' Bashir Ahmad along with Abbas, Sikandar Ali and Mst. Salabat Bibi was sent up for trial for an offence under section 302/109/34. P.P.C. By Police Station Chuchak, Tehsil and District Okara, for the murder of Mosam. Learned Additional Sessions Judge I, Okara vide his judgment dated 20-1-1986 gave the benefit of doubt to Sikandar Ali, Abbas and Mst. Salabat Bibi and acquitted them. Bashir Ahmad was, however, found guilty and sentenced to imprisonment flor life and a fine of Rs,50,000, or in default five years' R.I. It was further directed that the fine, if recovered, half of it shall he paid to the legal heirs of the deceased. He was also given the benefit of section 382-B, Cr.P.C.
2. The prosecution story in brief is that one Mst. Bahi, sister of Dost Muhammad first informant was married to Bashir Ahmad, appellant about 20 years ago. On account of some dispute between the spouses Mst. Bahi left the house of her husband and started living with her brother. Sometime before the occurrence, Mst. Bahi filed a civil suit againt her husband who was wasting his property and obtained an order restraining Bashir Ahmad from selling his property for ten years and the possession of the property was also delivered to Mst. Bahi. This caused annoyance to the appellant.
On 5-6-1982, Mst. Salabat, sister of Bashir Ahmad, came and demanded her share from the land from Mst. Bahi which was flatly refused. Mst. Salabat left the place while threatening that the consequences of refusing the share in the property would he seen the following day. On 6-6-1982 at about 2-30 p.m. Dost Mohammad, Jaffar Ali and Mansha, P.Ws. Were at their Dhari while Mosam, brother of Dost Muhammad was lying under a Kikar tree. Mst. Salabat came there and after seeing all of them went away. After a short while the accused while armed with different weapons, came to the spot. Bashir Ahmad is alleged to have fired with his rifle hitting on the right flank of Mosam and the bullet passed through the left flank. With the result of the said injury Mosam died at the spot. F.I.R. Exh.P.D. Was lodged by Dost Muhammad P.W.9. With Police Station Chuchak on 6-6-1982 at 4 p.m. It was recorded by Ghulam Ahmad, A.S.I. P.W.12. The distance between the place of occurrence and the Police Station was 25 kilomtres.
' After the registration of the case, Ghulam Ahmad, A.S.I. Visited the spot and prepared injury statement Exh.P.I. And inquest report Exh.P.I./1 of the deceased and then sent the dead body for post-mortem examination. Bloodstained earth from the spot was secured vide memo Exh.P.E.
Which was got attested by the witnesses as well. The 1.0. Also found an empty cartridge P.4 lying at the spot which was secured vide memo. Exh.P.G. Ahmad Hassain, S.I., also partly investigated the case and on 5-8-1982 he recorded the statements of the witnesses. On 8-8-1982 he arrested three accused, namely Sikandar Ali, Abbas and Mst. Salabat Bibi. Since Bashir Ahmad could not he arrested, therefore, he obtained his warrants of arrest. Bashir Ahmad, appellant was arrested by Saeed Ahmad Khan who was S.H.O. Police Station Chuchak, on 11-10-1984. While in custody, Bashir Ahmad also led to the recovery of Rifle P.1 along with two live cartridges P.2 and P.3 from a cot in his residential house. He also got the said recovery memo attested from the witnesses. (ii) A fire-arm wound of exit at the left side below costal margin at lower lateral aspect measuring 3 c.m. x 1-1/2 c.m.
' In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by fire-arm injury.
3. The prosecution in support of its case produced 15 witnesses in all.
' P.W.1, Dr. Muhammad Rafique has conducted the post-mortem examination. Ahmad Hassan, SI, P.W.3 had partly investigated the case. He had arrested the co-accused of the appellant on 8-8- 1982 He had recorded the statements of some of the witnesses as well. Muhammad Zafar Ali, Patwari, P.W.4, had prepared the site-plan Exh.P.B. And Exh.P.B./1 of the place of occurrence on the asking of the police. Mst. Haiceman, P.W.5, daughter of Bashir Ahmad appellant, aged about 10/12 years deposed about the conspiracy hatched by co-accused of the appellant with the appellant.
She had stated that she witnessed the conspiracy which was hatched a day ealier and Mst.
Salabat Bibi had produced a gun from a Bharola P.W.7, Ameer had witnessed the recovery of rifle and cartridges at the instance of the appellant which were secured vide memo Exh.P.C. He signed the said memo. Mohabat, P.W.8 also witnessed the recovery of rifle P.1 and live cartridges P.2 and P.3 at the instance of the appellant from his residential house. He attested the recovery memo as well. The eye-witness account was furnished by Dost Muhammad and Mansha, P.Ws.9 and 10, respectively. The case was partly investigated by Ghulam Ahmad, A.S.I. P.W.12 and Abdul Ghafoor, S.I., P.W.13. Saeed Ahmad Khan, Inspector S.H.O., Police Station Chuchak had arrested the appellant on 11-10-1984. P.W.15 Haji Ashiq Hussain, A.S.I. Partly investigated the case and got the site plan prepared.
4. It is contended by learned counsel for the appellant that the case against the appellant is extremely doubtful, because on the same evidence three co-accused of the appellant were acquitted. Submits that the learned trial Court ruled out of consideration the motive and recoveries effected at the instance of the appellant, therefore, there was no corroboration available against the appellant. Submits that it was in evidence that Mansha, P.W.10 who claimed to be an eye- witness, was not the resident of the village, therefore, there was no occasion for him to be present at the place of occurrence in that village at 2-30 p.m. On a hot summer afternoon. Submits that the story as set up by the prosecution is highly improbable because the appellant had no motive whatsoever to kill Mosam who was brother of Mst. Bahi, wife of the appellant.
' Post-mortem examination was conducted by Dr. Muhammad Rafique, P.W.1, Medical Officer, R.H.C.
Pamabala, Okara on 7-6-1982 at about 1-00 p.m. And found:
(i) A fire-arm wound of entrance at the lower right chest at its lateral aspect measuring 1-1/4 c.m. x 1/2 c.m. Margin inverted, seventh right rib fractured.
5. I have heard the learned counsel and gone through the evidence with hisI assistance. As far as the motive in the instant case is concerned, I think the learned trial Court has rightly ruled it out of consideration. The prosecution had) asserted that Mst. Bahi, wife of the appellant had filed a civil suit whereby she got the property of the appellant for ten years, but no certified copy of the judgment of the civil suit was produced in the absence of which the learned trial Court rightly did not rely upon the same.
' Similarly, the recovery of rifle at the instance of the appellant was also not relied upon for the reason that the appellant was declared absconder in the year 1982 and was arrested in October, 1984, and thereafter he got the rifle recovered from his residential house. The prosecution did not bring any evidence to show that the house did not remain in occupation of any one during this period of two years and nobody had access to it. Even otherwise also, one of the recovery witnesses stated that he along with the appellant stayed outside the house and the police alone went into the house of the appellant and recovered the rifle from there. In these circumstances, I hold that the learned trial Court has rightly ruledjB out of consideration the recovery of rifle at the instance of the appellant.
The only evidence available in the case was the eye-witness account furnished by Dost Muhammad and Mansha, P.Ws.9 and 10, respectively. As far as Dost Muhammad P.W.9 is concerned, he had lodged the F.I.R. Which was prompt, and can be used as a corroboration. The lodging of the F.I.R. Promptly would also suggest that Dost Muhammad was present at the spot and had witnessed the occurrence. He was cross-examined at length but the prosecution could not bring anything on the record to indicate that he was interested or inimical. So much so not even a suggestion to the effect that he had not seen the occurrence or he was an inimical witness or not a truthful witness was given to him. From the trend of cross-examination it appears that the defence had accepted the presence of this witness at the spot.
' As far as Mansha. P.W.10 is concerned, the only ground agitated against him is that he was not the resident of the village, therefore, his presence at the spot at that hot hour is highly doubtful. In cross-examination, Mansha admitted that he had shifted his residence from the village where the occurrence took place and he was a registered voter of another place. Otherwise, Mansha P.W. Had given a detailed account of the occurrence the way it transpired. There is nothing on the record to indicate that he had any enmity against the appellant or any motive for the false involvement. The learned defence counsel has not been able to convince why the prosecution would let off the real culprit and involve the appellant who was Dost Muhammad's sister's husband. Since the parties were so closely related, therefore, chances of false involvement of the appellant are very rare. The eye-witness account has been corroborated by the medical evidence according to which the deceased received a bullet injury which resulted in his death. Registration of the F.I.R. Promptly is also used as corroboration of the eye-witness account.
' For what has been discussed above, T hold that the prosecution has been able to prove its case against the appellant. Therefore, the appeal fails which is, accordingly, dismissed.