GHULAM MUSTAFA Versus STATE

This appeal has been directed against the judgment, dated 28‑7‑1998 passed by the learned Sessions Judge, Faisalabad in case F.I.R. No. 384 of 1994, registered on 6‑10‑1994 under section 302, P.P.C. with Police Station Thikriwala, District Faisalabad whereby the appellant was convicted, under section 302(b), P.P.C. and sentenced to life imprisonment as Ta'zir. He was also directed to pay Rs. 25,000 by way of compensation under section 544‑A Cr.P.C., to be paid to the legal heirs of the deceased. In case of default of payment of the said amount, the appellant was directed to further undergo 6 months' R.I. However, benefit of section 382‑B, Cr.P.C. was extended to the appellant.

2. Brief facts of the case are that pursuant to an occurrence having been taken place in the revenue estate of Chak No. 81/J.B. falling within the territorial jurisdiction of Police Station Thikriwala, District Faisalabad, the abovesaid criminal case was registered against the appellant and his co‑accused for the murder of deceased Muhammad Ramzan.

3. After registration of the formal F.I.R. investigation into the crime was conducted by the local police, who inspected the spot, fulfilled all the formalities and after completion of investigation submitted the challan in the trial Court. The trial Court on receipt of challan framed charge against the appellant which was denied by the appellant and he opted to face trial. The prosecution was asked to prove its case by producing evidence. In order to prove its case the prosecution opted to produce as many as nine witnesses in support of its ‑version.

4. P.W.1 Dr. Muhammad Saleem conducted post‑mortem of the dead body and found as many as three fire‑arm worn clothes of the deceased to the Investigating Officer which were taken into possession vide memo. Exh. P.B. P.W.3 Muhammad Sarwar, P.W.4 Noor Muhammad, P.W.5 Muhammad Khurshid, P.W.6 Muhammad Tufail, P.W.7 Aurangzeb, P.W.8 Muzafar Ali and P.W.9 also appeared in the witness‑box in support of version of the prosecution. After completion of the prosecution evidence, statement of the accused under section 342, Cr.P.C. was recorded. The appellant/accused in support of defence version also produced Yousaf Ali, Inspector as D.W.1, Muhammad Shafique as D.W.2 and Sadiq Ali as D.W.3.

5. The learned trial Judge after taking into consideration the totality of facts and circumstances of the case pronounced his judgment on 28‑7‑1998 and passed the above mentioned conviction and sentence against the appellant. Hence this appeal.

6. Learned counsel for the appellant contends that both the eye‑witnesses are closely related inter se and to the deceased and have been disbelieved regarding involvement of the other accused in this case, hence their statements cannot be relied upon for conviction of the appellant. He has also pointed out contradictions of any corroborative piece of evidence, only the ocular account, which is not trustworthy and confidence inspiring cannot be held sufficient for the conviction of the appellant in the capital charge. He further contends that according to eye‑witnesses shot was fired from a distance of 4 feet while according to the doctor blackening was found which means that shot was fired from a close range and medical evidence is in contradiction with the ocular account. He further contends that no evidence is available on the record to corroborate statements of the eye‑witnesses, who are not only false witnesses rather are inimical towards the appellant. It is also contended that the recovery of rifle from the appellant is of no use to the prosecution as no empty was recovered from the spot and the report of Forensic Science Laboratory that the rifle is in working condition will not be of any use to the prosecution.

7. Motive has been disbelieved by the learned trial Judge. It is further contended that Driver and conductor of the said bus have appeared and made statements that both the parties wanted to fire at each other, hence they ran away. It is further contended that both the P.Ws. were not present at the spot and have given false version merely on the basis of relationship. The independent evidence has been withheld and has not been produced. It is also contended that the deceased had fired at Khalid and murdered him at the dera of the appellant. Hence shot fired at the deceased Ramzan was in the exercise of self defence and defence plea is more plausible and his case falls under section 302‑C, P.P.C. and already undergone will be sufficient to meet the ends of Justice.

8. On the other hand learned counsel for the State has opposed this appeal on the grounds the prosecution evidence is sufficient to connect the appellant with the commission of crime. Both the witnesses had no previous enmity with the appellant to implicate him in a case in which punishable with capital charge. He also contends that the medical evidence is not in contradiction with the ocular account and fully supports the prosecution version. He relies upon PLD 1974 SC 87 and 2000 SCMR 223 and prays for dismissal of the appeal.

9. I have heard learned counsel for the parties and perused the record. Admittedly F.I.R., which was lodged immediately after the occurrence, the appellant alongwith other co‑accused has been shown present at the spot and specific role has been attributed to him. This fact has been fully supported by both the eye‑witnesses, namely, Noor Muhammad P.W.4 and Khurshid, P.W.5. Both the eye witnesses are consistent on the point that the appellant fired at the deceased. There is no material contradiction in the statement of the eve‑witnesses and the learned counsel for the appellant has failed to point out any material discrepancy in their statement. Minor discrepancy cannot be considered for the acquittal of the appellant in the case in hand. Presence of both the P.Ws./eye‑witnesses at the spot has not been seriously doubted. They are not inimical to the appellant as the previous enmity between the appellant and the witnesses has not been brought on the record. Trial Court has rightly come to the conclusion that the motive is not proved against the appellant. It is an admitted fact that earlier Khalid Mehmood was murdered by Ramzan deceased of this case at the Dera of the appellant and then he boarded on a bus in which the present occurrence took place. The appellant who was running after the commission of crime specially at the dera of the appellant. During the investigation appellant was arrested and all the other accused involved in this case were let off and were declared innocent and challan was only submitted against the appellant by the petitioner. The trial was initiated and after the recording of statement of witnesses then it came to the notice of the trial Court that the names of other accused have also been mentioned with specific role by the complainant and other eye‑witnesses. Compromise out of the Court was accepted and application for the withdrawal of the petition to their extent was moved, to the District Magistrate, hence decision of the case of the appellant in this case on the basis of the statements of two eye‑witnesses has been found to be correct by the learned trial Court. The medical evidence is also not in contradiction with the ocular account rather it supports the ocular account that the injury received by the deceased was with fire‑arm weapon. The seat of injury as the same has been mentioned in the F.I.R., notice of the blackening by the doctor on the wound cannot be made basis for making out case of contradiction in the ocular account and the medical evidence. In such‑like circumstances the ocular account which is otherwise natural and trustworthy will be given preference over the medical evidence. Hence the prosecution has succeeded in making out the case against the appellant. The accused/appellant has also produced defence evidence in which D.W.1 Muhammad Yousaf, Inspector has supported prosecution evidence to the extent of the involvement of the appellant in the case. The defence, plea raised by the appellant during the statement under section 342, Cr.P.C. at the belated stage is not convincing and does not borne out from the statement of the eye witnesses and other circumstance of the case. The accused had taken divergent stand that it cannot be made basis for the acquittal of the appellant. Stands taken by the appellant are of no help to him. Conviction of the appellant is based on sound reasons and is supported by evidence on the record. The appellant has failed to make out a case for acquittal. No exception can be taken to the judgment passed by the learned trial Court, to the conviction of the appellant under section 302(b), P.P.C. also as to the quantum of sentence. This appeal has' no merits and the same is dismissed.

N.H.Q./G‑112/L Appeal dismissed.