2006 PLP 1892 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No. 324 of 2000 filed by Muhammad Tufail, Naheed and Muhammad Amjad, who were convicted and sentenced by the learned Additional Sessions Judge, Okara, vide his judgment, dated 27-3-2000 as under:-- (i) Muhammad Amjad Death with compensation of Rs.1,00,000 or in default three years R.I. under section 302(b), P.P.C. (ii) Naheed and Muhammad Tufail One year's R.I. each with Daman amounting to Rs.5,000 each under section 337-F(i), P.P.C. Murder Reference No.224 of 2000 for confirmation or otherwise of death sentence inflicted upon Muhammad Amjad appellant and Criminal Revision No.242 of 2000 seeking enhancement in the amount of compensation to the extent of Muhammad Amjad and enhancement of sentence to the extent of Naheed and Muhammad Tufail shall also be disposed of through this single judgment. It is pertinent to note here that according to learned counsel for the parties, Naheed and Muhammad Tufail have been released from Jail after serving out their sentences. Thus, this appeal to their extent has become infructuous and disposed of as such.

2. Brief facts of the case as narrated in F.I.R. Exh. P.G. are that on 15-8-1998 at about 5-30 a.m. the complainant along with Muhammad Iqbal deceased, Mushtaq Ahmad (injured P.W.) were going to their Chak from their land. Muhammad Iqbal deceased was on cycle in front of P.Ws when they reached near the `Dahri' of Alamgir, Naheed and Tufail accused armed with Dandas came there and asked Muhammad Iqbal to stop. Both the accused called their co-accused and raised Lalkara that Muhammad Iqbal and Mushtaq Ahmad should not let go alive. In the meanwhile, Amjad Ali accused armed with .12 bore double barrel Gun, Zahid accused armed with pistol, Muhammad Yar accused armed with .12 bore gun and Muhammad Tufail armed with pistol, come there. Muhammad Tufail gave Sota blow which hit Mushtaq Ahmad on the back of left palm. Amjad fired with his gun which hit Muhammad Iqbal deceased on the back of his head who fell on the ground. Naheed accused gave Sota blow which hit Mushtaq on right wrist. Muhammad Yar accused kept on raising lalkara. Their hue and cry attracted Ahmad Ali and Mazhar Iqbal (P.Ws.), who rescued injured from the assailants. On the way to Hospital Muhammad Iqbal succumbed to the injuries. The motive behind the occurrence was that 2/3 months prior to the present occurrence `Bhanja' of complainant Javed Akhtar had quarrelled with Naheed and Muhammad Tufail accused. Javed Akhtar had sustained injuries for which Muhammad Iqbal deceased had admonished Naheed accused etc. For the said grudge the accused with their common intention committed the offence.

3. After registration of formal F.I.R. , the investigation of the case was taken over by Haji Qasim Ali, S.I./P.W.6. He proceeded towards the place of occurrence and near Chowk Malghada he took over the dead body, prepared injury statement Exh. P.H. and inquest report Exh.P.J. He took into possession blood-stained earth from the spot vide memo. Exh.P.B. On 21-9-1998 he arrested all the accused persons. While in custody, Amjad led to the recovery of. Gun P-8, which was taken into possession vide memo. Exh.P.A. Muhammad Zahid got recovered Sota P-1, which was taken into possession vide memo. Exh. P.B. Sota P-2 was recovered at the instance of Muhammad Tufail, which was taken into possession vide memo. Exh. P.C. Naheed led to the recovery of Sota P-3, which was secured vide memo. Exh. P.D. All the recoveries were effected on the same day i.e. 21-9-1998. After completion of investigation, the accused were sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh. and that of Forensic Science Laboratory Exh. P.U. closed its case. The appellant in his statement recorded under section 342, Cr.P.C. has taken the plea of self-defence. He did not appear as witness under section 340(2), Cr.P.C. However, he relied upon the statement of Dr. Arshad Igbal, who appeared as D.W.1. After conclusion of trial the appellant was convicted and sentenced as stated above.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that prosecution case rests upon the statements of Mushtaq Ahmad and Mazhar Iqbal P. Ws. who both are brothers and were hostile to the appellant; that mere being injured would not term Mushtaq Ahmad into a truthful witness; that in fact the complainant party was aggressor; that the appellant acted in self-defence in order to save his life; that it was not a case of capital punishment as the Investigating Officer has admitted that a quarrel took place between the younger relatives of the two sides prior to the occurrence as well as on the fateful day; the Investigating Officer also admitted that a quarrel took place between Iqbal (deceased), Mushtaq Ahmad and Amjad appellant near his Dahri; that the roles attributed to Naheed and Muhammad Tufail were not proved during investigation; that it is a case of single fire; and that the appellant himself had received injury during the occurrence, which was suppressed.

6. The learned counsel appearing on behalf of the State has submitted that the plea of self-defence taken by the appellant was an afterthought; that presence of Mushtaq Ahmad has not been denied, whose statement is fully corroborated by the factum of prompt F.I.R. as well as medical evidence; that the acquittal of Muhammad Yar and Muhammad Zahid, co-accused, would not benefit the appellant in any manner, as the learned trial Court had acted on the principle of sifting of grain from chaff; that the appellant did not produce any witness in support of his plea of self-defence rather he opted not to appear in his own defence; that the belated medico-legal report, relied upon by the appellant, was not a worth piece of paper, as it did not lead as to who caused the injuries, neither it reveals that the injuries were received by the appellant during occurrence; that no mitigating circumstances existed in favour of the appellant; and that he supports the judgment of the learned trial Court.

7. The learned counsel for the complainant, while adopting the line of arguments advanced by the learned counsel for the State, has submitted that no mitigating circumstances exists in favour of the appellant. However, he has not pressed his revision against Naheed and Muhammad Tufail, as life imprisonment could not be inflicted upon them under section 377-F(i), P.P.C.

8. We have heard the learned counsel for the parties at great length and scanned the entire record of the case carefully.

9. Abdul Sattar, first informant, father of the deceased died before his statement could be recorded by the learned trial Court, Mushtaq Ahmad P. W.1 and his brother Mazhar Iqbal, P.W.2, who were related to the deceased, were produced during trial as eye-witnesses. Out of the two Mushtaq Ahmad had received two simple injuries, one on the back of hand and the other on the wrist, during occurrence. Even otherwise his presence was admitted by Muhammad Amjad appellant, who took a specific plea of self-defence, while his statement was recorded under section 342, Cr.P.C. The same is being reproduced hereunder:-- "I am innocent. Real facts were suppressed by the prosecution and false version was cooked up and during investigation the prosecution version was found to be false. In fact on the day of occurrence I was murderously assaulted at by Muhammad Iqbal and Mushtaq Ahmad P.W. Muhammad Iqbal was armed with gun and Mushtaq was armed with Sota. The fire done by Muhammad Iqbal did not hit but I received injuries by the Sota given by Mushtaq; apprehending death or grievous hurt, I acted in self-defence and caused butt blow to Mushtaq P.W. with my licensed gun and acted in self-defence against Muhammad Iqbal also while firing towards him, as he was going to fire second shot at me. None else from the alleged accused persons was present at the spot. None was present from complainant side except Iqbal and Mushtaq." It is settled law that where specific plea is taken by the appellant, the same is put in juxtaposition with the prosecution version to find out which of the two was true or nearer to the truth.

10. According to prosecution case, on the fateful day Muhammad Iqbal son of the complainant was going ahead to the complainant and Mushtaq Ahmad on cycle. Naheed and Tufail, who were armed with Sota, stopped Muhammad Iqbal and raised lalkara that Iqbal and Mushtaq should not be spared. Meanwhile, Amjad armed with .12-bore Gun, Zahid armed with Pistol and Muhammad Yar alias Mumma armed with gun, reached there. Tufail caused injury on the back of left hand of Mushtaq with Sota, while Amjad fired at Muhammad Iqbal, which hit on the back of head. Iqbal fell down. Naheed gave a Sota blow on the right wrist of Mushtaq. The alarm raised by the complainant party attracted Ahmad Ali and Mazhar Iqbal P.Ws. on the spot, who also witnessed the occurrence. The motive behind the occurrence was that 2/3 months .prior to this incident Javed Akhtar maternal nephew of the complainant quarrelled with Naheed and Muhammad Tufail, who gave beating to Javed Akhtar. For that reason Muhammad Iqbal admonished Naheed and others, which caused grievance to the accused and led to the instant occurrence.

11. Time of occurrence, place of occurrence and presence of Mushtaq Ahmad have not been denied. Similarly c causing of fatal injury to Muhammad Iqbal has also been admitted. However, Haji Qasim Ali, S.-I./P.W.13, who had investigated the case, admitted that the complainant party neither owned any land nor had any Dhari near the place of occurrence and that Dhari of Amjad appellant, where he lived as well, was at the distance of 57 karams from the spot. Mazhar Iqbal P.W.2 also stated that his house was at a distance of 5/6 Acres from the place of occurrence. It is also in evidence that Mushtaq Ahmad P.W. had gone to check the 'Watts' of his land, as there was rain on the fateful day but he conceded that he had gone to his land without any 'Kassi'. According to him, when he was walking with Abdul Sattar, first informant, Muhammad Iqbal was not in front of them and that he was accompanying Abdul Sattar rather Muhammad Iqbal had crossed them on his cycle, while they were walking. He was duly confronted with his statement recorded under section 161, Cr.P.C. for improvements. But the fact remains that cycle was never recovered from the spot and was not shown in the site plan Exh. P.K. The presence of cycle was also not mentioned in Column No.23 of the inquest report Exh.P.J., wherein articles lying around the dead body are to be mentioned.

12. Statement of Mushtaq Ahmad P.W. was not recorded at the spot on the date of occurrence rather it was recorded on 16-8-1998, which means that when the police reached the spot Mushtaq Ahmad was not there. He was medically examined by Dr. Muhammad Siddiq/P.W.7 on 15-8-1998. According to medico legal report Exh.P.N. the doctor observed two injuries of the person of Mushtaq Ahmad, one on the left hand and the other was on the distal part of ulnal border of right forearm, which were caused by a blunt weapon and did not result into any fracture. Perusal of Exh.P.N. reveals that Mushtaq Ahmad appeared before the Doctor on his own and was not accompanied either by any police official or by any relative. He had not received any serious injury. It remains in mystery as to why he did not wait at the spot till arrival of the Investigating Officer, who would send him for medical examination after recording his statement.

13. Undeniably, according to F.I.R. Amjad appellant was not present when Javed Akhtar was beaten by Naheed and Tufail, and Muhammad Iqbal deceased only admonished Naheed and Tufail. It is not the prosecution's case that Muhammad Iqbal had also gone to Amjad to complain. In that case, in the above noted circumstances, it was not likely that Amjad would be more aggressor than Naheed and Tufail, and fired at the deceased. To find out truth we have closely scanned the statement of the Investigating Officer, who stated that during investigation it came to his knowledge that prior to occurrence younger relatives of both the parties quarrelled with each other few days prior to this occurrence. He also stated that on the fateful day Amjad appellant had quarrelled with Mushtaq Ahmad P.W. and Muhammad Iqbal deceased near his Dhari and the allegation of stopping the deceased by Naheed and Tufail was not proved. It may be noted here that Naheed and Tufail were acquitted of the charge of murder but no appeal against their acquittal was filed. The upshot of the whole discussion is that the prosecution has not come out with whole truth and has suppressed certain important aspects of the case.

14. Now we come to the defence plea of Muhammad Amjad appellant. It has been noticed by us that Muhammad Amjad neither appeared as witness to support his defence plea nor he produced any defence witness. However, he relied upon the E statement of Dr. Arshad Iqbal/D.W.1, who stated that on 14-9-1998 (after about one month of the occurrence and five days before his arrest) he examined Muhammad Amjad and observed the following injuries on his person:

(1) Healed abrasion (white in colour) 7 x 3/4 c.m. on outer and upper part of right forearm. (2) Deformed left middle finger. (3) Complain of pain on outer and upper part of right leg. (4) Complain of pain on right ankle joint (outer side). During cross-examination the Doctor admitted that Injuries Nos.3 and 4 were not independent injuries and only complain of pain was shown and the duration of those injuries could not be ascertained. Similarly the duration of Injury No.2 could not also be ascertained. As far as Injury No.1 was concerned, that was only an abrasion that too had healed. Perusal of medico-legal report Exh. D. W .1 / 1 reveals that on 14-9-1998 Amjad without being accompanied by any relative or police official appeared on his own before the Doctor and got himself examined. There is no explanation as to why Amjad appellant remained in hiding for a full month and did not appear before the Investigating Officer soon after the occurrence. The defence plea was also not put to the Investigating Officer. As far as the medical evidence is concerned, it does not help the appellant at all, as the time of the injuries could not be ascertained and most importantly, according to defence plea, the appellant fired at Muhammad Iqbal as he was going to fire a second shot upon him, while it was never suggested to Mushtaq Ahmad P.W. that Muhammad Iqbal was reloading his gun.

15. The right of self-defence is subject to provisions of section 99 of P.P.C. The appellant has miserably failed to show that his case was not hit by the provisions of section 99 P.P.C. Thus we reject the plea of self-defence taken by the appellant.

16. In the above noted circumstances, we are of the opinion that the parties have not come out with true story but the incompleteness of tale should not deter the Court from drawing proper inferences from the evidence and circumstances of the case. Reliance is placed on the case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502.

17. After scanning the whole evidence we have concluded that at the fateful time the deceased was not going ahead of first informant and Mushtaq Ahmad P.W. none was riding on any cycle, they all were going together away from their house and nearer to the Dhari of Muhammad Amjad appellant; they came across Amjad, somehow or the other, trouble started and the appellant caused a single fire upon Muhammad Iqbal at the spur of moment. We are also of the opinion that background of this occurrence was not as mentioned by the prosecution rather it was due to the quarrel between younger relatives of the parties few days prior to the occurrence and on the fateful day. We find support from the statement of the Investigating Officer, who admitted that on the fateful day a quarrel took place between Amjad appellant and Muhammad Iqbal deceased, who was accompanied by Mushtaq Ahmad P.W. nearer the Dhari of Amjad appellant.

18. For what has been stated above, we feel that it was not a case where extreme penalty of death should be inflicted. Hence, while maintaining the conviction of Muhammad Amjad appellant for offence I under section 302(b), P.P.C. we alter his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. The amount of compensation is maintained. However, in default of realization or payment thereof, the appellant would suffer six months' S.T. Murder Reference is answered in the negative. Death sentence is not confirmed.

19. The learned counsel for the complainant has not pressed the revision against Muhammad Tufail and Naheed respondents, who have already served out their sentence. As far as the prayer relating to enhancement of compensation inflicted upon Muhammad Amjad respondent is concerned, we are of the opinion that sufficient compensation has already been inflicted by the learned trial Court. Resultantly, this revision stands dismissed. H.B.T./M-193/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.