2006 P L D Supreme Court 277

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD AKRAM—-Petitioner

Versus

THE STATE—-Respondent

Jail Petition No.326 of 2004, decided on 30th December, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 21-4-2004 passed in Criminal Appeal 337 of 2003 and Criminal Revision 297 of 2003).

Penal Code (XLV of 1860)—

—-S. 302(b)—Constitution of Pakistan (1973), Art.185(3)—Occurrence having taken place in broad-daylight in the street near the residence of the parties, presence of eye-witnesses at the scene of incident was quite natural and doubtless—Eye-witnesses had no enmity or malice against the accused—Ocular testimony was confidence-inspiring, truthful and unimpeachable and was duly supported by medical evidence—Accused had admitted the occurrence giving his own version, which did not indicate even a remote possibility of the happening of the incident in such manner—According to evidence, accused on the instigation of the acquitted accused had fired a shot at the most sensitive part of the body of the deceased which proved fatal—Murder, thus, was neither an accidental one, nor a sudden occurrence to bring the case within the provisions of S.302(c), P.P.C. Leave to appeal was refused to accused in circumstances.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Muhammad Zaman, Advocate Supreme Court for the State.

Date of hearing: 30th December, 2005.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.—The petitioner, through the instant jail petition, has sought leave to appeal against the judgment, dated 21-4-2004, passed by Lahore High Court, Lahore, whereby the conviction and sentence of life imprisonment awarded to him by the trial Court under section 302(b), P.P.C. With direction to pay Rs.50,000 to the legal heirs of deceased and in default thereof to suffer S.I. for six months was maintained with grant of benefit of section 382-B, Cr.P.C. and his appeal along with the criminal revision filed by the complainant for enhancement of his sentence, was dismissed.

2. The brief facts of the case in the background, are that on 29-8-2001, at 3 p.m. Muhammad Siddique complainant, along with Khalid Pervez and Liaquat Ali (P.W.7) was present in front of his house when his son, Muhammad Rafique within their sight was caught by Mst. Nasreen in the street in front of her shop and Muhammad Akram, on her call coming out of her house armed with .30 bore pistol, fired a shot at Muhammad Rafique which proved fatal to his life. The motive for the occurrence as stated was that Mst. Nasreen was carrying illicit relation with Muhammad Akram who was living in her house and on the objection of Muhammad Rafique to their immoral activities, they developed enmity against the deceased. Khalid Iqbal, Inspector, S.H.O. (P.W.10) on reaching at the place of occurrence, took blood-stained earth into possession from the spot, prepared injury statement (Exh.P.B.) and inquest report (Exh.P.C.) of the dead body. Subsequently, on 7-9-2001 at the instance of petitioner he recovered the weapon of offence (pistol) vide memo. (Exh.P.G.) and on completion of investigation challaned the petitioner and Mst. Nasreen to face the trial. The prosecution, in order to prove its case, produced ten witnesses in all and learned D.D.A. having tendered in evidence the report of Chemical Examiner (Exh.P.K.) and the Serologist (Exh.P.L.) closed the prosecution evidence. The petitioner and his co-accused in their statements under section 342, Cr.P.C. denied the charge and pleaded false implication. The learned trial Judge at the conclusion of the trial acquittal Mst. Nasreen and having found the petitioner guilty of the charge convicted and sentenced him as stated above.

3. Learned counsel for the petitioner pointing out certain contradictions and ‘ discrepancies in the prosecution evidence has contended that the occurrence did not take place in the manner as stated by the eye-witnesses and their claim of having seen the occurrence would be negated in the light of exaggeration apparent in their evidence. The learned counsel submitted that while putting the prosecution version in juxta-position to the defence plea, the situation arising would strongly suggest that it was not pre-meditated occurrence rather it happened suddenly and would not be an intentional murder. The learned counsel argued that the circumstances leading to the fateful occurrence would bring it within the ambit of section 302(c), P.P.C. for the purpose of punishment.

4. Learned counsel for the State on the other hand has contended that the parties were close neighbourer and except the objection of deceased regarding the illicit connection of the petitioner with Mst. Nasreen, there was no serious enmity between them and that the ocular account was furnished by the quite independent and trustworthy witnesses duly supported by the medical evidence and attending circumstances.

5. The careful examination of the evidence would show that since the occurrence had taken place in the broad-daylight in the, street near the residence of the parties and witnesses therefore, the presence of eye-witnesses at the scene of occurrence in the street was quite natural and beyond any doubt. The incident happened within the sight of eye-witnesses, who have no enmity or malice against the petitioner and their testimony duly supported by medical evidence having been found confidence-inspiring, truthful and of unimpe4chable character was concurrently relied upon by the two Courts. The petitioner has admitted the occurrence with his own version and thus, the only question requiring determination would be whether the defence version or the prosecution story was more plausible and near to truth. The detail scrutiny of evidence would not indicate a remote possibility of the happening of occurrence as suggested in the defence version, therefore, the contention of the learned counsel that since it was a sudden occurrence, therefore, the element of premeditation or the intention to kill was missing and case would fall within the ambit of section 302(c) for the purpose of punishment, has no substance. The evidence is that petitioner on the instigation of Mst. Nasreen (acquitted accused) fired a shot at the most sensitive part of the body of deceased which proved fatal to his life and thus, it would be neither an accidental murder nor a sudden occurrence to bring the case within the purview of section 302(c), P.P.C.

6. In the light of foregoing discussion we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.

N.H.Q./M-33/S Leave to appeal refused.

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