' This judgment shall deal with and dispose of Criminal Appeal No,668 of 1981 and Criminal Revision No,661 of 1981, both arising out of the judgment, dated 21-10-1981, by which a learned Additional Sessions Judge at Sargodha, convicting Muhammad Amir appellant for the murder of Dost Muhammad under section 302, P.P.C., sentenced him to imprisonment for life and a fine of Rs,2,000 or in default of its payment to further undergo four months, R.I. He was also directed to pay a compensation of Rs,3,000 to the heirs of the deceased or in default to further suffer four months' R.I.
He, however, acquitted Muhammad Feroze of the charge of murder.
2. The brief facts of the case arc that Muzaffar Khan complainant and his brothers Nadir Khan P.W.
And Dost Muhammad (deceased) resided at Dera Charrianwala situated in the area of village Nali, Tehsil Khushab. During the night between 28th and 29th of September, 1980 when Dost Muhammad and his wife Mst. Sahib Khatoon P.W. Were sleeping in front of their house at the said Dera and Muzaffar Khan complainant and his brother Nadir Khan were sleeping at a short distance in order to look after their cattle, the latter woke up on the barking of the dog. It was Sehriwela and a moonlit night. To their surprise they saw Muhammad Amir appellant armed with a rifle and Feroze acquitted accused carrying the gun, standing near the cost of Dost Muhammad (deceased). The complainant party raised Lalkara on which Muhammad Amir appellant fired at Dost Muhammad with his rifle and both of them started running away. The witnesses tried to follow them. But Muhammad Feroze fired a shot at them with his gun. However, it did not hit anybody. The assailants threatened the witnesses and the latter stopped chasing them. The accused succeeded in making good their escape. As a result of the fire-arm injury Dost Muhammad died on the spot instantaneously as the bullet hit his mouth and pierced through his skull which was virtually blown up. The motive for the crime was that Dost Muhammad (deceased) allegedly had illicit relations with Mst. Rajan, the mother of Muhammad Feroze co-accused, and would-be mother-in-law of Muhammad Amir appellant.
3. The matter was reported to. The police by Muzaffar Khan complainant and a case was registered against the appellant and their co-accused under sections 302, 307/34, P.P.C. On the completion of investigation both the accused were sent up for trial to the Court of Session and on the commencement of trial the prosecution examined as many as 11 witnesses. Prominent among those were, Dr. Muhammad Riaz (P.W.3), who conducted the post-mortem examination, Muzaffar Khan complainant (P.W.7) and Mst. Sahib Khatoon (P.W.8), who gave the eye-witness account, Ghaus Muhammad (P.W.9) and S.I. Muhammad Iqbal (P.W.10) who had witnessed the recovery of weapons of offence from the accused, and A.S.I. Ahmad Khan (P.W.11) the main Investigating Officer who gave the details of the investigation. The rest of the witnesses were formal.
4. To be a little more precise, Dr. Muhammad Riaz Ali (P.W.3) had conducted post-mortem examination on the deadbody of Muhammad Amir on 29-9-1988 at 5 p.m. And found a lacerated wound with two teeth (left central and lateral inciser) fractured, and a' big lacerated wound of irregular shape on the head, with all bones of skull fractured and the brain coming out of the wound. According to thim, there was some undigested food in the stomach and digested food in the small intestines. The aforesaid injuries, in his opinion, being ante-mortem, were caused by a fire-arm and were sufficient in the ordinary course of nature to cause death. Injury No,1 on the mouth was an entrance wound and injury No,2 on the skull was an exit wound, he added. In his view, the duration between the death and post-mortem examination was fifteen hours. He proved the post-mortem report (Exh.P.C.) and sketch of injuries (Exh.P.C./1).
5. Muzaffar Khan complainant (P.W.7) and Mst. Sahib Khatoon (P.W.8) fully supported the prosecution version as eye-witnesses.
6. On the conclusion of the trial the appellant and his acquitted co-accused were examined under section 342, Cr.P.C. They denied the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implications on account of enmity, professed innocence. They, however, produced no defence.
7. The appellant was convicted and sentenced in the manner aforesaid while his co-accused Feroze was acquitted on benefit of doubt. Aggrieved by these findings where the former came up in appeal, Muzaffar Khan complainant filed revision petition, requesting therein for the enhancement of the appellant and challenging the acquittal of Feroze.
8. It was argued on behalf of the appellant that it was a night occurrence taking place on a Dera, having no arrangement for light and the identification of the assailants was not possible, particularly when they must have taken precaution to conceal their identity; that there was variation between the ocular account and the medical evidence regarding the time of occurrence as also the position where the assailant had fired at the victim because as per ocular account the occurrence took place at Schriwela and the assailant was standing towards the head of the victim, while, as per medical report, it took place even before mid-night and from the direction of the wound it appeared that the assailant must be standing towards the foot side of the deceased; that the delayed registration of the case indicated due deliberation and preliminary inquiry; that the motive stood falsified due to the old age of Mst. Rajan, the mother of Feroz acquitted co-accused, with whom there was no possibility of deceased who was about 40 years old, having illicit relations; and that due to the prosecution's failure to prove motive, the award of lesser penalty to the appellant by the trial Court was justified if this Court came to the conclusion that his conviction was to be maintained under section 302, P.P.C.
9. After perusing the record in the light of the above contentions raised by the appellant's counsel, I am of the view that his conviction and sentence are to be maintained. It was no doubt a night occurrence and there was no arrangement of any artificial light to make identification possible with that aid but it was a moonlit night, being 18th of the lunar month. So at the time of occurrence; whether it was mid-night or Sahriwela, the identification of the appellant, who was previously known to the eye-witnesses, was possible.
10. There was no material variation between the ocular account and the medical evidence. The calculation of time of death with the help of stomach contents is a guess work and not a sure method and in case of any variation worked out on that basis, as compared to the ocular account, is not decisive, particularly in this case when the margin of variation is 2-3 hours, the possibility whereof even the doctor did not exclude. Similarly, the eye-witnesses do not seem to have stated that the appellant had fired at the deceased while standing towards his head side, rather, they deposed that at that time he was towards the foot side of the cot. In that position the bullet hitting his mouth could go out of the head if he was sleeping flat with his face upward. It is only the Investigating Officer who tried to create some confusion. His statement on this point could be ignored.
11. The delay in the registration of the case and the possibility of A.S.I.'s holding of preliminary enquiry before the registration of the case are not the factors to be given much importance. The place of occurrence was a Dera situated 15/16 miles away from the police station, connected by a Katcha road. The complainant's first travelling on foot to the village and not finding any conveyance there, then proceeding towards the Pacca road situated miles away therefrom and eventually coming across an A.S.I. At about mid-day near a bridge are the facts which adequately explain the time spent before the lodging of the report. There is no cogent proof on the record to conclude that the A.S.I. Had, prior to the writing of complaint on the statement of Muzaffar complainant, held preliminary enquiry though this practice is some time resorted to by the police.
12. As regards the motive, neither Mst. Rajan nor the deceased was too old for sexual liaison.
Anyhow, due to the advanced age of the former the trial Court, which had the opportunity of seeing her in the Court, was in a better position to express its opinion on this aspect of the matter and I have no reason to differ with its findings on this point. As a result of these findings the appellant has already obtained concession in the matter of sentence.
13. In view of the above, there is no substance in the appeal as well as in the revision and both are dismissed. Since Muhammad Amir appellant is on bail, District Magistrate, Khushab, to whom a copy of this judgment should be endorsed, shall cause his arrest and send him to the prison for serving out his remaining sentence. He shall be entitled to the benefits of section 382-B, Cr.P.C.