2016 MLD 502

2016 M L D 502

[Lahore]

Before Ch. Mushtaq Ahmad, J

MUDASSAR HANIF—Appellant

Versus

The STATE—Respondent

Criminal Appeal No.330 of 2007, heard on 1st June, 2015.

(a) Penal Code (XLV of 1860)—

—-S. 302 & 34—Qatal-i-amd and common intention—Appreciation of evidence—Complainant did not mention anything about motive in FIR and reiterated the version as contained in First Information Report—Another eye witness who was son-in-law of the complainant, was not examined and one witness was presented by the prosecution to prove motive—No reason existed for prosecution for not examining the son-in-law of complainant an eye-witness of the incident—Testimony of single witness without corroboration could not be relied upon to award conviction—Prosecution story as narrated in the First Information Report was, therefore, not believable—Accused was acquitted and appeal allowed accordingly.

(b) Penal Code (XLV of 1860)—

—-Ss. 97 & 99—Self defence, right of—“Benefit”—Scope—Preconditions—Appreciation of evidence—Accused contended that he fired a single shot, followed by five shots in order to save himself, in self defence—Accused being a student of 10th class and a minor, had no motive to kill the deceased, he only fired a first single shot in order to save himself from being a victim of un-natural lust of deceased—Accused repeated second five shots as he saw that the accused was trying to catch him, and such circumstances cannot be said as exceeding right of self defence as repetition of shots might have been as a result of grave fear.

(c) Criminal Procedure Code (V of 1898)—

—-S. 342—Statement of accused—Acceptance or rejection of—Principles—If prosecution evidence was disbelieved by the Trial Court, the position taken by the accused under S. 342, Cr.P.C. was to be accepted or rejected as a whole.

Muhammad Asghar v. The State PLD 2008 SC 513 rel.

Sardar Zafar Ahmad Lund for Appellant.

Hassan Mahmood Khan Tareen, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 1st June, 2015.

JUDGMENT

MUSHTAQ AHMAD, J.—Mudassar Hanif convict has challenged his conviction and sentence through this Criminal Appeal No.330 of 2007. He was tried by learned Additional Sessions Judge, Taunsa Sharif in case FIR No.64/2004 registered under sections 302, 34 P.P.C. at Police Station Taunsa, District Dera Ghazi Khan.

  1. Appellant was declared juvenile and on conclusion of trial, he was convicted vide judgment dated 31.05.2007 and sentenced as under:–

Convicted under section 302(c), P.P.C. and sentenced to imprisonment for fourteen years (R.I). He was held liable to pay Rs.20,000/- as compensation in terms of section 544-A Cr.P.C. to the legal heirs of deceased.

  1. FIR was got registered by Khalil-ur-Rehman son of Muhammad Khan. Prosecution story as per FIR is that on 01.04.2004 at about 09:30 P.M., complainant alongwith his son Tahir Muhammad Abbas and son-in-law Abdul Ghaffar were going to Basti Mandrani on a motorcycle. When they crossed canal bridge, Mudassar son of Hanif (appellant) who was present on the road, signaled to stop the motorcycle. He asked Tahir to listen to him aside. Mudassar took Tahir to a vacant place near the road whereas complainant and Abdul Ghaffar remained at the road. After sometime, they heard sound of fire shot, on which they attracted to the spot. In their view Mudassar made five fire shots on Tahir, which hit him at abdomen, left thigh and right buttock, who succumbed to the injuries. Accused fled away by extending threats to complainant and Abdul Ghaffar.
  2. Investigation of this case was conducted by PW-10 Muhammad Akram SI. Report under section 173, Cr.P.C. was submitted before trial court, where charge against appellant was framed on 03.11.2004, to which he pleaded not guilty and claimed trial.
  3. During trial prosecution produced as many as ten witnesses. Medical evidence was furnished by PW-5 Dr. Abdul Rasheed, who conducted postmortem examination on the dead body and noted eleven firearm injuries. After recording prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C. wherein he again pleaded innocence. In answer to the question why this case against him and why the PWs had deposed against him, appellant stated as under:–

“The PWs are closely related inter se and in fact none had seen the occurrence and no one was present at the time of occurrence. In fact on the night of occurrence Tahir deceased alongwith his friends Yasir, Zameer-ul-Hassan and Sajjad took me in a car and stopped the car on canal bridge and went for urination and also called me. The he took me in the jungle where he placed his arm on my shoulders and posted kisses on me. He assaulted upon me to satisfy his un-natural lust. I tried to rescue myself. Then Tahir caught hold of my shalwar and forced me to sit down. Meanwhile, he placed his pistol on the ground and pushed me on the ground for the purpose of sodomy. I picked up his pistol and fired at him. He abused me and tried to catch me. I fired a second shot. He came forward to catch me and then I made number of shots to save my honour”.

  1. At conclusion of trial, appellant was convicted and sentenced vide impugned judgment as mentioned above. Hence, this appeal.
  2. Contention of learned counsel for appellant is that the prosecution in this case had failed to prove charge against appellant beyond reasonable doubt; that the appellant had no motive to kill the deceased; that he made fire shots in exercise of his right of self defence; that once prosecution version had been disbelieved, stance of appellant was to be believed or disbelieved as a whole; that findings recorded by learned trial court are not supported by evidence produced in this case, hence appellant is entitled to acquittal.
  3. Conversely, learned Deputy Prosecutor General argued that appellant was the person who had caused death of son of complainant and that he exceeded his right of self defence by repeating fire shots, as such he was rightly convicted by learned trial court.
  4. Arguments heard and record perused.
  5. This case was registered on the complaint made by Khalil-ur-Rehman, who while appearing as (PW-8) reiterated the version as contained in the FIR. Second eye witness of the occurrence according to FIR is Abdul Ghaffar, who is son-in-law of complainant. However, it is strange to note that he was not examined by prosecution and was given up being unnecessary witness. There was no reason for prosecution for not examining said witness who was no other but son-in-law (damaad) of complainant. Testimony of a single witness without corroboration could not be relied upon to award conviction. Prosecution produced Abdul Karim PW-9 instead of said Abdul Ghaffar. PW-9 introduced motive behind the occurrence, which according to him was a dispute of money between appellant/accused and the deceased. No other witness of motive part was produced by prosecution. No motive was mentioned by complainant in the FIR. Therefore, statement of PW-9 could not be believed. Even otherwise, prosecution story as narrated in the FIR is not believable. Further, presence of alleged witnesses at the place of occurrence is an extremely doubtful affair.
  6. Appellant in his statement took the plea of self defence and also narrated the detail of occurrence. Learned trial court disbelieved prosecution version, despite that it convicted the appellant by disbelieving his version partly. Learned trial court observed in the impugned judgment that after having made one fire shot, appellant/ accused was not justified in making more fire shots as there remained no apprehension of being assaulted by the deceased. Appellant in his statement narrated the detail as to why he repeated fire shots. Appellant at the time of occurrence was a student of 10th class less than 18 years of age. He had no motive to kill Tahir Muhammad Abbas. He made first fire shot in order to save himself from being victim of un-natural lust of deceased. He repeated second fire shot as he saw Tahir Muhammad Abbas attempting to catch him. Repetition of fire shots might be under grave fear, which in the peculiar circumstances of the case cannot be said as exceeding right of self defence. Furthermore, law is well settled that if prosecution evidence is disbelieved by the court, then the position taken by the accused under section 342, Cr.P.C. is to be accepted or rejected as a whole. The case in hand relates to the same proposition, so it is legally not possible to accept inculpatory part of statement of the appellant and to reject exculpatory portion of his statement. Reference may be made to case titled “Muhammad Asghar v. The State” reported in PLD 2008 SC 513 wherein it was held that the trial court after disbelieving the prosecution version could believe or reject version of the accused as a whole.
  7. On re-appraisal of evidence, I am of the considered opinion that prosecution had miserably failed to prove charge against the appellant. Findings recorded by learned trial court were not in line with facts established on record. Resultantly, Criminal Appeal No.330 of 2007 is hereby allowed and appellant Mudassar Hanif is acquitted of the charge. Appellant is on bail. His surety stands discharged of the liability of bail bonds.

YN/M-219/L Appeal allowed.

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