2007 PLP 1060 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.249-J of 2001 filed by Aman Ullah, who was convicted and sentenced by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No.521, registered at Police Station Jaranwala, on 18-7-1996, for offences under sections 302/34, P.P.C., vide his judgment dated 31-7-2001 as under:- Death with compensation of Rs.20,000 or in default six months' R.I. under section 302(b), P.P.C. Murder Reference No.541 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 narrated in F.I.R. Exh.PD/1 by Salah Muhammad complainant/P.W.7 are that on 18-7-1996 the complainant along with his sons Mushtaq Ahmad and Ashfaq Ahmad and one Aslam son of Jallah was sitting outside his Baithak. At about 11-30 p.m. an unknown person came there and called Mushtaq Ahmad. Mushtaq Ahmad accompanied the said unknown person saying that they would return soon. The complainant, his son Ashfaq Ahmad and Muhammad Aslam started following Mushtaq Ahmad and said unknown person. When they reached near the house of Arif Tarrar, the stranger helped Mushtaq Ahmad in climbing over the roof of the house of Aman Ullah-appellant. Thereafter the stranger left the spot. After short time, the complainant party heard a fire. They rushed towards the house of the appellant and saw that the appellant, while armed with .12 bore gun, was climbing down the stairs and was saying that he had taken the revenge of abduction of his sister Mst. Shahida. Aman Ullah made good Ms escape. The complainant along with P.Ws. reached the roof and found Mushtaq Ahmed lying dead in the pool of blood after having receipt injury on his face. The motive behind the occurrence as set down in the F.I.R. was that three years prior to the occurrence Mushtaq Ahmad-deceased had abducted Mst. Shahida sister of the Aman Ullah-appellant, who was returned through Panchayat. For that revenge Aman Ullah had committed the murder of Mushtaq Ahmad.

3. After registration of formal F.I.R., the investigation of the case was taken over by Manzoor Hussain, S.-I./P.W.9. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.PH and inquest report Exh.PG. He collected blood-stained earth from the spot vide memo. Exh. PE. On 31-7-1996 he arrested Aman Ullah accused. While in custody, on 4-8-1996 Aman Ullah' led to the recovery, of .12 bore gun P-2 from his residential room, which was taken into possession vide memo. Exh.PF. On supplementary statement of the complainant, the Investigating Officer also arrested Muhammad Arif on 3-10-1996. After completion of investigation, both accused were sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PK and that of Serologist Exh.PL closed its case. The accused in his statement recorded under section 342, Cr.P.C. has taken a specific plea of grave and sudden provocation, which is being reproduced below: "P.Ws. are related inter se, due to relationship they deposed falsely against me. The deceased abducted my sister Shahida who was resorted through Punchait. The deceased continued illicit relation with Shahida. On the date of occurrence deceased came to my house on the top roof from the backside of house by climbing over wall from the house of Arif Tarrar. I felt some noise on roof top and thought that some thief or suspicious person was present. I took my licensed gun of my father and went on the top roof where I saw deceased was committing zina with my sister Shahida. I fired on them under grave and sudden provocation and on Ghairat. The fire hit to deceased. Mushtaq Ahmad and Shahid fled away from the spot. No P.Ws. saw the occurrence. I voluntarily appeared before the police along with the gun. During "investigation prosecution story was found false. Nobody brought the deceased on the roof top. He himself came there for committing zina." He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Muhammad Arif, convicted and sentenced the 'appellant 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 in support of this, appeal submits that the defence version was more plausible and was fully supported by the circumstances of the case.

6. On the other hand, the learned counsel appearing on behalf of the State submit that the witnesses were natural and their statements were supported by the medical evidence and corroborated by the circumstances of the case like F.I.R. being lodged promptly; and that the appellant admits the occurrence, thus, deserves no leniency.

7. We have heard the learned counsel for the parties and gone through the record minutely. It is a case of two versions, as the appellant has taken a specific plea of grave and sudden provocation. According to the prosecution case, three years prior to the occurrence the deceased had abducted Mst. Shahida sister of the appellant, who was restored to her parents through intervention of Punchayat. The appellant felt aggrieved over the abduction of his sister. On the fateful 'night at about 11-30 p.m. the complainant, his sons Mushtaq Ahmad-deceased and Ashfaq Ahmad along with one Muhammad Aslam were sitting in the street outside their Baithak. A stranger went there and called Mushtaq Ahmad-deceased. Mushtaq Ahmad accompanied him and informed the P.Ws. that he would return after sometime. However, the P:Ws. started following Mushtaq Ahmad-deceased and the stranger. When Mushtaq Ahmad and the stranger reached near the house of Arif Tarar the stranger helped Mushtaq Ahmad in climbing .over the roof of the house of appellant. Thereafter the stranger left. Within a short time the P.Ws. heard fire. They rushed to the house of the appellant and saw that the appellant, while holding a gun in his hand, was climbing down the stairs and was saying that he had taken revenge of abduction of his sister. P.Ws. climbed over the roof and saw that Mushtaq Ahmad had died due to fire-arm injury.

8. In support of prosecution version, Salah Muhammad, father of the deceased, and Muhammad Aslam, who is Mamoonzad of the complainant, were produced before the learned trial Court as P. W.7 and P. W. 8 respectively. Both of them are not only related to the deceased but were also inimical towards the appellant. Their statements are not plausible, as in the background of motive they would not allow Mushtaq Ahmad to accompany a stranger at middle of night. Similarly there was no reason for following Mushtaq Ahmad and stranger after allowing Mushtaq Ahmad to accompany a stranger. Both of them made dishonest improvements during trial and were duly confronted with their earlier statements. In case they would have been following the deceased then they would not allow him to climb over the roof of any enemy. They would also not allow a stranger to vanish.

9. It is also noteworthy that the occurrence took place at 11-30 p.m., while the matter was reported to Manzoor Hussain, S.-I./P.W.9 at Buchiana More at 1-15 a.m. F.I.R. was not registered at the police station. Such-like F.I.Rs. are surrounded by inherent doubt that those were recorded after due deliberations.

10. As against the prosecution case, the defence plea taken by the appellant, which has been reproduced in para-4 (ante) is more plausible and is borne out from the circumstances of the case. There was no occasion for the deceased to climb over the top of the house of the appellant except for meeting with Mst. Shahida. The deceased was forced by Punchayat to part with Mst. Shahida but it appears that he continued meeting with her secretly. The presence of the deceased on the top of the house of appellant along with his sister at midnight was indeed an act of extreme provocation.

11. In the above noted circumstances, we are of the opinion that the appellant acted under the grave and sudden provocation. Resultantly, we alter the conviction of the appellant to offence under section 302(c), P.P.C. The appellant has spent eight years in Jail. His sentence is reduced to the period already served out by him behind the bars, as the same would meet the ends of justice. The deceased himself invited trouble, hence, following the dictum laid down by the Apex Court in the case of Mairaj Begum v. Ejaz Anwar and others (PLD 1982 SC 294) the order passed by the learned trial Court under section 544-A, Cr.P.C. is set aside. The appellant would be released from Jail forthwith, if not required in any other case.

12. With the above modification in conviction and sentence, this appeal is partly allowed.

13. Murder Reference is answered in the negative. Death sentence is not confirmed. H.B.T./A-230/L Appeal partly allowed.