1. ' IFTIKHAR HUSSAIN BUTT, J.--- The above captioned appeals arise out of the same incident and judgment, therefore, these have been consolidated and will be disposed of by this single judgment.
2. ' The brief facts forming the background of the instant appeals are that Mst. Nazeer Fatima, complainant, lodged an oral report at Police Station Kotli on 19-4-1996 at 5-15 p.m., alleging therein that Muhammad Aslam, the convict/appellant is paternal-nephew of her deceased-husband, Muhammad Bashir. The parents of Muhammad Aslam wanted to marry their son Muhammad Aslam with Mst. Shazia, the daughter of complainant but he refused to do so because he had developed illicit relations with his brother's wife Mst. Neelum. Because of the aforesaid reason Muhammad Aslam was animus to them and he had also blocked the public path of her family. She further stated that on 19-4-1996 at 4-30 p.m. Her daughter Mst. Shazia was fetching water from the well. As soon as she reached the backside of the house of Muhammad Aslam, Mst. Neelum wife of Muhammad Amjad who was armed with a stick wrongfully restrained her daughter and hurled abuses. On hearing the noise, Muhammad Bashir, the husband of the complainant, went to the place of occurrence whereas she remained in the courtyard of her house. Her husband forbade Mst. Neelum not to quarrel. In the meantime, Muhammad Aslam son of Muhammad Hussain also arrived there and after obtaining a stick from Mst. Neelum started beating her husband. He called Mst. Neelum in a loud voice to bring a gun from the house, who at once brought a gun along with cartridges at the scene of occurrence and handed over to Muhammad Aslam. The onvict/appellant loaded the gun and after aiming at her husband, Muhammad Bashir fired a shot with an intention to do away with his life. The fire hit upon the face of her husband who after receiving the shot fell down on the ground. The occurrence was witnessed by the complainant, her daughter Mst. Shazia, Muhammad Shakoor son of Muhammad Yagoob, Muhammad Naseem son of Nazeer Hussain and many other inhabitants of the village who had arrived at the spot.
3. Muhammad Bashir succumbed to the injuries while his way to the hospital. The occurrence was done by Muhammad Aslam and Mst. Neelum after consultation with a criminal intention and in furtherance of their common intention, on account of past enmity.
4. ' In light of the statement of the complainant, a case under sections 302, 341 and 34, Azad Penal Code was registered by Raja Abdul Qayyum Khan, 5.-I. Police (P.W.15).
5. ' The convict/appellant was arrested on 19-4-1996. On the same day, the brain and blood-stained concrete weighing about two kilo were taken into possession from the place of occurrence by Raja Abdul Qayyum Khan, S.-I. Police (P.W.15) vide recovery memo. Exh.P.B. Attested by Muhammad Habib (P.W.6) and Nisar Ahmad (P.W.7). On 19-4-1996 an empty of .12 bore gun was also recovered from the spot and secured vide recovery memo. Exh.P.C. In the presence of said Muhammad Habib (P.W.6) and Nisar Ahmad (P.W.7). After the autopsy, the blood-stained clothing of the deceased were taken into possession by said Raja Abdul Qayyum Khan, S.-I. Police vide recovery memo.
6. Exh.P.D. In the presence of said Muhammad Habib (P.W.6) and Nisar Ahmad (P.W.7).
7. ' On 21-4-1996 Muhammad. Aslam convict/appellant led to the recovery of .12 bore gun (No,2812) along with a stick from his house, which were taken into possession vide recovery memo. Exh.P.A.
8. Attested by Muhammad Naseem (P.W.4) and Muhammad Habib (P.W.6).
9. ' On 25-4-1996, Muhammad Azad Qureshi, Patwari (P.W.11) prepared the site plan Exh.P.H. In the presence of eye-witnesses and police.
10. ' On 6-5-1996, Raja Abdul Qayyum Khan, S.-I. Police (P.W.15) took into possession 32 pellets of .12 bore gun which were extracted from the body of the deceased during the post-mortem vide recovery memo. Exh.P.F. Attested by Malik Muhammad Nawaz Khan, A.S.-I. Police (P.W.8) and Muhammad Hanif constable police (P.W.9).
11. ' On 14-5-1996, Haji Pervaiz Akhtar, brother of the convict/ appellant produced licence No,13010/91 dated 19-9-1991 of .12 bore gun which was taken into possession by said Raja Abdul Qayyum Khan, S.-I. (P.W.15) vide recovery memo. Exh.P.G. In the presence of above named witnesses Malik Muhammad Nawaz Khan, A.S.-I. Police (P.W.8) and Muhammad Hanif constable No,2622 (P.W.9).
12. ' In the light of the document Exh.P.Y., it was reported by the Chemical Examiner vide his report dated 29-5-1996 that the brain, concrete and clothes (Shalwar and Qamiz) were stained with blood.
13. ' In the light of document Exh.P.Z., it was reported by Director Forensic Science Laboratory Punjab vide his report dated 30-5-1996 that the crime-empty was found to be fired by .12 bore gun allegedly recovered from Muhammad Aslam. The crime lead pellets and the plastic wad are the contents of a smooth bore cartridge which was found to be fired by .12 bore gun.
14. ' The post-mortem of the dead body of Muhammad Bashir, deceased was performed on 20-4-1996 by Dr. Muhammad Jahangir (P.W.12), Medical Officer, District Headquarters Hospital, Kotli, vide post- mortem report Exh.P.H. Which is marked as Exh.P.HH. During the course of judgment because site plan has already been marked as Exh.P.H., thus, post-mortem hereinafter will be read as Exh.P.HH.
15. He noticed four injuries on the dead body of the deceased caused by firearm. The injuries are detailed as follows:- "(1) An entry wound at Rt. Orbit (eye) extending from lateral side of nose above the maxillary bone (bone of cheek) below the superior temporal fossa. Wound was 5 inch in vertical 5 inch in horizontal plane in width and 4 inch in depth margins of the wound was inverted and lacerated.
16. Beside this entry wound 21 pellet entry wounds at the side of margin of the wound 5 entry and exit wounds at the Rt. Ear.
(2) 4 bruise marks at the back (at the lumber region) which extended from one side (Rt.) to the other side (Lt.)
(3) Scratch mark at the dorsal aspect of forearm.
(4) A bruise at the front at the middle part of the leg."
17. ' After necessary investigation, a challan was filed against the convict/appellant under section 302, Azad Penal Code on 21-5-1996 whereas benefit of section 169, Cr.P.C. Was extended in favor of Mst.
18. Neelum, the co-accused. Muhammad Aslam, accused, pleaded not guilty and opted for the trial.
19. Mst. Nazeer Fatima widow of the deceased (P.W.1), Mst. Shazia daughter (P.W.2), Muhammad Naseem (P.W.4) and Abdul Shakoor (P.W.5) furnished the ocular account of the prosecution case whereas Muhammad Habib (P.W.6), Nisar Ahmad (P.W.7), Malik Muhammad Nawaz Khan, A.S.-I.
20. Police (P.W.8), Muhammad Hanif Constable Police No,2622 (P.W.9), Zaffar Iqbal (Muharrar) Head Constable Police (P.W.10), Muhammad Azad Qureshi (Patwari) (P.W.11), Dr. Chaudhry Muhammad Jehangir (P.W.12) and Raja Abdul Qayyum Khan, S.-I. Police (P.W.15) were produced in support of the prosecution tale.
21. ' It will be relevant to point out here that in the light of the dictum of the apex Court of AJ&K in a case titled Muhammad Sarwar and others v. The State others PLD 2001 SC (AJ&K) 1; the evidence of Mst. Nazeer Fatima (P.W.1) and Mst. Shazia (P.W.2) was recorded separately on 11-7-2002 and 9-9- 2002.
22. ' On the completion of the prosecution evidence the attention of the accused was drawn for his explanation to the specific points and circumstances appearing in the evidence upon which the prosecution relied to prove its case against him, as required by section 342, Cr.P.C. On 18-10-2002, whereby Muhammad Aslam convict/appellant pleaded that the false evidence was produced against him on account of litigation and building of a shop. No evidence was led by the defence.
23. ' The trial Court also conducted the purgation of the prosecution witnesses who were found "Adil" according to the report of "Muzakki".
24. ' After conclusion of the trial the District Criminal Court awarded the sentence of life imprisonment (25 years) to Muhammad Aslam, accused, under section 302, A.P.C. Vide its judgment dated 21-1- 2003. Muhammad Aslam convict/appellant has challenged his aforesaid conviction and sentence before this Court whereas Mst. Nazeer Fatima, complainant, has sought enhancement of the sentence of Muhammad Aslam, convict/appellant, through a counter-appeal. The above mentioned judgment of the District Criminal Court dated 21-1-2003 is subject-matter of the appeals titled above.
25. ' Kh. Abdul Basit, the learned counsel for the convict-appellant argued that the District Criminal Court fell in grave error while passing an order of conviction and sentence because the prosecution has miserably failed to establish its case against the convict-appellant beyond any shadow of reasonable doubt. The learned counsel contended that the perusal of F.I.R. And challan report filed under section 173, Cr.P.C. Clearly shows the self-contradictory stance of the complainant, therefore, F.I.R. And the statement of Mst. Nazeer Fatima (P.W.1) are not worthy of any credence. The learned counsel also submitted that Mst. Neelum was falsely implicated by the complainant in the case, in whose favor the benefit of section 169, Cr.P.C. Was extended, which also proves the fact that the F.I.R. Is not reliable. The learned counsel pointed out that all the prosecution witnesses except Abdul Shakoor are closely related to the deceased, therefore, their evidence cannot be taken into consideration. The learned counsel maintained that no plausible motive for the commission of murder has been established by the prosecution; therefore, prosecution story is shrouded in mystery which cannot be relied upon. The learned counsel laid much stress upon the fact that the post-mortem report Exh.P.HH. Is also not reliable because according to the aforesaid report, 30 pellets were extracted from the brain of the deceased whereas according to the Forensic Science Laboratory report Exh.P.Z., 32 pellets were sent to the Expert for his examination. The learned counsel vehemently contended that according to the prosecution, .12 bore gun was recovered on 21-4-1996 but it was sent for the examination of Expert after delay of one month and five days, therefore, reliance cannot be placed on this piece of evidence. The learned counsel pressed into service the submission that according to the site plan Exh.P.H., the alleged shot was fired from point No,11 to point No,1 which is situated at the distance of 18 feet but according to the post-mortem report, injury No,1 was 5 inch in vertical and 5 inch in horizontal plane in width and 4 inch in depth although if a shot from .12 bore gun is fired from a distance of 18 feet, the pellets should have spread more in width on various parts of the body of deceased, therefore, the post-mortem report does not lend any support to the ocular version. The learned counsel submitted that according to the statement of Raja Abdul Qayyum, S.-I. Police Investigating Officer, he prepared an injury form and inquest report of the deceased but both the documents are not available on record, therefore, the statement of Investigating Officer being false is not worthy of any credence. Finally, the learned counsel submitted that the counterappeal/revision filed by Mst. Nazeer Fatima, is not tenable because the trial Court has committed an illegality while awarding life imprisonment to the accused. In support, reliance was placed on 1991 PCr.LJ (Sh.C. AJ&K) 1992.
26. ' Ch. Muhammad Ilayas, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the convict-appellant and submitted that the prosecution case is supported by the deposition of eye-witnesses whose presence is even admitted by the convict- appellant. The learned counsel argued that F.I.R. In the case was lodged promptly and eye- witnesses were named therein and the ocular version suffers from no material contradiction. The eye-witnesses, according to the learned counsel for the complainant, are unanimous on the point that the deceased was killed by a .12 bore gun shot, fired by Muhammad Aslam, accused, which hit on the face of deceased who in consequence of the shot fell down upon the earth and succumbed to the injuries while his way to the hospital. The learned counsel further submitted that the time and place of occurrence, the presence of the accused and eye-witnesses, as alleged by the prosecution, is even admitted by the defence as disclosed from the cross-examination and the suggestions put by the defence upon Mst. Nazeer Fatima (P.W.1). The learned counsel maintained that the evidence of eye-witness cannot be discarded on mere ground of relationship because they are neither inimical towards the convict-appellant nor have any motive to.Falsely implicate the accused in an offence of murder. The learned counsel pointed out that Abdul Shakoor (P.W.5) is an independent witness who neither is related to the complainant party nor animus to the accused, therefore, his statement is of very important nature, who has fully proved the prosecution tale. The learned counsel vehemently contended that Mst. Shazia (P.W.2) clearly deposed that Mst.
27. Naseem (P.W.4) and Abdul Shakoor (P.W.5) also witnessed the occurrence who had arrived at the spot but this portion of her statement was never challenged in the cross-examination, therefore, it stands proved. It was emphasized by the learned counsel that the alleged motive is not only the refusal of the accused to marry Mst. Shazia but also the blockage of public path coupled with an altercation taken place at 12-00 p.m. On the day of occurrence, motivated the convict-appellant to do away with the life of the deceased. The learned counsel for the complainant zealously argued that ocular evidence is natural and reliable, therefore, it is not necessary for the prosecution to prove motive. The learned counsel pressed into service the submission that the evidence of eye- witnesses is clear and convincing on the material aspects of the prosecution case; thus, minor discrepancies appearing in the evidence of recovery witnesses cannot make the case of prosecution doubtful. The learned counsel vigorously contended that the prosecution case not only stands proved by the ocular version of the eye-witnesses who have no animosity to falsely implicate the convict-respondent but it is also supported by the medical evidence as well as the evidence of recoveries of a stick and a gun recovered on the pointation of accused/respondent.
28. According to the learned counsel for the complainant, prosecution tale also stands corroborated by recovery of brain, blood-stained concrete, an empty recovered from the place of occurrence and clothes of the deceased wearing at the time of occurrence, along with the reports of Chemical Examiner and Ballistic Expert. The learned counsel submitted that the non-production of inquest report and injury form does not adversely affect the case of prosecution because in the instant case eye-witnesses have appeared in support of the prosecution version. The learned counsel further maintained that the trial Court committed an illegality while awarding sentence of life imprisonment to the convict-appellant instead of death sentence because once the trial Court reached the conclusion that the prosecution has fully proved its case then without mentioning the mitigating circumstances, the trial Court was not empowered to award lesser sentence because if a case of murder is proved against an accused person, normal sentence which is to be awarded, is death. In support of his contentions, the learned counsel relied upon the following authorities:--
(1) PLD 1983 SC 73; (2) 1997 PCr.LJ 1522; (3) 2000 PCr.LJ 1136; (4) 2001 PCr.LJ 524 and (5) 2001 YLR 236.
29. ' Sardar Zaheer Babar Chughtai, the learned P.P. Appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for complainant, Mst. Nazeer Fatima and submitted that the delay in sending the recovered gun to the Ballistic Expert for his examination is not fatal to the prosecution case on account of two reasons; (firstly) the ownership of the gun is not disputed because the convict-appellant has obtained a licence which was taken into possession, (secondly) the prosecution has produced Zaffar Iqbal (Muharrar) Head Constable Police (P.W.10), who has categorically deposed that after recovery, the gun remained in his possession and custody, therefore, the question does not arise for the tampering of the recovered gun.
30. ' We have given our due consideration to the arguments addressed at the bar, perused the record and the case-law cited. The case of the prosecution mainly rests on the account of eye-witnesses Mst. Nazeer Fatima (P.W.1), Mst. Shazia (P.W.2), Muhammad Naseem (P.W.4) and Muhammad Shakoor (P.W.5) coupled with the corroboratory and confirmatory evidence.
31. ' Let us first deal with the statements of the eye-witnesses. Mst. Nazeer Fatima, complainant appeared as (P.W.1) Who has fully supported the prosecution story. She has stated that on the fateful day Muhammad Bashir, her deceased husband, went to bring Pepsi Cola for his son Faisal and when he reached nearby the house of the accused, Mst. Razia and Mst. Neelum started pelting stones upon him. Meanwhile, the accused armed with a stick launched an attack upon him and thereafter he went into his house, brought a rifle and fired a shot upon the deceased which hit upon his right eye. After receiving the said injury, the deceased fell down upon the earth. She further deposed that the occurrence was witnessed by Naseem, Shakoor and her daughter Mst.
32. Shazia. She also stated that at the time of occurrence Mst. Shazia was also standing nearby her.
33. The aforesaid statement has been fully corroborated by Mst. Shazia (P.W.2), who in unequivocal manner supported the aforementioned deposition of Mst. Nazeer Fatima. Mst. Shazia deposed that she along with her mother witnessed the occurrence from the courtyard of her house. She further stated that Muhammad Naseem (P.W.4) and Abdul Shakoor (P.W.5) also saw the occurrence, who had arrived at the spot. It is very important to observe that the aforementioned portion of the statement of Mst. Shazia was not challenged in cross-examination, thus, it stands proved. Similarly, Mst. Nazeer Fatima also testified that the occurrence was witnessed by Muhammad Naseem (P.W.4), Abdul Shakoor (P.W.5) and Mst. Shazia (P.W.2) but during cross-examination not a single question was suggested to her with regard to the presence of Muhammad Naseem (P.W.4) and Abdul Shakoor (P.W.5), therefore, the above mentioned portion of her statement shall be deemed to have been admitted by the defence. In this respect, reference can be made to a case titled Mst.
34. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358, wherein the following principle was enunciated at page 247 of the report:-- "It is a settled principle of law that a piece of evidence or statement of the witness which goes against the interests of a particular party and that party does not question the correctness of that assertion or the deposition of the witness it shall be deemed to have been admitted."
35. ' The same view was affirmed in a case reported as Abdul Latif v. Safarish Ali Khan 2004 YLR 1663 at page 291, para.8 of the report in the following manner:-- "So far as the principle laid down in the authorities cited by the learned counsel for the appellant is concerned, it is correct that if the statement of a witness is not challenged in cross-examination, the same is considered to have been admitted by the opposite side..."
36. ' It will be important to observe that the trend of cross-examination and particularly the suggestions put to Mst. Nazeer Fatima suggest that the place of occurrence, the presence of accused at the spot, the injuries on the person of the deceased by firing of a gun and the presence of complainant along with the eye-witnesses at the place of occurrence have been admitted by the defence.
37. ' Muhammad Naseem (P.W.4) also deposed that he saw from the courtyard of his house that Muhammad Aslam, accused fired a shot of gun upon Muhammad Bashir, deceased, which hit upon his eye and he fell down on the ground.
38. ' Abdul Shakoor (P.W.5) testified that he saw the accused going to the place of occurrence, armed with gun. He tried to forbid Muhammad Aslam but he fired a shot with .12 bore gun upon Muhammad Bashir before his arrival, which hit upon the face of the deceased near his right eye who fell down.
39. ' In this manner all the eye-witnesses are unanimous on the point that Muhammad Bashir, deceased, was killed by the fire of Muhammad Aslam, accused, with .12 bore gun which hit him, who fell down and later on succumbed to his injuries.
40. ' After a careful perusal of above stated evidence of the eyewitnesses, we, arrived at the conclusion that the place of occurrence is the same, as alleged by the prosecution in F.I.R. The occurrence, as alleged by the prosecution, took place at the backside of the house of Muhammad Aslam. The witnesses are closely related to each other. They have also close relation to the deceased and the accused but in spite of that they are clear and positive on the point that Muhammad Bashir was killed by a shot of .12 bore gun fired by Muhammad Aslam, convict-appellant. The presence of Muhammad Aslam, convict-appellant, at the scene of occurrence was admitted by the defence.
41. The eye-witnesses, as mentioned above, though inter se related and also related to the deceased, had no grudge and animus so as to falsely implicate or substitute the convict-appellant in the commission of murder in place of some other culprit. The convict-appellantas real nephew of the deceased, therefore, it was humanly impossible for the eye-witnesses to involve a close relative in the case of murder instead of real culprit. The eyewitnesses do not nurse any grudge to implicate the accused, therefore, their depositions are clear, cogent, convincing and reliable.
42. ' The learned counsel vehemently argued that Mst. Nazeer Fatima, Mst. Shazia and Naseem P.Ws.
43. Are closely related to the deceased, therefore, being interested witnesses their evidence cannot be relied upon. The submission is not well-founded. It may be observed that because of mere relationship a witness cannot be described as an interested witness. An interested witness is one who falsely implicates an innocent person with the commission of offence with ulterior motive.
44. Therefore, mere relationship is ho ground for discarding the evidence of a witness, if his statement seems to be natural, convincing and truthful. A host of case-law owns this view but we have decided to quote only three cases here:-- ' In a case reported as Ihalid and another v. The State PLD 1983 SC 73, it was observed that mere relationship of witness with the deceased is no reason sufficient enough to discard his evidence.
45. Without being inimical or hostile to the accused his evidence cannot be discarded.
46. ' In a case reported as Abdul Aziz and another v. Muhammad Lal and others 2001 YLR 236, it was opined that the evidence of a witness cannot be discarded merely on the ground of relationship, if the evidence of a related witness rings true, he cannot be disbelieved simply because he is related to the concerned party.
47. ' In a case reported as Farman Ullah v. Qadeem Khan and another 2001 SCMR 1474 the following principle was enunciated at page 1486 of the report:- "It is well-established by now that mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, as a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
48. ' Coming to the instant case, besides the related witnesses, Abdul Shakoor is an independent witness who has fully supported the prosecution tale, therefore, the prosecution story has been fully proved by the eye-witnesses without any shadow of doubt and in such type of cases where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence without any corroboration but in the instant case, the version of the prosecution has been confirmed by sufficient corroboratory evidence.
49. ' Dr. Chaudhry Muhammad Jahangir (P.W.12) conducted the post-mortem of the deceased, who found fire-arm injury exactly on the same part of the body of deceased whereat the ocular version alleges. He was fired by Muhammad Aslam, accused. This fact clearly testifies the version of the eye-witnesses that the deceased was in fact fired at in the way as deposed. In this regard, an objection was raised by the learned counsel for the convict-appellant that alleged shot was fired on the deceased from a distance of 18 feet but according to the post-mortem report injury No,1 was 5 inch in vertical and 5 inch in horizontal plane in width and 4 inch in depth. According to learned counsel, in such-like case the pellets should have spread more in width on various parts of the body of the deceased. In the present case, in presence of pellets and plastic wad in the body of the deceased, it becomes apparent that the firing was made from a very close range but we are of the view that when the pellets enter in the body of the human being, they create their own way and directions. It has been amply proved that the deceased was killed by a .12 bore gun fire who after receiving injury fell down and later on died. Therefore, Medico-legal evidence in our opinion corroborates the material particulars of the prosecution version.
50. ' So far as the objection related to the recovery of 30 pellets and a plastic wad instead of 32 pellets is concerned, it is true that according to the post-mortem report only 30 pellets and a plastic wad were recovered but according to the recovery memo. Exh.P.F., 32 pellets and a plastic wad were taken into possession and sent for the opinion of Fire-arms Expert Exh.P.Z. According to our considered opinion it may be a mistake of counting of the small pellets, thus, it does not adversely affect the case of prosecution.
51. ' It has been persistently laid down by the august Court that the Expert's evidence, may it be medical or that of Ballistic Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case which is definite, trustworthy the confirmatory evidence is not of much significance. In any case, it cannot outweigh the direct evidence. 2000 PCr.LJ 1484.
52. ' The presence of blood-stained brain/concrete and its recovery from the site of occurrence also support the prosecution story. The deceased was killed at the place stated by the eye-witnesses.
53. The recovery of the clothes worn by the deceased at the time of occurrence is also in nature of corroboratory evidence. The recovery of stick and .12 J bore gun at the instance, of the accused, the empty, 32 pellets plastic wad along with licence of convict-appellant, is a further corroboratory piece of evidence. In light of the above stated confirmatory and corroboratory evidence we are satisfied that the ocular version is clear, cogent and trustworthy.
54. ' It is also argued by the learned counsel on behalf of convict-appellant that the delay in sending the recovered gun P.1 for examination of Expert has created much suspicion and doubt about its recovery. In this context, reliance was placed on a case reported as Muhammad Sharif Khan v. The State 1991 PCr.LJ (Sh.C. AJK) 1992 but the aforesaid authority is quite distinguishable from the facts of the instant case.
55. ' It will be pertinent to note that the principles laid down in a criminal case are always founded on facts and circumstances of each case and cannot be loosely applied in an omnibus manner. In the case referred above, the complainant was found interested, related and inimical. His testimony was not corroborated by any other independent evidence. The independent witnesses of the case were given up who appeared in defence and gave true account of the situation. Furthermore, a large number of witnesses appeared in defence to support the plea of alibi raised by the accused.
56. In these circumstances, the accused was acquitted of the charge. On the contrary, it has been observed by, the superior Courts in many cases that sending of recovered articles to the Expert with delay can only be termed fatal to the prosecution case, in case the defence has been able to establish malice on the part of the police. If the dispatches found to have been delayed, the said act on the part of the K Investigating Officer could be termed as an irregularity committed during the course of investigation but it is settled and well-entrenched principle of law that the procedural defects and irregularities and sometime even the illegality committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial. 2002 PCr.LJ 1785.
57. ' It will be relevant to point out that the defence neither levelled any allegation of malice against the Investigation Officer for sending the gun, weapon of offence, with delay nor any suggestion was put to him during his statement. The contention of the learned counsel is, therefore, repelled as being misconceived and without substance. The oral version, as stated above, was found natural, truthful and confidence-inspiring and the safe reliance can be placed upon the evidence. We may observe that the fact of their being no recoveries or of these being defective in itself is not sufficient to disturb the prosecution case if otherwise on evidence it stands proved.
58. ' The contention of the learned counsel that non-production of inquest report and injury sheet prepared by Abdul Qayyum, S.-I. (P.W.15) is fatal to the prosecution case, appears not to be well- founded, thus, does not require serious consideration because the preparation of inquest report or an injury form etc. Are material only if the case is not proved by convincing evidence. In the instant case, the place of occurrence and the cause of death of the deceased are not disputed and the post-mortem report has been duly proved by examining Dr. Chaudhry Muhammad Jahangir (P.W.12), therefore, the non-production of the above stated documents is not fatal to the prosecution case. In this regard, we are fortified by Muhammad Hanif Khan's case 2001 PCr.LJ 827 and Abdul Rashid's case 2001 PCr.LJ 524.
59. ' The next question which requires consideration is whether the inconsistency between the narration in the F.I.R. And the report filed under section 173, Cr.P.C. Adversely affects the case of the prosecution. The answer is in negative. It may be observed that oral F.I.R. Was perhaps lodged under circumstances of haste and soon after the commission of murder of the husband of complainant. Furthermore, the mere omission of the certain details of the prosecution case cannot damage her deposition or other ocular account which otherwise does not suffer from inherent defects or material contradictions. Therefore, the minor discrepancies do not demolish the prosecution story which appears to be plausible and is supported by the complainant and the other eyewitnesses.
60. ' We agree with this contention of the learned counsel for the convict-appellant that motive has not been fully proved and is shrouded in mystery but according to the facts of the case the motive is not of much importance. In the event prior to the occurrence, the parties have been exchanging hot words about the use of public path and they also nursed grudge on account of refusal of the convict-appellant not to marry to Mst. Shazia. In our considered opinion, these facts are not sufficient to do away with the life of the deceased by the convict-appellant. A careful perusal of the prosecution evidence shows that the murder was not pre-planned and pre-meditated. It appears that the deceased went to the place of occurrence and an altercation took place between the parties. The convict-appellant firstly attacked with a stick and when he found his sister injured falling down upon the earth he was deprived of the powers of self-control and he brought the rifle and fired a shot upon the victim. Therefore, mere absence of weakness of motive is no ground to suspect the truth of the prosecution case if it is otherwise proved by reliable evidence. 1997 PCr.LJ 1539 and 2001 PCr.LJ 524.
61. ' The evidence of the eye-witnesses thus, does not smack any taint. They were found "Adil" during purgation. The witnesses have been cross-examined at a great length and nothing useful has been brought out which could cause shadows on their statements. Their evidence stands corroborated by sufficient confirmatory evidence, thus, we have no doubt that the prosecution has succeeded to prove the case against convict-appellant and he was rightly convicted and sentenced by the District Criminal Court.
62. ' Now the question arises, as to whether there was any mitigating circumstances in the case not to award the death penalty. The perusal of the impugned judgment shows that the District Criminal Court has not recorded any reason except that in view of the facts and circumstances of the case the punishment of "Qisas" cannot be awarded, therefore, the accused was sentenced to life imprisonment (25 years).
63. ' We have given our dispassionate thought to the facts and circumstances of the present case and reached the conclusion that there was hardly strong motive for the accused to do away with the life of deceased. The murder was not pre-meditated and pre-planned and killing was done on a sudden impulse. The accused fired a single shot upon the deceased and he did not reload the gun.
64. The accused was not awarded death sentence by the trial Court who had the opportunity of recording the evidence of the prosecution and was in a better position to have its opinion on the appraisal of the prosecution evidence. It may be observed that there is ample case-law in support of the preposition that if murder cominitted is not pre-meditated and the motive is shrouded in mystery, the capital punishment is not awarded. In this context, reference may be made to a case titled Muhammad Mumtaz Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ
225. In such state of affairs, keeping in view the peculiar facts and circumstances of the case, it will not be appropriate to impose extreme penalty of death and the sentence of life imprisonment (25 years) will meet the ends of justice. Therefore, the contention of the learned counsel for the complainant about enhancement of penalty of death is not tenable, which is hereby repelled.
65. ' Now, the question which needs determination is as to whether the accused is entitled to the benefit of section 382-B, Cr.P.C., it transpires from the perusal of the impugned judgment that the trial Court has neither extended the benefit of section 382-B, Cr.P.C. Nor the learned members of the District Criminal Court applied their judicial mind towards this aspect of the case. It is now settled position of law that the trial Court after considering the circumstances of the case should decide whether discretion has to be exercised in favor of the accused or not because according to the view of apex Court the consideration of section 382-B, Cr.P.C. Is mandatory and its application is discretionary. 2001 SCR 231. On this account the trial Court committed an error not to record the reason to extend or not the benefit of section 382-B, Cr.P.C. To the accused. It will be useful to note that neither the convict/appellant has taken this point in the grounds of his appeal nor any argument was raised by the learned counsel for the accused about the aforesaid preposition.
66. Although, it was the duty of the accused to prove that he was entitled to the benefit of section 382- B, Cr.P.C. After considering the facts and surrounding circumstances of the instant case, we are of the view that the convict-appellant is not entitled to the benefit of the aforesaid provision.
67. ' For the reasons stated above, the appeals being devoid of merits are dismissed. Consequently, the impugned judgment dated 21-1-2003 is maintained.