' FALAK SHER, J.---Muhammad Ashraf aged 20 years having been indicated in the case registered vide F.I.R. No,143 of 3-7-1992 (Exh.P.E) under section 302, P.P.C. Police Station, Mamumkanjan, District Faisalabad at the instance of Muhammad Gulzar P.W.9, by Allah Bakhsh S.-I./S.H.O. P.W.11, reporting the murder of his younger brother Muhammad Zafar aged 40 years, by pistol shot firing, pulling it out from the string of his Shalwar, landing on his chest around 10-30 p.m. In front of their house to which he succumbed on the spot, avenging the objected loitering around with a view to abducting their maternal niece Farzana, attracted by whose altercation precipitating into grappling, he emerging out of the house alongwith his brother Bilal (given up), witnessed the occurrence together with Muhammad Ashraf P.W.10 and Muhammad Sarwar (given up), whereafter the appellant vanished away, culminating into his conviction and sentence to death by an Additioanl Sessions Judge, Samundari, District Faisalabad vide judgment dated 31-1-1994 which on appeal (Criminal Appeal No, 70 of 1994) was affirmed by a learned Division Bench of the Lahore High Court, Lahore allowing Criminal Revision (No,418 of 1994), awarded Rs,50,000 as compensation to legal heirs of the deceased within the contemplation of section 544-A Cr.P.C. Answering the murder reference (Murder Reference 24 of 1994) in the affirmative vide the impugned judgment dated 18- 3-1994.
2. Against which the appellant preferred Jail Petition for Leave to Appeal No,180 of 1999, which was granted on 10-9-2001, hence the captioned appeal.
3. Allah Bakhsh P.W.11 S.-I/S.H.O. After recording the F.I.R. Proceeded to the spot and embarking upon the investigation collected bloodstained earth Exh.P.B, attested by Nazir Ahmed P.W.6; prepared injury statement of the deceased Exh.P.F., inquest report Exh.P.G., rough site plan Exh.P.H, got site plan Exh.P.A. Prepared from Aurangzaib Draftsman P.W.1; effected the appellant's arrest on 20-7- 1992 on his showing up who led to the recovery of an unlicensed revolver P.5 stored in a box of his house, secured into possession vide memo. Exh.P.D., attested by Muhammad Ali given up; dispatched the dead body to the hospital for postmortem examination through Abdul Ghafoor, F.C.
P.W.14, who lateron tendered last-worn clothes of the deceased shirt, P.1, Chaddar, P.2, Salooka, P.6 and a phial P.4 vide recovery memo. Exh P.1.
4. Dr. Munir Ahmed Naz P.W.7 Medical Officer on the same day conducted autopsy around 4-00 p.m. Observing the following vide postmortem report Exh.P.C:-- "(1) An abrasion 3 c.m. x 2 c.m. On the forehead.
(2) An abrasion 3 c.m. x 2 c.m. On the bridge of nose more on the fight side.
(3) An abrasion 1 c.m. x-1 c.m. On the right side tip of nose. ' (4) An abrasion 1 c.m. x 1 c.m. On the back of left elbow.
(5) A fire-arm wound of entry .5 c.m. x .4 c.m. On the left side front of chest six c.m. From the stenral angle 2 c.m, from the midline 9 c.m. From the left nipple and 13 c.m. From the right nipple, between 3rd and 4th left costal cartileges space, edges burnt area was 2 c.m. x 11/2 c.m.
(6) An abrasion 1 c.m. x 1 c.m. On the left side of abdomen 11 c.m. From the umbilicus."
' The bullet was embedded on the left side of veritabler column at the level of 9th Rib; stomach contained semi-digested fluid about 200 m.1; opined cause of death was shock and haemorrage due to injury No,5, anti-mortem of fire arm origin sufficient to cause immediate death in the ordinary course of nature; time lapse between the death and the injury immediate within 12 hours whereof the post-mortem was conducted.
5. Muhammad Gulzar complainant P.W.9 reiterating the prosecution story, responding to query stated that his niece Farzana aged 20/22 was unmarried 2/4 days preceding the incident she disclosed that the appellant warned to abduct her and used to tease her, factum whereof they did not share with any body else nor convened any Punchait being a matter of family honour; when he came out of the house alongwith the P.Ws. He saw the deceased and the appellant grappling from a distance of 10/12 feet; when he reached near them the appellant fired at the deceased approximately 6 feet away from the entrance of their house; the deceased fell on the ground with a face downward near the drain and sustained injuries on his nose and elbow; the appellant fired the solitary shot and did not fire while running away from the scene nor he aimed at them with a view to scaring them off.
' To the same effect was the testimony of Muhammad Ashraf P.W.10 brother-in-law of the deceased having house next door. Rest of the evidence was of formal nature.
6. Whereas the appellant while recording his statement perceived by section 342, Cr.P.C. Replying to question 12 stated as under:-- ' "Q.No,12: Have you to say anything else?
' Ans. About six months prior to this occurrence, Gulzar P.W. Bilal and Zafar deceased suspected me of having illicit relation with Mst. Farzana and had been giving the threats many a times that if I passed through the bazaar in front of their house, I would be cut into pieces by confining me inside the house. On the fateful night I was going through the Bazar to Chak No,193/GB Shumali to look after my mango trees. When I reached in front of the house of Gulzar P.W., Zafar deceased suddenly emerged out of his house and took me into his clasp and tried to take me inside the house. He also called Bilal and Gulzar P.Ws. To bring the Churris and was also loudly telling me that I was going to be minced inside the house. When Zafar deceased forcibly took me near the outer door of his house, I saw P.W. Gulzar and Bilal having Churris and rushing towards me. I struggled hard and got out of clasp of Zafar deceased and seeing the designs of the three persons and seeing the Chuiris in the hands of Gulzar P.W. And Bilal apprehended that I would be killed and under this apprehension in order to save my life I fired a shot at Zafar deceased who was still trying to apprehend me. After receiving the fire-arm injury Zafar again went forward to catch me and fell down on the drain. Thereafter, I ran away due to fear of the family of the deceased and on the following day. I went to Mamun Kanjan Police Station and appeared before Allah Bakhsh Inspector/Investigating Officer, handed over the revolver to him and narrated the story of occurrence as it had actually happened. The Inspector, in collusion with complainant party, are challenged the case (sic) on distorted version. I have no motive to attack Zafar deceased.
Whatever had happened was done by me under the stress of the circumstances and apprehension to my life."
' Which he had adopted before the Investigating Officer as well, opting not to depose on oath within the contemplation of section 340(2) ibid.
7. Having gone through the entire evidence with the assistance of the learned counsel for the parties, we are of the opinion that the prosecution has proved its case beyond the realm of doubt through unimpeached confidence inspiring testimony of the complainant Muhammad Gulzar, corroboration whereto has been furnished on all material particulars by Muhammad Ashraf P.W.10 whose presence at the spot is quite natural being immediate inhabitants of the local, having no reason to falsely depose against the appellant leaving the real culprit go scot free and the medical evidence; venue whereof has been established by the recovered blood-stained earth.
8. On which count the appellant's stance, practically admitting the motive sounds utterly improbable for having succeeded in securing his release from the clutches of the deceased should have easily escaped from the scene, instead of making the targeted killing of the deceased, admittedly being empty-handed without even aiming or attempting at the complainant and his brother Bilal given up P.W., at whose hands he allegedly apprehended a danger being equipped with butchers' knives.
9. Consequently, the appellant's conviction and sentence is unexceptionable being well-based under section 302(b) as Tazir particulars whereof seem to have inadvertently escaped by the notice of the Courts C below, without causing any prejudice to the appellant and is curable under section 537, Cr.P.C. Rauhandy the appeal being devoid of any substance, fails and is hereby dismissed.