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Criminal Appeal No. 122 of 1983, decided on 25th March, 1986.

(On appeal from the judgment and order of the Lahore High Court, dated 12th August 1981, Criminal Appeal No. 194 of 1980).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted on ground that defence version which was supported by injuries on person of acquitted accused and another, had not been given due weight; that injuries on nose of a prosecution witness contradicted prosecution version that he had been hit with pistol shot; that even if prosecution evidence was believed it was a fit case for awarding lesser sentence because murder in case was not preplanned and had arisen on a sudden flare up between parties who confronted each other per chance.

‑‑‑S. 302‑‑Occurrence taking place near residence of both parties and pistol shot was fired by accused at deceased causing him fatal injury‑Prosecution evidence, in this sequence, consistent with other attending circumstances‑‑Defence version very weak and unconvincing‑‑No ground existing for complainant to falsely implicate accused‑‑Encounter occurring between parties per chance over a trivial matter wherein accused used firearms against a person who was not equally matched‑‑Conviction maintained.

‑‑‑S. 302‑‑Sentence‑‑Evidence showing that prosecution witness sustained incised wound between her thumb and index finger and two abrasions while acquitted accused sustained an incised injury at back of his head in an encounter between parties over an electric connection‑‑Parties had no previous deep‑rooted enmity‑‑Sentence of death altered to imprisonment for life.

M.B. Zaman, Senior Advocate Supreme Court and Ghulam Dastgir Advocate‑on‑Record for Appellant.

Ch. Ghulam Ahmad, Advocate Supreme Court for A.‑G. Punjab and K.E. Bhatti, Advocate‑on‑Record for the State.

Munir Ahmad Bhatti, Advocate Supreme Court and Mahmud A. Qureshi, Advocate‑on‑Record for the Complainant.

Date of hearing: 25th March, 1986.

‑‑Leave was granted by this Court, per order, dated 12‑3‑1983 on the grounds that the defence version which is supported by the injuries on the person of Muhammad Ashraf acquitted /accused and Mst. Shamim Akhtar had not been given due weight; that injuries on the nose of Nawab Din P.W. 11 contradicts the prosecution version that he had been hit with the pistol shot; that even if the prosecution evidence is believed this was a fit case for awarding lesser sentence because it was not pre‑planned murder and had arisen on a sudden flare up between the parties who confronted each other per chance.

2. According to the complainant Nawab Din (P.W. 11) on 11‑7‑1975 at about 4 p.m. he alongwith his nephew Muhammad Rafiq deceased, were proceeding towards their house from their Dera; when they reached Shahkot Road Muhammad Ashraf, Muhammad Aslam and Nur Hussain accused appeared from the opposite direction and in a bad temper Muhammad Aslam inquired from him (complainant) as to why he had taken the electric connection from the pole and why he (Aslam) should not snap the connection; whereupon the complainant replied that he had made proper application to the department concerned and secured the electric connection, therefore, no‑one can cut off the same; on this Muhammad Aslam abused him and he returned the abuses, whereupon Muhammad Ashraf acquitted/ accused caught hold of Muhammad Rafiq deceased and threw him on the ground. Muhammad Aslam accused appellant took out a pistol from his trouser fold and fired three shots at Muhammad Rafiq and one of the shots hit Rafiq on his head; that Nur Hussain acquitted/ accused also fired with a pistol which hit him (complainant) on his nose; that Roshan Din and Abdul Sattar were attracted to the spot and saw the accused firing; that Muhammad Rafiq succumbed to his injuries on the spot; that he left for informing the police when he met Muhammad Munir Ahmad S.H.O. (P.W. 13) near Chak No. 5 and lodged the report Exh. P.H.

3. The Investigating Officer Muhammad Munir Ahmad (P.W. 13), after recording the report, proceeded to the spot, inspected the same, prepared the inquest report Exh. P. N. and injury statement Exh. P.O. : arrested Muhammad Aslam accused/ appellant and Nur Hussain the acquitted/ accused at midnight, and sent the dead body for post‑mortem examination; that Muhammad Aslam, while in custody, led to the recovery of a pistol.,

4. Dr. Abdul Razzaq performed autopsy on the dead body of Muhammad Rafiq deceased. As the doctor was not available at the trial, therefore, Sardar Ali, Dispenser (P.W. 4) was examined who stated that Dr. Abdul Razzaq was in Libya and there was no likelihood of his return in the near future. He identified the handwriting and signatures of Dr. Abdul Razzaq on the post‑mortem report and he also proved the skiagram Exh. P.D.; similarly he identified the handwriting and signatures of Dr. Abdul Razzaq on the medico‑legal report Exh. P.E. of Nawab Din and on the injury statement of Muhammad Ashraf son of Faqir Muhammad.

5. Muhammad Aslam accused /appellant when examined by the trial Court, denied the charge and stated that as a police constable he was posted at the Police Station, Saddar, Sheikhupura and was not present on the spot at the time of occurrence, he went to the village next day and learned about the occurrence, and he surrendered. Nur Hussain the acquitted /accused also repudiated the charge. However, Muhammad Ashraf stated that true facts have been concealed by the complainant; that in fact, on the day of occurrence his sister Mst. Shamim Akhtar went out to answer the call of nature in the nearby abandoned School premises where Muhammad Rafiq deceased followed her and over‑powered Mst. Shamim Akhtar who raised hue and cry which attracted him and he saw that Rafiq deceased was holding his sister who was resisting his advances; that when he tried to intervene the deceased took out a knife and injured Mst. Shamim Akhtar and also attacked him. On this sudden provocation and in order to save the life and honour of his sister, he fired a single pistol shot at the deceased.

6. The learned Additional Sessions Judge, Sheikhupura acquitted Nur Hussain and Muhammad Ashraf accused holding:‑

"I have already held that the prosecution in this case has failed to prove the motive and pre‑meditation. The accused would, therefore, be responsible only for the act which has been committed by them. The prosecution has not been able to establish that the injury on the nose of Nawab Din was the result of fire‑arm allegedly used by Noor Hussain. The case of the prosecution is, therefore, doubtful against Noor Hussain and so against Muhammad Ashraf to whom proverbial Japha has been attributed by the prosecution, What was the need of Japha when the accused were armed with fire‑arm, has not been explained by the prosecution. In view of the above discussion I conclude that the prosecution has not been able to prove its case against Muhammad Ashref and Noor Hussain beyond doubt. They are, therefore, given the benefit of doubt and acquitted..."

As regards Muhammad Aslam accused /appellant the learned trial Judge observed, in his judgment, dated 3‑2‑1980, that a clear cut case under section 302, P.P.C. is established against. Weapon used by him during the occurrence and the seat of injury clearly indicate that the accused/ appellant wanted to commit the murder of Muhammad Rafiq. Regarding the punishment the learned trial Court held that Muhammad Aslam accused /appellant was not entitled to any leniency as he used a pistol against an unarmed person, and, therefore, convicted Muhammad Aslam under section 302, P.P.C. and sentenced him to death and a fine of Rs.5,000, half of which, if recovered, was ordered to be paid to the heirs of the deceased.

7. Appeal by Muhammad Aslam accused and Murder Reference were heard together by the learned High Court Judges who, vide the impugned judgment, dated 12‑8‑1981 dismissed the appeal and confirmed the death sentence of the accused /appellant, observing as follows:‑

"The main evidence which is to be scanned is the testimony of the two eye‑witnesses as well as the medical evidence and of course all this is to be taken into consideration in juxtaposition with the statement of acquitted accused Muhammad Ashraf. So far as the recovery is concerned, we are not impressed by this evidence which is accordingly rejected. Nawab Din was injured but according to the learned defence counsel, the injuries on his person could not be caused by a fire‑arm. They were by a blunt weapon, whereas the prosecution insisted that those had been caused by a fire‑arm. We shall examine this aspect later on in more detail, but the first question to be determined V the presence of the eye‑witnesses at the spot, whether they saw the occurrence and told the truth. We are not inclined to reject their testimony on the ground of their relationship with the deceased unless we are of the view that it is not trustworthy."

8. Learned counsel for the appellant contended that the prosecution evidence is at variance with the medical evidence inasmuch as the injury on Nawab Din has not been established to have been caused with fire‑arm; that the defence version is more probable and appeals to common sense; that Mst. Shamim Akhtar, sister of Muhammad Ashraf acquitted/ accused was assaulted by the deceased and in order to save her honour and life Muhammad Ashraf intervened and caused injury to the deceased, having full right of defence of person and family honour; that the motive has also not been established by the prosecution that Muhammad Aslam P.W. 7 a Line‑man of WAPDA was examined in order to prove the dispute which took place between Nawab Din and Muhammad Aslam accused/ appellant and this witness expressed complete ignorance about any dispute regarding the electric connection between the complainant and the accused /appellant.

9. We have examined the contentions raised by the learned counsel and would hardly agree with him. The occurrence took place near the residence of both the parties and the pistol shot was fired by the accused /appellant at the deceased causing him the fatal injury. In this sequence the prosecution evidence is consistent with the other attending circumstances. Defence version put forward by Muhammad Ashraf acquitted /accused is very weak, and unconvincing. Rather he has put up the defence which has not only brought shame to his family by involving his sister in the case in a manner to save himself and his co‑accused from the punishment which could be visited in such like cases. We are also of the view that there is no reason for the complainant Nawab Din to falsely implicate the accused /appellant in the case where iris nephew Muhammad Rafiq was murdered and that it was, in fact, a chance encounter between the parties who fell over a trivial matter of electric connection, during which the accused/ appellant used fire‑arm against a person who was not equally matched. However, the medical evidence shows that Mst. Shamim Akhtar sustained incised wound between her thumb and index finger and two abrasions while Muhammad Ashraf the acquitted /accused sustained an incised injury at the back of his head measuring 1‑1/4" x 1/4". Taking into consideration the injuries sustained by the acquitted /accused Muhammad Ashraf and Mst. Shamim Akhtar and the fact that the parties had no other previous deep rooted enmity we consider that ends of justice would meet if sentence of death is altered to imprisonment for life under section 302, P.P.C. and a fine of rupees ten thousand, or in default, two years R.I. ; and the amount of fine, if realized, be paid to the heirs of the deceased Muhammad Rafiq. We order accordingly. The accused /appellant is also given benefit of section 382‑B, Cr. P. C . With this alteration the appeal is dismissed.

M. Y. H . Appeal partly accepted:

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