Ghulam Murtaza vs The State

CH. MUSHTAO AHMAD, J. Appellant Ghulam Murtaza has challenged his conviction and sentence through this Criminal Appeal. He was tried by learned Additional Sessions Judge, Multan in case FIR No.263 dated 20.10.2003 registered under sections 302 PPC at Police Station Dehli Gate, Multan.

2. Appellant was declared Juvenile, as such he was tried under Juvenile Justice System Ordinance, 2000. On conclusion of trial, learned trial court vide its judgment dated 30.11.2004 convicted the appellant and he was sentenced as under:- Convicted U/S 302(b) PPC and sentenced to imprisonment for life. He was held liable to pay Rs.50,000/- as compensation in terms of section 544-A Cr.P.C. to the legal heirs of deceased and in case of default in payment thereof, to further undergo imprisonment for six months.

Benefit of section 382-B Cr.P.C. was also extended to the appellant

3. FIR was got registered by Ghulam Nabi son of Haakim Ali. Facts of the case as per FIR are that Muhammad Zubair Hussain, son of the complainant was a truck body maker with whom Murtaza son of Muhammad Ramzan was a learner/trainee. Said Murtaza did not come at work for two/three days, whereupon Muhammad Zubair Hussain went to his house to bring him at work but he refused. Exchange of hot words took place between them. Complainant alongwith Mehboob Hussain and Muhammad Javed Hussain on hearing noise reached the house of Murtaza where Murtaza and son of the complainant were having scuffle with each other. Murtaza picked up a Churee from the house and gave a blow to Zubair Hussain at right side of neck. He repeated the blow at left side of neck of Zubair Hussain. Accused person fled away whereas complainant's son succumbed to the injuries.

4. Investigation was conducted by PW-11 Ghulam Muhammad SI and PW-12 Abid Sagheer SI. Report under section 173 Cr.P.C. was submitted before trial court, where appellant was charge sheeted. He pleaded not guilty and claimed trial. Prosecution in order to prove its case, got examined twelve witnesses. Ocular account was furnished by PW-9 Ghulam Nabi (complainant) and PW-10 Mehboob Hussain. Medical evidence was furnished by PW-8 Dr. Waseem Sarwar, who conducted postmortem examination on the dead body of Muhammad Zubair Hussain and found two injuries on left and right side of neck, respectively.

5. On conclusion of prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C, wherein he again pleaded innocence. In answer to the question why this case against him and why the PWs had deposed against him, appellant stated as under:- "On the day of occurrence, I got up at 07:00 A.M. and went towards Chappar in order to take towel for washing my face. There I found the deceased Muhammad Zubair in objectionable position with my mother. Therefore, under sudden and grave provocation, I lost my senses and could not control myself due to Gairat. I inflicted injuries on the person of deceased Muhammad Zubair. After that, I tried to catch hold of my mother but she slipped away, meanwhile, thereafter, I went to P.S. Bohar gate alongwith Churri and told to police officer about the occurrence and surrendered myself there. Then on the information of P.S. Bohar gate to P.S. Dehli gate about the occurrence, the staff of P.S. Dehli gate Multan had taken me into custody alongwith Churri. I made the whole statement before the SHO P.S. Dehli gate, Multan about the occurrence. The deceased was taken into Nishter Hospital Multan by the father of deceased in injured condition and Muhammad Javed brother of the deceased also reached there but Muhammad Zubair died before receiving any treatment.

Therefore, dead body of Muhammad Zubair brought to the house of Muhammad Zubair deceased through Edhi Ambulance bearing No.E.A. 11133 certificate issued in this regard by the Zonal Incharge Edhi Welfare Centre is tendered as Ex.DC. The police took the dead body of the deceased from the house of Muhammad Zubair. I was the first informant of the occurrence. All proceedings taken up by the police are fake and fabricated. The PWs are real brothers and father of the deceased due to this fact they deposed falsely against me ".

6. On conclusion of trial, appellant was convicted and sentenced as mentioned above, hence, this criminal appeal.

7. Learned counsel for appellant argued that the occurrence was unseen and presence of PWs has not been established; that appellant was minor at the time of occurrence and had the PWs who were father and brother of deceased been present, they must have intervened to save his life; that appellant did not have intention to kill Zubair Hussain but he did so on grave and sudden provocation.

8. Conversely, learned Deputy Prosecutor General assisted by learned counsel for complainant contended that eye witnesses were residents of the same locality and FIR was lodged promptly, hence, appellant was rightly convicted and sentenced by learned trial court.

9. I have heard learned counsel for the parties at length and gone through the record with due case.

10. Occurrence was reported to police by Ghulam Nabi, father of Zubair Hussain deceased. He appeared in the witness box as PW-9 and reiterated the contents of FIR. His statement was supported by PW-10 Mehboob Hussain who is also his son. According to prosecution, PW-9, PW-10 alongwith Javed Hussain (given up PW) on hearing noise were attracted to the spot when appellant gave Churri blows to Zubair Hussain (deceased) in their presence. PW-9 is father of deceased whereas PW-10 is his brother. Appellant at the time of occurrence was a minor young boy. Both PW-9 and PW-10 alongwith Javed Hussain could easily overpower the appellant, had they been present at the time of occurrence and they must have not let him go scot-free. Javed Hussain who was an independent witness, has not been examined by prosecution, which indicates that he was not ready to support the prosecution version. So, presence of the PW-9 and PW-10 at the place of occurrence at relevant time is highly doubtful affair. According to prosecution case, appellant was working as trainee with Zubair Hussain (deceased) at the time of incident, whom deceased criticized for not going at the place of work and due to that grudge appellant killed him.

Appellant who was a trainee under the deceased, would not have killed him on such a petty matter, hence, motive alleged by the witnesses did not sound logical. For the above reasons, testimony of PW-9 and PW-10 is not confidence inspiring, hence excluded from consideration.

11. After discarding ocular account, what remains on the record is statement of appellant recorded under section 342 Cr.P.C. It was version of appellant that he saw Zubair Hussain (deceased) in an objectionable position in the company of his mother. He lost self control and under grave and sudden provocation inflicted injuries to deceased, which resulted in his death. In the given facts and circumstances of the case when prosecution evidence has been disbelieved, statement of appellant has to be accepted as whole. Therefore, case of appellant was covered under section 302(c) PPC. Record shows that appellant remained in jail as under-trial prisoner and then as convict after decision of the case. He was convicted vide judgment dated 30.11.2004 and his sentence was suspended on 12.10.2011. He also remained in judicial custody during the trial. The sentence, therefore, already undergone by him would be sufficient to meet the ends of justice.

Resultantly, while maintaining conviction of appellant under section 302(c) PPC, this appeal is dismissed. However, quantum of sentence is reduced to the period already served out by him.

Presently appellant is on bail. His sureties stand discharged of the liability of bail bonds.