2002 PLP 3583 (YLR)

(1) Seven inlet wounds (lacerated) were present on back at the level of left scapula. The edges were inverted. Blackening and charring was present. The wounds were probed and were going inwards and on the right side of the chest. (2) An inlet wound on left upper arm near the elbow, the edges of which were inverted. The blackening and charring were present over it and it measured 2 c.m. above the left elbow. (3) An outlet wound was present on medial side of left upper arm 1 c.m. above the cubical fossa. The edges were everted and blackening was present. (4) An inlet wound 5 c.m. above the elbow on left upper arm on lateral side. The edges were inverted, blackening and chat ring were present. (5) Abrasion 1 x c.m. and 1 x 1 c.m. were present on both knees. The ocular account was furnished by Raja Khan, P. W‑8, who was complainant of the case. He supported the version of the FA.R. and narrated the motive for the occurrence. Iftikhar Khan, P. W‑9 son of Safdar Khan, deceased and Mst. Khurshid Begum, P.W‑10 widow of deceased were eye‑witnesses of the occurrence. They supported the prosecution story and narrated that on the day of occurrence they were present at the spot and the deceased Safdar Khan was fired at by the accused/appellant from the gate of house of Nawaz Khan and Safdar Khan succumbed to the injuries as a result of fire‑arm injuries. Both of them also narrated the motive for the occurrence about the dispute of the land. Mehr. Khan, FC P.W‑2 had escorted the dead body of Safdar Khan, deceased for post‑mortem examination, and also produced his last worn‑clothes before the Investigating Officer and attested the recovery memo. Exh. P.B. On 19‑11‑1994, he also delivered the sealed parcel containing the blood‑stained earth at the 'office of Chemical Examiner on 20‑11‑1994. Basharat Ahmad Draftsman P. W‑3 had prepared the site plan of the place of occurrence. Akram Khan, P. W‑4 had identified the dead body of Safdar Khan at the time of post‑mortem examination. Muhammad Nawaz, FC P.W‑5 had delivered the sealed parcels given to him by the Investigating Officer to be kept intact in police maalkhana. On 22‑11‑1994 he handed over the sealed parcels of gun and empty cartridge at the office of Forensic Science Laboratory at Lahore. Muhammad Ilyas, H.C. P.W‑6 attested the recovery memo. Exh.P.D whereby the accused had got recovered gun‑P.4 and empty cartridge P.5. Anayat Ali Khan, P.W‑7 had attested the recovery memo. Exh. P.E whereby the Investigating Officer had token into possession the blood‑stained earth from the place of occurrence. The prosecution evidence was, closed by tendering in evidence report of Chemical Examiner Exh. P.F. and that of Serologist Exh.P.G. and of Forensic Science Laboratory Exh. P.H. The statement of the accused/appellant was recorded under section 342 C.P.C., who denied the allegation and claimed his innocence and false involvement. In reply to Question No.7 as to why the case against him and the P.Ws deposed against him, he replied as under :‑ "The P. Ws. are related inter se. Raja Khan P.W. was annoyed as to why my father had sold the ancestral property and he in connivance with Iftikhar and Mst. Khurshid Begum falsely involved me in this case as I am the only son of my father. I had absolutely no motive to kill the deceased." The trial culminated into conviction of the appellant as mentioned above, Hence this appeal. While the trial Court has sent up Murder Reference No.89 of 1996 for confirmation of death sentence of the accused/appellant under section 374 Cr.P.C. Both the matters are being decided by this judgment. Learned counsel for the appellant has argued that the motive alleged by the prosecution has not been established by documentary evidence; that even issuance of temporary injunction as claimed by the prosecution has not been placed on record; that there is clear contradiction in medical evidence and the ocular account; that according to the complainant the deceased was fired at by the accused while he was standing on the roof of Muhammad Nawaz and both the eye‑witnesses Iftikhar Ahmad, P.W.9 and Mst. Khurshid Begum, P.W-10 had improved their statements after post mortem examination by stating that the accused fired at Safdar Khan deceased from the door of Nawaz Khan to bring the case of the prosecution in line with medical evidence that the eye‑witnesses are closely related inter se; and to the deceased their statement has not been corroborated by any other independent source and the recovery of gun has been planted and the case of the prosecution is doubtful and the conviction and sentence against the appellant is not sustainable under the law. Conversely, the appeal has been opposed by the learned counsel for the State who has supported the impugned judgment. Heard. Record perused. The alleged occurrence took place at 4 p.m. and the F.I.R. was record at the police station at 6.30 p.m. at a distance of 14 K.M. which shows that the accused was nominated in promptly recorded F.I.R. It was a day light occurrence and the complainant or the eye‑witnesses have no previous enmity for false implication of the accused appellant or substitution by letting off the culprit. The, ocular account furnished by Iftikhar Khan, P.W.‑9 and Mst. Khurshid, P.W.‑10 who were the natural eye‑witnesses of the occurrence having members of the family has been corroborated by the recovery of gun wherefrom empty P.5 fired at the deceased was taken into possession by the Investigating Officer and the report of Forensic Science Laboratory Exh. P. H. is in positive, therefore, after deep re‑appraisal of the evidence, we are convinced that appellant Safdar Khan is the actual culprit and he committed the murder of his real paternal uncle Safdar Khan over a dispute of plot. Mere relationship of the eye‑witnesses inter se or with the deceased is no ground to discard their testimony as they have no animosity for false implication of the accused, therefore, we do not find any reason to interfere in the conviction recorded against the appellant. No document has been brought on record by the prosecution to show that Asghar Khan had obtained temporary injunction from the civil Court regarding the land in dispute and it is not clear that what happened at the spur of the moment between the deceased and the accused and the appellant was teenager at the time when the occurrence took place and has caused only one fire shot and had not repeated the same, therefore, we find that it is not a case of normal penalty of death and the same is reduced to imprisonment for life which will meet the ends of justice and the amount of compensation ordered to be paid by the appellant is, however, maintained, in default thereof he shall further undergo six months S.I. The death sentence awarded to the appellant is not confirmed. Murder Reference is answered in the negative. S.M.A.H./A‑531/L Order accordingly.