RIAZ AHMED vs THE STATE

' WALL MUHAMMAD KHAN, J.---Riaz Ahmad, petitioner herein, calls in question the judgment dated 2-5-1993 passed by a learned Single Judge of the Lahore High Court, whereby Criminal Appeal No,43/87 filed by him along with Fateh Sher, his co-convict, against their conviction and sentences under section 302/34, P.P.C. Awarded by the learned Sessions Judge, Toba Tek Singh for the murder of Atta Muhammad deceased and attempting at the lives of Nawab Khan, Muhammad Afzal and Fazal P.Ws., was partly accepted, Fateh Sher was extended the benefit of doubt and acquitted while the appeal of Riaz Ahmed petitioner was dismissed.

2. The facts of the case, briefly stated, are that the complainant Nawab Khan P.W.8, resident of Chak No,202/JB P.S. Nawan Lahore, Tehsil Gojra, was owner of 72 Canals of agricultural land in the area of Chak No,332 in the same Police Station which was being cultivated by his tenants. On 6-9- 1985, at morning time, he along with Atta Muhammad deceased, Atta Muhammad son of Modai and Fazal went to the house of Muhammad Afzal P.W.9 at Chak No,332/JB where there was exchange of fire between Sarfraz Ahmed and Muhammad Saeed on the one hand and his brother Muhammad Akram on the other on account of some party friction. Fateh Sher acquitted accused was also involved in that enmity who started firing from school but through the intervention of the villagers, firing was stopped and luckily nobody was hurt. The complainant alongwith his companions named above, were returning to their village at about Peshiwela and when they reached near Killa No,22 Square No,27 belonging to Mushtaq son of Wali Muhammad, Riaz Ahmed petitioner along with Fateh Sher both armed with 7-mm rifles and their acquitted co-accused armed with 12 bore guns emerged from the nearby sugar-cane field and opened attack on the complainant party. Riaz Ahmed fired a shot at Atta Muhammad hitting him on his Chest. His companions also fired at the complainant party with their respective weapons but nobody was hit.

This attracted many people to the spot which made the accused party run away towards Chak No,332/JB. Atta Muhammad deceased died on the spot. The motive for the offence was old enmity between the parties on account of blood-feud and also on account of Atta Muhammad deceased having set on fire the 'dhari' accused's sister 2/3 months prior to the instant tragedy. On the report of Nawab Khan complainant, the case was registered on the same day at 5-30 p.m.

' The same day, the complainant made a supplementary statement in which he alleged that Riaz Ahmed petitioner was armed with gun and not with rifle inadvertently mentioned by him in the F.I.R.

After the usual investigation of the case, the accused were put on trial before the learned Sessions Judge, who , after recording the evidence produced by the prosecution, statement of the accused under section 342, Cr.P.C. Vide his judgment dated 17-1-1987, convicted Riaz Ahmed petitioner and Fateh Sher (acquitted accused) under section 302/34, P.P.0 and sentenced diem to life imprisonment and fine of Rs,1000 each or in default on year R.I. Each and also to pay compensation of Rs,15,000 each to the heirs of the deceased or in default to suffer further six months S.I., under section 544-A, Cr.P.C. They were, however, acquitted of the charge under section 148/307, P.P.C. And their co-accused also acquitted. Riaz Ahmed petitioner and Fateh. Sher challenged their conviction and sentence before the High Court where the appeal of Fateh Sher succeeded but that of the petitioner dismissed. Hence the instant petition for leave to appeal.

' We have heard Mr. Asghar Ali, Advocate, for the petitioner and have perused the record of the case.

3. The learned counsel for the petitioner reiterated submissions made by him and recorded in the impugned judgment in para.9, and submitted that in view of the blood-feud and enmity between the parties, the conflict between the medical evidence and ocular account of the occurrence and absence of any independent corroboration coupled with the fact that Muhammad Afzal P.W.9 who was considered as an independent witness by the Courts appeared before the Investigating Officer after 20 days of the occurrence for recording statement under section 161, Cr.P.C., the prosecution had miserably failed to establish the guilt of the accused beyond reasonable doubt but the learned trial Court extended the benefit of doubt to only three of the accused and acquitted them while the learned High Court considering the case of Fateh Sher also not free from doubt exonerated him of the charge but without any substantial reasons refused to extend the benefit of doubt to the petitioner. He further argued that the .Same tainted evidence could not corroborate other piece of tainted evidence under the law for holding the petitioner guilty for the murder of the deceased. He also vehemently contended that the complainant in his F.I.R. Attributed firing role to the petitioner with 7-mm rifle but finding that this charge levelled by him did not fit in with the medical evidence, he gave supplementary statement arming the petitioner with the gun which per se establishes his non-presence at the spot.

4. We have minutely considered the submissions made by the learned counsel in the light of the evidence recorded and the reasoning advanced by the two Courts below in support of their sifting the grain from the chaff and extending the benefit of doubt to some of the accused as a matter of abundant caution and convicting the petitioner but could not find any legal error, misreading or non-reading of evidence to justify interference with the concurrent finding of fact arrived at by the two Courts below.

6. Resultantly, finding no merit in the instant petition, the same is dismissed and leave to appeal is refused. However, the petitioner shall avail of the benefit of section 382-B, Cr.P.C.