' TARIQ PARVEZ, J.---Deceased Muhammad Arshad while sitting in the graveyard of the village situated close to his house was joined by Raees Khan (P.W. 12) his cousin and later by Muhammad Zahir (P.W. 3) his maternal uncle son and while busy in gossip appellant Wazir Zada armed with a 30-bore pistol came to the spot, called the name of the deceased Muhammad Arshad and then fired at him, as a result, deceased was hit and got injured.
' Raees Khan rushed to his house situated nearby and informed Haji Khan (P.W. 1) his father and from the spot the injured was taken in a cot to Civil Hospital, Bakkhela where injured survived but for one hour and then died.
' Report of the crime was made by Haji Rahim Khan in Police Station Aladand. Accused was arrested on 20-7-1998 and when tried by learned Sessions Judge/Zilla Qazi, Malakand at Bakhela was found guilty of the offence and through judgment dated 22-5-1999 has been awarded life imprisonment with a fine of Rs,50,000 and in default of payment of fine to three years' R.I. With benefit of section 382-B, Cr.P.C. Of the fine on recovery Rs,40,000 was ordered payable as compensation to the legal heirs of the deceased.
2. Learned counsel appearing for the appellant argued that it was an unseen crime, the spot of the occurrence is also doubtful, the time of occurrence is not known, the time of report is also false, that the recovery of two empties of .30 bore on 21-7-1998 after a lapse of more than 1/1/2 months and that recovery of a licensed pistol later matching with the aforesaid empties would not advance the case of the prosecution. He argued that this is a case of total dishonest investigation.
3. While elaborating the points formulated it was argued that presence of the deceased in the graveyard is not natural and so will be joining of the P.Ws. Raees Khan and Muhammad Zahir. The two witnesses were said to be chance witnesses and related to the deceased. It is argued that no empty was recovered from the spot on the day when site plan was prepared nor any blood was found. It is submitted that although according to the site plan deceased on receipt of injuries had chased the assailant for about 40 paces but no trail of blood.
4. Learned counsel also argued that according to the statement of Dr. Muhammad Essa Khan he examined deceased (then injured) at 11-15 p.m. Whereas F.I.R. Was recorded at 11 p.m. And in the F.I.R. Deceased has been shown dead although according to the doctor the time of death would be somewhere near 12-00 mid-night.
' It is argued that two empties recovered on 21-7-1998 would be a case of plantation and that .30 bore pistol taken into possession through memo. Exh.P.W.4/1 would not prove that the pistol was recovered from the appellant as incharge of Police Station Faqir Abad, Peshawar did not appear in the witness-box to prove the recovery.
5. Learned counsel appearing for the complainant and learned counsel appearing for the State, however, rebutted the above arguments and stated that mere difference in time recorded by the Investigating Officer as against given by the doctor would not destroy the direct testimony of two eye-witnesses. They argued that single accused is charged and there is no previous enmity between the parties.
6. No doubt that time of occurrence given in the report is "unknown" but narration of the facts given in the F.I.R. Indicates that it was after Isha prayers. It has been brought in the testimony of Raees Khan (P.W. 2) that during the days of occurrence Isha prayers used to be offered at 9 p.m. It is again in his statement that after about half an hour of offering Isha prayers he reached the spot and has spent about 45 minutes or one hour on the spot when the occurrence took place. From such statement of the witness one can calculate that the occurrence had taken place at about 10-15 or 10-30 p.m.
' The deceased (then injured) was taken to the hospital for treatment and according to the statement of Dr. Muhammad Essa Khan he examined him at 11-15 p.m. When the deceased was injured and that one hour after his arrival the injured died in the hospital. The time of death, therefore, would be 12-00 midnight or 15 hours. The fact is that report was made after the death of the deceased as appears in the F.I.R. Also as stated by Haji Rahim Khan Complainant at the trial that he made the report after spending one hour in the hospital and when leaving the hospital for his village he went to Levy Post for recording his report. The time of report recorded as 23-00 hours by the Investigating Officer appears to be incorrect time. We may make a difference between incorrect time and false time. False would be a time which is belied by all other circumstances appearing on the record or which time runs contrary to admitted facts. The incorrect time would be when time recorded is inconsistent with the time recorded by another official and the witnesses of the real occurrence are supporting the time recorded by the other officials and not by the police i,e, the time of examination as 11-15 p.m. Given by the doctor.
7. When there is direct testimony of two eye-witnesses and their statements are consistent regarding taking of the injured to the hospital where he was received at 11-15 p.m. And when according to the doctor death occurred after one hour of the arrival of the injured and when according to the complainant (P.W.1) they spent one hour in the hospital and therefore the report was made in which report deceased was shown as dead, the time of report given by the.
Investigating Officer would be incorrect and such incorrect time would not damage the case of prosecution as it would be incorrect time and not false time. Falsities are generally attributable to the complainant side and when their oral evidence is more consistent with the time given by the doctor, one can ignore the time, of report as recorded by the I.O.
8. Raees Khan and Muhammad Zahir the two P.Ws. Are though related to the deceased but they have got no enmity whatsoever against the appellant. Their statements have not been shaken in cross-examination and mere allegation that their joining the deceased was unnatural and that they would be chance witnesses would not prevail in absence of any suggestion to either of the witnesses that it was for the first time that they joined the deceased and were sitting for gossip. The chance witness is not necessarily a false witness particularly when their houses are situated in the close vicinity of the scene of crime.
9. Non-recovery of empties and non-recovery of blood from the spot would also be not fatal to the prosecution when single accused is charged by totally disinterested witnesses. The scene of crime can also be not doubted because if the prosecution wanted to fabricate the scene of crime and to substitute if from actual spot to some other spot there should have been some designs behind. For example as in the instant case the occurrence took place in the graveyard they could have instead brought the occurrence to a place where they could have easily introduced the existence of light as the occurrence in this case has taken place at night time. As there is no dishonest attempt on the part of the prosecution to shift the venue, no benefit can be derived by the accused from non- recovery of empties or blood.
10. The recovery of two empties of .30 bore on 21-7-1998 and their matching with the pistol is taken out of consideration for the safe administration of justice because it is unlikely that empties would remain lying on the spot for more than one and a half months and also because there is no proof that the licensed pistol was actually recovered from the personal possession of the accused- appellant and for this reason even the positive report of the fire arm expert is excluded.
11. The non-mentioning of name of Muhammad Zahir (P.W. -3) as eye-witness is also explainable that where the events, as stated in the F.I.R are very straightforward i,e, Haji Rahim Khan complainant does not claim himself to be an eye-witness but was informed by his son Raees Khan P.W. About the occurrence, he has rightly stated only such facts in the F.I.R. Which have occurred in his presence and in the manner as stated.
12. Where single accused is charged and there is no enmity between the lodger of the F.I.R. Or the two eye-witnesses and where in the cross-examination of two eye-witnesses including the complainant oral Dying Declaration has been introduced, such would be sufficient ocular account for maintaining the conviction.
13. Revision has been filed for enhancement of the sentence but we feel satisfied that in the circumstances of the case sentence of life imprisonment is appropriate because no motive whatsoever has been given either in the F.I.R. Or at the trial. Also because the deceased has received only one fire-arm entry wound and the appellant has not repeated the shot.
' For the reasons stated above, this appeal stands dismissed and so is revision.