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Criminal Appeal No. 92 of 1980, decided on 24th February,1986
(On appeal from the judgment of the Lahore High Court, dated 3‑6‑1976 in Criminal Appeal No. 882/75).
‑‑‑Art. 183(5)‑‑Penal Code (XLV of 1860), S. 302/307‑‑Leave to appeal granted to examine effect of conflict between medical evidence and ocular version of eye‑witnesses.
‑‑S. 302/307‑‑Medical evidence indicating that shot hit deceased on back and had come out from front, whereas ocular testimony described shot to have been received by deceased from front of chest‑‑Eye witnesses categorically stating in cross‑examination that deceased was hit from front and bullet passed through her body emerged from her back‑‑Trial Court adverted to such inconsistency but gave no importance to contradiction and this aspect was not highlighted or pressed before High Court‑‑Occurrence was result of confusion and excitement generated by dramatic circumstances in which offence was committed‑‑No doubt existing about presence of eye‑witnesses and their testimony fully implicating accused‑‑Conviction and sentence maintained.
‑‑‑S. 302/307‑‑Motive‑‑Offence‑‑It is not incumbent upon prosecution to prove motive against accused in commission of crime.‑‑[Motive].
Asif Jan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate- on‑Record for Appellant.
Ch. Ghulam Ahmad, Advocate Supreme Court with Rao Muhammad Yousaf, Advocate‑on‑Record for the State.
Date of hearing: 24th February, 1986.
Appellant Saeedullah Khan was tried and convicted under section 302, P.P.C for the murder of Mst. Gul Mewa by the learned Sessions Judge, Campbellpur (now Attock), and was sentenced to imprisonment for life as well as fine of Rs.3,000 or in default to undergo two years' R.I. On another count he was further convicted under section 307, P.P.C. for murderous assault on Mueen Badshah brother‑in‑law of the deceased and was sentenced to 7 years' R.I. as well as fine of Rs.2,000 or in default to undergo 1 years' R.I. These substantive sentences of imprisonment were, however, ordered to run concurrently. The trial Court also directed that if fine imposed on first count was realised it was to be paid to the husband of the deceased as compensation and out of the fine on the second count is realised Rs.1,000 was directed to be paid to injured Mueen Badshah P.W. as compensation.
2. The case of the prosecution against the appellant was that on 14th October, 1973, at morning Rotiwela time within the area of Dhok Ghazi Khel Kani, at a distance of about 9 miles from Police Station Makhad, District Campbellpur (now District Attock), Mueen Badshah was ploughing his field. At that time Muzaffar Khan brother‑in‑law of Mueen Badshah, Mst. Gul Khema wife of Muzaffar Khan and Shah Mir were also present nearby at their Dhok. All of a sudden the appellant appeared there armed with rifle and raised a Lalkara declaring that he had come to take revenge from Mueen Badshah for having abducted his (appellant) wife. Immediately thereafter the appellant fired three successive shots with his rifle aiming at Mueen Badshah but as luck would have it the latter escaped unhurt and took to his heels for his life. However, the appellant pursued him and fired the fourth shot with his rifle which hit on the back of his leg as a result of which he fell to the ground. In the meantime Mst. Gul Mewa deceased came out and raised alarm. Thereupon, the appellant fired a shot with his rifle hitting her in the chest on account of which she fell down. Shortly, thereafter, she breathed her last at the spot. The occurrence was seen besides Mueen Badshah, by Muzaffar Khan as well as by Mst. Gul Khema and Shah Mir. The appellant decamped from the scene alongwith the weapon of the crime. The First Information Report was lodged on the same day at 2 p.m. by Muzaffar Khan. The motive for the crime disclosed in the F.I.R. was that about two months prior to the occurrence Mueen Badshah, who had an illicit liaison with Mst. Nek Jan wife of the appellant had eloped her, while the appellant who was serving in the Army was not present in his house. Mst. Nek Jan is said to have been kept by Mueen Badshah for sometime. Thereafter, on the intervention of the Jirga Mueen Badshah had returned Mst. Nek Jan. The appellant was annoyed with Mueen Badshah over this affair and wanted to avenge the dishonour done to him.
3. As the appellant was in the service of the Army he could not be arrested until later when he was relieved on 21st January, 1974. From the spot three crime empties were recovered and a rifle was secured at the instance of the appellant. According to the Ballistic Expert the crime empties secured from the scene of the occurrence were fired from the rifle recovered from the appellant.
4. The autoposy on the dead body of the deceased was conducted by Dr. Muhammad Rafiq, Medical Officer, Civil Hospital, Pindigheb. He found two wounds on the dead body which he described as under:
"(1) A fire‑arm wound on the front of the abdomen on the right side about 2" above the umbilicus and about 1 " away to the central line. Injury was measured about 3/4" x ". The edges of the wounds were echymosued and were inverted. The area around the wound about was blackened.
(2) A fire‑arm wound on the back of the0 lowest part of the left chest about " away from the central line. The injury measured about 1 " x 1". The edges of the injuries were everted. Injury No.l was wound of entry and No.2 wound was exit." .
The appellant denied the allegations of the prosecution and pleaded his innocence. He denied the motive alleged against him and also the recovery of rifle attributed to him. He also disowned the rifle. He further stated that the complainant party had a grudge towards him because Mst. Gul Khema wife of complainant Muzaffar Khan was challaned alongwith others for the abduction of his relative Mst. Gul Sanama before the occurrence. As to Mueen Badshah he alleged that he wanted to get his (appellant) wife Mst. Nek Jan and had, therefore, obviously involved him in the case with help of his relatives whom he had set up as witnesses. The recovery evidence was rejected by the trial Court. Therefore, the case of the prosecution rested on ocular testimony as corroborated by the evidence of motive. The ocular version was furnished by injured Mueen Badshah and Muzaffar Khan complainant. They have also deposed to the motive attributed to the appellant. Mueen Badshah stated that Mst. Nek Jan wife of the appellant was carrying on illicit relations with him and he had kept her in his house for two months before the occurrence. Thereafter a Jirga was held which decided that the appellant should divorce Mst. Nek Jan in lieu of Rs.3,000 to be paid by Mueen Badshah. At the time of this decision, however, appellant was not present but his father had participated in the deliberations of the Jirga. ,The appellant returned to the village after three or four days of the said decision and refused to accept the same, insisting for the restoration of his wife. Accordingly, Mueen Badshah returned Mst. Nek Jan to the appellant. The deceased Mst. Gul Mewa was the wife of Anar Badshah brother of Mueen Badshah. On the other hand Muzaffar Khan the other eye‑witness, is married to the sister of Mueen Badshah, namely, Mst. Gul Khema. The prosecution did not produce Mst. Gul Khema and Shah Mir, the other two eye‑witnesses mentioned in the F.I.R.
6. The injuries sustained by Mueen Badshah were also examined by the doctor who found the fire‑arm wound of entry on the back of the upper part of his right leg with the corresponding exit wound on the front of the upper part of the right leg. Also an abrasion mark was found on another part of the body, which was simple in nature. The trial Court believed the eye‑witnesses and found no discrepancy in their testimony, which was held to inspire confidence. The motive qua Mueen Badshah was also believed by the trial Court and it was held that Mst. Gul Mewa had every justification to intervene in order to save her brother‑in‑law but the appellant had no justification to kill her.
7. The appeal filed by the appellant against his convictions and sentences awarded to him was dismissed by a learned Judge of the Lahore High Court by his judgment, dated 3rd June, 1976. The learned Judge in agreeing with the findings of the trial Court observed:
"The case of the prosecution is supported by natural witnesses being residents of the same Dhok. They resided at the same place. According to their version the appellant had come to the scene of crime armed with a rifle and fired shots at Mueen Badshah P.W. It is understandable that the appellant had a motive to come even with Mueen Badshah P.W. but luckily Mueen Badshah P.W. escaped death and instead his sister‑in‑law the deceased who had no connection with the abduction of the wife of the appellant was made target and was murdered at the hands of the appellant in the course of occurrence as she had raised an alarm or had come forward for the rescue of Mueen Badshah P.W. The ocular testimony in this case as it has been pointed out comes from natural witnesses out of which one has been injured in the course of occurrence at the hands of the appellant. It is further supported by the motive as well as the medical evidence. If the complainant side had a motive to falsely implicate, they could have involved other members also of the family of the appellants. I do not find any force in the argument of learned counsel that the appellant might have been substituted for the real culprit in this case by the eye‑witnesses, for substitution is a rare phenomenon. There is nothing on the record to indicate that any other enemy of the complainant side than the appellant could have possibly committed the crime."
8. Leave to appeal was granted in order to examine the effect of conflict in the medical evidence and the ocular version of the eyewitnesses on the prosecution case. In this regard reference was made to the testimony of the doctor, who had found that there was a fire‑arm wound on the front of the abdomen of the deceased on the right side about 2" above the umbilicus and about 1 " away to the central line with inverted and echymosed edges which were blackened to a width of about " and another fire‑arm wound on the back of the lowest part of the left chest about " away from the central line with everted edges. This indicated that the shot had hit the deceased on her back and had come out from the front whereas the ocular testimony described the shot to have been received by the deceased from the front on the chest.
9. It is contended by the learned counsel for the appellant that this apparent contradiction between the medical evidence and the ocular version rendered the testimony of the alleged eye‑witnesses unreliable and unsafe for sustaining convictions. Learned counsel submitted that this fact gives strong support for the proposition that the deceased was murdered during the night in the earlier hours so that it was an un-witnessed crime. We have perused the evidence on the record with the assistance of the learned counsel. According to the version of the prosecution as disclosed in the F.I. R. it is undoubtedly true that it, was stated that Mst. Gul Mewa was hit with the shot fired by the appellant on her back and the bullet passed through her body and came out on the front side from her chest. However, in his deposition in the court Muzaffar Khan complainant described the injuries received by the deceased in the reverse order, namely, that the shot hit her from the front on her chest. It seems that he was not contradicted by confrontation with what he stated in the F.I.R. The other eye‑witness, namely, Mueen Badshah while describing the occurrence stated with regard to the injuries received by the deceased:‑
"Deceased Mst. Mewa Gul arrived there and raised an alarm. The accused injured her in the chest with fire and she fell down too."
Again in the cross‑examination he categorically stated that the deceased was hit from the front and the bullet passed through her body emerging from her back. Confronted with his police statement he replied:
"By mistake I stated before the police that the bullet struck her in the back and passed out from front. It is incorrect that I have changed statement to be in lint with the medical evidence."
The trial Court also adverted to this inconsistency in its judgment and, gave no importance to the so‑called contradiction on the ground that in the confusion and the traumatic situation where the appellant was firing shots, the eye‑witnesses could be naturally expected to be perplexed. It seems this aspect was not highlighted or pressed before the High Court as there is no discussion thereon in the judgment of the High Court.
10. After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence. In the circumstances of this case when he was being chased and running away in order to save himself from being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured, however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose close relation was being attempted to be murdered in his presence, must be looking at the lawful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to these circumstances the contradiction in the F.I.R. and the Police version with he evidence in Court seems to pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be no doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant.
11. So far as the submission that the time of occurrence was not 8‑00 in the morning but somewhere in the earlier hours of the day before sunrise, it is sufficient to state that the doctor found the semi‑digested food in the stomach contents and the peritoneal cavity. It is on the record that the occurrence took place during Ramazan. This fact is consistent with the deceased having taken Sehri which must have been rendered into the state in which it was found in the stomach. The suggestion that the occurrence took place long before the Sehri hours, is, therefore, negated by this circumstance as the stomach would have been empty at that time.
12. Learned counsel also submitted that the appellant had no grievance or grudge against the deceased and consequently, there is no reason for him to have taken her life. The prosecution case is that the appellant was pursuing Mueen Badshah in order to kill him but was unable to succeed with the first three shots. So far as Mueen Badshah is concerned, the evidence that appellant had a grudge against him on account of his having eloped with his wife, has remained unimpeached. In the circumstances, the evidence shows that the deceased came upon the scene and according to Mueen Badshah she started raising alarm. It is quite natural for the appellant to have been further annoyed by the presence of the deceased who was raising hue and cry to prevent him from taking his revenge. But there could have been reason for the appellant to have a grudge against the deceased. In the F.I.R. the complainant had stated that the appellant had a grievance against her for having assisted Mueen Badshah in eloping with the wife of the appellant. This fact has been brought in the evidence of complainant by contradiction with the F.I.R. Be that as it may, it is well established that it is not incumbent upon the prosecution to prove motive against an accused person in the commission of a crime.
13. Finally, the learned counsel argued that the deceased might have been killed by someone else and the appellant may have been implicated on account of suspicion. In this connection he submitted that the husband of the deceased had made such an application to the police. We find nothing on the record in support of this submission. The suggestion made to Muzaffar Khan complainant to this effect that several persons were suspected was denied.
14. In the light of the foregoing discussion, we find no merit in this appeal which is accordingly dismissed. It may be stated that the learned counsel for the appellant had very fairly informed the Court that the appellant had already served out the sentence and has been released. However, since the appeal was pressed, in spite of that, we have disposed of the same on merits.
M. Y. H. Appeal dismissed.
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