' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No. 1979 of 2004 filed by Asif Iqbal, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Sargodha vide his impugned judgment dated 8-11-2004 to undergo imprisonment for life under section 302(b), P.P.C. And to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default six months' S.-I. With the benefit of section 382-B, Cr.P.C.
' Criminal Appeal No.2018 of 2004 filed by Atta Muhammad against the acquittal of Mst. Nooran Bibi and Criminal Revision No.206 of 2005 filed by Atta Muhammad against Asif Iqbal for the enhancement of sentence shall also be disposed of through this single judgment.
2. Case of the prosecution is that on the night falling between 19/20-5-2002 at 4-30 a.m. Asif Iqbal accused while armed with .12 bore gun resorted to firing at his father Matta Muhammad a retired military employee. The fire-shot landed on the chest of said Matta Muhammad, thereafter, the accused Asif Iqbal while brandishing crime weapon fled away.
' Motive behind the occurrence was that the accused Mst. Nooran Bibi is woman of easy virtue, there was scuffle between Mst. Nooran and Matta Muhammad on this very point, therefore, at her instigation tjie accused Asif Iqbal committed the murder of Matta Muhammad.
3. The police investigated the case on its merits and recommended the accused persons for challan. After the submissions of challan copies of relevant documents were delivered to the accused persons as envisaged under section 265-C, Cr.P.C. And on 19-8-2002 formal charge under section 302 read with section 109, P.P.C. Was framed against the accused persons, to which they did not plead guilty and claimed trial. .
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned A.P;P. Tendered in evidence report of Chemical Examiner Exh.P.M., report of Serologist Exh.P.N. And closed the prosecution case, then, the statement of the appellant under section 342, Cr.P.C. Was recorded in which he pleaded innocence.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that there is no direct evidence regarding motive against the appellant, that allegation against co-accused Nooran Bibi mother of the appellant having illicit relation has got no proof on the record, that Nooran Bibi has not entered into second marriage after the death of her husband, that there is conflict between ocular account and medical evidence, that according to complainant Atta Muhammad shot was fired from a distance of two feet but the doctor, who conducted post-mortem examination P.W.4, stated during cross- examination that shot was fired from a distance of 20 feet, that Shamash Din P.W.10 has developed illicit relations with sister of both deceased and complainant while Zeenat Bibi eye-witness had also developed illicit relations with Qadeer and Mutta deceased used to reprimand them and in fact according to learned counsel both of them murdered the deceased, that neither Atta Muhammad nor Zeenat Bibi was present at the spot at the time of occurrence, that one Syed Ijaz D.S.P. (not produced) had declared the appellant innocent, that both complainant Atta Muhammad and Zeenat Bibi admitted during cross-examination that Syed Ijaz D,S.P. Had declared them along with Shamash Din and Qadeer as guilty in this case but in the meanwhile, complainant filed writ petition before this Court and challan was submitted in the trial Court against the appellant, that learned trial Court had come to the conclusion that motive is shrouded in mystery, that on the same evidence co-accused Mst.
Nooran Bibi mother of the appellant was acquitted by the learned trial Court, that case had been planted by the complainant party on the appellant and his mother Nooran Bibi, that prosecution failed to prove its case against the appellant and he is entitled to acquittal. - '
6. On the other hand, learned A.P.G. Assisted by learned counsel for the complainant submits that appellant being son of the deceased, there is no chance of false implication or substitution, that both the eye-witnesses*, namely, Atta Muhammad and Mst. Zeenat Bibi have fully supported the prosecution case, that appellant is nephew of both the eye-witnesses, that ocular account is fully corroborated by the statement of Shamsh-ud-Din, who had seen the appellant while running from the spot and that learned trial Court has already taken a very lenient view in this case. They both support the judgment of the learned trial Court.
7. I have heard learned counsel for the parties at a great length and have also gone through the record- with their able assistance. Occurrence in this case had taken place on 20-5-2002 at 4-30 a.m. Within the revenue estate of Chak No. 126 NB at a distance of 4-1/2 K.Ms. Away from Police Station, Sillanwali while the matter was reported to the police on the same day at 7-15 a.m. By Atta Muhammad complainant brother of Mutta Muhammad deceased. Two eye-witnesses, namely, Atta Muhammad complainant and Zeenat Bibi were examined as P.W.8 and P.W.9 respectively.
Appellant is real son of Mutta Muhammad deceased and nephew of both the eye-witnesses. Mst.
Nooran Bibi co- accused/mother of the appellant was acquitted by the trial Court and appeal against her acquittal is also pending before this Court and it was ordered to be heard -along with appeal of Asif appellant. I have gone through the statements of Atta Muhammad, Mst. Zeenat Bibi and Shamsh- ud-Din, who is brother-in-law of both deceased and complainant of the F.I.R. And seen the appellant while running from the spot. It is a case of single accused so there was no question of substitution because substitution is a rare phenomenon. Appellant has killed his father in his house.
' Atta Muhammad P.W.8 and Mst. Zeenat Bibi P.W.9, who are uncle and maternal aunt of the appellant, why they would leave the actual culprit and would falsely implicate the appellant in this case because they are the natural witnesses, Mst. Zeenat Bibi lives in the same house where the occurrence had taken place while Atta Muhammad lives in an adjacent house so their presence at the spot is fully proved. Learned counsel for the appellant has laid much stress on the investigation of Syed Ijaz D.S.P. That he had declared the appellant as innocent and found Atta Muhammad,,Mst.
Zeenat Bibi, Shamsh-ud- Din and Qadeer as guilty in this case. If this was the position, then, the appellant had a lot of chances to produce him in his defence or he could have moved an application before the trial Court in order to summon him as Court witness but he failed to do so.
Ocular account is fully corroborated by . Medical evidence. Complainant Atta Muhammad and Mst.
Zeenat Bibi are rustic villagers and one can't expect from them about the correct distance between appellant and the deceased. I have gone through the postmortem report, there is no blackening or burning on any of the injury, which shows that shot was fired from a distance and it is a settled law that when a shot is fired from a distance then pellets spread and all the injuries have been caused with one shot having same dimension.
' After having heard learned counsel for the parties and going through the evidence available on record, I am of the considered opinion that prosecution has been successful in proving its case against the appellant beyond any shadow of doubt and already a very lenient view has been taken by the learned trial Court by not awarding the death sentence to the appellant and I would not like to interfere, at this stage, in the sentence of the appellant because matter relates to year 2002, five years have passed so conviction and sentence awarded to the appellant by the learned trial Court is upheld.
' As far as, appeal against acquittal filed against Noor Bibi is concerned, that's, dismissed for the reasons that she did not cause any injury to the deceased, even she did not raise "Lalkara" and the allegation against her is of conspiracy but no time, date and place is mentioned in the F.I.R.
' So far as, revision petition is concerned, that's also dismissed for the reasons mentioned above.