2008 PLP 896 (MLD)

KHAWAJA MUHMAMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.302/J of 2001 filed by Jamil alias Sabu through jail, who was convicted and sentenced by learned Judge Special Court, Sheikhupura vide judgment, dated 16-10-2001 as under:-- Death and to pay Rs.50,000 as compensation, in default six months' S.I. under section 302(b) read with section 34, P.P.C. for committing the Qatl-i-Amd of Abdul Qayyum and Imprisonment for life and to pay Rs.50,000 as compensation, in default six months' S.I. for committing the murder of Muhammad Rafique. Criminal Revision No.832 of 2001 filed by Asif Raza, complainant for enhancement of amount of compensation shall also be decided through this single judgment. 3.(sic) Occurrence in this case had taken place at 11-30 a.m. on 9-7-1999 at a distance of 13 kilometers within the revenue estate of Chak No.14, from Police Station Bhikki District Sheikhupura while the matter was reported to the Police by Muhammad Siddique at 1 p.m. on the same day and formal F.I.R. Exh. PQ was recorded by Muhammad Munsha Inspector.

4. Briefly stated the facts of the case are that on 9-7-1999 at about 11-30 a.m. Muhammad Siddique complainant along with his two sons namely Abdul Qayyum and Asif, two nephews, namely, Muhammad Rafique and Munir Ahmad and one Asghar Ali son of Ghulam Rasool were measuring the vacant plot adjacent to near haveli of the complainant, when all of a sudden, Jamil armed with rifle .7 mm, Munir armed with klashnikov, Muhammad Azam armed with .12 bore gun, Asif armed with .7 mm rifle, Arif armed with .12 bore gun, Shahid armed with .12 bore gun, Muhammad Ramzan armed with .222 rifle, Muhammad Latif armed with .7 mm rifle, Khadim Hussain armed with .222 rifle and two unknown persons armed with deadly weapons came there. Muhammad Munir and Khadim Hussain asked Jamil, Shahid and Azam that Abdul Qayyum etc. be killed. On the instigation of Muhammad Munir and Khadim Hussain, Jamil fired a straight shot with rifle .7 mm which hit on the chest of Abdul Qayyum, son of the complainant. Then Muhammad Azam fired with his .12 bore gun a shot, which hit on the chest of Muhammad Rafique. Shahid accused also fired a shot with .12 bore gun, which landed on the right upper arm of Muhammad Rafique. The burst fire made by Muhammad Munir with klashnikov did not hit anybody. The remaining accused also fired indiscriminately. After committing the murder of Abdul Qayyum and Rafique, the accused staged dance at the place of occurrence. Both Abdul Qayyum and Rafique succumbed to their injuries at the spot. The motive alleged was that a quarrel had taken place between Abdul Qayyum and Jamil over shops for which a case was registered against Jamil vide F.I.R. No.158 of 1998 under sections 324 and 432, P.P.C. which was pending before a Court of law.

5. Investigation of the case was taken over by Inspector Muhammad Munsha (P.W.11). After recording of the F.I.R., he went to the place of occurrence, inspected the dead bodies, prepared injury statements Exh. PE, Exh.PG, also prepared inquest reports Exh.PD and Exh.PF, took into possession the blood-stained earth vide memo. Exh. P.O. , 20 empty cartridges, four crime empties of rifle .7 mm and 10 crime empties of .222 rifle were secured vide memo. Exh.PP, then Khadim Hussain S.-I: (P.W.10) started with the investigation and on 2-8-2000 arrested accused Khadim Hussain, Lateef, Muhammad Asif, Munir Ahmad,. Muhammad Arif, Muhammad Ramzan and Shahid, weapons of offence were recovered from them and on 3-11-1999 Jamil, the present appellant was formally arrested from District Jail, Sheikhupura. No weapon of offence was recovered from him. After completion of all formal investigation, eight accused were challaned to face the trial.

6. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned DDA tendered in evidence reports of the Chemical Examiner Exh. PS, Exh. PT, report of the Forensic Science Laboratory Exh.PU and closed the case of the prosecution. Statements of the accused were recorded under section '342, Cr.P.C. in which they pleaded, false implication. After conclusion of the trial, except Jamil, the present appellant, all the remaining seven accused were acquitted.

7. Learned counsel for the appellant submits that the prosecution has failed to prove the motive, motive is always a double edged weapon, the motive occurrence was not proved during the course of investigation and that it was concluded by the Investigating Officers that the occurrence had taken place at the spur of the moment. Further submits that the appellant was not present at the place of occurrence and it was Azam, P.O., who fired at the deceased persons. According to learned counsel, except the oral assertions of the eye-witnesses there is no independent corroboration, besides the present appellant, Asif and Latif accused were also armed with rifles .7 mm but they were acquitted by the trial Court, though the opinion of the Police is not binding upon the Courts but it is relevant in the facts and circumstances of the case in hand; the appellant was placed in Column No.2 of the report under section 173, Cr.P.C. Learned counsel submits that no recovery was affected from the appellant, there are material contradictions in the statements of eye-witnesses, confrontations are there and it is a case, which is full of doubts, so by giving the benefit of doubt, the appellant be acquitted. Lastly submits that trial Court was wrong in recording conviction for causing the death of Muhammad Rafique, when the appellant did not even touch him. In the alternate, learned counsel for the appellant submits that it is not a case of death but of lesser sentence. Mr. Muhammad Sharif, Advocate for the appellant appointed at State expense submits that in the inquest report, time of information about the occurrence is 12 noon while the F.I.R. was recorded at 1 p.m., the postmortem was conducted on the next day but the investigation was started earlier, the medical evidence qua the appellant does not find support from any other independent evidence and that the P.Ws. standing at a distance of 79 feet from the place of occurrence, it was not possible for them to have recognized the assailants.

8. Learned counsel for the State assisted by learned counsel for the complainant submits that occurrence had taken place in broad day-light, it was a case of promptly lodged F.I.R., ocular account is fully corroborated by medical evidence and that it was Jamil, appellant who opened the attack. Both support the judgment of the trial Court.

9. We have heard learned counsel for the parties and have gone through the record. The occurrence had taken place on 9-7-1999 at 1-30 a.m. The complainant Muhammad Siddique is father of Abdul Qayyum and uncle of Muhammad Rafique deceased. Unfortunately, the complainant died before commencement of the trial. The matter was reported to the Police at 1 p.m. though distance between the place of occurrence and the Police Station was 13 kilometers, so it was a case of promptly lodged F.I.R. 11(sic). In all, nine persons were named as accused in the F.I.R., two were unknown. Seven have been acquitted by the trial Court. Muhammad Azam, one accused is still proclaimed offender. The allegation against the appellant was that he while armed with rifle .7 mm, fired a shot, which hit on the chest of Abdul Qayyum deceased. There is only one injury on the person of Abdul Qayyum deceased, which proved fatal. Two eye-witnesses namely Asif Raza and Munir Ahmad (P.Ws., 8 and 9) appeared. Asif Raza P.W. is brother of Abdul Qayyum while Munir is brother of Muhammad Rafique deceased. It was the appellant who opened the attack. The motive also laid with him. For facility, the same is reproduced in Urdu:-- The occurrence had taken place on 9-7-1999 but the appellant was arrested on 3-11-1999. Shaukat Ali FC (P.W.6) had stated that he got proclamation under sections 87/88, Cr.P.C. against the appellant and others and the appellant was declared as P.O. Learned counsel for the appellant had laid much stress on the point that the appellant was declared as innocent during the course of investigation and his name was placed in Column No.2 of the report under section 173, Cr.P.C. The appellant had not produced a single witness before the trial Court to support the plea of alibi, which he raised. The examination-in-chief of D. W.1 Inspector Nazar Hussain is based on hearsay. The appellant was declared innocent without any solid and tangible evidence on record. The opinion of the Police is not binding upon the Courts. At this stage, the cross-examination of Nazar Hussain, Inspector D.W.1 may be reproduced at this stage. "I have perused the file. All the eye-witnesses supported the prosecution story. No eye-witness declared the accused innocent. I have not recorded in my investigation that the recovery of weapon was fictitious. I have not recommended against any previous Investigating Officer that investigation is false. The accused for the 'first time had taken the plea of alibi before me but that was not taken before the previous Investigating Officers. The people who produced before me the affidavits were not the eye-witnesses of the prosecution. The affidavits were produced before me during investigation and the same were not produced before the previous Investigating Officers." The occular account having come from an un impeachable source is fully corroborated by the medical evidence and motive so, no further corroboration is required in the instant case. 34 crime empties including 20 of .12 bore gun, 4 of 7-mm rifle and 10 of .222 rifle, were recovered from the spot. It means that, three types of weapons were used at the spot and the appellant was armed with rifle .7-mm. No recovery was effected from the appellant for the reason that he was taken into custody in the instant case after about four months from district Jail Sheikhipura were he was lodged pursuant to a case registered against him under section 392, P.P.C. The other alleged main accused of the F.I.R. is still P.O. We have gone through the reasoning given by the trial Court in para. 41 of the judgment for recording finding of acquittal in favour of Shahid who was attributed a fire-arm injury on the person of Muhammad Rafique. According to the trial Court, there was overwriting while rubbing the name of Muhammad Azam so the trial Court was right in extending the benefit of doubt in favour of said Shahid. The contention of learned counsel for the appellant that the trial Court convicted and sentenced the appellant for the murder of Muhammad Rafique when he did not even touch the deceased is without force for the reason that the appellant along with his co-accused by sharing the common intention not only committed the murder of Abdul Qayyum but also of Rafique. The occurrence had taken place in broad day-light and the shot fired by the appellant hit on the chest of the deceased and the same proved fatal, so there is no mitigation in favour of the appellant to award the lesser sentence. As a result of above discussion, we are of the considered opinion that the prosecution has been successful in proving its case against the appellant to its hilt through ocular account duly corroborated by the medical evidence. The appeal filed by the convict appellant is dismissed. Conviction and sentence recorded by the trial Court is maintained in toto. Criminal Revision No.832 of 2001 filed by the complainant is also dismissed. H.B.T./J-45/L Appeal dismissed.