2002 PLP 1638 (MLD)

M. NAEEMULLAH KHAN SHERWANI, J.‑‑‑Muhammad Ilyas alias Kaka son of Muhammad Aslam was tried by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Ferozewala, District Sheikhupura, for launching murderous assault upon Abdul Razzaq. By virtue of his judgment dated 31‑1‑2000, the said learned Judge found him guilty of the said charge, convicted him under section 324, P.P.C. and punished him with rigorous imprisonment for ten years alongwith a fine of Rs.75,

000. Two‑third of fine, if realized, was ordered to be paid to Abdul Razzaq injured P.W. by way of compensation as envisaged by the relevant provisions of section 544‑A, Cr.P.C. He was also awarded punishment of rigorous imprisonment for ten years under section 337‑D, P.P.C. as Ta'zir, The said learned Judge further sentenced him to rigorous imprisonment for three years under section 337‑F(iii), P.P.C. as Ta'zir. All the sentences were ordered to run concurrently. Benefit of section 382‑B, Cr.P.C. was, however, extended to him.

2. By filing this appeal, the convict has called in question conviction and sentence passed against him through the abovesaid judgment.

3. Occurrence of the alleged incident took place on 21‑12‑1996, at about 4‑00 p.m., within the area of Kot Noor Shah, situate at a distance of three miles from Police Station Factory Area, Sheikhupura. Nasir Ahmad, A.S.‑I. while on patrol duty was available at Bus Stop Qila Sattar Shah, Muhammad Afzal, C.No.1010 produced a copy of daily diary No.28, dated 21‑12‑1996, through which it transpired that in an occurrence a person has been injured and has been admitted to Mayo Hospital, Lahore. He immediately rushed towards the hospital, and upon reaching there on 22‑12‑1996 at 8‑15 p.m., as per dictation of Abdul Majid (P.W.1), recorded statement (Exh.P.A.) faithfully and despatched the same to the police station through Bashir Ahmad, C.No.984 for formal registration of a criminal case. Consequent upon receipt thereof, Muhammad Yasin, S.‑I. drew up F.I.R. (Exh.P.A./1) correctly, on the same day at 9‑30 p.m.

4. That is how, Abdul Majid son of Abdul Wahid, resident of Faizpur, District Sheikhpura had set the police machinery into motion by getting case F.I.R. No.712 (Exh.P.A.I), under sections 324/336/337‑D/ 337‑F(iii), P.P.C., registered with Police Station Factory Area, Sheikhupura on 22‑12‑1996. He described the incident as under:‑‑ He deals in the business of Tractors Spare Parts and alongwith his brother Abdul Razzaq is running a shop at Bus Stop, Kot Noor Shah. On 21‑12‑1996, he and Abdul Razzaq were available at their shop. Muhammad Ilyas alias Kaka appellant arrived there and demanded brake leather of the tractor. Abdul Razzaq asked for the amount of price. The appellant told him that he was incapable of making the payment. Abdul Razzaq told him that even on the previous occasion, he had taken spare parts of the tractor and the amount in lieu thereof remained to be paid by him. He should better clear his accounts and have the leathers. He should also make payment for the leathers, which he wanted to purchase now. Muhammad Ilyas appellant picked up a quarrel with Abdul Razzaq and started hurling filthy abuses. He issued threats, but the shopkeepers around, made peace between them. He left the place. He again appeared at about 4‑00 p.m. while abusing and restored to firing at Abdul Razzaq with his .222‑rifle. In consequence of said firing, he received two injuries one on his right arm and second on the right side of his abdomen. Abdul Razzaq fell down on receipt of these injuries. The complainant saved his life while concealing himself somewhere. Muhammad Ilyas alias Kaka decamped from the spot while still firing and raising Lalkaras. Besides the complainant, Amjad, and Mahmood Ahmad also witnessed the whole occurrence. Abdul Razzaq was besmeared with blood and was immediately shifted to Mayo Hospital, Lahore in an injured condition. Abdul Majid complainant remained busy in procuring the best treatment for his brother Abdul Razzaq and for that reason failed to lay timely information to the police. Abdul Majid made statement before Nasir Ahmad, A.S.‑I. (P.W.7) and on that basis abovesaid F.I.R. stood registered.

5. Preceding registration of case, investigation was taken over by Nasir Ahmad, A.S.‑I. (P.W.7). He then proceeded towards the place of occurrence, recorded inspection notes in case diary and prepared rough site plan (Exh. P. E. ). He endeavoured his best to arrest the accused, but of no avail. He recorded statements of the relevant witnesses including that of the victim of assault‑Abdul Razzaq on 23‑12‑1996. He became successful in arresting the appellant on 17‑2‑1997. Thereafter, investigation of the case was transferred to Rao Abdul Rehman, S.‑I. (P.W.6). On 3‑3‑1997, Muhammad Ilyas appellant while in police custody led to the recovery of rifle .222 by digging earth from the Bangoon bushes near Eleechi Garden on the Motorway in the area of Faizpur, which was taken into custody by this witness through memo. Exh.P.C., duly attested by Abdul Latif (P.W.4) and Abbas P.W. (not produced). He prepared rough site plan (Exh.P.E.) of the place of recovery and recorded statements of the witnesses. He handed over case property to Muharrir of the police station. After completion of investigation, the Investigating Agency submitted challan against the appellant to face trial in accordance with law.

6. The trial Court after observing all the legal formalities framed charge and Put the same to the appellant, to which he pleaded not guilty and claimed to be tried. At this stage, the trial Curt called upon prosecution to adduce evidence to substantiate the charges against the appellant. In pursuance of direction of the trial Court, the prosecution ventured to produce as many as seven witnesses in all, out of which Abdul Majid (P.W.1), Abdul Razzaq (P.W.2) and Dr. Muhammad Abaidullah (P.W.5) are prominent ones and the remaining are of formal nature. We would like to make a passing reference to their statements. Abdul Majid‑complainant (P.W.1) and Abdul Razzaq‑injured (P.W.2) are the witnesses of motive and ocular account. They in a nutshell reiterated story of the F.I.R. (Exh.P.A/1). They both fully implicated the appellant and confirmed the parts played by him during the course of incident. Dr. Muhammad Abaidullah, C.M.O. (P.W.5), on 21‑12‑1996 at about 5‑30 p.m. medically examined Abdul Razzaq and found following injuries on his Person;‑‑ (1) One lacerated wound about 3 c. m. x 3 c. m. liver protruding through this wound, on the front of the right side of abdomen. (2) One lacerated wound 5 c.m. x 4 c.m. D.N.P. on the inner side of the back of the upper part of the right forearm. According to doctor, condition of the patient was critically serious and all these injuries were kept under observation. Probable duration of these injuries was within 12 hours. The weapon used was a `fire‑arm'. do his application, Dr. Yar Muhammad (P.W.3), Registrar, North Surgical Unit, Mayo Hospital, prepared operation notes (Exh.P.B.), according to which injury No.1 was declared as Jaifah and injury No.2 was declared as Ghair Jaifah Mutalahimah. Exh.P.D. is the correct carrion copy of the medico‑legal report, which bears his signatures.

7. Leaned Prosecutor gave up Amjad, Mahmood Ahmad, Muhammad Abbas, Muhammad Yasin, S.‑I. and Dr. Hamayun Iqbal P.Ws. being unnecessary and after tendering in 'evidence report of the Forensic Science Laboratory (Exh.P.F), declared the prosecution case close.

8. All the important pieces of evidence were put to the appellant to seek his explanation regarding his participation in the occurrence, as required under the relevant provisions of section 342, Cr.P.C. He took no specific plea and assigned his implication to enmity and suspicion. He could say nothing more than this.

9. The trial proceedings ultimately culminated into conviction of the appellant as aforementioned.

10. Learned counsel for the appellant in his attractive arguments to this Court has highlighted his points for our consideration. He submits:‑‑ (i) That there is twenty hours' delay in lodging of the first information report, which makes prosecution story doubtful and untrustworthy. (ii) That two independent eye‑witnesses, namely, Amjad and Mahmood Ahmad were not produced before the trial Court and adverse presumption is to be drawn that had they been produced, they would not have supported the prosecution version. (iii) That the prosecution has led no evidence to prove motive part of the occurrence, which remained unproved. (iv) That ocular account furnished by Abdul Majid and Abdul Razzaq (P. Ws.1 and 2) is not in consonance with the medical evidence. (v) That no crime empty could be recovered from the spot. Bullet was also not taken into possession by the police, so recovery of rifle .222 is of no avail to the prosecution. (vi) That charge framed against the appellant is defective inasmuch as date of occurrence in the said charge is described as 22‑12‑1996, whereas occurrence took place on 21‑12‑1996. Due to this material mistake, the appellant was misled in his defence. (vii) That in any case, sentence awarded to the appellant is severe.

11. Leaned counsel for the State assisted by learned counsel for the complainant too strongly argued that it is a single accused case, who committed the crime in the daylight and a specific role has been played by him, which is further corroborated by the medical evidence. According to him, evidence of the eye‑witnesses, namely, Abdul Majid and Abdul Razzaq (P. Ws. l and 2) was sufficient to base conviction of the appellant, who was rightly convicted and sentenced.

12. We have considered respective arguments of learned counsel for both the sides and perused the relevant record with their able assistance.

13. Ocular account has been furnished by Abdul Majid and Abdul Razzaq (P. Ws. 1 and 2). They are brothers inter se. Occurrence took place at the shop of Abdul Majid, situated at Adda Kot Noor Shah. The appellant firstly paid a visit to the shop of Abdul Majid and asked for delivery of brake leather to him on credit basis. He was given a flat refusal. It was pointed out to him that he had not cleared off his dues. This caused annoyance to the appellant, who went away after extending threats to Abdul Razzaq (P.W.2). Shopkeepers around the place of occurrence timely intervened and as such saved the situation. The appellant then came down at the spot at 4‑00 p.m. while carrying .222 rifle. Immediately after reaching the spot, he assumed a threatening posture and told Abdul Razzaq P. W. to recite Kalma Sharif and made two successive shots at him through his rifle. He received firs injury at his right shoulder (scapular region) and the second on right side of abdomen. Both the witnesses have wholeheartedly supported the prosecution version. They made no material omissions, or mistakes. They agreed in their testimony. They had no interest in concealing the truth. It is a daytime occurrence and there is no question of mistaken identity regarding the appellant. He possessed a high degree of interest and just because of recent incident happening at 2‑00, p.m. on the same day at the shop of Abdul Majid; came back to the spot and behaved that way round. Ocular evidence furnished by these witnesses leaves no doubt about participation of the appellant in the crime imputed to him. We hold that they are wholly reliable witnesses and their evidence is by all means sufficient for conviction of the appellant.

14. As condition of Abdul Razzaq was precarious, he was shifted to the hospital and for that reason necessary arrangements had to be made and only worry of Abdul Majid was to save life of his brother. It was indeed a matter of grave concern for him. Amjad and Mahmood Ahmad, P. Ws., had no interest in the matter, so they did not bother to lay information before the police. If Amjad and Mahmood Ahmad had some different explanation regarding outbreak of this incident, then they could be produced by the appellant as defence witnesses. No such request was ever made by the defence. Their non‑production before the trial Court is of no consequence. The contention of learned counsel for the appellant is repelled being devoid of force. Delay has amply been explained in the first information report.

15. Injury of a very serious nature at the abdominal region of Abdul Razzaq establishes his presence at the spot and he has himself appeared in the Court to narrate the story of his sufferings at the hands of the appellant. The defence has awfully failed to ferret out a motive for false implication of the appellant in this case. Abdul Razzaq P. W. had no I reason at his end to throw false blame on the appellant. He has not told fictitious tale of occurrence. We hold that the complaint is legitimate and the witnesses are legitimate.

16. Motive has been sufficiently explained by both the witnesses in their statements. The mere fact that a wrong date has been mentioned in the charge‑sheet would not constitute a sufficient ground for en bloc rejection of the prosecution evidence. It has caused no prejudice to the accused. No such objection was ever taken before the trial Court and it could not be demonstrated by the learned counsel for the appellant that how and in what manner the appellant was misled in his defence.

17. The mere fact that empties could not be secured from the spot and the bullet was not taken into possession by the Investigating Officer, would not advance cause of the defence, because injuries have been definitely caused by the discharge of a fire‑arm.

18. The trial Court had done weightment of the evidence strictly in accordance with cardinal principles regarding appreciation of evidence. The evidence has been appreciated in its true perspective. We find no reason to disagree with the conclusions arrived at by the learned trial Judge after proper appreciation of evidence. We accordingly dismiss this appeal. Conviction of the appellant under sections 324 and 337‑D, P.P.C. alongwith sentence of fine is maintained.

19. We find that the appellant has been awarded maximum punishment, which appears to be severe. We are inclined to reduce the sentence of rigorous imprisonment for ten years to rigorous imprisonment for seven years. Both the sentences shall run concurrently. Benefit of section 382‑B, Cr.P.C. is, however, extended to him. H.B.T./M‑1233/L ?????? Appeal dismissed.