' Mumtaz Khan (24) was tried under section 302, P.P.C. For the murder of Khalid Mahmood Khan by the learned Additional Sessions Judge, Miaawali. The learned trial Court vide its judgment, dated 30-11-1989 convicted him thereunder and awarded him sentence to imprisonment for life and fine of Rs,10,000, or in default of payment of fine six months' R.I. The benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The convict has filed the present appeal and the complainant has filed Criminal Revision No,88 of 1990 for enhancement of sentence alongwith compensation. I propose to dispose of the aforesaid appeal and revision by this judgment.
3. According to the case of the prosecution on 30-12-1985 at about 8-00 a.m. Khalid Mahmood deceased was going to sell fodder in the market while the complainant and Nasrullah Khan son of Hayat Ullah Khan, caste Pathan were following him at some paces, when Khalid Mahmood deceased reached near the house of Ahmad Khan in Mohallah Lohan Khel Dakhli Kamarmashani, Mumtaz Khan appellant came out of the house armed with .12 bore pistol and raised a Lalkara that today Khalid Mahmood deceased shall be taught a lesson for teasing his sister Mst. Khudija, and at that very moment he fired at Khalid Mahmood deceased hitting him on right ribs, as a result of which he fell down at the spot and in that condition Mumtaz Khan appellant fired a second shot which proved ineffective. The complainant and Nasrullah Khan did not go near due to fear.
Thereafter Mumtaz Khan appellant went back into his house alongwith his pistol.
4. Attar Khan alias Athar Khan complainant (P.W.8) and Nasrullah Khan (died before examination on 9-74989) took Khalid Mahmood deceased to the hospital in an injured condition where he died.
After leaving the dead body there the complainant went to Police Station Kamarmashani where on his statement F.I.R. (Exh.P.F.) was recorded by Safdar Ali Wahla Inspector/S.H.O. Of the said police station at 8-45 a.m. On 30-12-1985. After completing all the formalities, the challan was submitted in the Court.
5. Dr. Muhammad Tariq Masood Khan Niazi, Medical Officer, Civil Hospital, Isakhel (P.W.4) conducted the post-mortem examination on the dead body of Khalid Mahmood deceased on 30- 12-1985 at 3-00 p.m. And found the following injury on his person:-- "Fire-arm wound of entry over in area of 7 c.m. x 5 c.m. On the right side of back of chest, 12 c.m.
From the midline and 2 c.m. Below the right scapula lower end. The wound had got five separate opening 1 x 1 c.m. In diameter. No tatooing was present only slight burning was there."
' In his opinion the death was due to shock and haemorrhage on account of the only injury found on the dead body. The injury was ante-mortem and was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was half an hour to one hour and between death and post-mortem was 6 to 8 hours.
6. Believing the prosecution evidence, the learned trial Court convicted the appellant and sentenced him as indicated above.
7. The learned defence counsel vehemently contends that Attar Khan alias Athar Khan complainant (P.W.8), the sole eye-witness is a chance witness of the crime, and he has failed to furnish any plausible and reasonable explanation for his presence at the spot. He is also a close relative of the deceased being his paternal-uncle. His evidence is contrary to the medical evidence. The recovery of the crime weapon at the instance of the appellant has not been proved, because there are glaring discrepancies between the evidence of Muhammad Ashraf Khan (P.W.9) and Safdar Ali Wahla (P.W.10) the I.O. Regarding the time, the manner in which the pistol P.5 was recovered. According to Muhammad Ashraf Khan (P.W.9) the pistol was recovered from the house of the appellant at 10-30 a.m. Whereas the I.O. Deposed that he recovered the pistol at 1-30 p.m. In addition to that there is conflict between the evidence of these witnesses with regard to manner of recovery. Over and above this, Muhammad Ashraf Khan (P.W.9) is a close relation of the deceased besides being not resident of the locality. The case is of two versions; one version is given by the prosecution, whereas the other version has been advanced by the defence supported by two defence witnesses, one is the real sister of the deceased and the other is father of the deceased, who took the plea that he killed the. Deceased in self-defence and also to protect the honour and modesty of his daughter Mst. Khudija Bibi (D.W.1). The medical evidence fully support the version of the defence, hence in these circumstances, the prosecution has failed to prove its case beyond reasonable doubt and the appeal be accepted.
8. The learned State counsel has supported the impugned judgment.
' The learned counsel for the complainant has urged that the prosecution has proved its case beyond reasonable doubt, because substitution is a rare phenomenon and there is overwhelming evidence on the file to prove the guilt of the appellant. He also urged that the sentence awarded to the appellant needs consideration and his sentence be enhanced to death while maintaining his conviction and also prayed for the enhancement of compensation awarded to the complainant.
9. I have minutely perused the record with the able assistance of the learned counsel for the parties and critically examined their respective submissions.
10. Admittedly the occurrence took place in the broad daylight, in the absence of any previous enmity between the parties. I see no justification to discard the confidence inspiring evidence of the complainant P.W.9, who was present at the scene of occurrence when appellant committed the murder of the deceased. He lodged the F.I.R. With great promptitude, which completely A rules out the possibility of substitution or this possibility that the occurrence was an unwitnessed crime.
Mere relationship per se is no ground to reject the straightforward eye account furnished by this witness. Non-production of some independent witnesses as contended by the defence, though available, is by itself no ground to disbelieve the ocular version furnished by this P.W., because normally people avoid to become eye-witnesses in murder cases to avoid wrath of the accused party. No doubt, it is a case of two versions, the salutary principle for the just decision of the case of two versions is that both the versions are put in juxtaposition, then the Court on the basis of the evidence before it, has to see which version is more probable or near to the truth, keeping in view the golden principle that the onus of proof in a criminal case always remains on the shoulders of the prosecution.
11. Applying the aforesaid principle of law to the facts of this case, I find the prosecution version gets support from the independent sources, such as lodging of the F.I.R. Without any delay, recovery of the crime weapon at the instance of the appellant, coupled with this fact that the substitution of real culprit for somebody else is a rare phenomenon, because normally close relative who had witnessed the crime would not let off the real culprit without any cogent reason. The reasons given by the defence are fanciful and contrary to the record. The defence plea that father of the appellant Ahmad Khan (P.W.2) caused the death of the deceased after receiving the injury at the hands of the deceased seems to be ridiculous in the presence of the material brought on the record. The police without any enmity would not detain Ahmad. Khan for fifteen days illegally just to fabricate a false case against him in order to involve his son because he is a young man, just for this reason, that the deceased was also a young man and the complainant did not want to involve his father due to his old age.
12. For the foregoing reasons, I find that the appeal is devoid of any force, so it is dismissed on merits.
13. I have given my anxious consideration to this aspect of the case, what should be the appropriate sentence and compensation in this case, especially when the appellant committed the murder due to family honour, as the deceased misbehaved with his sister Mst. Khudija (DNA). I find the sentence awarded to the appellant needs no consideration, as the incident took place due to indecent behaviour of the deceased, so the learned trial Court rightly treated it as a mitigating circumstance while awarding him sentence under section 302, P.P.C., so this revision has no force which is dismissed accordingly.