2019 PLP 154 (YLR)

ALI BAIG, J.

Through this criminal appeal filed under section 410, Cr.P.C., the appellant/convict has assailed the impugned judgment dated 10.10.2015 passed by the Sessions Judge Hunza/Nagar whereby the learned trial Court has convicted the convict/appellant under section 302(b) and sentenced him imprisonment for life in two account with fine of Rs.400,000/- The learned trial Court has ordered that the above sentences shall run consecutively and benefit of section 382-B has been extended to the convict/appellant. However, the learned trial court has acquitted co-accused of the present appellant /convicts namely Ali Yar and Ahsan Ali.

2. Succinctly prosecution's case as narrated in the FIR is that on 01-3-2006 the complainant namely Abbas Ali son of Yousuf Ali lodged FIR No.02/2006 under sections 302, 324, 337-A at Police Station Nagar-I stating therein that on the day of occurrence i.e. 1.3.2006 at 12;00 hours the appellant/convict blocked/closed thoroughfare by laying thorny bushes and when his deceased father Yousuf Ali and brother Muhammad Hussain asked the reason of closure of road, the convict/ appellant called both of them on the pretext of solving the dispute and when both the deceased reached near the convict, he opened fires on them with 30 bore pistol. Resultantly both the deceased received/ sustained bullet injuries and deceased Muhammad Hussain expired on the spot, whereas father of complainant sustained grievous injury. Motive behind the occurrence stated to be old dispute of path way.

3. Pursuant to the above FIR, the investigation of case was carried out by H.C. Abdullah Khan the then SHO Station Nagar-I/P.W-14 , who during investigation arrested the convict/appellant namely Rajab Ali and recovered 30 bore pistol from his possession. The I.O./SHO above named reached at the place of occurrence, prepared site plan of place of occurrence took into possession the thorny bushes, two empty shells of 30 bore pistol, blood stained earth and he also took into possession dead of body the deceased Muhammad Hussain from the place of occurrence. He took the injured Yousuf Ali and dead body of deceased Muhammad Hussain to Civil Hospital Nagar and handed over the dead body to the Medical Officer for postmortem examination. The Medical Officer Civil Hospital Nagar referred the above named injured person to DHQ Hospital Gilgit, where injured Yousuf Ali succumbed to injury on the same night.

4. The above named I.O./SHO recorded the statements of P.Ws under section 161, Cr.P.C. In the meanwhile on the request of complainant S.P. and DIG directed the SDPO Nagar namely Fida Ali I.P. to investigate the case. Accordingly the above named SDPO recorded statements of two witnesses namely Muhammad Abbas and Nasir Hussain under section 161, Cr.P.C. and arrested co-accused of the present appellant namely Ali Yar and Ahsan Ali on the charge of abetment on 23.3.2006. After completion of usual investigation the above I.O./I.P. submitted the challan/charge sheet against the convict and his co-accused in the trial court.

5. On the receipt of challan the learned trial court framed charge against the convict/appellant and his co-accused, to which the accused pleaded not guilty and claimed trial. Hence P.Ws were summoned by the trial court.

6. During the trial the prosecution produced 15 witnesses out of 21 witnesses cited in the calendar of witness of challan and abandoned six P.Ws. After production of 15 PM and abandoning of six witnesses the learned D.D.P Hunza Nagar closed prosecution evidence. Thereafter the convict/appellant and his co-accused were examined by the learned trial court separately under section 342, Cr.P.C. wherein they have denied the charge of murder of the deceased. However, the appellant/convict and his co-accused neither got recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On the conclusion of the trial the learned trial court has convicted the appellant under section 302(b), P.P.C. and sentenced him imprisonment for life on two account with a fine of Rs.400,000/- and in default whereof the convict shall further undergo simple imprisonment for two years. While co- accused of present appellant/convict namely Ali Yar and Ashan Ali were acquitted from the charge of offence under section 109, Cr.P.C. holding that the prosecution has failed to prove its case against them.

7. Feeling aggrieved and dissatisfied with the impugned judgment passed by the learned trial court, the appellant/convict has preferred the instant criminal appeal in this court.

8. The learned counsel for the appellant contended that the prosecution has miserly failed to establish the charge against appellant/convict through solid and concrete evidence. The learned counsel for the appellant further argued the evidence of only interested witnesses has been recorded and no impartial witness and was produced and being related and interested witnesses their testimony is not admissible and reliable. The learned counsel for the appellant further argued that the impugned judgment passed by the learned trial court is contrary to the law and facts on the record of the case as such the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside.

9. We have heard the learned counsel for the appellant and perused the available record.

10. Perusal of record reveals that the unnatural death of deceased Yousuf Ali and Muhammad Hussain is not disputed. After the occurrence the dead body of Muhammad Hussain was shifted to Civil Hospital Nagar where Dr. Khwaja Khan M.O. conducted post-mortem examination of dead body of deceased Muhammad Hussain and he referred injured person namely Yousuf Ali to DHQ Hospital, where he also expired on the same night, who was examined by the Dr. Muhammad Yaqub M.O. DHQ Hospital Gilgit which confirm bullet injuries caused with fire arm. Weapon of offence has been recovered from the possession of appellant /convict in presence of marginal witnesses. The accused/appellant was directly nominated in the FIR with specific role. The crime weapon and two empty shells of said 30 bore pistol were sent to Forensic Science Laboratory Peshawar and crime weapon and crime empties were matched during forensic examination. Motive behind the occurrence was stated to be the dispute between complainant and accused party over the right of path-way. PWs.1 and 2 have admitted that on easement dispute the parties had involved the quarreling/fighting which is supported by the PW-8 namely Bakhtwar Shah, hence motive has been established against the appellant.

11. Adverting to the ocular testimony produced by the prosecution which is in the shape of direct evidence of P.Ws. Both PW-2 namely Muhammad Ali and PW-3 Ramzan Ali have deposed/testified that they were present at the shop of PW-3 Ramzan Ali situated at a walking distance of 1/2 minutes from the place of occurrence. When they heard report of fire shots they reached at the place of occurrence and saw the appellant/convict Rajab Ali carrying the weapon of offence in his hand, while dead body of deceased Muhammad Hussain was lying on the ground, whereas the deceased Yousuf Ali was in injured condition. PW-3 namely Ramzan Ali asked the accused why he did so, whereupon the appellant/convict told that he has been fed up with the deceased and injured person and wanted to go to jail. In the meanwhile people gathered there and the accused/convict run away from the place occurrence.

12. The prosecution through ocular evidence, medical evidence and recovery of weapon of offence and other incriminating material has proved its case against the appellant/convict beyond any shadow of any reasonable doubt, hence the learned trial court has rightly convicted the appellant/convict vide the impugned judgment. Moreover it is astonishing to note that the appellant has filed the instant appeal after lapse of about 3 years of the passing of impugned judgment by the learned trial court and even has not bothered to file an application for condonation of delay in filing appeal, hence this appeal is hopelessly time barred. However, sentences awarded to the appellant /convict shall run concurrently.

13. For what has been discussed above, with above slight modification the impugned judgment dated 10-10-2015 passed by the learned trial court is upheld. The instant appeal of the appellant stands dismissed. File. JK/193/GB Appeal dismissed.