1994 PLP 1779 (MLD)

This appeal is directed against judgment dated 7-6-1988 whereby the earned Sessions Judge, Khushab convicted the appellant under section 302, .P.C. for the murder of Mian Muhammad and sentenced him to undergo imprisonment for life plus a fine of Rs.2,000 or in default to undergo further I. for two years and to deposit Rs.10,000 to be given as compensation to the heirs of the deceased under section 544-A, Cr.P.C. failing which he shall undergo further R.I. for six months. However, co-accused Sahib Khan was acquitted of the charge.

2. The occurrence in this case took place on 9-11-1986 at about Peshiwela time in the field of the deceased situated in the area of Dhoke apoka, Village Mardwal at a distance of eight miles from Police Station aushera and the F.I.R. (Exh. PH) was recorded on the statement of Ahmad an. complainant (P.W.6) by Mehr Zaman A.S.I. (P.W.10) in the aforesaid police station, the same day at 6-45 p.m.

3. As for the main occurrence it is stated by the complainant that he had come to see his sister Mst. Fateh Khatoon wife of Mian Muhammad deceased, Dhoke Rapoka in village Mardwal. On the day of occurrence at about Peshiwela time Mian Muhammad deceased alongwith his wife Mst. FateE Khatoon and sister Mst. Rehmat Khatoon was removing the grass from the nearby field when the complainant reached there. He sat at the border of the field when in the meantime, Feroze Khan accused armed with 12 bore gun accompanied by his father Sahib Khan empty-handed arrived at the spot and then Sahib Khan accused challenged Mian Muhammad that they had come to avenge the insult rendered by him to Mst. Sahib Khatoon and then at the exhortion of Sahib Khan accused, Feroze Khan accused fired an effective shot at Mian Muhammad hitting on his chest, on which he fell down and died at the spot. The complainant being afraid of the accused alongwith two lady witnesses could not interfere. The motive for this occurrence was that on the morning of the day of occurrence Mian Muhammad deceased had desired Mst. Sahib Khatoon d/o Sahib Khan (acquitted accused) to live with her husband Sher All which was not liked by the lady and Mian Muhammad then had slapped her which had offended accused Feroze Khan and his father Sahib Khan. This incident culminated in the present occurrence:

4. The investigation was partly conducted by Mehr Zaman, A.S.I, (P.W.10). He reached the spot the same evening and prepared injury statement (ExhPPJ) and inquest report (Exh.PK) and despatched the dead body to the mortuary for the post-mortem examination. He inspected the spot and took into possession blood-stained earth vide memo. (Exh.PC) and sealed the same into a parcel. He took into possession empty P4 from the spot vide memo. (Exh.PD). On the next day he took into possession last-worn clothes of the deceased alongwith sealed phial alongwith pair of shoes of the deceased vide memo. (Exh.PA). He recorded the statements of the witnesses and thereafter the investigation was partly conducted by Rafi Ullah Khan, S.I (P.W.8). He arrested both the accused on 16-11-1986 and then the investigation was taken over by Muhammad Nawaz S.I. (P.W.9). He obtained personal remand of the accused. Feroze Khan accused while in, police custody on 21-11-1986 got recovered gun P5 and its licence P6 alongwith two cartridges P7/1-2 with bag P8 from his house and he took into possession these things vide memo, (Exh.PF). The licence in question was in the name of Sahib Khan accused so the same was taken into possession vide memo (Exh.PG). He also got prepared site plans of the place of occurrence (Exh.PB) and (Exh.PB/1). He recorded the statements of the recovery witnesses. After completing all the formalities the challan was submitted in Court. Dr. Ghulam Sarwar Malik (P.W.4) on 10-11-1986 at 9-00 a? conducted the post-mortem examination on the dead body of Mao Muhammad and he found the following injuries on his person:

(1) A fire-arm superficial wound 2 c.m. x 2 c.m. on the -front of right side of chest 10 c.m. from the right nipple. The blackening was present around the wound. (2) A fire-arm wound with blackening and tattooing 5 c.m. x 1 c.m. in the epigestrium passing through the left side of chest. (3) Three fire-arm wounds 1 c.m. x 1 c.m. around injury No. 2 one was superficial and two going towards left side of chest, 6th and 7th ribs fractured into pieces near the ternum, blackening and tattooing was present. (4) Two fire-arm superficial wounds 5 c.m. x 1/4 c.m. with blackening and tattooing on left side of chest in the front. Three pellets were recovered from left side of chest in mid-axillary line from subcutaneous tissues. All the chest injuries were present in an area of the width of? 7 c.m. (5) Four fire-arm wounds 1 c.m. x 1 c.m. with blackening on the median aspect of lower 1/3rd of left upper arm. Left humerus was fractured into pieces above the condyles. One pellet recovered from the bone area. In the opinion of the doctor death in this case was rupture of the heart due to fire-arm injuries leading to cardiac arrest and causing sudden death. The injuries were sufficient to cause death in ordinary course of nature, all the injuries were ante-mortem and caused by fire-arm. The time between injuries and death was immediate and the time between death and post-mortem was about 18 hours.

6. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations and in answer to question "why this case against you" replied in the following words:

"I have been falsely implicated in this case at the instance of Ahmad Khan complainant who is inimical towards me. I have been substituted for the real accused persons who in fact are the brothers of Kamal Khatoon a wife of brother of the deceased. The lady was murdered and the heirs of the lady were then after the life of Mian Muhammad deceased and others. And they had even earlier attempted on his life. Those persons are the real maternal nephews of the complainant, so he substituted me to save their skin. Rehmat Khatoon P.W. was also not happy on my marriage with her daughter who is even now living separate from her husband and because of the same she even earlier lodged a case under section 307, P.P.C. against my father and so also falsely deposed against me". The appellant also appeared as his own witness under section 340(2), Cr.?.C. and deposed that "I am innocent in this case and I refute the Prosecution allegations. The recovery of crime weapon P5 has been planted against me"

7. Placing reliance on the prosecution evidence, the learned trial court convicted and sentenced the appellant as mentioned above.

8. The learned defence counsel vehemently contended that it was an unwitnessed crime; none of the eye-witnesses was present when the occurrence took place. The eye-witnesses are close relations of the deceased and they have been imported later on they depose falsely in this case. The motive is too trivial to lead to the crime, hence the prosecution case is not free from doubt. Ahmad Khan (P.W.6) besides being close relative of the deceased is a chance witness of the occurrence, as he has not furnished any reasonable and plausible explanation for his presence at the spot, hence his evidence is not worth believing especially when it is against the medical evidence; that the evidence of crime empty was fabricated later on just to support the false case, as fact of crime empty lying at the spot was not mentioned in the F.I.R. The F.I.R. was recorded after preliminary investigation, hence no reliance can be placed upon the evidence so collected. It is case of dishonest investigation in which the appellant has been involved on suspicion, thus he is entitled to the acquittal, and placed reliance on PLD 1991 SC 397.

9. The learned counsel for the State has supported the impugned judgment.

10. I have gone through the record carefully with the able assistance of the learned counsel for the parties.

11. Admittedly, the occurrence took place in the broad daylight which eliminates the chance of false implication, as it took place in the field of the deceased. The presence of Mst. Rehmat Khatoon (P.W.7) the real sister of the deceased cannot be disputed as she belongs to the locality hence she is the natural and probable witness of the occurrence. Ahmad Khan P.W.6 no doubt lives one mile away from the place of occurrence, but he has given very reasonable and plausible explanation for his presence, as mentioned in the R.I.R. itself which was lodged without any loss of time. The F.I.R. was lodged promptly which excludes the possibility of deliberation, in addition to that, both the eye witnesses are the close relations of the appellants. In the absence of any enmity, they had no apparent motive to falsely involve the appellant in this case, which entails capital punishment. The ocular version gets ample support from the medical evidence as well as from the matching of crime empty with gun P5 recovered at the instance of the appellant. There is no material on the record to discard the confidence inspiring evidence of the recovery witnesses. The crime empty P4 was sent to the Forensic Science Laboratory prior to the recovery of the gun P5 which altogether eliminates the possibility of fabrication of the evidence, hence there is no merits in this appeal which is accordingly dismissed. Anyhow, the benefit of section 382-B, Cr.P.C. is granted to the appellant. N.H.Q./F-135/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.