1992 P Cr (PLP)

(2) Grazing wound 1. x 1‑‑1/2 c.m. on the right buttock, 4 c.m. from midline. (3) Fire‑arm wound of entry 1 x 1 c.m. on the left buttock 2.5 c.m. from midline. On opening, 3rd and 4th ribs were found fractured, left lung was found perforated and the right lung was also found injured. Pleura contained blood. The pellet which had entered the left buttock was finally found lodged in the left hip under the skin. Death was opined to have occurred due to injury No.l, which had ruptured the inferior venacava and right atrium of heart leading to servere internal haemorrhage and shock. The injuries were opined to have been caused by a fire‑arm. Probable time between the injuries and death was opined to be within 15 to 30 minutes while the time between death and post‑mortem was opined to be within 18 to 24 hours.

7. Ocular account was deposed to by Abdul Aziz P.W.6 and Ghulam Dastgir P.W.7. Abdul Aziz repeated the facts given by him in the F.I.R. During cross examination he stated that he was not working as a Junior Clerk during the days of occurrence, but was appointed thereafter. He stated that the deceased was removed from the spot on a cot, which was brought from the Chhappar at the bank of river, by Ghulam Naseer his relative. He stated that Mst. Sahibzadi (sister of the appellant) was 12 years old during the days of occurrence. He stated that Ghulam Yasin had performed her Nikah but Rukhsati had not taken place. He stated that there was no enmity between them and the appellant prior to the occurrence. He denied the suggestion that the occurrence had not taken place as stated by him but had taken place near the village on uneven land on the north of Nala. He denied the suggestion that the said place was surrounded by bushes. He also denied the suggestion that the accused had found the deceased holding his sister in the bushes for illicit purposes and that it was thereupon that he had fired at him (deceased) under grave and sudden provocation.

8. Ghulam Dastgir P.W.7 corroborated the statement made by P.W.6. He stated that he had‑ gone to graze the cattle as it was a public holiday. According to him, Naseer had brought the cot from their (P.Ws.) tubewell. He admitted that women of some families go out of the village abadi for easing themselves. He denied the suggestion that he had not witnessed the occurrence.

9. Muhammad lqbal P.W.5 claimed to have witnessed the recovery of gun and cartidges at the instance of the appellant. During cross‑examination he admitted that neither any Lumberdar nor Member of Union Council was joined in the recovery proceedings. He denied the suggestion that the accused had not been arrested from Railway Station and that he had made a false statement.

10. Safdar Ali, S.H.O. who had registered the case and submitted challan to Court after arrest of the appellant, recovery of gun from him, and completion of investigation, appeared as P.W.8 and gave those facts. He admitted that he had not mentioned in the inspection note of having noted the trampling of grass at the spot. He denied the suggestion that the, accused had appeared before him at the Police Station at 9‑00 a.m. on 31‑1L2‑1985 of his own, and told him that the deceased had attacked his sinter for illicit intercourse and that he had fired at him under grave and sudden provocation on seeing him misbehaving with her. The statements of the remaining P.Ws. are more or less of a formal nature.

11. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, why this case against you and why the P.Ws. deposed against you? : My mother and father were killed by one Amir P.O. in 1980. He was P.O. during the days of this occurrence as well. Because of fear of said P.O. for protection of my life as well as lives of my brothers I used to keep with me the above said gun. On the day of occurrence at about 8 00 a.m. my sister went outside the house for easing herself when I was also outside for the same purpose. I heard the arm of my sister from a depressed place within the bushes. I went there and saw the deceased attacking my sister for sexual intercourse. I lost control and under grave and sudden provocation fired at the deceased and I, on my own, proceeded to P.S. and reported the occurrence in this way. I produced gun myself at the Police Station. The Police distorted the facts with the collusion of Faiz Muhammad Prosecuting Inspector, Mainwali, relative of deceased and got this false story built up against me. No one has seen the occurrence." He also made statement on oath under section 340(2), Cr.P.C. Therein also, he repeated the same statement.

12. Learned counsel for the appellant contended that the eye‑witnesses do not appear to have witnessed the occurrence and that the recovery of gun without evidence and matching of the same with the empties cannot lend required corroboration to the ocular account furnished by the interested and related witnesses. Learned counsel further contended that the version put forth by the appellant was more probable and nearer the truth than the version put forth by the prosecution.

13. Learned counsel for the State/complainant defended the judgment of the trial Court, and contended that there were no substantial reasons to discard the ocular account and that the version put forth by the appellant cannot be acted upon as the appellant had not examined in defence his sister Mst. Sahibzadi nor had produced any other evidence in support thereof.

14. I have gone through the evidence and have considered the contentions raised by learned counsel for the parties. According to the eye‑witnesses, the occurrence had `taken place at 1‑00 p.m. The report was lodged on the same day at 2‑30 p.m. The S.H.O. had inspected the spot on the same day. He had not found blood‑stained earth nor had he noted stains of blood on the grass. The stance of the S.H.O, that he had found the grass trampled, stands demolished in view of his own admission that he had not noted any such thing in inspection note Exh.D.B.

14. It is prosecution's case that the appellant had fired 2 shots. The gun alleged to have been used by him, according to the Investigating Officer, was recovered from the appellant on the following day. The said gun was a single barrel one. If the appellant had fired 2 shots from a single‑barrel gun the first empty must have ejected. Even if it be believed that the appellant did not reload the gun after firing the second shot, it has to be granted that the empty resulting from the first shot must have ejected. The said empty was not found lying on the spot. There is no explanation that the appellant had taken away the empty with him. In the circumstances, the stance of the appellant that the occurrence had not taken place at the place stated by the eye‑witnesses and had taken place at a different point, cannot be thrown away as totally inconceivable. In fact, the circumstances lend support to the stance of the appellant that the occurrence had not taken place at the place claimed by the prosecution and in fact had taken place at a different point.

15. The evidence of recovery of gun at the instance of the appellant is not of much importance in this case, firstly for the reason that the same had not been sent to the office of the Forensic Science Laboratory and secondly for the reason that the appellant himself did not deny to have used the gun for firing at the deceased.

16. Abdul Aziz P.W.6 (complainant in the case) is father of the deceased. P.W. 7 is also connected with them. The statements of both the witnesses about the place of occurrence have not been found to be reliable. Their stance that they were grazing cattle and some of them had entered the field of the appellant, also does not find support from anything on record, in that, the S.H.O. who had visited the spot, had not observed the foot‑marks of movements of cattle near and around the place of occurrence. If the S.H.O. could have noted trampling of grass, he could have easily noted foot‑prints of the cattle because that would have been more obvious and clearly visible.

17. The statements of the two witnesses are also discrepant on 2‑3 aspects. Although those aspects may not be important yet the difference in the statements of witnesses does lead to inference that they may not have been together there. The defence version examined in juxtaposition with the prosecution version, appears to possess more weight and substance firstly, for the reason that the prosecution version about the occurrence having taken place at a different place, has not been found to be confidence inspiring, and rather has been found to be incorrect, for the reasons noted above, and secondly for the reason that the appellant had not only come up with the said version at the trial, during evidence, but had also put up the same while making statement under section 342, Cr.P.C. He had not left the matter there and had come up to make statement on oath under section 340(2), Cr.P.C. and presented himself for cross‑examination by the prosecution.

18. The eye‑witnesses by deposing that Mst. Sahibzadi was 12 years old, at the time of occurrence, appear to have made effort to destroy the version of the appellant that he had acted under grave and sudden provocation, on seeing the deceased misbehaving with his sister Mst. Sahibzadi. If Mst. Sahibzadi was 12 years old, the deceased could not have cultivated illicit relations with her and in that case, question of suspicion of the appellant against the deceased would not have arisen. Looked from that angle, the reliability of the eye witnesses goes to the lower ebb. After having weighed the two versions in juxtaposition by applying my mind anxiously and carefully, I feel convinced that the version put forth by the prosecution was not correct and instead the version put forth by the appellant was more probable and nearer the truth. The conviction and sentence of the appellant under section 302, P.P.C. are, therefore, set aside. He is, instead convicted for having committed the offence under section 304, Part‑I, P.P.C. and sentenced to undergo R.I. for ten (10) years plus to pay a fine of Rs.2,000 (Rs. two thounsand) in default whereof to suffer further R.I. for six months. He shall also be given benefit of the provisions of Section 382‑B, Cr.P.C.

19. The appellant is on bail. He shall be caused to be arrested and lodged in jail for undergoing the remaining sentence of imprisonment.

20. Since the conviction of the respondent under section 302, P.P.C. has not been maintained, question of enhancement of sentence from imprisonment for life to death, does not arise. The revision petition is, therefore, dismissed. MA.K./G‑466/L Order accordingly.