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Petitioner: AHMAD SHER VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Mazhar Iqbal Sidhu Title: AHMAD SHER vs The STATE Case No.:Criminal Appeal No, No,362-J of 2012 and Capital Sentence Reference
JUDGMENT
Reported As: 2016 YLR 2476 Result: Order accordingly Judgment JUDGMENT MAZHAR IQBAL SIDHU, J.--- Ahmad. Sher, appellant in the appeal, as mentioned above, has impugned the punishing judgment handed down by the learned Judge, Anti-Terrorism- Court, Faisalabad on 06.09.2010, whereby after having been tried along with 17 others in a private complaint case filed by Muhammad Sadiq emanated in a case registered vide FIR No, 13 dated 09.01.2007 under sections 302/ 376/ 365-B/ 148/ 149/ 109, P.P.C: and section 7 of the Anti-Terrorism Act, 1997 at Police Station Langrana, Tehsil Chiniot, District Jhang, punished as follows:-- ' Ahmad Sher ,appellant 1. Convicted under section 302(b), P.P.C. For committing Qad-i-Amd of Wajid (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs,5,00,000/- as required under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. 2. Convicted under section 7 (a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Wajid (deceased) and sentenced to death penalty and to pay fine to the tune, of Rs,5,00,000/- and in default whereof to further undergo simple imprisonment for six months. 3. Convicted under section 302(b), P.P.C. For committing. Qatl-i-Amd of Khadim Hussain (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs,5,00,000/- as required under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to further undergo simple. Imprisonment for six months. 4. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Khadim Hussain (deceased) and sentenced to death penalty and to pay fine to the tune of
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Rs,5,00,000/- and in default whereof to further undergo simple imprisonment for six months. 5. Convicted under section- 302(,N, P.P.C. For committing Qatl-i-Amd of Nasir (deceased) and sentenced to death penalty and ,to pay compensation to the tune of Rs,5,00,000/- as required under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to further undergo simple imprisonment fore six months. 6. Convicted under section 7(a) of the. Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Nasir (deceased) and. Sentenced to death penalty and to pay fine to the tune of Rs,5,00,000/- and in default whereof to further undergo simple imprisonment for six months. 7. Convicted under section 302(b), P.P.C. For committing Qatl-i-Amd of Mst., Bhagan Bibi (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs,5,00,000/- as required under section 544-A, Cr.P.C. To the legal heirs of the deceased, and in default whereof to further undergo simple imprisonment for six months. 8. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Mst. Bhagan Bibi (deceased) and sentenced to death penalty and to pay fine to the tune of Rs,5,00,000/- and in default whereof to further undergo simple imprisonment for six months. 9. Convicted under section 302(b), P.P.C. For committing Qatl-i-Amd of Mst. Maqsoodan Bibi (deceased) and sentenced to death penalty and to pay compensation to the tune of Rs,5,00,000/- as required under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. 10. Convicted under section 7(a) of the Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Mst. Maqsoodan Bibi (deceased and sentenced to death penalty and to pay fine to the tune of Rs,5,00,000/- and in default whereof to further undergo simple imprisonment for six months. 11. Convicted under section 365-B P. P.C. For abduction of Mst. Maqsoodan Bibi and sentenced to suffer imprisonment for life and to pay fine to the tune of Rs,2,00,000/- and in default whereof to further undergo simple imprisonment for six months. 12. Convicted under section 376, P.P.C. For commission. Of rape with Ms. Maqsoodan Bibi and sentenced to suffer death penalty and to pay fine to the tune of Rs,2,00,000/- and in default whereof to further undergo simple imprisonment for six months. ' Capital sentence reference titled above has also been sent by the learned trial court for confirmation of death sentence of the appellant or otherwise. Both the matters are being decided together through the present judgment. 2. Initially in this case, First Information Report No, 13 dated 09.01.2007 under sections 302/376/365- B/ 148/149/109, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 at Police Station Langrana, Tehsil Chiniot, District Jhang was lodged on the complaint of Munawar Hussain. 3. Muhammad Sadiq, complainant (PW.1) of the case feeling dissatisfied/ aggrieved with the investigation, instituted private criminal complaint (Exh.PC) on 20.02.2008 under sections 302/376/365-B/ 148/149/109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997, against 20 accused persons namely Ahmad Sher, Nawaz Mishry, Mudai Maddu, Mst. Sakeena, Sher Muhammad, Shera, Nawab, Murad, Nawaz @ Maja, Munir, Muhammad Imran, Javaid @ Sadi, Safdar Zafar, Sarfraz @ Saru, Ayub, Amjad, Muhammad Hussain, Muhammad Yaqoob, Muhammad Tariq and Bashir @ Phama. 4. Mournful facts abbreviation disclosed by the complainant Muhammad Sadiq in private criminal complaint (Exh.PC) are that during the night between 08/09,01.2007 Wajid and Khadim were sleeping on a single cot lying in front of cattle shed after tethering cattle there. In a room near to that cattle shed (Chappar) Mst. Bhagan and Mst. Maqboolan along with Nasir (child) were sleeping. Nasir and Mst. Bhagan were sleeping on a single cot. At 10:00/11:00 p.m., Muhammad Sadiq (PW.01) and his brother Shera were chatting under a 'kikar' tree. They rushed towards the Dhari on the barking of dogs. It was moonlit night. Murad and Hamayoun, PWs also came to the
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Dhari on hearing the barking of the dogs. They (all four PWs) saw accused (1) Ahmad Sher armed with gun .12-bore (2) Bashir @ Phamma armed with carbine (3) Nawaz @ Majha armed with gun .12 bore (4) Munir slotra armed with gun .12 bore (5) Imran armed with rifle (6) Zafar armed with rifle (7) Javaid @ Sadi armed with rifle (8) Amjad Kumhar armed with rifle (9) Sarfraz @ Saru armed with pistol (11) Muhammad Hussain armed with repeater and (12) Muhammad Yaqoob armed with repeater, who entered the courtyard of the house of the complainant. Ahmad Sher, appellant raised a lalkara that all be murdered and made fire with his .12 bore gun, which hit at head of Wajid. His second fire shot made with the gun hit Khadim on his back. Bashir @ Phamma made a fire shot with his carbine, which hit Khadim near the right ear on his head whereas his second fire shot hit Wajid on the left side of his back. On the report of firing, when Mst. Bhagan opened the door of the room, Ahmad Sher appellant fired with his gun, which hit Mst. Bhagan under her right nipple. Nawaz @ Majha accused made fire shot with his .12 bore gun, which hit on the upper part of right nipple of Mst. Bhagan. Ahmad Sher accused made fire shot with his 12 bore gun, which hit the abdomen of Nasir. The fire shot made by Munir slotra with .12 bore gun hit on the right arm of Nash*. At that time in the room, where Mst. Bhagan etc., were sleeping a lantern was lit and ' there was also moonlight. The PWs identified all the above said four accused persons. The unknown accused continued making fire shot and raising lalkaras. The accused persons also threatened the complainant and PWs that if any one of them went near them, he would be murdered, therefore, the complainant and PWs could not go near the accused persons due to fear. Accused persons Ahmad Sher, Bashir @ Phama, .Nawaz @ Majha and Munir Slotra entered the room and caught hold Mst. Maqboolan, abducted her by force and took flight. Wajid, Khadim Hussain and Mst. Bhagan succumbed to the injuries at the spot, whereas the complainant and the PWs took Nasir in an injured condition to Allied Hospital, Faisalabad for his treatment but he also succumbed on the way to the hospital and they took his dead body back to the Dhari i.e, place of occurrence. It is alleged that twelve accused persons committed the occurrence on the abetment and with the consultation of Sher son of Sultan, Shera son of Pathana, Murad, Nawab, all three, sons of Pathana, Mudai, Nawaz both sons of Fateh Muhammad and Mst. Sakina and the conspiracy was hatched one week prior to the occurrence in the evening while sitting on the 'watt' of sugarcane crop of Sher son of Sultan located near the road and the conspiracy was heard by. Zulfiqar and Qadir PWs. ' The motive set up by the prosecution was that 10/11 months prior to the occurrence Mst. Maqboolan (daughter of the complainant) was married with Ahmad Sher, appellant and Mst. Halima, sister of Ahmad Sher was married with Noor Azam (son of complainant) in an exchange- marriage, The relationship and rape committed with her. The between the spouses became strained and both the parties got divorce of their girls i.e, Mst. Maqboolan and Mst. Halima about one month prior to the occurrence. The aforesaid divorces were the motive of the occurrence because at the time of divorces, both the parties exchanged abuses. On thenight between injury 08/09.01.2007 after committing the murder of four persons, the accused persons abducted Mst. Maqboolan and took her to the house of accused persons Muhammad Hussain, Ayub and Muhammad Yaqoob located in Chak No, 144 Baokay Khokhar. Thereafter Mst. Maqboolan Bibi was taken to different places where she was subjected to rape and tortured. PWs Hamayun and Ayub son of Ahmad went in search of Mst. 'Maqboolan and on 12.01.2007 they saw that Ahmad Sher, Muhammad Hussain, Yaqoob, Nawaz Nabbi armed with .12 bore guns brought .Mst. Maqboolan to the old, Dhari of Ahmad Sher; where she was laid down on the ground and tied. Accused Muhammad Hussain and Yaqoob caught hold her, whereas accused persons Ahmad Sher and Nawab Nabbi made fire shots with .12 bore guns, which hit at the chest of MA. Maqboolan on both sides where after, Ahmad Sher accused wrote his name on the ground and also wrote that dead body of Mst. Maqboolan was lying there, her legal heirs could lift her dead, body and anyone who became witness would face the same consequences. Aforesaid facts were
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told to complainant by Hamayun and Ayub, PWs. It is alleged that Mst. Maqboolan was murdered on the abetment of Sarfraz, Javed, Zafar Kumhar because Mst. Maqboolan was eye-witness of the murders of four persons, witness of her 'abduction occurrence committed by the accused caused sense of fear among the public ofWhole District Jhang like a fire of jungle. On having the information, the police came .at the place of occurrence where complainant submitted an application(Exh,PA) for registration of the case, on(Exh.CW.6/A) was chalked out. The complainant submitted another application (Exh.PB) on 12.01.2007 after the murder of Mst. Maqboolan but said application was not entertained by the police. During the investigation, Nawaz @ Majha, Munir, Sher Muhammad, Mudai Maddu, Nawaz @Mishry, Mat. Sakina Bibi, Shere, Nawab @ Nabbi Sarfraz and Muhammad Imran were found innocent. 5. After recording preliminary/ cursory evidence of the complainant party and perusing the report under section 202, Cr.P.C. submitted by the learned Illaqa Magistrate, the appellant and co- accused were summoned by the learned trial court to face trial. 6. The investigation in this case was conducted by Zafar Ali, SI (CW.04). He deposed that on. 09.01.2007, on receipt of information of occurrence, he went to the place of occurrence, where Muhammad Sadiq, complainant presented application (Exh.PA); conducted police proceeds on (Exh.PA) and sent the same to the police station through Muhammad Afzal 432-C for registration of formal FIR; inspected the place of occurrence and also inspected the dead bodies of Wajid, Khadim Hussain, Nasir and Mst. Bhagan; prepared injury statement of Wajid (Exh.PN) of Khadim , (Exh.PR), of Nasir (Exh.PU), of Mst. Bhagan (Exh.CW-4/A) and inquest reports of Wajid (Exh.PP), of Khadim (Exh.PS), of Nasir (Exh.PV) and that of Mst. Bhagan (CW.4/B); prepared rough site plan of place of occurrence (Exh. CW.4/C); dispatched the dead bodies of Wajid, Nasir and Khadim Hussain under the escort of Shoukat Ali 1165-HC to the mortuary and dead body of Mst. Bhagan Bibi under the escort of Muhammad Afzaal 432-C for postmortem examination; He recorded the statements of the PWs under section 161 Cr.P.C; secured blood imbrued earth from the place of occurrence of Khadim Hussain and Wajid and took the same into possession after making it into sealed parcel vide recovery memo (Exh.PD); he also secured blood imbrued earth from the place of murder of Mst. Bhagan and Nasir and made it into sealed parcel and took the same into possession vide recovery memo (Exh.PD); he took six crime empties P.1/1-6 from the place of occurrence and made them into sealed parcel and took the same into possession vide recovery memo (Exh.PD) and recorded the statements of the PWs. After postmortem examination, Shoukat HC handed over to him last worn clothes of Wajid Qameez P.21, Shalwar P.22, Sweater P.23, Bunyan P.24 and Sweater P.25, Shoukat Ali, HC also handed over him the last worn clothes of Khadim Hussain Qameez P.26, Shalwar P.27 and Jersey P.28; he also handed over him the last worn clothes of Nasir Qameez P.29, Shalwar P.30 and Bunyan P.31; he took the last worn clothes of the deceased persons into possession vide recovery memo (Exh.CW.4/D) attested by the PWs. All the last worn clothes of the deceased persons were blood imbrued. ' After postmortem examination Muhammad Afzal 432-C handed over him the last worn clothes of deceased Mst. Bhagan Qameez P.18, Chadar P.19, (blood imbrued): took the same into possession vide recovery memo (Exh.CW-2/W) attested by the PWs and recorded the statements of the PWs. ' He searched the accused persons as well as abductee Mst. Maqboolan Bibi on different occasion. On 11.01.2007, he recorded supplementary statement of Murad Ali and Ghulam Qadir. On 12.01.2007, he received information about the murder of Mst. Maqboolan Bibi; he proceeded to the place of occurrence and inspected the place of occurrence and dead body; prepared injury statement (Exh.PK) and inquest report (Exh. PL) and sent the dead body to hospital for postmortem examination through Sultan Ali-1440-C; prepared rough site plan of the place of occurrence (Exh.CW.4/C); secured blood imbrued earth and made it into a sealed parcel and also 3 empties P.2/1-3, made it into a sealed parcel and Qameez P.3, Shalwar P.4 and pair of ladies shoes P.5/1-2
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and took the same into possession vide recovery memo (Exh.PE) attested by the PWs. ' After postmortem examination, Sultan Ali 1440-C produced before him last worn clothes of deceased, Mst. Maqboolan Bibi, Qameez P.14, Shalwar P.15, Brazier P.16 and Bunyan P.17; took the same into possession vide memo (Exh.CW.1/A) attested by the PWs and recorded the statements of the PWs. ' On 16.01.2007, he arrested appellant, Ahmad Sher from the house of Javaid @ Sadi accused; Ahmad Sher accused was armed with .12 bore gun and pistol at the time of his arrest. Gun .12-bore was P.6, 18 cartridges P.7/1-18, pistol .30 bore P.8, 2 magazines p.9/1-2, 5 live bullets in magazine P.10/1-5 and 6 bullets in the other magazine P.11/1-6 and a knife P.12, secured the above said articles vide recovery memo (Exh.PF) attested by the PWs but the appellant could not produce any license or permit of the weapons. On 17.01.2007, he sent the appellant to judicial lock up. On 22.01.2007, he arrested Javaid Sadi, Sarfraz @ Saru, Muhammad Ayub and Sh. Muhammad Tariq, sent them to judicial lock up and took into possession register P.20 vide recovery memo (Exh.CW.3/A) on the same day and recorded the statement of Farooq Azam, ASI in this regard. ' On 24.01.2007, Bashir Q Phama, Shera son of Sultan, Murad son of Pathana, Nawab son of Pathana, Shera son of Pathan appeared before him and joined them in the investigation. On 02.02.2007, draftsman produced before him sealed site plan of the place of occurrence of murder of Wajid etc., and abduction of Mst. Maqboolan Bibi as (Ex.PW) and (Exh.PW.1); the draftsman visited the place of occurrence on 11.01.2007 and took rough notes under his direction and pointing out of the PWs. On 07.02.2007, he got prepared report under section 173 Cr.P.C. against appellant Ahmad Sher, Javaid @ Sadi, Sarfraz Saru, Ayub and Sh. Muhammad Tariq through the then SHO. ' On 08.02.2007, Muhammad Sadiq complainant produced before him a written application (Exh.PB); the complainant also produced lantern P.13, which was taken into possession by him vide recovery memo (Exh.PG) attested by the PWs. On 22.02.2007, Nawaz alias Mishri, Mst. Sakina Bibi accused named in, the FIR joined the investigation of this case. Muhammad Hussain and Yaqoob accused nominated through supplementary statement also joined the investigation. On 28.03.2007, he arrested Safdar, Ali Zafar and sent him to judicial lock up through the court concerned. On 01.04.2007, he arrested accused Muhammad Amjad and produced before him the tractor trolley P.32 and P.33 respectively; took the same into possession vide recovery memo (Exh.PH) and recorded the statements of the PWs; deposited the case property to the moharrar and submitted report under section 173 Cr.P.C. against the accused persons through the then SHO. 9.(sic) Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused to which they pleaded non-culpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution produced 10 prosecution witnesses and 09 court witnesses. 10. (sic) The medical evidence was adduced through the statement of Lady Dr. Misbah-ul- Qamar,SWMO, District Headquarter Hospital, Jhang (PW05), who on 12.01.2007 conducted postmortem examination on the dead body of deceased, Mst. Maqsoodan Bibi and observed infra:-- INJURIES 1. A firearm entrance wound 3 cm x 2 cm x cavity deep present on front of right of chest 2 cm from the mid line, Margins of the wound are inverted. Under line ribs fractured. 2. A firearm entrance wound 2.5 cm x 3.5 cm x cavity deep present on the front of left half of chest 2.5 cm from the midline. Margins of the wound are inverted. Under line ribs fractured. 3. A firearm exit wound with reverted margins 2 cm x 1.5 cm present on left side of chest. 4. A firearm wound 0.8 cm x 0.8 cm with reverted margins present on the back of left half of chest 10 cm midline. Corresponding holes were present on the clothes.
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OPINION ' In her opinion, death in this case was caused by injuries No 1 to 4 leading to severe shock and hemorrhage due to severe injury to heart, lungs and fracture of ribs which was sufficient to cause death in an ordinary course of nature. All the injuries were ante-mortem in nature and caused by firearm weapon. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 18 hours. ' (Exh-P.J) was correct carbon copy of the postmortem report, (Exh. P.J/1) & (Exh P.J/2) was sketch of the injuries, which bore his signatures. 10. (sic) Dr. Imran Ahmad Khan, CMO, while appearing as (PW06) deposed that on 09.01.2007 at 02:30 p.m, he conducted postmortem examination on the dead body of Wajid Ali and observed infra: -- INJURIES 1-A A lacerated entrance wound was present on the back of chest left side upper part rounded in shape 1.5 cm x 1.5 cm with blackening around. 1.-B 9 lacerated exit wounds on right side of chest upper part each measuring 0.5 cm x 0.5 cm. ' Wad was removed from dissection of injury No,1-A. Three pallets were removed from under the skin on dissection of injury No,1-B, 3rd rib on left side and 3rd and 4th ribs on right side were fractured. 2. A lacerated wound on skull with whole upper skull opened and broken into pieces. Brain matter coming out. A wad and 7 pellets removed from inside cranial cavity. 10 pellets and 2 wad sealed in a bottle and handed over to the police. OPINION ' In his opinion, the case of death in this case was both injuries Nos. 1 and 2 causing hemorrhage and injuries to vital organ brain and death at the spot. Injuries were ante-mortem and by firearm weapon. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 16 hours. (Exh. PM) was correct carbon copy of the postmortem report, (Exh. PM/1) & (Exh.PM/2) was sketch of the injuries, which bore his signatures. 11. (sic) On the same day at 03:15 p.m., he conducted postmortem examination on the dead body of Khadim Hussain and observed infra:-- INJURIES I-A A lacerated entrance wound was present around right ear pinna on face 4cm x 2 cm with blackening around. It was probed obliquely downward into meck. It was entry wound. I-B 2 lacerated would were presin on neck right side rach 0.5 cm and 2 cm apart. Edges were entered. These were exit wounds. Wsd was removed from dissection in fury No. 1-A 2. A lacerated wound was present on back of chest upper thoracic area 2 cm away from midline on left side size 1.5 cm x 1.5. There was blackening around. It was entry wound. 11 pellets were removed from dissection of upper abdominal wall from under the skin. A wad was removed from liver on dissection. 2 wads and 11 pellets were sealed in bottle and handed over to police. OPINION ' In his opinion, the cause of death in this case were injuries Nos.1 and 2 injuring vital organs brain and liver and hemorrhage in death at the spot. Injuries were ante-mortem and by firearm weapon. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to. 16 hours.
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' (Exh-PQ) was correct carbon copy of the postmortem report, (Exh PQ/1) & (Exit PQ/2) was sketch of the injuries, which bore his signatures. 11. (sic) On the same day at 04:00 p.m., he also conducted postmortem'examination on the dead body of Nasir and observed infra:-- INJURIES 1-A A lacerated entrance wound was present around right ear pinna In face 4cm x 2 cm eith blackening around. It was probed obliquely downward into neck. It was entey wound. 1-B Nine lacerated wounds each measuring 0.5 cm x 0.5 cm present on left rib cage laterally lower pafrt and upper abdomen left side in an area of 10cm x 5 cm. These were exit wounds. 2-AA lacerated wound on right upper part outer side 2.5cm x 2.5 cm with blackening around. Wad and two pellets were removed by dissection. Hummers bone was fractured underneath. Wad and pellet sealed and handed over to the police. 2-BFour lacerated wounds on inner side of right upper arm each measuring 1.5 cm x 1.5 cm in an area of 15 cm x 5 cm. Edges were everted and these were exit wounds. OPINION ' In his opinion, the cause of death in this case was injury No, 1 injuring liver, spleen and abdominal organs already described, hemorrhage and death, injuries were ante-mortem and by firearm weapon. ' Probable time that elapsed between injuries and death was 1 to (sic) hours and between death and postmortem was within 12 to 18 hours. (Exh-PT) was correct carbon copy of the postmortem report, (Exh PT/1) & (Exh PT/2) was sketch of the injuries, which bore his signatures. 10. (sic) The medical evidence was also adduced through the statement. Lady Dr. Zubaida Akhtar, WMO, District Headquarter Hospital, Jhang (CW08) who on 09.01.2007 conducted postmortem examination on the dead body of deceased Mst. Bhagan Bibi and observed infra:-- INJURIES 1. A firearm entrance wound 4cm x 3 cm going in chest cavity present on front side of left side of chest. 5 cm below right nipple. The margins of wound were inverted. 2. A firearm gazing wound 7 cm x 4 cm x muscle deep on lower part of right breast. 3.An exit wound with everted margins 1 cm x 0.2 cm present on back of right side of lower part of chest 3 cm from the mid line. 4. An exit would 1 cm x 0.2 cm with everted margins present on back of right chest lower part, 5 cm lateral to injury No, 3. 5. A firearm exit wound with everted margins 1 cm x 0.1 cm on back of right chest on lower part, 4 cm from midline. 6. A firearm exit wound 1 cm x 0.2 cm with everted margins present on back of lower part of right chest, 2 cm from midline. Five pellets were recovered from the back of right side of chest lower part, which were lying beneath the skin. The pellets were sealed in a bottle and handed over to the police. OPINION. ' In het opinion, death in this…
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