JUDGMENT SAJJAD AHMED SIPRA, J.- The present criminal appeal has been directed against the Judgment dated 11.2.1989, whereby the learned Additional Sessions Judge Sheikhupura, while acquitting Jalal Din, Amanat Ali and Farzand Ali, co- accused, had convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life with a fine of Rs.5000/- or in default thereof to further R.1, for two years. The appellant was also directed to pay Rs.5000/- as compensation, to be paid to the legal heirs of the deceased. He was, however, awarded the benefit of Section 382-B Cr.P.C.
2. The brief facts leading to the present criminal appeal are that on 30.8.1987 at about 12.30 p.m.
When the complainant, Muhammad Ibrahim, along with his nephew Sabir Ali PW, was sitting at the darbar of Bhola Peer in village Kaloke, his sister Mst. Hameedan Bibi deceased came there and asked him to go to the house. He along with Sabir Ali PW and Mst. Hameedan Bibi deceased started towards the house and when they reached near the house of Mistri Ghulam they saw Jalal and Taj Din accused armed with guns, Amanat Ali accused armed with a revolver and Farzand Ali accused armed with a hatchet, coming from the side of their house while raising lalkaras. On seeing the complainant party Jalal Din exhorted his co-accused that Ibrahim has arrived and he be not left alive, whereupon Taj Din accused fired with his gun at the complainant, but instead of hitting him, it missed and hit Mst. Hameedan Bibi deceased on the right side of her chest and she fell down. Jalal accused fired with his gun which hit Sabir Ali PW on the palm of his right hand. Then all the accused resorted to indiscriminate firing, but the complainant and the PWs, due to fear, took shelter in the nearby houses. Besides the complainant and Sabir Ali PW, the occurrence was witnessed by Muhammad Bashir and Muhammad Siddique PWs. On intervention of the other villagers, the accused decamped from the place of occurrence while raising lalkaras. After a short-while Mst.
Hameedan succumbed to her injuries at the spot.
The motive for the occurrence as stated in the complaint Exh.ID was that on the day of occurrence at about 9.30 a.m. The complainant was at his. Shpp and on receiving information he went to darbar of Baba Bhola Peer and found accused Jalal Din quarrelling with his brother-in-law Faqeer Hussain over a disposal drain which was to dig out from the village pond and the accused were making an obstruction not to dig it out.
3. At the trial the prosecution had examined as many as nine witnesses to prove its case. PW.1 Barkat Ali was a recovery witness of blood stained earth vide memo Exh. PA., pistol P.1 from Amanat Ali accused vide memo Exh.PB/and hatchet P-2 from Farzand Ali accused vide memo Exh.PC.2 Ibrahim being the complainant had reiterated the contents of the FIR Exh. PD. He had also testified the recovery memo Exh.PE, by which the last worn clothes of the deceased were taken into possession.
4. PW.3, Dr. Khalid Yazdani, had conducted the post mortem examination on the dead body of Mst.
Hameedan Bibi deceased and had found the following injury on her person:- One entrance wound of fire arm 1.5 cm x 1.5 cm on the front and upper side of right chest, 5 cm above to the right nipple, 4th rib of right chest was fractured and the pellet was lodged in the skin at back of right chest, after puncturing the right lung.
On internal examination the Medical Officer had found all the organs to be healthy. In thorax right pleurae, lungs were punctured. Stomach contained fluid. Small and large intestines gases and faecal matters. In his opinion the injury was ante mortem, caused by fire-arm and the death had caused due to severe shock and haemorrhage and due to the injury in question, which was sufficient to cause death in an ordinary course of nature. According to him time elapsed between injury and death was half an hour and between death and post mortem examination was about 19 to 21 hours.
5. On 31 .1987 PW-3 had also medically examined Sabir Ali injured PW and had found the following injury on his person:- A lacerated wound 0.3 cm x 0.5 cm x 1 cm qn the right hand in between the thumb and index finger.
Tattooing was present around the wound. Blackening was too present.
Injury was kept under observation for X-ray report and for confirmation of weapon. Probable time between injury and examination was within 19 to 21 hours. According to X-ray report dated 31.8.1987 the Medical Officer had found no bony lien and also no foreign body was seen in the right hand.
However, the description of the injury showed that it was a fire-arm one and it was declared to be simple.
6. PWA Atta Muhammad ASI, being Moharrir of the police station concerned, on receipt of the complaint Exh.PD had drew up formal FIR Exh.PD/1. He also kept sealed parcels of this case in safe custody in the malikana and delivered them to Sana Ullah FC for onward transmission to the office of the Chemical Examiner. PW.5 Syed Rub Nawaz Shah Draftsman had prepared the site plans Exh.PK and Exh.PK/1 in the scale of 32 feet to an inch at the instance of the police and on the pointing out of the PWs. PW.6 Sana Ullah was entrusted with the dead body of Mst. Hameedan Bibi deceased from the spot for escorting the same to the mortuary. He had escorted the dead body and after autopsy the Medical Officer handed over the last worn clothes of the deceased P.3 to P.7 to Muhammad Anwar F.C. Who was with him. On 17.9.1987 this witness was entrusted one sealed parcel by the Moharrir and he delivered the same intact in the office of Chemical Examiner Lahore.
7. PW.7 Sabir Ali being an injured PW had supported the case of the prosecution by stating that on the day of occurrence at about 12.30. p.m. He and Ibrahim complainant were sitting at the darbar of Baba Bhola Peer. His aunt, Mst. Hameedan deceased, came there and asked them to accompany her to the house. They started for the house, while Mst. Hameedan followed them, and when they reached near the house of Ghulam Mason, they saw Jalal Din and Taj Din armed with guns, Amanat Ali armed with a revolver and Farzand Ali armed with a hatchet, coming there. Jalal Din exhorted a lalkara that Ibrahim should not be left alive, upon which Taj Din accused fired with his gun, hitting Mst. Hameedan on the right side of her chest. She fell down. He raised an alarm prohibiting the accused from firing but Jalal Din accused fired upon him hitting on his right hand.
The accused then ran away while raising lalkaras. Mst. Hameedan Bibi died at the spot. The occurrence was witnessed by him, Ibrahim, Siddique and Bashir PWs.
8. PW.8 Muhammad Sharif,, being the Investigating Officer, after recording the statement of the complainant Exh.PD, had reached the spot and found the dead body of Mst. Hameedan Bibi lying there. He prepared the inquest report Exh.PL, and injury statement Exh.PM in respect of the dead body and despatched the same to the mortuary under the escort of Sana Ullah F.C. And Muhammad Anwar F.C. Thereafter he had taken into possession blood-stained earth from the place of occurrence vide memo Exh.PA and prepared a rough sketch. Exh. PN of the place of occurrence and then he recorded the statement of the PWs under Section 161 Cr.P.C. He had also got medically examined Sabir Ali injured PW and got prepared site plans Exh.PK and Exh.PK/1 from Rub Nawaz Draftsman. On 31.6.1987 he had taken into possession the last worn blood stained clothes, P.3 to P.7, ride memo Exh.PE. On 9.9.1987 he had arrested all the accused. On 19.9.1987 he recovered gun P.8 from Jalal Din accused, ride memo Exh.PF and gun P.9 from Taj Din accused, ride memo Exh.PH. On 23.9.87 he recovered revolver P.1 and hatchet P.2 from Amanat Ali and Farzand Ali accused respectively, ride memos Edh. PB and Exh.PC respectively. He had also prepared the site plans of the places of recovery, which are ExK.PG/1, Exh.PF/1, Exh.PB/1 and Exh.PC/1 respectively. After the completion of the investigation this witness had challaned the accused. PW.9 Muhammad Ali had identified the dead body of Mst. Hameedan Bibi at the time of post mortem examination. The prosecution tendered in evidence the reports of Chemical Examiner and Serologist Exh.P.O and Exh.PO respectively and closed its case.
9. In their statements under Section 342 Cr.P.C, all the accused had denied the allegations against them and claimed to have been involved falsely due to enmity and party faction. They did not produce any evidence in self defence nor did they record their on statements under the provisions of Section 340(2) Cr.P.C
10. The learned trial Court after having taken into consideration all the facts and circumstances of the case and having gone through the evidence on the record had convicted and sentences the appellant, while acquitting his co-accused, as stated above.
11. The learned counsel for the appellant and the State were heard at . Length in support of their respective cases and the record of the case perused with their assistance.
12. The learned counsel for the appellant submitted that there were only two eye witnesses produced, i.e. The complainant PW.2 Ibrahim real brother of the deceased and PW.7 Sabir Ali maternal nephew of PW.2 and the deceased, as the other two eye witnesses namely, Muhammad Bashir and Muhammad Siddique were given up by the prosecution, which leads to the legal presumption that the said two given up eye witnesses would not have supported the case of the prosecution if produced. Further submitted that the testimony of the two eye witnesses produced, named above, fails to establish the case of the prosecution against the appellant beyond reasonable doubt. In this respect, argued that because of dishonest improvements and material contradictions in their statements, the said two eye witnesses cannot be relied upon to sustain the conviction of the appellant impugned herein. Further submitted that the failure of the prosecution to recover crime empties from the spot renders the recovery of the crime weapon, 12 bore gun P.9, to be of no help to the prosecution to establish the charge against the appellant. Further contended that the testimony of the complainant PW.2 Ibrahim has demolished the motive set up by the prosecution and in fact has recoiled on the prosecution to establish the only legal inference to be drawn to the effect that the motive lie with the complainant party.
13. On the other hand, the learned counsel for the State submitted that the benefit of any discrepancies and short comings of the evidence has already been extended to the accused and that following the time honour principle laid down by the superior Courts to the effect that the grain has to be shifted from the chaff, it can be said that the evidence of the prosecution has established that the deceased had died due to the gun shot fired by the accused/appellant.
14. The Court has given its anxious consideration to the contentions raised, as stated above. It has been taken notice of that the complainant PW.2 conceded during his cross-examination that the accused, Jalal Din,-had given shoe beating to Faqir Hussain, his brother-in-law, although during his examination-in- chief had only stated that they were quarreling with each other, and that the acquitted co-accused Jalal Din had abused the said PW, who had responded to him in the same manner. The testimony of the said witness to the effect that the injured PW.7 Sabir Ali was fired at from a distance of 81 feet stands contradicted by the medical evidence, which is to the effect that the said injured PW had suffered injury in question on the palm in between the thumb and index finger, which had blackening and tatooing around it, which could not be caused from such a long distance and that it had been caused from 2/3 feet as opined by the doctor Khalid Yazdani PW.3, XX was duly established by the settled principle of medical jurisprudence; whereas the testimony of PW.7 suffers from a number of confrontations during his cross-examination, render which his testimony of no consequence. In this respect, it may be pointed out, that, as stated above, his testimony regarding his having suffered the injury stated above from a distance of 18/20 karams i.e the distance at which the accused party was from him, is contradicted by the medical evidence.
Furthermore, PW.7 Sabir Ali was confronted with his statement Exh.DA when he denied haring stated that he and Ibrahim had taken refuge in the nearby houses, and in respect of his not having stated that the general people of the village had come at the spot and forbade the accused from firing; or that he had stated in the said Exh.DA that after the departure of the accused they had come into the lane. The said PW.7 was further confronted and contradicted when he stated that the allegation of lalkara was against all of them and not against Ibrahim, as it was recorded in Exh.DC., that he had stated that lalkara was only by Ibrahim. Therefore, for the safe administration of Justice the testimony of both those P.Ws call for very careful scrutiny to determine the guilt or otherwise of the appellant as charged.
15. However, the evidence of the prosecution, through the said two eyewitnesses nevertheless duly establishes that the accused/appellant had opened fire on the complainant party with firearm and that Mst. Hameedan Bibi deceased had suffered a gun shot injury at the date, time and place of occurrence as charged. In this respect, further notice has been taken of the fact that the fateful occurrence has taken place in a lane in which the firing at the complainant party was being made in the direction from which the deceased, Mst. Hameedan Bibi was following the said P.Ws and had been hit by a shot fired by the accused/appellant accidently without the intention of the accused/appellant being to hit or kill her, which is borne out by the description of the injury suffered by the said deceased, as only a pellet was recovered from the said injury as stated by P.W.3, Dr. Khalid Yazdani in his testimony, and that, therefore, it is hereby held that the deceased had died due to the firing by the accused/appellant as a result of stray pellet hitting her.
16. Therefore, the present criminal appeal is. Partly allowed and the conviction and sentence awarded to the appellant is hereby altered to conviction under section 304 Part-1 PPC and the sentence to seven years R. I., while maintaining the fine of Rs.5,000/- or in default thereof one year's R.I and compensation of Rs. 5,000/- or in default thereof six months R.1. It is further directed that the entire amount of fine and the compensation, if recovered, shall be paid to the legal heirs of the deceased; Mst. Hameedan Bibi. The appellant shall be entitled to the benefit of the provisions of Section 382-B Cr.P.C.
17. In accordance with the terms stated above, the present criminal appeal stands disposed of.
18. In view of what has been stated above, Criminal Revision Nos. 268/89 and 420/89, directed to be heard along with the present criminal appeal, are hereby dismissed.