2003 PLP 24 (SCMR)

3. The occurrence took place on 22‑6‑2000 at 6‑30 p.m. in the area of Dera Dara Meyana, Village Chhidru, situate at a distance of 17/18 kilometres from Police Station Musakhel, District Mianwali. Muhammad Rafique, S.‑I./S.H.O. drafted a written complaint and dispatched the same to the police station through, Qasim, Constable for formal registration of a case. Gul Hameed, M.H.C. (P.W.5) drew up formal F.I.R. at 8‑20 p.m. on the same day, without any addition on his part.

4. Challan was submitted before the Court. The learned trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities, charge against the accused was framed and put to him, who denied correctness of the allegations and claimed to be tried. The prosecution produced evidence to bring home guilt to the accused.

5. Dr. Muhammad Rafique Khan (P.W.7) conducted autopsy on the dead body of Muhammad Ali, S.‑I. and found two fire‑arm injuries on his person. According to him, both the injuries were grievous in nature and were sufficient to cause death in the ordinary course of nature.

6. Muhammad Yar, A.S.‑I. (P.W.10) and Abdul Rehman, A.S.‑I. (P.W.11) furnished ocular account of the occurrence. They in a nutshell reiterated story of the F.I.R. They fully supported the prosecution version. Muhammad Raftque, S.‑I. (P.W.12) is complainant as well as Investigating Officer of the crime. Muhammad Farooq (P.W.9) and Muhammad Yar (P.W.11) testified the recoveries. The learned Prosecutor gave up remaining witnesses and after tendering in evidence report of Chemical Examiner and that of Serologist declared the prosecution case close. The petitioner claimed his innocence and alleged his false involvement in this case. He opted not to produce evidence‑in‑defence and also declined to make statements on oath to belie accusations brought against him as envisaged by the relevant provisions of section 340(2), Cr.P.C.

7. After hearing the learned counsel for the parties, the trial Court vide its judgment dated 18‑1‑2002 convicted the petitioner as under:‑‑ Under section 302, P.P.C. To death and to pay Rs.200,000 to legal heirs of the deceased by way of compensation as envisaged under section 544‑A, Cr.P.C. or in default whereof to undergo simple imprisonment for six months. Under section 324, P.P.C.: To undergo rigorous imprisonment for ten years and fine of Rs.20,000 or in default whereof to further undergo rigorous imprisonment for two years. Under section 353, P.P.C. To undergo rigorous imprisonment for two years. Under section 7, A.T.A. To death. Benefit of section 382‑B C.r.P.C. was also extended to the petitioner. However, the learned trial Court acquitted Mst. Ghulam Aisha by giving her the benefit of doubt.

8. On appeal filed by the petitioner, the conviction and sentence awarded by the trial Court was confirmed vide impugned judgment dated 23‑5‑2002. Hence, this petition.

9. Mirza Masood‑ur‑Rehman, learned Advocate Supreme Court for the petitioner, inter alia, contended that the petitioner is an innocent person and has been falsely involved in this case due to enmity with some police officials; that the Investigating Officer did not believe witnesses against Bahadar Khan, Mumtaz, Altaf, Muhammad Amir and Rafi Ullah and their names were placed in Column No.2 of the challan, which shows that the version of the complainant was not believed by the police even during the investigation; that the ocular evidence adduced by the prosecution is not trustworthy and the medical evidence is in conflict with the ocular evidence. Moreover, there is no circumstantial evidence in the shape of recovery. In support of his contentions, learned counsel for the petitioner has cited a plethora of case‑law, such as, Sheral alias Sher Muhammad v. The State (1999 SCMR 697), Rehmat and others v. The State (PLD 1959 SC (Pak.) 109), Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) and Naik Muhammad alias Nota v. The State (1995 SCMR 317).

10. We have considered the arguments of the learned counsel for the petitioner, minutely gone through' the above‑cited case‑law and the record available. Admittedly, the incident is alleged to have taken place at 6‑30 p.m. on 22‑6‑2000, and the F.I.R. was lodged at 8‑20. p.m. In the month of June, sun sets at about 7‑45 p.m. which shows that the occurrence took place during day time, as there was sufficient light to identify the assailant. The occurrence took place in front of the house of the petitioner. The ocular evidence furnished by the P.Ws. had gone unchallenged and unrebutted. The police men had no grudge, grouse or enmity against the petitioner to wrongly involve him in this case. The learned trial Court as well as the learned High Court have rightly believed their evidence. The contention of learned counsel that the medical evidence is in conflict with the ocular evidence, has no force. The deceased received fire‑arm injuries and the police obtained blood from the place of occurrence and the report of Serologist is also in positive. The case‑law cited by the learned counsel is quite different and distinguishable from the case in hand. In the above‑mentioned cases, the trial Courts as well as the Appellate Courts very carefully examined the record and discarded the evidence against some of the accused, because convincing and trustworthy evidence was not available against them; whereas in this case the police had already placed the names of co‑accused in Column No.2 of the challan, and in the F.I.R. specific role has been attributed to the present petitioner, which is supported by the circumstantial evidence in shape of recovery, of blood from the place of Wardat and medical evidence. The unimpeachable ocular evidence was rightly believed by the trial Court, which was upheld by the learned High Court.

11. For the facts and reasons stated hereinabove, we see no substance in this petition, which is hereby dismissed and leave to appeal declined. N.H.Q./S‑238/S Leave refused.