' SARDAR FAKHRE ALAM, C.J.--Lal Din and his son Johar Din stood their trial under sections 302/34 PPC in the Court of Sessions Judge, Mardan for causing the murder of Abdul Salam deceased on 17.8.1982 at 10.30 AM in front of Saw Machine of Azam Khan complainant PW.7. The learned Sessions Judge vide his judgment dated 11.4.1988 convicted accused Johar Din under section 302 PPC and sentenced him to suffer imprisonment for life and a fine of Rs,10,000/-, in default of payment of fine to undergo further two years R.I.Accused Lal Din was, however, acquitted.
2. Johar Din convict has come up on appeal to this Court against his conviction and sentence while Haji Azam Khan complainant preferred a revision petition for enhancement of the sentence from life imprisonment to that of death and also for awarding compensation. We propose to dispose of both the appeal as well as the revision petition by this Single judgment.'
3. Briefly stated the facts of the case are that on 17.8.1982 at 10.30 AM the deceased alongwith his father Azam Khan complainant PW.7, Jehanzeb PW 8 and Alamzeb (abandoned P.W.) were present in Saw Machine when the appellant and the acquitted accused called the deceased to come out. .When the latter came out of the Saw Machine, Lal Din, the acquitted accused caught hold of him while Johar Din appellant stabbed him with a dagger on his chest. Thereafter both the accused .Decamped from the spot. Azam Khan complainant, Jehanzeb and Alamzeb PWs went to the deceased, they found him seriously injured, they were taking him to the District Headquarter, Hospital in a Suzuki on route he succumbed to the injuries. In the hospital Azam Khan PW.7 lodged the report at 11.15 AM which was recorded by Mir Fazal Shah ASI PW.2 in the shape of 'Murasila'
Ex.PA/1. The motive given in the FIR was that the accused used to play taperecorder in their shop in a loud tone to which the deceased had twice objected, hence the occurrence.
4. In order to prove its case the prosecution examined nine witnesses including Azam Khan PW.7 and Jehanzeb PW.8, the two eye-witnesses of the occurrence and Dr.Sharif Ahmad, PW.3. At the close of the prosecution evidence the appellant was examined, who denied the charge but produced no defence.
5. Dr. Sharif Ahmad, P.W.3 conducted autopsy on the dead body of Abdul Salam deceased on 17.8.1982 at 12.30 PM and found the following injury on superficial examination:- "One stab wound 1" x 1/2" in size. Deep penetrating in 3rd intercostal space about 3" to the left from the mid-sternal line in front of the body."
On dissection the doctor found Thorax-pleurae side injured. Left lung injured. Pericardium and heart injured. Arch of the aorta injured.
' Stomach was healthy and contained semi-fluid In his opinion the cause of death was due to deep penetrating stab wound causing 'injury to the vital organs i.e, aorta, left lung and heart leading to severe entra-thorasic haemorrhage followed by shock and death.
' After taking into consideration the prosecution evidence on record, the learned Sessions Judge convicted the appellant and acquitted his. Father Lal Din as mentioned in the preceding para. Of this judgment.
6. The learned counsel for the appellant vehemently contended that the occurrence had not taken place at 10.30 PM as alleged by the prosecution but sometime earlier; that in site plan point No,1 does not correctly indicate the spot where the dagger blow was dealt; that both the eye-witnesses Azam Khan and Jehanzeb have not seen the occurrence; that investigation had preceded the F.I.R.
Which adversely reflects on the veracity of the prosecution story; that the site plan is diametrically opposed to the ocular account and. That the offence at the most is of culpable homicide not amounting to murder. All the objections have been thoroughly and judiciously vetted and have been found not to hold water. The FIR was lodged in the case at 11.45 AM just after 45 minutes of the occurrence, wherein the time of occurrence has been shown to be 10.30 AM. Neither the lodger of the FIR nor the eye-witnesses have been suggested that the occurrence did not take place at 10-30 a.m. But earlier to it. The post-mortem examination took place at 12-30 p.m. The same day and ,according to it the doctor conducted the examination within 3/4 hours of the death. -Usually time of death is given by the doctor approximately, it is not a strict yard-stick from which time of occurrence can be meticulously calculated. The argument that the scene of occurrence was somewhere else is not borne out by any material on record. In fact blood-stained earth was recovered from point No,1 shown in the site plan per statement of Amanullah Khan PW.9 which goes a long way to establish that it was the place where the dagger blow was dealt to the deceased. By strange analogy it was contended that both the eye witnesses had not seen the occurrence. Azam Khan PW.7 father of the deceased is the owner of the Saw Machine in the compound of which the occurrence took place. The time of incident would make him a natural witness present on the spot. Jehanzeb P.W.8 though related to the deceased is also an independent witness-in the way that he has no axe of his own to grind against the appellant. Both are totally disinterested witnesses. In what manner the investigation had preceded the lodging of the FIR, the learned counsel for the appellant could not elucidate. The site plan is in conformity with the ocular account and in no manner does it demolish the veracity of the same. Half-heartedly the learned counsel for the appellant contended that the offence did not amount to that of murder because the occurrence was sudden. He has conveniently ignored that even if it be treated as a sudden affair, it was not preceded by a quarrel or a fight and the appellant had taken undue advantage of the situation by giving a dagger blow to the deceased with such a force that it had injured vital organs i.e, aorta, left lung and heart leading to severe entrathorasic haemorrhage followed by shock and death. Besides this the appellant also remained absconder from the date of occurrence i.e, 17.8.1982 to 24.9.1982 for which no plausible explanation has been furnished. There was no motive for the eye-witnesses to have .Falsely implicated the appellant for the sole dagger blow.
7. For what has been observed herebefore the prosecution has been able to prove its case against the appellant to the hilt beyond any shadow of doubt. The appeal is, therefore, dismissed.
8. The school leaving certificate and the Radiologist report placed on record indicate that at the time of commission of the offence the appellant was fourteen years of age. Keeping in view the suddenness of the affair and the young age of the appellant we would not interfere in the sentence awarded to him. However, if the fine of Rs,10,000 is recovered, it shall be paid as compensation to the legal heirs of the deceased. The revision petition for enhancement of sentence is also dismissed.
Revision .