GHULAM SHABBIR Versus THE STATE
1. MUHAMMAD NAWAZ ABBASI, J.--- This jail petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeking leave to appeal has been preferred against the judgment, dated 23-11-1998 passed by a Division Bench of Lahore High Court, Multan Bench, in Criminal Appeal No.71 of 1996 filed by the petitioner and Murder Reference No. 117 of 1996 sent by the Trial Court to the High Court for confirmation of death sentence.
2. The petitioner was tried by the learned Additional Sessions Judge, Khanewal, in a case under sections 302/324, P.P.C. pertaining to an occurrence taken place in the area of Police Station Saddar Kabirwala on 23-9-1993 in which one Abdul Jabbar was murdered. The learned trial Judge having found the petitioner guilty of the charge, convicted and sentenced him to death under section 302, P.P.C. and under section 324, P.P.C., he was sentenced to rigorous imprisonment for a term, of five years, with a fine of Rs.5,000 for causing injuries to Muhammad Gulzar. In default of payment of fine, the petitioner was directed to undergo R.I. for three months. The conviction and sentence awarded to the petitioner was confirmed by a Division Bench of the Lahore High Court, Multan Bench, vide impugned judgment.
3. The brief facts as narrated in the F.I.R. are that on 23-9-1993 at about 1 p.m Abdul Jabbar deceased and Muhammad Gulzar (P.W.6) alighted from a Wagon at the Wagon Stand near the grocery shop of Bahadar Ali (P.W.5) and Ghulam Shabbir petitioner who was already present at the Wagon Stand, on arrival of Abdul Jabbar raised a Lalkara of taking revenge of his insult at the hand of deceased and within the sight of Bahadar Ali complainant, Muhammad Jamil, Karamat Ali and Muhammad Zafar Yar who were also present at the shop of complainant while taking out a Chhurri from his Dub inflicted two successive blows on the left side of the chest of Abdul Jabbar as a result of which he fell on the ground and succumbed to the injuries. The petitioner on the intervention of Muhammad Gulzar (P.W.6) also inflicted a Chhurri blow on his abdominal region. The complainant and the above-named witnesses apprehended the petitioner at the spot and during the scuffling. also sustained injuries. The motive behind the occurrence as disclosed the F. I. R. was that two days earlier, the petitioner expressed his desire to the deceased to commit sodomy with him whereupon deceased retailed and insulted the petitioner and in consequence thereto, petitioner extended threats to take revenge of his insult.
4. Mulazim Hussain Inspector (P.W.8) on receipt of information of the occurrence, reached at the spot and arrested the petitioner with blood-stained Chhurri (P-7) and vide memo. (Exh.PD) secured blood-stained earth from the spot. The Inspector having prepared injury statement (Exh.PG) and inquest report (Exh. PH) of the deceased, dispatched the dead body for post-mortem examination. The petitioner was got medically examined and Muhammad Gulzar (P.W.6) was sent to Nishtar Hospital, Multan for treatment. Later the Inspector with permission of the doctor, on 26-6-1992, recorded the statement of Muhammad Gulzar in the hospital add on completion of the investigation submitted the challan. The post-mortem examination of the deceased was conducted by doctor Jehangir Shahzad (P.W.11) who traced the following injuries on his person:--
5. "(1) Incised wound 2-12 c.m. x 1 c.m. on the left side of chest interiorly 3 c.m. above the left nipple.
(2) Incised wound 12 c.m. x 12 c.m.-muscle deep 2 c.m. below the left nipple on the front of the left chest. "
6. The injury No. l was found sufficient to cause death in the ordinary course of nature.
7. In the medical examination of the petitioner conducted by the same doctor on the same day, the following injuries were found on his person:---
8. "(1) Abrasion 1 x 1 c.m. on the left eye-brow.
(2) Contusion 4 x 2 c.m. on the right upper eye-lid.
(3) Contusion 4 x 2 c.m. on the left upper eye-lid.
(4) Laceration 3 x 2 c.m. on the front of the right lower leg.
(5) Laceration 5 x 3 c.m: on the palmer aspect of left hand..
(6) Patient complaint of pain in whole body."
9. Muhammad Gulzar (P.W.6) laving been given life saving drugs; in Nishtar Hospital, Multan, was referred to Civil Hospital, Multan, where he was medically examined.
10. The petitioner in his statement under section 342, Cr.P.C. in answer to a question replied in the following manner:--
11. "A few days before the occurrence of this murder, a dispute took place in the van over a seat with the deceased and myself and I had forcibly turned him out from the van due to which he bore grudge against me. On the day of occurrence, I alighted from the van at Pull Rangu, the. place of occurrence, where deceased and Gulzar, P. W., were already present armed with Dangs. They threatened me that they will teach me a Lesson for the insult of the deceased. They attacked upon me and inflicted injuries on my person. They wanted to kill me by throwing into the canal. In order to save my life, I took a Chhurri from a nearby Rahri and inflicted injuries on the person of deceased and Gulzar, P.W. Then I myself went to the Police Station and narrated the whole story to the S.H.O. Soon after my arrival at police station, the complainant reached there and got the case registered against me. I was arrested at the Police Station and not from the place of occurrence."
12. The petitioner, however, has neither made a statement on oath under section 340(2), Cr.P.C. nor produced any evidence in support of defence version.
13. Learned counsel for the petitioner has contended that it was a case of two versions and while putting the defence version in juxtaposition with the prosecution case, the version of accused would appeal to mind to be truthful. The learned counsel argued that as per prosecution story, the occurrence took place at the Wagon Stand which was a busy place as in addition to the shops, a number of Rahries were also installed near the Wagon Stand but no one from these shopkeepers and Rahriwalas was examined as witness and that non-production of natural witnesses of occurrence, would reflect upon the correctness of the prosecution story and would suggest. that the occurrence did not take place in the manner as stated by the witnesses and the version of the petitioner that he in exercise of his right of self-defence while picking up a Chhurri from a Rahri caused injuries to the deceased who with the help Muhammad Gulzar (P.W.6) made an attempt on his life, would be more plausible in the given facts. Learned counsel argued that the injuries on the person of petitioner would be the direct proof of correctness of the defence version and that in any case, it was suggested in the prosecution story itself that murder was the result of sudden quarrel between the petitioner and deceased at the Wagon Stand and was not a premeditated, occurrence, Therefore, it would not be a case of capital punishment.
14. We have heard the learned counsel for the petitioner at length and perused the record with his assistance. The circumstances under which the occurrence took place would not convincingly suggest that either it was a case of self-defence or was a sudden quarrel. The petitioner was in possession of Chhurri of the size of 6 inches. which is not ordinarily used for cutting the fruits and nothing was brought on record to indicate even a remote possibility of the correctness of the version of the occurrence given by the defence. The deceased sustained injury on the left side of the chest which is most sensitive part of the body, and thus even if the occurrence was not premeditated, the intention to commit murder would be gathered from the selection of the seat of injury and mere fact that in the occurrence petitioner also sustained injuries would not be sufficient to hold that the petitioner while resisting the aggression caused injuries to the deceased and Muhammad Gulzar. The deceased and injured witness were empty-handed and were not aware of the presence of petitioner at the Wagon Stand and thus the act of the petitioner of causing injuries to the deceased on sensitive parts of I3 body, if was not premeditated as contended by the learned counsel, still itl was a Qatal-i-Amd. The arrest of the petitioner at the spot with weapon] of offence and the minor injuries on his person, would show that he while making struggle to escape from the place of occurrence, scuffled with the witnesses and sustained injuries and the same were not the result of any aggression on the part of deceased who was a young boy of 15/16 years and except the quarrel taken place between the petitioner and deceased two days prior to the occurrence, had nothing against the petitioner for such an aggression,- therefore, the motive for the occurrence given by the prosecution would appeal. to mind to be correct. The ocular account was furnished by the natural and independent witnesses as none of them had any enmity and grudge against the petitioner. The admission of the occurrence by the petitioner in his statement under section 342, Cr.P.C. with a different version, would be a strong source of corroboration to the evidence of eye-witnesses who deposed without any exaggeration. The occurrence took place in the C broad daylight at the Wagon Stand and the presence of eye-witnesses at, the spot being unquestionable their evidence was of unimpeachable character. The arrest of the petitioner at the spot with the weapon of offence ( Chhurri P-7) and his admission of the occurrence would confirm the truthfulness of the prosecution story.
15. In tile light of the foregoing discussion, we are of the view that the conviction awarded to the petitioner: under section 302, P.P.C. was unexceptionable. We having considered the question relating to the quantum of sentence find that there was no mitigating circumstances in favour of the petitioner for lesser penalty. We therefore, while maintaining the sentence of death awarded to the petitioner, dismiss this petition. Leave is refused.
16. N.H.Q./G-150/S
17. Leave refused.