2006 PLP 3057 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This judgment shall dispose of Criminal Appeal No.2081 of 2002 and Criminal Revision No.1224 of 2002 as common question of law and facts are involved.

2. This criminal appeal is directed against the judgment dated 15-11-2002 passed by the learned Additional Sessions Judge, Sargodha whereby he convicted the appellant under section 302(b), P.P.C. and sentenced to imprisonment for life as Ta'zir. He was also directed to pay Rs.100,000 compensation to the legal heirs of the deceased as contemplated under section 544-A, Cr.P.C. In case of default thereof he will have to suffer six months S.I.

3. Briefly the facts relevant for the disposal of this appeal are that a case vide F.I.R. No.271 dated 27-8-2001 under section 302, P.P.C. Police Station, Sillanwali District Sargodha was registered against Sajjad Ahmad (P.O.) Muhammad Siddique, who were placed in Column No.2 and Ijaz Ahmad, appellant. Being dissatisfied with the investigation the complainant filed a private complaint under sections 302/109, P.P.C. against the appellant and Muhammad Siddique, acquitted co-accused, wherein it was stated by the complainant that on 27-8-2001 at about 8-30 a.m. he along with his deceased son Muhammad Waseem were present at Bus Stop of Chak No.121-NB, Sillanwali Shaheen Abad Road. Meantime, complainant went to the adjoining field to urinate when Ijaz Ahmad, appellant armed with .30 bore pistol came there and challenged deceased and simultaneously filed at him, which hit the deceased on right side of his abdomen. The deceased succumbed to the injuries and fell down on the ground. The incident was witnessed by Mukhtar Ahmad, P.W.8 and Iftikhar Ahmad (P.W. given up). The appellant fled away from the spot along with his pistol. The complainant produced 12 witnesses to prove his case against the appellant and acquitted co-accused. Shabraiz Hussain. S.-I./S.H.O. who conducted the first investigation, was examined as C.W. Appellant and his acquitted co-accused were examined under section 342, Cr. P. C. Appellant also produced Gulzar Ahmad, D.W.1 in his defence. The learned trial Court convicted the appellant and passed the above-mentioned sentence.

4. The learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. The appellant raised his plea of alibi, which found favour with C.W.1, the first Investigating Officer. Reliance has been placed on Ameen Ullah v. The State (PLD 1982 SC 429). Further contends that the prosecution has failed to prove its case beyond reasonable doubt, benefit of which is to be given to the appellant. Relies on Rehmat and others v. The State (PLD 1959 SC 109).

5. Conversely the learned counsel for the complainant, in opposition, argued that the prosecution has proved its case beyond reasonable doubt. The plea of alibi raised by the appellant was found to be false, by the ASP Kamran Ashraf. He further contends that substitution is a rare phenomna. The learned counsel also contends that the dishonesty of C.W. 1 can be examined from the bare fact that he did not send the empties to the office of Forensic Science Laboratory, on its recovery and kept the same in Malkhana, till recovery of pistol, the crime weapon from the appellant and that too was sent after a direction given by ASP. The learned counsel for the State supported the arguments of the learned counsel for the complainant.

6. I have examined the contentions of the learned counsel for the appellant as well as learned counsel for the complainant and State and perused the record.

7. P.W.2, Dr. Munawar Ali, examined the dead-body of the deceased Waseem Ahmad, identified by P.W.1, and found the following injuries on the person of the deceased:-

1. A fire-arm wound of entry measuring 1 c.m. x 1 c.m. on the right side of abdomen (right iliac fossa) 11 c.m. from umbilicus, 25 c.m. below from right nipple.

2. A fire-arm wound of exit measuring one and half c.m. x. one and half c.m. on left buttock, 11 c.m. from left iliac fossa (left iliac crest), 15 c.m. from mid-line. According to the opinion the death had occurred due to cumulative effect of Injuries Nos. 1 and

2. Zilla Hussain, Moharrir-Head Constable kept the parcel containing blood-stained earth in Malkhana, till its delivery to Ghulam Hussain, constable on 29-8-2001, who delivered the same on 30-8-2001, to the office of Chemical Examiner intact.

8. P.W.10 is a witness of recovery made on the disclosure of the appellant of .30 bore pistol P.6 from his cattle shed located at village Bheera, which was sealed through parcel. P.W.12, Sikandar Hayat, constable took the parcel, one containing pistol and other containing empties cartridges of .30 bore pistol and delivered the same to the office of the Forensic Science Laboratory, on 20-4-2002. C.W. Shabraiz Hussain, the first Investigation Officer, stated that the crime empty P.5 'was taken into possession by him on 27-8-2001 and made into sealed parcel. He also took into possession the last-worn clothes of the deceased. He arrested the appellant on 27-11-2001 on the direction of Kamran Yousaf, ASP/SDPO. The recovery of .30 bore pistol P.6 is of no help to the prosecution case for the reason that the recovery of crime empties was made on 27-8-2001 and was kept in Malkhana and sent along with .30 bore pistol P.6 on 20-4-2002. This also speaks dishonesty of the Investigating Officer who did not send the crime empties recovered on 27-8-2001 to the Forensic Science Laboratory and waited too, long and, eventually, sent the same with crime weapon. Recovery is therefore, in consequential and is ruled out of consideration.

9. The prosecution has failed to-prove motive part of the prosecution case. The learned trial Court disbelieved the motive and rightly so. Admittedly, litigation was pending adjudication before any forum between the parties at the time of incident. The possession of the land stood passed to the vendee namely Akhlaq.

10. The ocular has been furnished by P.W.7 Muhammad Ashraf and P.W.8 Mukhtiar Ahmad. Both supported the prosecution case. It is a daylight occurrence. They were cross-examined at length and withstood the test. Their testimony was not shaken.

11. The case of the defence, right from the beginning is of substitution of the appellant for Sajjad Ahmad, the real brother of the appellant. It was argued that in fact the appellant had evil eye on Sajjad Ahmad and used to tease him for fulfillment of his nefarious desire of commission of sodomy. Shabraiz Hussain, C.W. examined number of residents of village Noukodour District Jhelum, from the side of the appellant, who stated appellant's presence there at the relevant time. D.W.1, Gulzar Hussain, also appeared and stated so. The Investigating Officer recorded statement of one Abdul Ghafoor and also a woman who were examined by him, and they identified Sajjad Ahmad as assailant, who caused fire-arm injury on the person of the deceased. The investigation was transferred from this Investigating Officer and entrusted to P.W.11, ASP Kamran Ashraf. He in his investigation found the appellant responsible for the crime. He also examined the said Abdul Ghafoor, who stated that he had not picked out Sajjad Ahmad as accused before the Investigating Officer.

12. The theory of substitution for the real accused is a rare phenomena. No reason was available with the complainant, father of the deceased, to substitute the real murdered of his son. The occurrence took place in a broad-daylight, hence their can be no mistaken identity. The plea of alibi cannot be accepted on its face value. The distance from the place of occurrence to the village Noukoudar District Jhelum can be covered within a span of two hours. No witness before C.W. 1 stated with exactitude that the appellant was present at Noukoudar at the time of occurrence. Number of resident from village Noukoudar supported the plea of alibi of the appellant, which was equally negated by the witnesses appearing on the side of the complainant. Kamran Ashraf, ASP, after thorough investigation, held the appellant guilty of the offence and declared Sajjad Ahmad as well as his father Siddique to be innocent. It is not out of place to mention here that Sajjad and Muhammad Siddique were involved in the abetment of crime, on the basis of statement of P.W.9, which evidence was not accepted by the learned trial Court.

13. The appellant has not alleged any enmity with the complainant's side. False implication is ruled out in the circumstances of this case. The defence set up a plea of evil eye by the deceased on Sajjad, co-accused for his alleged desire to commit sodomy with him. No evidence was brought on record to establish this plea. Neither' Sajjad appeared in the witness box nor appellant examined himself on oath as required under section 340(2), Cr.P.C. Sajjad is grown up boy. There is slight difference of ages of the deceased and Sajjad. This plea has been raised, apparently, to make out a defence.

14. The medical evidence furnished by P.W.2 fully supported the ocular account. The medical officer observed that death of the deceased had occurred on account of injuries on his person by fire shot discharged by fire-arm. This evidence is in line with the ocular account. It strengthens the prosecution case and furnished complete corroboration.

15. Case-law cited by the appellant's learned counsel is not applicable to the facts of the case.

16. Criminal Revision No.1224 of 2002 was filed by the complainant for enhancement of sentence of the appellant. The prosecution failed to prove the motive of the occurrence. The motive alleged by the prosecution has been proved to be false. The learned trial Court by adopting principle of safer administration of justice refrained itself to pass normal death sentence and imposed lesser sentence under section 302(b), P.P.C. On examination of evidence of P.W.11 and on scanning the record, I found that the deceased did not enjoy clean respectable life. There is some material indicating deceased's teasing sister of the appellant on various occasions and she disclosed this fact to the appellant. Discretion exercised by the learned trial Court is neither perverse nor arbitrary. For what has been discussed above, the criminal revision is without force and is dismissed.

17. For what has been discussed above, the prosecution has proved its case against the appellant. The appeal is without force and is dismissed. N.H.Q. /I-113/L Appeal dismissed.