' MUHAMMAD AZAM KHAN, J. The appellant Abdul Wahab son of Abdur Razaq aged 33/34 years, resident of Negar cum Makhan, District Haripur, was tried, by the learned Additional Sessions Judge, Haripur under sections 302/34, P.P.C., for committing the murder of Muhammad Saeed deceased in furtherance of his common intention along with the absconding accused, namely, Safdar. He was found guilty of the offence charged for, and vide his judgment, dated 25-8-1996 was convicted under section 302-C, P.P.C., and sentenced to undergo 10 years' R.I. With benefits under section 382- B, Cr.P.C.
2. The convict has filed the present appeal against his conviction and sentence. We have before us a criminal revision No,17 of 1996 "Muhammad Suleman v. Abdul Wahab" for the enhancement of the sentence of appellant to the penalty of death.
3. We, therefore, propose to dispose of both the matters through this common judgment. The facts of the prosecution case are that on 23-2-1995 at 13.40 hours complainant Muhammad Suleman lodged the report before P.W.7 Qazi Gohar Imtiaz, S.H.O. Of Police Station Saddar Haripur vide Murasila Exh.P.A./1.
4. The complainant alleged in his report that on the eventful day at 9-00 a.m. He along with his nephew, namely, Zakir Mehmood were cutting grass in their field when they saw the deceased Muhammad Saeed, a teacher by profession, proceeding on his cycle, to his place of duty to a school at village Kag.
5. Having seen the appellant Abdul Wahab and his co-accused Safdar (now absconding) the deceased raised an alarm. The complainant and his companion rushed towards him and saw the appellant and his co-accused belaboring the deceased. Safdar absconder had caught hold of the deceased while Abdul Wahab appellant fired at him with his .12 bore pistol and killed him.
Thereafter, the culprits decamped from the spot. Motive for the occurrence given by the complainant in the report is that Abdul Wahab accused suspected the deceased for having illicit relations with his sister Mst. Naheed Bibi. The delay in respect of lodging the report was explained by the complainant on account of his visit to the village and after informing the relations he returned to the spot where the Investigating Officer also arrived before whom he made the report.
6. P.W.7 Qazi Gohar Imtiaz who reached the spot after receiving the information of the occurrence, recorded the report Exh.P.A./1 of the complainant and sent the same to the police station for the registration of the case, where it was correctly incorporated in the register of the F.I.R. Vide Exh.P.A.
7. The S.H.O., thereafter, prepared the injury sheet Exh.P.W.4/1 and inquest report Exh.P.W.4/2 of the deceased and then despatched the dead body for post-mortem examination under the escort of a police constable,
8. Upon inspection of the spot he prepared the site plan Exh.P.B. At the pointation of the witnesses.
From the spot he took into possession blood-stained earth and sealed it in a parcel vide memo Exh.P.W.2/1. The cycle of the deceased was taken into possession vide memo Exh.P.W.2/2.
9. After the postmortem examination the clothes of the deceased were brought from the mortuary which the Investigating Officer took into possession vide memo Exh.P.W.1/1, while a phial containing pellets extracted from the dead body of the deceased was taken into possession vide memo Exh.P.W.1/2. The Investigating Officer, thereafter, searched for the accused but they were not traceable. Then he obtained warrants under section 204, Cr.P.C. And proclamations under section 87, Cr.P.C. Against them. However, the present appellant was arrested on 11-3-1995 and on the same day at his pointation he recovered a pistol of .12 bore Exh.P.6 vide memo Exh.P.W.3/1. He had sent the blood-stained earth and clothes of the deceased to the Chemical Examiner whose report is Exh P.F.
10. On completion of the investigation he submitted the challan against the appellant and challan under section 512, Cr.P.C. Against the absconding accused.
11. The postmortem on the dead body of the deceased was conducted by P.W.4 Dr. Tariq Qureshi on 23-2-1995 at 4-00 p.m. Who has found the following:- External appearance: ' Stout and dressed with shalwar qamees, banyan and sweater. All were blood stained.
External Injuries:
(1) Two fire-arm entrance wounds on upper arm left side with charring and blackening.
(2) Two exit wounds on the medial aspect of left upper arm.
(3) Three entrance wound on medial aspect left side chest in axilla just in line to the exit wounds on left upper arm.
(4) An exit fire-arm wound on chest right side anterior aspect.
' On internal examination the doctor found Oesophagus injured, diaphragm injured, stomach intact and full of semi solid food material, walls and cartilages injured, pleurae injured, larynx and trachea injured, right and left lungs injured, pericardium and heart injured, blood vessel injured, muscle of thorax and left upper arm injured. All these injuries were of fire-arm causing damage to aorta, heart, lungs, oesophagus which resulted in severe haemorrhage hypovelaemis shock and caused death immediately. The doctor handed over qamees, banyan, sweater along with three pellets and 5 copies of P.M. Report. According to the doctor, the probable time that elapsed between injuries and death immediate, between death and postmortem examination 7 hours. The postmortem report Exh.P.W.4/3 considering of 5 sheets is in his hand writing and bears his signature correctly.
Injury sheet Exh.P.W.4/1 and inquest report Exh.P.W.4/2 are also correctly signed by him. According to him, injury No,1 was entry while two are exit and injury No,2 is entry wound of injury Nos.3 and 4 is also an exit injury. The doctor deposed that the injuries on the person of deceased were sufficient in ordinary course of nature to cause death of the deceased.
12. On the conclusion of the trial the accused was examined under section 342, Cr.P.C. Who denied the charges brought against him and claimed to be innocent.
13. The prosecution produced as many as 7 witnesses in support of its case before the Trial Court, out of which the material witnesses are P.W.3 Muhammad Yousaf in whose presence the weapon of offence was recovered, P.W.5 Muhammad Suleman who is the complainant in the present case and P.W.6 Zakir Mehmood who is ocular witness of the incidence and supports the version of the complainant besides P.W.7 Qazi Gohar Imtiaz whose statement we have already discussed above.
14. The conviction of the appellant is based on the ocular account, the motive for the offence, and the recovery from the spot supported by the recovery of weapon of offence at the pointation of the accused/appellant and at last the medical report which commensurate with the ocular account. It is important to mention here that the complainant had attributed the type of weapon of offence to the appellant as .12 bore pistol and from the dead body of the deceased 3 pellets were recovered besides it is a case in which a single accused has been attributed the effective role of murder.
15. Confronting the aforesaid material available on the record against the appellant the learned counsel for the appellant contended that it was an unseen occurrence; that there was sufficient delay in reporting the matter to the police and the witnesses of the prosecution were related to the deceased, as such the conviction of the appellant was bad in law.
16. Admittedly there is a delay of about 4 hours in reporting the matter to the police but in the concluding part of the Murasila and his statement recorded before the Trial Court the complainant has categorically stated and had given the explanation that after the occurrence he had proceeded to his village 2 and 1/2 kilometre away from the spot to inform his relations who accompanied him to the spot, where the Investigating Officer also reached and recorded his report. The complainant was cross-examined at length but nothing favourable to the accused could be extracted from him. He is related to the deceased but he has no enmity with the accused, being a 'Zamindar' by profession he was supposed to be present at 9 a.m. In his field cutting fodder for his cattle in the company of P.W.6 Zakir Mehmood who is stated to be his nephew. Besides, the complainant before the Trial Court recited 'Qalma' and had denied the suggestion that he was deposing falsely against the accused being a close relation of the deceased. Similar is the statement of P.W.6 Zakir Mehmood. These two witnesses seem to be natural witnesses to the occurrence as they have from the very beginning attributed the effective shot to the appellant by using a .12 bore pistol. Their version is corroborated by a material circumstance as after the postmortem examination 3 pellets were recovered from the dead body of the deceased. Besides, the statements of these witnesses are corroborated by the recovery of .12 bore pistol Exh.P.6 after the arrest of the appellant at his instance. This recovery of course was effected in the presence of Muhammad Yousaf P.W.3 who is not related to either of the parties and seems to be an independent witness. The accused made himself scarce and absconded after the occurrence which also is a circumstance which connects him with his guilt. In view of the principle laid down in PLD 1962 SC page 269 the two ocular witnesses of the prosecution cannot be deemed as interested witnesses as they have no motive to implicate the appellant for the present offence.
17. Besides, the motive attributed for the occurrence on the present record is also convincing. The complainant has specifically stated in the F.I.R. That the sister of the appellant Mrs. Naheed Bibi had i'licit relations with the deceased. This fact is also supported by the Investigating Officer and by the accused himself in his statement under section 342, Cr.P.C. Wherein he has admitted that Mst.
Naheed Bibi was his sister. The Investigating Officer had gone to the extent that Mst. Naheed Bibi who had illicit relations with the deceased and become pregnant. In the instant case a single accused is charged for effective role and the substitution in such like cases is a rare phenomena, the witnesses of the prosecution would not allow the real culprit to escape by implicating innocent person.
18. None of the prosecution witnesses have been cross-examined to negate the motive advanced by the prosecution, therefore, in the absence of any other cause we are convinced that the motive given by the complainant for the offence is plausible. The ocular evidence adduced by the prosecution is consistent and clear to the effect that the appellant, is responsible for causing the murder of Muhammad Saeed deceased by firing at him with a .12 bore pistol. In view, of the matter, we are firm in our view that the prosecution has proved the murder of the deceased at the hands of the appellant and, therefore, the learned trial Judge, has rightly convicted and sentenced him under section 302-C, P.P.C. In the instant case the question of family honour of the sister and that of the appellant is involved, therefore, in our view the conviction and sentence being adequate and proper need not be enhanced.
19. While up-holding the conviction and sentence of the appellant we dismiss the appeal. It is note worthy to mention that the appellant has already exhausted his conviction and sentence by undergoing the same as he was present in Court today and in view of our observations already recorded the criminal revision No,17 of 1996 also stands dismissed.