2008 PLP 161 (SCMR)

ABDUL HAMEED DOGAR, J.

This petition is directed against judgment dated 14-11-2005 passed by learned Division Bench of Peshawar High Court, D.I. Khan whereby Criminal Jail Appeal No.36 of 2005 filed by petitioner was dismissed. The conviction and, sentence under section 302(b)/34, P.P.C. for imprisonment for life was maintained along with sentence to pay Rs.1,00,000 as compensation under section 544, Cr.P.C. to the legal heirs of deceased or in default to undergo one year's S.I. His conviction and sentence under section 337-A(i)(a), P.P.C. and sentence of imprisonment of one year and to pay Rs.2,000 as Daman to injured Sher Nawaz or in default one month's S.I. was also maintained. The sentences were directed to run concurrently with benefit of section 382-B, Cr.P.C. Criminal Revision No.23 of 2005 filed by complainant Sher Nawaz Khan for enhancement , of punishment was also dismissed vide impugned judgment.

2. Briefly, stated the facts are that complainant Sher Nawaz Khan (P.W.-3) and his brother Rizwanullah deceased are cobbler by profession. On the fateful day i.e. 7-12-2001 they were busy in repairing of Chappals at Kikki Bazaar when petitioner Maqbool and his brother Shafmddin who are also cobbler came there armed with Dandas and Kuhrpa and started causing them injuries, as a result of which both of them sustained injuries. The motive for the offence was that a little before the occurrence an altercation took place in between the parties on the place of sitting and purchase of household articles. In order to avenge the same petitioner and co-accused Shafiuddin retaliated them. Initially report was lodged in the Roznamcha of Police Station Kakkio on account of the fact that the injuries sustained by complainant and deceased Rizwanullah were not considered serious by the police for the purpose of registration of case. The injured were referred to RHC Kakki from where deceased Rizwanullah was referred to DHQ Hospital Bannu, from where he was referred to neuro surgery ward of Lady Reading Hospital, Peshawar where he succumbed to the injuries on 9-12-2001 whereafter on the same day F.I.R. was lodged under section 302/34, P.P.C.

3. Petitioner was arrested on 9-12-2001 and sent up to face trial, by the learned Sessions Judge, Bannu while the co-accused Shafiuddin absconded.

4. In order to, prove its case prosecution examined as many as 8 witnesses.

5. Dr. Faqirullah (P.W.8) conducted post-mortem of deceased Rizwanullah and found following injuries on his person:-- "Bruise situated on right side of scalp 5 cm x 3 cm in size, one cm from the mid line and 12 cm above right ear. On the dissection there was prominent haemotuma and under line skull bone was fractured. In his opinion the deceased died due to injuries to brain, due to blunt trauma caused by blunt object." Dr. Mashal examined complainant/injured. Sher Nawaz Khan and found following injuries:

(1) Blunt injury on vertex of skull. (2) Small skin wound on left sided on the vertex 1" x 1" skin deep. (3) Skin wound on right finger (ring) skin deep 2" x 1/4". (4) Skin wound on right little finger skin deep 2" x 1/4".

6. Petitioner in his statement recorded under section 342, Cr.P.C. denied the charge. He neither examined himself on Oath as required under section 340(2), Cr.P.C. nor led any evidence in his defence.

7. On conclusion of trial petitioner was convicted and sentenced as stated above.

8. We have heard Sardar Muhammad Siddique Khan, learned counsel for the petitioner and Mr. M. Zaman Bhatti, learned Advocate Supreme Court for the State at length and have gone through the record and proceedings of the case in minute particulars.

9. Learned counsel for the petitioner vehemently contended that the learned High Court as well the trial Court has failed to appreciate the evidence in its true perspective, which resulted in miscarriage of justice. He contended that there is a delay of 2 days in lodging of F.I.R. which .aspect has escaped from the notice of the Courts below. He further contended that fatal blow to deceased has not been attributed to the petitioner. In view of this he, however, requests for reduction of sentence of petitioner.

10. Learned counsel appearing for State opposed the contentions and contended that impugned judgment being well-reasoned does not warrant interference by this Court.

11. Complainant/injured witness Sher Nawaz Khan (P. W.3) has given ocular account which supports the case of prosecution in toto. His version is also fully corroborated by the medical evidence. The motive is proved. It is a broad daylight occurrence and there is no delay in the lodging of F.I.R. The contention that conviction could not be awarded on the basis of evidence furnished by sole witness in not sustainable in law. It is worth and truthfulness of ocular account furnished by witness which are to be taken into consideration while believing the same and relying for conviction. The prosecution has fully proved its case beyond any shadow of doubt. In his statement recorded under section 342, Cr.P.C. petitioner simply denied the case of prosecution on the contrary it is established that it is a premeditated murder. Learned counsel though argued at length yet could not point out any misreading or non-appraisal of evidence warranting interference by this Court. No ground for interference in the concurrent findings of the Courts below is made out. Accordingly, the petition being devoid of any merits stands dismissed and leave to appeal refused. N.H.Q./M-92/SC??????????????????????????????????????????????????????????????????????????????????????????? Leave refused.