1985 P Cr (PLP)

(2) Wound of exit c.m. x 1 c.m. on the left lumber region on the back, 2 c.m. above the hip bone. (3) Two wounds of inlet (pellets) c.m. x c.m. on the glands and lower part of the penis. (4) One wound of pellet c.m. x c.m. on the right side of testicles. (5) Two wounds of inlet 1 c.m. x 1 c.m, on the lower part of the perineum below the testicles. (6) Wound of inlet c.m. x c.m. on the inner side of left thigh right to the testicles. (7) Wound of outlet 1 c.m. x c.m. on the lower side of the left thigh below wound No. 6, 6 c.m. The doctor opined that these injuries were caused with fire‑arm.

6. On the same day at 4‑10 p.m., he examined Said P.W.6 and noticed the following injuries on his person:‑ (1) One pellet wound c.m. x c.m. on the right parietal region, 9 c.m. above the right ear. (2) A contusion mark 10 c.m. x 4 c.m. on the back of the left forearm, 4 c.m. below the left elbow joint. (3) An abrasion. c.m. x c.m. on the back of left scapula at the spine. The doctor opined drat injury No. 1 was with fire‑arm while injuries 2 and 3 were with blunt weapon.

7. Dr. Muhammad Rafiq (P.W.10), Medical Officer, D.H.Q. Hospital, Sheikhupura, performed the autopsy on the dead body of Raja on 16‑8‑1979 at 9‑30.a.m. and noticed the following injuries thereon:‑ (1) A wound of entry c.m. x c.m., on the left and anterior side of the abdomen, 12 c.m. on the left side from the umbilicus. (2) A wound of exit, c.m. x c.m., on the back of the left abdomen, 4 c.m. above the left illiac crest. (3) A wound of entry c.m. x c.m. on the anterior side of penis, 3 c.m. below the glans penis. (4) A wound of exit 1 c.m. x c.m. on the anterior side of the penis near the glans penis extending to the glans itself. (5) A wound of entry c.m. x c.m. on the left side of perineum near the left testicle. (6) A wound of exit c.m. x c.m. below and inner side of injury No. 5. (7) A wound of entry c.m. x c.m. on the inner side of left and anteriorly, 2 c.m. from the left testicle. (8) A wound of exit c.m. x c.m. on the medial and posterior side of the left thigh, 5 c.m. from injury No.7. The doctor opined that all the injuries were ante‑mortem and were caused by fire‑arm and that the death occurred due to severe shock and haemorrhage caused by injury No.1, which was sufficient to cause death in the ordinary course of nature.

8. Said P.W.6, Mat. Rajan P.W.7 and Mir P.W.8, testified at the trial as eye‑witnesses to furnish the ocular account of the prosecution version. Khan Muhammad P.W.9 deposed about the recovery of gun at the instance of Jehana. Muhammad Khan P.W.11 Ghazanfar Ali P.W.12 and Ghulam Hussain P.W.13 have testified as Investigating Officers. The rest are the formal witnesses besides Dr. Muhammad Nazeer Chaudhry P.W.5 and Dr. Muhammad Rafiq P.W.10, who, respectively, performed the medico‑legal examination and post‑mortem examination of the deceased as indicated above.

9. The plea of both the appellants is that of denial simplicitor. They claimed to be innocent and alleged that they have been falsely involved due to enmity with Ghulam Ali Wahga, a partyman of the complainant. No evidence in defence has, however, been led by the appellants.

10. It has been submitted on behalf of the appellants that Said P.W.6 is the real brother of Raja deceased. He has falsely deposed against the appellants. He has made unwarranted improvements at the trial which renders his testimony highly doubtful. We have noticed that this witness has not been confronted with his statement Exh.P.E. Therefore, the appellants cannot avail of the contradictions, if any, between the statement of Said P.W.6 made at the trial and his statement Exh . P. E., through which he reported the matter to the police. Said P.W. has suffered a gunshot injury on the right parietal region, 9 c.m. above the right ear. This injury cannot be self‑inflicted or self suffered. The presence of this injury on his person, according to judicial scrutiny, is the positive proof of his presence at the time of occurrence. He also received two blunt weapon injuries. These injuries are indicative of the fact that he was in a position to closely witness the occurrence. His presence and his having seen the occurrence cannot, therefore, be suspected. His statement has been corroborated by the testimonies of his sister Mst. Rajan P.W.7 and Mir P.W.8, although both Mst. Rajan and Mir are close relations of the deceased. The alleged recovery of gun from Jehana appellant and two empties from the spot regarding which Forensic Science Laboratory report is in the positive, cannot be utilized for corroboration of the prosecution version f because no evidence has been led at the trial that these empties and gun were kept in tact at the police station and were sent intact to the Forensic Science Laboratory. The ocular evidence, as detailed above, however, sufficiently establishes that Raja deceased died at the hand of Jehana and that Zaman appellant had also participated in the occurrence armed with gun. The shot fired by him hit Said P.W instead D of the deceased. He, therefore, also cannot escape the vicarious liability due to his common intention with Jehana appellant.

11. We have, however, noticed that the prosecution has suppressed the origin of fight and the motive as alleged by Said P.W. about the abduction of his wife by Jehana appellant also appears to be false. Admittedly, Said P.W. is the real maternal‑uncle of Jehana appellant. Mother of Jehana is the real sister of Said P.W. He had admitted that even after his wife started living in the house of Jehana appellant, he (Said) had been visiting the house of his sister and her in‑laws when his wife was residing there. He said that he has been requesting his wife to come to him when she was staying in the house of his sister, but she declined to accompany him, although his sister has been asking his wife to accompany him. Mst. Rajan, sister of Said P.W., while appearing as P.W.7, disclosed that Lal, the husband of Mst. Hayat Bibi, her sister, had told her that they could take away Mst. Bibi with them. The possibility in the circumstances cannot be excluded that the story of illicit relations between Mst. Bibi and Jehana is incorrect, she was not abducted by Jehana but 'she might have come to the house of Lal and Hayatan on account of her differences with Said and as she was being taken back by Said in the absence and without the consent of Lal and his sons, they might have taken exception resulting into a fight in which Raja received the fatal injury. In this view of the matter, we find that the cause of immediate attack by the appellants on the deceased is not certain. In such circumstances when the origin of fight is shrouded in mystery or is concealed, the Courts have normally refrained from exacting the normal penalty of death under section 302, P.P.C. In Rustam v. The State P L D 1971 Lah. 410 it was observed that where an offender was not found to be entitled to the exercise of right of private‑defence and the origin of the fight or the attack was shrouded in mystery, the Courts, have normally awarded the lesser punishment under section 302, P.P.C. Similarly in Baggar Khan v. The State P L D 1971 Lah. 189 it was not known as to what transpired between the appellant and his sister, whom he shot dead, therefore, the conviction under section 302, P.P.C. was maintained but death sentence awarded to him was substituted with transportation for life.

12. In the light of the above conclusions while we maintain the conviction of the appellants under section 302/34, P.P.C. the sentence of death awarded to Jehana appellant is altered to imprisonment for life. There shall be no change in regard to the sentence of fine imposed on them under section 302/34, P.P.C. and also in regard to their conviction and sentence under section 307/34, P.P.C. But for the above modification in the sentence of Jehana appellant from death to imprisonment for life, the appeal is dismissed. The death sentence of Jehana is thus not confirmed. M.A.K. Order accordingly.