MUHAMMAD SARWAR vs THE STATE

1. Muhammad Sarwar son of Muhammad Hanif has challenged judgment dated 30-9-2000 passed by learned Additional Sessions Judge. Sargodha whereby he was convicted under section 302(b), P.P.C. for commission of murder of Munir Ahmad and sentenced to imprisonment for life and was also directed to pay Rs . 100 , 000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof he had to undergo six months' S.-.I. Benefit of section 382.-B, Cr.P.C. was also extended to the appellant. Through the same judgment Arshad co-accused was acquitted of the charge.

2. Briefly the facts of the prosecution case are that F.I.R. No,454 (Exh.P.F.) was registered at Police Station Sillanwali on 16-11-1998 at 4-00 p.m. with Muhammad Sher, S.-I. P.W. 10 by Anayat Hussain P.W.4 with the allegation that the complainant is resident of Chak No,187/SB. His elder son Muhammad Hussain runs a mutton shop adjacent to the PCO pole. Munir Ahmad younger son of the complainant also runs a retail shop in the same bazar and on the fateful day at about `Peshiwela' Munir Ahmad was present on the mutton shop of his 'brother and Arshad accused came there and climbed over the pole in order to fly his pigeon. Munir Ahmad objected to his climbing over the pole, on which, altercation took place between Arshad accused and Munir Ahmad. On the same day which was 16-11-1998, at about 1-30 p.m. Munir Ahmad was present on his retail shop when Arshad empty-handed and Muhammad Sarwar (appellant) armed with pistol arrived there. Arshad called Munir Ahmad from his shop and dragged him to the open road and Muhammad Sarwar accused after raising Lalkara tht they had cbme to teach him lesson fired a pistol shot hitting Munir Ahmad on his chest. Munir Ahmad fell down on the ground and succumbed to the injury. The occurrence was witnessed by the complainant Anayat Hussain, Muhammad Hussain P.W.5 his other son and one Muhammad Sharif (not produced).

3. Muhammad Sher, S.I P.W.10 after registration of the case arrived at the spot and took the dead body of Munir Ahmad into possession and prepared injury statement through memo. Exh.P.0 and inquest report Exh.P.D and dispatched the dead body for post-mortem examination through Muhammad Amjad, FC. He also took into possession blood-stained earth from the spot through memo. Exh.P.G, recorded the statements of the P.Ws. under section 161, Cr.P.C. On 17-11-1998 last- worn clothes of the deceased were produced before him which were taken into possession through memo. Exh.P.A. On 18-11-1998, he sot prepared the site plan of the place' of occurrence.

4. Thereafter the investigation of the case was entrusted to Wajid Hussain, P.W.8 who on 17-12-1998 arrested Muhammad Sarwar appellant, who on 18-12-1998 led to the recovery of pistol P.4 and 5 live bullets P.5/1-5 which were taken into possession through memo. Exh.P.J. After completion of investigation, challan of the case was submitted. The trial Court framed the charge, which was denied by the accused, and they claimed the trial.

5. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused.

6. The medical evidence was furnished by Dr. Javed Khalid Mehmood, who on 17-11-1998 at 9-30 a.m. had conducted the post-mortem examination on the dead body of Munir Ahmad and found the following injuries:-- (1)A fire-arm wound of entry 1/2 x 1/2 c.m. on right side front of chest in lower area 3 c.m. from midline and 6 c.m. from nipple corresponding holes present on shirt and vest.

7. (2)Fire-arm wound of exit 1-'/2 x 1-1/2 c.m. outer side of left lower flank 19 c.m. below from left axial and 14.5 c.m. from left nipple.

8. The ocular account was furnished by Anayat Hussain P.W.4 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive for the occurrence. Muhammad Hussain son of Anayat, brother of the deceased was examined as P.W.5 who was also eye-witness of the occurrence. He also narrated the prosecution story as an eye- witness of the occurrence. His statement is in line with the statement of Anayat Hussain P.W.4.

9. Muhammad Amir S.-I. P.W.7 also partly investigated the case. The remaining witnesses are of formal nature and need not to be discussed.

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

11. The statement of the accused/appellant was recorded- under section 342, Cr.P.C. towards the end of trial. He denied the allegation and claimed his innocence and false involvement and to question No,6 as to why the case against him and the P.Ws. deposed against him, he replied that P.Ws. have made false statements and he has been falsely implicated under the influence of Shaukat P.W. due election rivalry.

12. The trial culminated into conviction of the accused as mentioned above, who has challenged his conviction and sentence through Criminal Appeal No,1523 of 2000.

13. The complainant has filed Criminal Revision No,72 of 2001 for enhancement of sentence. Both the matters are being decided by this judgment. Appeal No,1525 of 2000 challenging the acquittal of co-accused was dismissed by a Division Bench on 8-2-2001.

14. Learned counsel for the appellant has argued that ,Anayat Hussain P.W.4 and -Hussain ussain P.W.5 were not the witnesses of the motive and this fact has also been admitted by them; that the occurrence took place at the spur of the moment and in order to save Arshad accused, the appellant fired in his self-defence, therefore, the conviction against the appellant is not legal; that the witnesses are closely related inter se and to the deceased; that the prosecution has not been corroborated from any independent source, therefore, the appeal of the appellant be allowed and he be acquitted of the charge.

15. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. Learned counsel for the complainant has also prayed for enhancement of sentence of Muhammad Sarwar.

16. Heard. Record perused.

17. The appellant was nominated accused in promptly recorded F.I.R. It was a daylight occurrence.

18. There is no question of false implication or substitution and mistaken identity. Although Anayat Hussain P.W.4 who is complainant of the case is farther of the deceased while Muhammad Hussain is real brother of the deceased but mere their relations inter se or with the deceased is no ground to discard their testimony as they have noprevious enmity against the accused/appellant for his false implication. They were the natural witnesses. They stood to the test of lengthy cross- examination but nothing was brought out favourable to the accused / appellant. The ocular account furnished by both the witnesses has been corroborated by medical evidence. The defence plea seems to be afterthought. Anayat Hussain P.W.4 and Muhammad Hussain P.W.5 even were not witnesses of the motive part of the occurrence, benefit has already been extended in favour of the appellant by awarding him lesser penalty, therefore, after deep reappraisal of evidence I find no reason to interfere in the conviction recorded against the appellant or the sentence awarded. In view of what has been stated above, the appeal is dismissed. The conviction and sentence of the appellant is maintained. Benefit of section 382-B, Cr.P.C. will be available to him.

19. Criminal Revision No,72 of 2001 filed by the complainant is also dismissed having no force.