2013 PLP 1527 (YLR)

FAROOQ ALI CHANNA, J.

Through this Criminal Jail Appeal, the appellant has called in question the judgment dated 10-6-2010/passed by IVth Additional Session Judge, Karachi South (hereinafter referred to as trial Court) in Sessions Case No. 79 of 2005, culminating F.I.R No. 4/2005, Police Station Baloch Colony convicting the appellant under section 302, P.P.C. sentencing him to imprisonment for life and under section 324, P.P.C. to R.I for 7 years and fine of Rs.10,000, in default thereof to suffer S.I for one month more, both the sentences were ordered to run concurrently. The appellant was also allowed benefit under section 382-B, Cr.P.C.

2. Briefly facts of case are that complainant Mst. Inayat Bibi lodged F.I.R., that she resides with her husband Muhammad Anwar having 8 children. Her husband had contracted second marriage with Rani Begum who had 5 children residing in the same house. On 6-11-2005 the complainant demanded maintenance for herself and her children and a separate house, which annoyed her husband, a quarrel took place between them, her husband attempted to inflict hatchet blow to her, but it was missed and hit her daughter Saima on her head, blood-started oozing, she fell down. The appellant also inflicted hatchet blows to complainant on different parts of her body with intention to commit her murder. Due to injury she became unconscious, on gaining sense, she was informed that her daughter Saima has succumbed to her injuries, thereafter complainant lodged F.I.R.

3. The Investigating Officer carried out investigation, on 10-1-2005 the appellant voluntarily appeared at Police Station Baloch Colony and surrendered before I.O. stating that on 6-1-2005 he inflicted hatched blows to his wife Inayat Bibi and her daughter Saima during investigation the Investigating Officer also produced the witnesses before the Magistrate for recording their statements under section 164, Cr.P.C., after completing investigation submitted challan. The trial Court recorded the evidence examined appellant under section 342, P.P.C. and after hearing the counsel for both the sides convicted and sentenced the appellant as referred to hereinabove.

4. The prosecution to substantiate the charge has examined complainant Mst. Inayat Bibi, Mst. Safia, the daughter of appellant Muhammad Anwar. They both are the eye-witnesses and have supported the prosecution impleading the appellant to be the accused of causing the murder of Mst. Saima and hatchet blows to the complainant Mst. Inayat Bibi, they in their evidence before the trial Court have narrated the incident in detail. Both the witnesses were cross-examined at length but the defense counsel did not shake their evidence. The presence of complainant being injured and inmate of house where the incident took place is free from doubt. The presence of witnesses Mst. Safia being inmate is also free from doubt. P.W. Mst. Safia is real daughter of appellant and in our society it cannot be expected from a daughter to implicate her innocent father falsely in a heinous offence, unless such strong reasons compelling the daughter to give false evidence are brought on record. Ocular testimony is corroborated by the contents of F.I.R., recovery of crime weapon, medical evidence, motive and circumstantial evidence. P.W. Shahid Anwar is son of appellant, he had acted as mashir of place of occurrence, examination of death body, inquest report etc. and supported the prosecution. The Investigating Officer in his evidence before the trial Court has narrated the facts of incident in detail, which he came in knowledge during investigation. He has also corroborated the evidence of complainant and other witnesses on each aspect of the case.

5. The aforesaid evidence of P.Ws. is not only impeachable but inspires confidence, the appellant Muhammad Anwar in his statement under section 342, Cr.P.C. has admitted the incident by narrating that he had quarrel with his wife, his daughter Saima intervened he pushed her, during that collided with wall, she sustained injury on her head, resulting her death. The appellant claimed that he being innocent has been falsely implicated in murder.

6. Learned counsel for the appellant has not pressed the instant appeal on merits, and has contended that it was not a preplanned or intentional murder, it does not fall within the meaning of "Qatl-e-Amd" as such the conviction under section 302, P.P.C. is not warranted and liable to be set aside. Learned counsel has further contended that case against appellant will fall under section 308, P.P.C., the punishment provided for this section has already been served, therefore he may be released. "Qatl-e-Amd" is defined under section 301, P.P.C., which reads as under:-- "

301. Causing death of person other than the person whose death was intended:

where a person, by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for "Qatl-e-amd".

7. In view of definition of Qatl-e-amd and a thorough discussion of prosecution evidence the trial Court has come to a correct conclusion that the prosecution has succeeded to prove charge of " Qatl-e-amd" of Mst. Saima and hatchet injuries to complainant Mst. Inayat Bibi with intention to commit "Qatl-e-amd" against appellant Muhammad Anwar without any shadow of reasonable doubt. However deceased Mst. Saima is the daughter of Muhammad Anwar, therefore he is not liable to Qisas in terms of section 306(b), P.P.C. I, therefore, while maintaining the conviction under section 324, P.P.C. for causing injuries to complainant, convert the conviction of causing "Qatl-e-amd" under section 302, P.P.C. into section 302(c), P.P.C. However due to mitigating circumstances as the matter relates to family and keeping in view the old age of appellant to be 67 years as shown in the jail roll, I take the lenient view, and modify the sentence from life imprisonment to R.I. for 12 years. He shall also pay Rs.1,00,000 as compensation in terms of section 544(A), Cr.P.C. to the mother of deceased Saima, in case of default, he shall-suffer S.I. for 6 months more. The sentences under section 302(c) and 324, P.P.C. shall run concurrently with benefit under section 382-B, Cr.P.C. With the above modifications this criminal appeal is dismissed. Office to send the copy of this judgment to appellant through Superintendent, Central Prison, Karachi. MWA/M-59/K Appeal dismissed.