2005 PLP 2788 (YLR)

This judgment will dispose of Crl. A. No.962 of 2002 and Crl. R. 434 of 2002 as both arise out of same F.I.R. and involve common question of law and facts.

2. Through Crl. A. 962 of 2002 the appellant has called in question the judgment, dated 11-11-2002 passed by learned Additional Sessions Judge, Sahiwal in case F.I.R. No.285 registered under sections 302/109/34, P.P.C. at Police Station Saddar, Chichawanti whereby the appellant stand convicted under section 302(b), P.P.C. and sentenced to life imprisonment with benefit of section 382-B, Cr. P. C. Through Crl. R. No.962 of 2002, the complainant Muhammad Irshad has sought enhancement of the sentence awarded to the aforementioned accused-appellant.

3. The prosecution story in nutshell is that about 1-1/2 years back at about 9-30 p.m. the complainant Muhammad Irshad, Muhammad Shahid, Qamar Zaman P.Ws and Muhammad Afzal deceased were present in front of Bethak belonging to the complainant where Azhar Yousaf the appellant and Mazhar Yousaf the acquitted co-accused came on motorcycle. The appellant was armed with dagger whereas his co-accused Mazhar Yousaf was armed with pistol, they stopped their motorcycle in start condition, Mazhar caught hold of the son of complainant, Muhammad Afzal deceased whereupon the appellant gave dagger below hitting on his left side of chest. Thereafter the appellant and his co-accused fled away on their motorcycle along with their respective weapons. The injured Muhammad Afzal was taken to hospital but on the way succumbed to his injuries.

4. The motive as set up by the prosecution was that the agriculture lands of both the parties are adjacent. The appellant and his brother Mazhar Yousaf acquitted co-accused used to cut the joint boundary of the field (Banna), which resulted into a dispute. The matter was referred to the Punchayat which was concerned by one Ch. Ehasan-ul-Haq and in the Punchayat the appellant give a slap to Muhammad Sahahid P.W. and hot words were exchanged between the parties and due to this grudge the appellant had committed the murder of Muhammad Afzal deceased son of complainant.

5. After due investigation, challan was submitted against the appellant and his brother, the acquitted co-accused.

6. Formal charge under sections 302/109/34, P.P.C. was framed against the accused person to which the accused pleaded not guilty and claimed to be tried.

7. The prosecution in order to prove its case got recorded the statement of as many as a witnesses, Haji Yar Muhammad Dogar, D.S.P./S.D.P.O. appeared as C.W.2. The prosecution gave up, Qamar Zaman, Muhammad Ashraf, Dr. Zameer Ahmad M.O., Akhar Ali, Muhammad Akram constables and Yar Muhammad Dogar, D.S.P. Chickhawatni as being unnecessary. Ghulam Mustafa S.-I. who recorded the F.I.R. Exh. PC/1 on the statement of the complainant died before the commencement of trial.

8. Muhammad Mansha H.C. appeared as P.W.7 and explained that he had identified the handwriting and signature of Ghulam Mustafa S.A. on F.I.R. Exh.PC/1, rough site-plan Exh.P3/A of place of occurrence, scale site-plan Exh. PK as vide memo. of blood-stained earth, injured statement Exh. PE, inquest report Exh.PF and recovery of last-worn clothes Exh.PA are in the handwriting of Ghulam Mustafa S.-I. and were signed by him.

9. P.W. Faruukh Nisar Lashari arrested the appellant and his co-accused and on 11-9-2000 the appellant while in custody got recovered Khanjar blood-stained P4 which was taken into possession vide memo. Exh.PG. Also got took into possession the Motorcycle No.8353-OKA vide recovery memo. Exh.PJ and recorded the statement of P.Ws. and challaned the accused.

10. P.W.1 Munir Ahmad Constable delivered the sealed parcel of blood-stained earth to the Office of Chemical Examiner Lahore intact on 28-8-2000.

11. P.W.2 Ali Ahmad, Constable took the dead-body of Muhammad Afzal to T.H.Q., Chichawatni Hospital for post-mortem examination and took into possession the last-worn clothes of the deceased vide memo. Exh.P.A.

12. P.W.5 Dr. Tanweer-ul-Haq C.M.O. T.H.Q., Hospital Chichawanti conducted the post-mortem examination on the body of the deceased Muhammad Afzal on 7-8-2000 at about 8-00 a.m. and found the following injuries on the person of the deceased. "A stab wound 3 c.m. x 1 c.m. into going deep on left side of chest just inner the blow of left nipple."

13. Left lung lower lobe was pierced, aorta was ruptured and in opinion of the, doctor the death in this case was shock and haemorrhage due to injury caused by Injury No.1 and injury was ante-mortem and was sufficient to cause death in ordinary course of nature. The duration between the injury and death was immediate and between death and post-mortem was within 11 hours.

14. P.W.6 Ehsan-ul-Haq is a witness of recovery in whose presence the appellant while in police custody got recovered Khanjar P4 from the Bethak of his house which was lying in the Roshandan of the Bethak which was taken into possession vide memo. Exh. PG.

15. P.W.7 Muhammad Mansha H.C. handed over the sealed parcel containing blood-stained earth and containing Khanjar P4 for onward transmission to the Office of the Chemical Examiner.

16. P.W.8 Muhammad Shahid is son of complainant Muhammad Irshad while appearing in the witness-box reiterated the statement of complainant.

17. C.W.1 Dr. Zubair Tariq C.M.O T.H.Q., hospital had appeared before the Court who deposed that on 8-8-2000, Ghulam Mustafa S.-I. produced before him the appellant for medical examination and he found the following injuries on this person:. (i) A lacerated wound (Infected) 3 c.m. x 1 c.m. into bone not exposed on the right side of forehead 2 c.m. above the right eyebrow. (ii) A lacerated (infected) 1.5 c.m. x 1 c.m. into skin deep on the right side of lower lip. (iii) A lacerated (infected) wound 1 c.m. into skin deep on the right inner aspect of lower lip. (iv) Abrasion 3 c.m. x 1.5 c.m. on the front and mid of left leg. Injuries Nos. 1 to 3 were declared as Shajja-e-Khafifa and Injury No.4 was declared under section 337F(i) Ghair Jafai Damia. The injuries were caused with blunt weapon. Duration between injuries and MLR was 36 to 48 hours. Further deposed that he conducted the medical examination on the order of the Magistrate Chichawatni. The prosecution tendered in evidence report . of Serologist Exh.PL and Exh.PM regarding blunt stained dagger and blunt stained earth and report of Chemical Examiner Exh. PN relating the dagger and Exh.P.O. related to the blunt stained earth closed the prosecution evidence.

18. Thereafter statement of the accused was recorded under section 342 and in reply to a question that "why this case against you and why the P.Ws. have deposed against you"? He replied as under: "It is a false case against me. P.Ws have made false statement clue to their relationship with the deceased as well as enmity against me. The P.Ws. of this case were not present at the spot at the time of occurrence. Actually I was coming from the house of Boota Mistary while riding on Motorcycle towards Ahata No.47 which is owned by my father and when I reached in front of Ahata No.47 after informing Boota Mistary that we wanted to start construction on Ahata No. 47 on 7-8-2000, all of sudden Muhammad Afzal deceased who was armed with a Sota along with two other unknown persons who were also armed with Sotas stopped me and Muhammad Afzal deceased inflicted me injuries on my head, on my both lips as a result of which my one tooth was broken due to the injuries on my lips and injury on my left leg. The complainant party (deceased) wanted to murder me, I in order to safe my life in my self-defence gave a single blow with the pen knife which was attached with the key ring of my motorcycle to Muhammad Afzal deceased. No P.W. was present at the spot at the time of occurrence. The complainant party suppressed my injuries as being aggressor. I approached the police for my medical examination but the police refused to get me medically examined. During the investigation of this case, the complainant party was found aggressor. My co-accused Mazhar Yousaf was not present with me at the time of occurrence. I am innocent." After recording of evidence learned trial Court believing the ocular account and recover evidence and keeping the defence version in juxtaposition to the prosecution version, concluded that the appellant had exceeded his right of self-defence by use of a dagger instead of pen knife, which had resulted in death of the deceased thereby convicted the appellant under section 302(b), P.P.C. and sentenced him to life imprisonment vide impugned judgment, dated 11-11-2002.

19. Learned counsel appearing on behalf of the appellant contends that it was not a pre-planned murder but was result of sudden flare up where the appellant had inflicted solitary blow, which had resulted into death of Muhammad Afzal deceased. Further submits that the alleged recovery of Khanjar had expressly been denied by the appellant as the same has been planted on him. Further submits that size of alleged recovered Khanjar does not correspond with the dimension of injuries as stated by the doctor on the person of the deceased. Further submits that injuries on the person of the appellant has been suppressed by the prosecution whereby magnifying the injuries on the complainant side and minimize the appellant case. Further submits that once the trial Court rejects the prosecution evidence then the case of the appellant as put forward under section 342, Cr.P.C. should have been accepted in totality. Further submits that there was no previous enmity between the parties and the appellant has injured the deceased in exercise of self-defence, therefore, case against the appellant does not fall within the provisions of section 302(b), P.P.C. but falls under section 302(c), P.P.C. as the incident had taken place due to sudden flare up without premeditation and the appellant did not repeat his blow, attracting the lesser punishment and in support of his argument the learned counsel had failed upon 1992 SCMR 207, 1971 SCMR 478, 1991 SCMR 61 and PLD 1991 SC 520.

20. Conversely learned counsel for the State has strongly opposed the plea raised by the learned counsel for the appellant and . contends that the occurrence was not result of sudden flare up or it was a pre-planned and pre-mediated attack by the appellant, while armed with lethal weapon like Khanjar and had inflicted a blow on the most vital part of the body of the deceased. Further submits that the evidence reveals that by putting the case of the appellant in juxtaposition to that of prosecution case of self-defence is not made out keeping in view the weapon used, nature of injury caused, locale of injury and the intensity with which the blow was inflicted on the chest of the deceased whereas the appellant had suffered only simple injuries, therefore, learned trial Court had rightly convicted the appellant under section 302(b), P.P.C. and sentenced him to life imprisonment and it is note a case for lesser punishment as has been argued by the learned counsel for the appellant.

21. I have heard the learned counsel for the parties and perused the evidence on record with the help of learned counsel carefully and gone through the judgment cited at the bar. Scrutiny of the evidence on record shows that prosecution story as set up in the F.I.R. had been proved by P.W.4 Muhammad Irshad complainant and P.W.8 Muhammad Shahid who is son of the complainant which has been corroborated by the recovery of dagger through recovery memo. Exh.PG which had further been proved by the statement of Ehsan-ul-Haq P.W.6. The motive, as had been set up in the F.I.R. pertains to dispute about Banna of adjacent land of the parties, regarding which Punchayat was convened by Ehsan ul-Haq P.W. 6 prior of the occurrence, in which the appellant had given a slap to Muhammad Shahid P.W.8 which has been explained and elaborated during the trial by the P.W.8 complainant and P.W.8 Muhammad Shahid son of the complainant. On the other hand the appellant while making statement under section 342, Cr.P.C. had stated that he inflicted single blow of penknife without repetition in his self-defence after having been injured by Sota blow at the hands of Muhammad Afzal deceased and two others. By putting the prosecution version and that of defence version in juxtaposition, one has to see, which one is more plausible and reasonable in the circumstances of this case and which party had made dishonest improvement or suppressed the facts and failed to speak the truth. Taking the motive point first prosecution had set up motive in the F.I.R. as dispute about Banna of joint land between the parties and during Punchayat convened by Ehsan-ul-Haq P.W.6 prior to the occurrence, appellant had slapped Muhammad Shahid P.W.8 whereas there is no mention of slap given by Muhammad Afzal deceased to the appellant during Punchayat proceeding and there is only mention of one slap given by the appellant to Muhammad Shahad P.W.8. Second slap alleged to have been given by Muhammad Afzal deceased to appellant as had been deposed by the P.W.4 the complainant and P.W.8 Muhammad Shahid as well as in the affidavit sworn by Ehsan-ul-Haq P.W.6 produced as Exh.DA stand unproved on record and amounts to dishonest improvement during the trial by the alleged eye-witness namely Muhammad Shahid P.W.8 and Muhammad Irshad complainant P.W.4 as well as Ehsan-ul-Haq P.W.6 where they have invented the second slap by the deceased to the appellant in order to establish the alleged motive on the part of the appellant to attack the deceased which could not have been established in presence of one slap mentioned in the F.I.R. It has further beer. noticed that first version recorded by the appellant before the I.O. which was incorporated in his application produced in original as Exh. P. D. contained the plea of self-defence which is dated 8-8-2000 within two days of the death of the deceased Muhammad Afzal. It has further been noticed that prosecution during trial has tried to explain the injuries on the person of the appellant that he fell down by hitting a shade of nearby house whereas Dr. Tariq Zubair while appearing as C.W. had deposed that the injuries on the person of appellant could not have been result of hitting by the shade and also said that injuries would not have been caused by falling from the motorcycle. The complainant has admitted that the appellant had suffered injuries during the occurrence but has failed to mention the same in F.I.R. as well as during trial. Keeping in view the statement made by the prosecution witnesses as well as defence version learned trial Court has rightly came to the conclusion that the defence version was more plausible and proved on the record than the prosecution version. In view of what has been discussed above I am of the opinion that defence has come forward with more plausible explanation of the incident wherein the appellant had admitted that he had given solitary knife blow to the deceased in his self-defence when he was attached by the deceased along with his two companions with Sotas. This fact has been proved on the record by deposition. of C.W. 1 Dr. Zubair Tariq who had examined the appellant and found 3 injuries on his person. The appellant was produced by the police before Dr. Zubair Tariq by the order of the learned Magistrate whereas the story put forward by. the prosecution that appellant came along with his brother on a motorcycle to the house of the complainant where the complainant along with his son and friends was sitting in front of their Bethak and caused fatal injuries to the deceased coupled with the fact stated before the learned trial Court that after the attack the appellant hit a shade of nearby house and fell down from motorcycle is not confidence-inspiring. The appellant could not have dared to attack the deceased in presence of number of persons near their house. Secondly the motive as set up in the F.I.R. would certainly not have given any cause to launch such an attack on Muhammad Afzal deceased. It is a settled principle of law that when there are two versions of same incident then one which is favourable to the accused should be preferred. Herein this case the appellant had admitted that he had inflicted knife below to the deceased in his self-defence but whether the infliction of knife blow was proportionate to the injuries caused to the appellant. By going through the post-mortem report, it seems that he had exceeded his right of private defence by stabbing in the chest most vital part of the body resulting in the death of the deceased. The statement of an accused recorded under section 342, Cr.P.C. may be taken into consideration but the Court cannot select out of the statement the passage, which goes against the accused. Such statement must be accepted or rejected as a whole. In the present case, the accused in his statement under section 342, Cr.P.C. had given his version of the incident and stated that he had caused injury by means of sharp-edged weapon in exercise of his right of private defence. There was no other circumstances, direct or indirect, connecting the accused with the commission of the offence. As such, the exculpatory part of the statement of the accused could not be excluded. Learned trial Court while holding that the appellant had exceeded his right of self-defence had convicted the appellant under section 302(b), P.P.C. and sentenced him to life imprisonment. By going through the record minutely I find that it was not a pre-planned occurrence on the part of the appellant whereas according to the motive set up in the F.I.R. the deceased was aggrieved person who In order to take revenge had attacked along with his companion and injured the appellant and in defence the appellant had caused a solitary below to the deceased which proved fatal. In this case during a sudden flare up without pre-meditation, a solitary injury had been caused by the appellant, the case would not fall within the provisions of section 302(b) attracting the sentence of death or life imprisonment. In my view case falls within the ambit of section 302, Part C deserving lesser imprisonment. Accordingly while convicting under section 302(c), P.P.C. the appellant is sentenced to 7 years R.I. benefit of section 382-B, Cr.P.C. is also extended to him. With this modification in the conviction and sentence Crl. A. No. 962 of 2002 is disposed of. Criminal Revision 434 of 2002 filed by the complainant for the reason mentioned above is dismissed. H.B.T./A-512/L Order accordingly.