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Criminal Appeal No.17 and Murder Reference 1<1o.68 of 1984, decided on 9-5-1987.

---S.302--Eye-witnesses actually witnessing occurrence and their account of occurrence inspiring confidence and were corroborated fully by medical evidence and finding support from motive which was not denied even by accused--Accused not substituted for real assailant--Conviction and sentence upheld.

---S.302--Substitution for accused--Possibility of false implication could be expected but substitution was a thing of rare phenomenon for which a strong case-had to be made out for eliminating actual culprit and inculpating an innocent person.

---S.302--Criminal Procedure Code (V of 1898), S.435/439--Acquittal- One of co-accused allegedly raised a Lalkara which fact even not stated in first information report lodged by complainant nor by a prosecution witness in his statement under 5.161, Cr.P.C. while other co-accused fired a shot in air after deceased had already been hit by main accused--No corroboratory evidence existing' about their participation in occurrence--Appraisal of evidence done by Trial Court qua them well reasoned and based on facts--Order of acquittal maintained in circumstances.

---S.302--Time of occurrence--Medical report about a doctor cannot give time of occurrence by clock.

Mardan Ali v. Gulistan etc. 1980 S C M R 889 rel.

Ch. Ghulam Sarwar for Appellant.

Azmat Dad for the State.

Rab Nawaz Noon for the Complainant.

Date of hearing: 9th May, 1987.

.--Muhammad Younus (22) was tried alongwith Fazal Elahi and Saleem Akhtar, by Sessions Judge, Rawalpindi, for having murdered Abdul Khaliq on 22-7-1982, ,;at 2 p.m., in his house, in village Pind Ranjna, at a distance of seven miles from Police Station Sangjani. The learned trial Judge vide judgment, dated 4-3-1984, found him guilty under section 302, P.P.C., convicted him accordingly and sentenced to death, plus a fine of Rs.5,090/- in default whereof to undergo R.I. for two years. Fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.

Vide the same judgment, the learned trial Judge had acquitted Fazal Elahi and Saleem Akhtar.

2. The convict has filed appeal. The learned trial Judge has made reference for confirmation of death sentence. The complainant has filed Criminal Revision No.89/84, praying setting aside acquittal of Fazal Elahi and Saleem Akhtar.

As all the matters arise from one judgment, they are being disposed of by same judgment.

3. F.I.R. (Ex. PE/1) was registered at Police Station Sangjani on 22-7-198', at 4.30 p.m. by Allah Yar, MHC (PW. 7), on receipt of statement (Ex. PE) of Abdur Rehman (PW. 6), recorded by "Muhammad; SI/SHO (PW.12), at 3.45 p.m., the same day, at Bus Adda Dhok Hamida Sangjani.

4. According to the F.I.R. the appellant accompanied by his acquitted co-accused, armed with guns had fired at shot a Abdul Khaliq (deceased) from a close range, when he was lying under Dhraik tree in his house. The shot had struck him on the face and left eye. The occurrence was witnessed by Abdur Rehman complainant and his brother Muhammad Ali. At the raising of noise by them Saleem Akhtar fired a shot in the air. The accused while running from the spot were seen by many villagers. Abdul Khaliq died at the spot.

Mst. Irshad was murdered 5/6 years before the occurrence. The deceased, Kala son of Gulab and Dad were challaned, but they were acquitted. Mst. Irshad was sister of Saleem Akhtar acquitted accused. Appellant and Fazal Elahi are her Khalazad. The deceased was murdered to avenge the murder of Mst. Irshad.

5. The S.I. after recording the statement, reached the spot. After preparing inquest report, he despatched the dead body for post-mortem examination. Thereafter, he collected blood-stained earth from the place of occurrence vide memo. Ex.PD.

Appellant and Saleem Akhtar were arrested by him on 24-7-1982, while Fazal Elahi was arrested on 26-7-1982.

The appellant had led to the recovery of gun (P.2) on 26-7-1982, from his house, from underneath a wooden box. It was taken into possession vide memo. Ex. PG. Two live cartridges, recovered along with the gun, were also taken into possession vide the same memo.

Gun (P.1) recovered at the instance of Saleem Akhtar, on the same day, was taken into possession vide memo.

6. Dr. Mahmood Khan, who had performed the autopsy on the dead body of the deceased at 9 a.m. on 23-7-1982, appeared as P.W.1. He noted following injuries on the body of the deceased:

(1) A fire-arm wound of entry 7 cm x 6 cm involving left eye-brow and left side of nose and upper part of left cheek. Extensive burning and blackening of edges of wound and skin around the wound was present. The pellets had entered the mouth cavity and caused complete damage to left maxilla, left palate, nasal cavity, complete damage to the tongue, right mandible and all the vessels of neck.

There was corresponding wound of exit on right side of neck, 13 x 8 cm including right mandible, right maxilla and right side upper part of neck. The vessels superficial and deep of right side of neck were all completely destroyed. A piece of wad extracted from entry wound. All the teeth were broken. One pellet was extracted from right side of neck from the wound of exit. One pellet and one wad piece were sealed in a bottle.

(2) There was a wound of impact 2 cm. on left side upper part of chest, with blackening of edges.

The doctor opined that the deceased had died as a result of shock and haemorrhage, due to injury No.l. In cross-examination, he stated that time between death and post-mortem would be about 20 hours (minimum) and 22 hours (maximum).

7. At the trial prosecution in all examined 12 witnesses.

Abdur Rehman, who appeared as P.W. 6, while repeating the facts given by him in the F.I.R. made two improvements, in that he gave time of occurrence as 12 noon or 1 p.m. and assigned the role to Fazal Elahi of having raised a Lalkara that nobody should come forward. Both these facts, during cross-examination, were not found to have been stated in the F.I.R. He gave the distance of his house from the place of occurrence as 24/25 yards and the distance of the Jhugi of Muhammad Ali as 15/16 yards. While answering questions about the occurrence of murder of Mst. Irshad, he expressed lack of knowledge about the motive of that murder. He, however, admitted that Muhammad Bashir alias Kala P.W. in this case was one of the three accused named for the murder of Mst. Irshad. In answer to another question, he stated that the place of occurrence was visible from his house as well.

8. Muhammad Ali (P.W. 9), while corroborating P.W. 6's statement, gave the time of occurrence as Rotiwela, which, during cross-examination, he defined between 9/10 a.m.

Both the witnesses denied the suggestion that the occurrence had taken place at Sehriwela between 5/7 a. m. They also denied the suggestions that they had not witnessed the occurrence and that the F.I.R. was recorded after preliminary investigation at the spot.

Abdur Rehman in answer to another question, while admitting that Gulab Khan was father-in-law of his father volunteered that he joined hands with the accused party. This Gulab Khan appeared as P. W.8. He had identified the dead body of the deceased at the time of autopsy.

Bostan (PW.11) stated about having witnessed the recovery of gun at the instance of the appellant. Ibis statement has been corroborated by the S.I. (PW.12) Bostan in cross-examination admitted that he was first cousin of the deceased.

9. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case. He denied that he had led to the recovery of gun (PW.2) While pleading innocence, he set up the plea that he has been involved in this case due to enmity.

10. Argument heard. Abdur Rehman (PW. 6) and Muhammad Ali (P.W. 9) are real brothers and paternal-uncles of the deceased. The deceased was married to the daughter of Abdur Rehman. Bostan (P.W.11) is Khalazad of the deceased. Looking from this point of view, the contention of the learned counsel for the appellant is correct that the witnesses are related closely to the deceased. However, his stance that they had not witnessed the occurrence has not impressed us. There were three wounds on the deceased, two of them were entry wounds and one was exit wound. There was blackening and burning also. A layman like Abdur Rehman and Muhammad Ali could not have stated that the injuries were the result of one shot, if they had actually not witnessed the occurrence and particularly before the post-mortem examination. Had they not witnessed the infliction of injuries, in all probability, they would have taken three wounds on the deceased to be the result of three independent shots. They would not have known, whether the shots were fired from close range or from a distance, because they could not have known about the presence of blackening and burning, as a result of the oozing of blood. Blackening and burning was noted by the doctor, which must have been done by him after examining the injuries, by removing blood from the seats of the injuries. Only doctors and fire-arm experts can say about the wounds being of entry or exit. A layman would only vouchsafe them if he witnesses their infliction. In this view of the matter, we find no difficulty in concluding that these PWs did witness the occurrence.

11. The argument of the learned counsel for the appellant that the witnesses being inimical might have falsely involved the appellant, is not convincing. The only enmity in this regard relied upon by the learned counsel for the appellant is the murder of Mst. Irshad, which has been mentioned by the prosecution as a motive for the occurrence. We do not think that Abdur Rehman P.W., who is father-in-law and paternal-uncle of the deceased, would have spared actual assailants, even having seen them, and involved innocent persons only for the reason that they were related to a lady murdered 5/6 years before the occurrence, by the deceased and his other two associates.

Possibility of false implication can be expected, but substitution is a thing of rare phenomenon, for which a strong case has to be made out for eliminating the actual culprit and inculpating an innocent) person. There is nothing on record of this case to consider such possibility.

12. The last contention raised by the learned counsel and vehemently argued is, that the medical evidence contradicts the ocular account with regard to the time of occurrence. In this connection learned counsel pointed out that Dr. Mahmood Khan (PW.1) who had performed the autopsy, during cross-examination, had stated that the occurrence had taken place between 5/7 a.m. on 22-7-1982.

We regret to say that this contention has been raised o account of not only misconception of facts, but also on account of miscalculation as well.

The doctor could not have given the time of occurrence b clock. He could, of course, have expressed opinion about hours that passed between the death and post-mortem examination. Of course, time by clock could be calculated there from. Learned counsel failed to take notice that just in the preceding line of doctor's cross-examination, it is recorded that time between death and post-mortem examination was about 20 hours (minimum) and about 22 hours (maximum). Calculating the time backward by clock from the hours given by the doctor, keeping in view the fact that he had performed the post-mortem examination on 23-7-1982 at 9 a.m., the time of occurrence comes-to between 11 a.m. and 1 p.m.

The time of occurrence gives in the F.I.R. is about 2 p.m., while the time of occurrence given by the complainant at the trial is between 12 noon and 1 p.m. The opinion given by the doctor is also not positive. He has used the word, "about", both in 20 hours and 22 hours. That means that he was leaving a margin on both sides. The margin allowed in this connection by the Courts generally is 2 to 3 hours. If that margin is included, the time of occurrence given by the doctor, would correspond with the time of occurrence stated by the complainant in the F.I.R. as well as at the trial. In this connection, Mardan Ali v. Gulistan etc. 1980 S C M R 889, cited by the learned counsel for the appellant, also supports the view that opinion regarding time of occurrence by the doctors may be erroneous by two or three hours. The said judgment, cited by the learned counsel in support of his contention, even otherwise, does not advance his case. In the said case apart from seven/eight hours difference in time of occurrence stated by the eye-witnesses and calculated on the basis of doctor's opinion, the ocular account was also found contradictory with the medical evidence, about the number of shots as well. In that, the deceased was found to have been hit by one shot at the time of post-mortem examination, while the eye-witnesses had stated that three shots were fired on him.

The murder in this case was committed on Eid day. The ocular account, which inspires confidences, not only is corroborated full F by the medical evidence, but also finds support from the motive piece of evidence, which has not been denied even by the appellant.

This appeal is, therefore, dismissed and sentence of death is confirmed.

13. We do not find any merit in the revision petition, in that, they statement made at the trial that Fazal Elahi had raised a Lalkara, was not found to have been stated in the F.I.R. by complainant anal in the statement a/s. 161, Cr.P.C. by Muhammad Ali P.W., while the shot said to have been fired by Saleem Akhtar, even according to the P.Ws, was in the air and was fired after the deceased had already been hit. There is no corrboratory evidence about their participation in the occurrence. The appraisal of evidence done by the trial Judge qua them is well reasoned and is based on facts. The revision petition, therefore, is also dismissed.

M.Y.H./M-278/L Appeal dismissed.

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