1993 PLP 2201 (MLD)

FALAK SHER, J.‑‑‑Appellant Muhammad Iqbal alias Ballu (30) having been convicted and sentenced under section 302, P.P.C. to death with a fine of Rs.20,000 in default to serve 5 years' R.I., in the event of recovery whereof half of it to be paid as compensation to legal heirs of Nasar deceased (20) by the learned Judge Special Court for Speedy Trials No. VIII, Sargodha vide judgment, datedi‑7‑5‑1988 has preferred the captioned appeal.

2. Muhammad Ismail P.W.6 brother of the deceased on 31‑12‑1987 at 2‑00 p.m. lodged F.I.R. Exh.P.E. with Aman Ullah Khan, S.I. P.W.8 at Police Station Sadar, Sargodha, 23 kilometres from Dera Haji Suleman, village Uttian, the venue of occurrence to the effet;t that the complainant as well as the deceased originally hailing from Chak No. 3/North Bhalwal for the last 5/6 years were in the employ of Haji Suleman and were putting up at the above address where at noon time Muhammad Hayat P.W.7 and Khizar Hayat (given up as unnecessary) were also present since deceased's Nikah was to be performed with Mst. Shamim Akhtar, daughter of Ranjha pursuant to the engagement solemnized 4 months ago, in whom the appellant was also interested and upon frustration of the desire having administered threats to the deceased 5/6 days preceding the occurrence around noon time emerging on the scene with .12 bore gun exhorting to teach a lesson for marrying Mst. Shamim Akhtar fired at the deceased while he was untying buffalo s young one which landed on his back as a consequence whereof he collapsed on the ground and succumbed to the injuries while the appellant vanished away whereafter the complainant leaving the P.Ws. with the deceased reported the matter to the police:

3. Aman Ullah Khan, S.I. P.W.8 after recording the F.I.R. went to the spot, prepared injury statement of deceased, Exh.P.G. inquest report Exh. P.H., collected blood‑stained earth vide memo. Exh.P.F., despatched the dead body to the mortuary under Falak Naz F.C. P.W.3's escort who the next day tendered last‑worn blood‑stained clothes of the deceased Shalwar Pl, Shirt P.2, Phial P.3 containing pellets, secured into possession vide memo. Exh.P.C. and P.D. respectively, effected arrest of the appellant on 5‑1‑1988 alongwith gun P.4 together with its licence P.5 reduced into possession, vide memo. Exh.PJ. got prepared site plan Exh.P.B. from Muhammad Sarwar, Revenue Patwari P.W.2.

4. Deposing to the investigation, upon question stated that column 3 of the inquest report reveals reporting time of the occurrence, the F.I.R. was drawn up around 2‑00 p.m. which didn't find mention in the above column, dead body was lying on a cot but he didn't enquire who placed it there, name of the intended bride Mst. Shamim Akhtar was divulged by the complainant whose father Ranjha had left Haji Suleman's Dera after the occurrence, during investigation it transpired that she was also known by the name of Parveen and had a married sister by the name of Shamim none of whom were made to join the investigation since they were not available, reached the place of occurrence at 3‑00 p.m. 1 hour thereafter the dead body was entrusted to Falak Naz F.C. P.W.3, Muhammad Hayat and Khizar Hayat P.Ws. are permanent residents of Chak No.3 and Deowal respectively but were then residing at Haji Suleman's Dera, the appellant was produced by Sarfraz, Member, District Council Sargodha who had defeated Malik Aslam Kachalla the then sitting MNA in the last election, repelling the suggestion of falsely involving the appellant at the instance of the latter and arrest of the appellant from his house on the next day of the occurrence.

5. Dr. Ata Ullah Khan, P.W.1, M.O. District Headquarters Hospital Sargodha on 1‑1‑1988 at 10‑50 a.m. conducted autopsy on the dead body of the deceased brought by Falak Naz, F.C. P.W.3 identified by Mutalli P.W.4 and vide post‑mortem report Exh.PA. observed the following: "(1)A lacerated wound of entry 1 c.m. x 1 c.m. on the left side of neck 3 c.m. above the clavical. (2) A lacerated wound of entry 1 c.m. x 1 c.m. on the left side of' chin margins inverted with blackening around. Pellet found under the skin. (3) Lacerated wound of entry 1 c.m. x 1 c.m. on the back of the left side of chest, margins inverted 2 c.m. from the midline. (4) Two lacerted wounds of entry 1 c.m. x 1 c.m. each with abraded area around 1 c.m. apart from each other, 2 c.m. below injury No.3, 2 c.m. from midline. (5) Two lacerated wounds 1 c.m. x 1 c.m. each with abraded area 3 c.m. x 1 c.m. on the back 5 c.m. from midline. (6) A lacerated wound 1 c.m. x 1 c.m. with abraded area 2 cm. x 2 c.m. around on the back 2 c.m. from injury No.5." 9th to 11th left ribs fractured, pleura ruptured, arch of aorta and left lung perforated, rest of the organs healthy, stomach contained digested food, small intestine contained faecal matter, bladder small quantity of urine; opined cause of death was shock and haemorrhage being the cumulatively effect of injuries 3 to 6 ante‑mortem of fire‑arm origin sufficient to cause death in the ordinary course of nature, death immediate post‑mortem whereof was conducted within 24 hours. Responding to query stated that the deceased might have taken last meal 4 to 6 hours prior to death.

6. The complainant reiterating the prosecution story explained that he was serving as a driver with Haji Suleman, Mst. Shamim Akhtar is also known as Shamim Parveen whose elder sister Mst. Shamim is married to Mukthar whose father Ranjha was present at the time of occurrence, Muhammad Hayat P.W.7 is his first cousin, Khizar Hayat (given up P.W.) is cousin in second degree, the former is permanent resident of Chak No.3/NB while the latter of village Deowal 15/20 miles away from the place of occurrence where they had arrived a day earlier, the occurrence took place at 12 noon whereafter he left for the police station on toot and covering a distance of 4/5 miles bus for Sargodha from village Marri 20 miles away after half an hour, witness for the threatened incident was produced before the police, the appellant is resident of Chak No. 65/NB, 18/19 miles from the place of occurrence, repelled the suggestion as to recording of his statement the following day at the spot as well as that of the deceased having been done away with by unidentified assailants before day break while he was milching the buffaloes.

7. Muhammad Hayat P.W.7, first cousin of the deceased with real sister married to the appellant's real uncle (not recorded in statement Exh.D.C. to the police) corroborating the complainant on all material particulars explained that he had come. to stay with the deceased with a view to participating in his Nikah ceremony with Mst. Shamim alias Parveen, was fired at by the appellant in bending position while he was untethering the buffaloes, Ranjha was not present at the time of occurrence nor he was to participate in the Nikah ceremony of his daughter since he had already divorced her mother.

8. Mutalli P.W.4 deposing to the identification of the deceased's dead body at the time of post‑mortem examination in cross‑examination stated that he lives 30/35 miles away from the place of occurrence where he had arrived around Peshiwala prior whereto the police was already present and were apprised of the appellant being the real culprit, complainant's statement was recorded at the spot securing his thumb‑impression on it. Rest of the evidence was of formal nature.

9. The appellant in his statement under section 342, Cr.P.C. entering the plea of denial urged false involvement at the instance of Haji Aslam Kachalla the then sitting MNA upon refusal to abandon service of his political opponent Haji Sarfraz Tiwana and the deceased having been murdered at the hands of unknown assailants during early dark hours.

10. Learned counsel for the appellant assailed legality of the impugned judgment contending that the F.I.R. was drawn up at the spot after deliberations as per Mutalli P.W.4, the motive hasn't been proved with the improvement as to name of the intended bride, neither of whom was interrogated or examined, the week old threatened incident wasn't reported to the police, ocular account furnished by the complainant and Muhammad Hayat P.W.7 is not reliable being interested on account of close relationship with the deceased and hailing from distant place, it was an un witnessed night time occurrence, the ocular account whereof qua timing stands contradicted by the medical evidence viz., contents of the stomach, intestine and urinary bladder, belated despatch of the dead body is suggestive of the fact that real culprits were not known and appellant has been made a scapegoat on account of suspicion, alternatively lesser penalty was urged pleading that the motive remains shrouded in mystery. While learned counsel appearing on behalf of the State has supported the judgment.

11. Having examined the entire evidence we are not persuaded by the contentions urged by the learned counsel for the appellant because being broad daylight occurrence promptly reported at the police station 23 kilometres away by real brother of the deceased and inmate of the house with admitted absence of enmity rules out the possibility of falsely implicating the appellant as substituted solitary accused leaving real culprits go scot free whose testimony stands corroborated on all material particulars by Muhammad Hayat P.W.7 being equilaterally related to the appellant as well as the deceased whose presence at the scene has been convincingly explained as well as the medical evidence vouching the timing by virtue of the stomach contents revealing digested food being "Chahwela" intake. In view whereof minor contradictions pointed out by the learned counsel for the appellant are utterly inconsequential.

12. Consequently, appellant's conviction and sentence being unexceptionable the appeal is hereby dismissed being devoid of any substance. N.H.Q./M‑1148/L Appeal dismissed.