Allahabad High Court
Saleem vs State Of U.P. on 20 July, 2018
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED.
Case :- CRIMINAL APPEAL No. - 4977 of 2003
Appellant :- Saleem
Respondent :- State Of U.P.
Counsel for Appellant :- A.K. Tewari,A.C. Srivastava,A.K. Awasthi,M.J. Akhtar,Manish Tewari,S.M.G.Asgar,S.P.S. Raghav,Sushil Shukla,V.M. Zaidi,V.P. Srivastava
Counsel for Respondent :- A.G.A.,N.I. Jafri,Satish Trivedi.
Connected with
Case :- CRIMINAL APPEAL No. - 4496 of 2003
Appellant :- Riyasat
Respondent :- State Of U.P.
Counsel for Appellant :- V.M. Zaidi
Counsel for Respondent :- A.G.A.,Imranullah,N.I. Jafri,T.B. Islam
Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon'ble Naheed Ara Moonis,J.) The aforesaid two appeals are arising out of the common judgment and order passed by the learned Additional Sessions Judge, Court No. 15, Meerut on 15.9.2003 in S.T. No. 49 of 1993 arising out of case Crime No. 113 of 1991, under Sections 302/34 and 307/34 I.P.C. , police station Kithour, district Meerut whereby the appellant Riyasat in Criminal Appeal No. 4496 of 2003 has been convicted under section 302 read with Section 34 I.P.C. and appellant Saleem in Criminal Appeal No. 4977 of 2003 has been convicted under Section 302 I.P.C. to undergo rigorous imprisonment for life and Rs. 10,000/- each as fine and in default of payment of fine to undergo one year simple imprisonment. Both the appellants have been further convicted under Section 307/34 I.P.C. for rigorous imprisonment of five years and Rs. 2,000/- each as fine and in default of payment of fine three months simple imprisonment. Both the sentences were directed to run concurrently.
The prosecution case in short conspectus is that the complainant Shams Parvez lodged a first information report on 22.4.1991 at 9.20 A.M. at police station Kithour, district Meerut that in the morning he along with his father Mohd. Iliyas, the Chairman of Kithour and his shadow Sarvan Singh, his cousin Arif set out to go to Meerut on Maruti Van as they came on the road his father told that Nizam was also saying to accompany with him, hence he should also be picked up, at this the complainant along with his brother Arif, father and shadow waited at the clinic of Dr. Harish Chandra, his younger brother Qamar Parvez had gone on his vehicle to take Nizam. After some time at about 9 A.M. Riyasat son of Khalil came at the clinic of Dr. Harish Chandra and on seeing the Chairman he pointed out that he is sitting in the clinic today he should be dethroned from the chairmanship. Soon thereafter his son Saleem and Babu son of Sadaqat emerged from the lane having country made pistol and Saleem had fired upon Mohd. Iliyas father of the complainant, which hit on his chest. Babu had also made a fire with intent to kill to the complainant but he narrowly escaped. At the very moment the complainant, his brother Arif and Shadow Sarvan Singh had tried to nab by chasing the accused Riyasat and others shadow Sarvan Singh had also made two fires but Riyasat, his son Saleem and Babu took to their heels towards lane. This incident was witnessed by various persons of his neighboring village besides Latafat, Mehmood and various other persons of his village. The complainant in order to save his father sent him on the same vehicle for treatment at Meerut Hospital and he came to lodge the first information report to take appropriate action. It was divulged by the complainant that enmity is going on account of election of the Chairman with Riyasat and others and 5/6 days ago his father had some altercation with Riyasat, which was told by his father. On the basis of this report a case was registered against Riyasat, Saleem and Babu under Section 307 I.P.C. as case Crime No. 113 of 1991, at police station Kithour, district Meerut on 22.4.1991 at 9.20 A.M. which was entered as Rapat No. 21 in General Diary.
The case was entrusted for investigation to S.S.I. Sri Anil Kumar Chaudhary P.W. 8. The Chief Medical Officer sent a letter dated 22.4.1991 to the Station Officer. Medical, Meerut that at about 9.50 A.M. the injured who had received firearm injury had succumbed to death. In the letter the deceased name was metioned as Mohd. Iliyas and age 45 years. The S.O. of the police station Kithour, district Meerut arrived at emergency ward of Medical College, Meerut where the inquest of the deceased was prepared and thereafter the dead body was sent along with necessary papers for conducting the post mortem.
The Investigating Officer (P.W.8) had arrived at the place of incident recorded the statement of the witnesses, had collected the plain and blood stained earth of which a memo was prepared. Eighty rupees were found from the pocket of the Kurta of the deceased, which were smeared with blood, the memo of which was prepared. Section 302 I.P.C. was added on account of death of the deceased Mohd. Iliyas of which the reference was made in the general diary Rapat No. 24, time 10.05 A.M. on 22.4.1991. The place of occurrence was inspected and the site plan was prepared and after completing the investigation the complicity of the accused persons, namely, Riyasat, Saleem and Babu were found in the murder of Mohd. Iliyas and hence the charge sheet was submitted under Sections 302 and 307 I.P.C. and the same was forwarded to the Chief Judicial Magistrate, Meerut. The Chief Judicial Magistrate, Meerut committed the case to the court of Sessions on 20.1.1993. Thereafter it was transferred to the VIth Additional Sessions Judge, Meerut who proceeded to frame charges by order dated 16.7.1993. The charges were framed against accused Saleem under Section 302 I.P.C., and against Riyasat under Sections 302/34 and 307/34 I.P.C. and against Saleem and Babu under Section 307 I.P.C. All the accused persons abjured the charges and claimed to be tried.
In order to substantiate the charges against the appellants the prosecution had examined Shams Parvez who is the son of the deceased and an eye witness of the occurrence as P.W. 1, Latafat an independent witness as P.W. 2, Sarvan Singh the security guard of the deceased was examined as P.W. 3, Qamar Parvez another son of the deceased and younger brother of the complainant was examined as P.W. 4. The prosecution had also examined formal witnesses Dr. Ravindra Singh who had conducted the post mortem of the deceased as P.W. 5, Devendra Singh Constable who had conducted the inquest of the deceased was examined as P.W. 6, Virendra Singh who had prepared the chick first information report and proved the same as P.W. 7 and the Investigating officer Anil Kumar Chaudhary was examined as P.W. 8. Chhedi Lal Dinesh who had proved the letter of the Chief Medical Officer was examined as P.W. 9.
In defense Mehmood and Rakesh were examined as D.W. 1 and D.W. 2.
The court witnesses have also been examined by the learned trial court as C.W. 1 Ali Natif Nadvi, C.W. 2 Ansar, C.W. 3 Ratan Lal Garg, C.W. 4 R.K. Goel and C.W. 5 Raj Piyush Saxena.
The prosecution has also filed documentary proof. The written first information report exhibited as Exhibit Ka. 1, the post mortem report Exhibit Ka. 2, Chick First Information Report Exhibit Ka. 3, Carbon copy of G.D. Entry exhibit Ka. 4, letter of the record keeper exhibit Ka. 5, G.D. Entry of the death of the deceased Mohd. Iliyas exhibit Ka. 6, memo of blood stained and simple earth collected by the police of which the memo was prepared as Exhibit Ka. 7, the site plan exhibit Ka. 8. The charge sheet forwarded to the court concerned exhibited as Exhibit Ka.9, inquest of the deceased exhibited as Exhibit Ka. 10, the report of the Chief Judicial Magistrate, Meerut exhibited as Exhibit Ka. 11, police paper No. 13 exhibited as Exhibit Ka. 12, police paper No. 33 exhibited as Exhibit Ka. 13. The letter written by the Principal of the Medical College, Meerut to police station Medical, district Meerut and thereafter the statement of accused/appellant Riyasat and Saleem were recorded under Section 313 Cr.P.C. who had denied the prosecution case and have stated that they have been falsely implicated on account of election rivalry.
P.W. 5 Dr. Ravindra Singh, Medical Officer of Ravindra Pyare Hospital, Meerut conducted the post mortem of the deceased Mohd. Iliyas on 22.4.1991 at 4.30 A.M., which was proved by him as Exhibit Ka. 2 According to the Doctor the deceased was aged about 54 years avaerage built rigour mortis were present all over the body durtion of death within half day. The following anti mortem injuries were found on the body of the deceased;
1. Gun shot wound of entry 3x1 cm connected to wound no.2 on back of left elbow lateral side margin inverted direction obliquely upward. Tattooing present in an area of 3.5 x 1.5 cm. around the wound.
2. Gun shot exit wound of 1 cm. x 0.8 cm. left upper arm margin inverted connected to injury no. 1 8 cm below auxiliary fold.
3. Gun shot wound of entry 2 cm x 0.8 cm. X 6 cavity deep on left site chest 5x5 cm. from left nipple at position of 1.30 O'clock above around 5.30 O'clock margin inverted.
One Kurta Payjama vest of the deceased was given in a sealed cover to the police.
On internal examination first and second ribs were fractured and left lung lacerated and left pleura were lacerated. On the left thoriac cavity one and half liter blood was found, about 3 cm. long metallic bullet was recovered, which was sealed and was sent to Senior Superintendent of Police, Meerut through Chief Medical Superintendent. Internal organ of the stomach were pale. Stomach was empty; cause of death was due to shock and excessive bleeding. According to the opinion of the Doctor death has occurred on account of shot of one fire. The injuries were sufficient to cause death. The Doctor has also opined that the deceased had died at about between 9 A.M. to 10 A.M. on 22.4.1991. He had also stated that the dead body was brought by Constable Devendra Singh in a sealed condition who had identified the dead body.
P.W. 1 Shams Parvez who is the son of the deceased Mohd. Iliyas had deposed that the accused Riyasat, Saleem and Babu are known to him since before who are resident of his Qasba. Saleem is the son of accused Riyasat. Accused Babu belongs to the party of Riyasat. They have acquaintance with each other. In the year 1998 his father late Mohd. Iliyas had contested the election of Chairman. The accused Riyasat and others were also contesting in the said election against his father. In that election his father had won the election while Riyasat and another had lost the election. On account of this election the accused persons were bearing enmity with his father. His father was murdered two and half years ago. Prior to the murder 5/6 days ago his father had told that Riyasat had exchanged heated argument had threatened him that he will unseat him from the chairmanship. On the date of incident at about 8.30 or 8.45 A.M. he along with his father Mohd. Iliyas shadow Constable Sarvan Singh and cousin Mohd. Arif proceeded to Meerut on Maruti Van. His younger brother Qamar Parvez was driving the vehicle as they came on the road from his Qasba his father told that Nizam was also wanted to go along with him, hence he may also be picked up, then the complainant's brother Qamar Parvez had gone with Maruti Van to take him. For the time being the complainant, his father, shadow and cousin Arif sat in the clinic of Dr. Harish Chandra Verma and after 5 to 7 minutes Riyasat came and had exhorted that Mohd. Iliyas is sitting inside the clinic today his chairmanship should be overturned, at once Saleem and Babu came there from the lane. Both were having country made pistol. Saleem had fired at his father who sustained injury over his chest and fell down in the clinic. Later on he came to know that the injury was also caused on the hand of his father but he could not notice at that moment when Saleem had fired at his father and accused Babu had fired from his country made pistol at the complainant, shadow and Arif but the fire was missed and they had escaped. When Saleem and Babu had fired Riyasat was also standing nearby and after firing the accused persons escaped from the spot. They were chased by the complainant, his cousin Arif and shadow and while chasing them shadow had also made two fires upon them but neither they sustained any injury nor they could be apprehended. After chasing they retraced at the spot and saw that the vehicle was standing in front of the clinic of the Doctor. He had also seen Qamar Parvez but he could not pay any attention about the presence of Nizam on account of the precarious condition of his father. He had sent him to Meerut Medical College on their own vehicle at that time Qamar Parvez was driving the vehicle, shadow and Arif had also accompanied with them. It was further stated by the complainant that the incident was witnessed by various persons including Mehmood and Latafat. He had lodged the report of the incident at police station Kithour, which was proved by him as Exhibit Ka. 1. He had further stated that on account of the injury blood was found in the clinic of the Doctor. In the after noon of the day of incident he came to know that his father had expired.
P.W. 2 Latafat had deposed that the accused persons Riyasat, Saleem and Babu who are present in the court are well known to him who are resident of his Qasba. He had deposed that quarter to four years ago the Chairman of his Qasba was murdered whose name was Mohd. Iliyas. On the day of his murder it was about 9 A.M. He was standing in front of the clinic of Doctor Harish Chandra Verma and was waiting for the bus to go to Meerut. He was standing along with Mehmood who was also a witness of the incident. Mehmood had asked him that the Chairman was sitting in the clinic of Dr. Harish Chandra who he used to go to Meerut perhaps they were waiting for their car, let us ask him after greeting that in case they are going to Meerut they may also accompany with him. P.W. 2 has further deposed that the Chairman was sitting on a chair, which was lying beside the table of the Doctor. The elder son of the Chairman who is also known as Pappu, Haji Arif and shadow were sitting on the bench, when he reached in front of the clinic where the Chairman was sitting in the clinic he had seen that accused Riyasat came and had exhorted that Mohd. Iliyas is sitting in the clinic he be dislodged from his chairmanship. Thereafter accused Saleem and Babu came from the lane who were having firearm weapons, Saleem had fired at the Chairman Mohd. Iliyas while Babu had fired upon Shams Parvez, Arif and shadow. The fire made by Saleem hit to the Chairman and on account of bleeding he fell down beside the bench. However, no one had sustained injury with the fire of accused Babu. Thereafter shadow of the Chairman had also fired upon Saleem and Babu. Accused Riyasat was standing out of the clinic and after firing made by the accused persons they ran away in the same lane. Shams Parvez and shadow had chased the accused persons in the lane. He had also heard the noise of one firing and after this they returned back after a minute where the Chairman was left by them. His younger son had come along with the car and Chairman was carried in the car for treatment. The blood was found where the Chairman was fallen down. He had further deposed that the elder son of Chairman, namely, Pappu is also known as Shams Parvez.
P. W. 3 Constable Sarvan Singh had deposed that he was on duty as a shadow of Chairman Mohd. Iliyas on 22.4.1991. On that day the Chairman was going on his Maruti Van to Meerut along with his son Shams Parvez, nephew Arif and younger brother Qamar Parvez. Qamar Parvez was driving the vehicle. When the car reached near the clinic of Dr. Harish Chandra, which is situated on the main road of main market, the Chairman had stated to stop the vehicle as Nizam was also waiting to accompany, hence they all stepped down from the car. Qamar Parvez took the car to fetch Nizam while they sat in the clinic of Dr. Harish Chandra and at that time Dr. Harish Chandra was in his clinic. The deceased was sitting in the front chair of his table and other were sitting at the bench, which was kept on the western side. After two minutes the Doctor went away from the clinic and soon thereafter accused Riyasat came at the clinic and uttered that Chairman is sitting inside the clinic he should be dislodged from his chairmanship. At that time it was about 9 A.M. at once accused Saleem and Babu came in front of the clinic having firearm weapons, accused Saleem had fired upon Chairman Mohd. Iliyas, which hit on his left arm, which had pierced in the left side of the chest. The accused persons had also fired upon them but it was missed. The deceased fell down after receiving shot of fire. This witness (P.W.3) had made a fire at the accused persons, which did not hit to any one thereafter all the accused persons ran towards the lane. They were chased by the witnesses and other but they could not be apprehended then they again reached at the clinic where the deceased was lying in injured condition at that juncture Maruti Van came and all of them placed the victim in the car and proceeded to Meerut Medical College, Arif and Qamar Parvez had accompanied with him. Qamar Parvez was driving the vehicle. Shams Parvez went from the place of incident to lodge the first information report. The Doctor of the Medical College declared the Chairman as dead. The witness (P.W. 3) had identified the accused persons who were present in the court and have stated that their names are Riyasat and Saleem and knew them from before. Babu who was not present in the court but he was also known to him since before.
P.W. 4 Qamar Parvez who is the younger son of the deceased and the brother of the complainant had deposed that the accused persons are known to him, who are resident of the same Qasba. Mohd. Iliyas was his father and Chairman of the Qasba. A guard was deputed for his security. Shams Parvez is his elder brother. The incident is of 22.4.1991. On the day of incident in the morning his father Mohd. Iliyas and his cousin Arif, Shadow Sarvan Singh had set to go to Meerut on Maruti Van. He was driving the vehicle, when the car reached at the clinic of Dr. Harish Chandra Verma on main road from his Qasba, his father had asked to stop the car as Nizam was also waiting to go to Meerut, hence he may also be called from his house. Thereafter all the persons got down from the car and sat at the clinic while the witness (P.W.4) had gone to call Nizam but Nizam was not found at his house then he returned back at the clinic of the Doctor, he found a huge crowd, his father was lying in an injured condition. He was told about the incident by his brother then he along with his cousin Arif and shadow took his injured father to Meerut Medical College where he was admitted in the emergency ward. The Doctor had seen his father and asked the name of the persons who had brought him. He had disclosed the name of Shams Parvez. Thereafter the Doctor had declared his father dead.
The formal witness Dr. Ravindra Singh, Medical Officer was examined as P.W. 5 who had conducted the autopsy of the deceased Mohd. Iliyas on 22.4.1991 at 4.30 P.M. The details of the post mortem report examination have been given supra. The Doctor had clearly opined that the death could have resulted with a single shot and the injuries were sufficient in the ordinary course to cause death. He had also stated that the deceased would have died between 9 to 10 A.M. on 22.4.1991.
P.W. 6 Devendra Singh who was posted at police station Medical on 22.4.1991 had stated that he had gone along with C.L. Dinesh S.I. to Medical College, Meerut and after inquest of the deceased the dead body was handed over in a sealed condition for the post mortem who had taken the dead body to the mortuary and handed over the papers and sealed dead body to the Doctor for conducting post mortem. He duly identified the dead body of the deceased.
P. W. 7 Constable Vijendra Singh had deposed that on 22.4.1991 he was posted at police station Kithour on that day on the written report of Shams Parvez Exhibit Ka. 1 he had registered the first information report, which was proved by him as Exhibit Ka. 3. It was also entered in the G.D. as Rapat No. 21 at 9.20 A.M. dated 22.4.1991. The carbon copy proved by him as Exhibit Ka. 4. He had stated that the original G.D. had been weeded out. In this regard a certificate dated 17.12.1997 was issued by the Record Keeper, which was proved by him as Exhibit Ka. 5. He had further deposed that at about 10.05 A.M. he had received the information at police station about the death of chairman Mohd. Iliyas. The case which was registered initially under Section 307 I.P.C. Section 302 I.P.C. was also added of which a mention was made as Rapat No. 24. Rapat no. 24 was handed over to Constable Jaiveer Singh to be handed over to S.S.I. A.K. Chaudhary, the Investigating Officer. The carbon copy of the G.D. was proved by him as Exhibit Ka. 6.
P. W. 8 Anil Kumar Chaudhary, Inspector Vigilance, Dehradoon who was entrusted with the investigation had deposed that he was posted as S.S.I. of P.S. Kithour on 22.4.1991. He was the In-charge of the police station. The case was registered in his presence and the investigation was entrusted to him and had started the investigation. He had entered the copy of the report in the case diary and recorded the statement of Constable Clerk Virendra Singh. Thereafter the Sub Inspector, Head Constable Panda, Constable Usman, Constable Hoshiyar Singh hand Constable Ram Kumar were sent to the place of incident and the complainant who was present at the police station his statement was recorded at the police station. Thereafter he proceeded to the place of incident and at the pointing out of the complainant he inspected the place of incident. He had collected the blood from the spot and prepared the memo, the same was proved by the witness as Exhibit Ka. 7. After inspecting the place of incident prepared the site plan, which was proved by him as Exhibit Ka. 8. He had further examined Latafat who was the eye witness of the occurrence. On receiving news of death of the victim at Medical College Section 302 I.P.C. was added. Thereafter he tried to arrest the accused persons, namely, Riyasat, Saleem and Babu but they were absconding. He had recorded the statement of C.L. Dinesh on 26.4.1991 who had conducted the inquest of the deceased. During investigation he came to know about that on 23.4.1991 accused Babu was arrested at police station Medical, Meerut and he further stated that after completing all the formalities relating to the investigation he had submitted the charge sheet and forwarded the same to the court, which was proved by him as Exhibit Ka.9.
P. W. 9 Chhedi Lal Dinesh S.I. who was posted at police station Medical as S.I. had deposed that he received a letter from the Chief Medical Officer, Medical College in which it was mentioned that at about 9.50 A.M. on 22.4.1991 deceased Mohd. Iliyas aged about 45 years son of Bashir Ahmad was brought. It was also mentioned that he was brought by Shams Parvez, hence necessary action be taken. After receiving the said letter it was also mentioned in the G.D. Thereafter he along with Devendra Singh with a copy of the inquest went to the emergency ward where they found the dead body of the deceased Mohd. Iliyas. The dead body was identified by his son Shams Parvez, five witnesses were arranged at the time of conducting inquest of the deceased. After conducting inquest the dead body was sealed and sent through Devendra Singh for post mortem along with medical papers. Letter to Medical Officer (Casualty) Exhibit Ka. 1, inquest report and other papers of Chief Medical Officer, Form No. 13, Form No. 33, Khaka Nash and Supurdagi Nash, blood stained notes, which were found from the pocket of Kurta of the deceased were handed over to Nizam, which was proved by him as Exhibit Ka. 10 to 15. He had further deposed that he had seen the injuries over the dead body. On the left nipple there was a hospital tape. There was blood on the left arm hence he could not see any other visible injury.
All the aforesaid witnesses were put to length cross examination by the defense. The witnesses have with stood the searching cross examination.
After recording the statement of the witnesses the statement of Riyasat and Saleem under Section 313 Cr.P.C. were only recorded as Babu had died earlier. They had denied the prosecution case and deposed that they had been falsely implicated due to enmity and false case has been registered against them. Accused Riyasat had deposed that due to party bandi and political influence he has been falsely implicated in the case. Accused Saleem had stated that Riyasat is his father. On account of election rivalry he had been falsely implicated in the present case.
After the examination of the accused persons the court had examined the court witnesses. C.W. 1 Ali Natif Nadvi, the retired Reader was examined who had deposed that he was posted as a Reader in the court of the then Presiding Officer R.K. Singh. A correction was made in the statement of P. W. 3 Sarvan Singh as name of Shams Parvez was transcribed in place of Qamar Parvez who was driving the vehicle.
C.W. 2 Anwar Hussain Rizvi, Advocate had deposed that he was appearing as defense counsel and the statement of Sarvan Singh P.W. 3 was recorded in his presence. C.W. 3 Ratan Lal Garg, Advocate had also appeared as defense counsel. The court witness who was examined by the trial court as C.W. 4, namely, R.K. Goel and Abdul Jabbar, Advocate were doing parivi on behalf of the prosecution and Ravi Piyush Saxena D.G.C. (Criminal) on behalf of the State.
After conclusion of the evidence of the prosecution witnesses on 18.7.2001 Dr. Harish Chandra was summoned and was examined as C.W. 1. He had deposed that his clinic is in Kithour on Garhmukteshwar Road, Meerut. This clinic is in front of the old bus stand. He was not present at about 9 A.M. on 22.4.1991 as he had opened the clinic at about 7 A.M. in the morning. The daughter of Mohd. Iliyas Chairman was sick. He was called by the Chairman at about 7.30 A.M. to his house. Again he has stated that the son of the Chairman had brought his daughter to his house and thereafter he had accompanied with them to his clinic. He remained with them at his clinic from 7.30 A.M. to 7.45 A.M. and thereafter he went back to his house. Mohd. Iliyas had come his clinic at about 8.30 A.M. He was accompanied with Sams Parvej who also known as Haji besides 2/3 more persons. Mohd. Iliyas had sustained injury inside his clinic. He was not able to say the names of the accused persons as he was not present there. He had not given any first aid to Mohd. Iliyas.
After the examination of Dr. Harish Chandra Verma as C.W. 1 the accused Riyasat and Saleem were again examined under Section 313 Cr.P.C. on 16.4.2002. They had denied the statement of C.W. 1 and had stated that Dr. Harish Chandra Verma had not given truthful statement who had deposed under the influence of the son of the deceased Mohd. Iliyas that was the reason that he was not ready earlier to depose before the court. The accused Saleem in his statement had stated that the statement of Dr. Harish Chandra Verma is totally false and had been given under the influence of the present Chairman Shams Parvez.
In defense the accused persons produced D.W.1 Mehmood and Constable Rakesh Kumar. D.W. 1 Mehmood had stated that he knew the Ex Chairman Mohd. Iliyas since before. His son Shams Parvez is presently the Chairman of Kithour. He also knows his brother Qamar Parvez. Eleven years ago Mohd. Iliyas was murdered. He had not seen the incident. On the day of the incident he had gone to take payment to Meerut at about 9 A.M. He returned back after taking money between 12 and 1 P.M. to Kithour. After returning from there he came to know about that the Chairman Mohd. Iliyas had been killed. He was not aware about the assailants. He had further stated that he knew witness Latafat who is residing near the house of Chairman Mohd. Iliyas. After the murder of Mohd. Iliyas, Shams Parvez had come to his house in the evening and asked him that as his name has been mentioned as witness, hence he has to give statement. This witness had stated that he had already told Shams Parvez that he had not witnessed the incident and he cannot give false statement and he had refused to give any statement.
D.W. 2 Constable Rakesh had deposed that he had brought two packets of blood stained clothes from Malkhana, which was proved by him as Exhibit Ka. 3, 4 and 6.
The learned Sessions Judge after considering the evidence on record convicted both the appellants as stated supra. The accused Babu had died during the pendency of trial, hence his trial already stood abated against him.
The accused Riyasat who had preferred separate appeal No. 4496 of 2003 against his conviction has also expired during the pendency of the appeal. The report of the then Chief Judicial Magistrate, Meerut dated 22.2.2011 was received pursuant to the order passed by this Court on 4.1.2011 verifying the factum of death of accused Riyasat who has expired on 22.10.2005 on account of cancer but it transpires from the perusal of the order sheet that despite receiving the report of the Chief Judicial Magistrate, Meerut no order was passed abating the appeal filed on behalf of Riyasat as such the aforesaid Criminal Appeal No. 4496 of 2003 is hereby abated. Thus we are proceeding to decide the criminal appeal filed on behalf of accused/appellant Saleem. The learned senior counsel Sri V.M. Zaidi has argued the case on behalf of surviving appellant Saleem.
We have heard Sri V.M. Zaidi, learned senior counsel assisted by Sri Imran Khan, Advocate on behalf of the appellant, Sri Syed Ali Murtaza, the learned A.G.A. on behalf of the State and Sri Satish Trivedi, learned senior counsel assisted by Sri A.K. Pandey, Advocate on behalf of the complainant.
The learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the motive for committing the murder of Mohd. Iliyas. According to the prosecution case the motive has been assigned that in the election of Chairman, Nagar Panchayat, Kithour, Mohd. Iliyass had won the election. The said election was held in the year 1988. Accused Riyasat who had also contested with other candidates was at third position hence he had lost the election, whereas the present incident which is said to have taken place, is of the year 1991, therefore, there was no immediate motive to the appellant to commit the murder of the deceased. The deceased was hardened criminal and was bearing enmity with several persons of the area and as such he was done to death in some another manner and the appellant has been implicated in the present case. The appellant is the son of Riyasat, hence there was no occasion for him to play any role in the murder of Mohd. Iliyas. It is further stated by the learned counsel that the first information report is anti time and anti dated. The first information report was lodged by Shams Parvez at police station Kithour at 9.20 A.M. is highly doubtful as the letter of the Chief Medical Officer dated 22.4.1991 at 9.50 A.M. to the S. O. Medical, Meerut shows that the deceased was brought by Shams Parvez, thus the presence of Shams Parvez at the police station at 9.20 A.M. to lodge the first information report and at the same time his presence at the Medical College is beyond imagination. His presence at both the place cannot be possible. It is further submitted by the learned counsel that P.W. 9 Chhedi Lal Dinesh who had conducted the inquest of the deceased had stated that Shams Parvez had identified the body of the deceased. The inquest was conducted at Medical College, Meerut, hence it is highly doubtful that he had lodged the first information report. It is also very unnatural that instead of taking his father for the medical treatment he would firstly go to the police station to lodge the first information report, which goes to show that the first information report was lodged at some other point of time. The special report was not sent on the same day from police station Kithour to the Magistrate concerned. There is no evidence on record that at what time and what date the same was received in the court of the Magistrate concerned. There is no evidence on record that the first information report was sent on the same date to the Magistrate. Rather the special report was sent to the Magistrate on 23.4.1991, which is not within 24 hours as prescribed under Section 157 Cr.P.C. The Investigating Officer is said to have collected the blood from the clinic of the Doctor C.W. 1 Harish Chandra Veerma on the same day of the incident whereas Dr. Harish Chandra Verma who was examined as C.W. 1 has stated that the clinic was locked and the blood was taken after three days from the date of the incident by the Investigating Officer. The contradiction in the statement shows that the first information report is anti time and anti dated.
There is material contradiction in the statement of P. W. 1 Shams Parvez, P.W. 2 Latafat and P.W. 3 Sarvan Singh in respect of the manner of assault and hence the presence of the witnesses at the time of firing by the accused persons at the deceased is suspicious. Sarvan Singh who is the shadow of the deceased remained a silent spectator when he was entrusted to provide safety and security to the deceased. It is very astonishing feature that he could not over power any of the accused persons. He had made an effort to show that he had deposited the empty cartridges in armoury, which was fired by him. Similarly P.W. 2 Latafat can be termed to be a chance or tutored witness of the said incident as Mehmood to whom the prosecution had made an eye witness in the first information report was produced as defense witness and had denied his presence along with P.W. 2 at the time of incident. This clearly shows that P.W. 2 was not present at the time of the incident. Since he is neighbour of the victim party he cannot be termed as an independent or wholly reliable witness.
The investigation is also tainted one as the investigation has been done in a most unfair and partial manner. The Investigating officer had collected blood from the place of incident and had prepared memo on the same day but the Dr. Harish Chandra had stated that his clinic was locked at 10.30 A.M. on 22.4.1991 and the same was opened after three days and thereafter the blood was collected from the place of incident. This contradiction clearly goes to the root of the case to doubt the testimony of the prosecution witnesses with regard to the manner of incident. There is clinching material on record that the chick first information report was sent on the next day. The Investigating Officer had failed to record time and date when it was received in the office of the concerned Magistrate. The special report was not sent "forthwith", which is mandatory requirement of Section 157 of the Code of Criminal Procedure.
The medical evidence is also inconsistent with the prosecution case. According to the first information report the complainant has stated that the accused Saleem had fired at his father Mohd. Iliyas with country made pistol, which hit on his chest. The post mortem report shows that two entry wound found on the person of the deceased. The seat of injury no.1 shows tattooing around the wound and exist of the same innerside upper left arm connected to entry wound of injury no. 1 while injury no. 3 shows that there is no blackening and tattooing around the wound and it was on the chest of the deceased. The Doctor has stated about that the injuries received by the deceased can be of two shots. Moreover in the post mortem report the stomach of the deceased was found empty whereas the deceased had started from his house at about 8.30 A.M. then he would have taken some breakfast in the morning but the stomach is found empty, it ensures that the death would have occurred at some other point of time.
It is also contended by the learned senior counsel that there was no independent public witness of the incident, which is said to have occurred at about 8.30 A.M. in front of the bus stand and the clinic situated in front of the bus stand. By not examining any independent witness creates doubt about the testimony of the prosecution witnesses who are closely related to the deceased. The deceased was a hardened criminal and was involved in a number of heinous offences and he has number of enemies, therefore, there is every likelihood that he was done to death by some other persons and the appellant has been falsely implicated. The appellant is languishing in jail since more than 17 years, even assuming not admitting the prosecution case, the case against the appellant would not travel beyond the Section 304 Part II of the Indian Penal Code. The conviction and sentence recorded by the learned trial court under Section 302 I.P.C. for life imprisonment is against the evidence on record, hence the conviction and sentence is liable to be set aside.
The learned A.G.A. as well as the learned counsel appearing on behalf of the complainant have refuted the submission advanced by the learned counsel for the appellant by contending that it is a case of a broad day light incident, the presence of the complainant as well as other witnesses has fully established the manner in which the incident had occurred. There is no discrepancy in the oral testimony of the prosecution witnesses with the medical evidence. The first information report was lodged by the son of the deceased Shams Parvez in a very natural and articulate manner in respect of the incident, which had occurred at about 9 A.M. on 22.4.1991 specifically naming all the accused persons and attributing their roles. The first information report was promptly lodged at about 9.20 A.M. at police station Kithour under section 307 I.P.C. as Mohd. Iliyas the deceased was fired by the appellant Saleem at the instigation of his father Riyasat. Both the accused Saleem and Riyasat were bearing enmity due to election of chairmanship, the father of the appellant had lost the election and the father of the complainant had won the election of chairmanship in the year 1988. Prior to 4/6 days ago the father of the appellant Riyasat had met with the deceased and had exchanged heated words and the latter was threatened of dire consequences. On the day of incident when the deceased was going to Meerut along with his son Shams Parvez, Qamar Parvez and shadow Sarvan Singh they waited at the clinic of Dr. Harish Chandra Verma as Qamar Parvez had gone to take Nizam to accompany with them. The father of the appellant Riyasat came and had seen the deceased Mohd. Iliyas sitting in the clinic of Dr. Harish Chandra Verma and had asked that he will not be spared today and at this the appellant Saleem had made a fire upon him with a country made pistol. The role of the appellant in the commission of offence stands clrealy established from the clinching evidence on record. The lodging of the first information report promptly by the son of Mohd. Iliyas diminishes the chance of false implication. The case was initially registered under Section 307 I.P.C. at 9.20 A.M. at police station Kithour by Shams Parvez. After the incident the father of the complainant was immediately sent for medical aid through Qamar Parvez who was admitted at the hospital at about 9.50 A.M. and soon thereafter he died at about 10.05 A.M. at the Medical College, Meerut as an abandoned caution the complainant who is elder son of the deceased had asked his younger brother Qamar Parvez to mention his name to the Doctor and on account of which the Doctor had written as brought by Shams Parvez and due to this reason the Chief Medical Officer, Meerut Medical College had informed the Circle Officer about the death of Mohd. Iliyas at 9.50 A.M. and mentioned that Mohd. Iliyas was brought by Shams Parvez.
It is further submitted that it is entirely wrong to say that the first information report was an anti time and recorded after the inquest was conducted. The distance from the place of incident to Medical College was hardly 21 km., which can be easily covered within half an hour. The post mortem of the deceased was conducted at Meerut whereas the first information report was lodged at police station Kithour and hence the papers relating to the first information report was not annexed at the time of conducting the inquest. The inquest does not find place case crime number or section when on the report of the Chief Medical Officer the Sub Inspector C.L. Dinesh had conducted the inquest and at that time he had no record in this regard as the first information report was lodged by Shams Parvez and Shams Parvez was not present when the inquest was conducted at Medical College, Meerut. Due to this reason C.L. Dinesh was examined as P.W. 9 has not mentioned about the case crime number and section at the time of preparing inquest report of the deceased.
The medical evidence fully corroborates the prosecution case. At the time of lodging of the first information report it was mentioned that the accused/appellant Saleem had fired one shot at Mohd. Iliyas. In the post mortem report one entry wound was found in the upper arm though in the first information report the complainant had stated that his father had received injury over his chest and fell down but he had clarified that later on he came to know that the fire was already hit on his arm which he could not notice at that time as the spurt of blood came out after receiving the shot. The post mortem report clearly shows that there are two entry wounds caused by single shot. The seat of injury clearly shows that it was pierced into arm and then entered into the chest. There is an entry and exist wound on the left upper arm and thereafter it was entered in the left side of the chest and as such it is not a case of fire by two separate shots. The metallic bullet was recovered from the chest.
It is further argued that on account of the election of Town Area Committee Kithour in the year 1988 for the chairmanship in which the father of the complainant had won the election and due to this reason the appellant and his father was bearing enmity. It has been specifically stated in the first information report by the complainant that the deceased had disclosed about that Mohd. Iliyas father of the complainant had met with Riyasat and some heated altercation took place with him and he had also threatened his father. The presence of the witnesses on the spot is natural, which is fully corroborated by their oral testimony the motive is sufficiently proved by them. Even if the prosecution fails to prove the motive it looses significance when there is direct evidence. The first information report promptly lodged within 20 minute of the incident. The submission of the defense that the first information report was anti time cannot be accepted in view of the evidence on record, which shows that the first information report was lodged promptly within 20 minute naming all the accused persons, time and place of incident, weapon and the manner of assault by the accused/appellant, which lend a seal of assurance of the presence of eye witnesses at the place of incident and also participation of the accused persons in the crime. Mere omission to mention crime number in the inquest report or not sending the special report promptly to the Magistrate would not be fatal as the defense did not put any question in this regard to the Investigating Officer. The report was sent to the Magistrate on the next day, which cannot be said to be an inordinate delay in sending the report to show that there was any improvement with regard to the manner of incident, if there is any lapse on the part of the Investigating Officer that would not affect the credibility of the prosecution witnesses.
Lastly, it has been contended by the learned counsel for the complainant that the appellant is a hardened criminal who has been convicted in the murder case of Reshma Parveen @ Guddi who is the daughter of deceased Mohd. Iliyas during the pendency of the present trial. Since the appellant has committed murder of the father of the complainant and also committed murder of the sister of the same family. The instant case also does not come within the fore corner of Section 304 Part II IPC. The trial against the appellant proceeded in respect of the murder of complainant's sister being numbered as S.T. No. 760 of 1997 in which he has been convicted for life imprisonment by order dated 5.9.1998 by the then Additional Sessions Judge, Meerut. Against his conviction the appeal is pending before this court being numbered as Criminal Appeal No. 1884 of 1998 in which the bail was granted by order dated 22.12.1998. The learned trial court has taken into consideration the totality of the circumstances of the case forming the basis of the conviction of the appellant, hence the conviction recorded by the trial court deserves to be maintained. The Hon'ble Supreme Court in th case of State of U.P. Vs. Kishan, 2005 (51) ACC 461 has observed as under;
"The object should be to protect the society and to deter the criminal in acheiving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be".
"The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
We have considered the submissions advanced by the learned counsels for the parties and have perused the original record summoned for the disposal of the appeal.
At the outset it needs to be mentioned that it is not disputed that the deceased Mohd. Iliyas who is the father of the complainant met homicidal death on account of the injuries sustained by him on the day of the occurrence. According to the prosecution case the occurrence took place on 22.4.1991 at 9 A.M., the first information report of which was lodged by P.W. 1 Shams Parvez against the named accused persons, namely, Saleem, Riyasat and Babu. Saleem is the son of Riyasat and Babu belongs to the party of Riyasat. The first information report was lodged at about 9.20 A.M. against them under Section 307 I.P.C. As case Crime No. 113 of 1991. Mohd. Iliyas was fired upon by the appellant Saleem who succumbed to the injuries at about 10.05 A.M. in the hospital, hence offence under Section 302 I.P.C. was added.
The prosecution had examined Shams Parvez the son of the deceased as P.W. 1, Latafat P.W. 2 as an independent eye witness, Sarvan Singh as P.W. 3 who was the security guard of the deceased and Qamar Parvez the brother of the complainant and younger son of the deceased as P.W. 4. In the election of the Chairman of Gram Panchayat Kithour the father of the complainant had won the election and became the Chairman while Riyasat the father of the appellant had lost the election who was at third place, hence the latter was bearing grudge and prior to the incident about 5-6 days ago he had threatened the deceased that he will face the consequence. In the case of Harish Chandra Bahri Vs. State of Bihar, 1994 Criminal Law Journal 3271, the Hon'ble Apex Court has held as under;
"Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which promots a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence chareged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circustmances prompted him to a certain course of action leading to the commission of the crime."
The motive of committing the crime in the instant case is fully established from the testimony of the prosecution witnesses.
On the fateful day Riyasat came at the clinic of Dr. Harish Chandra Verma when the deceased along with others named were sitting in his clinic as they were waiting for Nijam to whom his son Qamar Parvej P.W. 4 had gone to take him in his vehicle, at the instigation of accused Riyasat the appellant Saleem had fired upon him with his country made pistol and on receiving firearm injury Mohd. Iliyas who was sitting inside the clinic had fallen down. The shadow of the deceased had fired upon from his revolver but all the accused persons ran towards the lane from where they had emerged. They were tried to be nabbed by the complainant, shadow and other persons of the locality but they could not be apprehended. The first information report about this incident was promptly lodged by Shams Parvez under Sectiion 307 I.P.C. at about 9.20 A.M. The distance of the police station was one furlong. The first information report contained time of occurrence, motive and manner of the crime, name of the accused persons etc. Hence prompt lodging of the first information report eliminates the chance of embellishment in the prosecution case. The injured father was immediately sent with Mohd. Arif along with shadow to Medical College Meerut where he was admitted in emergency ward by Qamar Parvez who at the time of admitting Mohd. Iliyas the name of person brought by was mentioned as Shams Parvez as instructed by Shams Parvez. After sending his father in injured condition the first information report was lodged by Shams Parvez at 9.20 A.M. At police station Kithour. It cannot create any doubt as going through the statement of Sarvan Singh P.W. 3 it emerges out that Mohd. Iliyas was brought by Qamar Parvez who was driving the vehicle and as such no question arises that Shams Parvez had brought his father to the hospital. The deceased died while he was taken to the hospital at 9.50 A.M. and as such through R.T. Set the information was received at police station Kithour about his death at about 10.05 A.M. At the time of conducting inquest Sub Inspector C.L. Dinesh P.W. 9 had recovered 80 rupees from the pocket of Kurta of the deceased and was handed over to Nizam, if Shams Parvez would have been present there the money would have been given to him while conducting the inquest of the deceased he found hospital tape near the left nipple of the deceased. He had not found any other injury as the clothes were covered with blood. At the time of conducting inquest of the deceased at Medical College Meerut P.W. 9 had deposed that Shams Parvez was present at the time of inquest of the deceased though he did not know him. The inquest was concluded at 12 0'clock at that time he had no knwoeldge that the case was registered at police station Kithour about the murder of the deceased. The copy of the first information report was not reached at the time of inquest which was conducted at Medical College, Meerut. Hence crime number etc. were not mentioned therein. The first information report which was lodged at 9.20 A.M. on 22.4.1991 was sent to the concerned court on 23.4.1991. Even if the special report is not dispatched "forthwith" it was only a fault of investigation and on that ground the eye witness account, which is otherwise reliable can not be disbelieved.
It is also pertinent to state that Section 157 Cr.P.C. makes it obligatory on the Officer-in-Charge of the police station to send a report of the information received to a Magistrate "forthwith" but that does not mean to denounce and discard an otherwise positive and trustworthy evidence on record. The Hon'ble Apex Court in the case of Ravindra Mahto Vs. State of Jharkhand, 2000 (54) ACC 543 SC held as under;
"There cannot be any manner of doubt that Section 157 of Cr.P.C. requires sending of a first information report to the Magistrate forthwith, which reaches promptly and without undue delay. The reason is obvous to avoid possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated, if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 Cr.P.C. are for the purposes of having a fair trial without there being any chance of fabrication or altercation of the fact at subsequent stage of investigation."
In view of the above, we have come to the conclusion unhesitatingly that technaility ought not to out weigh the course of justice, if the court is otherwise convince and has come to the conclusion as regard the truthfulness of the prosecution case. Mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case.
The learned counsel for the appellant has also highlighted various discrepancies in the statements of the prosecuton witnesses and created doubt about their conduct. So far as the discrepancy in the statements of the prosecution witnesses are concerned there appears no justification to disbelieve the entire prosecution case on this ground. In the case of State of Rajasthan Vs. Smt. Kalki and another (1981) 2 SCC 752, the Hon'ble Apex Court has held as under;
"In the depositon of witnesses there are always normal discrepancies due to normal observation loss of mental disposition of the witnesses, unless otherwise therefore the discrepancies are material discrepancies so as to create a reasonable doubt about the credibility of the witnesses the court will not discard the evidence of the witnesses. The discrepancies are not so material, which goes to the root of the case and materially affect the prosecution case. The presences of the eye witnesses cannot be doubted or suspected merely they are related to the deceased. There is no proposition of law that relatives are to be treated as untruthfull witnesses. We cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reason. It is well settled that it is the quality of the evidence and not the quantity of the evidence, which is required to be adjudged by the court to place credence on the statements. There is no strong motive or ill will on the part of P.W. 1 and P.W. 4 who are sons of the deceased to exonerate the real person who caused injuries to the deceased to implicate the accused/appellant.
In our opinion undue importance to minor discrepancies that too in regard to the subsequent events and not to the actual incident cannot be considered to be contradictory to reject the testimony of the eye witness. In our view the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The incident is of 1991 and the oral evidence was recorded till 2001 hence the error due to loss of memory may be given allowance.
From the thread bare analysis of the prosecution case, the presence of the witness at the place of occurrence was natural and their testimony cannot be oversighted. The prosecution has presented a genuine account of the incident attributing specific role to the appellant Saleem, hence it would not be proper to over shadow the entire prosecution story for want of examination of any independent witness. There is no presumption of law that relatives are to be treated as untruthful witnesses. It is well settled that it is the quality of the evidence and not the quantity which is required to be judged by the court. There is no reason to negate the evidence of the eye witnesses, which is fully corroborated by the medical testimony. So far as the question relating to anti mortem injuries, one fire made upon the deceased but the post mortem report shows two entry wounds. By one shot of fire two entry wounds are quite possible, which is particularly discernible in the present case from the nature of wounds. The opinion of the Doctor as to how the injury was caused cannot override unimpeachable testimony of the eye witnesses. Even otherwise the Doctor has fully explained that the shot was first hit on the arm thereafter it had made an exit wound and thereafter it entered into the chest. The post mortem report shows that the ribs were broken and a bullet was also recovered. It is not possible for the witnesses to watch every shot on the deceased. At the time of conducting the postmortem report stomach was found empty hence it was argued that before the incident the deceased would have taken some food and as such medical evdience does not corroborate the time of occurrnece. In this regard the state of content in the stomach is not a safe guide for determining the time of occurrence. The medical evidence is yet not perfect to determine the exact time of death. The time required for digestion may depend on the nature of food and digestion capacity. In the absence of cross examination in this regard it is merely speculative, hence the defense counsel cannot derive any benefit. In our opinion there is no contradiction between the oral testimony and the medical evidence about the time of incident.
It is evident that the incident is of 1991 and the record shows that after closure of the defense evidence in the year 1998 appliction for calling Dr. Harish Chandra was moved on behalf of the defense on 4.3.1991, which was rejected by the learned trial court and after 11 years the Doctor Harish Chandra Verma produced as court witness C.W. 1 and was examined on 18.7.1999 to somehow create doubt about the prosecution case and who in his cross examination had stated that the clinic was closed for about three days and the blood was collected after opening the lock after three days. He had also denied that any incident had taken place in his presence. The statement of C. W. 1 was further recorded on 18.7.2001 who has shown his presence in the clinic from 7.30 to 7.45 A.M. and thereafter he went away to his home. However, he has stated that Mohd. Iliyas came to clinic at about 8.30 A.M. along with his son Shams Parvez, nephew and shadow. The fire was made upon Mohd. Iliyas when he was sitting in the clinic. The Investigating Officer prepared the memo of recovery of blood on the same day. The Investigating Officer has found the blood on the spot and the trail of blood when the victim was lifted at the vehicle, further strengthens the prosecution case.
The denial of the accused/appellant Saleem in his statement under Section 313 Cr.P.C. when specific and separate questions were put with regard to the incriminting evidence and circumstances leads to irresistible conclusion that it has formed to complete the chain establishing the guilt of the appellant resulting into his conviction by the trial court.
The learned trial court has sifted the entire evidence on record carefully and waringly arriving at just and reasonable conclusion. The deceased was done to death due to old election rivarly in a very inhuman and gruesome manner. The defense has tried to evolve the story that the deceased was harneded criminal having number of criminal cases and a history sheeter to over shadow the testimony of the eye witnesses. Merely on account of this no adverse inference can be drawn to discredit or overshadow the prosecution case particularly when the appellant after the incident had committed murder of Reshma Parveen @ Guddi the daughter of the deceased and real sister of the complainant. The appeal filed by appellant Saleem being numbered as Criminal Appeal No. 1884 of 1998 is pending before this court filed against his conviction for life imprisonment by the learned trial court.
So far as the accused/appellant Riyasat is concerned his appeal has already been abated by this court on account of his death.
The inevitable conclusion is that the instant Appeal No. 4977 of 2003 preferred by appellant Saleem sans any merit deserves dismissal.
The appeal is accordingly dismissed.
The judgment and order of the trial court passed in S.T. No. 49 of 1993 is hereby maintained and upheld.
Let a copy of this judgment and order along with original record be transmitted to the learned trial court for information and compliance.
Judgemnt certified and be placed on record.
(Chandra Dhari Singh,J.) (Naheed Ara Moonis,J.)
Dt. 20.7.2018.
Sh.