1994 P Cr (PLP)

(2) Abrasion 2-1/2 c.m. x 3/4 c.m. right leg front. (3) Abrasion 2-1/2 c.m. x 3/4 c.m. on the left ankle joint inner side. (4) Abrasion 2-1/2 c.m. x 3/4 c.m. left leg front. According to him, there was injury to skull, scalp, membranes and brain as mentioned under injury No.l. Pellet pierced right tample, right side skull, crossed the brain matter and recovered from inner surface of left side skull. On opening the thorax, every thing was found normal, left side of the heart empty while right chamber contained blood. Stomach contained about 8 ounces of semi-digested food and was normal. Large intestine contained faecal matter. Urinary bladder was full of urine. He had deposed that injury No.l was sufficient to cause death due to shock and haemorrhage in an ordinary course of nature, caused by fire-arm. All the other injuries were caused by blunt weapon. Time elapsed between the injuries and death was instantaneous and between death and post-mortem about 18 to 20 hours. Exh.P.D. was the correct carbon copy of his post-mortem report while Exh.P.D./1 was the sketch of injuries.

6. On the same day. P:W.3 had conducted the post-mortem examination on the dead body of Sarwar deceased at 8-00 a.m. which was also brought to him by Muhammad Sharif and Jahangir, Constables. It was the dead body of a healthy young man aged about 35/36 years, wearing shirt, Shalwar, Bunyan and a Parna. Mouth and eyes were semi closed. Rigor mortis was present. Post mortem staining at dependant parts of the body was present. He found the following injuries on the dead body:-- (1) Fire-arm lacerated wound 3/4 c.m. x 3/4 c.m. x D.N.P. front right shoulder injuring upper part of right lung thoracic aorta ands the pellet recovered from inner side of left thoracic wall. In his opinion injury No.l was sufficient to cause death due to shock and haemorrhage in an ordinary course of nature. Injury was ante-mortem and was caused by fire-arm. The time elapsed between injury and death was instantaneous and between death and post-mortem about 18 to 20 hours. Exh.P.E. was the correct carbon copy of the post-mortem report and Exh.P.E./1 was the sketch of injury. The inquest report of Mahand Khan Exh.P.F. and the inquest report Exh.P.G. were also signed by this witness.

7. P.W.4 Jahangir Khan, Constable on 14-7-1986 after receiving the sealed parcels containing blood-stained earth from the Moharrir had deposited the same to the office of Chemical Examiner on the same day. P.W.5 Akbar Ali, A.S.I. had arrested Abdul Ghani and Parvez Ahmad accused on 21-10-1986. P.W.6 Muhammad Farooq, being Moharrir of the police station concerned had kept the sealed parcels containing blood-stained earth in the safe custody of police Malkhana, and on 14-7-1986 had handed over the said parcels intact to Jahangir Khan, Constable for onward transmission to the office of Chemical Examiner, Lahore.

8. P.W.7 Muhammad Hanif, being the complainant, had reiterated the contents of the F.I.R. P.W.8 Muhammad Aslam, being an eye-witness of the occurrence had corroborated the statement of P.W.7 in all respects.

9. P.W.9 Muhammad Shafi had identified the dead bodies of Mahand Khan and Muhammad Sarwar deceased at the time of post-mortem examination before the Medical Officer. He was also the recovery witness of .12 bore guns P.9, P.10 and P.11, which were recovered from Muhammad Arif, Khalid and Javed accused and were taken into possession vide memos. Exh.P.K., Exh.P.L. and Exh.P.M., respectively, duly attested by him.

10. P.W.10 Javed Ali, Inspector had recorded the F.I.R. Exh.P.H. on the dictation of Muhammad Hanif complainant and had conducted the investigation of the instant case.

11. The prosecution had given up Muhammad Sharif alias Bawa and Abdul, Ghafoor P.Ws. as having been won over and Ali Abbas P.W. as being unnecessary, and after tendering in evidence the reports of the Chemical Examiner as Exh.P.P. and Exh.P.Q. and those of the Serologist as Exh.P.R. and Exh.P.S. had closed its case.

12. In their statements recorded under the provisions of section 342, Cr.P.C. the appellants and their acquitted co-accused had denied the allegations levelled against them, pleaded their innocence and contended that they had been falsely implicated in the case due to previous enmity. Khalid Mehmood appellant had further contended that the actual position was that Hanif complainant and his brother Habib started firing first at Muhammad Sharif and,his sons who were accused in cross-case registered under section 307/148/149, P.P.C. and that both the deceased persons had come within the range of their firing and got hurt and ultimately died. Javed appellant and Muhammad Arif acquitted co-accused had also taken up the same plea. All the other acquitted co-accused had contended that they were not present at the spot and had been falsely implicated due to enmity. They had also deposed that they had been found innocent by the Investigating Officer during the investigation. None of the accused including the appellants, had made statement on oath. They also did not produce any evidence in their defence.

13. The learned trial Court after taking into consideration all the facts and circumstances of the case and having gone through the evidence on he record, had convicted and sentenced the appellants, while acquitting their co-accused, as stated above, but refrained from awarding the death sentence on the ground that the motive was not proved.

14. The learned counsel for the appellants and the State were heard at length and the record of the case perused with their assistance.

15. Admittedly, it is the case of the prosecution itself that the complainant party was aggressor and had caused injuries to Muhammad Yousaf and Tariq, who are father and brother of Khalid Mahmood appellant respectively. In this respect, it may be pointed out that Muhammad Aslam P.W.8 brother of Sarwar deceased had conceded to that effect during his testimony before the learned trial Court by stating that a cross-case under section 307/148/149, P.P.C, had been registered against the given up P.W. Sharif Bawa and his sons Asghar and Afzal (given up P.W.) and Akbar and Ghafoor (given up P.W.). Similarly, it has further come on the record through the testimony of P.W.10 Javed, Inspector of Police that the investigation of the police had come to the conclusion that the firing had been started by the complainant party at first. Therefore, the argument of the learned counsel for the appellants, to the effect that-the complainant party being aggressor as established by the evidence on) the record,. prevails, and it is hereby held that the case of the appellants is duly covered by exception 4 to section 300, P.P.C., consequently, it is further held A that the case of the appellants is duly covered by the provisions of Part I of section 304, P.P.C., and resultantly the charge of murder of Sarwar deceased against appellant No.l Khalid Mehmood and charge of murder of Mahand Khan deceased against appellant No.2 Muhammad Javed are hereby converted to culpable homicide not amounting to murder. In this respect, further notice is taken of the fact that according to the prosecution evidence itself, the occurrence had taken place all of a sudden and resulted in free fight, in which B both the parties had used fire-arms, and the complainant party being first to do so, was aggressor as noted above. In this respect, the learned counsel further pointed out that the learned trial Court had come to the same conclusion:- "that the complainant party was first to open firing as a result of which Muhammad Yousaf and Tariq of the accused party were injured, which had become the immediate cause of occurrence, that had led to the free fight between the parties", as stated above. The learned counsel for the appellants further pointed out that the State had not challenged the said findings of the learned trial Court in any manner whatsoever.

16. Therefore, pursuant to the above discussion, the present criminal apps is partly allowed and the conviction of the appellants is hereby converted to one under the provisions of section 304, Part I, P.P.C. and the sentences awarded to the two appellants are hereby reduced to the period already undergone by them; as the appellants have already suffered substantive imprisonment of over 7 years, 8 months and 26 days. The appellants shall be released forthwith, if not required to be detained in any other case. N.H.Q./K-141/L Order accordingly.