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Criminal Appeal No. 34 of 1972; decided do 7th November 1'972.

(On appeal from the judgment and order of the former High Court of West Pakistan, Lahore, dated the 1st April 19.70, in Criminal Appeal No. 159 of 1969/Murder Reference. No. 69 of 1969).

Penal Code (XLV of 1860),

Ss. 302 & 353‑Deceased, a constable, shot at by accused while deceased pursued him on receiving information that shot‑gun and bandolier carried by accused were unlicensed‑Accused himself leading Investigating Officer to recover, crime gun and bandolier, empty cartridges, and five live cartridges from under a heap of dung‑Witnesses disinterested but one witness interested although natural whose presence at spot not open to doubt‑Fact that there was some discrepancy with regard to distance from which gun was, fired, held, not important circumstance -Witnesses examined after a long time‑Could make honest mistakes with respect to such distances‑Conviction upheld.

Qazi Muhammad Saleem, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellant.

Mian Nusratullah, Advocate Supreme Court instructed by Sh. Ejaz Ali, Advocate‑ on‑Record for the State.

Date of hearing : 7th November 1972.,

The appellant was tried for the murder of Foot Constable Abdul Hamid and for ,assaulting a public servant in execution of his duty under sections 302 and 353, P. P. C. respectively. He was convicted by the learned Additional Sessions Judge, Sahiwal and sentenced to death under section 302, P..C, He was sentenced to two years' R. I. under section 353, P.P.C. The matter was taken to the former High Court of West Pakistan, Lahore, in Criminal Appeal No. 159 of 1969 (Murder Reference No. 69 of 1969), and a Division Bench of the High Court, by judgment dated the 1st April 1970, upheld the conviction, maintained the sentences and confirmed the death sentence of the appellant. The appellant has challenged this judgment in this appeal before us.

The prosecution case is that the deceased, along with others, including Foot Constable Ghulam Ali, were sitting at the dera of Gahra Lambardar in Chak No. 92/D at about 10‑00 a.m.

The appellant, was seen carrying a shot‑gun, Exh. P. 10, and a bandolier, Exh. P. 11 without licence. The deceased, on learning this fact, took a bicycle and pursed the appellant. Foot Constable Ghulam Ali, Ataullah, Jamal and Siddiq also followed him. At the Ahmad Wala Well, the deceased got in front of the' appellant and other persons encircled him from behind. The appellant loaded the gun and fired at the deceased hitting him on the left side of the abdomen. Abdul Hamid Foot Constable fell down‑and died at the spot. The appellant re‑loaded the 'gun when F. C. Ghulam Ali and others tried to apprehend him. He threatened them with death and managed to escape in the neighbouring forest.

Foot Constable Ghulam Ali proceeded to Malka Hans Police Station at a distance of 12 miles from the scene of ‑offence and lodged the F. I. R. at about 12‑00 noon. The matter was investigated by the police. ‑The injury sheet and inquest report was prepared and S. I. Muhammad Siddiq P. W. 15, despatched the dead body to mortuary for post‑mortem examination. In the presence of Ataullah and Jamal, the Sub‑Inspector took into possession the blood‑stained earth from the Tot and sealed it into a parcel. He also recovered a ' 12‑bore empty from the spot and sealed it into a parcel. Exh. P. 1, the bicycle of the deceased was taken into possession by the police. The non‑bailable warrants received from the Court of a Sahiwal Magistrate for service on Ahmad son of Sher, Ahmad son of Baqir and Gahra who were witnesses in case under section 302, P. P. C:, were also recovered.

The appellant appeared before the police on the 20th January 1968, on the following day. ' He led the police and got the recovery of gun, Exh. P. 10, bandolier, Exh. P. 11, empty cartridges, Exh. P. 12/1‑il, and five live cartridges, Exh. P. 14/1 5 from the dhari of Lalu Khokhar from under the heap of dung. The recovery witnesses are Jalal P. W.. 7 and Malik Ghulam Sarwar P. W. 8.

The appellant was challaned in Court. He pleaded not guilty to the charge and stated that he was involved on the basis of suspicion by Jan Muhammad due to enmity. He did not produce any witness in defence.

The prosecution case is supported by the evidence of F. C. Ghulam Ali P. W. , 10, Jamal 'P. W. 12 and. Siddiq P. W. 13. Their evidence is that on the eventful day at about 10‑00 a.m. they were present at the dera of Gahra Lambardar with the deceased when the appellant was seen coming towards the north of the Chak and was armed with a gun, Exh. P. 10 and had a bandolier, Exh. P. 11 containing cartridges. Ataullah P. W. 11 informed the deceased that the gun with the appellant is without licence. The appellant in order to escape turned the corner of the street. The deceased took up a bicycle and went in pursuit of the appellant followed by F. C. Ghulam Ali, Ataullah, Jamal and Siddiq. When the deceased reached at Ahmad Wala well, he got in front of the appellant while the rest encircled him from behind. The appellant told the deceased to get aside. The deceased refused to do so. The appellant loaded the gun and Area a shot at the deceased hitting him on the left side of the abdomen, lower part. The deceased fell down and died.

It may be mentioned that F. C. Ghulam Ali and the deceased had gone to Chak No. 92/D to effect service of warrants of arrest on Ahmad son of Sher, Abroad son of Baqir and Gahra, who were avoiding to appear as witnesses in evidence in a case pending in the Court of Mr. Muhammad Attiq, Magistrate, 1st Class, Sahiwal. They were to be produced in Court on the 18th January 1968. It was in these circumstances that the deceased together with F. C. Ghulam Ali, Ataullah, Member, Union Council, Jamal and Siddiq were sitting at the dera of Gahra Lambardar.

Both the trial Court and the High Court has accepted the oral evidence. Ataullah was declared hostile and his evidence before the committing Magistrate was brought on record under section 288, Cr. P. C. and was treated as evidence in the case. Jan Muhammad P. W. 14 who claimed to have seen the appellant entering the forest, carrying gun, ECh. P. 10, and bandolier, was disbelieved by the trial Court and the High Court. All the other evidence, except F. C. Ghulam Ali, is of disinterested persons. F. C. Ghulam Ali was a natural witness whose presence at the dera of Gahra Lambardar at about 10‑00 a.m. cannot be doubted. In these circumstances, it cannot be said that the prosecution evidence was inimical or of interested witnesses.

Mr. Q. M. Saleem, learned counsel for the appellant, has contended that the ocular testimony produced by the prosecution does not tally with the medical evidence produced on the record. The learned counsel referred us to the statement of the doctor who stated that the deceased was shot at from a distance of six to 12 feet and that the injuries could have been the result of more than one fire shot. The ocular evidence is that the appellant fired only one shot. As pointed out by the High Court, this evidence is not contrary to the medical evidence because the doctor himself declared that in his opinion the injuries found on the person of the deceased could be the result of a single shot. There was a blackening on the wound of the deceased and according to the doctor, the deceased was shot at from a distance of six to 12 feet. The ocular evidence shows that the deceased was shot at from a distance of 17 karams. The High Court has disregarded this circumstance on the following observations :‑

"But the idea about the distance by the illiterate villagers is only approximate. It is also to be borne in mind that the witnesses testified at the trial a year after the occurrence and if they made any honest mistake with respect to the distance from which the appellant aimed at the victim and fired the fatal shot, it is understandable. It was a daylight occurrence which took place not far away from the village Abadi and as such ft cannot be successfully argued that nobody saw the deceased being killed."

We are in full agreement with these observations. In our opinion too, the witnesses were examined after a long time and they might have made honest mistake with respect to the distance, from which the appellant fired at the victim. In these circum stances, we attach no importance to this circumstance and believe the oral evidence produced by the prosecution. It is of disinterested witnesses and there is no ground to disbelieve them'. In view of this, the High Court was perfectly justified in upholding the conviction of the appellant and in dismissing his appeal. We, therefore, find no ground to interfere. The appeal is dismissed.

Appeal dismissed.

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