2017 PLP 3 (YLRN)

MAZHAR IQBAL SIDHU, J.

This judgment will dispose of above captioned criminal appeal filed by appellant Shehzad alias Bijlu who was convicted by learned Sessions Judge, Hafizabad in case FIR No.609/2005 dated 17.11.2005 under sections 302/34, P.P.C. registered at P.S. Sadar Hafizabad vide impugned judgment dated 15.3.2007 and sentenced infra:- i) Life imprisonment under section 302(b), P.P.C. as Tazir with payment of Rs.50,000/- as compensation to the legal heirs of deceased Qamar Zaman under section 544-A, Cr.P.C. and in default whereof to further undergo S.I. for six months. He was also extended the benefit of section 382-B, Cr.P.C.

2. The contrite story as garnered by complainant Muhammad Shafi (PW.12) in FIR (Exh.PC) is that on 17.11.2005 he along with his son Qamar Zaman (deceased), Fakhar Zaman (PW.13) and Muhammad Iqbal was going from his house towards Taxi Stand Kaleke Mandi at about 4.00 pm when all of them reached opposite to the shop of Khalid Mehmood near Lorry Adda Kaleke Mandi, where appellant Shehzad alias Bijloo armed with pistol, Khalid Mehmood, Irfan (since P.O.) both armed with Sotas and Rehmat Ali (since P.O.) empty handed were present there. On seeing them, Rehmat Ali accused raised Lalkara that today Qamar Zaman would be taught a lesson for giving spy information and upon said Lalkara appellant Shehzad alias Bijloo fired with his pistol at Qamar Zaman at his left side of chest who fell down after receiving the fire shot and then Khalid accused inflicted Sota blow which hit at his left ribs then accused Irfan hit Sota blow on the right side of buttock of Qamar Zaman. He along with other PWs step forward to rescue the deceased Qamar Zaman but appellant Shehzad @ Bijloo imparted threats of dire consequences. They all raised hue and cry, upon which numerous people gathered there and accused fled away while raising Lalkaras. He arranged the conveyance and brought his son Qamar Zaman in injured condition to DHQ Hospital, Hafizabad who on the way to hospital breathed his last. His dead body was lying in the civil hospital and Shabbir Ahmad and Muhammad Imran escorted the dead body in the hospital. Motive of the occurrence was that Shehzad @ Bijloo was absconder in one criminal case who suspected that deceased Qamar Zaman had informed the police and got him arrested after releasing from the jail he sharing the common intention with his father and brothers had murdered his son. Hence, instant case.

3. At the conclusion of investigation, report under section 173, Cr.P.C. was prepared and was channelized for trial by placing the name of the appellant in column No.3 as guilty while names of his co-accused namely Khalid Mehmood, Irfan and Rehmat Ali was placed in column No.2 with red ink. 5(sic.) Learned trial court after observing all the pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.

6. The prosecution in order to prove its case produced 14 witnesses in all. Dr. Basharat Rasool Ghumman, M.O. (PW.4) deposed that he on 17.11.2005 performed postmortem examination on the dead body of Qamar Zaman and observed as under:- INJURIES: i) A lacerated firearm wound of entry 1/2 x 1/2 cm x going deep on the outer side of left chest 7 cm from left nipple outer side, corresponding with the wound of exit size 1 cm x 1 cm on the outer side of right abdomen. Blackening around the entry wound was present. OPINION. In his opinion, death was due to excess haemorrhage and shock due to injury No.1 which was ante mortem of firearm weapon and was sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within 3 to 5 minutes and between death and post mortem was about 4 to 6 hours. Exh.PB was the correct carbon copy of post mortem report and Exh.PB/1 was the pictorial diagrams of injuries, the same bore his signatures. He also endorsed a copy of FIR Exh.PC, application for post mortem examination Exh.PD, injury statement Exh.PE and inquest report Exh.PF.

7. Learned ADA renounced PWs namely Muhammad Saleem 509/C and Javed Iqbal 181/C as being unnecessary and thereafter by tendering in evidence reports of Chemical Examiner Exh.PN and that of Serologist Exh.PN/1 and report of Forensic Science Laboratory Exh.PO vide his statement dated 08.3.2007 closed the prosecution case.

8. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. wherein he negated the charge and professed his innocence. He neither opted to make statement on oath as permissible under section 340(2), Cr.P.C. nor opted to produce defence evidence. He in reply to a question "why this case against you and why the PWs deposed against you" replied infra:- "I am innocent. In fact Qamar Zaman deceased and I were gunman of Rai Qamar Zaman brother of PW Fakhar Zaman. One Irshad barber was murdered at Kaleke Mandi in which deceased Qamar Zaman, Rai Fakhar Zaman PWs and I along others were nominated accused and after release from the jail in the said case my parents sent me to my Nanial at village Dasser District Gujranwala and after that Rai Qamar Zaman and Qamar Zaman deceased pressurized by parents to bring back me to serve Rai Qamar Zaman but they refused. On the day of occurrence, Qamar deceased also came to our shop to bring me on asking of Rai Qamar. It was an unseen occurrence and no PW was present at the time of occurrence. I have been implicated in this case falsely by the complainant at the behest of political personages having in league with police who dishonestly investigated the case and deliberately implicated me in the instant case. All the PWs are inimical towards me, therefore, they deposed against me on the asking of Rai Qamar Zaman".

9. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra. Hence, instant appeal.

10. In a lightsome way and exquisitely relying upon the impugned judgment learned counsel has sought for the acceptance of appeal, besides the prosecution evidence referring to and relying upon certain excerpts of the impugned judgment wherein as to motive, ocular version, medical evidence as well as recovery of crime weapon, the learned trial court has formed an opinion to be their dubiety by praying nth of degree for acceptance of this appeal.

11. Learned Additional P.G remained supportive to the impugned judgment but learned counsel for the complainant has argued at some longum and submitted that the appellant is the sole perpetrator of the commission of murder of a young man of 30 years as the case stands on distinguished footings vis- -vis co-accused-persons (since acquitted); the ocular account is not only consistent inter-se but also corroborated by the medical evidence as well as the recovery of the crime weapon affected on the pointing out of the appellant, therefore, instant appeal may be dismissed and sentencing judgment may be upheld.

12. Heard. Record perused.

13. Although in the earlier paragraph of this judgment facts have been detailed nevertheless it has not been considered inapposite to take them down. Alleged incident took place on 17.11.2005 at about 4.00 p.m in the area of village Kaleki Mandi 12 K.M distant from Police Station Sadar Hafizabad. Four accused including the appellant were involved, appellant was shown armed with pistol. Khalid Mehmood and Irfan have been shown armed with sotas and Rehmat Ali co-accused; the father of the appellant was described empty handed. On the raising of Lalkara by co-accused Rehmat Ali, appellant Shahzad alias Bijloo allegedly made a fire shot hitting on the left front chest of deceased who fell down whereafter, Khalid Mehmood caused a sota blow on the left side of rare of ribs of deceased and then Irfan co-accused made a sota blow on the right buttock of the deceased and the deceased being an injured was transported to THQ Hospital, Hafizabad but on the way he lost his breath. It may not be inadvisable to precisely appreciate the specific roles of the accused persons. Injury attributed to the appellant has been labelled as injury No.1, the same is an entry wound whereas injury attributed to Khalid Mehmood does not exist as such the same is exit wound of injury No.1 whereas the injury attributed to Irfan has been found an abrasion on the body of deceased which according to the doctor might have received by the deceased by fall. Now herein having considered appropriate to go by the impugned judgment as to the conclusions of the learned trial court about the recovery of the weapon of offence i.e .30-bore pistol learned trial court has observed as follows: "It is an important factor of the case that said Muhammad Iqbal PW of recovery (given up) has allegedly been shown, as eye-witness of the occurrence but this witness was not produced by the prosecution neither in support of recovery nor in support of ocular account. But he was given up being un-necessary. So far as, positive report of Forensic Science Laboratory is concerned, the same has no any significance because it was effected after about ten months of the occurrence when the pistol as alleged remained still in the custody of accused, therefore, in the circumstances, such meager and feeble type evidence cannot be believed to prove the recovery." About the apple of discord, learned trial court has come to the conclusion, the same is reproduced as follows: "To establish the motive prosecution has failed to prove the same." Ocular testimony is based upon the statements of PW-12 Muhammad Shafi father of the deceased and Fakhar Zaman son of Rai Shahadat Khan PW-13 about which it has been observed by the learned trial court as follows: "It is correct that neither myself nor any PW had any business or residence towards taxi stand. It is correct that neither in my statement Ex.PC nor during the investigation I told the purpose of business for going towards the taxi stand to the police." The medical evidence qua the role attributed to appellant Shehzad alias Bijlu has been noticed inconsistent but it further negates the presence of the PWs as to the same the learned trial court has taken down in its judgment in the paragraph of medical evidence as follows: "Further he stated that there was cracking around the injury No.1 which became fatal, which shows that it was a very close ranged fire and negates the version of complainant regarding the distance as he stated in his statement that accused fired from the distance of 30/35 feet."

14. In view of all the facts having been highlighted above, inescapably no other seductive conclusion is drawn that the prosecution version is replete with doubts; extending it to the appellant, he is acquitted charges levelled against him by accepting the instant appeal, consequently, setting aside the impugned judgment. He has been reported in prison, be set at liberty, in a trice, in this case provided not required in any other case.

15. The case property and record shall be saved till the trial of the proclaimed offenders. MH/S-61/L Appeal allowed.