Tahir Farooq appellant was tried by Hakim Syed Akhtar Irshad, Sessions Judge, Attock in case FIR No, 11 dated 26.1.2004 for offence under Section 302 PPC registered at Police Station Jand District Attock for committing Qatal-i-Amd of Aqeel Hussain son of Muhammad Riaz. The learned trial Court vide its judgment dated 26.5.2004 convicted the appellant under Section 302-B PPC and sentenced to imprisonment for life with compensation of Its. 2,00,000/- and in default thereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended to him.
2. Briefly stated the prosecution case as narrated by the complainant Muhammad Riaz in FIR Ex.PG are that his son Aqeel Hussain student of 1st year was studying in the Baithak while the complainant, his family members, Abdul Ghaffar and Ghulam Akbar PWs his close relatives were in the house when they heard noise in the lane at 3.30 p.m. All the three persons came out of the house and saw that lkram-ul-Haq had caught hold of Aqeel Hussain and in their view Muhammad Tahir gave a Churn blow which landed on right side of the neck of Aqeel Hussain who fell down on the ground and succumbed to the injury at the spot. Both the accused fled away frpm the scene while waiving the Churn.
3. Motive as alleged by the complainant was that Muhammad Tahir accused has suspected illicit liaison of Aqeel Hussain with her sister.
4. After, registration of case Muhammad Amir Khan S.I. PW-10 visited 'the place of occurrence. He took into possession dead-body of Aqeel Hussain deceased, prepared injury statement and inquest report Ex PD, secured blood-stained earth from the place of occurrence vide memo. Ex.PF.
He arrested both the accused on 30.1.2004 and got recovered blood-stained Churn P-5 on the pointation of Tahir Farooq accused on 5.2.2004 vide memo. Ex.PE. After due investigation the accused were challaned to face the trial Ikram-ul-Haq accused being juvenile, his case was separated from the cast of appellant.
5. The accused was charged sheeted to which he pleaded not guilty and claimed for trial.
6. The prosecution in order too prove its case and bring the charge home to the accused, examined 10 witnesses in all.
7. Dr. Zafar Iqbal PW-5 on 26.1.2004 conducted autopsy on the dead of Aqeel Hussain and noted an incised penetrating wound 2.2 x 1 CM on left side of the neck. Left carotid artery was out According to Medical Officer death was due to injury leading acute hemorrhage shock Learned DDA tendered in evidence reports of Chemical Examiner Ex.PJ and PK and Serologist Ex.PL and Ex.PM and closed the case of prosecution. The accused in their statements under Section. 342 Cr.P.C. professed his innocence and pleaded false implication in the case.
8. Learned trial Court after conclusion of trial convicted and sentenced the appellant as stated above. Aggrieved by the conviction and sentence awarded by the learned trial Court, the appellant filed instant appeal. The complainant also filed Criminal Revision Petition No, 202 of 2004 for enhancement of sentence awarded to the appellant. Both the matters are being disposed of through this single judgment.
9. Learned counsel for appellant contended that this was an unseen occurrence complainant and eye-witnesses are highly interested witnesses as they are closely related to the deceased and are inimical towards accused; that no motive was proved and appellant was substituted in place of his younger brother namely Muhammad Tahir, recovery of blood-stained churri was planted and prays for acquittal.
10.In support of impugned judgment, learned counsel for complainant submitted that it was a day light occurrence. The occurrence took place just in front of residential house of complainant; presence of complainant and other witnesses are quite natural. There was no younger brother of the appellant with the name of Muhammad Tahir, it was appellant Tahir Farooq who committed the offence, but inadvertently his name was mentioned in the FIR as Muhammad Tahir, Except the motive mentioned in the FIR there was no reason with the accused to commit murder of deceased.
11.After hearing learned counsel for parties, I scanned the prosecution evidence with caution that place of occurrence was not denied by the appellant during investigation or in the trial.
Muhammad Riaz complainant is father of Aqeel Hussain deceased and Ghulam Akbar. PW-8 is maternal cousin of Muhammad Riaz complainant and also real brother of wife of said Muhammad Riaz Aqeel Hussain deceased was son of sister of this PW. It was also admitted fact that on the day of occurrence, one Mst. Anara was expired. The said Mst. Anara was sister-in-law of Mst. Kaneez Begum, the other sister of Ghulam Akbar PW. Her funeral ceremony had taken place at 3.00 p.m on 26.1.2004. It is in evidence that PW-8 Ghulam Akbar and Muhammad Riaz PW had participated in funeral ceremony of Mst. Anara and after offering Jinaza prayer, he accompanied Muhammad Riaz to his house. During cross-examination question was put to him on behalf of appellant about his participation in funeral ceremony. In response to that question, he replied that "it is incorrect to suggest that I participated in the burial ceremony and at the time of occurrence, I was present in old bazaar in connection with burial ceremony of Mst. Anara". By evaluating this piece of evidence, if transpired that participation in funeral ceremony of this PW, has not been denied by the defence, but they only objected his presence at the time of occurrence in the house of complainant, but no supporting evidence was produced by the appellant in this regard. While perusing site-plan Ex.PH, it goes to show that place where dead body of Aqeel Hussain was found lying at a distance of about 32 feet from main gate of the house of complainant. Presence of complainant and PW-8 in the house of complainant at 3.30 p.m. is quite natural and explanation of their presence is convincing. Learned counsel for appellant had put great stress on the point that the appellant was substituted at the place of his younger brother namely Muhammad Tahir, who was nominated earlier in the FIR. I think that defence tried to get benefit from the name of accused mentioned in the FIR as Muhammad Tahir instead of Tahir Farooq. This version was put for the first time in the trial, it was the appellant, who has to prove on the file that he has younger brother namely Muhammad Tahir. During entire proceedings in the trial Court, no documentary or oral evidence put forth by the appellant to substantiate his version. Even no person from his own family opted to appear before the trial Court in support of version of substitution taken by the appellant. To resolve this controversy, I have perused the police file. According to police file, Tariq Farooq accused was arrested on 3-2-2004 he made a statement before the police that they are only two brothers and two sisters. The name of his other brother is Ummar Farooq and names of his sisters are Tahira Jabin and Humaira Jabin. He no where stated that he had any brother with the name of Muhammad Tahir. Substitution is a rare phenomena, especially, when there is only one accused and it was day light occurrence.
12. In the light of above discussion, I have affirmed opinion that it was the appellant, who committed Qatl-i-Amd of Aqeel Husain deceased and nothing else. He was rightly convicted by the trial Court. This appeal has no force and is hereby dismissed. Criminal Revision filed by Muhammad Riaz is also dismissed.