1999MLD36 (PLP)

SH. ABDUR RAZZAQ, J.

Instant appeal is directed against the judgment dated 7-2-1993 passed by Ch. Zahoor Hussain, Judge Special Court (Suppression of Terrorist Activities, Gujranwala Division Gujranwala whereby he convicted Muhamamd Ilyas son of Muhammad Boota, caste Jat, resident of Marrhi Police Station Sara-e-Alamgir under section. 302/34, P.P.C. and sentenced. him to death and to pay a sum of Rs.25,000 as compensation to the legal heirs of the deceased and in default there of to further undergo R.I. for two years. He further convicted Muhammad Ilyas son of Muhammad Boota under section 324/34, P.P.C, for causing hurt to Rahmat Ali and sentenced him to undergo R.I. for five years and to pay a sum of Rs.10,000 as compensation to the injured P.W. or in default thereof to further undergo R.I. for six months. He further ordered that both the sentences shall run"' concurrently and accused/appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.

2. Briefly stated the facts are that Haji Muhammad Sadiq complainant has got two sons, one Mushtaq Hussain and the other Altaf Hussain serving in Navi Force. Mushtaq Hussain deer used to cultivate jointly with the complainant. The said Mashtaq Hussain had constructed a Dera and sown Bajra crop in an area of b Kanals out of Shamlaat Deh. Muhammad Ilyas s/o Muhammad Boota accused/appellant had also constructed-his house on the 'other side of the said piece of land and wanted to take forcible possession of land occupied by the deceased Mushtaq Hussain, but failed. On 2-8-1991 at about 12-00 noon, Haji Muhammad Sadiq complainant alongwith his son Mushtaq Hussain and Rehmat Khan son of Jalal-Din came to Qasba Market for making purchases. While the complainant was making purchases on the shop of Haji Rehmat Ali and Mushtaq' Hussain alongwith Rehmat Khan were standing in the Deurhi adjacent to the said shop, Muhammad Ryas son of Boota armed with Klahshnikov Bashir alias Bashira son of Muhammad Yousaf armed with- Mouser .30 bore since acquitted due-to compromise) and Muhammad Ryas son of Ghulam Hussain (P.O.) armed with .7 MM rifle came there. Muhammad-Ilyas son of Boota accused appellant fired with his Klashnikov which hit; Mushtaq-Hussain on the back of his neck. Bashir alias Bashira caused a brust of Mouser which hit on the right upper arms of Mushtaq Hussain as la result of which he fell down. Muhammad. Ilyas s/o Ghulam Hussain-then fired with his .7 MM rifle hitting Rehmat Ali on his right knee. Muhammad Ilyas son of Ghulam Hussain again fired with his .7 MM rifle which hit Mushtaq Hussain on his left thigh. Muhammad1lyas son of Boota then fired with his Klashnikov which hit Mushtaq Hussain deceased on his left upper arms. The incident was also witnessed by Muhammad Shafi and Muhammad Farooq (given up P:Ws.).

3. The motive behind this occurrence is that Muhammad Ilyas son of Boota wanted to take forcible possession of land occupied by Mushtaq Hussain out of Shamlat Deh but could not succeed due to resistance of the deceased Mushtaq Hussain. He left the dead body of his son Mushtaq Hussain under the supervision of Busharat Hussain and made for the police station to set the law in motion.

4. Muhammad Abbas, A.S.I. (P.W.11) recorded P.I.R. Exh. PC on the statement of complainant (P:W.3). He thereafter made for the `place of occurrence situated in Qasba Market, prepared injury statement Exh. PH, inquest report Exh.PH/1. He handed over the dead body to Allah Yar, Constable (P.W:7-) for post-mortem -examination and recorded the statements of eye-witnesses- He inspected the spot and prepared statement of injuries of Rehmat Ali Exh.P/l and despatched him through Riaz Constable for his medical examination. He secured blood-Stained vide `memo: Exh. PG, four empties of Klashnikov vide memo. Exh.PF which were attested by Zahid Iqba1 (PV. 13) and Muhammad Aslam (P.W. 10). He handed over the parcel to the Muharrar for keeping the same in safe custody. On the same day; Allah Yar, Constable produced last-worn clothes P-1 and P-2 of the deceased which he secured vide memo. Exh.PE. On 8-8-1991 he secured site plans Exh.PD, PD/1 produced by Akhtar Naqqas (P.W.-6). Later on the investigation was taken up by the S.H.O., Sultan Ahmad, Inspector (P.W. 16) who verified the investigation conducted by Muhammad Abbas, A.S.I. (P.W.11) and also recorded the statements of witnesses on 13-8-1991. He obtained non-bailable warrants in respect of Muhammad Ilyas son of Boota and Muhammad Ryas s/o Ghulam Hussain etc. On 1-9-1992 he submitted incomplete challan in the Court.

5. On 29-3-1992 Javaid Iqbal, Inspector (P.W. 14) arrested the accused Muhammad Ilyas son of. Muhammd Boota. On 12-4-1992 the accused led to the recovery of Klashnikov. P-3, which-he secured vide. memo Exh. PJ. As the accused could not produce any-valid licence for the same so he also lodged a complaint against him under section-13 of the Arms Ordinance, 1965 He also prepared site plan of place of recovery Exh. PJ/1.

6. The accused. Muhammad Ilyas son of Muhammad Boota and Bashir alias Bashira were charged under section 302/324/34, P.P.C. -on 8-2-1993 to which they pleaded not guilty and claimed to be tried.

7. To bring home guilt to the accused, the prosecution examined P. W .1 Dr. Ijaz-Ahmad who on 2-8-1991 examined Rehmat Khan injured and found one fire-arm 'injury on -his person. He issued medico-legal report Exh. PA which bears his signatures. He thereafter, referred the injured to the D.H.Q, Hospital, Jhelum. P.W 2 Dr. Zafar Iqbal Gondal conducted post-mortem examination of Mushtaq Hussain son of Haji Muhammad Sadiq deceased on 2-8-1991 at 5-00 p.m. He found four injures on his person and issued post-mortem examination report Exh. PB. Haji Muhammad Sadiq complainant is P.W 3 who corroborated his version appearing in the F.I.R. Exh. PC which 'bears his thumb impression. Rehmat. Ali P.W.4 is an injured eye-witness who has fully corroborated the prosecution version as deposed by the complainant Haji Muhammad Sadiq P.W.3. Muhammd Farooq P.W.5 identified the dead body of Mushtaq Husain at the time of post-mortem examination whereas P.W. 6 Akhtar Naqqas visited the place of occurrence on 4-8-1991 as per direction of police and handed over site plan Exh.PD and Ezh. PD/1 to the Investigating Officer on 8-8-1991. Allah Yar P.W.7 deposed that he had escorted the dead body of Mushtaq Hussain on 2-8-1991 to Civil Hospital for post-mortem examination. After the post-mortem examination, he was given the last-worn clothes of deceased consisting of P-1 and P-2 which he handed over to the Investigating Officer who secured the same vide memo. Exh. PE. Qalab-i-Abbas, Head Constable P.W.8 was given two sealed parcels of blood-stained earth and empties for keeping the same in Malkhana. On 5-8-1991 he handed over the said parcel to Hassan Askari, Constable (P.W. 9) for onward transmission to the Office of Chemical Examiner and Forensic Science Laboratory, Lahore, P. W.10 Muhammad Aslam is a witness of recovery of four empties secured vide memo. Exh. PF and of blood-stained earth Exh. PIG. P.W.11 Muhammad Iqbal, A. S. I. is the Investigating Officer whose evidence has already been discussed above. P.W.12 Muhammad Abbas is the witness of recovery of Klashnikov P-3 and magazine P-4 effected-at the instance of accused Ilyas son of Boota on 12-4-1992 and cured vide memo. Exh. PJ. Zahid Iqbal 'P.W. 13 alongwith Muhammad Aslam (P.W. 10) are witnesses of memos. Exh. PF Exh. PB referred above. P.W.14 Javaid Iqbal, Inspector arrested the accused on .29 3-1992. On 12-4-1992 recovered Klashnikov, P-3 and Magazine P-4 at the instance of accused and prepared memo Exh.P

1. P.W, 15 deposed that he obtained non-bailable warrants of accused/appellant and Muhammad Ilyas s/o Ghulam Hussain (P.O.) and returned with his reports.

8. Learned D.D.A. produced report of Chemical Examiner Exh. PK as well as of Serologist Exh. PL and closed the prosecution evidence vide statement dated 9-6-1993.

9. When examined under section 342 Cr.P.C. the accused Muhammad Ilyas Son "of Boota controverted the prosecution contention and denied the factum of recovery of Klashnikov as well as cartridges on 12-4-1992. He stated that he had never absconded police deliberately avoided his arrest in order to show him as an absconder. He 'neither' produced any defence evidence nor chose to record his own statement under section 340(2), Cr.P.C. During the trial the complainant party effected compromise with `Bashir Ahmad alias Bashira s/o Muhammad Yousaf. As such he was acquitted by the dial Court. However, the case Muhammad Ilyas s/o Boota/appetlant and Muhammad Ilyas s/o Ghulam Hussain (P.O.).

10. The evidence produced by the prosecution ,found favour with the trial Court and as such culminated into the convictions of Muhammad Ilyas son of Boota/appellant-as well as Muhammad Ilyas son of Ghulam Hussain (P.O.). Instant appeal had been filed only by Muhammad Ilyas son of Boota accused/appellant. 11.We have heard the arguments of the learned counsel for the parties as well as the State Counsel.

12. The learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the motive as set up in the F.I.R. "Each PC as it has failed to bring on record any documentary evidence to show if Mushtaq Hussain deceased had been in illegal occupation of land pertaining to Shamlat. He further argued that Haji Muhammad Sadiq complainant (P.W-3) has deposed that two years prior to this occurrence the accused/appellant managed firing upon them and at the same time arranged the registration of a false case against them. He asserted that there no mention of second motive in the F.I.R., as such it is nothing but an afterthought effort on the part of prosecution. He further argued that no question regarding second motive was put to the accused/appellant-while recording his statement under section 342, Cr.P.C. as such it looses its evidentiary value. On the other hand, it is asserted that motive as set up in the F.I.R Exh. PC stands proved from the statement of complainant (P.W.3) as well as from the statement of accused admitting his (accused) enmity with P. Ws.

13. Admittedly, there is no mention of second motive in the F.I.R. Exh. PC lodged' just -after the incident, as such motive to that extent remains unproved. However, it is stated by Haji Muhammad Sadiq (P.W. 3) that accused/appellant had an eye over the land which was illegally occupied by 'the deceased and having failed in his efforts, launched attack upon the deceased as well as Rehmat Ali (P.W.4). The admission of accused that he had enmity with P.Ws also lends support to, the prosecution version- regarding the motive. .Thus, it is held f that prosecution has succeeded in establishing motive as set up in this case.

14. Learned counsel for the accused/appellant has also challenged the presence of Haji Muhammad Sadiq-(P.W.3) on the .ground that had he been present on the spot, he must have, received some injury on his person, that absence of any, injury makes his presence doubtful. This reasoning is absolutely devoid of any logic. The mere fact that P.W.3 did not receive any injury in no way makes his presence on the spot doubtful. As per prosecution version, Haji Muhammad Sadiq (P.W.3) alongwith Rehmat Ali (P.W.4) and his son Mushtaq Hussain deceased came to Qasba Market for making purchases. At the relevant time, P.W.3 was present in the shop of Reham Ali, while the deceased and Rehmat Ali (P.W.4) were standing in the Deuhri, as such he could not be caused any damage. The occurrence took place at 12-00 noon in an open Bazar, so the question of mistaken identity of accused/appellant does not arise. Again P.W.3 being father of deceased would not like to leave the real culprit of his son and to substitute some other person for the same. Besides, the statement of P.W.3, prosecution version stands corroborated by the statement of Rehmat Ali (P.W. 4) who is an injured eye-witness, as such, his presence cannot be doubtful in any E manner. This (P.W.4) is an independent witness having no animus to depose against, the accused or any vested interest to favour the complainant. The oral account of P.Ws. 3 and 4 stands fully corroborated even from the statement of Dr. Zafar Iqbal Gondal (P.W.2) who conducted the post-mortem examination and found fire-arms injuries on the person of deceased, which were sufficient to cause his death. The statement of Rehmat Ali (P.W.4) further gets support from the statement of Dr. Ijaz Ahmad (P.W.1) who examined him and issued Medico legal Examination Report Exh.P/A in respect of one fire-arm injury on his person. Both P.W.3 and P.W.4 have been subjected to lengthy cross -examination and defence counsel tailed to create any dent in their statements.

15. In the light of our foregoing discussion, we hold that prosecution has succeeded in establishing its case against the accused/appellant beyond any shadow of doubt. We, accordingly, uphold the judgment and dismiss the appeal. N.H.Q./M-769/L Appeal dismissed.