2007 PLP 620 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Muhammad Arif alias Achhu, appellant, was tried by the learned Additional Sessions Judge, Sialkot, in lieu of case F.I.R. No.399 registered at Police Station City Daska on 19-9-1998 for offence under section 302, P.P.C. Vide judgment dated 31-5-2000, the learned trial Judge convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.70,000 as compensation to the legal heirs of the deceased, in default in payment whereof to undergo R.I. for six months.

2. Muhammad Arif alias Achhu, convict-appellant, has challenged his above noted conviction and sentence through the instant appeal. Murder Reference No.468 of 2000 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. The brief facts of the prosecution case per application/complaint Exh.PA made by Rana Abdul Hameed/P.W.1 to Zulfiqar Ahmad, S.-I./P.W.l0, which based the registration of formal F.I.R. Exh.PA/1, are that on 19-9-1998 the complainant and his brother Nasir Mahmood went to Habib Bank Sambrial Road Daska from their village to see their brother Tariq Mahmood who was employed as cashier in the bank. After meeting their brother, they were coming towards Meraj Chowk and when they reached at about 11-30 a.m. in the Chowk in front of Cheema Plaza, they came across Rana Muzammal Khurshid, Advocate, and Rana Muhammad Akram Khan/P.W.2 and were talking with each other, all of a sudden Muhammad Arif alias Achhu/appellant, who was armed with Chhurri, came in front of them and, while raising Lalkara that he would teach a lesson for preventing him from teasing the girls, gave a Chhuri blow on the right lower side of abdomen of Nasir. When Rana Muhammad Akram tried to apprehend Muhammad Arif, the accused, while brandishing the Chhuri, threatened that whosoever came near him would also be done to death. Due to the fear, the P.Ws. did not intervene. The appellant decamped from the scene of occurrence along with the Chhuri. Rana Muzammal Khurshid, Advocate, and Rana Muhammad Akram took Nasir Mahmood, in injured condition, to Civil Hospital, Daska, where the doctor, after medically examining the injured and giving his medico-legal report, referred him to Civil Hospital, Gujranwala. On his way to Civil Hospital, Gujranwala, in official ambulance, the injured died and was taken back to Daska Hospital. While leaving Rana Muhammad Akram with the dead body, the complainant himself proceeded to the police station. On his way, he came across Zulfiqar Ahmad, S.-I./P.W.10, near Bangla Chowk, who along with other police officials was present there in connection with patrol duty, and presented his application Exh.PA before the aforesaid S.-I. for registration of the case. As to the motive, it was alleged that two days prior to the occurrence Nasir Mahmood deceased forbade Arif-accused from teasing the girls, whereupon a quarrel took place between the two. The appellant kept grudge in his mind and attacked Nasir Mahmood deceased.

4. On 19-9-1998, Zulfiqar Ahmad, S.-I./P.W.10, after receiving and sending the application Exh.PA of the complainant to the police station for registration of formal F.I.R., went to Civil Hospital, Daska, where the dead body of Nasir Mahmood was lying. He prepared its inquest report Exh.PH and injury statement Exh.PJ and got the post-mortem examination of the deceased. Then he went to 'the place of occurrence; collected blood-stained earth through memo. Exh.PB and prepared the rough site-plan of the place of occurrence (Exh.PL). The last worn clothes of the deceased were taken into possession vide memo. Exh.PC. The appellant was arrested on 11-10-1998 and while in custody, on 15-10-1998, he led to the recovery of Chhuri P.4 which was taken into possession vide memo. Exh.PE. After completion of investigation, the appellant was sent up to the face the trial.

5. The prosecution produced twelve witnesses in support of its case. Ocular account was furnished by Rana Abdul Hameed/P.W.1 and Rana Muhammad Akraml P. W.2. In addition to that, they stated about the motive. Dr. Mukhtar Ahamd/P.W.7 medically examined Nasir Mahmood on 19-9-1998 and found one incised wound 2 1/2 c.m. x 1 c.m. abdominal cavity deep obliquely directed on right inguinal area (front or right side of abdomen in lower). According to his opinion, the injury was freshly inflicted by a sharp edged weapon. After giving necessary treatment to Nasir Mahmood, the doctor referred him to Civil Hospital, Gujranwala. Dr. Muhammad Asif Mughal/P.W.8 conducted post-mortem examination on the dead body of the Nasir Mahmood deceased on 19-9-1998 and while observing one injury on his person, opined that the death occurred due to the sole injury which led to excessive internal and external haemorrhage shock. The injury was caused by sharp edged weapon and was sufficient to cause death in the ordinary course of nature. The duration between the injury and death was within two hours, while it was 2 to 4 hours between death and post-mortem examination. Tariq Mahmood/P.W.6 stated about the recovery of Chhuri at the instance of the appellant. Zulfiqar Ahmad, S.-I./P.W.10, stated about the receipt and transmission of the application Exh.PA of the complainant to the police station for registration of the case and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication and took up the plea of self-defence in the following words:-- "I am innocent. Actually on 19-9-1998, I was going to my work as usual. The deceased along with one unknown person stopped me and fired at me with his pistol in order to commit my intentional murder. He pulled the trigger of his pistol but fire was missed. The deceased tried to reload the pistol but meanwhile, I availed the opportunity and picked up a Chhuri from a nearby butcher's shop and in order to save my life from the accused, I inflicted injury to deceased with Chhuri. Complainant and alleged eye-witnesses were not present at the spot. The incident was witnessed by many people, who were present there. They also appeared before the police and got recorded their statements but police in order to favour complainant party and in connivance with complainant did not bring statements of those witnesses on record, so that the alleged story of prosecution may not be rebutted. Complainant party is an influential party." The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. However, he produced Muhammad Siddique/D.W.1 in his defence. Learned counsel for the appellant states that both the witnesses were related to the deceased and were chance witnesses: that there was delay in lodging the F.I.R.; that it was an un-witnessed occurrence and none from the locality was produced to support the prosecution case; that the defence plea taken by the appellant was supported by D.W.1 and borne out from the circumstances of the case; and that the appellant merited acquittal, as he acted in self-defence. It was lastly argued that it was not a case of capital punishment.

8. Conversely, the learned counsel appearing on behalf of the State has submitted that the case against the appellant stands fully proved through the consistent ocular account furnished by both the eye-witnesses, whose presence at the spot was natural, supported by the medical evidence as well as the motive and the circumstances of the case; that no mitigating circumstance exists in favour of the appellant. He has supported by the impugned judgment.

9. We have heard the learned counsel for the, parties and have also gone through the record of the case.

10. Rana Abdul Hameed/P.W.1 and Rana Muhammad Akram/P.W.2 though relate to the deceased but they had no previous ill-will or enmity whatsoever to depose falsely against the appellant. Both of them have given trustworthy account of the occurrence and during cross-examination no dent could be caused in the veracity of their statements. Both the witnesses have also plausibly explained their presence at the spot. The complainant and the deceased had gone to meet their brother Tariq Mahmood who was working as cashier in Habib Bank Sambrial Road, Daska. On their return they met Rana Muzammal Khurshid, Advocate, and Rana Muhammad Akram; hence, they started talking with each other. The working of Tariq Mahmood in Habib Bank was never challenged, so going to meet their brother would not be unnatural at all. The presence of the witnesses is further proved from the fact that Nasir Mahmood was taken to Civil Hospital, Daska within forty five minutes of the occurrence, as is evident from the medico-legal report Exh.PF. The name of Rana Muzammal Khurshid, Advocate, has also been mentioned therein. It was mentioned in the F.I.R. that Rana Muzammal Khurshid, Advocate, and Rana Muhammad Akram had taken the injured to Civil Hospital, Daska. The narrative in the F.I.R. about the reference of Nasir Mahmood to Gujranwala Civil Hospital is corroborated by the statement of Dr. Mukhtar Ahinad/P.W.7, who had initially given necessary treatment to the deceased. It is also note-worthy that the post-mortem examination was conducted by Dr. Muhammad Asif Mughal/P.W.8 on the date of occurrence at 4-45 p.m. In these circumstances, it cannot be said that the matter was reported to the police after delay. The ocular account is fully supported by the medical evidence which was not challenged.

11. The motive as set down in the F.I.R. was proved through Rana Abdul Hatneed/complainant whose statement on oath was not challenged.

12. Now coming to defence plea. In the instant case, the appellant has taken specific plea of self-defence and produced D.W.1 who is his brother-in-law in support of his plea. According to defence plea, on the fateful day, the deceased along with unknown persons stopped him and fired at him with pistol in order to kill. He pulled trigger of his pistol but the fire missed. The deceased tried to reload the pistol but meanwhile, the appellant took up a Chhurifrom a nearby butcher's shop and in order to save his life he inflicted injury to the deceased. In his defence plea he has not given any reason as to why the deceased wanted to kill him. He has not mentioned the presence of D.W.1. Though the appellant opted not to appear as a witness under section 340(2), Cr.P.C. in support of his defence but produced Muhammad Siddique, who is his brother-in-law, as D.W.1. The statement of Muhammad Siddique is not worthy of any credence for various reasons: firstly, that his presence has not been mentioned by the appellant himself; secondly, that he gave a different account of the occurrence and made additions in his statement; and thirdly, that if he was present there, then he and the appellant would not have allowed the deceased to re-load the pistol. In these circumstances, the defence plea is not worthy of any credence and is rejected.

13. For what has been said above, we have concluded that the prosecution has successfully proved its case against the appellant beyond doubt through ocular account, which was fully supported by the medical evidence and corroborated by the circumstances of the case.

14. Having come to this conclusion, we have given our serious thought as to what would be proper sentence in the circumstances of the case. The appellant who was in his early twenties at the time of occurrence did not act in a cruel manner, as a single blow with Chhuri is attributed to him. It is not in evidence that he tried to repeat the blow. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we reduce the sentence to imprisonment for life. The benefit of section 382-B, Cr.P.C. is extended to the appellant. The order of the learned trial Court passed under section 544-A, Cr.P.C. is upheld with slight modification that in default or non-realisation of the amount, the appellant would suffer S.I. for six months.

15. With the above reduction in sentence, this appeal stands disposed of as partly allowed. The death sentence in not confirmed. The Murder reference is answered in the negative. H.B.T./M-510/L Appeal partly allowed.