PLJ
2010 Sh.C. (AJ&K) 65
Present:
Syed Hussain Mazhar Kaleem, J.
MUHAMMAD
AJAYAB and others--Appellants
versus
MUDASSAR
LATIF & others--Respondents
Crl. Appeal Nos. 10 & 15 of 2008, decided on 26.2.2010.
Azad Penal Code, 1995--
----Ss.
324, 337-A(2), 337-F(5) & 337--Arms Act, 13/20/65--Conviction and
sentence--Challenge to--Appeal against--District Court of Criminal Jurisdiction
by maintaining conviction, reduced sentence--No evidence showed any prior
enmity between parties was brought on record--Occurrence was not premeditated
and only immediate cause of occurrence irritated convict/appellant which
resulted into unfortunate incident--Rest of facts alleged by prosecution were
established--Ocular version to extent of causing injuries to complainant, his
mother and a guest with 12 bore gun in manner claimed by prosecution was
proved--Corroborative evidence in shape of medico legal reports pertaining to
victims and recovery of weapon of offence at instance of convict/appellant was
confidence inspiring--His conviction was justified and order of trial Court was
rightly maintained--Prosecution successfully proved its case--Enmity between
parties was not established--Convict/appellant was aged 73 years and was
suffering from diabetes and depression, and lenient punishment of imprisonment
was required--Conviction maintained but sentence of five years was
altered--Appeal accepted. [Pp. 67
& 68] A, B & C
Raja
Niaz Ahmed, Advocate for (M. Ajayab)
Convict-Appellant.
Mr.
Muhammad Ayyub Sabir,
Advocate for Complainant.
Assistant Advocate General for State.
Date
of hearing: 26.2.2010.
Judgment
Above
titled appeal is directed against the judgment of District Court of Criminal
Jurisdiction, Mirpur dated 26-01-2008, whereby order
of conviction recorded against the appellant by the trial Court was maintained,
however, by modifying the judgment the sentence was reduced to five years R.I.
with Rs. 5000/-fine under Section
Rs. 20,000/- Daman under Section 337-F(5), A.P.C, one
month imprisonment and Rs. 1000/- Daman under Section
2. Brief facts forming background of the appeal
are that a case under Sections 324/337, A.P.C was registered against the
respondent at Police Station, Islam Garh on the
complaint of Mudassar Latif.
It was reported that on
3. On completion of investigation, challan was submitted before Tehsil
Court of Criminal Jurisdiction, Mirpur. After
necessary proceedings the Court convicted the appellant and awarded ten years
rigorous imprisonment with Rs. 10,000/- fine under
Section
4. Learned Counsel for the convict-appellant
argued that the motive was not proved, witnesses
examined by the prosecution were related, interse and
inimical towards the convict-appellant. Medico legal reports were doubtful and
it was not established that the injuries found at the persons of the
prosecution witnesses were caused by 12-bore gun, recovery of weapon of offence
was fabricated because no independent witness was asked to join the process, thus oular version was not
corroborated by any independent material. Moreover, the only independent
witness Liaquat turned hostile and his opposition
creates serious doubt in truthfulness of the prosecution story. The trial Court
and the Court below while convicting the appellant failed to appreciate that version
given by partisan witnesses was not worth relying. The evidence brought on
record was not sufficient for recording conviction. The impugned judgment being
incorrect, against law and facts the case was not sustainable, therefore, by
accepting the appeal filed by the convict-appellant he may be acquitted of the
charge and that of the complainant be dismissed.
5. On the other hand, it was argued that
prosecution proved its case against the respondent beyond any doubt, the ocular version given by three injured witnesses
was corroborated by medico legal reports and recovery of weapon of offence. It
was proved that due to prevailing enmity the convict-appellant fired with
12-bore gun and caused injuries at person of the complainant and two others in
the manner claimed by the prosecution, despite lengthy cross-examination the
witnesses stood at touch stone of the test and the defense failed to obtain
anything favourable. The trial Court appreciated the
evidence in a judicial manner and rightly convicted the appellant, since there
was nothing on record suggesting lesser penalty, thus the Court below was not
justified to interfere with the order of conviction recorded by the trial
Court, therefore, by accepting the appeal the impugned judgment to that extent
may be set aside and appeal filed by the convict-appellant may please be
dismissed.
6. I have heard the learned Counsel for the
parties and gone through the record of the case.
7. Since both the appeals arise out of the same
order, therefore, these shall be disposed off through this common judgment.
9. The ocular version was that due to enmity, on
9. I have considered the material on record with
care. No evidence showing any prior enmity between the parties was brought on
record. Immediate cause of occurrence which appears from the statement of P.W
Muhammad Latif was that on the fateful day his son
started Tractor because of its noise the dog of convict-appellant started
barking, upon this he armed with 12-bore gun came at the steps of his house and
started firing, thus it implies that the occurrence was not premeditated and
only the aforesaid event irritated the convict-appellant which resulted into
the unfortunate incident, however, rest of the facts alleged by the prosecution were established, ocular
version to the extent of causing injuries to the complainant, his mother and
Muhammad Asam with 12-bore gun in the manner claimed
by the prosecution was proved, corroborative evidence in shape of medico legal
reports pertaining to the victims and recovery of weapon of offence at instance
of convict-appellant was confidence inspiring, thus his conviction was
justified in the circumstances and order of the trial Court was rightly
maintained by the Court below.
10. It will not be out of place to mention here
that during pendency of the appeal, learned Counsel
for the convict-appellant moved an application stating therein that at the time
of occurrence, the convict was of unsound mind, therefore, he may be sent for
examination, the request was allowed by this Court and he was examined by a
board comprising of Dr. Tariq Masood,
Medical Specialist and Dr. Shahid Iqbal
Qureshi, Psychiatrist. The report was as under:--
"Examined Mr.Muhammad Ejayb s/o Ghulam Muhammad age 73
years who was brought to us from Central Jail Mirpur
(A.K).
He
presented with palpitation heart sinking, headache, insomnia and excessive
fear.
Nothing
was significant on general physical examination and systemic examination. But his blood sugar (R) was 360 mg/dl and urine sugar was (+++).
In
our opinion he is a patient of Diabetes mellitus with Depressive illness.
11.
Though I am convinced that the prosecution successfully proved its case against
the appellant and the Court below rightly convicted him. However, in light of
the facts that enmity between the parties was not established, the
convict-appellant aged 73 years was suffering from Diabetes and depression, a
lenient view regarding punishment of imprisonment was required in the
circumstances, therefore, the order of conviction is maintained, but sentence
of five years rigorous imprisonment under Section
12. Upshot of the above discussion is that appeal
filed by the complainant for enhancement of sentence is dismissed while that
filed by the convict-appellant is accepted in the terms indicated above. He
shall be released from custody on depositing the amount of Arsh,
(A.S.) Appeal
accepted.