Shakeel Ahmed son of Muhammad Nazir, aged 19/20 years resident of village Sikandarpur, Tehsil Haripur, died- of stab wounds, for which Wajid Mahmood son of Dost Muhammad of the same village was charged, who stood trial on that charge in the Court of Additional Sessions Judge, Haripur and on the conclusion of- the trial, having been found guilty of committing offence punishable under sectuion 304, Part 1, P.P.C., was convicted and sentenced to undergo five years R.I.
And to pay a fine of Rs.2,600 in default of payment of which he was to suffer further three months S.1, Out of the fine, if realised, half was directed to be paid to the Legal Representatives of the deceased as' a compensation. The convict was also allowed the benefit of section 382-B, Cr.P.C., as a result whereof the convicted 'accused, after serving out imprisonment, has now come out of Jail.
Dissatisfied with the conviction and the sentence aforesaid, the complainant filed a revision petition in this Court praying therein that the orders made by the learned trial Judge be modified and the conviction altered from one under section 304, P.P.C. To one under section 302, P.P.C. And the sentence enhanced in accordance with law. Later, however, the complainant moved amended revision petition with the prayer that the orders made by the learned trial Court acquitting the accused-respondent No.1 under section 302, -P.P.C. Be set aside and the case remanded to the learned trial Court for re-trial of the accused for the same offence, and in the alternative, for enhancement of the punishment awarded under section 304, Part I, P.P.C. So as to be commensurate with the offence committed by the respondent No.1.
2. Brief facts of the case are that on 22-9-1981 at 1845 hours, Tahzeeb (P.W.4) took his injured brother Shakeel Ahmed to P.S., Haripur where he lodged the first report, stating therein that while he was in his house at about 6-30 p.m. He heard noise in the street and on coming out of the house and reaching the spot he saw his brother Shakeel Ahmed (deceased) and Wajid Mahmood accused altercating with each other. In order to effect separation, he caught hold of his brother and wanted to take him to his house when all of a sudden Wajid Mahmood took out a dagger and caused with it two injuries on the body of Shakeel Ahmed and thereafter, decamped from the spot.
'Qazi Farooq (P.W.5) and other persons of the Mohallah were stated to have seen the occurrence.
With the help of Qazi Farooq, the complainant took the injured to P.S. Where report, as earlier stated, was lodged.
3. A.S.I. Abdul Majeed (P.W.10) had recorded the first report and had also investigated the case. He had prepared the injury sheet and the inquest report of the deceased and also the site plan Exh.P.B.
He had examined the P.Ws. On 23-9-1981 and had also arrested the accused, on whose pointation, vide recovery memo. Exh.P.W.2/1, he had recovered blood-stained 'Chhuri' P.I. Wrapped in a cloth P.2 from -underneath a tree in a garden. Since the .Accused was willing to make confession, the A.S.I. Had applied to the Magistrate for recording his confessional statement, which was so recorded by Syed Azmat Ali Shah (P.W.11). S.H.O. Sardar Muhammad Yaqoob (P.W.12) had submitted challan to the Court.
4. At the trial, the prosecution mainly relied on the ocular evidence furnished by Tahzeeb (P.W.4), Qazi Farooq (P.W.5) and Phool Shah (P.W.6) the medical evidence, the recovery of the crime weapon at the instance of the accused and his confessional statement. The recovery memos respecting the incriminating articles were got proved at the trial through the testimony of the marginal witnesses thereof. The positive Chemical Examiner's report Exh.P.W.10/5 was also relied upon by the prosecution at the trial.
5. While appearing as a witness Dr. Noor Wahab Shah (P.W.9) testified to the two stab wounds which were found on the body of the deceased. He also gave evidence respecting the other injuries found on the vital organs of the body of the deceased. The death of Shakil Ahmed was direct result of the stab wounds found on. His body.
6. The learned trial Judge, relying on the aforesaid evidence, found Wajid Mahmood guilty of committing homicide which did not amount to murder and consequently, he sentenced him to suffer imprisonment and fine as aforesaid under section 304, Part I, P.P.C. The reason given by the learned trial Judge for reaching this conclusion was that it was a sudden affair with no premeditation. And with no previous enmity and was a 'border-line case' the benefit whereof was to go to the accused. This finding, as already mentioned, has been assailed by the complainant in this revision petition.
7. Before I proceed to discuss the merits of the case, I would like to dispose of the preliminary objection raised by the learned counsel (Abdullah Jan Mirza, Advocate) for the respondent No.1 to the effect that the amended revision petition was barred by limitation. The learned counsel urged that although the first revision petition by the complainant was filed within sixty days of the passing of the impugned order, but the amended revision petition having been filed after about a year of the impugned order was barred by time, which in such like matters was six months.
8. It is true that the amended revision petition has been filed by the complainant beyond six months of the passing of the impugned order, but the learned counsel while so urging failed to take note of the fact that no limitation has been prescribed in law for such like petitions, and that being so, a petition of this nature could not be thrown out on this ground, as justice in such like cases could-not be allowed to be defeated on such a technical ground. I would, therefore, overrule this objection raised by the learned counsel for the respondent No. 1.
9. The learned counsel for the petitioner contended that it was established on the record that the deceased was unarmed and the respondent No.1 while taking undue advantage of the situation and while acting in a cruel and unusual manner gave two dagger blows to the deceased thereby causing his death. In such circumstances, the learned counsel contended, Exception IV to section 300, P.P.C. Was not attracted and the case, therefore, clearly fell under section 302, P.P.C. And not under section 304, P.P.C. The learned counsel argued that in the circumstances the learned trial Judge was not right in convicting the respondent No.1 under section 304, P.P.C., which conviction merited to be set aside and the case required to be remanded to the learned trial Court for re-trial of the respondent No.1 for offence under section 302, P.P.C.
10. The learned counsel representing the respondent No.1, however, argued that it was prosecution's own case at the trial that in a sudden fight and without previous enmity between the parties the respondent No.1 dealt two stagger blows to the deceased thereby causing his death. The learned counsel contended that the place of occurrence was situated in front of the house of the respondent No.1 where at the relevant time, according to prosecution story, he was standing and it was the deceased who approached him and on a petty matter altercation between the two took place resulting in a sudden fight between them and in the heat of passions the respondent No.1, without pre-meditation, dealt dagger blows to the deceased which caused his death. The learned counsel argued that it was a case of unpremeditated homicide committed by a child of 14-- years age in the heat of passions on sudden fight and in the circumstances Exception IV to section 300, P.P.C. Was clearly attracted. The learned counsel also argued that in this case no disinterested evidence was available on the record to involve the respondent No.1, in the crime, as the witnesses produced were either interested or chance witnesses having no reason to be present at the relevant time at the place of occurrence. On merits, the learned counsel contended, the case was not even that of conviction.
11. From the beginning till the end the prosecution case was that in a sudden quarrel between the deceased and the respondent No.1 the former got injured and succumbed to- his injuries. The occurrence had taken place in front of the house of the respondent No.1 where at the relevant time he was standing. The deceased was said to have approached him and on .a petty matter, after altercation, the deceased and the respondent No.1 had grappled with each other. There was no previous enmity of any nature between the parties and in the circumstances the homicide-was not premeditated. According to School Certificate Exh. D. A . Which went unrebutted, the age of the respondent No.1. At the time of, commission of the crime was about 14-- years. According to post- mortem' report, the age of the deceased was 19/20 years. The prosecution alleged that after hearing noise Tahzeeb (P.W.4), the brother of the deceased aged about 25/26 years, reached the place of occurrence in order to effect separation between the deceased and the respondent No.1. It is but natural that after reaching the spot Tahzeeb (P.W.4) must have taken the side of his brother Shakeel Ahmed (deceased). Seeing the two brothers on the one side, who were also older in age, the respondent No.1. Might have found himself in disadvantageous position and for that reason and to balance his weak position he might have used dagger and stabbed the deceased with it in the heat of passions,. Whereafter he ran away from the spot. In such circumstances, the view taken by the learned trial Judge that the case fell under section 304, Part I, P.P. C. Was also possible. Further, in a border-line case, such as this was, when the State has not come in appeal against acquittal, interference on revisional side is not warranted.
12. As to the argument of the learned counsel for the respondent No.1 that there was no evidence on the record to merit conviction of the respondent No.1 even under section 304, P.P.C., suffice it to say that it was without substance. The ocular evidence furnished by Tahzeeb (P.W.4) and Qazi Muhammad Farooq (P.W.5), the medical evidence available on the record, the recovery of the crime weapon at the instance of the accused, proved at the trial, and the voluntary confessional statement made by the respondent No.1 were sufficient to connect him with the crime.
13. The learned counsel for the petitioner also urged for enhancement of the sentence awarded to the respondent No.1 under section 304, Part I, P.P.C. In the matter. Of sentence, the discretion exercised by the learned trial Judge not appearing to be arbitrary and capricious, interference on revisional side was not called for.
14. For the aforesaid reason, I find no merit in this revision petition, which is hereby dismissed.