AMJAD ALI SAHITO, J. Being aggrieved and dissatisfied with the impugned judgment dated 05.07.2019, passed by learned 1st Additional Sessions Judge/MCTC, Qamber, in Sessions Case No.454/2012, arising out of the FIR. bearing Crime No 46/2012 registered for offence punishable under sections 302, 114, 34, P.P.C. of P.S Drigh, whereby the appellant was convicted under section 302(b), P.P.C. for committing murder of deceased Muhammad Peeral Totani and sentenced to death as "Tazir" subject to confirmation of this Court and to pay compensation of Rs.5,00,000/- [Rupees five hundred thousand] to the legal heirs of deceased or in case of default, to suffer S.I for six months more. In addition to this, a Criminal Reference for confirmation of death sentence was also made by learned trial Court.
2. Briefly, the facts of the prosecution case are that on 08.08.2012, at about 1600 hours, complainant Shabir Ahmed Totani lodged FIR with P.S, Drigh, wherein he mentioned that on the same date, at about 11.00 a.m., the present appellant along with co-accused Ali Nawaz Totani duly armed with hatchets, and one unknown culprit with pistol came at the land of complainant situated near village Noor Muhammad Shaikh where on the instigation of co-accused Ali Nawaz, the present appellant after causing hatchet blow to his father Muhammad Peeral on his head, fled away towards eastern side of their houses. Injured Muhammad Peeral was immediately shifted towards Taluka Hospital Qamber, where he succumbed to injury. Leaving the witnesses over the dead body of his father, the complainant came at police station and lodged the FIR against the accused.
3. After completing the usual investigation, a report under section 173, Cr.P.C. was submitted by the Investigating Officer against the accused before the Court of learned Judicial Magistrate and the case papers were supplied to the accused. Thereafter, the case was sent up before the Court of learned Sessions Judge, Qamber-Shandadkot at Qamber, where the formal charge was framed against accused Muhammad Nawaz Chocho and Ali Nawaz Totani at Exh.02, to which they pleaded not guilty and claimed trial vide their plea(s) recorded separately.
4. To establish accusation against the accused, the prosecution examined PW-01 Complainant Shabir Ahmed Totani at Exh.6, he produced FIR of the present case at Exh.6/A. PW-02 Ghulam Rasool Totani (eye-witness) at Exh.7. PTV-03 Saddam Hussain (eye-witness) at Exh.8. PW-04 Mashir Haji Muhammad Yousif at Exh.9, he produced mashirnama of inspection of dead body of deceased, Danistnama, mashirnama of inspection of place of vardat and collection of blood stained earth and mashirnama of arrest of accused Muhammad Nawaz; mashirnama of recovery of crime weapon viz hatchet on pointation of accused Muhammad Nawaz and mashirnama of arrest and body search of accused Ali Nawaz at Exh.9-A to Exh.9-F respectively. PW-05 Corpse bearer ASI Allah Warrayo Soomro at Exh.10, he produced receipt of delivery of dead body of the deceased at Exh.10/A. PW-06 Dr Birahma Wadhani at Exh.11, he produced inquest report and postmortem report of the deceased at Exh.11/A and B. PW-07 Tapedar Altaf Hussain Lashari Exh.12, he produced sketch of vardat at Exh.12/A. PW-08 Author cum I.O. of the case namely SIP Hakim Ali Brohi at Ex.13, he produced roznamcha entries, letters to Mukhtiarkar and SSP for permission, R.Cs and chemical reports at Exh.13/A to 13/N respectively. Thereafter, learned State Counsel closed its side vide statement kept on record at Ex.14. Needless to mention here that co-accused Ali Nawaz Totani during course of trial was acquitted in terms of compromise under section 345(6), Cr.P.C. vide order dated 18.04.2019.
5. The present appellant/accused in his statement recorded under section 342, Cr.P.C. at Exh.15, denied the allegations levelled against him and claimed his innocence by stating therein that the deceased was his uncle, a matrimonial dispute was going on between him and the complainant and there is no repetition of hatchet blows and if he had an intention to commit his murder, the person armed with pistol must had fired at him. He thus prayed for justice. However, he neither examined himself on oath under section 340(2), Cr.P.C., nor led any evidence in his defence.
6. The learned trial Court, after hearing the counsel for the parties and appraisal of the evidence, convicted and sentenced the appellant in a manner, as stated above, which the appellant has impugned before this Court by way of filing the instant Criminal Appeal through Jail.
7. Mr. Jawed Ahmed Soomro, learned counsel for pauper appellant mainly contended that the appellant is innocent and has falsely been implicated in the murder case; that there are material contradictions in the evidence of PWs; that as per prosecution story the incident is with weakest motive; that recovery has been foisted upon the appellant; that there is no independent person shown as a witness to believe that the appellant has committed the offence; that there is conflict between ocular and medical evidence; that the prosecution witnesses deposed that the appellant has given right side of hatchet below, whereas Doctor deposed that the kind of weapon used was hard and blunt substance. He further added that the prosecution has miserably failed to prove its case against die appellant and thus, according to him, the appellant is entitled to his acquittal.
Lastly, he contended that if acquittal is not possible then it is fit case which can be converted from section 302(b) to 302(c), P.P.C.; that the case in band was surely 4 case of lack of premeditation, the incident was one of a sudden fight which was result of beat 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.
8. Conversely, the learned D.P.G for the State while supporting the impugned judgment argued that all the prosecution witnesses have fully supported the case against the appellant beyond any shadow of reasonable doubt; that there is no material brought on record to show that the appellant is not involved in the commission of the offence, hence, he prayed for dismissal of the instant appeal. However, he admits that there is conflict between the ocular and medical evidence and in view of above position, he raised no objection for converting the punishment from section 302(b) to 302(c), P.P.C.
9. We have heard the learned counsel for the parties and have gone through the evidence as well as impugned judgment with their able assistance.
10. The law of land is that normal sentence for an offence of murder is death which is be awarded as a matter of course except where the Court finds some mitigating circumstances, warranting the imposition of a lesser sentence. On careful perusal of material brought on the record, it appears that deceased Muhammad Peeral aged about seventy (70) years was real uncle of accused/appellant Muhammad Nawaz alias Chocho. At the relevant date and time of incident, he was present on his agricultural land along with his two sons namely Shabir Ahmed and Ghulam Rasool and grandson Saddam Hussain and watering their agricultural land. Meanwhile, appellant along with two other accused persons appeared at place of incident and asked the deceased that why he is irrigating his agricultural land on which a quarrel took place between the parties. All of sudden, accused/appellant caused sharp side of hatchet below on the head of the deceased, who after receiving hatchet blow fell down. The injured was shifted to hospital for treatment and during treatment he succumbed to the injury. During cross-examination, complainant Shabir Ahmed (Exh.06) admitted that "The land where the inciden4 took place is our property. It is correct to suggest that in my FIR as well as my evidence, I did not disclose the survey number of the land. It is correct to suggest that the present accused persons are my cousins. In the first instance, the accused exchanged the harsh words with my father for around 04/05 minutes. The accused spent around 40/50 minutes in whale incident".
11. A bare perusal of the FIR, the statements made by the eye-witnesses and finding recorded by learned trial Court clearly show that there was no background of any or bitterness between the parties. The complainant admitted that he/appellant had asked his father that why he is irrigating his agricultural land. The accused remained at the place of incident nearly about 40 minutes and he was trying to motivate his uncle/deceased that the land belongs to him. The complainant admitted in his evidence that all of sudden the appellant caused' sharp side of hatchet blow to his father. On the other hand, PW-06 Dr. Birahma deposed that the Injury No.1 - A lacerated wound 06 cm x 05 cm x scalp deep on the mid of skull. No.2 A bruise on right eye (black eye) and injury No.3. A bruise on left eye (black eye) and kind of weapon used was hard and blunt substance.
12. In these circumstance, it can safely be said that the prosecution has brought on record reliable evidence to sustain the conviction of the appellant. However, so for the quantum of punishment is concerned, we are of the view that the occurrence took place at the spur of the moment and there was no premeditation on the part of appellant. If the appellant had a plan to take the life of the deceased, he without wasting his 40 minutes at the place of incident would have killed him. The same shows that something happened immediately before the occurrence which provoked the appellant, taking life of the deceased who was none but his real uncle of about 70 years old.
13. The learned trial Court has awarded sentence to the appellant for an offence punishable under section 302(b), P.P.C. For the sake of convenience, the definition of section 300, P.P.C. is reproduced hereunder:- "300. Qatl-i-amd.---Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd."
14. From a reading of the above provision of law, it reflects that section 300, P.P.C. gave three situations and divided into three parts mentioned below where the act would fall under the definition of Qatl-i-amd.
(a) If a person causes death of any person with intention to kill him;
(b) If the act is done with intention to cause bodily injury to any person and such injury, in the ordinary course of nature is likely to cause death;
(c) If the act is done with knowledge that the act is imminently dangerous and it must in all probability cause the death.
The Exception 4 to section 300 and section 304, P.P.C. are reproduced as under:- "Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."
"304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
The punishment as provided under section 302, P.P.C. is also reproduced as under:- "302. Punishment of qatl-i-amd---Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be -
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years where according to the injunctions of Islam the punishment of qisas is not applicable; Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be".
15. On the assessm ent of evidence, we have found that the motive set up by the prosecution was quite vague and admittedly no independent witness was brought by prosecution even not a single word deposed by any of the witnesses regarding the background of any or bitterness between the appellant and deceased and that the incident had erupted all of sudden without any premeditation whatsoever.
16. It has come on record that the appellant had caused only a single hatchet below to the deceased but did not repeat the same, hence, in absence of repetition of hatchet below by the appellant dispels the premeditation to kill the deceased, therefore, we observe that the appellant had no intention to kill deceased as defined under part (a) of section 300, P.P.C., hence, the sentence under section 302(b), P.P.C. is not justifiable but the case of appellant fall under section 302(c), P.P.C. In this regard, we are also fortified with the cases of Amjad Shah v. The State [PLD 201 7 Supreme Court 152], Zeeshan Shani v. The State [PLD 2017 Supreme Court 165], Azmat Ullah v.
The State [2014 SCMR 1178].
17. In the case of "Zeeshan alias Shani" [supra], the Honourable Supreme Court has held that:- The appellant did not premeditate the killing, nor could he have since the complainant party had arrived unannounced at his house. Needless to state that if the complainant side had not sought out the appellant no fight would have occurred. Be that as it may, the appellant should not have struck the deceased with force and that too on a vital part of his body. The appellant, however, struck only a single blow with a simple stick and not with any weapon. Both the victim and the perpetrator were young men and had joined hands to render slaughtering services together.
Unfortunately, a dispute over the share of the takings resulted in the death of one of them. There is no reason for us to take a different view from the one taken in the afore-cited precedents. In this case the appellant without premeditation and in the heat of a free fight had struck the deceased with a single blow of a stick. In such circumstances, his case would come within clause (c) of section 302, P.P.C.
12. Therefore, in view of the fuels and circumstances of the case it would be appropriate to alter the conviction of the appellant recorded under section 302(b), P.P.C. to one under section 302(c), P.P.C. and, consequently, reduce his sentence to ten years rigorous imprisonment whilst maintaining the sentence of fine and the simple imprisonment to be undergone for failure to pay fine. As held by the Courts below the appellant will also receive the benefit of section 382-B of the Cr.P.C."
In another case of *Azmat Ullah* [supra], the Honorable Supreme has held that:- "4.......A hare perusal of the FIR, the statements made by the eve-witnesses before the learned trial Court and the findings recorded by the learned courts below clearly shows 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 post-mortem of the dead body had categorically observed that both the injuries found on the dead body 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.
5. 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 rigorous imprisonment for twenty-five years to rigorous imprisonment 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 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."
18. Learned counsel for the appellant lastly submitted that if the acquittal is not possible then it is fit case to be converted from section 302(b) to 302(c), P.P.C., to which the learned Additional P.G also raised no objection. For what has been discussed above, the instant Criminal Jail Appeal is dismissed to the extent of the appellant's conviction for offence punishable under section 302(b), P.P.C. but his sentence of death for an offence punishable under section 302(b), P.P.C. is converted into that for an offence punishable under section 302(c), P.P.C. which is reduced from the death penalty to R.I for twelve [12] years. The compensation amount is also reduced from Rs.5,00,000/- [Rupees five hundred thousand only] to Rs.50,000/- (Rupees fifty thousand only) to be paid to the legal heirs of the deceased as compensation provided under section 544-A, Cr.P.C. in case of failure thereof, the appellant shall suffer S.I. for six months more. The benefit of section of 382-B, Cr.P.C. is also extended in favour of the appellant.
19. As a result of our above findings, the Criminal Reference bearing No.15/2019 submitted by learned trial Court for confirmation of death sentence to the appellant is answered in NEGATIVE.
With the above modification, the instant Criminal Jail Appeal is disposed of.