MUHAMMAD AKRAM Versus THE STATE

1. Muhammad Akram son of Muhammad Khan was tried alongwith acquitted co-accused namely, Fateh Khan, Muhammad Amir Khan sons of Suba Khan and Muhammad Azim Khan son of Ameer Khan by the learned Additional Sessions Judge, Mianwali in case F.I.R. No.50, dated 22-5-1998 under section 109, P.P.C. registered at Police Station Musa Khel for murder of Muhammad Sharif and vide the impugned judgment, dated 21-5-2001 was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay compensation of Rs.1,00,000 to the legal heirs of the deceased, in default thereof to undergo six months' S.I. However, benefit of section 382-B, Cr.P.C. was given to him.

2. The brief facts of the case are that F.I.R. Exh.P.C. was got recorded by Muhammad Sher, P.W.4, father of the deceased with Qareeb Ali, S.-I./S.H.O. P.W.11 alleging therein that the complainant was cultivator by profession and owns a tractor which was being driven by his son Muhammad Sharif, deceased. On 21-5-1998 at 7-30 p.m. Muhammad Sharif deceased was returning to his house driving the said tractor and when he reached near his house Muhammad Akram accused/appellant who was already present armed with rifle fired at Muhammad Sharif, deceased hitting on the middle of his back which passed through his left armpit. Muhammad Sharif became unconscious and fell upon steering of his tractor. The accused fled away from the spot. Apart from the complainant the occurrence. was witnessed by Amir Muhammad, P.W.5 and Alam Sher (given up). Muhammad Sharif was being taken to the hospital, but he succumbed to the injuries on the way.

3. The motive for the occurrence was that Muhammad Sharif had illicit relations with sister of the accused/appellant. The dead body of Muhammad Sharif was brought to the police station, on which the F.I.R. Exh.P.C. was recorded.

4. Qareeb Ali Shah, S.-I/S.H.O. P.W.11 took the dead body of Muhammad Sharif into possession and prepared the injury statement through memo. Exh.P.G. and inquest report Exh.P.H. and entrusted the same to Muhammad Ayaz F.C. P.W.3 for post-mortem examination and he himself arrived at the place of occurrence and collected the blood stained earth from the place of occurrence through memo. Exh.P.D. and tractor P.5 through memo. Exh.P.E. On 23-5-1998, after post-mortem examination the last-worn clothes of the deceased were produced before him by Muhammad Ayaz, F.C. P.W.3 which were taken into possession by the Investigating Officer through memo. Exh.P.B. On 31-5-1998, he arrested Muhammad Akram, appellant who while in police custody led to the recovery of rifle 7 mm P.6 alongwith 7 live cartridges P.7/1-7 which were taken into possession through memo. Exh.P.J. He completed the investigation and submitted the challan.

5. The trial Court framed the charge. The accused denied the same and claimed the trial.

6. During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.

7. The medical evidence .was furnished by Dr. Muhammad Rafiq Khan, P.W.6 who on 23-5-1998 at 6-30 a.m. conducted the post-mortem examination of Muhammad Sharif and found the following injuries on the body of the deceased:--

(1) A fire-arm wound of entry 2-1/2 x 2 c.m. in the midline of the back of chest. 11 c. m. below the base of neck.

(2) A fire-arm wound of exit of injury No. 1, 5 x 1-1/2 c.m. in the left axilla.

8. The ocular account was furnished by Muhammad Sher, P.W.4, father of the deceased who supported the version of the F.I.R. and narrated the motive of the occurrence. Amir Muhammad, P.W.5 was the eye-witness of the occurrence. He supported the prosecution story. His statement is in line with that of complainant Muhammad Sher P.W.4.

9. Muhammad Shafiq, Draftsman, P.W.1 prepared the site plan of the place of occurrence. Muhammad Ayyaz, P.W.3 escorted the dead body of Muhammad Sharif for post-mortem examination and produced the last-worn clothes of the deceased before Investigating Officer and he attested the said memo.

10. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.1 and that of Serologist Exh.P.M.

11. The statement of the appellant accused was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to Question No.6 as to why the case against him the P.Ws. deposed against him, he stated that he had been involved due to his enmity with the complainant party.

12. The trial culminated into conviction of the appellant as mentioned above, who has challenged his conviction and sentence through Criminal Appeal No.916 of 2001 while the complainant has filed Criminal Revision No.435 of 2001 for enhancement of sentence. Both the matters are outcome of the same judgment, therefore, are being decided through this single judgment.

13. Learned counsel for the appellant in support, of the appeal has argued that it was a dark night unwitnessed occurrence. The presence of both the eye-witnesses Sher Muhammad, P.W.4 and Muhammad Amir P.W.5 has not been established; that both the eye-witnesses are closely related inter se and to the deceased and they are inimical towards the appellant and their testimony has not been corroborated from any other independent source, therefore, case of the prosecution has not been proved.

14. Learned counsel for the complainant and State have opposed the appeal and supported the impugned judgment and prayed for, enhancement of the sentence.

15. Heard. Record perused

16. The occurrence took place at 7-30 p.m. and Muhammad Sharif in injured condition was being taken to the D.H.Q. Hospital, Mianwali but he succumbed to the `injuries on the way and dead body was taken to the police station and F.I.R. was registered at the police station at 8-30 p.m., therefore, it is clear that the appellant was nominated as main accused in promptly recorded F.I.R. The complainant party as well as accused are residents of the same locality, therefore, there is no question of mistaken identity. The appellant had caused fatal injury to the deceased with the rifle and motive is also alleged against him. He has been found guilty during the investigation. The complainant party has no previous enmity for his false implication or substitution by letting off the real culprits. It is correct that complainant is real father of the deceased while P.W.5 Ameer Muhammad is his real cousin but mere relationship of the P.Ws. with the deceased is no ground to discard their testimony unless they are proved to be inimical and interested witnesses and no such evidence has been brought on record by the defence to prove that they were inimical towards the appellant. The ocular account furnished by complainant Muhammad Sher P.W.4 and Amir Muhammad P.W.5 has been fully corroborated by the medical evidence, therefore, after reappraisal o, evidence, I find that prosecution case against the appellant has been established beyond any shadow of doubt. The argument of the learned counsel that maximum case against the appellant falls under section 302(c), P.P.C. instead of 302(b), P.P.C. has no force as according to the prosecution story the appellant waylaid armed with rifle and launched attack. fit was the suggestion by the defence that occurrence took place in the fields is also without any basis because the blood-stained earth was taken into possession, where, according to the prosecution occurrence took place. Therefore, I find no ground to interfere in the conviction recorded against the appellant or sentence awarded to him as the trial Court has already taken a lenient view in his favour. This appeal is dismissed. Conviction and sentence is maintained. Criminal Revision No.435 of 2001 is also dismissed.

17. H.B.T./M-1826/L Appeal dismissed.