2010 PLP 371 (MLD)

MUHAMMAD AKRAM QURESHI, J.--Muhammad Ramzan son of Gul Muhammad, appellant was tried by the learned Sessions Judge, Kabirwala in case F.I.R. No. 171 of 2002, decided on 25-6-2002, registered under sections 302/324, P.P.C. at Police Station, Serai Sidhu, District Khanewal, who vide judgment, dated 31-5-2003 convicted him under section 302(b), P.P.C. and sentenced him to death for committing Qatl-e-Amd of Muhammad Hussain, deceased. The appellant was also ordered to pay compensation of Rs.1,00,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C., in default whereof to further undergo six months' S.I. The learned trial Court further convicted the appellant under section 324, P.P.C. and sentenced him to ten years' R.I. and a fine of Rs.50,000, in default whereof to further undergo three months' R.I.

2. Briefly, the facts of the case as mentioned in the F.I.R. Exh.PJ lodged on the statement of Muhammad Khalid (complainant) resident of Chah Jaalwala are that the accused Muhammad Ramzan is resident in the same village. At a distance of two kanals; that he had obtained agricultural land of Muhammad Afzal Rajput, for two years for cultivation which previously used to be with Muhammad Ramzan accused but the same was got vacated from him and given to the father of the complainant. The accused Muhammad Ramzan had required the complainant's father not to take the said land but the complainant's father did not agree because of which Muhammad Ramzan was very much aggrieved. On the day of occurrence at about 9-00 a.m. the complainant and his father Muhammad Hussain and mother Mst. Irshad Mai were working in the fields. Muhammad Ramzan, accused came there to remove the cotton sticks but the complainant's father refrained him from doing so upon which the accused went away threatening them of dire consequences. At about 10 a.m. when the complainant etc. after completing their work started for the village, Muhammad Hussain and Mst. Irshad Mai were ahead by 15-20 Karams followed by the complainant. On the southern side of Rajbah Fazil Shah when they reached near the house of Muhammad Ramzan that accused armed with a .30 bore pistol came outside of his house and raised a lalkara at Muhammad Hussain saying that he would teach a lesson of taking the land from him and disallowing of removal of cotton sticks whereafter he fired straight at his father hitting him on the abdomen who fell down and died because of the said injury. Then Muhammad Ramzan fired for the second time, which hit Mst. Irshad Mai on the right thigh, which made exit and hit Muhammad Iqbal Guard who was just passing by Mashooq Ali son of Fateh Ali and Ghulam Mustafa son of Sardar Ali caste Rajput who were passing by on the Pattri came there on seeing the occurrence. They were also fired at by Ramzan but Gul Muhammad who had come over there was hit. That the complainant being afraid did not go near while the accused along with his pistol ran away. That the dead body had been left along with Mashooq and Ghulam Mustafa and it was requested that legal proceedings be undertaken.

3. After completion of investigation, the accused was sent up to face trial. He was charge-sheeted, to which, he pleaded not guilty and claimed for trial. In order to prove its case, the prosecution examined as many as 10 P.Ws. in all and tendered documentary evidence.

4. The accused in his statement recorded under section 342, Cr.P.C. denied the prosecution case and evidence against him. The accused also opted not to appear as his own witness under section 340(2), Cr.P.C, and produced Ghulam Muhammad as D. W.1. in his defence.

5. Learned trial Court, convicted and sentenced the appellant as mentioned above. Hence, the present appeal and murder reference received from the learned trial Court. We propose to dispose of these matters by this single judgment.

6. At the very outset the learned counsel for the appellant contends that the very registration of this case is doubtful. The matter was never reported to the police at 11-00 a.m. It was delayed and after deliberations, consultations and investigation the present case was fabricated. The learned counsel submits that the venue of occurrence was shifted from the house of appellant to the present place and in this respect he has drawn our attention towards columns Nos. 1 and 2 of the inquest report Exh.P-H in which the exact place of occurrence has not been shown. Moreover, the distance between the spot and the police station has been left blank. He has also drawn our attention towards Column No.12 of the inquest report in which the kind of weapon has not been specified, and words "fire-arm" has been mentioned. He also submits that during investigation the appellant took up a specific plea of right of self-defence and the said plea was well-supported by the statement of his father D.W.1. Gul Muhammad; that his father was injured during the occurrence by the complainant party who have failed to offer any explanation and as to why and in what circumstances they had come to the residence of the appellant and how the present occurrence initiated; that it was not within the knowledge of the appellant that the complainant party would pass by the house of appellant and he was sitting armed with a pistol and assaulted the complainant party. The' learned 'counsel for the appellant has drawn our attention towards the statement of the appellant, recorded under section 342, Cr.P.C. in which it is mentioned that the father of the appellant Gul Muhammad fired at the complainant party in exercise of right of self-defense which is as under:-- "P. Ws. are related inter se with each other and all the P.Ws. are interested witnesses. In fact prior to this occurrence, a quarrel had taken 'place between the mother of the complainant and that of any mother in which my mother beat the mother of the complainant. After some time of the first occurrence the complainant and his father. Muhammad Hussain deceased armed with .30 bore pistol entered in my house and attacked on my parents. My father resorted to firing with .12 bore gun because of which mother of the complainant and Iqbal Guard were injured. Muhammad Hussain caught hold of the gun of my father while Khalid fired at Gul Muhammad, my father was injured by him. Muhammad Hussain since deceased, father of the complainant died because of the fire made by the complainant with .30 bore pistol. I was also not present at the place of occurrence when the incident took place and all the said story narrated to me by my father after the occurrence."

7. The learned counsel for the appellant has stated that the assertion of the appellant is plausible. He submits that a serious enmity was going on between the appellant and the complainant and that due to that enmity the complainant party has implicated the appellant in this case to offer an explanation regarding the injury suffered by the father of the appellants. He also submits that the prosecution case is contradicted by the medical evidence. According to the prosecution P.W.B. Mst. Irshad Bibi was fired a shot in front of her thigh. The medical report shows that the fire shot hit the buttocks of the deceased and made an exit from the front of the thigh of the said witness. He also submits that the deposition of the only injured eye-witnesses produced .by the prosecution is not worth-reliance and that P.W.7 Ghulam Mustafa and P.W.6. Muhammad Khalid was not present at the spot and after the occurrence they have been made cooked up witnesses; that the recovery of pistol has been planted upon the appellant; that as per prosecution evidence the recovery was effected when the appellant was arrested. Sabir Hussain son of Bashir Ahmad and Mushtaq Ahmad son of Niaz Muhammad were the witnesses who were resident of Sarai Sidhu; that both the witnesses have failed to offer any explanation as to why and in what circumstances they were present at the venue of the arrest of the appellant. He submits that factually both the witnesses are closed ' relatives of the complainant party. They were made cooked up witnesses to plant a recovery on the appellant; that as a matter of fact nothing was recovered from the custody of the appellant; that the .empties were recovered from the spot of the occurrence on 25-6-2002. The empties were kept in custody for a long time and dispatched to the Forensic Science Laboratory on 11-7-2002. The prosecution has not offered any explanation for this delayed dispatch of the empties to the Forensic Science Laboratory. Learned counsel has also added that the appellant was kept in illegal custody by the police for sufficient longtime and that his arrest was formally shown on record on 14-7-2008 and that a weapon of offence which was statedly recovered from his custody was sent to the office of the Forensic Science laboratory on 18-7-2007. The learned counsel has further added that the comparison of empty with the crime weapons which was a fake practice was got conducted just to create a false evidence against the appellant; that the comparison which was conducted by the Fire-arm Expert is not worth-reliance and it be ignored. He also submits that the investigation of this case was also haphazard. The Investigating Officer never .gave ample opportunity to the appellant to produce his defence evidence. He conducted a slipshod investigation and finalized the same; that such an investigation is not worth-reliance and it may be kept aside; that the 'Superior Courts of the country have normally disbelieved dishonest investigation. He relies upon 1975 PCr.LJ

750. He submits that the stand taken by the appellant may be believed because it is more close to the reality and the prosecution evidence was disbelieved.

8. On the other hand the learned DPG for the State has vehemently opposed this appeal on the grounds that the alleged occurrence took place at 10-00 a.m. in the daylight. It was promptly reported to the police within one hour. In the F.I.R. the name of the appellant is mentioned. His role is ascribed and the motive of assault is also detailed therein; that the appellant was the person responsible to initiate the occurrence. He abused and quarreled with the complainant party and it was subsequently that when the complainant party was passing by his house he again assaulted them and caused injuries; that the prosecution evidence. is well-supported by the evidence of the injured eye-witnesses; that no serious enmity was existing between the two parties and that there was no reason for the complainant and the witnesses to falsely implicate the appellant. He states that it is a case of single accused. A number of injuries were suffered by the complainant party. Had they been equipped with a motive to falsely implicate or exaggerate they could have easily implicated the father of the appellant in this case; that the complainant party has honestly put forwarded its case and their depositions are close to reality; that the motive of present occurrence has been fully established on record. The ocular account springs out - from, the mouth of. the independent witnesses which is further supported by the evidence of the injured eye-witnesses; that the ocular account is worth-reliance. The conflict between the medical evidence and the ocular account exhibited by the appellant is liable to be ignored. During the occurrence such-like lapse may occur on the part of the witnesses; that the ocular account of the present case is consisting of evidence, which is corroborating each other. It is straightforward evidence which is neither improved nor it was materially discrepant. The medical evidence is fully supporting it; that the empties were found at the spot and these empties were sent to the office of the Forensic Science Laboratory prior to the arrest of the appellant; that the weapon of offence was recovered from the custody of the appellant on 14-7-2002 and sent to the office of Forensic Science Laboratory on 18th of the said month; that the empties which were secured from the spot matched with the weapon. He also submits that the report of the Forensic Science Laboratory is providing a valuable support to the ocular account of this case; that the complainant party have failed to exhibit any malice' of the Investigating Officer. His investigation is impartial and is wroth reliance.

9. We have considered the arguments of the learned counsel for the parties and also analyzed the evidence' available on record.

10. The motive of the present occurrence has been fully established on record. The appellant had a quarrel with the complainant party over the picking up of cotton sticks. The complainant party was deficiently aggrieved of the said situation. It appears that after the said occurrence they went to the residence of the appellant where the present incident took place. During this period the complainant party fired at the residence of the appellant by which the father of the appellant was injured and thereafter the appellant in order to save his father made indiscriminate firing by which the deceased and two persons were injured. The appellant exceeded the right of self-defence. He should not have fired indiscriminately. In these circumstances, we are of the view that the case of the appellant does not fall within the area of section 302(b), P.P.C. rather it should have been dealt with under section 302(c), P.P.C. The appellant has caused the death of Muhammad Hussain and injured Mst. Irshad Bibi. The explanation having been tendered by the complainant party regarding the injury of Gul Muhammad father of the appellant is not worth-reliance. In these circumstances, we are of the view that the appellant is liable to be convicted under section 302(c), P.P.C. His death sentence is not confirmed. It is reduced to 25 years' R.I. provided by the said section. The amount of compensation fixed by the learned trial Court is maintained. The sentence of ten years and a fine of Rs.50,000 awarded to the appellant for attempt to commit Qatl-e-Amd of Mst. Irshad Bibi is also upheld. Both the abovementioned sentences shall run concurrently. The appellant shall also have the benefit of section 382-B, Cr.P.C. Murder reference is answered in the negative.

11. With these modification the present appeal stands disposed of. H.B.T./M-833/L Sentence reduced.