1. ANWARUL HAQ, J.-By this petition for special leave to appeal Masam Khan seeks to call in question his conviction under section 302, P. P. C. By the learned Sessions Judge, Peshawar, and upheld by the High Court. However, the sentence of death awarded by the trial Court was not confirmed and instead was replaced by transportation for life. The petitioner was tried along with his brother Sher Bahadur who was acquitted.
2. Briefly, the allegations against the petitioner were; that at 9 a.m. On the 14th of December 1965, he caused the death of a young man named Sahib Shah, son of Amir Shah (1'. W. 6), by firing at him three or four shots from his tamancha, while the deceased and his father were going towards minor canal No. 6. The petitioner's brother, Sher Bahadur, was also said to be present at the scene of occurrence and he threatened Amir Shah not to go to the rescue of his son. The occurrence was said to have been witnessed by one Nisar. Soon after the incident the petitioner and his brother were seen going towards the village by Naeem Shah, Gut Shah Zarin and Abdul Saeed. The matter was reported at Police Station Khan Mal, a distance of four or five miles, at 10-10 a.m. The petitioner absconded after the occurrence area was arrested nearly four years later on 9-8-69.
3. The motive for the crime was stated to be the resentment of the petitioner and his brother Sher Bahadur at the maligning campaign started by the deceased to the effect that Sher Bahadur had gone back on art, undertaking to marry his daughter Mst. Benazira to the deceased in lieu of free services rendered by the deceased to Sher Bahidur for the last four years, and that Sher Bahadur had instead betrothed the girl to one Ajun of village Galyara.
4. At the trial the prosecution case was supported by Amir Shah, the father of the deceased, Abdul Saeed, Gut Shah Zarin and Naeem Shah, who had seen the petitioner and his brother Sher Bahadur returning to the village, soon after the occurrence, armed with a tamancha and a shot-gun respectively. They also stated that on reaching the spat they found Amir Shah present near the dead body of his son and he charged the petitioner for killing Sahib Shah. The other eye-witness Nisar was given up by the prosecution as having beers won over, but he was examined as a Court- witness, and he tried to favour the accused by making several damaging statements. However, the learned trial Judge. As well as the High Court, have held that no reliance could be placed on the testimony of Nisar. After rejecting Nisar's evidence the Courts below have accepted the direct ocular account of the incident as given by Amir Shah. The High Court has also found corroboration in the fact that soon after the occurrence Amir Shah named the present petitioner as the assailant when Abdul Saeed, Naeem Shah and Gut Shah Zarin reached the spot. The High Court has not accepted their assertion that they saw the petitioner and his brother returning to the village, armed with deadly weapons, The High Court Iraq further observed that the evidence of Amir Shah and these three witnesses can be relied upon in spite of the fact that they were related to the deceased, as there was no previous enmity between the parties and the witnesses had no motive whatsoever to falsely implicate the petitioner.
5. The conviction of the petitioner is challenged before us on the following grounds:--
(a) that the medical evidence contradicts the ocular account given by Amir Shah inasmuch as outlet wound No. 2 is on the front, thus indicating that the deceased was attacked from behind, although Amir Shah has stated that the assailant came from the opposite direction and shot at the front part of the body of the deceased;
(b) that the medical evidence also contradicts Amir Shah's account as regards the time of the incident inasmuch as the stomach of the deceased was found to be empty, whereas Amir Shah had stated that before leaving the house the deceased had taken tea and bread; and
(c) that the blood-stained clothes 'of the deceased were not sent for chemical examination as the relevant bundle was lost by F. C. Hazrat Gut (P. W. 5), to whom it was entrusted for safe custody. '
6. We regret we see no merit in these contentions: The last point raised by the learned counsel is, of course, completely irrelevant, as there is no dispute regarding the manner in which Sahib Shah met his death.
7. The argument regarding the location of the injury on the body of the deceased proceeds on an imperfect reading of the evidence of Dr. Nayyer Ramzan who appeared as P. W. 1 at the trial According to the post-mortem examination conducted by this doctor there were three inlet wounds: one on the lower part of outer one-third of neck with charring on left side, over the clavicle with fracture of the clavicle; the second over the outer aspect of right arm, upper-forth, on the back; and third on the right hypochondrium 1" from the mid-line --" below the low rib margin.
8. Charring was also found on the second and the third wounds, thus showing that the shots were fired from a very close range. The location of these 'three wounds of entry leaves no doubt whatsoever on the point that the deceased was shot at from the front side and not from behind.
9. Even the outlet wound No. 2, to which particular reference has been made by the learned counsel, is on the right aide of the chest at the mid-axillary line at the level of the fifth rib, the rib having been fractured. This wound is not on the front part of the body and therefore cannot provide the basis for an argument that the deceased was hit from behind.
10. As regards the fact that the stomach of the deceased was found to be empty, the High Court has rightly observed that the statement made by the father of the deceased dons not give the time at which the bread was taken, nor its quantity, and therefore it is not possible to say that the medical evidence contradicts the ocular account.
11. There being no previous enmity between the parties the incident having been reported pat the police station without avoidable delay, and the petitioner having been named as the culprit at the earliest possible opportunity, we are satisfied that the petitioner has been rightly convicted. In the matter of sentence the High Court has already given the petitioner the benefit of no extenuating circumstance that the honour of a girl of the Petitioner's family was involved. We accordingly see no merit in his petition which is hereby dismissed.