' Naeem Aslam appellant through Cr. Appeal No,322 of 2002 and Lal Bakhsh appellant through Cr.
Appeal No,340 of 2002 have challenged their conviction and sentence recorded by Ch. Muhammad Aslam, Sessions Judge, Rahimyar Khan, under section 302(b), P.Pt. Vide judgment dated 28-10-2002. Since both the appeals arise out of the same matter, therefore, they are being decided by this single judgment.
2. The afore-mentioned appellants were sent up to face trial along with Munir Abbas, Munir Ahmad, : Khalid and Muhammad Ismail accused in case F.I.R. No,66 registered at Police Station, City, C- Division, Rahim Yar Khan on 9-4-1999 for an offence under sections 302/148/149, P.P.C. For causing the murder of one Kalini Ullah. However, Munir Ahmad, Munir Abbas. Khalid and Muhammad Ismail were acquitted of the charge as they were not named in the F.I.R. And the role attributed to them was not borne out by the medical evidence.
3. Naeem Aslam and Lal Bukhsh appellants were convicted for an offence under section 302(b), P.P.C. And were sentenced to undergo life imprisonment. A compensation of Rs,25,000 under section 544-A, Cr.P.C. Was also imposed upon each of the appellants, in default thereof they were to undergo further S.-I. For six months. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
4. Muhammad Anwar, A.S.-I., P.W.10 drafted complaint Exh.P.A. On the statement of Salim Ullah P.W.1, brother of the deceased Kalim Ullah at 7-15 p.m. On 9-4-1999 at Chowk Mud Darbari within the territorial limits of Police Station City, C-Division, Rahim Yar Khan. Formal F.I.R. No,66 of 1999 Exh.P.A./1 was registered at police station on the same date by Muhammad Makki, A.S.-1., P.W.13 for offences under sections 324/ 148/149, P.P.C. Kalim Ullah lost his life on 14-4-1999 and, therefore, section 324, P.P.C. Was substituted by section 302, P. P C .
5. The story as given in Exh.P.A. Was that the complainant lived in Basti Haji Ahmad. On 8-4-1999 at 4-00 p.m. His brother Kalim Ullah/deceased went to play cricket where some alternation took place between him and other boys. 'However, the matter was patched up. On 9-4-1999 at 6-00 p.m.
Kalim Ullah was present in his house when 7/8 persons including Lal Bukhsh who was equipped with hockey and Naeem Aslam who was equipped with cricket hat while others were holding wickets and cricket bats reached the house of the complainant and knocked the door. Kalim Ullah came out of the house. Lal Bakhsh and Naeem Aslam appellants who dragged him to the cricket ground grappled him. Kalim Ullah was given beating by bats and wickets. Lal Bakhsh gave a blow with hockey on the head of Kalim Ullah who fell unconscious. Thereafter, Naeem Aslam appellant with cricket bat gave blow on the chest and back of the chest of Kalim Ullah. The complainant raised alarm which attracted Syed Shahid Hussain-Niaz Ahmad and Sajid Hussain, P.W.2 to the scene of occurrence who rescued Kalim Ullah from the accused.
6. The motive as set in the complaint was that on the preceding evening some altercation had taken place between the deceased and the accused.
7. The appellants were arrested by Muhammad Sarwar/Inspector on 6-5-1999. On 10-5-1999 Naeem Aslam appellant led to the recovery of cricket bat, which was lying in his house and the same was taken into possession vide memo. Exh.P.E. Attested by P.W.6 and one Jam Irshad who was not produced during trial. On the same date Lal Bakhsh appellant led to the recovery of hockey which was lying in house and the same was taken into possession vide memo. Exh.P.D. Attested by the witnesses mentioned above.
8. On 9-4-1999 Muhammad Anwar, A.S.-I. Through written application Exh.P.J. Inquired whether the injured was in a position to make a statement. On the application vide memo. Exh.P.J/1 the doctor opined that the patient was deeply comatosed and was unable to talk.
9. During trial the prosecution produced 13 witnesses in support of its case. Salim Ullah P.W. I, Sajid Hussain P.W.2 and Rasheed Ahmad P.W.3 furnished the ocular account. Salim Ullah P.W.1 also stated about the motive. Fayyaz Ahmad appeared as P.W.6 and stated about the recoveries effected from the appellants. Dr. Masood Jahangir who had conducted the post-mortem examination appeared as P.W.8 and brought on record post-mortem report Exh.P.F. According to his observations deceased Kalim Ullah had received three injuries on his person; one was on the head and the other two were on the chest and back of chest. The injuries were caused by blunt weapon. Muhammad Makki, A.S.-I. Appeared as P.W.13 and stated about formal registration of the case. Dr. Masood Siddiqui appeared as P.W.9 and stated about his opinion that Kalim Ullah was not in a position to make statement as he was deeply comatosed. Muhammad Anwar, A.S.-I. Appeared as P.W.10. He stated about drafting of the complaint and initial investigation of the case. He also verified the notes of the investigation conducted by Muhammad Sarwar, Inspector who died before his statement could be recorded.
10. In their statements recorded under section 342, Cr.P.C. Both the appellants denied the allegations against them and stated that they were roped in the case on the basis of suspicion alone; that the P.Ws. Had deposed against them as they were closely related, to the deceased.
They further stated that the police had not investigated the case properly. Neither the appellants appeared as a witness in their defence under section 340(2), Cr.P.C. Nor they led any defence.
11. At the very outset the learned counsel for the appellants has submitted that the conviction of the appellants has wrongly been recorded for an offence under section 302(b), P.P.C. As the case of the appellants attracted the provisions of section 302(c), P . P. C . In the circumstances. The learned counsel further prayed for reduction in sentence. The learned counsel appearing on behalf of the State has frankly conceded that motive could not be proved and that it was a sudden affair, therefore, the case of the appellants fell within the mischief of section 302(c), P.P.C. However, the learned counsel added that he had nothing much to say about the quantum of sentence as the same lies within the discretion of the Court.
12. I have heard the learned counsel for the parties and have scanned the whole record of the case.
Although P.W.1 is brother of the deceased yet there is nothing on record to show as to why he should involve the appellants in a false case. His house is situated just in front of the cricket ground and the fact of his having seen the occurrence is believable. P.W.2 and P.W.3 are not related to the deceased and are resident of the locality. They have supported the version of P.W.1 Their evidence is confidence inspiring and they have no enmity as against the appellants. The ocular account is fully supported by the medical evidence. The prosecution has been able to prove' its case beyond doubt as against the appellants, therefore, the learned counsel for the appellant has rightly not pressed this appeal vis-a-vis conviction.
13. The next question, which requires determination, is as to .What precise offence has been committed by the appellants. It has been noticed that the prosecution had tried to set a motive in the complaint by stating that some altercation has taken a day prior to the occurrence between the deceased and some boys but it was conceded in the complaint itself that the matter had been patched up between the parties. P.W.1, Salim Ullah, who was the sole witness of the motive admitted during cross-examination that he was not present at the time of altercation and he was informed about the same by the deceased himself. It is in evidence that the deceased had left for his school at 7-30 in the morning on the date of occurrence. In case the appellants had nursed some grudge in their hearts and wanted to take revenge they would not wait till evening. The place of occurrence is also of much importance in this case. The occurrence took place in cricket ground and the weapon used by the accused i.e, cricket bat and hockey are meant for playing games and not for causing injuries though injuries can be caused by these. So, the possibility that a sudden flare up erupted during play, which led to this unfortunate incident, cannot be ruled out. It is cardinal principle of safe administration of criminal justice that any benefit arising out of the circumstances of the case should be given C to the accused. The accused who according to the complaint were 7/8 in numbers and had cricket bats, wickets and hockey sticks in their hands would have assaulted upon the deceased when he came out of the house, in case, the accused had gone to the house of the complainant with intention to murder Kalim Ullah, There was no need for the accused to take Kalim Ullah to the cricket ground and to inflict injuries there. The deceased received three injuries at the hands of the appellants; two of them are on the front of the chest and back of chest, therefore,it cannot be said that the appellants acted in a cruel manner. The provisions of exception 4 of section 300, P.P.C. (old law) are clearly attracted in the case and can be looked into as laid down by the apex Court in Ali Muhammad v. Ali Muhammad PLD 1996 SC 274.
14. For what has been discussed above I set aside the conviction of the appellants for an offence under section 302(b), P.P.C. And convict them for an offence under section 302(c), P.P.C. The sentence of the appellants reduced to ten year's R.I. The amount of compensation is maintained. In default of payment of compensation the appellants would suffer further simple imprisonment for six months each. Benefit of section 382-B, Cr.P.C. Extended to the appellants by the trial Court is maintained.
15. With the above modification in the conviction and sentence this appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.