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Petitioner: MUHAMMAD IQBAL VS Respondent: THE STATEHonorable Justice Ali Nawaz ChowhanRana Muhammad Arshad,Zafar Iqbal Chuhan,Mirza Abdullah Baig
2004 P Cr
2004 P Cr. L J 949
[Lahore]
Before Ali Nawaz Chowhan, J
MUHAMMAD IQBAL---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No. 1775 of 2000 and Criminal Revision No. 138 of 2001, decided on 22nd May, 2002.
Penal Code (XLV of 1860)------
----Ss. 308 & 302(c)---Criminal Procedure Code (V of 1898), S.544-A-- Appreciation of evidence---Real facts had been suppressed by the complainant---Investigation in the case was not properly made-- Occurrence had taken place in day time in which cross-firing appeared to have been resorted to both the parties were aggressive against each other---Factors such as provocation and heat of passions could not get consideration on account of suppression of true facts---Conviction of accused under S.308, P.P.C. was altered to S.302(c), P.P.C. in circumstances and he was sentenced to undergo 14 years' R.I. and to pay a sum of Rs.2,00,000 as compensation to the legal heirs of the deceased under S.544-A, Cr.P.C.---Complainant was not entitled to Diyyat in circumstances.
Rana Muhammad Arshad for Appellant.
Zafar Iqbal Chuhan for the Complainant.
Mirza Abdullah Baig for the State.
Date of hearing: 22nd May, 2002.
JUDGMENT
This judgment shall dispose of Criminal Appeal No. 1775 of 2000 as well as Criminal Revision No. 138 of 2001 filed by the complainant side asking for enhancement of sentence.
2. The matter pertains to case F.I.R. No.117, dated 12-5-1995 registered at Police Station Mangtanwala. District Sheikhupura, aim sections 302, 324, 148, 149, P.P.C.
3. The appeal emanates from the judgment, dated 27-11-2 000 handed down by Malik Nasim Hassan, learned Add4ional Sessions Judge, Sheikhupura. Whereby, he convicted the appellant Muhammad Iqbal under section 308, P.P.C. and sentenced him to pay Diyyat and also to suffer 14 years' R.I. as Ta'zir for having caused the Qatl-e-Amd of Muhammad Aslam alias Ashraf.
4. Thirteen people were tried by the trial Court besides Mumtaz, an accused in the P.I.R., who was declared a proclaimed offender and his perpetual warrant of arrest had been issued. Three other accused mentioned in the F.I.R. including one Sohna son of Shara were not tried because they had been reflected in Column No.2 of the report under section 173 of the Cr.P.C. and they were never summoned nor the complainant party their summon. Amongst them, Sohna is stated to have caused a fire-arm injury to P.W. Nasir. The latter however, did not seek for his trial. The eleven other accused who were tried, were also acquitted.
5. The complainant Kala (P.W.10) had got recorded the F.I.R. (Exh.P.B.) and he supported his version through his testimony recorded by the trial Court and the relevant portion of it is reproduced below in extenso:--
"About four years and eight months before at about 7 a.m. Nasir Tarkhan was preparing and finishing doors of my newly constructed houses. My wife Mst. Khurshid and my son Aslam alias Ashraf was also present there. All of a sudden we heard fire reports. My son Aslam alias Ashraf came in the courtyard when accused Iqbal son of Bashir who was armed with .12 bore gun and gave direct fire shot at the chest of my son Aslam alias Ashraf, Iqbal son of Bashir is present in the Court. At that time accused Manzoor, Umar Hayat, Khushi Muhammad, Zaheer Abbas, all present in the Court, and all armed with .12 bore guns came there. Sona son of Shara accused who is not present before the Court was also armed with .12 bore gun. Accused Khalil, Pervaiz, Arshad, Mumtaz, Zulfiqar all present before the Court and all were armed with carbines. Accused Ishaq, Allah Ditta, Iqbal son of Sadiq, Ahmad Din all present before the Court and all armed with rifles also came at the spot. Bashir son of Shara who is not present in the Court was also armed with rifle. All the abovesaid accused persons attacked at me and my family members including my wife. I took refuge inside the house. Fire shots hit on the walls of my house. Nasir P.W. was also present in my house in the courtyard and he attempted to rescue Aslam my son. Nasir raised hue and cry and came outside the main gate in the street when Sona son of Shara gave a fire shot at him which hit him on his left leg. All the assailants decamped."
While stating the motive part of the occurrence, he stated that a day prior to the occurrence, there was a quarrel and the appellant with others had injured the wife of the brother of the complainant and two other women and the parties were locked in the cross-cases. He alleged that it was on account of the previous day's occurrence that the appellant alongwith others in prosecution of their common object had committed the aggression and murdered his son.
6. Nasir (P.W.11) supported the complainant's case while also alleging that he had suffered a fire-arm injury at the hand of Sohna son of Shaha on his left leg. He had been medically examined. The M.L.R. is Exh.P.N.
7. Dr. Muhammad Aslam, Senior Medical Officer of D.H.Q. Hospital, Sheikhupura had conducted the autopsy on the dead body of Muhammad Aslam alias Ashraf. The observations recorded by him during his testimony before the trial Court are reproduced below in extenso:--
"It was a dead body of young man of average built wearing Shalwar Kameez of black colour and white Bunyan. Clothes were heavily blood-stained and corresponding holes of fire-arm injuries were present on Kameez and Bunyan which were signed and handed over to the police. Eyes and mouth were semi opened, rigor mortis and post-mortem staining were present. No mark of legislature was present around the neck.
I found following injuries on the dead body:--
(1) A fire-arm wound of entry 3 c.m. in dia, x going on front of right chest upper part 9 c.m. above and outer to the right nipple, blackening and tattooing was present on the edges of wound.
(2) A fire-arm exit wound 0.8 c.m. in dia on back of left chest upper part 3 c.m. left to the mid line;
On dissection we found skin, muscles, blood vessels second right rib in front, second third and fourth right ribs and second, third and fourth toracice vertebrae, spinal cord from back both lungs pleura, pulmonary vessels were found damaged in the path way of fire-arm injuries. Chest cavity was full of blood.
Note: A 9 c.m. long post-mortem incision was given on back of left chest, 1 c.m. left to the injury No.2 to recovery the pellets. 7 metallic foreign body (pellets) were recovered from back of left chest ledged subcutaneously.
Note No.2: One plastic cartridge case was found from the right chest cavity. "
Exh. P. D. is the copy of his post-mortem report and Exh. P. D. / 1 .is the pictorial representation. During his cross-examination, he stated that the injury suffered by the deceased was from a close quarter and nearly 5 feet while keeping in view the nature of the injury wound, the blackening and tattooing around it and recovery of a plastic case which was recovered from the chest cavity. He further stated that a Medical Board which had been constituted, had agreed with his opinion.
8. Muhammad Akram, Sub-Inspector (P. W .14) was posted at Police Station Mangtanwala, when Kola complainant recorded his statement before him on 12-5-1995 and on the basis of which the F.I.R. was lodged. He visited the spot, examined the dead body, prepared the injury statement (Exh.P.G.), inquest report (Exh.P.E.) and later transmitted the dead body to the T.H.Q. Hospital Nankana Sahib through Muhammad Sharif and Khalid Hussain, Constables, for autopsy. He prepared rough site plan without scale, of the place of occurrence, recorded the statements of the P.Ws. under section 161 of the Cr.P.C. besides securing the blood-stained earth (Exh.P:C.). After the post mortem examination, he received the last-worn clothes of the deceased vide memo. Exh.P.M. He handed over the sealed parcels to the Muharrer for safe custody. He recorded the statement of the injured P.W. and got him medically examined and arrested the 16 accused nominated in the F.I.R. on 24-5-1995. On the same day, he made various recoveries from different accused who have now been acquitted including the appellant who led to the recovery of a .12 bore double barrel gun (P.14) which was taken into possession vide memo. Exh.P.O. The other weapons were a gun from Khushi Muhammad, a gun from Manzoor Hussain alongwith live cartridges, a rifle .7 mm from Muhammad Iqbal alongwith 6 live bullets, another .7 , mm rifle from Ishaq. He also recovered a .7 mm rifle from Allah Ditta accused with 7 live bullets. Ahmad Din also got recovered a rifle .222 (P.5). These weapons were sealed into parcels. All the recovery memos. were attested by police constables. Although it has come in his testimony that there were about 220/250 houses in this village known as Asil Paar.
9. Shahid Ahmad, D.S.P. (C.W.4) was the Sub-Divisional Police Officer at Nankana Sahib, who started the investigation of this case on 16-7-1995 and concluded it on 23-8-1995. He was of the view that the accused who have been acquitted viz. Sohna, Bashir Ahmad and Umar Hayat were innocent. The following excerpts from his cross-examination are helpful and are reproduced below in extenso:--
"During investigation Sohna stated before me that there was a cross-firing for two hours."
"I have given a finding that the complainant party is intentionally avoiding to join the investigation."
"Fourteen persons joined the investigation from the accused side. I have written in my opinion that the complainant party was summoned time and again but they are not appearing to join the investigation intentionally."
"It came in my investigation that complainant party has also made firing during the occurrence. Volunteered that there was exchange of firing between, both the parties."
10. Muhammad Khalid, A.S.-I. (C.W.6) was the Staff Officer of Rao Sardar Ali Khan, A.S.P., Ferozewala. When the investigation of this case conducted by the said A.S.P., he remained attached with him and witnessed the investigation proceedings. During his cross-examination he went on to say:-- .
"During investigation it came into my knowledge that Mehar Saeed Ex-M.P.A. was supporting the complainant party and Rana Muhammad Afzal Ex-M.P.A. was supporting the accused party. The accused Bashir stated on 4-2-1996 that the complainant attacked the accused one day prior to the occurrence and eleven persons of accused party were injured in that occurrence."
"During investigation, the accused pleaded their innocence and produced many persons to support their version.
11. Amongst the formal witnesses are Naseer Ahmad, constable (P.W.2) who took the blood-stained earth to the- office of the Chemical Examiner. Muhammad Sharif (P.W.3) escorted the dead body for autopsy. Ghulam Rasool (P.W.4) had recorded the F.I.R. Exh_P.B. Riaz Ahmad (P.W.5) witnessed the picking up of blood-stained earth from the spot vide memo. Exh.P.C. Haider Ali (P.W.6) identified the dead body.
12. Shabbir Hussain, constable (P.W.8) is the witness of the recovery of different weapons from different accused. Muhammad Safdar, constable (P.W.9) delivered the last-worn clothes of the deceased to the Investigating Officer which he collected from the doctor. Ahmad Ali (P.W.13) witnessed the recovery of gun from the appellant Iqba1 vide memo. Exh.P.O. He also witnessed the recovery of rifle from Ahmad Din, acquitted accused.
13. In his statement under section 342, Cr.P.C. the case of Muhammad Iqbal appellant was one of denial and he stated that he was innocent end at the time of the occurrence was a minor. The statement of the reseat of the accused who also pleaded their innocence has become irrelevant after their acquittal.
14. The parties appeared to be quarrelsome and had a dispute over Shamlaat land. A day prior to the occurrence, they also had a quarrel which led to the registration of cross-case inter se them.
15. It has come through the mouth of D.S.P. Shahid Ahmad (C. W .4) that there was cross-firing and that the complainant party was trying to avoid appearing before him while he was investigating the case.
16. A good number of people were arrayed as accused. Rifles and guns were recovered from them but the ultimate result was that they were found innocent. However, those who did not possess licensed weapons were penalized through the orders of the confiscation while licensed weapons were returned to the rest.
17. We find that there is a revision petition asking for enhancement of the sentence of the appellant, while we find no appeal against the acquittal.
18. Nasir, P.W. mentioned about his leg injury but did not ask the trial Court for the trial of his assailant. All these facts suggest that there had been suppression on the part of the complainant with respect to the real facts of the case and the occurrence. The statement of the D.S.P. A reflects that there had been a cross-firing. But it appears that the Investigating Officer had not conducted the investigation properly and had been arresting people against whom the prosecution could not establish any case.
19. Before this Court, the learned counsel for the appellant tried to argue that the injury caused on the person of the deceased was on account of the cross-firing and not at the hand of the appellant. In support of his theory, he has stated that whereas it is mentioned in the medical report that the only injury suffered by the deceased was from a close contact, the distance of the assailant is given as nine feet in the site plan. This argument of the learned counsel for the appellant was not at all persuasive because, firstly the disparity with respect to the distance as suggested by the doctor and as reflected in the sit plane, is not so great. Secondly, the length of the barrel, the arms and, the leaning position of the assailant -if taken into consideration, the objection is eliminated. When this was pointed out to the learned counsel for the appellant, he was unable to meet the question.
20. It is a day time occurrence and although there appears to, be cross-firing, the son of the complainant became the victim. The statement of the D.S.P. is suggestive of the cross-firing which further suggests that both parties were the aggressors against each other. However, the result of the occurrence became unfavourable to the complainant side. The factors such as provocation and heat of passions could not get consideration on account of suppression of true facts.
21. The learned counsel for the complainant side has stated that the learned trial Court has erred in sentencing the appellant under section 308 of the P.P.C. Because this was a case of Ta'zir and the factum of minority was not relevant at all which was relevant only in case of Qisas. At which the learned counsel for the appellant side stated that the case deserved to be remanded for rewriting of the judgment. But since this Court can correct the error, there was no need for the remand.
22. In view of the circumstances of this case and while keeping in view the factum of cross-firing, this Court feels that the case falls under section 302(c) of the P.P.C. and, therefore, convicts the appellant accordingly while maintaining the sentence of 14 years already given to him. In which case, however, the complainant side would not be entitled to Diyyat. They are, however, entitled to compensation under section 544-A, Cr.P.C. The appellant is, therefore, `' asked to pay a sum of Rs.2,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. The appeal is disposed of accordingly.
23. The revision petition also stands disposed of in view of the observations made hereinabove.
N.H.Q./M-162/L Order accordingly.