1999 PLP 1542 (MLD)

(3) A fire arm wound of entry 0.5 c.m. in diameter, with blackening of the margins, on right side of back of body, 8-1/2 c.m. above right posterior superior iliac spine. Passed through the abdomen and made wound of exit on right side of front of abdomen. Size of exit wound was 0.7 c.m. x 0.7 c.m. (4) A fire arm wound of entry 0.5 c.m. in diameter, with blackening of margin, on left side of back of chest, 6 c.m. below the tip of left scapula passing into the chest, damaging the left lung, disphragm, splean and lodged there. A metallic body removed, sealed and handed over to Police. All the injuries were antemortem. Injury No. 1 was caused by blunt weapon and injuries 2, 3 and 4 by fire arm. The death occurred due to shock, haemorrhage and injury to vital organs, that is, lungs and major blood vessels of heart. Injuries Nos.2 and 4 individually and all the injuries collectively were sufficient to cause the death of a person in ordinary course of nature. The probable time that elapsed between injuries and the death was within 15 minutes and between the death and the post-mortem within one day.

7. On the same day, Dr. Muhammad Rafi (P.W.5) examined the dead body of Muhammad Munsha and found the following injuries on his person:-- (1) A fire arm wound of entry 0.5 c.m. in diameter on right side of back of chest 13 c.m. below the tip of right scapula, passing through the chest damaging right lung and pleura and making wound of exit 1 c.m. x 0.7 c.m. on right side of front of chest. 5.5 c.m. medial to right nipple. Chest cavity contained two liters of blood. (2) A fire arm wound of entry 0.5 c.m. in diameter on left side of back of body 5 c.m. above the left posterior superior ilica spine passing through the soft tissues and making wound of exit, 0.7 c.m. x 0.7. c.m. on left side of front of abdomen 3 C.M. above the anterior superior iliac spine. Intervening distance between the two wounds was 13.5 c.m. In the opinion of the doctor, both the injuries were antemortem and caused by fire arm. The death occurred due to shock, haemorrhage and injury to vital organ, that is, lung and Injury No.l individually and both the injuries collectively were sufficient to cause the death of a person of ordinary course of nature. The probable time that elapsed between the injuries and the death was within 15 to 30 minutes and between the death and the post-mortem was within one day.

8. Muhammad Easa (P.W.2) is the marginal witness of Exh.P.C and P.D. by virtue of which blood-stained earth was taken into possession by the Investigating Officer in his presence. He was also the marginal witness of recovery memo Exh.P.E. by means of which the Investigating Officer had taken into possession the mocassion of Mukhtar Ahmad accused from the place of occurrence. Muhammad son of Ilyas (P.W.11) has stated that revolver P.13 recovered from the residential room of Mukhtar accused and the revolver P.14 recovered from the residential room of Munsha respectively vide memos Exh.P.K. and P.L. bear his thumb impression.

9. After the completion of the investigation the two accused/appellants were challaned and were sent up to face the trial.

10. The accused were charge-sheeted under section 302/34, P.P.C. to which they pleaded not guilty and at the trial the prosecution examined as many as 14 witnesses. Ghulam Ali (P.W.1) identified the dead bodies of Nazir Ahmad and Muhammad Munsha deceased at the time of post-mortem examination. Muhammad Easa (P.W.2) is the marginal witness of the recovery of weapons of offence. Ameer Ali (P.W.3) is the complainant who reiterated the story narrated in the first information report. Muhammad Akram (P.W.4) is an eye-witness of the occurrence who too reiterated the same story. Dr. Muhammad Rafi (P.W.5) conducted the post-mortem examination on the dead bodies of Nazir Ahmad and Muhammad Munsha. Mumtaz Hussain (P.W.6) prepared the site plan of the place of occurrence Exh.PJ and Exh.P.J/1 in duplicate on the pointation of the P.Ws. and the directions of the Investigating Officer in scale 40 karams equal to one inch and that the site plans bear his signatures and notes in black ink. Shaukat Ali Constable (P.W.7) escorted the dead bodies of Nazir Ahmad and Muhammad Munsha to the mortuary at Sheikhupura. Muhammad Ali Constable (P.W.8) was handed over the sealed parcels containing revolvers for onward transmission to the Forensic Science Laboratory, Lahore. Abdur Rashid, Sub Inspector (P.W.9) received 2 sealed parcels containing blood-stained earth and handed over the same to Muhammad Akram, Constable for onward transmission to the office of the Chemical Examiner. Muhammad Anwar, Head Constable (P.W.10) received two parcels allegedly containing revolver front the Investigating officer and on 6-12-1992 handed over both the parcels to Constable Muhammad Ali for onward transmission to S.P. Technical Services, Lahore. Muhammad son of Ilyas (P.W.11) was the witness of recovery of revolvers P.13 and P.M. Wazir Ali, Sub Inspector (P.W.12) arrested Munsha and Mukhtar accused from Okara Jail and got them transferred to Sheikupura and also recovered revolver P.13 from Mukhtar Ahmad and revolver P.14 from the custody of Munsha and made them into sealed parcels. Muhammad Yar, Sub inspector (P.W.13) received non-bailable warrants of arrest of accused Mansha and Mukhtar. Abdul Ghafoor (P.W.14) recorded the F.I.R. Exh.PF on the statement of the complainant, reached the place of occurrence, prepared the inquest report Exh.PM, injuries statement Exh.PN/1, secured the blood-stained earth vide memo Exh.PC and Exh.PD, made them into sealed parcels and also took into possession a shoe of Mukhtar accused from the place of occurrence vide memo Exh.PE. He also prepared the rough sketch of place of occurrence Exh.PC and transmitted the dead bodies to the mortuary at Sheikhupura through Shaukat Ali and Muhammad Akram, Constables and also recorded the statements of the P. Ws. The last worn clothes of Nazir Ahmad and Muhammad Mansha deceased were also produced before him which were taken into possession.

11. After the prosecution side closed its evidence, the statements of the accused were recorded under section 342, Cr.P.C. in which they both stated that the prosecution story was incorrect and the case against them was based on concocted version. The P.Ws. were not present at the spot and they reached the spot after running it in the village and then fabricated a false version against them. Both the accused did not produce any evidence in defence.

12. The learned Additional Sessions Judge held the testimony of both the eye-witnesses to be consistent and confidence inspiring and also to be corroborated by the medical evidence to the extent that the weapons used during the occurrence were fire arms and the motive, as pleaded was admitted and that the abscondance of both the accused persons for a period of four years was a corroborative piece of evidence against them. Regarding non mention of the exact location of the injuries by the P.Ws., the learned trial Court observed that it was natural during - the occurrence specially when Mukhtar accused was also inimical to Ameer P.W. that the Ameer P.W. could not see the exact location of the injuries and when getting the statement recorded before the Police, -he could not narrate the exact location of the injuries on the dead bodies.

13. The main stress of the arguments of learned counsel for the appellant is that both the eye-witnesses have stated that the fire arm injuries were caused on the face, chest and abdomen and as such the face was towards the assailant while the medico-legal examination has revealed that the injuries were caused on the back and that had the eye-witnesses seen the occurrence, this contradiction would not have appeared and that it was a discrepancy which made the evidence doubtful.

14. On the other hand, learned counsel for the complainant and the State have taken the stand that the parties are related inter se and there is no question of substitution and that Ameer P.W. who is the owner of the land adjacent to the place of occurrence has got no enmity against the accused person to falsely involve them and that the fact of abscondance for four long years is a strong corroborative piece of evidence against the accused. In answer to a question as to why the case was against the accused, it was stated that the P.Ws. were not present at the spot and they reached the spot after running it in the village and then fabricated a false version against the accused shows that they had the knowledge that the P.Ws. were not present at the spot.

15. I have given due consideration to the valuable arguments on both the sides and have also perused the record with their able assistance.

16. The number, the nature and the place except the discrepancy of front and back and the recovery of the weapons of offence from the possession of the accused/appellants after their arrest tally with the eye-witness account. The incident was so quick that the death occurred within 15 minutes, what was the reaction of the two assailed victims was natural. They had not to go towards the assailants but to make an attempt to save themselves and a little turn can make the front view into back. The P.Ws. have not stated that the assailants had aimed at a particular point of the body. In the case Saeedullah Khan v. The State (1986 SCMR 1027) where the medical evidence is to the effect that the deceased was hit in the back while the eye-witnesses stated that the deceased was hit in front of chest, the Hon'ble Supreme Court of Pakistan held that the discrepancy was of no importance. The witnesses must have been confused in observation.

17. Further, in the present case the ocular evidence as to the number of the injuries caused by the accused/appellants is not in conflict with the medical evidence. There is difference between discrepancy in ocular account and in consistency between the medical and ocular evidence. In the present case, it was a discrepancy as a result of natural confusion which cannot be taken as rendering the prosecution evidence as doubtful.

18. The parties are well known to each other. There is no question of substitution in this case. The witnesses have explained their position in the cross-examination. The absconsion for long period of four years, which was put to the accused and they could not explain also speaks of the guilty mind and in the circumstances of this case is a strong piece of corroborative evidence. In a similar circumstance, the Hon'ble Supreme Court of Pakistan in the case of Mst. Roheeda v. Khan Bahadur and another (1992 SCMR 1036) observed:-- "No doubt, abscondance by itself is not sufficient to convict an accused person but is strong piece of corroborative evidence of the other direct and -circumstantial evidence in the case. In the instant case the accused/respondent No. 1 Jehanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case. "

19. In these circumstances, the guilt of Mukhtar alias Mokha and Mansha, appellants is established beyond any doubt. I would, therefore, dismiss their appeal and maintain their convictions and sentenced awarded to them by the learned trial Court.

20. On reappraisal of the evidence, I find no merit either in the Criminal Revision No. 11A of 1995 filed by Ameer Ali, complainant Criminal Revision No.457 of 1997 filed by the State for enhancement of the sentence awarded to the accused by the learned trial Court. N.H.Q./M-779/L Appeal dismissed.