2017 PLP 2036 (SCMR)

DOST MUHAMMAD KHAN, J.

Crl. P. 837-L/13: The petitioner in this petition is seeking leave to appeal against the impugned judgment of the Lahore High Court, Lahore dated 24.6.2013, while in the connected Crl. P. No. 904-L/2013 (Munazza Bibi v. Mazhar Iqbal) the complainant has challenged the same judgment, seeking reversal of the order of acquittal of Mst. Rashidan Bibi and Azhar Iqbal and also for enhancement of the sentence of the present petitioner, namely Mazhar Iqbal.

2. We have heard the learned ASC for the convict-petitioner and Ch. Muhammad Waheed, learned Additional Prosecutor General, Punjab. The complainant and her counsel are playing hide and seek game with the Court as is evident from the various order sheets of the previous dates of hearing because repeatedly the adjournments are sought on one pretext or the other. Lastly the Court issued a warning note vide order dated l.2.2017 that in case, on the next date the learned ASC for the complainant does not turn up, the case would be decided on merits and hearing was adjourned to 13.2.2017 but even such warning did not bear fruit, which shows that the complainant has forfeited her right of audience and hearing both.

3. Brief facts of the present crime are, that the deceased Ijaz Hussain was a truck driver who had come to his house however, on the night of occurrence i.e. between 30th and 31st of May, 2011 at about 2.00 a.m. after midnight, his cleaner on the truck namely, Muhammad Akram told him that the truck is loaded and ready for transportation of goods. He left in the company of the conductor however, it is stated that instead of doing the needful as was decided between the two, he went to the house of Khuda Bakhsh and sat there for chatting at 2:00 a.m. and during this course Mazhar Iqbal petitioner, along with Azhar Iqbal, Muhammad Akram and Muhammad Aslam armed with clubs, Mst. Rashidan Bibi widow of Allah Bakhsh and Mst. Samia Bibi wife of Mazhar Iqbal, also armed with clubs and bricks attacked the deceased and inflicted fatal blows on different parts of his body, who expired on the spot. The reporter of the crime i.e. widow of the deceased Munazza Bibi alleged that she was attracted to the crime house on the noise of commotion and similarly on her hue and cries, Muhammad Altaf and Muhammad Mumtaz also reached there.

4. The crime report was made vide FIR No. 179 on the spot with police officer who reached there and the case was registered under sections 302/147/149, P.P.C.

5. At the trial, held by the learned Additional Sessions Judge Kallur Kot, the petitioner Mazhar Iqbal was found guilty and sentenced to life imprisonment under section 302(b), P.P.C. whereas Mst. Rashidan Bibi and Azhar Iqbal co-convicts, were sentenced to 14 years' R.I. under section 302(c), P.P.C. Each one of them was ordered to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was extended to them.

6. On appeal, the conviction and sentence of the petitioner was converted into one under section 302(c), P.P.C. and he was given sentence of 10 years' R.I., while the amount of compensation was maintained, however, Mst. Rashidan Bibi along with Azhar Iqbal, co-convicts were acquitted. We have gone through the evidence on record.

7. It is an admitted fact that the deceased went to the house of accused at 2:00 a.m. after midnight albeit it is stated that he along with the conductor proceeded to the loaded truck to transport the goods, loaded in it to some other place. We cannot understand nor are ready to believe that the course of proceeding was suddenly changed. What was the need of urgency of discussion and chatting in a house of others, not related to the deceased, is a big question mark, particularly when the complainant herself in the FIR stated that the deceased was having illicit relations with Mst. Rashidan Bibi, acquitted co-accused, the widow of Khuda Bakhsh, the crime house belonged to. The case of the defence is almost the same.

8. We have gone through the site plan and it is no where shown that the house of the complainant was at a short distance therefore, her claim that she heard the noises of commotion and was attracted to the spot, is absolutely unfounded and this is the reason why the matter was reported with a considerable delay.

9. The other two alleged witnesses who were attracted on the cries made by the complainant are the permanent residents of Sargodha, 230 kilometers away, therefore, for all legal intents and purposes they were chance witnesses and unless they justify their presence at the crime spot, giving cogent reason, their testimony cannot be readily accepted.

10. The two Courts below although have reached at the conclusion that the occurrence has not taken place in the manner and accepted to a maximum extent the defence plea but despite of that they conveniently ignored the provisions of sections 97 and 100, P.P.C. which right is indefensible unless it is misused in a manner to exceed the limits, which must be established through evidence.

11. Mst. Rashidan was a middle aged lady of 45 years and was also widow and when the complainant and PWs have admitted that the deceased was maintaining illicit relations with her, the entry of the deceased to the house of Khuda Bukhsh deceased/accused was certainly not for any good reason but for illicit purposes then how the petitioner could be convicted for such charges when all the facts and circumstances clearly tell that the deceased has trespassed into the house for no other but for that purpose. The provisions of law give right to the occupant of any property to expel the intruder/trespasser and if the trespasser has made a trespass for illicit matters then, the right of self-defence of property and person is further fortified even to the extent of causing death of trespasser if he does not retreat after having been told or alarmed to retreat.

12. We have noticed in many cases of this nature that the police deliberately avoid to request the Medico-legal Officer to examine the private parts and clothes of the deceased/injured and even the accused connected with him after getting swabs from their private parts for chemical examination because that opinion would facilitate the Courts to reach at a fair and just conclusion. Therefore, copy of this judgment be sent to the Prosecutor-Generals of all the Provinces and the Islamabad High Court so that it is circulated amongst the Range Officers for future compliance and delivery of justice is facilitated in a fair manner.

13. There is no corroboratory evidence of any legal worth to give the story set up in the FIR any credence and strength

15. In view of what has been discussed above, we are of the considered view that the conviction of the petitioner and sentencing him under section 302(c), P.P.C. by the High Court was not a right step on its part because the above important and vital feature of the episode was conveniently ignored. Accordingly, benefit of doubt is extended to the petitioner and this petition is converted into appeal and the same allowed. The petitioner is acquitted of all the charges leveled against him and he shall be released forthwith if not required in any other case. Crl. P. No.904-L/2013: In view of the decision rendered above, acquitting the respondent/petitioner in the above case, this petition has become infructuous and is dismissed. Leave to appeal is declined. Crl. M.A. No. 106-L/14: As the petition has been converted into appeal and allowed, therefore, this Crl. M.A. has lost its relevance, hence the same is disposed of. MWA/M-50/SC Order accordingly.