1990 PLP 1043 (MLD)

5. Dr. Naeem Zad Gul, conducted the post‑mortem examination on the dead body of Akram Jan deceased on 28‑5‑1986 at 11‑45 p.m. and found the following injuries on external examination:‑‑ (1) A firearm exit wound " in diameter on the medial aspect of right thigh in the central portion. (2) A corresponding firearm entry wound at the back of right thigh on medial side 1/8" in diameter in the central portion. (3) A firearm entry wound 1/8" in diameter on dorsal aspect of right forearm 2" above the wrist joint. (4) A corresponding firearm exit wound " in diameter on the palmer aspect of right forearm 3" above the wrist joint. (5) A linear firearm entry wound " in length at the back 2" to the left arm first lumber vertebrae. (6) A firearm exit wound on front of right chest in the 5th intercastal space about " from the sternal border " in diameter. On internal examination the abdomen walls, peritonium, diaphragm, small intestines and liver of the deceased on the right lobe were found injured. The doctor also found the thorax walls, pleurae, right bung, pericardium, heart and blood vessels of the deceased injured. The muscles were also injured. In the opinion of the doctor the deceased died of injuries caused to the vital organs of the deceased by firearm means. Time between injury and death was 5 to 15 minutes and between death and post‑mortem examination was 1 to 2 hours.

6. In support of its case the prosecution examined as many as 11 witnesses against the accused including Sultan Mir, PW9, and Taj Mohammad alias Mohammaday, P W10, as eye‑witnesses to the occurrence. Itbar Khan, appellant, when examined at the trial under section 342, Cr.P.C., denied the charge and pleaded not guilty. He also refused to be examined on oath under section 340, (2), Cr.P.C.

7. We have heard the learned counsel for the parties and have also gone through the record of the case.

8. Sultan Mir, PW9, and Taj Muhammad alias Mohammaday, P W10, have furnished the ocular account in the case as eye‑witnesses to the occurrence. Sultan Mir, PW9, who is also lodger of the First Information Report, has stated in his statement that on the day of occurrence he alongwith Akram Jan, deceased, and Taj Muhammad alias Mohammaday, P W10, had gone to the shop of Mohammad Jamil and Itbar Khan, where Akram Jan, deceased, enquired about his pair of chappals for which he had placed order with the accused. Jamil Khan, accused, told him that he has not yet made his pair of chappals. Akram Jan, deceased, told accused Jamil Khan that only few days are left to Eid and he being a busy person could not visit his shop again and again. Upon this, an altercation took place between Jamil Khan (acquitted accused) and deceased Akram Jan. Accused Jamil Khan took a piece of wood (used by the cobblers for cutting the leather) and gave a blow to Akram Jan deceased on his shoulder. Subsequently, accused Itbar Khan took out a pistol and fired 6/7 shots at the deceased as a result of which Akram Jan deceased got hit and fell down. More or less to the same effect is the statement of Taj Mohammad alias Mohammaday, P. W.10. We have therefore carefully examined the statements of both the eye‑witnesses. Of course, both of them have been subjected to a lengthy cross‑examination by the defence side, but still the defence side has miserably failed to shatter their testimony in any manner except a few minor discrepancies which are quite expected for the reason that when a person is examined after a long time, such minor discrepancies in his statement would be noticed as a result of lengthy cross‑examination. So far as the material aspects of the case are concerned, the eye‑witness account is compatible with the other circumstantial evidence of the case. No doubt, Jamil Khan, acquitted‑accused, got benefit from the medical evidence as P W8 Dr. Naeem Zad Gul did not find any injury on the person of the deceased caused by blunt means, but so far as the role attributed to the present appellant is concerned, the medical evidence is in confirmity with the ocular account of the occurrence, which fact clearly establishes the guilt of the convict‑appellant.

9. It is true that the eye‑witnesses are related to the deceased but it is equally true that the eye‑witnesses are also having relations with Itbar Khan, convict‑appellant. Sultan Mir, P W9, has stated in his statement that, "one Munir is the real brother of accused Itbar Khan and my sister is married to said Munir Khan". Furthermore, the defence side has also failed to establish any previous enmity between the deceased and the accused‑party. So, there is nothing to discredit the testimony of the eye‑witnesses with regard to the occurrence in G question, as both the eye‑witnesses have supported the prosecution case on material particulars.

10. The objection of the learned counsel for the appellant that the FIR was lodged after preliminary enquiry is also without force. The time of occurrence as given in the FIR is 2215 hours whereas the report of the complainant was I recorded at 2245 hours, so the FIR has been lodged with promptitude and it cannot be said that the same was recorded after preliminary investigation. The other materials available on record also do not create any doubt about the time of occurrence.

11. With regard to the denial of Itbar Khan, convict‑appellant, that he has no concern with the shop where the occurrence took place, it may be mentioned here that in presence of the recoveries made from the spot as well as the site‑plan about the venue of occurrence, no importance can be attached to the alleged weightless objection as from the material available on file, it can be held without any doubt that the occurrence had taken place at the shop in question. Apart from this, from the cross‑examination of P W9 and P W 10 it is also evident that both the accused were running the shop of chappals where the occurrence took place.

12. Hence, from the evidence available on record it is proved beyond any shadow of doubt that Itbar Khan, convict‑appellant, is guilty of the charge for the murder of deceased Akram Jan and, for the reasons stated above, the question of his false involvement does not arise. We also find ourselves in agreement with the conclusion of the learned trial Judge that the occurrence took place as a result of sudden altercation on part of the accused without any previous enmity, therefore, the major penalty of death was not warranted in such circumstances. Thus, the learned trial Judge has rightly convicted and sentenced the convict‑appellant and we maintain the conviction and sentences awarded to him by the learned trial Judge in his judgment dated 4‑12‑1988. In the result the appeal is dismissed. N.H.Q./981/P Appeal dismissed.