1. ' MUHAMMAD NADIR KHAN DURRANI, J.--- F.I.R. No,79 of 2002 under section 302, P.P.C. Was registered with Police Station Zhob on 5-10-2002 at 5-30 p.m. On the Fard-e-Bayan. Of P. W.6 Muhammad Haq recorded at Civil Hospital, Zhob wherein the complainant staged that he being permanent resident of Afghanistan, since long is residing in Zhob Sheerani Bazar. One of his daughters was married to Muhammad Salim and the other was married to his nephew Abdul Hanan. Both his sons-in-law were residing with him in the same house. His son-in-law Abdul Hanan being vagabond and drug addict used to bring his vagabond and drug addict friends to the house, who was forbidden for number of times by him as well as by Muhammad Salim. Abdul Hanan offended by the same, usually remained away from the house. On the eventful night at about 4-45 a.m.
2. While all the inmates of the house were sleeping in their rooms, suddenly noise was heard from the room of Muhammad Salim, whereupon the complainant went there and saw the Salim receiving injuries was lying dead in the room and his daughter was weeping, she disclosed that Abdul Hanan committed the murder of Muhammad Salim. The complainant with the help of his daughter tried to catch hold of Abdul Hanan who being armed with a pistol pushing them aside escaped.
3. Muhammad Salim is stated to have received bullet wound on the right side of his chest and right knee.
4. ' P.W.8 Zil-e-Sajjad S.-I. Police Station Zhob was handed over the investigation of the case, he visited the place of incident wherefrom two empties of pistol were recovered. At hospital he prepared the inquest report. On 16-11-2002 the accused was arrested, the statements of P.Ws. Were recorded. On completion of investigation he handed over the file to Tahir Khan Niazi S.H.O. Who submitted the challan Exh.P./8-C, in the Court of Sessions Judge, Zhob for the trial of accused/appellant.
5. ' On the stated allegation formal charge under section 302, P.P.C. Was framed and read over to accused/applicant on 4-2-2003 to which he pleaded not guilty. Prosecution in order to substantiate the accusation examined as many as eight witnesses namely:-- ' P.W.1 Muhammad Nawaz, Patwari prepared sketch of the place of incident Exh.P./1-A.
6. ' P.W.2 Dr. Arif Shah, Medical Officer examined the dead body and issued M.L.C. Exh.P./3-A.
7. ' P.W.3 Aliya narrated the ocular account of the affair. P.W.4 Bibi Hajra is the eye-witness of the incident.
8. ' P.W.5 Asmatullah, police constable is witness to the seizure of empties of the cartridges taken into possession from the place of incident vide memo. Exh.P./5-A.
9. ' P.W.6 Muhammad Haq is the complainant who after reiterating the contents of his report produced the same as Exh.P./6-A.
10. ' P.W.7 Jamal Din, Judicial Magistrate recorded the statement of P.W.4 Bibi Hajra under section 164, Cr.P.C.
11. ' P.W.8 Zil-e-Sajjad was posted as Additional S.H.O. Police Station Zhob and was entrusted with the investigation of the case.
12. ' After prosecution closed its side accused was examined under section 342, Cr.P.C. Wherein he denied the evidence produced against him and claimed to be innocent. Accused also made statement under section 340(2), Cr.P.C., however, no defence witness was produced by him. The learned Sessions Judge, Zhob concluded the proceedings by means of judgmi nt, dated 18-6-2003 whereby accused/appellant has been convicted under section 302(b), P.P.C. And sentenced to life imprisonment and directed to pay Rs,1,00,000 as compensation to the legal heirs of deceased, in default of payment of compensation to suffer S.I. For six months. Accused has been extended benefit of section 382-B, Cr.P.C.
13. ' Ms. Saima Jibreel, the learned counsel appointed for the pauper convict argued that the statements of the witnesses of the incident i,e, P.W.3 Aliya, P.W.4 Bibi Hajra and P.W.6 Muhammad Haq are not inconformity with each other, identification of accused/appellant is doubtful.
14. Admittedly accused/appellant was being disliked by the above P.Ws., who have been examined with unexplained delay, therefore, in the stated circumstances probability of false involvement of accused cannot be ruled out. The learned counsel further argued that according to the Fard-e- Bayan the incident took place at 4-45 a.m. While the doctor stated about bringing of the dead body at 4-00 a.m., such variation of time creates doubt with regard to commission of offence as alleged by the complainant. The cause of death of deceased was not determined as no post- mortem was conducted. The trial Court ignoring the above factors convicted the appellant which being bad in law is not sustainable.
15. ' Mr. Sultan Mehmood, the learned State Counsel supporting the conviction and sentence awarded to the appellant contended that the cause of death of Muhammad Salim was not disputed by the defence and the medical evidence established the same. The statements of P.W.3, P.W.4 and P.W.6 coupled with the medical evidence and recovery of two empties from the place of incident proved the case of prosecution and accused was unable to bring on record any motive on the part of P.Ws. For his false involvement in the case. The finding of the trial Court being in consonance with the evidence available on the record calls for no interference.
16. ' The submissions made by the learned counsel for the parties considered, record of the case perused. The case of prosecution as unfolded in the F.I.R./Fard-e-Bayan is that P.W.6 Muhammad Haq on hearing of the noise, went to the room of Muhammad Salim where he was found lying dead on his cot and P.W.4 Bibi Hajra who happens to be the daughter of P.W.6 (complainant) and wife of deceased Muhammad Salim informed P.W.6 that accused/appellant Hanan shot Muhammad Salim. Meanwhile P.W.3 Aliya also came out from the room, she identified accused/appellar.t Abdul Hanan who happens to be her husband. However, Abdul Hanan who was armed with a pistol made good his escape from the spot. The dead body was shifted to hospital. P.W.2 Dr. Arif Shah, Medical Officer examined the dead body. Although the unnatural death of Muhammad Salim is not disputed but prosecution in order to establish the said fact examined P.W.2 Dr. Arif Shah, who in his statement stated that on 5-10-2002 he was posted as Medical Officer in D.H.Q. Hospital, Zhob, the dead body of Muhammad Salim was brought to hospital by one Muhammad Haq. On examination of the dead body P.W.2 noted following injuries:-
(1) "An entrance wound near the right outer side of last rib of the chest cavity oval in shape about 1/2 x 1/2 inch. This was an entrance wound and exit. It was found from conducting X-ray that a metallic piece of the left side of the chest cavity was present. X-Ray was done anterior and posterior.
(2) An entrance wound on the front just right lower knee joint oval in shape about 1/2 x 1/2 inch. This was skin entrance wound and there was no exit wound. X-ray was done which showed that a metallic piece on the right lower posteriorly leg was exist."
17. ' According to P.W.2 the post-mortem of the dead body was not performed on the request of his relatives, however, P.W.2 came up with opinion that the cause of death of Muhammad Salim was injuries on the vital organ liver left lung and heart. He further stated that the injuries were fresh and caused by fire-arm. P.W.2 issued M.L.C. Exh.P.3/A. In cross-examination P.W.2 stated that the dead body was brought to the hospital at 4-00 a.m. And he admitted that in case of injuries the cause of death cannot be ascertained without post-mortem. However, defence neither disputed the statement of P.W.2 nor his report stating about receiving of fire-arm injuries by Muhammad Salim on his vital organs resulting in his death and defence could not suggest that the death of Muhammad Salim was not because of the fire-arm injuries received by him on 5-10-2002 which leaves no room to doubt receiving of violent death by deceased Muhammad Salim in result of the fire-arm injuries on 5-10-2002. In such circumstances failure to perform post-mortem of death body cannot be termed as fatal to the case of prosecution. For adopting such view we take support of the judgment 1998 PCr.LJ 2022 wherein it has been held that:-- "The dead bodies of the three deceased were not subjected to autopsy but the omission is immaterial as their death by violence i,e, firing was not questioned by the learned counsel for the appellant. Besides, the inquest reports available on the record and the statement of Dr. Jan Alam (P.W.8) who had medically examined the deceased Habibur Rehman and Sirajuddin alias Sakhi in an injured condition also lead to the same conclusion. The same doctor had medically examined Muhammad Aslam and found an inlet fire-arm wound on his back, left side of the chest, with no exit wound."
18. ' To connect the accused/appellant with the commission of offence the case of prosecution rests on the statements of P.W.3 Aliya, P.W.4 Bibi Hajra and P.W.6 Muhammad Haq.
19. ' P.W.3 Aliya in her statement stated that she is wife of accused and they are living in the house of her father from last three years. On 5-10-2002 at about 4-00 a.m. She along with her father and mother were sleeping in the room of her father while her sister Bibi Hajra along with her husband Muhammad Salim were sleeping in another room of the same house. At about 4-00 a.m. She heard cries of her sister whereupon' she along with her father and mother rushed towards her room, meanwhile slie saw accused who was holding a pistol in his hand and was running in the courtyard towards the main gate, they entered the room of deceased Muhammad Salim who was lying dead on the cot. They were informed by Mst. Hajra that Muhammad Salim was killed by accused by firing at him. In cross-examination P.W.3 stated that on the night of the incident the accused had not come for spending the night in the house. She further stated that at the time of incident accused had wrapped his face with a cloth and she identified him in the light of electric bulb of the courtyard. She further stated that the distance between gate of courtyard and room where she was sleeping is about ten paces. She also stated that the accused while running in the courtyard turned for a moment. According to P.W.3 her father was the first who came out of the room just after the incident.
20. ' P.W.4 Bibi Hajra stated that on the night between 4-10-2002 and 5-10-2002 her husband Muhammad Salim was sleeping in his room and she was feeding her baby. The accused armed with a pistol entered their room and fired two shots at her husband, in result of which he died on the spot. It was about 4-45 a.m. She raised hue and cry. According to P.W.4 accused had muffled his face, she removed the cloth from his face and identified him. Just after firing the accused left and meanwhile her sister, father and mother came to their room. P.W.4 stated that they tried to catch hold of accused but he fled away from spot. The dead body was shifted to hospital. She also stated about appearing before the Magistrate on 26-11-2002 for recording of her statement under section 164, Cr.P.C. In cross-examination P.W.4 stated that the accused had left the house about ten days before the incident. She further stated that accused was drug addict even before his marriage. P.W.4 admitted that she was feeding her baby in sitting position and denied that as the baby was in her lap, therefore, she did not remove the cloth from the face of accused. According to P.W.4 the cloth with which the accused had covered his face was taken by accused with him and some part of the cloth was lying on his head when he was fleeing away from the spot and the accused was not muffled face when he was fleeing away. P.W.4 though claimed that her statement was recorded in the morning of 5-10-2002, further admitted that she was examined by police on 21-11-2002. P.W.4 admitted that when accused came to the house after the incident he brought biscuits and it has also been admitted by her that her father wanted to get dissolved the marriage between accused and Mst. Aliya.
21. ' P.W.6 Muhammad Haq in his statement stated that on 5-10-2002 he along with his wife and daughter Aliya were sleeping in their room. Deceased Salim and his wife Mst. Hajra were sleeping in their room. In the early morning he woke up on the cries of his daughter Mst. Hajra, he came out from his room and found accused present in the courtyard of his house. He was armed with a pistol. According to P.W.6 he and Mst. Hajra tried to catch hold of accused but he fled away. P.W.6 was informed by Hajra that Abdul Hanan killed Muhammad Salim. P.W.6 lled Ghulam Din who brought his pickup and they took the dead body of Muhammad Salim to hospital. Police on being informed about the incident by Muhammad Shah and Abdul Ahad Tehsildar reached hospital whereafter police came to the hospital and recorded his statement/Fard-eBayan Exh.P.6/A. In cross-examination P.W.6 stated that the room of Salim was adjacent to the Veranda of his room.
22. P.W.6 admitted that he did not hear gun shot reports. According to P.W.6 at the time of incident the electric bulbs were on. He admitted that when accused was fleeing away his back side was towards him and voluntarily stated that when his daughter Mst. Hajra removed the Chadar from the face of accused, he was identified by him. According to P.W.6 the Chadar/cloth was removed from the face of accused by his daughter in the room of deceased. According to P.W.6 the clothes and Chadar of accused are still lying in his house. According to P.W.6 the accused had entered the house by scaling the wall and he unchained the door of courtyard from inside. The accused fled away from the spot on motorcycle and came to their house after about one month of the incident.
23. P.W.6 while denied that accused had come to the house with some money which he brought from his father from Afghanistan admitted that when accused came to his house after one month of incident he had brought biscuits along with him. P.W.6 expressed his ignorance about recovery of 1,99,000 Afghani and Rs,500 from accused at the time of his arrest. P.W.6 denied that he was compelling the accused to divorce his daughter Aliya.
24. ' The statements of above P. Ws. Correspond to each other with regard to the day, time and place of incident relating to receiving of firearm injuries by Muhammad Salim and his death. All the three witnesses being residents of the house where the incident took place make them natural witnesses. The facts to the above extent can neither be doubted nor defence challenged the same.
25. However, accused denied his presence in the house . At the relevant time and his involvement in the incident but the efforts of accused in said regard failed. The statements of P.W.3, P.W.4 and P.W.6 could not be shaken with regard to identification of accused by them as the accused was well-known to them being nephew of P.W.6 and husband of P.W.3. All the witnesses stated about identifying the accused in the light of the electric bulb, while P.W.3 claimed about removing of the cloth by which the accused had covered his face. Although P.W.3 Mst. Aliya in cross-examination stated that the accused had wrapped his face with cloth and at the same time stated that she identified him in the light of electric bulb of the courtyard, which reflects that the face of accused was not fully covered as the cloth was removed by P.W.4 which according to her statement was on his head when accused was fleeing away, which fact is reaffirmed by P.W.6 in cross-examination.
26. Above all accused who though had been pleading that on the night of the incident he was not present in the house, during cross-examination of P.W. 6 came up with plea that on the night of the incident he had come to his house with some money which he had brought from his father from Afghanistan thereby he impliedly admitted his presence in the house on the day of incident.
27. However, if even the said plea of the accused is ignored then too the unimpeached statements of P.W.3, P.W.4 and P.W.6 leave no room to doubt presence of accused in the house on the night of the incident when he entered the room of Muhammad Salim with a pistol and after causing him fatal injuries fled away and came after one month of the incident for which he failed to advance any explanation. It would be not out of place to mention that the motive for the incident as reflected from the F.I.R. Is that the accused who was having bad company was also drug addict and he used to bring his friends to the house which was objected by his father-in-law as well as by Salim which offended him. The accused in cross-examination to his statement under section 340(2), Cr.P.C.
28. Admitted that he was drug addict although he denied bringing of his friends to his house but the evidence of P.W.3, P.W.4 and P.W.6 shows that the accused was not living in the house and his wife was sleeping with her parents. This fact is found to be supporting the plea of complainant that accused when not allowed to bring his friends to the house usually remained away. Furthermore accused himself had been pleading that his father-in-law was forcing him to divorce Aliya though the reason for the same as per accused was that his father-in-law demanded certain amount from the father of accused but the said plea of accused finds no support from the record, so much .So that father of accused did not turn up to support his son in said regard, in such circumstances the demand of P.W.6 Muhammad Haq for divorce of her daughter is found to be circumstance reflecting on the conduct and behaviour of accused/appellant.
29. ' Before drawing any final conclusion the objection of learned counsel for accused/appellant with regard to variation of time of bringing of the dead body to hospital and recording of statement of P.W.3 with delay of more than one month needs to be dealt with. According to report/F.I.R. The dead body was shifted to hospital at about 4-45 a.m. With P.W.2 Dr. Muhammad Arif stated that the dead body was brought to the hospital at about 4-00 a.m. However, the statement of P.W.2 and the M.L.C.
30. Exh.P.3/A are silent with regard to the time of examination of dead body. While presence of Doctor when the dead body was shifted to the hospital is also not reflected from he record. It seems that the doctor who came later to the hospital and the record of the hospital having no entry with regard to the time of bringing of the dead body stated the time of bringing of dead body approximately. Besides the said variation cannot be said to be of the nature which can brush aside the statements of P.W.3, P.W.4 and P.W.6 which despite exhaustive cross-examination could not be shaken with regard to time and manner in which incident took place.
31. ' Similarly recording of statement of P.W.4 on 26-11-2002 has been well-explained by P.W.8 who stated that due to probationary period (Iddat) the statement of P.W.4 could not be recorded earlier than 26-11-2002. Besides it is the lapse on the part of Investigating Officer which cannot be made reason for keeping the evidence of P.W.4 out of consideration when defence failed to impeach her statement and to bring on record any material to suggest that the delay was mala fide. The Division Bench of Peshawar High Court in its judgment 1998 PCr.LJ 2022 repelled the objection of defence with regard to delay in recording of the statement of eye-witnesses and observed as under:-- "However, the statement of P.W. Bakht Zaman, was admittedly recorded after five days. Ordinarily, delay in recording the statement of an eye-witness makes his credentials doubtful but in the present case the delay reflects on the efficiency of the police and not the credibility of P.W. Bakhat Zaman."
32. ' In addition to what has been discussed above it would be not out of place to mention that presence of P.W.4 Mst. Hajra as an eye-witness is reflected from very initial stage. The F.I.R. Not only has mention of her name, the same also states about her efforts made to catch hold of accused, therefore, the delay in recording her statement by Investigating Officer cannot be considered fatal when there exists explanation also.
33. ' Taking into consideration the evidence discussed hereinabove we are of the view that unimpeached statements of P.W.3 Aliya wife of accused, P.W.4 Mst. Hajra wife of deceased and P.W.6 uncle and father-in-law of accused coupled with the medical evidence and absconsion of accused leaves no room to doubt about committing of the crime under section 302(b), P.P.C. By accused/appellant. The trial Court taking into consideration number of circumstances including drug addiction of accused/appellant awarded him lesser punishment which has not been objected by prosecution also, therefore, we also feel not to interfere in the same. Accordingly, we find ourselves in agreement with the findings of the trial Court which is in consonance with the evidence available on the record and do not suffer from any impropriety or illegality making any room for interference. The conviction and sentence awarded to the appellant is upheld. The appeal having no merits is dismissed.