1995 PLP 224 (MLD)

RASHID AZIZ KHAN, J: ‑‑Ahmad Nawaz (27) with his brother Haq Nawaz was sent up by Police Station Rajana, District Toba Tek Singh for trial for the murder of Mohsin Nadeem, aged 7/8 years. Sessions Judge, Toba Tek Singh vide his judgment, dated 26‑2‑1991 gave the benefit of doubt and acquitted Haq Nawaz of the charge. Ahmad Nawaz was found guilty for an offence under section 302, P.P.C. and sentenced to death with a fine of Rs.25,000 or in default of paynient of fine, undergo R.I. for two years at was directed that the fine, if recovered, whole of it shall be paid to the legal heirs of the deceased. The convict has appealed. Case is also before us for confirmation of death sentence. Complainant has also filed Criminal Revision, bearing No.292 of 1991 challenging the acquittal of Haq Nawaz and for enhancement of the amount of fine. All these matters will be disposed of by this judgment.

2. Prosecution story in brief, as disclosed in F.I.R. Exh.Pl, lodged by Abdul Hafeez, was to the effect that he had his Dhari in his Agricultural land. He with his family members used to sleep outside the Dhari on account of Summer season.‑ On 15‑7‑1989 early in the morning, Zaman, brother‑in‑law of the first informant, and Muhammad Arshad came and sat on their cots. At about 4‑1/2 a.m., Haq Nawaz and his brother Ahmad Nawaz armed with guns came there. They raised a Lalkara that Zaman shall be taught a lesson for not giving land to th‑‑m. Haq Nawaz fired at Zaman, which missed him. It was followed by Ahmad Nawaz, who fired at the first informant but he escaped. The pellets hit Mohsin Nadeem, first informant's son, who was sleeping on a cot. Gunshot report attracted the other ‑inhabitants of the nearby Dharis, whereupon the assailants ran away. Mohsin Nadeem was being taken to the Hospital but he expired on reaching there. Motive for the occurrence was that the appellant side was locked in civil litigation with Zaman and criminal cases were also going on. First informant used to help Zaman being his brother‑in -law. Occurrence took place on 15‑7‑1989 at 4‑30 a.m. at the Dhari of Abdul Hafeez, P.W.9, situated in Chak No.286/GB, one mile from Police Station Rajana, District Toba Tek Singh. F.I.R. Exh.PI was recorded the same day at 5‑30 a.m. on the statement of Abdul Hafeez, P.W.9, recorded by Noor Ahmad, S.I., P.W.10. Noor Ahmad S.I., P.W.10 after recording the F.I.R. Exh.PI went to Rural Health Centre, Rajana and found the dead body of Mohsin Nadeem. He prepared injury statement Exh.PF and inquest report Exh.PJ of the deceased and sent the dead body for autopsy. The same day he secured from the spot blood‑stained earth from beneath the cot vide memo. Exh. PC. He took into possession last‑worn clothes of the deceased vide memo. Exh.PA. He got prepared site plan Exhs.PB and PB/1 from the Draftsman and gave his notes thereunder. He arrested both the accused on 21‑8‑1989. On 24‑8‑1989 Haq Nawaz got recovered .12 bore gun P5 from his residential Kotha vide memo. Exh.PE. Ahmad Nawaz same day also got recovered from his house gun P4, which was secured vide memo. Exh.PD. After completing the investigation he challaned the accused. P.W.7 Dr: Nawazish Ali Goria, Medical Officer, ADHO Sub‑Division, Kamalia on 15‑7‑1989 conducted post‑mortem examination on the dead body of Mohsin Nadeem and found the following injuries:‑‑ (1) A fire‑arm entrance wound 1/2 c.m. diameter x DNP on the front of left chest on the cardiac region. Edges of the wound were inverted. (2) A fire‑arm entrance wound 1/2 c.m. diameter x DNP. Edges inverted on the outer side of left arm 13 c.m. above the left elbow. (3) A fire‑arm exit wound 1/2 c.m. diameter edges everted on the inner side of the left arm 9 c.m. above the left elbow. (4) A fire-arm entrance wound 1/2 c.m. diameter x DNP, edges were the outer side of the left forearm 6 c.m. above the left (5) A fire‑arm exit wound 1/2 c.m. diameter edges everted on the inner side of left forearm 6 c.m. above the left wrist‑joint. (6) A fire‑arm entrance wound 1/2 c.m. diameter x DNP, edges inverted on the outer side of the left thigh. (7) A fire‑arm entrance wound 1/2 c.m. diameter through and through muscle deep on the front of the left knee joint. (8) A fire‑arm entrance wound 1/2 diameter edges inverted x DNP on the outer side of the left abdomen lower part. (9) A fire‑arm entrance wound of 1/2 c.m. diameter x DNP, edges inverted on the upper surface of right foot. (10) A firearm exit wound 1/2 c.m. diameter edges everted on the outer side of right foot. He also found that the stomach contained semi‑digested food. Small intestine contained semi‑digested food material. Large intestines contained faecal matter and gases. In his opinion, death had occurred due to shock and haemorrhage on account of injuries to vital organs. Injury No.l was sufficient to cause death in the ordinary course of nature. All the injuries were caused with firearm and were ante‑mortem.

3. Prosecution in support of its case produced 10 witnesses in all. P.W.3 Naseer Ahmad, Patwari, on 23‑7‑1989 prepared site plan Exhs.PB and PB/1 on the asking of the police. Abdul Latif, P.W.5 had witnessed the recovery of blood‑stained earth but did not support the prosecution case, therefore, cross-examined by P.P. P.W.6 Fazal Muhammad had witnessed the recovery of guns at the instance of the appellant and the acquitted accused and had signed the recovery memos as well. The doctor, who had conducted the post‑mortem examination, appeared as P.W.7. Ocular account was furnished by Abdul Hafeez, P.W.9. The case was investigated by Noor Ahmad, S.I./S.H.O., P.W.10: The rest of the witnesses are of formal nature, therefore, need not be At the conclusion of prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. He, however, stated that he neither had any enmity with the first informant nor Zaman nor had any motive for commission of the offence. He did not produce defence evidence. However, he appeared on oath in his defence.

4. It was contended by learned counsel for the appellant that the prosecution had failed to prove its case beyond doubt. Contended that the most material witnesses, i.e. Zaman and Arshad were given up by the prosecution, therefore, uncorroborated testimony of the solitary eye witness, who according to his own admission had enmity, cannot be relied upon. Contended that the recovery of guns at the instance of the appellant and his co‑accused would not be of any use because no empty was secured from the spot and the recovery of gun alone would be immaterial. Asserted that the litigation with regard to the land was going on since long but nothing unpleasant happened between the parties, therefore, the motive as set up by the prosecution has not been proved at all. The contentions were opposed by learned counsel for the State as well as for the complainant.

5. We have heard the learned counsel at length and gone through the evidence with his assistance. The case solely rests on the testimony of Abdul Hafeez, eye‑witness. According to his statement, the occurrence took place at his Dhari in the early hours of the morning when his son Mohsin Nadeem, aged about 7/8 years while sleeping on a cot was done to death. As far as the place of occurrence is concerned, it has not been doubted by the prosecution. Even otherwise, it stands established that the occurrence took place at the Dhari of Abdul Hafeez, P.W., as blood‑stained earth as well as cot was recovered from the said place. Abdul Hafeez, P.W., had stated that Ahmad Nawaz had fired at him, which missed the target and hit his son Mohsin Nadeem who was sleeping on a cot. He had also stated that he used to help Zaman, his brother‑in‑law, in the litigation but never appeared as a witness in any of the cases. The witness was put to the test of lengthy cross‑examination but nothing could be brought on the record to suggest that he was not present at the spot at the relevant time or his enmity with the appellant was of such a nature that he would let go the real assailant of his son and falsely implicate the appellant. His presence at the spot at the early hours of the morning at his own Dhari cannot be doubted. The witness did not have direct enmity with the appellant. This fact was also admitted by the appellant by saying that the witness did not have any enmity with him. The manner in which he has given evidence inspires confidence. We feel he can safely be relied upon even if there is no corroboration to his testimony. The contention of the 'learned counsel that the stomach contents indicated that the occurrence took place in the early hours of the night, and not in the morning as alleged by the prosecution, has been considered ‑but we are not impressed with it. Learned counsel has relied upon the post‑mortem report, according to which semi‑digested food was found in the stomach and in the small intestines of the deceased. According to the learned counsel, food becomes digested within two to three hours of eating. Learned counsel further relied upon the statement of Abdul Hafeez, wherein he had asserted that the deceased had not taken his evening meals. A careful examination of the points would reveal that process of digestion is retorted when a person is sleeping. Many a time in deep sleep process of digestion comes to a standstill. When the witness stated that the deceased did not take his evening meals, it would only mean that he did not see him having meals. Mother of the deceased appeared as a witness as she had identified his dead body. She was not put any question as to when the deceased had his last meal. She was the appropriate person to answer the question. Therefore, the contention that the ocular account is in conflict with medical evidence is repelled. Learned counsel has also asserted that the nature of injuries does indicate that they could not be received in the manner alleged by the prosecution. The contention has been considered but we do not find any force in it. In cross‑examination, Abdul Hafeez, P.W., was not asked about the posture of the deceased. Suffice it to point out that all the injuries are on the left side of the deceased, which are possible as 12 bore gun was used containing pellets. For what has been discussed above we hold the prosecution has been able to establish its case beyond doubt. Statement of Abdul Hafeez, as discussed above, does inspire confidence and can safely be relied upon, even if not corroborated. His statement however finds full corroboration from medical evidence. We find that the awarding of death sentence may not be in the interest of justice. Admittedly the shot was aimed at Abdul Hafeez which accidentally hit Mohsin Nadeem who was sleeping on a cot. The appellant did not have the intention to kill the deceased nor fired at him. Therefore, while dismissing the appeal, we convert the sentence of death to imprisonment for life. The sentence of fine, or the imprisonment in default of fine, is however maintained. He shall also be given benefit of section 382‑B, Cr.P.C. Death sentence is not confirmed. For the same reasons. Criminal Revision, bearing No.292 of 1991 filed by the complainant against the acquittal of Haq Nawaz and seeking enhancement of fine is also dismissed. N.H.O./A‑671/L Sentence reduced.