' SADAQAT AL! KHAN, J.---This single judgment shall dispose of Criminal Appeal No. 433-J of 2010 filed by Abid Hussain (present appellant against his conviction) and Criminal Revision No. 266 of 2011 filed by 'Mst. Balqees Bibi complainant (for enhancement of the sentence of the appellant) as both the matters have arisen out of the same judgment dated 26.11.2010 passed by the learned Additional Sessions Judge, Arifwala according to which the appellant was convicted and sentenced as under:- "Abid Hussain was convicted under section 302(b), P.P.C. And sentenced to life imprisonment for committing the Qatl-i-Amd of Muhammad Irfan deceased alongwith compensation Rs. 2,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further imprisonment for six months' S.I.
' He was also convicted under section 337-F(i), P.P.C. And sentenced to six months' R.I. And Daman Rs.5000/- ' All the sentences awarded to the present appellant were ordered to run concurrently by the learned trial court in case FIR No. 788 dated 16.12.2008 under section 302, P.P.C. Police station Sadar, Arifwala.
2. The facts of the case have been stated by Mst. Balqees Bibi complainant PW-3 real mother of Muhammad Irfan deceased in his statement before the trial court. The same statement is hereby reproduced for narration of the facts:- "About one year, two and half months ago at about 03:30 P.M. Shan my son aged 10-12 years was trying to catch the kite in the crop of Barsim of one Maqsood Ahmad Bhatti. Abid Hussain accused present in the court was also trying to catch the kite. A quarrel took place between them on catching the kite. Accused Abid Hussain then tortured my son Shan. Hearing the noise of weeping of my son I alongwith my son Muhammad Irfan deceased and Ahmad Din and Bashir Ahmad PWs went to the crop of Barsim. My son Muhammad bfan restrained accused Abid Hussain from beating my son Shan. The accused Abid Hussain became annoyed and gave knife blow on the chest of my son Muhammad Irfan while taking the same from his pocket. Sustaining the injury my son fell down. Accused Abid Hussain fled away alongwith his knife. I and PWs attended my injured son Muhammad hfan. My son Muhammad Irfan succumbed to the injuries at the spot. I and PWs witnessed the occurrence. The police arrived at the place of occurrence. The investigator recorded my statement Exh.PA which was read over to me and as a token of its correctness I put my thumb impression on it. I joined the investigation of the case".
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 25.11.2010 against present appellant under sections 302, 337-F(i), P.P.C. To which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Jahengir H.0 PW-1, Muhammad Yameen Constable PW-2, Balqees Bibi complainant PW-3, Ahmad Din PW-4, Ghulam Mustafa PW-5, Dr. Muhammad Rauf Elvi PW-6, Muhammad Shan Ali PW-7, Muhammad Khalid PW-8, Muhammad Arshad SI PW-9, Muhammad Samar SI PW-10, Khan Mohammad H.0 PW-11 whereas P.W. Namely Bashir was given up by the prosecution being won over by the accused whereas Niaz Ahmad and Nasir Azeem constable were given up being unnecessary and after producing documentary evidence i.e. Report of Chemical Examiner Ex.PJ, report of Serologist Ex.PK statement of the complainant Ex.PA, FIR Ex.PA/1, recovery memo of part of bunyan blood stained Ex.PB, recovery memo of last worn clothes of the deceased Ex.PC, recovery memo of knife Ex.D, rough site plan Ex.PD/1, scaled site plan Ex.PE,.
Postmortem report Ex.PF, inquest report Ex.PF/3, rough site plan of place of occurrence Ex.PG, injury statement Ex.PH/1, report of Chemical Examiner Ex.PJ, report of Serologist Ex.PK, closed the prosecution evidence.
6. The medical evidence was furnished by Dr. Muhammad Rauf Elvi, MO PW-6 who stated that on 16.12.2008 he conducted postmortem examination on the dead body of Muhammad Irfan deceased and observed as under:-- "A stab wound 2.5 cm x 1.5 cm x going deep on the front of chest just below the lower end of sternum. Corresponding tears are present on Qameez and bunyan.
On dissection.
' Injury No.1 ruptured the skin. Subcutaneous fat and Muscle and corresponding blood vessels and entered the chest cavity. Ruptured the lower end of Oesophagus and lower end of left side of heart (left Ventricle). Chest cavity full of blood.
Thorax.
' All are healthy intact except heart, pericardium and corresponding blood vessels. Heart was empty.
' Abdomen.
' All healthy intact except ruptured lower end of Oesophagus. Stomach contain small amount of semi digested particle. Small intestine contain liquish material. Large intestine containing small amount of fecal matter. Muscles, bones and joints already mentioned.
CRANIUM AND SPINAL CARD.
' Scalp opened, healthy intact. Brain and brain membrain, Vertebrae not opened.
' After doing external postmortem of the body in my opinion the cause of death is injury No.1 that damage the vital organ heart and cause severe haemorrhage and Cardio Pulmanary arrest.
Injury No.1 is sufficient to cause death in ordinary course of nature. Injuries ante-mortem and caused by sharp edge weapon.
' Time between injury and death within a few minutes Time between death and postmortem about 7 to eight hours".
' He also medically examined Muhammad Shan injured PW-7 on the same day and observed following injuries:- "An abrasion 3 cm x 4 cm on the back of right chest lower part. No crepitus, no swelling, no contusion mark at the time of examination. Injuries declared as Ghair Jaifa Dhamiah under section 337-F(i), P.P.C.
The injury was caused by blunt weapon with the duration of five to seven hours".
7. On the other hand, statement of present appellant was recorded under section 342, Cr.P.C. Who refuted the allegations so leveled against him but has not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce the defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Abid Hussain replied as under:-- "it is a false case. The PWs are related inter-se. It was a blind occurrence and deceased was murder during the commission of dacoity and it is also in the knowledge of whole village. Prior to this FIR, litigation between the complainant and one Rasheed was pending and I was supporter of Rasheed. I have been falsely implicated by the police in connivance with the complainant party due to the grudge that I was supporting one Rasheed opponent of the complainant party".
8. After conclusion of the trial, learned trial court convicted the present appellant Abid Hussain with above stated sentence. Hence this appeal.
9. Learned counsel for the appellant contended that:-
(i) the judgment of the trial court dated 26.11.2010 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;
(iv) further submitted that motive is not attributed to the present appellant and nothing was recovered from or on pointing out of the appellant and lastly submitted for the acceptance of the appeal of the present appellant;
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. I have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in the FIR Ex.PA/1 recorded on the statement Ex. PA of Mst. Balqees Bibi complainant PW-3 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same to avoid repetition and duplication.
13. According to FIR Ex.PA/1, occurrence took place on 16.12.2008 at 3:30 pm whereas FIR was registered on the same day at 4:20 pm on the statement of Mst. Balqees Bibi PW-3 real mother of Muhammad Wan deceased.
14. Place of occurrence is the crop of `Barsim' belonging to Maqsood Ahmed Bhatti. Balqees Bibi PW-3, Ahmad Din PW-4, Muhammad Shan Ali PW-7 claim themselves to be the eye witrzsses of the occurrence.
15. Balqees Bibi PW-3 stated that her son Muhammad Shan Ali PW-7 was trying to catch the Kite in the crop of `Barsim' belonging to Maqsood Ahmed Bhatti. Abid Hussain present appellant was also trying to catch the Kite and a quarrel took place between them on catching the Kite. Abid Hussain present appellant then gave beating to her son and on hearing the noise of weeping of her son, she along-with her son Muhammad Irfan deceased, Ahmed Din PW-4 and Bashir Aluned (given up PW) went to the crop of `Bursim'. Her son Muhammad Irfan deceased restrained Abid Hussain present appellant from beating to her son Muhammad Shan Ali PW-7. Abid Hussain present appellant became annoyed and gave a knife blow on the chest of her son Muhammad Irfan while taking the same from his pocket. Sustaining the injury, her son Muhammad Irfan deceased fell down and Abid Hussain accused fled away along-With his knife and thereafter Muhammad Irfan her son succumbed to the injuries at the spot.
16. Ahmad Din PW-4 and Muhammad Shan Ali PW-7 eye witnesses narrated the same story as stated by Mst. Balqees PW-3 eye witness.
17. The presence of above mentioned eye witnesses at the spot at the relevant time, therefore, could not be considered as unnatural or improbable. All the above mentioned eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross- examination. They corroborated each other on all material aspects of the case. Their evidence is trust worthy and straight forward.
18. Medical evidence was furnished by Dr. Muhammad Rauf Elvi, PW-6 who conducted postmortem examination on 16.12.2008 on the dead body of Muhammad Irfan deceased and observed stab wound 2.5 cm x 1.5 cm going deep on the front of chest just below the lower end of sternum. Injury was ante-mortem and was sufficient to cause of death in ordinary course of nature. Probable time between injury and death was within few minutes whereas between death and postmortem was about 7 to 8 hours. In view of the above, medical evidence has supported the ocular account furnished by above stated eye witnesses.
19. Adverting to the defence plea of Abid Hussain appellant, he stated in answer to question, why this case against you and why the PWs deposed against you? Replied as under:- "it is a false case. The PWs are related inter-se. It was a blind occurrence and deceased was murdered during the commission of dacoity and it is also in the knowledge of whole village. Prior to this FIR, litigation between the complaincaii and one Rasheed was pending and I was supporter of Rasheed. I have been falsely implicated by the police in connivance with the complainant' party due to the grudge that I was supporting one Rasheed opponent of the complainant party".
20. But Abid Hussain appellant neither produced any defence evidence in support of his defence plea nor he himself opted to appear under section 340(2), Cr.P.C. To support his defence plea. So, the defence plea of Abid Hussain appellant is nothing except denial and same is hereby discarded.
21. In view of the above discussion, there was no premeditation by the appellant to commit the murder of Muhammad Irfan deceased. The incident happened on the spur of the moment and there is no background of any illwill or bitterness of the appellant to commit the murder of Muhammad Irfan deceased.
22. Undisputed age of Abid Hussian is mentioned as 21 years in his statement recorded under section 342, Cr.P.C. On 10.11.2010, occurrence took place on 16.12.2008 and he was about 19 years old at the time of occurrence whereas Muhammad Irfan deceased was 18 years old at the time of his death.
25. Medical evidence discussed earlier shows that Muhammad Wan deceased has received only one blow of knife on his chest and there is no allegation of repetition of the knife blow against the present appellant Abid Hussain.
26. The case in hand was surely a case of lack of premeditation, the incident was one of a fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor he had acted in a brutal or unusual manner. Thus, the case against the appellant falls within the purview of section 302(c). P.P.C. Reliance is placed on case Azmat Ullah v. The State (2014 SCM R 1178) in which Hon'ble Supreme Court of Pakistan has observed at pages 1180 and 1181 as under:- "The case of the prosecution is that at the 'relevant date and time the appellant and his brother namely Imran suddenly developed a quarrel and on the basis thereof the appellant was enraged and he caused injuries to the said brother with a chhurri which injuries led to his death. The FIR in this case has been lodged by none other than the father of the appellant. In this statement recorded under section 342, Cr. P. C. The appellant had maintained that he had caused an injury to his brother namely Imran deceased in exercise of right of private defence but he had failed to lead any independent evidence to substantiate and establish the said plea taken by him. Leave to appeal had been granted in this case to consider as to whether the circumstances of this case attract the provisions of section 302(b), P. P. C. Or of section 302(c), P. P. C. A bare perusal of the FIR, the statements made by the eye-witnesses before the learned trial court and the findings recorded by the learned courts below clearly show that there was no background of any or bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a chhurri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the postmortem of the deadbody had categorically observed that both the injuries found on the deadbody of the deceased could be a result of one blow of chhurri. These factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. Now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances exception 4 contained 'in the erstwhile section 300, P.P.C. Squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P. P. C.
' Keeping in view the facts and circumstances of the case this appeal is partly allowed, the conviction of the appellant for an offence under section 302(b), P.P.C. Is converted into that for an offence under section 302(c), P.P..C. And consequently his sentence is reduced from R.I for twenty five years to R.I for ten years. The sentence of fine passed against the appellant by the learned trial court and upheld by the Lahore High Court Lahore has been found by us to be unwarranted because section 302(b) or 302(c), P.P.C. Do not contemplate any such sentence. Instead of the fine we direct that the appellant shall pay a sum of Rs. 50,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof he shall undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. Shall be extended to him. This appeal is disposed of in these terms".
27. For the foregoing reasons, this appeal is party allowed. The conviction of the appellant Abid Hussain for an offence under section 302(b), P.P.C. Is converted into that of an offence under section 302(c) and consequently his sentence is reduced from life imprisonment to 10-years' R.I.
Compensation awarded by the learned trial against the appellant and sentence in default thereof is upheld. Conviction and sentence under section 337-F(i), P.P.C. Is also F maintained. All the sentences shall run concurrently. Benefit of section 382-B is also given to the present appellant.
This appeal is disposed of in view of the above terms.
28. In view of above decision, Criminal Revision No. 266 of 2011 filed by Mst. Balqees Bibi complainant for enhancement of the sentence of present appellant has no merits and is dismissed.