2006 PLP 1175 (SCMR)

ABDUL HAMEED DOGAR, J.

This petition is directed against common judgment dated 3-3-2005 passed by a learned Division Bench of Lahore High Court, Bahawalpur Bench, Bahawalpur whereby Criminal Appeal No.147 of 2001 filed by petitioner Muhammad Ibrar was partly allowed, his conviction under section 302, P.P.C. was altered to under section 302(c), P.P.C. and the sentence was reduced from imprisonment for life to 14 years R.I. Criminal Appeal No.147 of 2001 filed by complainant Ghulam Nabi challenged the acquittal of Muhammad Shafi and Muhammad Saif and Criminal Revision No.68 of 2001 seeking enhancement of sentence of petitioner were dismissed.

2. Briefly, stated the facts of the case are that on 9-2-1997 complainant Ghulam Nabi lodged F.I.R. No.10 of 1997 at Police Station Mandi Sadiq Ganj stating therein that on the fateful day at about 3-00 p.m. he along with his brothers Liaqat Ali and Niamat Ali and one Alam went to his fields to see their damaged wheat crop. They while passing near the house of acquitted accused Muhammad Shall protested to him for the damage caused to their wheat crops whereupon said Muhammad Shafi, petitioner Muhammad Ibrar and acquitted accused Muhammad Saif got furated which resulted in exchange of harsh words. Thereafter, acquitted accused Muhammad Shafi armed with hatchet, Muhammad Saif armed with a stick and petitioner Muhammad Ibrar armed with .12 bore double-barrel gun launched murderous assault upon them. Petitioner fired from .12 bore double-barrel gun and the shot hit at the abdomen of Liaqat Ali deceased. Acquitted accused Muhammad Shafi caused a hatchet blow on the head of Niamat Ali whereas Muhammad Saif caused Dang blows on the head and right bicep of complainant. Said Muhammad Shafi also caused hatchet blow on the left arm of Muhammad Alam. On hue and cry P.Ws. Muhammad Ashiq and Noor Ahmad got attracted to the scene of occurrence. As a result of this assault Liaqat Ali lost his life.

3. The motive behind the occurrence was cause of damage to wheat crop of complainant made by the cattle of acquitted accused Muhammad Shafi.

4. Petitioner Muhammad Ibrar and above acquitted accused were arrested on 18-2-1997. Petitioner led to the recovery of .12 bore double-barrel gun from inside his residential room. After usual investigation they were sent up to face trial.

5. In order to prove its case prosecution examined 10 witnesses in all.

6. Dr. Muhammad Sharif (P.W.6) conducted the autopsy of deceased Liaqat Ali noticed following injuries on his person:-- (1) A. Entry wound There was ten rounded blackened fire-arm entry wounds of pellets seen on abdomen. Below umbilicus. Margins were inverted radius of each hole was 7 mm. Maximum distance between two holes 12 mm and minimum distance between two holes was 5 c.m. B. Wound Tracks Pellets penetrated through intestine, right iliac vessels and right hip bone and gluteal muscles. Three pellets recovered from right buttock. C. Exit wound There were four rounded exit wounds of pellets on right buttock with averted margins radius 4 mm. Irrespective of injured Ghulam Nabi (P.W.1), Niamat Ali (P.W.2) and Muhammad Alam (P.W.3), petitioner Muhammad Ibrar and acquitted accused were also medically examined by Dr. Muhammad Sharif (P.W.6).

7. The petitioner in his statement recorded under section 342, Cr.P.C. simply denied the case of prosecution and claimed innocence. He pleaded the right of self-defence and stated as under: "The day of occurrence was an Eid day. I along with my father and brother was in my house. Niamat Ali brother of Liaqat Ali deceased came near our house and gave slaps and fists blows to me saying that we had damaged their crop. I replied that we had no cattle at all so there was no question of damaging their crop. Niamat Ali returned to his house which is at a distance of about 1-1/2 kilometers from house. After some time Niamat All along with Liaqat Ali deceased, Muhammad Alam, Ghulam Nabi and few other persons armed with Dangs and hatchets came to our house. I along with my brother Muhammad Saif, was in our house. Niamat Ali and his companions attacked upon our house and started causing abuses us and also started causing injuries to me and my brother Muhammad Saif. My mother and sisters intervened and they were also given beatings by the complainant party. My father Muhammad Shafi who was irrigating the land near our house reached at the spot on hearing hue and cry. When he reached in our house, Niamat Ali, Ghulam Nabi and Liaqat Ali caught hold of him and started giving slaps, fists blows and also injuries with Soties. Liaqat Ali deceased caught hold of my father Muhammad Shafi and made him fall on the ground and he sat on his chest and started strangulating his throat. I apprehending death and grievous injury to my father and ourselves went inside my house and brought licensed gun with that gun I made fire on Liaqat Ali when he was sitting on the chest of my father and trying to strangulate him. Our house is the only house at the place of occurrence where we used to cultivate land. The village Abadi and the houses of deceased and complainant party and the P.Ws. were situated at the distance of 1-1/2 Kilometers. The complainant party duly armed with sticks and hatchets had travelled 1-1/2 kilometers from their house and attacked upon our house. The complainant party wanted to dispossess us from the land which Ave used to cultivate and for that reason they had attacked upon our house. I along with my brother and father in injured condition had reported the matter to the police. We were also got medically examined by the police. The complainant party is an influential party and land owners of the village whereas we were poor persons and tenants. The complainant party prevailed over the police and got" registered the present case by twisting the actual incident. The gun was produced by us on the very first day of occurrence before the police. We had no cattle. The story of grazing buffaloes and damage of complainant party crop has been introduced in the complaint after more than a year of the date of occurrence." He neither opted to give statement on oath as required under section 340(2), Cr.P.C. nor led any evidence in his defence.

8. On conclusion of trial petitioner was convicted and sentenced under section 302, P.P.C. to imprisonment for life and to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. while co-accused were acquitted from the charge.

9. On appeal the learned High Court vide impugned judgment altered the conviction of the petitioner from 302, P.P.C. to 302(c), P.P.C. and reduced the sentence to 14 years R.I. However, the sentence of compensation under section 544-A, Cr.P.C. and benefit of section 382-B, Cr.P.C. was remained intact.

10. None is present on behalf of petitioner whereas Mr. Dil Muhammad Tarar, learned Advocate Supreme Court is present on behalf of State and With his kind assistance we have gone through the record and impugned judgments.

11. It is pertinent to note that petitioner did not challenge the appeal on merits before learned High Court but urged for reduction of sentence only.

12. Prosecution has successfully brought on record ocular testimony of Ghulam Nabi (P.W.1), Niamat Ali (P.W.2) and Muhammad Alam (P.W.3) which stands corroborated by medical evidence. Participation of petitioner is also proved in the case as he was not only injured in the incident but also admitted to have fired at deceased Liaqat Ali in exercise of right of self-defence. Admittedly, Liaqat Ali lost his life whereas P.Ws. Ghulam Nabi, Niamat Ali and Alam sustain injuries with hard and sharp-edged weapon whereas acquitted accused Muhammad Shafi his father sustained one blunt weapon injury on head and acquitted accused Muhammad Saif his brother received three injuries with blunt weapon and raised the plea of self-defence. The main reason which weighted with the learned High Court for reduction in sentence of petitioner was that it was not a premeditated incident and that it took place at the door of petitioner. Impugned judgment is based on proper appraisal of evidence and does not require interference.

13. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused. M.B.A./M-80/SC??????????????????????????????????????????????????????????????????????????????? Petition dismissed