1994 PLP 662 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 20‑7‑1991.

2. The facts of the case are that during the night between 28th and 29th of September 1980 the complainant Muzaffar Khan and his brother Nadir Khan were sleeping near the cattle, while Dost Muhammad deceased slept in front of his house at the Dera. Mst. Sahib Khatoon, the wife of Dost Muhammad, was sleeping on separate cot near Dost Muhammad. The complainant and his brother got up at Sargivela time on barking of the dogs. It was a moonlit night. They saw the appellant (Muhammad Amir) and Muhammad Feroze standing by the cot of Dost Muhammad deceased. The appellant was armed with a rifle and Muhammad Feroze was holding a gun. The complainant party raised a Lalkara on which the appellant fired on Dost Muhammad with his rifle. The complainant party tried to catch the accused on which Muhammad Feroze fired at them with a gun, which did not hit anybody. The complainant party did not chase the accused due to the fear of life. Dost Muhammad died at the spot. After usual investigation, both the accused were sent up for trial. The learned trial Judge acquitted Muhammad Feroze, but convicted the appellant under section 302, P.P.C.; sentenced him to life imprisonment with fine of Rs.2,

000. In default of payment of fine he shall undergo further imprisonment for 4 months' R.I. A direction was also made for payment of Rs.3,000 as compensation to the deceased; in default of payment to undergo 4 months' R.I.

3. The appellant's conviction was challenged before the High Court. A revision petition was also filed by the complainant. The learned High Court, by means of the impugned judgment dismissed the appeal as well as the revision.

4. There are two eye‑witnesses of the occurrence, namely, Muzaffar Khan complainant (P.W.7) and Mst. Sahib Khatoon (P.W. 8): Both these witnesses have deposed against the appellant. Their statements have been accepted by the two Courts. Learned Counsel for the appellant submitted that the witnesses are interested, therefore; no reliance can be placed on them. This contention has no force. They are natural witnesses and they were present at the spot. Their presence at the Dera on the fateful night cannot be disputed, There is nothing on the record to suggest that they were not present at the spot and had not witnessed the incident. Learned counsel next stated that Mst. Sahib Khatoon had not seen the occurrence because in her presence the appellant had not fired at the deceased. This contention is also without any substance. Both the witnesses are unanimous about the occurrence. It is next contended that the identification of the accused was made in the moonlit night, therefore, it was not possible for the witnesses to have identified; that there was no other, source of identification. The appellant was known to the witnesses prior to the occurrence. There was sufficient natural light to identity the accused. The two Courts below have properly assessed the evidence. There is no misreading of evidence. It is further contended that the ocular account of evidence is contradicted by the medical evidence, as according to the doctor some undigested food in the stomach of the deceased and digested food in the small intestines were present. The learned High Court has attended to this contention and observed that "calculation of time of death with the help of stomach contents is a guesswork and not a sure method and in case of any variation worked out on that basis, as compared to the ocular account, is not decisive, particularly in this case when the margin of variation is 2‑3 hours, the possibility whereof even the doctor did not exclude" ocular evidence. There is no infirmity in the impugned judgment. This appellant was rightly convicted. This appeal has no force. The same is dismissed. N.H.Q./M‑1887/S ????????????????????????????????????????????????????????????????? Appeal dismissed.