This judgment will dispose of Criminal Appeal No. 30 of 2005 and Criminal Revision No. 37 of 2005.
Appellant, Muhammad Akram, has challenged his conviction and sentence awarded to him under Section 302 (b) PPC by the learned Additional Sessions Judge, Rawalpindi vide judgment dated 27.1.2005 passed in complaint case filed-by Abdul Latif, complainant under Section 302/201/34 PPC, to suffer imprisonment for life in addition to payment of compensation amounting to Rs. 50,000/- under Section 544-A Cr.P.C. payable to the legal heirs of the deceased and in default whereof to further sustain six months simple imprisonment, with the extension of .benefit of Section 382-B Cr.P.C. Besides this appeal, the complainant also filed Criminal Revision No. 37 of 2005 under Section 435/439 Cr.P.C. for enhancement of sentence of the appellant and C.P.S.L.A No. 3 of 2005 against acquittal of Haji Muhammad Ilyas and Mazhar Hussain which is withdrawn today by their leaned counsel.
2. The case of the complainant in private complaint is that he is a cultivator having three sons and eights daughters whereas the accused/ respondents are his relatives. On 18.2.2001 at about 7:00 p.m he was in his house with his family when Shabir @ Shaboo and Muhammad Akram came and took his sons namely Israr Latif and Yasir Latif with them. His younger son, Yasir Latif, after a short while, came back and informed him that both the accused took Israr Latif with them on the pretext of attending marriage ceremony in the house of one Zahid. On 19.2.2001, the complainant received information that the dead body of his son, Israr Latif is lying in Veranda of the house of Muhammad Ilyas. He accompanying with the witnesses reached the spot where the police was already present.
He claims that Muhammad Ilyas and his wife Mst. Zubaida called his son from house and got him murdered from Muhammad Akram accused at some unknown place and kept the dead body in their veranda.
3. The motive behind the occurrence alleged to be a dispute of land between the parties. Besides the private complaint the complainant also lodged FIR No. 17 dated 19.2.2001 regarding the said occurrence as the local police in connivance with the accused did not co-operate with him.
4. Mazhar Hussain was found innocent during preliminary hearing and was not summoned as accused whereas Haji Muhammad Ilyas was exonerated by the Hon'ble High Court vide order dated 27.5.2003 and Mst. Zubaida died during the pendency of the complaint, so she was deleted vide order dated 30.5.2003. Muhammad Akram appellant only remained behind to face the trial.
5. The appellant, after delivery of copies of evidence, was formally charged under Section 302 PPC do 26.6.2003 to which he pleaded not guilty and claimed trial.
6. The prosecution to support its case besides documentary evidence, produced seven witnesses namely Mazhar Hussain (PW 1), Dr. Tanvir Akhtar (PW 2), Abdul Latif (PW 3), Yasir Latif (PW 4)
Muhammad Aftab (PW 5), Shabir Akhtar (PW 6) and Abdul Razzaq (PW 7) whereas Muhammad Sharif ASI (CW 1), Zahid Hussain (CW 2) Raja Naseer Ahmed (CW 3), Nayyar Mehmood (CW 4)
Muhammad Nazir, Inspector (CW 5) and Muhammad Afzal, SI (CW 6) appeared as Court witnesses.
7. The statement of the appellant was recorded under Section 342 Cr.P.C. in which he pleaded his innocence. He has neither opted to record his statement on oath nor produce evidence in his defence. Hence this appeal.
8. Arguments heard. Record perused.
9. The learned trial Court observed in paragraph 24 of its judgment as under:-- "According to the complaint supported by Abdul Latif, its maker, Israr Latif was got murdered some where else and his dead body was kept in the house of the accused just to create defence plea of tress-pass by the deceased. This version was not supported by any kind of evidence. The prosecution could not point out any place other than the house of the accused as place of occurrence. Shabbir Akhtar PW 6 categorically stated that the occurrence had taken place in the house of the accused on the fateful night. In this way, the prosecution version stood un-proved.
In view of fore:going circumstances, the prosecution evidence is full, of doubts and suspicion and cannot be based for redording conviction of the accused".
10.While the defence plea was considered as under:-- "The defence plea is that Israr Latif deceased had illicit relations with Mst. Ayesha, sister of the accused. He while armed with .30 bore pistol trespassed the house of the accused, awoke her and both went to rooftop, where they were gossiping. On hearing murmur the accused woke up, took out licensed gun of his uncle, went to the rooftop and saw the accused and his sister in compromising position. On seeing him, the deceased tried to take out his pistol to attack upon him but the accused did not give him chance and made fire shot by means of gun .12 bore to save hs life and honour of the family. The factum regarding unfair liaison between the deceased and the sister of the accused was in the knowledge of the accused and his family members and this fact was found during the investigation by the I.O.s. Thus, the plea of Ghairat becomes doubtful on the ground that the accused had the knowledge about the illicit relations between the deceased and his sister, much earlier and he could take action on account of Ghairat, when the deceased and his sister were found in naked position in the jungle, as revealed during the investigation, conducted by Muhammad Nazir Inspector CW.
5. It is not denied by the accused side that Mst. Ayesha, sister of the accused was willing party to illicit relations with the deceased. The accused saw the deceased and his sister in a compromising condition and made fire short upon Israr Latif deceased but did not take any action against his sister, who had illicit liaison with the deceased.
The defence plea that the deceased entered the house of the accused armed with pistol and on seeing the accused, he tried to take out the said pistol to attach upon him, is not proved on file, as the pistol was still lying in the Dubb of the Shalwar of the deceased and the same was recovered by the police after his death. There was no chance of using the pistol by the deceased at relevant time. The accused did not receiver any injury, at the hands of the deceased nor the same is alleged by the defence. There was no occasion to act in defence, as set up by the accused".
11.The learned trial Court convicted the appellant solely on his statement recorded under Section 342, Cr.P.C. Both the parties admit the date and time of occurrence. As far as the place of occurrence is concerned, the case of the prosecution is that it was not the house of the accused but the deceased was murdered somewhere else and kept his dead body in the house of the accused to create a defence plea. There is no evidence to this effect as rightly observed by the trial Court. It is an admitted fact that the deceased has affairs with the sister of the accused appellant.
Anyhow, appellant Muhammad Akram has himself admitted in his statement under Section 342 Cr.P.C. that it was he who had fired at the deceased in his house. The trial Court convicted the accused on his statement made under Section 342, Cr.P.C. It is settled law that if the statement of the accused was to be made basis for his conviction, the same should be accepted or rejected as a whole. Reliance is safely placed on the case of Talat Mehmood v. Muhammad Ilyas (2002 SCM R 1889).
12.Adverting to the only question as to whether the appellant had seen the deceased in a compromising position with his sister, the appellant has not produced any evidence in that respect. But it is an admitted position that it was his first version which was found correct by the investigating agency. The fact that the deceased had been fired at in the house of the appellant suggests that Muhammad Akram accused certainly have seen the deceased with his sister in his house resulting the cause of sudden provocation. There is no independent evidence on the record that he had actually seen him in compromising position with his sister as he had not fired at her sister. As admittedly, the deceased was done to death in the house of the appellant and a firearm Carbine was recovered from the Dub of the deceased, the circumstances clearly suggest tnat the appellant acted under grave and sudden provocation after seeing the deceased in his house with his sister. Under the peculiar circumstances of the case, Muhammad Akram appellant could be convicted under Section 302 (c) PPC instead of Section 302 (b) PPC as held by the trial Court.
13. In view of the above, the conviction of appellant Muhammad Akram is converted into under Section 302 (c) PPC and sentenced to seven years rigorous imprisonment. The amount of compensation Rs. 50,000/- payable to the legal heirs of the deceased awarded by the trial Court would remain intact. The benefit of Section 382-B Cr.P.C. is also extended to the appellant. With the above modification, this appeal is dismissed.