1994 P Cr (PLP)

SH. RIAZ AHMAD, J.

Respondent Mumtaz alias Taja was tried by the learned Sessions Judge, Sargodha on the charge under section 302 read with section 301, P.P.C. for having committed the murder of Muhammad Saleem.

2. Vide judgment, dated 29th of May, 1991, the learned Sessions Judge acquitted respondent Mumtaz alias Taja on the aforesaid charge.

3. Aggrieved by the said acquittal, the State has tiled this appeal.

4. With the assistance of the learned Assistant Advocate-General, we have carefully gone through the facts and circumstances of this case. The prosecution case, in brief, as stated by the complainant is that Mst. Naseem sister of respondent Mumtaz had come to the house of her brothers after quarrelling with her husband. On 19th of September, 1990. Nazar Muhammad husband of Nasim Bibi came to the house of respondent Mumtaz but he pushed him out of his house. On account of such conduct of the respondent, a fight ensued between the respondent Mumtaz and his brother Noor Muhammad on one side and their brothers Ramzan and Riaz on the other side. All four brothers came out of the house while fighting with each other. At that time, Noor Muhammad was allegedly armed with double barrel gun while the other brothers were armed with Sotas and they were inflicting blows on each other. The complainant Ghulam Abbas heard the alarm while sitting in his house. He alongwith his father Muhammad Hayat came out of their house and saw his son deceased Muhammad Salim getting up from the shop of Ghulam Qadir and proceeding towards his own house. It is alleged that at that time, respondent/accused snatched double barrel gun from Noor Muhammad and fired at his brother Muhammad Ramzan. The fire instead of hitting Muhammad Ramzan hit Muhammad Salim son of the complainant injuring him on the right side of head and nose. On the receipt of these injuries, Muhammad Salim fell on the ground and died.

5. The learned Sessions Judge minutely examined the evidence on the record and came to the conclusion that the house of Muhammad Salim was situated on a different side and to proceed to his house, Muhammad Salim (deceased) could not have adopted the path where the fight was taking place.

6. We have also examined this aspect of the case and we are satisfied that the finding of the learned trial Judge to this extent is not open to exception. The medical evidence, in fact, belies the ocular testimony, inasmuch as, there is blackening around the injuries from which it could be clearly concluded that the fire was shot from a very close range. But the prosecution story is to the contrary as the distance from which the prosecution wants us to believe from where the firing was shot, could not have caused the blackening. Furthermore, the finding of the learned Sessions Judge that the deceased had received two shots is also very cogent because not only right side of the head but on the left side of the head, the deceased had received the injuries and such injuries could not be the result of one shot. It is, thus, obvious that the P.Ws. had not seen the occurrence, and, therefore, the learned Sessions Judge was justified in recording the acquittal. Hence we finding no ground to interfere and this appeal is, therefore, dismissed. N.H.Q./S-417/L Appeal dismissed.