MUHAMMAD AKRAM alias BAGGA Versus THE STATE
1. BASHIR A. MUJAHID, J.- - Muhammad Asif son of Faiz Ahmad alongwith his acquitted co-accused Qais Ali and Ijaz Hussain was tried under sections 302/452, P.P.C. by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No.109, dated 9-9-1994, registered at Police Station Peoples Colony, Faisalabad, for commission of murder of Muhammad Irfan, son of Abdus Sattar, after trespassing into his house and was convicted vide the impugned judgment dated 12-6-1996 and sentenced to death under section 302(b), P.P.C. and a fine of Rs.1 lac under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased. The said amount was ordered to be recovered from attachment and sale of his property as arrears of land revenue and in default of payment of the same to suffer imprisonment for six months. He was further convicted under section 452, P.P.C. and sentenced to three years' R.I. with a fine of Rs.1,000.
2. The brief facts of the prosecution case as narrated in statement Exh.P.G. of Ali Asghar, P.W.8 recorded by Muhammad Abbas, S.I. P.W.11 at 4-30 p.m. on 9-9-1994, at Chowk Railway Station, Faisalabad, on which formal F.I.R. No.409 of 1994 Exh.P.G./1 was registered, are that the complainant was Assistant Lineman in WAPDA, his father Abdus Sattar has died 8 years ago. About four years ago, Mst. Shakeela (P.W.9) sister of the complainant was given in marriage to Muhammad Asif, accused residence of Muhammadi Colony. Out of the wedlock, minor son Waseem aged 8/9 months was born. Two/three days prior to the occurrence, Mst. Shakeela due to some differences with her husband had come to the house of the complainant. At 12-00 noon on the fateful day, Muhammad Asif complainant and demanded to take Mst. Shakeela with him, but it was refused due to her ailment which caused annoyance to Muhammad Asif. There was exchange of hot words between Muhammad Asif and IT-fan, brother of the complainant. Muhammad Asif, snatched Wasim, minor from Mst. Shakeela and went away which caused annoyance to the complainant party. Again at 3-30 p.m. Muhammad Asif armed with pistol alongwith Qais Ahmad alias Bashir alias Billa and Ijaz Hussain son of Nazar, empty-handed came to the house of the complainant. Muhammad Asif and Qais Ahmad tried to take Mst. Shakeela forcibly with them, on which complainant, his brother Irfan and their mother Mst. Mukhtaran, maternal uncle Ikram Saeed, resident of Chak No.91/RB, Tehsil Gojra, who had come to see them, forbade M uhammad Asif and others, but Asif caught hold Mst. Shakeela by her arms and dragged her. The complainant and Muhammad Irfan intervened. Ijaz accused raised Lalkara to teach lesson to Irfan for interference. On which, Qais Ahmad caught hold of Irfan and Asif accused fired shot at Irfan hitting him on left side of his head which pierced through, the right side. Irfan fell on the ground in pool of blood. The complainant Ikram Saeed, Mst. Mukhtaran and Mst. Shakeela tried to apprehend the accused. During the scuffle, Asif also received minor injuries. Asif alongwith his co-accused succeeded to escape while firing. Irfan was taken to the hospital in injured condition where he was admitted and medically examined thereafter; he was referred to Allied Hospital where he succumbed to the injury on the same day.
3. Muhammad Abbas, S.I., P.W.11 after registration of the case arrived at the place of occurrence and took into possession the blood stained earth vide memo. Exh. PH. two empties cartridge P.2/1-2 and a magazine P.1 containing live cartridge P.3 from the spot vide memo Exh.P.1. He also recorded the statement of the witnesses at the spot. Thereafter, hi went to Allied Hospital and receiver information of death of Irfan. He took into possession the, dead body, prepared the injury statement Exh.P.G. and injuries report Exh.P.C. and handed over the dead body for post-mortem examination which was conducted by Dr. Qaiser Abbas, P. W. 2 on 10-9-1994 and found the following injuries on the dead body:---
4. A fire wound of entry with inverter margin 3/4 x 3/4 c.m. through and through (Skull) on left side of head, 8 c.m. behind left ear and thirteen c.m from midline with a stitched wound o (exit) 2 c.m. longwith 2 stitches or right side of head, 10 c.m. above right ear and 6 c.m. from midline. exploration of this injury it observed that the projectile damaged; scalp fractured skull b, under entry wound, entered left hemisphere of brain after purport meninges damaged right hemisphere meninges, fractured and purported right side of skull bone and exited through exit wound which was stitched. Skull was purported at exit wound have size 1-1/2 x 1 c.m. and had a fracture line on right side of head, which I total length of 24 c.m. and was zig zag in shape. Fracture line extended from exit towards front of head involving right parietal, right temporal, and right side frontal bone. On backwards line extended from exit involving rid parietal and right side occipital boy Tract was opened and examined it connected entry and exit bone. Collected blood was found in the tract and brain matter. Scalp and skull injured as mentioned, menings and brain were injured. In the thorax all the visra were healthy in trickle hybrid bone was intact in the heart right side was full of blood while left side contained a little blood.
5. The same doctor on 11-9-1999 at 1-30 p.m. had medically examined Muhammad Asif, accused and found the following injuries on his person:-
(1) A lacerated infected wound 5 c.m. x 3/4 c.m. x scalp deep on right side top of head.
(2) A contusion mark 16 c.m. x 1-1/2 c.m. on right side back of chest upper and outer part.
(3) A contusion mark 10 c.m. x 3 c.m. on right side back of chest middle part.
(4) A scratch (abrasion) 5 c.m. x 1/10 c.m. on left side of neck.
(5) Multiple abrasions (scratches) in an area 13 c.m. x 4 c.m. on right side neck.
6. On 11-9-1994, Muhammad Abbas, S.I. P.W.11 arrested Muhammad Asif, accused, and got him medically examined through P.W.2 as mentioned above, on 13-9-1994 while in police custody he led to the recovery of pistol P.4 and its licence P.5, which we're taken into possession vide recovery memo. Exh.P.J. He completed the investigation and submitted the challan. The accused denied the allegations and claimed the trial.
7. During the trial, the prosecution examined as many as 11 witnesses to prove the guilt of the accused. Ali Asghar, complainant was examined as P.W.8, he corroborated the version of the F.I.R. and grated the motive of the occurrence. Mst. shakeela wife of the accused and sister of e deceased and complainant was examined P.W.9, she supported the prosecution story as an eye-witness of the occurrence Sardar Muhammad. P.W.6 was the recovery witness as he had attested the recovery memos. of the articles taken into possession from the place of occurrence by Ghulam Abbas, S.I. P.W.11 and of recovery, of weapon of offence got covered by the accused vide recovery memo. Exh.P.J. Ghulam Abbas, S.I. P.W.11 investigated the case, recorded the statements of the witnesses and submitted the challan. The remaining witnesses are of formal nature, need not to be discussed.
8. The prosecution evidence was closed by tendering in evidence the Report of Chemical Examiner, Exh.P.O. and that of Serologist Exh.P.Q. and Forensic science Laboratory Exh. P. R.
9. Towards the end of the trial, the statement of the accused-appellant was recorded under section 342, Cr.P.C., who to the relevant question No.8 "what else he ants to say", he replied as under:-
10. "I contracted love marriage with Mst Shakeela P.W. against the wishes of her parents and brother. On the day of occurrence at about 3-30 p.m. while I was empty-handed visited the house of my in-laws to take back my wife anti minor son Waseem to my home in friendly manner. Mst. Shakeela refused to accompany me. I snatched my son Waseem Abbas from her and at this stage one unknown person present there fired at me with pistol but accidentally it hit Irfan deceased. I was over powered at the spot after causing of injuries to me and I was produced before the police on the same day. P.s. with the connivance of local police have implicated me in this false case, alongwith co-accused. "
11. He examined Ali Muhammad, S.P. as D.W.1 in his defence.
12. The trial culminated into the conviction of the appellant as mentioned above. He has challenged his conviction and sentence by filing Criminal Appeal No.624 of 1996 while the Trial Court has sent up Murder Reference No.110 of 1996 under section 374, Cr.P.C. for confirmation of the death sentence of the appellant. Both these matters are being decided by single judgment.
13. Learned counsel for the appellant has argued that the marriage of the appellant with Mst. Shakeela was without blessing of her parents; the appellant went to bring her wife alongwith minor son, which was refused by the complainant party, on which altercation took place and during the scuffle one unknown person fired shot hitting Irfan and the appellant was apprehended at the spot and was handed over to the police with false allegations; this fact has been admitted by Ali Muhammad, S.P. D.W.1, who had partly investigated the case; that the prosecution witnesses made dishonest improvements in their statements; that even if the prosecution case is believed correct, as it is, even then the occurrence took place under grave and sudden provocation. The appellant also received injuries during the same occurrence at the hands of the complainant and Irfan, deceased, therefore his case falls under section 102(c) P.P.C not under section 302(b) P.P.C and penalty of death is not legal and proper in the circumstances of the case.
14. Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State by arguing that a young boy aged 16 years in the prime of his youth has been brutally murdered by the appellant and he does not deserve any leniency.
15. Heard Record persued.
16. The appellant is nominated accused, with specific role in promptly lodged F.I.R.; the motive as alleged was proved; there is no previous enmity between the parties for false implication; the prosecution story narrated by the complainant P.W.8 has been fully corroborated by Mst. Shakeela wife of the accused, P. W.9; the ocular account given by both the witnesses P.W.8 and P.W.9 has been supported by medical evidence and the: recovery of the weapon of offence. The empties taken into possession from the place of occurrence tallied with the licensed revolver of the appellant as per report of Forensic Science Laboratory (Exh.P.R.). The arguments of the learned counsel for the appellant that the accused/appellant was apprehended by the complainant party and was handed over to the police does not make much difference, as there is no reason for his false implication; the injuries on the accused/appellant were also mentioned by the complainant in the F.I.R.; his presence and participation in the occurrence has not been denied, therefore, his conviction and section 302(b), P.P.C. is just, legal and proper and we do not find any ground for interference in the conviction recorded against him.
17. As far as the sentence is concerned, we consider that the appellant had come to take his wife back with him which was his legal right; although he arrived at the house of the complainant armed with licensed pistol, but maximum intention could be to take his wife by force, but he never intended to commit murder of Irfan or anyone else. Admittedly, the complainant, deceased had other inmates had intervened with the appellant during which the appellant also received injuries, during the same occurrence. He caused single fire-arm injury at Irfan, deceased without repeating the same which resulted into unfortunate death, which cannot be termed as murder with pre-meditation, therefore, considering all the aspects of the case, we are satisfied that it is a fit case for awarding lesser penalty.
18. Resultantly, the sentence of death is altered into imprisonment for life under section 302(b), P.P.C. However, the punishment of fine or in alternate six months' R.I. is maintained. Punishment under section 452, P. P. C. is also maintained. Both the sentences will run concurrently. Benefit of section 382-B, Cr.P.C. will also be available to the appellant.
19. The appeal is dismissed with the above modification. The death sentence of Muhammad Asif accused is not confirmed.
20. The murder reference is answered in the negative.
21. Death sentence altered.
22. H.B.T./M-1321/L Order accordingly.