1999 PLP 1376 (MLD)

6. The police arrived at the place of occurrence and prepared injury statement Exh.PE/2 and inquest report Exh.PE/3 in respect of the dead body of Muhammad Sabir deceased and despatched the same for post-mortem examination while the injury statement of Muhammad Aslam (P.W) was also prepared which is Exh.PF/1 and he was sent for medical examination. In course of spot inspection the police took into possession blood-stained earth from killa No.8, Square No.39 in the area of Chak No.8/E-B near the bore of Qudrat Ullah. It was made into a sealed parcel and taken into possession vide memo. Exh.PB.

7. The accused was not available and, thus, his warrant of arrest was obtained and thereafter, on 27-9-1993 a proclamation Exh.PA was issued and published vide reports Exh.PA/1 and Exh.PA/2 and the appellant/accused was declared absconder. However, on 18-1-1994 he was arrested by Muhammad Ansar Cheema P.W.13 and on 1-2-1994 while in police custody he led and got recovered hatchet Exh.P5 from a room of his Dera in Chak No.8/E-B. It was stated to be stained with blood and made into a sealed parcel and taken into possession vide memo. Exh.PD which was attested by Gohar Ali P.W.4, Muhammad Ansar P.W.13 and Mumtaz P.W. (given up). Hatchet Exh.P5 was never sent to Chemical Examiner. It is also on record that on 26-8-1993 Muhammad Bashir, Inspector (P.W.11) raided the house of the accused in his absence and got recovered two .12 bore guns and one .7 mm rifle from the house of the accused but apparently the same have no bearing with this case and as no crime empty was found at the spot hence it is not proved that any of these weapons were used in the commission of this offence. The appellant, has produced photo copies of arms licences which are on file.

8. Dr. Muhammad Saeed has appeared as P.W.5 and has stated that on 13-8-1993 at 10-00 a.m. he conducted the autopsy on the dead body of Muhammad Sabir deceased aged 25 years and found the following injury on his person:- (1) An entrance oval lacerated wound on the antero-medial surface of right thigh 1/3rd area, the hole is going inward and latero-posteriorly. There is blackening present on the wound. On palpating the postero-lateral surface of thigh an incision on the postro-lateral surface is given and small tiny pellets are taken out alongwith the wad and card of cartridge, which are preserved. There is injury to the muscles of thigh and injury to the branches of femural vessels causing heamorrhage and haemotoma in the wound. This injury was declared fatal, ante-mortem and caused by fire-arm. The time between injury and death was about one hour and between the death and post-mortem within one day. He also on the same day at 11-00 a.m. medically examined Muhammad Aslam P.W. 8. and found the following injuries on his person:- (1) Abrasion on the right shoulder, dimension 4 c.m. x 1-1/2 c.m. (2) A diffused swelling on right hand, dimension 4 x 5 c.m. Both the injuries were declared simple and were found to have been caused by the blunt weapon within the duration of one day. Exh.PF is the correct copy of the medico-legal report.

9. The prosecution produced 13 witnesses to prove the charge. At the close of the prosecution case the report of the Chemical Examiner regarding blood-stained earth was tendered in evidence which is Exh.PI and the report of the serologist in this respect is Exh.PJ. The appellant/accused was examined under section 342, Cr.P.C. and he denied the prosecution case and in answer to question No.10 has submitted that he has been falsely involved in this case due to enmity and suspicion. The P.Ws. are related inter se and with the deceased. The deceased was a man of bad character and he has so many enemies. It was an unseen occurrence which took place in the darkness of the night". He has produced photostat copies of licences, Mark-A, Mark-E, Mark-C and a photostat copy of an F I.R Mark-E and has declined to produce any other evidence.

10. With the assistance of the learned counsel for the appellant I have gone through the entire record and perused the evidence recorded at the time of trial. The learned counsel for the complainant has rendered valuable assistance in scrutinising the record and assessing the same. The learned counsel for the State has supported the judgment and prayed that the conviction and sentence awarded to the appellant be maintained.

11. Learned counsel for the appellant has at the very outset of the hearing made it clear that he is not going to contest the case for the acquittal of the appellant/accused but would contest the same for a lesser sentence. On the other hand, learned counsel for the complainant has submitted that he would argue the revision petition for the enhancement of sentence under section 302, P.P.C., whereby the sentence of death may be awarded as Tazir or Qisas.

12. To support his case for lesser sentence, learned counsel for the appellant has argued that there is no previous enmity between the parties, the mischief of throwing the silt taken out of the Khaal was done by the complainant party to achieve their own means so as to irrigate their land and. thus, deliberately they threw the silt in the land of the appellant/accused and that there was no direct motive for the accused/appellant to have committed the murder of the deceased, that the injury on the person of the deceased is on non-vital part of the body and that it was never repeated nor any shot was fired at the other P.Ws. That there is no recovery of any crime empty or gun from the accused/appellant. That the original warrant on the basis of which the earlier statement of Gohar Ali, Constable (P.W.4) was recorded for the issuance of the proclamation of absconsion is not available on the file and has not been exhibited. Thus, the proceedings for being declared absconder are not proved as required by law against the appellant-accused.

13. To rebut these arguments learned counsel for the complainant has submitted that it is a day time occurrence and the appellant/accused cannot say that he was not identified by the P. Ws. or he has not committed the murder. That he first visited the place of occurrence armed with hatchet and caused injuries to Muhammad Aslam P.W. and because the blade of the hatchet fell of the Danda and he could not use the hatchet, therefore, he after picking up the blade left the place of occurrence and then returned armed with gun and fired at the deceased from close range and whereby the femural artery was damaged and the deceased died. Therefore, it was a deliberate murder and the evidence of the two eye-witnesses is corroborated by the medical evidence and the appellant accused deserves no leniency. Further, the accused/appellant remained an absconder since 12-8-1993 till 18-1-1994 and this is itself a sufficient corroboration towards his involvement and that the guilt of the appellant/accused is proved beyond doubt and grounds for conviction under section 302, P.P.C. are established on record and it is a case fit for awarding of a maximum penalty.

14. I have given my anxious thought to the arguments advanced by the learned counsel for the parties and have weighed, assessed and cross-checked each submission made, to evaluate and arrive at a just decision, even examined the file from this angle if the accused/appellant could earn an acquittal although his learned counsel has not argued the case from this angle. From the flow of events adduced in evidence and highlighted by the learned counsel it appears to be a correct position that there is no previous enmity between the parties and that the complainant party did an act to prompt/activate in the culmination of this incident. No doubt the injuries to the P.W. were given in the first instance and then appellant/accused returned with gun but the intention to commit murder is not visibly inferable from the conduct and the seat of the injury on the body of the deceased. Had the accused/appellant intended to cause death of the deceased he would have from that close a range aimed and fired at the vital parts of the body like the head and the chest area but it appears that he never chose to fire at this area and further if he did carry intention to commit murder he could have repeated or attempted to cause a second shot at the deceased or P.Ws. which is not forthcoming from the evidence which also clearly indicates and enhances his case that he did not have intention to cause the death of the deceased. The injury on the leg may have been caused to teach him a lesson but unfortunately the femural artery was punctured which resulted in loss of blood and culminated in the death of the deceased. As far as the recoveries of the hatchet and guns are concerned they are of no avail or of any corroborative value to the prosecution. So far as the evidence of absconsion is concerned it cannot be read against the appellant/accused as the original arrest warrant which was obtained to prove that he was avoiding appearance has not been placed on file and exhibited in Court and, thus, the proceedings are incomplete and, therefore, these cannot be considered to be proved.

15. The revision petition under the circumstances appears to be devoid of force and there is absolutely no strength in the evidence to consider it a case fit for enhancement to maximum penalty. Even under the present circumstances the revision petition cannot be considered for admission or sustained to uphold the present term of sentence. Hence the revision petition being devoid of force is dismissed in limine.

16. The prosecution case against the appellant stands proved and substantiated on record. The convictions of the appellant are maintained. The sentence awarded to him under section 302(c), P.P.C. by the learned trial Court needs consideration. As far as the quantum of sentence to be awarded to the appellant under section 302(c), P.P.C. for the reasons discussed above is concerned it would be appropriate and adequate if the sentence of imprisonment is reduced to 10 years' R.I. which would sufficiently meet the ends of justice and commensurate with the act committed by the appellant. Thus, for the foregoing reasons the appeal of the appellant is dismissed with this modification of reduction of sentence under section 302(c), P.P.C. to 10 years' R.I. while the remaining sentences, convictions and benefits awarded by the learned trial Court to the appellant are maintained. H.B.T./T--32/L Order accordingly