Muhammad Ashiq alongwith his three brothers, was tried in the Court of Additional Sessions Judge, Lahore, in case F.I.R. No,1337, dated 18-4-1999 under section 302/34, P.P.C. registered at Police Station Factory Area, Lahore. Muhammad Ashiq was convicted by the trial Court and while his co- accused were acquitted vide judgment, dated 18-7-2001.
2. Muhammad Ashiq has appealed..
3. The prosecution case against the accused was in terms that Muhammad Ilyas Qamar, the complainant P.W.1 alongwith his son Irfan Qamar (deceased) was proceeding to his house after having offered 'Isha prayers, and when they reached Abdul Ghafoor chowk, his son climbed on a Thara (platform) of shops located by the road-side as there was dirty water on the road. Ejaz acquitted accused, absued him. The other accused also came to the spot. Ejaz and Shahzad allegedly caught hold of Irfan Qamar, whereafter Muhammad Ashiq brought out a Churri and gave a blow to Irfan Qamar on the right side of his abdomen who fell down. The accused thereafter gave kick and fists blow to Irfan Qamar. The P.Ws. and other inhabitants of the locality were attracted to the spot whereafter the accused fled away.
The injured was removed to hospital where Niamat Ali, S.I. P.W.9. whereafter First Information Report Exh.PB/1 was recorded on the statement Exh.PB of the complainant. After usual investigation, the accused were sent up to face trial in the Court of Additional Sessions Judge, Lahore, where charge under section 302/34, P.P.C. was framed against them. The accused did not plead guilty, whereafter prosecution examined 13 witnesses.
4. P.Ws. 1 to 5 are formal police witnesses. Dr. Ajmal Farooq, Medical Officer, testified as P.W.6. He had medically examined Irfan Qamar when he was brought to the hospital. Muhammad Ali P.W.7 claimed to be an eye-witness of the occurrence and stated that in their view Muhammad Ashiq accused pulled out a Churri and caused an injury to Irfan Qamar with that. Muhammad Bashir Ilyas, P.W.8 supported the prosecution case.
5. Dr. Jamslied Feroze, Medical Officer, testified as P.W.12. He conducted post-mortem examination on the dead body.
6. Mushtaq Ahmad, Head Constable P.W.1 proved the recovery of scissors Exh.P4, which was got recovered by Muhammad Ashiq.
7. Muhammad Ashiq in his examination under section 342, Cr.P.C. claimed that he worked with his father at a milk shop while his younger brother Ejaz was running a tailoring shop. According to Muhammad Ashiq, Muhammad Ali and others used to sit at that shop and were restrained from doing so. After that incident Irfan Qamar deceased armed with a pistol alongwith several companions variously armed, came to the tailoring shop and attacked Ejaz as well as Muhammad Ashiq and that in the course of that quarrel deceased slipped and fell on a scissors which was lying there whereafter the attackers fled away. According to Muhammad Ashiq and Arif, one of the attackers took Irfan Qamar to Rehman Clinic and from there was removed to General Hospital. He also submitted that the complainant was not present at the spot and the F.I.R. contained a false statement.
8. The trial, Court believed the prosecution case against Muhammad Ashiq and convicted him under section 302(b), P.P.C. But keeping in view that motive was not proved and Muhammad Ashiq had committed the offence without premeditation and deliberation and moreover scissors were used in the incident, the convict was sentenced to imprisonment for life and also compensation amounting to Rupees one lac, vide judgment which is under appeal.
9. Learned counsel for the appellant contended that the prosecution case that Muhammad Ashiq had inflicted a Churri blow to the deceased was belied by the recovery of scissors and this fact alone was sufficient to show that the occurrence had not taken place as was claimed by the prosecution. It was submitted that the deceased had received a single blow to the abdomen but lost his life due to the fact that he remained unattended for quite sometime, which established that his father namely the complainant was not present and Irfan Qamar deceased was not taken to hospital shortly after the incident as was claimed by him. It was submitted that the deceased attacked the accused and in the course of that quarrel and in order to ward -off the attack, the scissors were picket up from the tailoring shops and only a single below was, given with that to the deceased with established that the accused had acted in self-defence and had not committed any offence under the germane law. Prayer was made for acquittal of the accused-convict.
The State on the other hand supported the impugned judgment.
10.A perusal of record revealed that there, was no enmity between the parties and the incident in which the deceased lost his life appeared to be an isolated incident, which had taken place out of sudden. According to the complainant, his son had climbed onto a Thara (platform) of a shop, which was a tailoring shop of the accusal. Hot words were exchanged between the parties and thereafter the accused-convict alongwith his brothers converged to the spot and Muhammad Ashiq gave Churri blow to the deceased. The deceased had only one injury on his body. Later, instead of Churri, scissors was recovered at the instance of Muhammad Ashiq, which showed that no knife was employed in the incident. At the time of post-mortem examination a large blood clot was -noticed- in the abdomen of the deceased, which showed that the deceased remained lying at the spot after receipt of injury for a long time and had lost his life due to bleeding. In case the complainant or the witnesses were present with him, he could have been removed him to hospital immediately after the occurrence and could have, been saved if he had been attended properly.
This aspect of the matter shows that the complainant and the witnesses were not present with the deceased at the time of incident. The prosecutim case that the accused had converged to the spot and had attacked the deceased with a knife stood belied.
11.The convict on the other hand had taken a stand that there was a scuffle between the deceased and the accused and in the course of that he had fallen on a wooden board lying in the shop and had received injuries with scissors which was lying in the tailoring shop, has been found to be equally untenable, because no physical evidence with regard to incident having taken place in the shop was collected by the police in the course of investigation nor that aspect was proved in the course of trial.
12. After careful scrutiny- of 'record it has been found that the occurrences possibly was the result of bad mouthing between the parties which had taken place on account of the deceased having climbed on to a platform located in front of the tailoring shop. In the incident, the accused piked up scissors and gave a solitary blow to the abdomen of the deceased who lost his life on account of .remaining at the spot for a long time. In the facts and circumstances of the case, offence under section 302(b), P.P.C. was not made out against the convict. He could have been convicted under section 302(c), P.P.C., as the incident had taken place at the business premises of the accused party and he in all probability had acted in self-defence. The prosecution case as set up is not established and due benefit of that in the matter of conviction and sentence has to be extended to the convict.
13.Muhammad Ashiq accused-appellant is convicted under section 302(c), P.P.C. and is sentenced to five years rigorous imprisonment. The accused, however, shall not be entitled to benefit under section 382-B, Cr.P.C. as the force employed by him in the incident appears to be excessive.
14.The conviction and sentence awarded to the appellant is modified in the above terms and the appeal submitted by him is dismissed.