1986 PLP 2472 (MLD)

(2) A lacerated wound 1 c. m. x 1 c. m. with inverted and blackened margins of the left side root, of neck. This was wound of entrance. (3) A lacerated wound 1 c. m. x 1 c. m. with inverted margin on the back of left chest in upper most part 5 c.m. behind injury No.2. This was wound of exit. (4) An abrasion 3 c.m. x 2 c.m. on the outer aspect of left knee. On internal examination skin muscle, pericardium, heart, left auricle of heart were found injured through fourth intercostal space under injury No.1 which had pierced the heart through and through. one pellet was removed from the chest cavity. The remaining injuries 2 to 4 were superficial and were of simple nature: Injury No.4 was by blunt weapon. Injury No.3 was an exit wound. Injury No.2 was by fire-arm and simple in nature. Injury No.1 was by fire-arm and fatal. The death occurred due to shock and haemorrhage as a result of injury. No.1 which was sufficient to cause death in ordinary course of nature. The medical officer opined that the possibility of injuries having been caused by two fires was very remote. In his view the fire had been shot from a distance of 8 to 12 yards.

5. S.I. Muhammad Aslam P. W.14 during inspection of spot on 4-9-1981 collected blood-stained earth vide memo. Exh. P.E.in presence f Juma Shah P.W.7 and Nehala P.W. (not examined). S.I. Muhammad Aslam also took in possession one crime empty P.6 from near stairs and one crime empty P.7 from the courtyard of the house of Subey Din accused vide memo Exh. P.E on 14-9-1981 in presence of some witnesses. On the same date and time S. I. Muhammad Aslam took in possession crime empty P.8 from near the door of the house of Subey Din accused vide memo Exh. P:G. in presence of the same witnesses. Subey Din accused was arrested on 25-9-1981. He produced his licensed gun P.9 on the same day which was taken in possession by S.I. Muhammad Aslam P.W.14 vide memo. Exh.P.H. in presence of Mallar Khan P.W.8 and Ibrahim P.W. not examined. Asif accused was arrested on 10-11-1981. He on that date while in police custody led to the recovery of unlicensed gun P.10 from his house which was taken in possession by S.I. Muhammad Aslam P.W.14 vide memo. Exh.P.I in presence of Mallar Khan P.W.8 and Muhammad Ibrahim (not examined). The crime empties were delivered by F.C. Munir Ahmad P.W.5 intact in the office of Director Forensic Science Laboratory on 20-9-1981. The gun P.9 was delivered in the said office on 27-10-1981 by F. C. Ghulam Hussain P.WA. The gun P.10 was delivered in the said office by F. C. Muhammad Sharif on 22-11-1981. The Director Forensic Science Laboratory vide his report Exh.P.Q. opined that one of the three crime empties was found .to have been fired from gun P.9. He vide report Exh.P.R. reported that no one of the three crime empties was found to have been fired from the gun P.10. The accused were challaned after completion of the investigation.

6. The prosecution in support of its case examined 15 witnesses in all. P.W.11 Ghulam Rasul son of Hera, P.W.12, Mehdi Shah and P.W.13 Ghulam Rasul son of Salar were examined as eye-witnesses. Aas Muhammad and Jassa two eye-witnesses named in F.I.R. were, however, given up as unnecessary. The incriminating recoveries from the place of occurrence were witnessed by Mehdi Shah P. W.7 and the recoveries of. crime weapons from the accused were witnessed by Mallar Khan P.W.8. The medical evidence was furnished by P.W.1 Dr. Mumtaz Ahmad Bhatti as given in detail above. The case was investigated by S. I. Muhammad Aslam P.W.14. The evidence of the rest of the witnesses was of formal nature. The accused when examined after completion of prosecution evidence denied the charge and pleaded innocence. Subey Din admitted the recovery of gun P.9 and claimed the same to be his licenced gun. The recovery of gun P.10 was denied. The accused attributed this case due to enmity and did not produce any evidence in defence. The learned trial Judge did not place reliance on the evidence of incriminating recoveries. In his view Ghulam Rasul son of Hera complainant was not present at the spot at the time of occurrence. He placed reliance on the evidence of Mehdi Shah P.W.12 and Ghulam Rasul son of Salar P.W.13 and the evidence on motive and convicted the accused as stated above.

7. I have perused the record of this case with the assistance of learned counsel for the appellants and the State. It is contended on behalf of the appellants that Mehdi Shah P. W.12 and Ghulam Rasul P.W.13 should not be believed because they were named as eye-witnesses by P.W.11 Ghulam Rasul complainant who was disbelieved by the trial Court. Secondly that the blood-stained earth was taken in possession vide memo. Exh.P.E. from the house of Subey Din accused as is clear from the recovery memo. and as such the prosecution story that Rehmat Ali received injuries on the roof of his house was not correct, and finally that the medical evidence was in conflict with the ocular account of the case. The learned counsel for the State controverted these contentions.

8. P.W.11 Ghulam Rasul son of Hera complainant is a cousin of Rehmat Ali deceased. It was admitted by him in cross-examination during the trial that some time before the occurrence his horse had been stolen. He reported the matter to police and the culprits made statement that during the theft they had stayed with Subey Din. He further admitted that there was a Punchayat and Subey Din accused offered 10 Tolas of Gold to Punchayat as security of his innocence. He is, therefore, admittedly interested witness against the accused. The occurrence took place at 5/6 p.m. and the statement Exh.P.J. was recorded at 11-50 p.m. i.e. after about 6/7 hours of the occurrence. If Ghulam Rasul P.W. had been present at the spot, he must have left the place of occurrence for police station immediately. He has not offered any plausible explanation of late departure to the police station. In my view, he was rightly disbelieved by the trial court. Mehdi Shah P.W.10 and Ghulam Rasul son of Salar P.W.13 are not related to the deceased. They have absolutely no enmity with the accused. They are independent witnesses. Even if there is no circumstantial evidence to corroborate them then also there is nothing to exclude their evidence from consideration. The evidence on recovery of incriminating articles was not relied upon by the learned trial Judge. On perusal of evidence, I am inclined to agree with the lower Court on this point. The main reason to discard the evidence of recovery was admission by Mallar Khan P.W.8 that Subey Din accused was arrested early in the morning on the next day of occurrence and that he delivered the gun P.9 on that very day. He further stated that Muhammad Asif accused led to the recovery of Gun P.10 after about 8 days of the occurrence. S.I. Muhammad Aslam on the other hand stated that Subey Din accused was arrested on 29-5-198 and Asif accused was arrested on 10-11-1981. In view of the above discrepency, the evidence on recovery o incriminating articles was rightly excluded by the learned trial Judge. However, as held above this fact will have no affect on merits of the case because the two eye-witnesses were absolutely independent. I am not prepared to agree with the learned counsel that because Ghulam Rasul son of Hera P.W.11 has been disbelieved and because he named Mehdi Shah and Ghulam Rasul son of Salar P.Ws. in his statement, therefore, the latter two eye-witnesses should also be disbelieved. This argument is fallacious and without any foundation. I have carefully gone through the medical evidence. It was stated by P.W.1 Dr. Mumtaz Ahmad Bhatti that the deceased seems to have received injuries by one fire. The possibility that these injuries had been caused by two shots was very very remote. According to the medical officer the distance between the assailants and the deceased may be about 8 to 12 yards and both were at same level. It was no possible for the witnesses to positively pin-point the exact location o the injuries received by the deceased by gun-fire. It is not humanly possibly to say as to which fire hit at which part of the body of the deceased. I am of the view that the deceased received injuries by one fire as stated by the medical officer. The deceased Rehmat Ali was not standing straight on the roof. He was a moving object. He might have bent to save himself at the time he received injuries. In my view there is no conflict between the medical and ocular account of this case. The medical officer found both the entry wounds having blackish margin. This indicates that the fire had not been shot from a long distance. I, therefore, do not find any reason to disbelieve and exclude the evidence of P.W.12 Mehdi Shah and P.W.13 Ghulam Rasul son of Salar. However, in view of the fact that the injuries on the person of deceased were the result of one fire I am of the view that only Subey Din, a gun licensee, was present at the spot and he 'alone caused injuries to Rehmat Ali deceased. The motive was also with Subey Din accused. He had dispute with Rehmat Ali deceased over a piece of land in front of their respective houses. The evidence on motive which is furnished by Mehdi Shah P.W.12 also corroborate the two eye-witnesses.

8. I have considered the recovery memo. Exh.P.E. regarding collection of blood-stained earth from the spot. It is correct that it is recorded in memo. Exh. P.E. that the blood-stained earth was collected from the house of Subey Din accused. The Investigating Officer S.I. Muhammad Aslam was cross-examined on this point. It was stated by him that he inadvertantly and by mistake recorded the said fact though the blood-stained earth had been collected from the roof of the house of Rehmat Ali deceased. In the presence of the learned counsel for the appellants, I have perused the inspection note, copy of which was supplied to the appellants before commencement of the trial. The blood stained earth, according to the said inspection note, was collected from the roof of the house of Rehmat Ali deceased and not from the house of Subey Din accused. Even otherwise it is not the case of the accused that Rehmat Ali was killed inside their courtyard or room. It is also not their case that the blood-stained earth was collected by the police from their house. In my view it was inadvertantly recorded in Exh.P.E. that the blood-stained earth was taken in possession from the house of the accused.

9. In view of the above discussion, as abundened caution I give benefit of doubt to Asif accused and acquit him from the charge. In view of the above discussion the appeal of Asif accused- appellant is accepted. His conviction and sentence under section 302/34, P.P.C. is set aside. He is acquitted. He shall be released from prison forthwith if not required in any other case. The appeal of Subey Din accused is dismissed and his conviction and sentence under section 302, P.P.C. is maintained.

11. In view of the above decision in appeal the connected criminal revision is dismissed in limine. S.A. Appeal partly accepted.