2002 PLP 614 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑This appeal by leave of the Court is directed against the judgment, dated 29‑3‑2000, of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No.265 of 1996.

2. Briefly stated the facts of the case are that Nasar Mahmood complainant lodged F.I.R. (Exh.P.M.), dated 9‑3‑1995, alleging that Javed Ahmad (Jawad) and Abid Iftikhar, appellants Nos.1 and 2, were residing to the adjacent house of the complainant. The relations between the parties were strained due to an old dispute over a land. Javed Ahmad (Jawad) and others used to invite persons of bad character at their Dera. Jehangir Mahmood took its notice. On the fateful day at‑9/10 a.m. laved Ahmed (Jawad) and Abid alongwith certain others arrived at their own Dera in a jeep, which was located in front of the complainant's house. As those persons appeared to be ambiguous character, Jehangir Mahmood castigated Javed Ahmed (Jawad) and Abid but they felt aggrieved and took it as their insult, which led to exchange of abuses between the two sides. The complainant intervened and brought back Jehangir Mahmood. Javed Ahtnad (Jawad) etc., also left the spot. On the same day at about 5‑15 p.m. the complainant, who was present near the Dera, after hearing noise of Shehar Yar alias Sheri, son of the deceased, rushed to his house and saw that his brother Jehangir Mahmood was being forcibly dragged by the accused, who were armed with rifles. The accused were taking him to their own house. They openly said that they would teach him a lesson for the land in dispute and further to avenge their insult. Muhammad Shaft, servant of the complainant and Pervez P.Ws. were already present there and were crying for help. All the three witnesses tried to rescue Jehangir Mahmood from the clutches of the accused, who warned them that if anybody intervened, he would be killed. The P. Ws. in a state of helplessness, followed the accused and reached near the outer door of the house of Javed Ahmed (Jawad) and could not advance further due to fear. In the presence of the witnesses all the accused with their respective weapons fired at Jehangir Mahmood, who fell down and succumbed to his injuries at the spot. After the occurrence, the accused fled away in the jeep, which was parked outside their house. According to the complainant, all the accused, after consultation with each other, committed the murder of Jehangir Mahmood. Muhammad Shaf P.W.8 informed the complainant that the accused had also taken away licensed rifle of the deceased, when he was forcibly dragged from his bed room towards their house. Nasar Mahmood complainant left Parvez and Muhammad Shaft near the dead body and proceeded towards the police station for lodging the report. Ghulam Rasool, S.‑I./I.O. (P.W.15) collected blood‑stained earth from the spot, prepared the inquest report (Exh.P.S,) and injury statement (Exh.P.T.) of the deceased and sent the dead body‑ for post‑mortem examination. He recorded the statements of the witnesses. On 13‑5‑1995 he arrested all the accused. On 27‑5‑1999 Noor Ahmad got recovered .222 rifle belonging to the deceased and a magazine (P.5) kept in an iron box lying in his residential house. Appellant Manzoor Ahmad got recovered unlicensed 8‑MM rifle (P.6) and 8 live cartridges (P.8/1‑8). Javed Ahmad (Jawad) while to police custody got recovered .222 bore licensed rifle (P.9) from the residential Kotha of Mst. Fatima Bibi alongwith magazines (P.10/1‑2), 9 live bullets (P.11/1‑9) and a copy of a licence W.12). Abid Iftikhar got recovered licence (P.13) of .8‑MM rifle.

3. After completion of the investigation, the police submitted challan in the Court. The prosecution examined 15 witnesses to prove its case.

4. The trial Judge vide judgment dated 27‑8‑1996 convicted all the appellants under section 302, P.P.C. laved Ahmad (Jawad) and Abid Iftikhar were sentenced to death, whereas Manzoor Ahmad and Noor Ahmad were sentenced to imprisonment for life with a fine of Rs.1,00,000 each, or in default thereof to further undergo R.I. for two years each. They were also 'ordered to pay a sum of Rs.1,00,000 each, as compensation, to the legal heirs of the deceased. Under section

364. P.P.C. the appellants were sentenced to 10 years' R.I. with a fine of Rs.1,00,000, each or in default thereof to further undergo R.I. for two years each for committing abduction of Jehangir. Mahmood deceased from his house before murder. Under section 380, P.P.C. Noor Ahmad convict was sentenced to 2 years' R.1. Benefit of section 382‑B, Cr.P.C. also extended.

5. The convicts appealed in the High Court. After hearing the learned counsel for the parties, the High Court, vide judgment, dated 29‑3‑2000 reduced the death sentence of Abid Iftikhar appellant to imprisonment for life. The sentence of fine of Rs.1,00,000 imposed on each appellant was set aside. Sentence of 10 years' R.I. under section 364, P.P.C. was reduced to 5 years' R.I. each with a fine of Rs.10,000, or in default thereof all the appellants were directed to suffer R.I. for six months. The conviction and sentences imposed by the trial Court against Javed Ahmad (Jawad), Manzoor Ahmad and Noor Ahmad under the murder charges and as to the conviction and sentence under section 380, P.P.C. awarded to Noor Ahmad were maintained, As no order with regard to the sentence to be suffered by the appellants in default of payment of compensation amount had been passed by the learned trial Court, therefore, it was ordered by the learned High Court that in the event of default in payment of compensation, the appellants will suffer further S.I. for six months. Benefit of section 382‑B, Cr.P.C. was also extended to the appellants. With the above modification in the sentences, the appeal of the appellants was dismissed.

6. Vide order, dated 26‑10‑2000, leave to appeal was granted to consider the submissions made by the learned counsel for the appellants and to examine in detail the evidence on record and the plea of self , defence raised by appellant No. 1, so as to decide the case to the light of the I relevant law.

7. Malik Rab Nawaz Noon, learned Advocate Supreme Court for the appellants, inter alia, contended that the eye‑witnesses being closely related to the deceased and also inimical towards the appellants, the conviction of the appellants could not be maintained on their evidence. Moreover, the eye witnesses were also the chance witnesses; that the post‑mortem of dead body of Jahangir Mahmood was conducted on the next day of the incident i.e. 10‑3‑1995, which shows that the F.I.R. was registered after due deliberation and consultation; that the independent corroboration of the eye‑witnesses account is not forth coming. Moreover, the medical evidence is also in conflict with the ocular evidence and that the prosecution also did not prove the motive. In support of his contentions, the learned counsel has relied on Muhammad Latif and another v. The State (NLR 1983 Criminal 651).

8. Mr. Muhammad Iqbal Bhatti, learned counsel for the complainant, supported the impugned judgment pointing out that the incident is of day time, the F.I.R. was lodged promptly, the role of each of the appellant is mentioned therein, which also gets support from the empties recovered from the Wardat, medical evidence and recovery of fire‑arm from Javed Ahmad (Jawed) appellant. He submitted that the empties recovered were matched with the weapon used in the crime, which also gets support from Forensic Science Laboratory's Report. He further pointed out that the High Court has already shown leniency while converting the death sentence of Abid Iftikhar to imprisonment for life. Learned counsel submitted that the impugned judgment be maintained.

9. Learned counsel appearing on behalf of the State also supported the impugned judgment.

10. We have considered the arguments raised by the parties and have gone through the entire record with assistance of their learned counsel, as well as the case‑law cited by the learned counsel for the appellant. Admittedly, the appellants as well as P.Ws. and the deceased are closely related to each other and there was a dispute over a land between the parties. On 9‑3‑1995 the incident took place, which was at a distance of 6 Kits. from Police Station Harrapa, but without any loss of time the F.I.R. was lodged at 6‑10 p. m. by Nasar Mahmood P. W. himself. The names of the eye‑witnesses and role 'of causing fire‑arm injuries on the person of. the deceased are mentioned therein, which get support from the medical evidence furnished by Dr. Nisar Mahmood (P.W.12).

11. We have also perused the medical report, which shows that there were 12 fire‑arm injuries on the person of the deceased, out of which 6 were entry wounds and the other six were exit wounds. These fire‑arm injuries were attributed to the appellants, which fully support the prosecution case. The medical evidence is also in' corroboration with the ocular account. Furthermore, the time of death as mentioned by the doctor, the weapon used in the crime as well as the seat of the injuries attributed to the accused, are also established. The eye‑witnesses have given correct, trustworthy and reliable evidence. The defence was not able to, put any dent in the prosecution evidence. The contention of the learned counsel for the appellant that the post‑mortem was conducted on 10‑3‑1995, therefore, there is a possibility that F.I.R. was lodged with consultation and deliberation, is not borne out from the record, because Nazar Mahmood Constable P.W.4 stated before the trial Court that on 10‑3‑1995 he escorted the dead body of Jahangir Mahmood to the Civil Hospital, Harrapa, for post‑mortem examination, but unfortunately the Medical Officer was not available, therefore, he took the dead body to D.H.Q. Hospital, Sahiwal. From his statement it appears that there was sufficient reason that the post‑mortem was conducted next day and there was no delay whatsoever on the part of the complainant side to presume that there was any consultation ox deliberation on their, part. The Investigating Officer secured the empties and blood‑stained from the place of Wardat, which also established that the crime was committed as per prosecution allegation. Apart from the ocular evidence, there is a strong circumstantial evidence against Javed Ahmad (Jawed) accused to the effect that the police secured fire‑arm from his possession prior to that empties were secured form the place of evidence, which were dispatched to, the Forensic Science Laboratory, whose report is in positive. The empties secured were fired from the fire‑arm recovered from Javed Ahmad (Jawad) appellant.

12. We have also noticed that the incident took place on 9‑3‑1905, thereafter the appellants were not traceable at the given address and they were declared proclaimed offenders and such proclamation Exhs.P.A. to P.E. were issued against them which were fixed at conspicuous places but the accused did not surrender till 13‑5‑1995. It is a period of more than 2 months, which also shows that after commission of the crime they absconded away. No doubt, the P.Ws. are related inter se, but the accused are also related to the complainant party. Apparently, there is no earthly reason to believe that the complainant party would let off the real culprits and involve the present appellants, because substitution in place of the real culprits, in any case, is very rare, which is also not borne out from the record.

13. In NLR 1983 Criminal 651 (supra), the kind of weapons used (i.e. Sotas) and the manner in which the incident took place, clearly show that the accused had not attacked the complainant party with a preconceived plan to commit the murder in question. It was a sudden fight between the parties, during which each side inflicted Sota blows on each other and as such each person was responsible for his own individual acts. During the fight one Sota blow was inflicted by one of the accused with more force than was intended and resulted in the death of the deceased. Therefore, under the circumstances of the case, this Court modified the conviction of the appellants from section 302/34, P.P.C. to section 325/34, P.P.C. and sentenced them to 7 years' R.I. each. In our considered view, the case‑law cited by the learned counsel for the appellant is quite different and distinguishable and is not helpful to his contentions.

14. The prosecution has proved its case against the appellants, beyond any reasonable shadow of doubt. The Courts below have rightly examined and analysed the prosecution evidence as well the plea of self‑defence raised by appellant Javed Ahmad (Jawad) which was rightly rejected. There' is no misreading or any legal flaw in the impugned judgment, which is based on the principles laid down by this Court, and is not open to exception.

15. For the foregoing reasons we do not find any substance in this appeal, which is hereby dismissed and the impugned judgment of the High Court, dated 29‑3‑2000 is maintained. N.H.Q./J‑17/S Appeal dismissed.