1990 PLP 667 (MLD)

4. On 17‑7‑1983 Dr.Munawwar Ahmad, Medical Officer, ABS Hospital, Gujrat, conducted the autopsy on the dead body of Mst.Surayya deceased and found the following injuries on it:‑‑ "(1) A Firearm wound of entrance 3/4 cm in diameter on upper mid part of right breast. (2) A firearm wound of entry with slanting margins 3 cm x 1 cm just below the nipple of right breast. (3) A firearm wound 5 cm in diameter on upper and right side of abdomen internal loop coming out. (4) A firearm wound about 3 cm x 1/2 cm just right of right side of injury No.3. (5) A firearm wound gutter shape 2 cm x 1 cm on the right flank, 13 cm from umbilicus. (6) A firearm wound 2 cm x 1 cm abut 11 cm from the right side of umbilicus. (7) A lacerated wound crushed 6 cm x 5 cm outside of right elbow. (8) Five firearm wounds about 3/4 cm each in diameter on right upper arm just above injury No.7." On dissection, multiple clots were seen on right and left chest above the bony cage. Right and left lungs were pierced irregularly. There were multiple clots on posterior side of mesentry. Liver was torn at many places. Two wads and three pellets were recovered from the chest and abdominal cavity. Stomach was empty. Small intestine and their contents were torn at many places. Bladder was full of urine. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injuries Nos.1 to 6, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem caused by fire‑arm. Time between injuries and death was immediate and between death and post‑mortem within twelve hours.

5. In support of its case the prosecution examined three eye‑witnesses, namely, first‑informant Muhammad Zafarullah, Hamood Zafarullah and Zahid Iqbal. Besides the evidence relating to motive and recoveries, the prosecution also relied on the report of the firearms Expert according to which one of the crime empties recovered from the spot was found wedded with gun (Ex.Pl) allegedly recovered from Irshad accused.

6. The accused persons pleaded not guilty to the charge. Irshad accused admitted that prior to the occurrence a case under section 307 P.P.C was pending against him and his brothers and party men for making murderous assault on first informant Muhammad Zafarullah. He, however, added that ultimately it ended in acquittal. He maintained that he had been falsely implicated due to enmity. The other accused also made similar statements. No evidence was led in defence.

7. The learned trial Judge discarded the evidence relating to recovery of crime empties from the spot and that of gun from Irshad accused. He, however, observed that ocular evidence was duly corroborated by medical evidence and there was no possibility of mistaken identification. On the basis of this finding he convicted and sentenced the appellants as mentioned above.

8. Learned counsel for the appellants contended that the FIR was lodged after due deliberation and uncorroborated ocular evidence furnished by interested witnesses was not at all sufficient to form a basis of conviction, particularly when it stood contradicted by the medical evidence. The learned counsel elaborated that there were eight wounds of entry on the dead body with no exit, meaning thereby that all the pellets/bullets remained inside the dead body but only two wads and three pellets were recovered from it, and it is for the prosecution to explain how three pellets caused eight injuries. The learned counsel for the State and the complainant, on the other hand, submitted that any carelessness on the part of the doctor cannot harm the prosecution, the rule of corroboration is a rule of prudence and in the present case the number of accused and their common interests afford the necessary corroboration. Learned counsel for the complainant further submitted that an innocent and defenceless lady was brutally murdered right in her house, therefore, it was a case calling for capital punishment.

9. At the trial first informant Muhammad Zafarullah, Hamood Zafar and Zahid Iqbal P.Ws. supported the prosecution version, as detailed in the earlier portion of this judgment. Muhammad Zafarullah and his son Hamood Zafar, being residents of the house of occurrence, are the most natural witnesses. Zahid A Iqbal claims to have seen the occurrence from the roof of his own house. His house is just across the lane, and place of occurrence is visible from its roof. He is also a natural witness. Learned counsel for the appellants contended that actually it was an un-witnessed occurrence and the present story was fabricated at a belated stage and incorporated in the FIR which was lodged after due deliberation. According to the prosecution, the occurrence took place at 5 a.m. and the F.I.R. was lodged same morning at 6‑15 a.m. at the police station situate at a distance of three miles from the spot. The learned counsel could not point out any circumstance indicating that the FIR was lodged at a belated stage, and not at 6‑15 a.m. as alleged by the prosecution. All the eye‑witnesses are consistent that the occurrence took place at about 5 a.m and there is nothing on the record to show that it had taken place during dark hours. In cross‑examination La) Khan (PW 4) stated that he reached the spot on hearing fire‑reports when the sun was just to rise. In the circumstances, there in no reason to believe that it was an un-witnessed occurrence.

10. The main argument of the learned counsel for the appellants was that the eye‑witnesses are interested and the account of occurrence furnished by them is in conflict with the medical evidence, therefore, it cannot form basis for conviction. He elaborated that the deceased had eight fire‑arm wounds of entry on her person with no exit wound but three pellets and two wads were recovered from the dead body and it was for the prosecution to explain how the deceased suffered eight firearm injuries with three pellets. The argument is misconceived and not of much consequence. According to the medical evidence, injuries Nos.1 and 2 were the wounds of entry. The rest were neither shown as entry wounds nor as exit wounds. There is also no indication whether the margins of the remaining wounds were inverted or everted, therefore, no opinion can be formed whether those were wounds of entry or exit. In cross‑examination the doctor stated that injuries Nos.1 to 6 were not the result of one fire‑shot but "have been caused by separate fire shots". On the basis of this statement it was contended that those were wounds of entry. The doctor appeared in the witness‑box about two and a half years after the post‑mortem examination. He has not given any reason for his above statement. However, if it be assumed that all the injuries were wounds of entry having no exit, even then the only conclusion would be that the pellets etc. which caused the said injuries remained in the dead body. The prosecution cannot be called upon to explain why only three pellets and two wads were recovered from the dead body. It is not the case of the defence that the deceased had in fact suffered lesser number of injuries and the doctor had exaggerated their number. No suggestion to that effect was put to the doctor. If the doctor could locate only three pellets and two wads, the prosecution cannot be blamed for his inability to locate the remaining pellets. In the circumstances, there is no substance in the argument that the occular evidence is contradicted by the medical evidence.

11. We have already observed that, Muhammad Zafarullah first informant (since dead), his son Hamood Zafar and Zahid Iqbal are natural witnesses of the occurrence. They have fully supported the prosecution version and their evidence is consistent on main features of the case. They were cross‑examined at length but nothing useful to the defence could be elicited from their statements. There was severe enmity between the parties. In examination‑in‑chief first informant Muhammad Zafarullah stated that he had criminal litigation with the accused party prior to the occurrence. Four days prior to the occurrence Irshad accused threatened him that he would face dire consequences if he did not desist from pursuing the case registered against him under section 307 PPC. He thereupon gave beating to him. The complainant was apprehensive of his life even when he appeared in the witness‑box. He stated‑‑ "The accused persons are still after me. The accused persons got Arshad accused obsconded with their connivance and he has delivered threats to me through different persons for causing my death. On 16th October, 1985 while I was within the Sessions Court precincts, the three accused persons present in the Court alongwith their brother Aslam and few other persons threatened me that now you alongwith your brother Mr. Nasrullah Advocate would not be spared. In consequence of their threats given to me on 16th October, 1985, Arshad accused since absconder fired at me on 1st November, 1985 in order to commit my murder in the area of Kunjah and a case under section 307 PPC was got registered Arshad accused since absconding. A copy of FIR is submitted which is Ex.PJ and is duly signed by me". Ultimately the complainant was murdered. The appellants admitted that a case under section 307 PPC for making murderous assault on first informant was registered against Arshad absconder and Irshad appellant. It is thus clearly' established that there was deep‑rooted enmity between the parties. Enmity, 'however, cuts both ways. It may be the reason for the attack and at the same time it may induce a party to falsely implicate as many of its enemies as possible. The occurrence took place inside the house of the first informant who was a sworn enemy of the accused persons. It is in evidence that he always used to keep his gun with him. Even on the night of occurrence he was having it on his cot. In that view of the matter, a well armed group of persons was required to raid his house for making murderous assault on him. The number of the accused in the present case is not out of proportion to the nature of their enterprise. Mst. Surayya Begum deceased had twelve injuries (injury No.8 consisted of five firearm wounds) on her person. If the complainant wanted to exaggerate the number of the assailants he could conveniently do so. The appellants had another brother, namely, Aslam, as is clear from the above‑quoted statement of the first informant. He was not named as an accused in the FIR. The number of accused in this case is such as was required for an attack of the present type and being real brothers, all the accused were expected to join hands in committing the murder of their common enemy. These circumstances lend requisite corroboration to the statements of the eye‑witnesses. It will not be out of place to mention here that after the occurrence the appellants were not available. Shamim Haider, A.S.I., arrested them on 6th August, 1983. He was not cross -examined and his statement regarding their arrest goes unchallenged on the record. We are, therefore, satisfied that the appellants have been rightly convicted under sections 452 and 302/34 P.P.C.

12. Now, we proceed to consider the question of sentence. Hamood Zafar, son of Muhammad Zafarullah complainant, has filed revision petition praying that sentence of the appellants be enhanced to death. ' His learned counsel contended that a lady was murdered right in her house, therefore, it was not a case of lesser penalty. The grounds taken in the revision petition for enhancement of sentence are that according to medical evidence injuries Nos.1 to 6, attributed to all the accused, were sufficient to cause death in the ordinary course of nature and result of awarding lesser punishment was that the complainant was murdered by Arshad absconder and his companions on 16th October, 1986. From the medical evidence it appears that death was due to the cumulative effect of injuries Nos.1 to 6 and in that view of the matter capital punishment has been rightly withheld. The offence committed by the absconder after the present occurrence would not, in any way, affect the question of sentence in the present case. We, therefore, maintain the sentences awarded to the appellants by the trial Judge under sections 452 and 302/34 P.P.C. The order regarding payment of compensation is also maintained. There is no merit in this appeal and the same is dismissed. The revision petition also fails and is dismissed. S.A./M‑1640/L Appeal and Revision dismissed.