' Shamraiz alias Shathmon son of Muhammad Saffique has challenged judgment dated 5-1-2000 passed by the learned Additional Sessions Judge, Mandi Baha-udDin whereby he was convicted under section 302, P.P.C. For commission of murder of Mst. Fatima Bibi and sentenced to life imprisonment. He was further ordered to pay Diyat amount of Rs,2,50,000 to the heirs of the deceased. Through the same judgment Walayat Khan, Muhammad Saddique, Munawar Hussain and Muhammad Zaman were acquitted of the charge.
2. Brief facts of the case are that F.I.R. No .3,83 dated 28-9-1996 Exh.P.C/1 was registered at 8.00 p.m.
Under sections 302/34/109, P.P.C. At Police Station Sadar, Mandi Baha-ud-Din on the basis of statement Exh.P.0 of Mst. Zarina P.W.4 recorded by Imtiaz Ahmad, A.S.I. At 7-30 p.m. Wherein it was stated that complainant is resident of Mauza Chalianwala and runs a private school. There is enmity between the complainant and the accused Walayat Khan and on the day of occurrence she along with her mother Ghulam Fatima had arrived from Lala Musa to Chalianwala Railway Station where from they boarded Tonga of one Muhammad Razzaq for their village. About 3/4 passengers were also riding the Tonga and when they reached near the mosque of their village, Shamraiz appellant armed with rifle .8 mm, Munawar armed with .222 rifle, Zaman armed with .7 mm rifle emerged from the street. Sharnraiz raised Lalkara that Fatima be taught lesson for getting a criminal case registered against them and he asked the other passengers to get down of the Tanga. Thereafter, he fired four shots from his rifle .8 mm on Ghulam Fatima hitting on her left flank.
Munawar fired two shots from his .222 rifle hitting Ghulam Fatima at her chest, Zaman also fired two shots on right flank of her mother. After receiving injuries she fell down from the tanga. The accused kept on firing hitting at different parts of her body. The occurrence was witnessed by Javid Iqbal P.W.5 and also by Zulfiqar and Nasreen Akhtar (sister of the complainant).
3. The motive for the occurrence was litigation between the parties. It was also stated by the complainant that the occurrence took place at the abetment of Walayat and Saddique sons of Taja.
4. Imtiaz Ahmad, A.S.I. P.W.8 after recording statement Exh.P.0 near the canal Bridge of Chak Basawa sent the same to Police Station for registration of formal F.I.R. And he himself arrived at the place of occurrence and took the dead body into possession and prepared injury statement vide memo. Exh.P.G and inquest report, vide memo. Exh.P.H. He also took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.D, he also collected 4 empties of rifle .8 mm Exh.P.F from the spot and despatched the dead body for post-mortem examination through Sikandar Hayat, F.C. He prepared the site plan of the place of occurrence vide memo. Exh.P.J, recorded statements of the P.Ws. On the next day which was 29-9-1996 he toolc into possession last worn-clothes, of the deceased vide memo. Exh.P.E. On 3-10-1996 he got prepared site plan of the place of occurrence through Muhammad Saddique, Draftsman. Then the investigation was taken over by Zubair Mumtaz, S.I. Who was not examined by the prosecution as he was out of service, and his whereabouts were not known but his investigation was proved by Aziz Ahmad, A.S.I.
P.W.12 who had worked with him. According to this witness Shamraiz accused was arrested and was on physical remand who on 9-12-1996 got recovered rifle .8 mm which was taken into possession by Zubair Mumtaz, S.I. Vide memo. 'Exh.P.B. Investigation of the case was also conducted by Safdar Inayat, D.S.P, P.W.9 who on 7-11-1996 arrested Walayat, Muhammad Saddique and Munawar Hussain accused and on the next day, Saddique and Walayat Khan were sent in judicial lock-up and he obtained physical remand of Mtmawar Hussain. On completion of investigation challan was submitted in the Court by Ghulam Haider S.H.O., Saddar Mandi Bahaud-Din D.W.2 on 9- 5-1997 by placing Shamraiz appellant in Column No,3 while other accused in Column No,2.
5. The trial Court framed the charge which was denied by the accused and they claimed trial.
6. During trial prosecution examined as many as 12 witnesses to prove the guilt of the accused.
7. Medical evidence was furnished by Dr. Saeeda BanQ P. W.10 who on 29-9-1996 conducted the post-mortem examination on the dead body of Ghulam Fatima and found the following injuries on her body:-- 1-A A fire-arm wound of entry on the ' dorsal surface of right hand 1 x 1 c.m.
1-B Exit wound 1.5 x 1.5 c.m. Palmer surface of right hatid just near the base of index finger.
2-A ' A fire-arm wound of entry palmer surface of terminal phylanx of right hand.
2-B 2 x 2 can. On dosal surface of right hand.
3-A Fire-arm wound of entry 1 x 1 c.m. With black margins on right hypocondrium just near last lower rib in the line of right nipple.
3-B Exit wound 1.5 x 1 inch on abdomen 10 c.m. Below and to the left of umblicus.
4-A 2 fire-arm of entry on back of lower part of right buttock.
4-B (i) 2 x 1 c.m. On entromedial surface of right thigh about middle.
(ii) Anterior surface of right thigh 2.5 x 2 c.m. On upper part of right thigh.
5.A On lower middle part of left buttock 1 x 1 c.m.
5-B 1.5 x 1.5 c.m. On, postrolateral surface of left buttock on the prominence of greater trochanter.
8. The ocular account was furnished by Zarina .P.W.4 who was complainant of the case. She supported the version of the F.I.R. And also narrated the motive for the occurrence. Javid Iqbal was examined as P.W.5 who 'Was eye-witness of the occurrence. His statement is in line with the statement of complainant'. He also attested the recovery memos. Exhs.P.D and PE. He also identified the dead body at the time of post-mortem examination. This witness was the real brother of Walayat and Saddique and paternal uncle of Shamraiz accused. The remaining witnesses are of formal nature and need not to be discussed.
9. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner .As Exh.P.M and that of Serologist Exh.P.N.
10. Statements of the accused were recorded under section 342, Cr.P.C. They denied the charge and claimed their innocence and false involvement due to enmity. The appellant in reply to Question No,3, have you anything else to say,, replied as under:- "I am innocent. The occurrence took place at Railway Station Chalianwala as is evident frotn Column Nos.1 and 2 of inquest report Exh.P.H and also evident from the statements of eye- witnesses. The police has changed the place of occurrence for recording case on Police Station Saddar Mandi Baha- ud-Din. The proceedings after recording of F.I.R. Dire without jurisdiction and without lawful authority. Medical evidence is in conflict with F.I.R. The prosecution evidence is self- contradictory. The tonga driver who was an impartial witness has not been produced by the prosecution. The tonga has also not been taken into possession by the police in which the occurrence was allegedly taken place."
11. The accused examined Muhammad Hanif, retired Inspector as D.W.1 who had investigated the case after associating the parties and according to his investigation only Shamraiz appellant was found guilty while remaining accused were declared innocent. Ghulam Haider, Inspector was examined as D.W.2 who had submitted the challan on the direction of S.P. Against Shamraiz accused. Qudrat Ullah Khan S.P. Was examined as D.W.3 who stated that he investigated the case personally and according to his investigation the murder was committed by Shamraiz appellant only while the other accused did not participate in the occurrence, and he directed for submission of challan against Shamraiz.
12. The trial culminated into conviction of the appellant as mentioned above. 4-Ie has filed. Criminal Appeal No,182 of 2000 against his conviction and sentence while Zarina Bibi had filed Criminal Revision No,252 of 2000 for enhancement of sentence bf Shamraiz. Both the matters are being decided by this single judgment.
13. Learned counsel for the appellant has argued that according to the ocular account furnished by. Zarina P.W.4 and Javed Iqbal P.W.5, the appellant caused injuries on right flank of Ghulam Fatima deceased but during the trial they made improvement and stated that the appellant caused injureis on right hand of the deceased, The improvements made by the P.Ws. Are dishonest and cannot be relied upon. The co-accused have been acquitted by disbelieving the same witnesses, therefore, the case against the appellant is also doubtful. The enmity is admitted between the parties and motive is double-edged weapon and the appellant has been falsely implicated. The trial Judge has convicted the appellant by relying on the opinion of the Police officials which is not binding on the Court. Zarin and Javed Iqbal are inimical towards the appellant and their testimony has not been corroborated from any other independent source and in view of clear contradiction in the ocular account and the medical evidence the appellant is entitled for acquittal. It has also been argued that while convicting the appellant under section 302 as Ta'zir, Diyat amount cannot be imposed.
14. Conversely the appeal has been opposed by the learned State counsel and counsel for the complainant.
' Heard. Record perused.
15. The occurrence took at Degar Wela and the statement Exh.P.0 was recorded at 7-30 p.m. The same day and on the basis of said statement, F.I.R. Exh. P . C / 1 was registered at 8-00 p.m. The appellant was nominated with specific role for causing injuries to the deceased with his rifle. Motive of previous enmity and pendency of litigation is admitted by the accused party. It was a daylight occurrence and there could be no chance for mistaken identity of the assailant. The complainant specifically alleged in the F.I.R. That deceased was fired on her right side by the appellant. It may be on right hand instead of right flank and I do not find this variation/improsement fatal to the prosecution case. The complainant being females might1 not be in proper state of mind. The ocular account furnished by the complainant P.W.4 and Javed Iqbal P.W.5 has been fully corroborated by the investigation conducted by the senior police officer. The acquitted co-accused are closely related to the appellant. Muhammad Razaq Tonga driver was also examined by the police during the investigation who implicated only Shamraiz appellant in the commission of offence. During the trial he might have not come forward to depose against the accused. The investigation was honest and impartial which is sufficient to corroborate the ocular account. The rifle .8 mm was also recovered from the appellant but it was not sent to Forensic Science Laboratory for comparison with the empties which may be due to influence of the accused party or in advertance of the Investigating Officer but it is not fault of the complainant.
16. Resultantly after deep reappraisal of evidence I find no misreading or mis appreciation of evidence to interfere in the conviction recorded against the appellant or sentence awarded.
Therefore, Criminal Appeal No,182 of 2000 is dismissed having no force.
17. However, Diyat amount imposed is not legal and the same is set aside and the appellant is directed to pay Compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. On in default thereof he would' further undergo 6 months' S.I. The benefit of section 382-B, Cr.P.C. Will be available to the appellant.
18. Criminal Appeal No,182 of 2000 is dismissed with the above modification.
19. Criminal Revision No, 252 of 2000 is also dismissed having no force.