1993 P Cr (PLP)

6. The prosecution examined 18 witnesses to substantiate its case. The statement of D.W.1 was also recorded.

7. The motive behind the occurrence was stated by P.W.6, Bashir Ahmad complainant as stated supra. This witness had only stated about the motive and no other P.W. has been produced to state about the motive. P.W.6 the complainant had stated before trial Court that Muhammad Ali, deceased was not living with him but he was living with one Karim Bakhsh and had not stated in Exh.P.C. that Muhammad Ali (deceased) was living with him. The motive is a double-edged weapon. No doubt, there was a previous enmity between the parties, the motive being so can be stretched in favour of either party.

8. Bashir Ahmad P.W.6, complainant, Ghulam Haider P.W.7 and Elahi Bakhsh P.W.10 have furnished ocular testimony on record. P.W.6 narrated the facts mentioned by him in his statement Exh.P.C. on the basis of which formal F.I.R. Exh.P.C./1 was recorded. P.W.7, Ghulam Haider had stated that in his presence, the appellants alongwith his co-accused had raised Lalkara at Muhammad Ali, deceased and Bashir Ahmad P.W.6 that they would not be spared. On this, Gullan accused opened the fire which hit P.W.6 and he fell on the ground. Din Muhammad appellant then fired which hit on the back of Muhammad Ali, deceased who fell on the ground 6 or 7 Karams ahead. On the arrival of P.Ws.7 and 8, the accused escaped. P.W.10 Elahi Bakhsh had stated that at the relevant time, he alongwith P.W.7 was going to the shrine of Garah Pir and when they reached near the shrine, they witnessed that P.W.6 and Muhammad Ali, deceased were coming back from the shrine. Din Muhammad, appellant was armed with .12 bore gun and Gullan was armed with .12 bore gun and Kaura with hatchet raised Lalkara at Bashir Ahmad and Muhammad Ali, deceased. Gullan appellant fired which hit him who fell on the ground. Din Muhammad appellant fired at Muhammad Ali deceased who fell on the ground about 6 or 7 Karams from Bashir P.W.6. The occurrence was also witnessed by Ghulam Haider P.W.7.

9. Dr. Abdul Wahab, P.W.14, medically examined P.W.6, Bashir and had found three injuries:- (1) Lacerated wound of entry 1/2" in diameter on the left angle of the chest lower part 6 inches below and outer to the left nipple, posterior auxillary fold line. (2) Lacerated wound of entry 1/2" in diameter on the left side of abdomen at the level of umbilicus posterior to auxillary line. (3) Two lacerated wounds of entry 2 inches apart on the outer side of left hip 1/2" in diameter. Injuries Nos.l to 3 were grievous and dangerous to life and caused by fire-arms. On the same day i.e. 30-4-1984 at 3-30 p.m. P.W.14, also medically examined Muhammad Ali, deceased in injured condition and had found the following three injuries:- (1) Lacerated wound of entry 1/2" in diameter on the outer side and posterior part of right arm having a wound of exit 3" apart on the front, of right arm. (2) Lacerated wound of entry 1" x 1/2" on the back and left side of chest near inner border and inferior angle of left scapula A.F.B. pellet felt on the outer side of left shoulder. (3) Lacerated wound of entry 1" in diameter on the back and left side of chest lower part A.F.B. pellet felt on the front and lower side of upper abdomen below the left castle margin. The doctor opined that injuries 2 and 3 were grievous and dangerous to life. Injury No.l was simple and caused by fire-arm. P.W.16 Dr. Iftikhar Hussain Qureshi on 15-6-1984 at about 4-30 p.m. conducted autopsy on the dead body of Muhammad Ali deceased and had found one open operation wound (burst abdomen) 20 c.m. x 6 c.m. abdominal cavity deep over the front and left side of abdomen. A chestintubation hole 3 c.m. x 2 c.m. on the left side of chest. The doctor had opined that death occurred due to septicemic shock due to the damage to the viscera mentioned under dissection, resulting from injury No.3 of M.L.R. Exh.P.K. and that injury was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was about 47 days while the time between death and post-mortem was 12 to 18 hours. Muhammad Ali deceased received injuries on 30-4-1984 and succumbed to his injuries on 15-6-1984 in the Nishtar Hospital, Multan. P.W.16 had opined that the death occurred due to septicemic shock due to the damage to the viscera mentioned under dissection resulting from injury No.3 which was sufficient to cause death in the ordinary course of nature. During cross-examination P.W.16 had stated that it was correct when the operation is conducted with sterilyzed instrument an antibiotic is given. The infection can be prevented and he could not state that the pus started in the peritoneal cavity because he only conducted post-mortem examination

10. No empty was secured from the spot by the police and recovery of gun P.5 and P.1 at the instance of Din Muhammad and Gullan, appellants has no corroborative value in the eye of law.

11. The appellants when examined under section 342, Cr.P.C. had denied the prosecution case and had stated that they had been falsely involved due to enmity and party faction. The appellants had not made statement on oath as envisaged under section 340(2), Cr.P.C. and produced D.W.1, Rahim Bakhsh in defence, a Mutwalli of Garah Peer shrine, who had stated that he was Mutwalli of Garah Peer shrine and on the fateful day on the report of gun fire, he rushed to the spot and found P.W.6 and Muhammad Ali deceased in an injured condition and unconscious where certain persons reached excluding Elahi Bakhsh and Ghulam Haider P.Ws. D.W.1 put water in the mouth of the deceased and P.W.6. P.W.6 regained his senses and told that some person fired from behind which resulted injuries to them. The place of occurrence was surrounded by sand dunes and bushes. Karim Bakhsh etc. took the injured on the cot from the spot. He also went to make a statement before P.W.18.

11. I have heard learned counsel for the appellants and learned State counsel and perused the record.

12. There is no doubt that there was previous enmity between the parties and the deceased was involved in the murder case of the brother of Kaura, acquitted co-accused and had been enlarged on bail by the Sessions Court. No other P.W. has corroborated the statement of P.W.6 but due to the presence of enmity and criminal cases between the parties, the motive stands proved even from the statement of P.W.6. The ocular testimony has been furnished on record by the statements of P.Ws.6, 7 and

10. P.W.7 is maternal-cousin of P.W.6. They had no relationship with the deceased. Din Muhammad appellant and Kaura acquitted accused had enmity with the P.Ws. and two criminal cases have been registered inter se i.e. a case was registered against Shabbir and Ghulam Haider P.Ws. on the complaint of Kaura, acquitted co-accused for firing at him whereas a case was registered against the appellants on the complaint of Karim Bakhsh in which Ghulam Haider was also a P.W.

13. The deceased died after 47 days of the receipt of the injuries in the hospital and P.W.16, Dr. Iftikhar Hussain Qureshi, who conducted the autopsy on the dead body of the deceased had opined that the death occurred due to septicemic shock due to the damage to the viscera. The deceased and P.W.6 was at the mercy of the appellants but they had fired one shot each from a long distance and from there the appellants had not repeated the shots. The injuries on the person of the deceased were declared grievous and dangerous to life but the death was due to septicemic shock as stated by P.W.16. P.W.18 had stated during cross-examination that Mehboob-ul-Hassan, D.S.P. had mentioned in i case diary dated 20-8-1984 that he and Younis S.I. P.W. (since dead) had, declared Gullan and Kaura, accused as innocent in this case but the Inspector; C.IA. Staff had found them guilty. The opinion of the Investigating Officer is not binding on the Court. P.Ws.6, 7 and 10 have specifically named Ghulan alias Gullan accused/appellant as one of the assailants. The deceased had died due to septicemic shock due to damage to the viscera.

14. Pursuant to the above discussion, I am of the considered view that Din Muhammad, appellant was liable for an offence under section 326, P.P.C. and accordingly, I alter his sentence from section 302, P.P.C. to 32611 P.P.C. The case of Gullan appellant falls under section 308, P.P.C. ands as he had no enmity with the complainant party which has been stated by P.W.6, complainant, Bashir Ahmad that he had no enmity with Ghullan I appellant, his sentence also is altered from section 307, P.P.C. to section 308, P.P.C:

15. Learned counsel for the appellants has prayed for leniency in the sentences. The appellants were arrested on 18-6-1984 and Din Muhammad, appellant is m jail since then. Appellant, Ghullan was released on bail alter nine months of his arrest and since his conviction on 8-4-1990, he is in jail i.e. for about three years and in aggregate he has undergone as an un trial convict a period of three years and eight months. Din Muhammad, appellant has undergone as an under trial and as' convict nine years in jail and I am of the considered view that the period already undergone by the appellants shall meet the ends of justice.

16. The fine of Rs.15,000 and Rs.10,000 imposed on appellants Din Muhammad and Ghullan, respectively is reduced to Rs.10,000 and Rs.5,000 each and in default thereof, they shall undergo one year's R.I. each. The fine if realized from Din Muhammad appellant shall be paid as compensation to the legal heirs of the deceased and fine if realized from Ghullan shall be paid as compensation to Bashir Ahmad injured P.W.6. The appellants are in jail. They shall be released forthwith, if not required in any other case. N.H.Q./D-23/L Order accordingly.