1. ' Muhammad Yaqub appellant has challenged judgment dated 29-5-1999 passed by learned Additional Sessions Judge, Pasrur whereby he was convicted under section 302, P.P.C. And was sentenced to imprisonment for life and compensation of Rs,20,000 to be paid to the legal heirs of deceased Hafiz Noor Alam or in default thereof to further undergo imprisonment for 6 months'. S.-I.
2. Through the same judgment he was further convicted under section 449, P.P.C. And was sentenced to imprisonment for life and was fined to the tune of Rs,5,000 or in default of payment of fine to further undergo 2 years' S.-I. Both the sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. Was also extended to him.
3. ' The occurrence which resulted into the murder of Hafiz Noor Alam took place during the night between 18/19-4-1994 in the house of the deceased in village Dhelum, District Sialkot and F.I.R. No,90 of 1994 Exh.P.J/1 was got recorded on the statement Exh.P.J. Of Hafiz Rashid Alam P.W.6 by Mushtaq Ahmad, S.-I. P.W.11 at Adda Hadiana on 19-4-1994 wherein it was alleged that the complainant alongwith Sardar Ali P.W.7 and Hafiz Muhammad Tayyab (not produced) were present in the house of deceased in Village Dhelum in connection with compromise between the accused and the deceased about the altercation which took place amongst them few days before. They slept in the Varanda of the house of deceased and about 2/3 a.m. They saw Ghulam Rasool walking with stick, Yasin armed with revolver while Yaqub appellant armed with .12 bore gun in the light of electric bulb who asked them where Hafiz Noor Alam was, thereafter, Ghulam Rasool raised Lalkara and Yasin accused pointed out revolver towards the complainant and P.Ws. And threatened them for dire consequences while Yaqub appellant fired a shot from his gun at Hafiz Noor Alam hitting on his abdomen and the accused fled away. Hafiz Noor Alam was removed to the Civil Hospital, Sialkot where he succumbed to the injuries.
4. ' Mushtaq Ahmad, P.W.11 after recording the statement of the complainant Exh.P.J. Sent the same to the police station for registration of formal F.I.R. And himself arrived at the DHQ Hospital, Sialkot, took the dead body of Hafiz Noor Alam into possession, prepared the injury statement vide memo.
5. Exh.P.N. And inquest report vide memo. Exh.P.O. And despatched the dead body for post-mortem examination and he himself arrived at the place of occurrence. He took into possession blood- stained pieces of foam and clothes vide memo. Exh.P.C. And blood-stained shirt of Rashid Alam vide memo. Exh.P.K. He recorded the statements of the prosecution witnesses. On 21-5-1994 the investigation of the case was entrusted to Mubarik Ali Shah P. W.12 who on 25-5-1994 arrested the accused and Yaqub appellant while in police custody on 30-5-1994 led to the recovery of gun P.8 which was taken into possession vide memo. Exh.P.G. He completed the investigation and submitted the challan.
6. ' The accused denied the allegation and claimed the trial.
7. ' During the trial prosecution examined as many as 13 witnesses to prove the guilt of the accused.
8. The post-mortem examination was conducted by Dr. Syed Sajjad Ali P.W.9 on 19-4-1994 who found the following injuries on the dead body of Hafiz Noor Alam deceased:--
(1) Lacerated circular wound 4 c.m. Diameter inverted and abrated margins, blackening and charring were present on and around the wound on right lumber region in anterior abdominal wall, part of omentum was lying protruded out from the wound.
(2) A circular wound 1 c.m. Diameter everted margins on left hypochondrim 3 c.m. Anterior and medial side from anterior axillary line.
(3) An oval 'shaped wound 1 x 1/2 c.m. Everted margins on left lumber area on outer aspect 5 c.m.
9. Below injury No,2.
10. ' Earlier, on the same day, he had medically examined the deceased vide M.L.R. Exh.P.
11. ' The ocular account was furnished by Rashid Alam P.W.6 who supported the version of F.I.R. As an eye-witness of the occurrence. Sardar Ali was examined as P.W.7. His statement was in line with the statement of complainant P.W.6. Sami Ullah P.W.5 attested recovery memo. Exh.P.G. Of gun P.8, recovered at the instance of appellant Yaqub. Abdul Latif P.W.3 had attested memos of articles taken into possession from the place of occurrence. Abdul Hamid, Head Constable P.W.8 recorded the formal F.I.R. Exh.P.J/1. The remaining witnesses are of formal in nature and need not be discussed.
12. ' The prosecution evidence was closed after tendering in evidence the report of Chemical Examiner as Exh.P.R., Report of Serologist as Exh.P.S. And that of Forensic Science Laboratory as Exh.P.T.
13. ' Statement of the appellant under section 342, Cr.P.C. Was recorded, towards the end of the trial.
14. He denied the charge and pleaded his false implication. To the question, what else you want to say, he replied as under:-- "I am ,absolutely innocent and have been falsely implicated. It was an unseen occurrence at the dead dark night during load shedding when some enemy/dacoit shot the deceased dead; the inmates of the house of deceased and the entire village know that it was unseen incident."
15. ' The appellant examined in his defence Ghulam Haider as D.W.1 who stated that on hearing the fire shot he went to the house of the deceased and only his wife and children were present. The complainant P.W.6 and P.W.7 Sardar Ali were not available. Npor Alam was taken to hospital by co- villagers in a wagon driven by Muhammad Ashraf D.W.3. D.W.2 Muhammad Shafi also supported Ghulam Haider D.W.1. Muhammad Ashraf appeared as D.W.3 who stated that he escorted Noor Alam in injured condition in his wagon to the house of the complainant at Sialkot and then to the hospital. Muhammad Ibrahim D.W.4 was technician in the office of S.E., WAPDA, Sialkot. He produced the record regarding loadshedding to show that when the occurrence took place it was loadshedding in the village Dhilum.
16. ' The trial culminated into conviction of the appellant as mentioned above. His co-accused Ghulam Rasool and Yasin were acquitted of the charge through the same judgment. Hence this appeal.
17. ' Learned counsel for the appellant has argued that it was an unwitnessed night occurrence. The presence of complainant P.W.6 and Sardar Ali P.W.7 has been belied by the defence witnesses D.W.1 and D.W.2 who were neighbourers of the deceased and arrived at the spot soon after the occurrence. It has been further argued that at the time of occurrence the village was under loadshedding and the accused could not have been identified. Learned counsel after going through the defence evidence led by the accused/appellant has made reference to the cross- examination of Abdul Latif P.W.5 to show that when Hafiz Noor Alam was firstly taken to the house of the complainant at Sialkot prior he was taken to hospital and Abdul Latif P.W.5 saw the complainant there at his house. It has been prayed that as the case is of no evidence so the appellant is entitled for acquittal particularly when motive has not been believed by the trial Court.
18. ' Conversely the appeal has been opposed by the learned State Counsel who has supported the impugned judgment.
19. ' I have heard the arguments addressed at the Bar and have gone through the record.
20. ' The complainant is real brother of deceased who stated that he alongwith Sardar Ali P.W.7 was present in the house of Hafiz Noor Alam in the village. The occurrence took place at 2/3 a.m. The deceased was got admitted in the hospital by the complainant at 4 a.m. He produced the M.L.R.
21. Before Mushtaq Ahmad P.W.11 at 8-25 a.m. Who recorded his statement Exh.P.J. Wherein accused were nominated. Had the complainant not present in the village at the time of occurrence, how he could nominate the accused in promptly recorded complaint. The statements of both the eye- witnesses are consistent and no material discrepancy has been brought on record to discard their testimony. They have no previous enmity for false implication of the appellant. The defence version narrated by D.W.1 Ghulam Haider and D.W.2 Muhammad Shafi is not confidence-inspiring. They never joined the investigation and got their statements recorded. Admittedly they were not the eye-witnesses of the occurrence: Noor Alam deceased was alone living with his family in the village. The accused also belong to the same village when the complainant is resident of Sialkot city, therefore, the defence witnesses who are inhabitants of the same village have come forward with afterthought story to help the accused. The other argument advanced by the learned counsel for the appellant is that motive has not been believed by the trial Court and if motive was not proved then there was no justification for presence of the complainant in the house of deceased on the relevant night. But it is settled law that absence or weakness of the motive is immaterial in criminal cases. Appellant has taken specific plea that he has been implicated due to previous enmity but nothing has been brought on record to prove such animosity with the deceased or the complainant. There is no reason as to why the complainant implicated the appellant by letting off real culprit. Abdul Latif P.W.5 was witness of the recovery of articles taken into possession from the spot by the Investigating Officer and questions asked to him by the defence in cross-examination are not relevant.
22. ' After deep reappraisal of the evidence, I am convinced that Yaqub is the real culprit and the prosecution case has been established against the appellant/accused beyond any shadow of doubt by direct evidence of the eye-witnesses which is corroborated by the medical evidence. I do not find any ground to interfere in the conviction recorded against the appellant or sentence awarded to him. Therefore, this appeal is dismissed having no force.