1993 P Cr (PLP)

(4) A lacerated wound (fire-arm) 2 c.m. x 1 c.m. x muscle deep over the anterior surface of left leg in the lower part. (5) A lacerated wound 2 c.m. x 1 c.m. x muscle deep over the anterior surface of left leg 10 c.m. above injury No.4 (6) A fire-arm lacerated wound 1 c.m. x 1 c.m. x muscle deep over the posterior surface of left forearm. (7) A lacerated wound transversely 3 c.m. x 5 c.m. x scalp deep over the top of head. (8) An abrasion 4 c.m. x 2 c.m. over the anterior surface of left knee-joint. Injuries Nos.l to 6 were caused by fire-arm while the injuries Nos.7 and 8 were caused by blunt weapon. On the expiry of the deceased Farzand Ali, the post-mortem was conducted on his dead body on the same day and in the opinion of the doctor injuries Nos.l, 4, 5 and 6 were grievous and the death was the result of shock and haemorrhage because of extensive damage caused by injury No.1 which was sufficient to cause death in the ordinary course of nature. Post mortem report Exh.P.F. and Diagram Exh.P.F./1 was in the hand of the doctor. The Investigating Officer after placing on record the Chemical Examiner's report Exh.P.L. and that of the Serologist Exh.P.M., challaned the appellants to face the trial.

5. The main reliance of the prosecution to establish the charge against the appellants is on the evidence of motive and the ocular account furnished by Muhammad Latif and Rustam Ali P.Ws. real brothers of the deceased and the medical evidence.

6. The appellants in their statements under section 342, Cr.P.C. denied the allegations against them. They neither appeared themselves in the witness- box nor produced any evidence in their defence.

7. The learned counsel for the appellants raised the following contentions:-- (i) That admittedly earlier the parties were inimical to each other because of causing injuries by deceased and others to Muhammad Arif appellant but subsequently this matter was compromised and as such the appellants had no grievance against the deceased. Therefore, the motive set-up by the prosecution is not proved. However, the motive of enmity is always a double-edged weapon, therefore, the possibility of false implication of the appellants cannot be ruled out. (ii) That Rustam Ali P.W.2 was a boy of tender age at the time of occurrence. The participation of a child in the funeral of Abdul Shakoor with his elders on Eid day seems to be unnatural making his presence at the spot doubtful. There is no evidence except the statements of the P.Ws. to prove the factum of death of Abdul Shakoor on that day and time of his burial, therefore, claim of the P.Ws. of their presence at spot at the time of occurrence is not free from doubt. (iii) That Rustam Ali P.W.2 also faced trial for causing injuries to Arif appellant and was equally an enemy of the appellants but was caused no damage. (iv) Muhammad Latif P.W.1 admitted that the F.I.R. and other documents were not in his handwriting but were prepared under his signatures which fact coupled with the delay of more than three hours in lodging the report is indicative of the fact that after conducting preliminary investigation, the case was registered with deliberation and consultation and the appellants were substituted for unknown assailants. (v) Finally he argued that from the seat and nature of the injuries, it appears that injuries Nos.l and 8 can be the result of fall on the ground as it was no need to cause Sota blow before using fire-arm. A single shot on the lower part of the body was caused therefore, it is not a case of extreme penalty.

8. The learned Assistant Advocate-General in reply to the arguments advanced by the learned counsel for the appellants submitted that all the three brothers were coming to their home after attending the funeral of their relative, Abdul Shakoor, when they met this fateful incident, therefore, their presence at the spot is natural and beyond doubt. Arif appellant was earlier Ali injured by the deceased and Rustam Ali P.W. who were subsequently acquitted, therefore, he had a strong motive against the deceased.

9. We have heard the learned counsel for the parties, considered their arguments and gone through the record with their assistance.

10. The occurrence in the present case took place at Dopehrwela on the day of Eid-ul-Fitter, when the deceased and the P.Ws. were coming back to their home after attending the funeral of their relative Abdul Shakoor, in the adjoining Chak. The deceased was removed to the hospital at Arifwala from the spot at 2-45 p.m. at a distance of about 10 miles from the place of occurrence, where he expired at about 4-15 p.m. The medico-legal report Exh.P.E. disclosed that Muhammad Latif P.W.1 accompanied the deceased to hospital. If Muhammad Latif was not with the deceased at the time of occurrence, it was not possible for him to reach Arifwala Hospital within two hours on receipt of information about the occurrence. The evidence of the P.Ws. regarding the death of Abdul Shakoor in the adjoining village and their attending his burial with the deceased has not been challaneged by the defence by bringing on record any direct or circumstantial evidence to the contrary. It was natural for the deceased and P.Ws. to attend the funeral of their relative in the adjoining Chak. Therefore, presence of the P.Ws. with their brother Farzand Ali deceased at the spot at the relevant time is free from doubt.

10. Admittedly, the parties were inimical to each other. Earlier a case was registered against the deceased and others for causing injuries to the appellant but the deceased and his co-accused were acquitted at the trial. The failure of the revision petition against the acquittal of the deceased and his father alongwith their co-accused made the situation more serious and the appellants were determinative to take the revenge from the deceased. The appellants had a strong motive against the deceased, therefore, the compromise if any between the parties was of no consequence.

11. There are six fire-arm injuries on the person of the deceased. Injury No.l caused extensive damage and was found fatal. Injuries Nos.2 and 6 with no blackening on the right leg and forearm appear to be the result of stray pellets of the shot fired from some distance and possibility of the same as a result of one fire in the circumstances of the case cannot be ruled out, Injuries Nos.7 and 8 caused by blunt weapon were simple in nature and both could be the result of fall on the ground. Hassan appellant was armed both with Sota and revolver, he after causing Sota blows threw it at the spot but the same was not recovered from the place of occurrence. The necessity of causing Sota injuries before using fire-arm is not understandable. The size of injury No.6 attributed to Hassan appellant with fire-arm is 1 c.m. x 1 c.m. whereas the injuries Nos.2 to 5 are of the size of 2 c.m. x 1 c.m. Keeping in view the size of the injuries, it appears that injury No.6 was not the result of an independent shot. The role of causing blunt and fire-arm injuries by Hassan appellant to the deceased is not proved beyond all reasonable doubts. We, therefore, while accepting his appeal, by giving him the benefit of doubt, acquit him of the charge.

12. The case against Arif appellant is proved beyond all reasonable doubt. The eye-witnesses consistently and categorically deposed about the role played by him. The ocular account is corroborated with a strong motive in addition to the medical evidence. The P.Ws. further corroborate each other on all material points. It is correct that the P.Ws. are real brothers of deceased but they are natural witnesses of the occurrence and confidence inspiring. There is nothing on record to suggest the substitution or false implication of the appellants. The quality and standard of the eye-witnesses in the case is of the nature that it can be made basis of conviction without looking for any other corroboratory evidence. However, the motive and medical evidence is available as confirmatory evidence to the ocular account.

13. For the foregoing reasons, the appeal of Muhammad Arif is dismissed. There is no mitigating circumstance available on the record making it a case of lesser penalty, therefore, the conviction and sentence awarded to Muhammad Arif appellant by the trial Court is maintained. The death sentence awarded to him is confirmed. The murder reference is answered accordingly. N.H.Q./A-438/L Order accordingly.