1989 PLP 765 (MLD)

(3) Wound of entrance 1 c.m. x 1 c.m. on the back of lower part of left forearm. (4) An exit wound 1 c.m. x 1 c.m. on the lateral side of lower part of left forearm. (5) An abrasion 1 c.m. x 1 c.m. on the medial side or right knee joint. (6) An abrasion 1 c.m. x 1.5 c.m. on the left side of chest 5 c.m. medial and upper side of left nipple just on the sternum. (7) Abrasion 1 c.m. x 2 c.m. on the right side of chest 4 c.m. below the right nipple. (8) Swelling 5 c.m. x 4 c.m. on the occipital region of head. (9) A lacerated wound 15 c.m. x 10 c.m. x skin deep on the left side of back of head. (10) Penetrating wound 1 c.m. x 1 c.m. on the epigastrium passing under the skin to the right chest wall from where one pellet was found. (11) A penetrating wound 1. c.m. x 1 c.m. on the left side of chest 3 c.m. medial to left nipple, fracturing; the 5th costal cartilage, tearing the upper wall of the heart and passing into the right lung and fracturing the 6th rib. A pellet was found under the right chest wall. (12) A penetrating wound 1 c.m. x 1 c.m. on the left side of chest just above injury No.1l, which had fractured the 5th left costal cartilage and passed through the right lung and fractured the 5th rib on the right side. A pellet was found lodged under the right chest wall just below injury No.11. (13) Penetrating wound 1 c.m. x 1 c.m. fracturing 5th costal cartilage of left side, passing through right lung and fracturing the 7th rib. One pellet was found under the skin of right chest. Chest cavity was full of blood. (14) Penetrating wound 1 c.m. x 1 c.m. on the right side of chest 3 c.m. medial to the right nipple. The pellet has passed under the skin and found from the skin of right chest wall. In his opinion, injuries Nos.11, 12 and 13 were collectively and individually sufficient to cause death in the ordinary course of nature. Injuries Nos.8 and 9 were caused with blunt weapon and the rest were with fire‑arm.

4. The prosecution in support of its case produced 12 witnesses in all. P.W.1 Rab Nawaz prepared the site plan Exh.PA. and Exh.PA./1 of the place of occurrence on the pointation of the witnesses. Yar Muhammad, F.C. P.W.2 delivered the crime empty in the office of Forensic Science Laboratory on 19‑8‑1985. So long it remained with him, nobody tampered with it. He also delivered a sealed parcel containing carbine on 12‑9‑1985 in the office of Forensic Science Laboratory. Ijaz Ahmad, P.W.4, witnessed the recovery of carbine P.3 at the instance of Ghulam Haider and attested the memo. Exh.P.C. Muhammad Yaqoob, P.W.6 witnessed the recovery of blood‑stained. earth from the courtyard of the house of Mehram Ali, deceased, which was secured vide memo. Exh.P.E. He also witnessed the recovery of empty cartridge P.5 and attested the recovery memo. Exh.P.F. The eye‑witness account was furnished by Sarang, Nazir and Mst. Zanib, P.Ws. 7, 8 and 9, respectively. The doctor who conducted the post mortem examination on the dead body of Mehram Ali, appeared as P.W.10. The investigation was conducted by Muhammad Ayyub, A.S.I., and Muhammad Naseem, S.H.O. P.Ws.11 and 12, respectively. The learned prosecutor gave up Iqbal Bibi, Muhammad Sadiq, Muhammad Abbas and Ahmad Ali, as unnecessary. He tendered in evidence the report of Chemical Examiner Exh.P.1. of the Serologist Exh.P.M. and of the Forensic Science Laboratory Exh.P.N. and closed the case of the prosecution. At the conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. wherein they refuted the entire prosecution evidence and pleaded innocence. They stated that the case against them had been registered because of enmity.

5. It is contended by learned counsel for the appellant that Sarang and Nazir, eye‑witnesses, have been disbelieved by the learned trial Court and the conviction has been recorded only on the uncorroborated statement of Mst Zanib Bibi who may not be relied upon. Contends that the recovery of carbine was effected from a place which was not in the exclusive possession of the appellant, therefore, same may not be relied upon. Contends that the recovery witnesses are interested and inimical. The contentions of the learned counsel for the appellant have been controverted by learned counsel for the State.

6. I have heard the learned counsel and gone through the evidence with their assistance. As far as the time and place of occurrence are concerned, this has not been disputed by the defence. In these circumstances, I hold that Mehram Ali, deceased, was done to death at about 6‑30 a.m. inside the courtyard of his house. Appellant Ghulam Haider while in custody, led to the recovery of carbine P.3 which was secured vide memo. Exh.P.C. Ejaz Ahmad, P.W.4 is son of Mehram Ali, deceased. He has been cross‑examined at length but the defence has not been able to bring out anything on the record to indicate that he did not witness the recovery. The contention of the learned counsel that the witness is a relation of the deceased, therefore, may not be relied upon is without force because the recovery at the instance of the appellant was effected from his house which is next to the house of this witness. In cross‑examination, he stated that he did not go to the Police Station to join the recovery proceedings; instead the police associated him when they came to his village. Even otherwise also, the recovery was attested by Muhammad Nasim S.H.O. P.W.12 who was cross examined on the point of recovery of carbine, and a suggestion was given to him that the carbine P.3 got recovered by him did not have striking pin and was not in working condition. The suggestion clearly indicates that the defence had accepted the recovery of carbine at the instance of Ghulam Haider appellant, and its case was that the said carbine was not in a working condition. In these circumstances, I hold that the recovery of carbine P.3 at the instance of the appellant is proved. Muhammad Yaqoob, P.W.6 witnessed the recovery of empty cartridge P.5 from the roof of Deori of the deceased. He has been cross‑examined at length but the prosecution has not been able to bring anything on the record to indicate that he was an interested witness or inimical. Fie has only stated that the deceased was from his Bradri. This fact, in itself, would not make the witness interested or inimical. In cross2examination, he further stated that he learnt about the murder of Mehram Ali and then came to his house, though he lived at a distance of about 3‑1/2 miles from the house of the deceased. The explanation given by this witness about his presence at the spot is convincing. Therefore, I hold that Muhammad Yaqoob, P.W. witnessed the recovery of crime empty P.5 from the Deori of the deceased and he can safely be relied upon. The eye‑witness account in this case has been furnished by Sarang, Nazir and Mst. Zanib Bibi, P.Ws.7, 8 and 9, respectively. As far as Sarang and Nazir are concerned, they have not been relied upon by the learned trial Court simply on the ground that both of them are not the resident of the village. Sarang, P.W., was brother of the deceased, whereas Nazir P.W. was father‑in‑law of the son of the deceased. The explanation given by these two P.Ws. with regard to their presence at the spot is that they had learnt about the illness of grand‑daughter of the deceased, therefore, came to enquire about her health. During cross‑examination, they could not even give the correct name of the child about whom they had come to enquire. They did not even know the nature of ailment of the child. In these circumstances, I hold that the learned trial Court has rightly ruled out of consideration the statements of these two witnesses. As far as Mst. Zanib Bibi, widow of Mehram Ali, deceased, is concerned, I hold that she is a natural witness. The occurrence took place inside her house at about 6‑30 a.m. and at that time she was expected to be present in her house. She p has given a detailed account of occurrence in the way it transpired. She was cross examined at length, but the defence has not been‑able to bring on record anything to indicate that she was not present or did not witness the occurrence. Therefore, I hold that Mst. Zanib Bibi was present at the spot and witnessed the occurrence. The contention of the learned counsel for the appellant that Mst. Zanib Bibi has already been disbelieved with regard to the acquitted co‑accused, therefore, cannot be relied upon unless corroborated has some force. Mst. Zanib Bibi, in her statement had also attributed overt act to the co‑accused of the appellant but had been disbelieved. In these circumstances, I hold that she can be relied upon only if her statement is corroborated by some independent evidence. The crime empty was delivered in the office of Forensic Science Laboratory on 19‑8‑1985. The appellant was arrested by Muhammad Ayyub, A.S.I. on 20‑8‑1985 1 a day before the crime empty had been received in the office of Forensic Science Laboratory. Four days after his arrest he got recovered carbine P.3 which was sent to the office of Forensic Science Laboratory later on. According to the report Exh.P.N. of the Forensic Science Laboratory crime empty P.5 was fired from the Carbine P.3 recovered at the instance of the appellant. In these circumstances, I hold that the recovery of carbine at the instance of the appellant and the recovery of crime empty from the house of the appellant read with the report of the Forensic Science Laboratory Exh.P.N. serves ample corroboration to the statement of Mst. Zanib Bibi. Mst. Zanib Bibi has also been corroborated by the medical evidence. She had stated in Court that Ghulam Haider, appellant climbed on the roof of their Deori from where he fired at Mehram Ali hitting on his chest. The doctor who conducted the post‑mortem examination, admitted that the line of fire was slanting. Since the appellant was standing at a higher place than the deceased‑ therefore, the direction of the injury was slanting. This fact also corroborates the testimony of Mst. Zanib Bibi. For what has been discussed above, I hold that the prosecution has successfully proved its case against the appellant. Therefore, his appeal fails which is, accordingly, dismissed. SA./G‑215/L Appeal dismissed.