1999 P Cr (PLP)

3. The occurrence took place on 30-10-1989 at 7-00 a.m. and the matter was reported at Police Station Kamar Mashani, District Mianwali on the same day at 7-40 a.m. by Ghulam Munir complainant (P.W.6) on the basis of which F.I.R. (Exh.P.D.) was recorded by Ghulam Muhammad, Inspector/S.H.O. (P. W.8).

4. After registration of the case Ghulam Muhammad, Inspector/S.H.O. (P. W.8) proceeded to the place of occurrence. He found the dead body of Abdul Sattar deceased lying the courtyard of Ghulam Qadir appellant. He prepared the injury statement Exh.P.G. and inquest report Exh.P.H. The dead body was handed over to Budha Khan and Muhabbat Khan constables for getting its autopsy. Blood-stained earth was lifted from the place of occurrence and secured vide memo. Exh.P.E. attested by Madat Khan and Abdul Ghaffar P.Ws. He prepared the rough site plan and subsequently got prepared site plans Exhs.P.B. and P. B./1 from Muhammad. Hassan Patwari. He gave marginal notes in red ink on the same. The last-worn clothes of the deceased were taken into possession after post-mortem examination. He effected arrest of the appellant on 6-11-1989 who during interrogation led to the recovery of .12 bore pistol (P.4) from a box lying in his residential room which was taken into possession vide memo. Exh.P.F. The recovery memo was attested by Madat Khan and Abdul Ghaffar P. Ws. After completion of the investigation, the appellant was sent up to face trial.

5. At the trial, the appellant pleaded note guilty and the prosecution in order to establish its case examined eight witnesses in all. Dr. Sher Ali Khan, Medical Officer, D.H.Q. Hospital, Mianwali (P.W.4) conducted post-mortem examination and found the following injuries on his person:-- "Six circular fire-arm wound of about equal diameter 1 c.m. x c.m. having equal distance between them on front of right side of chest and epigastrium, in an area of 10 c.m. x 7 c.m. between sternum and right nipple, 2 c.m. below the right nipple, well-illustrated in Diagram. The edges are blackened (but blackness is removable by rubbing) red and hard. On dissection there is burning and blackening below the wound in skin and muscles " On opening the thorax, wounds were found on 6th, 7th and 8th intercostal space on the right side. Sternum was also injured. Right side of pleura had four injuries and the cavity was full of blood. Right lung had shrunk, whereas the left lung was healthy and normal. There was an injury on lower lobe of the right lung. Right ventricle and atrium of heart were injured and so was pericardium. In the abdomen, peritonium was injured. Diaphragm was injured at the right dome on its superior. Liver had been badly injured at four places. Three pellets were recovered from the skin on the back of right side of chest whereas one pellet was found in the peritoneum. These pellets were sealed in a phial. Learned D.D.A. tendered in evidence the Chemical Examiner's Report Exh.P.M. and Serologist's Report Exh.P.N. and closed the prosecution case. The appellant when examined under section 342, Cr.P.C. denied the allegation and pleaded innocence. In answer to question No.9 as to why this case against him, the appellant made the following statement:-- "The case is false and has been set up on distorted facts. In reality, Abdus Sattar deceased and his brother Bashir armed with .12 bore pistol and .12 bore gun respectively came to my house at about 6 a.m. on the day of occurrence. Sattar deceased entered the courtyard followed at about 6 feet by Bashir his brother, I was then feeding the cattle. Bashir exhorted Sattar deceased to kill me. Sattar deceased turned around but Bashir had fired in the meantime which accidently hit Sattar deceased, who fell down and died. I came out of my Haveli and started running towards North. Bashir also came after me out of the Hawaili and fired thrice towards me although ineffectively. I had no dispute with my wife. Abdus Sattar deceased wanted to kill me because his wife was in illicit liaison with one Mumtaz and I had seen both of them in an objectionable position and had also told about it to the brother of Sattar deceased, namely, Ghulam Muneer P. W." He summoned Hassan Patwari in his defence whose statement was recorded afresh as D.W.I. He stated that the place of occurrence was situated within Khasra No.4738 of Kacha Kamar Mashani No. 1 and west of this Khasra Number was the land of Muzaffar Khan in Khata No.

16. He further stated that although Ghulam Munir, Madat Khan and Abdul Ghaffar were not the tenants of Muzaffar Khan. Their brother Abdul Sattar, however, cultivated the land of Muzaffar Khan as tenant.

6. While challenging the conviction, learned counsel for the appellant submitted that Ghulam Munir (P.W.6) and Madat Khan (P.W.7) who were present on the land of Muzaffar Khan and reached the place of occurrence on hearing the noise from inside the house of the appellant is not cultivated by them, therefore, their presence at that place is doubtful; that according to the narration of the F.I.R. the appellant had a dispute with his wife two days before the occurrence which led Abdul Sattar deceased to approach the appellant but during his statement at the trial, he did not state so; that Mst. Bashiran wife of the appellant who was present in the house at the time of occurrence, was sister of the complainant and the deceased was not produced as a prosecution witness; that Mst. Bashiran who came to visit the house of her brother i.e. Abdul Sattar deceased two days prior to the occurrence, kept on living as wife of the appellant and continued doing so even after the murder of Abdul Sattar; that she was a necessary witness and her non-production by the prosecution makes the whole case as doubtful; that the recovery of incriminating pistol from the house of the appellant is not at all acceptable because he fled away after the occurrence and there was no possibility of concealing the pistol in the house thereafter; and that the defence version as put forth by the appellant in his statement under section 342, Cr.P.C. is more plausible as compared to the prosecution version. Learned counsel for the State has supported the impugned judgment and stated that the matter was promptly reported; that the P.Ws. are brothers-in-law of the appellant and also his first cousins, therefore, there is no possibility of false implication of the appellant as they have no reason to do so and their evidence has to be relied upon because they have no enmity against the appellant; and that the defence version is un-plausible and does not spell out in any manner from the facts and circumstances of the case.

7. I have considered the contentions raised at the Bar and also perused the record. The first contention of the learned counsel that the statements made by both the eye-witnesses that they were present in the land of Muzaffar Khan as his tenants which according to him is contradicted by the statement of Patwari, does not carry any weight because the Patwari has stated that their third brother Abdul Sattar deceased was tenant of Muzaffar Khan. The presence of the P.Ws. on the land cultivated by their brother cannot be treated as implausible or unnatural. Secondly the contradiction with regard to non-mentioning of the dispute in between the appellant and his wife taking place two days prior to the occurrence is not of much significance. The fact that Mst. Bashiran kept on residing in the house of the appellant even after the dispute does not, in any manner, affect the prosecution version because Mst. Bashiran admittedly has grown-up children from her husband/appellant and her living with her children is not something which can cast doubt on the prosecution version. Similarly, the omission to mention that she visited the house of her brother is also not of any significance. As regards the recovery of pistol (P.4) from the appellant, the same is inconsequential because no empty was recovered so as to be wedded with the said pistol. The recovery was not even treated as a corroborative piece of evidence by the learned trial Judge. As for the contention that the defence version is more plausible and probable, suffice it to say that the prosecution version and the defence version have to be considered by keeping in juxtaposition. The defence version that in fact Abdul Sattar deceased alongwith brother Bashir had come to the house of the appellant armed with a pistol with a view to inflict injury on the person of the appellant is belied for more than one reasons. Firstly, the injury according to medical report has been caused from a close range as it contained blackening. When the injury is caused from a close range, the possibility of missing the aim and accidently hitting someone else is almost ruled out. Secondly, the injury has been caused in front of the chest which is absolutely in line with the prosecution version. The deceased has gone to the house of the appellant to render some advise not to maltreat his sister but he caused fire shot straight on the chest of the appellant which was sustained on the front and if according to the defence the deceased and his brother had gone to the house of the appellant then normally the injury would not have been inflicted on the front. The explanation tendered that the deceased had taken a turn and as such received the injury on the front appears only to be a made-up story. According to the site plan which was prepared by P.W.3 who again appeared as D.W.1, the defence version does not at all fit in the same. The deceased has been shown in the centre and the appellant has caused injury from in front of him. The witnesses are standing in different directions and in these positions it is not possible that the fire shot given by Bashir would have injured his own brother i.e. the deceased in the present case. Learned counsel has vehemently argued that the defence version has been put forward to the Investigating Officer at the earliest at the time of his arrest. This suggestion has, however, been denied by the Investigating Officer. With a view to verify it further, I myself examined the statement to ascertain the, truthfulness of the Investigating Officer and I find that no such version was put forward by the appellant before the police. Non-appearance of the wife of the appellant (who is sister of the deceased) as P.W. is quite understandable. The appellant has grown up daughters and other children. The mother obviously has to stay with them and in that even her appearance as P.W. would have wrecked her entire family. Had the appellant been absolutely innocent hand Abdul Sattar had died on account of shot fired by Bashir, she must have been produced as a defence witness. The same was also not done. Her non-production, therefore, would not operate to the prejudice of the prosecution case

8. Considering the above facts and circumstances I find that the, prosecution witnesses are closely related to the appellant also: They have no reason to falsely implicate the appellant and their statements are corroborated by the medical evidence as well as motive. The learned trial Judge, therefore, has rightly convicted the appellant under section 302, P.P.C. As regards the sentence, the lesser penalty was awarded keeping in view that only one shot was fired by the appellant and also the igniting cause for the incident remains shrouded in mystery, which appears to be just and proper. Resultantly, the appeal fails and is dismissed. The conviction and sentence awarded by the Trial Court is upheld and maintained.

9. In the end, I would observe that learned counsel for the appellant although appeared at State expense yet fully prepared the case and rendered valuable assistance to the Court. Q.M.H./M.A.K./G-86/L Appeal dismissed.