' SAJJAD ALI SHAH, CJ.---Appellant, Shafiqur Rehman, was tried in the Court of learned Additional Sessions Judge, Gujrat, for offence under section 302, P.P.C. And was convicted and sentenced to life imprisonment with fine and compensation. He filed appeal in the Lahore High Court, which is dismissed with slight modification to the extent of reduction of amounts of fine and compensation from Rs,20,000 to Rs,10,000 and from Rs,25,000 to Rs:10,000 respectively, maintaining same sentence imposed for non-payment of the amounts. Complainant, Muhammad Azam, filed revision in the High Court for enhancement of the sentence, which was dismissed. In this Court leave has been granted in the petition filed against the conviction and sentence to examine probability of the two witnesses, who are related to the deceased, being present at the place of occurrence when the incident took place.
2. Briefly stated the facts are that P.W.3, complainant Muhammad Azam is father of deceased Muhammad Riaz, whereas the appellant is grand-son of the complainant's Sala. Incident took place on 8-4-1987 at 2-30 p.m. In the playground of the school in village Pahrianwali within the jurisdiction of Police Station Pahrianwali. It is alleged by the prosecution that while deceased Muhammad Riaz was standing in the playground, appellant, Shafiqur Rehman, alias Goga came there armed with twelve bore double-barrel gun and demanded from deceased Muhammad Riaz return of Rs,500, which was advanced to him as a loan. Deceased promised to return the money but there occurred exchange of harsh words between them. Deceased Muhammad Riaz turned back to go his house when the appellant fired from his gun at him, which hit him in the back and he fell down. Muhammad Riaz succumbed to gunshot wound at the spot. Incident was witnessed by Muhammad Azam and his two sons Muhammad Naeem Akhtar and Muhammad Javed. After the incident the appellant ran away from the spot. Leaving both the sons to look after the dead body, the complainant went to the Police Station where he got registered First Information Report.
3. P.W.6, S.H.O Abdul Hamid, came to the place of occurrence and inspected the dead body. He took further steps in the case of investigation and recorded the statements of the eye-witnesses.
He sent the dead body for the postmortem examination. S.H.O. Could not arrest the appellant as he had absconded, hence proceedings under sections 87 and 88, Cr.P.C. Were taken in hand.
Appellant was arrested on 2-5-1987 and gun and two live cartridges were recovered from him. Is that both the eye-witnesses are related to the deceased as P.W.3, complainant Muhammad Azam is father and P.W.4, Muhammad Naeem Akhtar, is brother of the deceased, therefore, they are interested witnesses and secondly that their presence at the spot at the time of incident is open to doubt for which confirmative and corroborative evidence is required, which is lacking in this case. It is not in dispute that incident took place in the playground of school which is near the road leading from Lan Adda to A' abadi Pahrianwali. S.H.O. While deposing in the trial Court stated in the cross- examination that the road was busy and normal and there was traffic at that hour when the incident took place. P.W.3, complainant Muhammad Azam, stated in his cross-examination that he owned fifteen acres of agricultural land, which was situate at a distance of three furlongs from the place of occurrence. His son Javed cultivated the land and that his other son Muhammad Naeem Akhtar was a bank employee. That the Lari Adda was 1-1/2 miles from the Abadi and at the time of incident he was returning from the shop of mechanic where he had gone to inquire if his wheat thrasher had been repaired. He gave name of the mechanic as Arif. There was no further cross- examination on this point and story of the complainant to show his presence at the spot was not challenged any further. Complainant stated that near the place of incident and the road there were no shops. There is cross-examination of the complainant but there is nothing else in it to show that he was not present there. Some suggestions were made to the complainant in the cross- examination that the dead body was taken from the spot to hospital by Muhammad Shafi in jeep and the story of attack was fabricated later. But on the other hand record shows that the dead body was sent by the S.H.O. From the spot to the hospital and Muhammad Shafi, who is first cousin of the complainant, identified the dead body at the time of post-mortem which does not mean necessarily that dead body was brought by him to the hospital. In fact record shows that the dead body was brought to the hospital by Constable Fateh Muhammad, who was assigned this duty by the S.H.O..
5. There is one other factor which adds credibility to the claim of the complainant to be present at the spot at the time of incident, that is, prompt filing of F.I.R., which has been done immediately within forty-two minutes of the incident. Incident took place at 2-30 p.m. And F.I.R. Was lodged at 3- 12 p.m. On the same day and distance between the spot and the police station is stated to be 1-1/2 miles. The S.H.O. Came to the spot immediately and took in his possession the dead body. Claim of the complainant is further confirmed by medical evidence as post-mortem shows that on the right side of the back of the chest of the deceased there was fire-arm wound which damaged the lung, liver and right ventricle of heart. This evidence confirms the fact that the shot was fired by the appellant when the deceased was walking away to his home with his back towards the appellant.
Presence of another eye-witness P.W.4, Muhammad Naeem Akhtar, is also disputed on the ground that he was working in the bank and was not likely to be present at the spot at the time when the incident took place. According to this witness at the moment he came on motorcycle with his brother Muhammad Javed sitting behind him. He has deposed that before firing of shot exchange of words took place between the appellant and the deceased over payment of money. This witness admitted in cross-examination that his bank opened at 9-00 a.m and closed at 4-30 p.m. But on the day of incident he left the bank early and did not get short leave from the bank. He came to Murala from where he picked up his brother Muhammad Javed and then came to the place of occurrence. There is nothing else in the cross-examination of this witness to show that it was not possible for him to be at the spot at the time of occurrence Muhammad Javed was not examined by the prosecution. Claim of this eye-witness to be present at the spot has not been falsified by any other evidence whether documentary or oral. Nor any request was made to the trial Court to examine any official from the bank to be examined as Court-witness to depose or produce any document to show that this eye-witness could not be present at the spot at the relevant time. The evidence of these two eye-witnesses is corroborated by medical evidence and prompt lodging of F.I.R. Without any delay, which is further supported by the fact that there was no enmity between the parties and there was no valid reason for falsely implicating the appellant, E who is related to the deceased and the eye-witnesses. It is also not in dispute that the appellant had absconded and was arrested after about twenty-four days and in the meantime proceedings were taken against him under sections 87 and 83, Cr.P.C. The appellant has not said anything in rebuttal of his abscodence. Appellant has examined Dr. Riaz Ahmed Gondal, Medical Officer, Incharge Rural Health Center, Pahrianwali, as D.W.1, who has deposed that the dead body was brought by Ch. Muhammad Shafi in jeep, and he informed the police station. This witness admitted in cross- examination that he did not make any entry in the register because it was a medico-legal case. He did not give time when dead body was brought to the Rural Health Centre, where he worked as Medical Officer. Neither such question was put to the S.H.O. In his cross-examination whether the dead body had been removed from the spot by Ch. Muhammad Shafi in jeep to the Rural Health Centre, Pahrianwali nor such question was mit to the eye-witnesses that they had not seen the incident and that dead body was removed from the spot by Ch. Muhammad Shafi in jeep to the Rural Health Centre, Pahrianwali. Deposition of the defence witnesses has not falsified the prosecution case and is not believed by the two Courts below in F comparison of overwhelming evidence of prosecution connecting the appellant with come.
6. We are satisfied that appraisement of evidence done by the trial Court and the High Court in appeal is fair and proper and no interference is warranted with the conviction and the sentence. In the result, this appeal is dismissed.