1996 P Cr (PLP)

(5) Pellet wound:-- It is 9 c.m. on left side and below umbilicus. (7 and 8) Pellet wounds were 17 c.m. left to umbilicus on its lateral side. (9) Pellet wound:-- It was 4 c.m. above from injury No.8. He appended a note at the end which reads as under: -- "Note:-- These all were wounds of entry with blackening about 1 c.m. around each and have inverted margins. Corresponding holes in shirt were present. The shirt was signed by me and was handed over to the police. There was no wound of exit." When examined under section 342 of the Cr.P.C. the appellant denied the charge against him and stated that he was innocent and falsely implicated in the case due to enmity. He neither produced any evidence in defence nor made a statement under section 340 of the Cr.P.C. in disproof of the charge against him.

5. The appellant's learned counsel submits as under:-- (i) The F.I.R. was recorded after some preliminary investigations and deliberations as conceded by Muhammad Yaqoob P.W.8 (complainant) and it was so found even by the trial Court in Para. 16 of the impugned judgment. (ii) The occurrence was unwitnessed one and the eye-witnesses were set up falsely. (iii) The medical evidence contradicts the ocular testimony. The injury had blackening around it as per post-mortem report but the witnesses had deposed that the shot was fired from a distance of 20 ft. (iv) The recovery even if believed, is of no consequence because it is nor connected with the commission of offence. (v) The occurrence presumably took place in the darkness of night and was deliberately and wrongly shown to have taken place at Maghrib time in order to make the identification of the culprits possible.

6. On the other Land the learned State counsel contends as under:-- (i) There was no delay in lodging the F.I.R. The occurrence had taken place at about Maghrib prayer time and the F.I.R. was recorded at 10-20 p.m. The maker of the F.I.R. had gone on foot to lodge the F.I.R. to police station which was at a distance of 8 miles from the place of occurrence. After recording the F.I.R. the Investigating Officer was competent to proceed to the spot and make investigation. (ii) As regards the delayed recovery of blood-stained earth, the learned counsel submits that the Investigating Officer had explained the reasons that he could not effect the recovery during the night time as per rules. Therefore, he made the recovery at 6-00 a.m. on the next day. (iii) P.W.10 the Investigating Officer had acted in an impartial manner inasmuch as he found Akhtar co-accused to be innocent and did not even challan him.- The accused persons never made any move to have the investigation transferred.

7. The report in this case was lodged by the complainant without unnecessary delay. The occurrence had taken place at about Maghrib prayer time and the complainant proceeded to the police station on foot to lodge the report. The police station was situated at a distance of 8 miles from the place of the occurrence. Saad Ullah Khan Investigating Officer P.W.10 recorded the F.I.R. Exh.P.D. and then proceeded to the place of. occurrence. He denied the suggestion that he first visited the spot with the complainant and thereafter recorded the F.I.R. Exh.P.D. The admission of the complainant that the police A accompanied him to the spot and after visiting it came back to the police station and recorded the F.I.R. appears to be the result of the confusion. At any rate, the fault, if any, committed by the Investigating Officer, per se, is not sufficient to throw out the prosecution case At the most, the Court has to scrutinise the prosecution evidence with greater case. There is no background of enmity between the parties. The occurrence was an outcome of a small incident which took place on the same day. The appellant had stayed away his cattle to the crops of the complainant patty whereupon the deceased abused and slapped the appellant. The defence failed to bring out any enmity of the complainant with the appellant. The complainant appeared as P.W.8 and firndy asserted that he had no enmity with the appellant. The version of the occurrence given by the complainant was fully supported by Muhammad Yaqoob P.W.7. He is also an independent witness and had no motive to falsely depose against the appellant. He denied the suggestion that in the murder case of Sharif Lambardar, he prevailed upon brother of the deceased and falsely got Naseer brother of the appellant involved in the case. He also stated, "we have no enmity whatsoever with the family of the accused". Therefore, the complainant and Muhammad Yaqoob P.W.7 are independent witnesses and can be safely relied upon. The ocular testimony is supported by the recovery of blood-stained earth to establish the place of occurrence. The argument of the appellant's learned counsel that the doctor had mentioned blackening wound the injuries which showed that the shot was fired from a close range 'is not acceptable. The doctor had shown as many as nine fire-arm injuries in an area of 15-20 c.m. on left side of chest and abdomen of the deceased. He stated in the Court that there was blackening around each injury but in the post-mortem report blackening around each injury was not separately shown. In fact, the doctor had given a note at the end that the above wounds were ante-mortem with blackening around each injury and had inverted margins. It appears that the doctor was a novice and did not correctly know as to what was meant by blackening. He stated in the Court that by blackening he meant tattooing. I am not inclined to doubt the ocular evidence merely because the doctor either due to inexperience, or, may be, with a motive had indicated blackening around each injury in his note. The seats of injuries shown in the post-mortem report are in line with the ocular evidence. The Investigating Officer appears to have conducted the investigation in a fair manner. He honestly admitted that he was nominated as an accused person in F. I. R. No. 185, dated 9-6-1991 registered at Police Station Gojra for the murder of Muhammad Idrees, real brother of the appellant. He explained that Muhammad Idrees was a desperate and notorious person of the Ilaqa, was involved in about 18 criminal cases and was killed in a police encounter. In the present case, he found Muhammad Akhtar co-accused (brother-in-law of the appellant) to be innocent during the investigation and got him discharged. Moreover, he had recovered gun P.1 alongwith, 15 live cartridges from the house of the appellant on 7-5 1990 and could have fabricated an empty to serve as a corroborative piece of evidence but did not do so. He simply effected recovery of the gun alongwith the live cartridges. In the absence of any material to show that the gun was used in the commission of the offence, its recovery is inconsequential.

8. For the foregoing discussion, I find that the prosecution had succeed in proving its case against the appellant beyond any shadow of reasonable doubt. l6 Therefore, the appeal fails and is dismissed. H.B.T./M-1973/L Appeal dismissed.