2009 PLP 2376 (YLR)

SAGHIR AHMAD, J.

In case F.I.R. No.265 under sections 302, 109/34 P.P.C. registered with Police Station Faqirwali, Tehsil Haroonabad, Abdul Ghafoor, Muhammad Farooq and Muhammad Ayub were tried by learned Additional Sessions Judge, Haroonabad and on conclusion of the trial vide judgment dated 23-7-2004, Abdul Ghafoor and Muhammad Farooq were acquitted, however, Muhammad Ayub was convicted under section 302(b), P.P.C. and sentenced to death, with further orders to pay Rs.1,00,000 (one lac) to the legal heirs of the deceased, failing which to undergo six months simple imprisonment. The instant Criminal Appeal No. 260/2004 assails the above conviction and sentence.

2. Briefly the prosecution case as shown in the F.I.R. got recorded by Maqsood Ahmad (complainant) is that on the fateful day, the (complainant) and his son Anwar-ul-Haq were putting fodder to the cattle and Muhammad Ayub accused/ appellant was taking his animal back to home after making drink from a pound, when some of his animals went to the manager of Anwar's, cattle, whereupon, Anwar reprimanded Muhammad Ayub who went home by hurling abuses to Anwar ul Haq. After a short while, Muhammad Ayub came armed with Chhuri and by abusing him inflicted Chhuri blow to Anwar-ul-Haq, which hit under the left side of his chest and he fell down. On hearing the noise, Muhammad Amin and Muhammad Tanveer were also attracted to the spot and they witnessed the occurrence.

3. After completion of formal investigation, the challan was sent to the Court and accused were charge sheeted, to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined eight witnesses, which include the statement of the Investigating Officer Abdul Hameed Sub-Inspector P.W.7 who deposed about his investigation notes; Maqsood Ahmad complainant P.W.3 and Muhammad Rafiq P.W.4 made statements giving details of the occurrence; Dr. Muhammad Ramzan P.W.9 deposed about the autopsy conducted by him over the dead body of Anwar-ul-Haq deceased and Muhammad Anwar P.W.5 is the witness who verified the recovery of crime weapon on the pointation of Muhammad Ayub accused/convict, whereas, all the remaining witnesses are formal in nature who gave details of their respective functions performed during the course of investigation and ultimately on conclusion of the trial, while acquitting two co-accused, the learned trial Court convicted Muhammad Ayub was convicted and sentenced as detailed above.

4. We have heard the arguments of learned counsel for the parties and have also perused the 'record with their assistance.

5. Taking up the ocular account, the prosecution in order to prove its case produced Maqsood Ahmad complainant P.W.3 who made statement in line with the contents of the F.I.R. and Muhammad Rafiq, while appearing as P.W.4 toed the line of the complainant and statement of both the witnesses are corroborating each other on all material aspects of the case. They both unanimously deposed that in their sight accused Muhammad Ayub came at the spot armed with Chhuri and after hurling buses to Anwar-ul-Haq inflicted Chhuri blow which landed near the left chest of Anwar-ul-Haq, resulting in his death. These witnesses were subjected to cross-examination by the defence but nothing substantial damaging to the prosecution could be elicited from their statements.

6. The testimony of the eye-witnesses was further corroborated by the medical evidence, when Dr. Muhammad Ramzan P.W.9 who had conducted that post-mortem of the dead body of Anwar-ul-Haq deposed that only one incised wound 3 c.m. x 1 c.m. proceeding into chest cavity on the front side of chest was detected by him. The injury was ante-mortem, caused with sharp edged weapon and sufficient in ordinary course of nature to cause death. Therefore, the medical evidence fully corroborates the ocular account on the point of nature of injury, its seat, dimension and also the kind of weapon used in causing the said injury.

7. As regards recovery of crime weapon i.e. Chhuri P-1 on the pointation of accused Muhammad Ayub appellant, although Muhammad Anwar P.W.-5 appeared to testify the recovery proceedings, yet we note that this witness made drastic improvement by saying that at the time of recovery the crime weapon was stained with fresh blood, whereas, the said recovery was being effected on 3-10-2003 i.e. about five days after the occurrence, which according to the prosecution itself had taken place on 28-9-2003. On the same point, the Investigating Officer when questioned, he replied that Chhuri was dried and dark red. As such, the evidence of Muhammad Anwar P.W.5 about recovery proceedings becomes extremely doubtful.

8. While considering the above pieces of prosecution evidence including the F.I.R, one thing becomes quite clear that both the parties were not on hostile terms with each other prior to the incident and deep analysis of the contents of the F.I.R. lead us to conclude that although, the complainant has tried to make out a case of pre-planning or pre-consultation, but in fact it was sudden flare up which erupted on some dispute over cattle, as shown in the indictment itself and only one blow was inflicted by the accused/appellant on the person of Anwar-ul-Haq deceased, which unfortunately proved fatal. While holding so, we are guided by the fact that neither in the F.I.R. nor in his statement as P.W.5 the complainant Maqsood Ahmad attributed any motive to the accused/appellant for committing such an offence carrying capital charge. Further, we note that Muhammad Ayub, according to this age as shown by the learned trial Court while recording his statement under section 342, Cr.P.C. on 12-7-2004 was written about eighteen years of age, thus his age at the time of commission of offence i.e. on 29-9-2003 would be just about seventeen to eighteen years, therefore, of young age. Furthermore, the prosecution had involved three persons as accused in the instant case, out of whom two namely Abdul Ghafoor and Muhammad Farooq have already been acquitted by the learned trial Court vide the same judgment, which also is indicative of the fact that in fact the prosecution had thrown a wider net to invove maximum number of innocent persons, especially when against said judgment of acquittal no appeal has been filed by the complainant or the prosecution.

9. For what has been discussed above, we are convinced that the prosecution case to the extent of Muhammad Ayub stand sufficiently proved through the ocular account and the medical evidence, therefore, conviction of Muhammad Ayub accused/appellant under section 302-B, P.P.C. being unexceptionable is upheld and maintained. However, while taking up the imposition of maximum sentence of death, as detailed above, the accused/appellant was of youth age, it was motiveless occurrence having taken place in spur of moment over some dispute over cattle, wherein one injury was inflicted, and in the case of "Muhammad Arshad and others" (PLD 1996 SC 122), the Honourable Supreme Court of Pakistan in such a situation where only one fire shot was attributed to the accused, converted the death sentence into life imprisonment. Respectfully following the above dictum of the apex Court, while maintaining the conviction of Muhammad Ayub appellant under section 302-B P.P.C, we convert the death sentence with that of life imprisonment. However, the remaining sentence of compensation and imprisonment in default whereof, shall remain intact. Criminal Appeal No.260/2004 is dismissed with above modification in sentence. H.B.T./M-583/L Sentence reduced.