1988 P Cr (PLP)

On 21-10-1980 at 11 a.m. Jafar Ali deceased was bringing manure (Khad) on a cart. Abdul Jabbar and Shaukat Ali P.Ws. were with him. They were being followed by Muhammad Sharif P.W. When the cart reached in front of the house of Fateh Muhammad accused, suddenly Fateh Muhammad armed with .12 bore gun alongwith his maternal cousin Abdul Salam acquitted accused, came there. Abdul Salam challenged whereafter Fateh Muhammad accused fired hitting the abdomen of Jafar Ali deceased who fell down and died at the spot a short while thereafter. The occurrence was witnessed by Muhammad Sharif complainant, Abdul Jabbar and Shaukat Ali P.Ws. Leaving the dead body at the spot, Muhammad Sharif P.W. went to police station and lodged the F.I.R. Exh. P.B.

3. The police after registration of the case undertook investigation. The dead body of Jafar Ali was sent for post-mortem examination which was conducted by P.W. 10 Dr. Akhtar Hussain Jafri on 22-10-1980 at 9-00 a.m. On external examination the Medical Officer noted 11 injuries on the person of Jafar Ali deceased. These injuries were lacerated wounds of various dimensions, on the left side of abdomen front, 8 c.m. from umbilicus and 12 c.m. from anterior, superior iliac spine. Seven injuries in all were on the front of abdomen. The remaining four injuries were on the outer side of the left wrist and fore-arm. On internal examination the abdominal cavity was found full of blood. There were at least 30 to 35 holes in the loops of small intestines. There were 2 holes in large intestines and 2 in the stomach. Urinary bladder was perforated and full of blood. The 5th and 4th vertebra were pierced by pellets. The spinal cord had been damaged under injuries Nos. 1 to

7. The abdominal walls were injured. The peritoneum was damaged at various places. 3 pellets were recovered from the right iliac fossa, left side of vertebrae column and small intestines. The death was due to shock and haemorrhage as a result of the fire-arm injuries in the abdomen and the internal organs. All the injuries had been caused by many pellets of a shot fire by a .12 bore gun and were sufficient collectively to cause death in the ordinary course of nature. The time between injuries and death was within half an hour and the post-mortem was conducted within 24 hours of the death. The Investigating Officer, S.I. Asghar Ali .(P.W.12) during spot inspection took in possession a crime empty P.1 vide memo. P.D. on 21-10-1980 in the presence of Mian Ahmad Din (P.W.7) and Ghulam Rasul (P.W.8). The accused Fateh Muhammad was arrested on 28-10-1980. On that date, he got recovered unlicensed gun P.5 and 2 live cartridges P.6 and P.7 which were taken in possession vide memo. Exh. P.F.. by S.I. Asghar Ali (P.W.12) in presence of Ahmad Din (P.W. 7) and Ghulam Rasul (P.W.8). I have checked up the record. There is no report of the Fire Arms Expert on the file of this case. The accused was challaned after completion of the investigation.

4. The prosecution, during the trial, examined 13 witnesses in. all. Muhammad Sharif (P.W.4), Abdul Jabbar (P.W.5) and Shaukat Ali P.W.6 were examined as eye-witnesses. Sikandar Shah (P.W.9) furnished evidence on motive. Dr. Akhtar Hussain Jafri (P.W.10) conducted post-mortem examination on the dead body of Jafar as given in detail above: Mian Ahmad Din (P.W.7) and Ghulam Rasul (P.W.81 supported the recoveries from the spot as well as from the accused. The case was investigated by S.I. Asghar Ali (P.W.12). The evidence of rest of the witnesses was of formal nature. The accused when examined under section 342, Cr.P.C. denied the charge. He denied the recovery of crime weapon at his instance. It was stated by him that the case has been fabricated on account of enmity. He did not produce any evidence. The learned Judge came to the conclusion that in the absence of any report from the Fire Arms Expert, the recoveries of crime empty P.1 and gun P.5 were of no avail to the prosecution, and placing reliance on the evidence of motive as well as the eye-witnesses convicted the appellant as stated above. I have gone through the record of this case with the assistance of learned counsel for the appellant, learned counsel for the complainant and the State. I have heard them at length.

6. It is contended by the learned counsel for the appellant that the witnesses were closely related to the deceased and have not been corroborated by any independent corroborating evidence, that the persons residing in the neighbourhood of the place of occurrence have not been examined as witnesses during the trial and that even if the entire case is admitted, the accused cannot be held guilty under section 302, P.P.C. The learned counsel for the State and the complainant controverted the above contentions on behalf of the appellant. Muhammad Sharif (P.W.4) is father of Jafar Ali deceased. Abdul Jabbar (P.W.5) is a son of the paternal aunt of Muhammad Sharif complainant. Shaukat Ali (P.W.6) is married to a daughter of Muhammad Sharif complainant. Sikandar Shah (P.W.9) is father of Abdul Jabbar (P.W.5) Ahmad Din (P.W.7) is a cousin of the mother of Sharif complainant while Ghulam Rasul (P.W.8) is material nephew of the wife of Sharif complainant. It is, therefore, correct that all the eye-witnesses as well as witnesses of recovery are closely inter-related Fateh Muhammad accused is the son of paternal aunt of Muhammad Sharif complainant. Islam, the acquitted accused, was a cousin of Muhammad Sharif complainant. This means that both the parties are closely related to each other. They had no enmity except the dispute which is now a motive in the present case. Sikandar Shah (P.W.9) stated that a day earlier to the present occurrence, he saw Jafar Ali deceased standing in 'front of the house of Baqir. Fateh Muhammad accused objected as he suspected Jaffar deceased having relations with his maternal niece Mst. Yaran. They quarrelled but were separated by him and Shah Muhammad (given up P.W.) Sikandar P.W. is related to the complainant as well as the accused as stated above. He had no enmity with the accused. There is no circumstance to disbelieve his statement. Muhammad Sharif (P.W.4) stated that his son Jafar Ali deceased had informed him of this incident when he returned home a day earlier to the present occurrence. I am, therefore, of the view that the prosecution has successfully proved motive of the present occurrence against Fateh Muhammad accused. The learned trial Judge rightly came to the conclusion that the recovery of gun P.5 and crime empty P.1 were of no avail to the prosecution in the absence of a report from the Forensic Science Laboratory. The eye-witness account has been furnished by P.W.4 Muhammad Sharif, P.W.5, Abdul Jabbar and P.W.6 Shaukat Ali. According to the prosecution evidence, the occurrence took place on a public path in front of the house of Fateh Muhammad accused as well as Abdul Jabbar (P.W.5). It is correct that the other residents of that street were not examined as witnesses during the trial, but this fact alone would not justify the conclusion that the eye-witnesses did not see the present occurrence. Abdul Jabbar (P.W.5) was a witness of the locality. He was a natural witness. He had no enmity with Fateh Muhammad accused. Similarly, Muhammad Sharif and Shaukat Ali P.Ws. also had no enmity with the accused. The occurrence took place at 11 a.m. on 21-10-1980 and the F. I. R. was lodged at the police station within 11 hours of the occurrence. These witnesses had no enmity to falsely implicate Fateh Muhammad accused in this case. There is nothing in evidence to show that the deceased Jaffar Ali or the eye-witnesses had any other enemy. It is not a case of substitution of accused. It was argued on behalf of the appellant that according to the site plan the accused ' Fateh Muhammad is alleged to have fired when the cart of Jaffar Ali deceased had already paqsed from in front of his house and as such the injury should have been on the back of the deceased and not on the front of abdomen. I find this argument devoid of any force. It is in evidence that Islam accused, who was empty handed, had shouted a Lalkara. It is, therefore, possible that the deceased might have turned back to assess the situation when Fateh Muhammad fired at him. Secondly Jafar Ali deceased was a moving object and could have received injury on the front of his abdomen after he had crossed the house of Fateh Muhammad accused. It was contended on behalf of the appellant that the statement of the witnesses were recorded at the police station which fact makes their evidence doubtful. I am not prepared to accept this argument. It is correct that the eye-witnesses stated during the trial that they were examined by the police at the police station. These witnesses appeared to have made the statement under some misunderstanding because the Investigating Officer, in cross-examination, clearly stated that the statements of the P.Ws. were recorded on the spot or, the same day. In any case this discrepancy does not materially effect the merits of this case The prosecution case is supported by the evidence on motive. The eye-witnesses though related had no enmity to falsely implicate Fate. Muhammad accused. There is no circumstance on the record justifying a conclusion that the witnesses were not present, at the spot at the time of occurrence. I have considered the arguments of learned counsel for the appellant that no case under section 302 , P. P. C. could be said to have been made out-against the accused. The accused had a motive. He fired from a gun hitting the deceased on his abdomen which is a vital part of the body. The fact that he did not repeat the fire did not mean that he had no intention to cause the death of Jafar Ali. In view of the above, I find no merits in this appeal which is dismissed. The conviction and sentence of Fateh Muhammad appellant is maintained. In view of the above, the Criminal Revision No. 12 of 1983 which was only ordered to be heard alongwith the appeal is dismissed in limine. S.G.D/F-62/L????????????????????????????????????????????????????????????????????????? Appeal dismissed