PLJ 2009 Cr.C. (
Present: Mian Muhammad Najam-uz-Zaman, J.
JAWAD HAIDER--Petitioner
versus
STATE--Respondent
Crl. Appeal No. 598 of 2005, heard on 9.9.2008.
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--Modification in sentence--Offence of murder--Held: It was not an intentional murder and the deceased had received fire-arm injury accidently at the hands of appellant--Conviction of appellant u/S. 302(b) was not sustainable, the same was set aside--Appellant stands convicted u/S. 302(c) PPC and was sentenced to the period of imprisonment already undergone by him--Trial Court while passing the impugned judgment has not awarded adequate compensation to the complainant party--Accordingly the amount of compensation was ehnaced which shall be paid to legal heirs of deceased with this modification, the appeal dismissed.
[P. 808] A
Ch. Anwar-ul-Haq Pannu, Advocate for Appellant.
Syed Karamat Ali Naqvi, Advocate for Complainant.
Mr. Muhammad Mazhar Sher Awan, AGP for State.
Date of hearing: 9.9.2008.
Judgment
Appellant Jawed Haider alongwith one Muhammad Aqeel was tried by Additional Sessions Judge, Narowal for the murder of one Shahswar son of Syed Abid Hussain in a private complaint titled "Qalab Abbas vs. Jawad Haider Shah and another" who vide judgment dated 21.3.2005 while acquitting co-accused convicted appellant under Section 302(b) PPC and sentenced him to imprisonment for life and to pay Rs. 50,000/- (rupees fifty thousand) as compensation to the legal heirs of the deceased, or in default whereof to further undergo for months SI.
1. Feeling aggrieved by the impugned judgment, appellant has filed the instant appellant, whereas complainant has filed Crl.Rev. No. 509/2005 seeking enhancement of sentence of the appellant. Both these matters are being disposed of together by his single judgment.
2. In brief the
facts of the case as narrated in the complaint are that the complainant Qalab
Abbas Shah and his brother Syed Shahswar came to Mauza Aunchi Rasool Pur Tehsil
and District Narowal where the in laws of Shahswar (deceased) were residing. On
18.1.2004 at about 1.00 p.m., the complainant accompanied by Shahswar deceased
and Akhtar Hussain PW were going in the bazaar Qila Ahmad Abad for shopping.
When they reached in front of the cloth shop of Syed Jawad Haider Shah, the
appellant called them to his shop. Consequently the complainant and others went
into the shop of the accused Jawad Haider Shah. They found an unknown person
also sitting there. The unknown person gave a Mauzar .30 bore to Jawad Haider
Shah accused exhorting lalkara that Shahswar deceased should be taught a lesson
for opposing him. Resultantly Jawad Haider Shah accused fired at Shahswar
deceased with his Mauzar .30 bore which hit on his abdomen. Consequently the
deceased fell to the ground and both the accused fled away from the spot. The
complainant Qalab Abbas Shah, Akhtar Hussain Shah and Anwar Hussain Shah
witnessed the occurrence. Afterwards Shahswar was being taken to hospital
The motive of the occurrence as mentioned in the complaint was that Jawad Haider Shah accused had a dispute with Rehmat Ali Shah maternal grandfather in law of Shahswar deceased. The deceased was pursuing the said case in support of Rehmat Ali Shah. The accused had murdered Shahswar deceased due to his grudge.
3. With regard to the said murder, case FIR No. 9/2004 dated 18.1.2004 for the offence under Sections 302/34 PPC was registered at Police Station Ahmedabad. After the investigation challan under Section 322 PPC was submitted and the complainant being not satisfied with the investigation filed private complaint. The trial Court dealt with the complaint at the first instance and passed the impugned judgment.
4. Before the trial Court prosecution produced four witnesses including Qalab Abbas PW-3 and Syed Akhtar Hussain Shah PW-4 (eye-witnesses of the occurrence). Learned trial Court also examined investigating officer and other formal witnesses i.e. recovery witnesses etc. as Court witnesses.
5. trial Court also examined appellant under Section 342 Cr.P.C. and while answering to question. "Why this case against you and why the PWs have deposed against you? gave a detailed reply which reads as under:-
"The complainant was not present at the spot. He
came to Qila Ahmed Abad later on and after the death of his brother Shahswar. He
then with his mala fide intention cooked up a story thereby alleging an
intentional murder of his brother by me on the asking of my co-accused on the
basis of a false motive. The real facts are that I had a cloth shop knowing as
Sherazi cloth house at Qila Ahmed Abad. It was may routine to come back in the
evening to my house situated at village Aunchi Rasool Pur after closing my
business and shop. The deceased of this case Shahswar who was resident of
Tapyala came to my village Aunchi Rasoolpur 2/3 days before the occurrence. He
stayed in the house of Mst. Kausar Bibi widow of Shehbaz Hussain (the sister of
his mother in law). On 18.1.2004 when I was present in my shop the deceased
along with Akhtar Hussain PW came to his hop. After staying for a while Akhtar
Hussain told me that he wants to purchase a tyre of bicycle so whereupon on
exhorted him to purchase tyre from a shop situated near the shop of Dr. Ashiq
Hussain. Then both of them went there to purchase the tyre. After about 15
minutes of their departure Muhammad Aqeel son of Sharafat Ali r/o Ali Pur Sydan
my co-accused came to my shop and told me that he had a pistol .30 bore with
him which was out of order and did not eject the bullet from the magazine to
the chamber. He asked that since I own a licenced pistol therefore, he asked me
to check the same. Whereupon I alongwith Muhammad Aqeel went to rear part of
the shop. I started checking the pistol however, I asked Muhammad Aqeel to
bring some oil from the nearby shop. He after a while brought some oil from the
nearby shop. In the meantime Shahswar deceased of this case and Akhtar Hussain
PW both came there. Shahswar deceased sat on the wooden bench whereas Akhtar
Hussain Fauji sat alongwith Muhammad Aqeel and me on the floor but Muhammad
Aqeel told that pistol cannot be brought into order without an expert from
Narowal whereupon Akhtar Hussain Shah PW taking the pistol in his hand stated
that since he is a retired military man is an expert in the matters of arms.
Therefore, he can bring the pistol in order. In the meantime some unknown lady
came to my shop for purchasing cloth. I went to the front portion of the shop
and showed some cloth to the lady however, she went away without purchasing any
cloth after checking the same only. After remaining busy with the lady, when I
came back to the rear part of the shop. Akhtar Hussain PW asked me to check the
pistol since he had brought it in order and handed over the same to me
whereupon. I without any intention to cause harm or death to any person, in the
aforesaid circumstances pressed the trigger, without knowing that there was any
bullet in the chamber, and thus a fire went off hitting the deceased who became
seriously injured. I along with Akhtar Hussain PW immediately took Shahswar to
the injured to RHC Qila Ahmad Abad but as we reached there it was found closed
because of Sunday. We came immediately and when reached Adda Ahmed Abad we
found Anwar Hussain Shah r/o Ali Pur Adda whose father happened to the resident
of my village previously there. We hired his taxi for taking the injured to
hospital. I handed over my motorcycle to Raja Butt for transferring the same to
my shop. We immediately went to clinic of Dr. Abdul Ali Asif (Rtd. Major) at
Qila Ahmed Abad and requested him to give the injured some treatment who after
examining the injured in car advised us to rush to
6. Appellant also
made statement on oath as required under Section 340(2) Cr.P.C. and was
cross-examined by the complainant party. In addition to that he also produced
Muhammad Jamil DW.1 who deposed on the lines the defence plea was taken by the
appellant. Similarly statement of Dr. Abdul Ali Asif DW.2 is to the effect that
on the day of occurrence at about 12.00/1.00 p.m. he was sitting in his clinic
in routine when the appellant had brought the deceased in injured condition
outside his (DW's) clinic and patient/deceased was examined by him. This
witness while keeping in view the serious kind of injuries on the person of the
deceased advised the accused/appellant to take the patient to
Learned trial Court after appraisal of evidence vide judgment dated 21.3.2005 convicted and sentenced the appellant, as narrated earlier. Hence, this appeal.
7. After hearing lengthy arguments of learned counsel for both the parties and going through the record, I have observed that time, place of occurrence and weapon used in the occurrence are not the disputed facts and the only question to be resolved is whether the deceased Shahsawar was done to death in the manner and circumstances narrated by the complainant party or he had received fire-arm injury at the hands of appellant accidently when pistol of the deceased was being repaired/tested.
According to prosecution case, motive for this occurrence was that appellant had some dispute with maternal grand father in law of the deceased qua the ownership of the shop and the deceased was pursuing the matters. Similarly case of the prosecution as narrated in the FIR as well as before the trial Court is that when deceased and other witnesses were passing by the shop of the appellant, appellant called them inside the shop and thereafter he fired at the deceased. This conduct of the appellant and the complainant party is repellant to common sense. Admittedly both the parties had strained relations, thus, there was no occasion for the deceased and witnesses to go inside the shop upon the asking of the appellant. On the other hand, the defence plea is that deceased had cordial relations with the appellant. The deceased had come to the shop of the appellant for chatting. When appellant was examining/testing the pistol repaired by Syed Akhtar Hussain Shah PW 4 who is a retired Army Personnel (soldier) and accidently the trigger of the pistol was pressed by the appellant which went off and bullet hit the deceased on the abdomen.
The plea taken up by the appellant seems to be more nearer to the truth and appeals to reasons. If the appellant had planned the murder of Shahsawar, then he would not have selected his shop for doing the needful which was situated in a very busy Bazar. Record of this case also reveals that from the very first day, the plea of the appellant was the same which he took before the trial Court and during the investigation, this plea of the appellant was also found correct by different investigating agencies, that is why challan under Section 322 PPC was filed before the trial Court.
While putting both the versions in a juxta position, I am of the considered view that plea taken up by the appellant finds ample support from the circumstances of this case and appellant is entitled the get the benefit of the same plea. Since it was not an intentional murder and the deceased Shahsawar had received fire-arm injury accidently at the hands of the appellant, conviction of the appellant under Section 302(b) PPC is not sustainable, the same is set aside. However, in the circumstances of the case, appellants, stands convicted under Section 302(c) PPC and is sentenced to the period of imprisonment already undergone by him. I have also observed that learned trial Court while passing the impugned judgment has not awarded adequate compensation to the complainant party. Accordingly the amount of compensation is enhanced
Rs. 100,000/-(rupees one lac) which shall be paid to the legal heirs of the deceased and in default of payment, appellant shall further undergo SI for six months. With this modification in the impugned judgment, this appeal otherwise stands dismissed.
For the foregoing reasons, Criminal Revision (Crl. Rev. No. 509/2005) filed by the complainant stands dismissed.
(A.S.) Appeal dismissed.