' This judgment will dispose of Criminal Appeal No.1987 of 2003 tiled by Haider Ali, appellant, who was convicted and sentenced by learned Addl: Sessions Judge, Faisalabad vide his judgment dated 27-9-2003 to undergo 14 years R.I. Under section 302(c), P.P.C. With the further direction to pay Rs.50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default six months R.I. With the benefit of section 382-B, Cr.P.C.
' Criminal Revision No.1053 of 2003 filed by Mst. Mukhtaran Bibi complainant for the enhancement of sentence against the appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Mst. Mukhtaran Bibi mother of the deceased are that brother of husband of the complainant, namely, Muhammad Shafi forcibly occupied the joint property (four shops) along with his son Bilal etc. And he rented those shops. Complainant's son Muhammad Ilyas demanded his share from Muhammad Shafi and his son but Muhammad Shall etc. Declined to do so; on 7-5-2002 at about 6-00 p.m. Ilyas again asked Bilal to give him his share, Bilal went to his house and after few minutes came back with Bughda and aimed blow at Ilyas, which hit on left wrist of Ilyas at outer side. Ilyas snatched the Bughda from Bilal and persons, who had gathered there separated them, thereafter, Ilyas came to the roof top of his house, at that time complainant Mst. Mukhtaran Bibi, Mst. Zohran Bibi, Muhammad Bashir and Ata ur Rehman P.Ws.
Were also present at roof top. The roofs of the house of the complainant and Muhammad Shafi are at the same level. In the meanwhile, Bilal along with Haider, who was armed with .12 bore gun, Muhammad Shafi empty-handed, Sanaullah and Fazala sons of Abdur Rehman one of them also having a pistol also came to their roof top of the house. Muhammad Shafi, Bilal, Sanaullah, Fazala raised Lalkara and asked Haider that Ilyas should be killed by gun fire shot, who demands his share of the shops. Haider Ali made many fires with his gun hitting Ilyas on his face, chin, right and left ear and on neck and left shoulder, who on receipt of injuries in an injured condition fell on the adjoining KOTHA/ROOFS of the shops and died due to that injuries. The occurrence was witnessed by complainant Mst. Mukhtaran Bibi, Bashir, Mst. Zohra and Ata-urRehman P.Ws. But accused persons while raising lalkaras ran away from the spot.
3. After recording the statement of complainant Exh.P.G., Muhammad Munir S.I. P.W.11 took up the investigation of this case, he examined the dead body of Muhammad Ilyas deceased, prepared his injury statement Exh.P.B. And inquest report Exh.P.C., then inspected the spot and during spot inspection also secured blood-stained earth vide memo. Exh.P.H., recorded the statements of the witnesses under section 161, Cr.P.C. On 23-5-2002 arrested Haider Ali, Muhammad Bilal Fazal ur Rehman and Sanaullah accused while Muhammad Shall accused was arrested on 28-5-2002. On 30-5-2002 he got recovered gun P.6 along with three alive cartridges P.7/1-3 and three empties P.8/1-3 from Haider Ali accused appellant, which were taken into possession vide memo. Exh.P.K. He did not produce any licence for the possession of aforesaid gun P.6 so a case under section 13 of Arms Ordinance was registered against him. On 6-5-2002 he took into possession the licence P.5 from the house on his pointation, which was taken into possession vide memo. Exh.P.J. After completion of the remaining investigation, all fife five accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned ADA tendered in evidence reports of Fire-arm Expert Exh.P.L. And that of Serologist Exh.P.M. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
' Muhammad Rafique, Muhammad Siraj Butt and Hiader Ali (appellant) were examined as D.W.1 to D.W.3 respectively in this case. After conclusion of the trial, four accused Muhammad Bilal, Muhammad Shafi, Sanaullah and Fazal ur Rehman were acquitted while Haider Ali appellant was convicted and sentenced as mentioned above by the learned trial Court.
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, learned counsel for the appellant submits that deceased was a person of desperate character and was involved in 12 cases of heinous nature and same fact had been proved through the document Exh.D.E., that it is also an admitted fact that deceased was released from Jail 6/7 months prior to the present occurrence, that prior to actual occurrence of firing, deceased and his mother twice tried to take the forcible possession of the shops in dispute. Adds that case of the prosecution was that possession of shops in dispute was with the complainant party and was taken by Muhammad Shafi co-accused father of the appellant forcibly from the complainant party but the evidence available on record is otherwise because Muhammad Siraj Butt D.W.2 had appeared before the learned trial Court and had stated that Ilyas deceased had approached him to settle the dispute, he had asked both the parties to give in writing that his decisions would be final, Muhammad Shafi gave the writing but Ilyas did not turn up, although he was summoned twice or thrice, that deceased had been acting in a very rough and wild manner after his release from Jail. Adds that version of the appellant, which he took before the learned trial Court during cross-examination of the witnesses and in reply to question No.11 recorded in his statement under section 342, Cr.P.C. Get full supports as the same was made in the earlier opportunity during the course of investigation, that learned trial Court had disbelieved the prosecution version and had accepted the version of the appellant in totality. Further submits that case of the appellant was that he had used the licensed gun of Sanaullah, who was his cousin and that gun was recovered from the house of the appellant along with the licence of Sanaullah because it was licensed gun of Sanaullah. Also submits that although version of the police was that gun was recovered on the pointation of the appellant and the licence was produced or got recovered by Sanaullah, although both the articles were recovered on the pointation of the appellant from his house. At this stage, learned counsel for the appellant has relied upon a case titled as Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 247). He submits that although the appellant has been convicted and sentenced to undergo 14 years R.I. Under section 302(c), P.P.C. But it is too much in the circumstances of the case because at the time of occurrence appellant was 21 years of age, he had lost his self-control and was not in proper state of mind when this occurrence took place, that it was a case of single shot and that had been admitted by Ata-ur-Rehman P.W.B. He lastly submits that maximum sentence if any in this case can be five years. He has also relied upon 1986 MLD 2615, 1986 PCr.LJ 1084, 1985 PCr.LJ 2222 and PLD 2002 Lahore 19.
6. On the other hand, learned counsel for the complainant submits that according to the statement of the appellant recorded under section 342, Cr.P.C., he had admitted that he tired two shots on the persons of the deceased, that there are eight entry wounds caused by fire-arm, one incised wound attributed to Bilal acquitted co-accused and one abriasion on the person of the deceased, that on the basis of oral provocation of whatever nature is not relevant, relating to offence of murder and in this regard, reliance is placed upon a case titled as Abdul Hague v. The State and another (PLD 1996 Supreme Court 1). He further submits that in fact appellant had exceeded right of slef-defence in this case by causing two fire-arm injuries on the person of the deceased, that act of the accused was pre-meditated one and he committed cold-blooded murder of a young man and that sentence of the appellant be enhanced from 14 years R.I. To 25 years R.I. In the circumstances of the case.
7. On the other hand, learned counsel for the State submits that it is well-reasoned judgment and the sentence, which has been awarded to the appellant, is proper and legal in the circumstances of the case. He supports the judgment of the learned trial Court.
8. I have heard learned counsel for the parties and have also gone through the evidence available on record and the judgments cited by both the parties before this Court. In the instant case, parties were related to each other and in fact they were blood relations, they are also neighbourer having common roof and wall. Dispute of shops has not been denied by both the parties but with a different version. The learned trial Court has disbelieved the prosecution evidence in totality and has accepted the version of the appellant and convicted him under section 302(c), P.P.C. Neither State nor complainant has filed any criminal appeal for acquittal of the appellant under section 302(b), P.P.C. Till today, it means that complainant and the State were satisfied with the findings of the learned trial Court. The only point involved in this case, whether the sentence given to the appellant by the learned trial Court is sufficient or it should be enhanced or to reduce the same even from 14 years R.I. In the circumstances of the case. Both the parties have cited judgments of the Hon'ble Supreme Court of Pakistan. The only judgment cited by learned counsel for the complainant before this Court in (PLD 1996 Supreme Court 1) titled as Abdul Hague v. The State and another, in which the conviction and sentence of the appellant was under section 302(b), P.P.C. And he was awarded death sentence while the occurrence had taken place in the Court room and the only fault of the deceased was, who was in police custody, he abused the son of the deceased, who had come to the Court, on which in the Court he fired a shot on the person of the deceased and learned trial Court awarded him death sentence, which was confirmed by High Court but on an appeal the sentence of death of that appellant was reduced to Life Imprisonment by the apex Court. While 'on the other hand, learned counsel for the appellant has relied upon a case titled as Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) and in that case, accused had seen in the mid of night in his house, the deceased in a compromising position with his wife and he committed the murder of the deceased but facts of the present case are totally different as far as, those two judgments are concerned cited by both the parties.
9. It has not been denied that according to Exh.D.E., deceased was not a person of "Masoom-ud- Dam" but he was a person of desperate character, he was involved in many criminal cases including murder case and was even convicted in that case, he had come from jail 6/7 months prior to the present occurrence, he himself approached Muhammad Siraj Butt D.W.2 for the settlement of dispute of shops, thereafter, he was summoned by D.W.2, who asked him to give "Iqrar Nama" that decision, which would be made by Muhammad Siraj Butt (D.W.2) would be final but he did not turn up. Bilal real brother of the appellant was also injured in the earlier incident; he was medically examined on the next day. Five accused were named in the F.I.R., four were acquitted while appellant was convicted and sentenced as mentioned above by the learned trial Court. The learned trial Court as I have mentioned above, has totally accepted the version of the appellant. Appellant had admitted that he had fired two shots on the person of the deceased and all the injuries on the person of the deceased were from a far of range because none of the injury had got any blackening or burning, those injuries mostly on his face, chest and shoulder.
10. In my considered opinion, while evaluating the evidence, version of the appellant and the judgments cited by learned counsel for the appellant, though the appellant acted under grave and sudden provocation, lost his self-control, he was not in a proper state of mind because deceased had abusing him, his mother, sister and using filthy language against whole family of the appellant and in this regard. I would like to re-produce Paragraph No.11 (Head Note-B) from a case titled as Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) relied upon by learned counsel for the appellant as under:-- Provocation in law consists mainly of three elements.-The act of provocation, the loss of self- control, both actual and reasonable and the retaliation proportionate to the provocation .... Their relationship to each other---particularly in point of time, whether there was time for passion to cool---is of the first importance.
' The point To emphasise is that provocation in law means more than a provocative incident."
11. Appellant has also produced three D.Ws. Including himself as required under section 340(2), Cr.P.C. The provocation, which was given by the deceased to the appellant the same became the cause of the murder of the deceased was the natural result of that provocation. As I have mentioned above that the learned trial Court accepted the version of the appellant in totality and in view of the statement of Investigating Officer the version, which the appellant took before the learned trial Court, was his first version. So keeping in view the circumstances of the case, I am of considered opinion that though the case of the appellant is covered by section 302(c), P.P.C. But sentence of 14 years, R.I. Awarded to him is very harsh and the same is reduced to 10 years R.I. As far as, compensation amounting to Rs.50,000 awarded to the appellant is concerned, that is, also set aside because in cases of grave and sudden provocation no compensation is awarded and in this regard reliance is placed upon a case titled as Miraj Begum v. Ijaz Anwar and others (PLD 1982 SC 294). However, the sentence awarded to the appellant shall run concurrently with the conviction and sentence awarded to him by the learned trial Court in a case registered against him under section 13 of Arms Ordinance, 1965 as both the challans arise out of one of the same occurrence, with the benefit of section 382-B, Cr.P.C.
' Criminal Revision No.1053 of 2003 filed by Mst. Mukhtaran Bibi against the appellant for the enhancement of sentence is dismissed for the reasons mentioned above. 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.