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Criminal Revision No. 857 of 1973, decided on 12th January, 1983.

---S. 435/439--Penal Code (XLV of 1860), S. 304-A/302--Suo motu revision against acquittal of accused from charge under section 302, P.P.C- Prosecution not producing any witness of actual firing by accused on deceased except one, who also supported plea of accidental firing taken by accused--Exculpatory part of statement of accused not falsified or controverted by prosecution, and his statement liable to be accepted as a whole--Lack of evidence and no strong or exceptional ground being available for interference in revision, interference declined.

Akhtar Masood for the State. M.Soltan.Alam for Respondent. Dates of hearing: 11th and 12th January, 1983.

The facts leading up to this Suo Motu Criminal Revision are that the petitioner was tried by the learned Additional Sessions Judge, Multan under section 302, P.P.C. for causing the death of Mst. Manzooran, his wife on 30th September, 1971 at 8.00 a.m. in his own house situated in Chak No.88/W.B. of P.S. Mirtu. The F.I.R. Exh. P.A. i.e. the statement of Muhammd Anwar P.W. 11 was produced at the police station and on the basis of the same formal F.I.R. Exh. F.A/1 was registered at the police station under section 304-A, P.P.C. at 10.30 a.m. on the same day.

2. According to the F.I.R., the prosecution case is that Abbas Ali respondent was attempting to cause fear to his wife and children with the gun which accidentally went off and the shot hit his wife Mst. Manzooran who died at the spot. After, investigation the police submitted the challan under section 304-A, P.P.C. It so happened that Din Muhammad, the father of Mst. Manzooran filed a complaint Exh. D. A. under section 362, P.P.C. against the respondent on 4th Novebmer,1971 wherein he stated that it was an intentional and not an accidental murder. The challan case and the complaint were consolidated and the proceedings were taken in the complaint case wherein the prosecution examined as many as 18 witnesses. P. W.1 Dr. Mushtaq Ahmad conducted the post-mortem examination. He found the following injuries on the person of the deceased:-

(1) A lacerated wound 5" x 2" standing from the lower margin of the left eye to the right side of head. The brain matter had come out of the wound. The margins were black.

(2) A lacerated wound 1 " x of exit on the right side of back of head.

(3) Three lacerated wounds " x each ground together 1" below injury No.2 These were also wound of exit.

In his opinion, the death was the result of shock and haemorrhage caused by injury No.1 which was sufficient to cause death in the ordinary course of nature. P.W.2 Muhammad Iqbal, P.W.9 Hashmat Shah and P.W.10 Rehmat Ali are the witnesses of the identification of dead body before the doctor. P.W.3 Din Muhammad is the complainant. He supported his case as given in the complaint Exh. P.A. and stated that he had received a message from Noor Ahmad P.W.4 that Mst. Manzooran, is going to be killed by the respondent on account of strained relations between husband and the wife. Furthermore, the respondent wanted to marry Mst. Sharifan and for that the relation between the Spouses were strained. He further stated that he was informed by P.W.4 Noor Ahmad, P.W.5 Ali Muhammad, P.W.6 Khan Muhammad and P.W.7 Muhammad Sharif that the respondent had killed his wife with gun. The abovementioned P.Ws.4 to 7 when examined stated that when they reached the house of the respondent, they found Mst. Manzooran already dead and that on seeing them, the respondent fired in the air and thereafter he was apprehended by her mother. P.W. 8 escorted the dead body from the house to the mortuary P.W.11 is the first informant. He supported the story as given in the F.I.R. and stated that the gun had accidentally went off causing the death of the deceased as told to him by Mst. Suban P.W. 14 P.W.12 Fazal Karim and P.W.13 Abdul Ghafoor, and P.W. 14 Mst. Suban supported the F.I.R. and the statement of Muhammad Anwar, the informant on all material particulars. P.W.15 is Noor Muhammad. He is the witness of recovery of gun and cartridges which were taken into possession vide memo. Exh. P.C. P.W. 16 Sardar Muhammad is the witness of recovery and the blood-stained clothes of the deceased delivered by the foot constable to the Investigating Officer which were taken into possession vide memo. Exh. P.G. P.W.17 Nazar Muhammad is the witness of recovery of the case of the gun. Ata Muhammad P.W. 18 investigated the case and submitted the challan under section 304, P.P.C. Since the proceedings were taken on the complaint, the learned trial Court examined Shah Muhammad and Bashir Ahmad as Court witness. Bashir Ahmed C.W.1 supported Din Muhammad, the father of the deceased and stated that when he went to the place of occurrence, he found Mst. Manzooran having already died. C.W.2 is the owner of the gun Exh.P.1. He stated that on the day of occurrence, he left his licensed gun Exh.P.1 at the house of the respondent and later on he heard that it fired accidentally. In the cross-examination he stated that he had not disclosed to the respondent that the gun was loaded. The respondent when examined under section 342, Cr.P.C. owned the liability of the death of Mst. Manzooran, his wife. He took the plea of accident and his version is almost the same as given in the F.I.R. by Muhammad Anwar.

3. The trial Court convicted the respondent under section 304-A, P.P.C. and sentenced him to 2 years, R.I. It is remarkable that the respondent did not file any appeal against his conviction and has served out the sentence. The complainant has also not challenged the decision of the trial Court through appeal or revision. It so happened that during the inspection, the record of the case was placed before his Lordship Mr. Justice M.A.Zullah, J. who feeling not satisfied with the correctness of the judgment issued suo motu notice to then respondent and to the State to consider the question whether acquittal insofar as charge under section 302, P.P.C. is concerned, was justified or not.

4. The learned counsel for the State submits that the respondent had a motive to kill the deceased which stands supported by the statements of Noor Ahmad, P.W.4 and Din Muhammad P.W.3. Furthermore, the circumstance that the accused/respondent was aware about the gun being loaded and that his action in taking the aim and so-called toying with the dangerous weapon being not plausible, it was a clear case of intentional murder and as such the act of the accused is covered by clause firstly to section 300, P.P.C. and the offence committed by the accused/respondent would fall within the purview of section 302, P.P.C.

As against this, the learned counsel for the respondent has vigorously defended the impugned judgment. He submits that as far as the causing of death of the deceased by the firing of the respondent, there is no ocular evidence except that of Mst. Suban P.W.14 and according to her, the gun went of accidentally. Furthermore, C.W.2 stated in so many words that he had not informed the accused that the gun was loaded and that the complaint was lodged after about 1 months of the occurrence.

5. After hearing the learned counsel for the parties, and going through the record, I find that except Mst. Suban, the prosecution has not produced any witness as to the actual firing of the gun by the accused on the person of the deceased. The P.Ws. namely, .Khan Muhammad, P.W.6, Muhammad Sharif P.W.7, C.W.1 Bashir Ahmad, Noor Ahmad P.W.4 and Ali Muhammad P.W.5 have simply stated that when they reached the place of occurrence, they found that Mst. Manzooran was lying murdered and that in their presence, the accused fired in the air. Since the prosecution has not produced any witness of the actual firing by the respondent on the deceased except Mst. Sub-an, who, too, has supported the plea of accident taken by the respondent and that the exculpatory part of the statement of the accused has not been falsified or controverted by the prosecution, his statement has, therefore, to be accepted as whole. C.W.2 has clearly stated that on the day of occurrence, he had, not told the accused that the gun was loaded. It is well-settled that for revision against acquittal strong and exceptional grounds are required which I do not find in this case because of the lack of evidence.

6. For what has been stated above, I am not inclined to interfere with the finding of the acquittal of the accused passed by a Court of competent jurisdiction. Order accordingly.

M. Y. H. Revision against acquittal dismissed

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