' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.641 of 2002 and Criminal Revision No.296 of 2002 directed against the judgment, dated 31-5-2002 passed by the learned Additional Sessions Judge, Arifwala, whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs.50,000 as compensation payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default thereof six months' S.I.
2. Brief facts of the case as narrated by the complainant in the F.I.R. Are that he (Muhammad Amin) along with P.Ws. Was sleeping at the courtyard of his house on the midnight of 28/29-7-2001 while his father was sleeping in the Baithak. The gate of the Haveli was closed. On hearing the voice of steps at 12 midnight he awoke up and he saw Muhammad Ramzan alias Kakoo accused/appellant armed with pistol .12 bore as well as Zulfiqar accused armed with rifle standing in the room where father of the complainant was sleeping in the bulb light. He (complainant) awoke Baqir and Muhammad Yousaf P. Ws. And they all reached the door of the Baithak. Muhammad Ramzan alias Kakoo threatened them that if they entered the Baithak they would be fired at. Thereafter Kakoo accused fired and the shot hit right ankle of Falak Sher deceased. He repeated the fire which hit at the finger of left hand of the deceased. The third shot fired by him hit the fingers of left hand and right calf of the deceased. On raising alarm by the complainant, the people of the village were attracted and both the accused fled away to the east while firing in the air. Falak Sher deceased in serious condition was shifted to RHC from where he was referred to DHQ and then to Jinnah Hospital where he died. The motive behind the present occurrence was that the deceased had pointed out the accused during the detection of foot tracks many a times as culprits.
3. After getting information about the occurrence the local police completed all the necessary formalities and registered the case against the accused under section 324/34, P.P.C. But on 8-8- 2001 after the death of the deceased vide rupt No.4 offence under section 302, P.P.C. Was added by Ghulam Qadir S.-I./S.H.O. He prepared the injury statement Exh.P.C. And the inquest report Exh.P.E.
He also received last worn clothes of the deceased vide memo. Exh.P.F. Muhammad Ramzan appellant was arrested on 1-9-2001 who got recovered the pistol .12 bore P.8 along with live cartridge P.9 vide memo. Exh.P.K. Ultimately after thorough investigation challan was prepared and submitted against the accused.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, I.O., eye-witnesses and other formal and relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.PP and that of Serologist Exh.P.Q. And report of Forensic Science Laboratory Exh. P.R, learned APP closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration the every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that both the eye-witnesses P.W.4 and P.W.5 are son and son-in-law of the deceased respectively. P.W.5 is a chance witness as he was not the resident of the place of occurrence, that no source of light has been mentioned by the I.O. While preparing the rough site-plan and this fact finds support from the statement of P.W.10.
Learned counsel submits that two accused persons one appellant and the other acquitted accused were not the residents of the village where the occurrence had taken place. He submits that the reason for false implication of the accused is mentioned at page. 4 of the statement of P.W.4 in second paragraph. Learned counsel submits that in fact Noor Ahmad lamberdar was injured by brother of Muhammad Ramzan and on his insistence the complainant falsely involved the appellant in the instant case. He submits that deceased was also cultivating the fodder crop in the land of Noor Ahmad Lamberdar measuring two kanals as reveals from the cross-examination of P.W.4.
6. Learned counsel for the appellant further submits that the F.I.R. Was recorded with a delay of four days without any proper explanation. He submits that in the inquiry statement of deceased on the face of that names of the accused persons are not mentioned and in this regard he has referred rapat No.22 of daily dairy of the said P.S., Exh.P.L. Which according to the learned counsel is fictitious and false document. In the said rapat Falak Sher deceased has been shown as first informer. On the other hand P.W.5 has stated before the learned trial Court that the deceased after receiving the injuries became unconscious. Learned counsel submits that if this was the position then how Falak Sher had got registered rapat No.5 in the daily diary of the said P.S. Learned counsel submits that Amin complainant was stated to be accompanying the deceased to the P.S. But according to Rapat No.22 this fact was not mentioned by Muhammad Amin in his statement before the learned trial Court while being examined as an eye-witness. Learned counsel submits that Rapat Roznamcha does not bear the signature of the person who lodged the same so it has got no value in the eyes of law and in this regard reliance is placed on PLD 1970 Karachi 677 relevant portion at page 685. Learned counsel submits that pistol has been planted on the appellant and the same has been got recovered after one month and the same was accessable to every body. He also took an alternate plea that it is not a case under section 302(b), P.P.C. But under section 302(c), P.P.C. Because injury became septic and it was the reason for the death of the deceased.
7. Learned counsel for the complainant on the other hand submits that the delay in the F.I.R. Has been explained, that an electric bulb has been mentioned in the F.I.R. Even in the site-plan prepared by the Patwari an electric bulb has also been shown, that rapat No.22 was written by Mujahid Hussain P.W.10 but not a single question was put to him regarding that it was a bogus one.
Learned counsel submits that said P.W. Has stated before the learned trial Court that after the occurrence police was, informed and he has mentioned this fact in rapat No.22, that mere relationship of eye-witnesses with the deceased is no reason to discard his evidence. He submits that ocular account is corroborated by medical evidence. He supports the judgment of the learned trial Court.
8. I have heard the learned counsel for the parties and also have gone through the record available on the file. Occurrence had taken place in the house of the deceased. His son Muhammad Amin is the natural witness. The Court has to see the quality of evidence and not the quantity of evidence. For the sake of arguments Muhammad Yousaf P.W. Might have not been present in the house of the deceased at the time of occurrence. Electric bulb has been mentioned in the F.I.R. Which is original and first document prepared before the rough site-plan. Rapat No.22 was mentioned in the daily diary of P.S. In which the name of Muhammad Amin complainant is also mentioned who accompanied Falak Sher deceased to inform the police about the occurrence.
Delay in the F.I.R. Has been explained by the complainant, that he had been taking his father in different Hospitals for medical treatment in order to save his life. There is no direct enmity whatsoever between the eye-witnesses Muhammad Amin and the appellant Muhammad Ramzan.
The crime empties recovered from the spot also matched with the recovered pistol on the pointation of the appellant. As far as contention of the learned counsel for the appellant that it was recovered one month and three days after the occurrence. The question is that it was to be recovered after the arrest of the accused which was affected one month and one day after the occurrence so there was no delay in recovering the pistol on the A pointation of the appellant.
Electric bulb has also been shown in the site-plan prepared by the Patwari. It can be negligence on the part of the I.O. By not mentioning the same in the rough site-plan or in the brief facts of the case. It is a case of single accused. There is no question of substi-, tution. Substitution is a rare phenomena. Ocular account is corroborated by medical evidence and also with the recovery of pistol and the positive report of the Fire-Arm Expert. There is no earthly reason for the false implication of the appellant. As far as awarding lesser sentence to the appellant is concerned, that has been mentioned by the learned trial Court that the motive has been shrouded in mystery so there is no need of interfering or enhancing the sentence awarded to the appellant.
9. After having heard the learned counsel for the parties and going through the record, I am of the opinion that the prosecution has proved its case against the appellant so there is no merit in this appeal and the same is dismissed. The Criminal Revision is also dismissed.