2002 PLP 363 (YLR)

(3) A contusion mark 10 c.m. x 3 c.m. on right side back of chest middle part. (4) A scratch (abrasion) 5 c.m. x 1/10 c.m. on left side of neck. (5) Multiple abrasions (scratches) in an area 13 c.m. x 4 c.m. on right side neck. On 11-9-1994, Muhammad Abbas, S.I. P.W.11 arrested Muhammad Asif, accused, and got him medically examined through P.W.2 as mentioned above, on 13-9-1994 while in police custody he led to the recovery of pistol P.4 and its licence P.5, which we're taken into possession vide recovery memo. Exh.P.J. He completed the investigation and submitted the challan. The accused denied the allegations and claimed the trial. During the trial, the prosecution examined as many as 11 witnesses to prove the guilt of the accused. Ali Asghar, complainant was examined as P.W.8, he corroborated the version of the F.I.R. and grated the motive of the occurrence. Mst. shakeela wife of the accused and sister of e deceased and complainant was examined P.W.9, she supported the prosecution story as an eye-witness of the occurrence Sardar Muhammad. P.W.6 was the recovery witness as he had attested the recovery memos. of the articles taken into possession from the place of occurrence by Ghulam Abbas, S.I. P.W.11 and of recovery, of weapon of offence got covered by the accused vide recovery memo. Exh.P.J. Ghulam Abbas, S.I. P.W.11 investigated the case, recorded the statements of the witnesses and submitted the challan. The remaining witnesses are of formal nature, need not to be discussed. The prosecution evidence was closed by tendering in evidence the Report of Chemical Examiner, Exh.P.O. and that of Serologist Exh.P.Q. and Forensic science Laboratory Exh. P. R. Towards the end of the trial, the statement of the accused-appellant was recorded under section 342, Cr.P.C., who to the relevant question No.8 "what else he ants to say", he replied as under:- "I contracted love marriage with Mst Shakeela P.W. against the wishes of her parents and brother. On the day of occurrence at about 3-30 p.m. while I was empty-handed visited the house of my in-laws to take back my wife anti minor son Waseem to my home in friendly manner. Mst. Shakeela refused to accompany me. I snatched my son Waseem Abbas from her and at this stage one unknown person present there fired at me with pistol but accidentally it hit Irfan deceased. I was over powered at the spot after causing of injuries to me and I was produced before the police on the same day. P.s. with the connivance of local police have implicated me in this false case, alongwith co-accused. " He examined Ali Muhammad, S.P. as D.W.1 in his defence. The trial culminated into the conviction of the appellant as mentioned above. He has challenged his conviction and sentence by filing Criminal Appeal No.624 of 1996 while the Trial Court has sent up Murder Reference No.110 of 1996 under section 374, Cr.P.C. for confirmation of the death sentence of the appellant. Both these matters are being decided by single judgment. Learned counsel for the appellant has argued that the marriage of the appellant with Mst. Shakeela was without blessing of her parents; the appellant went to bring her wife alongwith minor son, which was refused by the complainant party, on which altercation took place and during the scuffle one unknown person fired shot hitting Irfan and the appellant was apprehended at the spot and was handed over to the police with false allegations; this fact has been admitted by Ali Muhammad, S.P. D.W.1, who had partly investigated the case; that the prosecution witnesses made dishonest improvements in their statements; that even if the prosecution case is believed correct, as it is, even then the occurrence took place under grave and sudden provocation. The appellant also received injuries during the same occurrence at the hands of the complainant and Irfan, deceased, therefore his case falls under section 102(c) P.P.C not under section 302(b) P.P.C and penalty of death is not legal and proper in the circumstances of the case. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State by arguing that a young boy aged 16 years in the prime of his youth has been brutally murdered by the appellant and he does not deserve any leniency. Heard Record persued. The appellant is nominated accused, with specific role in promptly lodged F.I.R.; the motive as alleged was proved; there is no previous enmity between the parties for false implication; the prosecution story narrated by the complainant P.W.8 has been fully corroborated by Mst. Shakeela wife of the accused, P. W.9; the ocular account given by both the witnesses P.W.8 and P.W.9 has been supported by medical evidence and the: recovery of the weapon of offence. The empties taken into possession from the place of occurrence tallied with the licensed revolver of the appellant as per report of Forensic Science Laboratory (Exh.P.R.). The arguments of the learned counsel for the appellant that the accused/appellant was apprehended by the complainant party and was handed over to the police does not make much difference, as there is no reason for his false implication; the injuries on the accused/appellant were also mentioned by the complainant in the F.I.R.; his presence and participation in the occurrence has not been denied, therefore, his conviction and section 302(b), P.P.C. is just, legal and proper and we do not find any ground for interference in the conviction recorded against him. As far as the sentence is concerned, we consider that the appellant had come to take his wife back with him which was his legal right; although he arrived at the house of the complainant armed with licensed pistol, but maximum intention could be to take his wife by force, but he never intended to commit murder of Irfan or anyone else. Admittedly, the complainant, deceased had other inmates had intervened with the appellant during which the appellant also received injuries, during the same occurrence. He caused single fire-arm injury at Irfan, deceased without repeating the same which resulted into unfortunate death, which cannot be termed as murder with pre-meditation, therefore, considering all the aspects of the case, we are satisfied that it is a fit case for awarding lesser penalty. Resultantly, the sentence of death is altered into imprisonment for life under section 302(b), P.P.C. However, the punishment of fine or in alternate six months' R.I. is maintained. Punishment under section 452, P. P. C. is also maintained. Both the sentences will run concurrently. Benefit of section 382-B, Cr.P.C. will also be available to the appellant. The appeal is dismissed with the above modification. The death sentence of Muhammad Asif accused is not confirmed. The murder reference is answered in the negative. Death sentence altered. H.B.T./M-1321/L Order accordingly.