2004 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The present appeal is directed against the judgment dated 31-10-2002, passed by the learned Special Judge (STA), Karachi, Central, in Special Case No.68 of 1998 (State v. Naik Muhammad Yaqoob). Under the impugned judgment, the learned Judge found the appellant guilty of Qatl-e-Amd of deceased Zafar, therefore, the appellant was convicted and sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C.

2. The facts giving rise to the present appeal are that on 14-8-1995, the complainant Syed Zeeshan, deceased Zafar and neighbours Qamaruddin, Shaheen and Aslam were going to Clifton beach in a jeep to fly kites. They left Federal "B" area and went towards the house of their friend Agha, who was residing near Arshi Market. The complainant stopped his jeep in front of Maymar Centre, Block 7, Federal "B" Area, Karachi, as their friend Agha was found sitting under a tree. Some of the persons alighted from the jeep and were engaged in shaking hands with Agha. The complainant and deceased Zafar were sitting in the jeep. In the meanwhile, at about 1-45 p.m. a person (the appellant), aged about 40/45 years, armed with kalashnikov was found coming from a hotel and was having a newspaper in his hand. P. W.3 Aslam requested the appellant to give him the newspaper for reading purpose but the appellant became annoyed. The appellant started beating P.W.3 Aslam with the rifle butt. The deceased Zafar intervened but the appellant gave him a slap and started dragging him towards a building. The deceased was successful in getting himself released from the appellant. Thereafter the appellant aimed his rifle at deceased Zafar and fired a shot from it, which hit the deceased on his chest. After receiving the injury the deceased fell down on the ground and-died there. Thereafter, the appellant ran away. The deceased Zafar was taken to the hospital. The complainant went to the police station and lodged the report at 5-20 p.m. the police started the investigation. The appellant was arrested on the pointation of the complainant from the Rangers Headquarters as he was serving there as a constable. After completing the usual investigation the appellant was challaned in the Court where he was tried and convicted as mentioned above under the impugned judgment.

3. We have heard the Advocate for the appellant. Assistant, Advocate-General, Sindh and perused the record of this case very carefully.

4. The learned Advocate for the appellant has stated that the appellant was not known to the witnesses, therefore, the identification test should have been held, which has not been done, as such the case has become doubtful against the appellant. In the alternative, he has stated that this is a case of accidental murder as the appellant did not intend to kill any person but due to fight, kalashnikov was fired and the deceased Zafar died. He has further stated that the offence, if any, would fall under section 302(c), P.P.C. and not under section 302(b), P.P.C.

5. On the other hand, the learned A.A.-G. has stated that the prosecution examined three eye-witnesses, out of them two eye-witnesses have fully supported the prosecution case and implicated the appellant with the murder of the deceased; that the third eye-witness P.W. Aslam supported the first incident, who stated that after his release from the appellant he left the place of incident, therefore, he did not know as to how the deceased died; that the ocular testimony is sufficient to convict the appellant. However, he has stated that it is a case of sudden and grave provocation, therefore, the case would fall under section 302(c), P.P.C.

6. We have given due consideration to the arguments, gone through the evidence available on the record and find that the case rests upon ocular testimony only. The prosecution examined three witnesses, viz. P. W.1 Syed Zeeshan, P. W. 3 Aslam and P. W.4 Qamaruddin. All the three P.Ws. are unanimous on the point that they and the deceased left Federal "B" Area in a Jeep and wanted to go to Clifton for kite-flying but on the way they stopped to pick their friend Agha. They found him sitting at the place of incident, therefore, they went there. In the meantime, the appellant was found coming, who was having a newspaper in his hand. P.W.3 Aslam requested for handing over him the newspaper for reading purpose but the appellant was annoyed. The appellant caught hold the P.W.3 Aslam and caused him rifle butt blows on his person. Thereafter, the deceased came there and intervened in the matter. After that the evidence of P.W.3 Aslam further reveals that the deceased directed him to go to Clifton where they will meet him hence he left the said place immediately. However, the evidence of remaining two P.Ws. reveal that the deceased Zafar was able to get himself released from the clutches 'of the appellant but the appellant fired from his kalashnikov at the deceased, which hit him and he died there.

7. All the P.Ws. were subjected to cross-examination but nothing has come on record to discredit their evidence. On the contrary the defence counsel asked some questions from P. Ws. which further support the contentions of the P. Ws. All the P. Ws. have no enmity whatsoever with the appellant nor any enmity has been suggested between them. As such there was no motive with the P.Ws. to implicate the appellant falsely in this heinous crime. Their evidence is confidence inspiring and we do not find any reason to .disbelieve their statements. Thus, the prosecution have proved the ocular testimony.

8. As regards the argument that the appellant was unknown to the witnesses, therefore, their identification test should have been held before the Magistrate. In this connection it is pointed out that the identification test of an unknown accused is essential when the P.Ws. had momentary glimpse of the accused. In the present case, there was sufficient time with the P.Ws. to have seen the appellant very clearly and closely. The incident took place during day time. The scuffle between the P.W.3 Aslam and appellant and subsequent intervention of the deceased Zafar and then actual firing took considerable time, therefore, the P.Ws. had not only ample opportunity to have seen the face of the appellant very clearly but were able to remember his face. This fact has been established from the fact that the appellant was arrested on the pointation of the complainant, as such identification test of the appellant through Magistrate was not essential in the present case.

9. As regards the argument that it was an accidental murder, the argument has no force because the evidence has come on record that the appellant had aimed his kalashnikov at the deceased and then fired at him which hit him.

10. As regards the argument of learned A.A.-G. that it is a case of sudden and grave provocation. In this connection, it is pointed out that the question of provocation was considered by the Shariat Appellate Bench of Honourable Supreme Court of Pakistan in a case of Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633, at page 675, it has been observed as under:--

11. However, a provocation is a psychological question. Under the law of provocation, it consists mainly on three elements; the act of provocation, the loss of self-control both actual and reasonable and the retaliation proportionate to the provocation. It is further pointed out that there are five conditions for bringing the case of an accused person under the ambit of provocation, which are: (i) the deceased must have given provocation to the accused, (ii) the provocation must be grave, (iii) the provocation must be sudden, (iv) the offender by reasons of the said provocation should have been deprived of his power of self-control and killed the deceased during the continuance of the, deprivation of power of control, (v) the offender must have caused, the death of a person, who gave provocation. In the present case there is nothing on the record to show that the appellant was provoked. The appellant did not take any such plea in the cross-examination to the witnesses nor in his statement recorded under section 342, Cr.P.C. If he had taken such plea then under Article 121 of the Qanun-e-Shahadat Order, 1984, he was required to have proved the said plea. If no such proof is led by the accused then the Court has to presume the absence of such circumstances. However, if from the facts of the case, a case of provocation appears to have been made out then the above conditions are required to be fulfilled before applying the said principle. From the facts of the case, it is clear that initial talks were in between the appellant and P.W.3 Aslam. There is nothing on the record, which can suggest that the action of the P.W.3 Aslam had provoked the appellant. Subsequently, when the deceased tried to intervene and save the P.W.3 Aslam from the custody of the appellant, the appellant resisted and then caught hold of the deceased Zafar. At this point of time deceased did not do anything which could have provoked the appellant for killing the deceased. As such, the appellant had no reason or occasion to kill the' deceased Zafar. There is also nothing on the record which can show that the appellant, who was as Ranger Personnel, was competent to take the custody of the P.W.3 Aslam, in the circumstances of the case, therefore, the action of deceased Zafar in saving P.W.3 Aslam or getting him released from the appellant was not an illegal act, as such there was no justification for the appellant to fire at the deceased and kill him. Thus, the case of sudden and grave provocation has not been made out in the present case.

12. After considering the material available on the record, we are of the considered view that the case of the appellant falls under section 302(b), P.P.C. therefore, he was rightly convicted by the trial, Court and sentenced to imprisonment for life. As the trial Court did not pass a mandatory order under section 544-A, Cr.P.C., therefore, the same is required to be passed.

13. Above are the reasons of our short order, dated 28-4-2004, by which we had dismissed the appeal and directed the appellant to pay a compensation of Rs.50,000 (fifty thousand) to the heirs of the deceased Zafar, under section 544-A, Cr.P.C. N.H.Q/M-70/K Appeal dismissed.