' MUHAMMAD AFZAL LONE, J.---Fazal Dad appellant was tried and convicted under section 302, P.P.C.
For the murder of his co-villager Khalid Malunood by the learned Sessions Judge, Islamabad, and vide his judgment dated 6-4-1987 was awarded death sentence; a fine of Rs,2,000 was also imposed on him, in default whereof he was to undergo one year R.I. Further, a direction was given requiring the appellant to pay Rs,10,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. In appeal the High Court did not interfere with the appellant's conviction under section 302, P.P.C., but took the view that offence was committed by him on account of family honour and, accordingly, the death sentence was altered to one for life imprisonment. The sentence of fine and the payment of compensation to the heirs of the deceased were, however, not disturbed. The High Court's judgment is dated 19-2-1989.
2. In granting leave to appeal the learned Senior Member of the Bench, while recording his opinion, with which the learned second Member concurred, maintained: "8. After going through the impugned judgment and the evidence of the witnesses on record I am of the view that the death of the deceased by the injuries, as attributed, have been fully established, but the question that who killed the deceased requires further consideration in view of the fact that the eye-witnesses, being close relations of the deceased, are interested witnesses and enmity between them and the petitioner is established. The recovery of the revolver does not seem to be of much use, for firstly, it was admittedly a licensed revolver and its possession would not ipso facto connect it with the crime. Secondly, Muhammad Khalid, Inspector, SHO, Police Station, GoIra Sharif (P.W.12) in answer to a Court question stated 'I have opened the breach but the trigger cannot be pressed.' He volunteered the revolver is now in un-serviceable condition as it has been lying unused for quite some time and a lot of rust has been collected. It may be noted that evidence of this witness was recorded on 31st March, 1987, and the offence took place on 25th August, 1986. Thirdly, the recovery of revolver was made in the presence of a witness who was a resident of another village, a mile away, and who was also a relation of the deceased, as admitted by him in cross-examination, and as such, provsions of section 103, Cr.P.C. Were disregarded. It may be mentioned here that the defence of the petitioner was one of denial and false implication due to enmity.
9. I would, therefore, grant leave to appeal to examine whether it would be safe to uphold conviction based on interested ocular evidence in the face of established enmity between the parties and the use of the revolver recovered from the petitioner's house being doubtful."
3. In this case the occurrence took place on 25-8-1986 at 10-00 a.m. In the street of village Baikar Akkoo within the limits of Police Station GoIra Sharif. According to the F.I.R., the deceased was returning home after providing water to his buffaloes from a nearby Nullah, while his father Sultan Khan (P.W. 2) and his maternal uncle Ghulam Rasool (P.W. 3) alongwith one Ghulam Haider were sitting under a mulberry tree. When the deceased reached at the back side of the mosque, the appellant, armed with a revolver, appeared on the scene, raised a Lalkara that he would not spare him and then from a distance of 2 or 3 yards, fired at him. The first shot hit the deceased at the back of his right shoulder and the second shot landed at the back of his head. The deceased fell down on the ground and was later on removed by Sultan Khan (P.W. 2) to the Polyclinic Hospital, Islamabad, in an injured condition. There Gulfam Nasir, A.S.I. (P.W.11) recorded his statement at 11-15 p.m., on the basis whereof, the formal F.I.R. Was recorded. Initially, the case was registered under section 307, P.P.C. But on the death of the victim, it was converted into one under section 302, P.P.C.
The motive for the. Occurrence, as disclosed by the prosecution, is that the appellant suspected that the deceased was having illicit intimacy with his sister Mst. Zubeda.
4. The prosecution case is rested on the ocular testimony of Sultan Khan (P.W. 2) and Ghulam Rasool (P.W.3), the recovery of the revolver, the medical evidence and the motive.
5. In order to examine as to whether or not the High Court in upholding the appellant's conviction under section 302, P.P.C. Has made any departure from the established principles governing the administration of criminal justice, we have gone through the record before us. It is correct that Sultan Khan is the father of the deceased and the other eye-witness i.e, Ghulam Rasool is the deceased's maternal uncle, but there is no positive evidence on the file suggestive of the inference that the two eye-witnesses were inimical to the appellant. It is in the statement of Sultan Khan (P.W.
2) that Mst. Zubeda was married 7/8 years before the occurrence, she was mother of four children and putting up with her husband in Campbellpur. The deceased was also married about 2/3 years ago and was father of two children. He denied that there was any illicit relationship between the deceased and Mst. Zubeda, but deposed that the appellant suspected that the deceased was having such illicit intimacy with his sister which actuated him to commit the murder. According to Ghulam Rasool about eight years before the occurrence, Sultan Khan (P.W. 2) had satisfied the appellant and his father on oath that no illicit contacts between the deceased and Mst. Zubeda subsisted although he too stated that Fazal Dad appellant entertained such suspicion. Thus so far as the complainant side is concerned; on their part, they had cleared the deck and possibly had no reason to nourish a grudge against the appellant to implicate him falsely in the murder case. It is a different matter that the appellant had an animosity against the deceased because of the suspicion lurking in his mind. True enough, both the eye-witnesses are related to the deceased but they cannot be dubbed as inimical to the appellant. A reference to Muhmmad Afzal v. The State (1984 SCM R 308) will provide that even where a witness is closely related to the deceased but there is nothing to show that he has any animus to implicate the accused falsely, his statement can legitimately be formed the basis for conviction when corroboration thereto is lended by the recovery.
6. We have also examined the objection to the effect that the recovery of the revolver was witnessed by a witness who did not belong to the locality wherein the appellant's house is located, wherefrom the recovery was made, but we do not find any substance in it. This objection was also raised before the High Court but was turned down on the basis of reasoning with which we have not been persuaded to differ. The weight of the rule that where a witness to the search does not come from the locality, his evidence should be properly scrutinised by the Court, can hardly be diminished. But the term "locality" appearing in section 103, Cr.P.C.- "if it applies", has been defined in the Criminal Procedure Code and shall be susceptible to a connotation depending upon the facts and circumstances of each case. In the case before us. Muhammad Aslam, P.W. 4, a marginal witness of the recovery memo, as maintained by the High Court belonged to a place only a mile away from the village of the appellant. This, in the opinion of the High Court, did not rob him away of the status of the witness of the locality. Keeping in view the facts of the case, we entirely agree with the view taken by the High Court.
7. The prosecution version that the deceased was fired at from a revolver finds support from the medical evidence. Sufficient time had elapsed between the date of occurrence and the date when Muhammad Khalid, Inspector, S.H.O. Police Station, Golra Shard (P.W.12) appeared in the witness- box and found that the revolver was rusty. The possibility that the revolver became rusty during the interregnum between the date of occurrence and the date of statement of this P.W. Cannot be ruled out. Upon the material appearing on the record, there is no sufficient basis to discard the use of the revolver in question on the ground that it being rusted was incapable of user.
8. It is discernible from the record that the F.I.R. Was lodged promptly leaving no room for manipulation by the complainant side and set up a false case against the appellant particularly when the complainant and the other eyewitnesses did not have any animosity against the appellant. After hearing the learned counsel for the appellant and evaluating his submissions in the light of the record before us, we feel that the prosecution suceeded in bringing home the guilt to the appellant and the considerations which weighed with the High Court in upholding the appellant's conviction but interfering on the question of sentence only, fully conform to the requirements of law and do not call for interference by this Court.
' Resultantly, this appeal having been found without merits, is dismissed.