1992 P Cr (PLP)

(5)??????? Penetrating wound 0.5 c.m. x 0.5 c.m. over lower third right thigh. According to him, the stomach contained semi-digested food, small intestine contained digested secretion and food particles, large intestine contained foacal matter. According to him death of deceased was due to huge haemorrhage due to external and internal injuries to the vital organs such as lung and liver. He has produced the post-mortem note as Exh.15. (1)??????? Penetrating wound 1 c.m. x 1 c.m. over left side of perietal region of the head (wound of entrance.) (2)??????? Lacerated wound 1 c.m. x 1.5 c.m. over left side of parieto-temporal region of the heal wound of exit). (3)??????? Bruise 8 c.m. x 2 c.m. over back of left side of chest. (4)??????? Bruise 6 c.m. x 2 c.m. over right upper arm. According to him, injuries Nos.l and 2 appeared to have been caused by fire arm whereas injuries Nos.3 and 4 appeared to have been caused by blunt hard blunt substance. All the injuries were simple in nature. (1)??????? Penetrating wound 2 c.m. x 1 c.m. over right parietal re~ion of the head (wound of entrance). (2)??????? Lacerated wound 3 c.m. x 1 c.m. over right temporal region of the head (wound of exit). (3)??????? Penetrating wound 0.5 c.m. x 0.5 c.m. over upper third of right thigh? ??? (wound of entrance). (4)??????? Penetrating wound 1 c.m. x 0.75 c.m. over back of lower third of right thigh (wound of entrance). (5)??????? Bruise 9 c.m. x 2 c.m. over lateral side of right upper arm. (6)??????? Bruise 9 c.m. x 2 c.m. over lateral side of right thigh. According to the doctor the injuries Nos. 1 to 4 appeared to have been caused by the fire arm, whereas injuries Nos.5 and 6 appeared to have been caused by hard blunt substance. All the injuries were simple in nature. In cross-examination he has stated that two injured had come to him at 12-10 a.m. and they were treated and discharged there and then. Thereafter they never came back. The two injured appeared to have been fired at from the distance of about 55 feet. No pellets were recovered from their wounds. He had received the dead body of Abdul Wahid at 11-00 a.m. The pellets recovered from the injuries of the deceased were little, thick and, therefore; he can say that they were from S.G. cartridges, but he could not say definitely. The deceased might have been fired from the distance of 100 feet. All the five injuries were on the right side of the body of the deceased. These injuries could be result of one gun shot. If four persons were to fire at the deceased from four guns from the above distance, the deceased must have been smashed to pieces or must have received many injuries. The deceased must have taken his last meal about 1-1/2 hours before 'the death. When a gun is fired from a short distance the pellets go out in the shape of a bunch, and when it is fired from long distance the pellets are scattered away. In the present case the pellets on the body of the deceased were not at one place but were scattered on various parts of the body. He has produced the medical certificates as Exh.13 and

14. The prosecution evidence consists of motive, ocular evidence of Noor Muhammad an eye-witness P.W.2, Habibullah an eye-witness P.W.3, complainant Ali Muhammad P.W.4, Shamsuddin an eye-witness P.W.5, and recovery of gun from accused Punhoon and production of lathis by accused Abbas and Ali Nawaz as stated by Mashir Adam. Complainant Haji Ali Muhammad has reiterated the facts mentioned by him in the First Information Report which has been produced as Exh.19. He has further deposed that he had shown the place of incident to the police. The incident took place because of dispute over land as the accused persons wanted to take possession of the land forcibly to which the deceased had resisted. In cross-examination he has deposed that disputed plot stands in his name in the record of rights. It is situated in survey No.309, Deh Bhori No.1 and it was inherited by him. The dispute was going on between them and the accused over the plot of land for the last one year. Accused Punhoon had tried twice or thrice to take possession of the disputed plot previously also but he did not take legal action against him. He had complained to his Nekmard, Adam Khan, who is Mashir in this case. They were standing at the distance of 15/20 paces away from the deceased Abdul Wahid at the time of incident. When Abdul Wahid fell down on receipt of injuries, his half body was inside the house and half body was outside the house. P.W. Shamsuddin and Gul Hassan were standing near by Abdul Wahid about one pace away from him. The accused were about 10/12 paces away from Abdul Wahid at the time of incident. There was some blood inside the door while some blood was outside the door. He has admitted a suggestion that the blood was also at the place where Shamsuddin and Gul Hassan had fallen after receipt of injuries. After the incident he had sent a man to Tharu Shah for bringing Suzuki from there which was brought for taking the dead body of Abdul Wahid to Mithiani Tharu Shah is at a distance of 5 k.m. from his village, while Mithiani is about 13 k.m. from his village. He reached at Tharu Shah at I.O.0 a.m. alongwith injured. Again stated that they had reached at Tharu Shah at 12-15 a.m. Shamsuddin and Gul Hassan were able to speak at that time. The S.H.O. did not record their statements. The S.H.O. took about 10/15 minutes for recording the F.I.R. According to him, he has stated in his F.I.R. that there is electric bulb fitted on the wall of otaq in the light of which they had seen the accused. He has stated in his F.I.R. that accused Ghulam Qadir and Pathan had given blunt side hatchet blows to Shamsuddin and Gul Hassan. He has admitted that village Shaito is at a call's distance from their village, from where Latif was abducted by dacoits. Dildar and Hassan and Ismail Chandias are renowned dacoits of Nawabshah District. He knows Muhammad Siddique of their caste who resides in their village. He did not know if cow of Siddique was stolen-by Dildar one year before this incident. He did not know if Dildar was apprehended alongwith the cow by him. He, deceased Abdul Wahid and P.W. Adam Khan had handed him over to the police of Naushero Police Station. He did not know if Dildar Chandio was convicted in that case. He has denied that after the above incident he had been receiving chits from Gul Hasan that they will have to face consequences due to false involvement of Dildar by them. He has denied that the dacoits had attacked their village and as a result his brother was killed by dacoits in the firing. Ghulam Nabi, Wali Muhammad, Ghano Lakhas by caste reside adjacent to his house. No body came on hearing gun shots and commotion. He has admitted a suggestion that the firing was made by the accused persons from the ditch situated in between the deceased and accused persons. Police had recorded the statements of injured Gul Hasan and Shamsuddin at the hospital on the following morning. Again stated that he did not know as to where the injured persons were examined. He has admitted that their relations with the accused wee strained and they were not on visiting terms for the last one year. He has denied that they have falsely implicated the accused due to enmity. He is fully supported by P.Ws. Noor Muhammad, Habibullah, Shamsuddin (injured) and Gul Hassan (injured). As far as the motive is concerned, it is the case of the complainant and the above P.Ws. that there was a dispute between the complainant party and the accused over the plot of land. As far as recovery was concerned, Mashir Adam Khan P.W.6 has deposed that he had acted as Mashir of Wardat and the police had secured 5 to 10 empty cartridges which were lying at the place of Wardat, and prepared such Mashirnama which he has produced as Exh.22. He has also produced inquest report as Exh.23, Mashirnama of arrest of all the accused as Exh.24. After his arrest, accused Punhoon led the police to his house and produced one single barrel gun from Manah (thatched roof) of his house in his presence. Police secured the same and prepared such Mashirnama which .he has produced as Exh.25. Accused Sajjan and Qadir had led the police party to their houses and produced lathis from their houses which were secured under Mashirnamas, and he has produced the same as Exh.25 and Exh.26. Accused Pathan had also produced a lathi before the police, and such Mashirnama was prepared. Accused Ali Nawaz then led the police party to his house and had produced lathi from his house before the police in his presence. Police had prepared such Mashirnama and obtained his signatures. Accused Abbas had also led the police party to his house and had voluntarily produced a lathi before the police in his presence. Police had prepared such Mashirnama and obtained his signatures. Accused Imam Ali had also led the police party to his house and had produced a single barrel gun from there before the police in his presence, which has been produced as Exh.27. He has denied that accused Pathan and Ghulam Qadir had produced hatchets before the police. However, Mashirnamas Exh.28 and Exh.29 bear his signatures. S.H.O. Mumtaz Ali, P.W.11, has supported the recovery of guns from Punhoon and Imam Ali. He has further deposed that since they had no licences for the guns, he had separately lodged the F.I.Rs under section 13-D of the Arms Ordinance against them. He has produced the ballistic expert's report as Exh.39. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants, Mr. Jalaluddin Baloch, learned counsel appearing for the State, and have gone through the R&P of the case. It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that the ocular evidence was interested, inimical, unreliable and the learned trial Judge has erred in relying upon the same. He has further contended that the gun alleged to have been recovered from the appellant Punhoon in fact belonged to his sister's son and was foisted on him. He has further contended that Mashir of recovery namely Adam Khan was close relation of the complainant, and there was long delay in sending the guns to the Ballistic Expert and, therefore, no reliance could be placed on the recovery of guns. He has further contended that the complainant party had enmity with Chandias who were dacoits, and their village was attacked by dacoits on the night of the incident and the deceased was killed by the dacoits. As far as appellants Ali Nawaz and Abbas were concerned; it was contended that their case was identical to that of co-accused Pathan, Sajjan and Ghulam Qadir since acquitted and the learned Judge has erred in convicting them. Mr. Jalaluddin Baloch, learned counsel appearing for the State has contended that as far as accused Ali Nawaz, and Abbas were concerned, their case was identical to the case of co-accused who have been acquitted and, therefore, they were entitled to benefit of doubt. As far as appellant Punhoon was concerned, the ocular evidence was corroborated by recovery of gun and the report of Ballistic Expert and therefore, the prosecution has proved its case against Punhoon beyond reasonable doubt, and he has been rightly convicted. I have considered the contentions. P.W. Noor Muhammad has admitted in cross-examination that P.W. Gul Hasan is sister's son of the complainant so also P.W. Shamsuddin. P.W. Habibullah is brother of the complainant, while Mashir Adam is cousin of the-complainant. He has also admitted that the deceased and complainant are his cousins. It is also an admitted position that the relations between the parties were strained due to dispute over plot of land and they were not on visiting terms since about one year before the incident. Tapedar Aijaz P.W.8 has admitted in cross?examination that P.W. Noor Muhammad has not shown the place where the electric bulb was burning at the time of incident. S.I. Muhammad Alam P.W.9, who was Incharge of Police Station Mithiani on the night of incident and had recorded the F.I.R. has admitted in cross-examination that there is no mention in the Mashirnama of Wardat Exh.22 about the electric bulb installed over the compound wall of the house of the complainant. No doubt P.Ws Shamsuddin and Gul Hassan are injured witnesses, while P.Ws Noor Muhammad, Habibullah and complainant Haji Ali Muhammad are residents of the place where the incident took place and, therefore, their presence at the place of Wardat cannot be denied. Be that as it may, looking to the background of enmity and the relationship between the witnessess and deceased inter se, and the fact that there was enmity of the complainant party with dacoits, their evidence requires corroboration. Adverting to the case of appellant, Ali Nawaz and Abbas although Mashir Adam Khan has stated in his evidence that accused Abbas and Ali Nawaz had produced lathis from their respective houses but no such Mashirnama has been produced on the record. According to prosecution accused Abbas and Ali Nawaz were armed with guns but no guns have been recovered from them. S.H.O. Mumtaz Ali who had arrested the accused and made the recoveries of weapons from some of the accused has not said a word about recoveries from accused Ali Nawaz and Abbas and, therefore, the only logical conclusion can be that no recoveries were made from accused Ali Nawaz and Abbas. Three co-accused have been acquitted as evidence of recovery against them was doubtful and the case of appellants Ali Nawaz and Abbas stands on a better footing. In view of the above discussion since there is no corroborative evidence against appellant Ali Nawaz and Abbas, while extending the benefit of doubt to them their appeal is. allowed, their convictions and sentences are set aside and they are acquitted of the charges. They shall be released forthwith if not required in any other case. As far as Punhoon is concerned, the ocular evidence is corroborated by recovery of gun from him. The evidence of Mashir Adam shows that 5/10 cartridges were recovered from the place of Wardat which were secured by police under Mashirnama. Later on, the accused were arrested and accused Punhoon had produced a single barrel gun. The evidence of Mashir Adam is supported by S.H.O. Mumtaz Ali and the report of Ballistic Expert Exh;39 is in positive. As far as the defence of appellant Punhoon was concerned D.W. Ali Asghar has deposed that police had also searched his house and had taken away his licensed gun alongwith 5/G cartridges. He was also taken to Police Station where S.H.O. had fired from his gun in order to ascertain whether it was in working order. However, he was released after some time and was not challaned in the case. The SRO. had taken his gun from his house alongwith licence. In cross-examination he has admitted that he had not reported the matter to the police that dacoits had attacked their village. He is admittedly nephew of accused/appellant Punhoon and the fact that he did not make any complaint to any higher authority against the police about taking away his gun, no reliance could be placed on his evidence. As fur as evidence of Muhammad Siddique D.W.2, is concerned, it was mainly concerned the recovery of co-accused Imam Ali. As far as the evidence of defence witnesses that the dacoits had attacked their village on the night of incident, it is belied by the fact that no report was lodged either by them or some other villagers with police about the attack by dacoits and, therefore, the defence evidence led by the accused is interested and unreliable. In view of the above discussion, I am of the considered view that the prosecution has proved its case against appellant Punhoon beyond reasonable doubt and, therefore, the appeal is dismissed. However, the appellant shall be entitled to the benefit of provisions of section 382-B, Cr.P.C. in respect of the period, he has remained as under trial prisoner. I had decided the above appeal on 30-10-1991, by a short order and these are the reasons for the same. N.H.Q./P-229/K????????????????????????????????????????????????????????????????????????????????? Order accordingly.