LIAQAT HAYAT vs THE STATE

This judgment will dispose of Criminal Appeal No.904 of 1991 and Criminal Revision No.59 of 1992 directed against the judgment dated 14-7-1991 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha, whereby he convicted the appellant under sections 302/ 109, P.P.C. And sentenced him to undergo life imprisonment with fine of Rs.50,000 or in default thereof 5 years' R.I. , further. Benefit of section 382-B, Cr.P.C. Was also awarded to the appellant.

2. The brief facts as narrated in the F.I.R. By the complainant are that on 31-3-1990 at 9-30 a.m. The complainant alongwith his son Ghulam Sarwar deceased, Nazir Ahmad. Ashraf and Jan Muhammad had gone to Kotmomin Town in a car for some private work. They all got down from the car in front of Police Station Kotmomin and in the meantime Liaqat Hayat alias Channon accused emerged on the scene of offence while armed with a double-barrel .12 bore gun. The accused shouted Lalkara that Muhammad Sarwar deceased would not go alive and then fired at him hitting him in his chest and right hand. The gun was snatched by the P.Ws. From the accused at the spot while Sarwar succumbed to the injuries on the way to hospital. Motive for the occurrence was that Liaqat Hayat accused suspected illicit intimacy of Ghulam Sarwar deceased with his mother. It is also important to note here that on the following day of the occurrence the complainant got recorded his supplementary statement under section 161, Cr.P.C? In which he introduced a new motive of forcible occupation of land measuring 2 Killas.

3. The police after getting information about the occurrence completed all the necessary formalities and then Karim Nawaz Khan, Inspector rushed to the spot where the deceased alongwith his gun was produced before him by the P.Ws. The gun was taken into custody vide memo. Exh.P.G, Arrest of the appellant was made on the same day. Blood-stained earth was taken from the spot vide memo. Exh.P.H. He also prepared injury statement Exh.P.J. And inquest report Exh.P.K. Of the deceased. Last worn clothes were also received by him vide memo. Exh.P.D.

Muhammad Yar accused was also arrested by him in this case. Ultimately challan against both the accused persons was prepared by Muhammad Siddique Alvi, S.-I./S.H.O.

4. The prosecution in order to prove its case has produced as many as 11 witnesses including Investigating Officer, Doctor, eye--witnesses and other relevant witnesses. One C.W. Was also examined by the trial Court. After tendering in evidence report of Chemical Examiner Exh.P.L. That of Serologist Exh.P.M. And Fire-Arm Expert Exh.P.N., learned D.D.A. Closed the prosecution evidence.

Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which he pleaded his innocence. After hearing the arguments advanced by both the parties and going through the record available on the file the learned trial Court convicted and sentenced the appellant as mentioned above.

5. Learned counsel for the appellant in support of this appeal submits that motive given in the F.I.R.

Was that the appellant had suspicion of illicit intimacy between his mother and the deceased while in the supplementary statement the complainant had changed the motive that there was a dispute of land between the parties. Learned counsel submits that in fact the appellant had acted under grave and sudden provocation because when he was near the Police Station in connection with lodging a report about the highhandedness of the deceased, the deceased came there and he uttered such words which provocated the appellant and he committed the murder of the deceased under grave and sudden provocation with his licensed gun. Learned counsel submits that if both the versions are put in a juxtaposition, then the version of the appellant seems to be more plausible and convincing one. Learned counsel submits that no person would like that allegation of being bad character be levelled against his own mother. Learned counsel submits that appellant had acted under the impulse of grave and sudden provocation and he is entitled to the acquittal.

6. On the other hand learned counsel the complainant submits that the prosecution case has been admitted by the appellant about the date, time and place of occurrence. Learned counsel submits that occurrence had taken place near the gate of the police station. Learned counsel submits that case of the present appellant does not fall within the ambit of grave and sudden provocation and it would be amounting to give a licence to accused persons to take false plea and then to get the benefit of such plea. Learned counsel submits that already learned trial Court has taken a very lenient view by awarding lesser sentence.

7. Learned State counsel on the other hand adopts the same arguments advanced by the learned counsel for the complainant.

8. I have heard the learned counsel for the parties. In the instant case the occurrence had taken place at 9-30 a.m. On 31-3-1990 and the matter was reported to the police on the same day at 10- 10 a.m. At the police station. The F.I.R. Was lodged very promptly and the appellant who was armed with gun was apprehended at the spot. A very short point is involved in this case. In this regard I would like to reproduce the reply to question No. 12 in his statement recorded under section 342.

Cr.P.C.:-- "I am a poor cultivator while the deceased was a rich man and big Zamindar having immoral character. He was also a disparate person. He used to come in our house and sit with my mother in spite of my entreatment that he should not visit our house. On the day of occurrence, I was going to police station to lodge a report against the highhandedness of the deceased and when I reached near the gate of the police station the deceased came there having information about my mission.

He started giving me filthy abuses and in filthy language said that ne would now cohabit with my mother in my presence and police will not help me in any manner because of his influence with the police. I lost self-- control on hearing this and fired at the deceased with my licensed gun under grave and sudden provocation and voluntarily appeared before the police after the occurrence.

None of the witnesses were present there. The police called the complainant from his village and cooked up the false prosecution story by twisting the real facts. Later on, after 14-4-1990 on legal advice they changed the motive just to get capital punishment for me.

A bare perusal of the above reply shows that it was not a case of grave and sudden provocation.

The appellant had not seen the deceased with his mother while committing the intercourse. The only provocation which allegedly flared up the appellant was that the deceased told the appellant that he will cohabit with his mother. Moreover, according to the appellant he was going to lodge a report against the deceased but one does not go to the police station with a double-barrel gun which the appellant was holding. It is correct that the complainant party has changed the motive which was mentioned in the F. I. R. On the same day by giving supplementary statement before the police. I think this is the reason that the learned trial Court has not awarded death sentence to the appellant because there are two sentences in section 302(b), P.P.C. i.e. Death and life imprisonment. If the version or the appellant which he had taken in his statement while replying to question No.12, is accepted then it will be an open licence to the accused person to take such false pleas and to get acquittal. Although, the occurrence has been admitted by the appellant with his own version which is discarded. Already a lenient view has been taken by the learned trial Court. No ground for interference is made out. The appellant is on bail, he shall be taken into custody to serve out his sentence.