2011 PLP 2373 (YLR)

ABDUS SATTAR ASGHAR, J.--This judgment shall dispose of Criminal Appeal No.166 of 2005 (Asmat Ullah v. The State) filed by the appellant for his acquittal and Criminal Revision No.85 of 2005 (Abdul Majeed v. Asmat Ullah and others) filed by the father of deceased for enhancement of sentence, as both have arisen out of the same judgment dated 21.4-2005 passed by learned Additional Sessions Judge, Haroonabad Camp Court at Fortabbas, District Bahawalnagar, in case P.LR. No.171 of 2004, dated 12-10-2004, registered under sections 324, P.P.C. (subsequently converted into section 302, P.P.C.) with Police Station Margot, Tehsil Fortabbas, District Bahawalnagar.

2. After conclusion of the trial, appellant (Asmat Ullah son of Abdullah) was convicted under section 302(b), P.P.C. for the murder of Muhammad Asif and sentenced to imprisonment for life as Tazeer, along with compensation of Rs.1,00,000, to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. and in -case of default whereof, he shall further undergo for 6 months' S.I. However, benefit of section 382-B, Cr.P.C. was also advanced to the appellant.

3. Precisely, the facts of the case as narrated in the F.I.R. are that on 12-10-2004, at about 9/10 p.m., the complainant was going to his land. When he reached in front of house of Abdullah, suddenly Asmat Ullah (appellant) came there. He raised lalkara to teach a lesson to the complainant for refusing the hand of his sister and gave chhuri blow to the complainant, which landed on the right side of the belly of the complainant. Upon his hue and cry Abid Hussain and Muhammad Ramzan attracted to the place of occurrence and tried to apprehend the assailant but he succeeded to run away. The complainant was shifted to hospital and upon his written application the P.I.R. was initially recorded under section 324, P.P.C. but later on the complainant succumbed to the injuries, as such, the offence was converted into section 302, P.P.C. The motive as stated in the F.I.R. was that the complainant/deceased refused the hand of sister of the appellant.

4. After completion of investigation, challan was submitted. The appellant was charge-sheeted, which, he pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution examined as many as 11 witnesses in all and also tendered documentary evidence.

6. The appellant in his statement recorded under section 342, Cr.P.C. claimed his innocence and denied the prosecution allegations levelled against him. The appellant, however, did not opt to make any statement under section 340(2), Cr.P.C. Thereafter, the learned trial Court convicted and sentenced the appellant as mentioned above.

7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the appellant was minor at the time of alleged occurrence but was tried uncle'? the Criminal Procedure Code instead of procedure laid down in Juvenile Justice System Ordinance, 2000, that being minor at the time of alleged occurrence he could only be convicted under section 308, P.P.C. but the learned trial Court has not properly exercised its powers and convicted the appellant under section 302, P.P.C. contrary to law; that under section 308, P.P.C. the maximum punishment could be awarded up to 14 years but the learned trial Court has sentenced him for imprisonment for life; that under section 308, P.P.C. Diyat cannot be imposed on the minor but in the instant case appellant has been sentenced to pay compensation to the tune of Rs.1,00,000 to the legal heirs of the deceased; that learned trial Court has erroneously assumed the complaint lodged by Muhammad Asif (deceased) as his dying ,declaration in violation of law; that occurrence took place at night rendering the identification of the accused persons difficult; that Muhammad Asif died in his house after 25-days of the occurrence due to lake of medical treatment; that eye-witnesses are not reliable being closely related to the deceased; that recovery is fake and has been planted to strengthen the prosecution version; that the prosecution story is full of doubts and appellant is entitled to the benefit as a matter of right.

8. Conversely, the learned Deputy Prosecutor-General for the State assisted by learned counsel for the complainant vehemently opposed this appeal on the grounds that the appellant is nominated in the F.I.R. with specific role for causing injury to the deceased; that the prosecution has proved its case through ocular evidence corroborated by recovery of weapon of offence i.e. Chhuri from the accused and medical evidence; that the statements of eye-witnesses are inspiring confidence, and despite lengthy cross-examinations nothing adverse could be brought on the record; that specific plea taken by the appellant in' his statement recorded under section 342, Cr.P.C. is not established with any speck of evidence; that the witnesses have no previous enmity with the appellant, which rules out any chance of false implication or substitution; that this appeal may be dismissed and conviction and sentence awarded to the appellant by the learned trial Court be maintained.

9. Simultaneously, Abdul Majeed father of Muhammad Asif deceased being aggrieved of the lesser punishment of imprisonment for life has assailed it through above-mentioned criminal revision on the grounds that the prosecution has proved his case beyond any shadow of doubt, as such, the sentence may be enhanced.

10. I have heard the learned counsel for the parties at length giving anxious consideration to their arguments and also scanned the record with their able assistance.

11. Perusal of record reveals that the Investigating Officer while drafting the certificate of identification of accused/ appellant has recorded his age as 21/22 years. It is pertinent to mention here that appellant had never alleged his minority during course of investigation or trial at any stage. He never sought for his trial under the Juvenile Justice System Ordinance, 2000, therefore, the contentions raised by learned counsel for the appellant alleging his adolescence are devoid of any force at this stage.

12. It is admitted on the record that the occurrence took place in the dark of night, however, the fact remains that the deceased himself lodged the complaint against the appellant on the basis whereof the F.I.R. was recorded initially under section 324, P.P.C., which was later on converted under section 302, P.P.C. on his demise when he succumbed to the same injury. Both the deceased and appellant are residents of the same area, therefore. this is not a case of mistaken identification.

13. In this case ocular account is produced through statements of Abid Hussain (P.W.2) real brother of the deceased and Muhammad Ramzan (P.W.5) resident of the same vicinity. Both the P.Ws. nave corroborated, the prosecution version as set forth in the complaint by Muhammad Asif deceased. Being resident of the same, village probable reason of their presence at the time and place of occurrence cannot be ruled out. Abid Hussain (P.W.2) has narrated the occur rence inline with the prosecution version, which could not be shattered despite lengthy cross-examination upon him, therefore, mere factum of his relationship with the deceased as his real brother cannot render his statement doubtful. The other witness, namely, Muhammad Ramzan (P.W.5) Virk by caste, resident of same village, happens to be an independent witness. He has also depicted the occurrence as set forth by the deceased Muhammad Asif without any material discrepancy. No previous enmity or personal grudge is attributed to Muhammad Ramzan (P.W.5). Nothing adverse to the prosecution case could be fetched by the defence side despite lengthy cross-examination upon Muhammad Ramzan (P.W.5), therefore, I have no difficulty in reaching the finding that the ocular account produced by the prosecution in shape of statements of eye-witnesses P.W.2, and P.W.5 bearing inherent worth and intrinsic value is wholly reliable.

14. The recovery of offence weapon Chhuri (P.6) blood-stained at the instance of appellant from the room of his cattle shed duly sealed into parcel and taken into possession vide recovery memo (Exh.PD) recorded by the Investigating Officer Basharat Ali A.S.-I./Investigating Officer and witnessed by Muhammad Ramzan (P.W.5), further verified as stained with human blood in the reports of Chemical' Examiner (Exh.PK) and report of Serologist (Exh.PK/1) sufficiently connects the appellant with the commission of offence alleged by the prosecution.

15. Medico-legal report (Exh.PK) with regard to examination of Muhammad Asif in injured condition on 12-10-2004 at 4-5 a.m. corroborating a sharp-edge injury in the abdomen of Muhammad Asif deceased was also verified by Dr.Zulfiqar (P.W.3). Simultaneously, postmortem examination report (Exh.PF) and pictorial diagram (Exh.PF/1) in the hand, signature and seal of Dr.Hamid Akhtar (P.W.4) manifest that death occurred due to gangrene in the small and large intestines along with sever septicemia and shock secondary to injury No.1 sufficient to cause death in ordinary course. Nothing material could be attained during cross-examination upon both the doctors/P.Ws., therefore, medical evidence, in this case, produced by the prosecution also furnish sufficient corroboration to the prosecution version.

16. The complainant/deceased has set up a specific motive while lodging the complaint that when he reached in front of house of Abdullah, the appellant Asmatullah armed with Chhuri suddenly emerged and raised lalkara to teach a lesson for not accepting the hand of his sister offered by his father.

17. The motive alleged by the, complainant is not established by producing any witness and thus it remains shrouded in mystery. However, non-establishing the motive particularly alleged by the complainant is not fatal to the prosecution case if otherwise proved with the help of truthful and reliable ocular account.

18. In the absence of any previous animosity between the parties the appellant has not been able to advance any good reason for his false implication. The defence side has failed to create any dent or doubt in the reliable and truthful ocular account, duly corroborated by the recovery of weapon of offence as well as medical evidence produced by the prosecution to prove its case, therefore, I do not see any merit in this appeal.

19. This is not a case of "Qisas" as the eye-witnesses are not subjected to the test of Tazkia-tul-Shahood to award capital punishment. Finding it a case of peculiar extenuating circumstances the learned trial Court, therefore, has rightly convicted the appellant Asmat Ullah under section 302(b), P.P.C. as Tazir and duly awarded the sentence for life imprisonment etc. as mentioned above.

20. For the forgoing discussion and reasons I am of the considered view that this is not a case of enhancement of sentence as sought by the prosecution side.

21. As a sequel to the above, both the criminal appeal and revision are dismissed. H.B.T./A-178/L Appeal/revision dismissed.