' About a month prior to occurrence, Mst. Sudi wife of appellant namely Muhammad Salim Alias Lodhi was enticed away/eloped, when he was working as labourer in Karachi. He returned to village four days before the incident and suspected Mubashar Iqbal for having a hand in elopement.
2. In this back ground and with such motive, he, is alleged to have caused intentional murder of aforesaid Mubashar Iqbal by firing at him with a Carbine at about 4-00 p.m. On 9-1-1992 in the lane passing in front of house of Ilyas Khan in Abadi of village Dhala Khalan within area of Police Station Khudian in District Kasur as it gleans out from the statement of Nayyar Iqbal, first informant, embodied in F.I.R. Exh.P.E. And reiterated by him at the trial as P.W.7. At relevant time, deceased was going to Chah Meo Wala for bringing wood in the company of his brother Nayyar Iqbal, Haider Ali (P.W.8) and joined by Imran Ali Shah, given up P.W., in the way near the shop of Master Mehnga. He was fired at, while, ahead of Nayyar Iqbal and Imran Ali Shah, who, were following him and Haider Ali P.W.
3. After registration of case, Muhammad Hayat Sub-Inspector (P.W.9) came to the spot, where, he prepared injury statement Exh.P.G. And inquest report Exh.P.H. And despatched dead body to mortuary for post-mortem examination. He seized blood-stained earth vide memo. Exh.P.F., made it into sealed parcel, prepared rough site plan Exh.P.F. And recorded statements under section 161, Cr.P.C. Of witnesses. Next day, last worn clothes P.1 to P.5 of deceased were secured by means of memo. Exh.P.B., site plan Exh.P.D. And Exh.P.D./1 were also got prepared from Draftsman. Accused- appellant was arrested on 13-1-1992 and while in custody, he led to the recovery of carbine P.6, which was sealed into a parcel. Rough site plan of place of recovery Exh.P.C./1 was also prepared by the Investigating Officer.
4. On commencement of the trial before learned Sessions Judge, Kasur, appellant was charged under section 302 of Qisas and Diyat Ordinance for causing death of Mubashar Iqbal. On his pleading not guilty, prosecution led evidence against him by producing as many as nine witnesses.
Prominent amongst them are Dr. Munir Ahmed Gohar (P.W.1), who, conducted autopsy on dead oody of Mubashar Iqbal, Abdul Wahid (P.W.4) in whose presence carbine P.6 was recovered vide memo. Exh.P.C. At the instance of accused-appellant in custody, Nayyar Iqbal (P.W.7), Haider Ali (P.W.8), who, furnished ocular account of occurrence, and Muhammad Hayat (P.W.9) Investigating Officer.
5. When examined under sectior 142, Cr.P.C., accused-appellant, denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocence and alleged false implication due to enmity with the plea that deceased had several foes.
6. On conclusion of trail, accused-appellant was found and adjudged guilty of the offence with which he was charged and consequently convicted and sentenced to imprisonment for life with fine of Rs,2,000 or in default to under go one year S.I. In wake of involvement of family honour.
Compensation to the tune of Rs,30,000 was also awarded to legal heirs of deceased on realization from the accused-appellant, who, in default thereof was directed to suffer S.I. For further term of six months. Aggrieved by these finding, he has come up in this appeal.
7. Learned counsel for the appellant has lambasted the verdict, dated 30-5-1992 delivered by learned Sessions Judge, Kasur by pointing out that the same is rife and replete with legal and technical snags, which unfortunately escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. His main attack is upon alleged contradictions of oral evidence regarding direction and range of shot by Medical evidence. With reference thereof, it has been asserted that in such eventuality, medical evidence is to prevail and preferred. Reliance has been placed upon Bashir Ahmed and another v. The State 1974 PCr.LJ 385, Anwaar v. The State 1978 PCr.LJ 664, and Mangio v. The State 1976 PCr.LJ 243 (Karachi) In support of the contentions. In order to borrow fortification, certain portions of Exh.P.A. And Exh.P.A./1 have been compared to site plan Exh.P.D. And Exh.P.D./1 showing that victim was fired from a distance of 10 feet and not from front and close range as indicated in Exh.P.A. And disposed by Dr. Munir Ahmed P.W.1, about recovery of four pellets alongwith a card and wad from the site of injury.
8. Be that as it may, other circumstances of the present case are to be dived into for exploring truth in wake of law cited above. In 1974 PCr.LJ 385 real motive appeared to be quite different and was probably not known to the P.Ws., and, therefore, same was kept out of consideration being false or at least incorrect. In the instant case, however, motive, was unveiled from very out set. No doubt, it is not necessary to set up a motive, but, if, attributed motive, is not established, it is the prosecution, that suffers. Conversely, the motive was mentioned with clarity while lodging F.I.R. And it was got registered with promptitude and agility, no matter, the place of occurrence is statedly at a distance of 12 k.m. From Police Station. Accused-appellant -suspected illicit relations of the deceased with his wife and also elopement with the victim. Both eye-witnesses P.W.7 and P.W.8 have unanimously affirmed it.
9. Relationship of Nayyar Iqbal P.W. With the deceased cannot be lost sight of, but it is trite law that mere relationship is no ground to discredit) veracity of a witness. No rancour or malice stands scribed to him. Similarly P.W.8 did not harbour any grudge and looks a natural witness. Question of substitution does not arise. This defence plea was never taken during investigation at very inception. To establish above plea, very strong and cogent evidence is required which is lacking and missing. By maligning Aziz Dogar etc. In Exh.D.B. Onus cannot be taken to have been discharged and the plea of substitution looks to have been tailored at a belated stage and that too in crude and clumsy fashion. Not an iota or scintilla of ill will is visible from testimony of P.W.7 and P.W.8. Both are natural witnesses and they are on consensus regarding motive as observed above.
Hence any lapse reflected/translated on site plan cannot impair the case beyond repair. If distance between the victim and accused have been shown to be ten feet therein, it would not dismantle whole prosecution based on depositions of P.W.7 and P.W.8. Site Plan was never confronted to any one of P.Ws., in 1976 PCr.LJ 243, ocular witnesses had disclosed that the victim received only to hatchet blows, whereas, according to medical evidence, he, the deceased, was subjected to five blows. Similarly, in 1978 PCr.LJ 664, the maker of F.I.R. Stated that deceased was fired thrice and that shots hit him on his chest. Medical evidence revealed only a single injury, therein and such conflict between the account of maker of F.I.R. And medical evidence gave rise to inference that maker was not present at scene of occurrence. No such glaring discrepancy is discernable in this case.
' There is no disagreement regarding weapon of offence, number of injuries, place of injuries and even venue. Hence the defence cannot be allowed to make capital out of it because negligible errors in the site plan, which, cannot be treated to be main stay of prosecution case are of little significance impact and bearing.
10. It is single accused case, occurrence had taken place broad daylight, ocular account is natural and in line with medical evidence, motive stands established, weapons of offence was also recovered and its use has not been questioned and plea of substitution is too weak to ring true from any angle.
11. In these circumstances, judgment, sought to be impeached and set at naught is perfect, unexceptionable and free from any serious infirmity. Conviction and sentence in mitigating circumstances spelled therein, are accordingly upheld and maintained. Appeals, as a sequel, fail and are hereby dismissed.