IBRAR HUSSAIN and others vs THE STATE

' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of Criminal Appeals Nos. 231 and 232 of 2002 in which common questions of facts and law are involved and the same are directed against the judgment, dated 10-10-2001 of a learned Judge in Chambers, Lahore High Court, whereby Criminal Appeals Nos.1022 and 1215 of 1999, challenging the judgment, dated 28-9-1999 of learned Additional Sessions Judge, Faisalabad, convicting Ibrar Hussain, Ashiq Hussain, Mukhtar Ahmed and Nazar Hussain appellants under sections 302/34, P.P.C. And sentencing them to suffer punishment for 25 years R.I. Each and also to pay fine of Rs,25,000 each, which if realized was to be paid to the legal heirs of Muhammad Arif deceased with benefit of section 382-B, Cr.P.C. Were dismissed.

2. The occurrence took place on 21-7-1994 at 6-00 a.m. In Killa No,15, Square No,70, situated within the jurisdiction of Police Station, Thekriwala. F.I.R. No,281 was lodged by Muhammad Anwar, the brother of the deceased, and it was recorded by Muhammad Sharif, S.I.

3. The Motive of crime, as set up by the prosecution, was that there was a dispute between the parties over land.

4. Initially, the police registered case under sections 324/337-A(ii), 337-F(iii), 337-F(iv), 148/149, P.P.C.

And after the death of Muhammad Arif on 16-8-1994 section 302, P.P.C. Was added.

5. Besides, the appellants of these appeals namely, Ibrar Hussain, Ashiq Hussain, Mukhtar Ahmed and Nazar Hussain, five other persons were charged sheeted in this case namely, Sabir Hussain, Manzoor Hussain, Amanullah, Muhammad Anwar and Talib Hussain. All five named latter were acquitted by trial Court.

6. Vide order, dated 23-5-2002 leave to appeal was granted for reappraisal of evidence.

7. Besides, Muhammad Anwar complainant the brother of the deceased, the incident was witnessed by Karamat Hussain P.W.8, who also is a brother of the deceased. Iron Rods (Sabal) were recovered from Ibrar Hussain, Ashiq Hussain and. Mukhtar Ahmed appellants, while Iron Pipe was recovered from Nazar Hussain appellant.

8. The prosecution case, in brief, is that on the day of occurrence the complainant, his bother Muhammad Arif deceased were going on a motorcycle from Chak No,30-JB and when they reached near the scene of offence, Ashiq Hussain appellant duly armed with an Iron Rod appeared there and asked the deceased to stop motorcycle. The latter did not do so. Thereafter, said appellant caught hold the deceased and dragged him on the ground and inflicted a blow with iron rod, which hit the deceased on his back side. Immediately thereafter, other three appellants and acquitted accused, duly armed with weapons, appeared there and in prosecution of their common object of unlawful assembly attacked the deceased and inflicted the injuries on his person, who immediately became unconscious and was removed to the hospital, when he expired on 16-8- 1994.

9. At trial, the prosecution examined as many as 15 witnesses namely, Dr. Abdur Rehman, Sultan Ahmed Patwari, Muhammad Hand H.C., Dr. Abdur Rauf, Dr. Muhammad Anwar, Muhammad Anwar, F.C., Abdul Sattar, Karamat Hussain, Muhammad Anwar complainant, Akbar Ali, S.I., Riaz Ali, S.I., Muhammad Sharif, S.I., Shah Nawaz, S.I., Zafar Hussain, Inspector and Khalid Hameed, Khalil-ur- Rehman, D.I.G. Was also examined as C.W.

10. The deceased when admitted in hospital on 21-7-1994, the following injuries were found on his person.

"(1) Lacerated wound 2 c.m. x 1/2 c.m. Bone deep front of left leg upper part.

(2) Lacerated wound 2 c.m. x 1 c.m. Bone deep front of left leg middle part.

(3) Lacerated wound 2 c.m. x 3/4 c.m. Front of right leg upper part.

(4) Lacerated wound 2-1/2 c.m. x 1-1/2 c.m. Bone deep front of right leg with swelling 8 c.m. x 4 c.m.

Middle and lower part.

(5) Abrasion 2 c.m. x 1 c.m. Front of right knee.

(6) Contusion mark 6 c.m. x 2 c.m. Front of right thigh lower part.

(7) Contusion mark c.m. x 1 c.m. Front of right thigh lower part 3 c.m. Below injury No,6.

(8) Contused swelling 7 c.m. x 3 c.m. Back of right arm lower part.

(9) Abrasion 2 c.m. x 1 c.m. Back of right elbow.

(10) Contused swelling 10 c.m. x 2 c.m. Back of right forearm upper and middle part.

(11) Contused swelling 6 c.m. x 6 c.m. Back of right hand.

(12) Lacerated wound 3 c.m. x 1 c.m. Muscle deep back of left forearm lower part.

(13) Swelling 6 c.m. x 5 c.m. Back of left hand.

(14) Lacerated wound 2-1/2 c.m. x 1/2 c.m. Bone deep left side back of head."

11. Muhammad Anwar complainant and Karamat Hussain P.W. Have fully implicated the appellants and held them responsible for causing injuries to the deceased. Both at length were cross examined but their testimony remained un-shattered. They provided all details of the incident.

They were believed both by trial Court and High Court and rightly so.

12. It was contended before High Court that the two eye-witnesses produced by the prosecution were no other than the real brothers of the deceased and they failed to establish their presence at the spot at the time of occurrence. Learned counsel also argued that there was delay in lodging F.I.R. And no plausible explanation for it was offered. He also argued that there was a police post at a distance of about 3/4 squares of land from the place of occurrence, but the matter was not reported there. Instead, the report was made at police station Thekriwala. It is urged that none of the witnesses sustained any injury and this fact ipso facto leads to the conclusion that they were not present at the spot at the time of occurrence. He also argued that five co-accused were acquitted by trial Court and the case of the appellants is identical to them, as such, they should have also been acquitted. He also urged that the operation of the deceased was not conducted properly and the doctor was guilty of mishandling the deceased during the process of operation.

13. As against above, it was argued on behalf of the State that all the appellants were named in F.I.R. And specific roles were attributed to them.

14, We heard learned counsel for the parties and perused the record.

15. The contentions raised before trial Court and High Court have been repeated before us. The testimony of the complainant and eyewitnesses inspires confidence. It is noted that on the points of time, date and place of occurrence, the evidence led by the prosecution is consistent and no dents were created in the testimony of the P.Ws. Besides, dying declaration of the deceased was also there, which was corroborated by the testimony of the eye-witnesses, plus medical evidence which indicated that as many as 14 injuries were sustained by the deceased. Above named five co-accused were acquitted for the reason that even the prosecuting agency was suspicious about their involvement in this crime. The findings recorded by trial Court and affirmed by High Court are in accordance with the evidence available on record and not open to any exception. No interference is warranted.

16. In consequence the appeals are dismissed.