ZAFFAR HUSSAIN MIRZA, J.--This is a direct appeal by convict Asif Shah from the judgment of a Division Bench of the Peshawar High Court, Peshawar, dated 22-2-1982, whereby the complainant's revision was accepted and the sentence of the appellant was enhanced from imprisonment for life to death as well as his appeal was dismissed.
2. The appellant was tried and convicted by the Additional Sessions Judge, Peshawar, on the charge of murdering Ghulam Muhammad by firing at him with his pistol. The occurrence took place on the night between 25th and 26th January, 1979, when the deceased Ghulam Ahmad alongwith his uncles son Taj Muhammad P.W. Was returning to his house after seeing a cinema show in Peshawar City. The prosecution case is that when the deceased and Taj Muhammad P.W.
Reached their houses situate at Khan Mast Colony, Peshawar City, at about 1.00 a.m., they disembarked from the rickshaw outside the street in which their houses are situate. As they were walking towards their houses and reached the house of Wazir Muhammad P.W. The appellant came from the opposite direction and fired four shots at the deceased with pistol from a distance of 3 to 4 paces. The appellant was identified on the light of the electric bulb which was burning at the spot. The deceased after receiving the injuries is said to have been still conscious and was carried on a cot to the Police Station Suburb, Peshawar City, where the first information report was lodged by him, which was recorded by Sarbiland Khan, S.H.O., at 1.30 a.m. Thereafter the deceased breathed his last on the way to the hospital.
3. The motive for the offence was stated to be a quarrel that had taken place to, three months prior to the occurrence between the deceased and the appellant, in regard to which the deceased had lodged a first information report at the same Police Station on 2-12-1978.
4. During the post-mortem examination the deceased was found to have received three in wounds from a fire-arm on the chest, left arm and left side of the chest and according to the opinion of the doctor the death was the result of the fire-arm injuries to the left lung and blood vessels.
5. The appellant was not traceable and was arrested from jail custody in another criminal case at Kohat on 6-11-1979. In his statement under section 342, Cr.P.C. The accused denied his complicity in the offence and asserted that he had been falsely implicated by the father of the deceased with the connivance of other prosecution witnesses. He challenged the genuineness of the dying declaration incorporated in the first information report on the plea that the deceased could not have been conscious to make the statement because the F.I.R. Was not signed by him but was thumb-marked. As to the motive he admitted that there was a quarrel between the to in connection with which a report was lodged with the police by the deceased but according to him the matter was settled on the intervention of elders.
6. In support of their case, the prosecution relied upon the dying declaration of the deceased in the F.I.R., the oral dying declaration of the deceased through statement made to his father Jan Muhammad (P. W.), ocular testimony of Taj Muhammad (P.W.), corroborated by the evidence of Jan Muhammad (P.W.) and Wazir Muhammad (P.W.). In addition reliance was also placed on the medical evidence and the recovery of spent bullet of .32 bore at the spot, three empties from the vicinity of the place of the occurrence and 60 Watt bulb secured from outside the house of Jan Muhammad (P.W.), father of the deceased.
7. The trial Court accepted the prosecution evidence as true and reliable, and held the appellant guilty of the murder of the deceased as a result the appellant was convicted and sentenced to imprisonment for life and fine of Rs.5,000 or in default to suffer further R.I. For six months. In case of realization of the fine it was ordered to be paid to the heirs of the deceased as compensation. The appeal filed by the convict was dismissed and at the same the the revision for substituting the sentence of death was allowed by the High Court as stated earlier.
8. We have heard Mr. Umar Mahmood Qasuri, learned Advocate for the appellant at length and have perused the evidence on record. He has urged that the dying declaration was not reliable as it appears to have been fabricated which is clear from the fact that although the deceased was literate and could sign, the first information report in this case bears his thumb-impression. In this connection reference has been made to the earlier F.I.R. Lodged by the deceased which bears his signature. On this aspect of the case the evidence of Sarbuland Khan, S.H.O., is to the effect that the deceased was brought to the Police Station in an injured condition at 1.30 a.m. And was found by the witnesses to be in senses speaking coherently. At his dictation the witness recorded his report which was read over to him and his thumb --impression was obtained on it. The witness has denied the suggestion that the deceased at the the of making his report was in severe pain and could not speak and that the witness had recorded the report at the instance of the father of the deceased. He was not put any suggestion to the effect that the deceased was unconscious. The witness further stated that he did not know if the deceased was educated nor did his father inform him so. There is nothing in the evidence of this witness to suggest any motive or interest on his part to fabricate evidence. It is quite possible that in the traumatic situation when the deceased was severely injured the S.H.O. Took it for granted that the deceased was not educated and he, therefore, obtained his thumb-impression on the report. The High Court was, therefore, not in error in rejecting this contention on these grounds.
9. It was then argued that the medical evidence also negates the possibility of the deceased having made the dying declaration in presence of the S. H. O. In this connection reference has been made to the evidence of doctor Khaista Khan Afridi who has stated that the probable the between the injuries and death must have b9et) 25 to 35 minutes and further that the injured must have been unconscious or drowsy on account of shock within 10 to 15 minutes of receiving the injuries.
Nothing much turned upon these statements of the doctor which are a B matter of expert opinion and cannot, therefore, be relied upon with mathmetical precision. The marginal difference being only of 15 minutes there would always be an allowance to be made from case to case depending upon so many variable factors obtaining in a particular case. This is clear from the manner in which the opinion has been expressed in hypothetical terms.
10. The last submission on behalf of the appellant was that although Taj Muhammad (P.W.), stated that after the injuries he had iifted the deceased in his arms and took him to the door of the Baithak of his house, his clothes were not soiled with blood. It may be noted that the deceased had received bullet injuries on his chest and shoulder which caused clean holes --x -- and to bullets were found lodged in the thorasic cavity. The witness must have immediately taken the deceased to the Baithak which must have taken hardly a couple of minutes. The offence took place in the month of January and the deceased was wearing a banyan, a shirt, a sweater and a waistcoat over them. With all these clothes it is quite possible in the short period during which Taj Muhammad was in contact with the deceased that blood may not have oozed out through these clothes in sufficient quantity to soil the clothes of the witness. This circumstance is, therefore, not material in the facts of this case.
11. The deceased was a young man of about 17/18 years of age. He had quarreled with the appellant over the latter's desire to be friendly with him which he had resisted, as a result of which report was lodged by the deceased against him in which he complained that he had been injured by the appellant with a razor. It seems, as mentioned in the previous report, that the deceased was fond of going to the cinema, therefore, it was not unusual for the deceased to have gone to see the second show on the night of the occurrence and for Taj Muhammad (P.W.) being in his company in view of the fact that he was an older cousin who could have given the deceased protection in view of the background of enmity with the appellant. The occurrence took place in front of the house of the deceased where an electric light was burning on account of which there is no question of mistaken identity of the assailant. The appellant had no apparent reason to be present in the vicinity of the house of the deceased at that unearthly hour and the only hypothesis with which such presence is consistent, in the circum--stances of the case when the appellant was armed with a fire weapon, is that he had placed himself designedly there in order to consummate the crime of killing the deceased. The testimony of Taj Muhammad is natural as his house is also near the house of the deceased and he had no motive to falsely implicate the appellant. His testimony is further corroborated by circumstances and the ocular testimony of Jan Muhammad (P.W.), the father of the deceased and Alamzeb (P.W.), who is a close neighbour of the deceased. He has supported the prosecution and stated that the deceased informed him that the appellant had shot and injured him. All this evidence overwhelmingly brings home the offence to the appellant and we find nothing in the evidence which may create any reasonable doubt about his guilt. Finally it was urged that the appellant did not deserve the extreme penalty of death as in the circumstances of the case there appears to have been no premeditation. We find no substance in this argument. As already stated the circumstances exclude the possibility of this being a sudden occurrence. 1n the dead of night at 1.00 a.m. The presence of the appellant having armed himself with a fire weapon near the house of the deceased where he had no business to be, this appears to be a case of premeditation and malice aforethought. The appellant acted in a cruel manner by firing multiple shots at an unarmed person in cold blood. The normal sentence of death, therefore, appears to us well deserved and requires no interference.
12. This appeal fails and is accordingly dismissed.