1984 PLP 1006 (SCMR)

8. According to Zahid Khan, P. W. 9 the accused being Commander of the Post, had complained to him about the undisciplined habits and activities of the deceased, about four days prior to the occurrence. He passed on this complaint against the deceased to the Company Commander orally who directed him, to obtain a written complaint from the accused but the latter refused to give the. complaint in writing. Nasiruddin P. W. 11 supported the prosecution case and so did Haq Nawaz P. W. 11.

9. The accused when examined, denied the charges. He however, admitted that he was arrested when he was in custody of Capt. Dogar and the rifle and bullets were taken into possession at the time of his arrest. When questioned as to why this case is against him, he stated that he had been falsely implicated due to suspicion, and added that what actually happened was that Sultan and Mian Gul were on Guard duty and Jallandir Khan was found dead outside the Post and Zahid Khan P. W. was not present there but when he came he suspected him (accused/appellant) as murderer and tried to apprehend him and he, therefore, fired in the air in order to scare them away. He then left the Post and went to the Adjutant and reported the matter to him. Learned counsel for the accused/appellant raised the following points : (a) According to the original version of the incident the deceased was standing at the Post when he was allegedly fired at by the accused/ appellant but this story is belied by the circumstantial evidence (i) medical evidence. (ii) absence of the blood from the spot where the deceased is alleged to have fallen. (iii) absence of any injury on the deceased due to the fall from the Obser vation Post. (iv) The direction of the wound. (b) The deceased, who was supposed to be on duty, was not in uniform. This further belies the prosecution case. (c) Roster of the duty Exh. P. W. relied by the prosecution, does not support the prosecution case. (d) The motive as alleged in the F. I. R. has also not been established and the prosecution had been at pains to introduce a new motive during the trail. (e) The recovery of crime empties and rifle is also doubtful as there is no explanation as to why the empties as well as the rifle were retained for a long time by the I. O. and the same were not sent to the Forensic Expert. In fact the possibility of crime empties have been tampered with, could not be excluded.

10. We have examined the afore‑mentioned points one by one and we find that most of them have no force. The occurrence took place within the Jhummian Rangers Post where the witnesses were present. Zahid Khan, Nasiruddin and Haq Nawaz P.Ws. have no enmity whatsoever with the accused/ appellant nor the defence had been able to show any motive for these wit nesses to implicate the accused/appellant falsely in such a serious crimi nal case.

11. Regarding the Rangers Post itself we find from the perusal of t e it plan, Exh. P. B./1 that over the top of the roofs of the rooms there is a parapit wall covered by another roof and this, in fact, is not a tower from where if a person fell, would receive injuries of the kind of contusions or abrasions. etc. It is also in evidence that the Investigating Officer found blood where the deceased had fallen after being hit and this spot has been shown in the site plan Exh. P. B./1. The blood‑stained earth was sent to the Serologist any his report Exh. P. M. had been found positive.

12. The next objection regarding the delay in sending the crime empties and rifle to the Arms Expert we find that Nazir Ahmad, P. W. 4 Moharrir Head Constable received two sealed parsels on 21‑2‑1977 from Muhammad Ashraf, S.‑I. and he kept the same in Malkhana for safe custody. O 27‑2‑1977 he handed over the said parcels intact to Abdul Ghafoor, F. C for onward transmission to the office of the Chemical Examiner, Labor and Director, Forensic Science Laboratory, Lahore. On 22‑2‑1977 he received the third parcel containing rifle fur custody from Muhammad Ashraf S.‑I. and he kept the same too in the Malkhana. On 15‑3‑1977 he handed over the said parcel intact to Khurshid Ahmad, F. C. for onward transmission to the office of the Director, Forensic Science Laboratory, Lahore. Khurshi Ahmad, F. C. P. W. 2 corroborated the statement of Nasir Ahmad Moharrir, (P. W. 4). He delivered the sealed parcel intact in the office of the Director Forensic Science Laboratory at Lahore. Neither Nazir Ahmad Moharrir nor Khurshid Ahmad has been cross‑examined about the delay or any tampering with the empties. Abdul Ghafoor P. W. 3 also appeared areas, supported the statement of Nazir Ahmad, Moharrir regarding the receipt an d delivery of the parcel to the Forensic Science Laboratory, Lahore intact. I had also not been cross‑examined.

13. Regarding the contention that the medical evidence is in conflict with the ocular testimony we have gone through the evidence and find that none of the witnesses had said that the accused fired from the courtyard of the Post at the deceased. They only heard the report of a shot and on looking in that direction, saw the accused /appellant with the rifle and the deceased falling to the ground. Thus, it is obvious that the deceased was fired at from close range by the accused, the bullet making a straight exit wound in line with the entry wound and also causing tatooing around the wound of entry. In this regard we refer to the statement of Zahid Khan, P. W. "Jallandar Khan deceased took rifle from Mian Gul and went on the tower for duty in place of Mian G ul. The accused abused Jallandar Khan and fired on with rifle." Nasiruddin, Nursing Hawaldar Rangers (P. W. 10) stated that : "I and Hawaldar Asghar Ali P. W. were present in front of the barrack Jhummian Post. We heard the report of gunfire which hit Jalland . Khan deceased. The fire was shot by Mirza Khan accused."

13. The last contention is regarding motive for the crime. Undoubted at the first instance Zahid Khan had stated that the deceased had complained against the accused for indiscipline but at the trial he stated that the accused had indisciplined habits by which he meant to say that the deceased bad illicit relations with a woman of the nearby village. In re‑examination by the prosecution be stated : "Both the accused and the deceased had illicit intimacy with the wife servant of one Rana of village Ikramabad situate near villa ge Jhummian and both were rivals." On cross‑examination he stated that he had not stated so in the report Exh. P. E. and that information was not given by him to the Police on any later stage. He further admitted that Rana's servant or his wife are not mown to him nor had he ever seen them. This argument may prevail to the extent that the motive furnished by the prosecution has become doubtful ; that there could have been any other reason for the accused to fire at the deceased suddenly when the latter abused him. It is not always possible or necessary for the prosecution to prove the motive of the accused in committing a crime and in the absence of any proof of motive it is not in self sufficient to justify the rejection of evidence which is otherwise reliable. But if the motive is falsified the accused in a case as in hand, would be entitled to lesser punishment. Thus, we alter the sentence of death, awarded to the accused/appellant, imprisonment for life under section 302, P. P. C. and maintain conviction and sentence on both counts under section 307, P.P.C. We would award compensation of rupees ten thousand under section 544‑A, Cr. P. C. to the heirs f the deceased, and in default, six months' R. I. The sentence of substantive punishment to ran concurrently. Benefit of section 382‑B. Cr. P. C. is also extended to the accused /appellant. Appeal partly allowed as above. S.Q. Appeal partly allowed.