizal came there while armed with gun and fired 5 to 6 shots at them. Raees Khan was hit on the right arm and abdomen while his son Hazrat Khan received three fire-arm injuries on the shoulder. The mother and the brother escaped unhurt.
3. The injured, at 11-00 hours, were taken to Police Station Domail where A.S.-I. Said Akbar (P.W.5) recorded F.I.R. No. 169 at the instance of injured Raees Khan which subsequently happened to be a dying declaration, because on his way to Civil Hospital, Bannu. Raees Khan succumbed to his injuries at Bannu City. The Investigating Officer proceeded to the spot prepared the site plan and made the recoveries of a splinter of copper bullet, another-spent bullet and a piece of liver of the deceased which had come out of the outlet wound located in the front. The accused had immediately decamped on 21-8-1985 and arrested on 26-4-1993, i.e. about seven years and eight months after the occurrence. He pleaded not guilty to the charge of murder and the attempted murder under section 302/307, P.P.C.
4. In the instant case there is no enmity at all between the parties except that somewhat prior to the occurrence the complainant had forbidden the accused from ploughing the contiguous field with tractor. There is no reason at all for bringing a false charge. It is further substantiated by the fact that in a broad daylight occurrence, the one brought about was a single charge with no possible attempt at substitution. The number of shots fired by the accused as given in the F.I.R. is supported by post-mortem as well as medico-legal report of the deceased and the injured respectively. There are two inlet wounds on the deceased, three on the injured and one spent bullet is recovered from the wall. The immediate abscondence, which remained for seven years and eight months is such a long period which by itself raises all the necessary presumptions against the accused. There is such strong evidence on the record that the present abscondence goes to not only supported further but is supported by.
5. Although the case is fully supported by natural eye-witnesses on the spot yet it should get re-enforced by the F.I.R., which is turned into a dying declaration. It is prompt and hence one could not expect the victim to have gone into shock; Its motive is proved and the narration given therein is sufficiently supported by subsequent recoveries and also from the fact that fresh harrows were found in the field and all the mud used for plastering was available on the spot furnishing indication of fresh plastering as well. The case of the prosecution is fully proved upto the hilt. We are of the view that the learned trial Court had recorded both the convictions correctly.
6. The only matter upon which the learned counsel for the appellant seriously stressed was the question of sentence. He was of the view that the motive in the instant case pertaining to ploughing by tractor has not been fully established and hence it being shrouded in mystery, the benefit thereof be given to the accused. While on the other hand, it was alleged by the learned counsel for the complainant as well as the State that it was not a case of mitigating circumstances and the death sentence was rightly awarded in view of the fact that the assailant had behaved with cruelty. Not only that he repeated the attack of fire 5 to 6 times but he even not spared a minor boy of six years. This was the issue, which consumed most of the time in arguments. Having gone through the entire evidence and the circumstances of the case, we are constrained to suspect that the time of occurrence and the time of ploughing with tractor are not properly distinguished by the prosecution. By giving the time of occurrence as "Subh Roti Vela" and that of the event of tractor (in the evidence) as morning time, the gap between the two is rather magnified. The first informant namely Raees Khan in his dying declaration has not given the exact time of the previous mishap. In the circumstances, we are not in a position to correctly assess the state of mind of the accused at the time of occurrence i.e. the state of mind that he ought to have had worked under. The benefit of this situation should certainly i go to the accused. We, therefore, intend to modify the conviction.
7. Consequently the appeal is dismissed qua the conviction under section 302, P.P.C. but is accepted qua the sentence which is hereby reduced I from death sentence to imprisonment for life with no benefit under' section 382-B, Cr.P.C. and a fine of Rs.10,000 but in default of payment of which the appellant shall further suffer imprisonment for two years. He is further ordered to pay a sum of Rs.60,000 as compensation under section 544-A, Cr.P.C. in default of payment of which he shall suffer imprisonment for six months in addition to the mode of recovery already mentioned in the section.
8. His conviction under section 307, P.P.C. and sentence of imprisonment for ten years thereunder is also upheld but instead of fine he is sentenced to pay Rs.10,000 as compensation under section 544-A, Cr.P.C. which shall be paid to the victim . Hazrat Khan, in default of payment of which he shall suffer imprisonment for six months, which shall run consecutive to all the above sentences above in addition to the mode of recovery provided -in the section itself. No benefit under section 382-B, Cr.P.C. shall be given.
9. Murder Reference No.3 of 1994 is answered in the negative while Criminal Revision No. 10 of 1994 (Gul Ayub v. Dost Ali Khan) is accepted as above.
N.H.Q./2058/P Sentence reduced