1994 P Cr (PLP)

3. The appellant was charged under section,302/449, P.P.C. to which he pleaded not guilty and claimed to be tried.

4. In support of its case, the prosecution produced nine witnesses. Muhammad Nawaz, P.W.1 Constable escorted the dead body of the deceased to the hospital for post-mortem examination on 27-6-1990. He produced last worn clothes of the deceased before the Investigating Officer who took the same into possession vide recovery memo. Exh.P.A. Zafar Ali Shah, Moharrir Head Constable, P.W.2 had received the sealed parcel of blood-stained earth on 28-6-1990 and gave it to Ata Muhammad, Constable (since dead) for delivering the same at the office of the Chemical Examiner, Lahore. Niaz Muhammad, A.S.I., P.W3 had witnessed the recovery of pistol P.4 from the appellant which was taken into possession vide memo. Exh.P.B. Ghulam Qadir, Patwari Halqa, P.W.4, had prepared the site plans Exh.P.C. and Exh.P.C./1. Abdul Humid, P.W.5 had identified the dead body at the time of post-mortem examination. Muhammad Amin P.W.6 had lodged the F.I.R. Exh.P.D. He stated that on 27-6-1990 at 6-45 p.m., he alongwith Faiz Muhammad, Mst. Sardaran Bibi and Taj Muhammad (deceased) were present in the house of the deceased when all of a sudden, the appellant armed with a .12 bore pistol came in the courtyard of the house. He gave a Lalkara and told Taj Muhammad as to how did he dare to insult him and that he would not spare him. Thereafter, the appellant fired a pistol shot at the deceased causing injuries on the right side of his chest, on different parts. The injured person fell down and expired within 5/6 minutes. Mst. Sardaran P.W.7 widow of Taj Muhammad fully supported the complainant. Ghulam Muhammad, Inspector, P.W.9 had conducted investigation in the case. He arrested the appellant on 16-7-1990, effected the recovery of pistol P.4 from his house, completed the investigation and submitted the challan.

5. When examined under section 342, Cr.P.C., the appellant denied the allegations against him as well as the recovery of pistol from him. In reply to question No.8, he made the following statement:-- "Taj Muhammad deceased was retired from Army two years back. He was given gratuity and pension in lacs of rupees. He lived with his father and stepbrothers in joint family. His father and brothers had asked him to hand over the money as they were in joint family but the deceased refused to hand over the money and dispute arose between them. His father and step-brothers turned him out of his house. I used to support the deceased in the quarrel between his father and brother and hence his father and brothers bore grudge against me. I also owed Rs.5,000 to Muhammad Ameen complainant but I could not repay him and I and Muhammad Ameen had many times quarrelled on this matter, hence he was inimical towards me. Taj Muhammad deceased purchased land for residential purposes two years back outside the village and started construction on it and had cultivated vegetables on some portion of land. His house was not completed till the day of occurrence and he had not taken up residence in that house. The deceased was killed in his vegetable field at night time and the complainant party had involved me in this case falsely. In fact, they were themselves responsible for his murder and have now tried to save their own skin."

6. The appellant's learned counsel contends that there was no independent witness to support the prosecution case and that both the eye witnesses namely Muhammad Amin P.W.6 and Mst. Sardaran Bibi being closely related to the deceased could not be relied upon. He adds that Muhammad Amin P.W.6 had his own house in Manda Khel situated at the distance of 1-1/2 miles from the place of occurrence and that he could not be present in the house of the deceased. He had no business to be there. He further submits that according to the doctor, the injuries found on the body of the deceased were possibly caused by more than one shot. He adds that the eye-wtinesses had stated that the deceased had not taken his meals but according to the post-mortem report, he had taken his meals before the occurrence. He further submits that the recovery of pistol was planted on the appellants and was rightly discarded by the trial Court, particularly, when no empty was recovered to connect the pistol with the commission of the offence. On the other hand, the learned State counsel supported the conviction and urged that there was no previous background of enmity and that the inmates of the house as well as Muhammad Amin complainant were natural witnesses of the occurrence and could be safely relied upon. He further submits that the pellet injuries were caused by one shot fired by the appellant and adds that the doctor had made a concessional statement which should not be relied upon.

7. The trial Court has believed the motive which relates to a fight between the children of the appellant and the deceased. The evidence of motive has been provided by Mst. Sardaran Bibi; P.W.7, widow of Taj Muhammad (deceased). She stated that about 3 days prior to the occurrence, a dispute had taken place between the children of her family and those of the appellant, the next door neighbour of the deceased. Her husband Taj Muhammad (deceased) admonished the appellant and humiliated him. In cross-examination, she explained that the dispute amongst the children had arisen at the Degarwela when the appellant was also present. Her eldest son Irshad aged about 9/10 years had quarrelled with Hamid son of the appellant. She added that the children had grappled with each other but none of them was injured. Thereupon, deceased abused the appellant. It was not suggested to her by the defence that she had cooked up the motive story and made a false statement in this respect. Therefore, the motive was rightly believed by the trial Court. As mentioned above, the appellant was the next door neighbour of the deceased. Ordinarily, Muhammad Amin (complainant) P.W.6 and Mst. Sardaran Bibi, P.W.7 would not have falsely involved the appellant in the case, particularly, when there was no background of enmity. It appears that after the fight between the children, the appellant was insulted and he decided to teach a lesson to the deceased. He entered the house of the deceased being armed with a .12 bore pistol and fired at him causing as many as 10 injuries to him.

8. The argument of the appellant's learned counsel that the injuries were probably caused by two fire-arm shots could not be accepted. All the injuries appear to have been caused when the assailant was on the front side. The opinion of the doctor that the injuries Nos.4, 5 and 6 could be caused when the assailant was on the front side of the victim whereas injuries Nos.l, 2 and 3 could be caused when he was on the right side appears to be a mere concessional 'statement and cannot be given any weight. Apparently, all the injuries except injury No.7 were possible by a shot fired from the front side. The doctor did not give proper description of injury No.7. He merely described it as a wound which according to him was the result of touch through of the pellet. This injury could have been the result of fall of the deceased on the hard wood part of the cot, after receiving other fire-arm injuries. Mst. Sardaran Bibi P.W.7 widow of the deceased stated that her husband got up from the cot and was fired at by the appellant and fell on the cot. Therefore, I am not persuaded E to hold that there is any contradiction in the ocular or medical evidence.

52. The complainant Muhammad Amin, P.W.6 is the uncle of Taj Muhammad (deceased) and on the fateful evening was staying in the house of the deceased. The mere fact that his own house in Manda Khel Village was at a distance of 1-1./2 miles from the hou4e of the deceased, per se, is not sufficient to discard his evidence. He appears to be a truthful witness. Had he been a liar, he would have conveniently stated that even at the time of dispute between the children, he was present. As regards his presence in the house, he had stated that he had gone to the house of the deceased in order to look after his lands situated near the house of the deceased. Despite lengthy cross examination, nothing significant was elicited to doubt his presence at the time of occurrence. The statement of the complainant is fully corroborated by Mst. Sardaran Bibi. P.W.7 widow of the deceased. The ocular evidence cannot be thrown out merely on the basis of the post-mortem report showing presence of semi-digested food in the stomach of the deceased. The deceased had not taken his dinner but had taken something prior to that, of course, not in the presence of the eye-witnesses. Therefore, the trial Court was fully justified to, place reliance on the eye-witnesses and record the appellants conviction under section 302 of the P.P.C. . I. For the foregoing reasons, I do not find any merit in this appeal which is dismissed. N.H.Q./M-1637/L Appeal dismissed.