2007 PLP 3192 (YLR)

HASNAT AHMAD KHAN, J: Sooba son of Khushi Muhammad, Tanvir Hussain son of Muhammad Akram and Binyamin alias Bagoo; appellants have assailed judgment dated 12-6-2003 rendered by a learned Additional Sessions Judge, Pasrur, whereby Sooba (appellant) was convicted under section 302(b) P.P.C. and awarded imprisonment for life, for committing the Qatl-e-Amd of Abid .Hussain deceased. He was also found liable to pay compensation of Rs.50,000.00 to the legal heirs of deceased or in default of payment thereof' to undergo six months simple imprisonment. .However, the said- appellant was given benefit of section 382-B, Cr. P: C. The other two appellants, Tanvir Hussain and Binyameen were convicted under section 302(c) P.P.C. read with section 34 P.P.C. and awarded ten year RI. each. Both of them were saddled with the compensation of Rs.25,000.00 each to be paid to the legal heirs of the deceased or in default whereof to undergo six months S.I., each. The benefit of section 382-B, Cr.P.C. was granted to them:

2. Precisely, the facts of prosecution case are that complainant is resident of the village Jeeto Gill. On 5-5-2002 at about 5-30 p.m. Abid Hussain and Muhammad Anwar were allegedly sitting in an open place under the shade of a tree near their house... All of a sudden, Sooba (appellant), Asghar Ali (acquitted co-accused), Saif Ullah (proclaimed offender) and Irfan (acquitted co-accused) armed with .222-bore rifles, Tanvir Hussain (appellant) armed with .30-bore pistol and Binyameen alias Baggoo armed with 244-bore rifle .appeared at the scene. Sooba appellant, allegedly raised a lalkara to teach a lesson to Muhammad Anwar and Abid Hussain by killing them for giving evidence against him in a criminal case. Sooba appellant, statedly fired a shot from his rifle .222-bore. which hit on right chest of Abid Hussain, Asghar, acquitted co-accused, fired second shot from his rifle .222-bore which landed on upper part of chest of Abid Hussain. Irfan acquitted co-accused made third shot from his rifle .222-bore hitting on right leg of Abid Hussain. Saif Ullah co-accused (proclaimed offender) fired a shot from-his rifle .222-bore which landed on right ankle of Muhammad Anwar. Tanvir Hussain and Binyamin accused remained engaged in making .aerial firing in order to keep the people of the area away from the place of occurrence. According to the complainant, Muhammad Anwar, P. W gave a sickle blow to Sooba, appellant, exercising right of self-defence. The occurrence was witnessed by Muhammad Aril and Zahid P.Ws. and other residents of the Area. The motivating factor behind this occurrence, statedly, was than wife of Muhammad Anwar injured had got registered a criminal case under section 18 of Offence of Zina (Enforcement of Hudood) Ordinance .VII of 1979, against Sooba appellant 4/5 months prior to the occurrence of this case. In that case Abid Hussain (deceased) was eye-witness and he had made statement before the trial court of the said cafe. After the occurrence, Abid Hussain was rushed to Civil Hospital in a serious condition, but he succumbed to his injuries. 2-A. The report under section 173, Cr.P.C., was submitted and the learned .trial court .framed formal charges against the accused on 24-1-2003. All the accused denied charges against them and claimed trial.

3. During the trial, the prosecution examined as many as fourteen. Witnesses Muhammad Nawaz, P.W.1, Zahid Mahmood (P.W.2) and Muhammad Anwar (P.W.3) furnished ocular account. Muhammad Nawaz, ASI, appeared as P.W.4, and stated that on 5-5-2002 a parcel of blood stained earth was handed over to him by Abdur Rehman Bajwa, S.H.O./S-I. He kept the same in safe custody in the Malkhana and on 13-5-2002 delivered the same to Naseer Ahmad constable for onward transmission to the office of Chemical Examiner, Lahore. According to him he was handed over a sealed parcel containing .222-bore rifle also on 31-5-2002 and on 9-6-2002 he delivered the same to Muhammad Saleh for depositing the same in the office of Forensic Science Laboratory, Lahore: P. W.S, Naseer Ahmad, stated that lie had escorted the dead body to the Civil Hospital, Pasrur for postmortem examination. After the autopsy, the doctor handed over to him last worn, blood-stained, clothes of Abid Hussain, deceased. He was also entrusted with the task of delivering a parcel containing blood stained earth to the office of Chemical Examiner, Lahore, which he performed properly. Shabir Hussain Shah, appeared as P.W.6 and stated that, on 5-5-2002 .blood stained earth was collected from the place of occurrence, and was sealed in a parcel vide recovery Memo. Ext.PD. Iqbal Shah who had identified, the dead body of Abid Hussain came forward as P.W.7 Muhammad Sarwar, (P.W.8), is a recovery witness. In his presence Sooba, appellant, had statedly got recovered rifle 222-bore Exh.P.4 vide recovery memo.. Exh.PE. P.W.9, Masood Ahmad Bhatti, draftsman, who had prepared site plans Exh.PF and Exh.PF/1 appeared in the witness box as P.W.9. Javed Iqbal; A.S.-I (P.W.10) deposed .that he had received written application of Muhammad Nawaz complainant Exh.PA, on the basis of which he had recorded the Formal F.I.R. Exh.PA/1. Saleh Muhammad (P.W.11) stated that he was given sealed parcel of rule .222-bore which was deposited by him in the office of Forensic Science Laboratory, Lahore Abdur Rehman; S.-I/S.H.O. who had conducted the investigation of the case stepped into the witness box and gave. the detailed .account of his investigation. Abdul Aziz, ASI, (P.W.14) stated that he had drafted injuries statement of Abid Hussain deceased Exh.PP and .also injuries statement in respect of Muhammad Anwar P.W, Exh.PQ. He had also drafted injuries statement Exh.PR of Sooba accused and got all of them medically examined from Civil Hospital Pasrur.

4. Capt. Dr. Muhammad Khalid, stepped forward as P.W.12 and stated that he on 5-5-2002 had examined injured Sooba, appellant and found the following injuries on his person:

(i) An incised wound 3.5 x 1 cm D.N.P. oblique on front of upper part of abdomen. (ii) An incised .wound 1.5 x 1/2 cm into skin deep on outer. front of left upper arm on the lower most part. Injury No. l was kept under observation and injury No.2 Tell under section 337/F-1 P:P.C. Duration of injuries was found to be fresh and caused with sharp edged weapon. On the same day the said P.W. had medically examined Abid Hussain and found following injuries on his body:-, (i-A)A fire arm lacerated wound 1x1 .cm margin inverted D.N.P. on back of right chest in middle part. (entry wound) . (i-B)A fire arm lacerated wouild3 x 2 cm margin everted D.N.P. on outer aspect of right lower chest. (exit wound). (ii-A) A fire arm lacerated wound 1/2 x 1/2 cm x D.N.P. margins inverted on back of right upper arm in lower part. (entry. wound). (in-B) A Fire arm lacerated' wound 3.5 x 2.5 cm x D.N.P. margins everted on inner front of right upper arm in lower part. (exit wound) (in-A) A fire arm lacerated wound 1.5 x 1 /2 cm oblique x D. N. P. margins inverted on outer back, of right leg in upper part. (entry wound). (in-B) A fire arm lacerated wound 4. x 3 cm D.N.P. margins everted on inner front of right leg in middle. (Exit wound). All the injuries were kept under observation and duration of the same was fresh and caused by fire arm weapon. On the same day i. e. 5-5-2002, at about 6-30 p.m. the afore-referred P.W/doctor medically examined. Muhammad Anwar. The following injuries were found on his person:

(i) Afire arm lacerated wound 10 x. 3.5 cm U shape on back and sides of right ankle joint D. N.P, and profusely bleeding. The said sole injury was kept under observation and its duration was fresh and caused by fire arm weapon. On 6-5-2002 the P.W/doetor conducted the post-mortem examination on the dead body of Abid Hussain deceased. The injuries have already been described above: In the opinion of the. doctor Injuries Nos.l-A and 1-B were sufficient to cause death in ordinary course of time as it involved damage to right lung, liver and extensive damage to blood vessels and perforated right side of diaphragm and many perforations ill small and large intestine. The prosecution tendered in evidence the report of Chemical Examiner Exh. P.T, and that of Fire Arms Expert Exh. P.U. and closed the case.

5. All the accused in their respective statements under section 342, Cr.P.C., denied the case of prosecution and claimed innocence and pleaded not guilty. However, none of them opted to make statement under section 340(2), Cr.P:C. Sooba accused in reply to question No.2 stated as vender:

"It is incorrect. Actually.; Abid deceased; Muharnnad Anwar P.W, Arshad mid Ghulan Nabi, the real brother of Anwar P.W were sitting together with common intention to kill me in an ambush. Abid deceased gave a dagger blow tome which landed on the left upper part of mine and Anwar P.W armed with sickle gave a sickle blow to me which landed on my abdomen and Arshad fired at me which unfortunately hit on the back side of Abid deceased." However, in answer to question No.11, he stated as raider:

"I am innocent. I further under remand paper application dated 1-6-2002 as Exh.DB, certified copy of writ petition No.15705-2002 Exh. D.C, along with order dated 30-8-2002 Exh. DC/1 and treatment of accused East Surgical Unit, Mayo Hospital, Lahore as Exh.D.D. alongwith discharge slip East Surgical Unit Mayo Hospital, Lahore Exh.DD/1 placed reliance on Exh: PG and Exh.PC/1." 5-A. Learned counsel for the appellant has contended that F.I.R, in this case was recorded after preliminary investigation, which fact is obvious from the evidence of the complainant who during the cross-examination had admitted that before lodging F.I.R. he had consulted an advocate for preparation of the. application on the basis of which the case was registered; that investigation was conducted dishonestly from the day one; that Sooba accused/appellant himself had received serious injury during the occurrence but police had failed to record the cross version despite the direction passed by this court; that all the witnesses including the injured witnesses being interested witnesses, their evidence could not be believed without independent corroboration; that defence version is more probable and plausible than the prosecution version; that prosecution failed to prove its case beyond any shadow of doubt; that the ocular version provided by an injured witness cannot be taken as a .gospel truth; Sooba accused after having received serious injury could not have caused firearm injury to the deceased; that according to the prosecution version, Sooba accused did not cause any injury to the injured PW, therefore, no right of self-defence accrued in favour of the injured PW; that neither the motive version nor the recovery evidence is plausible; that the same evidence having been disbelieved qua two acquitted co-accused cannot be relied .upon for maintaining conviction of the appellants without independent corroboration; that as far as Tanvir Hussain and Binyamin, appellants are concerned only allegation against them is that of resorting to ineffective firing, therefore, they deserve the benefit of doubt. After relying upon the cases of Saeed Ahmad v Zamnrd Hussain (1981 SCMR 795), Javaid Akthar and another v. State (1998 PCr.LJ 1009), State v. Muhammad Aslam and others, (1999 MLD 335), Munir Ahmad v. State (2001 SCMR 56), Mst. Saeeda Begum v. (1998 SCMR 1513), Ghulam Rasool v. State (1998 MLD 1366), Bahsir Begum v. Safdar Ali (2000 SCMR 1038}, and Muhammad Tayyab v. State (1991 NLR 241), learned counsel concluded his arguments.

6. Conversely, learned counsel appearing on behalf of the complainant has submitted that prosecution has proved its case beyond and shadow of doubt; that prosecution evidence is supported by the evidence of Muhammad Anwar injured P.W. whose presence could not be doubted as he bears stamp of injuries on his person; that the occurrence had taken place in Ahata bf the complainant parry and, therefore, there was no occasion for believing the defence version according to which it was the complainant party who had attacked the accused; that it was allay-light occurrence, during which Sooba accused appellant himself received an injury which was caused to him by Anwar injured P.W. while exercising right of self-defence, therefore, presence of Sooba accused appellant at the place and time of occurrence could not be denied; that injury received by Sooba appellant was specifically explained at the time of lodging the F.I.R.; that neither Sooba appellant had appeared in his own defence under section 340(2), Cr.P.C. nor had he produced any witness to support the defence plea, therefore, the sane is not worthy of reliance; that under Article 121 of the Qauun-e-Shahadat, if the accused raises defence plea falling within any of the general exceptions provided in the P.P.C., the burden of proving of such plea shifts towards him. But in this case according to the learned counsel for the complainant miserably failed to substantiate his defence plea, therefore, his plea of self-defence is not helpful to him. In support of his contentions, learned counsel has placed reliance upon the cases of Khizer Hayat. State (2006 SCMR. 1755); Muhammad Ehsan v. State (2006 SCMR 1857), Muhammad Akram v. State (2006 SCMR 954), Abdul Rauf and others v. Mehdi Hassan, (2006 SCMR 1106); Liaquat v. State (2006 SCMR 33), and Muhammad Akram and two others v. State (2006 MLD 1973).

7. Heard. Record perused. The broad features of this case are that occurrence in this case took place in the broad day light. During the occurrence, accused as well as Anwar, injured PW; received injuries besides the deceased. The injury suffered by Sooba accused was duly mentioned is the F.I.R. by stating that Anwar injured P.W.3. caused a sickle blow to Sooba, appellant, in his self-defence. The medical evidence duly confirms the factum of receipt of fire-arm injuries by the deceased as well as the injured P.W. to show the aggression on the part of the accused party. It is also available on the record that the occurrence had taken place in the courtyard of the residence of deceased. The place of occurrence has not been denied by Sooba appellant, according to him the place of occurrence was a thoroughfare acid the accused party was aggressed upon by the complainant party who had ambushed the accused but as mentioned above, the selection of the weapon of offence i.e. sickle with which Sooba appellant was caused an injury shows that there was no preparation on the side of the accused. It is true that during the occurrence the complainant had admitted that. F.I.R. was lodged after consultation with a counsel to whom the MLRs were-also shown. But said fact alone cannot demolish the prosecution's entire case. Said fact can only lead to conclude that possibly the net was widened by the prosecution and the benefit of said presumption has already been granted to the acquitted accused namely Safdar and Irfan. As far as the medical evidence is concerned, certainly there is some contradiction to the extent of direction from which the deceased was tired at. In that according to the medical evidence, the deceased had received injuries on the back side while according to the prosecution, he was fired at from the front side, but when ii is looked upon while keeping the entire scenario and circumstances into consideration, said inconsistency cannot advance the case of the defence as it was not the case of the defence itself that deceased was fired at from the back side by Arshad, one of the 'alleged associate of the complainant, as claimed by Sooba appellant. The fact remains that during the occurrence deceased had been shot at. Similarly, injured P.W. had also received injury. Presence of Sooba appellant who himself was injured during the same occurrence has not beets denied by him. Occurrence being abroad-day light affair there was no chance of mss-identification or substitution of the perpetrator of the crime.

8. As far as motive of the occurrence is concerned, it is an admitted fact that wife of injured P.W. had got registered a .criminal case against Sooba under section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of, 1979, 4/5 months prior to this occurrence. It is also admitted that Abid Hussain was witness of said case. However, according to defence, a compromise had been effected in the said case which was cancelled by the police, but possibility of nourishing a grudge by the accused due to said raison detre cannot be ruled out. In these circumstances, it cannot, be said that motive in this case could not be 'proved. The prosecution's case was proved by the .ocular evidence furnished. by P.W.1 to P.W.3 The ocular version as mentioned above, got. support from the motive version advanced by the prosecution. It is true that after disbelieving the same evidence qua the two co-accused, a strong corroborating evidence is required to prove the case against the accused. Said corroboration in this case is forthcoming in the shape of medico legal report of Sooba appellant, which clearly reveals that he was present at the time of occurrence.' So his presence at the spot cannot be doubted. It is also a fact that Saif Ullah, one of .the co-accused who had shot at Anwar injured P.W. is still absconder. Now the only thing to be seen is as to whether the defence plea is to be believed or the prosecution story. As mentioned above, the injures received by Sooba accused were duly explained in F.I.R. itself wherein it was specifically stated that Anwar, injured PW, had caused a sickle blow to Sooba appellant. So it is not a case wherein the injury received by an accused was suppressed by the prosecution. Rather it is a case where the prosecution had straightway come tip with the explanation of the injury suffered by Sooba appellant.--The occurrence took place in the compound attached to the house of the deceased while, the complainant party was sitting in the shade of the a tree to protect, themselves from-heat of lamp of heaven. According to the defence version, Sooba appellant was waylaid by the complainant side, but one would take said version with a pinch of salt as the .appellant was not caused any firearm injury. Had it been a case of pre-planned assault on the accused by the complainant side, he would .have been assaulted with fire-arm or other lethal weapon. The weapon with which the accused was given an injury is stated to be a sickle which is not taken normally as assault weapon. Sickle is a tool which is usually kept by the persons for the pursuit of their daily chores. Besides that, it is not plausible that in broad day light, Arshad, one of the colleagues of the complainant could have mistakenly caused fire-arm injuries. to Abid deceased. The defence story on this account is liable to be discarded on another ground i.e. according to the medical evidence deceased had received three injuries on his person, Arshad, a colleague of the complainant party could not have committed mistake of tiring at his own associate thrice. Moreover, neither Sooba appellant appeared in his own defence under section 340(2), Cr.P.C. nor did he produce any evidence in support 'of his version, which even otherwise is neither probable nor plausible. The appellant has miserably failed to prove defence version. Therefore, the ocular version which includes the evidence of injured P.W., being probable and plausible in the attending circumstances of the case, is believed and therefore, the conviction awarded to Sooba accused appellant is maintained after relying upon the case-law cited by the learned counsel for the complainant. Sooba appellant is on bail He be taken into custody to serve out his remaining sentence. The judgments cited by the learned counsel for the appellant are distinguishable: As far as Tanvir and Binyamin accused are concerned, the only allegation against them is that of resorting to ineffective and aerial firing. During the investigation, no recovery was effected from the place of occurrence. Though some self-destructive suggestions were put to the eye-witnesses regarding the presence of the two witnesses, yet considering the case in the attending circumstances especially when it has come on record that F.I:R. was lodged after consultation with one advocate, they are entitled to benefit of doubt. They are acquitted of the charge. They are on bail, their bail bonds are hereby cancelled and sureties are discharged. H.B.T./S-145/L Order accordingly.