2001 PLP 279 (YLR)

4. Haq Nawaz, S.I` P.W.10 prepared the injury statement and inquest report of Yousaf Masih and sent the dead body to Mortuary and then he went to the place of occurrence from where he collected blood stained earth and three empties from the spot in the presence of the witnesses. Then he arrested appellant on 12‑9‑1997 who got recovered pistol on 15‑9‑1997 in the presence of the witnesses. After completion of the investigation the challan was submitted. The trial Judge framed the charge against the appellant and his co‑accused which was denied by them and they claimed to be tried. The prosecution in order to prove the guilt of the accused produced 10 witnesses. Dr. Anwarul Haq, Medical Officer who conducted the medical examination of Yousaf Masih deceased was not cited as witness so his statement was recorded as C.W.1 P.W.1 Dr. Muhammad Aslam, Medical Officer conducted the post‑mortem examination of Yousaf Masih deceased and found the following injuries on his person:‑‑ (1) A fire‑arm wound of entrance 0.5 c.m. x .5 c.m. DNP margin inverted and black on right and outer side of chest, at lower part with a wound of exit 1 x 0.5 c.m. DNP, margins everted and apigastrium. (2) A fire‑arm wound at proximal site of ring little and middle finger of right hand 2.5 c.m. x 1 c.m., bone deep (proximal phalanx of ring and little finger fractured, margins were black towards outer side of right hand. (3) A stitched wound of laprotomy 25 c.m. on front of abdomen and a stitched wound for thoracotomy 28 c.m. on right front of chest. Chest intubation to be and on right side and a drain on right side of abdomen present. Stitched wound No.3 was due to surgical procedure. Skull was opened. No abnormality was detected in scalp, skull, vertebras, membranes, brains and spinal cord. In the opinion of the doctor the cause of death was shock and haemorrhage due to injury No.1 individually as well as injury No.2 could have caused death individually. Injury No.1 and injury No.2 could have caused death collectively. Injury No.1 and injury No.2 were caused by fire‑arm weapon and were anti mortem in nature and sufficient to cause death in ordinary course of nature.

5. Dr. Anwarul Haq, M.O. C.W.1 who medically examined the deceased at 6.00 a.m. found similar injuries on the person of deceased, details of which have been given above by P. W.1, Dr. Muhammad Aslam Medical Officer. P.W.2 Akbar Ali Constable escorted the dead body to the Mortuary. The doctor handed over the last worn clothes to him. P.W.3 Fiaz Masih identified the dead body before the doctor at the time of autopsy. P.W.4 Syed Kazim Hussain, Draftsman prepared the site‑plan. P.W.5 Muhammad Qureshi H.C. was posted as Moharrir. He kept the parcels in the Malkhana and delivered them to Arshad Mahmood Constable for their onward transmission to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. These parcels were sent on 12‑9‑1996 containing blood stained earth and empties. On 15‑9‑1997, Investigating Officer delivered to him pistol which he kept in safe custody and handed over to Arshad Mahmood Constable on 20‑9‑1997 for its onward transmission to the office of Forensic Science Laboratory. Arshad Mahmood has supported the factum of taking of the parcels to the respective offices when he appeared as P.W.6. P.W.7 Rehmat. Masih is the complainant and eye‑witness while P.W.8 Victore Masih, is also the witness of occurrence. P.W.9 Imtiaz Masih witnessed the recovery of pistol by the police. P.W.10 Haqnawaz S.I. conducted the investigation of this case. After completion of the prosecution case the accused made their statements under section 342, Cr.P.C. The appellant made the following reply:‑‑‑ "It is correct that my brother Babar Masih was murdered and a case vide F.I.R. No.295 of 1995 was registered against Yousaf Masih and three others. Yousaf Masih deceased was murdered by unknown assailants during the pendency of above case and present false case was registered against me and other co‑accused. Raiz Masih accused (since dead) was my father. Riaz Masih son of Gurran Ditta accused was falsely involved in this case. I had no relationship with Riaz Masih son of Gurran Ditta accused. Yousaf Masih deceased was murdered by some unknown assailants. I and other my co‑accused are innocent and have no connection with‑the commission of alleged occurrence. On 28‑8‑1995 a murder case vide F.LR. No.295 of 1995 was registered against four persons namely, Shamoon Masih, Stephan Masih, Georage Masih and Yousaf Masih for the murder of Babir, my real brother. The aforementioned Shamoon Masih and Stephan Masih were armed with Churris, while George Masih and Yousaf Masih were empty handed. The aforementioned Shamoon Masih and Stephan Masih inflicted Churri blows at the vital parts of the body of my brother Babar Masih. My brother Babir Masih aged 18 years was brutally murdered by the above mentioned persons. I was also seriously injured in that occurrence. The accused of that murder case were challaned by the police and during trial, I appeared as injured P.W. against said persons. The co -accused Riaz Masih son of Gurran Ditta was recovery witness against said Shamoon etc., who had given evidence in the Court. I had no relationship with Riaz accused son of Gurran Ditta. Due to aforementioned enmity the complainant party falsely involved me in this case. My father Lazir Masih died during the pendency of this case. The then learned Additional Sessions Judge, Gojra convicted said Shamoon and sentenced him to 25 years' R.I., Stephan Masih was sentenced to 10 years' R.I., Georage Masih was acquitted and Lazir Masih died during trial of that case. The deceased Yousaf Masih was quarrelsome and mischievous person. He had relations with criminals and had many enemies. Yousaf Masih deceased was murdered by unknown assailants and due to previous enmity, the complainant party involved me and other co‑accused in this case falsely. It was an unseen occurrence. Eye witnesses in this case are closely related with deceased Yousaf Masih. The said P. Ws. are interested, irreliable and untrustworthy. During the course of investigation nothing was recovered from me. I was arrested on 4‑9‑1997 by the Investigating Officer and my arrest was fictitiously shown on 15‑9‑1997. The Mongi Road is a well -frequented road and nearby area is thickly populated but not a single independent witness was cited against me. The police investigated the case dishonestly. My father was also falsely involved in the present case and died during pendency of case. I am poor person. I have wife, five minor children and old mother. My wife and my mother are working hard to earn their livelihood. I am innocent in the present case. I and my family have been ruined. I tender in my defence, photostat copy of F.I.R. No.295 of 1995 mark‑A photostat copy of medico‑legal report No.800 of 1995 mark‑B and photostat copy of post-mortem report of my deceased brother Babir Masih mark‑C. I also tender photostat copy of medico legal examination No.301 of 1995 mark‑D of myself." None of the accused appeared in their defence nor they produced any defence evidence. The learned Additional Sessions Judge after hearing both the parties passed the above‑said sentences.

6. Learned counsel for the appellant has contended that the ocular account is in conflict with the medical evidence for three reasons, both the eye‑witnesses are consistent that the assailants were at a distance of 11 feet from the deceased when the shot was fired while P. W.1 has found the blackening on the injuries of the deceased, and blackening can only be seen on the injury if the shot is fired from less than 4 feet hence the assailants and the witnesses were not at a distance of 11 feet when the shot was fired. The second reason is given that the dimension of injury No. 1 0.5 and it is a pellet injury caused by gun and the dimension of injury No.2 shows that it was caused by some bullet hence it has become clear that two weapons have been used during the occurrence .12 bore gun and pistol therefore the ocular account is in conflict with the medical evidence. The third reason is that the eye‑witnesses stated that three shots were fired which hit the deceased while injury No. 1 is entry wound and injury No.2 is exit wound; hence the medical evidence belies the ocular account. He further contends that there are contradictions in the statements of the eye‑witnesses and they had made dishonest improvements during the trial. It is clear that the occurrence took place in the dark hours and it is an un-witnessed occurrence. The contradictions in the medical evidence prove that the witnesses were not present at the spot and they are not truthful witnesses and are not worthy or reliance. Hence the appellant entitles acquittal in the case in hand.

7. Learned counsel for the State has opposed the appeal and has contended that the prosecution evidence is sufficient to connect the appellant with the commission of the crime and the learned Additional Sessions Judge has rightly convicted the appellant for the charge under section 302, P.P.C. and his sentence should be maintained.

8. I have heard the learned counsel for the parties at length and perused the record minutely. The minor contradictions in the medical evidence and the ocular account are not material in this case as the case of the prosecution is that the appellant fired three shots though two other accused also participated in the occurrence but they were not alleged to have fired any shot on the deceased. A bare perusal of the statement of P.W.1 shows that he was an inexperienced doctor. His opinion is not based on sound footing. Even otherwise not it is well‑settled that in case of any contradiction in the medical evidence and the ocular account the ocular account will be preferred over the medical evidence as the eye‑witnesses have themselves seen the occurrence. On the other hand the doctor gives his opinion after seeing the injuries which can be incorrect. Hence opinion cannot prevail over the ocular account. Even otherwise both the eye witnesses have been able to prove that the appellants while armed with pistol fired at the deceased thrice. Three empties were recovered from the spot by the Investigating Officer and the fire‑arm injuries have been found on the person of the deceased hence the medical evidence is not in conflict with the ocular account but is in line with the ocular account and is fully supported by the factum of recovery of three empties from the spot by the Investigating Officer at the time of first inspection of the spot. These empties were sent .to Forensic Science Laboratory on 12‑9‑1997 before the arrest of the appellant and then after the recovery of pistol it was sent to the Forensic Science Laboratory on 20‑9‑1997 and the empties were found to have been fired by the pistol recovered from the appellant, hence the recovery of pistol and the matching of empties with the abovesaid pistol provides an independent corroboration to the ocular account. The other, evidence produced by the prosecution is of formal nature. No doubt there is previous enmity between the appellant and the complainant party but as the statements of both the witnesses are consistent on the material points they are residents of the locality, their presence at the spot is not at all doubtful, hence their statements cannot be brushed aside merely on the ground that they had some enmity with the appellant. It is well settled law that the statements of interested witnesses. required corroboration which is available in this case by the factum of recovery of pistol and the matching of empties with the pistol by the Forensic Science Laboratory's Report. The ocular account is also supported by the medical evidence as the fire‑arm injuries are found on the person of the deceased. The contention in this respect raised by the learned counsel for the appellant is not convicting as it is a case in. which only one assailant has been shown to be armed with a pistol who fired at the deceased, hence it is almost a case of single accused and the nature and seat of injury and any difference in the dimension of injury will not affect the prosecution case. The presence of blackening will also not cause any damage to the prosecution case as the illiterate persons cannot give the exact distance of the assailants and the deceased at the time of the occurrence. The prosecution has stood on its own legs and has proved the case against the appellant beyond any shadow of doubt.

9. The appeal has no merits and is dismissed. However, the fine imposed by the l teamed Additional Sessions Judge cannot be imposed under section 302(b), P.P.C. hence the sentence to the extent of fine of Rs.1,00,000 is set aside. Similarly the appellant has made a statement in which he has narrated that he is a poor man having five children and is only bread winner of the family. The deceased was also a poor man. The direction to pay compensation of Rs.50,000 is also reduced to Rs.10,000 and in case of default in payment of compensation the appellant will have to undergo three months' S.I. However, benefit of section 382‑B, Cr.P.C. is given to the appellant.

10. From the above discussion the appellant is convicted and sentenced under section 302(b), P.P.C. to life imprisonment with a further direction to make payment of Rs.10,000 as compensation to the legal heirs of the deceased and in case of default in payment he has to further undergo S.I. for three months. Benefit of section 382‑B, Cr.P.C. is given to the appellant.

11. With these modifications this appeal is dismissed. N.H.Q./R‑64/L Appeal dismissed.