This judgment will dispose of ' Criminal Appeal No,45/J of 2002 filed by Muhammad Afzal, appellant through Jail who was convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment dated 27-92000 as under: Under section 302(c), P.P.C.
Imprisonment for life.
Under section 337-A(i), P.P.C. for causing injuries on the person of Zahid Imran one years' R.I. and six months' R.I. under section 337-F(i), P.P.C. for causing injuries on the person of Mushtaq Ahmad.
All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place on 27-10-1994 at 3-30 p.m. within the jurisdiction of Police Station Nowshera Virkan, District Gujranwala at a distance of six miles while the matter was reported to the police on the same day at 5-30 p.m. by Tariq Mahmood, complainant through complainant Exh. P.A. and the formal F.I.R. is Exh. P.A/1.
2, According to F.I.R. the facts of the prosecution case are that on 27-10-1994 at about 3-30 p.m., Tariq Mahmood complainant alongwith his brother Aamer Mehmood deceased, Mushtaq son of Akbar Ali, Zahid Imran P.W., Ilyas P.W. and Khan Muhammad, Lambardar were coming from Dogranwala village to their village Phama Sara. When they reached in the street in front of Haveli of Ahmad Din Arain at about 3-30 p.m. they saw Muhammad Afzal alias Hafiz armed with gun 12 bore, Habib Ullah armed with gun .12 bore, Zulfiqar alias Bhutto armed with rifle 7-MM, Maqsood armed with pistol, Rafique and Siddique armed with Sotas, sitting in the Haveli of Ahmed Din in furtherance of their common intention. Afzal accused abused Aamar deceased and asked him that he had no other was for passing. In reply Aamar Mehmood air abused Afzal and said that this way is a _ public place and thoroughfare then Maqsood Ahmad fired on Aamar Mehmood with his pistol which landed on his left hand; Aamar intended to return back in the meantime, Afzal accused fired on him with his .12 bore gun which landed on his back therefore, Aamar Mehmood fell down on the ground. Complainant Mushtaq son of Akbar and Zahid Imran moved ahead, Habib Ullah tired which hitted on the person of Mushtaq Ahmad, Zulfiqar alias Bhutto fired on Zahid Imran and he was injured while Siddique and Rafique gave Sota blows on the person of complainant. Thereafter, all the accused fled away from the place of occurrence while making firing. The occurrence took place on the abetment of Ahmad Din, Muhammad Din and Ismail accused because one day prior to the occurrence Muhammad Ashiq and Abdul Aziz saw all the accused persons in the Haveli of Ahmad Din and overheard these words "when Aamer Mehmood etc. pass from here they would be restrained by them in any case".
Motive behind the present occurrence was that accused persons got registered false cases under sections 365 and 342 P.P.C. against the complainant party in which a compromise had effected between them with the intervention of co-villagers but the accused had a still grudge in their hearts, therefore, they murdered the brother of the complainant and injured three persons.
3. After registration of the formal F.I.R. Gulzar Hussain Inspector P.W.15 went to the hospital, inspected the dead body of Aamer Mahmood, prepared injury statement Exh. P.J. and inquest report Exh. P.K. inspected the place of occurrence, prepared rough site-plan Exh. P.N.. took into possession blood-stained earth from the spot vide memo. Exh. P.E.. took one empty cartridge vide memo. Exh. P.F. On 30-10-1994 arrested Zulfiqar, Habib Ullah, Muhammad Afzal and Maqsood Ahmad, recovered rifle 7-MM P.8 from the possession of Zulfiqar accused vide recovery memo. Exh.
P.O., recovered gun .12 bore P.9 from Habib Ullah accused vide recovery memo. Exh. P.Q. alongwith three cartridges P.10/1-3. On 7-11-994, Muhammad Afzal and Maqsood Ahmad accused got recovered gun .12 bore and revolver .32 bore separately which were taken into possession vide meth. Exh. P.H. After completion of the investigation and other legal formalities, the accused were challenged to face the trial.
4. At the trial, prosecution in order to prove its case produced 16 witnesses in all, thereafter learned A.D.A. tendered in evidence report of Chemical Examiner Exh,. P.R. report of Serologist Exh. P.S and closed the prosecution case then the statements of the accused were recorded under section 342.
Cr.P,.C. in which they pleaded innocence.
5. In support of this appeal, learned counsel for the appellant submits that if both the versions one put forward by the prosecution and the other put forward by the present appellant in his statement recorded under section 342, Cr.P.C. are put in juxta position, the version of the appellant seems to be plausible and convincing. one, that on the same evidence eight co-accused of the present appellant have been acquitted by the learned trial Court, that appellant had also appeared under section 340(2), Cr.P.C. in order to rebut the prosecution case that no case is made out against the appellant, that it was the complainant party which was the, aggressor, that the sentence is too harsh in the circumstances of the case.
6. On the other hand, learned counsel for the State submits that appellant had admitted his guilt, that his version has no legs to stand. He supports the judgment of the learned trial Court.
7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, Tariq Mahmood, Zahid Imran and Ilyas had appeared before the learned trial Court amongst them Tariq Mahmood and Zahid Imran are injured witnesses while one of the witness, namely, Mushtaq, who was injured has already been murdered. In order to reach at a just conclusion. I would like to reproduce answer to Question No,8 of the statement of present appellant recorded under section 342, Cr.P.C. as under :-- "The father of the deceased, namely Ch. Riasat Ali was an influential person, who used to participate in local elections. He and his brotherhood never apposed him. but Ch. Riasat Ali father of the deceased used to harass me and my brotherhood for the reasons that they should leave the village and he would make his possession over their property. He alongwith his brotherhood tried to sell the land but Ch. Riasat Ali made interference each and every time. Due to this reason they failed to sell the lands. On the day of occurrence the complainant party attacked on his house; complainant party abused inmates of the house and beated them and made exertation that he would not spare Hafiz Iqbal. They would kill him. The inmates of the house confined me in a room, on realizing the situation they tried to beseeche the complainant party but in vain. Then he came out of the house. Aamer deceased raised Lalkara asked his companions to catch hold and kill him.
At the time I had a licensed gun P.6 of my brother Muhammad Latif. When I felt apprehension of danger to my life, I made two fires unintentionally which landed on the person of Aamer deceased and Mushtaq injured P.W. complainant party caught hold me, gave sever beating to me, snatched my gun. I ran away and concealed myself in the house of neighbourer, when complainant party went away I again came to my house. Police arrested me and Habib Ullah on the same day from my house. After my arrest complainant party got forcible possession on their whole belonging movable and immovable including animals. The worth of the property was about 80 lac. The standing crops of peddy were harvested by the complainant party. A criminal case regarding the forcible possession over the properties etc. was got registered by my father Ahmad Din at Police Station Nowshera Virkan by the orders of Inspector-General of Police Punjab. Police did not record our version in his Zimines. For a long time. Later on, they were succeeded to put their version on the record by. transferring investigation in this case after hectic efforts. I was not medically examined by the Medical Officer. The complainant party made an announcement in the village tried to keep relations with us, he would be murdered. After this announcement Master Manzoor. Ahmad and his friend Saad Ullah Bajwa used to keep relations with us resultantly, they were murdered by the complainant party."
The bare perusal of the above said version of the appellant would show that his version does not seem to be natural and probable one Nobody has been produced by the appellant to prove his version. It is a settled principles of law that if any accused wants to bring his case under one of the exception to section 300, P.P.C. as it was available before the present occurrence or under section 302(c), P.P.C. then according to Article 121 of Qanun-e-Shahadat Order, Ordinance, 1984 the onus A lies on him to prove the same. It was the version of the appellant, that he was injured, his companions including his mother and sister were also injured but neither his mother nor his sister was examined, even not a single witness was produced from the village to verify and to substantiate the version of the appellant. Already a very lenient view has been taken by the learned trial Court by not awarding the death sentence to the appellant. In the instant case, not only person lost his life but three were also injured, two injured had appeared before the learned trial Court while one injured had murdered before the trial.
8. After hearing the learned counsel for the parties and going through the record I am fully satisfied that prosecution has been successful in proving its case against the appellant to its hilt.
Resultantly, the appeal, filed by the appellant is dismissed. The conviction and sentence recorded against the appellant by the learned trial Court is maintained.