PLJ 2024 Cr.C. (Note) 245
[Balochistan High Court, Quetta]
Present: Muhammad Ejaz Swati and Nazeer Ahmad Langove, JJ.
versus
STATE--Respondent
Crl. A. No. 607 of 2022, decided on 25.10.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Criminal Procedure Code, (V of 1898), S. 410--Criminal appeal--Conviction and sentence--Reduction in sentence--Held: It is also well settled principle laid down by Honorable Supreme Court of Pakistan that when there are two conflicting versions for consideration before Court, one agitated by prosecution and other by defense and both are probable, one in favour defense is to be preferred, more so when it gets corroboration from circumstantial evidence available in case--From evidence of prosecution, corroborated by circumstantial evidence available in case, it
seems more likely that complainant party proceeded towards disputed place and restrained Appellant No. 1 from raising construction of disputed place, which resulted firing from both sides, thus, case of Appellant No. 1 is covered u/S. 302(c), PPC instead of Section 302(b), PPC--Appeal was partly allowed.
[Para 12 & 13] A & B
PLD 1994 SC 31 & PLD 1964 Pesh. 143.
M/s. Tariq Ali Tahir, Akhpal Wak Kakar and Rahim-ud-Din, Advocates for Appellants.
Ms. Noor Jahan Kahoor, Additional Prosecutor General for State.
M/s. Fahadullah Khan and Khalil Ahmed Panezai, Advocates for Complainant.
Date of hearing: 18.10.2023.
Judgment
Muhammad Ejaz Swati, J.--Appellants are aggrieved against the judgment dated 06.12.2022 (the impugned judgment), passed by learned Additional Sessions Judge-II/MCTC-I, Quetta (trial Court), whereby Appellant No. 1 (Ameer Muhammad) has been convicted under Section 302(b) Pakistan Penal Code (PPC) and sentenced to suffer imprisonment for life as Ta’zir and to pay
Rs. 5,00,000/- (rupees five hundred thousand) to the legal heirs of deceased Muhammad Farooq, in default whereof to further undergo for six (06) months Simple Imprisonment (S.I). Appellant No. 2 Jan Muhammad has been convicted under Section 324, PPC and sentenced Rigorous Imprisonment (R.I) for five (05) years and to pay fine of Rs. 20,000 (rupees twenty thousand), in default whereof to further undergo for three months S.I. The benefit of Section 382-B Criminal Procedure Code (Cr.P.C) has also been extended in favour of the appellants.
2. Facts of the care are that an FIR No. 122/2019, dated 26.09.2019, was registered with Police Station, Kharoot Abad, District Quetta, under Sections 302, 324, 427, 147, 148 and 149, PPC, wherein the complainant SI/SHO Zamin Hussain Shah stated that while patrolling of the area, he received information that at Karez Gul Gang near Killi Gwadar there was exchange of firing between two groups. Upon this information the complainant along with other police officials went towards the place of occurrence. SHO Shamshad Haider was also called upon at the place of occurrence, where he informed that on dispute of land, between the Shamozai and Badezai tribes resulted exchange of firing between both the tribes.
3. It is further alleged in the FIR that at the spot Haji Ameer Muhammad (Appellant No. 1) and Allah Gul belonging to Shamozai tribe were found seriously injured. On the other side Muhammad Farooq belonging to Badezai tribe was killed by means of gunshot and Sardar Ali alias Wali, Abdul Jabbar were seriously injured. The FIR further reveals that at the spot Haji Ameer Muhammad’s vehicles i.e. Double Door bearing No. KG-6114, Aqua bearing Registration No. BHT-740 and Toyota U.0460 were found damaged. The incident took place in front of the house of Ameer Muhammad.
4. After investigation of the case, two separate challans out of the same FIR were submitted before the Court and the trial Court on the version of Badezai tribe commenced the instant proceedings. The appellants were tried in Sessions Case No. 44/2022, under Section 302, 324, 147, 148 and 149, PPC for committing murder of Muhammad Farooq and attempted to commit Qatal-e-Amd of Sardar Ali alias Wali (PW-3) and Abdul Jabbar (PW-4) respectively.
5. During the trial, the prosecution examined 10 witnesses. When examined under Section 342, Cr.P.C., the appellants denied the allegations of prosecution. They did not record their statements under Section 340(2), Cr.P.C., however, produced DW-1 Nasar-ud-Din Qanoongo who brought on record Mutation No. 87, 54 as Ex.D/1-A and Ex.D/1-B respectively. The learned trial Court vide impugned judgment convicted and sentenced the appellants as mentioned herein above.
6. Learned counsel for the appellants contended that the complainant party including deceased Muhammad Farooq, PW-3 Sardar Ali alias Wali, PW-4 Abdul Jabbar and Shahi Khan along with other persons came to the house of appellants, armed with deadly weapon and tried to occupy the land of the appellants, but on refusal they resorted indiscriminate firing. As a result of their firing Appellant No. 1 along with Allah Gul sustained serious injuries of firearm, but this material aspect of the matter has not been considered by the trial Court and benefit of self-defense has not been extended; that there are material contradictions and dishonest improvements in the statements of prosecution witnesses, particularly PW-2, PW-3 and PW-4, therefore, impugned judgment reflects misreading and non-reading of evidence; that it was cross version and the complainant party came to the house of Appellant No. 1, whereby besides making murderous assault upon the appellants and another also damaged the vehicles belonging to the Appellant No. 1, which facts are quite obvious from contents of the FIR, site plan and other circumstantial evidence coupled with conviction of PW-3 and PW-4 for offence under Section 324, PPC, but the trial Court without deciding the question of aggressor passed the impugned judgment, which under the law cannot be sustained; that the statements of alleged ocular witnesses i.e. PW-2, PW-3 and PW-4 were recorded with delay of one day, without any plausible explanation, therefore, the deliberation, consultation and false implication of the appellants has not been adjudged in the impugned judgment, on this score too the impugned judgment is liable to be set-aside; that the motive alleged by the complainant party was dispute over property, but nothing has been produced on record to substantiate their claim with regard to ownership of the property, which was owned by the Appellant No. 1, having ownership documents and the same were produced through defense witness, therefore, the impugned judgment is liable to be set-aside.
7. Learned Additional Prosecutor General assisted by learned counsel for the complainant contended that the prosecution through overwhelming credible evidence substantiated the charge against the appellants, who started firing upon the deceased, PW-3 and PW-4 and their injuries were also supported by the Medical Evidence. The appellants in their version had conceded the injuries of PWS. The injured and PW-3 were taken to hospital from the spot and nothing has been recovered from them, which shows that the complainant party was unarmed and went to the house of the Appellant No. 1 for negotiation, but the appellants had taken the undue advantage and intentionally and deliberately committed the murder of deceased Muhammad Farooq and made murderous assault upon the PW-3 and PW-4; that the trial Court after considering the above evidence has passed the impugned judgment, which is also based on proper appreciation of evidence on record, therefore, the impugned judgment passed by the trial Court is liable to be sustained. Learned counsel for the complainant placed reliance on cases reported in 2002 SCMR 1361, 2023 SCMR 478 and 2002 SCMR 203.
8. We have heard the learned counsel for the parties and perused the record, which reveal that on the basis of FIR No. 122 of 2019, under Sections 302, 324,427, 147, 148, 149, PPC, the complainant SI/SHO Zamin Hussain Shah has given factum of the incident gathered from the place of incident. The FIR No. 122/2019 is common between the appellants and complainant party. The appellants faced the trial under Section 302, 324, PPC in Session Case No. 44 of 2022, while the prosecution witnesses namely PW-3 (Sardar Ali alias Wali), PW-4 (Abdul Jabbar) had faced trial in session case No. 43 of 2022, under Sections 324, 427, 147, 148 and 149, PPC and on the version provided by the appellants they were also convicted by the trial Court, under Sections 324, 147, 148 and 149, PPC, vide separate judgment dated 06.12.2022, therefore, the presence of above PWs at the place of incident, at the time of occurrence, has also substantiated by the Appellant No. 1 and the injured Allah Gul, supporting the version of appellants in that case, therefore, their presence at the place of incident at the time of occurrence is not under cloud. Though their statements were recorded on 27.09.2019, with delay of one day of the occurrence, as they were injured, while PW-2 Muhammad Afzal presence at the spot has been shown by the victim Allah Gul in session case No. 43 of 2022.
9. The occurrence took place at the broad daylight on 26.09.2019 at about 10:30 am and the parties were known to each other. The FIR was registered on the same day at about 11:15 am by the SI/SHO Zamin Hussain Shah PW-1 on receiving information about the exchange of firing between the groups belonging to Shamoozai and Badezai tribes. In his Murasila Ex.P/1-A it was contended that he reached at the house of Appellant No. 1 (Ameer Muhammad) and found that Appellant No. 1 and Allah Gul had received firearm injuries, while from the Badezai tribe Muhammad Farooq died at the spot due to receiving firearm injuries and Sardar Ali alias Wali, Abdul Jabbar also received serious injuries. It is further mentioned that at the site the vehicles mentioned therein belonging to the Appellant No. 1 were damaged during the incident.
10. The Ocular account in this case has been furnished by PW-2 Fazal Muhammad (eye-witness), PW-3 Sardar Ali alias Wali (injured), PW-4 Abdul Jabbar (injured), besides, prosecution also relied upon the disclosure of Appellant No. 2 Jan Muhammad as Ex.P/8-A. According to the ocular account furnished by the above PWs they along with Muhammad Farooq (deceased) went to the house of Appellant No. 1 as appellants were trying to occupy their land and the purpose of their presence at the place of incident was to negotiate with the Appellant No. 1. As soon they knocked the door, the appellants and other person came out and abused them and started firing. Appellant No. 1 fired upon Muhammad Farooq (deceased) on his head, while Appellant No. 2 fired upon PW-3 Sardar Ali alias Wali on his shoulder and caused firearm injury on the person of PW-4 i.e. on his knee. The medical evidence produced by the PW-6 further supports the version of the above PWs with regard to time seat of injuries and weapon used by the assailant.
11. According to contents of the Murasila Ex.P/1-A the site plan Ex.P/9-B and Ex.P/9-C respectively, the place of occurrence is in front of the house of Appellant No. 1 (disputed place), where the complainant party came along with deceased Muhammad Farooq, PW-2, PW-3 and PW-4 alongwith their respective weapons. The Appellant No. 1 through defense witness DW-1 also produced copy of mutation in his favour as Ex.D/1-A, Ex.D/1-B, which have not been rebutted by the prosecution.
12. The complainant party came to the disputed place and the circumstances show that the act on the party of appellants appeared to be in private defense of body and right of private defense of property. Though the appellants have not specifically taken the said plea under Section 342, Cr.P.C., but from the above circumstances of the prosecution case it spelled out for the accused. Reference in this respect to be made in case titled Mohammad Zaman vs. Dost Mohammad and others (1988 SCMR 388).
It is also well settled principle laid down by the Honorable Supreme Court of Pakistan that when there are two conflicting versions for consideration before the Court, the one agitated by the prosecution and the other by the defense and both are probable, the one in favour the defense is to be preferred, more so when it gets corroboration from the circumstantial evidence available in the case. Reliance in this respect is to be placed on case titled Ghulam Hussain alias Hussain Bakhsh and 4 others vs. The State and another (PLD 1994 SC 31) and case titled Muhammad Ishaq and others vs. The State (PLD 1964 Pesh 143).
13. In the instant case both the parties have put their versions. Though the prosecution witnesses substantiated the case of prosecution with regard to murder of the decease Muhammad Farooq by the Appellant No. 1 and making murderous assault upon the PW-3 Sardar Ali alias Wali and PW-4 Abdul Jabbar by the Appellant No. 2, but none of the parties came with whole truth and both of them had molded the episode of occurrence according to their convenience and real cause of the occurrence remained suppressed by the respective parties.
From the above evidence of the prosecution, corroborated by the circumstantial evidence available in the case, it seems more likely that the complainant party proceeded towards the disputed place and restrained the Appellant No. 1 from raising construction of the disputed place, which resulted firing from both the sides, thus, the case of the Appellant No. 1 is covered under Section 302(c), PPC instead of Section 302(b), PPC.
In view of the above, Criminal Appeal No. 607 of 2022 is partly allowed while maintaining the compensation awarded by the trial Court, the conviction of Appellant No. 1 (Ameer Muhammad) is converted from Section 302(b) to one under Section 302(c), PPC and his sentence is reduced from life imprisonment to 15 years R.I. The conviction and sentence awarded to the Appellant No. 2 is maintained and to his extent appeal is dismissed. Benefit of Section 382(b), Cr.P.C. stands extended in favour of the appellants.
(A.A.K.) Appeal allowed
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