1989 PLP 2836 (MLD)

(a) 8 circular lacerated wounds measuring 3/4 c.m. x 3/4 c.m. going deep on back of the left lumber region in an area of 13 c.m. x 9 c.m. The margins were inverted and black (wound of entry). . (2) Three circular lacerated wounds 3/4 c.m. x 3/4 c.m. x going deep at back of right chest in an area of 17 c.m. x 5 c.m. Margins were inverted and black (wound of entry). (3) Seven circular lacerated wounds each measuring 1 c.m. x 1 c.m. front of right side of abdomen in an area of 17 c.m. x 15 c.m. with averted margins (wound of exit). , (4) One circular lacerated wound 3/4 c.m. x 3/4 c.m. going deep left forearm, upper part on the back. Margins inverted and black (wound of entry). (5) Circular lacerated wound 1 c.m. x 1 c.m. on inner side of left forearm, upper part margins averted (wound of exit). Injuries through and through with injury No.4. In his opinion the death had occurred due to injuries Nos. 1, 2 and 3 which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate and death and post-mortem examination was within 2 hours. All the injuries were with fire-arm and ante-mortem.

4. The prosecution in support of its case produced 10 witnesses in all. P.W.1, Muhammad Hanif, Constable, escorted the dead body for post-mortem examination and produced the last worn clothes of the deceased before the Investigating Officer. P.W.2, Akhtar Naqash, Draftsman, prepared the site plan, Exh.P.B. of the place of occurrence. P.W.3, Dr. Muhammad Azhar, conducted the post-mortem examination on the dead body of the deceased. P.W.4, Sikandar Hayat, S.I. Police Station Saddar- Gujranwala, recorded the formal F.I.R. Exh.P.D/1 and received 2 parcels containing blood-stained earth and crime empties on 9-3-1985 and sent the same for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory on 27-4-1985. The said parcels could not be delivered in the concerned offices, therefore, he kept them in Malkhana till 17-7-1985 and then sent the same to the said offices. P.W.5, Munawar Hussain witnessed the recovery of gun P.4 alongwith seven live cartridges P.5/1-7 and signed the recovery memo. Exh.P.E. The eye-witness account had been furnished by Muhammad Ismail and Muhammad Riaz P.Ws. 6 and 7 respectively. P.W.9, Muhammad Jameel stated that on the day of incident he saw Muhammad Ashgar father of Akbar Ali accused giving a gun alongwith cartridges to his son Akbar Ali and thereafter went inside his house. Later on, he learnt that Muhammad Rafique had been murdered. The case was investigated by Muhammad Sharif, S.I: P.W.10.

5. At the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. Akbar Ali denied the prosecution allegation and claimed that on the fateful day he under grave and sudden provocation had fired at the deceased who was standing on the roof of his house and was peeping inside his courtyard where his aunt Mst. Bilqees was having a bath. She was naked. Muhammad Rafique deceased was asked not to look into their courtyard but he refused, therefore, under grave and sudden provocation he fired at him with a gun belonging to his father. Asghar All and Akbar Ali both denied the prosecution allegations and pleaded innocence. Akbar Ali appellant appeared on oath in his defence and reiterated the same defence. It is contended by learned counsel for the appellant that the learned trial Court had disbelieved the evidence of recoveries as well as the motive set up by the prosecution. Contends that in these circumstances the statements of the eye witnesses may not be relied upon because they have been disbelieved with regard to the two co-accused of the appellant and also because Muhammad Ismail P.W.6 is close relation of the deceased, therefore, inimical and interested. Muhammad Riaz P.W. was not a resident of the village, therefore, he was a chance witness. Contentions have been controverted by learned counsel for the State.

5. I have heard learned counsel and gone through the evidence with their assistance. As far as the recovery of gun at the instance of the appellant and crime empties secured from the spot are concerned, I think that the trial Court had rightly ruled out of consideration this piece of evidence. The recovery was effected in March but was sent to the office of Fire-arms Expert in July. There is no explanation with regard to the delay of four months which occurred for sending the said articles. As far as the eye-witness account is concerned, the presence of Muhammad Ismail P.W.6 at the spot cannot be challenged. His not being resident of the same village was not challenged by the defence at all. He gave a detailed account of the occurrence. He was the maker of the F.I.R. which was lodged without any delay. He was cross-examined at length but the defence could not bring on record anything which could possibly indicate that he was not a truthful witness or had any motive to falsely implicate the appellant. Mere relationship simpliciter cannot make him an interested or inimical witness. The background of criminal litigation between the deceased and the appellant's side cannot make him an interested or inimical witness either because he was not connected with those proceedings in any manner. The defence did not even suggest that he had any sympathy with the deceased side or he used to accompany the deceased to the Court on each date of hearing, therefore, I hold that he was present at the spot. His evidence does inspire confidence and can safely be relied upon. Muhammad Riaz P.W. gave a detailed account of the occurrence. In cross-examination he admitted that he had ancestral house in Gujranwala City. He further admitted that his brother owned a plot in the village where the occurrence took place and he was supervising the construction on the said plot. The defence in cross-examination challenged that he did not own any plot of land in the village but no suggestion was given to this witness as far as the plot of land owned by his brother was concerned. Similarly, it was argued the Investigating Officer had not inspected the spot whether the house which was being supervised by Muhammad Riaz P.W. was under construction. I have considered this aspect of the case and hold that there was no need for the Investigating Officer to have inspected the house of the brother of the P.W. which was under construction as it did not have any connection with the occurrence which was being investigated. Muhammad Riaz P.W. is not related to either side nor anything has been brought on the file which could indicate that he had enmity or motive to falsely involve the appellant. In these circumstances, Muhammad Riaz P.W. can be relied upon especially when his testimony has been corroborated by the statement of Muhammad Ismail, P.W. As far as the defence plea of the appellant that he acted under grave and sudden provocation is concerned it is absolutely without force. According to the assertion of the appellant the deceased was standing on the roof while I was standing in the courtyard when I fired at the deceased. This version is not plausible for the reason that his maternal-aunt Mst. Bilqees Begum was having a bath in the courtyard while the had taken off her clothes, in these circumstances, he could not have been present in the same courtyard. If a shot had been fired by him while standing in the courtyard of his house at the deceased who was standing on the roof then the direction of the bullet should have been slanting which was not so. Therefore, I hold that the defence version is neither plausible nor possible. This, however, would indicate that the appellant on oath admitted firing at the deceased which resulted in his death. For the reasons discussed above, I hold that the prosecution has been able to prove its case beyond reasonable doubt, therefore, the appeal fails which is accordingly dismissed. N.H.Q./A-617/L Appeal dismissed.