2008 PLP 1228 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment, dated 21-4-2003 passed by the learned Additional Sessions Judge, Faisalabad, whereby, after having tried the appellant, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay an amount of Rs.1',00,000 as compensation to the legal heirs of the deceased in default whereof to further undergo R.I. for six months as provided under section 544-A, Cr.P.C. and benefit of section 382-B, Cr.P.C: was extended to him. Two co-accused of the appellant, namely, Ishfaq Ahmad and Ghulam Yasin were acquitted and PSLA No.44/03 filed against their acquittal was dismissed by my learned brother Asif Saeed Khan Khosa, J., vide order, dated 15-7-2003. Criminal Revision No.611/03 was filed for enhancement of sentence of the appellant.

2. Brief facts of the case, as given by the complainant in the private complaint are that on 4-7-2001 at about 3-30 p.m. complainant Aslam along with Anwar, Riaz and Mudassar were going towards the shop of Ismail Blacksmith, when they reached near the saw machine of Ghulam Yasin they heard the voice and saw that appellant armed with Mausar along with acquitted accused had encircled his son Nadeem Aslam deceased, Ishfaq started firing while appellant give a hatchet blow on his head followed by a hatchet blow by Yasin of his left wrist while Ishfaq cut his throat with Chhurree and then all the accused decam ped from the spot. The motive stated was of dispute of money and illicit liaison of the deceased with the ladies of accused party.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where the prosecution, in order to prove its case against the accused, produced six witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that it was a case of right of self-defence; that the occurrence had taken place at the Chaki of the appellant; that the deceased was a man of desperate character; that the deceased, at first, had fired at the appellant who exercised his right of self-defence and caused injuries to the deceased; that none had witnessed the occurrence who are very closely related to the deceased i.e. father Aslam and one Riaz who was a co-accused with the deceased in many criminal case; that two crime empties were recovered from the spot which belonged, to the deceased (Exh.C.W.5/c); that a Mausar was also recovered from the spot; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court. In support of the afore-referred submissions, learned counsel has relied on the precedent case-law reported in 1992 SCMR 1592.

5. On the other hand, learned counsel for the State submits that the date, time and place of occurrence are admitted by the appellant; that the version of the appellant is not plausible; that the deceased was not Masoomud Dam as he was involved in many criminal cases and the learned trial Court for that reason has awarded lesser sentence.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. The appellant was convicted in a complaint case. Initially F.I.R. was lodged by Javed Masood against Mushtaq and Ishfaq for the murder of Nadeem Aslam deceased. Thereafter after ten months complainant filed a complaint in which including the present appellant eight other accused were also mentioned. Only three accused were summoned in the complaint i.e. the present appellant, brother Ashfaq and their father Ghulam Yasin.

8. It is a case of two versions the version taken by the prosecution and the one put forth by the appellant in his statement recorded under section 342, Cr.P.C. in answer to a question as to why this case was against him. The appellant has taken the plea of self-defence. According to him he was present at Chakki when Nadeem Aslam came there, fired at him but luckily the appellant saved and while exercising the right of self-defence he gave three injuries on his person.

9. The post-mortem examination of the appellant was conducted by P.W.4 Dr. Abdul Shakoor who found three injuries on his person i.e. injury No.1 an incised wound on right side of head, injury No.2 was amputation of left hand while injury No.3 is an incised wound of cutting the bones at front of neck below right ear. According to the doctor the said injures were sufficient to cause the death of the deceased in the ordinary course of nature.

10. Now I would like to take up the stand of self-defence taken up by the appellant. The appellant did not receive even a search on his body but the fact remains that the appellant had come armed at his Chakki, fired at him and the appellant, according to him, to save his life caused him injuries. However, the facts and circumstances of the case are reflective of the fact that although right of self-defence was accrued to the appellant but this Court is of the affirmed view that he exceeded to the said right of self-defence, so, neither it is a case falling under section 302(b), B P.P.C. nor acquittal. Two crime empties and a Mausar were also recovered from the spot.

11. Apart from above it has come on record that the deceased was a man of bad character having criminal record detail of which has been given by the learned trial Court at page 26 of the impugned judgment which was furnished by the C.W. 1 during the course of his cross-examination. Moreover, both the parties had not approached the learned trial Court with clean hands. The precedent case-law relied upon by the learned counsel for the appellants distinguishable from the facts and circumstances of the case in hand and is not applicable in this case because in the said case the accused was also injured while the appellant did not receive any injury at the hands of the deceased.

12. Taking all these factors into consideration this Court has to draw its own inference keeping in view the dictum laid down by the august Supreme Court of Pakistan in Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 Supreme Court 502, so, it is observed that although right of self-defence was accrued to the appellant but this Court is of the affirmed view that he exceeded to the said exercise of right of self-defence, so, neither it is a case falling under section 302(b), P.P.C. nor of acquittal. Therefore, the conviction of the appellant from section 302(b), P.P.C. is converted into one under section 302(c), P.P.C. to fourteen years' R.I. The amount of compensation is also reduced from Rs.1,00,000 to Rs.50,000 in default whereof to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. shall also be extended to the appellant. This appeal is disposed of with the above modification in the quantum of sentence while revision petition filed for enhancement of sentence of the appellant is dismissed having no force. H.B.T./M-29/L Order accordingly.