QAZI MUHAMMAD AMIN AHMED, J:- Hamid Ali, hereinafter referred to as the deceased, was assaulted at 7.00 a.m on 29.05.2005, within the area of Chak No.22/14-L situating at a distanced of 8 miles from Police Station Shah Kot of district Sahiwal. Gul Sher PW-3, a maternal nephew of the deceased also sustained injuries.
Javed hereinafter referred to as the appellant, was nominated as accused; he was shown to be armed with a Kassi and assigned repeated blows to the deceased on the right and left side of his head when Gulsher PW-3 try to attend the deceased he was also dealt a blow by the appellant.
Bashir Ahmad PW-2 alongwith Muhammad Yar and Naseer given up PWs were attracted to the spot and witnessed the occurrence. The appellant decamped from the scene.
Motive for the occurrence stated in complaint Ex.PG is that a relative of Javed appellant namely Farid son of Saad Ullah was murdered by one Muhammad Yar, a relative of the complainant and to avenge that murder deceased was assaulted by the appellant. Hamand father of the appellant was also nominated as accused on the charge of instigation.
The deceased in injured condition alongwith Gulsher (PW-3) were first taken to Police Station Shah Kot wherefrom they were sent to Rural Health Centre, when the deceased in injured condition was referred, first to Civil Hospital Sahiwal and finally General Hospital, Lahore. On 31.5.2005, Hamid Ali succumbed to his injuries and a case on the statement (Ex.PG) made by Bashir Ahmad (PW-2) at 6.10 p.m at General Hospital, Lahore was registered.
2. Dr.Aftab Ahmad, SMO, RHC Chak No.96/12-L (PW-1) medically examined Hamid Ali in injured condition on 29.05.2005 at 9.30 a.m and noted following injuries:- i). Lacerated wound 7 x 1/2 cm, bone exposed on the top of the head. 10 cm from the pinna of left ear. ii). A lacerated wound 21/2 cm x 1/4 cm without exposure of bone on the right side of head, 10 1/2 cm from the pinna of right ear. iii). An abrasion 2 x 1 CM on the back of lest elbow.
Gulsher (PW-3) was also medically examined on the same day and two injuries were noted on his person. i). A lacerated wound of 31/2 cm x 1/2 cm bone note exposed, on the top of head ii) An abrasion 3 x 1/4 C.M near the outer angle of right eye.
Autopsy on the dead body of Hamid Ali deceased was conducted on 1.6.2005 and injury No.1 was opined as cause of death which according to the Medical Officer was sufficient to cause death in the ordinary course of nature. Probable time between the injury and death was given as 48 hours and between death and postmortem as 24 hours.
3. During spot inspection, Investigating Officer Shabbir Hussain S.I (PW-8) inspected the spot and collected bloodstained earth besides taking other investigative steps that included preparation of rough site plan of place of occurrence (Ex.PN). Hamand Ali accused was admitted to bail in anticipation to his arrest whereas Javed appellant was arrested on 19.06.2005. It is prosecution case that in pursuant of a disclosure made on 26.06.2005, Javed appellant led to the recovery of Kassi (P-4) which was secured vide memo Ex.PM.
Upon conclusion of investigation, the appellant and his father co-accused Hamand Ali were sent to face trial, where they were indicted on 6.1.2006, when they denied the charge and claimed trial.
Prosecution in order to bring home charge against the appellants produced as many as 8 witnesses, of them Bashir Ahmad PW-2 and Gul Sher PW-3 furnished ocular account; both of them with one voice reiterated prosecution case set up in Ex.PG. Confronted with prosecution evidence the appellant Javed took the following plea:- "Farid son of Saad Ullah who was allegedly murdered by Muhammad Yar alias Kaka was not related to me in any manner. Muhammad Yar alias Kaka is also not related to the deceased in any manner. A false motive has been engineered to make out a false murder case against me. On the day of occurrence my mother told me to go to the fields where my father was ploughing the same with a tractor. I took the kassi with me to help my father in the preparation of the field. When I reached at the spot on the mattled road, I found Hamid deceased riding a cycle with Gulsher PW seated on his front on the same cycle. The deceased was driving the cycle rashly and he struck the same against me and Gulsher fell on the stone and got hurt. I reprimanded Hamid Ali deceased and started proceeding further but the deceased seeing the blood of Gulsher PW ran after me to beat me, fearing death on his hands I took the kassi in front of me and the deceased caught the same from the peen side and started pulling the same towards him and in the prove process kassi hit the deceased on the head of the deceased from its wrong side and the deceased fell on the road and I ran home. It was an accident and I did not cause any injury to the deceased intentionally. My father approached Bashir PW and the complainant party were not prepared to get any case registered because it was an accident but the political figures entered and a false case was registered against me and my father Hamid Ali and false motive was brought in the prosecution case. I am innocent. I produced evidence in my defence before the police. All the police officers namely; Shabbir Hussain, PW Muhammad Imran SHO, Khalid Javed DSP Chichawatni investigated the case at the spot and found me innocent."
Position of Hamand Ali is as under:- " The deceased received a blow with the wrong side of the kassi which he was snatching from the hand of my son Javed accused accidently. I was not preset at the time of occurrence and false case has been cooked up against me and my son due to political differences. The PWs have made false statements."
The same position was suggested to the witnesses and taken before the Investigating Officer (PW- 8). On conclusion of the trial, the learned trial Judge vide judgment dated 24-03-2006 acquitted Hamand Ali from the charge, however, proceeded to convict the appellant Javed under Section 302(b) PPC with sentence of imprisonment for life along fine of Rs. 100,000/- or in default of thereof to further undergo 2-years, in addition thereto the appellant was required to pay Rs. 100,000/- to the legal heirs of the deceased as compensation or to undergo six months S.I in default thereof. The appellant was also convicted under Section 337-A(i) for injury sustained by Gulsher PW-3 and sentenced to 2-years R.I with a sum of Rs. 10,000/- as Daman or indefault thereof to further undergo in Section 337-Y(ii) PPC. Sentences to run concurrently with benefit of Section 382-B Cr.P.C.
4. Syed Badar Raza Gillani, Learned counsel for the appellant contends that there is an inordinate delay between the occurrence and formal registration of the case with no plausible explanation to account for the same; according to the learned counsel in any case, in the facts and circumstances of the case, the culpability of the appellant at the most attracted the mischief of Clause-(c) of Section 302 PPC; he has further argued that appellant gave a straight forward, honest and truthful account of incident which when juxtaposed with the position taken by the prosecution, merited preferential treatment. The learned counsel for the appellant has also attacked the inadequacy and irrelevance of motive alleged by the prosecution.
5. Contrarily, impugned judgment is defended by the learned D.P.G, whereas Mr. Mehroz Aziz Khan Niazi, learned counsel for the complainant while arguing Crl.Revision No.150 of 2006 prayed for enhancement of sentence inflicted upon the appellant. According to learned counsel for the complainant once the learned trial Court believed prosecution evidence on the charge of homicide, there was no occasion to visit the appellant with any degree of leniency.
6. Heard. Record perused.
7. No doubt formal prosecution case was registered on 31.5.2005 at 6.10 p.m while the occurrence took place as far back as on 29.05.2005 at 7.00 a.m; a belated recourse to law is seen with caution, however, in the present case there is no doubt that occurrence took place on 29.05.2005 at the stated time as it is established from the testimony of PW-1 Dr. Aftab Ahmad, SMO RHC Chak No. 96/12-L who received the deceased in injured condition same day at 9.30 a.m. Gulsher (PW-3) also accompanied the deceased at the same point of time. Given the precarious condition of the deceased he was first referred to Civil Hospital Sahiwal and thereafter to General Hospital, Lahore where he struggled for life but expired on 31.5.2005 while he was being operated. Appellant is the only accused nominated in (Ex.PG) for causing fatal blow to the deceased and inflicting injuries to Gulsher (PW-3). Position taken by the appellant during his examination in chief is the same that he took in his first version before the Investigating Officer Shabbir (PW-8) and suggested to eye witnesses wherein he has admitted the incident at the stated place and point of time albeit with the different stance. In this backdrop, belated registration of case is not of much importance.
Time, place of occurrence and weapon used are common ground between the prosecution and the defence; they are in contention over the motive and the manner in which the occurrence took place. The learned trial Judge, disbelieved the motive alleged in Ex.PG and rightly so, it is alleged in Ex.PG that it was an earlier case of homicide which prompted the appellant to assault the deceased neither the appellant is shown to have any nexus with the deceased of the earlier case nor the deceased is found framed with the assassins in the said case. In view whereof, it is hard to believe the motive set up by the prosecution. Exclusion of motive from consideration, necessitate even a more rigorous scrutiny of prosecution evidence as it in retrospect lend credence to the plea taken by the appellant. It is prosecution's own case that the deceased was riding on a bicycle alongwith injured PW on way back to his house while taking medicine; certainly the appellant could not anticipate his encounter with the deceased without prior knowledge of his arrival at the scene.
There is nothing on the record which could saddle the appellant with knowledge of deceased's arrival at the scene and this leaves in the field the only possibility of a chance encounter which is a position taken by the appellant from the day one. The plea of appellant that he was hit in the first place by the deceased with his bicycle does not sound improbable as on prosecution's own showing the deceased was riding on a bicycle; also there is nothing unnatural or unusual on part of the appellant carrying a kassi on his way to the cotton field. Attending circumstances of the incident clearly suggest that something happened all of a sudden that ignited a situation ultimately leading to the homicidal death of the deceased and what is asserted by the appellant does not sound implausible or improbable.
In the case of Nusrat and others Vs. Zulifqar and others (PLD 1991 SC 158) a classification between free fight and sudden fight was examined by their Lordships for ensuing penal consequences in each case the relevant portion whereof is advantageously reproduced below:- "It is, therefore, clear that the deceased was the first person to injure the accused party and from the nature of the evidence and the injuries on the persons injured on both the sides, the case appears to be one of sudden fight where both the parties having come across each other by chance, got involved in a fight over some squabble or quarrel, where both the parties assaulted and injured each other with whatever weapons they had or could lay there hands on. In these circumstances, Zulfiqar appellant would be liable under section 323, PPC for the blunt weapon injury on Allah Ditta PO.W and under Section 325, PPC for the blunt weapon injury on Nawaz deceased and Allah Ditta appellant wo0ld be liable under Section 302-I, PPC for the fatal sharp- edged weapon injury on Nawaz deceased. Shabbir acquitted accused, according to the prosecution evidence, not having inflicted any injury to either the deceased or Allah Ditta P.W would not be liable. In any case he was stated to be empty handed. H is, therefore, not liable for any offence. The convictions and sentences of Zulfiqar and Allah Ditta appellants under sections 302/34 and 323/34 PPC are therefore, not legally correct and deserve to be set aside".
Even if, the plea raised by the appellant is not accepted as a whole truth, a sudden encounter and a situation set off by the deceased himself and use of non conventional weapon clearly bring the enormity of appellant's role within the ambit of Clause(c) of Section 302 PPC. Reliance is placed on the case of Ali Muhammad Vs. & Ali Muhammad & another (PLD 1996 S.C. 274). The relevant portion is advantageously reproduced below:- "Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law maker has left it to be Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 300 P.P.C. read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
8. On overall analysis of the prosecution case and defence plea taken by the appellant in juxtaposition thereof, makes out a case to convert appellant's conviction from Section 302(b) PPC to 302(c) PPC with reduction of sentence from life imprisonment to 10 years R.I.The learned trial Judge ran into error in imposing fine on the appellant which is set-aside.
9. With the above modification in conviction and sentences which shall run concurrently with benefit of 382-B Cr.P.C. this Crl. Appeal No. 202 of 2006 stands dismissed.
10. As a necessary corollary of above findings, Crl. Revision No. 150 of 2006 also dismissed.