1989 PLP 688 (MLD)

Fire‑arm entry wound 1/2 c.m. in diameter in between 5th and 6th left rib on lateral side on left side of chest on front. The margins were slightly tatooed. On internal examination he found the following damages:‑ (1) Thorax wall, ruptured, on entry wound. (2) Pleaurae ruptured. (3) Left lung ruptured. (4) Peritoneum ruptured on left side. (5) Stomach ruptured and full of blood. (6) Small intestine ruptured in upper part. (7) Liver ruptured in left lobe. From external as well as internal examination of the dead body he was of the opinion that cause of death was haemorrhage and shock due to fire‑arm injury, such as, pistol. It was ante‑mortem in nature. Injury No.1 was sufficient to cause death. It was fired from more than 10 feet. Time between the injury and death was about 1/2 hours, and time between death and post‑mortem was about 4 to 5 hours. He has produced the post‑mortem report as Exh.7. Complainant Moula Bux has supported the contents of his F.I.R‑ The occular evidence has been furnished by Luqman P.W.5 and Usman P.WA. The have fully supported the complainant. As far as recovery of pistol was concern it has been supported by Mashir Gul Muhammad and S.H.O. Aziz Ahmed. However, it will be worthwhile to mention here that since there were contradictions between the evidence of Mashir Gul Muhammad and S.H.O. Aziz Ahmed on the point of recovery the same has not been relied upon by the learned Judge, Mr. Muhammad Mobin, Mukhtiarkar and F.C.M. has deposed that the accused was produced before him for recording his judicial confession. He gave him the necessary warnings and after complying with all formalities he recorded the confessional statement of the accused and the same has been produced by him as Exh.21. He then remanded the accused to judicial custody. However, since the judicial confession was in conflict with the prosecution case, the same was not relied upon by the learned trial Judge. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellant, Mr. MA. Qarni, learned counsel appearing for the State, and have gone through R.&.P. of the case. It has been contended by Mr. A.Q. Halepota, learned counsel for the appellant that the ocular evidence was interested, contradictory, and unreliable, and the learned trial Judge had erred in convicting the appellant. That the appellant had no enmity with the deceased nor he had motive to kill him, and the prosecution story appears to be absurd. It was further contended that Mashirnama of Wardat shows that there was grass at the Wardat which was cut by the deceased alone. That the case of P.W. Usman was that accused/appellant had fired two shots at the deceased but only one empty bullet was found from, the magazine of the pistol while the second was live bullet. That the fact that the witnesses were examined on the following day goes to show that they were not present at Wardat on the day of incident. In the alternative it was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellant, that from the allegations made in the F.I.R. it is clear that there was sudden flare up and exchange of hot words between the parties, and there was no intention to kill the deceased and, therefore, the appellant will he at the most liable under section 304, Part II, P.P.C. In support of his contention, he has relied upon P L D 1971 SC

720. Mr. MA.I. Qarni, leered counsel appearing for the State has contended that no doubt the complainant and witnesses were related to the deceased but they had no reason to implicate the appellant falsely. The incident was broad daylight incident and there was no question of substitution of accused. However, he was also of the view that there was no motive nor intention to kill the deceased and, therefore, the offence will fall under section 304, Part II, P.P.C. I have considered the contentions of the learned counsel. In the present case, it is of course an admitted position that deceased Muhammad Siddique was sister's son of the complainant, P.W. Luqman is son of the complainant while P.W. Usman is cousin of the complainant. The occular evidence has been furnished by P.Ws. Luqman and Usman which is corroborated by complainant Moula Bux. There was no enmity between the parties and there was no reason for these witnesses to implicate the appellant. It was a broad daylight incident and the complainant party had no reason to substitute the present appellant at the place of the actual culprit. The evidence of complainant, P.Ws. Luqman and A Usman appears to be natural, straightforward and reliable. The plea taken by the appellant that he has been implicated at the instance of Habibullah Chaniho appears to be far‑fetched, absurd and unnatural. The evidence of defence witness Ghulam Muhammad is of no help to the appellant inasmuch as even he has not supported the stand taken by the accused regarding the enmity with Habibullah Chaniho over possession of shop. The prosecution case is further supported by the circumst4nce of grass which was found by the police at the Wardat. Merel non‑mention of the grass cut by the witnesses in the Mashirnama of Wardat will not affect then evidence in any way. Likewise, the contention of Mr. A.Q. Halepota that to shots were fired and only one empty was, found from the magazine of the pistol has not impressed me, inasmuch as the incident took place in the cultivation, and it is likely that one empty bullet might have fallen in the grass/cultivation and the police may not had been able to locate the same. The evidence of P.Ws has not been shaken in any way in spite of long cross examination, In view of the above discussion, I am satisfied that the witnesses were natural truthful and were rightly relied upon by the learned trial Judge, since they had no enmity with the appellant nor they had any reason to falsely implicate the appellant. The incident having taken place during day time it was B not possible for the witnesses to implicate an innocent person at the place of actual culprit. Under these circumstances their evidence could safely be relied upon for the purpose of conviction of the appellant. As far as the evidence regarding the recovery and judicial confession were concetned, the learned trial Judge has rightly discarded the same and for cogent reasons. I have no reason to take a different view than the one taken by the learned trial Judge. Adverting to the last contention of the learned counsel appearing for the appellant, the F.I.R. shows that the appellant had gone to the harap land of the deceased ahd witnesses, and asked them to allow him to cut grass. It is further mentioned in the F.I.R. that on their refusal to allow him there was exchange of harsh words between them on which appellant took out revolver from his fold and 'gyred at Muhammad Siddique. Even the complainant has stated in examination -in‑chief that deceased Mohammad Siddique P.W. Usman and P.W. Luqman were cutting grass in the field of deceased where accused Sher Khan also came for cutting grass. Mohd Siddique asked him not to cut the grass and the accused insisted on doing so which resulted in an altercation between Sher Khan and Mohammad Siddique and thereafter, accused Sher Khan fired at deceased Mohammad Siddique. Admittedly, there was no previous enmity between the parties and, therefore, there could be no intention to kill the deceased. However, the appellant could be burdened with the knowledge that the injury which he was going to cite to the deceased was to cause his death and, therefore, he could be burdened with the knowledge. In the case of Ahmed and 3 others vs. The State P L D 1971 SC 720, it was observed by their Lordships of the Supreme Court that: "Part II of section 304 P.P.C. applies if the fatal injury inflicted on the deceased is caused to him without any intention on `the part of the accused to cause such death, and such bodily injury is likely to cause death but about which the accused can be burdened with the knowledge ' that it is likely to cause his death." In view of the above factual as well as legal position although there was no intention on the part of the appellant to kill the deceased but he could at least know that by firing at the deceased, the injury which he was likely to inflict could cause death of the deceased; and therefore, his act will fall under section 304 Part II, P.P.C. I, therefore, alter the conviction of the appellant from section 302 P.P.C. to section 304 Part II, P.P.C. and reduce substantive sentence from imprisonment for life to five years and also to pay fine of Rs.5,000 (Rupees Five Thousand) and Rs.5,000 (Rupees Five Thousand as compensation. In case of default of payment of fine and compensation (Total Rs.10,000) he shall suffer further R.I. for six months. The fine and compensation if recorded shall be paid to the heirs of deceased Mohammad Siddique as compensation. The appellant is allowed benefit of section 382‑B, Cr.P.C. With this modification the appeal is dismissed. I had decided the above Appeal on 24‑1‑1989 and these are the reasons for the same. M.Y.H./S‑332/K Appeal dismissed/sentence reduced.