This judgment will dispose of Criminal Appeal No. 1159 of 2003 filed by Zafar Iqbal appellant who was convicted under Section 302 PPC and sentenced to imprisonment for life and to pay Rs.
50,000/- as compensation to the legal heirs of the deceased by learned Addl: Sessions Judge, Gujranwala vide his judgment dated 27.5.2003.
2. Briefly stated the case of prosecution is that on 17.5.2001 at 6.00 p.m. the complainant alongwith Muhammad Bashir, Akhtar Mahmood and Ansar were returning from their dera to their house and when covered a distance of four acres near Sem Nallah, suddenly Munawar, Zafar Iqbal and Muhammad Aslam armed with 12 bore guns came there. Zafar Iqbal raised lalkara that do not spare them and kill them, upon which Munawar fired-a shot with his gun at the complainant who took shelter and was rescued. Thereafter Zafar Iqbal fired a shot with gun at Akhtar Mahmood, which hit on the left thigh backside of Akhtar Mahmood. Muhammad Aslam also fired with his gun, which also hit Akhtar Mahmood on his left thigh, The complainant, Muhammad Bashir and Ansar Mahmood beseeched the accused and the accused fled away from the spot after raising lalkaras.
The complainant had stated that the occurrence had taken place on the instigation of Muhammad Mansha son of Murad Bukhsh.
3. The motive behind the occurrence was a dispute of land between the parties. Akhtar Mahmood was removed to Civil Hospital, Qila Dedar Singh who was referred to DHQ Hospital Gujranwala. The doctor at Gujranwala has referred the injured to Mayo Hospital Lahore, where he died.
4. Javaid Iqbal ASI took over the investigation of this case. On 18.5,2001 on the application Ex.PJ of complainant he recorded FIR Ex.PJ/1, visited the place of occurrence, recorded the statement of Akhtar Mahmood injured PW on, 19.5.2001 in Mayo Hospital Lahore vide memo Ex. PK. On the next day Akhtar Mahmood died in the hospital, he prepared inquest report Ex.PL. Then the investigation of this case was entrusted to Riasat Ali Inspector. On 31.5.2001 he arrested Aslam accused who while in police custody led the recovery of 12 bore gun which was taken into possession vide memo Ex.PG. On 17.7.2001 he arrested Muhammad Mansha accused and on 24.8.2001 he also arrested Munawar Hussain accused. He obtained warrant of arrest of Zafar Iqbal accused and then the investigation was transferred. Then the investigation of this case was entrusted to Muhammad irshad S.I. On 20.11.2002 he arrested Zafar Iqbal accused who while in police custody led to the recovery of 12 bore gun which was secured vide memo Ex.P.Q. After completion of investigation all the accused were sent to face the trial.
5. The prosecution in order to prove its case produced as many as 15 PWs. Learned SPY after tendering in evidence report of Chemical Examiner Ex.PR, report of Serologist Ex.PS and that of Forensic Science Laboratory Ex.PT and Ex. PU closed the case of prosecution. The statements of the accused under Section 342 Cr.P.0 were recorded in which they pleaded their innocence. After conclusion of trial Zafar Iqbal accused/appellant was convicted and sentenced as stated above while remaining accused were acquitted by learned trial Court.
6. Learned counsel for the appellant in support of this appeal submits that there is a delay of 25 hours in lodging the FIR; that complainant has stated in his cross-examination that Zafar Iqbal, appellant/accused and Aslam and Munawar (acquitted accused) were at a distance of 4 feet and distance between barrel of gun and injured/deceased was 3/4 feet at the time of firing, while taking into consideration this situation there should have been blackening on the person of deceased which is not available; that the recovery is of no consequence because no crime empty was recovered from the place of occurrence; that motive always is considered to be a double edged weapon; that complainant had admitted during cross-examination that firstly he had purchased the land but later on stated that it was on lease with him; that complainant could not state that how much amount was paid for getting the lease of the land or purchasing the land; that all the three PWs were beneficiary and they had forcibly occupied the land of the accused party; that just after the occurrence ten other persons also reached at the place of occurrence; that PTV-8 had stated, that he had brought the car but he could not tell the colour of car in which the - injured was taken to the hospital; that according to prosecution case, the occurrence took place at 6.00 p.m., he reached. at BHU Qila Didar Singh at 7.00 p.m and further submits that had the complainant been present at the place of occurrence, he could have told the distance of the accused from the deceased. He has referred to the statement of PW-10 Javaid Iqbal ASI why had stated that he, had reached the place of occurrence at 7.15 p.m. on the day of occurrence; that there is no independent corroboration to the statements of these eyewitnesses who are closely related to the deceased; that there is no mention in the site-plan where the accused were standing; that prosecution has failed to prove its case against the appellant.
7. On the other hand learned APG assisted by learned counsel for the complainant who had filed Crl. Revision for enhancement of sentence submits that in the FIR the fatal injury is attributed to Zafar Iqbal and none other; that since the registration of FIR till the conclusion of trial by learned Addl: Sessions Judge, eye-witnesses stated that this injury was caused by Zafar Iqbal appellant; that this injury was responsible for the death of deceased; that there is dying declaration of the deceased Ex.PK which was recorded on 19th May 2001; that in dying declaration the deceased had specifically stated that the said injury was attributed to Zafar Iqbal appellant; that dying declaration was recorded after the opinion of doctor; that as, far as delay of FIR is concerned, that has been properly explained because first of all deceased was taken to BHU Qila Didar Singh, then to DHQ Hospital Gujranwala and thereafter deceased was referred to Mayo Hospital Lahore because he was in precarious condition; that due to bad condition of the deceased, it was duty of the complainant first of all to save the life of deceased; that except land dispute there was no enmity between the parties; that there is no reason to falsely implicate the accused in this case. He has referred Syed Hamid Mukhtar Shah vs. Muhammad Azam and 2 others (2005 SCM R 427) and that the prosecution has proved its case beyond any shadow of doubt. Learned APG submits that Dr. Ahmad Kamal PW-6 noticed charring on the injury.
8. I have heard learned counsel for the parties. The occurrence had taken place on 17.5.2001, matter was reported to the police on the very next day through an application dated 18.5.2001 at 6.40 p.m., the distance between the police station and place of occurrence was 5 miles. In all there are three accused namely Munawar, Zafar Iqbal and Muhammad Aslam. According to FIR, Zafar Iqbal accused raised lalkara upon which Munawar accused fired a shot with 12 bore gun at the complainant, which did not hit him. Then Zafar Iqbal accused fired a shot with 12 bore gun at Akhtar Mahmood deceased which hit him on the back side of thigh of the deceased. Muhammad Aslam accused also fired with 12 bore gun, which also hit on the same place of the deceased. Munawar Hussain did not cause any injury to any person. The deceased in this case is Akhtar Mahmood.
Muhammad Arshad PW-9 is complainant who is real brother of the deceased. Ansar Mahmood PW-8 is first cousin of the deceased. The prosecution has given up Bashir PW. Though the occurrence took place on 17.5.2001 but Zafar Iqbal appellant was arrested by the police on 20.11.2002. He while in police custody got recovered 12 bore gun.
9. First of all I would like to discuss the case regarding delay in lodging the FIR. The deceased was injured on 17.5.2001 at 6.00 p.m. and he was taken to BHU Qila Didar Singh and he was taken to DHQ Hospital Gujranwala in a precarious condition and was referred to Mayo Hospital Lahore due to his bad condition where he was operated upon. In this case three doctors have appeared. Dr. Ghulam Sarwar M.O PW-3 got medically examined Akhtar Mahrnood deceased in an injured condition on 17.5.2001 at 7.30 p.m. Dr. Ahmad Kamal PW-6 medically examined Akhtar Mahmood on 18.5.2001 and thereafter Dr. Suleman Rahim M.O DHQ Hospital Gujranwala PW-15 conducted the postmortem examination on the dead body of the deceased. Due to injury caused by the appellant the left leg of deceased was amputated from his thigh.
10.The motive was that there was a dispute between the parties. In one way or the other it has been brought on record even in the trial that there was a dispute over the land which was taken by the complainant party from accused party. So it is an admitted fact that there was a dispute of land between the parties. Both the eye-witnesses have no previous enmity against the accused party in this regard. As far as contention raised by learned counsel for the appellant that there was no blackening on the injury of the deceased. Dr. Ahmad Kamal Registrar PW-6 had stated it was firearm injury and there was charring on the said injury. Both the eye-witnesses have fully supported the prosecution version in this regard. The fatal injury is attributed to the appellant and then there is an independent corroboration against the appellant. After the occurrence the appellant had become fugitive from law for 1 1/2 years. One of the Investigating officer had stated that he had obtained warrant of arrest of the appellant but later on investigation was transferred from him but fact remains that he was a proclaimed offender and remained fugitive from law for about one year and five months. Ocular account in this case is fully corroborated by medical evidence coupled with the fact that being long abscondence of the appellant, then there is dying declaration of deceased, which is Ex.PK. The only fatal injury is attributed to the appellant. So taking into consideration all the above facts and circumstances of the case I am of the opinion that prosecution has proved its case against the appellant beyond any shadow of doubt. Thus the appeal fails and is hereby dismissed.
11.As far as enhancement of sentence is concerned, learned Judge has given two reasons in his judgment regarding imprisonment for life, that injury was on left thigh of the deceased which is not vital part of the body and he has not repeated the fire shot, I would not like to interfere in the impugned judgment. Learned Judge has convicted the appellant under Section 302 PPC which is totally incorrect because it is a under Tazeer and not under Qisas. Thus I convert the conviction and sentence from 302 PPC to 302 (b) PPC with benefit of Section 382 (b) Cr.P.C.