1994 P Cr (PLP)

Injury was kept under observation for X-ray report and for confirmation of weapon. Probable time between injury and examination was within 19 to 21 hours. According to X-ray report dated 31-8-1987 the Medical Officer had found no bony lien and also no foreign body was seen in the right hand. However, the description of the injury showed that it was a fire-arm one and it was declared to be simple.

6. P.W.4 Atta Muhammad, A.S.I., being Moharrir of the police station concerned, on receipt of the complaint Exh.P.D. had drew up formal F.I.R. Exh.P.D./1. He also kept sealed parcels of this case in safe custody in the Malkhana and delivered them to Sana Ullah F.C. for onward transmission to the office of the Chemical Examiner. P.W.5 Syed Rub Nawaz Shah, Draftsman had prepared the site plans Exh.P.K. and Exh.P.K./1 in the scale of 32 feet equal to an inch at the instance of the police and on the pointing out of the P.Ws. P.W.6 Sana Ullah was entrusted with the dead body of Mst. Hameedan Bibi deceased from the spot for escorting the same to the mortuary. He had escorted the dead body and after autopsy the Medical Officer handed over the last-worn clothes of the deceased P.3 to P.7 to Muhammad Anwar F.C. who was with him. On 17-9-1987 this witness was entrusted one sealed parcel by the Moharrir and he delivered the same intact in the office of Chemical Examiner, Lahore.

7. P.W.7 Sabir Ali being an injured P.W. had supported the case of the The present criminal appeal has been directed against the judgment, dated 11-2-1989, whereby the learned Additional Sessions Judge, Sheikhupura, while acquitting JaW Din, Amanat Ali and Farzand Ali, co-accused, had convicted the appellant under section 302, P.P.C. and sentenced him to imprisonment for life with a fine of Rs.5,000 or in default thereof to further R.I. for two years. The appellant was also directed to pay Rs.5,000 as compensation, to be paid to the legal heirs of the deceased. He was, however, awarded the benefit of section 382-B, Cr.P.C.

2. The brief facts leading to the present criminal appeal are that on 30-8-1987 at about 12-30 p.m. when the complainant, Muhammad Ibrahim,alongwith his nephew Sabir Ali P.W., was sitting at the Darbar of Bhola Peerin Village Kaloke. his sister Mst. Hameedan Bibi deceased came there and asked him to go to the house. He alongwith Sabir Ali P.W. and Mst. Hameedan Bibi deceased started towards the house and when they reached near the house of Mistri Ghulam, they saw Jalal and Taj Din accused armed with guns. Amanat Ali accused armed with a revolver and Farzand Ali accused armed with a hatchet, coming from the side of their house while raising Lalkaras. On seeing the complainant party Jalal Din exhorted his co-accused that Ibrahim has arrived and he be not left alive, whereupon Taj Din accused fired with his gun at the complainant, but instead of hitting him, it missed and hit Mst. Hameedan Bibi deceased on the right side of her chest and she fell down. Jalal accused fired with his gun which hit Sabir Ali P.W. on the palm of his right hand. Then all the accused resorted to indiscriminate firing, but the complainant and the P.Ws., due to fear, took shelter in the nearby houses. Besides the complainant and Sabir Ali P.W., the occurrence was witnessed by Muhammad Bashir and Muhammad Siddique P.Ws. On intervention of the other villagers, the accused decamped from the place of occurrence while raising Lalkaras. After a shortwhile Mst. Hameedan succumbed to her injuries at the spot. The motive for the, occurrence as stated in the complaint Exh.P.D. was that on the day of occurrence at about 9-30 a.m. the complainant was at his shop and on receiving information he went to Darbar of Baba Bhola Peer and found accused Jalal Din quarrelling with his brother-in-law Faqeer Hussain over a disposal drain which was to dig out from the village pond and the accused were making an obstruction not to dig it out.

3. At the trial the prosecution had examined as many as nine witnesses to prove its case. P.W.1 Barkat Ali was a recovery witness of blood-stained earth vide memo. Exh.P.A., pistol P.1 from Amanat Ali accused vide memo. Exh.P.B. and hatchet P.2 from Farzand Ali accused vide memo. Exh.P.C. P.W.2 Ibrahim being the complainant had reiterated the contents of the F.I.R. Exh.P.D. He had also testified the recovery memo. Exh.P.E., by which the last worn clothes of the deceased were taken into possession.

4. P.W.3, Dr. Khalid Yazdani had conducted the post-mortem examination on the dead body of Mst. Hameedan Bibi deceased and had found the following injury on her person:-- "One entrance wound of fire-arm 1.5 c.m. x 1.5 c.m. on the front and upper side of right chest, 5 c.m. above to the right nipple, 4th rib of right chest was fractured and the pellet was lodged in the skin at back of right chest, after puncturing the right lung." On internal examination the Medical Officer had found all the organs to be healthy. In thorax right pleurae, lungs were punctured. Stomach contained fluid. Small and large intestines gases and faecal matters. In his opinion the injury was ante-mortem, caused by fire-arm, and the death had caused due to severe shock and haemorrhage and due to the injury in question, which was sufficient to cause death in an ordinary course of nature. According to him time elapsed between injury and death was half an hour and between death and post-mortem examination was about 19 to 21 hours.

5. On 31-8-1987 P.W.3 had also medically examined Sabir Ali injured P.W. and had found the following injury on his person:-- "A lacerated wound 0.3 c.m. x 0.5 c.m. x 1 c.m. on the right hand in between the thumb and index finger. Tattooing was present around the wound. Blackening was too present. Injury was kept under observation for X-ray report and for confirmation of weapon. Probable time between injury and examination was within 19 to 21 hours. According to X-ray report dated 31-8-1987 the Medical Officer had found no bony lien and also no foreign body was seen in the right hand. However, the description of the injury showed that it was a fire-arm one and it was declared to be simple.

6. P.W.4 Atta Muhammad, A.S.I., being Moharrir of the police station concerned, on receipt of the complaint Exh.P.D. had drew up formal F.I.R. Exh.P.D./1. He also kept sealed parcels of this case in safe custody in the Malkhana and delivered them to Sana Ullah F.C. for onward transmission to the office of the Chemical Examiner. P.W.5 Syed Rub Nawaz Shah, Draftsman had prepared the site plans Exh.P.K. and Exh.P.K./1 in the scale of 32 feet equal to an inch at the instance of the police and on the pointing out of the P.Ws. P.W.6 Sana Ullah was entrusted with the dead body of Mst. Hameedan Bibi deceased from the spot for escorting the same to the mortuary. He had escorted the dead body and after autopsy the Medical Officer handed over the last-worn clothes of the deceased P.3 to P.7 to Muhammad Anwar F.C. who was with him. On 17-9-1987 this witness was entrusted one sealed parcel by the Moharrir and he delivered the same intact in the office of Chemical Examiner, Lahore.

7. P.W.7 Sabir Ali being an injured P.W. had supported the case of the been caused from 2/3 feet as opined by the doctor Khalid Yazdani P.W.3, was duly established by the settled principle of medical jurisprudence; whereas the testimony of P.W.7 suffers from a number of confrontations during his cross examination, which render his testimony of no consequence. In this respect, it may be pointed out, that, as stated above, his testimony regarding his having suffered the injury stated above from a distance of 18,/20 Karams i.e. the distance at which the accused party was from him, is contradicted by the medical evidence. Furthermore, P.W.7 Sabir Ali was confronted with his statement Exh.DA. when he denied having stated that he and Ibrahim had taken refuge in the nearby houses, and in respect of his not having stated that` the general people of the village had come at the spot and forbade the accused from firing; or that he had stated in the said Exh.D.A. that after the departure of the accused they had come into the lane. The said P.W.7 was further confronted and contradicted when he stated that the allegation of Lalkara was against all of them and not against Ibrahim, as it was recorded in Exh.D.C., that he had stated that Lalkara was only by Ibrahim. Therefore, for the safe administrat;on of justice the testimony of both these P.Ws. call for very careful scrutiny to determine the guilt or otherwise of the appellant as charged.

15. However, the evidence of the prosecution, through the said two eye witnesses nevertheless duly establishes that the accused/ appellant had opened fire on the complainant party with fire-arm and that Mst. Hameedan Bibi deceased had suffered a gunshot injury at the date, time and place of occurrence as charged. In this respect, further notice has been taken of the fact that fateful occurrence has taken place in a lane in which the firing at the complainant party was being made m the direction from which the deceased, Mst. Hameedan Bibi was following the said P.Ws. and had been hit by a shot fired by the accused/appellant accidentally without the intention of the accused/appellant being to hit or kill her, which is borne out by the description A of the injury suffered by the said deceased, as only a pellet was recovered from the said injury as stated by P.W.3, Dr. Khalid Yazdani in his testimony and that, therefore, it is hereby held that the deceased had died due to the firing by the accused/appellant as a result of stray pellet hitting her.

16. Therefore, the present criminal appeal is partly allowed and the conviction and sentence awarded to the appellant is hereby altered to B conviction under section 304, Part I, P.P.C. and the sentence to seven years' R.I., while maintaining the fine of Rs.5,000 or in default thereof one year's R.I. and compensation of Rs.5,000 or in default thereof six months' R.I. It is further directed that the entire amount of fine and the compensation, if recovered, shall be paid to the legal heirs of the deceased, Mst. Hameedan Bibi. The appellant shall be entitled to the benefit of the provisions of section 382-B, Cr.P.C.

17. In accordance with the terms stated above, the present criminal appeal stands disposed of.

18. In view of what has been stated above, Criminal Revision Nos.268 of 1989 and 420 of 1989, directed to be heard alongwith the present criminal appeal, are hereby dismissed. N.H.Q./T-84/L Order accordingly.