2002 PLP 4026 (YLR)

7. Dr. Riaz Ahmed Awan, P. W.1 conducted the post‑mortem examination on the dead body of Mst. Noreen and observed the following injuries on her person:‑‑ (1) A grazing fire‑arm wound (acting as entry and exit) with blackening of 6 c.m. x 5 c.m. x going into deep tissues on the back of left hand. (2) A lacerated wound 3 c. m., x 3 c. m. x going into deep tissue with inverted edges on the centre of abdomen about 1 c.m. above umbilicus. (3) A multiple lacerated wound with averted edges in an area of 9 c.m. on outer side and back of right chest (a wound of exit of Injury No.2).

8. In the opinion of the doctor, death, occurred due to haemorrhage and shock under Injuries Nos. 1 to 3, which was sufficient to cause death in ordinary course of nature.

9. Tanvir Abbas P.W.2: witnessed the recovery of blood‑stained earth from the place of occurrence during the investigation and also signed the recovery memo. Exh.PD. Muhammad Hafeez Khan, Draftsman P.W.3 prepared scaled site‑plans Exh.PE and Exh. PE/1. Amir Hussain Shah P. W .4 entered formal F.I.R. Exh.PF upon the statement of Faiz Ahmed complainant, Faiz Ahmed, complainant P.W.5, and Ghulam Rasool P.W.6 were eye‑witnesses of this occurrence. Both of them narrated the circumstances under which appellant allegedly committed the murder of Mst. Noreen and had supported the prosecution case in verbatim. Ghulam Hussain, F.C. P.W.7 took the dead body of Mst. Noreen to the mortuary for post‑mortem examination and after the same, produced last worn clothes of the deceased before the Investigating Officer. He also took the parcel of blood‑stained earth to the office of Chemical Examiner and delivered the same intact. Muhammad Farid, I/S.H.O. P.W.8 got prepared challan of the instant case. Muhammad Altaf Hussain, A.S.I., P.W.9 kept the parcels (case property) of this case in Malkhana for safe custody and later on delivered the same to 'the Constables for onward transmission to the relevant offices Zafar Iqbal P.W.10 identified the dead body of Mst. Noreen at the time of post‑mortem examination. Dost Muhammad, S.‑I., P. W.11, conducted the investigation of this case as narrated in the earlier part of the judgment. Muhammad Arshad, F.C., P.W.12 was present when the last‑worn clothes of the deceased were produced before the Investigating Officer. He also witnessed the recovery of .12 bore gun P.5 recovered at the instance of appellant.

10. Learned D.D.A. tendered in evidence report of Chemical Examiner Exh.PK and that Serologist Exh.PL and closed the case.

11. Learned trial Court also examined appellant under section 342, Cr.P.C. Mst. Khadija appellant while deposing before the trial Court took up the following stand. "In fact Mst. Noreen shouted Lalkara and came to my house with Danda and started abuses to me and tried to kill me and in self‑defence I took a gun and which was unfortunately loaded and it was not in my knowledge that gun is loaded. I put my hand on trigger to frighten her but gun went off and fire hit her. It is further incorrect that occurrence took place in the house of Maqsood P. W. Complainant tried to conceal the fact of sudden fight and thus he mentioned in the F.I.R. that Maqsood was his brother. Similarly other witnesses mentioned in their statements that Maqsood is the brother of complainant and they gave the name of Maqsood's father Ghulam Rasool in their statement before the police. This shows that whole the story of prosecution is concoction and fake one. The P.Ws. have not seen the occurrence."

12. Learned trial Court after perusal of evidence vide judgment dated 24‑5‑2001 convicted and sentenced the appellant as narrated earlier.

13. Heard. Record perused.

14. It is a case of two versions. The mode of causing injury to the deceased and the weapon used in this occurrence are admitted fact. The only point to be resolved is whether statements of prosecution witnesses are to be accepted or the defence plea taken up by the appellant is to be relied upon.

15. In order to prove the charge against the accused/appellant prosecution has relied upon the statements of eye‑witnesses namely Faiz Ahmed, complainant (P.W.5) and Ghulam Rasool (P.W.6) and sought corroboration from the evidence of motive, recovery of gun at the instant of appellant and the medico‑legal reports.

16. According to the prosecution case, on the day of occurrence, Faiz Ahmed, complainant (P.W.5) alongwith his deceased daughter went to the house of his brother namely Maqsood Ahmed where Ghulam Rasool (P.W.6) was already present. Statedly within the view of both the said eye‑witnesses appellant committed the murder of Mst. Noreen. During cross‑examination Faiz Ahmed, complainant (P.W.5) changed his stand about his relationship with said Maqsood P.W. Admittedly he inadvertently got it recorded in the F.I.R. that Maqsood was his real brother. He admitted that he could not say about what type of relationship he had with said Maqsood. In order to show his presence this witness introduced a new story and stated that he had gone to the house of Maqsood in order to enquire from him about the supply of water of tube‑well and his turn. But in the next breath he voluntarily stated that he could not get chance to enquire the same. Initially the case of prosecution was that deceased and complainant went to the house of said Maqsood together. But before the trial Court this stand was changed and it was stated that his deceased daughter came later on. Similarly the case of the prosecution as set up in the F.I.R. is that one hour prior to the occurrence both the ladies i.e. deceased and appellant quarrelled and exchanged abuses but before the trial Court complainant took up the stand that at the time of occurrence accused/appellant and the deceased were abusing each other and the appellant fired upon the deceased. Statedly accused/appellant fired upon the deceased from the distance of two Karams. On the other hand the statement of Ghulam Rasool (P. W.6) is that deceased had not abused accused in his presence; both the deceased and complainant came to the house of Maqsood P.W. side by side. The purpose of this witness's visits to the house of Maqsood was to get some money from him but admittedly this fact was not narrated to the police while making statement under section 161, Cr.P.C. It is also admitted that the statement, by the police was recorded after 3/4 days. According to this witness appellant fired at the deceased from a distance of 3/4 Karams. Contents of medico‑legal reports and the persual of statement of Dr. Riaz Ahmed Awan (P. W.1) show that the ocular account narrated by above said witnesses is in direct conflict with the medical evidence. Dr. Riaz Ahmed Awan (P.W.1) while conducting the post‑mortem examination observed blackening around the entry wound on the person of Mst. Noreen deceased. It is common observation of the experts in the field of medical jurisprudence that blackening from a fire with a gun can occur only when the distance between gun and the object is' less than 3 feet, but according to the eye witnesses deceased was fired at from distance more than 15/16 feet. The contradiction between the medical evidence and the ocular account coupled with the above said discrepancies in the statement of eye witnesses create doubt about the veracity of the prosecution case and it will be unsafe to rely upon the same, to convict a person on the charge of capital sentence.

17. A careful analysis of the defence plea coupled with the facts of this case show that the same has got more weight. The defence plea taken up by the appellant shows that she made fire at the deceased from a close range and this fact stands established from the medico‑legal reports. The defence appellant was that at the time of occurrence, accused/appellant and the deceased were abusing each other and then accused fires upon the deceased apprehending danger to her life at the hands of the deceased. The fact of exchange of abuses between the appellant and the deceased immediately before the fire was made by the appellants stands admitted by Faiz Ahmed complainant (P.W.5), during the cross‑examination.

18. In the light of above facts of this case conviction of appellant under section 302‑C, P. P. C. needs no interference. However, as quantum of sentence is concerned, it has been observed that appellant is a mother of suckling child and as spelled out from the evidence that whatever she did. I was in the right of her self‑defence. In this view of the matter, I am persuaded to take lenient view about the quantum of sentence of appellant. Accordingly while dismissing the appeal the conviction of appellant under section 302‑C, P.P.C. is upheld. The sentence of imprisonment of the appellant is reduced to 10 years' R.I. Appellant is also directed to pay Rs.20,000 as compensation to the legal heirs of the deceased and in default thereof to further undergo 3 months' S.I. The benefit of section 382‑B, Cr.P.C. is also extended in favour of appellant. With this modification in the sentence, this appeal stands disposed of.

19. In the light of above discussion, I see no force in Criminal Revision No.437 of 2001. Same also stands dismissed. H.B.T./K‑178/L Order accordingly.