1996 PLP 1929 (SCMR)

SALEEM AKHTAR, J.

The appellants with the leave of the Court challenge the judgment of the learned Judge in Chamber, whereby conviction and sentence passed by the trial Court convicting Muhammad Khan, Rab Nawaz and Khalid Masood under section 302/34, P.P.C. was maintained. Talib co accused was acquitted.

2. According to the prosecution, Muhammad Khan, Rab Nawaz, Khalid Masood and Imtiaz (proclaimed offender), all armed with .12 bore guns, and Talib Hussain empty-handed came to the place of occurrence. Talib accused raised a Lalkara that they would teach lesson to Shaukat Abbas for the dishonour. On this Muhammad Khan fired with his gun directly towards Shaukat Abbas which hit him on the right leg. Then Khalid and Imtiaz (P.O.) fired with their respective guns which hit him on the right and left legs. He fell down on the ground. Rab Nawaz also fired at Shaukat Abbas deceased which hit him on his left leg. The motive alleged by the prosecution was'that Muhammad Khan accused had suspicion that Shaukat Abbas deceased had illicit relations with his sister Mst. Bevi the plea of Muhammad Khan accused is to the following effect:

"On the day of occurrence I was going to my Dera. I was holding gun of my brother-in-law who was coming behind me. When I reached near the garden of Khadim son of Kamal and saw my sister Mst. Bevi with the deceased in suspicious condition, I could not bear it, and with sudden provocation fired on the legs of deceased. None accused except me was present at the spot and no prosecution witness was present at the spot. Only to conceal the bad act of deceased, his relatives P.Ws. gave false evidence against me."

3. The learned counsel for the appellants contended that the Courts below have not considered the case of the defence in juxtaposition to the prosecution case. The learned counsel further contended that considering the nature and number of injuries this could be an act of only one person and it cannot be believed that five accused one after the other had caused one fire shot from their respective guns. Mr. Raja Abdul Ghafoor, learned ASC for the State contended that from the medical evidence it is clear that some persons had fired from close range and some from long distance and further the number of the injuries suggests more than one accused. The incident happened on 19-9-1989 at about 5-15 in the evening and the report was lodged at about 6-30 p.m. The police station from the place of incident is about 5 miles. This shows that F.I.R was properly lodged which rules out consultation, manoeuvring and false substitution. Nazim Hussain P.W.8, brother of the deceased, and Aijaz Hussain P.W.9 are the eye-witnesses who had made consistent statement and assigned specific role to the accused. Although only these P.Ws were related to the deceased, there does not seem to be any enmity with these witnesses. Their presence at the site was natural and correct. They alongwith the deceased had gone to the Fateha for Mst. Sattan, the wife of Muhammad Hayat, the brother of the complainant. It seems that they went out in the fields for easing themselves and while they were on the path the incident happened.

4. According to the medical evidence, there were six injuries suffered by the deceased. Blackening and tatooing was present around Injury No.1. Parts of cartridges and pellets were found from the wounds. All these six injuries could not have been suffered by the deceased by one shot. The doctor in cross- examination clearly stated that Injury No.1 and Injury No.5 which were described as a circular wounds 2 c.m. x 2 Lin. on the lower part of left leg with blackening and tatooing at the margins of wound could not be as a result of one shot. He further stated that when the deceased received Injury No. 1 the assailants would have been on the right side of the victim. As regards Injuries Nos. 2, 3, 4 and 5, the assailants would have been on the front side of the victim. Now taking the statement of appellant Muhammad Khan, we have to examine whether the case put up by the defence is probable and casts doubt in the prosecution case. The learned Judge in Chamber while examining this aspect of the case observed as follows:

"I find, defence version gets no support from any circumstantial or direct evidence. On the contrary, there is not an iota of evidence on the record, which could raise any reasonable suspicion in the mind of the Judge, that defence version might be true. No blood was found at the place where deceased allegedly received injuries at the hands of Muhammad Khan appellant. Mst. Bevi did not get even a single pellet injury which could give any credence to the defence version that she was seen in suspicious circumstances with the deceased. The presence of four different crime empties at the spot, which were taken into possession immediately by the 1.0, completely demolish the defence plea."

5. The learned Judge has made correct appreciation and analysis of the case and considered the defence plea in juxtaposition to the prosecution case and has arrived at a correct conclusion. We do not find any merit in the appeal which is dismissed. N.H.Q./R-268/S Appeal dismissed