Bashir Ahmed respondent was tried by the learned Additional Sessions Judge, IV, Okara, on the allegation that on 23-3-1984 at 7 a.m. He committed the murders of Muhammad Ashraf and his father Allah Bakhsh in the area of village Sazawar Sadharkey. Vide judgment, dated 17-5-1986, he was convicted under section 304, Part I, P.P.C. For causing the death of Ashraf deceased and sentenced to rigorous imprisonment for seven years and a fine of Rs.20,000 and in default of payment of fine to suffer further R.I. For two years. Out of the fine, if recovered, half the amount was ordered to be paid to the heirs of Ashraf deceased. The respondent was, however, acquitted of the charge relating to the murder of Allah Bakhsh. Muhammad Shaban complainant had filed this revision petition praying that sentence of Bashir Ahmad respondent `be enhanced from section 304, Part 1, P.P.C. To section 302, P.P.C. For the murder of Muhammad Ashraf deceased' and his acquittal of the charge relating to murder of Allah Bakhsh deceased be set aside. The revision petition was admitted only to examine the finding of the trial Court that Allah Bakhsh was accidentally killed.
2. The brief facts of the prosecution case are that on 23-3-1984 at 7 a.m. Ashraf and Allah Bakhsh had gone out to answer the call of nature when Bashir Ahmad respondent came there armed with a rifle. After raising Lalkara that Ashraf would not be spared, he fired at him hitting his back. Allah Bakhsh deceased ran towards the respondent but he. Again fired his rifle hitting him in the chest.
Muhammad Shaban, Ramzan and Shamma tried to apprehend him but he threatened them with death and took to his heels. Allah Bakhsh died at the spot. Ashraf was taken to Civil Hospital, Depalpur, in a tractor-trolly but on reaching near the hospital he also succumbed to his injuries.
A suspicion of illicit relations between Ashraf deceased and Mst. Dhali, wife of brother of the respondent, is stated to be the motive for this occurrence.
Muhammad Shaban complainant reported the occurrence at Police Station Depalpur through F.I.R.
Exh.P.D. On the same day at 9 a.m.
3. Maqbool Ahmad, Additional S.H.O. Police Station Depalpur, investigated this case. He arrested the respondent on 18-4-1984. On the same day he led to the recovery of rifle (P.8) from his Kotha which was made into a sealed parcel vide memo. Exh.P.E. After the usual investigation, the respondent was challaned.
4. In support of its case the prosecution examined twelve witnesses in all, including Shaban and Ramzan who furnished ocular account of the occurrence.
5. The respondent pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted having fired at Muhammad Ashraf deceased but gave a counter version of the occurrence as under:-- "The P.Ws. Are servants of Haji Khizar Hayat and Fakhar Hayat who are the landlords of Mauza Sudharkay. It is at their instance that they have deposed against me. Besides this, they are closely related to the deceased. The actual facts have been intentionally suppressed and the investigation in this case has also been partial. Early in the morning on the day of occurrence I was going towards Basti Fakhar Wali when I found my sister-in-law Mst. Dhali in objectionable and compromising position with Ashraf deceased in the Berseen field. Mst. Dhali managed to escape on seeing me. On grave and sudden provocation I fired at Ashraf deceased who fell injured on the spot and died. In the meanwhile on hearing the fire shot Allah Bakhsh deceased came rushing to the spot and he caught my rifle from the barrel and tried to snatch it from my hand. In course of this process of pull and snatch the rifle went off and the shot hit Allah Bakhsh. I had no enmity with Allah Bakhsh nor I had any intention to kill him or injure him. I am innocent."
6. After examining the evidence on the record, the learned trial Judge came to the conclusion that there was a serious conflict between the ocular and medical evidence and presence of eye- witnesses at the spot was not established. He, therefore, rejected the ocular evidence in toto and relying on the statement of the respondent convicted him under section 304, Part 1, P.P.C. For causing the death of Muhammad Ashraf deceased and sentenced him as mentioned above.
However, he acquitted him of the charge of murder of Allah Bakhsh by giving him the benefit of doubt.
7. Learned counsel for the petitioner contends that the ocular evidence has been wrongly rejected by the learned trial Court and the evidence available on the record clearly makes out a case under section 302, P.P.C. On two counts. Learned counsel for the respondent supports the judgment of the trial Court.
8. At the trial Muhammad Shaban complainant (P.W.6) and Muhammad Ramzan (P.W.7) supported the prosecution version of the occurrence. Muhammad Shaban is the maternal-uncle of Ashraf deceased and brother-in-law of Allah Bakhsh deceased. He claimed that he was a resident of village Sazawar Sadharkey where the occurrence took place. In cross-examination he admitted that his house was at a distance of three Acres from the place of occurrence. Muhammad Ramzan P.W. Is nephew of Muhammad Shaban. Admittedly, he is a resident of Afzal Colony, Depalpur, situated at a distance of five miles from the place of occurrence. He claimed to have arrived in- village Sadharkey in order to get Rs.2,000 from Muhammad Shaban complainant as a loan and to have stayed there for the night. Both of them stated that no other resident of village Sadharkey had come to the spot. Muhammad Ramzan admitted the people of the said village generally come to the Rajbah (where the occurrence took place) in order to answer the call of nature. It is very strange that a place where people of the village generally used to come to answer the call of nature, was not visited by any of them and only two close relatives, one coming from a distance of three Acres and the other from five miles, happened to be there exactly at the time when the occurrence took place. I agree with the finding of the learned trial Judge that the story regarding visit of Ramzan to the house of Shaban and his stay for the night even after Shaban had refused to lend him any money, appears to be a mere pretext to show his presence at the spot.
9. In this case there is a serious clash between the ocular and the medical evidence. In cross- examination Muhammad Shaban complainant stated that `Allah Bakhsh deceased was standing on the portion of the bank which is used by cars and vehicles at that time when he was fired at' and that Bashir accused was standing in the canal when he fired at Allah Bakhsh deceased. If that was the position, then .The direction of the wound caused by the fire should be from downward to upward but, according to the medical witness, the wound was going deep `from above downward on left side of chest in oblique direction 6 c.m. Above left nipple and 5 c.m. Away from midline with broken 3rd and 4th ribs on left chest'. The pictorial diagram shows the route of bullet entering the body from upper left chest and going downward. Another serious discrepancy in the ocular and medical evidence is that in the F.I.R., with which Shaban complainant was duly confronted,' it was stated that Ashraf deceased suffered fire-arm injury on his abdomen. According to the doctor, the abdomen injury was the exit wound o injury No.1 of Ashraf deceased on the upper part of left buttock. At the trial the complainant took a summersault and stated that Ashraf was hit on his back. He was confronted with the F.I.R. Wherein it was not so recorded. Obviously, he made a departure from the F.I.R. In order to bring his statement in line with the medical evidence. This conflict in ocular and medical evidence and the attempt of Shaban to bring his statement in conformity with the statement of the doctor go a long way to show that he is not only an unreliable witness but his presence at the spot is also highly doubtful. In the circumstances, the ocular evidence was rightly discarded by the learned trial Judge. After doing so, he was left only with the statement of the respondent which had to be accepted or rejected in its entirety. In regard to the circumstances leading to the death of Allah Bakhsh deceased, the respondent stated that on seeing Ashraf deceased and Mst. Dhali his sister-in---law, in an objectionable position he fired at Ashraf deceased and in the meantime Allah Bakhsh deceased came running to the spot, caught his rifle from the barrel and tried to snatch it from his hand. In the course of this process of `pull and snatch' the rifle went off hitting Allah Bakhsh deceased. In the circumstances, there is nothing wrong with the finding of the learned trial Judge that the rifle went off accidentally in the process of `pull and snatch and this petition was admitted only to examine this finding.
10. For the foregoing reasons, there is no merit in this petition and the same, is dismissed.
M.Y.H./M-1278/L