P L D 2006 Supreme Court 273 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This jail petition is directed against the judgment 19-10-2004 passed by Lahore High Court, Lahore in Criminal Appeal No.559 of 2000 filed by the petitioner against his conviction and sentence, of death awarded to him by learned Additional Sessions Judge, Faisalabad, under section 302(b), P.P.C. whereby the appeal was dismissed with conversion of sentence of death into imprisonment for life with direction to pay Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.

2. The petitioner was tried for the charge under section 302(b) read with section 109, P.P.C. in a case registered against him on the statement of Umer Hayat son of Allah Ditta, deceased, vide F.I.R. No.169 dated 31-3-1998 at Police Station Dijkot, Faisalabad, wherein he stated that on his passing 9th Class examination, Ch. Ahmad Hussain and Muhammad Sadiq along with others, came to see his father in the evening on 31-3-1998 for offering facilitation on his success and when they were busy in talking, Muhammad Latif (petitioner) son of Muhammad Hanif came there with the message of his father, Muhammad Hanif that deceased should see him at his brick kiln whereupon, the deceased along with Ahmad Hussain and Muhammad Sadiq proceeded towards the brick kiln and when they reached at a distance of about 2 acres, Muhammad Latif (petitioner) suddenly taking out licensed rifle of his father from underneath his Chaddar fired at the deceased, raising Lalkara that he would teach him lesson for not giving the hand of his daughter to him. The shot fired by the petitioner hit on the left flank of the deceased who fell on the ground and simultaneously, a second shot fired by him hit the deceased on his belly, who succumbed to the injuries at the spot. The petitioner by extending threats of life to the witnesses, decamped from the scene of occurrence. The motive behind the occurrence was that about 2 months ago Muhammad Hanif, father of petitioner, had demanded the hand of the sister of complainant from his father for petitioner but due to his bad reputation, deceased refused to accept the proposal as a result of which the petitioner felt insulted and done the deceased to death. In proof of the charge, the prosecution produced Umer Hayat complainant (P.W.5), Ahmed Hussain (P.W.6) eye-witnesses of the occurrence. Dr. Muhammad Anwar (P.W.4), who conducted post-mortem examination of the deceased, Muhammad Yonis, S.-I. (P.W.9) and Younis Ali, A.S.-I. (P.W.10), the Investigating Officers of the case, Akhlaq Hussain, Head Constable (P.W.1), Zulfiqar, Constable (P.W.2), Manzoor Hussain (P.W.3), Akhtar Ali, Constable (P.W.7) and Muhammad Riaz, Patwari (P.W.8) who remained associated with the investigation and in addition also placed the report of the Chemical Examiner (Exh. P. L.) on the record. The petitioner in his statement under section 342, Cr.P.C. denied the allegation and pleaded as under:-- "About five days before the occurrence, the deceased Allah Ditta had committed unnatural act with me in the watercourse in which occurrence took place and I did not talk about this fact with anybody on account of shame. A day before the occurrence the deceased again caught hold of me for the above purpose and on the pretext of my sickness I got myself released from the deceased. On the evening of occurrence, I had gone armed with rifle to save myself from the assault of deceased Allah Ditta. Shortly before the occurrence the deceased caught me and put Japha to satisfy his unnatural lust and thereupon I fired shot from the rifle at the deceased."

3. Learned counsel for the petitioner has contended that the occurrence had taken place after sunset at a lonely place at a reasonable distance from the village Abadi and the circumstances leading to the incident would suggest that it was an unseen occurrence and no one except the petitioner and deceased, were present at the spot. Learned counsel argued that the admission of petitioner regarding firing at the deceased in exercise of his right of self-defence to resist the evil design of the deceased of committing sodomy with him, would strongly suggest that the prosecution version relating to the motive and pre-meditation was not based on truth and the case against the petitioner would squarely fall within the ambit of section 302(c), P.P.C. for the purpose of punishment.

4. Learned counsel for the State, on the other hand, has contended that the occurrence had taken place at a short distance from the residence of the deceased when he along with the petitioner and the witnesses were proceeding to the Dara of Muhammad Hanif, father of petitioner and submitted that the eye-witnesses who were entirely independent, truthful and confidence-inspiring, have fully supported the prosecution case as contained in the first information report lodged immediately after the occurrence. The learned counsel added that in the light of unimpeachable character of ocular account duly supported by the medical evidence and attending circumstances, the defence plea taken by the petitioner being not supported by any evidence, direct or circumstantial, would not be given any weight and mere admission of the petitioner of firing at the deceased would not be sufficient to discard the prosecution evidence and believe the defence version.

5. In the light of admission of the petitioner, the only question requiring determination would be whether the occurrence had taken place in the manner as claimed by the prosecution or as stated in the defence version. The examination of the two versions in the light of evidence and the circumstances leading to the occurrence would show that the petitioner armed with rifle, having prepared himself went to the place of occurrence with the intention to commit the crime and thus, it was not a sudden occurrence as pleaded in the defence version. We having considered the defence plea of self-defence in the light of prosecution evidence, have not been able to find out any substance in the contentions raised by the learned counsel in support of this petition. Taking the question of sentence, we find that learned trial Judge having found the petitioner guilty of the charge of murder, awarded him maximum sentence of death provided under section 302(b), P.P.C. whereas the learned Judges in the High Court being of the view that the petitioner under the influence and command of his father committed the offence, reduced his sentence from death to imprisonment for life and we would take no exception to the judgment of the High Court

6. In the light of foregoing reasons, we find no merit in this petition and the same is accordingly dismissed. Leave is refused. N.H.Q./M-34/S?????????????????????????????????????????????????????????????????????? Leave to appeal refused.