2003 PLP 350 (SCMR)

5. The essential facts of the prosecution case as contained in the F.I.R are that three brothers namely, Muhammad Rashid first informant 1uhammad Rafiq and Muhammad Amin deceased, while proceeding towards Heir village on a bull cart loaded with Toori when reached at Narang Mor?‑11 Narowal Road, the petitioner armed with .32 bore mauser and Muhammad Younis, empty‑handed, appeared at the scene. Muhammac. Younis raised Lalkara not to spare the complainant party on that day and Naseer Ahmed petitioner fired two successive shots at Muhammad Amir hitting on his right side of chest and abdomen. The petitioner then fired as Muhammad Rafiq who sustained injuries on his legs and thigh. The occurrence was also witnessed by a number of neighbours apart from Muhammad Sharif and Muhammad Latif. The motive for the occurrence, as disclosed in the F.I.R. was that parties being closely related due to the family dispute .had strained relations and that prior to the present occurrence, quarrel had taken place between them in which Muhammad Rafiq was caused fracture on the hand by the accused. Muhammad Amin deceased and Muhammad Rafiq, in injured condition, were taken to hospital at Narang Mandi and later were shifted to Mayo Hospital, Lahore. Initially a case under section 324, P.P.C. was registered and on death of Muhammad Amin in hospital on 20‑5‑1994, section 302, P.P.C. was added. Muhammad Nawaz. S.‑I. having prepared injury statement (Exh.P) and inquest report, ;Exh.PL), of the deceased in the hospital despatched the dead body for post‑modem examination. Liaqat Inspector arrested the petitioner on 1‑6‑1994 and got recovered from him .32 bore pistol with 5 live cartridges on 6‑6‑1994. On completion of investigation, the final report was prepared and submitted by the abovenamed Inspector but he being not available was lot produced in the witness‑box and Muhammad Nawaz, S.‑I. proved his handwriting and signatures on the documents attached with the final report.

6. The medical examination of Muhammad Amin (deceased) and Muhammad Rafiq, was conducted by Dr. Tahir Islam (P.W.8). The detail of he injuries on their persons is given as under: ‑‑ "(1) A fire‑arm entry wound‑measuring about 1/2 x 1/2 c.m. on front upper part of right chest about 2 c.m. below the inner end of right clavicle going deep inside the thorax cavity making exit hole on back of right chest on scapular region measuring 2 c.m. x 1‑1/4 c.m. about 5 c.m. right from the midline. (2) A fire‑arm entry wound . measuring about 1 /2 x 1 /2 c. m. on front lower part of the right chest just above the coastal margin about 10 c.m. below the right nipple and 9 c.m. right from the midline making an exit hole measuring 2‑1/2 x 2 c.m. on right lumber region (in renal area) everted margins with profused bleeding. Corresponding holes were present in the clothes of the patient and he was serious, and nature of injury was declared as Jaifa (dangerous to life) sustained by a fire‑arm weapon. Duration of the injury was about one hour." "(1) Two fire‑arm entry wounds each measuring 1 /2 x 1 /2 c. m. inverted margins about 3‑1/2 c.m. apart on front upper part of left thigh about 16 c.m. below the left, anterior, superior iliac spine. (2)??????? A lacerated wound 2 c.m. x 1 1/2 c.m. on entromedial aspect of middle of left thigh'(exit wound). (3)??????? Fire‑arm entry wound inverted margins 1/2 x 1/2 c.m. on front upper part of left knee. (4)??????? Fire‑arm entry wound about 1/2 x 1/2 c.m. inverted margins on outer part of left knee joint. (5)??????? Fire‑arm entry wound 1/2 x 1/2 c.m. on middle of right leg making exit hole measuring 2 c.m. x 1‑3/4 c.m. on back middle of right leg. (6)??????? Fire‑arm entry wound measuring about 1/2 x 1/2 c.m. inverted margins on outer upper part of right thigh making exit hole measuring about 2 x 2 c.m. on medial upper part of right thigh and there was clinical fracture of left femur bone."

7. Dr. Abdul Hamid conducted post‑modem examination of the dead body of Muhammad Amin on 21‑5‑1994 and declared that the injuries were fatal to life. The prosecution in addition to the Investigating Officer, the abovenamed two doctors and the eye‑witnesses also produced formal witnesses Who remained associated with the investigation.

8. The petitioner in his statement under section 342, Cr.P.C. denies, his participation in the occurrence and pleaded that he was falsely involved it the case due to strained relations between the two families.

9. Learned counsel without challenging the conviction on merits has contended that it was not a case of extreme penalty as initially case under section 324, P.P.C. was registered and subsequently on death of Muhammad Amin in hospital after about 8 days of the occurrence, section 302, P.P.C, was added and while taking us to the statement of Dr. Abdul Hameed, P. W.12 submitted that although the doctor has opined that cause of death was the injury to right lung and lever with chest complications (septicaemia) but at the same time, he stated that one litre of blood mixed fluid in the right plural cavity was measured, by the. measuring metallic cup used in the autopsy room and 20 cc of puss in the left plural cavity was measured by disposable syringe which would show that the proper treatment was not given to the deceased at the initial stage as a result of which septiceamia was developed and thus due to the negligence of medical and para medical staff, the deceased lost the chance of survival. The learned counsel urged that the circumstances under which deceased died in the hospital, would show that due to the lack of proper care and treatment, the condition of the deceased was aggravated which contributed in his death and that the injury as such was not an exclusive factor of his death in the hospital, therefore, it was not a case of extreme penalty of death and the sentence of imprisonment for life would sufficiently meet. the ends of justice.

10. We with a view to consider the contentions raised by the learned counsel in the light of evidence, have thoroughly scanned the record. The report‑was lodged with a delay of 24 hours with the explanation that both the complainant and deceased in injured condition were admitted in the hospital and the condition of deceased was serious. Moreover, the respectables kept the complainant busy in negotiations for compromise. This is understandable that in view of the precarious condition of deceased, the complainant would be more concerned with life of deceased and with his own life, therefore, the delay in lodging the F.I.R. by him in the given circumstances would not be fatal to the prosecution case. The occurrence took place in the broad day?light on the metalled road when the deceased and the witnesses were taking bull cart lodged with Toori to their village. Muhammad Rashid also sustained injuries at the hand of petitioner in the occurrence, therefore, the presence of the witnesses in the occurrence was not questionable and the defence has also not seriously challenged their presence at the spot. The petitioner in his statement under section 342, Cr.P.C, has admitted that the relations between the two families were strained and except the family, dispute, there was no enmity between the parties. The aiming of successive fire shots at sensitive part of the body would be the direct proof of the intention of petitioner to kill and further an attempt on the life of Muhammad Rafiq would strongly suggest that not only the deceased but the complainant was also target, therefore, the motive given by the prosecution would be proved by the act of firing by the petitioner both at. Muhammad Rafiq and deceased at the scene of occurrence. The perusal of prosecution evidence would show that the petitioner having prepared himself for attack, on arrival of complainant party at the scene of occurrence opened firing at the deceased and Muhammad Rafiq, therefore, neither it was a chance encounter nor a sudden occurrence as contended by the learned counsel and further no such plea was raised by the petitioner at any stage at the trial on in the appeal before the High Court.

11. We have seriously considered the question relating to the quantum of sentence but have not been able to find out any mitigating circumstance in favour of petitioner for lesser penalty. The mere .fact that the deceased after sustaining injuries survived for 8 days in the hospital and during this period some complication was developed and puss was found in the injury, would not be sufficient to suggest that either the injury sustained by the deceased was not the cause of death or death was result of infection caused by septiceamia. The initial registration of case under section 324, P.P.C. and the survival of deceased for eight days in hospital also would not be a reason to hold that it was not an intentional murder or that it was a mitigating circumstance for lesser penalty.

12. For the foregoing reasons, we while maintaining the conviction and sentence awarded to the petitioner by the trial Court and confirmed by the High Court, dismiss this petition. Leave is refused. N.H.Q./N‑109/S????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.