2006 PLP 216 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner Muhammad Iqbal seeks leave to appeal against judgment dated 11-2-2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No.999 of 2001 filed by him was dismissed and his conviction under section 302(b), P.P.C. and sentence of death and compensation of Rs.50,000 to be paid to the legal heirs of the deceased were maintained.

2. Precisely, the case of prosecution is that on 7-11-1998 at about 3 p.m. complainant was sitting along with P.Ws. Muhammad Rafiq and Muhammad Sharif outside Asif Pan Shop in Mohallah Momamabad. In the meantime, deceased Babar, nephew of complainant, passed near the house of petitioner along with buffalo when petitioner armed with .30 bore pistol, acquitted accused Imtiaz Ahmed armed with .222 rifle and one Muhammad Asif empty-handed appeared suddenly and on Lalkara of Muhammad Asif petitioner fired from his pistol at deceased Muhammad Babar which hit on his left flank whereas acquitted accused Imtiaz Ahmed fired from his rifle which hit deceased on the left hand who was taken to the hospital in injured condition where he succumbed to the injuries.

3. The motive behind the occurrence is that on the day of occurrence at about 8-00 a.m. deceased was taking his buffalo in front of the house of petitioner and on objection quarrel took place between them but the matter was patched up. It was due to the above reason, the petitioner while taking the avenge caused the death of deceased.

4. Petitioner, acquitted accused Imtiaz Ahmed and Muhammad Asif were arrested and sent up to face trial before Judge Special Court, S.T.A., Gujranwala.

5. The prosecution examined 12 witnesses in all.

6. On autopsy, P.W.9 Dr. Muhammad Fayyaz, Medical Officer, noticed the following injuries on the person of deceased:

(i) Fire-arm lacerated wound of entry 3/4 c.m. x 1/2 c.m. inverted margins and going deep on the outer side of left abdomen 3-1/2 c.m. above left iliac crest, 18 c.m. outer to umbilicus. (ii) Fire-arm lacerated wound of entry 1/2 c.m. x 1/2 c.m. inverted margins going deep on back of left hand at base of middle finger. (iii) Fire-arm lacerated wound of exit 1/2 c.m. x 1/2 c.m. averted margins in front of left hand at base of left middle finger.

7. The petitioner in his statement recorded under section 342, Cr.P.C. denied the case of prosecution and claimed innocence. He neither examined himself on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

8. On the conclusion of trial Muhammad Asif was acquitted whereas petitioner and co-accused Imtiaz Ahmed were convicted and sentenced as mentioned above.

9. Both of them filed appeal before Lahore High Court, Lahore. During pendency of appeal compromise took place between legal heirs of deceased and co-accused Imtiaz Ahmed and on that basis who was acquitted from the charge whereas conviction and sentence against petitioner was maintained.

10. We have heard Sardar M. Siddique Khan, learned counsel for the petitioner at length and have gone through the record and proceedings of the case in minute particulars.

11. In this case prosecution has brought ocular evidence furnished by complainant Muhammad Hanif and P.W. Muhammad Rafiq, which is A fully corroborated by medical evidence furnished by Dr. Muhammad Fayyaz, Medical Officer who testified that deceased has sustained three fire-arm injuries one on outer side of left abdomen and two on left hand. On the scrutiny of record, it is found that petitioner has been changing his stance. At the initial stage he has put forth defence version that deceased has developed illicit relations with his sister and while he was B forcibly abducting her he appeared at the spot at that particular moment and fired on the deceased. In his statement under section 342, Cr.P.C. while answering the question "why this case against you and why the P.Ws. have deposed against you" he answered in the following words:-- "My sister is the wife of Zulfiqar who is the brother of Imtiaz accused. Imtiaz accused used to tease my sister, wife of his brother Zulfiqar. Due to this she being annoyed by Imtiaz and left the house of her husband Zulfiqar, 10/12 days before the occurrence. Imtiaz accused along with his father and other relatives came to our house for reconciliation. Imtiaz accused did not enter our house but other relatives entered our house and began to discuss the issue with my family. During the discussion some altercation took place between our family and accused Imtiaz Ahmad's father and other relatives. Upon this the accused Imtiaz started abusing our family standing outside our house. I could not bear this and with the sudden provocation I ran towards Imtiaz accused in order to teach him a lesson but my family made me stop and locked the front door and I went upstairs and threw a brick towards Imtiaz accused. Imtiaz accused who was also armed with pistol fired at me. During that firing a fire unfortunately hit Babar deceased who was a passerby, I did not fire at Babar deceased because I had no enmity with him nor I wanted to kill him. Fire accidentally hit Babar deceased. I am innocent and I had no motive to kill Babar deceased."

12. The motive put forth in the F.I.R. is stated differently and has no nexus with the above referred theory put forth by petitioner. The petitioner did not ask any question on motive as mentioned in the F.I.R. during cross-examination.

13. From the above circumstances it is evident that the prosecution has fully established its case against petitioner. Learned counsel has failed to point out any illegality, misreading or non-reading of evidence warranting interference by this Court. Resultantly, instant petition being devoid of force is dismissed and leave to appeal refused. N.H.Q./M-324/SC Leave refused.