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Criminal Appeal No.662 of 1980, decided on 20th September, 1986.

---S.307--Evidence, appreciation of--Occurrence a day time affair and victim of assault fired at from a close range thus excluding question of identity of assailant--Victim of assault naming accused as his sole assailant and having no reason to substitute accused for real culprit- Plea of alibi raised on behalf of accused also failed--Conviction and sentence of 7 years' R.I. maintained, in circumstances.

Dhani Bux v. The State P L D 1964 (W.P.) Kar.264 ref.

Sabir Nasim for Maqbool Elahi Malik for Appellant.

Altaf Muhammad Khan for the State.

Ch. Zia-ud-Din for the Complainant.

Dates of hearing: 30th April and 20th September, 1986.

Muhammad Saeed Akhtar son of Ata Muhammad, aged 45, armed with carbine, stands convicted vide judgment dated 21-5-1980 of the Magistrate Section 30 Toba Tek Singh under section 307, PPC for murderous assault on Muhammad Salim (P.W.3) and was sentenced to seven years' rigorous imprisonment plus fine of Rs.1,000= or in default to undergo six months' rigorous imprisonment. The fine if realized was directed to be paid as compensation to Muhammad Salim P.W. His appeal is being taken up alongwith Criminal Revision No.784 of 1980 for enhancement of sentence awarded to the convict and these connected matters are being disposed of by this judgment. He is on bail on technical ground since 16-6-1981. He had remained in jail after conviction for about one year.

2. The occurrene took place on 14-3-1978 at 10-30 a.m. in Chak No.331/GB at a distance of three miles from police station Toba Tek Singh. Statement (Ex.PG.) was made by Muhammad Salim injured (P.W.3) at 6-00 p.m. on the same day at Civil Hospital Mamoon Kanjan and it was recorded by Manzoor Ahmad H.C. (P.W.6). On the basis of the aforesaid statement formal FIR (Ex.P.G/1) was registered at police station Toba Tek Singh on the same day at 8-30 P.M.

3. The motive for crime as stated by the prosecution is that Muhammad Salim (P.W.3) (victim) was married to Mst. Tasnim Kausar, daughter of Muhammad Ishaque (P.W.4) and cousin of the appellant on 5-4-1976 i.e. about two years before the present occurrence and the appellant did not approve of this union as he wanted the hand of his cousin for his younger brother. It is in this background that he is said to have attacked Muhammad Salim P.W.

4. The prosecution has produced besides Muhammad Salim injured (P.W.3), two eye-witnesses of the occurrence namely, Muhammad Ishaque (P.W.4), father of Mst. Tasnim Kausar and father-in-law of Muhammad Salim P.W. and Muhammad Tufail (P.W.5) stated to be distant relative of Muhammad Salim P.W.

5. In the FIR the occurrence is reported to have taken place in the following manner: Muhammad Salim P.W. was coming on a cycle from his village to Toba Tek Singh. When he arrived near khal the appellant is stated to have emerged there from with a pistol in his hand and fired a shot at Muhammad Salim P.W. and the shot hit on the right side of his chest and had its exit wound at the back. On hearing the alarm Muhammad Ishaque (P.W.4) and Muhammad Tufail (P.W.5) who were coming on the pathway after him were attracted to the scene of crime and witnessed the same. On seeing them the appellant ran away. Muhammad Salim P.W. was taken to the hospital by the eye-witnesses and was medically examined.

6. Muhammad Saadullah S.I. (P.W.8) arrested the appellant on 19-4-1978. There is no recovery from the spot but at the instance of the appellant carbine (Ex.P.4) was recovered and taken into possession vide memo. Ex.P. H. dated 19-4-1978. The attesting witnesses are Muhammad Tufail (P.W.5), Abdul Hamid (P.W.7) and Muhammad Saadullah S.I. (P.W.8). Since there was no recovery of crime empty from the spot, carbine (Ex. P.4) was not sent to the Forensic Science Laboratory. The recovery is, therefore, of no corroborative value. The case of the prosecution is based entirely on the ocular testimony supported by motive and the medical evidence.

7. The appellant in his statement before the trial Court denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated in this case due to enmity with Muhammad Ishaque (P.W.5). According to him Muhammad Ishaque P.W. who was also his uncle, had usurped his father's land as far back as 1975/76. Besides that he also pleaded alibi to the effect that the time and day of the occurrence he was present in Government High School Toba: Tek Singh on his duty, as he was teacher there. He examined five witnesses in his defence. Abdul Hamid (D.W.1) and Abdul Hamid; son of Rehmat ullah (D.W.2) both stated that Mst. Kalsoom sister of Muhammad Salim P.W. was married to one Manzoor 20_/25 years back but her Rukhsati was effected about 10/12 years after the marriage. The spouses developed strained relations but they did not know the nature of the dispute. They further stated that one Sharif wanted to marry Mst. Kalsoom. On the day of occurrence they both were proceeding towards Toba Tek Singh from their village but near the land of one Noor they heard the sound of fire shot. They found Muhammad Salim P.W. injured and he stated to them that Manzoor his brother-in-law, had injured him. They also saw the said Manzoor escaping from the spot and thereafter they took Muhammad Salim P.W. injured to Toba Tek Singh and dropped him at the gate of the hospital. In the cross-examination Abdul Hamid (D.W.1) started that Muhammad Salim P.W. sustained an injury near the left shoulder. Both these witnesses had not appeared before the police in the course of investigation. Muhammad Yusuf (D.W.3) stated that he knew nothing about the occurrence. Hatam Ali (D.W.4) Patwari stated that Chak No.392/JB consisted of two localities and that the distance between the two localities was about three squares. Each locality had its separate graveyard and the graveyard of Sharki locality was situated in square No.45. In the East of this graveyard was square No.32 belonging to Mst. Amiran etc. In the cross-examination he stated that in square No.ll and Killa No.24 of Chatala locality there was a kotha constructed in the graveyard. But he did not know that likewise kotha was also contructed in Killas Nos.4/5 of the graveyard of Abadi Garh. The statement of Hakim Ali Lambardar (D.W.5) is of no relevance.

Mushtaq Ahmad Headmaster of Government High School Toba Tek Singh appeared as C.W.1. It was in his school that the appellant was working as school teacher and claimed that at the time of occurrence he was present on duty there. Mushtaq Ahmad C.W.1 stated that he gave his reports Exs.P.M. and P.M./1 as per query of the S.H.O. He was cross-examined by the defence counsel. He admitted that on 14-3-1978 the arrival of the appellant was marked in the attendance register. The school hours in those days were from 9-00 a.m. to 3-00 p.m. On 14-3-1978 the appellant met him in the morning but he did not see him at the time of departure i.e. in the afternoon. He admitted that the appellant caused an anti-corruption raid on him in order to exploit him.

8. Dr. Abdul Qayyum (P.W.1) medically examined Muhammad Salim P.W. at 12-10 p.m. on 14-3-1978 and found on his person a fire-arm wound 3/4" x 3/ 4" on the right side of chest. The wound had burn marks and it was bleeding. The shot had been fired within a distance of 5 to 10 feet. There was also an exit wound 3/4" x 3/4" on the right shoulder at the back side. It had also burn marks. The first injury was wound of entry and the second was of exit. The injury was caused by fire-arm within a period of 12 hours. The injury was subsequently declared as simple.

9. I have heard learned counsel for the parties and carefully perused the record. The defence case firstly is that two of the D.Ws. produced found Muhammad Salim P.W. injured and he had stated to them that Manzoor his brother-in-law had injured him and that they saw the said Manzoor escaping from the spot. It is, therefore, argued that instead of believing the victim or the other eye-witnesses reliance should be placed on the D.Ws. as the said Manzoor had also a motive to cause injuries to the victim. This argument of learned counsel for the defence does not appeal to me as both the said D.Ws. did not appear before the police or made any statement to that effect before the trial commenced. I do not consider them as reliable. Secondly, it was argued that the appellant being a school teacher was present at his school on 14-3-1978 from 9-00 a.m. on wards. In other words, on his behalf a plea of alibi is being raised. I may say that here too learned defence counsel has not succeeded as the only witness produced in this respect namely, Muhammad Mushtaq Headmaster (C.W.1) had stated that he did meet the appellant on 14-3-1978 in the morning but he did not see him at the time of departure i.e. 3-00 p.m. as the school hours started from 9-00 a.m. to 3-00 p. m. There is nothing on the record to show as to how far away the school was from the spot. Consequently it is reasonably probable that the appellant could have gone to school at 9-00 a.m. and got himself marked present and then pushed off to the spot to commit the crime. In that view of the matter, the plea of alibi fails. There are also other reasons in the light of which the case of the prosecution appears to stand proved. It is a day time occurrence which took place at 10-30 a.m. The victim namely, Muhammad Salim P. W. only named the appellant as his assailant and no one else. Apparently there was no reason why Muhammad Salim P.W. should cover up the real assailant and substitute the appellant as such, for, such an occurrence would be by itself an unusual phenomenon. Lastly the injury received by the victim in this case is fire-arm wound on the right side of chest. The wound had burnt marks and it was bleeding. It had been fired within a distance of 5 to 10 feet and also an exit wound was on the back side which likewise had. burnt marks. Thus, obviously the fire-arm injury had been caused from a very close range and, therefore, there was no question of identity involved. In the light of the above discussion I am convince in my mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt and in the circumstances his conviction was quite proper and is accordingly maintained. However, it is argued by learned counsel for the appellant that according to the medical evidence the injury caused on the person of the victim had been stated to be simple injury although caused on a vital part the body like chest. It is further submitted that he did not repeat the shot and, therefore, the sentence awarded in the case be reduced. Reliance is being placed on Dhani Bux v. The State P L D 1964 (W.P.) Kar.264 in which it was laid down that from the mere fact that a pistol shot was fired, it could not be said that the only inference which followed was that the intention was to kill. Such a shot could be fired in a fit of temper; it could also be used in the same way for causing merely hurt or it might have even been used in self-defence without any intention to kill. In that case conviction was altered from section 307, P.P.C: to section 324, P.P.C. and sentence was reduced to three years' rigorous imprisonment. In my view the facts of this case are distinguishable and the law laid down in the cited case is not applicable to the facts of the present case. I have carefully considered the aspect as to whether case is made out for reducing or enhancing the sentence in the peculiar circumstances of this case. In my view if the case for enhancement is not made out, the case for reduction of sentence also is not made out. The result is that the sentence awarded to the appellant is also maintained. However, the jail authorities may grant him the benefit of the provisions of section 382-B, Cr.P.C. at they time of computation of his sentence of imprisonment. The appellant had remained in jail after conviction for about a year and thereafter had been admitted to bail on technical ground since 16-6-1981Since his appeal is dismissed, he should be re-arrested by the police and sent to jail so as to serve the remaining portion of his sentence.

In the light of the above discussion I do not find any substance in Criminal Revision No.784 of 1980 for enhancement of sentence awarded to the appellant which is also dismissed in limine.

It is apparent from my order dated 25-5-1985 that the appeal of the appellant against his conviction and sentence under section 13 of the Arms Ordinance was pending in the Court of the Additional Sessions Judge Faisalabad. Learned counsel does not know as to what had been the fate of that appeal. Apparently if that matter is still pending before the Court of the Additional Sessions Judge Faisalabad, he would be competent to decide the same.

S. Q. /M-245/L Appeal dismissed.

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