' MUHAMMAD MUNIR KHAN, J.---This appeal arises from the judgment of the High Court of Balochistan, Quetta, dated 4-3-1992, whereby the appeal filed by the appellant Mir Muhammad against his conviction under section 302, P.P.C. And sentence of imprisonment for life awarded by the Additional Sessions Judge, Usta Muhammad, was dismissed.
2. In the occurrence which took place on 9-11-1988 at 7-30 p.m. In Goth Jabbal Khan, Tehsil Usta Muhammad, Mir Muhammad (appellant) and Naseer Muhammad (absconder/accused) allegedly caused the death of Sher Muhammad by fire-arm and attempted to kill Mst. Haleema. At the eventful time, Kehar (P.W. 1), Ghulam Sarwar (P.W.3) and Sher Muhammad (deceased) were sitting in the Dera of Shali, when Mir Muhammad (appellant) and Naseer Muhammad (absconder) both armed with guns came there and fired shots hitting on the right eye, neck and chest of Sher Muhammad resulting in his instantaneous death. The appellant and Naseer Muhammad then rushed to the house of Ghulam Muhammad in order to kill his wife Mst. Umedan. Mir Muhammad fired shot at Mst. Umedan which missed and did not hit her. Mst. Umedan ran away to the house of her sister Mst. Haleema to save herself. The appellant and Naseer Muhammad accused followed her. When Mst. Haleema tried to intervene and save her sister, Mir Muhammad injured her with butt of the gun in the presence of Ali Muhammad (P.W.2) and Ghulam Muhammad (P.W.7). The motive allegedly was that the accused were annoyed over the betrothal of the daughter of Mst. Umedan with Kehar. The accused took the deceased as responsible for that betrothal.
3. According to the medical evidence, Sher Muhammad died as a result of fire-arm injuries found on his body. Two injuries were found on the person of Mst. Haleema out of which one on the head was declared grievous. Muhammad Rassan, Sub-Inspector (P.W.8) recovered three empties from the place of the murder of Sher Muhammad and one empty from the house of Mst. Umedan where ineffective shot had been fired by Mir Muhammad at Mst. Umedan. He arrested Mir Muhammad on 12-12-1988 who got recovered .12 bore gun on 16-12-1988. The Fire-arms Expert's report is positive.
4. To prove its case prosecution produced eight witnesses. Kehar (P.W.1), Ali Muhammad (P.W.2), Ghulam Sarwar (P.W.3) and Ghulam Muhammad (P.W.7) have given the ocular account of the occurrence. Kehar (P.W.1) and Ghulam Sarwar (P.W.3) claimed to have seen the appellant and Naseer Muhammad firing at the deceased. Ali Muhammad (P.W.2) and Ghulam Muhammad (P.W.7) are the eye-witnesses of ineffective firing by Mir Muhammad at Mst. Umedan and of infliction of blows with butt of the gun to her. Deeda Ali, A.S.I. (P.W. 4) and Muhammad Rassan, S.I.
(P.W. 8) have supported the incriminating recoveries. Dr. Muhammad Ilyas (P.W.6) has proved the post-mortem report of the deceased and medico-legal report of Mst. Umedan.
5. The appellant when examined under section 342, C.P.C. Denied the incriminating circumstances.
He raised the plea of false implication on account of enmity. He made statement under section 340(2) of Cr.P.C. Wherein he denied the allegations of the murder of the deceased and the recovery of gun from him.
6. On conclusion of the trial, the appellant was acquitted of the charge under section 307/325, P.P.C.
For murderous assault on Mst. Haleema but was convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,5,000 or in default further R.I. For six months. The appeal filed by him was dismissed by the High Court of Balochistan, Quetta on 16-3-1992. The petition for leave to appeal filed in this Court was barred by 35 days. Leave to appeal was granted on 22-10- 1992 to reappraise the evidence, subject to limitation.
7. Learned counsel for the appellant has argued that the prosecution has failed to prove its case beyond reasonable doubt, in that, Kehar and Ghulam Sarwar P.Ws. Are closely related to the deceased; that there are contradictions and discrepancies in the evidence of the eye-witnesses; that Ghulam Sarwar (P.W. 3) in his statement before the Court has stated that the first shot was fired at the deceased from a distance of about four/five paces and the second shot was fired at him from a distance of one or 1-1/2 paces, yet there was no blackening around the wounds which shows that the eye-witnesses had not seen the occurrence; and that there being no independent corroboration of the ocular evidence, it could not be relied upon. Learned counsel for the State has supported the impugned judgment.
8. The petition for leave to appeal in this case was filed through jail. Reasons for not filing petition within time are satisfactory, so we have decided to condone the delay.
9. On our independent assessm ent of the evidence on record and circumstances appearing in the case, we find that the occurrence took place at 7-30 p.m. And the F.I.R. Was lodged after two hours of the occurrence at the Police Station which is at a distance of two miles from the place of occurrence. In cross-examination it was not even suggested to Kehar P.W. That the F.I.R. Was not lodged at the time and place as it purports. There is nothing in the evidence to show that the F.I.R.
Was not a genuine document. The F.I.R. Contains the names of the eye-witnesses, the names of the accused, the weapons carried by them and the part played by each one of them in the occurrence. No doubt, Kehar is the brother of the deceased and Ghulam Sarwar is his cousin, but they have no motive at all to involve the appellant falsely in the case. They live close to the place of occurrence and have given plausible cause of their presence at the relevant time. They have withstood the test of cross-examination. The learned counsel has failed to point out any material contradiction, major discrepancy or dishonest improvement in their statements or any conflict between ocular evidence and the medical evidence. Kehar (P.W.1) has stated that Mir Muhammad and Naseer Muhammad had fired shots at the deceased from a distance of 6/7 paces. Ghulam Sarwar (P.W.3) has stated that the first shot was fired at the deceased from a distance of 4/5 paces and second from 1-1/2 paces. This, to our mind is not a material contradiction. Difference of opinion with regard to the distance between the eye-witnesses is, but natural. One pace is equal to 2-1/2 feet. So, according to the eye-witnesses the shots were fired from a distance of more than 10 feet. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 227 it has been stated that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet and a revolver of pistol discharged within about 2 feet. In the absence of blackening no distinction can be made between one distant shot and another, as regards to distance". So, the absence of blackening around the wounds rather supports the eye-witnesses. The empties recovered from the place of occurrence were found to have been fired from the gun recovered from the appellant. This circumstance lends satisfactory corroboration to the statements made by the eye-witnesses. The submissions made by the learned counsel for the appellant are, therefore, devoid of force.
10. The upshot of the above discussion is that there being no merit, the appeal is dismissed.