2007 PLP 666 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.1041 of 2001 filed by Allah Rakha, who was convicted and sentenced by the learned Additional Sessions Judge, Wazirabad, in case F.I.R. No.277, registered at Police Station, City Wazirabad, on 27-7-1997, for offence under section 302, P.P.C., vide his judgment dated 30-6-2001 as under:-- "Death with compensation of Rs.50,000 or in default six months' R.I. under section 302(b), P.P.C. Murder Reference No.453 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

2. Brief facts of the case as stated by Muhammad Hanif, complainant (P.W.1) in the F.I.R. Exh.P.A. are that the complainant was resident of Gall Chawalian, Wazirabad and ran business of scrap. The complainant started construction of his house. On 27-7-1.997 he along with Razi Khan and Kaleem Khan was present at home. Syed Zaheer Shah son of Matloob ur Rehman came to his house for repairing Donkey-pump. At about 2-00 p.m. Allah Rakha son of Masetay Khan knocked the door of his house and took Razi Khan alias Zeeshan son of the complainant along with him. After some time, the complainant heard shrieks in the street; therefore, he along with Kaleem and Zaheer went outside the house. They saw in the street that Allah Rakha took out Churri from his folder and within their view he inflicted blows on right side of chest, left side of chest, abdomen and two blows on left thigh of Razi Khan (son of the complainant). Razi Khan fell down, due to the injuries. Allah Rakah fled away from the scene of occurrence while waving his Churri. The complainant along with Kaleem and Zaheer took his son Razi Khan to the Civil Hospital, Wazirabad. Due to serious condition of Razi Khan the Doctor after giving necessary first aid referred Razi Khan to DHQ, Hospital, Gujranwala, but Razi Khan succumbed to the injuries while they were on the way to Hospital. The motive behind the occurrence was that Allah Rakha used to tease the girls of Mohallah. Muhammad Razi used to forbid him. For that grudge Allah Rakha committed the murder of Razi Khan.

3. After registration of formal F.I.R., the investigation of the case was taken over by Arif Hussain, S.-I./P.W.10. He went to the Civil Hospital, Wazirabad, took over the dead body, prepared injury statement Exh.P.G./1 and inquest report Exh.P.E./1. He took into possession blood-stained earth from the spot vide memo. Exh.P.B. On 17-8-1997 he arrested the accused persons. On the same day, while in custody, Allah Rakha led to the recovery of Churri P.3, which was secured vide memo Exh.P.D. After completion of investigation, the accused was sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.J. and Exh.P.K. and that of Serologist Exh.P.L. and Exh.P.M. relating to the blood-stained earth and Churri, closed its case. The accused in his statement recorded under section 342, Cr.P.C. has taken a specific defence plea, which is being reproduced' hereunder:-- "I have been falsely involved in this case. The real facts are that my sister namely Rehana was alone present at her house, at the time of occurrence. My parents had died before the occurrence. We are two brothers and three sisters. My two elder sisters are married and younger sister Rehana is unmarried. My elder brothers are labourer and working in the city. I have made a shop of embroidery at Gujrat. On the fateful day at the time of occurrence I came in my house -and heard the cries of my sister, who was trying to save herself from the clutches of Razi Khan who was trying to outrage her modesty. On seeing the said position I lost my self control and under grave and sudden provocation I picked up the Churri from the kitchen of my house which is adjacent to the room, where Razi and Rehana were present and under said provocation due to Ghairat to save the modesty of my sister I inflicted Churri blows to the deceased, who injured in the room of my house and ultimately fell down outside the door of my house. The deceased was not Masoom-ul-Dom. I have committed no offence. I appeared before the police and narrated the whole story but police did not formally arrest me and detained me in the P.S. without showing my formal arrest. The complainant after consultation and preparing the concocted story lodged the report against me with the connivance of the police. The F.I.R. was lodged after P.M. examination. I am innocent. The P.Ws. were not present at the time of occurrence and they did not witness the occurrence. The P.Ws. are inter-related with each other so they deposed against me." He did not appear as witness under section 340(2), Cr.P.C. However, he produced his sister Mst. Rehana Khan as D.W.1. After conclusion of trial the appellant was convicted and sentenced as stated above.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellant at the very outset submits that it is a case of exceeding of right of private defence. He has referred to the defence plea taken by the appellant and to the portion of cross-examination of Arif Hussain S.-I./S.H.O./P.W.10 available at page 45 of the Paper Book.

6. On the other hand, the learned counsel appearing on behalf of the State submit that they felt satisfied as far as the conviction was being maintained and had nothing much to say about the quantum of sentence, which lied within the discretion of the Court.

7. We have heard the learned counsel for the parties at length and gone through the record carefully. The appellant has taken specific plea of grave and sudden provocation. It is a case of two versions. Both are to be put in juxtaposition to find out which of the two is true or nearer to the truth. According to the prosecution case, as per F.I.R., Allah Rakha, appellant knocked at the door of complainant's house. Thereafter Razi Khan, deceased son of the complainant accompanied him. After some time the complainant and his nephew Muhammad Kaleem heard hue and cry. They went outside the house and saw that in the chowk of the street, which was in front of the house of Allah Rakha, Allah Rakha took Churri out of the fold of his trousers and within the view of the P.Ws. caused five injuries on the person of Razi Khan, deceased, who fell on the ground after receipt of the injuries. Thereafter Allah Rakha made good his escape. Razi Khan was firstly taken to Civil Hospital, Wazirabad and due to his serious condition the Doctor referred him to Civil Hospital, Gujranwala. He lost his life near Gujranwala. The motive behind the occurrence was that Razi Khan used to admonish Allah Rakha, appellant over teasing girls of Mohallah. In order to support the version of F.I.R. no independent witness was produced during trial. It is also noteworthy that Muhammad Kaleem/P.W.2 lived at a different place and was present at the time of occurrence per chance. It is not believable that in the background of enmity and hostility over teasing of girls, as narrated in the F.I.R. and by the P.Ws. during trial, the deceased would accompany the appellant or father of the deceased would allow him to accompany his enemy. It is significant that both the P.Ws. did not suspect any foul play and remained sitting in the house till they heard hue and cry of the deceased. Strangely it was mentioned in the F.I.R. that the appellant took out Churri from folder of his trousers in presence of the witnesses and caused all the injuries within their view. In that case there was no occasion for the deceased to raise hue and cry prior to taking out of Churri. Similarly .no independent witness has been produced in support of the motive.

8. The occurrence has been admitted by the appellant, so the only requirement would be as to whether the defence plea was plausible, supported by some evidence or borne out from the circumstances of the case. Perusal of site-plan Exh.P.E. reveals that the occurrence took place in front of the door of appellant's house at a distance of about nine feet. Mst. Rehana Khan sister of the appellant appeared as D.W.

1. She has supported the defence plea. She was subjected to cross-examination but her credibility could not be shaken. She appeared before the Investigating Officer and had made similar statement. Arif Hussain S.-I. /Investigating Officer/P.W.10 admitted that he recorded the statement of D.W. on 18-8-1997. Most importantly P.W.10 admitted that the first version of the accused was in accordance with the statement of the accused recorded by the learned trial Court under section 342, Cr.P.C. The Investigating Officer further admitted that during his investigation the complainant did not produce any evidence to prove the motive as set down in the F.I.R. According to him, the motive could not be proved by the complainant during his investigation (page 45 of the paper book). It is salutary principle of law that in the eventuality of possibility of two views one favouring the accused should be preferred.

9. In the above noted circumstances of the case we are of the opinion that the defence plea of the appellant was more plausible and was borne out from the circumstances of the case. Hence, we alter the conviction of the appellant from offence under section 302 (b), P.P.C. to offence under section 302(c), P.P.C.

10. The appellant was arrested on 11-8-1997 and is behind the bars since then. He has already spent more than nine years in Jail. Therefore, we reduce his sentence to the period already served out by him, as the same would meet the ends of justice.

11. After accepting the defence plea we are not inclined to burden the appellant with compensation. Hence the order passed by the learned trial Court under section 544-A, Cr.P.C. is set aside. Reliance is placed on the case of Meraj Begum v. Ejaz Anwar and others PLD 1982 SC 294.

12. This appeal is partly allowed. The appellant would be released from Jail forthwith, if not required in any other case. Consequently Murder Reference is answered in the negative. Death sentence is not confirmed. H.B.T./A-178/L Appeal partly allowed.