2006 PLP 1953 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 31-5-2005 passed by a Division Bench of Lahore High. Court, Lahore, whereby criminal appeal filed by the petitioner against the conviction and sentence of life imprisonment, awarded to him under section 302(b), P.P.C. with direction to pay compensation of Rs.25,000 under section 544-A, Cr.P.C. to the legal heirs of deceased by learned Additional Sessions Judge, Gojra, was dismissed.

2. The short facts as contained in the F.I.R. lodged by Ihsan-ul-Haq, complainant, are that on 31-7-1999, after Isha prayer, Haji Sultan Mehmood deceased went to the house of Haji Nazar Ahmad and did not return for a considerable time whereupon he along with Bashir Ahmad, his nephew and Abdul Rehman, while proceeding towards the house of Haji Nazar Ahmad to inquire from him about the deceased when reached near the house of Jaffar Hussain in the street saw that Abdul Majeed (petitioner) armed with carbine and his co-accused also armed with lethal weapon, giving fist and kick blows to ,the deceased, were dragging him inside the house of Jaffar Hussain and soon after, they heard the fire shot and noticed that accused were running in the street whereupon they rushed to inquire from the deceased about the incident and' he told them that he has been fired at by the petitioner at the instance of Jaffar Hussain. The deceased in injured condition was taken to the Allied Hospital Faisalabad and on 10-8-1998 he succumbed to the injuries in the hospital. The motive for the murder was quarrel between the petitioners and deceased a few days earlier to the occurrence. The prosecution mainly placed reliance on the ocular account of two eye-witnesses namely, Ihsan-ul-Haq (P.W.7) complainant of the case and Bashir Ahmed (P.W.8). The petitioner in his statement under section 342, Cr.P.C. denied the charge with the following assertion:-- "In fact on 31-7-1999 at about 10 p.m. I came to the house of my sister Nasreen wife of Jaffar accused and saw Haji Sultan Mehmood deceased and Mst. Nasreen my sister committing Zina with each other in the residential room of Jaffar accused while Jaffar accused was sleeping in the courtyard. I flared up and could not control myself and due to sudden provocation I fired with carbine on the person of Haji Sultan Mehmood and injured him. My intention was just to teach him lesson and not to kill him. In the meanwhile Mst. Nasreen my sister ran away (sic) always remained armed and keep fire- arm., The P.Ws. are closely related to the deceased so due to relationship they have deposed against me."

3. Learned counsel for the petitioner has contended that neither the presence of the eye-witnesses at the spot was satisfactorily established nor they could possibly see the occurrence from the street which took place inside the house of Jaffar Hussain and it being unseen occurrence, the charge against the petitioner was not proved beyond reasonable doubt. Learned .counsel argued that the defence plea was sufficiently supported by the circumstances of the case, therefore, the petitioner could not be saddled with the penalty under section 302(b), P.P.C. The learned State counsel, on the other hand, has submitted that the witnesses while proceeding to the house of Haji Nazar Ahmed to inquire about the deceased have seen the occurrence, therefore, their presence at the scene of occurrence was quite natural. He argued that eye-witnesses have narrated the occurrence in the manner in which it had taken place without any exaggeration and the fact that deceased was murdered in the house of Jaffar Hussain at night time by itself is not a circumstance to suggest the correctness of the defence version or to disbelieve the prosecution case supported by the direct evidence.

4. The time and place of the occurrence and the circumstances leading to the fateful incident may apparently create an impression that the motive for the murder was different to that of set up by the petitioner but the story that petitioner having seen Mst. Nasreen, his sister in compromising position with the deceased in the house of Jaffar Hussain under grave and sudden provocation, committed the crime would not appeal to mind. Jaffar Hussain while sleeping in the courtyard of his house, must not be ignorant of the presence of deceased in his house with his wife and sudden visit of the petitioner to the house of her sister at night time, without any purpose and knowledge of the inmates, would seriously reflect upon the correctness of the defence version. Jaffar Hussain (acquitted accused) in his statement under section 342, Cr.P.C. denied his involvement in the case without acknowledging the plea of grave and sudden provocation taken by the petitioner in his defence. The examination of two versions together and visualizing the situation in the light of circumstances leading to the occurrence, we find that the story of committing Zina by the deceased with the sister of petitioner in her house in presence of her husband, would neither be appealable to mind nor acceptable rather the defence version, would suggest that petitioner suspecting illicit liaison of the deceased with his sister, having dragged him forcibly from the street inside the house with the help of his brother-in-law, shot him dead. The defence plea of grave and sudden provocation would also be negated by the fact that neither Mst. Nasreen, sister of petitioner was caused any damage in the occurrence nor Jaffar Hussain, her husband has explained the circumstances under which deceased was murdered in his house so much so the petitioner himself did not make a statement on oath in support of his version of the occurrence. The ocular account furnished by the quite independent witnesses, duly supported by the medical evidence and attending circumstances as well as the admission of the petitioner of firing at the deceased in the house of Jaffar Hussain, was found confidence-inspiring and truthful. The eye-witnesses being not inimical to the petitioner would have no reason to make a false deposition and perusal of their evidence, would show that they have narrated the occurrence in its natural sequence without any exaggeration and material contradiction. From the analysis of the evidence in the light of the circumstances of the case in totality, we have not been able to find out any misreading or non-reading of evidence or any other legal or factual defect in the concurrent finding of the two Courts regarding the guilt of petitioner calling for interference of this Court.

5. In the light of foregoing reasons, we find no substance in this petition which is accordingly dismissed. Leave is refused. S.A.K./A-60/SC Leave refused.