2008 PLP 1556 (YLR)

RUSTAM ALI MALIK, J.

Through this judgment we intend to dispose of Criminal Appeal No. 265 of 2000 as well as Murder Reference No. 101 of 2000, both arising out of the judgment dated 23-2-2000 passed by the learned Additional Sessions Judge, Faisalabad. The case against the accused/appellant is based on F.I.R. No. 52/ 96 registered on 21-2-1996 in Police Station Dijkot, District Faisalabad. The formal F.I.R. Exh.PD/1 was registered on the basis of statement Exh. P. D. of Kandal son of Lal (P.W.7) resident of Chak No. 246/RB wherein he had stated that Pervaiz alias Gogi was his real younger brother who was dealing in cattle in the same village. Muhammad Ramzan accused, who is their cousin, usually remained drunk. Pervaiz alias Gogi used to forbid him from coming to Bazar in a State of intoxication. On 21-2-1996 around 2-00 p.m., when Ramzan was under the influence of liquor and was armed with a pistol .30 bore, Pervaiz alias Gogi forbade him from coming to Bazar under the influence of liquor and to refrain from creating disturbance/noise in the Bazar. Thereupon the accused fired with the pistol and one of the shots fired by him hit Pervaiz alias Gogi in his chest, towards the left side near the neck and Pervaiz, after getting injured, succumbed to the injury. The occurrence was witnessed besides the complainant by his father Lal and paternal uncle Shamman. After the occurrence, the complainant was proceeding to the Police Station to report the matter when the Inspector/S.H.O met him and recorded his statement, on the basis of which formal F.I.R. was got recorded.

2. After the investigation, the challan was submitted against the accused and the case was later sent up to the Court of Session for trial.

3. In this case, the prosecution has examined as many as 11 P.Ws. Of them P.W.11 is Muzammal Hayat, Inspector, who on 21-2-1996 was posted as S.H.O at Police Station Dijkot and who had recorded the statement Exh. PD of the complainant and had sent the same to the police station for the registration of the formal F.I.R. Thereafter he had visited the place of occurrence and had taken formal steps in connection with the investigation of the case, such as preparation of rough site plan of the place of occurrence and also the preparation of the injury statement and the inquest report. He had also recorded the statements of the P.Ws under section 161, Cr.P.C. and had collected the blood-stained earth from the spot. On the next day, he had sent the dead-body under the escort of a constable for the purpose of post-mortem examination. After the post-mortem examination the Constable had handed over to him the last worn clothes of the deceased which were taken into possession by him vide memo. Exh. PE. On 18-3-1996 he arrested Muhammad Ramzan accused and recovered from his possession pistol (P.1). After the completion of investigation, the accused was challaned by him.

4. P.W.1 is Capt. Dr. Muhammad Anwar, who on 22-2-1996 had conducted the post-mortem examination of the deceased and had found two injuries on his person. In his opinion, injury No. 1 which had been caused by a fire-arm was sufficient to cause death in the ordinary course of nature due to shock and haemorrhage. The probable time between injury and death was described by him as within one hour and that between death and post-mortem examination within 20 hours. It may be mentioned here that injury No.2 which was on the back of the left shoulder of the deceased was described as a surgical wound while injury No.1 was a firearm entrance wound. Exh.PA is the copy of the post-mortem report while Exh.PA/1 is the sketch of injuries.

5. The eye-witness account in this case is furnished by P.W.7 Kandal and P.W.8 Lai, both of whom deposed on the same lines as indicated in the F. I.R.

6. On 15-9-1999, the learned Prosecutor tendered in evidence the report of Chemical Examiner as Exh. P.L., report of Serologist Exh. P.M. and closed the case for the prosecution.

7. On the conclusion of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C. and wherein he denied all the incriminating circumstances. In answer to the question as to why this case against him and why the P.Ws. had deposed against, the accused/appellant replied as under: "The deceased was my real cousin. We had a joint business of cattle. It was Eid Day and I had gone to the house of the deceased, who offered me a cold drink in a Coca Cola against my wishes. After something I came under the intoxication of that drink and both of us came out of the house and had lost senses. The deceased had a pistol with him. We started grappling with each other as the deceased was also under the influence of some intoxication and as a result of grappling, the pistol went off which accidentally hit the deceased who lost his life. The P.Ws. have deposed against me due to relations with the deceased."

8. One Shamman was also examined as C.W-1 on 26-10-1999. It may be mentioned here that the accused did not make statement on Oath under section 340(2), Cr.P.C. and on 26-10-1999 made a statement closing his defence evidence as well. So far as C.W-1 Shamman is concerned, he has deposed that on the day of occurrence, which was an Eid Day, he had come out in the Bazar. He stated that Ramzan accused and Pervaiz deceased had taken liquor and were walking in a dangling manner. He stated that when they passed in front of his house, Pervaiz deceased fell down. He also stated that the deceased was having a pistol in his hand and which went off accidentally and hit the deceased in his chest. Thereafter he had sent a boy to inform the complainant and his father about this incident.

9. On the conclusion of the prosecution evidence, the learned trial Court convicted the accused under section 302(b), P.P.C. and sentenced him to death. The accused was also directed to pay compensation of Rs. 100,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default in payment of compensation to undergo S.I. for six months.

10. Aggrieved of the impugned judgment, the accused/appellant has filed this appeal (Criminal Appeal No. 265 of 2000). The learned trial Court- has also sent a reference (Murder Reference No. 101 of 2000) for the confirmation of the sentence of death.

11. The learned counsel for the appellant has argued that statements of P.W.7 and P.W.8 are contradictory; that both P.W.7 and P.W.8 have effected improvements on a number of material points; that the learned trial Court had failed to take notice of the fact that even according to the prosecution version the accused was in a state of intoxication at the time of occurrence and hence he could not be in the proper frame of mind to understand the nature of his act; that it was in fact the deceased who had forced the accused to take liquor and it was during the course of scuffle and grappling that the pistol went off and which accidentally hit the deceased and the injury caused by him had proved fatal; that the accused had no guilty intention to cause death of the deceased and that the accused being the first cousin of the deceased had no reason to subject the deceased to murderous attack; that the prosecution had failed to establish the motive against the accused; that the prosecution had miserably failed to prove its version and that the conviction recorded by the learned trial Court as well as the sentence awarded to the accused/appellant could not be legally upheld.

12. On the other hand the learned counsel for the State has supported the judgment of the learned trial Court and has argued that the ocular account in this case is corroborated by the medical evidence and that even according to the defence version the accused and the deceased were grappling at the time of occurrence; that the statement of C.W-1 is in conflict with the defence version of the accused; that the learned trial Court had rightly convicted and sentenced the accused/appellant and hence the sentence awarded to the accused by the learned trial Court be upheld.

13. We have carefully considered the arguments advanced from both sides. According to the prosecution version, the accused, who was a drunkard, used to make noise in the streets under the influence of liquor and as on the day of occurrence, the deceased forbade him from doing so, the accused fired with the pistol and a shot fired by him hit the deceased in his chest and which resulted in his death. According to the defence version, on the day of occurrence which was an Eid Day, the accused had gone to the house of the deceased and who offered him the drink (liquor) against his wishes and after sometime he got intoxicated and both of them came out of the house while they had lost their senses. According to the defence version the deceased had a pistol with him and that the accused and the deceased started grappling with each other and as the deceased was also under the influence of some intoxication, the pistol went off and the shot so fired accidentally hit the deceased and who lost his life.

14. The accused has not made any effort in this case to produce any defence evidence to prove that at the time of occurrence he was not in his senses or that he was in a state of intoxication to such an extent that he did not understand the nature of his act. He has also not produced any evidence to prove that during the course of grappling, the pistol (of the deceased) went off and the shot so fired accidentally hit the deceased. Even if the accused and the deceased were cousins inter se, even then it could not be presumed that the accused could not fire at the deceased, particularly when he had been forbidden by the deceased from coming out in the street in a state of intoxication. The accused in his defence version does not deny his presence at the time of occurrence but has merely taken the plea that it was the result of grappling that the pistol of the deceased went off and as a result the deceased was hit and who lost his life.

15. The ocular account in this case is furnished by P.W.7 and P.W.8 and who fully support the prosecution story and which is corroborated by the medical evidence furnished by P.W.1 Capt. Dr. Muhammad Anwar, Senior Medical Officer. On the other hand, the defence version of the "accused does not inspire confidence. Anyhow, we feel that under the peculiar circumstances of the case and also in view of the principle of safe administration of justice, the sentence of life imprisonment would serve the ends of justice, and as such we are inclined to convert the sentence of death awarded to the accused by the learned trial Court under section 302(b), P.P.C. to imprisonment for life.

16. In view of what has been stated above, we maintain the conviction of the accused/appellant under section 302 (b), P.P.C. However we convert the sentence of death awarded to the accused/appellant by the learned trial Court into life imprisonment. The accused will also pay the amount of Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default in payment of compensation to undergo S.-I. for six months. The accused will also be entitled to the benefit under section 382-B, Cr.P.C.

17. With the above modification in the impugned judgment, the appeal filed by the accused/appellant (Crl. Appeal No. 265 of 2000) is dismissed. The sentence of death awarded to the accused/appellant by the learned trial Court is not confirmed. Murder Reference No. (101/2000) is answered in the Negative. N.H.Q./M-539/L Sentence reduced.