1. Khawaja Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 862 of 2001 filed by Nasrullah, appellant who was convicted under Section 302(b), P.P.C. and sentenced to death with further direction to pay Rs, One lac as compensation, in default one year R.I. The conviction and sentence was recorded vide judgment dated 26-11-2001 pronounced by learned Sessions Judge, Layyah. Murder Reference No, 829 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be answered through this single judgment.
2. 2.Occurrence in this case had taken place at 2-30 p.m. on 6-3-2001 at a distance of 2 furlong from Police Station Karor and the matter was reported to the police in the Police Station by Khalid Mahmood on the same day and formal F.I.R. Exh.P.G. was recorded at 4-55 p.m. by Muhammad Shaft, S. -I.
3. 3.Briefly stated the facts of the case are that on 6-3-2001 at about 2-30 p.m., the complainant Khalid Mahmood alongwith his father Ghulam Shabbir, after saying the Zohar prayer when reached in the street which is at a distance of 20/25 karams from the Mosque, Nasrullah was abusing and beating the children of the Mohallah. Ghulam Shabbir forbade Nasrullah upon which the accused stated that who could have stopped him, abused the father of the complainant and then by taking out of Churri from his Nepha, gave a blow with it which landed on the Chest towards left side of Ghulam Shabbir. On hue and cry of the complainant, Abdul Subhan and Sajjad Ahmad attracted to the place of occurrence. The accused fled away. The injured was removed to hospital but in the way he succumbed to the injuries.
4. 4.Muhammad Shafi, S. -I., (P.W.9) took over the investigation. He after registration of the F.I.R. went to hospital; examined the dead body of Ghulam Shabbir deceased; prepared the inquest- report; then he proceeded to the place of occurrence and from there took into possession the bloodstained earth vide memo Exh.P.H. The accused was arrested on 12-3-2001 and he while in police custody on 17-3-2001 got recovered Churri P.3 which was taken into possession vide memo.
5. Exh.P.J. After completion of the investigation, the accused was sent to face the trial.
6. 5.At the trial, prosecution in order to prove its case produced 12 witnesses in all. The ocular account was furnished by Khalid Mahmood and Sajjad Ahmad, P.Ws.6 and 7 while Dr. Muhammad Jalal-ud- Din P.W.5 conducted post-mortem examination on dead body of the deceased. The learned DDA tendered in evidence report of the Chemical Examiner (Exh.PM) report of the Serologist (Exh.PN) and closed, the case of prosecution. Then the accused in his statement under Section 342, Cr.P.C. pleaded innocence. After conclusion of the trial, the accused was convicted and sentenced as stated above.
7. 6.Learned counsel for the appellant submits that F.I.R. was recorded after due deliberation and consultation. Further submits that there being no witness present at the spot, it was an unwitnessed occurrence. As to recovery of Churri, on the pointation of the appellant, according to learned counsel, it is planted. Lastly submits that it being a case of single shot and occurrence having taken place at the spur of the moment, it is not a case of death rather of imprisonment for life.
8. 7.Learned counsel for the State submits that both the eye- witnesses have supported the case of prosecution; they had no enmity or ill-will against the appellant; ocular account is fully corroborated by medical evidence; the defence plea is absurd and that there is even no mitigating circumstance in favour of the appellant.
9. 8.We have heard learned counsel for the parties at length and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 2-30 p.m. on 6-3-2001 while the matter was reported to the police on the same day at 4-55 p.m. Complainant is Khalid Mahmood (P.W.6). Deceased Ghulam Shabbir is father of Khalid Mahmood P.W. The appellant was arrested on 12-3-2001 and he on 17-3-2001 got recovered churri which is stained with human blood as is evident from the report of Chemical Examiner and Serologist Exh.PM and Exh.PN. It is a case of two versions; one set up by the prosecution and the other coined up by the appellant. At this stage, we may advantageously reproduce answer to the Question No, 8 "Why this case against you and why the P.Ws. have deposed against you given by the appellant in his statement under Section 342, Cr.P.C. The P.Ws. are closely related to the deceased. In fact, I was peeling MALTAS after picking those from the REHRI of fruits seller with the knife of fruit seller. I was throwing the skin of the Maltas on the ground. Ghulam Shabbir deceased also arrived there and forbade me from the throwing the skin of the Maltas and also abused me of sister and mother. I restrained him from abusing but the deceased gave me slaps, thereafter, we grappled with each other. The knife in any hand accidentally struck the deceased. It was a sudden occurrence of flare up. I had no intention to commit the Qatl-e-Amd of the deceased. I have no enmity with the deceased nor I have any motive to commit his Qatl-e-Amd."
10. A bare perusal of the above quoted reply shows that the appellant has admitted his guilt and the only moot point is whether it was a premeditated murder or the occurrence had taken at the spur of the moment. A bare perusal of the F.I.R. itself and statements of the eye-witnesses namely P.Ws.
11. 5 and 6, it is established that there was no previous background of enmity between the parties and the occurrence had taken place at the spur of the moment. The appellant did not repeat the injury, as such, the occurrence having taken place at the spur of the moment and it being a case of single blow, we though maintain conviction of the appellant under Section 302(b), P.P.C. but treating the abovesaid two facts to be extenuating, convert the sentence of death to imprisonment for life. The benefit of Section 382-B, Cr.P.C. is granted. However, the sentence of compensation and in default thereof is maintained. Resultantly, the death sentence of Nasrullah appellant is not confirmed and Murder Reference is answered in the negative.