1. WAHEEDUDDIN AHMAD, J.-This jail appeal by special leave is against the judgment of the Lahore'
2. High Court in .Criminal Appeal No. 595 of 1969 (Murder Reference No. 156 of 1969), dated the 27th January 1971. By this judgment, the appellant's sentence of death was confirmed.
3. Appellant Muhammad Sadiq was convicted under sec--petition 302, P. P. C. By the learned Additional Sessions Judge, Sahiwal, by judgment dated the 19th July, 7969, for the murder of his co- villager Said Muhammad on the 19th November 1968, at Peshiwela, at Chah Pipalwala, in the revenue estate of village Suchan, Police Station Pakpattan, District Sahiwal. He was also sentenced to a fine of Rs.45,000 or in default to suffer three years' R. I.
4. The prosecution case is that about four months prior to the occurrence, the appellant approached Noor Jamat P. W. 2, accompanied by the latter's brothers-in-law A.I and Wali and requested for the hand of his daughter Mst. Sakina. The complainant rejected the proposal on the ground that he had only one nephew Said Muhammad and he had already betrothed his daughter Mst. Sakina to him. It is alleged that the appellant left annoyed ant' threatened him with dire consequences. Later on, Noor Jamal, married -his daughter to the deceased. A week thereafter, the appellant threatened the deceased in the presence of Noor Jamal that he would' not permit Mst; Sakina to live with him as his wife. Hot words were exchanged between the parties. The same afternoon, complainant Noor Jamal, Fateh Muhammad P. W. 6 and Shafi Muhammad P. W. 7 were smoking huqqa at some distance from the well Chah Pipalwala and the deceased Said Muhammad had just finished his Zohar prayers and was standing nearby. The appellant suddenly appeared at the scene, armed with pistol and shouted at him that he would teach hit a lesson for having married with Mst. Sakina Simultaneously he fired at the deceased with his pistol hitting' him on his forehead.
5. Said Muhammad fell to the ground - and became unconscious and , the two prosecution witnesses tried to catch hold of the appellant but he threatened them and escaped. 'The fire-report attracted Shah Muhammad Lambadar P. W. 8 and Anwar; They saw the appellant running away from the spot armed with pistol. The deceased was token to the hospital at 9-30 p.m. And expired at 11-00 p.m.
6. The appellant was arrested on the 23rd November 1968 while he was sleeping in his baithak. He, however, claims that he was arrested on the following day. While in custody, the appellant got recovered 'pistol, Exh. P. 6, from inside his pillow cover. The pistol was taken into possession vide Memo. Exh. P. L. During investigation a crime empty and pieces of lead were recovered from the scene of occurrence. All, these things were sent to the Forensic Science Laboratory, Lahore. Two parcel were sent on the 26th November 1968 under docket dated the 25th November 1968 containing crime empty and pieces of lead The third parcel was sent on the 30th November 1968, containing 12-bore country-made pistol, Exh. P.
6. The pistol and, the empty was examined by Sardar Saeed Gul, Firearms Expert The result of the examination Was that the crime empty had been fired from the pistol, Exh. P. 6.
7. The prosecution case rested on the testimony of the three eye-witnesses, namely, Noor Jamal P. W.
8. 2, Fateh Muhammad P. W. 6 and Shafi Muhammad P. W. ?. It also rested on the recoveries of empty and the pistol supported by report, Exh. P. Q./ I of the Expert, and the medical evidence.
9. The learned counsel for the appellant has taken us through the evidence in the case. The evidence shows that Fateh Muhammad and Shafi Muhammad had gone on the day of occurrence to help Noor Jamal in shearing sugarcane. They resided at one mile from the place of occurrence and the learned Judges of the High Court are right in observing that it was not extraordinary or - improbable that they should have gone to assist Noor Jamal and his nephew Said Muhammad deceased in the shearing of sugarcane. This is a matter of normal routine and the agricultural community usually assist each other in that part of the year. In view of this, the presence of Fateh Muhammad and Shafi Muhammad at the place of occurrence cannot be doubted. There is nothing on the record to show that these witnesses were on inimical terms. On their evidence, we are also satisfied that they are not chance witnesses. There is satisfactory evidence on the record to show that Noor Jamal, Fateh Muhammad and Shall Muhammad were present on the scene of occurrence and saw the appellant firing at the deceased. Their evidence is corroborated by the recovery of pistol and the circumstance that the empty recovered from the scene oft occurrence showed that it was fired from the pistol recovered at the instance of the appellant.
10. Malik Muhammad Akbar, learned counsel for the appellant, referred us to the observation of the High Court that the police investigation was not above board and the recoveries were doubtful. In this connection, the High Court has observed that the deceased was taken to the hospital at 9-30 p. m. And the time of the recording of the F. I. R. Was mentioned as 6-00 p.m. In order to cover the delay in filing the report. We have considered the observation of the High Court in this connection.
11. In our opinion too, the Investigating Officer has bungled in this case and has unnecessarily shown 6-00 p.m. As the time of the registration of the V. I. R. This, however, does not effect the merits of the case. The mere fact that the report was shown to have been recorded at 6-00 p.m. Will not mean that the ocular testimony in this case is false or cannot be believed. The High Court has believed the ocular testimony and we see no reason to differ from the High Court on this point. We, however, do not agree with the High Court that the recovery of the empty cartridge was doubtful. The evidence of P. W. 8 Shah Muhammad Lambardar clearly establishes that the police also picked up an empty cartridge, Exh. P. 5, from a pit which was at a distance of about 5/6 karams from the place of occurrence. It was sealed in a parcel under a Memo. The learned Judges of the High Court have not discussed this evidence. The learned counsel for the appellant was unable to satisfy us that this evidence is not reliable. The cartridge in question was sent without delay on the 25th November 1968, and it .Was received in the Forensic Science Laboratory on the 26th November 1968. We would, therefore, hold that the recovery of the empty is not doubtful.
12. It was further urged by the learned counsel for the appellant that the occurrence took place after sunset and it is a case of unwitnessed occurrence. This contention does not fit in with the medical evidence. According to the post-mortem report, the stomach of the deceased contained- six ounces of semi-digested food and small and large intestine contained faecal matter. In view of the medical evidence, Peshlwela time in winter being 1-30 p.m. The deceased must have taken his meals sometime at about 11-00 a.m. Under these circumstances, the prosecution case that occurrence took place at Peshiwela time appears to be correct.
13. After going though the evidence, we are satisfied that the conviction of the appellant is based on proper appreciation of the evidence. It is a case of single accused and the learned counsel for the appellant was unable to satisfy us that the appellant has been substituted for somebody else.
14. Under these circumstances, we see no ground to interfere. The appeal is dismissed.