2006 PLP 2893 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.483/J of 2003 filed by Muhammad Ehsan, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment dated 28-8-2003 to undergo imprisonment for life under section 302(b), P.P.C. with further direction to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default six months' S.I. with the benefit of section 382-B, Cr.P.C. Criminal Revision No.1013 of 2003 filed by Muhammad Iqbal petitioner against Muhammad Ehsan respondent for the enhancement of sentence shall also be disposed of through this single judgment.

2. Brief facts of the case, as disclosed by Muhammad Iqbal complainant, are that he had a dispute of a house with Muhammad Hussain, for which the convicted accused Muhammad Saleem had the grudge and he wanted to kill Akhtar Iqbal son of the complainant and also quarrelled with him on 12-7-1996 along with his friend Muhammad Ihsan and the said matter was patched up through the respectable of the localities and it was decided that the matter be resolved in a Punchayat,- on 14-7-1996 at 4-45 p.m. Muhammad Ihsan accused came to his house and informed that the Punchayat had gathered in his house, so the complainant should come, hence he along with his son Akhtar Iqbal accompanied with his neighbourer Fateh Ullah were going there when his brother-in-law (Sala) Muhammad Ashiq came from Lahore and they started talking, however, Akhtar Iqbal went with the accused. It is stated that after a shot-while the complainant with Fateh Ullah went to the house of Ihsan, when they heard a scream and they entered into the room and saw that Muhammad Saleem convicted accused had put an Azar Bund around the neck of Akhtar Iqbal for strangulation and Ihsan accused gave two blows of scissors on the forehead of Akhtar Iqbal. The accused left Akhtar Iqbal after the interruption of the complainant party, who fell down and died. It is also stated in the complaint by the complainant that case F.I.R. No.214, dated 14-7-1996 under section 302/34, P.P.C. was registered with Police Station Mughalpura but later on, the police declared Muhammad Saleem and Muhammad Hussain being innocent, hence this complaint.

3. After recording the preliminary evidence, all the accused were summoned in the private complaint and were tried, whereupon the charge upon all the three accused were framed on 18-3-1999 under sections 302/109/34, P.P.C. who did not plead guilty and the eye-witnesses were recorded against all the accused but during the proceedings present appellant absconded himself and remaining accused were tried, wherein Muhammad Hussain was acquitted and Muhammad Saleem accused was convicted and sentences to undergo imprisonment for life.

4. 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, learned counsel for the appellant submits that it was an un witnessed occurrence, that appellant was falsely implicated in this case due to suspicion because the appellant was a witness in a theft case lodged by his co-accused, that parties live in the same locality but there was no grudge/quarrel between them prior to the present occurrence, that in the theft case which was lodged by co-accused Saleem against the complainant and in which appellant was a witness, he made a statement against the complainant of instant F.I.R. so he was falsely implicated in this case along with co-accused Saleem, that appellant is a poor man and there was no reason for giving the said house for holding the "Punchayat", that he was not a respectable of the locality, where the "Punchayat" was convened, that if there was any enmity that was between co-accused Saleem and the complainant party, that there was civil and criminal litigation between Saleem and complainant coupled with that they all are from different Sect, that there was no motive on the part of the present appellant to have joined hands in the occurrence, that story of "Punchayat" is not believable, that reaction of the complainant after seeing his son having cloth around his neck was unnatural one, that Muhammad Iqbal P.W.1 had stated in his cross-examination that he did not know about the earlier incident/quarrel between deceased and the appellant party, that P.W.1 also stated that he had mentioned only two injuries while P.W.2 stated that deceased received five injuries with scissors, that in fact both the eye-witnesses (P.W.l and P.W.2) were not present at the spot at the time of occurrence and they are cooked up witnesses, that there are material contradiction in the statements of P.W. and P.W.2 and that P.W.2 is not even resident of that place, that dead body of the deceased had been planted in the house of appellant, that ocular accounts is not in line with medical evidence, that prosecution failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.

5. On the other hand, learned counsel fol. the State assisted by learned counsel for the complainant submits that both the eye-witnesses (P.W.1 and P.W.2) have supported the prosecution case, that it was a broad-daylight occurrence, that ocular account is corroborated by medical evidence, that recovery was also effected from the appellant, which was found to be stained with human blood according to the report of Chemical Examiner and that of Serologist. They both support the judgment of the learned Court.

6. I have heard learned counsel for the parties at a very great length and have also gone through the record very minutely with their able assistance. Occurrence in this case had taken place on 14-7-1996 at 4-45 p.m. and the complaint was made on the same day within 15 minutes at 5-00 p.m. while the formal F.I.R. was lodged on the same day at 5-15 p.m. In all there were three accused, namely, Muhammad Ehsan (present appellant), Muhammad Saleem and Muhammad Hussain. During the trial appellant absconded while the trial of co-accused remained in progress and ultimately, through a separate judgment Muhammad Saleem co-accused was convicted and sentenced to undergo imprisonment for life while his father Muhammad Hussain was acquitted and moreover, during the course of investigation both Muhammad Saleem and his father Muhammad Hussain were found innocent by the police so the complainant had to file a private complaint before the Court in which all the accused were summoned. It is a case, which can be termed as promptly lodged F.I.R. It was the appellant, who took the deceased from his house on the pretext of "Punchayat". There are five injuries on the person of Iqbal deceased. Allegation against the appellant was that he gave two scissors blow on the person of the deceased and those injuries are sufficiently mentioned in the post-mortem report, which are Injuries A Nos.2 and 3 while injury No.1 is attributed to Saleem co-accused, who put the cloth around the neck of the deceased. Death of the deceased took place due to asphyxia. Injuries Nos.4 and 5 are abrasion and that can be caused during scuffle between deceased and the accused persons. Dead-body of the deceased was recovered from the room of house of the appellant. Two eye-witnesses namely, Muhammad Iqbal P.W.1 father of deceased and Fateh Ullah P.W.2 who is not related either to the deceased or to the complainant but he was tenant of Muhammad Iqbal complainant. During cross-examination of P.W.1, it has been brought on record by learned defence counsel himself that he was tenant of Muhammad Igbal complainant for the last 21/22 years, although his ancestral house is situated at Infantry Road, which is in occupation of his brother, who had ousted him from the said house about 21 years ago. Lengthy cross-examination about 24 pages was conducted on Muhammad Iqbal P.W. which is totally irrelevant and wastage of precious time of public as well as the Court. P.W.1 and P.W.2 have corroborated their statements on material points, then, the appellant was arrested in this case, he led to the recovery of scissors and "Hamam Dusta". According to the report of Chemical Examiner and that of Serologist Scissors was found to be stained with human blood. Though the case of the appellant is of substitution but substitution is a rare phenomenon. According to Article 121 of Qanun-e-Shahadat Order, 1984 when an accused takes the special plea, then, onus lies on him, which the appellant failed to prove the same because not a single D.W. was produced by the appellant to prove that deceased was murdered by some one else. There was no question of false implication of the appellant and even during the trial he absconded and perpetual warrants of arrest were issued against him by the learned trial Court, this also shows his guilty mind and moreover, he was also found guilty by the police during the course of investigation. After having heard learned counsel for the parties and going through the evidence available on record, I am fully satisfied in my mind that prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. Resultantly, there is no merit in this appeal and the same is dismissed. The conviction and sentenced recorded against the appellant by the learned trial Court maintained in toto. As the trial Court has awarded lesser sentence to the appellant on the ground that motive was not attributed to him so I do not issue notice for the enhancement of sentence to the appellant at this stage and moreover matter relates to year 1996 and now we are going in the year 2006, therefore, the Revision Petition No.1013 of 2003 filed by Muhammad Iqbal against Muhammad Ehsan' appellant is dismissed for the reasons mentioned above. H.B.T./M-486/L Appeal dismissed.