MUHAMMAD AJMAL vs THE STATE

' SYED DEEDAR HUSSAIN SHAH, J.---This jail petition for leave to appeal is directed against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 10-7-2001, passed in Criminal Appeal No, 62 of 2000 and Murder Reference No,11 of 2000.

2. The prosecution story, in brief, is that Iqbal Mustafa complainant lodged F.I.R. With Police Station Sadar, Rahimyar Khan, alleging therein that his family runs a Poultry Farm in the name and style of Madina Poultry Farm situated at Mauza Sultanpur, 99-Chakwali Road. On the fateful day at 1-15 p.m. The complainant alongwith his father Abdul Khaliq, was sitting in the office of the Poultry Farm and busy in their work, when all of a sudden, Saleem son of Sharif and Ajmal son of Saleem of Chak No,78/P, Tehsil Rahimyar Khan, armed with a pistol entered the poultry farm through the gate and then into the office and started admonishing his father that he should hand over the complete cash to them and if he fails to do so he would be killed. His father told the accused persons that cash had not been received, upon which the accused became excited, and his father wanted to get up to go out when Ajmal accused fired with his pistol hitting his father on the left eye, who fell down on the ground and succumbed to the injury at the spot. On hue and cry Irfan Mustafa son of Abdul Khaliq brother of the first informant and Usman Mustafa, who were already present at the poultry farm, came at the place of occurrence and overpowered Saleem at the spot, whereas Ajmal alongwith his pistol fled away, who was chased by the witnesses and others and in order to save himself he fired but luckily nobody was injured. However, the third fire missed enabling them to overpower him as well alongwith his pistol. Thereafter the accused were produced before the Police Officer, who came to the spot upon receiving the information. It was stated that a few days earlier both the accused who used to work at the said farm were terminated from their services.

3. The Investigating Officer inspected the dead body of Abdul Khaliq. He prepared the injury statement Exh.PF, inquest report Exh.PF-1 and sent the dead body for post-mortem examination.

Blood-stained piece of carpet underneath the dead body of Abdul Khaliq was taken into possession vide Memo. Exh.PJ. Projectile (Sikka) from the place of Wardat Was also taken in possession. A crime empty P-7 was also taken in possession from the place of occurrence. Iqbal Mustafa, complainant, produced a .30-bore pistol (P-4) and two live rounds P-5(1-2) on 26-7-2000, which were snatched from Ajmal petitioner. The accused were arrested.

4. The accused denied the charge, pleaded not guilty and claimed a trial. The prosecution in order to substantiate its case examined 13 witnesses.

5. The trial Court vide its judgment dated 31-10-2000 convicted the petitioner and co-acccused Muhammad Saleem under sections 393/34, P.P.C., and sentenced them to 7 years' R.I. And a fine of Rs,20,000 each, in default of payment of fine to further undergo 1/1-2 years' S.I. Both the accused were further convicted under section 302/34, P.P.C. And Muhammad Ajmal was sentenced to death and ordered to pay Rs,1,00,000 as compensation, under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default of payment of compensation he was directed to further undergo six months' S.I. Whereas Muhammad Saleem was sentenced to imprisonment for life and also to pay a sum of Rs,1,00,000 as compensation, to the legal heirs of the deceased, or in default thereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended and the sentences were ordered to run concurrently.

6. Both the convicts filed appeal in the High Court. The learned Division Bench vide its judgment dated 10-7-2001 set aside the conviction and sentence awarded to Muhammad Saleem co- accused and acquitted hm. As the prosecution failed to prove case of robbery against the petitioner as well as co-accused, therefore, they were acquitted of the charge under section 393/34, P.P.C. However, the appeal to the extent of Muhammad Ajmal petitioner was dismissed and conviction and sentence awarded to him by the trial Court were upheld. Hence, this jail petition.

7. Learned counsel for the petitioner, inter alia, contended that the petitioner has been falsely implicated in the case; the evidence so adduced by the prosecution is not trustworthy; the High Court has already acquitted Saleem co-accused, the story about the robbery was also disbelieved, therefore, leave to appeal may be granted.

8. We have considered the arguments of the learned counsel for the petitioner and have minutely examined the record. So far the case of Saleem co-accused is concerned, it was quite different and distinguishable from the case of the present petitioner. Saleem was not attributed any part of firing at the deceased, whereas active part of firing at the deceased had been attributed to Muhammad Ajmal petitioner. Empty secured from the Wardat was also sent to the Director, Forensic Science Laboratory, thereafter a .30 bore pistol P-4 was also taken into possession from the petitioner alongwith two live rounds P-5(1-2), which were also taken into possession vide recovery memo. (Exh.PH). Public Prosecutor through statement submitted report of the Forensic Expert (Exh. PP) wherein it was opined that both the crime empties, one taken from the spot and the other found in the chamber of the pistol, were fired from the pistol which was recovered from Ajmal appellant at the time of his arrest. Dr. Muhammad Asim, Medical Officer, Sheikh Zayed Hospital, Rahimyar Khan, who conducted the post-mortem of the dead body of Abdul Khaliq, found the following injuries on the person of the deceased:-- "(1) A lacerated wound (entry wound) of size 1/1-2 x 1/1-2 c.m. Semi circular on medical canthus of left eye and on bridge of left side of nose. Margins were inverted, blackening present around the wound.

(2) A lacerated wound of 1/1-2 x 2 c.m. On back of left chest in 5th intercostal space, margins were averted (exit wound)."

' In the opinion of the doctor death of the deceased was due to fire-arm injury which damaged the arch of aorta and other vessels leading to severe heamorrhage, and the injury was sufficient to cause death in the ordinary course of nature.

9. The plea of the petitioner is that on the fateful day he had gone to Madina Poultry Farm to get his salary from Abdul Khaliq deceased, dispute took place between him and the deceased, who abused him, whereupon the petitioner gave him slap and both grappled with each other, whereupon Iqbal Mustafa complainant came there and saw Abdul Khaliq grappling with the petitioner he felt his disgrace and became furious and fired at the petitioner, which hit his father and the complainant falsely involved him in this case. This plea of the petitioner is afterthought. He had not said so before the police at the time of interrogation and the same story was rightly disbelieved by the trial Court and the High Court with sound and convincing reasons. The trial Court has watched veracity of the witnesses which were rightly believed by it. The prosecution witnesses had no enmity, malice or against the petitioner and his substitution in place of real culprit is rare phenomena. The petitioner in his own statement admitted his presence and apprehension at the spot but he twisted the matter that he did not fire at the deceased but Iqbal Mustafa intended to fire at him which unfortunately hit his father, which is totally a false defence. The petitioner has caused brutal death of an innocent person without any reason. The Courts below have very properly considered the evidence. The impugned judgment is based on the principles laid down by this Court for safe administration of criminal justice, which does not call for interference. There is no misconstruction of law, misreading or non-reading of evidence.

10. For the facts and reasons hereinabove, there is no substance in this petition, which is dismissed and leave declined.