PLJ 2024 Cr.C. (Note) 15
[Lahore High Court, Multan Bench]
Present:
Sadiq Mahmud Khurram and Muhammad Amjad
Rafiq, JJ.
MUHAMMAD
WASEEM etc.--Appellants
versus
STATE
etc.--Respondents
Crl. A. Nos.
42 & 129 of 2017, M.R. No. 19 of 2020,
heard on 11.10.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S.
302(b)(c)--Qatl-i-Amd--Right of self
defence--Grave and sudden provocation--Conviction and sentence--Accused while
armed with pistol--Accused while placing muzzle of his pistol on face of
deceased just right side of nose made a fire shot which exited from back side
of head; he made second fire with pistol which hit on left side of nose of deceased--Bullet
anchored on back side of his head--He did not opt to appear in witness box as
required by section 340(2) Cr.P.C--Day, time, venue of occurrence, presence of
appellant and his having fired at deceased stand admitted--Unscaled and scaled
site plans, respectively prepared by I.O. (PW-9) and Draftsman (PW-6) brought
on record, have attained utmost importance and in both site plans at point No.3
stairs have been shown and in unscaled site-plan it has been clearly mentioned
that this is point where from three fire shots were made, it happens to be
inside his house--There is no evidence of earlier quarrel between parties--Three
crime empties collected at place of occurrence stood matched with weapon
recovered on lead of appellant--No empty of any other pistol was found present
at place of occurrence which could be made basis to support hypothesis that
deceased had also fired at accused, then it is clear with all eventualities
that only appellant had resorted to firing and in this context had exceeded his
right of self defence--Deceased had sustained injury inside house of appellant,
as has been stance of accused in his statement under section 342 Cr.P.C--Facts
disclosed by appellant in his statement under section 342 Cr.P.C are with
little variation close to reality, as compared to prosecution story--Occurrence
took place inside house of appellant and it was deceased who had reached to house
of appellant, he himself was troublemaker and appellant admitted
retaliation--Appellant has exceeded his right of self defence in such
situation, of course his sentence shall be formalized under section 302(c)
PPC--Conviction of appellant under section 302(b) PPC is set-aside and he is
convicted under section 302(C) PPC--Appellant is sentenced to rigorous
imprisonment for fifteen years and compensation.
[Para 2, 4, 6, 7, 8, 10 & 11] A,
B, C, D, E, F, G, H, I, K, L, N
Criminal Procedure Code,
1898 (V of 1898)--
----S. 342--Qanun-e-Shahadat Order, (10 of 1984), Art.
121--Statement of accused, under section 342 Cr.P.C is to be considered in its
entirely without requiring proof under Article 121 of Qanun-e-Shahadat Order,
1984. [Para 10] J
PLD
2020 SC 201 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)(c)--Qatl-i-Amd--Grave and sudden
provocation--Right of self defence--Occurrence takes place at spur of moment,
under grave and sudden provocation or in self defence, offenders cannot be
convicted under section 302(b) PPC, rather their liability shall be within compass
of section 302(c) PPC. [Para 11] M
PLD
2020 SC 523; PLD 2020 SC 419; PLD 1996 SC 274 ref.
M/s. Ch. Umar Hayat and Ch. Zia Ullah, Advocates for
Appellant.
Malik Riaz Ahmad Saghla, Additional Prosecutor General
for State.
Kh. Qaisar Butt, Advocate for Complainant.
Date of hearing: 11.10.2023.
judgment
Muhammad Amjad Rafiq, J.--Muhammad Waseem, Appellant
along with Muhammad Mahmud and Mst. Nafeesa Bano booked in case FIR No.
132 dated 18.10.2014 under Sections 302/34, PPC police station Kup, Multan,
faced trial before learned Additional Sessions Judge, Multan and on conclusion
of trial vide judgment dated 23.12.2016, accused Muhammad Mahmud and Mst.
Nafeesa Bano were acquitted, however, Muhammad Waseem, appellant was
convicted under Section 302(b) PPC and sentenced to death with direction to pay
compensation of Rs 5,00,000/- under Section 544-A Cr.P.C. to the legal heirs of
deceased and in default whereof to further undergo R.I. for one year. Through
Criminal Appeal No. 42 of 2017 Muhammad Waseem (accused/appellant) has assailed
his above conviction/sentence, Criminal Appeal No. 129 of 2017 has been filed
by the complainant (Muhammad Sabir) against the acquittal of Muhammad Mahmud
and Mst. Nafeesa Bano, whereas, Murder Reference No. 19 of 2020 has been
sent by the learned trial Court as required by Section 374 Cr.P.C.. All the
matters are being decided through this single judgment.
2. Briefly the facts of the case as narrated in the FIR (Ex
PA/1) are that on 15.10.2014 at about 12:20 pm. Accused Waseem while armed with
pistol, Mahmud while armed with Churri and their mother Mst. Bano
came out of their house in the street. Mahmud accused grappled with Abdur Rehman,
Waseem accused while placing muzzle of his pistol on the face of Abdul
Rehman just right side of nose made a fire shot which exited from back side of
the head; he made second fire with pistol which hit on left side of nose
of the deceased AbdurRehman, bullet anchored on the back side of his head; he
fell down on the ground. On hearing hue and cry, the complainant along with his
son Bilal, Irfan and wife as well as other people of the locality came out and
witnessed the occurrence. All the accused persons fled away from the place of
occurrence after making aerial firing.
Motive behind the occurrence was that Abdur Rehman deceased forbid
accused Waseem from selling narcotics and one day before the occurrence an
altercation took place between them and due to this grudge accused persons
committed the murder of Abdur Rehman.
3. The investigation of this case was handed-over to Nazir
Ahmad SI, according to his deposition as PW-9, he visited the place of occurrence
and prepared rough site-plan of place of occurrence (Ex. PL); Arshad T/ASI
handed-over to him three empties (P-1/1-3) and blood stained earth which were
taken into possession vide recovery memo (Ex. PB); he proceeded to
Nishtar Hospital, Multan where Abdul Rehman was in coma and was unable to give
statement. On 24 10 2014 accused Waseem was arrested and during personal search
30 bore pistol and eight live bullets were recovered which were taken
into possession vide recovery memo (Ex PD); on 29.10.2014 he sent
parcels of blood stained earth and empties to PFSA; on 15.11.2014 he received
information that Abdul Rehman had died, therefore, he went to the Nishtar
Hospital, Multan where post-mortem was conducted upon the dead body of the
deceased; he also added the offence under Section 302, PPC after the death of
Abdul Rehman. On 03.11.2014 Mst. Nafeesa Bano and Mahmud joined the investigation
of the instant case; on 16.12.2014 pistol and live bullets were also sent
to the office of PFSA, Lahore; on 28.04.2015 he handed over the police file to
the SHO for preparation of report under Section 173 Cr.P.C. Ultimately, challan
was submitted in Court, accused persons were charge sheeted, to which they
pleaded not guilty and claimed to be tried, whereupon, the prosecution produced
nine witnesses; Nazir Ahmad Sub-Inspector (PW-9) who had investigated the case,
Dr. Muhammad Younis Ansari (PW-7), appeared on behalf of Dr. Tariq Nawaz Babar
(late) who had conducted postmortem examination of the deceased; Muhammad Sabir
complainant (PW-1) and Muhammad Bilal (PW-2), furnished the ocular account and
rest of the witnesses are formal in nature.
4. On completion of the prosecution evidence, accused/ appellant
was examined under Section 342, Cr.P.C., during which
the facts arising out of prosecution evidence were put to him but he denied
almost all such facts, while pleading his innocence and false involvement in
the case. The question “Why this case against you and why the PWs have deposed
against yon? was answered by the accused/appellant in
the following words:--
“The case against
me was registered on wrong facts. All the PWs are related interse and are
interested witnesses. The true facts are that half an hour prior to the alleged
occurrence the deceased Abdul Rehman came to my house and an altercation took
place in between me and Abdul Rehman deceased. Abdur Rehman deceased was our tenant
and an account of rent an altercation took place between me and deceased and
people of the locality separated us. After half an hour of the first occurrence
I was present in my house. The deceased while armed with pistol came to my house
from a considerable distance. He abused me and when I was coming down from my
stairs, deceased fired towards me with his pistol but luckily the same hit on
the door of my stairs. I was coming down when deceased again tried to fire upon
me with the intention to kill me at the same time I in the exercise of my self
defence and my property fired towards the deceased. It was proved during the investigation
that occurrence took place in my house. I have committed no offence. My first
version was wrongly recorded by the I.O. I am innocent and with malafide
intention investigation was conducted by the I.O. in league with the
complainant on wrong facts.”
He did not opt to appear in the witness
box as required by Section 340(2), Cr.P.C. whereas opted to produce evidence in
his defence Arshad Iqbal T/ASI appeared in the witness box as DW-1 and he
closed the case for the defence. Finally the impugned judgment was passed, in
the above mentioned terms. Consequently, the matters in hand.
5. We have heard the arguments of learned counsel for the
parties at full length and perused the available record with their able
assistance.
6. After going through the entire record and considering the
overall perspective emanating therefrom, it can safely be said that the day, time,
the venue of occurrence, the presence of accused/appellant and his having fired
at the deceased stand admitted. In this view of the matter, we are faced with two
versions, one set by the prosecution and the other surfacing through the
statement of the accused/appellant under Section 342 Cr.P.C. and now we are to
see as to which of the two versions is correct or at least nearer to truth.
7. The date of occurrence, its time and the place, according to
the prosecution is 15.10.2014 at 12.20 (noon) in the street of Ward
No. 4, Multan, and according to the accused/appellant the date and time was
same but the venue was inside his house. In this context unscalede and scaled
site-plans, respectively prepared by the Investigating Officer (PW-9) and the
Draftsman (PW-6) brought on the record, have attained utmost importance and in
both the site plans at Point No. 3 stairs have been shown and in the unscaled
site-plan it has been clearly mentioned that this is the point where from three
fire shots were made, it happens to be inside his house. It is a fact borne out
from the evidence that deceased being tenant has entered into the property of
owner/accused-appellant but for what purpose no explanation is available in the
record because there is no evidence of earlier quarrel between the parties
therefore, when this fact is shrouded in mystery the statement of
accused/appellant in its entirety reflects that he made fire shots in retaliation
and in his self defence. Whether the deceased was armed at that time is a
question that was to be clarified by the defence but in vain and it is in the
evidence that three crime empties collected at the place of occurrence stood
matched with the weapon recovered on the lead of accused/appellant who claimed
it as his licensed pistol; when no empty of any other pistol was found
present at the place of occurrence which could be made basis to support
hypothesis that deceased had also fired at the accused/appellant, then it is
clear with all eventualities that only accused/appellant had resorted to firing
and in this context had exceeded his right of self defence. Point No. 2 is the
place where from the deceased entered, sustained fire shots and fell down; from
Point No. 1 blood stained earth was collected by the Investigating Officer. All
these points are almost inside the house of the accused/appellant. Though, in
the same site-plan Point No. 4 has been mentioned as the place where Mahmud
(acquitted accused) grappled Abdul Rehman (deceased) and took him towards
stairs at Point No. 2, but this fact is alien to the contents of the FIR, and
appears to have been inserted in order to cover up the overall scenario
reflecting from the site plans. The scaled site-plan when read in the light of
statement of its maker Sh. Muhammad Sarfraz Draftsman (PW-6) leaves no doubt
whatsoever to form an opinion that deceased had sustained injury inside the
house of the accused/appellant, as has been stance of the accused/appellant in
his statement under Section 342, Cr.P.C.
8. The above facts coming in the prosecution evidence appear to
be quite sufficient to conclude that the facts disclosed by the
accused/appellant in his statement under Section 342, Cr.P.C. are with little
variation close to reality, as compared to the prosecution story, and while
observing so, we find support from delayed reporting of the matter to the
police, because according to the prosecution the occurrence took place on
15.10.2014, whereas the matter was reported to the police on 18 10.2014,
despite the fact that according to the complainant he as well as other
witnesses were present at the place of occurrence, had seen it and he had also
made call on 15-Police Emergency Service. Had it been the position that the
complainant or any of other witnesses were present and had seen the occurrence
then the complainant would not have taken long three days to report the
occurrence to the police and further at least the record of 15-Police Emergency
Service could have been brought on the file, but no such record is available on
the file either.
9. Though the prosecution had set out a motive that deceased
used to forbid the accused/appellant from indulging in selling the narcotic and
this formed the reason/motive behind his murder, but no such record regarding
previous history of the accused/appellant about his involvement in any such
activity was brought on the record. In any way, as disclosed by the
accused/appellant, there was a quarrel between him and the deceased and for
such reason the occurrence has also been admitted but as discussed in preceding
paragraph evidence of quarrel was not available, therefore, reason for going by
the deceased to the house of accused was shrouded in mystery. In the like
manner, admission by the accused/appellant to have fired at the deceased,
Coupled with positive PFSA report clearly proves his criminal liability.
10. Due to delayed reporting of the matter to the police,
non-proof of specific motive and also the ocular account being not backed by
the site plan, we are of the firm view that story as put forth by the
prosecution did not contain the true facts and on the contrary the plea taken
by the accused/appellant in his statement under Section 342, Cr.P.C. for the
same above reasons, appears to be sound enough to be believed and the law is
well settled on the point that when prosecution fails to prove its case, the
statement of the accused, under Section 342, Cr.P.C. is to be considered in its
entirety without requiring the proof under Article 121 of the Qanun-e-Shahadat
Order, 1984 Reliance is placed on the case reported as “Ali Ahmad and
another the State and Others” (PLD 2020 SC 201) wherein, it was held that:
“Next comes the
question, how such a statement of the accused when “accepted as a fact” and
taken in its entirety is to be given effect and acted upon, once the
prosecution has failed to make out a case? Once the prosecution evidence is
disbelieved, rejected or excluded from consideration and the facts explained by
the accused in his statement under Section 342, Cr.P.C. are accepted entirely,
the Court is then to examine the said facts to give due effect to the statement
of the accused under the law, whether in favour of or against the accused. The
object of such examination is to determine whether or not the facts narrated by
the accused constitute an offence under the law or fit into any exception of
the offence provided under the law. In this respect the observation of Sir
Mukerji J. made in the case of Bhola Nath is quoted to explain the purpose of
this examination of the statement of the accused. The learned Judge observed at
page 5:
“If on the whole of the statement of
the accused taken together his guilt is established, and his plea, say
of acting in self-defence or of the case falling within any of the general or
special exceptions (sic) is not made out on the facts admitted there
cannot be any bar to a conviction, simply because the prosecution evidence, by
itself, would not have secured a conviction (emphasis supplied)
This legal
examination was also aptly explained and applied by Lobo C.J. in Gul Mahomed.
The learned Judge found that accepting the statement of the appellant as true,
the act of the appellant in killing his wife and another was under grave
provocation but it was not under sudden provocation. The facts narrated by the
appellant though were accepted but those were found not to fit in the legal
parameters of Exception-I to Section 300, P.P.C. for making the case of the
appellant as one of grave and sudden provocation. Likewise, this Court, in
Muhammad Azam[1]
though admitted the statement under Section 342. Cr.P.C. as a whole, but found,
even in those admitted facts, the accused to have exceeded in his right of
self-defence and convicted him accordingly. In Sattar[2]
referred above the accused while explaining the circumstances in which he
inflicted injuries to him, claimed to have acted in the exercise of right of
self-defence. But the High Court though accepted his statement of facts in its
entirety, but convicted him under Section 304-I, PPC by treating his version
not to fit in the legal requirement of the valid exercise of right of
self-defence as the accused as per his own version of facts had chased the
deceased in street who was attempted to escape from the place of occurrence.
11. Since, otherwise, there remains no other view except that
the occurrence took place inside the house of the accused/appellant and it was
the deceased who had reached to the house of the accused appellant, therefore,
he himself was the troublemaker and the accused/ appellant admitted
retaliation. We have found that appellant though is responsible for committing
the murder of Abdul Rehman, yet at the same time it may be observed that when
the deceased was not armed with pistol there was no question to cause
his death in self defence, thus, the appellant has exceeded his right of self
defence in such situation, of course his sentence shall be formalized under
Section 302(c), PPC. The Hon’ble Supreme Court of Pakistan on the principle
that when occurrence takes place at the spur of the moment, under grave and
sudden provocation or in self defence, offenders cannot be convicted under
Section 302(b), PPC, rather their liability shall be within the compass of
Section 302(c) PPC. In this respect, reliance is placed on cases reported as “Raza
and another versus The State and others” (PLD 2020 Supreme Court 523), “Javed
Akhtar versus The State (PLD 2020 Supreme Court 419) and “Ali Muhammad
versus Ali Muhammad and another” (PLD 1996 Supreme Court 274).
Consequently, conviction of the appellant under Section 302(b), PPC is set
aside and he is convicted under Section 302(c), PPC. As regards sentence,
considering the facts and circumstances of the case, the appellant is sentenced
to rigorous imprisonment for fifteen years and compensation of Rs. 500,000/- under
Section 544-A, Cr.P.C. to the legal heirs of the deceased and the punishment in
default thereof as ordered by the learned trial Court shall remain intact.
Benefit of Section 382-B, Cr.P.C. is extended. With above alteration in
conviction and sentence, Criminal Appeal No. 42 of 2017 is partly allowed.
12. As regards Crl. Appeal No. 129 of 2017 qua acquittal of
Muhammad Mahmud and Mst. Nafeesa Bano, we have found that reasoning
advanced by the learned trial Court while recording their acquittal, is well
founded and no perversity in the judgment of their acquittal has been observed
by us; hence, the appeal against acquittal is dismissed.
13. The record of the learned trial Court shall be sent back immediately
and the case property, if any, shall be disposed of in accordance with law.
Murder Reference No. 19 of 2020 is answered in the negative.
Sentence of death is not confirmed.
(K.Q.B.) Appeal partially allowed