1982 PLP 719 (SCMR)

2. The occurrence in question took place at about 5 p. m. on 5‑10‑1974 in the area of Chak No. 433/EB, Tehsil Pakpattan, District Sahiwal, in which Sher Muhammad was killed. The F. I. R. is based on the statement of Sher Muhammad deceased (Exh. PL/1) himself. It was made on the next day i.e. 6‑10‑1974. In the F. I. R. a detailed version of the incident has been given, wherein he named Ghulam Nabi (petitioner), Muhammad Sadiq, Madad Ali, Noor Hussain and Khurshid, as assailants. Mr. Khalid Mahmood, Magistrate Second Class had recorded the dying declaration of Sher Muhammad (deceased) in the hospital on the day of occurrence after obtaining a certificate from the doctor that he (i.e. the deceased) who had been removed in an injured condition, was in a fit condition to make a statement. A briefer account of the versions has been given in the said dying declaration. According to this version Sher Muhammad reached Burewala at about 4.45 p. m. along with one Muhammad and came to know that Ghulam Nabi, etc. accused had beaten up his brother Siddiq (P. W. 7), with hatchets and lathis. When he was coming out of the mosque, on hearing this he (Sher Muhammad) also went to the place of occurrence where the aforementioned accused also abused him, and Ghulam Nabi (petitioner) who was armed with a gun, fired two shots at him, out of which the second one hit him on the chest. Sher Muhammad had stated that he did not know the reason as to why the accused had beaten his brother Siddiq. He mentioned Ghulam Muhammad, and one Tufail Muhammad son of Hussaina as also being present at the spot and having witnessed the incident. The investigation of the case was conducted by Fazal Elahi, S. I. (P. W. 14). He also recorded the statement (Exh. P. L.) of Sher Muhammad (who was still alive) at the Civil Hospital. The formal F. I. R. was based on this abatement. He then visited the spot, got a rough site plan prepared and also recovery of 3 pellets embedded in the southern wall of the house of Noor Hussain accused. He also. sent Muhammad Siddiq (P. W. 7) and Muhammad Hussain (P. W. 9) who were injured during the incident, for medical examination and treatment. After Sher Muhammad succumbed to his injuries he sent his dead body for post mortem examination which was conducted by Dr. M. A. Rauf Bhatti (P. W. 11) on 13‑4‑1974. A licensed .12 bore gun (P. 4) was recovered from Ghulam Nabi petitioner but the empties recovered from the spot did not match with it, the gun could not, therefore, be used to connect the petitioner with the offence in question.

3. The five persons mentioned as accused in the F. I. R. including Ghulam Nabi petitioner were put up for trial. At the trial the prosecution relied on the testimony of 3 eye‑witnesses, namely Muhammad Siddiq (P W 7), Muhammad Tufail (P. W. 8) and Muhammad Hussain P. W. 9, (all of whom. are brothers of the deceased); the medical evidence and the evidence of motive. The accused denied their guilt and Ghulam Nabi petitioner gave the following version:‑‑ "I am innocent. The complainant‑party attacked Hassan Bhatti when he was returning from the fields. Khurshid accused who is real brother of Hassan Bhatti reached there on his alarm and received an injury. Respectable persons of the village, however, intervened and the situation was saved. Shortly thereafter the complainant party attacked us when we were sitting at the platform of the baithak of Sadiq accused. However, as we were sitting at a higher level the complainant party did not succeed in causing us injuries except to Khurshid accused who received an injury at the hands of Sher Muhammad deceased who had followed his other brothers and was armed with a spear. Hakim Ali son of Noor Hassan accused reached there on alarm and was pursued by Sher Muhammad deceased. Hakim Ali ran into his house and Sher Muhammad deceased was injured as he was entering that house. The injured Sher Muhammad was removed by Hakim Ali etc., to his house and placed there on a cot. Subsequently the complainant party tried to get back Sher Muhammad deceased but Hakim Ali etc., refused to surrender him on the plea that they would report the matter to the police. Eventually the father of the deceased Karam Din and others brought Abdul Hamid Ghuman from his chak and he pursuaded Hakim Ali etc., to return Sher Muhammad. During investigation the outer wall of the house of Noor Hassan accused was found to have pellet marks on it and the investigating Officer actually dug out the pellets embeded in the wall." The learned trial Court relied upon the prosecution evidence and rejected the defence version. But convicted only Ghulam Nabi (petitioner) under section 302, P. P. C. but acquitted the co‑accused of the said charge and sentenced Ghulam Nabi to death and a fine of Rs. 2,0(10 or 2 years' further R. I. in default thereof, the trial Court however convicted each of co -accused under section 323, P. P. C. and sentenced them to one year R.I. each. On appeal the High Court acquitted Muhammad Sadiq and Madad Ali, co‑accused; maintained the conviction of Khurshid and Noor Hussain co accused under section 232/34, P. P. C. but reduced their sentence to a fine of Rs. 250 each of the two counts, or 3 months' R. I. in default of payment thereof. As for Ghulam Nabi petitioner his appeal was dismissed and death sentence confirmed. The petitioner has now challenged his conviction and sentence before this Court.

4. The learned counsel has submitted before us that the two Courts below have not correctly appreciated the evidence and have not arrived at the correct conclusion thereon. He submitted further that the prosecution has given three different versions of the same incident i. e. one in the F. I. R., the other in the dying declaration and yet another by Muhammad Siddiq (P. W. 7) at the trial. No doubt the version given in the F. I. R. is in greater detail but the mere fact that the dying declaration, which was recorded by a Magistrate soon after the incident when Sher Muhammad (deceased) was brought to the hospital, is brief, does not by itself cast any reflection on it. On the other hand it lends authenticity and in any case there is no serious difference between the two versions except that the dying declaration is briefer. As to the so‑called third version given by Muhammad Siddiq (P. W. 7), at the trial the only difference is that he (Muhammad Siddiq) stated that he saw Madad Ali, Sadiq and Noor Hussain, accused chasing his brother Ghulam Muhammad and causing him injuries with hatchets and sofas. He raised an alarm and shouted to the accused that why they were beating his brother, whereupon they pounced upon him and belaboured him as well. But Sher Muhammad (deceased) does not claim to have seen that part of the occurrence. As such he was not wrong in stating in the dying declaration that on reaching Burewala he learnt that the accused had beaten his brother Muhammad Siddiq. It is admitted that there was no previous enmity between the complainant party and the accused and as such there was no reason for the deceased and the P. Ws. to involve them falsely. Muhammad Siddiq and Muhammad Hussain, P. Ws. were found to have sustained numerous injuries during the incident, therefore their presence at the spot cannot be denied. The deceased as well as the P. Ws. had attributed the fire‑arm injuries to Ghulam Nabi petitioner, which is borne out by the medical evidence,

5. The learned counsel also submitted that the fact that 3 pellets were recovered from the wall of the house of Noor Hussain accused supports the defence version and goes to show that the occurrence had not taken place at the spot. He pointed out that the statement of the Investigating officer made during the cross‑examination, that the wall from where the pellets were recovered is 76 Karams away from the place of occurrence also supports this contention. We, however, find no force in it because as explained by the Investigating Officer himself, there was no obstruction between the place alleged by the P. Ws. and the wall of the house of Noor Hussain. As such the pellets which missed the deceased would naturally have travelled further and hit the wall which happened to be in the direction in which the shot was fired. After going through the evidence on the record we do not agree with the learned counsel that the conclusions arrived at by the learned Courts below are in no way incorrect.

6. The learned counsel contended lastly that in view of the fact that only one shot had been fired, the sentence of death of the petitioner may be reduced to imprisonment for life. This contention overlooks the fact that the accused‑petitioner fired two shots at the deceased one of which missed him, and, in any case, if a person fires at another with a lethal weapon like a gun and kills him, we do not agree that the mere fact that the accused had finished his victim only with one shot, should be taken to be a mitigating circumstance for the purpose of reduction of sentence. As a result of the above discussion the petition is dismissed as being without any merit. Petition dismissed.