ZULFIQAR vs THE STATE

' QAZI MUHAMMAD FAROOQ, J.---This petition for leave to appeal is directed against the judgment dated 8-8-2001 of learned Judge in Chambers of the Lahore High Court, Lahore passed in Criminal Appeal No,1195 of 1999 whereby the petitioner's appeal assailing the judgment of the learned Sessions Judge, Jhang was dismissed. The learned trial Judge vide his judgment dated 26-10-199.9 had convicted the petitioner under section 302(b), P.P.C. For committing Qatl-e-Amd of one Ashiq Hussain and sentenced him to imprisonment of life with direction to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased or suffer six months' R.I. In default. He was also convicted under section 324, P.P.C. For making an attempt to commit Qatl-e-Amd of Abid Hussain and sentenced to 10 years' R.I. And a fine of Rs,10,000 or four months' R.I. In default. He was further convicted for causing Jaifah to Abid Hussain and ordered to pay Arsh to the extent of 1/3rd of 'Diyat' as prescribed by the Government under section 323(2), P.P.C. And also sentenced to ten years' R.I.

Under section 337-D, P.P.C. All the sentences of imprisonment were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.

2. Put shortly, the accusation against the petitioner was that on 17-11-1997 at about 9-30 a.m. When Nasir Ali complainant alongwith his brother Ashiq Hussain, Abid Hussain, Asghar Ali and Fateh Muhammad reached the main gate of Tehsil Courts, Chiniot, after attending proceedings in a criminal case, he appeared on the scene armed with a pistol and fired at Ashiq Hussain and Abid Hussain as a result of which the former died and the latter was injured. The motive for the occurrence was the annoyance of the petitioner over strained relations between the deceased and his wife who was his niece.

3. The petitioner was arrested on the same day and during his personal search a .30 bore pistol alongwith five live rounds was recovered which was sent to the Fire Arms Expert. The crime empties recovered from the spot were also sent to the Fire Arms Expert and were found to have been fired from the crime pistol.

4. When examined under section 342, Cr.P.C. The petitioner attributed the fatal shot to Abid Hussain and after admitting that he had fired at Abid Hussain took the plea of self-defence in the following terms:-- "The criminal case under section 324/34, P.P.C. Got registered by me against Ashique Hussain, Abid Hussain and Jaffar Hussain was pending in the Court of Magistrate Chiniot for the last 1-1/2 years and there had been fixed innumerable dates therein. 1 had been prosecuting that case and thus had been appearing in the Court on the dates fixed in the case. Ashique Hussain, Abid Hussain and Jaffar Hussain had also been appearing therein. Had I any grudge against any of them, there was nothing for me to retaliate or re-act. There had never been any re-action on my part throughout.

On the fateful day, Ashique Hussain etc. Had also brought to the Court Mst. Roshi Bibi, my niece.

After the case was adjourned and on way back, I, per coincidence, struck in the Dewrhi against Ashiq Hussain whereon he challenged me saying as to why I had given the pushes to my son-in- law (from son-in-law meaning Ashique Hussain himself). Resultantly, there had been exchange of abuses and grappling. Abid Hussain thereon fired a shot at me but it missed me and instead it struck Ashique Hussain. Abid Hussain was then out to fire another shot at me, but before that I fired a shot at him with my licensed pistol. Thereafter, I immediately went to the police station and surrendered myself alongwith my pistol to the police. Jaffar Hussain wanted to state what had actually happened but he was not allowed to do so and thus totally excluded in the case in any capacity. The Investigating Officer called Nasir Ali, Fateh Muhammad and Asghar Ali (the close relatives of the deceased) from their village, baked up the story and registered the present case.

Abid Hussain, being himself a culprit in this case, absconded and he remained absconding for long till 6-2-1998. The Investigating Officer squandered, my licensed pistol which was superior in quality and instead got from the complainant an ordinary and Bazar pistol (P-5) in which Talib Hussain even made a complaint to the DSP Chiniot, a photostat copy whereof I produce as Mark-B. I also produce a photostat copy Mark-C of my licence for .30-bore pistol. Deceased Ashique Hussain was an immoral person and he, therefore, even dissipated away his good junk of land."

5. Learned counsel for the petitioner urged before us that the plea of self-defence taken by the petitioner had an edge over the version of the prosecution as the prosecution had failed to establish its case against the petitioner beyond any reasonable doubt. It was also contended that there was considerable delay in lodging the F.I.R., the statement of Abid Hussain under section 161, Cr.P.C. Was recorded after 80 days of the occurrence and the statement of Jaffar, who had accompanied the injured to the hospital, was not recorded.

6. The contentions have not impressed us. The prosecution case stands established on record beyond any reasonable doubt in the light of ocular evidence furnished by three eye-witnesses, namely Asghar Ali, Nasir Ali and Abid Hussain who had sustained fire-arm injuries in the occurrence. The ocular evidence does not suffer from any noteworthy infirmity and is amply corroborated by the incriminating recovery, positive report of the Fire-Arms Expert and the stance taken by the petitioner in his statement under section 342, Cr.P.C. Which goes a long way to establish his presence on the spot at the time of occurrence mentioned in the F.I.R. All the eye- witnesses in general and the injured eye-witness Abid Hussain in particular are natural witnesses and their testimony is confidence-inspiring. The petitioner has not denied the occurrence and has also admitted presence of Abid Hussain on the spot, therefore, delay in lodging the F.I.R. And belated recording of the statement of Abid Hussain under section 161, Cr.P.C. Are immaterial and cannot be blown out of the proportion.

7. The plea of self-defence taken by the petitioner has neither been established by evidence nor can be inferred from the prosecution evidence. As a matter of fact it seems absurd and false when tested on the touchstone of the medical evidence. According to the medical evidence Abid Hussain had sustained a fire-arm injury on his back. If Abid Hussain had fired at the petitioner he must be facing him, therefore, the shot fired by the petitioner in self-defence ought to have hit him on the front and not on the back side of his body. As regards the assertion that the first shot fired at the petitioner by Abid Hussain had hit the deceased suffice it to say that it is simply preposterous as the deceased, who too was hit on the back, being on the side of Abid Hussain was not standing between him and the petitioner.

' No ground for grant of leave has been made out. The petition is, therefore, dismissed and .