' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition from Jail for special leave to appeal is from the order of a learned Judge-inChambers of the Lahore High Court, Lahore, dismissing the appeal of the petitioner and upholding his conviction under section 302, P.P.C. And the sentence to imprisonment for life with a fine of Rs,10,000 or in default thereof to undergo further rigorous imprisonment for six months for committing the murder of Muhammad Khan, his relative and co- villager.
2. The occurrence took place on 24-4-1991 at 7-00 a.m. And the First Information Report Exh. PG was lodged at Police Station, Naushera, District Khushab, soon after (at 8-10 a.m.) by Rukan Din, complainant (P.W. 8) who is the brother of the deceased. The occurrence was witnessed, besides Rukan Din P.W., by Mst. Malkan Khatoon (P.W 9) daughter of the deceased and daughter-in-law of the petitioner. Muhammad Khan deceased used to cultivate a piece of land belonging to Maula Bakhsh, situate in the revenue estate of Oghali, District Khushab. Mian Ranjha, petitioner, claimed that the he was entitled to its cultivation. On 24-4-1991 at 7-00 a.m. When Muhammad Khan and Allah Yar were irrigating the land from a well, Mian Ranjha, petitioner, reached there and took cudgels with the deceased but Muhammad Khan was adamant to cultivate the land which was owned by Maula Bakhsh. Thereupon, Mian Ranjha, petitioner, got annoyed and hurriedly brought a gun from his nearby house. Mst. Malkan Khatoon (P.W. 9) followed him and beseeched not to kill her father but he did not desist and fired two shots at Muhammad Khan killing him on the spot.
3. Khan Amir, D.H.O. Police Station, Naushera (P.W.10) after registration of the case vide F.I.R. Exh.PG., inspected the spot; recovered blood-stained earth; prepared the Injury Sheet/Inquest Report of the deceased; and despatched the dead body to the mortuary for post-mortem examination. On 29- 4-1991 he arrested the petitioner who led to the recovery of crime weapon (gun) and a licence therefor from under a cot in his dwelling house. Among the eye-witnesses, Rukan Din (P.W.8) is no doubt a brother and Mst. Malkan Khatoon (P.W.9) is daughter of the deceased. Nonetheless, the former has got no animus to implicate the petitioner in the crime whereas the latter is also daughter-in-law of the petitioner having been married to Gul Baz, a son of the petitioner. In these circumstances, there was no reason to disbelieve the ocular evidence and their evidence was rightly accepted by the trial Court as well as the High Court.
4. The grievance of the petitioner which he has expressed in the petition substantially is three-fold; Firstly, that no incriminating evidence in the shape of empty was recovered; secondly, that there was a delay in lodging the report; that according to medical evidence the skull of the deceased had been completely smashed which was indicative of the use of 'Hammer' (Hotora) and; thirdly, that Mst. Malkan Khatoon had admitted her presence at Bahawalpur at the time and place of occurrence and, therefore, her testimony belied her claim to have witnessed the occurrence at village Oghali in Khushab District.
5. As stated earlier, the occurrence had taken place at 7-00 a.m. Whereas the report was lodged at Police Station, Naushera at 8-10 a.m. Which is eight miles away from the spot. There was thus no delay in reporting the occurrence. Nonetheless, it is a case of single accused who is related to both the eyewitnesses. It was a broad daylight occurrence. Therefore, conceding for the sake of argument that there was some delay, it would not be of any consequence to the petitioner. Again the petitioner had been labouring under the misconception on the medical evidence. He appears to have ignored that Dr. Mirza Abdul Qadoos (P.W.1) was categorical that the injuries including the one that had smashed the skull had been caused by the fire-arm. Furthermore, non-recovery of any incriminating material from the spot does not render the prosecution case doubtful if it is otherwise proved.
6. The contention that Mst. Malkan Khatoon P.W. Had firstly admitted her presence at Bahawalpur at the time and place of occurrence has been elaborately repelled by the learned Judge-in- Chamber on the following reasoning:-- "In her statement recorded by the learned Sessions Judge, the words `at the time of occurrence, which are written in ink, do not bear his initials. If he had written these words at the time of recording her statement, he must have mentioned this fact in the body of judgment, while discussing her testimony, but there is no such mention. Therefore, the possibility of their subsequent addition by some dishonest hand with a view to win concession for the appellant, cannot be excluded, but if at all they were genuinely written, they do not nullify the effect of her deposition in the immediate following next sentence, wherein she clearly stated that she was present in the house of her father-in-law at the time of occurrence. The copy of her statement recorded under section 161, Cr. P.C. Is available on the record. It appears that the first case diary (URDU TEX) was recorded by the Investigating Officer on 24-4-1994 at 9-00 am. It also shows her presence besides many others on the spot near the dead body of her father. This fact also lends support to the view that she was present in the house of her father-in-law and not at Bahawalpur, where her husband was employed perhaps in the Army and admittedly her son was born there a few months earlier."
' Had the plea as aforesaid been genuinely raised before the learned trial Judge, he would have definitely taken note thereof and given a finding thereon one way or the other. Having omitted to take this 'plea before the learned trial Court, the finding of the learned Judge-in-Chamber that it was a later addition in ink sounds reasonable. This plea of the petitioner is also of no avail to him.
7. The occurrence, as stated above, took place in broad daylight and only one single accused has been implicated in the crime. There is no reason on the part of the witnesses to falsely implicate the petitioner. Accordingly I reject the pleas raised by the petitioner in his petition from Jail and finding no merit there in dismiss it.
' MUHAMMAD NUNIR KHAN, J.---I agree. Leave to appeal is refused.
(Sd.)
Muhammad Munir Khan, J.
(Sd.)
Muhammad Bashir Khan Jehangiri, J.