2006 PLP 1996 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.445 of 2003 filed by Tariq Mehmood appellant, who was convicted and sentenced by learned Additional Sessions Judge, Mianwali vide his judgment dated 10-3-2003 to undergo imprisonment for life under section 302(b)/ 34, P.P.C. with the benefit of section 382-B, Cr.P.C.

2. Brief facts of the case as disclosed by Abdul Rauf (deceased/complainant) are that on 16-7-2001 when he along with his son Abdul Basit, Haji Muhammad Afzal and Muhammad Akram P.W. was on his way to Police Station at about 5-15 p.m. in connection with investigation of case F.I.R. No.35 of 2001 under sections 440/403 and 380, P.P.C. Police Station Chikrala. The accused Tariq Mehmood (appellant), Muhammad Aslam and Hakim Khan (still P.0) emerged out of Kundar Bushes located near graveyard of Bun Budhey. Hakim Khan raised Lalkara addressing to Abdur Rauf that he would be taught a lesson for getting criminal cases registered. Hakim Khan fired at Abdur Rauf immediately after Lalkara with his rifle, which landed on the upper border of right buttock and then Tariq Mehmood (appellant) fired with his rifle, which hit the left thumb of Abdur Rauf, who fell down on the ground after receiving these injuries. All the three accused ran away towards their houses by firing in the air.

3. Dost Muhammad Khan S.-I. P.W.12 recorded c statement of Abdur Rauf injured-deceased at the spot and that statement was sent to the police station in the form of a complaint for registration of case, thereafter, he recorded the statements of eye-witnesses under section 161, Cr.P.C. at the spot on 16-7-2001, Abdur Rauf injured was sent to D.H.Q. Hospital for Medico-legal examination and treatment. On 17-7-2001, Abdur Rauf injured made a supplementary statement before Dost Muhammad S.-I., stating therein that the aforesaid three accused were accompanied by Zahid Mehmood fourth accused armed with .12 bore double barrel and Zahid Mehmood had also fired upon him and taken part in the occurrence. Abdur Rauf died on 23-7-2001 as a result of injuries inflicted to him. On receiving the information about the death of injured, charge of offence punishable under section 324, P.P.C. initially levelled was substituted with the charge of offence punishable under section 302, P.P.C. Muhammad Aslam and Zahid Mehmood accused were arrested, investigated and were challaned and subsequently tried. Muhammad Aslam was held guilty, convicted and awarded sentence of life imprisonment under section 302(b), P.P.C. when Zahid Mehmood was acquitted. Tariq Mehmood (appellant) and Hakim Khan could not be arrested, so they were declared P.O. after necessary proceedings. Hakim Khan is still P.O. On 15-4-2002 Tariq Mehmood (appellant) was arrested and on 17-4-2002 rifle along with 5 bullets allegedly used by him was recovered from his possession and a case was registered against him as the weapon and ammunition recovered from him was without licence and permit.

4. In order to prove its case, prosecution produced 12 witnesses in all, thereafter, learned D.D.A. tendered in evidence report of Chemical Examiner Exh. PR, that of Serologist Exh.PS and closed the prosecution case, then, the statement of the appellant under section 342, Cr.P.C. was recorded. Shah Jahan M.H.C. was examined as D.W.1 in this case.

5. In support of this appeal, learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record submits that F.I.R. was recorded after due deliberation and consultation, that although the police station was at the distance of one furlong or thirty yards and S.H.O. had gone to the spot after hearing the fire-shot but the complaint was recorded at 6-30 p.m. and the formal F.I.R. was recorded at 6-40 p.m., that there is a longstanding enmity between the parties, that no independent witness has been produced by the prosecution, that qua Aslam and Zahid witnesses have been disbelieved, that Muhammad Akram P.W.9 is resident of 4/5 miles away from the place of occurrence and he was not a witness in a case under investigation, that deceased Abdur Rauf was himself challaned in the abduction of his father along with Abdur Rasheed P.W.7, that deceased also filed suit for declaration against his father and grand mother for declaring his father as lunatic, that according to post-mortem report the injuries are on the back of the deceased, that in fact the deceased was not hit even by his co-accused Hakim Khan, who is P.O. and the deceased was not in a position to see that who was firing from his back, that site-plan was changed in this case, as admitted by Khalid Farooq Patwari P.W.4, that after receiving the injuries through and through the deceased was not in a position to make a statement and moreover, he was fired from a back at a distance of 30 Karam but there is blackening around the wound and all these facts show that occurrence was not witnessed by the eye-witnesses, that according to the witnesses deceased was fired by Hakim Khan (P.O.) at a distance of 30 Karam, that it is a case, which requires corroboration from independent source, which is not available in this case, that motive is a double edged weapon and medical evidence negates the prosecution case, that recovery is of no consequence, that both the doctors, who conducted post-mortem examination and Medico-legal examination, have stated that possibility of injuries with blunt weapon cannot be ruled out, that nature of injuries are also without any description and there is only a grazing wound, that as the prosecution added that Abdul Basit son of the deceased got signed the F.I.R. as witness but he had not stated this fact in his statement recorded under section 161, Cr.P.C. and in fact he made dishonest improvement at the time of trial and that prosecution had failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.

6. On the other hand, learned State counsel submits that appellant is named in the F.I.R., that no delay was made in getting the case registered, that occurrence took place in a broad-daylight, that injuries are with fire-arm, that appellant was declared P.O. and remained absconder for about nine months, that deceased and the appellant are closely related to each other, so there was no question of mistaken identity, that Abdul Basit P.W.8 and Muhammad Akram P.W.9 have fully supported the prosecution case and that deceased had made a dying declaration in this case. He supports the judgment of the learned trial Court.

7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 16-7-2001 at 5-15 p.m., so it was a broad-daylight occurrence, matter was reported to the police at 6-30 p.m. and the formal F.I.R. was recorded at 6-40 p.m. Three accused including the present appellant, namely, Hakim Khan (still P.O.) and Muhammad Aslam were named in the F.I.R. As far as, Muhammad Aslam accused is concerned, he was never attributed any injury and this Court in A Criminal Appeal No. 595 of 2002 on 25-6-2003, acquitted him from the charge. So far as, Zahid Mehmood accused is concerned, he was not named in the F.I.R. and he was acquitted by the learned trial Court, the acquittal of both the accused, namely, Muhammad Aslam and Zahid Mehmood still hold the field because their case was totally different from the present appellant. For the just decision of the case, relationship of the parties is very necessary, father of Abdul Rauf deceased, namely, Allah Yar had married with grand mother of the present appellant although there was a bitterness between the parties but the fact remains that enmity and motive is always a double edged weapon. In the instant case, the deceased himself on 16-7-2001 made a complaint and he died on 23-7-2001 but there is no evidence or suggestion to the doctors, who conducted Medico-legal examination and post-mortem examination, that deceased was not fit to make a statement in this case. Parties were very closely related to each other, so there was no question of mistaken identity in this case. Appellant became proclaimed offender and was arrested in this case on 15-4-2001, no explanation whatsoever had been given by the appellant about his abscondance for nine months. There were two injuries on the person of the deceased. According to post-mortem report of the deceased, Injury No.1, which is on the back of the deceased, was attributed to Hakim Khan (P.O.) and it has got a slight blackening while Injury No.3, which is on the thumb of the deceased, was also with fire-arm and this injury was attributed to the appellant. According to the opinion of the doctor, the said injury, which was attributed to the present appellant, was caused with fire-arm. However, during cross-examination, the said doctor had stated the possibility of the injury with blunt weapon cannot be ruled out but this Court does not agree with the opinion of the doctor and merely on the possibility it cannot be said that injury was caused with a blunt weapon. Not only Medico-legal examination was conducted on the person of the deceased but post-mortem examination was also conducted on his body. Both the doctors came to the conclusion that it was with fire-arm. Ocular account is fully corroborated by medical evidence and the motive given in the F.I.R. As far as, contention of learned counsel for the appellant that recovery is of no avail is concerned, it is correct for the reasons that no crime empty was recovered from the spot. The further corroboration, which can be sought and is available, is long abscondance of nine months of the appellant, if he was innocent, then, he could have surrendered before the police, even his co-accused Hakim Khan is still at large. Moreover, as the F.I.R. was lodged on the statement of the deceased, it had become a dying declaration and it is not believable that deceased would leave the actual culprits while making the dying declaration and involved innocent persons in this case.

8. After having heard learned counsel for the parties and going through the record, I am of the considered opinion, that prosecution has proved its case against the appellant beyond any shadow of doubt. Resultantly, this appeal filed by Tariq Mehmood, appellant is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained in toto. H.B.T./T-121/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.