' This judgment will dispose of Criminal Appeal No,37-J of 1998 filed by Shaukat Ali alias Shauka and Muhammad Sadaq, who are real brothers inter se. They were convicted and sentenced by learned Additional Sessions Judge, Depalpur on 18-2-1998 as under:
(1) Shaukat Ali alias Shauka appellant was convicted under section 302, P. P C , to undergo life imprisonment for committing the murder of Ferhat Abbas deceased.
(2) Muhammad Sadiq appellant was convicted under section 302-C, P.P.C., to undergo ten years R.I., for committing the murder of Ferhat Abbas deceased.
(3) Both the appellants were further directed to pay Rs,20,000 each as compensation, under section 544-A, Cr.P.C., to the legal heirs of the deceased, in default one year R.I., each.
2. This is a Jail appeal. I had appointed Mr. Khalid Naveed Dar, Advocate to defend both the appellants at State expense.
3. The occurrence in this case took place on 26-12-1995 at 10-00 a.m. In front of Masjid Ahl-i- Hadees and also in front of the shop of Shaukat Ali appellant, situated in City Dapalpur while formal F.I.R., Exh.P.C., was lodged by Muhammad Khurshid Alam (P.W.3) real brother of the deceased on the same day which was recorded by Aman Ullah Khan S.I., P.W.13 in the Police Station, City Depalpur, District Okara at 10-40 a.m.
4. The prosecution case as contained in the F.I.R. Exh.P.C. On the statement of the complainant Muhammad Khurshid Alam (P.W.3) is that on 26-12-1995 at about 10-00 a.m. He and his brother Farhat Abbas were going to Bus. Stand, Depalpur. When they reached near Masjid Ahl-i-Hadees, Shaukat alias Shauka accused armed with an iron sua and Muhammad Sadaq accused empty handed who had been preparing (SIRKIAN) emerged there near Masjid Ahl-iHadees. On seeing them they raised lalkara that today they would teach lesson to Farhat Abbas for his badmashi.
Farhat Abbas tried to run away. Upon which Muhammad Sadiq accused caught hold of him.
Shaukat accused inflicted a blow with his iron sua on the neck of Farhat Abbas on his left side.
Complainant's brother fell on the ground after receiving the injuries. On alarm Nadeem Ahmad P.W., Muhammad Ishfaq P.W. And other persons were attracted to the spot and witnessed the occurrence. The accused fled away raising lalkara from the place of occurrence. The P.Ws. Took Farhat Abbas to Hospital where he expired due to the injury.
5. Motive behind this occurrence was that two days before the occurrence there was dispute/quarrel between the children, upon ,which a dispute took place between Muhammad Ahmad son of Atta Muhammad and Muhammad Shaukat. On this Farhat Abbas accused, who was favouring the said Muhammad Ahmad had reprimanded the accused and also slapped them.
Shaukat and Sadaq accused had threatened Farhat Abbas (deceased) with dire consequences and said that they would take revenge. Both the accused committed the murder of Farhat Abbas (deceased) in furtherance of their common intention. The complainant left Nadeem Ahmad P.W.
And Ishfaq P.W., with the dead body of deceased, himself went to the Police Station, where he lodged the report Exh.P.G. Which was read over to him and in token of its correctness he signed the same.
6. The Investigating Officer after reaching at the spot took into possession blood-stained earth vide memo. Exh.P.D. Appellant Shaukat Ali was arrested in this case on 15-1-1996. He led to the recovery of iron Sua P.4 on 17-1-1996 which was stained with human blood according to the report of Chemical Examiner and that of Serologist, which was taken into possession vide memo. Exh.P.B.
7. Prosecution in order to prove its case produced 14 witnesses in all. Amongst them, there were three eye-witnesses, two eyewitnesses namely Khurshid Alam P.W.3 and Nadeem Ahmad P.W.4 while Muhammad Ishfaq was given up by the prosecution. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C.
8. Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C., and makes the following submissions. He submits that story mentioned by the prosecution in the F.I.R., and before the learned trial Court is most unnatural and improbable. He submits that occurrence had taken place in front of the shop of Shaukat Ali appellant. He also submits that it was a sudden quarrel and took place in the heat of passion and no undue advantage was taken by the appellant. He submits that only one injury is attributed to the Shaukat Ali appellant. He also submits that as far as Muhammad Sadaq appellant is concerned, no overt act except to held the deceased in his "Japha" is attributed to him and he has been falsely implicated in this case for the reasons that he is real brother of Shaukat Ali appellant. He submits that during the course of investigation Muhammad Sadaq appellant was found innocent and motive is also not attributed to him. Lastly he submits that case of the Shaukat Ali appellant is covered by section 302(c), P.P.C., and not by section 302, P.P.C.
9. On the other hand, learned counsel for the State submits that it was a case of promptly lodged F.I.R. Appellants were named therein that specific roles were attributed to them, that injuries caused by Shaukat Ali appellant proved fatal according to the post-mortem report. He submits that already a lenient view has been taken by the learned trial Court by not awarding the death sentence to the appellants.
10. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court with their assistance. Even it has not been denied by the prosecution, that the occurrence had taken place in front of the shop of Shaukat Ali appellant. As far as, Muhammad Sadiq appellant is concerned, no injury is attributed to him, only "Japha" is attributed to him which is usually attributed to near relation of the main accused in our society in such-like cases. According to their own story furnished by the prosecution against Muhammad Sadaq, that he took the deceased in his "Japha" is not confidence inspiring. Further, he was also found innocent by the Investigating Officer during the course of investigation.
11. In this view of the matter, as far as Muhammad Sadaq appellant is concerned, he is acquitted from the charge of murder. The conviction and sentence awarded to the appellant Muhammad Sadaq by the learned trial Court is set aside. He shall be released forthwith if not required in any other case.
12. Now I take up the case of Shaukat Ali appellant. As I have stated earlier, that the occurrence had taken place in front of the shop of Shaukat Ali appellant. The weapon which he used is an iron, Sua.
Shaukat Ali appellant deals in making Sirkian and the said weapon is used for making Sirkian. The weapon used by Shaukat Ali appellant is not a lethal weapon and the same is not usually used in commission of hurt cases and murder cases. Only one injury is attributed to Shaukat Ali appellant, unfortunately that proved fatal. I think that the occurrence had taken place at a spur of the moment which was sudden one and no undue advantage had been taken by the appellant.
Conviction and sentence awarded to Shaukat Ali appellant is converted from section 302, P.P.C., to section 302(c), P.P.C., and his sentence is reduced from life imprisonment to 14 years R.I. As far as, compensation is concerned, that is maintained. However, appellant Shaukat Ali is granted the benefit of section 382-B, Cr.P.C.
13. With these observations, this appeal stands disposed of.