PLJ 2009 SC 1061

[Appellate Jurisdiction]

Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.

MUHAMMAD NADEEM @ DEEMI--Petitioner

versus

STATE--Respondent

Jail Petition No. 86 of 2008, decided on 26.3.2009.

(On appeal from judgment dated 8.5.2008 of Lahore High Court, Lahore passed in Crl. A. No. 107-J/2003 & M.R. No. 821/2002).

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to Appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Appreciation of evidence--Delay of about 17 hours in lodging FIR--Held: In criminal cases the delay, by itself, in lodging FIR was not material--Factors to be considered by the Court that such delay stands reasonably explained and secondly, that the prosecution had not derived any undue advantage through the delay involved--Delay was explained in FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim--Possibility of the complainant party arranging for eye-witnesses was altogether ruled out because even if so, the occurrence having taken place at occurrence every thing could have been arranged within minutes--While concurring with two Courts that the prosecution had explained the delay in question--Leave refused. [P. 1063] A

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 342--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Recovery of dagger at belated stage and that it was never smeared with blood so as to justify the false report of chemical examiner--Validity--Recovery of dagger or its having been stained with blood or not becomes completely immaterial--Accused had admitted in his statement that he had inflicted dagger below to deceased--Held: Recovery of crime weapon in criminal case was not at all material--It can only be piece of supporting evidence--If other evidence goes to prove the case independently, the recovery is not essential at all--Leave refused.

[P. 1064] B

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Plea of self defence--Deceased initiated the attack with dagger and that he acted in self defence after snatching dagger from the deceased--Validity--Once that weapon was snatched by accused, no right of private defence remained in play because by that action the deceased had become unarmed--No right of private defence remained available to accused, the moment the dagger fell into the hands of accused from the alleged assailant--Held: After snatching the dagger, he had no apprehension or danger to his life at the hands of the deceased and thus, not only that he had no right to attack deceased but had no justification to inflict as many as seven fatal dagger blow on the deceased circumstances were more akin to prosecution version rather than to defence version which culminates into nothing but a cock and bull story. [P. 1065] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 342--Confessional statement--Validity--Statement u/S. 342, Cr.P.C. is not necessarily to be accepted as a whole because it cannot be equated with a confessional statement--Statement, where right of private defence is claimed, cannot be dubbed as confessional statement. [P. 1066] D

Mr. Muhammad Zaman Bhatti, ASC for Petitioner.

Mian Asif Mumtaz, DPG for State.

Date of hearing: 26.3.2009.

Judgment

Sardar Muhammad Raza Khan, J.--Muhammad Nadeem son of Muhammad Ashiq, through this Jail Petition, seeks leave to appeal from the judgment dated 8.5.2008 of a learned Division Bench of Lahore High Court, whereby, the appeal of the petitioner was dismissed, Murder Reference was answered in affirmative and the death sentence awarded on 5.9.2002 to the petitioner by learned Sessions Judge, Gujranwala under Section 302(b), PPC alongwith compensation of Rs.300,000/- under Section 544-A Cr.P.C was affirmed.

2. The brief background of the case is disclosed by Abdul Aziz, complainant in his application (Ex.-PC), incorporated into FIR No. 389 dated 6.9.2001 of PS Baghbanpura, District Gujranwala. The occurrence had taken place at about 4:30 p.m. on 5.9.2001, the report whereof was lodged on 6.9.2001 at 9:20 a.m. The complainant Abdul Aziz is the real uncle of deceased Muhammad Sajid.

3. On 5.9.2001, at the given time, complainant Abdul Aziz and Muhammad Sajid went to Islamia College Ground to watch a cricket match. Muhammad Nadeem, the convict petitioner was already known to Muhammad Sajid, who both met each other at the cricket ground. Muhammad Nadeem demanded some money from Muhammad Sajid, which the latter refused. Altercation ensued between the two, whereupon, Muhammad Nadeem drew out the dagger from the fold of his shalwar and inflicted repeated dagger blows at Muhammad Sajid. The culprit thereafter ran away from the spot. Occurrence, besides the complainant, was also witnessed by Abdul Majid and Muhammad Ilyas. As Sajid had become seriously injured, he was taken to hospital by the complainant and his companions. The latter remained busy at the hospital, attending the injured nephew, and hence could file the application/report only on the morning of the following day. Initially, report was registered for the attempted murder under Section 324 PPC. On 9.9.2001, Muhammad Sajid succumbed to his injuries and so the section of law was changed into 302 PPC.

4. The prosecution examined Abdul Aziz, complainant (PW-10) and Muhammad Ilyas (PW-11) as eye-witnesses. The ocular testimony of the above witnesses got due support from the recovery of dagger, the medico legal and postmortem reports, in addition to the statement under Section 342 Cr.P.C. Learned counsel for the petitioner-convict assailed the impugned conviction etcetera on three-fold ground.

5. Firstly, that there was a delay of about 17 hours in lodging FIR. Secondly, that the recovery of dagger/chhury was damagingly belated and was not bloodstained at all. Thirdly, that the plea of self-defence raised by the accused in his statement under Section 342 Cr.P.C ought to have been accepted by the learned trial Court as well as learned High Court.

6. So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of the attending circumstances of the case, the delay stands explained. It is an established principle of law and practice that in criminal cases the delay, by itself, in lodging the FIR is not material. The factors to be considered by the Courts are firstly, that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved. The delay is explained in the FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim. The possibility of the complainant party arranging for the eye-witnesses is altogether ruled out because even if so, the occurrence having taken place in the cricket ground of the city, everything could have been arranged within minutes. It is proved through the version of the eye-witnesses that occurrence had taken place in the cricket ground duly supported by recovery memo (Ex. PD), indicating the recovery of blood from the spot. We believe while concurring with the two Courts that the prosecution has explained the delay in question.

7. Coming to the question of what advantage the prosecution has gained from delaying the First Information Report, we observe that no advantage, at all, was so gained. The complainant has not involved any person by deliberations and brought about the single charge which was true and logical in every sense. The effective role is attributed to the petitioner and petitioner alone. The complainant had no enmity, whatsoever, for falsely implicating the petitioner, and thus nothing was unlawfully and maliciously gained through the delay in question. The same accused was subsequently arrested on 11.9.2001 from the College Road.

8. Learned counsel had serious reservations about the recovery of dagger at a belated stage and that it was never smeared with blood so as to justify the false report of chemical examiner. In the light of what subsequently occurred during trial and what the accused stated in his statement under Section 342, Cr.P.C, the recovery of dagger or its having been stained with blood or not, becomes completely immaterial. The accused has admitted in his statement that he had inflicted dagger blow to the deceased. Even otherwise, the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence. If other evidence goes to prove the case independently, the recovery is not essential at all.

9. Lastly, we come to the statement of accused under Section 342 Cr.P.C where he has taken the plea of self-defence. The relevant portion is the answer to Question No. 7, which should be kept in view, as follows:--

"Q.No. 7: Why this case is against you and why the PWs have deposed against you?

Ans: I am resident of Dogranwali, P.S. Cantt Gujranwala and earn my two times meals by manual labour. On the day of occurrence I was sitting in Islamia College ground and a cricket match was being played there. Sajid deceased sat near to me, who was not previously known to me nor I had ever met him, nor I had ever any enmity, grudge or money transaction with Sajid deceased. Even I had not seen Sajid deceased previously. There myself and Sajid deceased had betted on the match. Firstly, Sajid deceased won the bet but when my turn of winning the bet came, the deceased displayed an attitude of stinginess in giving the bet amount whereupon, 1 refused to bet again but Sajid deceased insisted to bet again. I once again won the bet and at the time of bet amount was double. Sajid deceased refused to give the bet amount for which I beseeched the deceased and in return, Sajid took a `chhuri' from a nearby parked fruit `rehri' and raised a `lalkara' for giving a taste to me for demanding the bet amount. Sajid deceased assaulted upon me with `chhuri' and I warded off the blow of `chhuri' with my hand as a result of which, my hand was wounded but the local police with ulterior motives did not get my wounded hand medically examined. During this sudden fight, Sajid deceased also received a `churri' blow. It was Sajid deceased who started the fight/quarrel and I in self-defence as well as to save mv own skin, the `chhuri' blow was received.' It was not a preplanned fight, nor I had had any money dispute with the deceased. Nothing was recovered from possession. The dagger was planted upon me just to strengthen the prosecution case. The PWs have deposed against me being related inter se." (underlining improvised)

10. We cannot avoid, but, to remark that this answer has rather proved the case of the prosecution. The accused is narrating that he and the deceased had resorted to betting over the match. That Sajid deceased lost the bet on more than one occasion but refused to pay the stake amount. This leads us to a reasonable conclusion that both were not strangers to each other and only friends or acquaintance could be joined in the gamble of betting. Such circumstance supports the complainant version in the FIR that both were already known to each other.

11. The accused had taken the plea that the deceased initiated the attack with dagger and that he acted in self-defence after snatching dagger from the deceased. The deceased, in that case, would be deemed to have been armed with one and the only weapon. Once that weapon was snatched by the accused, no right of private defence remained in play because by that action the deceased had become unarmed. No right of private defence remained available to the accused, the moment the dagger fell into the hands of accused from the alleged assailant. According to accused, after snatching the dagger, he had no apprehension or danger to his life at the hands of the deceased and thus, not only that he had no right to attack the deceased, but had no justification to inflict as many as seven fatal dagger blows on the deceased. It was a move provenly offensive and not defensive at all. So is the case of prosecution that the accused opened an attack at the deceased. The circumstances are more akin to the prosecution version rather than to the defence version which culminates into nothing but a cock and bull story.

12. The statement under Section 342, Cr.P.C is not necessarily to be accepted as a whole because it cannot be equated with a confessional statement. A statement, where right of private defence is claimed, cannot be dubbed as confessional statement. Rather, the statement under Section 342, Cr.P.C of the accused in the instant case can conveniently be interpreted as an admission of fact that the deceased was killed at the hands of the accused. It, rather, goes to prove the case of prosecution. The story advanced in statement of the accused is not, at all, supported by the prosecution evidence.

13. In the circumstances, the petitioner convict was rightly held guilty by the learned trial Court as well as by the learned High Court. The impugned judgment dated 8.5.2008 of the High Court is upheld. There being no merit in the instant petition, it is hereby dismissed and leave to appeal refused.

(R.A.) Leave refused.