IJAZ NISAR, J.------Allah Yar (30) son of Ahmad Din was tried for the murder of Abdul Aziz deceased (30). The learned Additional Sessions Judge, Faisalabad Division at Jhang by his order dated 4-11-1966 acquitted him by giving him the benefit of doubt. The State has come up in appeal against his acquittal under section 417, Cr.P.C.
2. The prosecution case is that on 5-4-1966 at 10 p.m. Abdul Aziz deceased and Muhabat P.W.5 were sitting at the shop of Islam Din P.W.4. They were listening to radio while a lamp was burning nearby. It was a moonlit night. The deceased got up for going to his house. Muhabat P.W. Was behind him. The P.Ws. Saw Allah Yar accused-- respondent standing in the lane aiming a gun towards the deceased. He fired a shot and ran away. The shot hit Abdul Aziz deceased son the left side of abdomen He staggered Islam Din P.W.4 supported him. Muhabat raw. Was also hit with a pellet. Soon thereafter Mohammad Tufail P.W.2 and Bashir P.W.3 came there. The deceased told them of having been injured by the accused-respondent. After a short while he expired.
Mohammad Tufail P.W.2 left for reporting the matter to the police. He learnt about the presence of the police in village Rattapur Bala. He accordingly proceeded there and met Ch. Abdullah Khan, S.I.
P.W.13 and reported the matter to him-by making statement Exh. P.B. The S.I. Left for the spot reaching there at 4 a.m. On 6th April, 1966. The dead body of Abdul Aziz deceased was lying in the shop of Islam Din P.W. He prepared the injury statement Exh. P.M. And the inquest report Exh. P.N.
And secured blood-stained earth from the spot and also a card-board through memo. Exh. P.J. On 7-4-1966 he arrested .The accused. He was produced before him by one Zulifqar. While in custody, the accused led to his cattle shed and got recovered --- P.5 from there. The motive for the offence was that Allah Yar accused-respondent had illicit connections with one Mst. Batool. About two months prior to the occurrence, the deceased developed illicit relations with her. Four live days prior to the occurrence Allah Yar accused-respondent and Abdul, Aziz deceased had quarrelled with each other on that score. The said incident was witnessed by Mohammad Siddique P.W.10.
4. Dr. Fazal Ahmad P.W.1 conducted the post-mortem examination on the dead body of Abdul Aziz deceased on 6-4-1966 at 3-30 p.m. And found the following injuries thereon:- (1)A gun-shot wound of entry -- "x --" opening in the abdominal cavity on the left side of the abdomen 3 -- above and outer to the umblicus. The wound was situated exactly in the centre of a deeply dark circular acchymosed area which was of 3/4" in diameter.
(2)Three circular deep reddish blue burise marks each measuring 3/4" in diameter situated one above the other in a line obliquely upwards and outwards from. Injury No. 1. The skin around injures Nos.1 and 2 was tatooed an area of 11" x 9".
(3)Oblique gun-shot wound of exit 3/4" x -- " on the right lower back 3 --" from mid-line.
(4)Abrasion -- " x 1/3" back of right elbow.
(5)Abrasion -- "x 1/3" back of left wrist.
(6)Abraded area 1 -- " x --" on the front of right knee.
On dissection Ecchymosis of tissues was present under injuries Nos.2 and 4 to 6. The abdominal cavity contained about 3 pounds of dark viscid blood mixed with clots. The small gut presented a penetrating wound 1" x -- " through which stools were coming out. Anterior margin of the left lobe of liver was blown in an area of 1"x --". The poses muscle on the right was torn, lacerated and deeply ecchymosed. All tissues around the right kidney were also deeply ecchymosed.
Stomach contained about 6 ounces of almost digested mixed meals of Roti etc. The bladder contained some urine.
The death was due to shock and haemorrhage from injury No.1 with its exit which injury was individually sufficient to cause death in the ordinary course of nature. The injury was caused by the discharge of a firearm from a close range. Remaining injuries were all simple and caused by blunt weapon.
On 7th April, 1966 at 8 a.m. The said doctor examined Muhabat P.W.5 and noticed the following injury on his person: "A gun shot wound -- "x -- " opening in the joint cavity with evidence of fraying along the upper and inner margin of the wound situated on the inner side and front of right knee.
The injury was caused by firearm and was simple in nature.
5. The accused pleaded not guilty to the charge and denied the prosecution allegations. He also denied the motive as set up by the prosecution. He stated that he had been, involved because he had appeared as witness against Ghulam Ali son of Raja a relative of Muhabat and Ameer P.Ws, He did not adduce any evidence in. Defence.
6. The prosecution examined 13 witnesses in support' of its case. Mohammad Tufail P.W.2 Bashir P.W.3, Islam Din P.W.4 and Muhabat P.W.5 furnished the ocular account Mohammad Siddique P.W.10 deposed about the quarrel taking place between the accused and the deceased 4-5 days prior to the occurrence over their relations with Mst. Batool Ameer P.W.11 and Allah Yar P.W.12 proved the recovery of gun P-5 at the instance of the accused. S.I. Ch. Abdullah Khan investigated the case.
7. The learned trial Court disbelieved the presence of the eye--witnesses on the spot by observing that the identification of the accused was doubtful and that the statements of the P.Ws were irreconcilable with the medical evidence. The recovery of gun was also disbelieves because it had been recovered from an open and accessible place not in the exclusive possession of the accused.
8. Learned counsel for the State contends that the judgment of the trial Court is based on conjectures and surmises and there was, no justification to discard the evidence of the eye- witnesses particularly Muhabat, the injured P.W. It is further stated that the P.Ws were quite disinterested and had no reason for the false implication of the accused. It is also stated that the learned trial Court did not at all, consider the oral dying declaration of the deceased.
9. The learned trial Court observed in pare. 16 of the judgment page 39 of the printed paper book. "that it was proved beyond doubt that the deceased was killed in the shop of Islam Din P.W.
Muhabat P.W. Was injured there. The presence of Muhabat and Islam Din cannot be doubted in this case. No doubt the house of Bashir P.W. Is near the spot but I do not think he had come out with Mohammad Tufail in the manner mentioned above. Mohammad Tufail had alleged that he had gone to recover a debt of Rs.12 from Bashir P.W. Who was sitting in his Bethak, but Bashir P.W. Was mentioned that Mohammad Tufail was sitting in his house and his house had no Bethak."
The learned trial Court further observed that the bruises on the body of the deceased showed that the deceased had grappled with his assailant at the time of fire and caught the muzzle of the gun while they were struggling over it and the muzzle hit the deceased at three places causing bruises.
In the opinion of the learned trial ,Judge Muhabet P.W. Was also present close by the deceased and when the assailant fired at him from a close range, the deceased might have ducked and in that position the bullet or pellet-hit Muhabat P.W. Passing through the body of the deceased. The third position according to the Court could be that the deceased was sitting on a Moorha or a Charpoy and Muhabat P.W. Was sitting by him in a line with his right knee near his back and the assailant fired at the deceased and when the bullet went out of the body of the deceased, it hit the knee of Muhabat P.W The last position was not considered fitting in with the testimony of the eye-witnesses because according to them the deceased was standing when he was fired at Resultantly the trial, Court came to the conclusion that there was a clash between the ocular testimony and .The medical evidence.
10. We have considered the grounds and the reasoning given by the learned trial Court for disbelieving the prosecution story and think that it has committed serious breach of the principles of appreciation of evidence and has misconceived the facts and law causing failure of justice.
After coming to the conclusion that the presence of Muhabat and Islam Din on the spot could riot be doubted there was no plausible reason for discarding their evidence. There was no genuine reason for discarding the evidence of Bashir and Mohammad Tufail P.Ws. Both are disinterested witnesses and had no enmity whatsoever with the accused. According to Mohammad Tufail he had gone to recover a debt of Rs.12 from Bashir P.W. Who was sitting in the Bethak of his house Their evidence was not considered reliable because according to Bashir P.W. Mohammad Tufail P.W.
Was sitting in his house and not in tree Bethak. We do not think that this was a sufficient reason for throwing out the evidence of Mohammad Tufail and Bashir P.Ws. The other reason for discarding their testimony was that they did not raise any alarm when the accused fired towards the shop of Islam Din. Mere no raising of 6 alarm by them would not have any adverse bearing on their testimony) which could provide a valid ground for doubting their presence on the spot. The prosecution witnesses and the accused were residents of the same village, therefore the former would not have faced any difficulty in identifying him particularly when the shot was fired from a very close range. Even otherwise being a case of single accused there was hardly any reason for substituting him without any serious background of enmity with him. The prosecution version stands supported by the evidence of Muhabat P.W: an injured witness the duration of whose injury is the same as that of the deceased. Assuming for the sake of argument that Mohammad Tufail and Bashir P.Ws. Had reached the spot after the occurrence, there still remains in the field the evidence of Islam Din P.W.4 and Muhabat P.W.5 whose presence at the spot is not even doubted by the trial Court. The evidence given by them fully fits in with the medical evidence. The motive also stands established. The trial Court did not at all refer to it in its judgment. Mohammad Siddique P.W.10 who deposed about the same is completely a disinterested person. According to him 4/5 days prior to the occurrence the deceased and the accused-respondent had exchanged abuses over their illicit connection with Mst. Batool and that he and Din Mohammad had separated them.
The recovery of the gun at the instance of the accused-respondent) was rightly not taken into consideration because it is unconnected. In the presence of the ocular witness the recovery of gun was not very material and would not adversely affect the prosecution case in any manner.
12. After having carefully considered the evidence, it is not possible for us to agree with the trial Court in so far as the inferences drawn from the evidence are concerned. The consideration which had induced the learned Judge to acquit the accused-respondent are not founded upon the evidence and no valid reason or logic appears for the acquittal of the accused. It has certainly resulted in a serious and grave miscarriage of justice. The charge stands clearly established against the accused-respondent.
13. Accordingly, we accept the State appeal and set aside the acquittal of the accused-respondent and convict him under section 302, P.P.C. As regards sentence we consider him entitled to some leniency for the inordinate delay occurring in the disposal of the appeal filed as back as 4-11.1966.
We, therefore, sentence him to imprisonment for life and a fine of Rs.5,000 or in default to undergo one year R.I. The fine shall be paid to the legal heirs of the deceased as compensation.
Warrants of arrest be issued against the accused-respondent who is on bail and sent to the District Magistrate concerned for causing his arrest to serve but the sentence.