1995 PLP 1281 (MLD)

5. On 4‑4‑1990, at 10‑00 a.m. Dr. Arshad Mahmood Shariq, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, P.W.10 conducted the post?-mortem examination on the dead body of Ghulam Rasool, who found the following injuries: (1) A fire‑arm wound of entry 1 x 1 c.m. on the left side of chest close and outward of nipple rounded in shape with inverted margins corresponding to Kamiz and Saluka. (2) A fire‑arm wound of entry 1 x 1 c.m. rounded in shape with inverted margins on the dorsum of left hand at the base of index finger. (3) A fire‑arm wound of exit 3 x 1 c.m. irregular in shape with inverted margins on the palmer aspect of left hand over the palm. (4) A fire‑arm wound 1 x 1 c.m. skin deep on the right side of face just over the outer side of right eye‑brow. According to the medical witness all the injuries were contributory in causing the death and that the time which elapsed between the injuries and death was immediate and between death and post‑mortem was 16 to 18 hours. He issued Exh.PN/1, carbon copy of the post‑mortem report and Exh.PN/1, carbon copy of diagram of injuries. Syed Arshad Hussain Shah, S.H.O. P.W.9 recorded the statements of the P.Ws. and after necessary investigation submitted the challan in the Court of the learned Ilaqa Magistrate who sent up the same to the Court of Session. At the trial all the four accused were charged under section 302/34, P.P.C who pleaded not guilty thereto and claimed to be tried. At the trial the aforesaid P.Ws stood in the witness‑box and supported the prosecution case.

5. Dr. Arshad Mahmood Shariq, P.W.10 expressed in his cross?examination that all the injuries received by the deceased may be the result of one fire shot which may have been effected from a distance of more than 6 metres. The eye‑witnesses stated the details of the case. The recovery witnesses also supported the prosecution case. They however, deposed that the room from which Ijaz Ahmad appellant led to the recovery of gun P8 was open and that his parents were present in the house.

6. Learned A.DA. produced in evidence report Exh. PO of the Chemical Examiner, report Exh. PP of the Serologist and report Exh. PQ of the Forensic Science Laboratory, Lahore. The reports Exh. PO and Exh. PP are in the positive while report Exh. PQ is in the negative. In his statement recorded under section 342, Cr.P.C. Ijaz Ahmad accused took up the plea that Aslam, Mehdi and Ghulam Rasool entered his house who started firing when he went to the roof of his house and fired from there to save his life. He did not produce the defence evidence. He produced copy of F.I.R. No. 98 as mark `A' copy of F.I.R. No.91 as mark `B' and punishment slip as mark `C'. He did not choose to appear on oath as D.W. under section 340(2), Cr.P.C.

7. Learned trial Court gave the weight to the ocular evidence coupled with the medical evidence. The evidence of motive and the recovery of .12 bore gun P8 were not given the weight. Holding Ijaz Ahmad accused as the assailant and liable for the intentional murder of Ghulam Rasool learned trial Court convicted him while the aforesaid three co‑accused were acquitted. Hence the appeal and the Murder Reference.

8. Learned counsel for the appellant argued that Ijaz Ahmad appellant was not related to Allah Ditta acquitted accused whose brother Muhammad Sadiq was murdered and Muhammad Ashraf son of Ghulam Rasool (deceased of this case) was tried and acquitted and thus in view of the acquittal of the three co‑accused, Ijaz Ahmed appellant had no direct motive against Ghulam Rasool deceased. He added that the recovery of the gun P8 attributed to Ijaz Ahmad has not been relied upon by the learned trial Court while the report of the Fire Arms Expert Exh. PQ has been received in the negative. According to him Ijaz Ahmad accused is aged 22 years in whose house the occurrence took place and thus he is entitled to be acquitted as the complainant party had attacked his house and he fired for once only in exercise of his right of self?-defence. On the contrary learned counsel for the State laid the emphasis that the eye‑witnesses and the medical witness have established the charge framed against Ijaz Ahmad appellant under section 302, P.P.C. and for that reason he has correctly been held liable. We are of the view that in the absence of the motive with which Ijaz Ahmad appellant is not directly connected the occurrence has taken place suddenly. The motive is shrouded in mystery. The complainant party went towards the house of Ijaz Ahmad appellant where due to some reason, which is not on the file, Ijaz Ahmad appellant fired at Ghulam Rasool at the spur of the moment. There is nothing on the record to make out that the complainant party had gone there to attack Ijaz Ahmad appellant specially when there is difference of age of Ijaz Ahmad appellant (aged 22 years) and Ghulam Rasool deceased who was an old man. According to Dr. Arshad Mahmood Shariq P.W.10 Ijaz Ahmad appellant took the law in his hands due to some reason which the parties have failed to bring to our notice. ' At the fag‑end of the arguments his learned Advocate scrupulously conceded that he is liable for lesser punishment to which learned counsel for the State also agreed. As such we hold that Ijaz Ahmad appellant is liable under section 304, Part I for culpable homicide not amounting to murder and to be convicted thereunder. For what has been said above, we dismiss this appeal. However, Ijaz Ahmad appellant is sentenced to R.I. for a period of 10 years and to fine of Rs.10,000 or in default of its payment to further undergo R. I for a period of one year under section 304, Part I, P.P.C. The amount of fine, if recovered from him shall be paid to the heirs of Ghulam Rasool deceased as compensation under section 544‑A, Cr.P.C. Ijaz Ahmad appellant is granted the legal benefit mentioned under section 382‑B, Cr.P.C. The death sentence is not confirmed. . The Murder Reference is also disposed of accordingly. H.B.T./I‑131/L???????????????????????????????????????????????????????????????????????? Order accordingly.