2006 PLP 1392 (SCMR)

ABDUL HAMEED DOGAR, J.

This appeal by leave of this Court is directed against the judgment, dated 31-5-2002 of a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Criminal Appeal No.685 of 2000 filed by appellant Allah, Bakhsh was dismissed and the conviction and sentence awarded by the trial Court under section 302(b), P.P.C. sentencing him to suffer imprisonment for life and to pay Rs.50,000 as compensation was maintained.

2. Briefly, stated the facts of the case are that on 5-3-1998 at about 10-00 p.m. complainant Muhammad Sarwar, his brother deceased Rashid Ahmed, P.Ws. namely, Abid Iqbal, Javed Iqbal and Muhammad Fayyaz were sitting at the Dera of Abid Iqbal, the paternal-cousin of the complainant. In the meanwhile acquitted accused Muhammad Aslam, Khizar Hayat and Ahmed came there and after seeing the complainant, deceased and others sitting together, went away. After sometime, appellant duly armed with .12 bore gun reached there and called the deceased outside and fired at him who succumbed to the injuries. The incident was witnessed by the above mentioned P.Ws.,

3. The motive behind the incident was that a few days prior to the occurrence a dacoity was committed in the house of uncle of complainant and the deceased suspected that the appellant and his relatives were involved in the said dacoity.

4. The complainant Muhammad Sarwar being dissatisfied with the result of the investigation filed the private complaint. The Court summoned the appellant as well as acquitted accused Muhammad Aslam, Ahmad and Khizar Hayat to face trial.

5. At trial complainant produced as many as 8 witnesses, namely, Muhammad Safdar, Dr. Waqar Hamid, Medical Officer, Muhammad Shahbaz H.C., Shan Muhammad F.C., Muhammad Saleem Draftsman, Noor Muhammad F.C., Muhammad .Sarwar and Abid Iqbal. Malik Muhammad; Akram, D.S.P., Abdul Qadir D.S.P. and Amir Masood Inspector, Gul Hamid, S.-I. appeared as court-witnesses.

6. On autopsy, on 6-3-1998 Dr. Waqar-ul-Hassan found the following injuries on the person of deceased: "A lacerated fire-arm wound of entry on right lateral side of chest 4 c.m. away and lateral to right nipple 3.5 c.m. x 3.5 c.m., having inverted margins and circular in shape. Blackening present all around the wound with corresponding holes upon the shirt."

7. Petitioner and his acquitted accused in their respective statements recorded under section 342, Cr.P.C. denied the case of the prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

8. On conclusion of trial, the learned trial Court acquitted accused Muhammad Aslam, Ahmad and Khizer Hayat from the charge of abetment. However, convicted the appellant under section 392(b), P.P.C. and sentenced him to imprisonment for life as Tazir. He was also directed to pay fine of Rs.50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default to further undergo R.I. for six months.

9. Being aggrieved appellant challenged the judgment in appeal before the learned High Court by filing Criminal Appeal No.685 of 2000 whereas complainant Muhammad Sarwar filed Criminal Petition No.28 of 2000 against the acquittal of Muhammad Aslam, Ahmad and Khizar Hayat which were dismissed vide impugned judgment.

10. On 24-6-2003, leave to appeal was granted by this Court to consider the following points: "There are two versions on record. According to some witnesses it was `Qatl-e-Amd', while the investigating agency held it as `Qatl-e-Khata'. Scrutiny of the evidence is required to reach the conclusion as to which of two versions is correct."

11. We have heard Mr. M. Javed Aziz Sindhu, learned Advocate Supreme Court for the appellant and Ch. Dil Muhammad Tarar, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.

12. It is mainly contended by the learned counsel for the appellant that the impugned judgment is erroneous, untenable in law and unjust. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the complainant is based on interested and inimical evidence as such it requires independent corroboration which is lacking in this case. Learned counsel further submitted that the case of prosecution as unfolded in the F.I.R. was found false by the police, as such complainant filed private complaint. To substantiate the same he referred the evidence of C.W.2 Abdul Qadir, D.S.P. Range Crime, who deposed in his statement that the appellant used to serve the complainant party as driver and bodyguard. He also deposed that the complainant party used to resort to aerial firing every night after said dacoity to scare the dacoits not to come to the complainant's village again. He also stated that the complainant party had purchased a new rifle and a double-barrel gun and used to test those weapons outside their house. According to him, on re-investigation of the case he reached the conclusion that death of the deceased occurred accidentally due to said firing. The witness also deposed that on 21-12-1998 he had directed the local police to submit supplementary charge-sheet against the appellant alone under section 319, P.P.C. as such the case against appellant would fall within the ambit of `Qatl-e-Khata' and not `Qatl-e-Amd'. He lastly contended that on the same evidence co-accused of the appellant had been acquitted by the trial Court, therefore, the benefit of doubt should also have been extended in favour of the appellant.

13. On the other hand, learned counsel for the State controverted the above contentions and argued that the complainant has successfully proved its case as narrated in the complaint by him by producing unimpeachable and truthful account of eye-witnesses, namely, Abid Iqbal, Javed Iqbal and Muhammad Fayyaz. Irrespective of above the complainant has also proved the motive against the appellant on the factum that a few days prior a dacoity was committed in the house of complainant's father and the deceased suspected the appellant for the same.

14. We do not agree with the contentions of the learned counsel for the appellant mainly for the reason that he has not been able to show any reason for his false implication. When examined his defence plea in juxtaposition to the eye-witness account furnished by P.W.7 Muhammad Sarwar and P.W.8 Abid Iqbal latter seems to be true as the appellant has miserably failed to prove his plea. Had the deceased not died as a result of firing by the appellant, there was no occasion or reason for the complainant the real brother of deceased to falsely involve the appellant. The appellant cannot be acquitted mainly on the ground that the prosecution has not been able to bring on record the report of Forensic Science Laboratory on the factum of recovery of gun from the appellant.

15. The ocular testimony furnished by P.W.7 Muhammad Sarwar, P.W.8 Abid Iqbal was found to be trustworthy by the trial Court as well as the learned High Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was the appellant who fired at the deceased which hit on his chest. Though the witnesses were cross-examined at length yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his chest. At any event, case of petitioner is distinguishable and not at par with that of his co-accused since acquitted, therefore, the learned trial Court neither acted illegally nor arbitrarily in extending the benefit of doubt to them. The learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned judgment warranting interference by this Court.

16. For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the appeal being devoid of force is dismissed. M.B.A./A-41/SC Appeal dismissed