1990 PLP 1293 (SCMR)

RUSTAM S.SIDHWA, J.‑‑‑This is a petition by Munawar Shah petitioner seeking leave to appeal against the judgment of the Peshawar High Court dated 20‑6‑1989, dismissing his appeal. The brief facts of the case are that Qalandar s/o Rehmatullah, aged about 55/60 years, lodged a report with police station Oghi on 1‑8‑1985 at 3.15 p.m. wherein he stated that his son Muhammad Hamayun was working as a labourer with the Forest Guards of Watershed, where other boys of the village also worked as labourers for planting plants; that his son Muhammad Hamayun came to his house at lunch interval and after taking his meal he went back to his duty; that at that time he was accompanied by a child Javed son of Miskeen, who also took meals alongwith him; that when his son reached at a place known as Dhangari Maidan at 1.00 p.m., Munawar Shah s/o Muhammad Hussain Shah accused, a co‑villager, accompanied by Muhammad Abid son of Muhammad Saleh resident of Girdri, situated in the limits of Ismail Bandi, came from the front side, duly armed with guns; that Munawar Shah accused fired a shot with his gun at Muhammad Hamayun, his son, and killed him; that all this information was conveyed to him by Khurshid s/o Ghulam Rasool, his co‑villager; that when he the complainant went to the spot, he saw his son Muhammad Hamayun lying dead there, having injuries on the left side of his neck and near the chin and that the occurrence had been witnessed by Ghulam Rasool son of Noor Alam and Khurshid son of Ghulam Rasool, co‑villagers, and that there was a dispute over land with Munawar Shah accused and that Munawar Shah was responsible for killing his son Muhammad Hamayun.

3. Both the trial Court and the appellate Court f:)und that the motive was not proved, but relying upon the ocular account, the medical testimony and the recoveries, convicted and sentenced the petitioner a/s 302, P.P.C.

4. On behalf of the petitioner it is submitted that as the motive was not proved, the same reacts strongly on the prosecution case. It is further submitted that the Doctor who conducted the post‑mortem examination took swabs from the anus of the dead body of the deceased to have the same checked for semen, but the swabs were not sent to the Chemical Examiner for report, which has prejudiced the case of the petitioner at the trial. It is lastly submitted that though in the F.I.R. it was mentioned that the petitioner had used a gun, at the trial it was stated that a Kalashnikov had been used, which showed that the eye witnesses had actually not witnessed the occurrence.

5. The fact that a motive is suggested and not proved, does not totally destroy a prosecution case. In the instant case, all the three eye‑witnesses, namely, Ghulam Rasool P.W. 8, Muhammad Khurshid P.W. 9 and Muhammad Ahid P.W. 10 were found to be independent. The last witness was actually the person who was with Munawar Shah petitioner, when the petitioner fired at Muhammad Hamayun deceased with his Kalashnikov rifle, injuring the deceased on his face. In the face of such strong ocular account, the fact that the motive was not proved would not affect the prosecution case. As regards the submission that the swabs which were taken were not sent for examination by the Chemical Examiner, nothing turns on this objection, as it was never the case of the petitioner that any unnatural offence had been committed with the deceased by any other unknown person. As regards the discrepancies in the nature of the fire arm used, not all villagers can differentiate different types of rifles and guns by their particular distinctive names. The prosecution case having been proved to the hilt, the petitioner appears to have been properly convicted and sentenced. There being no merit in the present petition, leave is refused. N.H.Q./M‑1342/S Leave refused.