ABDUL RAZIQ Versus State

MALIK HAQ NAWAZ, J.--- The convict/appellant has filed the instant Criminal Appeal No. 13/2014, against the judgment/order passed by the learned Sessions Judge Diamer, whereby the appellant was convicted on the charges as mentioned above and was awarded life imprisonment under section 302(b), P.P.C., with a fine of Rs. 300000/-(three lac) to be paid to the legal heirs of deceased Abdul Shakoor. The appellant was further convicted under section 324, P.P.C. and was awarded 10 years R.I with a fine of Rs.1,00,000/-(one lac) to be paid to injured Hazrat Bilal. However the benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Being aggrieved from the above judgment/order the Court has filed the instant appeal, which came for hearing for this bench today i.e. on 24-09-2018.

3. The learned counsel for the convict/appellant submitted that the FIR is not a genuine document and has been fabricated later after due consultation and deliberation. The learned counsel submitted that as evident from the record the dispute was going on between the two communities and large numbers of police personnel were deployed at the place of occurrence. The stance of the complainant is that he went to police station to lodge FIR does not appeal to common sense. The learned counsel forcefully attacked about the presence of complainant Hazrat Bilal and submitted that had Hazrat Bilal been present at the place of occurrence, the site plan must have been prepared on his pointation and if for the sake of arguments, it is presumed that he was injured at the place of occurrence because of the firing opened by the convict/appellant, his medical certificate must have been made part of prosecution evidence, which is conspicuously missing. Per learned counsel there is complete contradiction regarding recording of statement of complainant Hazrat Bilal. Investigating Officer of the case stated that he recorded the statement of injured at the place of occurrence, while the injured stated that his statement was recorded at DHQ Hospital Chilas, which fact has a material bearing on the credibility of the prosecution evidence. The case of prosecution is full of doubts and the appellant deserve clean acquittal from the charges. Lastly that the specification of weapon of offence has not been mentioned in the FIR, which was later on improved and a Kalashnikov was recovered from the appellant. The weapon of offence was not sent to forensic expert for expert opinion. The inquiry sheet of injured Hazrat Bilal is not available on record, which makes whole of the incident doubtful. The learned counsel relied on 2011 SCMR 872, 2012 YLR 986, 2012 YLR 724, 2013 YLR 230, 2013 YLR 178, 2014 YLR 10, 2014 YLR 01, PLD 2009 Peshawar 10, 2010 PCr.LJ 211, 2012 SCMR 172, 2012 SCMR 82 and 2011 MLD 1419.

4. Conversely, the learned Dy. Advocate General opposed the contention with vehemence and submitted that FIR has been lodged with promptitude without loss of time and the appellant is directly charged in the FIR for commission of offence and the occurrence has been narrated in a natural manner without any exaggeration. Per learned Dy. Advocate General the motive has been proved and the injured Hazrat Bilal and eye-witnesses have charged the appellant and there was no reason advanced for substitution of the accused nor it was suggested by the defence.

5. Heard in detail and the evidence minutely scanned with the above circumstances of both the learned counsel for the parties.

6. The FIR was lodged within 3 hours of the occurrence and the distance shown from the place of occurrence to the police Station is 25 km. The names of the eye-witnesses are mentioned in the FIR. The learned trial Court based conviction on motive, ocular evidence, recoveries and discussed each pieces of evidence in detail. For the purpose of convenience the examination in chief and cross-examination of both the eye-witness is re-produced for ready reference:-

"PW-1: ON OATH

Abdul Jalil son of Rustam Khan aged about 40 resident of Luruk Tangir.

Stated that on 17-12-2008 at about 12:30 p.m. the people of Luruk and Diamer had gathered on pasture namely Daniyot which was disputed between the said two villagers. In the meantime, some notables and Ulamas along with some police personnel came there and got separated the people of the said two villages so as to avoid any clash between them. In the meantime, accused Abdul Raziq present in court opened fire shots with Kalashnikov at Hazrat Bilal with intention to murder him. Resultantly, Hazrat Bilal received bullet injuries whereas due to said firing by the accused Abdul Shakoor died on spot. The people present on the spot shifted the dead body of Abdul Shakoor to his house whereas injured Hazrat Bilal shifted to DHQ Hospital Chilas for treatment. I was present on the spot and witnessed the occurrence. I then went to police station and reported the matter to police through application Exh. PW-1/A of Police Station Tangir and on the basis of said application FIR No. 30/2008 Exh.PW-1/B was registered against the accused. The motive behind the occurrence was old enmities between the accused and injured Hazrat Bilal.

XXX BY DEFENCE COUNSEL :-

I am illiterate. It is correct that I am mamuzad brother of deceased Abdul Shakoor. PW Muhammad Azeem is mamuzad and phophizad brother of deceased Abdul Shakoor. It is incorrect that PW Mir Afzel is uncle of deceased Shakoor rather he is distant nephew of the deceased. It is correct that PW Fazal Dar is cousin of injured Hazrat Bilal. It is incorrect that there was dispute between Sheen and Yashkoon tribes over pasture namely Daniyote. About 200 people were present on the spot when the occurrence took place. It is correct to suggest that there were many impartial persons also present on the spot at the time of occurrence. There was a distance of 4/5 paces between me and the accused when the accused opened fires at Hazrat Bilal and Abdul Shakoor. It is correct to suggest that a brother of the accused has been murdered but I do not know if the said murder had committed by one Rehmatullah a brother of injured Hazrat Bilal. I do not remember the exact fires opened by accused at the time of occurrence. At the time of firing by accused, some other fires had also made by the people from the crowed but these fires were airy. It is correct to suggest that when the bullet comes out from the barrel of a gun, it could not be seen however, when it hits the target same could be seen. Although the police were present there but they could not able to arrest the accused in the spot. I do not remember if had told to police about all facts stated by me today before Court. It is correct to suggest that deceased Shakoor belong to Askary tribe and he had enmity with Akhonday tribe and due to this enmity 5/6 persons of both the tribes have been murdered. I have heard that the father of deceased had been murdered by Rahber and Gulab belonging to Akhunday tribe. It is incorrect to suggest that deceased Abdul Shakoor murdered by said Rahber and Gulab because Shakoor was trying to murder them in retaliation of the murder of his father. On the basis of my written application FIR was registered. The application Exh.PW-1/A was drafted by police present in police station. I went to police station for report directly from the place of occurrence but on foot. I alone went to police station. The fire opened by the accused was consisted of two shots one after another. One fire was landed at deceased Shakoor on left side of the neck and exited at below of the right arm. At the time of firing my back was towards Qibla and I was in standing position. Deceased Shakoor was setting at time of occurrence and his face was towards west side whereas accused was standing and his back was also towards Qibla while his face was towards deceased Shakoor and injured Hazrat Bilal. There was a distance of 2/3 paces between injured Bilal and deceased Shakoor at the time of occurrence. There was no enmity between the accused and injured Shakoor. It is incorrect to suggest that there was no enmity between the accused and injured Hazrat Bilal. It is correct that a compromise had effected between accused and injured Bilal regarding their old enmity and Bilal party had also paid Diyat to the accused party but despite the fact the accused attacked on Bilal. It is correct that after firing the people gathered there came in motion and run here and there. It is correct that the people of Tangir having enmities normal carry weapons along them. After lodging the FIR, I went back to see the death body of deceased Shakoor along with police. I do not tell the exact distance between the house of deceased Shakoor and place of occurrence, however this distance is short as compare to the distance between the place of occurrence and Police Station. The police first came in the house of deceased Shakoor and then went to the place of occurrence for inspection and where from the police went to police station. It is incorrect that at the time of lodging FIR SHO was not present. The doctor had not examined the death body of deceased Shakoor in my presence. The police personal namely Afzal who drafted application Exh.PW-1/A also came with police in the house of deceased Shakoor who belong from Tangir. Injured Hazrat Bilal had received 04 bullet injuries. At the time of occurrence it was raining. Within 10/15 minutes of the occurrence the death body was dispatched to the house of Shakoor and thereafter I proceeded to police station for report on foot and about 3:30 p.m. I reached at police station. Just my reaching at police station the application Exh.PW-1/A was drafted. It is incorrect that no fire was opened by the accused and other enemies had murdered deceased Shakoor and injured Bilal. The airy firing by the mob was continued for about 10 minutes. It is incorrect that I was not present at the spot at the time of occurrence and on the basis of information about the occurrence I lodged FIR. It is incorrect that I falsely deposed today with the collusion of complainant party. I do not remember the exact time when police reached in house of deceased."

"PW-2: ON OATH

Hazrat Bilal son of Bakhdar aged about 35 years resident of Luruk Tangir.

Stated on 17-12-2008, at about 12:30 p.m. the people of Luruk and Diamer were gathered in the disputed pasture between them namely Daniyot. Some notables of the area along with police and Ulamas were also present there so as to restrain the parties from being clashed. The notables, Ulamas and police present there got separated both the parties from each other and kept them separately. In the meantime, accused Abdul Raziq present in court opened first at me with Kalashnikov with intention to murder me. There was old enmity between me and the accused but the said enmity had settled through Jirga and I had also paid an amount of Rs.1600000/- to the accused party as Diyat but despite the fact the accused attacked on me. I received three fire shots fired by the accused and in the meantime I took shelter behind the back of deceased Shakoor who also tried to restrain the accused from the firing at me but despite the fact the accused again fired at me which landed at Shakoor who due to the said firing Shakoor died on the spot after firing at Shakoor, the accused again fired at me which landed on my right side chest and exited at back. The people gathered on the spot took me and deceased Shakoor and accordingly they shifted me to DHQ Hospital Chilas whereas the dead body of deceased was shifted to his house. I remained in DHQ Hospital Chilas for 12 days under treatment.

XXX BY DEFENCE COUNSEL:-

The skin disease (Burse) in my hands is with me before the occurrence. Accused is my co-villagers. It is correct that the sister of accused is my wedlock. It is incorrect that me and accused are visiting each other's house before the occurrence. I was available in my village throughout. I am illiterate. I had stated all facts to police in my statement as stated before Court today. (There is no mention about Kalashnikov which was holding by the accused at the time of occurrence and the presence of Ulama and notables there in his statement under section 161, Cr.P.C.). There was no enmity of mine with the accused rather my enmity was directly with first paternal cousin of the accused. The dispute over pasture Daniyot was not between Sheen and Yahskoon tribe. I do not remember the exact number of firing opened by the accused. I do not remember that if other people from the crowed had also opened airy fires at the time because I was in seriously injured condition. The people present there and the police did not try to control over the accused. At the time of firing deceased Shakoor was present in a distance of 4/5 paces from me. Shakoor was present along with other people on the spot but the remained there with me whereas the other people of the crowed ran here and there. It is correct that my brother Karimullah was murdered by one Rehmatullah but this murder was committed on 11th May, 2013 and the accused Rehmatullah is absconder. It is correct that many impartial persons were present on spot at the time of occurrence. The ancestors of deceased Shakoor had enmities with other people. It is incorrect to suggest that Shakoor was murdered by Rehbar and Gulab because Shakoor was trying to murder them in retaliation of the murder of his father. The private PWs are relatives of both the parties. PW Adil is my real brother. PW Fazal Dar is my cousin. I was in sense after receiving firing. About half an hour after the occurrence, I was shifted to Hospital. On the same day at about Esha prayers time, my statement was recorded by I.O. Abdul Ghani at DHQ Hospital Chilas. It is incorrect that the occurrence had taken place on 16-12-2008. At the time of recording my statement under section 161, Cr.P.C. Doctor Javed and 3/4 persons of Tangir were present with me. At about 4 or 4:30 p.m. I was brought in the Hospital. I do not witnessed if the police present on spot had accompanied me to Hospital. Doctor Javed examined me first. No operation was conducted on me. It is incorrect that I received no bullet injury fired by the accused. It was raining at the time of occurrence. Except the people of Tangir having enmities, the other persons do not carry guns with them. About 100/200 people were present on the spot at the time of occurrence. Pasture Daniyote is situated behind the bridge of Tangir. It is correct that if one person goes to police station from the place of occurrence he travels through village Luruk and then enters to the limits of Juglote. Except this statement I have nothing to say in this case."

7. The re-production of statements of eye-witnesses shows that there is complete coherence in between the statements of eye-witnesses and they have narrated the events in a natural way. The presence of eye-witnesses at the place of occurrence has not either been disputed or seriously challenged by the defence and nothing could be brought on record, which may be read in favour of defence, except some minor and immaterial contradiction, which are of very trivial nature. The learned trial Court has based the conviction of the appellant on the following evidence. a. Motive. b. Ocular Account. c. Recoveries.

8. The Motive was proved though PW-1 Abdul Jalil and PW-2 Hazrat Bilal, and went unchallenged. Ocular account of the incident was furnished by PW-1 Abdul Jalil and PW-2 Hazrat Bilal (injured), who both remained consistent to their statements and despite lengthy and searching cross-examination, their firm and straightforward evidence could not be shattered. The statements of the two eye-witnesses have been re-produced for the purpose of convenience. The place of occurrence, time of occurrence, the manner of occurrence has not been denied rather impliedly admitted by the defence side. One interesting factor of the case is that the accused has not taken any defence and tried to establish that the offence was not committed by the accused. The accused was arrested on 05-04-2013, after a lapse of about 04 and half year's long abscondence and it was the reasons that weapon of offence was not sent to expert for forensic test, which if sent would have been a corroboratory piece of evidence. Recovery even if excluded from the consideration, there exists an established case beyond any reasonable doubt against the accused.

9. It was a day light occurrence which took place in the presence of hundred of the people as we gathered from the prosecution evidence. The objection of the defence that no independent witness was examined by the prosecution is also devoid of any force as the general public is always reluctant to come forward and poke their nose in the affairs of others.

10. The learned trial Court has handed down the judgment after full application of judicial mind which is maintained in toto. The sentence and fine awarded under section 324, P.P.C. for causing injuries to PW-2 Hazrat Bilal is also maintained. However the benefit of section 382-B, Cr.P.C. extended by the trial Court will remain intact.

11. The Criminal Appeal No.13/2014 filed by the convict/appellant is dismissed being meritless.

12. File be consigned to record after completion.

JK/200/GB Appeal dismissed.