1987 PLP 3163 (MLD)

(1) Circular wound 1 c.m. diameter in front of neck right side lower part. Margins of wounds were inverted. Wound was directed backward, down ward and had entered chest cavity. Apex of right lung was perforated and left chest cavity contained blood. Jugular and carodic blood vessels were lacerated on the right side. (2) Two circular wounds 1 c.m. diameter each outer side of right arm. Margins of the wounds were inverted, with exit wounds back of the right arm. (3) Circular wound 1 c.m. diameter in front of right arm. Margins were inverted with exit wound inner side of right arm. (4) Circular wound 1 c.m. diameter back of right arm lower part. Margins were inverted with an exit wound in front of right elbow. (5) Circular wound 1 c.m. diameter in front of left arm. Margins were inverted with exit wound inner side of the left arm. (6) Circular wound 1 c.m. diameter outer and upper part of the left palm. Margins were inverted with and exit wound back of left thumb- (7) Circular wound 1 c. m. diameter left iliac region. Margins inverted. Wound was directed back-ward and had entered the abdominal cavity. Intestine and left vessels were perforated. (8) Contusion 2 x 3 c.m. on left shoulder. (9) Abrasion 1 x 1 c.m. back of left below. On dissection right pleura was found perforated. The death was due to shock and haemorrhage as a result of the injury No. 1 which was sufficient, in the ordinary course of nature, to cause death. All the injuries had been caused by fire-arm. The death was immediate after receipt of injuries and the post-mortem was conducted after about one day of death.

4. A.S.I. Zafar Ali Khan P.W.13 during inspection of the spot on 6-12-1981 collected blood-stained earth from the place of occurrence, vide memo Ex. P.A. He also took in possession crime empties P.1 and P.2 from the place of occurrence at the same time vide memo Ex. P.B. attested by Ghulam Hassan P.W.2 and Muhammad Hanif P.W. not examined. The accused were arrested on 21-12-1981. Muhammad Arif alias Bahari accused on 26-12-1981 while in police custody led to the recovery of D.B. gun P.10 from his house, belonging to his brother Ghulam Nabi, which was taken in possession by S.I. Shafqat Bari. P.W.14 vide memo Ex. P.G in presence of Shaukat Ali P.W.11 and Muhammad Latif P.W. not examined. On the same day at about the same time in presence of the same witnesses Maqbool Hussain got recovered Sota P.11 vide memo Ex. P.H. and Muhammad Sarwar got recovered Sota P.12 vide memo Ex. P.J. These were not stained with blood. The two crime empties P.1 and-P.2 were kept in safe custody by H.C. Muhammad Tufail P.W.10 in police Malkhana. On 12-12-1981. He handed over these crime empties to F.C. Muhammad Suleman P.W.15 who delivered them intact in the office of Director Forensic Science Laboratory. The gun P.10 was kept intact in the police Malkhana by H.C. Muhammad Sadiq P.W.4 on 26-12-1981. He handed over this gun on 30-12-1981 to F.C. Gohar Ali P.W.5 who delivered the same intact in the office of Forensic Science Laboratory Lahore. The Director Forensic Science Laboratory Lahore vide the report Ex. P.S. opinea that the left barrel of gun P.10 was not in working order and that both the crime empties P.1 and P.2 had been fired from the right barrel of the gun Ex. P.10. Investigating Officer took in possession copy of the judgment Ex. P.T. in case State versus Ghulam Hussain under section, 307/326 P.P.C. regarding murderous assault on Arif Ali accused (complainant in the said case) by Ghulam Hussain deceased. The accused were challaned after completion of investigation.

5. In support of this case prosecution examined 15 witnesses in all. P.W.7 Ghulam Muhammad and P.W.8 Ghulam Murtaza were examined as eye-witnesses of the occurrence. Abdul Ghafoor another eye-witness named in the F.I.R. was given up as unnecessary. The incriminating recoveries from the place of occurrence were witnessed by Ghulam Hassan P.W.2. The recovery of gun P.10 was supported by Shaukat Ali P.W.11 and S.I. Shafqat Bari P.W.14. The medical evidence was furnished by P.W.3 Dr. Muhammad Ashraf as given in detail above. The evidence of the rest of the witnessed was of formal nature. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They did not produce any evidence in defence. Muhammad Arif accused denied his relationship with Mst. Habibo. He also denied that Ghulam Hussain deceased had illicit relations with her. He denied his earlier quarrel with Ghulam Hussain deceased and stated that he had given secret information to police about theft of the gun of his father. He further stated that Ghulam Muhammad P.W. was inimical towards him; that Ghulam Hussain deceased was a criminal and had many enemies and that he was killed by some unknown person. The learned trial Judge came to the conclusion that motive against Arif accused stood proved. He placed reliance on the evidence of eye-witnesses and incriminating recoveries and convicted the appellant as stated above.

6. In support of this appeal it is contended that the medical evidence was not in line with the ocular account furnished by the eye-witnesses. It is, therefore, argued that prosecution has failed to prove its case against the appellant. We have considered this contention. The learned counsel pointed out firstly that according to the medical officer injury No. 4 could be caused from back and that the injury No. 1 could not have been caused if the accused and the deceased were standing facing each other. We have considered this contention and find the same without any merits. It is in evidence, that after Lalkara by the accused Ghulam Hussain deceased started running to save his life. He was chased by the accused. He was, encircled by the two co-accused of the appellant who then fired two successive shots at .the deceased. It is not the case of prosecution .A that the deceased throughout remained stationary when he was fired' at by Muhammad Arif accused. He was a moving object. Muhammad! Arif fired two successive shots at Ghulam Hussain deceased. Injury No. 4 was on the back of right arm lower part. It had its exit wound in front of right elbow. The arm was again a moving object. There is nothing in evidence to show the exact position of the deceased at the time of receipt of injury No.

4. In our, view it was not necessary that the shot resulting in injury No. 4 must have been fired from back of the deceased. The injury No. 1 was directed backward, down ward and had entered the chest cavity. It injured the apex of right lung and perforated the left chest cavity. It will be noticed that the downward trend of the course of the bullet was not sharp. It travelled, very slightly downwards from the wound of entry. It is possible than the deceased might have slightly bent himself to avoid hitting by the fire shot at the time of receipt of injury No. 1 on his person. In our view medical evidence is in no way in conflict with the ocular account of the case.

7. The recovery of two crime empties was witnessed by P.W.2 Muhammad Hassan on 6-12-1981 during inspection of the spot by the police. He is resident of village Wan Khara. He was not related tj the deceased. He had no enmity with the accused. He was an independent witness. The recovery of gun P.10 at the instance of Muhammad Arif appellant was witnessed by Shaukat Ali P.W.11. He was not related to the deceased nor had any enmity with the accused. He was also an independent witness. The gun P.10 was a licensed gun in the name of Ghulam Nabi, a brother of Muhammad Arif appellant. As stated above the crime empties were sent to the Director Forensic Science Laboratory on 12-12-1981. The gun was recovered on 26-12-1981 i.e. 14 days thereafter. The gun was received in the Forensic Science Laboratory on 30-12-1981. According to the report of Fire Arm Expert Ex. P.S. the two crime empties were found to have been fired from right barrel of the gun P.10. These incriminating recoveries and the report of Fire Arm Expert Ex. P.S. fully corroborate the eye-witness account of this occurrence.

8. The prosecution examined P.W.7 Ghulam Muhammad and P.W.8 Ghulam Murtaza as eye-witnesses of the occurrence. Ghulam Murtaza P.W.8 is real brother of Ghulam Hussain deceased. Ghulam Muhammad P.W.7 is not related to the deceased. He had no enmity with the, accused. He is an independent witness. The learned counsel contended that these witnesses should not be relied upon because the re-loading of the gun by Muhammad Arif accused at the spot is neither mentioned in the F.I.R. nor in their statements during the trial. Secondly, that in the F.I.R. as well as in their statements these witnesses made no mention of the presence of the crime empties at the spot. Thirdly, that according to P.W.7 Ghulam Muhammad the Javi crop was nine inches high while according to P.W.9 Muhammad Yousaf there was no crop at that time, and finally that the deceased had many enemies who could have murdered him when no one of the witnesses was present there. We have considered these contentions. The fact that the F.I.R. or the statements of two eye-witnesses do not contain any mention of the re-loading of gun by Muhammad Arif, or presence of the crime empties at the spot would not mean that these witnesses were not present to witness the occurrence. These were minor details. It was not necessary for the complainant to mention them in the F.I.R. It was also not necessary for these witnesses to enter in such details in their statements during trial. It is correct that the deceased had other enemies in the village but there is no circumstances in support of the argument that the real culprits were substituted by Muhammad Arif appellant. The occurrence took place at about 11 a.m. The statement Ex. P.E. was recorded within 1 hours at 12.30 noon and the formal F.I.R. was recorded at the police station at 1.40 p.m. i.e. within three hours of the occurrence. Both the eye-witnesses belonged to the village where this occurrence took place. Ghulam Muhammad P.W. is an independent witness. Ghulam Murtaza though a brother of the deceased had no enmity of his own to falsely implicate Muhammad Arif in this case. Both the eye-witnesses) find corroboration to their evidence from incriminating recoveries and; the medical evidence. Learned counsel argued that Ghulam Murtaza P.W.8 was posted at Chung District Lahore many miles away from the place of occurrence and as such was not in a position to within this occurrence. This argument is without any basis because it was stated by Ghulam Murtaza P.W.8 that he had come on three days leave t G his village at the time of occurrence. His presence can, therefore, not be doubted. We do not find any circumstance to exclude the evidence of these two witnesses from consideration.

9. The motive in this case was that on 20-1-1978 Ghulam Hussain deceased had made a murderous assault on Muhammad Arif accused appellant. He was prosecuted and convicted vide judgment Ex. P.T. dead 8-7-1979. He served imprisonment and came out of jail about 1 year before this occurrence. Muhammad Arif, therefore, had a motive to murder Ghulam Hussain deceased. However, we find that the prosecution has failed to bring on record any immediate motive of l, this occurrence. The prosecution case is that Ghulam Murtaza P.W. alongwith his son Abdul Ghafoor and his brother Ghulam Hussain deceased was proceeding to village Doba when Muhammad Arif and his co-accused appeared at the scene of occurrence. It, therefore, appears to us that this was chance meeting of the parties when I Muhammad Arif accused fired two shots at Ghulam Hussain deceased to take revenge of knife injuries caused to him some time earlier by the deceased.

10. In view of the above discussion the conviction of Muhammad Arif alias Bahari appellant under section 302, P.P.C. is maintained. The immediate motive of the occurrence being not available on record we reduce his sentence to imprisonment for life. Muhammad Arif alias Bahari accused is sentenced to imprisonment for life plus fine of Rs. 5,000 or in default two years R.I. under section 302, P.P.C. The entire amount of fine, .if recovered, will be paid as compensation to the heirs of the deceased. The sentence of death is NOT CONFIRMED. The appellant will be allowed benefit of section 382-B, Cr.P.C. With the above modification Crl. Appeal No. 703 of 1984 is dismissed. S. A./M-419/L Sentence altered.