1984 SCMR 308 (PLP)

M. S. H. QURAISHI, J.‑This appeal by leave of the Court is directed against the judgment of the Lahore High Court, dated 25‑3‑1980 dismissing the appellant's appeal from his conviction under section 302 for the murder of Manzoor Elahi deceased and the sentence of imprisonment for life and a fine of Rs. 1,000 recorded by the Court of Session, Attock, on 30-4‑1978.

2. The relevant occurrence took place on 2‑9‑1975 at digar-wela in Dhok Dastowal, 18 miles from P. S. Talagang. Deceased Manzoor Elahi and his stepfather Sher Muhammad complainant were present in their field exercising their bullocks preparatory to participation in Talagang cattle fair. The appellant appeared with a gun and challenging the deceased, who was holding the bullocks, fired at him, thereby causing his death at the spot. The appellant then ran away with his gun. The occurrence was also seen by Muhammad Aslam.(P. W. 10), Noor Ahmad and Muhammad Ashraf.

3. The motive, according to the prosecution was that the appellant had earlier the same day, seen the deceased talking to the wife of his (appellant's) brother who was out in the service of the Army.

4. Sher Muhammad lodged report with the police at 8 a.m. on 3‑9‑1975. An empty (Exh. P. 7) was recovered from the spot. The appellant, who was arrested on 5‑9‑1975, led the police party to his house and from a box kept therein, produced gun Exh. P. 5 which was licensed in the name of Gul Mawaz, a cousin of the appellant. The empty matched with the gun in the test carried out by the Fire‑arms expert.

5. The parties are related to each other. The deceased was the son of Hakam Khan, a brother of Sher Muhammad complainant who bad on the death of Hakam Khan married his widow, where after the deceased bad come to live with him. The appellant is the son of the sister of Sher Muhammad. Gul Mawaz, in whose name .the recovered gun was licensed, is son of Muhammad Nawaz, another brother of the complainant. Muhammad Aslam P. W. is also related being maternal‑uncle of the deceased

6. The autopsy disclosed the presence of (1) a lacerated wound on the outer and back part of the left upper arm, 2 x 1 ' X muscle deep ; (2) a wound of entry on the left side near the left shoulder blade at the level of third rib, 2 ' x l , lacerating the upper portion of the lung and crossing to the right side through the right nipple (3) three exit wounds near the right nipple and (4) a pellet injury on the inner side of right wrist, skin deep.

7. Only two of the ocular witnesses, namely, Sher Muhammad (P. W. 9) and Muhammad Aslam (P. W. 10), were produced who fully supported the prosecution case. The other two, namely, Noor Ahmad and Muhammad Ashraf, were given up. The appellant denied his involvement in the murder and alleged that it was Sher Muhammad complainant who had himself killed the deceased in order to grab his share of the land. He also alleged that on the day of the occurrence, the complainant had given beating to the wife of the deceased and turned her out and as the deceased was bent upon taking revenge, he had put him to death on the night between the 2nd and 3rd September, 1975. He examined Muhammad Ashraf (D. W. 1) who had been cited as an eye‑witness in the F. I. R. but he stated that he had not seen the occurrence nor had he been present in the vicinity at the relevant time. He further stated that he had never been to Dhok Dastowal nor did he know either of the parties. Ghulam Hussain, who had been patwari of the halqa at the relevant time, was examined as C. W. 1 who stated that there was crop standing in the field of the complainant on 5‑10‑1975 when he conducted girdawari of Dhok Dastowal.

8. The trial Court believed the prosecution case in its entirety and accordingly found the appellant guilty of the murder. It, however, gave him the lesser penalty because he had "committed the murder on account of deceased's illegal intimacy with his sister‑in‑law". The High Court, however, excluded the evidence of Muhammad Aslam (P. W. 10) as he had, in its opinion, not satisfactorily explained his presence and as such was no more than a chance witness. The High Court also excluded the recoveries from consideration on account of the failure of the investigating officer to have despatched the empty expeditiously and having retained it "with him" until the recovery of the gun. However, it relied on the evidence of Sher Muhammad and maintained the conviction and the sentence.

9. Leave was granted to consider whether in view of the contentions raised that there was delay in lodging the F. I. R., that the version of the occurrence given in the F. I. R was materially different from that given at the trial and that the motive was neither proved nor sufficient, the solitary statement of Sher Muhammad could form the sole basis of conviction.

10. Learned counsel has urged that implicit reliance could not be placed on the occular testimony of the only witness, that is Sher Muhammad, who had prevaricated on the question of delay in lodging the F. I. R., had made improvement in regard to the site of the injury and had falsely cited Muhammad Ashraf as an eye‑witness although the latter had testified that he had never been to the village. He also pointed out that according to the complainant, only one shot had been fired but according to the medical evidence there could have been more than one. The complainant had in the F. I. R. stated that he could not reach the police station in the night because of the hilly route and fear of the appellant. In his evidence he, however, stated that he had reached Chinji at mid‑night but as he could not get any conveyance, he boarded a truck a little before Fajar prayer for Talagang to lodge the report. P. W. Muhammad Aslam had also stated before the police (with which he was duly confronted) that the complainant could not go in the night for lodging the report because the route was hilly and there was fear of the appellant and accordingly he went in the morning to the police station. Keeping in view the fact that the police station being situate at a considerable distance of 18 miles, it was not possible for the complainant to reach there immediately without a transport, the discrepancy which is over a matter of detail is of no material significance. In any case nothing turns on the delay in lodging the report. Of no more significance is also the discrepancy regarding the site of the injury which the complainant had given in the F. I. R. as the chest but in the evidence as "the left side" of the deceased, because of the presence of the exit injury at the chest which the complainant must have mistaken for the entry wound. As regards the number of shots, there is no material to conclude that the injuries could not have resulted from one shot. The statement of the medical officer that "injury No. 1 could be the result of an independent shot" is only a possibility. Both the Courts below have believed Sher Muhammad. He is closely related to the appellant and nothing has been brought out to show that be had any animus for falsely implicating him in the case. No suggestion had been put to him in line with the defence plea that he had himself killed the deceased. Moreover, he is corroborated by the circumstance of recovery of the empty from the spot which matched with the gun recovered at the instance of the appellant, from within a box lying in his residential house. In the absence of any evidence of tampering, the High Court, with respect, was not justified in excluding this circumstantial evidence only on account of delay in despatching the empty. The evidence shows that Faiz Muhammad A. S. 1. (P. W. 11) had received the sealed parcel of the empty on 5‑9‑1975 and kept it in the Malkhana until 15‑9‑1975 when he had made it over intact to F. C. Ghularn Akbar (P. W. 2) who had' delivered the same "intact" at the office of the Forensic Sciences Laboratory, Sihala, on 18‑9‑1975. Similarly, the gun had been received by Faiz Muhammad A. S. 1. in sealed parcel on 11‑9‑1975 and had been despatched intact on 3‑11‑1975 through F. C. Jumma Khan (P. W. 6) who had delivered the same intact at, the said Laboratory on 8‑11‑1975. There is no evidence of tampering with either of the two.

11. We are thus satisfied that on the material available on record, the conviction and sentence of the appellant by the Courts below is fully merited. The appeal accordingly fails and is hereby dismissed. S. Q. Appeal dismissed.