P L D 2006 Supreme Court 295 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This jail petition has been directed against the judgment dated 27-9-2004 passed by a Division Bench of Lahore High Court, in a joint criminal appeal preferred by the petitioner and his co-accused Abdul Sattar against their conviction and sentence awarded to them by the trial Court. The petitioner was awarded sentence of death under section 302(b), P.P.C. for the charge of committing the murder of Muhammad Yasin, with the direction to pay Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment of compensation he was directed to undergo Si, for 2 years. Abdul Sattar, the co-accused of the petitioner was acquitted from the charge of murder but was sentenced under section 324 read with section 337-F(i), (iii) and (v), P.P.C. for causing injuries to Shaukat Ali, complainant and the different sentences awarded to him were directed to run concurrently with benefit of section 382-B, Cr.P.C. The murder reference sent by the trial Court was answered in the affirmative and criminal appeal of the accused as well as the criminal revision filed by the complainant against the acquittal of Abdul Sattar under section 302(b), P.P.C. and for enhancement of his sentence for the remaining offences was dismissed.

2. The occurrence in the present case had taken place at about 7 a. m. on 10-4-1996 when Liaquat Ali, (complainant) and his brother Shaukat Ali (P.W.), along with Muhammad Younas deceased, their brother, were proceeding towards their residential house from their cattle shed and when reached at a short distance from their dera. Riasat Ali petitioner, armed with gun and Abdul Sattar, his co-accused, armed with Sota, suddenly attacked on them raising Lalkara to teach them lesson for filing a pre-emption suit against Rehmat Ullah. The petitioner fired successive shots as a result of which deceased was hit and he succumbed to the injuries at the spot. Shaukat Ali (P.W.) made an attempt to run away from the spot but he was also fired at by the petitioner and was hit on the right arm. Abdul Sattar his co-accused, inflicted him blows with Sota on different parts of his body. The motive behind the occurrence as stated, was that one Ghulam Sarwar sold land measuring 2 acres to one Rehmat Ullah Arain against which a suit for pre-emption was filed by Muhammad Yasin deceased and pending adjudication of the suit, Rehmat Ullah handed over the possession of land to Riasat Ali etc. for cultivation. The accused party was putting pressure on the deceased for withdrawal of the suit and this tussle between the parties ultimately led to the fateful occurrence.

3. The prosecution mainly relied upon the ocular account furnished by Liaquat Ali (P.W.8), complainant of the case and Shaukat Ali (P.W.9) an injured witness, the medical evidence and the motive for the occurrence. The accused in his statement under section 342, Cr.P.C. pleaded as under:-- "The case is false and fabricated. The P.Ws. are interested related inter se and are inimical towards us. Liaquat complainant and Sarwar P.Ws. were not present at the spot nor they witnessed the occurrence. I and my brother Abdul Sattar co-accused were cultivating the land of Rehmat Ullah and Muhammad Ashraf co-accused. Yaseen deceased had filed a pre-emption suit against Rehmat Ullah as Rehmat Ullah had purchased the said land from Muhammad Sarwar P.W. The deceased and Shaukat Ali P.W. wanted that we should vacate the land and also should not water the same, so that Rehmat Ullah etc. may surrender in favour of deceased. We did not agree with the inimical towards and bore grudge against us. They had threatened us many times to teach lesson for not vacating the land. Due to this grudge and enmity while armed deceased Shaukat Ali P.W. trespassed into our house early in the morning and made firing upon me. I hided myself in a room. My co-accused Abdul Sattar was not present there, I requested deceased and Shaukat Ali P.W. to vacate my house but they started abusing and threatened me with dire consequence by firing upon me. I was luckily saved. Finding no way out and of inmates of my house I in self-defence made single fire on the deceased and Shaukat Ali P.W. and then they went away. Later on Yaseen died. Abdul Sattar my co-accused was not present in the house nor he had taken part in the occurrence. He has been involved falsely being my brother and also tenant. Myself appeared before the Investigation Officer and pleaded my innocence. I also narrated the actual story to him and had also produced my gun and, its licence but he after preliminary investigating spot inspection cooked up a false story in connivance with (sic) were not present at the time of occurrence. The Investigation Officer took my house, where occurrence took place but later on in order to instead of aggressed showed these recoveries from outside my house in connivance with the complainant. He wrongly showed the place of occurrence outside of my house. He investigated the case one sidely and did not bring my detailed defence/version on the file. Many respectables and persons of the locality appeared from outside. I requested the Investigation Officer to register the case against the deceased and Shaukat Ali P.W. for committing house trespass and firing upon me but due to the pressure of the complainant party he ignored my request. I also gave application to the higher officers but in vain as there was nobody to peruse our case. I am innocent. I have committed no offence."

4. Learned counsel for the petitioner has contended that prosecution taking benefit of the injuries sustained by the deceased and Shaukat Ali (P.W.9) introduced the story of the aggression of the accused party whereas factually the deceased and Shaukat Ali were aggressor and petitioner in exercise of his right of self-defence, fired a single shot as a result of which the deceased as well as Shaukat Ali, sustained injuries and Muhammad Yasin succumbed to the injuries. The learned counsel contended that except Shaukat Ali (P.W.) none else was present at the scene of occurrence and in view of the circumstances leading to the occurrence, it could be visualized that occurrence did not take place in the manner as stated by the prosecution. In the light of the motive of dispute of land, set up by the prosecution, the complainant party being interested in the possession of land having nursed grudge against the accused, committed aggression upon them and in the given facts the defence version appearing more plausible was near to the truth and was confidence inspiring. In nutshell, learned counsel argued that in the circumstances the case would strongly suggest that it being a sudden occurrence, the case would squarely fall within the ambit of section 302(c), P.P.C. for the purpose of punishment and the conviction and sentence awarded to him under section 302(b), P.P.C. was not legal. In the alternate, learned counsel argued that since the possibility of suppression of material facts by the prosecution is not ruled out, therefore, the extreme penalty of death in such a case is not justified and the sentence of life imprisonment would sufficiently meet the ends of justice.

5. The occurrence was admitted by the petitioner by taking the plea of self-defence but perusal of record would show that the defence version was not substantiated by any evidence, direct or circumstantial, and consequently, the concurrent finding of two Courts regarding the guilt of petitioner would not call for interference either on merits or on the question of sentence.

6. The parties are closely related inter se and their residential houses were situated at a close distance from the cattle-shed of the complainant party, therefore, the presence of the witness with the deceased at the time of occurrence was quite natural. However, in the light of the admission of petitioner, the sole question for determination would be as to whether the deceased and Shaukat Ali were the victim of aggression or they were aggressors and the accused in exercise of right of their self-defence while resisting their aggression, caused injuries to them. The prosecution case is that the place of occurrence was in the field at some distance from the residential houses of the parties whereas according to the defence, the incident happened in the courtyard of their house. The Investigating Officer recovered blood-stained earth from a place at a reasonable distance from the house of accused and according to the site plan, occurrence took place at the same place. The defence has not produced any evidence to the contrary to suggest that occurrence did not take place in the manner as claimed by the prosecution.

7. The learned counsel has, not been able to show us from the record that the defence version was directly or indirectly supported by the prosecution evidence or the attending circumstances. The eye-witnesses were most natural witnesses and Shaukat Ali (P.W.9) also sustained injuries in the occurrence at the hand of petitioner. The circumstance leading to the occurrence would not suggest that the complainant party was aggressor accused acted in exercise of their right of private defence. The evidence is that petitioner fired two successive shots at the deceased and Shaukat Ali, who were proceeding to their houses unarmed and if the defence version is put in juxtaposition with the prosecution case, there would not be a remote possibility of its correctness. The deceased, as per medical evidence, sustained four fire-arm injuries on the most sensitive part of the body and these injuries would evidently suggest that the shots were fired with the intentions to kill and not to save himself from the aggression of empty handed opponents. In the light of circumstances under which the occurrence had taken place, the occurrence was certainly a pre-planned and premeditated and case against the petitioner would not fall within the ambit of section 302(c), P.P.C. for the purpose of punishment.

8. For the reasons given above we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused. N.H.Q./R-4/S????????????????????????????????????????????????????????????????????????? Leave to appeal refused.