2003 PLP 1395 (YLR)

The learned counsel contended that whereas, according to the evidence of witness account, the shot was fired at the deceased was upon the left side of her breast (front side), the medical evidence is to the contrary when it states that the entry wound was on the back of the left side of chest and the wound on the left breast was exit wound. Reference in this respect was further made to the statement of Investigating Officer/P.W.11 which is to the following effect:‑ "In the injury statement and the inquest report I mentioned only one injury which was above the left breast." (b) That the ocular account is unbelievable and discrepant which implies that the professed eye‑witnesses were not present at the spot and had not witnessed the occurrence. The learned counsel mainly alluded to the evidence of Taj Muhammad P.W.6 read in context of site plan Exh.PA. Pointing to the alleged vantage point No.3 from which this P.W. claims to have seen the occurrence, it was urged that it was impossible either to see the occurrence or identify the accused from the distance of 60 feet in the darkness of the night particularly when the said site plan suggests that the accused was allegedly physically placed between the deceased and the place from where the occurrence is said to have been witnessed. According to him, as per the prosecution version, the accused must also be having his back in the direction where P.W.6 was present. (c) that there was no light from the electric bulb at the spot as alleged by the prosecution. It is contended that Exh.PH was prepared on 28‑7‑1996 and although, point No.6 has been shown to be the location of the electric bulb, it is not credible as firstly the site plan was prepared after a long delay of almost 7 days and secondly as the site plan suggests that the bulb was fixed inside the room. He also made reference to the statement of Raja Pervez Akhtar D. W.1 who is a S. D. O. WAPDA, Kallar Kahar Sub‑Division who stated that there was no formal electricity connection 'to the house in question; (d) that the evidence of recovery was not creditworthy. It was contended that gun P.7 was a licensed gun and belonged to the appellant; that the recovery of the crime empty at the spot was irrelevant, as there was no evidence of re‑loading the gun; that the recovery of empty of 12 bore gun (Exh.PE) was made on 21‑7‑1996 but was sent through D.W.1 to the Forensic Science Laboratory on 10‑8‑1996. This according to the learned counsel would not give any credibility to the recovery evidence: (e) that there was inordinate delay in registering of the F.I.R. According to him, the occurrence took place at 1‑00 a.m. between the night 20/21‑7‑1996 and the F.I.R. was lodged after delay of almost 7 hours when the Police Station was situated at a distance of 16 miles from the place of occurrence, which was connected by a metalled road and was otherwise accessible through vehicular traffic. Upon the effect of delay, the learned counsel for the appellant relied upon the case of Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 to contend that unexplained delay is fatal to the prosecution case; and (f) that there was no credible evidence of motive. The evidence of Mst. Razia Bibi recorded as P.W.8 was very weak to prove the motive.

10. The learned counsel for the complainant and State have refuted the contentions raised by the learned counsel for the appellant. It is vehemently asserted that this was a case of a cold‑blooded murder of a young girl and that there were no mitigating circumstances for taking a lenient view of the sentence. According to the learned counsel for the complainant and the State, the prosecution had produced convincing evidence whereby the guilt of the appellant has been proved beyond any shadow of doubt.

11. We have heard the learned counsel for the parties and have perused the recur extensively.

12. F.I.R. No.88 of 1996 was lodge upon the complaint of Muhammad Riaz P.W.5 who is admittedly the husband of the deceased. The prosecution case as disclosed in the F.I.R. is clear and unambiguous. The occurrence took place at 1‑00 a.m. in the night. P.W.5 was a natural witness of the occurrence who had alleged to have seen both the accused and the occurrence at a very close range. Even the seat of injury and the manner of the offence has been given in sufficient detail. The motive for the occurrence has also been stated without wavering.

13. We are not unmindful of the fact that the place of occurrence is situated at a distance of 16 miles from Police Station Kallar Kahar. Without disputing the fact whether or not village Mattan Khurd is connected with the police station in question with a metalled road, we do not find anything on the record to suggest that any vehicular traffic was available at that time of the night or if so when it was made available at the first time. In this view of the matter, we do not find any substance in the submission of the learned counsel for the appellant that the F.I.R. was lodged with inordinate or inexplicable delay which should denude the prosecution case from credibility to any extent.

14. The ocular account has been rendered by P.W.5 Muhammad Riaz who is also the complainant of the case as well as Muhammad Taj P.W.6. We have examined the statement of P.Ws. It is a case where Mst. Tasleem Akhtar deceased who was married to the complainant about 2‑1/2 months before the occurrence was shot at a very close range and killed at the spot at 1‑00 a.m. in the night. The complainant witnessed the occurrence himself and recognized the appellant in the light of the electric bulb which was present in the courtyard. His eye‑witness account in his statement as P.W.5 is to the following effect:‑‑ "Muhammad Feroze accused fired at Mst. Tasleem Akhtar hitting her on the left side of back of her chest."

15. The medical evidence comprises of the statement of Lady Dr. Azhar Azra Woman Medical Officer, DHQ Hospital, Chakwal who appeared as P.W.4 She conducted the autopsy on the dead body of Mst. Tasleem Akhtar. Although, her report has been reproduced hereinbefore, it may not be a futile exercise to refer to it again for ready reference:‑‑ (1) An entry lacerated round shape wound 0.7 c.m. in dia with inverted margins surrounded by blackening of the skin on the back of left side of chest 4 c.m. from midline and 18 c.m. below the level of shoulder. Corresponding mark was present on Kameez also. (2) A lacerated wound of exit 7 c.m. x 3.5 c.m. on the left breast just below the nipple wound was at the same level as the wound of entry." It is apparent from the ocular account as well as the medical evidence that the nature, number and the seat of injury correspond with each other. The minor deviation as to whether the single shot at the close range was fired at the back of the chest or on the front side in our view, would not be a much consequence in the circumstances of the case. Admittedly it was a case of single shot fired by directly aiming on the deceased from a close range. This has been confirmed by the blackening of the skin at the venue of the entry wound.

16. Even if we keep out of consideration the statement of Taj Muhammad P.W.6, there is sufficient direct and corroborative evidence whereby the charge against the appellant stood squarely proved. We therefore, find no inconsistency between the ocular and the medical evidence on the record and repel this contention of the learned counsel for the appellant.

17. We have been referred to a site plan Exh.PK which is part of the police file and which shows that the said site plan was prepared on 21‑7‑1996. According to this site plan, an electric bulb is shown at point No.6. Unfortunately, this Exhs.PK was not made part of the printed paper book. A comparison of Exh.PH and Exh.PK would show that while the former is said to have been made on 28‑7‑1996, the later was promptly made on 21‑7‑1996. Whether or not it was a legal electricity connection as has been suggested by the learned counsel for the appellant who relied upon the statement of D.W.1, shall have no bearing of the outcome of this case as long as the existence of the electric bulb at the site is established.

18. Before appreciating the other contention of the learned counsel for the appellant with respect to the recovery and motive evidence, it is necessary to examine the investigation conducted in the case by Manzoor Ahmad, S.‑I./P.W.11 and Mulazim Hussain, S.‑I./P.W.12. On 21‑7‑1996 at 7‑55 a.m. Manzoor Ahmad, S.‑I./P.W.I1 recorded the statement Exh.PC of the complainant Muhammad Riaz P. W. and he forwarded the same for registration of the formal F.I.R. Exh.PC/1 and thereafter Muhammad Ashraf Moharrir P.W.9 drew up the F.I.R. Manzoor Ahmad, S.‑I. reached the spot at about 8‑45 a.m. and recorded. supplementary statement of the complainant. Thereafter, he prepared the injury statement Exh.PI and inquest report Exh.PJ and then despatched the dead body to the mortuary for autopsy under the escort of Muhammad Munir, Head Constable P.W.3. He inspected the site and prepared rough sketch Exh.PK thereof. He also collected blood‑stained earth from there and took into a sealed parcel vide memo. Exh.PD. An empty cartridge P.4 lying at the spot was also secured and sealed into a sealed parcel vide memo. Exh.PE. Blood‑stained cot P.5 arid blood‑stained bed‑sheet P.6 were also taken into possession vide memo. Exh.PF. Muhammad Safdar and Taj Muhammad attested these memos on 22‑7‑1996, Muhammad Sharif Draftsman P.W.10 prepared the site plan in triplicate Exh.PH, Exh.PH/1 and Exh.PH/2. The S.‑I./P.W.11 handed over the case property to the Moharrir intact. On 22‑7‑1996 the investigation was entrusted to Mulazim Hussain, S.‑I. P.W.12. On 7‑8‑1996, he arrested Muhammad Feroze while Ghulam Raza was apprehended on 11‑8‑1996. On 11‑8‑1996, Muhammad Feroze led to the recovery of his licensed gun P.7 alongwith his licence from his residential house which was taken into possession and sealed into a parcel vide memo. Exh.PG attested by Ikhlas Hussain P.W.7 and Muhammad Ramzan. He handed over the case property to the Moharrir and then placed the file before Manzoor Ahmed, S.‑I. After completion of the necessary formalities, the accused were challaned.

19. Mulazim Hussain, S.‑I. P.W.12 corroborated P.W.11 with respect to the arrest of the appellant and the recovery of gun P.7 alongwith its licence from the residential house of the appellant in village Mattan Khurd. According to this witness, he took the gun into his possession alongwith its licence, sealed the gun into a parcel vide memo. Exh.PG which was attested by Ikhlas Hussain P.W.7 and Muhammad Ramzan. He also prepared the site plan Exh.PG/1 of the place of the gun.

20. The recovery of the empty was made on 21‑7‑1996 by P.W.11. However, once the appellant was arrested on 7‑8‑1996 and recovery of the gun P.7 was made from him, the crime empty and the gun were sent to the Forensic Science Laboratory on 11‑8‑1996. The report of Forensic Science Laboratory is on the record as Exh.PN. According to this report, the crime empty of .12 bore gun was compared with the test empties prepared from 11 bore gun recovered from the appellant and it was found that the crime empty has been fired from the said gun. There is nothing on the record to discredit the said report.

21. In view of the above, we do not find any substance in the submissions of the learned counsel for the appellant whereby the evidence of recovery was challenged. This aspect of the arrest of the appellant, recovery and the empty of the gun has been discussed at some length by the learned trial Judge.

22. The learned counsel for the appellant has not been able to point out any mala fides of the Investigating Officers who had effected the recovery of gun from him. The licensed gun of the appellant was recovered at his own instance after the collection of the crime empty. As already observed, the crime empty matched with the test empty prepared by the licensed gun of the accused. In this view of the matter, we are not overly impressed by the submissions of the learned counsel for the appellant.

23. We have also examined the allegation of motive and its proof on the record. The motive alleged in the F.I.R., its nature in the background as explained is a ring of credibility. This was corroborated through the statement of P.W.5 complainant as well as Mst. Razia Bibi P.W.8. The evidence of motive as given by the said witnesses has not been shaken in the cross‑examination.

24. From the examination of the ocular evidence, medical evidence, evidence of recovery and the evidence of motive, we are satisfied that the learned trial Judge has drawn correct inference from the material available on the record. The learned counsel for the appellant has not been able to point out any perversity in the said judgment.

25. We have given our anxious thought to the alternative submission of the learned counsel for the appellant that as it was only a case of a single shot occurrence without even the allegation of repetition of tire, the appellant was entitled to a lesser punishment. The reliance in this respect was placed upon the case of Muhammad Yasin and 2 others v. The State 2002 SCMR

391. Although, in the instant case, only a single shot was fired, but what cannot be lost sight of is that the appellant had tired the salutary shot from point blank range at the vital part of the body of the deceased knowing fully well that the salutary shot was sufficient to cause the death in the ordinary course of nature. The present case is distinguishable and we are not inclined to award any lesser sentence.

26. As a result of the above discussion there is no merit in Criminal Appeal No. 83 of 1997 which is hereby dismissed.

27. As discussed hereinbefore, it is the case of the prosecution itself that at the time of occurrence, it was only Muhammad Feroze accused who was armed with gun and that Ghulam Raza respondent No.1 was empty -handed. The only role attributed to Ghulam Raza co‑accused is of raising Lalkara. Muhammad Feroze who is the father of the respondent had caused the fatal fire‑arm injury by shooting at the deceased at point blank range by even touching the body of the deceased with his gun. It does not transpire from the circumstances that even the Lalkara attributed to respondent No. 1 was of a commanding nature as admittedly the respondent was a son of the principal accused only.

28. In this view of the matter, no case has been made out in Criminal Appeal No.109 of 1997 for interference to the impugned judgment of the learned trial Court. Resultantly, there is no merit in this criminal appeal which is hereby dismissed. The Murder Reference is answered in the affirmative. N.H.Q./M‑1629/L Appeal dismissed.