1. ' MUHAMMAD KHURSHID KHAN, J.-Gul Nawab son of Sadda Khan, aged about 35 years and a resident of Kotka Samand, stood his trial in the Court of Sessions Judge, Bannu, under sections 302 and 307, read with section 34, Pakistan Penal Code, for having committed the murder of his co- villager Shah Naraz, and for attempting at the lives of his four other co-villagers, namely, Mehr Gul Shah, Gul Badshsh, Amir Shah and Imtiaz Khan, in furtherance of his common intention with Mir Nawaz, Said Nawaz and Muhammad Sadiq, the absconding accused, by firing at them effectively on the second February 1977, at degarwela, in the limits of Kotka Samand, distant 6/7 miles from Police Station, Ghauriwala. At the conclusion of the trial, he was found guilty of the offences charged with and was convicted under section 302 read with section 34, Pakistan Penal Code, for the murder of Shah Naraz and sentenced to imprisonment for life and to pay a fine of Rs, 1,000 or in default thereof to suffer Rigorous Imprisonment for six months more. He was further convicted under section 307 read with section 34, Pakistan Penal Code, on four counts, and was sentenced to Rigorous Imprisonment for seven years and to pay a fine of Rs, 200 or in default thereof to suffer rigorous imprisonment for six months, on each count. All the sentences were ordered to run concurrently. The fine, if realised, was ordered to be paid to the heirs of the deceased, and the four injured persons of the case, as compensation.
2. ' The convict has challenged his convictions and sentences through the present appeal. Mehr Gul Shah complainant has also filed Criminal Revision No, 21 of 1979 for enhancement of sentence of life imprisonment to one of death which was admitted for hearing and notice was issued to the appellant. This judgment will dispose of the present appeal as well as the Criminal Revision Petition.
3. ' The facts on which the prosecution case is founded may be outlined thus: Said Nawaz and Muhammad Sadiq absconding accused are brothers inter se. The third absconding accused, namely, Mir Nawaz is, their first cousin. The appellant, Gul Nawab, is their collateral.
4. ' Mehr Gul Shah injured P. W. The complainant of this case, is a cousin of two injured P. Ws. ; namely, Gui Badshah P. W. 6 and Amir Shah P. W.
7. Shah Naraz deceased of this case was their cousin's son. Imtiaz P. W. 8, one of the injured persons of this case, is son of the aforesaid Amir Shah.
5. ' On the second day of February 1977, in the morning, a little after sunrise, Shah Naraz (deceased), Mehr Gul Shah, Gul Badshah, Amir Shah and Imtiaz Khan P. Ws. Left their village for proceeding to the bed of Kurram River, distant about one and a half miles from their village, for catching birds.
6. There they remained upto Peshinwela when they started for their own village. They reached the village at Deegar-Wela and while passing through the Chowk of Gul Nawab appellant on their way to their own houses, they saw Gul Nawab, Mir Nawaz, Said Nawaz and Muhammad Sadiq accused, armed with topaks, sitting in the Chauk. The deceased and his companions proceeded ahead and when they were about to reach their own Chowk, Gul Nawab accused shouted at Shah Naraz and immediately thereafter, all the four accused fired at Shah Naraz and his three companions as a result of which all of them were hit and injured. Shah Naraz died there and then. The accused then made good their escape. A number of villagers were attracted to the scene of occurrence. The dead body of Shah Naraz and the injured persons were carried to Police Station Ghauriwala, where Mehr Gul Shah made the report, narrating the above facts in substance.
7. ' The First In formation Report, Exh. P. A . Was recorded by Pir Asghar Ali Shah, Station House Officer, Police Station Ghauriwala (P. W. 11) at 7-45 p.m. The same day. He prepared injury statements Exh.
8. P. J. And P. N. In respect of Gui Badshah and Mehr Gul Shah respectively. He also prepared the injury statement Exh. P. Q. And inquest report Exh. P.
0. In respect of the dead body and injury sheets Exhs. PK/1 and P. L. Regarding Amir Shah and Imtiaz Khan respectively. The statements of the aforesaid three injured persons were also recorded by him. Thereafter, Mehr Gul Shah was sent to the Hospital under the escort of F. C. Muhammad Ghulam while Gui Badshah, Amir Shah and Imtiaz Khan were sent to the Hospital under the escort of F. C. Amanullah. The dead body was despatched for post-mortem examination under the escort of F. C, Gui Maraz. The S. H.
0. Then left for the spot, reaching there at 10-45 p.m. He inspected the spot and collected blood- stained earth from two different places and made them into two sealed parcels vide Memos. Exhs.
9. P. B. And P. C. Since it was dark then, he arranged for the protection of the spot during the night. On the following morning, he proceeded in search of the accused to their houses but with no success.
10. The accused were not present there. The S. H.
0. Then returned to the spot and prepared the site plan Exhs. P. S. And recorded his notes thereon.
11. He took into possession one Wad Exhs. P. 9, 13 Guard Board discs Exhs. P. 10, and 3 pellets Exh. P. 11 lying at the spot, and three pieces of pellets extracted from a wall vide memo. Exh. P. G.
12. ' The autopsy on the dead body of Shah Naraz was conducted by Dr. Mumtaz Khan, P. W. 1, on the 3rd February 1977, at 9-15 a.m. And the following injuries were found on external examination :- "(1) fire-arm inlet wound 1/4 x 1/4 in size on the upper margin of the pinna of the right ear which was scalp deep ;
(2) fire arm outlet wound 1/3" x 1/3' in size in the middle of the left ear in its external cavity,' corresponding to wound No, 1.
(3) A grazed wound 4' x 4" in size on the enterior aspect of the left side of chest 2" below the left clavical and 4' to the left of the midsternal line ;
(4) A grazed wound 4' x r in size on the enterior aspect of the left shoulder joint ;
(5) A grazed wound 1/4 x 4" in size on the enterior aspect of the left shoulder joint 40 below wound No, 4.
(6) A grazed wound x 4" in size on the enterior aspect of left shoulder joint 4' below wound No, 5
(7) A grazed wound 1/3 x 3" in size on the enterior aspect of the right side of chest in the 8th interspace and 3' to the right mid-sternal line ;
(8) Two fire-arm inlet wounds 4" x r each in size on the dorsal aspect of left fore arm 4' above the left wrist joint, two inches apart from one another ;
(9) Two fire-arm outlet wounds corresponding to wound No, 8 each 1/3' x 1/3' in size on the vental aspect of left for arm 4' the left wrist joint and 24' apart from one another ;
(10) A fire-arm inlet wound r x 1' in size on the dorsal aspect of right hand in the fourth metacarpal bone 3' proximal to be digital base ;
(11) A fire-arm outlet wound 1/3' x 1/3" in size on the lateral aspect of the metacarpal bone of the right thumb, corresponding to wound No, 10.
(12) A grazed wound 1/3" x 1/3', in size on the lateral aspect of the right forearm 4' above the right wrist joint ;
(13) A fire-arm inlet wound 1/4" x 4' in size chest deep half' to the left of mid sternal line in the fourth interspace ;
(14) A fire-arm inlet wound 4" x 4" in size on the right side of chest in the midaxillary line in the fourth interspace ;
(15) A fire-arm outlet wound 1/3 x 1/3' in size on the right side of chest half' behind the posterior exillary line in 9th interspace, a corresponding to wound No, 14 ;
(16) A fire-arm inlet wound 4" x in size abdomen deep on the left side of abdomen in the line of posterior exillary line 4' to the left of 3rd lumber spine.
(17) A fire-arm outlet wound 1/3" x113' in size in the left hypochondrium 4' to the left of enterior middle line and half below the rib margin, corresponding to wound No, 16."
13. ' On internal examination, the muscles, vessels and nerves of the base of the skull were found wounded. Death, in the opinion of the Doctor, occurred due to injuries 1, 13, 14 and 16 which were sufficient in the ordinary course of nature to cause death. After the post-mortem examination, one pellet and a piece of another pellet recovered from the dead body and a shirt belonging to Shah Naraz deceased were handed over by the doctor to the Foot Constable who, in turn, made over the same to the Investigating Officer.
14. ' Mehr Gul Shah, Amir Shah and Imtiaz Khan were examined by Dr. Abdullah Khan, P. W. 10, for their injuries. A number of fire-arm injuries were found on their person. After their examination, the doctor handed over some of their clothes to the Foot Constable who made over the same to the Investigating Officer. All the accused absconded after the occurrence. Since they could not be apprehended Pir Asghar Ali Shah, S. I., after complying with all the necessary formalities, completed the investigation and submitted the challan under section 512, Criminal Procedure Code. Sometime after, he was transferred and seems to have been succeeded by Sultan Ali, P. W.
9. On 12th March 1978, Gul Nawab accused appeared before, and was arrested by, him. A supplementary challan was then submitted against the said accused.
15. ' The report of the Chemical Examiner Exh. PR/I disclosed that the earth and shirt sent to him for examination were stained with blood. According to the report of the Serologist, Exh. PR/2, these two items were stained with human blood. This closed the action taken by the Police.
16. ' The prosecution examined 11 witnesses at the trial to support its case. The accused, Gul Nawab, when examined, pleaded not guilty, professed innoncence, and attributed the case to enmity with 'the eye-witnesses. He added further that they had also been pursuaded by Khairullah Khan and his brother Afzal Khan through Nadar Khan to depose against him because he had not supported Afzal Khan who was a candidate in the elections to the Provincial Assembly from his Constituency.
17. No evidence, however, was led in defence.
18. ' The trial Court believed the prosecution evidence and held the accused-appellant guilty of the offences for which he was charged, and convicted and sentenced him, as already indicated.
19. ' The question whether Shah Naraz died as a result of injuries received by him on the 2nd February 1977, is not disputed. It is even otherwise amply proved on the record that he died on account of the injuries received by him on the 2nd February 1977. The evidence of Doctor Mumtaz Khan P. W. Who performed the post-mortem examination on the dead body of. Shah Naraz clearly shows, that he had fire-arm injuries on his person All the injuries were ante-mortem and the death was instantaneous. From this medical evidence, it is established beyond doubt that whoever inflicted the said injuries had the intention to cause the death of the deceased person or intended to cause such bodily injuries as were in all probability sufficient in the ordinary course of nature to cause death. In our view, it is clear that the offence of murder has been established in the case of the death of Shah Naraz. We are also clear in our minds that the offence of attempting on the lives of the four eye-witnesses is also fully made out in this case.
20. ' The moot question in the case, however, is as to whether Gul Nawab appellant, in furtherance of his common intention with the three absconding accused, was responsible for causing the injuries to the deceased and the injured witnesses. In order to fix the guilt on the accused-appellant, the prosecution have, in the main, relied upon the ocular evidence of the four injured witnesses, namely, Mehr Gul Shah, Gul Badshah, Amir Shah and Imtiaz Khan P. Ws. ; the motive, the medical evidence and the abscondence of the accused-appellant. It may be stated here that the said witnesses supported the prosecution case in all its material particulars.
21. ' The trial Judge seems to have come to the conclusion that the ocular account of the occurrence was sufficient to prove the prosecution case beyond any shadow of doubt and that it also received added support from the abscondence of the appellant, which, in the circumstances of the case, had to be regarded as a corroborative piece of evidence.
22. ' Before we proceed with the discussion of the evidence having reference to the occurrence, we would like to deal with the question of motive. The motive, as set forth in the F. I. R. And affirmed by Mehr Gul Shah complainant in his statement at the trial, is that a year prior to the present occurrence, someone administered poison to a dog belonging to the complainant for which the accused were suspected and this suspicion eventually resulted in the exchange of abuses and an altercation between them. We see no reason to disbelieve the complainant on the point and are of the view that the said incident must have taken place and it could provide a motive to the accused for the commission of the crime charged with. It was, however, argued by the learned counsel for the appellant that the motive as alleged by the prosecution was inadequate which was a circumstance in favour of the accused as it strengthens the presumption of their innocence. We are unable to subscribe to the view so expressed. Instances are not wanting where murders have taken place over trifling matters. It may be stated that the want of motive or for that matter its inadequacy is immaterial if the other evidence is sufficiently reliable to connect the accused with the commission of the crime. In the instant case, we will show at the appropriate stage that the direct evidence produced in this case was sufficient to prove the guilt of the appellant with the result that the question of motive does not assume much importance.
23. ' We may now proceed to deal with the main occurrence, Mr. Muhammad Ishaq Khan, the learned counsel for the appellant, raised a number of points before us. The first point raised was that the injured witnesses of the case being related inter se as well as with the deceased person of the case must be regarded as interested witnesses. It was argued that they were also inimical towards the appellant and in such circumstances, exceptionally strong corroboration, by itself sufficient to establish guilt of the accused, was necessary. Since such a corroboration, according to the learned counsel, was wanting in this case, he maintained that on this score alone, the appellant was entitled to acquittal. This argument, in our opinion, goes much too far. It is well settled by authority that mere relationship of prosecution witnesses inter se and with the victim of the crime does not make them interested witnesses in legal sense. It is also well settled that relationship by itself does not render "witnesses" interested unless they are shown to have some motive to falsely implicate the accused. In the instant case, all the eye-witnesses were, no doubt, related inter se as well as with Shah Naraz deceased, nevertheless they are not shown having a motive to falsely implicate the appellant for firing at them. In the circumstances, they cannot be termed as interested witnesses in the sense in which the learned counsel for the appellant desires us to hold. But even if we assume for the sake of argument that they being related inter se as well as with the deceased of the case were either interested witnesses or were even hostile to the appellant, that would not make much difference.. The primary question is not whether a witness is hostile or disinterested witness but whether he is an honest or a dishonest witness. It is common knowledge that some times, even a hostile witness may speak truth whilst a totally disinterested witness may be persuaded into giving false evidence. It is precisely for this reason that Courts have recognised a rule of law that in the administration of Criminal justice, want of interest in the prosecution does not by itself stamp the evidence of a witness with truth and that it is the duty of the Judge to scrutinize the prosecution evidence on its own merit in each case. It has frequently been held by the superior Courts that the weight which is to be attached to the evidence of a witness depends, in a large measure, upon various circumstances, some of which are that on the face of it his evidence should be in consonance with probabilities and consistent with other evidence and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. We would, therefore, proceed to consider whether judged by this test, the prosecution has been able to prove its case against the appellant through the prosecution witnesses.
24. ' As already mentioned, the prosecution has sought to prove its case mainly through the eye- witnesses, all of whom were injured, together with the abscondence of the appellant. It is not in dispute, and indeed there is overwhelming evidence on the record to show, that the eye-witnesses of this case received injuries during the course of the same occurrence in which Shah Naraz was done to death. This fact also finds support from the circumstance that no suggestion was put to the eye-witnesses by the defence that they had sustained injuries at a place different from the one where Shah Naraz was fired at and hit. It is obvious, therefore, that the deceased and the eye- witnesses had received injuries, which in the case of Shah Naraz proved fatal, during the course of the same occurrence.
25. ' In the circumstances of the case, the place and time of occurrence are rather significant.
26. According to the prosecution, the occurrence took place near the Chowk of the complainant party indicated by points 1, 2, 3, 4 and 5 in the site plan Exh. PS. The Investigating Officer, on reaching the place of occurrence, collected blood-stained earth from there and sealed it into two parcels vide Memos. PB and PC. He also recovered one wad, card board discs and pellets from there. He prepared the site plan Exh. PS which shows the said place as the place of occurrence. We have minutely gone through the statements of the injured witnesses and find that the defence has not even suggested to any of them that the occurrence took place elsewhere and not at the place shown by the prosecution. In the absence of any material on the record to show the contrary, we entertain no doubt whatever that the occurrence in the case took place, as alleged by the prosecution, close to the Chowk of the complainant party.
27. ' As regards the time of occurrence, the learned counsel for the appellant, relying on the medical evidence having reference to the post-mortem examination of Shah Naraz deceased, streneously contended that the occurrence in which Shah Naraz was killed, and the eye-witnesses are said to have sustained injuries, took place in the early hours of the morning of second February, 1977; and not at Deegar-Wela as alleged by the Prosecution. In order to understand his view point, reference may be made to all the relevant facts bearing upon the point. The autopsy on the dead body of Shah Naraz was conducted by Dr. Mumtaz Khan P. W. 1, on the 3rd February, 1977, at 9-15 a. m. It was opined by the doctor that the death was instantaneous and that the time between death and post-mortem could be 26 to 28 hours. If this opinion of the doctor is taken as correct then it has to be held that the occurrence took place between 5-00 and 7-00 a. m. On 2nd February, 1977. It will be seen that this medical evidence seriously contradicts the evidence of four injured witnesses as to the time of occurrence according to whom the occurrence took place on the 2nd February, 1977, at Deegar-Wela i,e, round about 4-30 p. m. The contention raised by the learned counsel for the appellant was that since the injured witnesses were clearly belied by the medical evidence, it was highly dangerous to rely on their testimony for convicting the appellant. To support his contention that in such circumstances the medical evidence should be preferred to the ocular account, he placed reliance on the case of Sardar Baig v. The State (1).
28. ' We are not, however, impressed by this argument of the learned counsel for the appellant nor can we subscrible to the view that the authority cited by him can have any relevance to the case before us. That authority proceeded on its own facts and is clearly distinguishable. In that case, the most important aspect of the matter was that the wounds of inlet on the body of the deceased were found having blackened margins whereas according to the injured witnesses, the distance from which the shots, had been fired at the deceased was between 56 to 57 feet. Since the blackened margins could not possibly result from a shot fired from such a long distance, their Lordships held, and we must say rightly, that the medical evidence, in such circumstances had to be, preferred to the eye-witness account. Another distinct feature of that case was that there the eye-witnesses were found having given a version which was different to the manner in which the occurrence had actually taken place and they were found having tried to give a twist to the real facts. It was in these circumstances that the medical evidence was given preference over the ocular account of the occurrence. Since the aforesaid features on which their Lordships proceeded to lay down the rule are wanting in the present case, the rule so laid down cannot be invoked in aid of the argument advanced by the learned counsel for the appellant in this case.
29. Before we take upon ourselves the task of analysing the medical evidence in the case before us, we would like to make it clear that generally the evidence of the doctor is considered to be independent and more reliable and in case of conflict can be given preference over the ocular evidence. This is, however, not always true and there is indeed no hard and fast rule that medical evidence has always to be preferred to ocular evidence. As a rule, the expeit evidence, whether medical or of Ballistic Expert, is entirely in the (1) 1978 P Cr. L J 690 nature of confirmatory or explanatory of direct or other circumstantial evidence and is not of much significance in the presence of direct and creditworthy evidence. It is well settled that expert evidence cannot outweigh direct evidence not deficient in quality.
30. ' In the present case, the medical evidence placing the time of occurrence at the early hours of the morning of 2nd February, 1977, is not only belied by circumstantial evidence but is also falsified by the evidence of Dr. Abdullah Khan P. W. 10 who examined the injured persons of this case for their injuries. He examined Mehr Gul Shah and Amir Shah witnesses on 2nd February, 1977, at 10-00 p. m., while he examined Imtiaz Khan and Gul Badshah, the same night at 10-05 and 10-10 p. m.
31. Respectively. He opined that the injuries on the person of all these witnesses were of five to six hours duration. In other words, the injuries, according to him, had been caused to the four injured persons on the 2nd February, 1977, between 4-00 and 5-03 p. m. This opinion of the doctor is in conformity with the version given by the injured witnesses to the time of occurrence and clearly negatives the opinion expressed by Dr-Mumtaz Khan on the point. There is also another circumstances, and we must say a formidable circumstance, which belies the opinion of Dr. Mumtaz and the defence suggestion as to the time of occurrence. According to the post-mortem, the stomach of the deceased contained semi-digested food. The learned defence counsel has not been able to explain how semi-digested food could be found if the deceased had been murdered in the early hours of morning. The presence of semi-digested food fits in with the version of the eye-witnesses that all of them including Shah Naraz deceased had taken their meals at about Peshin Weta in the bed of Kurram River. After taking into consideration all the relevant facts and circumstances, we have reached the conclusion that the occurrence took place at Deegar Wela as alleged by the prosecution and not at the time as suggested by the defence.
32. ' It was next contended by the learned counsel for the appellant that the medical evidence does not fit in with the prosecution story as to the manner in which the occurrence is said to have taken place because according to the prosecution version, all the accused fired while being present at one and the same place whereas the post-mortem report showing the location of injuries at three different places on the person of Shah Naraz deceased suggests that he must have received the injuries in consequence of the firing having been made from three different places and directions.
33. It was said that the eye-witnesses do not seem to have seen and identified the assailants and that the former implicated the appellant at the instance of Khairullah Khan and his brother Muhammad Afzal Khan as the appellant had refused to support Muhammad Afzal Khan in the elections to the Provincial Assembly. It was suggested that a Suzuki Car had been supplied by their attorney Nadar Khan, for carrying the dead body and the injured witnesses to the Police Station and that he was also present at the police station when the First Information Report was recorded which was signed by him. According to the learned counsel for the appellant, Nazar Khan seems to have prevailed upon the complainant party to charge the appellant for firing at the deceased and injured witnesses. We find ourselves wholly unable to accept this contention. As indicated already, the post-mortem Report prepared by Dr. Mumtaz Khan is not as much creditworthy as the learned counsel for the appellant wants us to treat it. This is so especially in view of the fact that it has been disbelieved on a very important point pertaining to the duration of period between death and post-mortem of Shah Naraz deceased. In this state of affairs, the report loses much of its force and cannot possibly be depended upon in its entirety. Assuming, however, that it was a reliable piece of evidence for the limited purpose of determining the directions from which the deceased could possibly be fired at, it would not even then advance the defence case. The reason being that the deceased had pellet injuries on his person which seem to have been caused by more than one shot. During the process of firing, he must have moved about and could not stand like a statute. In the event of his movement, he could, in all probability, sustain injuries on those parts of his body on which he is shown having received the same in the post-mortem report, at the hands of the persons firing from one and the same place. The defence also endeavoured to suggest that the deceased must have been fired from the residential house of the three absconding accused. A reference to the site plan, Exh. PS, the correctness of which cannot be doubted would, however, show that there can be no substance in the suggestion so made by the defence. If the deceased and the injured witnesses had been fired from the house of the absconding accused, the card board discs and the pellets could not be found lying at points 10-11 and 12. The recovery of these articles from the aforesaid places fits in with the version of the prosecution that the assailants were towards the east of the place where the deceased and the injured witnesses were at the time of firing as shown in the site plan.
34. ' In a lengthy cross-examination, the defence has not been able to shake the testimony of the eye- witnesses. They have fully supported the prosecution case. No doubt they are related inter se as well as with the deceased of the case but this fact alone would not suffice to discard their testimony. It is manifest that they had no motive to falsely implicate the appellant in this case.
35. Taking the evidence of these witnesses as a whole, certain facts, about which there cannot be the slightest doubt stand out clearly. The first is that all these witnesses were injured by gun shots; the second is that they did not have any motive for implicating the appellant in a false case; the third is that the distance between them and the assailants was not more than thirty paces at the time of firing and the fourth is that one of the assailants, who according to them was Gul Nawab appellant, also shouted a Lalkara before the firing started. The only point which needs serious consideration, therefore, is whether the witnesses who claim to have identified the appellant had the opportunity and time to see his face at the time of occurrence and were, therefore, in a position to identify him.
36. On a careful analysis of the evidence, we can entertain no doubt in our minds that the witnesses were in a position to identify him. The witnesses as well as the assailants were on the thoroughfare at the time of occurrence, the distance between them not being more than thirty paces. The occurrence took place in a broad day light and both the parties were known to each other, as belonging to one and the same village. In such a situation, there could be no mistake on the part of the witnesses in identifying the appellant, more so when the latter also challenged the deceased by shouting a Lalkara. It follows, therefore, that the eye-witnesses had the opportunity and time to see the face of the appellant at the time of occurrence and were, therefore, in a position to identify him.
37. ' Coming now to the other point raised by the counsel for the appellant, it may at once be stated that Nadar Khan, Attorney of Khairullah Khan and Muhammad Afzal Khan, might have arranged for a Suzuki to carry the dead body and the injured witnesses from the metalled road to the Police Station, and he was undoubtedly present at the time when the F. I. R. Was recorded, but this would not materially help the defence. There is nothing on the record to show that Khairullah Khan and Muhammad Afzal Khan or their attorney Nadar Khan, even made an attempt to persuade the eye- witnesses or any one of them to involve the appellant in the case. A bare assertion made by the appellant, unsupported by any evidence or circumstance, cannot be regarded sufficient to substantiate the assertion made by him. But even if it be assumed for the sake of argument that Khairullah Khan and Muhammad Afzal Khan or for that matter Nadar Khan were interested in involving the appellant, we are not, in the circumstances of the case, prepared to believe that they could persuade the eye-witnesses to go to the length of charging, an innocent person.
38. ' It will not be out of place to mention here that the learned counsel for the appellant, while supporting his contention with regard to the consultations and deliberations between the complainant party and Nadar Khan, laid much stress on the point that there was inordinate delay in lodging the First Information Report. In this connection, it may once again be pointed out that the occurrence took place at Deegarwela 1. e. Round about 4-30 p. m. While the First Information Report was lodged at Police Station Ghauriwala at 7-45 p. m. i. e. About 3.1/4% hours after the occurrence, the distance between the Police Station and the scene of occurrence being 6/7 miles.
39. It cannot be denied that some time is invariably consumed in making preparations for carrying the dead body from the place of occurrence to the house of the deceased and then for taking it to the Police Station of the mortuary, as the case may be. For this purpose, relatives and some other residents of the village are normally collected. In the instant case also, this process must have taken some time. Again, it is in the statement of Pir Asghar Ali Shah S. I. (P. W. 11), that the road between Kotka Samand where the occurrence took place, and village Shamshi Khel which lies in between the place of occurrence and the Police Station Ghauriwala, is not motorable. This distance must have, therefore, been covered on foot in more than an hour while taking the deseased and the injured witnesses to the Police Station. Further, the conveyance on the metalled road could not readily be available and it appears that considerable time had been spent in procuring a conveyance for the purpose of carrying the dead body and the injured witnesses to the Police Station. Keeping all these facts and circumstances in view, we cannot persuade ourselves to hold that any delay in lodging the First Information Report took place in this case, or that if there was any such delay, it was a deliberate one on the part of the complainant party. The occurrence having taken place in a broad day light and the injured witnesses having identified their assailants at the time of firing, there could be no question of consuming any time in consultations or deliberations either amongst themselves or with outsiders.
40. In view of the above discussion, we are satisfied that the prosecution ha succeeded to prove its case against the appellant beyond reasonable doubt and that his conviction by the trial Court was completely warranted.
41. ' The only question which now remains to be decided is as to the propriety of the sentences passed upon the appellant by the trial Court. He has been awarded lesser penalty of sentence of imprisonment for life and has also been fined Rs, 1,000, for the murder of Shah Naraz deceased. The trial Judge supported his view point for awarding lesser penalty of sentence by reasons appearing in the impugned judgment. We are of the opinion that in awarding the lesser penalty provided by the law, he did not act arbitrarily not can his judgment be said to be unreasonable. Likewise, the sentences awarded for murderous assault on the lives of the eye-witnesses also do not appear to be disproportionate to the offence committed. In the circumstances, the sentences awarded by the lower Court do not call for interference by us.
42. ' The result, therefore, is that the appeal and the Revision Petition both fail and are accordingly dismissed.