1. MUHAMMAD YAQUB ALI, ACTG. C. J.-Shah Wali, appellant, was, on 17-4-1970, convicted by the Sessions Judge, Campbellpur, for the murder of his nephew Muhammad Iqbal and sentenced to death. On appeal and reference under section 374, Cr. P. C., the High Court upheld the conviction and confirmed the sentence of death.
2. Leave to appeal was granted to the convict to re-examine evidence in the light of the pleas raised on his behalf that Mst. Sherbano and Mst. Razia the two eye-witnesses were not present on the scene and that the F. I. R. Was lodged after con--siderable delay. It was also argued that 7th July 1969, on which the occurrence took place being Monday the deceased must have been killed while going to village Ratwal where he worked as a Teacher. If so, the presence of the two eye-witnesses would be excluded.
3. We have examined the entire evidence with the assistance of Mr. Muhammad Shafi, learned counsel for the appellant and formed the view that the pleas raised in support of the appeal have no substance.
4. The occurrence took place near the abadi of village Dhakner on the morning of 7th July 1969, at about 7-30 a.m. The first information report was lodged by Mst. Sherbano, mother of Muhammad Iqbal, deceased, on the same day, at Police Station Makhad, 2-7 miles away from village Dhakner at about 5-30 p .m. The report was to the effect that Mir Akbar, husband of the infor--mant, and Shah Wali, appellant, his brother, carried on separate business in Mandi Chabb. About two year ago, Mir Akbar married his second son Bashir Nawaz to Mst. Gul Nisa, daughter of the appellant, which brought the two brothers closer to each other and they set up joint business in Chabb. Mir Akbir also ran a shop in village Dhakner and lived there with his son Bashir Nawaz and daughter-in- law Gul Nisa. About a year before the occurrence Muhammad 1qbal, deceased, who was employed as a Teacher in village Ratwal took up residence with his wife Mst. Razia in village Dhok Hindu at a distance of about a mile from village Dhakner. Mst. Sherbano lived with her daughter---in-law in village Dhok Hindu while the deceased stayed at Ratwal and visited his wife and mother off and on.
5. On the morning of 7th July 1969, the deceased came to the house of his father in village Dhakner at about Sargiwela. Mst. Sherbano and Mst. Razia also happened to be present there. After tea was served in the morning the deceased remonstrated with his father that the marriage of Bashir Nawaz to the daughter of Shah Wali had resulted in estranging him (Mir Akbar) from the family and that Shah Wali had exploited the marriage to his advantage. Shah Wali, appellant, who lived at a short distance from the house of Mir Akbar was also present when an exchange of hot words took place between father and the son. After that the deceased accompanied by Mst. Razia and Mst.
6. Sherbano left for village Dhakner. They had hardly gone 40/50 yards away from the village Abadi when the appellant overtook them in a depression armed with a gun and challenged the deceased that "let us settle the dispute today" and advanced towards him. The deceased who was empty-handed turned back presumably on the assumption that the appellant would not open fire on him. Suddenly the appellant aimed the gun at the deceased and fired two shots at him one after the other. The deceased was hit in the chest and on the arms and was felled to the ground.
7. Muhammad Iqbal though injured profusely remained in his senses for some time. Maseen Khan, resident of village Dhakner who had seen the occurrence ran towards the appellant to disarm him, but the appellant aimed the gun at him and told him not to proceed further. Mir Akbar and Bashir Nawaz also reached the spot on hearing the gun fire. In the meantime the appellant decamped with the gun. Muhammad Iqbal was placed on a cot and taken to Railway Station, Jhamat. From there he was to be taken by rail to Civil Hospital, Campbellpur for treatment. The party was still waiting for the train at the Railway Station Jhamat, when Muhammad Iqbal expired at about 10-30 a.m.
8. Leaving the deceased at Railway Station, Jhamat, Mst. Sherbano decided to So to Makhad and lodged there the first information report. She boarded the first train at 3 p.m. Which took her to Railway Station, Injra. From there she travelled by a bus and reached Police Station Makhad, at 5- 30 p.m. And lodged there the report Exh. P. A. Which was recorded by Abdur Rehman, S. H. O. There was thus no delay at all in lodging the first information report.
9. The S. H. O. Accompanied Mst. Sherbano to the place of occurrence and in the course of investigation picked up `two empties of .12 bore cartridges and blood-stained earth from near the place where the deceased was fired upon. These articles were sealed into separate parcels in the presence of Abdul Rehman, P. W. 6, village Lambardar, and one Sumandar Khan who was not examined during the trial.
10. The appellant was arrested on the 8th July 1969. In the course of interrogation he led to the recovery of his licensed .12 bore gun concealed under the bedding spread over a cot in one of the rooms of his house. According to the recovery Memo--randum Exh. P. S. The gun appeared to have been fired recently. It was sealed into a parcel in the presence of the aforementioned persons and sent along with the empty cartridges to the Centra Forensic Science Laboratory, Lahore. According to the report Exh. P. S. By the Examiner of Fire-arms both the empties marked C 1 and C 2 had been fired from the gun of the appellant.
11. The post-mortem examination conducted by Dr. Aziz Ahmad Rana on the dead body of Muhammad Iqbal, disclosed that he was hit by two separate gunshots which resulted in injuries which were fatal in the ordinary course.
12. During the trial direct testimony of the crime was furnished by P. W. 8 Mst. Sherbano, informant, P.
13. W. 9 Mst. Razia and P. W. 10 Maseen Khan. It is significant that Mir Akbar, father of the deceased, and Bashir Nawaz, brother of the deceased, who according to the F. I. R. Had reached the spot soon after the shooting by the appellant and to whom the deceased had named the appellant as his assailant did not appear in the witness-box. We appreciate why the Public Prosecutor did not examine them. They were closely related to the accused and could be won over. There is, however, no reason why the appellant did not produce them in his defence. One of them was his brother and the other a son-in-law. If the averments made in the F. I. R. By Mst. Sherbano were incorrect and the deceased had been killed by some unknown person they would have certainly come forward to defend the appellant. We do not mean to say that it was the duty of the accused to examine Mir Akbar and Bashir Nawaz. The onus lay on the prosecution from the beginning to the end to prove its case, but this omission is a material circumstance in judging the veracity of the eye-witnesses. We are further of the opinion that if the charge laid by Mst. Sherbano was to the knowledge of her husband and the other son false they would not have allowed her to go to Makhad and lodge there the F. I. R. Against the Appellant.
14. The High Court has not relied on the evidence of Maseen Khan and his testimony may, therefore, be ignored. But the learned Judges have accepted the testimony of Mst. Sherbano and Mst. Razia which as pointed out above is corroborated amply by the circumstances attending upon the crime. The most convincing circumstance is the recovery of the two empties C 1 and C 2 which matched with the licensed gun of the appellant. The High Court has for reasons which do not appear on the record overlooked this piece of evidence. We have read the testimony of P. W. 6 Abdul Rehman and P. W. 12 Abdul Rehman S. H. O., regarding the recoveries. No cogent reason appears to disbelieve them on this point.
15. We are thus fully satisfied that the appellant has been guilty of murdering his own nephew in a brutal manner. It was a case of a trivial verbal dispute between the father and son in which the deceased named the appellant as instrumental for causing a rift between him and his father. The accusation did not con--stitute enough provocation for an ordinary person to act in the manner in which the appellant acted. He might well have scolded him for it or even given a slap. To go to his house, arm himself with a shot gun, follow the deceased and shot him in cold blood depicts the cruel bent of his mind.
16. In the circumstances the High Court has for good and sufficient grounds upheld the conviction and sentence of the appellant under section 302, P. P. C.
17. The appeal it dismissed.