1998 PLP 76 (SCMR)

SALEEM AKHTAR,_ J.

The petitioner seeks leave to appeal against the judgment of the learned Judge in Chamber whereby the conviction recorded by the learned trial Court against the petitioner imposing sentence of life imprisonment with a fine of Rs.25,000 or in default further R.I. for one year, was maintained. However, Meraj Din co-accused was given benefit of doubt and was acquitted.

2. According to the F.I.R. on 31-3-1991 at about 11.00 a.m. Karamat Ali and his brother Ahmed Ali were present in their agricultural land and giving fodder to their cattle. Muhammad Riaz armed with rifle accompanied by his brother Meraj Din, who was empty handed, came there. Riaz asked the complainant that why they were grazing their cattle in his field and in future if they repeated it, he would kill him. Complainant's brother Ahmed Ali told Riaz that they have never grazed their cattle in their field and therefore he should go away. Thereupon Meraj Din raised Lalkara and Riaz fired hitting Ahmed Ali in his left thigh, who fell down. The commotion attracted Muhammad Arif, Muhammad Nazir and Ch. Khalid Rashid, who witnessed the occurrence., Both the accused then bolted away.

3. The prosecution case was based on the statement of P.Ws. 3, 4 and 5, namely, Karamat Ali, Nazir Muhammad and Ch. Muhammad Arif respectively, who were eye-witnesses. The prosecution story was sought to be corroborated by the medical evidence. So far motive is concerned, it was alleged that Muhammad Riaz accused had a grudge against the complainant party that they had grazed their cattle in his field.

4. Mr. Aftab Farrukh, learned counsel for the petitioner contended that the eye-witnesses who have testified in support of the prosecution case, were chance witnesses and there was no valid reason for their presence in the field at the time of occurrence. The learned counsel further contended that according to the F.I.R. the petitioner had fired with rifle, but from the medical evidence it was established that the fire was made by a .12 bore gun and pellets were also recovered from the body of the deceased. The learned counsel invited our attention to the statement of the complainant and the 1.0. (P.W.14) to show that they have tried to improve the case in a dishonest manner. The 1.0. after being aware of the medical report got 161-statement recorded in which instead of rifle, .12 bore gun was shown from which the petitioner had fired. The learned counsel for the respondent contended that no doubt in the F. I. R. rifle was mentioned, but it was explained by the complainant that after the incident he was confused and could not state that the firearm was .12 bore gun and not rifle. In this regard the statement of P.W.3 was referred in which in his examination-in chief he has stated that Riaz accused was armed with a rifle and further stated that Riaz accused fired at his brother Ahmed Ali with "rifle gun .12 bore." Leave is granted to consider, inter alia, the contentions raised on behalf of the petitioner and to reappraise the evidence. N. H. Q./M-11/SC Leave granted.