PLD 1988 Peshawar 143 (PLP)

Fazal Gul for the State. Date of hearing: 12thJune, 1988. Miskin and his brother‑in‑law Anwar Khan faced a trial on the charges of murder of Fazal Noor deceased and murderous assault on Ali Zaman by firing at Khuftan Vela on 8‑5‑1980 within the limits of village Dhaman Dheri, P.S. Phulra in furtherance of their common intention under section 302/307/34, P.P.C. Ali Zaman the complainant had lodged the report in Police Post Lassan per Mad No.6 of the daily diary at 21‑30 hours in which he charged both the accused to have opened fire at him which he escaped and that his mother Mst Fazal Noor who was attracted to the scene at the noise was hit as a result of the fire shots and fell to the ground who was picked up .by his brothers and father and taken to the house. The occurrence was witnessed besides him by his brothers Ghulam Muhammad and Sher Muhammad and his father Khanizaman and one Muhammad Ishaque blacksmith. At the trial Ali Zaman and Ghulam Muhammad were produced while the others were abandoned.

2. Mst. Fazal Noor aged about 70 to 72 years was examined on 9‑5‑1980 at 3‑30 A.M. and there were found the following injuries on her person:‑ (1) hire‑arm entrance wound " x " cavity deep on the left side of the abdomen 2" away at lateral to the umbilicus. (2) Fire‑arm entrance wound " x " on the left buttock in the middle. The Doctor opined that the injuries were caused as a result of two fire shots of bullet. She was referred to the District Headquarter Hospital for further treatment. She had, however, succumbed to her injuries in the District Headquarter Hospital, Abbottabad. Her post-mortem examination was conducted by Lady Dr. Farakh Iqbal (P.W.9) at 2 P.M. on 10‑5‑1980 who on external examination found an entrance wound by fire‑arm weapon on the right side of abdomen in a size 1/3" going deep abdominal cavity and wound of exit by fire‑arm weapon on the left buttock in a size of 1/3 in diameter. She stated that the deceased had died due to fire‑arm injuries to the intestines and the mesentry and that the left iliac bone and hip bone were fractured as a result of the fire shot which could be of high velocity, may be a bullet. The discrepancy in the medical evidence furnished by the two Lady Doctors bespeaks of the inefficiency and culpable negligence demonstrated by them in the performance of their official duty. The medical evidence, however, goes a long way to establish that the deceased was probably hit as a result of one or two bullet shots. There have, however, been allegedly made a recovery of 4 empties of 12 bore shot‑gun and also later on the shot‑gun itself which was found to match with the empties by the Arms. Expert. The evidence of the Arms Expert was recorded at the revisional stage to which a valid objection was taken as a revisional Court can exercise the powers vested in appellate Court under section 428, Cr.P.C. to record evidence at appellate stage only if the revision is for the enhancement of sentence but when a revision is directed against acquittal there cannot be recorded any evidence and as arid when the revisional Court finds any infirmity or irregularity resulting in the miscarriage of justice, it may, on acceptance of revision, order retrial of the accused.

3. There was recorded a dying statement of Fazal Noor on ‑9‑5‑1980 at 4‑35 hours in the Civil Hospital, Mansehra in which she charged Miskin accused respondent for opening fire at the inmates of her house when as a result she was hit in her belly of his fire shot. She was rounded by the police constables and her relations when her dying statement was recorded by a police personnel in the presence of lady doctor. The deceased was also accompanied by her relations on the way. The possibility of prompting and tutoring cannot be excluded. Zeb‑un‑Nisa, nurse, a marginal witness of the dying statement was also to give a doubtful statement that she was busy in administering injections to other. patients at the time of recording of the dying statement. The dying statement was further recorded by A.S.I. in presence of the lady doctor. In the dying statement the deceased was to ascribe a 12 bore shot‑gun to the accused respondent. The deceased has, however, sustained bullet injuries as per medical evidence. The deceased was operated upon for her eye‑sight at Taxila. She was aged 70‑72 years. As per site plan she was fired at from a distance of 42 paces at Khuftan Vela. She was not likely to identify the accused at that hour of the night with her weak eye‑sight.

4. The two eye‑witnesses Ali Zaman and Ghulam Muhammad were to improve upon their statements and they were now to confine their charge to Miskin accused respondent although in the F.I.R. Miskin and Anwar both have been equally charged for firing, as a result the deceased was reported hit. In the site plan it is also mentioned that witnesses had stated that the assailant had opened fire at the deceased party by first lighting torch at them suggesting that it was a darkness. In that situation the P.Ws. might not have possibly identified the assailant. The P.Ws. are the sons of the deceased and also inimically disposed towards the accused. Their uncorroborated evidence cannot be safely made a basis for conviction.

5. In the circumstances the judgment and order of acquittal cannot be interfered with in the exercise of revisional jurisdiction as told order unnecessary retrial of the accused respondent. The Criminal Revision fails and is dismissed accordingly. M.Y.H./634/P Petition dismissed.