' Muhammad Naeem appellant was convicted for an offence under section 302, P.P.C. And sentenced to life imprisonment with a fine of Rs,30,000 or in default of payment to undergo R.I. For three years by the Sessions Judge, Toba Tek Singh vide his judgment, dated 16-9-1991.
2. The case was registered on the report lodged by P.W.8 Muhammad Yagoob who stated therein that on 25-4-1990, he along with his real brother Tariq Mehmood was standing near the house of Ghulam Qadir in the street when the appellant armed with a .12 bore gun and Muhammad Akhtar, co-accused empty-handed came there. Muhammad Akhtar raised a Lalkara and thereafter the appellant, Muhammad Naeem fired at Tariq Mehmood causing injuries in his left flank. He fell down and died after a few minutes.
3. Saad Ullah, Inspector P.W.10, conducted investigation in the case.
After registering the F.I.R., he proceeded to the spot and prepared injured statement and inquest report of the deceased (Exhs.P.F. And P.G., respectively). He dispatched the dead body of Tariq Mehmood for post-mortem examination. He also recovered blood-stained earth from the spot vide recovery memo. Exh.P.B. He arrested the appellant on 7th of May, 1990 and on that very day effected recovery of gun Exh.P.1 alongwith 15 live cartridges, P.2/1-15 vide recovery memo. Exh.P.C.
From the house of the appellant situated in Chak No,359/JB. He completed the investigation and submitted challan against the appellant.
4. In support of its case the prosecution produced 11 witnesses. P.W. Kazim Hussain Gillani is the Draftsman who had prepared the site plan Exhs.P.A. And P.A./1. P.W.2 Khizar Hayat F.C. Had received the sealed parcel of blood-stained earth on 28-5-1990 and kept it safely in the Malkhana. He handed it over to Ikram-ul-Haq, Constable on 29-5-1990 for onward transmission to the Office of the Chemical Examiner, Lahore. P.W.3 Mehmood had identified the dead body of Tariq Mehmood deceased before the doctor. P.W.4 Ahmad Din witnessed the recovery of the blood-stained earth and signed the recovery memo. Exh.P.B. P.W.5 Zaka Ullah, Chairman of the Union Council witnessed the recovery of .12 bore gun P.1 along with live cartridges P.2/1-15 made by the Investigating Officer from the house of the appellant P.W.6 Latif Ahmad, Head Constable was given the parcel of the blood-stained earth by the Investigating Officer on 26-4-1990. He kept it in the Police Malkhana and on transfer handed it over to Khizar Hayat, Naib Moharrir (P.W.2). P.W.7 Muhammad Yagoob son of Sana Ullah and P.W.8 Muhammad Yaqoob son of Muhammad Sharif (the complainant) provided the eye-witnesses account of the occurrence. The complainant stated that he alongwith his younger brother Tariq Mehmood was standing near the house of his uncle Ghulam Qadir P.W.
When the appellant armed with a .12 bore gun and Akhtar .Co-accused empty-handed came there. Akhtar raised a Lalkara whereupon the appellant fired a gun shot causing injuries on the left flank of Tariq Mehmood who fell down on the ground and died on the spot. The motive stated by the complainant was that on the day of the occurrence the appellant had strayed away his cattle in the crops of the complainant whereupon the deceased abused and gave slaps to him. P.W.9 Ikram-ul-Haq, F.C. Escorted the dead body of the deceased from the spot to the hospital. After the post-mortem examination the doctor gave him the last-worn clothes of the deceased, shirt P.3 and Shalwar P.4 and a sealed phial containing pellets. He produced the said articles before the Investigating Officer on 26-4-1990 who took the same into possession vide memo. Exh.P.E. He received the parcel of blood-stained earth from Khizar Hayat P.W. On 29-5-1990 and delivered the same in the office of the Chemical Examiner intact on the same day. P.W.10 Saad Ullah Khan, S.H.O.
Had conducted the investigation into the case. He collected the blood-stained earth from the spot, prepared injury statement and inquest report of the deceased, sent the dead body of the deceased for post-mortem examination, recorded the statements of the P.Ws., arrested the accused persons and recovered gun P.1 from the house of the appellant. He completed the investigation and challaned the accused persons. P.W.11 Dr. Muhammad Naeem Ullah Khan had conducted post-mortem examination 'on the dead body of Tariq Mehmood deceased and found the following injuries on his body:--
(1) Pellet wound was in epigestrium. It was above and left side xiphisternum.
(2) Pellet wound was 7 c.m. Left to injury No,1 and on a line drawn from left nipple.
(3 and 4) Pellet wound on left side of abdomen 8 c.m. Above and 6 c.m. Lateral to middle line.
(5) Pellet wound:-- It was 4 c.m. Below from wounds Nos.3 and 4.
(5) Pellet wound:-- It is 9 c.m. On left side and below umbilicus.
(7 and 8) Pellet wounds were 17 c.m. Left to umbilicus on its lateral side.
(9) Pellet wound:-- It was 4 c.m. Above from injury No,8.
He appended a note at the end which reads as under:- "Note:- These all were wounds of entry with blackening about 1 c.m. Around each and have inverted margins. Corresponding holes in shirt were present. The shirt was signed by me and was handed over to the police. There was no wound of exit."
' When examined under section 342 of the Cr.P.C. The appellant denied the charge against him and stated that he was innocent and falsely implicated in the case due to enmity. He neither produced any evidence in defence nor made a statement under section 340 of the Cr.P.C. In disproof of the charge against him.
5. The appellant's learned counsel submits as under:--
(i) The F.I.R. Was recorded after some preliminary investigations and deliberations as conceded by Muhammad Yaqoob P.W.8 (complainant) and it was so found even by the trial Court in Pqra. 16 of the impugned judgment.
(ii) The occurrence was witnessed one and the eye-witnesses were set up falsely.
(iii) The medical evidence contradicts the ocular testimony. The injury had blackening around it as per post-mortem report but the witnesses had deposed that the shot was fired from a distance of 20 ft.
(iv) The recovery even if believed, is of no consequence because it is not connected with the commission of offence.
(v) The occurrence presumably took place in the darkness of night and was deliberately and wrongly shown to have taken place at Maghrili time in order to make the identification of the culprits possible.
6. On the other Land the learned State counsel contends as under:--
(i) There was no delay in lodging the F.I.R. The occurrence had taken place at about Maghrib prayer time and the F.I.R. Was recorded at 10-20 p.m. The maker of the F.I.R. Had gone on foot to lodge the F.I.R. To police station which was at a distance of 8 miles from the place of occurrence. After recording the F.I.R. The Investigating Officer was competent to proceed to the spot and make investigation.
(ii) As regards the delayed recovery of blood-stained earth, the learned counsel submits that the Investigating Officer had explained the reasons that he could not effect the recovery during the night time as per rules. Therefore, he made the recovery at 6-00 a.m. On the next day.
(iii) P.W.10 the Investigating Officer had acted in an impartial manner inasmuch as he found Akhtar co-accused to be innocent and did not even challan him. The accused persons never made any move to have the investigation transferred.
7. The report in this case was lodged by the complainant without unnecessary delay. The occurrence had taken place at about Maghrib prayer time and the complainant proceeded to the police station on foot to lodge the report. The police station was situated at a distance of 8 miles from the place of the occurrence. Saad Ullah Khan Investigating Officer P.W.10 recorded the F.I.R.
Exh. P. D. And then proceeded to the place of occurrence. He denied the suggestion that he first visited the spot with the complainant and thereafter recorded the F.I.R. Exh.P.D. The admission of the complainant that the police accompanied him to the spot and after visiting it came back to the police station and recorded the F.I.R. Appears to be the result of the confusion. At any rate, the fault, if any, committed by the Investigating Officer, per se, is not sufficient to throw out the prosecution case. At the most, the Court has to scrutinize the prosecution evidence with greater care. There is no background of enmity between the parties. The occurrence was an outcome of a small incident which took place on the same day. The appellant had stayed away his cattle in the crops of the complainant party whereupon the deceased abused and slapped the appellant. The defence failed to bring out any enmity of the complainant with the appellant. The complainant appeared as P.W.8 and firmly asserted that he had no enmity with thq appellant. The version of the occurrence given by the complainant was fully supported by Muhammad Yaqoob P.W.7. He is also an independent witness and had no motive to falsely depose against the appellant. He denied the suggestion that in the murder case df Sharif Lambardar, he prevailed upon brother of the deceased and falsely got Naseer brother of the appellant involved in the case. He also stated, "we have no enmity whatsoever with the family of the accused". Therefore, the complainant and Muhammad Yaqoob P.W.7 are independent witnesses and can be safely relied upon. The ocular testimony is supported by the recovery of blood-stained earth to establish the place of occurrence. The argument of the appellant's learned counsel that the' doctor had mentioned blackening around the injuries which showed that the shot was fired from a close range is not acceptable. The doctor had shown as many as nine fire-arm injuries in an area of 15-20 c.m. On left side of chest and abdomen of the deceased. He stated in the Court that there was blackening around each injury but in the post-mortem report blackening around each injury was not separately shown. In fact, the doctor had given a note at the end that the above wounds were ante-mortem with blackening around each injury and had inverted margins. It appears that the doctor was a novice and did not correctly know as to what was meant by blackening. He stated in the Court that by blackening he meant tattooing. I am not inclined to doubt the ocular evidence merely because the doctor either due to inexperience, or, may be, with a motive had indicated blackening around each injury in his note. The seats of injuries shown in the post-mortem report are in line with the ocular evidence. The Investigating Officer appear to have conducted the investigation in a fair manner. He honestly .Admitted that he was nominated as an accused person in F.I.R. No,185, dated 9-6-1991 registered at Police Station Gojra for the murder of Muhammad Idrees, real brother of the appellant. He explained that Muhammad Idrees was a desperate and notorious person of the Ilaqa, was involved in about 18 criminal cases and was killed in a police encounter. In the present case, he found Muhammad Akhtar co-accused (brother-in-law of the appellant) to be innocent during the investigation and got him discharged. Moreover, he had recovered gun P.1 along with .15 live cartridges from the house of the appellant on 7-51990 and could have fabricated an empty to serve as a corroborative piece of evidence but did not do so. He simply effected recovery of the gun along with the live cartridges. In the absence of any material to show that the gun was used in the commission of the offence, its recovery is inconsequential.
8. For the foregoing discussion, I find that the prosecution had succeed in proving its case against the appellant beyond any shadow of reasonable doubt. l8 Therefore, the appeal fails and is dismissed.