MUHAMMAD RAFIQ Versus State

ABDUL HAMEED DOGAR, J.-- -Petitioner Muhammad Rafiq, seeks leave to appeal against the judgment dated 5-4-2004 of the learned Single Judge in Chambers of the Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No.192 of 2003 filed by him was dismissed and his conviction under section 302(b), P.P.C. and sentence of imprisonment for life as Tazir with payment of fine of Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to further undergo six months' S.I, awarded by the learned Sessions Judge, Jhelum were maintained. However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Precisely, stated, the facts giving rise to the filing of instant petition are that on 17-6-2002 at about 7-00 p.m. when Adalat Khan deceased was returning his cattle towards the village and when he reached in the land of one Muhammad Hussain, petitioner asked him as to why he was not properly supervising the cattle and also abused the deceased. The deceased, also retaliated in the same manner, whereupon the petitioner inflicted three hatchet blows from its backside, to the deceased on different parts of the body. P.Ws. namely, Muhammad Rafiq and Muhammad Bilal got attracted at the spot and witnessed the same. Thereafter, the injured was shifted to the hospital where his statement to the above facts was recorded by Sarfraz Hussain, S.-I. while in injured condition. However, on 18-6-2002, he was succumbed to the injuries in the hospital and a case under section 302, P.P.C. was registered at Police Station Domeli, District Jehlum. On 25-6-2002, the police arrested petitioner and during interrogation he got recovered hatchet from his house situated in village Dehra, District Jehlum.

3. After usual investigation, the petitioner was sent up to face the trial before the learned Sessions Judge, Jehlum.

4. The prosecution in order to prove its case examined as many as 11 witnesses.

5. 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.

6. On conclusion of trial, petitioner was convicted and sentenced as stated above. Being aggrieved, petitioner challenged the judgment in appeal before the learned Lahore High Court, which was dismissed vide impugned judgment.

7. We have heard Mr. Rafaqat Hussian Shah, learned Advocate Supreme Court for petitioner and Mr. Mahmood Ahmed Sheikh, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.

8. It is mainly contended by the learned counsel for petitioner 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 contended that the dying declaration was not recorded in accordance with the rules on the subject which reduces its value to null and void. He pointed out that the case 'of prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case.

9. Learned State Counsel supported the impugned judgment. He submitted that Muhammad Rafique and Muhammad Bilal P.Ws. had given reasonable explanation for their presence at the spot; they had absolutely no motive to come forward as false witnesses against petitioner because there was no background of any previous enmity between the parties.

10. In this case eye-witness account was furnished by P.W.6 Muhammad Rafiq and P.W.7 Muhammad Bilal irrespective of the fact that the F.I.R. was recorded by the deceased himself, which was declared as dying declaration. The incident took place over a minor dispute between the parties. Ocular testimony, is also corroborated by the medical evidence furnished by P.Ws. Dr. Riaz Ahmed and Dr. Faisal Mehmood. According to P.W.2 Dr. Faisal Mehmood, Injury No.2, which was caused upon cervical spine of neck, caused compression of cervical spinal cord. The injury was ante-mortem and was caused by blunt weapon and in the opinion of doctor the same was sufficient to cause death in the ordinary course of nature. The dying declaration was further corroborated by Sarfraz Hussian, S.I. P.W.10, who recorded his statement, while in an injured condition in the hospital. The ocular account was also found to be trustworthy by the trial Court as well as the Appellate 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. It is true that P.Ws. are related to the deceased but fact of the matter remains that mere relationship of the witness with the deceased per se would not render them as interested or partisan witnesses. The prosecution has fully proved its case by producing ,cogent and convincing evidence. Though the witnesses were cross-examined yet their evidence was not shattered at all, as such, we do not find any illegality, misreading or non-reading in the evidence. There are concurrent findings of two Courts below, which do not suffer from any illegal infirmity warranting interference by this Court.

11. Accordingly, the petition being devoid of any substance is dismissed and leave to appeal refused.

N.H.Q./M-5/S ???????????????????????????????????????????????????????????????????????? Leave to appeal refused.