1999 P Cr (PLP)

9. The learned counsel for the appellant argued that the learned Judge while convicting the appellant has neither read the evidence .properly nor has appreciated the same. According to the case of prosecution as set up in the F.I.R., the incident took place all of a sudden and the appellant seeing the complainant and deceased in Jhampeer Town, came running from behind and caused Lathi blow on the head of deceased Muhammad alias Mamoon, who fell down and thereafter, the complainant intervened to whom he also caused Danda blow on hand and thereafter, he inflicted another Danda blow to the deceased. The complainant in his statement at trial, also repeated the same facts and from the above narrations the intention to kill lacks. He further contended that occular evidence is contradicted by medical evidence furnished by Dr. Abdullah, according to whom the deceased had received only one contused wound on the back of clavicula region. From this it appears that the incident is unwitnessed one. He went on arguing that P.W. Ibrahim in his statement at trial had stated a different view of the incident and had stated that accused appeared suddenly from the backside and caused a Danda blow on the back of head of deceased Mamoon who fell down and thereafter, he again caused him another blow on the backside of his ribs, whereas according to his 164, Cr.P.C. statement the appellant is said to have caused a single blow only from the backside. P.W. Yaqoob, father of the deceased, had stated a contrary view of the scene to that of the other witnesses and had stated that within his sight as well as that of P.W. Ibrahim, the appellant caused Danda blow on the right side of head of the deceased who fell down and thereafter, he caused another blow which hit him on the left side of the body, whereas in 164, Cr.P.C. statement he had stated about single blow inflicted by the appellant on the head of the deceased from the backside. The learned counsel further submitted that in fact the incident has not taken place in the manner it is stated so which fact gets support from the memo of Vardat whereby no blood was noticed thereby the police at the time of its preparation, though the complainant in his initial entry in Roznamcha as well as m the F.I.R. had specifically stated that the deceased was bleeding profusely and there was lot of blood at the place of incident. He contended that in fact P.Ws. Ibrahim and Yaqoob are not the eye‑witnesses of the incident and have been managed and set up as eye‑witnesses, which fact is supported from the contents of the F.I.R. that they arrived at the place of incident after the incident had already taken place. He lastly contended that the defence theory that he was involved in this case due to matrimonial dispute has been brushed aside and has not been considered. According to him from the circumstances of the case where the incident had taken place all of a sudden and the appellant inflicted one Lathi blow on the head from the backside of the deceased, the conviction of imprisonment for life is excessive one and the case at the most will fall under section 302(c), P.P.C. and the sentence of six years, one month and eighteen days already undergone by the appellant would meet the ends of justice. In support he has relied upon the case‑law reported in 1995 MLD 677, 1996 PCr. LJ 2069 and PLD 1996 SC 274.

10. On the other side, the learned counsel appearing for the State conceded to the arguments of the appellant's counsel and stated that in view of the case of prosecution the period already undergone by the appellant is sufficient to meet the ends of justice

11. According to the entry in Roznamcha and F.I.R., deceased Muhammad alias Mamoon and complainant Rehmatullah had gone to Jhampeer and while returning from there, appellant Idrees came running from the backside and caused Danda blow on the head of the deceased. Later on, on the intervention he caused Danda blow at the hand of the complainant and thereafter, caused another blow to the deceased, who fell down. According to the F.I.R., P.Ws. Ibrahim and Yaqoob appeared after he and deceased had received injuries at the hands of the appellant, whereas according to the deposition of complainant Rehmatullah. the above referred witnesses, who were about 200 feet away, came running gave Hakal to the appellant, on which the appellant fled away alongwith the Danda.

12. P.W. Ibrahim in his statement at trial had given eye‑witness account of the incident and had stated that the deceased and complainant Rehmat Ullah, when arrived at the shop of Iso Machhi, he saw the appellant running alongwith Danda and caused Danda blow on his back, who fell down and thereafter, he caused him another blow on the backside of his ribs. He also caused blow at the hand of complainant Rehmat Ullah, whereas in 164, Cr.P.C. statement he had stated about a single blow from the backside on the head of the deceased.

13. P.W. Yaqoob, father of the deceased, too had stated that on the day of incident he and P.W. Ibrahim were available at a distance of about 200 yards from the deceased and saw the appellant inflicting Danda blow on the right side of head of deceased Mamoon, who fell down and thereafter, he caused another blow on the left side of his body. The appellant also caused blow at the hand of the complainant. In 164, Cr.P.C. statement this witness had disclosed about a single blow on the head of deceased Muhammad alias Mamoon.

14. Dr. Abdullah, as per medical certificate of the deceased had noticed only a single injury on the person of the deceased, such as lacerated wound 5.5 c.m. x 0.2 c.m. (wound stitched ‑‑ found stitches) ‑‑ depression 6 c.m. x 6 c.m, at the right side of the vault of skull, whereas according to his deposition the deceased had received (contused wound) on frontal region 0.3 inch x 2 c.m. x scalp deep. Hamatoma on both sides of scalp deep 0.2 c.m. x 0.1 c.m. Abraded contusion on the back of clavicular region .4 c.m. x 0.2 c.m. It is pertinent to note that in cross‑examination he has admitted the suggestion that a person if going on cycle is hit from the backside, such injury can be caused. He has further stated that injury on the person of the complainant can be self‑suffered. The case of prosecution is further contradicted by the injuries on the person of complainant Rehmat Ullah, who according to the F.I.R. as well as other witnesses, had received one injury on his right hand, whereas according to medical certificate he had received two injuries, one on the back of clavicular region and the other on the right hand.

15. Dr. Qazim Raza Shah, who conducted autopsy, had noted one injury only, namely, lacerated wound 5.5 c.m. x 0.2 c.m. wound stitch with found stitches with depression 6 c.m. x 6 c.m. at the right side of vault of the skull. He, however, in his cross‑examination had stated that when a person has been striken with a vehicle in moving position, then this sort of injury can occur.

16. Muhammad Anwar, the Mashir of Vardat, inquest report, recovery of clothes of deceased and recovery of Danda from the appellant, had stated nothing about presence of blood at the place of Vardat and secondly, he in the first instance had stated that the appellant did not produce Danda, but later on he had stated that he produced one Danda which was blood‑stained.

17. P.W. Ghulam Muhammad, A.S.‑I. of Police Post Jhampeer, who initially conducted the investigation, had stated that he saw a single injury on the head of the deceased.

18. P.W. Zafar Iqbal, another Investigating Officer, had stated in his deposition that he had recorded the statements of P.Ws. Iso Machhi and Shafi Muhammad. It is seen from the record that Iso Machhi in front of whose shop the incident had taken place was not examined at trial.

19. From what has been discussed above, it is established on record that the deceased had received only a single blow on the head and that the incident hadl taken place all of a sudden. In this case the premeditation of committing Qatl‑i?Amd of the deceased lacks for the following reasons:‑‑ (i) Complainant Rehmatullah as well as the deceased on the day of incident had come to Village Jhampeer for some work without .any prior programme, of which the appellant had absolutely no information or knowledge. He seeing them available appeared suddenly and caused injury with Lathi to the deceased from the backside and then ran away; (ii) Infliction of a single blow and not repeating the same further supports I that the appellant had no intention of causing the Qatl of deceased, butt might be that he wanted to simply harm the deceased; and (iii) Non‑mentioning of the motive against the appellant, particularly further supports his case that he never wanted to cause the murder of the deceased. With regard to motive, the complainant in his deposition had stated that Umar, maternal‑uncle of the appellant, had caused injuries to the father and brother of deceased, can hardly be a convincing motive against the appellant.

20. In the old law such types of offences were punishable under section 304, P.P.C. and sentences were to be reduced from section 302, P.P.C. to section 304, P.P.C. The ‑Honourable Supreme Court in the case of Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 at page 290 has laid down as follows:‑‑ "... But keeping in mind the majority view in Gul Hassan's 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 an 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."

21. In the case of Yasin v. The State 1996 PCr.LJ 2069, the conviction from section 304, Part I, P.P.C. was altered to one under section 304, Part II, P.P.C. and the sentence of imprisonment for life was reduced to imprisonment already undergone which was over six years, finding, that the accused had no intention to cause death of the deceased or cause such bodily injury as was likely to cause his death.

22. The Lahore High Court in the case of Muhammad Siddique v. The State 1995 MLD 677, has dealt with the same subject‑matter and has held as under:‑‑ ... The ocular account is corroborated by the evidence of the recovery of Danda (P.1) and the report of the Chemical Examiner (Exh.P.I.) and that of the Serologist (Exh.P.J.)" ... The appellant used an ordinary Danda and he gave a single blow which was not repeated. The incident erupted suddenly as... "

23. Applying this principle with the case in hand, I am also of the considered opinion that the case against the appellant at the most will fall under section 302(c), P.P.C. and the ingredients of section 302 (a) and (b) are not attracted.

24. Accordingly, the conviction is maintained whereas the sentence is reduced from imprisonment for life to one already undergone, i.e. six years, one month and eighteen days. These are the reasons of the short order, dated 21‑10‑1998 N.H.Q.II‑54/K??????????????????????????????????????????????????????????????????????????????????????????????? Sentence reduced