P L D 1987 Lahore 149 (PLP)

This is an appeal by Muhammad Taj 30 against his conviction under section 302, P. P. C. by learned Additional Sessions Judge, Rawalpindi, who vide judgment dated 27‑6‑1984, sentenced him to imprisonment for life plus fine of Rs. 10,000 or in default one year R.

1. Mian Mutalli complainant filed Criminal Revision' No. 75 of 1984 seeking enhancement of sentence of Muhammad Taj accused. It was not admitted and ordered to be heard alongwith the connected appeal. This judgment will dispose of both these matters together.

2. The occurrence in this case took place on 12‑2‑1981 at 4‑00 p. m. in a street in village Dhadhimber, about 18 Kilometres from Police Station Chauntra, District Rawalpindi. The formal F. I. R. Exh. P. C./1 was recorded by H. C. Meharban Hussain P. W. 8 at 9‑30 a. m. on 13‑2‑1981 on the basis of statement Exh. P. C. recorded at 6‑00 a. m. on the same day at the place of occurrence by S. I. Liaqat Ali P. W. 15 at the instance of Mian Mutalli P. W.

5. It was stated by Mian Mutalli P. W. in his statement Exh. P. C. that he was resident of Dhadhimber. His maternal uncle Ghulam Safdar had come to see his sister Mst. Amir Bano about 2/3 days earlier. On 12‑2‑1981. at about 10‑00/11‑00 a. m., he was proceeding to the house of his uncle. In the way he met Muhammad Taj accused. They both exchanged abuses and went to their respective houses. At about 4‑00 p m., Ghulam Safdar was passing in the street. Muhammad Taj accused armed with rifle also came there shouting Lalkara. He fired at Ghulam Safdar hitting on his abdomen. Ghulam Safdar fell down and died at the spot. He further stated that the occurrence was witnessed by him as well as by Shaukat Ali and Sher Jang P. Ws. The accused left the spot. The motive was stated to be that Ghulam Safdar deceased had asked the hand of a sister of Muhammad Taj accused for his nephew which he refused. S. I. Liaqat Ali was present in village Kaulian Hamid in connection with the investigation of a case under section 436, P. P. C. He got information of the present occurrence and went to the spot where Mian Mutalli made statement Exh. P. C. on the basis of which this case was registered at the police station.

3. The dead body of Ghulam Safdar aged about 28/30 years was sent for post‑mortem examination which was conducted by Dr. Mahmood Khan P. W. 9 at 4‑30 p. m. on 13‑2‑1981. .On external examination, the Medical Officer found the following injury on the dead body :‑ An oval wound of entry 1.5 c. m. x 1 c. m. x abdominal cavity deep on left side of abdomen 5 c. m. from umblicus at 3 O'clock position. Burning and blackening of margins of wound present. There was blackening of skin around the wound which is more marked on right side. Corresponding hole on shirt present with burning of shirt. There was a corresponding wound of exit 2 c. m. x 1.5 c. m. on left buttock upper part. Direction of wound is from before backwards and slightly downwards and outwards. On dissection, the peritoneum was found perforated. The cavity of abdomen was full of blood. Inferior vena cava was found perforated through and through. The large intestines were also perforated. The bullet had passed through the muscles and the abdominal wall on left side. It passed through the pelvic muscles after coming out of abdominal cavity. It caused fracture of left ileum bone. The death was due to shock and haemorrhage caused by the above injury, which was sufficient to cause death in ordinary course of nature. The injury had been caused by fire‑arm. The time between injury and death was within an hour and post‑mortem was conducted in about 24 hours of death.

4. The Investigating Officer S. I. Liaqat Ali P. W. 15 during inspection of spot collected blood‑stained earth vide memo. Exh. P. A. He also picked up crime empty P. 7 from the place of occurrence vide memo. Exh. P. B. attested by Amanat Khan P. W. 4 and Rab Nawaz P. W., not ,examined. It was sealed in a parcel and handed over to H. C. Muhammad Akbar P. W. 2 for safe custody in the Malkhana. H. C. Muhammad Akbar P. W. 2 gave this parcel to F. C. Nadir Khan P. W. 11 who discovered the same intact to Director Forensic Science Laboratory, Lahore a 16‑2‑1981. Muhammad Taj accused was arrested on 20‑2‑1981. At that time be produced his licensed rifle P. 4 alongwith three live cartridges P. 5/1‑3 and his license book P. 6 before S. I. Liaqat Ali P. W. 15 who took them in possession vide memo.. Exh. P. F. in presence of Anwar Beg P. W. 12 and Bahadur Khan P. W., not examined. This rifle was also handed over to H. C. Muhammad Akbar P. W. 2 for safe custody in Malkhana. The rifle P. 4 was given by him to F. C. Nadir Khan P. W. 11 who on 5‑4‑1981 delivered it intact in the office of Forensic Science Laboratory, Lahore. The Director Forensic Science Laboratory, Lahore vide report Exh. P. L. opined that the crime empty P. 7 had been fired from rifle P.

4. The accused was challaned after completion of investigation.

5. In support of its case, prosecution examined 15 witnesses in all. Mian Mutalli P. W. 5, Shaukat Ali P. W. 6 and Sher Jang P. W. 7 were examined as eye‑witnesses. The recovery of crime empty P. 7 from the place of occurrence was witnessed by Amanat Khan P. W. 4 and the accused Muhammad Taj produced his rifle P. 4 before the police in presence of Anwar Beg P. W.

12. The medical evidence was furnished by Dr. Mahmood Khan P. W. 9 as given in detail above. The evidence of the rest of the witnesses was of formal nature. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. He did not produce any evidence in defence. The learned trial Judge in a well written judgment placed reliance only the evidence on motive, report of Fire‑arms Expert Exh. P. L. and the and convicted the accused as stated above.

6. I have gone through the evidence on record with the assistance of learned counsel for the appellant. It is contended on behalf of the appellant firstly, that there was delay in lodging of the F.

1. R. which makes the prosecution case doubtful ; secondly, that in fact the complainant party had a motive to falsely implicate Muhammad Taj accused in this case ; thirdly, that the medical evidence was in conflict with the ocular account ; and fourthly, that the evidence regarding incriminating recoveries was not reliable. It was, therefore, argued that the prosecution having failed to prove its case, the appellant be acquitted. The learned counsel for the State and the complainant controverted the above contentions.

7. The occurrence in this case took place at 4‑00 p. m. on 12‑2‑1981. The statement Exh. P. C. was recorded by S. I. Liaqat Ali P. W. 15 at the instance of Mian Mutalli P. w. 5 at the place of occurrence on 13‑2‑1981, at 6‑00 a. m. This means that the matter was reported to police after about 14 hours of the occurrence. The statement Exh. P. C. did not contain any explanation of delay in lodging of the F. I. R. However, during cross‑examination it was stated by Main Mutalli P. W. 5 that "the accused soon after the fire threatened that if any one went to report the matter to the police be shall be murdered". The eye‑witnesses did not have any weapon with them. The accused have a licensed rifle. It was, therefore, natural for the witnesses not to proceed to the Police Station immediately after the occurrence on account of the fear of the accused The explanation for delay in lodging of the report is plausible and it was brought on record during cross‑examination of the complainant .The view is supported by a judgment of Supreme Court in Gulzar V.1981 State 1970SCMR60.. In the case of Gulzar, the occurrence took place on 12‑12‑19681ime the matter was reported to police next day at Police Station, above 12 miles from village. The explanation offered by the complainant that "she could not come earlier for report out of fear of the accused". The accused in that case was arrested on 15‑12‑1968 i. e. three days after the occurrence. In the instant case, the occurrence took place on 12‑12‑1981 and the accused was arrested on 20‑2‑1981. The explanation of Mian Mutalli P. W. 5 that he did not report the matter immediately to the police out of fear of accused was quite plausible and did not affect merits of this case. The motive in this case was stated to be that Ghulam Safdar deceased had asked Muhammad Taj accused to give the hand of his sister to his nephew. In cross‑examination, Mian Mutalli P. W. 5 stated that Ghulam Safdar deceased did not have any brother and in fact wanted the marriage of the sister of accused with Shaukat, a son of his cousin Ghulam Haider. The accused in his statement refuted this evidence but his learned counsel during arguments contended that Muhammad Taj was implicated falsely in this case because he had refused to give the hand of his sister to Shaukat Ali P. W. 6, son of Ghulam Haider. 1. inquired from the learned counsel as to whether I should take it that he admitted differences between the accused and the deceased on account of the demand for the hand of the sister of the accused to which he replied that he did not admit that as a fact but from the prosecution evidence it is clear that the accused had been implicated because he had refused to give the hand of his sister. The evidence on motive stands fully proved from the statement of Mian Mutalli P. W. who was informed by Ghulam Safdar deceased himself about the exchange of abuses between him and Muhammad Taj accused a few hours before the present occurrence. In my view, the prosecution has successfully proved motive against the accused. A perusal of the evidence of Dr. Mahmood Khan P. W. 9 would show that Ghulam Safdar deceased had an oval wound of entry which was abdominal cavity deep. Its margins were burnt and blackened. There was blackened skin around the wound. The shirt also had burning marks. In cross‑examination, the Medical Officer stated that the injury was inflicted from within a distance of 3 feet. It was contended by the learned counsel that according to the site plan, the shot had allegedly been fired from a distance of about 17 feet. It was, therefore, argued that the medical evidence contradicted the ocular account of this case. I have considered this contention. It was stated by Mian Mutalli P. W. in cross‑examination that "Taj accused was at a distance of about 1 or 2 yards when he fired at Ghulam Safdar deceased." According to Shaukat Ali P. W. 6, the distance between the accused and the deceased at the time of occurrence was 1/2 yards. This was only an approximate distance given by the eye‑witnesses. Muhammad Akram P. W. 14 had visited the place of occurrence to prepare the site plan Exh. P. G. on 28‑3‑1981 whereafter he handed over the same to Investigating Officer on 17‑5‑1981. This means that the eye‑witnesses pointed out various places to him after about 1 I months of the occurrence. As such, it cannot be said that the place from where Muhammad Taj accused had fired at the deceased was exactly 17 feet away. That was also an estimated distance. In my view, the ocular account was not in conflict with the medical evidence. The Investigating Officer inspected the spot of occurrence on 13‑2‑1981. He picked up a crime empty P. 7 vide memo. Exh. P. B. and sealed the same in a parcel , in presence of Amanat Khan P. W. 4 who was an independent witness. He was not related to the deceased. He had no enmity with the accused. He was a Chaukidar and resident of the same village. It was pointed out by the learned counsel that according to this witness, the Investigating Officer had brought the crime empty to school where the recovery memo. was prepared. It, was, therefore, argued that the fact the recovery memo. was not prepared at the place of occurrence, makes this recovery doubtful. I find no merit in this argument because firstly, in examination‑in‑chief, this witness clearly stated that the crime empty was taken in possession from the place of occurrence in his presence. The statement in cross‑examination seems to have been made by him either under some wrong impression or by not following the question. This crime empty was kept in safe custody in the Malkhana of Police Station. It was sent to Forensic Science Laboratory on 16‑2‑1981 where its receipt was entered at Lab. No. 213/81. The accused was arrested on 20‑2‑1981 when he produced his licensed rifle P. 4 which was taken in possession vide memo. Exh. P. F. It is clear that the rifle P. 4 was produced by the accused after four days of the delivery of crime empty P. 7 in the office of Director Forensic Science Laboratory. The rifle was delivered in the said office on 3‑4‑1981. It was produced by the accused in presence of Anwar Beg P. W. 12, a resident of the same village. He was father of Sher Jang P. W. but had no enmity with the accused. I, therefore, do not find any reason to disbelieve the recovery of crime empty P. 7 and rifle P. 4 as stated by the recovery witnesses. The report of Fire‑arms Expert Exh. P. L. proves that crime empty P. 7 had been fired from rifle P.

4. This sport lends strong corroboration :o the three eye‑witnesses. Mian Mutalli P. W. 5 is son of a sister of Ghulam Safdar deceased. Shaukat P. W. 6 was a cousin of Mian Mutalli and also married to his sister. Similarly, fist. Safaidan was mother of Sher Jang P. W. and cousin of Ghulam Safdar deceased. It is, therefore. apparent that the three eye‑witnesses were closely related to Ghulam Safdar deceased. The house of Main Mutalli P. W., as admitted by Sher Jang P. W., was only 45 yards from the place of occurrence. As admitted by Mian Mutalli P. W. 5, the house of Sher Jang P. W. was 100/150 yards from the place of occurrence and the house of Shaukat Ali P. W. was 250/300 yards from the spot. It was stated by Mian Mutalli P. W. that at the time of occurrence, he was following his maternal uncle and the accused fired in his presence. Shaukat Ali and Sher Jang P. Ws. stated that they were passing through the central street and saw this occurrence. The three witnesses being residents of the village, I find nothing improbable in their presence in the street at the time of occurrence. They had no enmity to falsely implicate the accused in the present case. They made consistent statements during the trial. They cannot be disbelieved simply because of their relationship with the deceased. They had no motive of their own to implicate the accused in the crime. This view is supported by the judgment in Shamsher v. The State (1). It is correct that the place of occurrence was surrounded by other houses. It is also a fact that other residents of the street have not come forward to support the prosecution case but this would not mean that the three eye‑witnesses should be disbelieved on that count. It was held in Muhammad Iqbal alias Javaid 1qbal v. The State (2) that "it can only be understood in the context of the conditions obtaining in that part of the country where the occurrence took place, namely, the reluctance of witnesses or lack of courage on their part to depose against the assailant for fear of reprisal. This discloses a lamentable lack of civic sense and responsibility on the part of a citizen to tell the truth and to act for the benefit of the society and in aid of the authorities charged with the duty of maintaining law and order." It was argued on behalf of the appellant that the occurrence took place during night and the accused has been substituted for the real culprits. This argument is without any basis. The accused has not been able to point out any enmity on account of which he might have been falsely implicated in this case. He has also not pointed out any other enemy of the deceased who could have killed him. He has also not been able to point out any other circumstance to support his version. I do not find any reason for the eye‑witnesses to substitute Muhammad Taj appellant for the real culprit. (1) 1973SCMR69 (2) PLD1976SC291

3. In view of the above discussion, I am of the view that the' prosecution has successfully proved its case against Muhammad Taj appellant beyond any reasonable doubt. There is no merit in this appeal . which is accordingly dismissed. The conviction and sentence of the appellant is maintained. It is directed that Rs. 9,000 out of the fine, if recovered, will be paid as compensation to heirs of the deceased. 9. . In view of the above decision in appeal, the connected criminal revision is dismissed in limine. s. Q./M‑12/L. Appeal dismissed.