' QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Rafique, hereinafter referred to as the deceased, was fatally stabbed on 3-10-2010 at 4:30 p.m. Within the area of Thathar-wala situating at a distance of 11 kilometers from Police Station Darhama District D.G. Khan; the incident was reported straight at the police station by Muhammad Aslam (PW-2) alleged wherein is that within his view, the appellant accompanied by Ghulam Yasin, Ghulam Fareed and Muhammad lqbal confronted the deceased, on way riding a bicycle, who ran to save himself by taking refuge inside the house of Lal Sanjrani, however, the appellant after taking Churri earlier held by Ghulam Yasin dealt a blow to the deceased on left side of chest piercing into his heart, who succumbed to the injury at the spot.
Motive for the occurrence was an earlier criminal case wherein the deceased was on bail and the accused had threatened that in the event of bail they would deal him on their own. Dr. Mehmood Khan Laghani (PW-1) conducted autopsy on 3-10-2007 at 11:30 p.m. And observed an incised wound 6 cm x 2 cm on the left side of front of chest, 6 cm left from the midline; pericardium and heart were found injured; the injury was opined as ante mortem and sufficient to cause death in the ordinary course of nature. Ashiq Hussain Dakhana, SI (CW-6) undertook initial investigation. The appellant was arrested on 11-10-2007 and pursuant to a disclosure led to the recovery of Churn I (P-1), secured vide memo Ex.PF. Ghulam Yasin, Ghulam Farid and Iqbal, co-accused were exonerated during the course of investigation and this prompted Muhammad Aslam (PW-2) to file a private complaint wherein Allah Wasaya and lqbal were summoned to face trial; they were indicted on 20-4-2009 when they denied the charge and claimed trial, pursuant whereto, the complainant produced three witnesses whereas seven witnesses were examined as court witnesses. The appellant confronted prosecution evidence with the following plea:- "I am falsely implicated in this case due to previous animosity. At the time of occurrence neither the complainant nor eyewitness Muhammad Sadiq was present. The house inmates did not support the prosecution story. They categorically denied the presence of complainant Muhammad Aslam and PW Muhammad Sadiq at the place of occurrence. "
' The learned trial Judge on conclusion of the trial through judgment dated 3-12-2009 acquitted Muhammad Iqbal, co-accused, however, convicted the appellant under Section 302 (b) of the Pakistan Penal Code, 1860 and sentenced him to imprisonment for life with payment of compensation of Rs,200,000/- to the legal heirs of the deceased; benefit of Section 382-B of the Code of 'Criminal Procedure, 1898 was extended to him.
2. Learned counsel for the appellant contends that Shahnaz Bibi (CW-2) and Muhammad Zafar (CW-5), eye-witnesses of the occurrence, exonerated the appellant during the trial and this according to him raised the prosecution case to the ground leaving no occasion for the learned trial Judge to return a guilty verdict to the appellant. Contrarily, the learned' Law Officer assisted by the learned counsel for the complainant not only defended the impugned judgment but also prayed for enhancement of sentence inflicted upon the appellant.
3. Heard. Record perused.
4. The mainstay of the prosecution case comprises of statements of Muhammad Aslam (PW-2) and Muhammad Sadiq (PW-3); they furnished ocular account in support of prosecution case initially set up in the First Information Report, subsequently pursued through a private complaint.
Copy of First Information Report No,19 dated 8-5-2007 registered at Police Station Dharama District D.G. Khan on the statement of Mst. Naseem Mai was produced as Ex.PA to establish the motive, though inadequate; the deceased was nominated as one of the accused in the said First Information Report and his release on bail, according to prosecution, cost him his life. Bloodstained Churri (P-1) which was found stained with blood of human origin, as per report of Chemical Examiner and Serologist is yet another plank of the prosecution case; this weapon was recovered at the instance of the appellant; it is a case of solitary blow confirmed through medical evidence and attributed to the appellant alone. Muhammad Aslam (PW-2) and Muhammad Sadiq (PW-3) are consistent, straightforward and confidence inspiring insofar as the salient features of the prosecution case are concerned; previous acrimony in the wake of criminal litigation is also satisfactorily established. Shahnaz Bibi (CW-2) and her brother Muhammad Zafar (CW-5) narrated a different story; according to them, the deceased entered their premises, already injured and succumbed to his injury shortly thereafter; they completely exonerated the appellant and his co- accused. All the witnesses and accused are close relatives; it is a clan divided and in this division Shahnaz Bibi (CW-2) and Muhammad Zafar (CW-5) opted to choose the other side of divide under the principle that the nearer excludes the remoter; Shahnaz Bibi admitted in her examination that the appellant was her Khalazad and Iqbal and Fareed, real uncle, the same is their relationship with Muhammad Zafar (PW-5) real brother of Shahnaz Bibi; their deviation is obvious and understandable and as such does not destroy the prosecution case firmly founded on the testimony of Muhammad Aslam (PW-2) Muhammad Sadiq (PW-3) supported by evidence of motive and recovery. However, in the given facts and circumstances of the case, inadequacy of motive, infliction of a solitary blow and unanticipated arrival of the deceased at the venue to face his assassin are the factors, which on a closer scrutiny, without doubting the presence of eye- witnesses, spell out a different scenario; a situation that cropped up all of a sudden, an assault ignited by a cause or reason withheld by both the sides, taken from any angle, it was a sudden incident, and in such a situation, application of Clause (c) of Section 302, P.P.C. Would be more aptly applicable to the case in hand. Reliance is placed on the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 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 the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan 's 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. "
Same view was taken in the case of Azmatullah v. The State .(2014 SCM R 1178). In this backdrop, conviction of the appellant is converted into Clause (c) of Section 302 of the Pakistan Penal Code, 1860 and his sentence is reduced to fifteen years' RI which in the facts and circumstances of the case would meet the ends of justice. Resultantly, Crl. Appeal No,853 of 2009 filed by Allah Wasaya, appellant is partly allowed in the above terms. The appellant is on bail; District Police Officer, Dera Ghazi Khan shall cause his arrest for production before the learned Sessions Judge, D.G. Khan for committal in prison to serve out remaining sentence.
5. As a natural corollary, Cr!. Revision No,4 of 2010 also stands dismissed.