1987 PLP 1131 (MLD)

(ii) A fire-arm wound 4 x 3 c.m. into bone deep on back of left hand of the base of left index finger crushing of soft tissues and bone. Wound of entry an exit could not be distinguished. (iii) A fire-arm wound with blackening of margins 3 x 0.5 c. m. x skin deep on front of left upper arm near elbow. All the injuries were caused by fire-arm. Injury No. 1 was dangerous to life and the rest were kept under observation. On 12-6-1981 the same doctor conducted the autopsy on the dead body of Haq Nawaz and found the same injuries on it. On opening the abdomen, peritcnium .vas found punctured under injury No.l, diaphram w-as perforated on right side near the liver, small intestines and large intestine were found punctured at multiple places. Liver and right kidney were injured. In the opinion of the doctor death was clue to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 2 was grievous and No. 3 was simple. On 11-6-1981 the same doctor examined Zulfiqar P.W. and found three abrasions and two contusion marks on his person. The abrasions were on right hand, right forearm and left wrist and contusion marks on right leg and left upper arm. All the injuries were simple in nature, caused by blunt weapon. On the same day Dr. Ismat Begum, W.M.O., DHQ Hospital, Jhang, examined Mst. Noor Bibi P.W. and found a bruise mark on the back of her right forearm and another similar mark on right arm middle part. Both the injuries were simple in nature caused by blunt weapon. 5 In support of its case the prosecution examined three eye-witnesses, namely Zulfiqar (P.W. 10), Mst. Nur Bibi (P.W.11) and Shah Beg (P.W.12). The prosecution also relied on the dying declarations (Exs.P.J. and P.D./1) and recovery of weapons from Mazhar appellant and acquitted accused Nasir and Akhtar.

6. The accused persons pleaded not guilty to the charge and denied the prosecution allegations against them. Mazhar appellant when asked why this case against him, made the following statement:- "On the night preceding the day of occurrence my brother Nasir and Mali Qurban were irrigating our fields. During our turn on the said night Zulfiqar P.W. and Haq Nawaz deceased diverted water of our Wari to their own field. My brother Nasir and Qurban when went to the said field for checking the irrigation of our field they had an altercation with Zulfiqar P.W. and Haq Nawaz deceased for the diversion of our Wari. Haq Nawaz and Zulfiqar assaulted Nasir with their Kassis. To save the life of Nasir, our Mali Qurban who had a gun, fired which hit Haq Nawaz deceased, In the same altercation, Zulfiqar ,P.W. also sustained some injuries. Mst. Noor Bhari was not there at all. None of the other P.Ws. in this case was present at that time. For this reason Zulfiqar and Haq Nawaz have implicated all the male members of my family, falsely in this case." He produced certified copies of Khasra Girdawari Ex.D.D. and Ex.D.E. and a certified copy Ex.D.F. of the contour plan maintained by the Irrigation Department. 7-8. After examining the evidence on record, the learned trial Judge observed that according to the dying declaration Ex.P.J. and P.D./4 and the statements of P.Ws. Zulfiqar and Mst. Noor Bibi the occurrence took place at the Behk of the complainant party but this version was belied by the documentary evidence on the record. He, therefore, declined to accept the dying declarations Exs.!P.J. and P.D. /4 and the evidence of Zulfiqar and Mst. Nur Bibi with regard to the place of occurrence. He further observed that a large number of relatives of Haq Nawaz accompanied him to the hospital and possibility of his having been tutored at least with regard to the number of accused could not be ruled out though at the same time he could not be said to 'haqe substituted his actual assailant Mazhar for some body else'. He accepted the prosecution version of the motive and came to the conclusion that due to previous heart-burning a scuffle took place per chance between Haq Nawaz and Zulfiqar on one side and Mazhar and his co-accused on the other during which Mazhar fired at Haq Nawaz resulting in his death while the role attributed to other accused was somewhat doubtful. He, therefore, convicted and sentenced Mazhar appellant as mentioned above and acquitted the remaining accused by giving them the benefit of doubt.

9. Learned counsel for the appellant did not press the defence plea but he vehemently contended that the prosecution evidence regarding the place of occurrence and injuries of Zulfiqar and Mst. Nur Bibi having been disbelieved, it should not have been relied upon against the appellant. In the alternative, he submitted that the sentence awarded by the trial Court is excessive. The learned counsel for the complainant submitted that the offence committed by Mazhar accused was covered under section 302, P.P.C. and the acquittal of the remaining accused was fanciful. The learned trial Judge has rightly observed that in the dying declarations Ex.P.J. and P.D. /4 the deceased had stated that the occurrence had taken place in the Behk of the complainant party. It is however, not true that Zulfiqar P.W.10 and Mst. Noor Bhari P.W.11 had also made similar statements with regard to the place of occurrence. The observation to that effect is based on misreading of evidence. Zulfiqar P.W.10 stated that Haq Nawaz was present on the bank of the 'Canal minor' and the accused persons also came there and attacked him. Mst. Noor Bhari stated that the deceased was standing 'at the place of occurrence' and she was near the said place when the accused persons came there. However, the statements of these two P.Ws. regarding the field in which the Behk had been set up are contradicted by other evidence available on the record. According to Zulfiqar complainant the said Behk was towards the south of 'canal minor' in Killa No. 5 of Square No. 81 which belonged to Haji Zulfiqar P.W. Mst. Noor Bhari also stated that the Behk was in the land of aforesaid Haji Zulfiqar. In the site plans Ex.P.L. and P.L./1, the B-:1K is shown at point (?) situate on the northern side of the canal ;minor). Ahmad Nawaz Patwari categorically stated that there was no Behk in Kills. No. 5 of Square No. 81 belonging to Zulfiqar aforementioned. Zulfiqar P.W. and Mst. Noor Bhari thus appear to have made a mis-statement with regard to the location of the Behak but this fact per se is not a sufficient ground for rejecting their evidence in toto. However, the statement of Mst. Noor Bhari suffers from other inherent defects and I have chosen not to rely on it. According to the prosecution, she had gone to the field for assisting her sons in cutting fodder. According to her own showing she was about 80 years of age. It is doubtful that she was in a position to render any assistance to her sons in cutting the fodder. Her statement shows that she was tutored before she entered, the witness-box. She stated that her memory was refreshed by reading out her police statement outside the court-room. In the circumstances, her statement is kept out of consideration.

10. Presence of Zulfiqar P.W. at the spot is admitted even by the defence arid Shah Baig P.W. had absolutely no motive to offer himself as a false witness against the accused. However, their statements regarding the role of acquitted accused suffer from contradictions. According to prosecution, acquitted accused Nasir was armed with Kassi, Akhtar with a Wahola and Shoaib with a Lathi and all the three caused injuries to Zulfiqar P.W. with those weapons, while Nasir and Akhtar also injured Mst. Noor Bhari with their weapons. According to the medical evidence, all the injuries of Zulfiqar and Mst. Noor Bhari had been caused by blunt weapon. At the trial both of them stated that Nasir and Akhtar used their weapons from the wrong side. They were confronted with their statement before the police wherein it was not so recorded. Having gone through the evidence on the record, I agree with the learned trial Judge that possibility of deceased having exaggerated the number of accused cannot be ruled out but there is no reason to believe that he would substitute Mazhar appellant for some one else. If Qurban Mali had fired at the deceased as alleged by Maztiar appellant, there could be no reason for the deceased to spare him and substitute the appellant for him. Thus, there is no possibility of defence version being true. There is no evidence regarding the immediate cause bf the occurrence. It appears that a scuffle took place between the parties per resulting in this unfortunate occurrence. The conviction of appellant under section 304, Part I, P.P.C. is, therefore, maintained. The sentence of imprisonment for life is excessive and is reduced to R.I. for 10 years and a fine of Rs.10,000 or in default in the payment thereof to undergo further R.I. for two years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The appellant shall also be given the benefit of section 382-B, Cr.P.C. The appeal stands disposed of accordingly. For the reasons stated above, Cr. R. No.258 of 1984 fails and is dismissed. M.Y.H./M-353/L????????????????????????????????????????????????????????????????????????? Order accordingly.