2008 PLP 683 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will, dispose of Criminal Appeal No.1618 of 2002 filed by Shahid Omar, appellant, who was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with further direction to pay Rs.50,000 as compensation, in default six months' S.I. by the learned Additional Sessions Judge, Lahore vide judgment, dated 2-8-2002.. Criminal Revision No.982 of 2002 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.

2. Briefly stated the facts of the case are that at about 2 p.m. when the complainant Shangara Masih reached near his house after return from the Civil Court, he witnessed that Umar Khan, Saeed Ahmad and Ilyas Khan armed with fire-arm had closed the door of the property adjacent to residential house of the complainant with bricks on gun point which was demolished by Munir Masih son of the complainant. Upon this Umar Khan raised the lalkara and as a consequence thereof Saeed Khan fired a shot which hit on the chest of Munk Masih and he fell down. When the injured was on the ground Ilyas Khan also fired at the deceased with carbine.

3. Investigation of the case was conducted by Mansab Dar S.-I. (P.W.14). He after receipt of information went to hospital, recorded statement of the complainant, prepared inquest report Exh.PM., inquest report Exh.PN and took into possession the blood-stained earth vide memo. Exh.PD. Both accused namely Shahid Umar and Muhammad Umar were arrested on 15-10-1999. While in custody, Shahid Umar led to the recovery of gun which was secured vide memo. Exh.PE. Muhammad Umar also got recovered hatchet on 24-10-1999 which was taken into possession vide memo. Exh.PG. After completion of the investigation, both the accused were challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 14 witnesses in all. Then the learned ADA tendered in evidence report of the Chemical Examiner Exh.PS, report of Serologist 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 3342, Cr.P.C. in which they pleaded false implication.

5. Learned counsel for the appellant submits that both the eye-witnesses namely Sanghara Masih and Said Masih are father and brother of the deceased respectively; Sanghara Masih has given the date of occurrence as 26-9-1999 while Said Masih has stated as 20-10-1999 P. W .2 Sanghara did not state in whole of his statement that Said Masih P.W.3 was present at the spot at the time of occurrence, there are material improvements in the statement of P.W.3, Shahid Umar is not named in the F.I.R. no supplementary statement of the complainant was recorded, there was enmity between the parties inasmuch as P.W.3 admitted in cross-examination that he had lodged a case against one Saeed son of Namar Khan, in the site plan, no wall has been shown which was demolished, no bricks were also shown in the site plan, point is a Dhara (katcha room) where the deceased received injury, there was only one injury on the person of the deceased while according to P.Ws., acquitted co-accused of the appellant also fired at the deceased with his carbine, there is no blackening on the injury of the deceased though the shot was fired from a range of 8 feet and that P.W.10 had stated that the deceased died in emergency while according to P.W.11, surgery was also done on his body. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.

6. Learned counsel for the State assisted by learned counsel for the complainant who has filed criminal revision for enhancement of sentence of the convict submits that it was a case of promptly lodged F.I.R., appellant was named in the F.I.R., the occurrence took place in broad-daylight, there was no question of false implication and that the prosecution has been successful in proving its case against the appellant.

7. I have heard learned counsel for the parties and have, gone through the record. It is correct that name of the appellant was given as Saeed Khan but his parentage and address has been correctly given in the F.I.R. Both the `parties being residents of same village known to each other and there was no questi6h of mistaken identity. Said Masih P.W.3 is the most natural witness. He is brother of the deceased and his presence at the spot is proved from Exh. PH where in the column "name of relative or friend" the name of Said Masih finds mention. It shows that he was the person who was present at the spot and took the deceased in an injured condition to the hospital at 2-21 p.m. when the occurrence had taken place at 2 p.m. It is a case of promptly lodged F.I.R. There is no enmity whatsoever brought on record by the defence between the parties. The documents produced by the defence show litigation between Zahoor and Sanghara Masih, the complainant. There is not a single document on record produced by the defence to show- any litigation between the complainant and the deceased. The civil suit, if any, was filed by father of the deceased in which he had got stay order. The occurrence had taken place in the Dhara, which is adjacent to boundary wall of house of the complainant. There was no reason, on the part of the complainant to falsely implicate the appellant when he had no enmity whatsoever against him. There is no conflict between ocular account and the medical evidence. According to site plan Exh.PA, the shot was fired from a distance of 8 feet. If this is the position, then no blackening could have occurred. Even according to the postmortem report, there is no blackening on the injury of the deceased. The motive having been held to be shrouded in mystery by the trial Court, I do not want to comment upon that because of the reasons given by the trial Court for awarding lesser sentence. No crime empty having been taken into possession from the spot, mere recovery of rifle on the pointation of the appellant is of no avail. No empty was recovered from the spot for the reason that no second shot was fired. As far, as, stating of wrong month of day of occurrence by Said Masih "P. W.3 is concerned, is due to the fact that his statement was recorded three years after the occurrence and it was also not a case of defence that there was any brother of the appellant. The ocular account furnished by the eye-witnesses namely Sanghara and" Said Masih inspiring confidence and duly corroborated by the medical evidence, I am fully satisfied that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. Resultantly, appeal filed by the convict appellant is dismissed. Conviction and sentence recorded against him by the trial Court is maintained in toto. Criminal Revision filed by the complainant is also dismissed. N.H.Q./S-217/L Appeal dismissed.