1994 P Cr (PLP)

(3) Under section 337-A(i) for causing Shajjah Mudiah to Zahoor Ahmad P.W. and sentenced to Arsh amounting to Rs.34,000. (4) Under section 337-F(iii), P.P.C. for causing Ghair Jaifah Mutalahimah and sentenced to Daman of Rs.5,

000. It was- ordered to be paid to Abdul Halim for his injuries Nos.1 and 2. (5) Under section 337-F(vi) and sentenced to Daman of Rs.5,000 for causing Ghair Jaifah Munaqlah to Abdul Halim P.W. The amount was ordered to be paid t0 Abdul Halim as Daman. The substantive sentences were ordered to run concurrently. The appellant was ordered to remain in jail unless the amount of Arsh and Daman is paid to the victim. This is 'vide judgment, dated 27-4-1992. Vide same judgment, the co accused of Iftikhar Ahmad were acquitted. The complainant Abdul Halim has filed Criminal Revision No.455 of 1992; for the enhancement of sentence of Iftikhar Ahmad and for setting aside the acquittal of co-accused of Iftikhar Ahmad appellant. It was ordered to be heard alongwith Criminal Appeal No.416 of 1992. I propose to dispose of both the matters by this judgment.

2. The prosecution case, in brief, as narrated by Abdul Halim P.W.9 in F.I.R. Exh.P.J. is that he is a shopkeeper. His sons ply wagons on Chak No.27 to Bhagtanwald and Sargodha Road. On 26-4-1991 at about 10/11 a.m. there was, an altercation between Shahid Driver (son of the complainant) and Iftikhar appellant over seating some passengers. Tli6 same night, Iftikhar Ahmad on account of the said, grievance tried to fire at the complainant, but due to the intervention of the people he was saved. On 27-4-1991 at 7-30 a.m. Tariq etc. sons of the complainant held Muhammad Siddique, father of the appellant and insulted him. He was also given kick and fist blows. It is alleged that Muhammad Siddique instigated the appellant and his co-accused saying that it was a matter for Ghairat for them, whereupon the appellant brought out a gun from his house and the acquitted accused also appeared at the scene duly armed. The appellant raised Lalkara and fired at Shaukat Ali, which hit on his abdomen and left arm. His second shot hit Shaukat Ali on his abdomen. Some of the pellets also landed on the left hand of the complainant and chin of Zahoor Ahmad P.W. Shaukat Ali Succumbed to the injuries in Civil Hospital Bhagtanwala. Abdul Halim P.W.9, leaving Muhammad lqbal and Tariq with .the dead body went to Police Station Bhagtanwala, where on his statement F.I.R. Exh.P.J. was recorded by Ahmad Hayat A.S.I. (P.W.11). The A.S.I. after recording, the F.I.R. proceeded to the hospital, prepared the injury statement Exh.P.K. of Abdul Halim complainant and injury statement txh.P.L. of Zahoor Ahmad P.W. and got them medically examined. He also prepared the injury statement Exh.P.M. and inquest report Exh.P.N. of Shaukat Ali deceased- and sent the dead body to the mortuary for post-rnortcm examination. He recorded the statement of Zahoor Ahmad P.W.10 under section 161, Cr.P.C. in the hospital. The A.S.I. then proceeded to the spot and inspected it. He took into possession blood-stained earth from two places, i.e. where Shaukat Ali was injured and where he had fallen after being injured vide memo. Exh.P.G. This recovery was attested by Yariq Javed P.W.7 and Muhammad Iqbal (not produced). On the same day, last-worn clothes were produced before the A.S.I. who took the same into possession vide memo. Exh.P.F. He got prepared site plan. Exh.P.I. and its copy Exh.P.I./1 by Muhammad Saleem P.W.8. The appellant was arrested on 12-5-1991. On 16-5-1991, he got recovered, gun P.4 and a live cartridge P.5 from his house vide memo. Exh.P.H. He did not arrest the co-accused of the appellant, as they were found innocent. After completing legal formalities, the A.S.I. submitted the challan in the Court.

3. Dr. Nafeez-uz-Zaman P.W.1 medically examined Zahoor Ahmad P.W. on 27-4-1991 and found a lacerated wound on the left side of chin. The same day he examined Abdul Halim complainant and found three lacerated wounds on his person. The said doctor also conducted post-mortem examination on the dead body of Shaukat Ali deceased on 27-4-1991 and found nine lacerated fire-arm wounds apart from an abrasion on the dead body. The doctor opined that death had occurred due to rupture of peritonium, spleen, small and large intestines and left kidney on account of injury No.3, which was sufficient t0 cause death in the ordinary course of nature. All the injuries were ante mortem and caused by fire-arm.

4. The appellant when examined under section 342, Cr.P.C. admitted the relationship inter se among the co-accused. He pleaded innocence and in answer to question No.8, why this case against you and the P.Ws. have deposed against you replied as under:-- "The P.Ws. are related with the deceased. They have made false statements to conceal their aggression." No evidence was produced in defence.

5. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above.

6. The learned counsel for the appellant vehemently contended that no reliance can be placed on the ocular version in which so many innocent persons were mentioned as accused, who were even not arrested by the Investigating Officer. He vigorously contended that it is a case of two versions, one version has been given by the prosecution and the other version has been put forth by the defence that the appellant committed the crime when his father was being given merciless beating by the complainant and the eye-witnesses and there was reasonable danger to his life and it was after that he opened fire at the deceased, thus his case apparently would fall under section 302(c), P.P.C. and the sentence already undergone by him would meet the ends of justice.

7. The learned counsel for the State has supported the impugned judgment. He submitted that there are two injured eye-witnesses who have no animosity and the learned trial Judge rightly believed their evidence and convicted the appellant under section 302, P.P.C. and that the case does not fall under section 302(c), P.P.C. as neither any defence plea was taken by the appellant in his statement under section 342, Cr.P.C. nor any defence evidence was adduced to substantiate his plea.

8. The learned counsel for the complainant submitted that from the facts proved, the case against the appellant falls within the ambit of section 302(b), P.P.C. and the appropriate sentence which should have been awarded to the appellant is death as he committed the murder of Shaukat Ali deceased without any rhyme or reason. He submitted that mere suggestion by the defence counsel, which was denied by the eye-witnesses would not create defence plea; hence the appellant deserves death sentence, which is the normal penalty prescribed under the law.

9. I have critically examined the respective submissions of the learned counsel of the parties and have gone through the evidence carefully with their able assistance. Admittedly, the defence has put suggestion to the prosecutinn witnesses that the appellant committed the crime under grave and sudden provocation, when the life of his father was in danger. On account of this suggestion, prima facie, the case becomes of two versions. The slautary principle for the just decision of a case of two versions is that both the versions A are put in juxtaposition and then the Court has to see which version is more probable and nearer to truth, subject to this qualification that onus of proof always remains on the prosecution. Applying thc, aforesaid principle of law to the facts of this case, I find `that the prosecution version is being supported by highly independent and reliable witnesses, whose presence at the scene cannot be disputed as they bear the stamp of injuries on their persons. Even the defence has not seriously challenged their presence at the place of occurrence. The medical evidence also supports the prosecution version. The defence version is based upon mere suggestions to the eye-witnesses which were denied by them. There is no evidence whatsoever on the file to lay down foundation of the defence version, because neither this defence plea was taken by the appellant in his statement under section 342, Cr.P.C. nor he appeared as his own witness under section 340(2), Cr.P.C.

10. I have considered the contention of the learned counsel for the 'complainant. In view of the incident which has not been denied by the complainant in the F.I.R. itself that immediatelX prior to the occurrence, the father of the appellant was belaboured by the complainant and his sons, hence there was justification for the trial Judge to withhold the capital sentence, because it was the immediate cause for the incident and was a mitigating circumstance in favour of the appellant.

11. The upshot of the above discussion is that I find no merits in the ID appeal and the revision petition; hence both are dismissed. N.H.Q./1-106/L Appeal dismissed.