MUHAMMAD ABBAS Versus State

IJAZ AHMAD CHAUDHRY, J.--- This appeal has been directed against the judgment, dated 21-12-2(103 passed by Raja Muhammad Arshad learned Additional Sessions Judge, Gojra, District Toba Tel Singh through which he has convicted the appellant under section 302(c), P.P.C. and sentenced him to 25 years' R.I. with a direction for payment of compensation of Rs.1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months' S.I. Moreover, benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. The occurrence in the present case had taken place at 9-30 a.m. on 8-8-2003 in village Chak No.438/JB within the jurisdiction of Police Station Saddar Gojra while the matter was reported to the police vide F.I.R. No.329 by Babar Hussain son of Mst. Azra Bibi deceased P.W.6 recorded by Muhammad Yar, S.-I. P.W.9 under section 154, Cr.P.C. at Police Station Saddar Gojra on 8-8-2003 at 10/11-00 a.m.

3. The brief facts narrated in the F.I.R. are that the complainant was a labourer and resided in Chak No.438/JB. On the day of occurrence he along with Mst. Azra Bibi his mother was carrying fodder on a donkey cart. At about 9-30 a.m. when they reached in the Bazar near their house, all of a sudden Muhammad Abbas appellant armed with pistol came there who while raising Lalkara fired at Mst. Azra Bibi hitting on the left thigh which passed through and through. She fell down. On hearing noise of hue and cry Bashir Ahmad brother and Ghulam Rasool father of the complainant were attracted to the spot who also witnessed the occurrence. The appellant while raising Lalkara succeeded in fleeing from the place of occurrence. Mst. Azra Bibi was taken in a serious condition to the hospital at Gojra where she was medically examined and then died.

4. The motive behind the occurrence was alleged that sometime earlier to the occurrence Muhammad Abbas appellant had raised suspicion against the complainant for committing theft of his hens before his brother Bashir Ahmad, which resulted into exchange of hot words and due to this reason Mst. Azra Bibi was done to death.

5. After the recording of the F.I.R. Muhammad Yar, S.-I. P.W.9 went to the place of occurrence, took into possession blood-stained earth. He also prepared inquest as well as injury statement of the deceased and sent her dead body to the mortuary. He arrested the appellant on 16-8-2003 who during investigation led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.P.E.

6. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court; copies of documents required under section 265, Cr.P.C. were supplied to the appellant. Then the charge was framed which was denied by the appellant and the prosecution in order to prove the guilt of the appellant produced as many as nine witnesses. To prove the ocular account Babar Hussain appeared as P.W.6 along with his brother Bashir Ahmad P.W.7. The latter had also witnessed the recovery of pistol from the appellant. Lady doctor Miss Nasira Aziz P.W.8 had firstly medically examined Mst. Azra Bibi in injured condition and then after her death she conducted the post-mortem examination. She observed one entry wound with fire-arm on the left thigh with its exit. The investigation was conducted by Muhammad Yar, S.-I., who appeared as P.W.9. The remaining witnesses' are of formal nature. During the course of trial statement of Dr. Waseem Ullah Khan C.W. was also recorded who had medically examined Muhammad Abbas and found fire-arm injury on the left ring finger which was kept under observation.

7. After close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. who denied the allegation and to a question that "why this case against you and why the P.Ws. have deposed against you?" He took the specific plea of self-defence which is reproduced hereunder:--

"That on the preceding night of the occurrence my hens from my Dera were, stolen and I have suspicion in my mind against Babar Hussain complainant. In the morning at about 9-30 a.m. I came to the house of complainant Babar Hussain where I knocked the outer door of the house of the complainant and the complainant came out of his house and I inquired from him about the theft of my hens, whereupon an altercation took place between me and the complainant and exchange of abuses also happened. At this juncture Babar Hussain complainant threatened me that he would teach me a lesson just now. Babar Hussain complainant rushed inside the house and took out a pistol from his house. His mother Azra Bibi (deceased) was also following the complainant while beseeching him not to fire. They came in the Bazar and Babar Hussain complainant hurriedly fired at me which hit on my ring finger of left hand and in retaliation' and exercising of my right of self-defence I fired at Babar Hussain who kept aside and that fire hit Mst. Azra Bibi deceased on her left thigh. In fact the complainant Babar Hussain was the assailant and the aggressor, I only exercised my right of self-defence and I had no intention to kill Mst. Azra Bibi. The P.Ws. are inter se related with each other and due to the relationship they have deposed against me falsely."

The appellant produced Ghulam Shabbir as D.W.1 and closed his evidence. However, he did not make statement under section 340(2), Cr.P.C.

8. The learned trial Court after hearing the learned counsel for the parties passed the impugned judgment of conviction and sentence which is being assailed through this appeal.

9. Learned counsel for the appellant contends that the defence version was more nearer to the truth and also borne out from the record. It is also contended that the learned trial Court has itself held that it was not a case falling under section 302(b), P.P.C. due to the special circumstances of the present order. It is also contended that there were contradictions in the statements of the witnesses of the prosecution which had miserably failed to prove the case against the appellant beyond any shadow of doubt and donkey-cart on which the fodder was being brought by the complainant was not taken into possession during the investigation, which casts serious doubt in the veracity of the prosecution version.

10. Learned counsel for the State on the other hand opposes this appeal on the ground that the appellant himself had gone to the place of occurrence while armed with pistol, who committed this offence in a pre-planned manner and he had already been dealt with leniently by awarding lesser punishment keeping in view the peculiar facts and circumstances of the present case. It is next contended that causing an injury with fire-arm was a clear intention of the appellant to kill the deceased.

11. I have heard the arguments of the learned counsel for the parties and also perused the record. The story narrated by the complainant P.W.6 and his brother Bashir Ahmad P.W.7 was that Babar Hussain P.W.6 and deceased Mst. Azra Bibi mother of P.W.6 had been carrying fodder on a donkey-cart when the appellant emerged at the scene and fired at Mst. Az.a Bibi, who became seriously injured and was taken to hospital where she died. On the other hand the appellant narrated a different version that his hens were stolen and he had a suspicion against Babar Hussain complainant, therefore, he arrived outside his house. There some altercation took place between them' and the complainant after bringing pistol from inside the house fired at him hitting on the finger of his hand and in self-defence the appellant also fired at him which hit his mother Mst. Azra Bibi incidentally.

12. In order to prove the ocular account the prosecution produced P.W.6 Bashir Hussain and P.W.7 Bashir Ahmad, who are real brothers inter se and sons of the deceased. The occurrence had taken place in front of' their house, hence the presence of both these witnesses at the spot at the time of occurrence cannot be' doubted. They had no previous enmity or grudge to falsely implicate the appellant in the present case Hence they cannot be termed as interested witnesses merely on account of their close relationship. However, their statements cannot be termed as gospel truth as the occurrence appears to have not taken place in the manner narrated by them. The complainant Babar Hussain P.W.6 during cross-examination firstly showed ignorance if the appellant Muhammad Abbas had received any fire-arm injury upon his finger of left hand but in the same breath he conceded that the appellant had received a fire shot at the finger of his left hand. The factum of receiving of injury by Abbas appellant was concealed by the complainant in his statement under section 154, Cr.P.C. and also before the learned trial Court in his examination-in-chief which casts serious doubt about the veracity of his version. The other eye-witness P.W.7 Bashir Ahmad stated that after hearing the hue and cry 2nd alarm of firing shot they rushed to the place of occurrence but before they came out of their house, the appellant had already fired at the deceased and did not fire in their presence. P.W.7 even stated that when they reached the place of occurrence, the appellant had already fled away from the spot. In this way P.W.7 had excluded his presence at the time of firing by the appellant at the deceased and his statement is not worthy of reliance. However, during cross-examination P.W.7 frankly conceded that the appellant came outside their house and asked his brother Abbas that he had committed the theft of his hens. The above evidence given by the P.Ws.6 and 7 themselves is sufficient to falsify the story narrated by the complainant that the occurrence had taken place when he along with his mother was coming on a donkey-cart while taking fodder. Even otherwise both these witnesses and Muhammad Yar Investigating Officer P.W. admitted that donkey-cart was not taken into possession and even the same was not produced before the Investigating Officer during the investigation. It is also staled by P.W.6 that though the deceased while sitting on a donkey-cart was fired at and she received injury yet it was not stained with blood. Even in the site plan donkey-cart was not shown.

13. In the above facts and circumstances it is crystal clear that the occurrence had not taken place in the manner narrated by prosecution and the defence plea taken by the appellant appears to be more plausible, which is borne out from the evidence on record. The defence plea is further supported by the statement of C.W. Dr. Waseem Ullah Khan M.O. Eye-cum-General Hospital, Gojra who had medically examined Muhammad Abbas appellant on 10-8-2003 and found a lacerated wound of 4 c.m. x 3 x bone deep x margins blackened on left ring finger. He also admitted during cross-examination that due to the said fire-arm injury Surgeon of Eye-cum-General Hospital Gojra had amputated the injured finger of the appellant. It was not the case of the prosecution that such injury was not received by the appellant and that was self-inflicted injury. It is also admitted by Muhammad Yar, S.-I. P.W.9 during cross-examination that on the clay of occurrence he came to know that the appellant Abbas was admitted in the hospital as he also received some bullet injury on his left finger. According to the defence plea the appellant had acted in sell-defence but the nature of injury caused by him on the person of the deceased is sufficient to show that he had exceeded the right of self-defence. Moreover, the trial Court had rightly observed that the occurrence had not taken place in a pre-planned manner, which occurred at the spur of moment and the fire incidentally hit Mst. Azra Bibi deceased.

14. In the above facts and circumstances the learned trial Court had rightly convicted the appellant under section 302(c), P.P.C. which is maintained but the awarding of sentence of 25 years' R.I. appears to be harsh as the appellant had also received fire-arm injury on the left ring finger, which as a result of said injury was subsequently amputated. As such the same is reduced to 10 years' R.I. which will meet the ends of justice. Similarly the compensation amount is also reduced from Rs.1,00,000 to Rs.50,000 but in default of payment thereof the appellant will further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. shall also be extended to the appellant.

15. With the above modification in the quantum of sentence only the impugned judgment of conviction is maintained and this appeal is dismissed.

H.B.T./M-445/L Sentence reduced.