P L D 2002 Lahore 151 (PLP)

No revision for enhancement of sentence against the appellant or appeal against the acquitted persons have been filed.

5. Briefly, the facts of the case are that the occurrence took place at the Bhaini (Dera) of the complainant Mir Dad, brother of the deceased situated at Chak No.4/8-R, within the area jurisdiction of Police Station Tulamba. According to the F.I.R. Exh.PK, which was recorded on the statement of Mir Dad P.W.9, who reported the occurrence at police st4tion. The F.I.R. was recorded by Naeem-ul-Hassan Babar, S.I./S.H.O.-A,W.11, that the complainant, who' was a cultivator, while present at his Bhaini at about 6-00 p.m. on 1512-1994 alongwith his father Rajad, paternal uncle Muhammad, maternal uncle Theraj, his brother Aslam and some other family members, two cars stopped near the Bhaini and the appellant alongwith other acquitted persons came out of the cars and exhorted Lalkara that the Complainant party should vacate the land and hand over the possession to the appellant, as the complainant party refused to comply with the same, Haq Nawaz fired with his rifle, which hit Dildar Aslam, brother of the complainant, and proved fatal.

6. The motive for the occurrence as alleged in the F.I.R. was that a civil suit about the agricultural land was pending ink the Court of Ch. Muhammad Hanif, Civil Judge, Mian Channu, between the complainant, and the appellant. An injunction had been issued about the possession of the land in favour of the complainant.

7. After registration of the F.I.R. Naeem-ul-Hassan, S.H.O. P.W.11 reached the place of occurrence and sent the dead body for post-mortem examination. Prepared inquest report Exh:P.H. and injury statement Exh.PI. On the following day i.e. 16-12-1994, he again visited the place of occurrence and collected two empties of 7 mm rifle alongwith one empty of 222 rifle from the place of occurrence and took them into possession vide memo. Exh.PL. He also collected 64 empties of .12 bore Run, 14 empties of 222 rifle and 9 empties of 7 mm rifle from the different points and took the same into possession vide memo. Exh.P.M.

8. The appellant was arrested on 22-2-1995. Recovery of 7 mm rifle P-8 alongwith four live bullets P-8/1-4 was made from the possession of the appellant vide Exh.PE.

9. During trial the prosecution examined 12 P.Ws. in support of its case and after tendering the report of Forensic Science Laboratory, in evidence, closed its case. .

10. After close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C., who denied the occurrence and also stated that the place of occurrence wag a deserted place. He has stated that he was innocent and was involved in this case due to civil litigation. However, he did not appear in his defence as envisaged by section 340(2), Cr.P.C. neither led any evidence. .

11. Dr. Nazir Ahmad appeared as P.W.7. He had conducted the post?mortem examination of the deceased and found two fire-arm injuries on the body of the deceased, One injury was entry would while the other was exist wound P.Ws. 9 and 10 supplied ocular account and also stated about the motive. Bashir Ahmad P.W.6 Naeem-ul-Hassan, S.H.O. P.W.11 stated about the recovery. Naeem-ul-Hassan also investigated the case. The rest of the witnesses were formal in nature.

12. I have heard the learned counsel for the parties at length and perused the record.

13. At the very outset, the learned counsel for the appellant stated that he would not press this appeal, as according, to the report of the Superintendent of New Central Jail, Multan, dated 18-10-2001, the appellant has almost served his period of sentence and the unserved portion of his sentence was one year six months and 25 days, if compensation was paid.

14. The learned counsel for the appellant has rightly not pressed the appeal, as the posecution case has been proved without any doubt. P.Ws. 9. and 10 appeared as eye-witnesses and despite lengthy cross-examination no dent could be made in their statements vis-a-vis the participation and role of the appellant. Although the above mentioned P. Ws. are related to the deceased yet their evidence cannot be rejected on this score alone. The above mentioned P.Ws. would not substitute the real murderer with the appellant solely because of some civil litigation pending between them. The medical evidence has supported the version of the eye-witnesses. Similarly the motive has also been proved. The report of the Forensic Science Laboratory Exh.PR also proves the evidence of recovery against the appellant.

15. For what has been discussed above, 1 dismiss this appeal, conviction and sentence awarded to the appellant Haq Nawaz under section 302(c), P.P.C. and the amount of compensation i.e. Rs.50,000 are maintained. However, the appellant in default of payment of the amount of compensation' would further suffer simple imprisonment for six months.

16. As far as the conviction under section 449, P.P.C. is concerned, it has not been exclusively proved that the occurrence took place inside the Bhaini (Dera) of the complainant. No blood-stained earth was recovered from inside the said Bhaini. The other attending circumstances also led to the inference that in fact the occurrence had not taken place inside the Bhaini and might have taken place outside the Bhaini. So, giving the benefit of doubt, the appellant is acquitted of the charge under section 449, P.P.C. and his conviction and sentence under section 449, P.P.C. is set aside. N.H.Q./H-69/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.