1984 P Cr (PLP)

4. After murdering Mst. Shamim, Muhammad Tufail while armed with the same pistol went to murder his father at his house. He could not find his father there and found his house having been closed by a latchet. He went to the house of Umaid Khan and asked him to hand over his father to him. Umaid Khan refused to accept his refractory demand and the appellant fired at Umaid Khan which hit his right arm and the ribs. Shahsawar and Noor Ahmad witnessed this incident and Muhammad Tufail went away threatening the ocular witnesses with dire consequences.

5. Imam Ali, the complainant went to the Police Station Doonga Bonga and lodged the report there at 10 a. m. on the same day. The police went to the spot and prepared the injury statement and the inquest report in respect of Mst. Shamim deceased. Her dead body was sent to the mortuary. Malik Qadir Bakhsh, the Investigating Officer then sent Muhammad Sharif A. S.-1. to the hospital where Umaid Khan was lying injured. Malik Qadir Bakhsh collected the blood-stained earth from both the places of incident and made the same into a sealed parcel. He picked up two empty cartridges Exh. P. 2 and Exh. P. 3. from the venue of the murder of Mst. Shamim and another empty was picked up where Umaid Khan P. W. 9 was injured. They were made into a sealed parcel. The appellant was arrested on 12th April, 1979 from the side of I/R Canal. O n his personal search, the Investigating Officer recovered pistol Exh. P. 8 and two live cartridges Exh. P. 9/1-2. He also got removed the blood stained shirt of the appellant Exh. P. 10 and made the same into a sealed parcel.

6. The autopsy on the dead body of Mst. Shamim was conducted by Dr. Bashir Ahmad Goraya, P. W. 4 who found the following injuries on her dead body: - (i) There was almost a round wound on the right side on the upper abdomen of the dimension of x ". The area around this wound was black and burnt. (ii) There were six small wounds on the lower left bark of equal size of the dimension of 1/6' x I /6". (iii) There were three wounds lateral to the above six wounds of the same dimension. . (iv) A wound on the lateral side of the left nipple of the aforemention ed size i. e. 1/Cr' x 1/6''. The shirt of Mst. Shamim was found burnt and torn from the right side of the abdomen. Dr. Abdul Wahid P. W. 5 had observed the following injuries on the person of Umaid Khan: - (i) Four rounded punctured lacerated wounds at the front and inner aspect of right elbow, joint, plus right arm 1' x 1" right muscles deep. X-ray was advised. (ii) Four punctured wounds surrounded lacerated wounds at the right front of the chest and upper abdomen, 1" x 1 chest and abdomen deep. X-ray was advised.

7. The appellant was examined after the conclusion of the prosecu tion evidence under section 342, Cr. P. C. He denied the charge and explained that the complainant wanted the hand of his elder sister for his son Mushtaq and when they refused to marry their elder sister to the com plainant's son, he falsely entangled him in this case. About Umaid Khan he has stated that he was a smuggler and bad suspected that the appellant had imparted information regarding his anti-social activities. He has added that the wife of Umaid Khan was abducted by Sami Ullah, the sister's son of Imam Ali and Umaid Khan had beaten Sam i Ullah and others and was also having enmity with the family of Bodalas and may have been injured by them.

8. At the very outset it may be noted that Sardar Ahmad Khan, Advocate, the learned counsel for the appellant has scrupulously conceded that there was enough evidence on the file to show that Umaid Khan had been injured by the appellant and his conviction and sentence under section 307, P. P: C. is unassailable. He has, however, challenged the conviction and sentence awarded to the appellant under section 302, P. P. C. regard ing the murder of Mst. Shamim.

9. Obviously Imam Ali, the complainant is not the eye-witness of this incident. Mst. Chaman and Ali Ahmad, the ocular witness of the incident of murder are stated to have been won over and were not produced. The complainant has stated that Noor Ahmad and the ocular witnesses, who have not been examined had narrated the incident of murder of his daughter. Apart from his statement, Noor Ahmad P. W. 7 has stated that the appellant happens to be his maternal uncle's son and Imam Ali, the complainant is a member of his brotherhood and a maternal uncle. It shows that he is equally related to Imam Ali and the appellant. He-has stated that when the appellant came to kill his father and had approached Umaid Khan, then-he had proclaimed that he had already killed Mst. Shamim and wanted to murder his father and then to commit suicide. This statement has been corroborated by Shahsawar P. W. 8 and Umaid Khan P. W.

9. Imam Ali P. W. 6 had stated that Mst. Khurshidan his first cousin was the sister-in-law of Umaid Khan who was married to him and he had divorced her. He added that Mst. Bashiran, the first wife of Umaid Khan was abducted by his nephew Sami Ullah and Mst. Bashiran had sought a judicial divorce against Umaid Khan. In this manner, the learned trial Judge had rightly concluded that Imam Ali, the complainant and Umaid Khan P. W. 9 were having animosities against each other. Consequently the statement of Umaid Khan and that of Shahsawar, his brother regarding the extra-judicial confession of the appellant's guilt before injuring Umaid Khan appears to be correct.

10. This extra-judicial confession has been corroborated by the motive for the commission of this offence which has been stated by Imam Ali P. W. 6, Noor Ahmad P. W. 7 Shahsawar P. W. 8 and Umaid Khan P. W.

9. The medical evidence is indicative of the fact that Mst. Shamim, was fired at from a close range. The injury on the abdomen shows that A the area around the wound was burnt and torn. It, therefore, reinforces the fact that the appellant was very close to Mst. Shamim when he fired at her abdomen. The medical evidence serves as a good substitute for a cogent corroboration in this case.

11. The blood-stained shirt of the appellant was taken into posses sion at the time of his arrest and this fact has been deposed by Noor Ahmad P. W.

7. Noor Hassan P. W. 10, Hakam Ali P. W. 11 have testified that the pistol Exh. P. 8 and the five cartridges Exb. P. 9/1-2 were recovered from the appellant at the time of the latter's arrest and the blood stained shirt of the appellant was also got removed. Malik Qadir Bakbsh has supported the factum of the recovery of blood-stained shirt, pistol, cartridges and the empties from both the spots. The recovery of these articles has been proved. The blood-stained shirt of the appellant is illustrative of the fact that he had held the neck of Mst. Shamim and)" bad fired at her abdomen and, therefore, his shirt was besmeared with blood.

12. The fire-arm expert has sent a positive report Exh. P. Q. that the empties bad been fired at from the pistol Exh. P.

9. The learnedly counsel for the appellant has assailed this report on two grounds; that no reason for this positive report has been mentioned therein and the pistol and the empties were sent to the firearm expert on one and the same date and there could be a chance of substitution. He has cited Muhammad Hassan v. The State (P L D 1982 Lab.577) and Ali Haider v. The State (1981 P Cr. L. J 97). In the later precedent, the guilt or innocence of the accused rested entirely on this report and reliance was refused where the reasons of the opinion were not embodied. In the instant case, there are other factors too which corroborate the extra-judicial confession made by the appellant before firing at Umaid Khan. In this manner, the principle enunciated in the later precedent cannot safely be extended to the facts of this case. With reference to the precedent reported as P L D 1982 Lab. 577, it has been suggested that the Investigating Officer may have substituted the pistol because the empties and the pistol were sent with delay. Since no question was put to the Investigating Officer regarding the suspected substitution of the crime weapon, so the appellant cannot take any benefit of this precedent.

13. The extra-judicial confession regarding the murder of Mst. Shamim has positively been deposed by the prosecution witnesses. No question was put in cross-examination regarding the utterance of the appellant that he had killed Mst. Shamim and would kill his father. The E implicit presumption is that the has accepted their version. The extra judicial confession has been corroborated by the motive for the commis sion of this crime, the medical evidence, the report of the fire-arm expert and the recovery of the blood-stained shirt of the appellant. In this manner, the appellant has rightly been convicted under section 302, P. P. C.

14. The affidavit of Imam Ali, the complainant has been placed on the file who had sworn to the effect that he has pardoned the appellant. Imam Ali was present in the Court room today and when questioned be endorsed the fact that he had really sworn the said affidavit and had granted pardon to the appellant. This being so, he has effected a concilia tion with the appellant and has pardoned him for the murder of his daughter.) In such circumstances as held in Muhammad Bashir v. The State (P L D 1982 S C 139), the death sentence was commuted to imprisonment for life and the fine imposed on the appellant was also remitted. Adhering to the said prece dent, we maintain the conviction of the appellant under section 302, P. P. C. and reduce his sentence to that of imprisonment for life. Imam Ali had given pardon to the appellant so the fine awarded to him under section 302, P. P. C. is remitted. The appeal preferred by the appellant against his conviction under section 307, P. P. C. stands entirely dismissed. We, however, order that both the sentences shall run concurrently and the appellant can have the benefit of section 322-B, Cr. P. C. The sentence of fine and award of compensation to Umaid Khan under section 307, P. P. C. remains unaltered. The appeal fails with the simple modification that the sentence under section 302, P. P. C. has been reduced to imprisonment for life and the amount of fine awarded thereunder is remitted. The death sentence is not confirmed and the reference is answered accordingly. M. Y. M Order accordingly.