2004 P Cr (PLP)

3. According to the prosecution case on 18‑8‑1996 Shehbaz Ali son of Muhammad Rafique had come to the house of the complainant and was staying with him as a guest. On the next day i.e. 19‑8‑1996 at about 12 noon Shahid Ali son of Karamat Ali (appellant) came to the house of the complainant. Shahid Ali talked with Shakeel son of the complainant and said Shehbaz Ali and thereafter they all proceeded to village Sarhali on a motorcycle. Upon asking of the complainant Shahid told him that Shehbaz and Shakeel would be free after a short while. Statedly the complainant waited for his son for sufficient time and when he did not return home, the complainant became worried and in order to inquire about his son he alongwith Amanat Ali son of Muhammad Ishaque and Muhammad Siddique son of Muhammad Din, went to Village Sarhali. At about 5‑00 p.m. they reached at the house of Karamat and found many persons present there. The complainant alongwith his companions entered the Baithak of the house and found the dead body of his son Shakeel Ahmed lying on a wooden cot, whereas Shehbaz Ali P.W. Was lying unconscious on the ground in injured condition. Allegedly Shahid Ali alongwith his father Karamat Ali, had committed the murder of the son of complainant.

4. Formal investigation of this case who conducted by. Muhammad Sarwar, S.‑I. (since dead). Before the trial Court, Hameed Hussain, A.S.‑I./C.W.1 proved the documents prepared by the Investigating Officer. Before the trial Court prosecution produced 13 witnesses to prove the charge against the appellant and his co‑accused. Muhammad Hussain P.W.1 and Shehbaz Ali P.W.2 being the eye‑witnesses of this occurrence while supporting the prosecution case narrated the circumstances under which the appellant caused injuries to Shakeel Ahmed and Shehbaz Ali. Bashir Ahmed P.W.3 was present when the police took into custody motorcycle P.1 and carbine P.2 at the instance of Shahid Ali accused/appellant. He also attested the recovery memos. in this regard. Muhammad Ramzan P.W.4 was present when police collected blood‑stained earth from the spot vide recovery memo Exh.P.D. as well as cot (P.3) vide recovery memo. Exh.P.E. He also attested the said recovery memos. Hameed Hussain H.C./P.W.5 kept the parcels (case property) in Malkhana in safe custody and delivered the same in tact to the constables for onward transmission to the relevant offices. Mushtaq Hussain P. W.6 was present when the last‑worn clothes of the deceased were handed over to the Investigating Officer by the constable which were taken into custody vide recovery memo. Exh.P.F. Bashir Ahmed P.W.7 identified the dead body of Shakeel Ahmed deceased at the time of post‑mortem examination. Nasar Mehmood F.C. P.W.8 delivered the parcels (case property) to the Forensic Science Laboratory intact. He also produced the last‑worn clothes of the deceased before the Investigating Officer. Akhtar Naqash Draftsman P.W.9 prepared, the scaled site plans Exh.P.G., Exh.P.G./1 and Exh.P.G./2. Manzoor Khaliq, S.‑I./P.W.10 arrested Karamat Ali co‑accused on 21‑10‑1997. Dr. Syed Sajid Ali P.W.11 conducted the post‑mortem examination on the dead body of Shakeel Ahmad deceased and found two injuries on the dead body. Injury No.1 was a fire‑arm wound with oval shape 5 c.m. x 4 c.m. on the right side of neck. Blackening and charring were also present on and around the wound. The second wound was an abrasion 1 c.m. x 1/2 c.m. on left temporal region. In the opinion of doctor Injury No. 1 was sufficient to cause death in the ordinary course of nature. Dr. Maqsood Ahmed Butt P. W. 12 prepared medico‑legal report Exh.P.O. of Shehbaz Ali son of Muhammad Rafique (P.W.2). Reportedly injured had one fire‑arm circular wound 1/4 c.m. in diameter x depth not probed, on the right side of the bridge of nose. Muhammad Shehbaz F.C./P.W.13 took the parcels of blood‑stained cotton to the office of the Chemical Examiner and delivered the same in tact. Learned Prosecutor while tendering in evidence reports of Chemical Examiner, Serologist and Forensic Science Laboratory Exhs.P.P., P.Q. and Exh.P.R. respectively closed the case for the prosecution. Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question "Have you any thing else to say" appellant replied as under:‑‑ "The prosecution case is a pure figment of imagination of the complainant party in collusion with the police and Muhammad Khan of Toranwal. Myself and my father are absolutely innocent and have been falsely implicated. The fact of the matter is that Shakeel deceased and one Gulzar of the village Dinga were my intimate friends. Gulzar was in possession of a carbine which he wanted to sell to Shakeel deceased and the later intended to purchase it. Shakeel and Gulzar both went to my house. I made them sit in my Baithak and served them with beverages. Shakeel wanted from Gulzar the assurance of the accurate working of the carbine, I had just gone to the bath, when the carbine was being checked by Shakeel and Gulzar as to its serviceability. While being in the hand of Gulzar, the intending seller and while this weapon carelessly handled by figetting, it accidentally went off as it was already loaded and the effect of this accidental shot had the consequence of injuries to the deceased. On hearing the shot, I rushed to the Baithak from the bath. One Basharat alias Mithu of the village, who was a common friend of the deceased and Gulzar also happened to see this accidental fire. Subsequent to this occurrence, after deliberation and consultation with Muhammad Khan of Toranwal, the present case was fabricated against myself and my father by converting this incident of accidental fire into the one of intentional shot by distorting the facts. " Appellant did not make any statement under section 340(2). Cr.P.C. However, he produced Sheikh Bashir Ahmad, D.S.P D.W.1, Chaudhry Muhammad Yousaf D.W.2 and Syed Ahsan Raza D.W.3, statement of D.W.1 is to the extent that co‑accused of the appellant was found innocent during the investigation and that during the investigation plea of Shahid Ali appellant was that the deceased received fire‑arm injuries accidentally while he was examining the carbine. Statements of the rest of defence witnesses are that regard to the alibi of Karamat Ali co‑accused. Learned trial Court after appraisal of evidence vide judgment, dated 27‑11‑2001 convicted and sentenced the appellant as narrate earlier.

5. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that it was an unseen occurrence but during the investigation after fabricating injuries on the person of Shehbaz Ali (P.W.2) he was introduced as an eye‑witness in this case; that the appellant had been involved in this case due to his election rivalry with the opposite party; that the F.I.R. was got registered after deliberation and consultation; that the medical evidence contradicts the ocular account. It was lastly argued that in the circumstances of this case, the learned trial Court had erroneously convicted and sentenced the appellant. On the other hand, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments raised by learned counsel for the appellant. Learned counsel for the complainant also submitted that in the circumstances of this case, the learned trial Court should have awarded the maximum sentence of death to, respondent Shahid Ali.

6. Record, of this case has been gene through with the able assistance of the learned counsel for the parties.

7. It is a case of two versions. Time, place of occurrence and the weapon used during .the occurrence are the admitted facts and the only question to be resolved is whether story of the prosecution is to be relied upon or the defence plea taken up by the appellant is to be admitted as a gospel truth. The entire prosecution case rests upon the evidence of two witnesses i.e., Muhammad Hussain P.W.1 and Shehbaz Ali P.W.2. : Evidence of Muhammad Hussain P.W.1 is to the extent of last‑seen. In his presence deceased alongwith appellant and Shehbaz injured (P.W.2) left together and after a short while when the complainant reached at the house of appellant he found the dead body of his son lying in a pool of blood on a wooden cot. Shehbaz Ali P.W.2 was present with the deceased at the time of the occurrence and he received fire‑arm injury. This witness was examined by Dr. Maqsood Ahmed Butt P.W.12 on the day of occurrence at about 6‑00 p.m. i.e. within half an hour of the registration of this case. In this view of the matter the arguments of learned counsel for appellant that the injury on the person of Shehbaz Ali P.W.2 was manufactured during the investigation have no force. The nature and duration of the injury on the person of Shehbaz Ali P.W.2 find support from the medical evidence and his presence at the spot stands established from the record of this case. From the evidence of both these witnesses learned counsel for the appellant has failed to point out any circumstances to show that they had any personal enmity against the appellant to falsely implicate him in this case. Statements of both the said witnesses are self‑explanatory, ring true and are persuasive in nature. On the other hand defence plea taken up by the appellant while making statement under section 342, Cr.P.C. was that the deceased wanted to purchase a carbine‑from one of his friend namely Gulzar and the place for this transaction was the Baithak of the appellant. Statedly during the examination of carbine by the deceased, the same went off accidentally and Shakeel Ahmed received injuries and died at the spot. Statedly at the time of occurrence one Basharat alias Mithu, a common friend of both appellant and deceased, was also present at that time. This, defence plea is not persuasive. Firstly, Gulzar from whom deceased wanted to purchase the weapon as well as Bashir alias Mithu never appeared before the Investigating Agency or before the trial Court in support of the defence plea. Secondly, appellant never made statement on oath as required under subsection (2) of section 340, Cr.P.C. in favour of his defence plea. Thirdly, if the occurrence had taken place in the manner as narrated by the appellant, then he and his father should have reported the matter to the police on the same day. Fourthly, the medico‑legal report (M.L.R. Exh.P.O.) of Shehbaz Ali P.W.2 also proves his presence at the spot but the defence plea is absolutely silent in this regard. The crux of the above discussion is that the facts about the incident narrated by the prosecution witnesses are more close to the truth and find corroboration from the circumstances of this case. In this view of the matter, this appeal has no merits and the same stands dismissed. Except the oral statements of two above-said witnesses there is no other independent corroborative piece of evidence in support of the motive part of the prosecution case. In these circumstances, the learned trial Court while passing the sentence has rightly taken a lenient view and thus Criminal Revision No.921 of 2001 seeking enhancement of sentence of Shahid Ali respondent has no merits. The same also stands dismissed. H.B.T./S-13/L Appeal dismissed.