P L D 2002 Lahore 262 (PLP)

(4) An exit wound 1 c.m. x 1 c.m. in left root of neck with everted edges, blood was oozing out adjacent hole in Qamiz was present." He further observed as under:‑‑ Thorax: There was a hole in upper portion of right chest in axillary portion. A hole of entry was also present‑ in right lower rib‑cage both the lungs were ruptured with pleura. Trachea was also found ruptured. Thoracic aerota was found ruptured. While the plurae cavity was full of blood. Pericardium and heart were found normal with heart containing little amount of blood. Abdomen: Who a peri oneum cavity was full of blood. Oesophagus was found ruptured in lower portion. Diapharam was torn in central region and left side mainly. Upper portion of stomach was found ruptured and there was no food in it. Small and large intestines were normal but distended. Both liver and spleen was ruptured leading to massive intraperitoneum bleeding. Rest of the organs were normal and healthy. In the opinion of the doctor, the cause of death was shock due to intra‑peritonial and intra‑pleural bleeding and damage of vital visceras due to injuries Nos. 1 and

3. Both the injuries were caused by fire‑arm weapon and ante‑mortem and sufficient to cause death in ordinary course of nature. The probable time between death and injuries was immediate and between death and post‑mortem was five hours. After the post‑mortem examination, the stitched dead body alongwith the .relevant papers and the last worn clothes of the deceased were handed over to the police. Exh.PA is the post‑mortem report which is in his hand and bears his signatures.

6. Muhammad Hanif (P.W.2) is the Draftsman, who prepared the site plan in triplicate, Exh.PB, Exh. PB/1 and Exh.PB/2.

7. Musarrat Hussain Shah, Head Constable (P.W.3) recorded the formal F.I.R., Exh.PC, verbatim and kept the case property in the Malkharia while despatching the sealed parcels containing blood‑stained earth and empties to the concerned offices at Lahore. He also kept .30 bore pistol, recovered from the appellant, in the Malkhana intact before its despatch to Lahore on 5‑1.0‑1998. Muhammad Daood Constable (P.W.4) had taken the recovered pistol to the Forensic Science Laboratory.

8. Zafar Iqbal, Constable, had escorted the dead body to the mortuary and also collected last worn clothes of the deceased. He took the sealed parcels containing blood‑stained' earth and crime empties to the Office of the Chemical Examiner and Forensic Science Laboratory, Lahore, on 28‑9‑1998. He is also a witness of the recovery of .30 bore pistol (P‑3) from one appellant. While he attested the recovery memo. Exh.PE alongwith Basharat Hussain Shah Constable.

9. Fida Hussain (P.W.6) identified the dead body. Manzoor Hussain (P.W.7) is a witness against the recovery of blood‑stained earth from the place of occurrence which was taken into possession by the police vide recovery memo. Exh.PF. In his presence two empties, Exh.P‑4/1‑2, were also taken into possession by the police vide memo. Exh.PG.

10. Gul Hussain Shah, S.‑I. (P.W.10) is the Investigating Officer. Before whom the complainant had made a statement and he reduced it into writing on the basis of which the F.I.R. was registered. When he went to the spot, he prepared the injury statement of Muhammad Yaqoob and the inquest report (Exh.PH and Exh.PJ) and sent the dead body to the mortuary. While inspecting the spot, he took the blood‑stained earth (Exh.PF). He recovered two empties from the spot, of .30 bore pistol (P‑4/1‑2) vide memo. Exh.PG. He prepared the rough site plan, Exh.PK, and wrote his notes on it. He recorded the statement of the witnesses, received the last worn clothes of the deceased from Zafar Iqbal, Constable and got the case property recovered, placed in the Malkhana for safe custody. At his instance, the Draftsman had prepared the site plan. On 4‑10‑1998 he arrested the appellant and on his personal search he recovered .30 bore pistol (P‑3) which was taken into possession vide memo. Exh.PE. The place of recovery is reflected in Exh. PE/ 1.

11. In his statement under section 342, Cr.P.C., the case of the appellant was one of denial. In reply to question as to why this case was made against him, he stated:‑‑ "On the day of occurrence, I was not present at the spot and was present in my own village Dakhnair. However, my sister Mst. Bushra, aged about 14 years, was present in the house of Muhammad Yaqoob deceased for preparing meals etc. for him as his wife Mst. Kausar Parveen, who happens to be our maternal aunt was in Karachi. Muhammad Yaqoob attempted to commit rape with my sister Mst. Bushra at pistol point but she resisted and during that process the pistol of deceased went off as result of which he died. I was apprehended by the police from my village on the same day and instead of my sister, police challaned me in this case falsely. Mst. Shamim Akhtar complainant is real sister of the deceased while Muhammad Qayyum is son of the deceased and they both have falsely deposed against me due to their relationship with the deceased. Remaining P.Ws. have also falsely deposed to strengthen the prosecution case." He did not produce any evidence in defence nor opted to be his own witness.

12. The learned trial Court did not believe the motive part of the story and its observations on the basis of evidence were as follows:‑‑ "As regards the motive, prosecution version is that accused demanded his labour charges from the deceased upon which the latter promised him to pay the same in the evening but accused took out the pistol from the Dub of Shalwar and hurling abuses to the deceased fired two pistol shots at him hitting on his chest and right flank. P.W.8 Mst. Shamim Akhtar and P.W.9 Muhammad Qayyum have reiterated this version in their statements. However, there is nothing on record to show that the accused was working there o:: daily wages. It has been got recorded by P.W.8 in her complaint, Exh.PC/l, that the accused alongwith his father and sister was staying in the house of deceased for the construction of the room. This part of her statement shows that they were extending their help to the deceased in the construction of his room being his close relatives. It does not imply that they were working there on daily wages. Even otherwise at 11 a.m. there was no occasion for the accused to demand his wages. Thus prosecution version regarding motive is not confidence inspiring, On the other hand, it may be inferred from. the facts d circumstances of this case particularly defence plea of the accused that conduct and character of the deceased with regard to Mst. Bushra was not above‑board and it became the real cause of occurrence. It may be mentioned here that presence of Mst. Bushra, her father Muhammad Iqbal and Muhammad Aslam mason in the house of deceased at the relevant time is admitted by the prosecution but it is very strange that the Investigating Officer did not deem it necessary to join them in investigation and record their statements. This deliberate omission on the part of Investigating Officer shows that there was something fishy which the prosecution has tried to suppress by not joining the abovesaid persons in investigation." It was also skeptical about the evidence of Mst.Shamin Akhtar and thought that she was lieing at various stages but believed some part of her statement. Regarding Muhammad Qayyum (P.W.9), his .testimony was accepted. But the defence version as put forth by the appellant in his statement under section 342, Cr.P.C was also not accepted, by the trial Court. Mainly on the ground that Bushra, the sister of the appellant was not produced for the reinforcement of this version.

13. It is the prosecution's own case that tile appellant, his father and his sister were present there. Who on friendly basis were helping the deceased in the construction of a new room. The motive part of the story was not believed and rightly so because all of a sudden and too in villages, people do not ask for their wages so abruptly as has been projected. But there is no other reason advanced, by the prosecution side which would have led to these consequences. While disbelieving the defence story and the prosecution story about the motive, the trial Court could not build up its own story. Anyway, the reasoning given about the non‑production of Mst. Bushra in support of defence version for discarding the prosecution version, was without the appreciation that normally young girls are not asked to be witnesses when it is the version of the defence that she was to be subjected to rape by the deceased. 13‑A. In paragraph 8 of the judgment, the learned trial Court has discussed the question about the quantum of sentence to be awarded to the appellant and mentioned that he deserved leniency and, therefore, he convicted him under section 302(b) of the P.P.C. The learned trial Court, however, was not sure whether the defence plea was correct, but the learned trial Court remained obsessed with the idea that the appellant was suspicious about the character of the deceased with regard to his sister on the basis of which he committed the occurrence.

14. The prosecution has failed with respect to its version on the motive part of the case. Where the prosecution fails in its version, the defence story is then prominent in rescue of an accused. And when a statement under A, section 342, Cr.P.C. of an accused is inspiring and helps in determining his role in a crime, this statement has to be taken as a whole. Reference in this connection may be made to the cases of: (1) Ghulam Qadir v. Esab Khan and others (1991 SCMR 61); and (2) Shabbir Ahmad v. The State (PLD 1995 SC 343). This aspect did not receive the attention of the learned trial Court in the background of no previous enmity inter se the parties. Therefore, keeping B this aspect of the case alive in our minds and the probabilities that may be there, we have then to determine the offence and the quantum of the punishment.

15. Agreeing with the learned counsel for the appellant, this Court feels that the conviction under the circumstances of the case ought to have been under section 302(c), P.P.C. because this case did have a streak of family honour (Ghairat) which was also believed by the trial Court and this certainly I was not a cold‑blooded premeditated murder. Reliance may be placed on the cases of: (1) Ali Sher v. The State (1999 PCr.LJ 682); (2) Ghulam Yasin and 2 others v. The State (PLD 1994 Lahore 392); (3) Muhammad Ishaq v. The State (1998 PCr. LJ 1110); (4) Ghulam Farid v. The State (1997 PCr. LJ 1411); (5) Akbar v. The State (1997 PCr.LJ 1887) and (6) Muhammad Ayub v. The State (1997 PCr.LJ 2056)

16. The judgment of the trial Court is, therefore, modified and the conviction is ordered under section 302(c), P.P.C. and the appellant is sentenced to 10 years R.L.and to a fine of Rs.50,000, as already ordered, and in lieu thereof to suffer further one year R.I. The entire amount of fine shall be paid as compensation to the legal heirs of the deceased under l section 544‑A, Cr.P.C. He shall get the benefit of section 382‑B, Cr.P.C. N.H.Q./B‑77/L Order accordingly.