2006 PLP 1791 (SCMR)

HAMID ALI MIRZA, J.

This jail petition for leave to appeal is directed against judgment, dated 10-2-2005 in Criminal Appeal No.1025 of 2002 passed by learned Single Judge of the Lahore High Court, Lahore, whereby said appeal was dismissed maintaining the judgment dated 23-4-2002 of Additional Sessions Judge, Faisalabad, whereby petitioner was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and fine of Rs.50,000.

2. Brief facts of the case are that the petitioner Muhammad Shakeel/Shakeel Ahmad was charged along with acquitted two co-accused that on 24-2-2001 at about 9-30 a.m. within the area of Kohi Noor Flats, Police Station Peoples Colony, Faisalabad, in furtherance of their common intention inflicted injury upon the person of Majid Riaz with knife who on account of said injury died on 29-3-2001 in Divisional Headquarters Hospital, Faisalabad. The said charge was read over to the petitioner and acquitted co-accused who pleaded not guilty to the charged offence and stated to be tried, consequently the prosecution examined as many as fourteen witnesses and thereafter petitioner and co-accused were examined under section 342, Cr.P.C. wherein they stated that they were innocent and were falsely implicated in the crime. The petitioner denied the recovery of blood-stained knife P.2 and stated to have been implanted upon him. He further stated that deceased quarrelled with him on catching wandering kite and at that time Majid Riaz went away extending threats of dire consequences and soon thereafter he attacked upon his house and injured his mother Irshad Bibi when the petitioner grappled with Majid Riaz to save his mother and tried to snatch the Chhuri and the deceased sustained injury with his own Chhuri when co-accused Shafiq Ahmad and Aqeel Ahmad were not present at the spot. He examined D. W.1 Muhammad Azam, D.W.2 Mst. Irshad Bibi and D.W.3 Dr. Saeed Akbar Tariq. After recording of evidence and hearing learned counsel for the parties trial Court convicted the petitioner Muhammad Shakeel/Shakeel Ahmad under section 302(b), P.P.C. and sentenced him with imprisonment for life and fine of Rs.50,000 which was to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. So far co-accused Aqeel Ahmad and Shafiq Ahmad they were found innocent during investigation and no injury was attributed to them, hence they were extended benefit of doubt. The petitioner preferred Criminal Appeal No.1025 of 2002 before the Lahore High Court, Lahore which was heard by learned Single Judge of the Lahore High Court and was dismissed maintaining the judgment of conviction and sentence passed by learned Additional Sessions Judge, Faisalabad.

3. We have heard learned counsel for the petitioner and perused the record:

4. Contention of learned counsel for the petitioner is that F.I.R. was lodged after three days of the incident and further that the petitioner and two co-accused were charged for commission of offence whereas petitioner was convicted and sentenced as said above while two co-accused namely Aqeel Ahmad and Shafiq Ahmad were acquitted on the basis of same evidence, therefore, the judgment of learned Single Judge and the Court below cannot be sustained, hence entitled to acquittal considering also that ocular evidence was inconsistent to the medical evidence. He has also referred to the testimony of D.W.2 Mst. Irshad Bibi.

5. We do not find substance and merit in the said contention of the learned counsel for the petitioner.

6. The delay in lodging of F.I.R. has been fully accounted for in the F.I.R., therefore, the said delay was of no consequence to the case of the petitioner. The petitioner is only accused who has been charged with the commission of offence. The petitioner admits that it was the knife of deceased which he wanted to snatch from him during scuffle injury was caused to the deceased which resulted his ultimate death of deceased. D.W.3 Dr. Saeed Akbar Tariq has found incised wound skin deep on the palmer side of the middle finger of the mother of the appellant which could be caused by snatching the knife and then there could be abrasion. However, even if it is assumed that it was caused by the deceased to the mother of the petitioner, the same did not warrant/permit the petitioner to cause of fatal injury on the vital part of the deceased which ultimately resulted his death. P. W.8 Pir Muhammad and P. W.9 Riaz Ahmad have fully implicated the petitioner with the commission of crime. It cannot be said that the petitioner did not apprehended that by inflicting knife injury on the vital part of deceased death would be caused considering that the injury on the vital part was sufficient in normal course of circumstance to cause death of deceased. The ocular testimony of both P.Ws. is unimpeachable and confidence-inspiring and is also corroborated by medical evidence, blood-stained Chhuri P.2 which was recovered at the pointation of petitioner and is confirmed by examiner and of Serologist. The prosecution has proved the guilt of the petitioner beyond reasonable doubt. We do not find any misreading or non-reading of evidence or misconstruction of law warranting our interference in the constitutional jurisdiction of this Court. However, fine imposed upon the petitioner be treated as compensation under section 544-A, Cr.P.C. to be paid to legal heirs of deceased in failure of recovery the petitioner to suffer six months imprisonment.

7. We find no merit in this petition, consequently leave to appeal is declined and the petition is dismissed. S.A.K./M-133/SC Leave refused.