ABDUL RAUF KHAN LUGHMANI, J.---Asif Khan son of Gul Khan, aged abut 28 years, was convicted under section 302, P.P.C. For having committed the murder of Rustam Khan by firing on 14-12-1996 at 9-30 a.m. And sentenced to suffer imprisonment for life and to pay Rs.30,000 as compensation under section 544-A, Cr.P.C. And also convicted under section 449, P.P.C. And sentenced' to suffer 10 years' R.I. With a fine of Rs.5,000 or in default thereof to further undergo one year imprisonment while the other two accused, namely, Hazar Khan and Azam Khan were acquitted by the learned Additional Sessions Judge, Abbottabad, vide order dated 8-3-2000. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
The convict has filed Criminal Appeal No.14 of 2000 challenging his conviction and sentence while the complainant has filed Criminal Revision No.10 of 2000 seeking enhancement of sentence of the convict. Both the matters are proposed to be disposed of .By this single judgment.
2. First information report Exh.P.A./1 was recorded in the shape of Murasila by Mansoor Ali Khan, A.S.- I. (P.W. 9) at 12-20 p.m. On 14-3-1996 at R.H.C., Havelian at the instance of Muhammad Afsar Khan (P.W.4), who alleged that on the morning of occurrence he alongwith his injured son Rustam Khan, were Mst. Gulshan Bibi (P.W.6) were present, when in the meantime Gul Khan alongwith his three sons Hazar, Azam and Asif came to his house. Gul Khan was armed with a pistol. Hazar and Azam were carrying .12 bore shot, guns, while appellant Asif was having a Kalashnikov. No sooner they came appellant Asif asked Rustam Khan as to why he had beaten his (appellant) sister a day before and simultaneously fired a shot at his son. Rustam was hit on the left side of the chest and fell down. On raising hue and cry, all the four ran away from the spot. The motive is that a day before the occurrence were of Rustam got annoyed with his husband Rustam and went to the house of her parents.
3. Material part of the investigation which needs to be mentioned is that one empty of 7.62 bore which smelt of fresh discharge was recovered vide memo. Exh.P.W. 1/1 on 14-12-1996, recovery of blood-stained earth from the house of the deceased and recovery of one Kalashnikov at the instance of the appellant from a heap of garbage containing 7 live cartridges which accused took out on 19-12-1996. All the four accused were charged under sections 302/449/34, P.P.C, they pleaded not guilty and exercised right of trial. Gul Khan died during the trial.
4. In all 11 witnesses were produced. Two D.Ws., namely Mukhtar Bibi and Riasat Khan were examined. There is nothing significant in the statement of the appellant, who also appeared in the witness-box in terms of section 340(2), Cr.P.C. The appellant did not admit commission of offence, pleaded innocence and false implication, denied recoveries at his instance and termed the P.Ws.
As highly interested.
5. The trial Court acquitted Hazar Khan and Azam Khan but on the basis of ocular testimony of the two witnesses, recoveries, medical evidence and the report of the Fire Arms Expert found the appellant guilty of offence and sentenced him as mentioned in para.1 of this judgment.
6. Khan Afsar Khan, learned counsel for the appellant, assailed the prosecution case by pointing out inordinate delay in the F.I.R, as according to him the occurrence took place at 8-30 a.m. While the report was lodged at 12-30 p.m. In the Rural Health Centre, Havelian; Muhammad Afsar Khan (P.W.4) could lodge report at Police Post Rajoiya and also at Dheri Kehal where the police post was located in the house of one Ajaib absconder and non-mentioning of recovery of Kalashnikov at the instance of the appellant in the daily diary. He further submitted that according to the post- mortem report the time between death and injury was 30 minutes and the deceased could not have been taken alive to the Rural Health Centre. The deceased, according to the learned counsel for the appellant, had illicit affair with his cousin, who became pregnant and that the deceased committed suicide which fact is borne out from toe balckening around the injury.
7. We have carefully considered the submissions of the learned counsel for the appellant with reference to the record and find that the delay it making the report in view of the facts and circumstances of the case is immaterial and would not demolish the prosecution case qua the appellant. There is no-background of enmity between the parties and consequently P.W.4 or P.W.5 for that matter could not be expected to come out with a false accusation involving capital punishment. Sister of the appellant was married to the deceased but there were differences. A day before the occurrence after altercation she left the house and went to the house of her parents. On the day of occurrence the appellant and others came fully armed. The appellant asked as to why the deceased had beaten his sister and fired a shot which proved fatal. No satisfactory evidence is available that the deceased had any illicit affairs with his cousin or that she got pregnant. These suggestions were turned down by the witnesses. The occurrence did not take place at 8-30 a.m.
Although P. W.4 at one stage stated that the occurrence has taken place at 8-30 a.m. But in the cross---examination he twice clarified that occurrence took place at 9-30 a.m. The occurrence took place all of a sudden and concern of the family members was to save the life of Rustam by taking him to Rural Health Centre which was the nearest. P.W.4 did state that he went to Dheri Kehal and where one guard was available, who expressed his inability to record F.I.R being a security guard. There is no established police post at Dheri Kehal in the house of Ajaib absconder and indeed there is no such question of establishing a police post in a house of the proclaimed offender. One person has been charged for tiring and the others, who were not attributed firing.
Haider Zaman, A.S.-I. (P.W.6) on receiving information regarding the arrival of injured rushed to the R.H.C. Havelian, where he found the deceased and the matter was reported to him by Muhammad Afsar Khan (P.W.4). Omission to mention recovery of Kalashnikov at the instance of the appellant in the daily diary is: not fatal and at the most it may be the result of -I inefficiency of the concerned police official. We are also not impressed that the deceased committed suicide for he had no reason to commit suicide. He was earning livelihood in Baluchistan and few days back came to village. A day before the occurrence there was altercation, between him and Mst. Gulshan, his were, who left the house and went to the house of her parents. It appears that the deceased might have beaten or slapped her and that is why when the appellant entered the house he asked the deceased as to why he had beaten his sister and fired at the deceased. Time between death and injury is given by the Doctor approximately and it is never conclusive. There is evidence, qualitative in nature, to show that the deceased was taken in injured condition to the Rural Health Centre and in presence of eye-witnesses we are not going to believe that the' deceased died within 30 minutes of the incident. It may also be mentioned that the ocular testimony furnished by P.W.4 and P.W.5 was not attacked on merits but it was pointed out that they were interested witnesses. We cannot accept that those P. Ws. Are interested as indeed interested witnesses are persons, who have reasons to falsely implicate and in the instant case there is hardly any reason to falsely implicate the appellant. The two eye--witnesses have consistently, clearly and categorically charged the appellant for a single shot with Kalashnikov. They are the natural and probable witnesses of the E occurrence being, inmates of the house. Empty was recovered from the spot and the prosecution has successfully proved the recovery of Kalashnikov from the heap of garbage close to the house of the appellant. The empty and the Kalashnikov were sent to the Arms Expert, who opined that the empties were wedded to the Kalashnikov. Here we may quote with advantage the case of Amir Khan v. The State and another 2000 SCM R 1885 wherein their lordships held that from the statement of a medical officer opposed to the proved and admitted testimony of reliable eye- witnesses, the latter is to prevail against the former.
8. The case against the appellant stood proved by the testimony of the ocular testimony consisting of P.W.4 and P.W.5, recovery of crime empties from the spot, recovery of blood, recovery of Kalashnikov at the instance of the appellant and the report of Fire Arms Expert as well as the medical evidence.
9. Resultantly the appeal is dismissed.
10. In view of the facts and circumstances of the case the learned Sessions Judge, awarded sentence of life imprisonment to the appellant, which seems to be just and proper, therefore, the criminal revision filed by the complainant for enhancement of sentence is also dismissed.