SHABBIR AHMAD vs THE STATE

' SALEEM AKHTAR, J.--This appeal, with the leave of the Court, has challenged the judgment of a learned Judge of the Lahore High Court whereby the conviction and sentence awarded by the learned trial Court was maintained.

2. The prosecution case is that on 2-8-1984 at about mid-day when Abdul deceased accompanied by his brother Ghulam Haider complainant went to see their watercourse in their land situated in the area of Village Rattian. They saw the appellant and Tahir Mahmood the acquitted accused dismantling the watercourse. Abdul deceased ran towards them and the appellant picked up his .12 bore gun and Tahir Mahmood brought out his pistol. When the deceased was at a distance of 15/20 paces away the appellant fired at him with his gun hitting him on his forehead who fell down.

Tahir Mahmood fired his pistol twice at the deceased who was lying but missed the target. Both the accused then ian away raising Lalkara. In the F I.R. Rashid P.W. Has been described as an eye- witness. Abdul was taken in an injured condition to the hospital who died on 8-8-1984. Both the accused were tried under section 302/34, P.P.C. The appellant was convicted and sentenced to life imprisonment and fine while Tahir was acquitted.

3. Leave was granted to consider whether the defence version was more plausible and further that the statement of the accused should have been accepted or rejected in toto and reliance should not have been placed only on a portion for corroborating the ocular account.

4. Learned counsel for the appellant contended that there were two versions of the incident one projected by the prosecution the other pleaded by the defence. These two versions should have been examined in juxtaposition and then the Court should have decided which version was more plausible and nearer to truth. The prosecution case has been stated in the foregoing paragraphs.

The plea taken by the appellant in his statement under section 342 of the Cr.P.C. Was as follows:-- "The fact of the matter is that the entire prosecution story deposed to by Ghulam Haider and Abdul Rashid, P.Ws. Is false. What actually happened was that the complainant party had no turn of water on that day. It was my turn. According to the mutually agreed arrangements of the village proprietor body I was utilizing the water from the watercourse when Muhammad Khan, Irshad, accompanied by Ghulam Haider complainant and Abdul deceased armed with guns came there.

All these persons are my enemies and they wanted to murder me due to previous enmity and litigation. They fired shot at me from some distance. My brother Wazir All is an Army employee and had licensed gun at the house which I had with me at that time. I also fired in retaliation. There was an exchange of fires between me and the aforesaid persons. In this exchange of firing Abdul deceased received some stray pellets and got injured. The complainant party in collaboration with the police framed a distorted version of the occurrence as suited to them. The eye-witnesses are false. The licensed gun of my brother Wazir Ali was shown to the police but they did not take into possession and instead they planted recovery of gun P3 upon me in order to falsely implicate in another case under section 13 Arms Ordinance.

' After the aforesaid incident I went to Gujranwala to seek the help of the D.I.-G. Of Police, because the complainant and the local police in league with each other had registered this false case against me and the co-accused. I was arrested by Gujranwala Police as a suspect and they recorded my arrest as suspect in various cases and ultimately got me discharged from the Jail and handed me over to the local police of P.S., Rayya. They would not hand me over to P.S., Rayya, because the Rayya Police was not prepared to take my custody lest. I should demonstrate against my false implication and instead they challaned me in absentia. It was beyond my control to appear before Rayya Police as I was detained by Gujranwala Police and also kept in Gujranwala Jail for a long time as a suspect. I did not intentionally abscond."

' By referring this statement of the appellant the learned counsel contended that occurrence is admitted but in a different manner and by considering both the versions in juxtaposition the version given by the defence fits in squarely in the circumstances of the case. The learned Judge while examining the defence plea observed as follows:-- "In any case, the occurrence was admitted even by the appellant but he gave his own version of self-defence. It took place in the land of Mst. Zohra Bibi and not in the land of the appellant which was located at some distance across the disputed watercourse. During the occurrence neither the appellant nor his acquitted co-accused suffered any injury at the hands of their opponents. If the deceased and his three companions were really armed with fire-arms and attacked the appellant, as alleged by him, he would have inevitably suffered some injury but he received not a scratch. It is, therefore, obvious that when Abdul (deceased) proceeded towards the appellant in order to stop him from demolishing the common watercourse, the latter, who was ready with a gun, straightaway fired at him, causing him fatal injury. Thus, no right of private defence of property or person was available to him against the deceased who was coming to him for preventing him from doing an unlawful act of demolishing the common watercourse. He was, therefore, rightly convicted and sentenced and his appeal is dismissed."

5. From the aforestated observation it is clear that the learned Judges have not relied on any inculpatory part of the appellant's statement. The appellant had made the above-quoted statement under section 342, Cr.P.0 which has its own import and significance. The object of section 342, Cr.P.0 is that the Court should draw the attention of the accused to the specific points in evidence upon which the prosecution relies to prove its case against him (accused) so that he may have the opportunity to give any explanation if he so desires. Section 342 also aims at bringing to the notice of the accused such points of evidence which are likely to influence the mind of the Court to draw adverse inference against him. The accused is thus given a chance, if he so desires, to offer his version or explain circumstances appearing in evidence against him.

6. The statement of an accused has to be read in its entirety. It is to be accepted or rejected as a whole. It is not permissible to accept the inculpatory part to corroborate the prosecution evidence and reject the exculpatory passage. Where the accused makes a statement to have committed an offence but simultneously raises plea constituting a defence, the Court will not rely on the inculpatory portion and reject the exculpatory one. However, where prosecution has produced clear, cogent and reliable evidence, the exculpatory part may be rejected and conviction can be recorded on such evidence. In this case the appellant had not only made a statement admitting the occurrence in a different way but such a suggestion was made to the P.Ws. Who had denied it.

Apart from the complainant, Rashid P.W.8 has also been cited as an eyewitness of the occurrence.

The testimony of Ghulam Haider P.W.9 who is brother of the deceased has also related the occurrence in a clear and cogent manner. It is corroborated by the medical evidence and also by the testimony of Rashid P.W.8. Merely because Ghulam Haider is the brother of the deceased will not be sufficient to discard his testimony which otherwise seems to be truthful. There is no material contradiction which may discredit his testimony. P.W.8 had been a tenant of the accused party who had been ejected but this does not mean that there has been such animosity or enmity due to which he may have deposed against the appellant. Both the Courts have correctly analysed and examined the evidence produced by the prosecution and have come to the correct conclusion that the prosecution has proved the case beyond reasonable doubt.

7. Coming to the version of the defence it is striking to note that the appellant did not lodge any report in the police. This fact coupled with the fact that he had absconded which he had tried to explain in an unsuccessful manner completely demolishes the defence plea. In the facts and circumstances of the case defence plea cannot be a correct and true version of the incident which had happened. The dispute arose in respect of irrigating the land from the watercourse. The incident occurred on Friday on which day both the parties had their turn of irrigation. The appellant was diverting the water and had damaged the Khal which must have caused grievance and altercation between the parties. The appellant was armed with a gun which was fired and hit at the vital part of the deceased--the forehead. If the complainant and the deceased were armed with gun they must have fired with it but there is no such evidence of firing by them. The entire story pleaded by the defence seems to be a cooked up plea. As the motive was not proved and the incident seems to have occurred without any premeditation both the Courts have awarded life imprisonment and fine ' The appellant was arrested in this case on 14-12-1985 but it is stated that earlier he had been arrested in a case and had remained in jail soon after the incident. While maintaining the conviction and sentence passed by the learned Judge of the High Court we allow the benefit of section 382-B of the Cr.P.C. To the appellant. With these observations the appeal is dismissed.