' Abdul Rehman son of Faiz Bakbsh, Caste Awan, aged 89 years, resident Of Deh Wanni, Police Station Sangani, Rawalpindi, was tried by the learned. Additional Sessions Judge, Rawalpindi, on 8- 9-1981 for committing the murder of Daulat Khan deceased, and has been convicted under, section 302, P. P. C. And sentenced to life imprisonment and a fine of Rs, 5,000 or in default to undergo further R. I. For one year. The amount of fine, if realized, was to be paid to the legal heirs of the deceased. He has appealed through Jail.
2. The prosecution case is that on 6-6-1980 Daulat Khan deceased had come out of the village mosque after offering Jumma prayer. The appellant followed' him and when the deceased had covered a distance of merely 3 paces the appellant took out a 12-bore pistol from the dub of his Shalwar and fired at the deceased hitting him on the left side of his back. The deceased died on the spot. The .Occurrence was witnessed by Muhammad Yousaf complainant (P. W. 5), Maqsood (P. W. 6) and Karim Dad (P. W. 8).
' The motive for the occurrence was that the appellant suspected the deceased on having illicit relations with his wife Mst. Raj Khanum. Muhammad Yount" reported the matter to the police by lodging F. I. R. Exh. P. E. With Muhammad Ayub A. S. I. (P. W. 11) in Village Dhama where he was present in connection with investigation of some case. The A. S.
1. Proceeded to the spot and prepared the inquest report Exh. P. G. Of the deceased and sent his dead body for post-mortem examination. He collected blood-stained earth from the spot through memo. Exh. P. A. He also took into possession empty cartridge P. 1 and made it into a sealed parcel through memo. Exh. P. C. He got prepared the site plan Exh. P. B. From Muhammad Akram Draftsman. The appellant was arrested on 13-6-1980. On 15-6-1980 he led to the recovery of unlicensed pistol P. 2 which was secured through memo. Exh. P. D. And made into a sealed parcel.
The recovery was attested by Fazal Elahi (P. W. 4).
3. The crimes empty and the pistol were sent to the Forensic Science Laboratory. The firearms Expert reported vide Exh. P. K. That the crimes empty had been fired from pistal P.
2.
4. The appellant denied the prosecution allegations and stated that he had been falsely implicated as he had refused to implicate Shabzada son of Fazal Dad for abducting Mst. Razia daughter of Khuda Dad. He further stated that Mst. Asia daughter of Fazal Dad and daughter-in-law of Daulat Khan had illicit relations with the son of Karim Dad who was shot at by Aurangzeb son of Daulat Khan. Aurangzeb was later on challaned but was acquitted as a result of compromise between the parties. However, Aurangzeb and son of Karim Dad mentioned above remained on inimical terms with each other. On 3-6-i980 he and Daulat Khan were going from Rawalpindi to their. Village and on the way, they found that Aurangzeb son of the deceased and son of Karam Dad were fighting with each other. They separated them. On the day of occurrence he and the deceased had gone to offer Jumma prayer. The deceased left the mosque before the conclusion of Sanaa and he came out on hearing the fire-shot and found the deceased lying on the ground. He and Muhammad Yaqoob removed him to his house in walking position but he succumbed to the injury after covering a distance of about .One and half miles. Subsequently he was involved in the murder as a result of conspiracy between Aurangzeb and son of Karim Dad. He stated that his eye-sight was weak and he could not hold anything firmly in hands. He did not call any evidence in defence as according to him nobody was willing to depose in his favour due to the influence of the complainant party.
5. Dr. Muhammad Aslam Arshad (P. W. 12) conducted the post-mortem examination on the dead body of Daulat Khan deceased aged 60 years on 7-6.1980 and found the following injuries thereon.
' Five circular wounds of entrance 0.6 c. In. X 0.6 c. m. On the back of left chest in an area of 4 c. m. X 5 c. m. Just below and inner to lower angle of left shoulder blade.
' There were three circular abrasions of impact of wads -1.5 c. m. X 1.5 c. m. Each on inner border of left scapula just above the entry wound. He also noticed four oval wounds of exit on the front of left chest, 5th and 6th ribs on the back side and 2nd and 3rd ribs on the front side were fractured.
Stomach contained 1.4 k. g. Of semi-digested food.
' According to the doctor the deceased died of haemorrhage and shock by injury No, 1 which was ante-mortem and sufficient to cause death in the ordinary course of nature. The injury was caused by fire-arm. The time between the injury and death was immediate and that between death and postmortem about 18 hours. Exh. P. J. Is the post-mortem report.
6. The prosecution examined 12 witnesses to prove its case. Mahboob (P. W. 3) is a witness to the recovery of empty cartridge P. 1 from the spot, on 6-6-1980 through memo. Exh. P. C. Fazal Elahi (P.
W. 4) testified to the recovery of pistol P. 2, which was got recovered by the appellant on 15-6-1980 from a pigeon's cabin lying in his house. He attested the recovery memo. Exh. P. D. Muhummad Yousaf (P. W. 5) is complainant in the case and furnished the ocular account as also the motive.
Maqsood Ahmad (P. W. 6) and Karim Dad (P. W. 8) also deposed about the occurrence.
Muhammad Ayub A. S. I. (P. W. 11) is the Investigating Officer. The details of the part played by him have already been stated above.
7. The appellant in his appeal, submitted from Jail, has pleaded innocence and has stated that daughter-in-law of the deceased, namely, Asia Jan wife of Aurangzeb had illicit relations with Ayub Khan son of Karim Dad as a result of which, Aurangzeb son of the deceased had murderously assaulted Ayub Khan son of Karim Dad who was arrested but was later on acquitted. In order to avenge that incident Ayub Khan son of Karim Dad had murdered the deceased on 6.6-1980 in which he had been falsely involved.
8. I have considered the plea raised by the appellent and perused the record with the assistance of the learned counsel for the State. So far as the motive is concerned, the prosecution has examined Muhammad Yousaf (P. W. 5). I have perused his evidence. According to him he did not know if the deceased had illicit relations with the wife of the appellant. He further stated that the appellant had never told him that the deceased was maintaining illicit relations with his wife. Similarly the deceased had also never told him about his illicit relations with the appellant's wife. No other witness has been examined by the prosecution to prove the motive. In these circumstances, I do not agree with the learned trial Court that the motive as alleged by the prosecution stands proved.
But the absence of motive or failure on the part of the prosecution to prove it will not adversely affect the prosecution's case, if there are other circumstances to prove it.
' As regards the ocular testimony it stands corroborated by Maqsood Ahmad (P. W. 6) and Karim Dad (P. W. 8). No convincing reason has been brought on record to discard the testimony of these witnesses. There is nothing to indicate that they had any interest to falsely implicate the appellant.
It was a broad daylight incident and the P. Ws. Would not have falsely implicated the appellant, nor was there any question of mistaken identity or substitution. Why the P. Ws. Should have let off the real assailant and instead implicated the appellant. The crime empty recovered from the place of occurrence on 6-6-1980 was found to match with the pistol recovered at the instance of the appellant on 15-6-1980. The recovery of pistol at the instance of the appellant stands proved through Fazal Elahi (P. W. 4) who is an independent witness and no reason exists to discard his testimony. In view of the presence of ocular testimony of unimpeachable character, the prosecution was not bound to prove the motive and its failure to prove the same will not materially detract from the ocular account furnished by the eye-witnesses.
9. Keeping in view the above circumstance, I think that the prosecution had succeeded in bringing home the guilt to the appellant beyond all shadow D of doubt. He was, therefore, rightly convicted and sentenced by the trial Court. I maintain the conviction and sentence and dismiss his appeal.
10. The appellant be informed about the result of appeal through the Jail Authorities.