2006 PLP 954 (SCMR)

MIAN MUHAMMAD AJMAL, J.

This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 26-11-2001, whereby Criminal Appeal No.227/1997 of the appellant was dismissed, his conviction was altered from section 302(a) to section 302(b), P.P.C., his death sentence was confirmed and he was ordered to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default thereof to undergo six months S.I.

2. Brief facts as per F.I.R. are that on 27-8-1995 at 4-00 p.m. Muhammad Sharif complainant along with Muhammad Aslam and Bashir Ahmad was going towards the fields, Abdul Aziz his son was going ahead of them. When Abdul Aziz reached near Square No.20 Killa No.24 Muhammad Riaz came there on a cycle and raised Lalkara that he has come to take revenge of his insult. He took out `Chhuri' from the fold of his Shalwar (Naifa) and inflicted a blow on the neck of Abdul Aziz as a result of which he fell on the ground, thereafter he inflicted another blow on left side of his back. Motive as stated was that few days prior to the occurrence Abdul Aziz deceased had abused the appellant due to which he attacked him to avenge his insult. After the occurrence the appellant decamped from the spot. The complainant took his injured son Abdul Aziz to Civil Hospital, Sargodha and lodged the report which was registered under section 324, P.P.C. at Police Station, Cantt. Sargodha vide F.I.R. No.174, dated 27-8-1995. Abdul Aziz succumbed to the injuries on 4-9-1995, as such, section 302, P.P.C. was inserted. During the investigation, the appellant led to the recovery of blood-stained dagger from the box lying in the room of his house on 19-9-1995. After completion of investigation challan was put in Court against the appellant. Charge was framed against him to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced 12 witnesses. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. wherein he denied the allegations and stated that he was involved due to enmity. The appellant did not opt to record his statement under section 340(2), Cr.P.C. not produced any witnesses in his defence. The trial Court, on assessment of the evidence convicted the appellant under section 302(a), P.P.C. and sentenced him to death vide its judgment, dated 28-4-1997. The appellant challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No.227 of 1997 and the. trial Court referred Murder Reference for confirmation of his death sentence. A learned Division Bench of the Lahore High Court dismissed the appeal of the appellant, converted his conviction from section 302(a) to 302(b), P.P.C. confirmed his death sentence and answered the reference in the affirmative vide its judgment, dated 26-11-2001. He was also ordered to pay compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to undergo six months R.I. The appellant challenged his conviction and sentence before this Court through Criminal Petition No.43-L of 2001, wherein leave was granted on 10-4-2002 as under:

"(2) It is, inter alia, contended that in view of the fact that the Courts have found that the motive as alleged in the F.I.R. had not been proved in view of the said version given by the petitioner, there was possibility that the incident took place abruptly and as to what happened was shrouded in mystery which is a mitigating circumstance for lesser punishment. (3) Leave is granted to consider the contention."

3. Learned counsel for the appellant with reference to the statements of Muhammad Sharif complainant (P.W.1) and Raja Muhammad Latif (P.W.11) contended that the appellant acted in exercise of his right of self-defence in the occurrence which has been admitted by (P.W.1) and (P.W.11) in cross-examination that the appellant's first version before the police was that he was attached by Ghulam Abbas and Abdul Aziz who were armed with knife/Chhuri, when he was going to fetch milk from the `Dera' of Anwar Awan, he in self-defence snatched Chhuri from Ghulam Abbas. and inflicted blows to Abdul Aziz but the plea of self-defence was not given due weight by the trial Court as well as the learned High Court while awarding the sentence to him. He submitted that prosecution has alleged that the appellant made an effort to commit sodomy with Abdul Aziz who abused him and to avenge the insult he committed the offence and in this view of the matter appellant could not be awarded capital punishment. Learned counsel for the State supported the impugned judgment.

4. We do not find, any force in the contentions of the learned counsel for the appellant, for, although Muhammad Sharif (P.W.1) in cross-examination stated that the appellant on his appearance before the police stated as his first version that he was going to fetch milk from the `Dera' of Anwar Awan, when Ghulam Abbas and Abdul Aziz armed with knife/Chhuri emerged and launched an attack on him, he snatched `Chhuri' from Ghulam Abbas and inflicted blows to Abdul Aziz in his self-defence. Likewise Raja Muhammad Latif Inspector (P.W.11) stated in cross-examination that Muhammad Rafiq, father of the accused exposed before him the version of the accused that a day before the present occurrence, the accused had a scuffle with one Ghulam Abbas and the present occurrence was motivated because of the said scuffle. He further stated that the version of the accused through his father was that he was going to fetch milk from the `Dera' when Ghulam Abbas and Abdul Aziz attacked him and he gave the blows to the deceased in self-defence. The Investigation Officer further stated that on the basis of the above version of the accused, he arranged a confrontation meeting between the parties on 10-9-1995 and the result of the investigation was that the motive as set up by the prosecution was not proved and the present occurrence was the result of insult given to Ghulam Abbas by the accused one day prior to the occurrence. But the appellant later on abandoned the plea of self-defence and did not insist this plea in his statement recorded under section 342, Cr.P.C. He in answer to Question No.7, `why this case against you and why the P.Ws. have deposed against you' stated 'Due to enmity' and to question No.8 'Have you anything else to say' he replied that 'I am innocent'. It is thus evident that he did not say a single word about the plea of self-defence in his statement and as such its non-pressing in subsequent proceeding amounts to abandoning the same. He also declined to make statement on oath under section 340(2), Cr.P.C. Had he maintained the plea of self-defence, he should have made a statement to that effect under section 340(2), Cr.P.C. Even otherwise plea of self-defence was not available to the appellant against Abdul Aziz deceased. The appellant allegedly snatched Chhuri from Ghulam Abbas in presence of Abdul Aziz who was also stated to be armed with knife/Chhuri but the appellant did not receive any injury either during the scuffle or at the hands of Abdul Aziz and after snatching Chhuri from Ghulam Abbas with whom he had a quarrel and who had beaten him a day prior to the occurrence, he attacked Abdul Aziz and killed him. If Abdul Aziz deceased. had a knife/Chhuri, he could easily attack the appellant during the scuffle between the appellant and Ghulam Abbas, but it has not happened so, which shows that Abdul Aziz had no weapon when he was attacked by the appellant and the plea of self-defence as such was fabricated and concocted. There was no enmity between the appellant and the deceased or the P.Ws. brought on record except for the scuffle which took place between the appellant and Ghulam Abbas a day before the occurrence as such in absence of any enmity of the P.Ws. with the appellant and they having no motive to falsely involve the appellant in the case, the question of false charge against the single accused does not arise.

5. With regard to the motive as set up by the prosecution that the appellant made an effort to commit sodomy with Abdul Aziz who abused him which resulted into the present occurrence, it has been denied by the appellant in his statement under section 342, Cr.P.C. It has repeatedly been held by this Court that inadequacy or weakness of motive or where motive has been set up but not proved or motive shrouded in mystery would not be of any significance and would not lend any support to the case of the accused as a mitigating circumstances when and where the prosecution has otherwise proved its case beyond any doubt by an unimpeachable ocular evidence.

6. The learned trial Court on proper appreciation of evidence on record found the appellant guilty of the charge and the learned Division Bench of the High Court rightly agreed with the conclusion of the trial Court to which no exception can be taken.

7. We find no merit in this appeal and accordingly dismiss it. N.H.Q./M-942/SC????????????????????????????????????????????????????????????????????????????? Appeal dismissed.