1993 P Cr (PLP)

4. The case was registered against the appellant through F.I.R. Exh.P.B. lodged on the basis of the statement of the complainant Abdul Hameed P.W.6 Exh.P.B./1 recorded by Abdullah Inspector S.H.O. P.W.10 in the hospital. He then prepared inquest report Exh.P.H. and drafted application Exh.P.G. and completed necessary formalities for post-mortem of dead body. He visited the spot and took into possession blood-stained earth vide memo. Exh.P.D. and arrested the accused on 17-9-1988. The accused led to the recovery of carbine Exh.P.4 and two live cartridges Exh.P.4/1-2 on 21-9-1988'from his residential house which was taken into possession vide memo. Exh.P.E. attested by Maqbool Ahmad P.W.8 and Mukhtar Ahmad (given up P.W.) Doctor Manzoor Ahmad Kazim who conducted the post-mortem of the deceased died during the trial, therefore, the post-mortem report Exh.P.F. was proved by P.W.9 Arif Hussain Shah, Dispenser D.H.Q. Hospital Sheikhupura. As per post-mortem report the following injuries were found on the person of the deceased:-- Injuries: (1) Eight fire-arm wounds of enterance 1 c.m. x 1 c.m. each in an area of 7.5 c.m. x 6.5 c.m. on the right side of chest in front of lower part 9 c.m. below the right nipple. (2) Four abrasions 1 c.m. x 0.2 c.m. (bigger one) in an area of 10 c.m. x 12 c.m. just below the right nipple. Injury No.l was found with the fire-arm and grievous in nature while injury No.2 was found to be with blunt weapon and simple in nature. All the injuries were ante-mortem. In the opinion of the doctor, injury No.l was sufficient in ordinary course of nature to cause the death. The probable time which elapsed (i) between the injuries and death, was within 30 to 60 minutes; and (ii) between death and post-mortem, was 24 hours.

5. The eye-witness account has been furnished by P.W.6 Abdul Hameed complainant of the case and Amir Ali P.W.7. Maqbool Ahmad P.W.8, brother of the deceased is a recovery witness of carbine Exh.P.4 and live cartridges Exh.P.4/1-2. The rest of the witnesses are of the formal nature and need not to be discussed.

6. The accused in his statement under section 342, Cr.P.C. denied the charge and took the plea that no doubt deceased had abducted Surayya Bibi, his sister but he had four children out of this wedlock and appellant had already compromised with the situation. The deceased before the day of occurrence talked with a number of persons of the village that he would abduct Razia Bibi younger sister of the appellant. He in order to fulfil his evil design attempted to abduct Mst. Razia when she went out to answer the call of nature, but the appellant in reaching at the spot under grave and sudden provocation and m the self-defence of Mst. Razia, his sister fired at the deceased with his carbine which was already with him to guard the cattle. The accused neither produced any evidence in defence in support of the plea raised nor himself appeared in the witness-box. The prosecution case mainly rests on the evidence of motive and ocular account furnished by P.W.6 and P.W.7 and recovery of carbine. 6-A. The learned counsel for the appellant raised the following contentions:-- (i) That the eye-witnesses were not present at the scene of occurrence and have not witnessed the occurrence as they narrated a usual story of general nature with no special features which indicates that they have not seen the occurrence. They behaved in unnatural way as the deceased being their close relative had come to them from city but he was not taken to the house for entertainment and thus it could not be expected from them to show the courtesy to accompany the deceased to the bus stop. Anyhow, they are chance witnesses and no reliance can be placed on them. (ii) That although the police station fell in the way while going to the hospital but the report was not lodged about the occurrence till the deceased expired in the hospital. In fact death took place much earlier but the dead body was intentionally brought to hospital to gain time to cook a fake story. (iii) The deceased was not a man of good character, and therefore, the possibility of the correctness of defence version cannot be ruled out particularly when the abduction of Mst. Surayya Bibi took place 8/9 years earlier and appellant had already compromised with the situation and there was no occasion for the appellant to take revenge of abduction of Mst. Surayya Bibi, thus the defence version seems more plausible and appeals to the mind. (iv) That appellant fired only one shot which fact indicates the gravity of the compelled circumstances to fire in grave and sudden provocation and in defence of his sister, otherwise nothing happened during the last 8/9 years, therefore, the case falls under section 304, Part 1, P.P.C. and not under section 302, P.P.C.

7. The learned counsel for the State has supported the judgment of the learned trial Court and submitted that there is nothing wrong with the conviction and sentence awarded to the appellant by the learned trial Court.

8. I have considered the arguments of the learned counsel for the parties and perused the record carefully.

9. The occurrence in the present case is admitted but with different version. The only question to be determined is as to whether the version put by the prosecution or the one given by accused is correct and near to truth. There is no indication on record to suggest that this appellant ever met Mst. Surayya after her marriage with deceased or that she visited the house of appellant. The deceased after the abduction of Mst. Surayya and contracting marriage with her left the village and was putting himself alongwith his wife and children in Sheikhupura city. The relations between the deceased and the appellant were strained and there was no communication between them which circumstance is a strong proof of motive for the occurrence.

10. The eye-witnesses, no doubt, are related with the deceased but they are not inimical towards the appellant. They are residents of the village and were present at the Dera which is normal place to sit and entertain the guests in the villages, therefore, the presence of P.Ws. was most natural and cannot) be termed as chance witnesses. The chance witness is one who is neither resident of the area nor has any business to go there and cannot be expected in the area in normal circumstances. The ocular account is consistent with the contents of F.I.R. and further is corroborated by the evidence of motive, medical and admission of accused of causing injury with carbine. I, therefore, hold that the eye-witnesses are reliable and confidence inspiring. The accused having serious condition had to be provided medical aid at the first instance instead of running for the police. The accused met death as soon as brought to the hospital and thereafter without any loss of time the matter was reported to the police. It is, therefore, incorrect to suggest that the lodging of the report was intentionally delayed.

11. The learned counsel laid much stress on the arguments that the defence version is more plausible and acceptable in the circumstances of the ease. The accused for the first time introduced the defence plea under section 342, Cr.P.C. and that too without producing any evidence in support thereof. The best evidence to substantiate the plea was that of the evidence of Mst. Razia Bibi who was to be abducted by the deceased but the defence did not bring her in the witness-box in support of the plea. Further, neither the accused himself nor any other person from the village came to the witness-box in support of defence. The story of abduction of Mst. Razia does not appeal to mind as the occurrence took place at a short distance from metalled road and bus stop, which place is at a considerable distance out of the village Abadi, and therefore, it cannot be believed that Mst. Razia had gone there near to the bus stop for answering the call of nature and that too all alone. Moreover the deceased was not in a position to afford such activities and invite any trouble at the cost of disturbance of his own family life. Had the deceased been in the village with the intention to abduct Mst Razia, he must have made sufficient arrangement for his protection and would have never gone there all alone empty-handed. The prosecution story while putting in juxtaposition with the defence version seems to be more plausible, reasonable and near to truth. The accused having come to know about the presence of the deceased in the area found opportunity to take revenge of the abduction of Mst. Surayya, his sister. From the facts and circumstances of the case, it is established that the accused appellant with intention to kill the deceased fired shot at him which proved fatal. This appeal having no force is dismissed The conviction and sentence awarded to the appellant is maintained. N.H.Q./M-671/L Appeal dismissed.