2010 PLP 1720 (SCMR)

TARIQ PARVEZ KHAN, J.

Appellant Khadim Hussain has been awarded sentence of death under section 302, P.P.C. and to pay compensation amount of Rs. 50,000 to the legal heirs of the deceased Muhammad Shabbir and in default of payment of compensation to further undergo six months' S.I. He is accused of case F.I.R. No.157 dated 12-9-1995 registered at Police Station Sohawa, District Jhelum. He was indicated under the murder charge for causing death of Muhammad Shabbir by firing at him with .12 bore gun and for causing injuries to Mst. Khamsheeda Begum, Muhammad Anwar and Muhammad Idress. Appellant was charged along with his co-accused Muhammad Parvaiz, Muhammad Akhtar and Noor Hussain, however the later died before the conclusion of trial therefore, trial was abated against him.

2. Short facts of the case are as given by Muhammad Ashraf P.W.3, that on 12-9-1995 at 3-30 p.m. he had left his house to fetch cattles from the Rakh' back to the house when he saw four accused named above who stopped Muhammad Shabbir the deceased and asked him that as to why on the last night while bulldozing his own land he has caused damaged to the Banna' of the fields of the accused party. On this, there was exchange of abuses and grappling which attracted Mst. Khamsheeda Begum, Muhammad Anwar and Muhammad Idrees. It was stated that under the command of three co-accused, Khadim Hussain the appellant first fired at Muhammad Shabbir who was hit on his abdomen and also below abdomen and with the same shot injuries were caused to Mst. Khamsheeda Begum, third shot made by the appellant hit Muhammad Anwar on his face whereas fourth shot was directed towards Muhammad Idrees who tried to escape but this shot also landed on the body of Muhammad Anwar causing him more injuries and also caused injuries to Muhammad Idrees as well.

3. Learned trial Judge acquitted all the accused except the present appellant and awarded him sentence of death, he was awarded ten years R.I. with a fine of Rs.10,000 under section 324, P.P.C., further to ten years R.I. and Arsh amounted to Rs.25,400 for causing hurt to Muhammad Anwar. He was awarded five years' R.I and Arsh amount of Rs.12,700 for injury caused to Muhammad Idrees. He was directed to pay fine awarded two years R.I. under section 324, P.P.C. If he fails payment of fine all the sentences were directed to run concurrently with benefit of section 382-B, Cr.PC.

4. Trial Court judgment was assailed by filing appeal before the learned High Court which was partially allowed i.e. all sentences awarded to the appellant under sections 324, 337-A (ii), 337-A (iii), P.P.C. were set aside vide judgment dated 30-7-2003 and now this appeal in Jail Petition No. 301 of 2003 with leave of the Court vide order dated 24-1-2006. Leave to appeal has been granted vis-a-viz quantum of sentence only for safe administration of criminal justice.

5. We have heard learned counsel for the appellant, learned Deputy Prosecutor-General, Punjab, learned counsel for the complainant and have also perused the record with minute particular.

6. We asked learned counsel for the appellant to confine his submissions with regard to quantum of sentence. He argued that occurrence had taken place at spur of moment without any premeditation therefore, death sentence is harsh. He next argued that it has come in evidence that before firing the accused/appellant and the deceased have exchanged abuses followed by grappling therefore, on this score alone sentence of death was uncalled far. He has vehemently relied on the answer to question No.14 asked from the appellant when his statement under section 342, Cr.PC was recorded and stated that defence as set up by the appellant if accepted in totality then the appellant is entitled to acquittal and even if partially allowed it will take out of the case of the appellant from the ambit of section 302(a) to section 302 (c).

7. Learned counsel for the complainant Ms. Afshan Ghazanfar has argued that the appellant has behaved in a very abnormal manner who has taken the life of one innocent person for a petty matter and has caused fire-arm injuries to three injured persons namely Mst. Khamsheeda Begum, Muhammad Anwar and Muhammad Idrees. She argued that very fact that the appellant was possessed of gun even before there was some grappling, show that he has come to the spot predetermined to kill the deceased and did not stop at that but caused fire-arm injuries to three persons closely related to deceased who were attracted to the spot on hearing hue and cries. It is submitted that no case is made out towards mitigation of sentence.

8. On the other hand, learned Deputy Prosecutor-General, Punjab was confronted with the defence set up by accused/appellant in his statement under section 342, Cr.PC to which he replied that the same in un-supported by any evidence and is a belated plea and an afterthought. Because much reliance has been placed on the statement of accused. for seeking the benefit of reduction of sentence. His plea is reproduced as under: "Q.

14. Why this ease against you and why the P.Ws. have deposed against you. Answer. The fact of the matter is that on the day of occurrence, the cattle of Muhammad Shabbir deceased had damaged the bajra-crop belonging to me standing in the field of occurrence under my cultivation. My wife, while driving away the cattle from the field, abused the owner on which the deceased, his wife along with Muhammad Anwar and Muhammad Idris came there, they caught hold of my wife, dragged her by which her clothes were torn. The deceased Shabbir and his companion were to abduct my wife to their dhoke. Meanwhile, I reached home and on seeing the incident, requested the deceased and others to leave my wife, but they did not pay any heed after which I was provoked and to save my family honour and life of my wife, fired at them with my licence gun without having intention to kill any body. At that time, none of my co-accused was present there. They have falsely implicated me as accused in this case due to their relationship with me. The investigation was conducted dishonestly as the Investigating Officers were in league with the complainant-party, so they cooked up a false story of occurrence introducing a false motive for which, there is no evidence at all on the file. I am innocent. On the day of occurrence, I myself surrendered before the S.P, Jhelum along with my gun and told him the true facts about the occurrence, who handed over me to the DSP, CIA, Jhelum, who then handed me over to Muhammad Azam, SI, P.W. of this case on the same night".

8. Undoubtedly, there is no previous enmity between the parties except the dispute with regard to causing damage to the `Banna' of the fields of the appellant by the deceased. Even in the statement before the Court the appellant has not denied the occurrence nor denied his presence but he admits the occurrence and admits causing death of the deceased and also causing injuries to three injured persons. Question before us is that we have on one hand to see direct evidence of eye-witnesses comprising of Muhammad Ashraf, complainant and Mst. Khamsheeda Begum P.W.11. Mst. Khamsheeda Begum has sustained fire-arm injuries therefore, her presence is beyond challenged. Muhammad Ashraf P.W. has got relationship with the deceased but no enmity whatsoever against the appellant for a false charge. Evidence of the two eye-witnesses named above have been scrutinized in detailed by the learned trial Court and also by the learned High Court. We have also gone through their statements and do not find any noticeable contradiction what to say of extending benefit in sentence but towards the charge which they have successfully proved against the appellant. Second version of the case is given by accused/appellant by stating that on seeing his wife being dragged with her torn her clothes; he lost self-control and to save the life of his wife acted in his self-defence and committed the crime. There are certain suggestions made to the Investigating Officer Muhammad Azam P.W.12 that on his apprehension the appellant has taken this plea before the Police which was denied by him. Neither at the stage of surrender/arrest, nor when charge was framed the appellant has set up the plea of defence of his wife or provocation except at the, tail end of the trial. Again, to substantiate plea as set up, the accused/appellant has not produced his wife in defence who could have supported the story of the defence and was real victim which has allegedly provoked the appellant. Whereas a special defence plea is set up by an accused person then he is under the statutory obligation to prove his defence plea by some co-gent evidence which should be reasonable and prima facie acceptable. In order to prove defence plea, the accused person is provided legal opportunity to appear as his own witness under section 340(2), Cr.P.C. which opportunity has not been availed by the appellant. If there was some truth in defence plea accused should have opted to appear in defence.

9. The evidence of the prosecution has gone unchallenged when they have charged single accused for making firing and not others. The accused/ appellant has acted in a brutal manner who fired two fire shots at the deceased and did not stop and thereafter continued firing which resulted into Injuries to Mst. Khamsheeda Begum, Muhammad Anwar and Muhammad Idrees P.Ws. The manner stated above and the fact that he has come to the spot duly armed and with the motive regarding damage caused to the `Banns' which was done a night prior to the occurrence would demonstrate the intention on the part of the appellant that he had come to the spot fully prepared, with predetermination for committing the offence of Qatl-e-Amd, therefore we do not find mitigating circumstance in this case of which benefit in sentence could be given to the appellant. Keeping in view of all circumstances of the case, we see no force in the appeal land the same is dismissed. N.H.Q. /K-12/SC Appeal dismissed.