' Riaz Ahmad son of Siraj Ahmad appellant has directed this appeal against the judgment, dated 13-5-2000 passed by the learned Additional Sessions Judge, Bahawalpur whereby the appellant was convicted for an offence under section 302, P.P.C. And sentenced to suffer imprisonment for life. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Muhammad Suleman, S.-I. Police Station Saddar Bahawalpur P.W.13, after receiving telephonic information reached B.V. Hospital, Bahawalpur on 14-11-1997 and recorded the statement (Exh.P.F.) of Muhammad Nawaz, P.W.5 at 11-50 p.m. Which made basis for formal F.I.R. No,202 of 1997 (Exh.P.F./1) which was registered on the same night at 12-10 a.m. On 15-11-1997 by Abdul Razzaq, H.C., P.W.8 at Police Station Saddar, Bahawalpur for an offence under section 324, P.P.C. After the death of Nazir Ahmad son of Muhammad Nawaz (complainant) on 16-11-1997 section 324, P.P.C. Was substituted by section 302, P.P.C.
3. According to the F.I.R. The complainant Muhammad Nawaz was resident of Basti Kalian of Mauza Sahilan. On 14-11-1997 at about Isha Wela Mst. Zarina, P.W.7 daughter of the complainant left her house in order to ease herself. After a short while Mst. Zarina raised alarm therefore, the complainant alongwith his son Nazir Ahrnad (deceased), P.W.4 Manzoor Ahmad and P.W.6, Bashir Ahmad came out of their houses and saw that Riaz Ahmad appellant was quarrelling with Mst.
Zarina. On inquiry Mst. Zarina informed the complainant that Riaz Ahmad had cut a joke on her.
Nazir Ahmad deceased reprimanded Riaz Ahmad appellant and both grappled with each other.
The complainant intervened and separated the two, however, Riaz Ahmad appellant who was highly provoked went inside of his house and came out equipped with a Seru of a cot and caused an injury on the right ear of Nazir Ahmad who fell down and fainted. The rest of the P.Ws. Attempted to apprehend the appellant who made good his escape. The injured was taken to B.V. Hospital, Bahawalpur, who lost his life within two days on 16-11-1997 at 4-30 p.m.
4. After recording the statement of P.W.5, Muhammad Nawaz, (complainant), Muhammad Suleman, S.-I. P.W.13 reached the scene of occurrence and lifted blood-stained earth from the place of occurrence which was taken into possession vide memo. Exh.P.C. Attested by Allah Bakhsh, P.W.3 and one Manzoor Ahmad son of Muhammad Nawaz who was not produced before the learned trial Court.
5. Riaz Ahmad appellant was arrested in this case on 23-11-1997 by Haji Muhammad Aslam, S.H.O.
And on the same date he led to the recovery of Sero P.3, which was lying inside the residential house and was taken into possession vide memo. Exh.P.E. Attested by Allah Bakhsh, P.W.3 and Manzoor Ahmad who was not produced before the learned trial Court.
6. After completion of investigation the appellant was sent up to face trial, who denied the charge, therefore, the trial commenced. During the trial the prosecution produced thirteen witnesses in support of its case. P.W.5, Muhammad Nawaz, complainant and P.W.7 Mst. Zarina stated about the ocular account as well as about the motive. Manzoor Ahmad son of Muhammad Jamal appeared as P.W.4. He stated that he came out of his house after hearing the alarm of Mst. Zarina and at that time Nazir Ahmad was lying on the ground after receiving of injury and he was informed about the occurrence by Muhammad Nawaz, P.W.5. As he did not state that the injury was inflicted on the person of the deceased in his presence the learned D.D.A. (Prosecutor) was allowed to cross- examine him. He was also cross-examined by the learned counsel for the accused. Bashir Ahmad appeared as P.W.6 and stated that he came out of his house and saw that Nazir Ahmad deceased was lying on the ground in the courtyard of his house. He was allowed to be cross-examined by the learned D.D.A. He was also cross-examined by the learned counsel for the appellant.
7. Dr. Muhammad Siddique appeared as P.W.1 and stated about the examination of the deceased when he reached the hospital in injured condition and also stated about the post-mortem conducted by him on the dead body of Nazir Ahmad. He brought on record Exh.P.A. And Exh.P.B., carbon copies of medico-legal report and post-mortem report respectively.
8. In his statement under section 342, Cr.P.C. In reply to Question No,8 the appellant denied the charges and stated that he was falsely involved in the case as father of Mst. Zarina wanted to obtain divorce from him. The appellant in response to Question No,3 stated that Nazir Ahmad deceased was a habitual thief of cotton; for the reason he was injured by the owner of cotton field and no occurrence had taken place in front of the house of the complainant.
9. After arguing the case at some length the learned counsel for the appellant submitted that he would not press this appeal on merits and would pray for reduction of sentence as the circumstances of the case attracted the provisions of section 302(c), P.P.C. And not section 302(b), P.P.C. The learned counsel for the State had frankly stated that he felt satisfied as the conviction was being maintained and he had nothing much to say about the quantum of sentence which lie within the discretion of the Court.
10. I have heard the learned counsel for the parties and have also scanned the whole record of the case. It has been noticed that the injured Nazir Ahmad was taken to the hospital immediately after the occurrence as is evident from the medico-legal report according to which the injury was caused on the person of Nazir Ahmad within one hour. Statement of P.W.5 was recorded by P.W.13 at the hospital and there was not much time available to the complainant to concoct a false story.
P.W.5, Muhammad Nawaz and P.W.7, Mst. Zarina have given a straightforward account of occurrence and despite cross-examination no dent could be caused in their testimony. Only a bald suggestion was given to these P.Ws. That in fact the injury was caused to the deceased by some owner of the cotton field but nothing could be brought on record to substantiate this story/suggestion. P.W.13 stated that he had lifted blood-stained earth from the place of occurrence. No question was asked from him that there was a trail of blood leading to some other place where the injury had been caused. P.W.4, Manzoor Ahmad corroborated the story of the prosecution to the extent that he had come out of his house on hearing the alarm raised by Mst.
Zarina, P.W.7 who was present at the scene, of occurrence. He also stated that Muhammad Nawaz, complainant was also present at the scene of occurrence and has narrated the occurrence to him.
No suggestion was given to him that in fact Nazir Ahmad had received injury at some other place.
The ocular account was fully supported by the medical evidence. For the afore-mentioned reasons I am of the opinion that the learned trial Court had rightly concluded that the appellant had caused injury to the person of Nazir Ahmad deceased and the learned counsel for the appellant was justified in not pressing this appeal on the merits of case.
11. I have given my anxious thought as to what offence is made out in the circumstances of the case and what should be the appropriate sentence. Admittedly, Mst. Zarina sister of the deceased and daughter of the complainant was given in Nikah to Riaz Ahmad appellant. In exchange Mst.
Batool sister of the appellant was given in Nikah to Akbar brother of the deceased and son of Muhammad Nawaz complainant. While Mst. Batool was living with her husband, Mst. Zarina, P.W.7 was living with her father as Rukhsati had not taken place despite the fact that both the Nikahs were performed on the same date. There is no evidence on record to show that any existed between the appellant and the complainant party prior to theccurrence. There is nothing on record to show that Mst. Zarina never wanted to live with the appellant or had demanded divorce prior to the occurrence. The occurrence took place when the appellant found Mst. Zarina, his wife, alone in the street and he cut a joke on her which was not taken in good taste by Mst. Zarina as Rukhsati had not taken place and she raised alarm which led to this most unfortunate occurrence. It is also admitted that the deceased had grappled with the appellant prior to the occurrence. Admittedly, there is only one injury caused by the appellant on the person of the deceased and that too with the Seru of a cot which does not qualify as lethal weapon. The circumstances of the case and the evidence led by the prosecution lead to an undeniable conclusion that the occurrence took place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Exception 4 of section 300, P.P.C. (old law) is squarely attracted and in the circumstances it would be punishable under part (b) of section 304, P.P.C. (old law). The Honourable Supreme Court of Pakistan in the case of Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 held in para. 29 of the judgment as follows:-- "29. The new section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories:--
(1) Qatl-i-Amd which is punishable with death as Qisas;
(2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and,
(3) Qatl-i-Amd punishable 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.
' 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 lawmaker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan 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 the 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."
12. The upshot of the whole discussion is that while setting aside the conviction of the appellant for an offence under section 302(b), P.P.C. (Note. The learned trial Court has inadvertently not mentioned clause (b) of section 302, P.P.C. While recording the conviction and has mentioned section 302, P.P.C. Only). I convict the appellant under section 302(c), P.P.C. The sentence of life imprisonment is also set aside and altered with the sentence to the period already served out by the appellant as the same would serve the ends of justice in the circumstances of the case. The appellant would be released from jail forthwith if not required in any other case.
13. It was also noticed that the learned trial Court had not imposed any compensation on the appellant as envisaged by section 544-A, Cr.P.C. A notice was given in this regard to the learned counsel for the appellant who accepted the same. The appellant is directed to deposit Rs,10,000 with the learned trial Court as compensation under section 544-A, Cr.P.C. Within six months. The amount of compensation, if paid, would be given to the heirs of the deceased. In case of default in payment of compensation the appellant would be taken into custody and sent to jail to suffer simple imprisonment for one month.
Order accordingly.