2006 PLP 1295 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.71 of 2001 filed by Muhammad Hanif, Muhammad Raique alias Muhammad Afzal and Riaz Ahmad appellants, who were convicted and sentenced by learned Additional Sessions Judge, Khanewal vide his impugned judgment dated 26-1-2001 as under:-- Muhammad Hanif appellant, under section 302(b), P.P.C. to undergo imprisonment, for life and a fine of Rs.one lac as compensation or in default six months' S.-I.. Muhammad Rafique appellant, under section 302(b), P.P.C. death and a fine of Rs.one lac as compensation or in default six months' S.-I. and to pay Rs.5000 as daman. Riaz Ahmad appellant, under section 337-A, (ii), P.P.C. to, undergo two years' R.I. and to pay Arsh and 5% as diyat. Murder Reference No.261 of 2001 for confirmation of death sentence or otherwise of Muhammad Rafique appellant and Criminal Revision No.37 of 2001. filed by Muhammad Sharif against Muhammad Hanif etc. for the enhancement of sentence shall also be disposed of through this single judgment.

2. Brief facts of the case, as disclosed by Muhammad Sharif complainant are that on 26-4-1998 at 11-00 a.m. he along with his brother, namely, Pathana, his wife, Mst. Naziran and his father Muhammad Inayat were present at the Dera where suddenly Muhammad Hanif alias Afzal armed with Chura, Muhammad Rafique accused armed with .12 bore gun, Siddique accused armed with .12 bore gun, Riaz alias Pappu armed with pistol .12 bore came from northern side and Ayub accused armed with .7-MM rifle emerged from eastern side and they all on reaching the spot opened fires but due to fear they entered in a room and bolted the door from inside. The accused persons set on fire the Chappar situated adjacent to the room on western side so that due to fear we might come out from the room but due to fear we did not come out from the room. Further alleged in the F.I.R. that accused persons broke out the window of room from southern side and accused persons namely, Rafique, Siddique, Hanif, Ayub and Riaz armed with fire-arms and Chura entered the room, Riaz accused gave butt blow of his pistol at the head of Pathana, Rafique accused gave blow with his rifle .12 bore to the complainant, which hit at his head near the ear, Siddique accused gave but blow with his rifle to the complainant at his head near left ear, as a result of which the complainant fell down. It is also in the F.I.R. Exh.P.D. that when Inayat father of the complainant stepped forward to rescue, Hanif accused inflicted Chura blow at the belly of his father and intestines of Inayat came out from abdomen and he succumbed to the injuries at the spot. It is also mentioned in the F.I.R. that meanwhile his wife, Mst. Naziran came out from the room and raised hue and cry, Ayub accused caught hold her and started giving beating to her. On the hue and cry the accused persons while raising Lalkara that how you are in possession of their land, they will further teach lesson to complainant party, left the place of occurrence. Motive behind the occurrence as alleged in the F.I.R. Exh.P.D. is that there was a dispute of land in between the parties and case was decided from Civil Courts in favour of complainant party on 13-12-1997 and the accused party forcibly wanted to take possession of the said land.

3. Investigation of the case was conducted by Rehmat Ali S.-I./S.H.O. Police Station Jahanian, who had recorded the statement of Muhammad Sharif complainant on 26-4-1998 at about 12-00 Noon at Police Station, thereafter, he along with the complainant proceeded to the place of occurrence, where he recorded supplementary statement of the complainant adding that Rafique accused had made fire with his .12 bore gun upon Inayat at his abdomen, then took into possession blood-stained earth from the spot vide recovery memo., Exh. P. E. then took into possession 11 empties P.9/1-11 from the place of occurrence vide recovery memo. Exh.P.T., recorded the statement of the P.Ws. under section 161, Cr.P.C. On 10-5-1998 he arrested the accused persons, namely, Muhammad Hanif, Rafique Riaz and Ayub and during police custody Muhammad Rafique accused led to the recovery of gun .12 bore P.2 along with 15 live cartridges P.3/1-15, which were taken into possession vide memo., Exh. P. B.. Similarly Riaz Ahmad accused while in police custody got recovered .12 bore pistol P.4, which was taken into possession vide recovery memo. Exh.P.C. Muhammad Hanif also while in police custody got recovered Toka P.1, which was taken into possession vide memo. Exh.P.A. After completion of remaining formal investigation, the accused were challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 11 witnesses, thereafter, SSP tendered in evidence reports of Serologist Exh. P. Q. , Exh. P. R. , reports of Chemical Examiner Exh. P. S. and Exh.P.T., that of Forensic Science Laboratory Exh.P.U. and closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence.

5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for Muhammad Rafique and Muhammad Hanf appellants submits that only allegation in the F.I.R. against Muhammad Rafique appellant was that he gave butt blow with his gun on the person of Muhammad Sharif complainant-injured P.W. while in the supplementary statement he was also attributed a fire-arm injury on the person of Inayat deceased, this improvement was dishonest and benefit of the same should be granted to him. Learned counsel submits that case of the complainant was that after the occurrence he went to the police station and lodged the FIR. Learned counsel submits that both gun and empties were sent together to the Fire-arm Expert, so it has got no value. Further submits that it was an unseen occurrence as Muhammad Sharif P.W.3 had admitted that he used to cultivate his land at Karore Pacca. He submits that except Ayub names of the accused were not mentioned in the brief facts of the inquest report and there is no mention of the fact in the brief facts of the inquest report that Rafique also fired at the deceased, that Rafique had no motive and if there was any motive that was against Muhammad Siddique (P.O.) brother of Muhammad Rafique appellant, that no document was taken into possession during the course of investigation by the Investigating Officer from the complainant party, that Patwari" had admitted that till Rabi 1997 the possession over the disputed land was of the accused while possession of complainant party over the land was of 1998. He further submits that in fact Muhammad Sharif P.W.3 was not present at the spot, that ocular account is fully corroborated by medical evidence. Concluding his arguments, learned counsel submits that if both Muhammad Rafique and Muhammad Hanif had fire-arms with them, they should also have caused injuries on the persons of Muhammad Sharif and Pathana P.Ws. Learned counsel for Riaz Ahamd appellant submits that he is not related to any of the party, that version of Riaz was that he was helper of the accused so he was involved falsely in this case. Further submits that only one injury on the person of Pathana is attributed to him but the doctor had given a false certificate while mentioning four injuries on the person of Pathana, that injury is simple in nature that Riaz had not repeated the same, that he had been awarded two years' R.I. and he had already undergone 4/5 months imprisonment. On the other hand, learned counsel for the State submits that it was a broad-daylight' occurrence, that there are two injured P.Ws. namely, Muhammad Sharif and Pathana, that there is not a single scratch on the body of the appellants party, that had there been any intention on the part of the complainant party to take forcible possession of the land, they must have come while armed with fire-arm and caused injuries to the accused party that ocular account is fully corroborated by medical evidence. He supports the judgment of the learned trial Court. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 26-4-1998 at 11-00 a.m. while the matter was reported to the police on the same day at 12-00 Noon, which was at a distance of seven miles away from the Police Station. There is one deceased, namely, Muhammad Inayat and three injured P.Ws., namely Muhammad Sharif, Pathana and Mst. Naziran, who is wife of Inayat deceased while Muhammad Sharif and Pathana are real brothers, inter se and sons of Inayat deceased. One of the accused, namely, Ayub was acquitted by the learned trial Court. Another accused Siddique is still P.O., who is real brother of Muhammad Rafique appellant. According to the statement recorded under section 342, Cr.P.C. in reply to question No.8 Muhammad Rafique had denied his presence at the spot and pleaded right of self-defence. We would like to reproduce answer to question No.8 of the statement of Muhammad Rafique recorded under section 342, Cr.P.C. as under:-- "This is a false case. My brother, Muhammad Siddique co-accused had purchased the land from one Siraj against consideration of rupees four lacs, out of which Rs.3,60,000 were paid to him and remaining was outstanding and he had given the possession of land to us. We remained in possession of land till the day of occurrence. The land was purchased through a written agreement deed in which one of the accused Ayub was marginal witness of that deed. Complainant party wanted to take the land in possession forcibly and so we had obtained status quo from the Civil Court Khanewal and complainant party never filed any suit for rejection or any other suit against us. The complainant party in league with the Investigating Officer came to take forcible possession of land and they were confronted with my brother Siddique and his servant to take forcible possession. In consequence thereof Inayat father of complainant died. He used to reside at Karor Pacca and all the eye-witnesses of this case were also living there having land there. The complainant party roped our entire family in league with the Investigating Officer of this case, so that they may get possession as well as to put pressure upon us for getting the possession of land. We have been in possession of this land for the last many years and used to get its produce. The complainant party dishonestly wanted to get this land from us. The original owner of this land Siraj was neither their relative nor the complainant party was entitled to its inheritance, they fabricated a false relationship with him to get this land. I was not present at the spot at the time of occurrence nor the complainant party had nominated me in the F.I.R. with any weapon of offence or attributed to the deceased but subsequently after post-mortem report they involved me falsely. I was not having any gun and it was planted upon me and its result does not support the version of prosecution. The prosecution fabricated a false story and shifted the burden on all the relatives of mine and also involved others, who had no concern with it. Witnesses are inter se related. No independent witness has been cited or supported the prosecution version. I am innocent.' The bare perusal of the above said answer shows that Muhammad Rafique appellant has tried to make a case of two versions but we, cannot accept his version in view of the fact that if the complainant party had come to take forcible possession of the said land, they must have come at the spot while armed with fire-arms and must have caused injuries to the appellants party but none of them (appellants party) got a single scratch on their body, so due to this reason we discard the version of the appellants party. Now we discuss the role of Muhammad Rafique appellant. According to the F.I.R. he was armed with gun, he gave a butt blow on the person of Muhammad Sharif complainant/injured P.W. but later on, complainant got recorded supplementary statement, in which an injury on the abdomen of the deceased was also attributed to him. We have gone through the statement of Dr. Muhammad Aslam P.W.5, who had conducted post-mortem examination on the dead body of Inayat deceased on 27-4-1998 and found two injuries one with sharp-edged weapon and the other with fire-arm on the person of Inayat deceased. Even during cross-examination defence himself brought on record that there are two injuries on the person of the deceased one with sharp-edged weapon i.e. Churri and the other with, fire-arm, then there is a very big circumstance, which also goes against Muhammad Rafique appellant that's, that 11 crime empties were recovered from the spot and one of the crime empty matched with the gun of Muhammad Rafique appellant. Moreover, there are two injured P.Ws., namely, Muhammad Sharif and Pathana, who were medically examined on the day of occurrence, having no animus against the appellant, fully supported the prosecution case and they are the star witnesses of the prosecution: We are thus of the considered opinion that prosecution has been successful in proving its case against Muhammad Rafique appellant, therefore, the appeal filed by himself is dismissed. However, as Muhammad Rafique has no direct motive and coupled with the fact the said fire-arm injury was attributed to him in the supplementary statement and the same was not mentioned in the FIR., so taking all these factors to be extenuating we though maintain the conviction of Muhammad Rafique appellant under section 302(b), P.P.C. but convert the same to imprisonment for life with the benefit of section 382-B, Cr.P.C. His death sentence is not confirmed and murder reference is replied in negative. Now we taken up the case of Muhammad Hanif appellant. He was armed with sharp-edged weapon (Toka) and caused injury, on the abdomen of Inayat deceased which entered the peritoneum and descending colon sharply excised from whole of its circumference and this fact has been mentioned in the post-mortem report of the deceased, so he does not deserve any leniency, therefore, the appeal filed by him is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained in toto. Now we take up the case of Riaz Ahmad appellant. According to the F.I.R., he gave butt blow with his pistol at the head of Pathana, who was medically examined on the day of occurrence. The injury attributed to him is simple in nature and he was awarded two years' R.I. by the learned trial Court. Occurrence in this case had taken place in the year 1998 and now we are in the year 2006. He had already undergone 4/5 months imprisonment, as has been submitted by learned counsel for the appellant. Now he is on bail, so the sentence, which he had already undergone, is treated to be sufficient to meet the ends of justice. As far as, Siddique accused is concerned, he is still P.O and any observation made in this judgment would not prejudice the case of either party at the time of his trial before learned trial Court. Criminal Revision No.37 of 2001 filed by Muhammad Sharif against Muhammad Hanif etc., for the enhancement of sentence is dismissed. H.B.T./M-230/L Order accordingly.