Through this appeal u/S. 410, Cr.P.C., appellant Mushtaq Ahmad has challenged the vires of judgment dated 13.01.2016 in case FIR No, 506 dated 04.10.2012, in respect of offences under Sections 302 & 499, PPC, registered at Police Station, Basti Malook , Multan passed by a learned Additional Sessions Judge, Multan whereby he has been convicted and sentenced as under:-- Under Section 302(b), PPC Rigorous imprisonment for life and compensation of Rs, 3,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in case of default, undergo four months S.I Benefit of Section 382-B, Cr.P.C. was extended to the appellant.
2. The prosecution story unfolded throu gh F.I.R (Ex.P A) lodged on the written complaint (Ex.P A/1) based of Muhammad Mansha (PW-6) is to the effect, that on 03.10.2012, his brothers namely Muhammad Sajid (deceased), Ghulam Abbas (PW-7) (eye-witness) alongwith Muhammad Akmal and Muhammad Akhtar (not produced) were sitting in his Baithak when at 09:00 p.m, after he heard some commotion, he saw that Mushtaq Ahmad, (appellant), highly intoxicated , after coming on his motorcycle, was hurling abuses, Muhammad Sajid restrained him to do so whereupon he made straight fire with his pistol, piercing through his neck, he alongwith Ghulam Abbas and Mukhtar Hussain tried to nab the appellant, who while brandishing and threatening that if they tried to come near, will also be done to death, fled away .
The motive behind the occurrence was stated to be an altercation taken place few days ago between the deceased and the appellant.
3. The registration of the case after its usual investigation encapsulated into report under Section 173, Cr.P.C., eventuating into its submission before the Court, which on taking cognizance , after supplying copies of the incriminating statements to the appellant, charged sheeted him and upon his denial and professing innocence and claiming trial, directed the prosecution to produce evidence for proving the charge.
4. The prosecution has produced as many as 12-witnesses besides tendering, in evidence, report of Serologist (Ex.PO).
5. Dr. Asif Jameel Ansari, Assistant Professor Forensic Medical Department, Nishta r Medical Hospital, Multan (PW- 3) stated that on 08.10.2012, he medically examined injured Muhammad Sajid brought under the surveillance of Hashim 4166/C Police Station Basti Malook, Multan. The injured was admitted to hospital.
6. Dr. Muhammad Saeed (PW-4) provided medical treatment to the injured (deceased). He also tendered in evidence W ard Report as Ex. P .C.
7. Dr. Habib-ur-Reman, Deputy District Health Officer, Head Quarter Multan (PW-5), on the demise of the injured, conducted the post-mortem on his dead body on 21.10.2012 and observed the following injuries: "There is stitched wound 2-1/2 X 1 cm on the base of neck. Circular wound 1-1/2 X 1 cm on the back of chest. 06 cm from the base of the neck and 2-1/2 from the right scapula. He was wearing while shirt with black lining.
Sharwar was gray in colour . There was no blood-stain on the clothes."
There was stich wound on the front of the base of the neck, 21/2 x 1 cm. On dissection , hyoid and thyroid/arytenoids cartilages were found intact but the trachea ruptured. Scalp, skull and memoranes were healthy brain congested and vertebrae was not open, Thorax walls, sternum, cartilages and ribs were healthy , pleurae congested, larynx healthy and trachea ruptured, right lung congested and ruptured in upper zone, Left lung congested, pericardium congested and full of clotted blood, blood vessels, no aorta ruptured nor major vessels ruptured but minor blood vessels ruptured on the passage of built.
He did not find any abnormality except liver, which was found to be congested and kidney was healthy . Upper and lower limbs nothing was found abnormal.
In his opinion, Injury No, 1 led to cause death due to rupture of the trachea and lungs due to fire-arm and patient goes to cardio pulmonary arrest.
Probable time between injury and death was 18-days whereas between death and post-mortem examination was eight hours.
8. The ocular account in this case has been furnished by Muhammad Mansha/complainant (PW-6) and eye-witness Ghulam Abbas (PW-7). Husnain Abbas/Investigation Officer has appeared as PW-11. Rest of the witnesses are not of much importance, therefore, in order to avoid unnecessary account, the detail of the same is not being given.
Needless to reiterate the exhibits.
9. When examined under Section 342, Cr.P.C., the appellant denied every bit of incriminating material he was confronted with, and while replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he replied as follows:-- "This is a false case. I was dealing in the sale and purchase of cotton along-with shareholders, Shabbir Hussain and Muhammad Ashraf and we purchased cotton from Muhammad Sajid deceased. They went to the Kanda (scale) for weighing the cotton purchased by us. Prior to that, I alongwith my partners Ashraf and Shabbir Hussain had purchased twice cotton from Muhammad Sajid deceased Muhammad Sajid became friends to each others. On the day of occurrence, Muhammad Sajid deceased persuaded me to have meal with him on his residence in the evening and thus at that time, I-Mushtaq Ahmad, Muhammad Akhtar , Muhammad Akmal and Muhammad Sajid deceased were sitting in the baithak when the occurrence took place. The Investigation Officer his cross- examination has also deposed that he had not written any police zimni with regard to presence of both the witnesses Ghulam Abbas and Mukhtar Hussain in the baithak. Their presence at the time of occurrence being present in the baithak was not proved. The Investigating Officer neither interr ogated Muhammad Akmal and Muhammad Akhtar nor he had recorded their statements u/S. 161, Cr.P.C. which shows that the investigation has not been conducted honestly . The complainant has also suppressed the actual facts and story in his application Ex.PA/1. Actually , I-Mushtaq Ahmed, deceased -Muhammad Sajid, Muhammad Akhtar and Muhammad Akmal ' took liquor while sitting in the baithak on the invitation of deceased Muhammad Sajid and became over drowsy .
During this process, I-Mushtaq Ahmad placed my pistol in between all the persons which was also seen by Muhammad Sajid deceased and above mentioned persons but it could not be transpired that who made the fire among us at that time. The alleged witnesses who were real brothers of the deceased were not present at the place of occurrence nor they knew nothing with regard to the occurrence and in order to strengthen the prosecution case they were falsely shown as eye-witnesses by the 1.0., which fact has been proved during the course of investigation that they were neither prese nt nor saw the occurrence. It was also proved that the occurrence took place when all were sitting but it could not be proved that fire was made by me or somebody else. It is also in the evidence that empty was allegedly secured by the police on 04.10.2012 and pistol .9-MM was allegedly recovered after my arrest. Till the moment, I was not arrested, empty was not sent to Forensic Science Laboratory , Lahore. In order to take favourable report after my arrest, by making fire by the police, it was sent to the Forensic Science Laboratory . I am innocent. The case is false."
10. Learned trial Court, on conclusion of the trial, proceeded to convict the appellant as aforesaid. Hence, the appeal.
11. Learned counsels for the appellant, with reference to findings contained in Paragraph 10 & 11 of the impugned judgment, submits that so called recovery and motive have not been believed by the learned trial Court. He has, apart from referring the FIR (Ex.P A) and certain portion of evidence of the eye-witnesses, had whole heartedly read the evidence of the Investigation Officer and statement under Section 342, Cr.P.C. of the appellant to contend that although in this case, the time and place of occurrence are not disputed by the defence but the mode of occurrence is seriously disputed. He has submitted that if the entire material of the case is considered in its totality , the conviction of the appellant under Section 302(b), PPC is not sustainable and his case squarely falls within the ambit of Section / 302(c), PPC. He has relied upon the judgments reported as Zeeshan (a) Shani vs. The State (PLD 2017 Supreme Court 164). Muhammad Asif vs. Muhammad Akhtar (2016 SCMR 2035 ), Azmat Ullah vs. The Sate ( 2014 SCMR 1 178), & Azhar Iqbal vs. The State (2013 SCMR 383 ).
12. On the other hand, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant, while relying upon Tariq Ahmad vs. The State (2004 SCMR 957) & Muhammad Ramzan vs. The State (2008 YLR 1556 ) has contended that since the appellant has taken a specific plea of being under intoxication at the time of occurrence, onus under the law, lay upon him for proving his plea, which has not been discharged by him, hence not entitled to any relief.
13. Arguments heard. Record perused.
14. Scanning of record reveals that no direct evidence has been produced by the prosecution. to establish the motive part of the occurrence. At the most, testimony of PW-6 & PW-7 for establishing the motive can be said to be evidence of hearsay which is not admissible in evidence. So far as the recovery of weapon of offence i,e, .9-MM licensed pistol (P-5) alongwith three cartridges (P-1 to 1/3) produced through father of the appellant along with License No, 1974, taken into possession vide recovery memo. Ex. PL is concerned, the same is not proved as the empty was taken into possession vide Ex.PH had not matched with the said weapon, hence of no importance.
15. Now, I undertake the judicious exercise of analyzing rest of the prosecution evidence, i,e, PW-6 & 7, the witnesses duly corroborated by PW-3 to 5 i,e, the medical evidence, the trend of cross-examination, evidence of the investigating of ficer and the plead taken by the. appellant in his statement under Section 342, Cr .P..C.
16. After examining the above referred material available on record, this Court is of the view that in was the complainant who himself, while recording his statement under Section 154, Cr.P.C. (Ex.P A) has stated that "at about 9:00 p.m., at once, on hearing the noise, when he came in the baithak, he saw Mushtaq Ahmad s/o Muhammad Bashir , who came on his own motorcycle, in a drunken position, was abusing and when his brother Muhammad Sajid forbade him, he with his pistol, fired at Muhammad Sajid and the built piercing his neck crossed the same."
17. While facing the test of cross-examination, the complainant (PW-6); also denied the friendship inter-se the deceased and the appellant and stated that "It is incorrect to suggest that Mushtaq and Sajid both were friends of each other and accused had purchased the cotton from him twice and also made the payment--I do not know if I had mentioned that Mushtaq accused was over-drinking and due to alcohol. He was just acting like over-drinkered."
18. The defence has trigged happily suggested that "it is incorrect that it also transpired in the investigation that my deceased brother was habitual drinkered--I did not submit any application against the investigating officer that he had wrongly held that the accused and the deceased and othe rs had drunk alcohol and they were under the influence of alcohol and the fire was suddenly made by the deceased himself hitting his neck."
19. The browsing of statement of PW-7, who also narrated about the occurrence, indicates that he was also suggested that the appellant was under the influence of alcohol at the time of maki ng fire. The Investigating Officer, whose findings have not been challenged by the complainant, as referred above, has deposed as under: "Taking a dinner was not brought in my notice where the occurrence took place and before taking dinner they started drinking alcohol."
20. It is important to mention here that date, time and place of occurrence are undisputed. It is admitted from both sides that the appellant was under the influence of intoxication at the time of occurrence. Now, the question for determination by this Court would be, as to whether the case of the appellant, for the purpose of his conviction and sentence, will come within the purview of Section 302(b), PPC or 302(c), PPC. For convenience of reference, Sections 85 & 86 of Pakistan Penal Code, 1908 which specifically deal with the issue under discussion, are reproduced as under .- "85. Act of a person incapable of Judgm ent by reason of intoxication caused against his will.-- Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
21. Keeping in view the verbatim of aforesaid section, plea of the appellant would place him under burden of proving that he had done the act complained of being incapable of knowing the nature of the act being under the influence of intoxication or that he is doing something which is either wrong or contrary to law provided that the thing which intoxicated him was administered to him without his knowledge or against his will. It can be concluded that under this section, an offence committed by a person, who at the time of occurrence, is incapable of knowing the nature of the act by reason of intoxication, is excused provided that the intoxication has been administered to him without his knowledge or against his will.
86. Offence, requiring a particular intent or knowledge committed by one who is intoxicated.-- In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who dose the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
22. The afore-quoted Sections apply only to cases of intoxication and do not cover a case where what is alleged is an inherent defect or infirmity of mind. This provision also deals with "state of intoxication" which renders a person incapable of knowing the nature of the act in question or that he is doing what is either wrong or contrary to law what he is doing.
23. The close analysis of this section indicates that a person complained against or who has done some particular criminal act under intoxication, will he dealt as if he had the same knowle dge as he would have had, if he had not been intoxicated unless the thing which intoxicated him was administered to him without his knowledge or will.
24. According to Section 85, PPC, nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will. This provision plainly defines that in case, an offence is committed by a person who is under intoxication and unable to understand its nature and consequences, can seek his absolvement of the liability of the offence, if he discharges the heavy burden that his being under intoxication, was not result of his voluntary intoxication, rather the same was administered to him without his knowledge or against his will, whereas the provision of Section 86, PPC has a distinction as under this provision, it is clarified the consequences that in case an accused foils in discharging the onus to prove upon him that, at the time of commission of offence, though he was under intoxication but the same was without his knowledge and against his will. It is, thus, clear that an act having been done under voluntarily intoxication is not covered under these provisions of law for giving any benefit to an 'accused unless the heavy burden is shed by the accused that he was under the influence of intoxication but without his knowledge and against his will.
25. From the aforesaid discussion, it can clearly be inferred that, at the time of the occurrence, the appellant was under the influence of intoxication. In order to extract benefit and advantage of the same, the appellant had to establish that he was administered the intoxicant against his will and without his knowledge which rendered him incapable to understand the consequences of act committed by him. There is no evidence on record to show that the appellant was administered the intoxicant without his knowledge and will. Had it been the situation that the appellant could have proved on record through some evidence that he was administrated the intoxicant by someone against his will and wishes under the circumstances beyond his control, surely he could have earned full benefit encapsulated in Section 85, PPC.
26. In view of above discussion, I am of the firm view that the prosecution has been able to prove the charge against the appellant beyond reasonable shadow of doubt. The appellant has already been extended the benefit of mitigating circumstances by the learned trial Court with regard to the quantum of sentence. The conviction and sentence of the appellant awarded by the trial Court is quite justified and has been passed after proper appreciation the evidence available on record. I have no legitimate exception to differ with the conclusion arrived at by the learned trial Court in this regard and the judgment impugned herein calls for no interference by this Court.
27. For what has been discussed above, the appeal in hand is devoid of any force, the same stands dismissed.