UMAR HAYAT Versus THE STATE

Muhammad Iqbal (25-26), Muhammad Azam (35-36), Ahmad Khan (38-39), Umar Hayat (48-49), Muhammad Shafi (28-29), Muhammad Sajid (25-26), Muhammad Yar alias Mammon (60-62) and Zafar Iqbal (28) were sent up for trial by Police Station Kotmomin, Tehsil Bhalwal, District Sargodha for offence under section 302/34/109, P.P.C. for murder of Ghulam Murtaza. Additional Sessions Judge, Bhalwal, vide judgment, dated 21-6-1992 giving benefit of doubt acquitted Muhammad Iqbal, Azam, Ahmad Khan, Muhammad Yar, Shafi, Sajid and Zafar Iqbal of the charge. Umar Hayat was, however, found guilty for an offence under section 303(a), P.P.C. Qatl committed under Ikrah-i-Tam and was sentenced to 10 years' R.I. Benefit of section 382-B, Cr.P.C. was also extended to him. The convict Umar Hayat has appealed against his conviction and sentence. State had also filed an appeal (Criminal Appeal 1081 of 1992) against the acquittal of seven co-accused in this case. That appeal was dismissed by a Division Bench of this Court comprising Mr. Justice Rashid Aziz Khan and Mr. Justice Muhammad Nawaz Abbasi vide judgment, dated 8-8-1993 and this appeal (Criminal Appeal No.571 of 1992) was directed to be placed before a Single Judge for hearing.

2. The prosecution case as disclosed in F.I.R. Exh.P.H. is that on 19-7-1990 in the morning Ghulam Murtaza deceased, his son Muhammad Amir complainant (P.W.12), Muhammad Nazir (P.W.13) and Umar Hayat (given up P.W.) called upon one Ghulam Muhammad Chadhar at his Dera. Thereafter, they were all returning to home, deceased was riding on a mare while the three witnesses were on foot. When they all reached near Dera of Palluwana on the bank of canal at about 11-00 a.m. they saw motor-cycle No.LRB-9149 and a cycle parked on the road side. In the meantime Umar Hayat, Sajid, Zafar Iqbal, all armed with .12 bore guns and Muhammad Shari armed with rifle .7 mm emerged from a nearby garden. Umar Hayat appellant threw challenge that deceased should be taught a lesson for contracting Nikah with his sister Mst. Bano upon which Ghulam Murtaza deceased raced his mare towards the east and was chased by all the four accused persons who fired at him during chase, as a result of which he fell off the back of the mare at the distance of about one acre, then the accused went near him and fired one more shot each at him. The P.Ws. raised hue and cry upon which all the accused fled. The mare also sustained fire-arm injury. When the P.Ws. went near the accused they found him dead.

Motive behind the occurrence was that 4-5 months before the occurrence Mst. Bano sister of Umar Hayat appellant and Muhammad Shafi (acquitted co-accused) contracted marriage with Ghulam Murtaza deceased against the wishes of her brothers, resulting in registration of Hudood case against the deceased and Mst. Bano in which the deceased was bailed out. The murder was allegedly abetted and instigated by Muhammad Iqbal, Muhammad Azam, Ahmad Khan and Muhammad Yar alias Manion accused.

Muhammad Amir P.W.12, son of the deceased, lodged report Exh.P.H. at 12-00 noon on 19-7-1990 at Police Station Kot Momin, which was recorded by Muhammad Siddique S.I./S.H.O. (P.W.14). Thereafter, he reached the scene of occurrence and prepared injury statement Exh.P.R. and inquest report Exh.P.S. and despatched the dead body to mortuary at Kot Momin through F.C. Muhammad Riaz (P.W.4). Licensed rifle P.6 of Ghulam Murtaza deceased licence P.7 and a bag P.8 containing 3 bullets P.9/1-3 lying near the dead body were secured vide memo. Exh.P.I. Blood-stained earth was collected from the spot and was made into a sealed parcel vide memo. Exh.P.K. 7 empties of .12 bore gun P.10/1-7 and empty of rifle .7 mm P.11 were also collected from the spot and were made into sealed parcel vide memo. Exh.P.J. Injured mare of deceased was given into possession of the complainant vide memo. Exh.P.N. alongwith saddle P.12 vide memo. Exh.P.M. Cycle P.5 was secured from the spot vide memo. Exh.P.L. The appellant was arrested by the Investigating Officer on 10-8-1990 alongwith other co-accused except Zafar Iqbal who appeared later before the trial Court.

On 15-8-1990 Motor-cycle No.LRB-9149 was got recovered by Umar Hayat appellant from his Dera vide memo. Exh.P.O. On the same day Umar Hayat led to recovery of his licenced .12 bore gun P.13 alongwith its licence P.14 from the same Dera which were taken into possession vide memo. Exh.P.P. On the same day Muhammad Shafi, acquitted co-accused got his licensed rifle P.15 recovered with licence P.16 from another room of Dera of Umar Hayat vide memo. Exh.P.Q. These were, made into sealed parcels. On 24-7-1990, the Investigating Officer got prepared site plans Exhs.P.G. and P.G./1 from Revenue Patwari P.W.9. All the accused were challenged and put to trial.

3. The prosecution examined 15 witnesses in all in support of its case while Muhammad Hanif Naseem, Fire-arm Expert, Lahore, appeared as Court witness. All the eight accused in their statement, under section 342, Cr.P.C. denied the charge and pleaded innocence.

Post-mortem of the deceased was conducted on 19-7-1990 by Dr. Amjad Iqbal, P.W.2, who found the following injuries on his person: --

(1) Wound of entry with inverted margin going in three in number 1 c.m. x 3/4 c.m. each in an area of 9 c.m. x 5 c.m. on the contral part of right scapula having darkening around the margins.

(2) Wound of entry with inverted margins going in three in number 1 c.m. x 3/4 c.m. on each in an area of 6 c.m. x 5 c.m. having darkening around the margins.

(3) Wound of exit 3/4 c.m. x 3/4 c.m. x with everted margins just below and outer to the medial end of right clavical.

(4) Wound of exit with everted margins 1-1/4 c.m. x 3/4 c.m. on an inner and frontal aspect of the right upper arm in middle.

(5) Wound of exit with everted margins 3/4 c.m. x 3/4 c.m. on inner and frontal aspect of right upper arm lower part.

(6) Wound of entry with inverted margins 3 c.m. x 1-1/2 c.m. having burning tattooing and blackening around the margins on the base and outer side of left thumb.

(7) Wound of exit 3 c.m. x 5 c.m. with everted margins involving area of hypo thinner and base of the left thumb on palmer side.

(8) Wound of entry going in 4 c.m. x 3 c.m. on the left side of abdomen 5 c.m. above and inner to the anterior superior iliac spine. The injury has inverted margins. No burning and no blackening and there was no corresponding hole on Kameez .

(9) Wound of exit 1/2 c.m. x 1/2 c.m. each with everted margins slightly above and left to upper margins of metal cleft in area of 4 c.m. x 6 c.m.

(10) Wound of entry with inverted margins 3 c.m. x 3 c.m. in the right temple with burning and blackening causing fracture and crushing of the under-lying bones.

(11) Wound of entry 2-1/2 c.m. x 3 c.m. with inverted margins on the left temple with burning tattooing and blackening around the margins causing fracture and crushing of underlying bones; and

(12) Wound of entry 4 c.m. x 3 c.m. with inverted margins on the back of left ear having burning, tattooing and blackening around the margins causing fracture of underlying bones.

In the opinion of the doctor death had occurred in this case due to cumulative effect of all the above-noted injuries; which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem, grievous in nature, fatal to life and caused by fire-arm. Injuries Nos.l and 2 were caused with a single fire-shot from a distance of about 30 feet but less than 60 feet. Injuries Nos.6 and 8 were also caused by a single fire-shot.

On the same day Dr. Zulfiqar Ali, Veterinary Officer, medically examined mare of the deceased and found three fire-arm injuries on its body. The gun of the appellant and empties collected from the scene were sent to the Fire-arm Expert whose report Exh.P.T. is to the effect that all the crime empties P.10/1-7 were fired from the licensed gun of the appellant P.13. The rifle empty was sent to the Fire-arm Expert by the order of the learned trial Court for comparison with the licensed rifle P.6 of the deceased. Muhammad Hanif Nasim, Fire-arm Expert (C.W.1) deposed that crime bullet P.11 was fired from the licensed rifle of the deceased.

4. After appraisal of the entire evidence the learned trial Court while acquitting the seven co-accused observed that the prosecution has not also come forward with the complete facts. The trial Court inferred that the deceased and Umar Hayat appellant faced each other by chance on the way and apprehending danger to their lives at the hands of each other, they both fired at each other on which the deceased suffered death. It accordingly convicted the appellant under section 303(a) of the amended provisions of P.P.C.

5. Before arguing the case on merits learned counsel for the appellant contended that the impugned judgment is against law since the occurrence took place on 19-7-1990 whereas the changes in the Pakistan Penal Code were effected by the promulgation of Qisas and Diyat Ordinance on 2-1,'1-1990. He relied on a Full Bench judgment of this Court in Muhammad Ashraf v State PLD 1991 Lah. 347 wherein it is clearly confirmed that the Oisas and Diyat Ordinance was promulgated on 5-9-1990 and the said Ordinance came into force on 12 Rabi-ul-Awal, 1411 A.H., which corresponds to the 2nd of October, 1990.

It is an established principle of criminal law that no law describing an offence or prescribing a punishment shall be applied with retrospective effect., This is also a fundamental right guaranteed to all persons under Article 12(1)(b) of the Constitution of the Islamic Republic of Pakistan which provides as under:--

12 Protection against retrospective punishment.- --(1) No law shall authorise the punishment of a person--

(a) ..

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

Article 20(1) of the Indian Constitution embodies a provision similar to Article 12(1)(b) of the Constitution of Pakistan. In case cited as Mohari Lall v. Corporation of Calcutta AIR 1953 Cal. 561 it has been held that a sentence can only be imposed in accordance with a law existing at the time of the occurrence and not under any subsequent law.

6. The present Article 12(1)(b) of the 1973 Constitution corresponds to Fundamental Right 4 under Article 6 of the 1962 Constitution. It has been held in Nabi Ahmed v. Home Secretary, Government of West Pakistan PLD 1969 SC 599 that protection against retrospective punishment operates with reference to the time of the act or omission which may subsequently be made punishable and to commission of an offence for which greater or even different kind of penalty may be imposed by ex post facto legislation. The time of the commencement of a proceeding to impose the punishment or penalty is not of the essence of the protection". Reference has also been made in this judgment to the American authority on the subject in Calder v. Bull (1798) 2 Dall 386 and the Privy Council decision in Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369 wherein it has been held that if a legislation touches a right in existence at the time of passing of the Act the legislation would not operate retrospectively.

The case of the present appellant should have been considered in terms of the provisions of the Pakistan Penal Code which were in force on the date when the occurrence took place, i.e. 19th July, 1990. The learned trial Court has inadvertently convicted the appellant and sentenced him under the 8 provisions of Oisas and Diyat Ordinance, which admittedly came into effect on 2-10-1990.

7. Learned counsel for the appellant prayed that this case be remanded to the trial Court (learned Additional Sessions Judge, Bhalwal) for re-writing of the judgment on the basis of evidence already recorded, by applying the provisions of the Pakistan Penal Code as in force on 19th July, 1990, to the facts and circumstances the case in respect of the appellant Umar Hayat only as the case of the remaining seven co-accused has already been decided vide judgment, dated 8-8-1993 by a Division Bench of this Court.

8. After giving thoughtful consideration to this prayer I am of the opinion that remanding the case to the learned trial Court for rewriting judgment would cause further unnecessary delay in this matter which has already been pending since 1990. I consider it appropriate to hear the appeal and decide the same keeping in view the law in force at the time of occurrence. I have, therefore, directed the learned counsel for the appellant as well as learned counsel for the State to argue the case on merits.

9. Before me the learned counsel for the appellant has tried to make out a case that the appellant acted under grave and sudden provocation and also in self-defence of his person. He argued that it has been held by the learned trial Court that both the deceased and the appellant came across each other by chance and were alone when the occurrence took place. It was likely that oral provocation was offered by the deceased to the appellant by taunting him that he had been granted bail in the Hudood case and was still living with the sister of the appellant despite the best efforts of the appellant. That on this grave and sudden provocation the appellant, who was armed with .12 bore gun, fired at the deceased who was also armed with his licensed rifle and he retaliated and fired at the appellant. That there was no eye-witness of the occurrence but the recovery of empties establishes that both the deceased and the appellant had fired at each other. If it were to be considered that the deceased fired the first shot then the appellant's case would be one of self-defence and if it were considered that the appellant fired first then the case of the appellant would be one of grave and sudden provocation and the offence would fall under section 304, Part I, P.P.C. Learned counsel for the appellant argued that although this defence was not taken by the accused/appellant before the trial Court but at the same time there being no eye-witness of the occurrence it was for the Court to decide how the same took place. Learned counsel for the appellant relied upon Arif Nawaz alias Golday and 2 others v. The State PLD 1983 Lah. 594 to contend that where the evidence is not reliable and there is no other evidence to link the appellant with the crime, the conviction cannot be upheld. He has also relied on Ghulam Hussain v. The State PLD 1972 Lah. 153 which was a case under section 302, RP.C. in which the occurrence had not been seen by anyone and no plea of grave and sudden provocation had been taken by the accused. But it was held that if there were any circumstances to favour the accused they should be considered while deciding the case. If no plea has been raised in that respect, it should not be deemed to be not available. He has also relied on Safdar Ali v. The Crown PLD 1953 FC 93 to argue that in an occurrence where the accused committed the act in a fit of rage, the assumption was that the occurrence had taken place under grave and sudden provocation. The cases of Muhammad Saleh v. State PLD 1965 SC 366, Muso v. The State PLD 1960 Kar. 966 and Ahmad Din alias Ahmi v. The State PLD 1967 Lah. 649 were also relied upon by the learned counsel for the appellant to argue that in such circumstances the case fell under the first exception to section 300, P.P.C. and the offence would fall within the ambit of section 304, Part I, P.P.C. He further argued that keeping in view the peculiar circumstances of the present case, the appellant was entitled to leniency, as in the last cited case the appellate Court had held that the sentence of 3 years 9 months was adequate to meet the ends of justice. He argued that even though the appellant had received no injury it could be assumed that he had fired in exercise of right of private defence. Reliance has been placed on Aludo alias Ali Buksh v. The State 1976 PCr.LJ 329 wherein it has been held that it is not necessary for the accused to have received injury to establish that he apprehended danger to his life and presence of seven fire-arm injuries on the body of the deceased points towards presence of provocation or apprehension of injury to the appellant. In view of the attending circumstances o the case the learned counsel for the appellant prayed that the case of the appellant be considered as one of self-defence and he be acquitted. In the alternative it was prayed that his case be considered as one of grave and sudden provocation and he be convicted under section 304, Part I and sentenced be passed accordingly. The appellant having already undergone imprisonment for a period of three years and nine months during the trial and after his conviction, his sentence be confined to the period already undergone.

10. Learned counsel for the State has vehemently opposed the arguments of the learned counsel for the appellant. He submitted that the motive was proved since it is on record that the sister of the appellant was abducted by the deceased and a Hudood case was registered in this regard; that recovery of weapon of offence was effected from the appellant and that even if he is convicted under section 304, Part I, P.P.C. as having acted under provocation, sentence of ten years by the learned trial Court is not severe and should be maintained.

11. I have heard the learned counsel for the parties and have also examined the record. The motive behind the occurrence i.e. abduction of Mst. Bano, sister of the appellant by the deceased, stands proved on the record. Zina case had also been registered against the deceased and Mst. Bano, in which deceased had been released on bail. According to the medical evidence, deceased was found to have received seven fire-arm injuries which were all caused by a gun of .12 bore which was recovered from the appellant. The testimony of the alleged eye-witnesses has been disbelieved by the trial Court, however, it has been established from medical as well as recovery evidence that the deceased was killed by the appellant by 7, fires from his 2 bore gun. Appellant had also strong motive to kill the deceased who had abducted his sister and was living with her in adultery. The appellant in his statements under sections 340(2) and 342, Cr.P.C. has made bare denial of the occurrence and has not taken any specific plea of self-defence or grave and sudden provocation. However, it is to be considered that at the time of occurrence, the deceased was carrying his licensed rifle P.6 which he also fired ineffectively. This shows that the deceased' and the appellant faced each other alone when the occurrence took place. Some altercation may have taken place and the deceased, who had been released on bail in Hudood case, got registered against him, may have taunted the appellant as a result of which the appellant was incensed and he fired at the deceased, who also fired at the deceased, who also fired ineffectively.

In the light of the above discussion, this appeal is partly accepted. In view of the circumstances of the case and in the light of the law in force at the date of occurrence, conviction of .the appellant is converted from section 303(a), P.P.C. to conviction under section 304, Part I, P.P.C. anal sentence is reduced to the period already undergone by the appellant, which is I sufficient to meet the ends of justice.

N.H.Q./U-38/L Order accordingly.