PLJ 2009 SC 1030

[Appellate Jurisdiction]

Present: Mian Shakirullah Jan, Muhammad Moosa Khan Leghari & Muhammad Sair Ali, JJ.

KARIM NAWAZ--Appellant

versus

STATE--Respondent

Crl. Appeal No. 228 of 2006, decided on 23.4.2009.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan dated 27.1.2006 passed in Crl. A.No. 605 of 2000 and M.R. No. 05 of 2005).

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 302(c)--Conviction and sentence recorded against accused by trial Court--High Court converted the sentence from

Ss. 302(b), to S. 302(c) of PPC and reduced the sentence of accused--Challenge to--Caused of murder and causing injuries to ladies including deceased was admitted--Plea of grave and sudden provocation causing the murder of deceased was accepted--Validity--Plea of self defence raised against the ladies who according to appellant himself were armed with sotas was neither plausible nor comprehensible to justify the accused to resort to direct firing--Appeal was dismissed. [P. 1033] A

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 302(c)--Conviction and sentence recorded against accused by trial Court--High Court converted the sentence from

S. 302(b) to S. 302(c), PPC with regard to charge of murder and reduced the sentence of the accused--Blood stained earth was taken from the house of deceased--Medical evidence including postmortem report was supported the case of prosecution--Held: When the appellant himself admitted to have fired upon deceased, though claiming to have done so in self defence--After killing deceased, he by scalling over the wall erected in between his house and that of the deceased which was situated adjacent to the house of the appellant, he reached in Courtyard and started indiscriminate firing upon the ladies, which resulted in death of lady and injuries to three others--High Court has rightly observed that appellant caused the death and also injured three innocent women without any rhyme or reason--Appeal was dismissed. [P. 1033] B

Mr. Altaf Ibrahim Qureshi, ASC for Appellant.

Syed Amanat Ali Bukhari, D.P.G., Pb. for State.

Date of hearing: 23.4.2009.

Judgment

Muhammad Moosa Khan Leghari, J.--This appeal is directed against the judgment dated 27.01.2006 passed by Lahore High Court, Multan Bench, Multan.

2. The appellant alongwith acquitted accused Mst. Rukhsana Bibi was sent up to stand trial in a case F.I.R. No. 164 of 1999, Police Station, Bohar Gate, Multan, registered on 25.08.1999 on the complaint of Muhammad Akram. The appellant alongwith the acquitted accused was charged for causing Qatl-e-Amd of Muhammad Bilal and Mst. Rabia Bibi on 28.08.1999 and attempting to cause murder of Mst. Tasleem Bibi, Mst. Eram Bibi and Mst. Hina Bibi by causing injuries, besides committing the trespass of their house.

3. In order to prove the case, prosecution examined 14 witnesses which included the complainant, namely, P.W. Muhammad Akram, Intizar Hussain and Mst. Tasleem Bibi and the two medical Officers.

4. In his statement recorded under Section 342 Cr.P.C. the appellant stated that on the fateful day when he reached his house at midnight he was attracted by the commotion raised by his wife in the Baittak. He broke open the door and noticing the presence of deceased Muhammad Bilal he fell provoked and losing self control fired upon deceased Muhammad Bilal with the pistol lying there. He further stated that after hearing the cries Mst. Rabia Bibi and other women also appeared there duly armed with sota and wanted to kill him. Thus exercising the right of self defence he fired upon them. The appellant went on to say that he himself appeared before the police, produced his licensed, pistol and narrated the true facts to the police.

5. On conclusion of trial the appellant was convicted in the following terms:--

(i) Under Section 302 (b) PPC death on too counts for committing the murder of Bilal and Mst. Rabia Bibi with a direction to pay Rs. 1,00,000/- each as compensation, in default to undergo R.I. for 6 months.

(ii) Under Section 324 PPC imprisonment R.I. for 7 years and payment of Rs.20,000/- Daman on account of three counts for attempting to commit Qatl-e-Amd of Mst. Tasleem Bibi, Mst. Erum Bibi and Mst. Hina Bibi.

(iii) Under Section 449 PPC R.I. for five years with a fine of Rs.5,000/- each in default thereof to suffer S.I. for two months.

6. On appeal learned Lahore High Court, Multan Bench while accepting the defence plea of grave and sudden provocation raised by the appellant converted the sentence from 302 (b) PPC to 302 (c) PPC with regard to charge of murder of Muhammad Bilal and reduced the sentence of the appellant, to the sentence already undergone by him. However, the sentence of death awarded to the appellant on the charge of causing murder of Mst. Rabia Bibi was upheld. The sentence for causing injuries to Mst. Tasleem Bibi as awarded by the trial Court was also maintained.

7. Vide order dated 13.03.2006, leave was granted to consider the question as to whether in the circumstances of the case lesser penalty was warranted.

8. Learned counsel for the appellant contended that the motive as setup by the prosecution was not proved and that the complainant party was guilty of concealing the facts about the injuries sustained by the appellant.

9. Conversely, learned Deputy Prosecutor General, Punjab supported the impugned judgment, arguing that the appellant did not deny the murders, and the plea of self defence against the murder of Mst. Rabia Bibi was an after thought.

10. We have given our anxious consideration to the arguments and have examined the material placed on record. The perusal of the statement made by the appellant under Section 342 Cr.P.C. adequately reveals that he has not denied the commission of offence. He admitted having caused the murder of Muhammad Bilal and causing injuries to the ladies including deceased Mst. Rabia Bibi. He further stated that he acted under grave and sudden provocation and in self, defence. The plea of grave and sudden provocation causing the murder of deceased Muhammad Bilal was thus accepted by Lahore High Court, Multan Bench and the sentence awarded to the appellant for causing the murder of Muhammad Bilal was reduced by altering the conviction. However, the plea of self defence raised against the ladies who according to the appellant himself were armed with sotas is neither plausible nor comprehensible to justify the appellant to resort to direct firing. It was observed by learned Lahore High Court that the second part of occurrence in which deceased Mst. Rabia Bibi lost her life and Mst. Tasleem Bibi, Mst. Erum Bibi and Mst. Hina Bibi sustained injuries took place in their house i.e. the house of the complainant party. The bloodstained earth was also taken from the house of the deceased. Medical evidence including the postmortem report was supportive of the case of the prosecution. So far as the injuries sustained by the appellant are concerned, would not in any way, constitute a mitigating circumstance in the peculiar circumstances of the case to award lesser penalty. Particularly when the appellant himself admitted to have fired upon the deceased, though claiming to have done so in self-defence. Indeed the appellant acted in a desparate manner. After killing Muhammad Bilal, he by scaling over the wall erected in between his house and that of the deceased which was situated adjacent to the house of the appellant, he reached in the Courtyard and started indiscriminate firing upon the ladies, which resulted in death of Mst. Rabia Bibi and injuries to three others.

11. The Lahore High Court has rightly observed that the appellant caused the death of Mst. Rabia Bibi and also injured three innocent women without any rhyme or reason.

12. We are unable to persuade ourselves to differ from the view taken by learned Lahore High Court, Multan Bench. There appear no cogently plausible circumstances to mitigate the sentence. The appeal being without merit is, therefore, dismissed. Consequently, the impugned judgment of Lahore High Court is upheld.

(R.A.) Appeal dismissed.