This judgment dispose of Cr1. A. No, 962-02 and Crl. R. 434-02 as both arise out of same FIR and involve common question of law and facts.
2. Through Crl. A. 962-02 the appellant has called in question the judgment dated 11.11.02 passed by learned Addl: Sessions Judge Sahiwal'in case FIR No, 285 registered under Section 302/109/34 PPC at Police Station Saddar Chichawatni whereby the appellant stands convicted under Section 302(b) PPC and sentenced to life imprisonment with benefit of Section 382-B Cr.P.C. Through Cr1. R.
No, 962-02, the complainant Muhammad Irshad has sought enhancement of the sentence awarded to the afore mentioned accused-appellant.
3. The prosecution story in nutshell is that About (1/2) years back at about 9.30 p.m. the complainant Muhammad Irshad, Muhammad Shahid, Qamar Zaman PWs 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 digger 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 blow hitting on his left side of chest.
Thereafter the appellant and his co-accused fled away on their motorcycle alongwith 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 land 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. Ehsan-ul-Haq and in the Punchayat the appellant give a slap to Muhammad Shahid PW 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 Section 302/109/34 PPC 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 DSP/SDPO appeared as CW-2. The prosecution gave up, Qamar Zaman, Muhammad Ashraf, Dr. Zameer Ahmad M.O., Akbar Ali, Muhammad Akram constables and Yar Muhammad Dogar DSP Chichawatni as being unnecessary. Ghulam Mustafa S.I who recorded the FIR. Ex. PC/1 on the statement of the complainant died before the commencement of trial.
8. Muhammad Mansha H.0 appeared as PW-7 and explained that he had identified the hand writing and signature of Ghulam Mustafa S.I. on FIR Ex. PC/1, rough site-plan Ex. P3/A of place of occurrence, scale site-plan Ex.PK. as vide memo of blood-stained earth, injured statement Ex. PE, inquest report Ex.PF and recovery of last worn clothes Ex. PA are in the hand writing of Ghulam Mustafa S.I. and were signed by him.
9. PW-9 Farrukh 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 Ex. PG. Also got took into possession the Motorcycle No, 8353-OKA vide recovery memo Ex. PJ and recorded the statement of PWs and challaned the accused.
10. PW-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. PW-2 Ali Ahmad Constable took the dead body of Muhammad Afzal to THQ Chichawatni Hospital for post-mortem examination and took into possession the last worn clothes of the deceased vide memo Ex. P.A.
12. PW-5 Dr. Tanweer-ul-Haq C.M.O. THQ 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 cm x 1 cm into going deep on left side of chest just inner and 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 anti- 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. PW-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 Ex. PG.
15. PW-7 Muhammad Mansha H.0 handed over the sealed parcel containing blood-stained earth and containing Khanjar P4 for onward transmission to the Office of the Chemical Examiner.
16. PW-8 Muhammad Shahid is son of complainant Muhammad Irshad while appearing in the witness box reiterated the statement of complainant.
17. CW-1 Dr. Zubair Tariq C.M.O THQ 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 his person:--
(i) A lacerated wound (infected) 3 cm x 1 cm into bone not exposed on the right side of forehead 2 cm above the right eyebrow.
(ii) A lacerated (infected) 1.5 cm x 1 cm into skin deep on the right side of lower lip.
(iii) A lacerated (infected) wound 1 cm into skin deep on the right inner aspect of lower lip.
(iv)Abrasion 3 cm x 1.5 cm 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 Jafia 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 Ex.
PL and Ex. PM regarding blunt stained dagger and blunt stained earth and report of Chemical Examiner Ex. P.N relating the dagger and Ex. 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 PWs have deposed against you"? He replied as under:- - "It is a false case against me. PWs have made false statement due to their relationship with the deceased as well as enmity against me. The PWs 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 alongwith 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 defense, gave a single blow with the pen knife which was attached with the key ring of my motorcycle to Muhammad Afzal deceased. No PW 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 gt 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 recovery evidence and keeping the defense version in juxta-position to the prosecution version. concluded that the appellant had exceeded his right of self defense 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) PPC and sentenced him to life imprisonment vide impugned judgment dated 11.11.02.
19.Learned counsel appearing on behalf of the appellant contends that it was not a pre-plan 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-defense, therefore, case against the appellant does not fall within the provisions of Section 302(b) PPC but falls under Section 302(c) PPC 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 relied upon 1992 SCMR 207, 1971 SCMR 478 1991 SCM R 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--planed 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 juxta position to that of prosecution case of self-defense 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) PPC and sentenced him to life imprisonment and it is not 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 partied 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 FIR had been proved by PW-4 Muhammad Irshad complainant and PW-8 Muhammad Shahid who is son of the complainant which has been corroborated by the recovery of dagger through recovery memo Ex. PG which had further been proved by the statement of Ehsan-ul-Haq PW-6. The motive, as had been set up in the FIR pertains to dispute about Banna of adjacent land of the parties, regarding which Punchayat was conversed by Ehsan-ul-Haq PW-6 prior of the occurrence, in which the appellant had gave a slap to Muhammad Shahid PW-8 which has been explained and elaborated during the trial by the PW-8 complainant and PW-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-defense 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 defense version in juxta position, 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 tell the truth. Taking the motive point first prosecution had set up motive in the FIR as dispute about Banna of joint land between the parties and firing Punchayat convened by Ehsan-ul-Haq PW-6 prior to the occurrence, appellant had slapped Muhammad Shahid PW-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 Shahid PW-8. Second slap alleged to have been given by Muhammad Afzal deceased to appellant as had been deposed by the PW-4 the complainant and PW-8 Muhammad Shahid as well as in the affidavit sworn by Ehsan-ul-Haq PW-6 produced as Ex. DA stand un-proved on record and amounts to dishonest improvement during the trial by the alleged eye witness namely Muhammad Shahid PW-8 and Muhammad Irshad complainant PW-4 as well as Ehsan-ul-Haq PW-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 FIR. It has further been noticed that first version recorded by the appellant before the 1.0 which was incorporated in his application produced in original as Ex. PD. contained the plea of self defense 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 CW-1 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 FIR as well as during trial. Keeping in view the statement made by the prosecution witnesses as well as defense version learned trial Court has rightly came to the conclusion that the defense 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 defense 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 attacked by the deceased alongwith his two companions with sotas. This fact has been proved on the record by deposition of CW-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 alongwith his brother on a motorcycle to the house of the complainant where the complainant alongwith 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 appellate 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 FIR 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 version of same. incident then one which is favorable to the accused should be preferred. Herein this case the appellant had admitted that he had inflicted knife blow to the deceased in his self-defense 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 defense 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 slap edged weapon in exercise of his right of private defense. There was no other circumstance, 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 exceeding his right of self defense had convicted the appellant under Section 302(b) PPC and sentenced him to life imprisonment. By going through the record minutely I find that it was not a pre-planned occurrence Ion the part of the appellant whereas according to the motive set up in the FIR the deceased was aggrieved person who in order to take revenge had attacked alongwith his companions and injured the appellant and in defence the appellant had caused a solitary blow 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) PPC 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, 96202 is disposed of Criminal Revision 434-02 filed by the complainant for the reason mentioned above is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.