' RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of Criminal Appeal No.123 of 1997 and Criminal Revision Application No.106 of 1997 as they arise out of a common Judgment.
2. The present appeal is directed against the Judgment dated 17-9-1997 passed by the learned Vth.
Additional Sessions Judge, Karachi, South, in Sessions Case No.146 of 1995 (State v. Saeed Shah).
Under the impugned judgment, the learned Judge convicted the appellant under section 304, P.P.C. And sentenced him to suffer imprisonment for life and under section 324, P.P.C., sentenced him to suffer R.I. For 5 years and fine of Rs.50,000 or in default thereof to suffer R.I. For two years, with benefit of section 382-B, Cr.P.C.
3. The facts giving rise to the present appeal are that the complainant Rafiq Ahmed and appellant were police constables, posted at City Court Police Station, Karachi. The deceased Ghulam Shabir was Head Muharrar of the police station. On 18-2-1995 at 4.00 P.M. The complainant and appellant returned to the police station. The appellant wanted to deposit his rifles with the deceased Ghulam Shabir. The deceased informed him that he should complete his duties up to 8.00 P.M. As there was law and order situation. But the appellant was annoyed and lost his temper. In the meanwhile, the deceased who was entertaining his guests left the police station in order to leave his guests. The appellant followed him. The deceased sat on his motorcycle. The appellant put his hand on the handle of the motorcycle and told the deceased that he should give him a chit of receiving the rifle.
The deceased informed him that he should wait till his retune, which will be very soon. The deceased and the appellant exchanged harsh words with each other. The complainant Rafiq and others police officials intervened. They took the appellant at some distance whereas the deceased went inside the police station. The appellant was telling the witnesses that he would kill the deceased. Thereafter he proceeded towards the deceased and aimed his rifle at him but the complainant put his hand in front of the rifle. The appellant fired a shot from his rifle, which hit the complainant's hand. The bullet went through the hand of the complainant and hit to deceased on his head. On the firearm report, the S.H.O. And other police officials came there and apprehended the appellant along with his rifle. The deceased was shifted to hospital in injured condition where he succumbed to the injuries. The complainant lodged the report.
4. The police after usual investigation by recording the statement of witnesses, securing empty bullet from the wardat which was sent to Ballistic Expert for examination and report along 'with rifle of the appellant, challaned the appellant in the Court of law.
5. On 30-5-1995, a charge under sections 302 and 324, P.P.C. Was framed against the appellant but he pleaded not guilty.
6. In support of the case, the prosecution examined the following witnesses: S.No P.W. No. Name of P.W. Brief Summary of Evidence 01 P.W.1 Rafiq Ahmed Complainant. He supported the prosecution case and implicated the appellant by deposing that the appellant fired from his rifle which after going through his hand hit the deceased who died in the, hospital.
02 P.W.2 H.C. Muhammad Eye-witness. He also Farooq supported the prosecution case and implicated the appellant. His statement is same as that of P.W.1. He also acted as. Mashir of the arrest of the appellant from the Wardat and securing of SMG Rifle from his possession. He also acted as Mashir of Wardat from where empty bullet was secured.
03 P.W.3 H.C. Ghulam Mukhtiar Eye-witness. His evidence is same as that of P.W.1. He acted as Mashir of dead body and inquest report.
047 P.W.4 P.C. Gulistan Eye-witness. His statement is also same as that of P.W.1.
05 P.W.5 A.S.-I. Javed Akhtar Eye- witness, His statement is same as that of P.W.1.
06 P.W.6 Aurang Zaib Khan. Investigation Officer. He arrested the appellant from the Wardat and secured the Rifle from his possession. He also secured an empty bullet from the wardat.
He produced the Ballistic Expert report, which is in positive and Chemical Analyser report with regard to the blood-stained clothes of the deceased which is also in positive.
07 P.W.7 Dr. Akhtar Hussain SoomroMedical Officer. He conducted post- mortem examination of the deceased. He found one lacerated crushed injury on the left side of the skull of the deceased, which was caused by fire-arm weapon. He opined that the deceased died because of the said injury. He also examined the complainant Rafiq Ahmed. He found two injuries on the left hand of the complainant, one was wound of entry and the other was wound of exit. Blackening was found on the wound of entry. The Doctor opined that the injuries were caused by fire- arm weapon and were fresh in duration.
7. The appellant in his statement recorded under section 342, Cr.P.C. Admitted that he was police constable at the City Court Police Station. On 18-2-1995, he performed his duties along with complainant but their duty hours were from 8.00 A.M. To 4.00 P.M. He returned to police station at 4.00 P.M. And wanted to deposit the rifle, but the deceased demanded "Bhatta" therefore, a scuffle took place between them. The complainant intervened. During scuffle the trigger of his rifle went on with the result that the complainant and the deceased received fire-arm injuries. The appellant did not examine himself on oath but he examined one witness Ghulam Akhtar who had prepared the sketch of Wardat and produced the same.
8. After considering the material available on the record and hearing the parties counsel the learned trial Court convicted the appellant as mentioned above under the impugned judgment.
The appellant was dissatisfied with the said judgment therefore he has preferred the present appeal.
9. We have heard the parties advocates, state counsel and perused the record of this case very carefully.
10. The learned Advocate for the appellant has not challenged the findings of the trial Court on merits of the case but stated that the learned trial Court had convicted the appellant under section 304, P.P.C. Which was repelled on 5th September 1990 under Qisas and Diyat Ordinance through which the Pakistan Penal Code was amended; that the proper section for convicting the appellant would have been section 302(c), P.P.C. As the appellant had committed the murder under sudden and grave provocation; therefore, he has requested that the sentence of imprisonment for life may be reduced.
11. On the other hand Mr. Shandat Awan, Advocate for the applicant of Criminal Revision Application has stated that the ocular evidence was sufficient to convict the appellant under section 302(a), P.P.C., therefore, the sentence may be enhanced from imprisonment for life to death.
12. Learned state counsel has stated that the trial Court has wrongly applied section 304, P.P.C. As it was not available in the statute book when the incident took place; that from the evidence sudden and grave provocation, as alleged by the appellant, has not been proved; that the case is based upon the ocular testimony and recovery of crime weapon (SMG rifle) from the possession of appellant; that the appellant was caught red handed at the wardat; that the evidence is sufficient to convict the appellant; and that the offence would fall under section 302(b), P.P.C. As regards sentence, he has stated that no case of capital punishment of death has been made out as the incident was sudden and without any premeditation or plan.
13. We have given due consideration to the arguments, examined the evidence available on the record and found that the prosecution have relied upon the regular testimony of P.Ws.1 to 5. They have categorically stated that the appellant fired from his rifle, which hit the deceased after going through the hand of the complainant Rafiq Ahmed. The appellant also admitted the above facts in his further statement recorded under section 342, Cr.P.C. The oral evidence is further supported and corroborated by the arrest of the appellant from the Wardat just after the incident as such he was caught red handed. The crime weapon was secured from his possession. The crime weapon and empty bullet secured from the wardat were sent to Ballistic Expert for examination and report whose report is in positive. As such, the ocular testimony is corroborated by the recovery.
14. From' the above evidence it is clear that the appellant had committed the murder of the deceased and caused injuries to the complainant, therefore, his case would fall under sections 302, P.P.C. And 324, P.P.C. At the time of incident section 304, P.P.C. Was already repelled on 5th September 1990; therefore, the trial Court had wrongly convicted the appellant under section 304, P.P.C.
15. Now it is to be seen as to under which the three clauses of section 302, P.P.C., the appellant is liable to be convicted and sentenced. The learned advocate for the appellant has stated that the appellant had caused the murder under sudden and grave provocation, therefore, the case would fall under section 302(c), P.P.C. He has relied upon the cases of State v. Taus Khan (2001 SCM R 1416)
(2) Muhammad Mumtaz Khan v. State (1999 SCM R 837), (3) Manzoor Hussain v. Nadeem (2003 SCM R 459), (4) Wali Muhammad v. State (2003 PCr.LJ 694) and Sharq v. Crown (PLD 1994 FSC 141).
The learned State counsel has stated that there was no sudden and grave provocation, therefore, the case would fall under section 302(b), P.P.C. But according to the advocate for the applicant of Criminal Revision application the offence would fall under section 302(a), P.P.C.
16. We have given due consideration to the arguments, gone through the law relied upon by the advocate for the appellant and found that the above mentioned authorities are not applicable as the facts and circumstances of the said cases are distinguishable from the facts and circumstances of the present case.
17. In the present case, the appellant took the plea that when he returned to police station, the deceased demanded "Bhatta" from him. He told him that as it was the month of Ramzan and he was fasting, therefore, the question of giving him "Bhatta" did not arise. But the deceased did not agree and then he lost his temper. Thereafter the deceased and appellant grappled with each other and incidentally the trigger of the rifle was pulled hence the incident.
18. Under Article 121 of Qanun-e-Shahadat Order, 1984 the appellant was required to prove his plea of sudden and grave provocation. The defence plea taken by the appellant was put to the complainant but he denied the same. The appellant did not examine any witness in support of his defence nor any thing has come on the record through the prosecution witnesses to support the defence or to give any indication or impression that the incident took place as alleged by the appellant. As such the appellant has failed to prove the plea of sudden and grave provocation.On the contrary all the P.Ws. Are unanimous on the point that when the appellant and the complainant returned to the police station, the deceased wanted to deposit his rifles with the deceased. He asked the deceased to provide him the chit for the return of rifle. But the deceased did not give him the chit on the ground that his duty hours were upto to 8-00 p.m. The deceased asked him to perform his duties up to 8 p.m. Because of law and order situation. It has also come in the evidence through the prosecution witnesses 1 to 5 that the deceased was going to see off his guests and was about to start his motorcycle, the appellant put his hand on the handle of the motorcycle. He told the deceased that he would not allow him to go without issuing the chit but the deceased declined, therefore, the appellant lost his temper. In spite of the intervention of the complainant and other P.Ws., the appellant fired at the deceased as he already declared that he would kill the deceased. From the above position it is clear that there was no sudden or grave provocation to the appellant from any acts of the C deceased. Therefore, the case of the appellant would not fall within the ambit of sudden and grave provocation so as to make the offence fall within the ambit of section 302(c), P.P.C., as held in the above referred authorities.
19. From the facts and circumstances of the case we are of the considered view that the offence would fall under section 302(b), P.P.C., therefore, the appellant is liable to be convicted and sentenced under the said provision of law.
20. It is pointed out that in the case of Ali Muhammad v. Ali Muhammad reported in (PLD 1996 SC 274), the trial Court convicted the accused under section 304, P.P.C. Though the said section was repealed (as in the present case). An appeal was preferred. The High Court treated the said conviction under section 302(c), P.P.C. But allowed the appeal and acquitted the accused. The matter went to Hon'ble Supreme Court of Pakistan in an appeal filed by the complainant. The Hon'ble Supreme Court of Pakistan set aside the judgment of the High Court and convicted the appellant under section 302(c), P.P.C. From the above authority it is clear that if the trial Court applied wrong section while convicting the appellant then the same can be corrected at the appellate stage. Following the above dictum, we convert the conviction from section 304 of the P.P.C. Recorded by the trial Court to section 302(b), P.P.C.
21. From the facts and circumstances of the case it is clear that the appellant committed the murder without premeditation in heat of moment, as it was a sudden occurrence therefore, it is not a case of capital punishment of death. Reliance is placed on cases of Fazal Ilahi (1971 SCM R 647) and Ijaz Ahmed (1989 SCM R 151). Thus the sentence of imprisonment for life would meet the ends of justice therefore, we maintain the sentence of imprisonment for life for offence punishable under section 302(b), P.P.C. The conviction and sentence, under section 324, P.P.C. Is also maintained.
22. The trial Court did not award the compensation as required under section 544-A, Cr.P.C.
Therefore, the said order is required to be passed.
23. Above are the reasons of our short order dated 8-10-2003 by which we had disposed of the above matters in the following manner: ".... ...... For the reasons to be recorded separately, the Criminal Appeal No.123 of 1997 is dismissed with the modification that the conviction is maintained for offences under sections 302(b) and 324, P.P.C. The sentence of imprisonment for life and imprisonment for five years respectively for the aforesaid offences are maintained. The fine of Rs.50,000 is maintained for the offence under section 324, P.P.C. Benefit of section 382-B, Cr.P.C. Already extended to the appellant Saeed Shah, is maintained. The sentences should run concurrently. The fine, if realized, may be paid to the injured and heirs of the deceased as compensation under section 544-A, Cr.P.C. The Criminal Revision No.106 of 1997 is dismissed.
' Criminal Appeal No.123 of 1997 and Criminal Revision No.106 of 1997 stand disposed of in the above terms."