2008 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.487 of 2000 filed by Abdul Khaliq appellant. He was convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide judgment, dated 16-10-2.000 as under:

Death and to pay compensation to the tune of Rs.50,000 in default six months' R.I. under section 302(b), P.P.C. for committing the qatl-e-amd of Muhammad Shoaib. Murder Reference No.226 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

2. The occurrence in this case had taken place at 0.4 p.m. on 11-12-1997 within the revenue estate of Mauza Potha Sharif which is at a distance of 18 miles from Police Station Koh Murree while the matter was reported to the police by Munir Ahmad at Civil Hospital, Phagwari at 5-30 p.m., the same evening through written complaint Exh.P.B. and formal F.I.R. Exh.P.B./1 was recorded by Muhammad Iqbal A.S-I.

3. Briefly stated the facts of the case as disclosed in the complaint Exh.P.B./1 are that on the fateful day within the view of Munir Ahmad, and Ashiq Maskeen, both P.Ws., Abdul Khaliq, appellant gave a Chhuri blow which landed on the neck and chin of Muhammad Shoaib and he succumbed to his injury while in his way to the hospital. The occurrence had taken place at a distance of 30 paces from the shop of Hafiz Jehangir. It was also alleged in the F.I.R. that prior to stabbing to the deceased, Baqir and Abdul Khaliq were giving fist and kicks blows to Muhammad Shoaib and in reply Muhammad Shoaib was also giving fist and kicks blows to Baqir and Abdul Khaliq. The motive given in the complaint was that Baqir and Abdul Khaliq accused had married with the daughters of Muhammad Nawaz and said Muhammad Nawaz had a dispute over land with Muhammad Shoaib and that 10 days prior to the occurrence, an alteration had taken place between Muhammad Nawaz, Baqir and Abdul Khalid but the matter was patched. According to the complainant, the accused nourished a grudge in their mind and because of that grudge, committed the murder of Muhammad Shoaib. Fazal-ur-Rehman S.-I. (P.W.10) took over the investigation. He after receiving information about the incident went to Civil Hospital, Phagwari, recorded statement of the complainant and sent the same to police station for recording of the formal F.I.R. He then took into possession the dead body of deceased Muhammad Shoaib, prepared injury statement Exh.P.H., inquest reports Exh.P.I. and then went to the place of occurrence. From there, the Investigating Officer secured blood-stained earth vide memo. Exh.P.D. Thereafter, Abdul Khaliq accused was arrested on 6-1-1998 and the accused while in custody on 11-1-1998 led to the recovery of Chhuri P.1 which was taken into possession vide memo. Exh. P. E. After completion of investigation, both Baqir and Abdul Khaliq accused were sent to face the trial. At the trial prosecution in order to prove its case produced 11 witnesses in all. Munir Ahmad, complainant and Muhammad Maskeen P. Ws. furnished the eye-witnesses account. Dr. Tariq Ahmad Munir, P.W.8 conducted post-mortem examination of dead body of the deceased. After closing prosecution evidence, the learned D.D.A. tendered in evidence reports of the Chemical Examiner (Exh.P.K. and Exh. P. L.) reports of the Serologist (Exh. P. M. to Exh. P. N.) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C. pleaded false implication. On conclusion of the trial, Baqir accused was acquitted while the present appellant was convicted and sentenced as stated above. Learned counsel for the appellant submits that it is a case of two versions and if both the versions one set up by the prosecution and other taken by the appellant at the earliest even at the time of his arrest by the police, seems to be more plausible and convincing one. Elaborating the argument, it is submitted by learned counsel that Hafiz Muhammad Jehangir in front of whom shop the occurrence had taken place has also supported the version of the appellant before the Investigating Officer and moreso the Investigating Officer Fazal ur Rehman P.W.10 admitted in his cross-examination that first version of the appellant was the same which he took in his statement recorded by the learned trial Court under section 342, Cr.P.C. Further submits that there was no direct enmity between appellant and the deceased. Lastly submits that it is a case of single blow and the appellant had acted while defending his person. The accumulative effect of arguments of learned counsel for the appellant is that it is not a case of capital punishment. Learned A.A-G. after going through the file submits that in the instant case, the occurrence had taken place at the spur of the moment and there was no premeditation. Also admits that it is a case of single injury. We have heard the learned counsel for the parties at length and have gone through the evidence on record. In the instant case the occurrence had taken place at 0.4 p.m. on 11-12-1997 within the revenue estate of Mauza Potha Sharif which is at a distance of 18 miles from Police Station Koh Murree while the matter was reported to the police by Munir Ahmad at Civil Hospital, Phagwari at 5-30 p.m., the same evening through written complaint Exh.P.B. and formal F.I.R. Exh.P.B./1 was recorded by Muhammad Iqbal A.S-I. The complainant is Munir Ahmad while the deceased is Muhammad Shoaib. Munir Ahmad, complainant and Muhammad Maskeen, P.Ws. furnished the eye-witness account. Dr. Tariq Ahmad Munir, P.W.8 conducted post-mortem examination of dead body of the deceased and found one injury on the person of the deceased. The appellant has admitted the time, date and the place of occurrence in his statement under section 342, Cr.P.C. but had taken a specific plea of right of self-defence, so it is a case of two versions. In order to adjudge as to which version is correct we may with advantage reproduced here reply to question No.2 given by the appellant in his statement under section 342, Cr.P.C.:

"It is incorrect as stated. Neither Muhammad Baqar was with me nor I was armed with Chhuri. As a matter of fact on 13-12-1997 I alone without company of Muhammad Baqar along with my minor daughter namely Shazia has gone to fetch Aftari Pakora etc. on the shop of Hafiz Jehangir situated near my house and I came across deceased "Muhammad Shoaib" who used to tease the daughter of my brother Tariq Mehmood namely "Billi" and thus was beaten up by my brother Tariq Mehmood. The deceased Muhammad Shoaib on this grudge abused me altercated with me and he being physically of stout and strong body suddenly started giving kicks and fists to me inside the shop of Hafiz Jehangir. No so-called prosecution witness was present there and only Hafiz Jehangir the shopkeeper and one Abdul Hamid Sehanna was present there. When I was thrown on the shop of Hafiz Jehangir the deceased Shoaib started strangulating my neck. I laid hand on a knife and in order to save my life, I inflicted a single blow at random under grave and sudden compulsion as deceased was riding upon me and attempting to kill me. It is further submitted that when deceased received the single injury, I tried to escape but deceased kept on grappling with me and chased me on the roadside. I never had-any intention to harm him; rather I acted only in self-defence." This version of the appellant has also been supported by Fazal ur Rehman, Investigator (P.W.10) who in his cross-examination admitted that first version of the appellant was the same which he had taken before the trial Court. In this background, if both the versions, one set up by the complainant in the F.I.R. and the other introduced by the appellant on the very first day of his arrest before the police which also finds support from the cross-examination of the Investigator Fazal-ur-Rehman S.-I. (P.W.10) are put in juxtaposition, the version of the appellant seems to be more plausible and convincing one. It is also a case of single injury. There was no previous background of enmity between the appellant and the deceased or for that matter the complainant. From the tenor of evidence brought on record, it also appears that the occurrence had taken place at the spur of the moment without any premeditation. Taking all these factors as mitigating circumstances, we though maintain conviction of the appellant under section 302(b), P.P.C. but reduce the sentence of death to imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence in default of payment of compensation is altered from R.I. to S.I. Here we may rely upon the case of Muhammad Arshad and 2 others v. State PLD 1996 SC 122 wherein their lordships of the Honourable Supreme Court converted the sentence of death into imprisonment for life by treating the facts that the case was one of single shot and there was no previous enmity or deep routed hostility between appellant and the deceased. The appeal filed by the convict appellant is disposed of in the above terms. The death sentence is not confirmed and murder reference is answered in the negative. N.H.Q./A-154/L Sentence reduced.