' M. NAEEM ULLAH KHAN SHERWANI, J.---Muhammad Farooq son of Muhammad Suleman along with Muhammad Khan, Maqsood Ahmad and Salimullah was tried by a learned Sessions Judge, Bhakkar for the murder of Sher Zaman, brother of the complainant. The said learned Judge by virtue of his judgment, dated 5-9-2002 found Muhammad Farooq guilty of the said charge, convicted him under section 302(b), P.P.C. And sentenced him to undergo imprisonment for life. He was also ordered to pay an amount of Rs 1,00,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. In the eventuality of non-payment of compensation amount he was ordered to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was however, accorded to him. All others were acquitted of the charge.
2. Muhammad Farooq convict has approached this Court by filing the instant appeal to call in question conviction and sentence passed against him by the learned trial Judge. Muhammad Khan complainant has filed Criminal Revision No,971 of 2002 against the convict seeking enhancement of sentence to the maximum provided under the law. It was ordered to be heard along with the instant appeal. Both these matters are being disposed of together through his single judgment. The complainant also filed Criminal Appeal No,1705 of 2002 against acquittal of Muhammad Khan son of Muhammad Suleman, Maqsood Ahmad and Saleemullah. This Criminal Appeal came up for hearing before a Division Bench of this Court on 11-11-2002 and was dismissed in limine.
3. Muhammad Khan complainant puts the matter succinctly by stating that on 11-4-2002 at about 8-00 a.m. He, his brother Sher Zaman, Ahmad Khan, Abdul Karim were reaping wheat crop from his fields, situate in village Bloch Wala. All of a sudden Farooq armed with a .12 bore pistol, Muhammad Khan armed with Sota, Maqsood and Saleemullah empty handed arrived there. At the very outset Saleemullah exhorted a proverbial Lalkara to the effect that Sher Zaman would not be permitted to go alive which was immediately followed by a shot made by Farooq striking Zaman at back of his chest. He fell down. Thereafter all the accused while still raising Lalkaras left for their residence.
Complainant along with his companions attended Sher Zaman who had succumbed to his injuries instantaneously.
4. Motive alleged by the complainant was that the accused entertained a suspicion that Sher Zaman had developed illicit liaison with Kauser Bibi, daughter of Suleman and sister of Muhammad Farooq, Muhammad Khan and Maqsood Ahmad and feeling aggrieved of this fact all the accused after having counselled with each other killed Sher Zaman. Occurrence in its entirety was viewed not only by the complainant but also by Ahmad Khan and Abdul Karim. Leaving the witnesses at the spot to guard against the dead body, Muhammad Khan complainant left for the police station to made a report of the occurrence. On reachir y the police station he dictated his statement (Exh.P.H.) to Habibullah S.-I. (P.W.10) at the police station on the same day at 8-30 a.m.
5. Extensive investigation was launched by Habibullah Khan S.-I. (P.W.10) succeeding registration of case. After recording F.I.R., he went to the place of occurrence, inspected the dead body of Sher Zaman deceased, prepared injury statement (Exh.P.E.), inquest report (Exh.P.F.) and despatched the dead body to the mortuary for post-mortem examination under the escort of Ahmad Sher constable. He collected blood stained soil from the place of occurrence through memo. (Exh.P.1). He also prepared rough site plan (Exh.P.J.) of the place of occurrence. He arrested Muhammad Farooq accused on 18-4-2002. On 21-4-2002 Muhammad Farooq accused led to the recovery of .12 bore pistol (P.4) along with two live cartridges (P.5/1-2) from his residential Kotha which were taken into possession vide memo. (Exh.P.C.), duly attested by the witnesses. He examined all the relevant witnesses under section 161, Cr.P.C. After completion of investigation challan against the accused was submitted.
6. On receipt of challan, the learned trial Court after observing legal formalities framed charge against the accused to which they pleaded hot guilty and claimed to be tried. Accordingly prosecution was directed to produce its evidence against the accused.
7. Prosecution opted to produce as many as ten witnesses to prove its case against the accused.
' Dr. Nisar Hussain Medical Officer, D.H.Q. Hospital Bhakkar conducted autopsy on the dead body of Sher Zaman and fond nine entrance wounds each of size of 1/2 c.m. On back of chest. According to him injury No,l was sufficient to cause death in the ordinary course of nature. He prepared post- mortem report (Exh.P.F.). X-ray film is (Exh.P.G.). Muhammad Khan complainant (P.W.8) and Ahmad Khan (P.W.9) are eye-witnesses of the occurrence. They in a nutshell reiterated story of the F.I.R.
They fully supported the prosecution version. Muhammad Arshad (P.W.6) testified to the factum of recovery of pistol (P.4) at the instance of appellant.
8. The learned Prosecutor after tendering in evidence report of Chemical Examiner (Exh.P.L.) and that of Serologist (Exh.P.M.) declared the prosecution case lose.
8A. Statement of Muhammad Farooq appellant was recorded under section 342, Cr.P.C. In order to provide him full opportunity to explain all the incriminating evidence or circumstances appearing against him on the surface of. Evidence. He denied correctness of the allegation and claimed his profound innocence in the matter. He opted not to appear in witness-box under section 340(2), Cr.P.C. In disproof of accusations brought against him. He produced copy of F.I.R. No,106 (Exh.D.B.) and birth certificate (Exh.D.C.) in his defence.
9. The learned trial Court minutely attended to all items of evidence for and against the appellant and pronounced verdict of guilt against him leading to his conviction and sentence.
10. Learned counsel for the appellant submits that it was an unseen incident taken place during early hours of morning. None was available at the spot. Furthermore occurrence had not taken place in the wheat crop field. The cut down wheat and sickles were not secured by the police from the spot during course of spot inspection. Ocular account is in serious conflict with the medical evidence. Burn marks were well indicated in the injury statement (Exh.P.E.) and inquest report (Exh.P.F.) but the doctor did not utter a word about these burn marks. Evidence in its entirety has been fabricated F.I.R. Contains a distorted version of the occurrence. Muhammad Khan, Maqsood and Saleemullah accused have been acquitted by the trial Court on the strength of same evidence. Recovery of pistol .12 bore (P.4) is of no avail to the prosecution because no empty could be secured by the police during course of spot inspection. Evidence has not been appreciated in its true perspective and as such requires re-praisal. He ends his arguments with the submission that according to (Exh.D.C.) appellant was below 18 years of age at the relevant time of occurrence but the learned trial Court did not place reliance on it and held it doubtful.
11. Conversely learned counsel for the State assisted by learned counsel for the complainant submits that appellant is named in the F.I.R. He has been assigned specific role of causing a wound on the back of Sher Zaman, which resulted into his death. Appellant also led to the recovery of a .12 bore pistol. Medical evidence was supportive of the F.I.R. Version. They support judgment of the trial Court.
12. Learned counsel for the complainant who has filed revision petition for enhancement of sentence awarded to the appellant, submits that trial Judge did not mention reasons for awarding lesser sentence more specially when motive part of the occurrence has been relied upon.
13. I have with full care and devotion heard and considered respective arguments of learned counsel for both the sides and perused the record with their able assistance. Event giving rise to the charge occurred on 11-4-2002 at 8-00 a.m. In the revenue estate of village Baloch Wala, situate at a distance of 3-1/2 kilometers from police station Jandanwala, District Bhakkar. The matter stood reported to the police on the same day by Muhammad Khan, real brother of Sher Zaman deceased at 8-30 a.m. It is a case of promptly lodged F.I.R., which reflects upon availability of the alleged eyewitnesses at the spot. Muhammad Khan complainant who appeared as (P.W.8) in his statement before the police and before the Court at trial furnished names of all the accused persons, the way they arrived at the spot, initiated attack which resulted into death of Sher Zaman.
Maqsood, and Saleemullah were empty handed whereas Muhammad Khan accused was armed with a Sota. They were assigned an insignificant role in the occurrence and their participation was found doubtful, so they stood acquitted rightly.
14. Case of Muhanunad Farooq appellant stands on different footings. He was carrying a .12 bore pistol and made use of the same in producing fatal wound on back of chest of the deceased. This injury despatched Sher Zaman to the next world Instantaneously. Allegation against Muhammad Farooq was successfully proved not only by Muhammad Khan (P.W.8) but also by Ahmad Khan (P.W.9). Abdul Karim another eye-witness was given up by the prosecution as being unnecessary.
Learned counsel for the appellant has assailed testimony furnished by the eyewitnesses on the ground that they were brothers inter se and their presence at the spot was doubtful because the sickles or cut down wheat was not secured by the police during spot inspection and further their statements contain petty improvements and contradictions. It is a day time occurrence. Both the witnesses have furnished cogent reasons for being present at the spot. As the witnesses and the deceased had to reap wheat crop in their fields, so their presence together was natural. The mere fact that Muhammad Khan (P.W.8) and Ahmad Khan (P.W.9) are brothers- inter se can hardly be considered as a ground for disbelieving them. They have made accurate and consistent statements, which inspire confidence. Learned defence counsel during trial deployed legal engine of crass-examination to his heart's content but failed to gain anything. He failed to create any dent in the prosecution version, which might have demolished the prosecution case. F.I.R. Was lodged within half an hour of the occurrence. It is a strong circumstance to establish presence of the complainant and witnesses at the spot at the relevant time of occurrence. I have also examined the post-mortem report. Dr. Nisar Hussain (P.W.7) has observed a solitary injury on the person of the deceased which reads as under:--- ' Nine wounds of entrance each of size of 1/2 c.m. Dia on back of chest. Right lower side in an area of 9 x 7 c.m. Inner one 3 c.m. From mid line, 27 c.m. Above anal cleft. No blackening, tattooing was present. No exit from the body.
' No burn marks have been mentioned on the body of the deceased. Learned counsel for the appellant has pointed out that in injury statement (Exh. P. E. ) and inquest report (Exh. P F.) burn marks observed by the Investigating Office, had hen recorded. It is mere an observation of the Investigating Officer. It was imperative upon him to have sought opinion of the doctor who performed autopsy on the dead body as to the presence of burn marks, were these burn marks old or new one, their nature and causative weapon. No such effort was ever made by the Investigating Officer to seek clarification about this circumstance. These burn marks have no nexus with the solitary wound produced by the appellant. These burn marks could not be the result of another shot. I find no good reason at my disposal to agree with learned counsel for the appellant that ocular account is in conflict with the medical evidence. There is evidence of two witnesses confirming parts played by the appellant during course of incident. As .12 bore pistol was fired once, so quetion of falling of empty on the ground did not arise at all. The fact C remains that .12 bore pistol (P.4) along with 2 cartridges (P.5/1-2) stood recovered at the instance of the appellant from room of his dwelling house lying concealed in an iron chest underneath clothes.
' Undoubtedly an injury on the person of the deceased has been caused by a .12 bore weapon. One pellet was recovered from within the wound which fact is available in c the statement of Dr. Nisar Hussain (P.W.7). Ocular account is in consonance with the medical evidence. The mere fact that the dead body was taken to Rural Health Centre Jandanwala and Tehsil Headquarters Hospital, Kloorkot and then to D.H.Q. Hospital, Bhakkar where the autopsy was conducted, is of no avail to the appellant. There was a reason for so doing. It is available in statement of Dr. Nisar Hussain (P.W.7).
The learned trial Judge adjudged Muhammad Farooq appellant guilty on the basis of sound judicial reasons capable of articulate expressions.
15. Complainant himself expounded motive theory that the accuses suspected Sher Zaman deceased of having developed sexual intimacy with Kauser, daughter of Suleman and sister Of Muhammad Farooq appellant, Muhammad Khan and Maqsood Ahmad. This motive part of the occurrence has been believed by the trial Court. As the prosecution case itself was that murder was committed for illicit liaison between Kauser and the deceased then it legitimately be presumed that family honour was involved. As the murder has been committed out of suspicion of immorality, so award of lesser sentence to the appellant was proper and highly justified.
16. For all these reasons this appeal is dismissed. Criminal Revision No,971 of 2002 is also dismissed.