' SYED HUSSAIN MAZHAR KALEEM, J.---The above titled appeals have been directed against the order of District Court of Criminal Jurisdiction, Mirpur 'dated 15-12-2003, whereby Faisal Shabir appellant in Appeal No,05/2004 was convicted under section 324, A.P.C. And was awarded 7 years'
R.I. Rs,10,000 fine and 2 years' R.I. With,Rs,5,000 fine under section 337, A.P.C. Begh Hussain was convicted and sentenced 7 years' R.I. With Rs,10,000 fine under section 324, A.P.C. And 2 years' R.I.
With Rs,5,000- Daman under section 337, A.P.C. He was further awarded Rs,5,000 fine under section 427, A.P.C. However they were acquitted of the charges under section 302/34, A.P.C.
2. The Appeal No,05/2004 has been filed by Bagh Hussain and Faisal Shabir against the order of conviction while the other Appeal No,04/2004 has been filed by the complainant and legal heir of the deceased for enhancement of sentence and also to convict them under section 302/34, A.P.C.
3. Brief facts leading to the background of the appeals are that a case under sections 302/324, 337, A.P.C. Was registered against appellants and two others at Police Station, Mirpur on the complaint of Umer Farooq. It was reported that complainant was a resident of Sector F/3. On 3-2-1998 at about 9-30 p.m. He along with his brother Qamer Zaman came back to home in his Car No,8886- AJKC after making a call to his sister, living in England. There he saw Shabir Hussain, Bagh Hussain, Abdul Hussain and Faisal Shabir, armed with .12 bore gun, Iron rod and sticks. As the complainant and his brother came out of the car they attacked and started beating them. On hue and cry Tahir Ali cam out of the house. Shabir Hussain fired with .12 bore gun- at Qamer Zaman which hit him at left side of his chest who fell down. Faisal. Shabir caused injury at Tahir Ali with an iron rod. Bagh Hussain and Abdul Hussain were alleged to have given beatings to the complainant with stick.
Qamer Zaman was taken to D.H.Q. Hospital where he succumbed to the injuries. Motive behind the occurrence was a dispute over a plot. The complainant party placed a cage over there which was removed by the accused persons to occupy the plot.
4. After completion of the investigation the challan was submitted before District Court of Criminal Jurisdiction, Mirpur against Shabir Hussain, Faisal Shabir, Bagh Hussain and Abdul Hussain of commission of offences under sections 302/324, 337/34, A.P.C. And 13/20/65, Arms Act. During proceedings Shabir Hussain absconded and was proceeded under section 512 Cr.P.C. While Abdul Hussain died before conclusion of the trial. The trial Court convicted Bagh Hussain and Faisal Shabir under sections 324/337, 427, A.P.C. And 13/20/65 A.A. However, they were acquitted of the charge under section 302/34, A.P.C. Through the impugned judgment. Hence the above titled appeals.
5. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
6. Learned counsel for the appellants argued that an enmity was prevailing between the parties due to a dispute over a piece of land adjacent to the house of Shabir Hussain accused which was in their possession. The complaint party placed a cage over there to occupy but it was removed by the accused appellants which was the cause of enmity between them. He pointed out that the occurrence took place during dark hour of the night. Identification of the accused was in doubt, particularly it was impossible to witness the rate played by each of the accused persons. The appellants were innocent and were roped in a false case by the complainant and prosecution witnesses. He further argued that according to the statement of complainant the application Exh.PA was written in hospital and it was handed over to the Police patrol party which came there after being informed about the occurrence. Irfan Saleem Si-I. Who received the application wrote a note on its back which shows that while handing over the application the complainant told that he suffered minor internal injuries and needs no treatment. Later on with the connivance of P.W.
Doctor, a false medical report Exh. PR pertaining to the complainant was obtained to establish his presence at the place of occurrence. He contended that Faisal Shabir was ascribed the role of causing injury on the head of Tahir Ali and was not attributed any overt act towards the deceased.
Begh Hussain and Abdul Hussain were alleged to have given beatings to the complainant and the deceased, therefore, it was not possible for prosecution witnesses to perceive correctly that who caused blunt injury at the person of the complainant and the deceased. He emphasized that the case against the convict appellants was highly doubtful. Only Shabir Hussian was alleged for firing at the deceased as they were not attributed any overt act towards the deceased and there is nothing on record to prove that they shared intention with the principal accused. According to learned counsel ocular version was highly doubtful and it was not supported by any Independent corroborative material. Medical reports pertaining to the injured persons were fictitious. The statements of eye-witnesses were full of contradictions and even otherwise the deposition made by inimical and interested witnesses in absence of any corroborative material was not worth consideration. He submitted that the trial Court failed to appreciate that the prosecution version was not confidence inspiring and there was no justification to convict the appellants by putting reliance on the same, therefore, by accepting the appeal they may be acquitted of the charge and appeal filed by the complainant may also be dismissed.
7. On the other hand, the leaned counsel for the complainant argued that the convict appellants and two others were nominated in promptly lodged F.I.R. Identification of accused persons was not in doubt as the parties were known to each other. The role played by each of them, motive and the manner in which the occurrence took place were described by the eye-witnesses. According to him Plot No,358-A situated in sector F/3 part I was allotted in favour of the deceased while the accused persons who had been trying to take possession of it nourished a grudge against the deceased and committed the offence. The learned counsel contended that on 3-2-1998 at 9-30 p.m. The accused person way laid and as the deceased came at the place of occurrence Shabir Hussain fired at him with .12 bore gun while the. Others inflicted blunt injuries at the person of the complainant, deceased and P.W. Tahir Ali. The allegations against the convict appellants were corroborated by recovery of iron rod and stick at their instance and it was further supported by medical reports pertaining to the injured persons. He submitted that prosecution proved its case against the convict appellants beyond any doubt. The trial Court rightly observed that they were guilty of the offence under sections 324/337, 427, A.P.C. But committed an error while awarding lesser punishment to the convicts, therefore, the same may be enhanced in accordance with law.
The learned counsel further submitted that the offence was committed in furtherance of common intention and the convict appellants were also guilty of the offence under section 302, A.P.C. Thus there was no lawful justification to acquit them of the charge, therefore, by accepting the appeal filed by the complainant and legal heirs of the deceased, the appellants may be convicted under section 302/34, A.P.C.
8. The learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
9. I have heard the learned counsel for the parties and gone through the record of the case.
10. The prosecution story as appears from the evidence that on 3-2-1998, the complainant and his brother Qamer Zaman, after making call to their sister living in Engalnd who had come back to home, in Car No,AJKC-8886. There they saw Shabir Hussain, Faisal Shabir, Bagh Hussain and Abdul Hussain, armed with .12 bore gun, iron rod and sticks. As the complainant and his brother came out of the Car they attacked and started beating them. On hue and cry Tahir Ali came out of the house.
In the meantime Shabir Hussain fired at Qamer Zaman with .12 bore gun which hit him at the left side of his, chest and he fell down. The complainant and Tahir Ali nlshed towards the deceased.
Upon this Faisal Shabir gave a blow with iron rod at the head of Tahir Ali while Bagh Hussain and Abdul Hussain started beating the complainant and the deceased with sticks.
11. It may be mentioned here that during trial Abdul Hussain accused had died while Shabir Hussain accused absconded and was proceeded under section 512, Cr.P.C. On conclusion of the trial, the Court convicted Faisal Shabir and Bagh Hussain under sections 324/337,427, A.P.C. While they were acquitted of the charge under section 302/34, A.P.C.
12. Motive behind the occurrence was that Plot No,358-A was allotted in favour of Qamer Zaman and they placed a cage over there which was removed by the accused person. According to the prosecution case the convict appellants and others were inimical towards the complainant party due to allotment of abovementioned plot. A perusal of the site plan Exh.PN shows that the accused persons were residing in House No,358-A and adjacent lapd measuring 15x60 feet towards the south of the house was also included in it. It is interesting to note that the disputed place was shown at point No,9 but Plot No,358-A was not mentioned in the site plan Exh.P.N. The claim of the prosecution regarding removal of the cage from the disputed land and its placement in front of house of complainant was not supported by the site plan as it was shown to be placed at Point No,7 adjacent to the compound wall of House No,358.
13. A perusal of the prosecution evidence Clearly indicates that on 3-2-1998 at 9-30 p.m. As the complainant and Qamer Zaman came out of their Car, the accused persons started beating them.
On hue and cry, P.W. Tahir Ali came out and Shabir Hussain fired at Qamer Zaman with .12 bore gun which hitting him at his chest who fell down. The complainant and Tahir Ali rushed towards the deceased, upon this Faisal Shabir inflicted injury at the head of Tahir Ali while Bagh Hussain and Abdul Hussain started beating the complainant and the deceased with sticks. Thus it becomes clear that Faisal Shabir was ascribed a role of causing injury at the head of P.W. Tahir Ali while Bagh Hussain and Abdul Hassain were alleged for beating the complainant and the deceased. The allegation was supported by medical reports Exh.PT and Exh.PR and it was further supported by recovery of iron rod and stick at the instance of the convict appellants. Therefore, I am of the view that ocular version supported by incriminating material to the extent of the convict appellants was confidence inspiring and the trial Court did not commit any error while convicting them.
14. It may be mentioned here that the occurrence was not premeditated as no evidence regarding any conspiracy was brought on record. The parties wefe neighbours and due to hostile relations the occurrence took place. The presence of the convict appellants did not amount to waylaid.
Faisal Shabir was not attributed any overt act towards the deceased. The allegation of beating to the deceased against Bagh Hussain was doubtful and there was nothing on record to establish that they shared intention with Muhammad Shabir (absconder) alleged for firing at the deceased, moreover according to Exh.PW and Exh.PY Muhammad Shabir accused and Abdul Hussain (who died during trial) also sustained injuries during the occurrence but the same were suppressed by the eye-witnesses, therefore, the possibility of free fight between the parties cannot be ruled out.
15. In light of the facts listed above, I am of the view that the case of the convict appellants was not proved under section 302/34, A.P.C. The trial Court has rightly considered the role played by each of them, therefore, the impugned judgment in accordance with law needs no interference.
16. The upshot of above discussion is that finding no force in the appeals, these are hereby dismissed.