PLJ 2010 Cr.C. (
[
Present: Pervaiz Inayat Malik, J.
MUHAMMAD BAKHSH alias LANGRA and another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 726 of 2005, heard on 19.6.2009.
----Ss. 302(c) & 34--Conviction and sentence recorded against accused by trial Court--Impulse of grave and sudden provocation--Section 302(b), PPC was altered to S. 302(c), PPC--Discrepancies in the evidence of prosecution--Committed murder of the deceased under impulse of grave and sudden provocation--Held: Trial Court did not base his judgment, conviction and sentence while believing the story of prosecution--Conviction awarded to the accused u/S. 302(b), PPC was altered to S. 302(c), PPC and maintained--Both of them acted under impulse of grave and sudden provocation with modification in sentence, appeal was dismissed. [Pp. 291 & 292] A & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Statement of accused u/S. 342, Cr.P.C. has to be discarded or believed in toto. [P. 291] B
M/s. Prince Sheikh Rehan Iftikhar and Syed Badar Raza Gillani, Advocates appointed as defence counsels on State expense for Appellants.
Mian Bashir Ahmad Bhatti, Deputy Prosecutor General for State.
Date of hearing: 19.6.2009.
Judgment
The appellants Muhammad Bakhsh alias Langra and Muhammad Akhtar were tried by the learned Additional Sessions Judge, Layyah in case FIR No. 132/2005, under Sections 302/148/149 PPC, Police Station Chowk Azam, District Layyah and vide judgment dated 28.11.2005, both the appellants were convicted under Sections 302(b)/34 PPC and sentenced to imprisonment for life with compensation of Rs. 1,00,000/- (rupees one lac) each payable to the legal heirs of the deceased, in default whereof, each of the appellant was to suffer SI for six months, however, they were extended benefit of Section 382-B Cr.P.C.
2. The prosecution evidence comprised of ocular account, motive, recoveries and medical evidence. The motive as put forth by the prosecution is that Muhammad Bux Langra appellant suspected illicit relations of Zafar Mahmood deceased with his wife Mst. Naziran and due to that annoyance appellant Muhammad Bux Langra in consultation with co-accused and in furtherance of their common intention committed Qatl-e-Amd of Zafar Mahmood deceased by strangulation.
3. It is inter alia contended that the prosecution could not prove case against the appellants and that it is the case of the prosecution itself that appellant Muhammad Bux committed the murder of the deceased Zafar Iqbal under impulse of grave and sudden provocation and in such circumstances, no conviction at all could be awarded to him. Adds that the presence of prosecution witnesses at the place of occurrence is highly doubtful and the prosecution story is highly improbable and that the prosecution has hopelessly failed to prove its case beyond any shadow of doubt.
4. Conversely, learned Deputy Prosecutor General with vehemence opposes the submissions made at bar by the learned counsel for the appellants and submits that the prosecution has successfully proved its case beyond any shadow of reasonable doubt and that the arguments advanced by learned counsels for the appellants could be considered as mitigating circumstances in reduction of sentence, adds that the learned trial Court has already by taking lenient view has not awarded maximum penalty of death to the appellants.
4-A. Arguments heard. Record perused.
5. I find that the prosecution story as put forth has been disbelieved by the learned trial Court. Same was the position with motive part. The learned trial Court has observed that the prosecution has come forward with a wavering motive. I also find discrepancies in the evidence of the prosecution. The appellant Muhammad Bux Langra in his statement recorded under Section 342 Cr.P.C. has also come out with a specific plea that he committed murder of the deceased under the impulse of grave and sudden provocation. I also find that the learned trial Court did not base his judgment, conviction and sentence while believing the story of the prosecution, in fact primarily the defence version was taken into consideration. By now it is well settled law that statement of accused under Section 342 Cr.P.C. has to be discarded or believed in toto. The observations made by learned trial Court in last lines of para 31 of the impugned judgment being vitally important is reproduced hereunder:--
"I am clear in my mind to hold that Muhammad Bakhsh Langra and Muhammad Akhtar both the accused have committed Qatl-e-Amd of deceased Zaffar Mehmood for the reasons that the deceased entered into house of Muhammad Bakhsh Langra for committing zina harram with Mst. Nazeeran wife of Muhammad Baksh Langra".
These observations of the learned trial Court are borne out from the record. It may be observed that Muhammad Akhtar co-appellant is real son of Muhammad Bux.
6. The minute examination of the record makes me to believe that the prosecution has failed to prove its case by producing independent evidence. However, in view of admission of the appellants themselves which is being believed in toto, the conviction awarded to the appellants Muhammad Bux Langra and Muhammad Akhtar under Section 302(b) PPC is altered to Section 302(c) PPC and maintained. Admittedly both of them acted under impulse of grave and sudden provocation. As far as quantum of sentence is concerned, keeping in view the mitigating circumstances, the same is reduced to one which each of them has already undergone. While respectfully following the law laid down by the Hon'ble Supreme Court of Pakistan in PLD 1982 SC 294, the penalty of compensation is also set aside. They, therefore, shall be released forthwith if not required in any other case.
With this modification in sentence, this appeal stands dismissed.
(R.A.) Appeal dismissed.