2006 PLP 2443 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Shahbaz Ahmad was tried by the learned Sessions Judge, Kasur, in lieu of case F.I.R. No.281 registered at Police Station, Mustafabad on 16-7-2003 for offence under section 302, P.P.C. Vide judgment dated 31-3-2004. the learned trial Judge convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to imprisonment for life plus payment of Rs.1,00.000, as compensation to the legal heirs of the deceased, in default in payment whereof to undergo S.I. for six months.

2. Aggrieved by this above noted conviction and sentence, the appellant has filed the instant appeal through jail.

3. It has been noticed that the case was adjourned on 24-11-2004, 16-3-2003 and 3-4-2006 due to the non-availability of the learned counsel for the appellant. In the circumstances, I have no option but to proceed with this case with the able assistance of the learned counsel appearing on behalf of the State.

4. Precisely, the facts-of the case per F.I.R. Exh.P.A. lodged at the instance of Malik Muhammad Younis, paternal uncle of the deceased/complainant resident of Mohallah Malkanawala, Mustafabad, P.W.1, are that on 16-7-2003, he was present at Chaubara of Malik Liaqat Ali along with Abid Ali. Malik Sadaqat Ali alias Shafaqat Ali/P.W.2, Shakeel Ahmad alias Hafeez/deceased and Shahbaz Ahmad/appellant. They were playing cards together. At about 11-15 a.m. a dispute arose between Shakeel Ahmad and Shahbaz Ahmad over win or defeat in the game. The complainant tried to patch up the matter but Shahbaz Ahmad tried up and caused fire with his .30-bore pistol, hitting Shakeel Ahmad on the left side of his chest, in view whereof he fell on the ground. The appellant, while brandishing his weapon, decamped from the scene of occurrence. Shakeel Ahmad succumbed to the injury at the spot. The occurrence was witnessed by the complainant, Abid Ali and Shafaqat Ali alias Sadaqat Ali/P.W.2.

5. Muhammad Shafi, S.-I./P.W.9, after registration of the case at the instance of the complainant, went to the place of occurrence, prepared site-plan thereof Exh.P.I. without scale, collected blood stained earth from the spot and sealed the same into parcel vide memo. Exh.P.B. He also collected one empty P.1 of .30 bore and lead P.2 from the spot and took the same into possession vide memo. Exh.P.C., attested by Sadaqat Ali/P.W.2 and one Abid Ali. He also took into possession playing cards P.3/1-53 and one pair of Chappal P.4/1-2 through memo. Exh.P.D., attested by the above said witnesses. He prepared inquest report Exh.P.J. and injury statement Exh. P. L. of the deceased and sent the dead body for post-mortem examination. After post-mortem examination, he took into possession the last worn blood stained clothes of the deceased, i.e. shirt P.6, Shalwar P.7 and Azarband P.8 through memo. Exh.P.F. The appellant was arrested on 25-7-2004 and on 28-7-2004, while in custody, the appellant led to the recovery of .30-bore pistol P.5, which was taken into possession vide memo. Exh. P. E., attested by the above-mentioned P.Ws. After completion of investigation, the appellant was challaned to face the trial.

6. To substantiate its version at the trial, the prosecution examined nine witnesses. Ocular account was furnished Malik Muhammad Younus/P.W.1 and Sadaqat Ali alias Shafaqat Ali/P.W.2. In addition to that Sadaqat Ali also stated about the recoveries effected from the spot as well as at the instance of the appellant. Dr. Mumtaz Ahmad/P.W.7, who conducted post-mortem examination on the dead body of the deceased, while observing one penetrating lacerated exit wound, both caused by fire-arm, opined that the cause of death was the aforesaid injuries which caused damaged to the heart and spleen and were sufficient to cause death in the ordinary course of nature. According to the doctor, duration between injuries and death was almost immediate, while duration between death and post-mortem examination was about seven hours. The rest of the evidence was formal in nature and need not be discussed. After tendering the reports of Chemical Examiner Exh. P. N., Serologist Exh.P.O. and Forensic Science Laboratory Exh.P.P., the prosecution closed its side. Thereafter, in his statement recorded under section 342, Cr.P.C., the appellant stated that he had no enmity with the deceased. The deceased had abused him nakedly and due to sudden provocation, the fight took place. It was a sad incident but he had no intention to kill the deceased. He further stated that after accidental death of the deceased, the P.Ws., who were inter se related, involved him in this case falsely. Neither the appellant appeared as his own witness under section 340(2), Cr.P.C. nor did he produced any witness in his defence.

7. I have heard the learned counsel for the State and have also gone through the entire record of the case with his assistance.

8. The occurrence took place at the upper story/Chaubara of Liaqat Ali at 11-15 a.m. on 16-7-2003. The place of occurrence and that time of occurrence have not been challenged. The appellant does not deny that he had fired at the deceased but he has taken the plea that death of Shakeel was accidental. Malik Muhammad Younas and Sadaqat Ali, P.Ws.1 and 2, have given straight forward account of the occurrence. Both of them have no previous ill-will, enmity or grouse against the appellant, so as to involve him in a false case. Their statements are supported by the medical evidence and corroborated by the circumstances of the case, as the matter was reported to the police within half an hour of the occurrence. The prosecution has proved beyond doubt that Shakeel lost his life due to the fire caused by the appellant.

9. Having come to this conclusion, I have given my anxious and considerate thought to the quantum of sentence. Admittedly, the deceased and the appellant were playing cards at the time of occurrence. No previous ill-will existed between them. It was during playing of cards that after losing a game, the deceased lost control and started profusely abusing the appellant, who was about twenty years of age at the time of occurrence, had lost control and caused a single fire on the deceased which resulted into this unfortunate occurrence. The learned trial Court also came to the conclusion that it was a sudden Clare up and the cause of fight was the abuse (of mother) given by the deceased. The learned trial Court further observed that obviously, the occurrence took place at the spur of the moment in the heat of passions. The act of the appellant squarely attracted the provisions of Exception IV of section 300, P.P.C. (old law), which can be referred in the light of the observations made by the Honourable Supreme Court in the case of Ali Muhammad v. Ali Muhammad PLD 1996 SC

274. Hence, I alter the conviction of the appellant from offence under section 302(b), P.P.C. to offence under section 302(c), P.P.C. and reduce the sentence to ten years' R.I. The benefit of section 382-B, Cr.P.C. already extended to the appellant is maintained. It is in evidence that the appellant was a poor labourer. Thus, I reduce the amount of compensation from Rs.1,00,000 to Rs.50,000, which, on realization, would be paid to the legal heirs of the deceased. However, in default in realization or payment thereof, the appellant would suffer six months' S.I. With this modification in the conviction and sentence, this appeal is disposed of.

10. A copy of this judgment would be sent forthwith to the Superintendent Jail concerned, who would inform the appellant about the passage of the order of the Court. H.B.T./S-95/L Order accordingly.