JUDGMENT KHAWAJA MUHAMMAD SHARIF, C.J.---This judgment will dispose of Criminal Appeal No.37-J of 2006 filed by the appellant namely Muhammad Rafique son of Muhammad Ismail, who was convicted and sentenced by the learned Sessions Judge, Kasur, through the impugned judgment dated 28-3-2005, as under:-- "Death Sentence, under section 302(b), P.P.C. And to pay compensation of Rs.50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment of compensation to further undergo S.I. For six months."
Murder Reference No.250 of 2005 for confirmation or otherwise of death sentence awarded to the appellant shall also be replied through this single judgment.
2. The appellant was sent up to face the trial of case F.I.R. No.620 of 2003 dated 17-9-2003 registered under section 302, P.P.C. At Police Station Saddar, Kasur. The said F.I.R. Was registered on the statement of the complainant namely Muhammad Tariq son of Arif Hussain. According to the complainant, he was cultivator by 'profession; he had some agricultural land adjacent to "Darbar Baba Bao Shaheed"; his father Arif Hussain was "Gaddi Nasheen" of the said "Darbar" since long; many people used to visit "Darbar Sharif" to offer "Fateha"; Muhammad Rafique (accused/appellant) was an employee in the Committee Ghar, Kasur; he used to visit "Darbar Sharif" in the morning for taking "Booti" (intoxicant) after performing night duty; he used to misbehave with the visitors of the "Darbar"; Arif Hussain, father of the complainant, many times restrained him from misbehaving with the visitors; on the day of occurrence i.e. 17-9-2003, at about 12-30 p.m. The complainant along with Talib Hussain son of Nathu and Muhammad Sabir son of Barkat Ali was present on his land near "Darbar Sharif"; they saw that Muhammad Rafique accused was quarrelling with the deceased Arif Hussain; on hearing noise, they reached at the place of occurrence; the father of the complainant Arif Hussain was asking Muhammad Rafique to remove his donkey cart; abruptly, Muhammad Rafique accused gave Sickle blow on left side of chest of Arif Hussain deceased who fell down on the ground; Muhammad Rafique accused took out sickle from his chest and fled away on his donkey; the father of the complainant Arif Hussain succumbed to the injury at the spot.
3. After registration of the case, the investigation was initially carried out by Muhammad Islam, S.-I.
(P.W.8). He stated that on 17-9-2003, Muhammad Tariq complainant appeared before him and got his statement recorded which was reduced into writing vide F.I.R. (Exh.PA); then he reached at the place of occurrence and inspected the same; he prepared inquest report (Exh.PG), injury statement (Exh.PH) and site plan of the place of occurrence (Exh.PI); he collected blood-stained earth from the place of occurrence which was taken into possession vide recovery memo. (Exh.PB); Shaukat Ali, C-165 (P.W.4) produced before him last worn clothes of the deceased Arif Hussain after the postmortem examination which were taken into possession vide memo. (Exh.PC); he recorded the statements of the P.Ws under section 161, Cr.P.C. He also handed over the dead body of Arif Hussain deceased to the constables for taking it to the hospital for postmortem examination.
4. On 29-9-2003, the investigation was handed over to Muhammad Mukhtar, S.-I. (P.W.10); he arrested the accused Muhammad Rafique on the same day i.e. 29-9-2003 and on 30-9-2003 he obtained the judicial remand of the accused; on 3-10-2003 on pointation of the accused, crime weapon i.e. Sickle (P-3) was recovered and taken into possession vide memo. (Exh.PD); he prepared the site plan of the place of recovery (Exh.PD/1); he prepared parcel of Sickle and recorded the statements of the P.Ws; the Sickle was handed over to the Moharrar for safe custody in "Malkhana"; on 4-10-2003 the accused was sent to judicial lock up; on 10-10-2003, Moharrar produced before him report of Chemical Examiner; the said witness prepared challan on 12-10- 2003.
5. A formal charge under section 302, P.P.C. Was framed against the accused on 8-4-2004, to which he pleaded not guilty and claimed trial. The prosecution was asked to produce its evidence.
The prosecution produced as many as ten witnesses and gave up two P.Ws. Thereafter, the statement of the accused/ appellant under section 342 Cr.P.C. Was recorded on 3-3-2005. Neither he opted to appear in the witness box for his statement under section 340(2) Cr.P.C. Nor produced any evidence in defence. After conclusion of the trial, the accused/appellant was convicted and sentenced by the learned trial Court, as mentioned above.
6. Learned counsel for the appellant in support of this appeal submits that the appellant has been falsely implicated in this case; that the recovery has been planted upon the appellant; that both the alleged eye-witnesses are related to the deceased; that Talib Hussain, an independent P.W., was not produced by the prosecution; that the prosecution has not been able to prove its case against the appellant. Learned counsel lastly submits that if the submission regarding acquittal of the appellant is not acceptable, then it is not a case of capital sentence but of life imprisonment because it was not a case of premeditated murder and the weapon of offence is also unconventional.
7. On the other hand, learned Deputy Prosecutor-General submits that the appellant has admitted his presence at the spot; that though there is only one injury on the person of the deceased, but that is not a ground for lesser sentence.
8. We have heard the learned counsel for the parties. The occurrence in this case has taken place on 17-9-2003 at 12-30 p.m. The matter was reported to the police on the same day at 1-05 p.m. In the police station by Muhammad Tariq son of Arif Hussain (deceased). The distance between the police station and the place of occurrence was three kilometers, so it was a case of promptly lodged F.I.R. The single injury caused to the deceased, which proved fatal, was attributed to the appellant. The appellant was arrested in this case on 29-9-2003 and got recovered the weapon of offence i.e. Sickle (P-3) on 3-10-2003, taken into possession vide memo (Exh.PD). P.W.6, Dr. Zulfiqar Ahmad, who conducted the postmortem examination on the dead body of the deceased on 17-9- 2003 at 4-30 p.m., found the following injury:-- "An incised wound 2 x 1 c.m. With clean margins on front of chest left upper corner, 7 c.m. Below middle of left clavicle bone.
According to his opinion, the deceased died due to the above said injury to left lung and heart, which was sufficient to cause death in ordinary course of nature and that it was caused by sharp edged weapon. Probable time between the injury and death was declared simultaneously and between death and postmortem examination was within six hours appropriately.
9. The version of the appellant was recorded under section 342, Cr.P.C. And in reply to the question "why this case against you and why the P. Ws have deposed against you" he stated that:-- "I have been falsely implicated in the case. I am innocent. Arif deceased used to be rude with Zaireen at the shrine of Baba Bao Shaheed and I used to forbid the deceased and made complaints to the members of his family. Due to such enmity the complainant has falsely involved me. At the time of occurrence, Arif deceased was armed with Sickle and attacked on me. During grappling, the Sickle had fallen down and Arif deceased also fell on the sickle and was injured."
10. Bare perusal of the above version would show that the appellant had admitted his presence at the spot and also admitted his grappling with the deceased, but stated that the Sickle had fallen down and Arif deceased fell on the Sickle and was injured. This part of his version is totally unbelievable. However, from the circumstances of this case, we of the view that the occurrence in this case had taken place at the spur of moment. It was not a case of premeditated murder and the weapon of offence is also unconventional and further that it is a case of single injury. Therefore, in our considered view it is not a case of capital sentence. Accordingly, though the conviction of the appellant under section 302(b), P.P.C. As well as the compensation and sentence in case of nonpayment thereof are maintained, but the death sentence is altered to life imprisonment.
11. Resultantly, Criminal Appeal No.37-J of 2006 is disposed of in the above terms. The death sentence of the convict Muhammad Rafique son of Muhammad Ismail is not confirmed and Murder Reference No.250 of 2005 is answered in the NEGATIVE. 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.