S. A. NUSRAT,. J. -This appeal by special leave has been filed by the appellant against the judgment of the Peshawar High Court dated 16th October, 1975 challenging his conviction under sections 302 and 404, P.P.C. Respectively entailing sentence of death and R. I. For three years.
2. According to the facts of the case, on 5th October, 1973, Sher Afzal P. W.
7. Had gone to his fields in the morning. His brother Said Afzal, P. W. '9., alongwith his father, the deceased had also gone out of their house. Sher Afzal returned to his house in the evening but as his father failed to return till about ---Iftari--- time, it being the month of Ramzan he enquired about him from his brother, P.W.
Said Afzal. Said Afzal told him that the deceased had gone alongwith him to the saw machine of one Juma Gul where Mobin, P. W. 8 and Subhanuddin (the appellant herein), both carpenters by profession, were also present. While the appellant and the deceased stayed behind and were busy in talks, P. W, Said Afzal was asked by the deceased to fetch hinges from Bazar On his return, P. W.
Said Afzal did not find the deceased at tire Saw machine and was told by Mobin, P. W., that he had left in the company of the appellant for the purchase of some trees. Having been so informed Sher Afzal contacted the appellant and enquired about the deceased. Who expressed his ignorance.
Sher Afzal then searched for the deceased for 4/5 days and having lost all -hope reported the matter to the Police, vide F.I.R. Eth. P. A., which was recorded on 10th October, 1973 at 18.15 hours at Police Station Tangi by Shahbaz Khan S. H. O. It is alleged that the deceased, Shah Zawar, was carrying sufficient amount of money with him and he was murdered by the appellant for the sake of money. After recording the F. I. R. P. W. Shahbaz Khan, S. H. O. Proceeded to the Hujra of one Sultan Khan and reaching there at 18.30 hours recoi ded the statement of some witnesses. He then went to the house of the appel--lant from where he arrested him at 19.30 hours. On interrogation the appellant agreed to point. Out the place where he had concealed the dead body of the deceased.
At 20.30 hours, he led the police party to the orchard of Wahwah Khan and pointed out to a well in which he had thrown the body of the deceased (Exh. P. D.) The dead body was brought out from the well by one Azizur Rehman which was found tied in a gunny bag with mazri rope. A recovery memo. Exh: P. W. Was accordingly prepared. The post-mortem examination on the dead body of the deceased, aged 70/75 years, was performed on IIth October, 1973 at 7.00 a. m., by Dr. Nusrat Ara. Medical Officer, Incharge, Civil Hospital, Tangi, who found the following injuries on the person of the deceased:- "There is a lacerated wound on the neck 8" long. Condition of the subject decomposed. Clothing soaked in water.
1. A lacerated wound 8' long starting from right lateral side of .Neck (2' above the root of the neck) extending up to lateral margin of left sternumastion muscles, cutting the neck on back fully 4th and 5th survival vertebrae are missing the margin of the-wounds are dentating shape.
2. There is an incised wound 3' long cavity deep on the occipital bone in the centre line brain matter was protruding out and water was oozing and skull cavity full of water. Scalp, skull and verte--brae injured. 4th and 5th survicle vertebrae are missing. Mem--brance, brain spinal cord are injured.
On internal examination the doctor found: Pharynx and Esophagus cut. Stomach empty contained water. Small intestines are normal and contents watery. Large intestines normal and contents watery. The bladder empty Muscles, Bones joints, injury. Muscles on the back of neck and sides are cut. Head muscle on the back cut, Fractures occipital bone 4th and 5th survicle vertebrae and neck joints injured."
On 11th October, 1973 the appellant led the Investigating Officer to his house and produced a saw.
Exh. P. 1 and Tarkhaz. Ekh; P, 2 both blood-stained. The same were found hanging with the wall. Two blood--stained wooden planks were also recovered from a chair lying in the house of the appellant accused. The appellant had also shown to the Investigat--ing Officer a place in the courtyard of his house he had washed his .Blood--stained clothes. The Investigating Officer collected some blood-stained stones from there which were sealed in a parcel. The appellant also pro--duced a shalwar and a shirt (Exh. P. 5 and Exh. P. 6), which he had allegedly worn at the time of occurrence. Again on 14th October, 1973, the appellant led the Investigating Officer to his house when. Two currency notes of Rs. 100 each were recovered from an almirah of his Baithak vide memo. Exh. P. F. On 16th October, 1973 the appellant made a confessional statement before P. W.
Ahmad Din Khan, Retired 1st Class Magist--rate, Charsadda.
3. The prosecution examined as many as ten witnesses in the case, namely. Dr. Nusrat Ara Medical Officer, who performed the post-mortem examination; (2) Mr. Ahmad Din Khan, Retired 1st Class Magistrate, who had recorded confessional statement of the appellant; (3) Sherbaz, F.C., who had escorted the dead body to the mortuary; (4) Shahzad, who had identified the dead body at the time of post-mortem examination; (5) Fazal Wahid, attesting witness to the various recovery memos. ; (6) Muhammad Sarwar Khan, another attesting witness to the recovery memo. Exh P. h. ;
(7) the complainant, Sher Afzal son of Shah Zewar, deceased ; (8) Mobin son of Gul, carpenter; (9)
Said Afzal son of Shah Zewar, deceased and (10) Shahbaz Khan, S. H. O. Police Station, Tangi Nusratzai, Tehsil Char--sadda, District Peshawar. The appellant made a statement but no evidence was produced by him in defence.
4. We have gone through the entire evidence and find that the defence had failed to bring out anything in the cross-examination of the prosecution witnesses whose testimony remained well- tested and unsha--ken. The complainant, Sher Afzal and his brother, Said Afzal, both stated that they had no enmity with the appellant and hence they had no motive for falsely implicating the appellant for the murder of their father. The deceased too had enmity with the appellant. It is note- -worthy that the appellant had led the Investigating Officer to the well, from where the dead body of the deceased was taken out, within an hour's time after his arrest. Further the deceased was last seen alive in the company of the appellant but he failed to furnish any explanation regarding his disappearance: According to the statement of P. W. Sher Afzal, his father, the deceased, used to deal in wood business. Mobin, P. W; and the appellant were also carpenters by profession and, therefore, the presence of all the three at the saw machine of Juma Gul was a natural circumstance which cannot be doubted. The articles re--covered at the instance of the appellant were sent to the chemical examiner who found blood on the gunny bag, earth stones, saw, tarkhaz and four pieces of wood. The injuries on the dead body of Shah Zewar, the deceased, were indicative of type of weapon used in the offence, namely, a carpenters' saw and tarkhaz as corroborated by the medical evidence.
5. It was contended by the learned counsel for the appellant that the prosecution had examined P.W: Fazal Wahid alone as an attesting witness to several recovery memos. Except Exh. P.F. On examination nothing) however, was brought out to discredit him. The suggestion made to him that he was related to the deceased was denied and no effort was made to bring any evidence in support of this allegation. The independence of this witness, therefore, cannot hardly be doubted.
The learned counsel lastly pointed out that the place of occurrence in the F.I. R. Was shown as the well situate in the lands of Usman A.I Khan alias Wahwab Khan which indica--ted that the report was lodged after making some preliminary investigation. Although the learned counsel for the defence was not able to give any reason for such entry, the F.I.R. Being not substantive evidence, nothing turns on the same in the face of preponderance of evidence proving the guilt of the accused.
6. The evidence has been well-discussed by the learned High Court and we are not persuaded to take any different view in the matter.
7. The appeal in the circumstances fails and is dismissed.