2015 P Cr. L J 105
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
AMIR MUHAMMAD ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 161 of 2014, decided on 30th October, 2014.
Penal Code (XLV of 1860) ---
----Ss. 302(b) & 302(c) --- Qatl-i-amd---Appreciation of evidence ---Sentence, reduction in---Both
parties pelted stones and used sticks, due to which the deceased received injuries ---Court witness
had not assigned any role to accused of inflicting knife blow on the head of deceased ---Medical
certificate of the deceased, was also silent in respect of injuries, and nature of injuries on the
person of deceased ---Fight took place all of a sudden, and accused did not act in preplanned and
premeditated manner to t ake the life of the deceased ---Accused, in a sudden flare up and in the
heat of passion, acted in a manner, which could not be justified to bring his case within ambit of
S.302(b), P.P.C.---Circumstances of the case diminished the liability of accused, and act
committed by him, fell under S.302(c), P.P.C.---Conviction of accused recorded under S.302(b),
P.P.C., was converted into offence under S. 302(c), P.P.C., and sentence of accused was reduced
from life imprisonment to imprisonment of ten years; and pay ment of compensation was also
reduced from Rs.100,000 to Rs.50,000.
Azmatullah v. The State 2014 SCMR 1178 ref.
Masoom Khan Kakar for Appellant.
Miss Sarwat Hina, Additional Prosecutor -General for the State.
Date of hearing: 25th September, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Through the instant Criminal Appeal, the appellant
has challenged the validity of the judgment dated 10th June, 2014 (hereinafter the "impugned
Judgment") passed by the learned Additional Sessions Judge, Killa Saifullah (hereinafter the
"trial Court"), whereby the appellant has been convicted under section 302(b), P.P.C. to suffer
life imprisonment and to make compensation of Rs.100,000 (One hundred thousand) to the legal
heirs of deceased Muhammad Naeem. In def ault whereof, the appellant was directed to further
suffer six months' S.I. Benefit of section 382- B, Cr.P.C. was also extended in favour of
appellant.
2. The facts of the case are that on the complaint of Shabir Ahmed son of Malik Zarin, an
F.I.R. No.5 of 2012 dated 19th March, 2012 under sections 302, 147, 149, P.P.C. and 337 A.D.F.
was registered with Levies Station Loi Band District Killa Saifullah, wherein it was alleged that
on 18th March, 2012, the accused persons namely Akhtar Muhammad, Amir Muham mad, Abdul
Wadood, Saleh Muhammad, Wazir and Dado came to their landed property and started digging
earth for plantation of trees, which was resisted and on 19th March, 2012 at about 1- 00 p.m., the
parties through Mullah Sargand and Abdullah consented to s ettle the dispute between them and
when the complainant party was sitting near the house of accused for a peaceful settlement,
during which the accused persons became furious/provoked. Amongst the accused persons, Amir
Muhammad having knuckle in his hand, whereas Wazir Muhammad and Akhtar Muhammad
were holding spade and the remaining accused persons holding sticks in their hands launched an
attack and started beating the complainant party. The appellant gave knuckle blow on the head of
deceased Muhammad Naeem, as a result Muhammad Naeem received head injuries and blood
was oozing from his hand. It is further stated that the co- accused Wazir Muhammad and Akhtar
Muhammad also participated in the incident, however, the arbitrators and other inhabitants
relieved them from the clutches of accused. The injured was taken to Civil Hospital, Muslim
Bagh and the instant case was registered.
3. After registration of the F.I.R., the Investigating Officer took necessary steps for
completion of challan. During investigat ion, the appellant was arrested, whereas the remaining
nominated accused persons made their escape good and could not be arrested. The Investigating
Officer also recorded the statement of Muhammad Naeem son of Malik Zarin under section 161,
Cr.P.C. on 19th March, 2012, however, said Muhammad Naeem succumbed to the injuries on
20th March, 2012 in Civil Hospital Muslim Bagh at about 9- 45 p.m.
4. After submission of challan, the trial Court framed the charge on 20th June, 2012, to
which the appellant pleaded not guilty. Prosecution examined P.W.1 Shabir Ahmed
(complainant)/eye -witness, who produced his written report Exh.P/1- A, P.W.2 Abdul Majeed
Levies Sepoy recovery witness, produced recovery memo. Exh.P/2- A in respect of stick of
spade, which he produced a s Art.P/1 -2, P.W.3 Noor -ul-Haq eye -witness, P.W.4 Khair
Muhammad eye -witness, P.W.5 Dr. Nasir -ud-Din Medico legal Officer Civil Hospital Muslim
Bagh, who produced medical certificate Exh.P/5- A and P.W.6 Naik Muhammad, Investigating
Officer.
5. It is impo rtant to mention here that on the application of appellant, the statements of
Sargand son of Meer Jan and Haji Abdullah son of Muhammad Afzal were also recorded as
C.W.1 and C.W.2.
6. Initially, the trial Court convicted the appellant vide judgment dated 13th April, 2013 and
sentenced him under section 302(b), P.P.C. to suffer life imprisonment with compensation of
Rs.100,000. The said judgment was assailed in Criminal Appeal No 117 of 2013, which was
partly accepted and the judgment of the trial Court wa s set aside and the case was remanded to
the trial Court for producing the statement of deceased recorded under section 161, Cr.P.C.
7. After remand, the trial Court on 20th February, 2014 recorded the statement of Naik
Muhammad Investigating Officer, who produced the statement of deceased Exh.P/7 and
thereafter statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied
the allegations levelled against him. The appellant recorded his statement under section 340(2),
Cr.P.C. and produced D.W.1 Sardar Muhammad Sadiq in defence.
8. The trial Court, thereafter, vide impugned judgment convicted and sentenced the
appellant as mentioned hereinabove, hence this appeal.
9. The learned counsel for the appellant Mr. Masoom Khan Kakar, Advocate contended that
the case of the prosecution is false and fabricated; that all the prosecution witnesses are
interested and are not worthy of credence, as they had concealed the real facts of the incident and
had motive to falsely implicate the appellant in the crime; that the recovery of stick/danda did not
connect the appellant with the crime as no injury in this respect was attributed to him; that as per
the prosecution case the complainant party came to the house of appellant and demonstrated their
aggression in presence of the arbitrators; that the presence of arbitrators has not been denied by
both the parties, but despite presence, their statements under section 161, Cr.P.C. were not
recorded during investigation, which reflects adverse presumpti on against the prosecution; that
the statements of said arbitrators namely Sargand and Haji Abdullah were recorded by the trial
Court on the application of appellant as C.W.1 and C.W.2, who clearly negated that the incident
had not taken place in the manne r as asserted by the prosecution witnesses and they have put
forth true facts of the incident; that from the evidence on record, no case under section 302(b),
P.P.C. has been made out; that the trial Court has failed to consider the evidence on record in i ts
true perspective, therefore, the impugned judgment reflects misreading and non -reading of
evidence and liable to be set aside.
On the other hand, the learned Additional Prosecutor -General submitted that the
prosecution has fully established the guilt of the appellant to the hilt beyond any reasonable
doubt by producing trustworthy, ocular account corroborated by the medical evidence and
statement of the deceased recorded during the investigation on 19th March, 2012, which could be
treated as dying declaration; that no mis -reading and non- reading of evidence has been pointed
out in the impugned judgment warranting interference by this Court, therefore, the same is liable
to be sustained.
10. We have heard the learned counsel for the parties and gone t hrough the record of the
case. At the trial, the case of prosecution rested entirely upon the ocular testimony of P.Ws. on
one hand and deposition of C.W.1 and C.W.2, on the other. The ocular testimony of P.W.1
Shabbir Ahmed, P.W.3 Noor -ul-Haq and P.W.4 Khair Muhammad reflects that on 19th March,
2012 at about 1- 00 p.m., the deceased party was sitting near the house of appellant to settle their
landed property through arbitrators namely Sargand and Haji Abdullah (C.W.1 and C.W.2) while
the appellant holding a clip -knife along with others suddenly attacked upon deceased
Muhammad Naeem. The appellant inflicted knife blow on the head of deceased while the co-
accused had beaten the prosecution witnesses. The other version of the incident came on record
through C .W. Haji Abdullah. Both the C.Ws. were present at the place of occurrence along with
the complainant party to settle their landed dispute with the appellant party when the incident
took place. All the P.Ws. have admitted the presence of C.Ws. at the place of occurrence, but
during investigation, the statements of C.Ws were not recorded, however, on the application of
appellants they were examined as Court witnesses. C.W.1 Sargand stated that he and Haji
Abdullah were called upon by both the parties as arbit rators and when they told them to abide by
their decision, all of sudden a fight took place. After the incident, head of deceased Muhammad
Naeem was dressed, who told that he was injured and feeling dizzy. This C.W. has not assigned
any role to the appellant of inflicting knife blow on the head of deceased Muhammad Naeem and
in the cross -examination admitted that according to them, the disputed property belongs to
deceased Muhammad Naeem and the land, where the incident had taken place, was the property
of the appellant. He further admitted that on the previous date of hearing, he was about to appear
before the Court, but due to threats of the relatives of the deceased, he could not appear. C.W.
Haji Abdullah stated that they were appointed as arbitrators by the parties to settle their landed
dispute and when they reached at the spot, due to abuse of someone, the fight took place between
the parties. He tried to intervene, but all in vain. He further stated that the appellant party went
home, during this peri od, deceased Muhammad Naeem pulled out the trees, he was forbade, but
he pulled out another tree, which led the fight. Both the parties were pelting stones and used
stick, due to which Muhammad Naeem received injuries. This C.W. had also not assigned any
role to the appellant of inflicting knife blow on the head of deceased. The medical certificate of
the deceased produced by P.W.5 Dr. Nasr -ud-Din Exh.P/5, is also silent in respect of injuries and
nature of injuries on the person of deceased and merely indi cates that Muhammad Naeem died
on 20th March, 2012 on the next date of the incident. The contents of MLC Exh.P/5 is
reproduced herein below: --
"To whom it may concern that Mr. Muhammad Naeem son of Malik Zareen caste Kakar
brought to THQ hospital Muslim bagh on 19- 3-2012 at 3- 45 p.m. Patient developed head injury,
also having un semi unconsciousness condition vertigo and vomiting. Patient having a wound
overhead, which ____ (sic) stiches and Asb done. Patient admitted in ward for observation and
un-_____ (sic.) at 9 -45 a.m. on 20- 3-2012 patient suddenly become unconsciousness. Patient
treated in emergency but cannot improved (sic) and become expired at 10- 00 a.m. 20- 3-2012.
Death confirmed by no pulse BP. not recoverable and ___(sic) not reactive to light reflex.
Death confirmed.
11. The aforesaid medical certificate of deceased merely reveals the time and date of death of
deceased Muhammad Naeem, but in respect of injuries on his person or cause of death, the
medical certificate is silent and did n ot corroborate the version of the prosecution witnesses, as
far as the injuries on the person of deceased are concerned.
12. We have examined the evidence on record. It is admitted fact that the appellant and the
complainant including deceased Muhammad N aeem gathered near the house of appellant for
settlement of their dispute over a piece of land through arbitrators namely Sargand (C.W.1) and
Haji Abdullah (C.W.2). It is evident from the evidence on record that fight took place all of
sudden, the appellant did not act in a preplanned and premeditated manner to take the life of
deceased in order to saddle him with the criminal liability arising under section 302(b), P.P.C. It
appears that in a sadden flare up and in the heat of passion, the appellant acted in a manner,
which cannot be justified to bring his case within the ambit of section 302(b), P.P.C. and the
circumstances of the present case diminish his liability and the act committed by the appellant
falls under section 302(c), P.P.C. In the case of Az matullah v. The State, 2014 SCMR 1178, the
Hon'ble Supreme Court of Pakistan in a case where the incident had taken place all of a sudden
without any premeditation observed as under: --
"A bare perusal of the F.I.R., the statements made by the eye -witnes ses before the learned
trial Court and the findings recorded by the learned courts below clearly shows that there was no
background of any ill -will 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 churri 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 deadbody had categorically observed that both the injuries
found on the deadbody of the deceased could be a result of one blow of churri. 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 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 s ection
302(c), P.P.C."
In view of above, Criminal Appeal No. 161 of 2014 is partly allowed, the conviction of
the appellant recorded under section 302(b), P.P.C. is converted into that for offence section
302(c), P.P.C. and the appellant's sentence is r educed from life imprisonment to imprisonment of
ten years and payment of compensation is also reduced from Rs.100,000 to Rs. 50,000 or in
default of payment, he shall further undergo simple imprisonment for six months. Benefit of
section 382- B, Cr.P.C. sh all stand extended in favour of the appellant.
The appeal is disposed of in the above terms.
HBT/79/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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