INAYAT ELAHI KHAN, J.-Muhammad Javid son of Ghulam Sarwar(appellant) stands convicted under section 302, P. P. C. By the Additional Sessions Judge, Abbottabad at Haripur vide judgment dated lath January 1981 for committing the murder of his co-villager Iftikhar Ahmed and sentenced to imprisonment for fife and a fine of Rs. 6,000 or in default to undergo further two years' R. I. Out of the fine, if realized, 2/3rd share is to be paid to the heirs of the deceased as compensation.
2. Muhammad Javid has filed this appeal against his conviction whereas Criminal Revision No. 4/81 is filed by Abdur Rashid son of Haider Zaman for the enhancement of the sentence. We propose to dispose of the appeal as also the criminal Revision by this order.
3. The prosecution case as narrated at the trial in the statement of Abdur Rashid complainant (P.
W. 9) is that on 20th June, 1978 at about 9.00 a. m. He was tilling his land situate at a place known as 'Keri' within the limits of village Hall Baluch. Muhammad Nazir (P. W, 10) was cutting wood (trees) at some distance from him. Arshad and Aurangzeb were also present around the spot. Iftikhar Ahmed (deceased) was tilling his land at some distance from him at a place known as 'Turn'. He heard the report of afire shot and saw the appellant running away with a shot--gun. 12 bore in his hand from the spot towards Khanda-Khoo. The mother of the deceased was crying and wailing.
The complainant came to the spot running and found the deceased having already been succumbed to the injury. The dead body was lying in a pool of blood. Arshad, Muhammad Nazir and Aurangzeb were also present there. The complainant imme--diately left for the police station for lodging the report. His report (Exh. P. A.) was recorded by Gobar Imtiaz A. S. 1. Police Station Sherwan (P. W. 13). The motive mentioned in the F. I. R. As also in the evidence of this witness is that some time before the incident, Mst. Nusrat Bibi, a sister of the appellant, had been abducted by Nisar Ahmed, a brother of the deceased. The complainant stated that his grandfather and that of the deceased was the same person. Similarly he stated that the wife of his brother is a cousin of the father of the appellant.
4. Gohar Imtiaz A. S.-I. (P. W. 13) after recording the F. I. R. Rushed to the scence of occurrence where he found the dead body of Iftikhar Ahmed (deceased) lying on a cot in his field. He prepared his injury sheet (Exh. P. O,) and the inquest report (Exh. P. P.) and sent the dead body to the mortuary for post-mortem examination. He recovered the blood-stained earth and pebbles from the spot vide memo. (Exh. P. D.) which were later on forwarded to the Chemical Examiner alongwith other articles. He prepared the site plan (Exh. P. C.) and recovered a plough--share and yoke from the field of the deceased. He found a freshly cut tree in the field of Muhammad Nazir P. W. The tree was cut in 3 parts and some small pieces and 20 branches. He took into possession a small piece of wood and the saw with which the tree was cut. He found land of Abdur Rashid P. W. Freshly ploughed. He recovered a freshly fired empty of '12 bore lying at a distance of 162 paces from the place of the incident on the track on which the accused had decamped towards Khanda Khoo after the occurrence. After the arrival of Muhammad Ayub Khan S. H. O. (P. W. 5) at the spot, the investigation of the case was handed over to him.
5. Muhammad Ayub Khan S.-I. (P. W. 5) had partly investigated the case. He took into possession the blood-stained 'shalwar' (Exh. P. 1) produced by Muhammad Nazir P. W. Which was sealed into a parcel and sent to the Chemical Examiner, on 23rd June 1978 Ghulam Sarwar Khan father of the appellant produced a 12 bore D. B. Shotgun (Exh. P. 10) with 25 cartridges (Exh. P. 11), a bandolier (Exh. P. 12) with a Licence copy (Exh. P. 13) which were taken into possession by this witness vide memo. (Exh. P. L.) The shotgun with 5 live cartridges were sealed into a parcel and forwarded to the Ballistic Expert. The crime empty re--covered from the spot by Gohar Imtiaz A. S.-I. Was also forwarded to the Ballistic Expert for testing. The opinion of the Fire Arm Expert in this respect is Exh. P.
B. Which is in the positive. Similarly the opinion of the Chemical Examiner and that of the Serologist Exhs. P. N./1 and P. N./2, respectively are also in the positive to the extent of the articles smeared with human blood. However grouping of blood was not possi--ble. He stated in cross-examination that he reached the spot at 1 p. m. On the same day and remained there till evening. After 10/15 minutes of his arrival Muhammad Aslam Khan Public Prosecutor and Muhammad Ayub Khan Advocate also reached the village where he was investigating the case. He did not remember whether the blood- stained `shalwar' was produced to him by Muhammad Nazir P. W. Before or after the arrival of the aforesaid persons. The witness denied the suggestion that the crime empty was not recovered from the spot and was planted subsequently. He also denied that on the arrival of Muhammad Aslam Khan Public Prosecutor and Muhammad Ayub Khan Advocate, the record already pre-- pared by the police after the F. I. R. Was destroyed and fresh record prepared as the deceased was closely related to the Public Prosecutor.
6: Dr. Sajjad Shaheen (P. W. 8) performed the post-mortem examina--tion on the dead body of Iftikhar Ahmad (deceased) aged 26/27 years on 20th June, 1978 at 4.30 p. m. And found a fire-arm entrance wound 2" x 2; causing fracture of the right loth rib near its attachment to the sternal. The internal viscera was visible through the wound in the midline slightly to the right side just below the xyphternum. Corres--ponding cut was present in the shirt and there were small pellet entrance wounds round the main entrance. Charring was present. Four pieces of cork and 15 pellets recovered from the liver were also handed over to the Police. In the opinion of the doctor the death was, caused due to the fire-arm injuries to the liver, right lung and the stomach and also due to shock and haemorrhage. The injuries were sufficient in the ordinary course to cause death. The death was instantaneous and the time between death and post-mortem examination was about 7 to 8 hours. The post-mortem report (Exh. P. M.) and Pictorial diagram (Exh. P. M./l) were in his handwriting and bore his signature. In cross-examination he stated that charring would be caused from a distance of about 6/8 feet maximum. He admitted as correct the suggestion that the shot came from the left side causing injury as located by him and fracturing the rib on the right side.
7. It may be mentioned that at the trial out of the witnesses mentioned in the F.I. R. Aurangzeb was not cited as a witness whereas Muhammad Arshad and Mst. Karam Jan (mother of the deceased) were produced but abandoned and tendered for cross-examination. However, Muhammad Nazir was examined as P. W.
10. He stated that on the day of occurrence at about 9.00 a. m. He was cutting a `Kangar' tree with a saw in his field. Iftikhar Ahmed (deceased) was ploughing his own land at some distance. Mst. Karam Jan mother of the deceased was also with him. Aurangzeb, Abdur Rashid and others were present around the spot. He saw the appellant with a gun in his hand approaching the deceased and aiming the gun at him. He started towards the spot to pre-- vent the appellant from firing at the deceased but when he was 20/25 paces from them, the appellant fired at the deceased without heeding to his call not to fire. The deceased was hit in the chest and fell to the ground. The appellant then decamped towards Khanda-Khoo with his gun. He found the deceased already expired. He put the deceased in his lap and got bloodstains on his trousers. He stated that the other witnesses also reached the spot out of whom Abdur Rashid left for the police station for lodging the report. The motive for the offence given by this witness is the abduction of Mst. Nusrat Bibi. He handed over the blood-stained `shalwar' and the saw (Exh. P. 6) to the police. The police also took into possession some part of the tree cut by him from the place where he was present. In cross-examination he stated that he was sawing the tree at the time of the occurrence. It was a big tree which he was cutting. He denied the suggestion that the tree was got sawn by the Investigating Officer in order to show his presence at the time of occurrence. He stated that he was in the process of sawing the tree when the occurrence took place and it was incorrect that the tree was cut into 3 big pieces by him before the arrival of the Investigating Officer. He also stated that before firing at the deceased there was some talk between the appellant and the deceased but he could not hear the same. Only one shot was fired at the deceased and before firing the appellant was aiming the barrel of the gun some time at the foot of the deceased and some time at his chest. He stated that Mst. Karam Jan (mother of the deceased) had gone to the spot with a view to protect her son. He did not know if Mst. Karam Jan had charged her brother Farid for the murder of her husband. He also denied the suggestion that the deceased was murdered by Farid mentioned above. He stated that when he was lifting the deceased, his shalwar became blood--stained.
8. The appellant when examined denied his involvement in the crime. However he admitted that his sister Mst. Nusrat Bibi was abducted by Nisar Ahmed a brother of the deceased some time before the occurrence. About his absconsion from 20th June, 1978 to 5th January, 1980, he stated that during the said period he was living with his father at Lahore who was employed in the P. I. A. And when he learnt about the false charge against him, he came and surrendered to the police.
9. The- trial court placing reliance on the testimony of Abdur Rashid and Muhammad Nazir P. Ws., the motive for the offence, recovery of the crime empty from the spot, medical evidence and absconsion of the appel--lant convicted him as stated above. The entire evidence in the case has been examined by us with the assistance of the learned counsel for the parties and we see no reason to disagree with the opinion of the learned trial court. It is true that Abdur Rashid and Muhammad Nazir P. Ws. Are related to the deceased but this fact alone would not be sufficient to discard their testimony when they have not been shown to have any personal motive of their own to falsely implicate the appellant. The witness--ses have been subjected to lengthy cross- examination but nothing material has emerged to doubt their veracity. We do not agree with the learned counsel for the appellant that the witnesses were chance witnesses and they were not present at the time of occurrence. It is in evidence that they were present in their fields and remained at the scene of occurrence till after the arrival of the Investigating Officer who recorded their state--ments. If Abdur Rashid P. W. Intended to give false evidence, nothing was easier for him to have said that he had seen the appellant firing at the deceased. He only stated that he saw the appellant with a gun to his hand decamping from the spot towards Khanda-Khoo. Regarding Muhammad Nazir P. W., who is mentioned as an eye-witness in the F. I. R., it is difficult to assume that even if he had not witnessed the occurrence still his name would be mentioned in the F. I. R. In the hope that be would support the prosecution case. In the circumstances we see no cogent reason why the presence of these witnesses at the time of the occurrence should be doubted.
10. Regarding the recovery of the crime empty from point No. 9 (as shown in the site plan) at a distance of 162 paces from the spot the learned counsel contended that it was foisted on the appellant as there was no evidence that he had unloaded the gun at this point. However, from the evidence it appears that after the incident the appellant decamped on the track leading to Khanda-Khoo towards the south of the place o occurrence. The possibility cannot be excluded that while so retreating from the spot the accused would have unloaded the gun at this point. If the Investigating Officer intended to foist the crime empty then he could have easily shown the same lying near about the scene of occurrence. The learned counsel contended that the crime empty eras recovered on 20th June, 1978 whereas the gun was produced by the father of the appellant on 23rd June, 1978 but both these articles were not immediately forwarded to the Forensic Science Laboratory where these were received by hand on 2nd July, 1978. This delay, it is contended, would cause doubt on the recovery of the crime empty from the spot. The learned counsel referred to Beekho alias Imam Bakhsh and others v. The State (1973 P Cr. L J 896) wherein it was observed that "According to the prosecution the crime empty was secured b on the first day and put into a sealed parcel. The gun was secured subsequently and was also put into a sealed parcel. Then both the gun and the crime empty were sent to the Ballistic Expert in one sealed parcel which show that the sealed parcels were tempered with during the investigation and no attempt was made to clarify as to how the crime empty was sent in one parcel alongwith the gun when the two were seized separately and recovered at different time". The cited case is distinguish--able as in the present case the crime empty and the gun were forwarded to the Arms Expert in two separate parcels, The fact that the parcel were received in the Forensic Science Laboratory on 2nd July, 1978 would be of no consequence as it is evident that the articles were initially forwarded by the Investigation Officer to the S. S. P. Wherefrom they were set to the Arms Expert after observing the usual formalities. Thus in the circumstances it cannot be said that there was inordinate delay in forwarding the incriminating articles to the Arms Expert.
11. The learned counsel also objected to the Arms Expert Report (Exh. P. B.) for it does not disclose the reasons on which the positive opinion of the Expert is based. Thus it is contended that in absence any reason in support of the opinion the report of the Arms Expert is be excluded from consideration. The learned counsel referred to Nazir. The State (PLD 1981 Kar. 41) wherein it was held that no doubt the report of the Ballastic Expert was admissible without examining him in Court, his opinion without reasons would be of no avail to the prosecution. However, in this regard a reference with advantage can be made to the case of Khadim Hussain and another v. The State (1982 SCMR 1212) wherein the Hon'ble Supreme Court observed that :- "In regard to the opinion of the Ballistic Expert, if there was any, shortcoming in it, it was for the counsel to have pointed it out to the Court at the stage of the trial so that the Ballistic expert could have been summoned and the defect rectified. Not having done that, it is not open to the counsel to take this objection at the appellate stage. Section 510, Cr. P. C. Permits the opinion of the Ballistic Expert to be read in evidence without calling him as a witness. Its proviso empowers the Court to examine him, if necessary, in the interest of justice at the instance of the counsel for the parties or suo motu. Therefore, if the report was lacking in some respect, it was the duty of the counsel for the appellants to have pointed it out to the trial court for its rectification by examining the Expert. The failure to do so would not give a reason later to assail that opinion. Accordingly, we see no Justifica--tion to exclude it from consideration."
Taking this view of the matter it is obvious that the objection of the learned counsel would not prevail.
12. Now coming to the evidence of Malik Taj Muhammad (P. W. 3) a marginal witness to the recovery memo of the crime empty, it may be observed that the mere fact that he is related to 'the deceased would not be sufficient to cast doubt on the said recovery for this P. W. Also had no personal motive of his own to falsely implicate the appellant. Similarly, the argument; that the blood-stained 'shalwar' of Muhammad Nazir P. W. Was not taken into possession by Gohar Imtiaz A.
S.-I. And it was produced before the S. H. O. Muhammad Ayub Khan, would carry no weight. It is evident that Gohar Imtiaz A. S. I arrived at the spot at about 12 noon and got busy with the investigation of the case. He prepared the injury sheet and the inquest report of the deceased and sent him to the mortuary. He also prepared the site plan and examined some of the witnesses but in the meantime at about 1 p. m. Muhammad Ayub Khan S. H. O. Arrived and took over the investigation. Thus in the circumstances the recovery of the blood-stained 'shalwar' by Muhammad Ayub S. H. O. And not by Gohar Imtiaz A. S.-I. Would not lead to an adverse inference against the prosecution. Similarly the argument that the bullocks belong--ing to the deceased and Abdur Rashid P. W. Were not found by the Investigating Officer when he arrived at the spot is of no consequence as the possibility that the bullocks may have been removed from the scene of occurrence to the village before the arrival of the Investigating Officer cannot be excluded.
13. The learned counsel for the appellant then contended that there was delay in lodging the report since in the F. I. R. The incident is mentioned to have taken place at 9.15 a. m. But the report was lodged in police station at 11.00 a. m. Which is at a distance of 2/3 miles from the spot--- He referred to the statement of Malik Taj Muhammad P. W. Who had stated that it takes about 15j20 minutes for a normal man to reach the scene of. Occurrence from the police station. Similarly Gohar Imtiaz A. S. I. (P. W. 13) had stated that it took about 40/45 minutes to reach the spot: There is no evidence that the incident took place exactly at 9.15 a. m. E and it may well have taken place a little later than .9.15 a. m. None of the witnesses is a said to have noted the time by the watch. The possibility cannot .Be excluded that Abdur Rashid after reaching the spot may have remained there for some time before proceeding to the police station for making the report. In the circumstances it cannot be said that there was inordinate delay in lodging the report. The learned counsel urged that the medical evidence was inconsistent with the ocular testimony for according to the doctor the shot was fired at the deceased from the left side but Muhammad Nazir P. W.
Stated that the deceased was confronting the appellant at the time of the incident. The examination of the shirt of the deceased in court showed that it bore a hole in the middle of the front. Similarly from the pictorial diagram (Ex. P.M./1) it is evident that the deceased sustained the injury from the front and not from the left side. Thus the doctor does not seem to be right to say that the shot was fired at the deceased from the left side.
14. Having given our thoughtful consideration we have come to the conclusion that the appellant has rightly been convicted for the murder of Iftikhar Ahmed (deceased). The, ocular account furnished by Abdur Rashid and Muhammad Nazir P.Ws. Stands corroborated by the medical evidence, recovery of the crime empty which has tallied with the gun produced by the father of the appellant, existence of a strong motive and the absconsion-- of the accused from 20th June, 1978 to 5th January, 1980.
15. About his absconsion the appellant stated that during the period he was living at Lahore with his father and remained unaware of the incident. However, it is in evidence that on the 3rd day of the occurrence Ghulam Sarwar father of the appellant produced the shotgun before the Investigating Officer. Thus it cannot be said that the appellant was un--aware of the charge brought against him and it is obvious that he intentionally avoided his arrest.
16. Regarding the sentence imposed on the appellant by the trial court it may be mentioned that a month before the incident the sister of the appellant was abducted by Muhammad Nisar brother of the deceased which was a serious matter and affected the family honour of the appellant.
Moreover according to the evidence there was some talk between the G appellant and the deceased immediately before the incident which might have provoked the appellant into the commission of the offence. Keeping in view the circumstances of the case it cannot be said that the sentence of imprisonment for life imposed on the appellant by the trial court was inadequate.
17. For the aforesaid reasons the appeal as also criminal revision being without any merit are hereby dismissed. The period of custody of the appellant during the trial shall be considered as the period of imprison. Meat having been undergone by him under section 382-B, Cr. P. C.