ALLAH DITTA Versus THE STATE

1. BASHIR A. MUJAHID, J. ‑‑‑Allah Ditta son of Mehar Din has challenged judgment dated 6‑4‑1999 passed by the Judge, Special Court of ATC, Lahore whereby he was convicted under section 302(b), P.P.C. and sentenced to death for committing murder of Iftikhar Ahmad. He was ordered to pay compensation of Rs. one lac under section 544‑A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo 2 years' R.I. He was further convicted under section 324/34, P.P.C. and was sentenced to 10. years R.I. and fine of Rs.20.000 or in default thereof to undergo R. I. for one year. He was also convicted under sections 353/186/34, P.P.C. and was sentenced to two years and fine of Rs.10,000 or in default to further undergo six months' R.I.

2. Brief facts of the prosecution case are that on the statement Exh.P.A of Manzoor Ahmad P. W.1, recorded by Muhammad Ali S.‑I. P.W.8 at Dhari of Yasin in Chak No.30/4‑L at 8‑30 a.m. on 8‑2‑1997, F.I.R. No.7 of 1997 Exh.P.A/1 was registered at Police Station Shah Bhour, District Okara wherein it was alleged by the complainant that on 8‑2‑1997 at 6‑15 a.m. his son Iftikhar Ahmad (deceased) was working at his shop of repairing of punctures of bicycles and motorcycles when three persons whose names came to know later on as Mushtaq alias Mushtaqi, Allah Ditta son of Mehar Din and one unknown person of wheatish colour well built aged 25/26 years came alongwith two motorcycles Yahama duly punctured having no number plates to the shop of his son Iftikhar and asked him to repair the punctures. Iftikhar Ahmad suspected them and refused to repair the punctures on which Allah Ditta accused took out his mouser from underneath his jacket and threatened to teach him lesson. Iftikhar son of the complainant ran away shouting 'thief thief' which attracted many persons from the village armed with Sotas and fire‑arms. Allah Ditta accused fired from his mouser at Iftikhar Ahmad hitting on his abdomen who fell down after receipt of injury. Accused fled away from the spot towards east after leaving behind the motorcycles. The inhabitants of the village chased them. The accused tired at them in retaliation and they crossed 4/L Canal when two police constable, namely Noor Ahmad and Sabir Hussain also arrived at the spot and joined the inhabitants. Sabir Hussain went to police station while Noor Ahmad chased the accused joining the inhabitants of village. He also made tire at the accused from his official rifle. All the three accused took shelter in the Dhari of Yasin. The firing continued from both sides as a result of which Mushtaq alias Mushtaqi and unknown person received fire‑arm injuries and they fell on the ground and succumbed to the injuries. Allah Ditta accused took into possession the kalashinkov of Mushtaq alias Mushtaqi accused and started firing at the villagers. He stopped firing only when his bullets were finished. Allah Ditta accused was surrounded from all sides and was apprehended by the people. The occurrence was witnessed by Muhammad Safdar son of Sher Muhammad P.W.2 and Muhammad Yar son of Muhammad Ismail P.W.3.

3. Muhammad Ali, S.H.O. after recording statement Exh. P. A at the spot sent the same for registration of formal F.I.R. and himself took into possession the dead bodies and prepared the inquest report of Mushtaq alias Mushtaqi vide memo. Exh.P.M. and of unknown person vide memo. Exh. P. N. He also collected the blood‑stained earth from the place where dead body of Mushtaq alias Mushtaqi deceased was lying vide memo. Exh.P.C and of unknown persons vide memo. Exh.P.D. He also took into possession gun P‑5 of unknown person lying near his dead body which was taken into possession vide Exh.P.H and from near the dead body of Mushtaq alias Mushtaqi deceased he took into possession veil P‑2, Chhuri P‑1 vide Memo. Exh.P.F. and recovered from Allah Ditta accused kalashinkov P‑3, mouser P‑4, empty belt P‑5 and cover P‑6 and one bag P‑7, 10 live bullets of kalashinkov P‑8/1‑10 and 6 live bullets of mauser P.9/1‑6 and 5 empty magazine of mauser P.10/1/5 and one black belt P.11 vide recovery memo. Exh.P.G. He despatched both the dead bodies for post mortem examination and thereafter he arrived at the place of first occurrence and took into possession 2 motorcycles without number plates belonging to the accused P.6 and P.7 vide Memo. Exh. P.I. He also took into possession blood‑stained earth from underneath the injured body of Iftikhar Ahmad vide memo. Exh.P.E. On receipt of information that Iftikhar in injured condition was admitted in C.M.H., Okara where he succumbed to the injuries, he arrived at C.M.H. Okara and took the dead body of Iftikhar Ahmad into possession and prepared inquest report vide memo. Exh.P.R. and handed over the dead body of Iftikhar Ahmad for post‑mortem examination.

4. On the next day last‑worn clothes of all the three deceased were produced before the Investigating Officer which were taken into possession vide memo. Exh.P.L. of unknown person, P.J. of Iftikhar Ahmad and P.K of Mushtaq alias Mushtaqi. He despatched the kalashinkov with mauser to Forensic Science Laboratory for comparison. He completed the investigation and challaned the accused to face trial.

5. The trial Court framed the charge against the appellant which was denied by him and he claimed trial.

6. During the trial prosecution examined as many as 8 witnesses to prove the guilt of the accused.

7. Medical evidence was furnished by Dr. Muhammad Ashiq C.W.1 who on 9‑2‑1997 conducted post‑mortem examination on the dead body of Iftikhar Ahmad son of the complainant and found the following injuries on his dead body:‑‑‑

(1) A longitudinal stitched wound on front of abdomen 2 c.m. to the left of umbilicus measuring 22 c.m.

(2) Stitched wound 2 x 2/2 c.m. in the middle of front of the left side of abdomen 4 c.m. above and to the left of umbilicus.

(3) Stitched wound on front and upper part of the left side of abdomen, 2 c. m. below left subcostel margin, 8 c.m. to the left of injury No. 1.

(4) Lacerated wound 1/2 x 1/2 c.m. with inverted and blackened margins in the middle of back side of abdomen. 18 c.m. above lower end of coccyx bone, it was the wound of entry.

8. According to the post‑mortem report Exh.P.B./III of unknown person two injuries were found on his dead body while according to the post‑mortem report Exh.P.T/1 of Mushtaq Ahmad alias Mushtaqi he found 6 injuries on his person.

9. The ocular account was furnished by Manzoor Ahmad P.W.1 who was complainant of the case. He supported the version of his statement Exh.P.A. Muhammad Safdar son of Sher Muhammad was examined as P.Vy.2 who was also eye witness of the occurrence and he chased the accused alongwith other co‑villagers and his statement is in line with the statement of complainant Manzoor Ahmad P.W.1. Muhammad Yar son of Muhammad Ismail P.W.3 was another eye‑witness of the occurrence. He also supported the prosecution story and his statement is in line with the statements of Manzoor Ahmad P.W.1 and Muhammad Safdar P.W.2. Abaid Ullah P.W.4 as draftsman had prepared the site, plan of the place of occurrence. Sajawar Khan P.W.5 had attested the recovery memos. Exhs.P.C, PD, PE, PF and PG whereby the incriminating articles were taken into possession from the spot by the Investigating Officer. Sabir Hussain FC had escorted the dead bodies for post‑mortem examination of the deceased. The remaining witnesses are of formal in nature and need not be discussed.

10. The prosecution evidence was closed by tendering in evidence report of Forensic Science Laboratory Exh.P.S. and P.W. and that of Chemical Examiner as Exhs.P.T, PU and PV.

11. Statement of the accused under section 342, Cr.P.C. was recorded towards the end of the trial. He denied the allegation and claimed his innocence and false involvement and in answer to question No.9 as to why this case against him he replied as under:‑‑‑

12. I have been falsely implicated in this case by the police and have been made an scapegoat. The F.I.R. was recorded by the police after preliminary investigation and inquiry. For that reason I was not arrested by the police as stated by Muhammad Ali, A.S.‑I, P.W.8. Although I was lying admitted in the hospital in injured condition.

13. In fact I alongwith Mushtaq alias Mushtaqi and Ashfaq Ahmad had gone to see one Hashim Khan Balooch constable who was friend of Mushtaq alias Mushtaqi and lived in Chak No.31/4‑L. Since the tyres of our motorcycles were punctured so we went at the shop of Iftikhar Ahmad who repaired the punctures and when we were going to set off for the city, suddenly some unknown person belonging to Balooch family came there and they started firing. We left the motorcycles at the shop of Iftikhar Ahmad and started running to save our lives while be searching the villagers to spare us as we were innocent. Iftikhar Ahmad deceased was also following us and he received a fire shot, which was tired by one of the villagers and was carried to C.M.H., Okara by his father Manzoor Ahmad. The villagers continued chasing us and I and my two alleged co‑accused took refuge in the Dhari of Yasin which was situated at the distance of about 2 miles in the area of Chak No.30/4‑L, Mushtaq alias Mushtqi came out of Dhari for running to save his life but he was hit on the body by a fire shot and died there. I and my alleged co- accused Ashfaq were empty‑handed and were apprehended by the villagers and were subjected to severe torture. As a result of which Ashfaq Ahmad succumbed to injuries and died. I was seriously injured and my teeth were also broken. No recovery was effected from my person. The blood‑stained earth was not collected from the alleged place of occurrence near the shop of Iftikhar Ahmad and that the 3 parcels of blood‑stained earth were collected from near the Dhari of Yasin. There is no evidence against me and I am innocent.

14. The trial culminated into conviction of the appellant as mentioned above and he has challenged his conviction and sentence through Criminal Appeal No.208‑J of 2000 t hrough trial Court has sent up Murder Reference No.94‑T of 1999. Both the matters are being decided by this single judgment.

15. Learned counsel for the appellant has argued that the appellant has been falsely implicated in the instant case. He was severely beaten by the inhabitants of the village. The accused ran to save their lives but he was apprehended without any fault on his part and prosecution case is doubtful and he be acquitted of the charge by allowing this appeal.

16. Conversely the appeal has been opposed by the learned State Counsel.

17. Heard. Record perused.

18. The appellant was not previously known to the complainant. He was apprehended at the spot in injured condition and was produced before the Investigating Officer. It was a daylight occurrence His co‑accused died in the cross‑firing. The appellant has been attributed fatal injury having been caused to Iftikhar Ahmad son of the complainant who was a young boy. There is no reason for his false implication and there is no question of mistaken identity or substitution of appellant by letting off the real culprits. The appellant has himself admitted the occurrence. Statement Exh.P.A was recorded at the spot promptly. Prosecution case has been established by the ocular account and the medical evidence. The accused/appellant was also injured in the same occurrence. The prosecution witnesses stood to the test of lengthy cross‑examination and nothing in favour of the appellant/accused was brought on record. His presence at the spot and participation in the occurrence cannot be doubted. The prosecution has successfully proved its case against the appellant beyond any shadow of doubt.

19. After reappraisal of evidence, we do not find any reason to interfere in the conviction recorded against the appellant and sentence awarded to him by the trial Court. Therefore, this appeal is dismissed. The death sentence awarded to Allah Ditta appellant is maintained.

20. The Murder Reference is answered in the affirmative.

21. N.H.Q./A‑443/1 Appeal dismissed.