1984 P Cr (PLP)

S. M. Zubair, A. A. G. for the State. Date of hearing: 5th July, 1983. Ghulam Muhammad alias Mamman, son of Mahram, aged 30 year, armed with gun, has been convicted under section 307, P. P. C. for murderous assault on Muhammad alias Mamman, aged 22 years (P. W. 2) and vide judgment of the Magistrate Section 30 (Judicial), Jhang, dated 1-11-1981, was sentenced to seven years' rigorous imprisonment plus fine of Rs. 2,000 or in default to undergo six months' rigorous imprisonment. The appeal of the convict is being disposed of by this judgment. 2. The occurrence took place on 6-6-1981 at 2 p. m. in the Abadi of village Roranwali at a distance of 18 miles from Police Station Saddar Jhang. Statement Exh. P. A. was made by Muhammad Fazil (P. W. 1), cousin of the victim, and it was recorded by Safdar Ali S.-I. (P. W. 4) at 3-30 p. m. on the same day in Basti Attawali where the Police Officer had gone on patrol duty and the complainant followed him there and got his statement recorded. On the basis of the aforesaid statement, formal F. I. R. (Exh. P. A./1) was registered at Police Station Jhang Saddar by Manzoor ul Haq, M. H. C. (not produced) at 4 p. m. on the same day. 3. The motive as stated in the F. I. R. is that the victim hated the appellant for his bad character and did not allow him to visit his quarters. On the day of the occurrence, the appellant passed in front of the house of the victim whereupon the victim reprimanded him as to why be was so passing when he had forbidden him to do so. On this they exchanged abuses and also grappled with each other. It is stated that thereafter the occurrence followed. 4. In the F. I. R. the occurrence is reported to have taken place in the following manner. When the abuses were exchanged between the appellant and the victim and they grappled with each other, at that time the two eye-witnesses present there, namely, Muhammad Fazil (P. W. 2) cousin of the victim, and Sheena (not produced) separated them. After having been separated, the appellant went away. However, shortly thereafter he came back there armed with gun and said that he would not spare the victim. At that stage the victim started proceeding towards his house but the appellant aimed at him from under the tree and fired a shot at his back which hit on the right shoulder of the victim. Thereafter, the eye-witnesses tried to apprehend him on the spot. They chased the appellant for some distance and then apprehended him. Muhammad Fazil P. W. snatched the gun from him. But in the, meantime many other people got assembled there and the appellant slipped away. The victim was transported to the hospital and was admitted on the same day and Muhammad Fazil P. W. proceeded to lodge the report with the police. 5. The appellant was arrested on 7-6-1981 by Safdar Ali, S. I. (P. W. 4). Gun (Exh. P. 1) which was stated to have been used by the appellant for the commission of crime with one live cartridge in its barrel (Exh. P. 2) and one empty cartridge in its other barrel (Exh. P. 3), was pro duced by Muhammad Fazil, P. W. before the Police which was taken into possession vide Memo. Exh. P. B., dated 6-6-1981. The attesting witnesses are Ahmad Nawaz (P. W. 3), Waryam (not produced), Muhammad Fazil (P. W. 1) who had stated in his own statement that he delivered the said gun to the Police Officer, and Safdar Ali, S. I. (P. W. 4). The gun and the crime empty as well as the live cartridge were not sent to the Forensic Science Laboratory. 6. Dr. Muhammad Hanif (P. W. 5) medically examined the victim Muhammad alias Mamman P. W. 2 at 5.05 p. m. on 6-6-1981 and found on his right shoulder a fire-arm injury 12 cm. X 07 cm up to the bone and the flesh thereon had been blown away. He stated in the cross-examination that the shot could have been fired from a distance of about 3 feet from the victim. The injury was grievous in nature. 7. The appellant in his statement before the trial Court denied having committed the crime and disowned the recovery. He stated that he had been falsely implicated because of the enmity of the victim, etc. H s version of the occurrence was that gun (Exh. P. 1) originally was licensed in the name of his uncle's son, namely, Riaz, but it was kept by Muhammad Fazil P. W. because Muhammad Fazil P. W. had abducted a woman from Mianwali and he was always afraid of his life as he was threatened by the relatives of that woman. He kept the said gun for the purposes of his self-protection and. Riaz also used to reside with him. On the day of the occurrence, gun (Exh. P. 1) had developed some trouble and a cartridge got stuck into its barrel. The appellant tried to set it right while the others were also sitting there. But in the meantime it fired accidentally and in this way the victim was hit. However, the appellant was falsely implicated because the victim did not like him and had always thought of him as a man of bad character. He stated before the trial Court that he would produce defence but then eventually he did not produce any evidence in defence. Thus, it is evident that the occurrence or the incident is not being denied by the defence. The case of the defence is that the shot had been fired only accidentally while the gun was being handled by the appellant. In other words, the victim had been hit accidentally. 8. I have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant vehemently tried to argue that the shot had been fired at the victim by the appellant accidentally and that he has been falsely implicated by the victim only because the victim was inimical towards him. It was also pointed out that Muhammad Fazil P. W. the only eye-witness produced besides the victim being cousin of the victim, was interested witness and, therefore, their version was not reliable. I have carefully examined this aspect of the case but I do not find any substance in the argument of learned counsel. Even if the victim had any prejudice or hatred against the appellant, there is nothing on the record to show that Muhammad Fazil P. W. had any enmity or hostility towards the appellant. The mere relationship of Muhammad Fazil P. W. with the victim would not make him an interested e witness. In fact, in the statement made by the appellant before the trial Court, he had clearly stated that there was a gun which belonged to Riaz maternal cousin of the appellant. This gun used to be kept by Muhammad Fazil P. W. with whom Riaz lived and they were friendly, Muhammad Fazil P. W. had abducted some woman and he was afraid that her relatives may come after him. Therefore, he always kept the gun Riaz and that furthermore on the day of occurrence it was this gun in the barrel of which a cartridge got stuck. If this had been so, then obviously Muhammad Fazil P. W. was in no way on inimical terms with the appellant. If Muhammad Fazil P. W. was retaining this gun, he could have voluntarily handed it over to the appellants for setting it right. Consequently, had the fire been accidental, Muhammad Fazil P. W. would have certainly stated so. But all these suggestions have been denied on the part of Muhammad Fazil P. W. In fact, there is no reason why testimony of Muhammad Fazil P. W. about the occurrence should not believed. It is the testimony of Muhammad Fazil P. W which as corroborating the testimony of the victim. Consequently, I have no reason why it should not be believed. The recovery evidence for me is of no consequence for this purpose. Nevertheless the fact cannot be ignored that Muhammad Fazil P. W. was the person who produced the said gun before the police after having snatched it from the appellant. The gun had not been sent to the Forensic Science Laboratory and therefore, even this fact could not be determined as to whether the appellant was making a correct statement that a cartridge had stuck into its barrel. As I have said, I do not attach any importance to one recovery of the gun. But there is no reason why the testimony of Muhammad Fazil P. W., which is corroborating the testimony of the victim and is being further supported by the motive version as well as the medical evidence, should not be relied upon. In the light of the above discussion I am convinced in my mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. The result is that his conviction as well as sentence awarded to him were quite proper and they are accordingly maintained. This appeal dismissed. However, the Jail authorities are hereby directed to grant the benefit of the provisions of section 382-B of the Code of criminal Procedure to the appellant at the time of computation of his sentence of imprisonment. M. Y. H. Appeal dismissed.