HAMID JAVED ALIAS HAMIDI Versus STATE

ORDER

1. JAVID IQBAL, J.- -This petition for leave to appeal has been filed by Hamid Javed alias Hamidi petitioner against his conviction and sentence. He alongwith three others, namely, Mohammad Sabir, Mohammad Safdar and Gogi, was involved in a case under section 302/307/34, P.P.C. All of them were tried by the Additional Sessions Judge Gujranwala who vide his judgment dated 13th June 1982 convicted the present petitioner under section 302, P.P.C. and sentenced him to death plus fine. He was also convicted under section 307, P.P.C. and sentenced to five years' R.I. on two counts plus fine. Gogi co-accused was an absconder and therefore he could not be tried. Mohammad Sabir and Mohammad Safdar co-accused were each convicted under section 304, Part-I, P.P.C. and sentenced to three years' R.I. plus fine. They were also convicted under section 308, P.P.C. on two counts and sentenced to one year's R.I. plus fine each. In appeal a Division Bench of the Lahore High Court, Lahore vide its judgment dated 29th November, 1983 acquitted Mohammad Sabir and Mohammad Safdar co-accused. So far as the present petitioner is concerned his conviction under section 302, P.P.C. was maintained but the sentence was altered from that of death to imprisonment for life. The sentence of fine was reduced. Again his conviction as well as sentence of imprisonment under section 307, P.P.C. was maintained but the sentence of fine was reduced with the direction that the sentences of imprisonment will run concurrently in his case.

2. The deceased in this case is Mubarik. and Amjad Pervez PW is injured eye-witness, besides Mohammad Latif who was not produced. The occurrence took place on 23rd April 1980 at 10-30 a.m. The report was lodged with the police at 12 noon on the same day by Amjad Pervez PW. There is dying statement of the deceased while he was still alive, besides the account of the occurrence given by the two eye-witnesses, namely, Amjad Pervez injured PW and Mohammad Riaz PW. According to the medical evidence the deceased had a fire-arm wound on the left chest. Its margins were black and the exit wounds were at the back of the chest. Amjad Pervez PW had also a firearm wound on the head with an exit wound. Both of them had sustained firearm injuries. The injury on the person of Mohammad Latif who was not produced was in the form of an abrasion on the face with a swelling and had been caused with blunt weapon. The occurrence took place while there was a race of horses arranged on Sialkot Gujranwala Road between the horses of Inayat and Ghani which commenced from Nandipur and was to finish at Fattumand at 9 a.m. on 23rd April 1980. The petitioner and his co-accused were the supporters of Inayat whereas the deceased, Amjad Pervez and Mohammad Ejaz PWs as well as Mohammad Latif etc. were the supporters of Ghani. The present petitioner and his co-accused followed the track of Inayat's horse in a car while some of Ghani's supporters rode on a motor-cycle whereas the others including the deceased were in the second car. While the race was on and Ghani's horse went ahead the car in which the petitioner etc. were sitting struck the motor-cycle and as a result its occupant Bashir fell down. The petitioner and his companions stopped their car and came out. They beat up Bashir, whereupon the deceased and his companions also came out of their car in order to rescue Bashir. The present petitioner who was armed with a revolver was instigated by his co-accused to open fire upon which he fired a shot which hit Amjad Pervez P.W. on the right side of the head and he fell down. He fired the second shot which hit the deceased in the chest and the bullet went through and through. The deceased also fell down in an injured condition. Gogi the absconder opened fire with his carbine which injured Mohammad Latif not produced. The remaining co-accused continues raising Lalkaras. Then the accused party went away in their car towards Gujranwala city.

3. As it has been pointed out earlier, since the deceased in an injured condition in the hospital was declared fit to make statement by the doctor, his statement was recorded by the investigating officer. Subsequently on the death of the deceased it was treated as a dying statement. The trial Court as well as the High Court have considered the dying statement and the statements of Amjad Pervez and Mohammad Ejaz PWs and relied upon them for bringing home the guilt of the present petitioner.

4. It was argued by the learned counsel for the petitioner that the dying statement should have not been relied upon because the type of the injury suffered by the deceased would make it difficult to believe whether he was able to speak, This argument was raised before the learned Division Bench of the Lahore High Court, Lahore also and had been carefully attended to by it. The deceased died on the third day of the occurrence. Both the doctors was first examined the deceased at Civil Hospital Gujranwala and then at Mayo Hospital Lahore had said that the deceased was in his senses. In view of their statements to this effect the learned Division Bench of the Lahore High Court correctly arrived at the conclusion that the statement of the investigating officer to the effect that when he recorded the dying statement the deceased was in his senses and he had made the said statement. In the light of the dying statement of the deceased the learned Division Bench examined the eye-witnesses' account particularly regarding the part ascribed to the present petitioner, and in the light of this evidence held that the petitioner was not only guilty for having murdered the deceased but had also been guilty for murderous assault on Amjad Pervez PW. Learned counsel also attempted to argue before us that the statements of the eye-witnesses were recorded by the police after a delay of a month or so and that by itself made them unreliable. In support of this proposition reliance was placed on 1974 P Cr. L J 391 Muhammad Rafiq and others v. State and 1984 S C M R 930 Muhammad Iqbal v. State, but these cases are clearly distinguishable. Ordinarily if the eye-witnesses are named in the FIR but the investigating agency happens to record their statements after the lapse of some time, this cannot possibly make such eye-witnesses unreliable. The learned Division Bench has already taken a lenient view by altering the sentence of death awarded to the present petitioner to that of imprisonment for life for the reason that the incident was unpremeditated and sudden.

5. In the light of the above discussion we do not consider it al. fit case for interference in the impugned judgment. Even otherwise the petition is barred by 11 days.

6. The petition is accordingly dismissed.

7. M.I. /H-22/S Petition dismissed.