' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,223 of 2002 filed by Muhammad Ashfaq, who along with Abdul Qayyum and Abdul Qadeer faced trial in case F.I.R. No,112, registered at Police Station Baghbanpura, Gujranwala, on 21-3-2001, for offences under sections 302/324/34, P.P.C . , before learned Additional Sessions Judge, Gujranwala, who after conclusion of trial, vide his judgment dated 4-2-2002, while acquitting rest of the accused, convicted the appellant under section 302, P.P.C. And sentenced him to death with fine of Rs .1, 00,000.
2. Murder Reference No,334 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief fact of the case as mentioned in F.I.R. Exh.PE/1 recorded on the statement of Abdul Rehman Gondal (complainant) are that four days earlier to the occurrence his son Asif ur Rehman along with Rizwan was sitting on Tharra outside of his house, Muhammad Ashfaq asked Asif ur Rehman not to sit outside his house along with others, which resulted into exchange of hot words. The matter was calm down by the intervention of Mian Tahir Ehsan. However, Muhammad Ashfaq extended threat to Asif ur Rehman that if he again called his friends outside his house, he would face the consequences. On the fateful day at about 3-00 p.m. Rizwan came to meet Asif ur Rehman. Both of them sat on Tharra outside the house for some time. After leaving of Rizwan, while Asif ur Rehman was standing in the street in front of his house, at about 3:30 p.m., Muhammad Ashfaq and Abdul Qadeer, both armed with bricks, and Abdul Qayyum empty handed arrived there and raised Lalkara that despite refraining why he called Rizwan, so he would not be spared today.
Abdul Qadeer gave brick blow on the nose of Asif Rehman, while Muhammad Ashfaq gave brick blow on the back side of head of Asif Rehman, who fell down. The occurrence was witnessed by the complainant, Muhammad Yousaf and Rashid Nadeem. The injured was taken to Hospital in serious condition.
4. After registration of formal F.I.R., the investigation of the case was taken over by Asmat Ullah S.- I./P.W.11, who conducted thorough investigation, arrested the accused and after effecting recovery of, brick used during the occurrence, sent them to face trial.
5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PM and that of Serologist Exh.PN closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. However, Muhammad Ashfaq took a specific plea in his defence, which is being reproduced below:- ' "I have been falsely involved in this. Case. The occurrence took place in a sudden flare up. The deceased was not Masoom-ul-Dam. The real facts of the case are that the day of occurrence was polling day. My uncle Muhammad Ismail was contesting the election and my co-accused (my brothers) namely Abdul Qayyum and Abdul Qadeer were present on a polling station. I was asked by them to bring my Bhabi and mother for voting in favour of my uncle and when I was going to polling station along with my Bhabi and mother the deceased along with two unknown persons was present at a Tharra in front of his house. I asked the deceased to go to his house as our ladies want to go from the street and give the way to our ladies. On my asking the deceased showed his annoyance but I requested to go to his house along with two other boys. Due to my asking the deceased tried to grapple with me and I gave him a fist blow which hit on his nose. Due to my fist blow the deceased fell down on the ground and his head struck with the side of Tharra and he received injuries due to fall. The other two unknown persons fled away from the place of occurrence. The occurrence took place in a sudden flare up. I had no intention to kill the deceased.
Due to the wrong act of the deceased this occurrence took place and he was not Masoom-ul- Dam. There was no premeditation for the occurrence. We have no previous enmity with the complainant party. I was only present at the spot. My co-accused were not present there and the complainant has involved the whole members of my family by throwing a wider net. My first version before the police was that I did cause only a fist blow and did not cause any injury with brick. During investigation it was opined that I was not armed with any weapon. No person from the locality supported the version narrated by the complainant in the F.I.R. The P.Ws. Are inter se related. Except the complainant, the other P.Ws. Are not the residents of the locality. They were summoned subsequently and falsely involved me and my co-accused. My co-accused have been declared innocent by the police during the successive investigations and the findings of all the I.Os.
Have not been challenged."
' The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Abdul Qadeer and Abdul Qayyum, convicted and sentenced the appellant as stated above.
6. The learned counsel for the appellant at the very outset has submitted that in the circumstances of the case he would pray for reduction in sentence alone. To substantiate his prayer the learned counsel has submitted that the occurrence took place on the spur of the moment; that the appellant was empty handed and picked a brick from the spot; and that the age of the appellant at the time of occurrence was 18 years.
7. On the other hand, the learned counsel appearing on behalf of the complainant submits that the appellant did not deserve any leniency as he miserably failed to prove his defence plea; that he came armed with brick from his house and took life of a young boy of the age of 20 years; and that the medical evidence rules out the defence plea and causing of injury by fall.
8. The learned Additional Prosecutor General submits that as long as the conviction was being maintained he had nothing much to say about the quantum of sentence which lied within the discretion of the Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
10. Muhammad Ashfaq-appellant while admitting the occurrence had took a specific plea before the learned trial Court, which has been reproduce above. The prosecution case and the plea taken by the appellant are to be put in juxtaposition in order to appreciate which of the two was true or nearer to the truth.
11. According to prosecution case, for days prior to the occurrence Rizwan, who was friend of Asif ur Rehman-deceased went to the house of Asif ur Rehman. Both of them sat outside the house and started talking. Muhammad Ashfaq-appellant did not like it and asked Asif ur Rehman that he and his friend should not sit and talk outside the house, which lead to exchange of harsh words between Asif ur Rehman and Muhammad Ashfaq. However, the matter was calmed down by the intervention of Mian Tahir Ehsan. Muhammad Ashfaq while going back to his house threatened that in case Asif ur Rehman allowed his friend to sit outside the house and converse, then he would have to face the music. On the fateful day at 3-00 p.m. Rizwan went to the house of Asif ur Rehman.
Both spent some time together outside the house thereafter Rizwan left. At 3-30 p.m. While Asif ur Rehman was standing outside his house Muhammad Ashfaq armed with brick, Abdul Qadeer armed with brick and Abdul Qayyum empty handed (all brothers) emerged while raising Lalkaras.
Abdul Qayyum (acquitted co-accused) Asif ur Rehman as to why he did invite Rizwan. Thereafter Abdul Qadeer gave brick blow, which landed on the nose of Asif ur Rehman, while Muhammad Ashfaq gave brick blow on the back of head of Asif ur Rehman, who fell on the ground and later on lost his life. Rizwan, the bone of contention, was not produced before the learned trial Court.
However, Mian Tahir Ehsan, who allegedly had pacified the parties four days prior to the occurrence, was produced as P.W.7. During cross-examination he admitted to be maternal nephew of the complainant. According to him, S.H.O. Reached the spot at 3/4-00 p.m. Thereafter the complainant along with Rasheed reached the spot at 4/5-00 p.m. And statement of Abdul Rehman complainant was recorded in the street, where the occurrence had taken place. He further admitted that polling was being held on the fateful day. Undeniably, the appellant and the deceased were neighbours. No or enmity existed between them. No independent witness has been produced to prove that some altercation took place between the appellant and the deceased four days prior to the occurrence. The relationship of Mian Tahir Eshan with the complainant was not mentioned in the F.I.R. Furthermore it is not believable that two brothers would come out of their house with intention to launch murderous assault with bricks in their hands. Needless to say that at least knives are available in the houses and bricks could not be described as deadly weapons. All the three brothers were involved in this case. For the two injuries two brothers were specified as having bricks in their hands and one injury was attributed to each of the brother, while Lalkara was attributed to the third brother, who was empty handed. It is obvious that the complainant feeling aggrieved over injury caused to his son Asif ur Rehman gave exaggerated version of the occurrence and implicated three brothers. Asmat Ullah, S.-I./P.W.11 admitted it to be correct that Muhammad Ashfaq-appellant himself surrendered before him and that during investigation he found that Muhammad Ashfaq was not armed with any weapon and had lifted brick from the spot.
The findings of the Investigating Officer appear to be reasonable.
12. Now coming to the defence plea, according to appellant, he gave fist blow to the deceased, who fell on the ground and his head struck with the side of Tharra {{URDU TEXT}} and the deceased received injury due to fall. This version is totally belied by the medical evidence. During cross- examination Dr. Mian Habib Alam/P.W.2 explained that the seat of injury was not possible by falling on the stairs or on the ground. In those cases only contusions appear but the skull did not fracture.
He further stated that in case a person is pushed and falls on hard surface then the possibility of fracture of skull cannot be ruled out, but this fracture would correspond to the area of hard surface on which the patient falls but in this situation there was 3 c.m. x 3 e.m. Injury, the bone was completely fractured and depressed.
13. As far as the motive is concerned, according to statement of appellant he had asked the deceased to go to his house as his Bhabi and mother were to pass from the street but the deceased refused to oblige thereafter, according to appellant, the deceased tried to grapple with him and he gave a fist blow. It is manifest that the deceased was empty handed and had not launched any serious assault upon the appellant.
14. The analysis of evidence and both the versions brought on record of the case leads to a logical conclusion that the tempers flared up between the parties over issue of standing of the deceased outside his house while ladies were to pass and in the heat of passion the appellant, who was of 18 years of age at that time, picked a brick and gave blow on the head of the deceased, which unfortunately proved fatal. The act of the appellant fell within the mischief of Exception 4 to section 300, P.P.C. (old). In the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) it was held by the Honourable E Supreme Court that provisions of old law could be looked into for the just decision of the case.
15. As a consequence of the above noted discussion, we alter conviction of the appellant for offence under section 302(c), F P.P.C. And reduce his sentence to 14 years R.I. Benefit of section 382- B, Cr.P.C. Is given to the appellant. The learned trial Court has illegally imposed sentence of fine upon the appellant, which is converted into compensation under section 544-A, Cr.P.C. The amount of compensation, on realization or payment, would be given to the legal heirs of the deceased or in default thereof the appellant would suffer six mouths S.I.
16. Murder Reference is answered in the negative and the sentence of death is not confirmed .
17. Criminal Revision No,158 of 2002, being devoid of any force, stands dismissed.