1991 PLP 2533 (MLD)

The investigation was thereafter taken over by Nasrullah Khan Niazi S.H.O. He verified the investigation and arrested Maqbool Ahmad on 23-3-1987, gun P.2 got recovered by him on the same day was taken into possession vide memo. Exh.P.D. Khadim Hussain was arrested by him on 4-5-1987. Challan was submitted to Court after completion of necessary investigation.

7. Statements of eleven P.Ws. were recorded at the trial.

8. Dr. Rana Muhammad Rafiq who had performed autopsy was not available. Ashiq Hussain Constable who was entrusted with the summons for service upon him was examined as C.W.1 in that regard. Secondary evidence was led about the post mortem report by examining Muhammad Latif, Dispenser as C.W.2, who stated that as he had worked with Dr. Rana Muhammad Rafiq, Medical Officer, so identified his handwriting and signatures. According to him, post-mortem report Exh.C.W.2/A and diagram showing the location of injuries Exh.C.W.2/B were in the handwriting of Dr. Muhammad Rafiq and were signed by him. According to Exh.C.W.2/A, post-mortem report, the deceased was found, to have suffered a lacerated wound measuring 3.5 c.m. x 3 c.m. x deep going, margins were diverted, at central area of right chest on front, 2 cm above and middle to right nipple (Entrance wound). No blackening was observed. Corresponding hole on cloth was observed. The doctor had opined that the injury was caused by afire-arm which had led to the death of the deceased immediately after the receipt. Time between death and post mortem was opined to be between 6 and 12 hours.

9. Ocular account was deposed to by Muhammad Hanif (P.W.1) and Ahmad Ali (P.W.2). Muhammad Hanif after repeating the facts given by him in the F.I.R. also claimed to have witnessed the collection of blood-stained earth and empty P.1 from the spot by S.I. During cross-examination he admitted that Ahmad Ali and Muhammad Hassan P.Ws. were his first cousins. Muhammad Ayub P.W. was his brother and Ishaq was his son. He stated that quarrel had taken place between his son and the accused 2/3 times before the occurrence, but he had not reported the incident to the police. He denied the suggestion that he had not purchased the disputed Ihata and he cooked up a false story. He admitted that Khadim Hussain was declared innocent during investigation. According to him, the occurrence had taken place in the Ihata of Ghulam, maternal-uncle of the accused, where he used to tether his cattle during day time. He denied the suggestion that the deceased had trespassed into the house of Ghulam at 3-00 a.m. on the day of occurrence and that Maqbool had got up on the barking of the dog and that when Ibrahim had not replied on being called out who he was, Maqbool had fired at him thinking that there was a thief. He denied the suggestion that he was not in the village on the day of occurrence and had come to the village on being informed. He also denied the suggestion that he had fabricated a, false story and lodged incorrect F.I.R. Ahmad Ali (P.W.2) corroborated the statement made by P.W.1. He denied the suggestion that when he had woken up it was still dark. He stated that nobody was attracted to the spot on hearing their alarm before firing, but the people had come there after the occurrence. Ire denied the suggestion that he had made a false statement due to relationship with the complainant party.

10. Muhammad Nawaz S.I. who had first investigated the case after registration, appeared as P.W. 11 and gave the details of the investigation conducted by him. During cross-examination, he admitted that he had not taken into possession any documentary proof regarding the Ihata from the Ilaqa Patwari. He denied the suggestion that he had introduced the story of young buffalo falsely. He also denied the suggestion that the occurrence had taken place at 3-00 a.m. and he had falsely recorded the time of occurrence as 6-30 a.m.

11. Nasrullah Khan Niazi who had partly investigated the case and effected the arrest of both the accused and taken into possession the recovery of gun P.2 appeared as P.W.8 and gave those facts. During cross-examination he admitted that it had come to his notice during investigation that the occurrence had taken place at 3-30/4-00 a.m. and that the deceased was fired at by Maqbool accused thinking him to be a thief. He denied the suggestion that the gun was recovered on the first day during search of the house of the accused and that he had fabricated an empty by firing the gun. He also denied the suggestion that he had falsely planted the empty of the gun.

12. The statements of the remaining witnesses are more or less of a formal nature.

13. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to question, "Why this case against you and why the P.Ws. deposed against you?": "The P.Ws. have given false evidence, because they are closely related inter se. I have been falsely involved in this case on the basis of distorted facts. In fact on the night of occurrence at about 3-00 a.m. 1 woke up on the barking of my dog and saw a man present in our Ihata where our cattle were tethered. I called out that man, who did not reply, but proceeded towards me. Considering him a thief I fired with my gun in that direction without taking any aim in order to frighten him, lest he may cause any harm to my person. The fire incidentally hit the deceased, who fell down. Thereafter that man turned out to be Muhammad Ibrahim deceased, who had trespassed into our Ihata to commit theft. Muhammad Hanif P.W. was informed at Shahbore, where he was posted, who came to the spot, conspired with the police and got registered this case on the basis of a false motive, and facts, by changing the time of occurrence as well. Neither the eye-witnesses nor my co-accused Khadim Hussain was present at the spot at that time. The above-said facts were brought to the notice of the police by the respectables of the village. I had no motive or intention to murder the deceased." Khadim Hussain, acquitted co-accused during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. None of them produced evidence in defence.

14. I have considered the contentions of learned counsel for the parties after having gone through the evidence.

15. The argument of learned counsel for the petitioner that learned trial Judge erred in disbelieving the evidence of prosecution and wrongly acquitted both the accused of the charge under section 302/34, P.P.C., does not appear to possess substance. In that, he had not been able to say anything pertinent as to why the rejection of evidence of motive by the trial Judge be held to be an incorrect conclusion. He could not refer to anything on record to say that the Complainant had produced any particular evidence to prove the evidence of motive.

16. Learned counsel also failed to point out any flaw or defect in the conclusion arrived at by the trial Judge for rejecting the ocular account. Learned trial Judge after a detailed discussion came to the conclusion that both the eye?witnesses did not appear to have witnessed the occurrence. The reasons given by the trial Judge in that regard are based on the evidence on record. The fact can also not be disputed that both the witnesses were closely related to the deceased and their presence at the time of occurrence could not be accepted blindly. Apart' from all that, there is nothing on record to hold that both the accused could have been present in the Ihata of Ghulam in the early hours of morning or for that matter even at 6-15 a.m. when the occurrence had taken place, according to the prosecution. No doubt, Ghulam in whose Ihata the deceased was found lying murdered, was maternal-uncle of both the accused but that alone is not sufficient to hold that they would have been present there positively. It is not the prosecution case that they had hidden themselves in that Ihata to waylay the deceased. The prosecution case is, that the deceased had gone there by chance to bring back the young buffalo which had, accidentally, entered the Ihata of Ghulam. There is no evidence that the accused were residing in that Ihata or used to tether their cattle there. Still more is impossible to believe that Maqbul would have been keeping a gun in that lhata which he readily brought out on the exhortation of his brother Khadim Hussain.

17. After having carefully applied my mind, I am convinced that the conclusions arrived at by the learned trial Judge about acquittal of both the respondents under section 302/34, P.P.C. do not call for any interference. The revision petition filed by the complainant which is still at motion stage, is therefore, dismissed.

18. Learned counsel for the appellant did not challenge the conviction of the appellant under section 304, Part II, P.P.C. He, however, prayed for reduction in the sentence of imprisonment to that of already undergone and remission of the fine to a great extent as the appellant was stated to be a poor worker.

19. Notwithstanding the fact that the learned counsel for the appellant did not challenge tire conviction of the appellant under section 304, Part II, P.P.C., I have gone through the relevant observations and the conclusions arrived at by the trial Judge in the light of evidence on record, and I am convinced that learned trial Judge rightly came to the conclusion that the appellant was guilty of having committed the offence under section 304, Part II, P.P.C. His conviction under section 304, Part II, P.P.C. is, therefore, maintained.

20. The sentence of R.I. for 10 years appears to be excessive. The same is reduced to R.I. for 7 (seven) years. However, the sentence of fine is not reduced as the same is directed to be paid as compensation also to the heirs of the deceased. The appeal stands dismissed with alteration in sentence. H.B.T./M-3082/L ?????????????????????????????????????????????????????? Revision and appeal dismissed.