2000 PLP 502 (SCMR)

WAJIHUDDIN AHMED, J.

The facts of this case succinctly narrated by the High Court are these:-- "The brief facts of the prosecution case are that the complainant Muhammad Hanif alias Bhoora had lodged a complaint Exh.P.D. alleging that on 27-2-1985, at 12 noon when his first cousin Muhammad Rashid was also present in his house, his daughter Mst. Parveen, came from her aunt's house and told that Nazar Abbas alias Ghandari, Muhammad Abbas alias Gosha sons of Talib Shah and Nasir alias Taidy had cut indecent joke with her. Thereafter, Muhammad Rashid went to the spot and admonished them. In the meanwhile the complainant also followed him and saw the accused grappling with Muhammad Rashid. On the saying of Nasir Mehmood that Bhoora has also come, Nazar Abbas took out Khanjar from the fold of his Shalwar and gave blow on the chest of Muhammad Rashid, who fell down, and all the three accused ran away. Muhammad Rashid died on the spot. Besides the complainant Muhammad Sharif, Muhammad. Yasin and Muhammad Jamil, who were present on the spot,-had also witnessed the occurrence." It may bear mention here that when prosecution evidence unfolded, complainant Muhammad Hanif (P.W.5) had elaborated upon the incident in these words:-- ' "When I reached near them Nasir Abbas accused asked Muhammad Abbas accused that Bhoora had come and he should finish the matter. On this Muhammad Abbas accused took out dagger from the Shalwar and gave blow with, the same on the chest of Rashid which hit him on his chest. Muhammad Rashid fell down on the ground. The accused then ran away with the dagger." The matter, thus, proceeding to trial, the learned Sessions Judge, Gujrat, acquitted accused Nazar Abbas and Nasir Mehmood, convicting and sentencing Muhammad Abbas under section 304, Part I, P.P.C. for seven years' R.I. and a fine of Rs.2,000, default giving rise to S.I. for another six months. Benefit of section 382-B , Cr.P.C. was also allowed. The Court of Session as well as the High Court, with corroborative evidence superadded, did not find any particular inconsistency in the above versions of the complainant, concerning the role of accused Muhammad Abbas, who was real brother of Nazar Abbas accused. The prosecution evidence on the point stands, by and large, accepted. It was also proved that the single incised wound, inflicted on the deceased was on a vital part of the body, with an obvious intention, at least, of causing such bodily injury as was likely to cause the death of the victim. The wound was described thus:-- "(1) Incised wound 2.5 c.m. x 1. c.m. x cavity deep front of chest left side approximately 7 c.m. below and inner to nipple. There was corresponding cut on the shirt and Bunyan." Even motive was established, the abused girl, Mst. Parveen, herself being examined as P.W.9. The High Court counter-appeals, between the convicted accused and the State and simultaneous revision of the complainant recorded as under: "The Court has given its anxious consideration to the submission made by the learned counsel for the parties, as stated above, and is constrained to observe that the learned Court had unnecessarily leaned towards leniency while imposing the sentence on the appellant after justifiedly hence legally convicting him under the alternate provisions of section 304, P.P.C." Even so, the awarded sentence was upheld solely on the ground that the convict had already undergone the sentence. Section 304, P.P.C., as it then stood, in its unamended form is as under:-- "

304. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as isdikely to cause death." Examining the case we observe that. on dissection, all the three cavities were opened. The single injury, attributed to the accused, had punctured the right ventricle of the heart and the chest cavity (left half) was full of blood. As to merits, however, the learned Sessions Judge concluded in the following terms:-- "From the evidence of two eye-witnesses it is quite clear that Muhammad Abbas had given dagger blow to the deceased which proved fatal. It is in the statement of Muhammad Jamil P.W-6, the e-witness that Rashid deceased was also there and was saying to the said three accused that they should be ashamed of their conduct and he also asked them that they were Begairates. In view of the evidence of this witness no case under section 302/34, P.P.C. is made out against the accused. It follows from the statement of Jamil, the eye-witness that this was not a case of murder but it was a case of culpable homicide not amounting to murder." This, in the presence of the foul conduct of the accused convict, should not have occasioned a lenient sentence at the level of the Court of Session but if that happened to be so, and the High Court recognised the error, such ought to have been corrected by the High Court itself. In that the same was not done, we have heard the learned counsel on either side to convince ourselves as to whether this is a case fit for remand or the lenient sentence, awarded as above, may be converted at this level of the proceedings. Now, Article 187 of the Constitution confers all necessary powers on this Court to do complete justice in a case. No useful purpose would be served by remanding the case to the High Court where the High Court had already reached the conclusion that the sentence passed was a lenient one, when put in juxtaposition with the proved offence. In the circumstances, we are inclined to alter the sentence of seven years to life imprisonment while maintaining the remaining ancillary aspects, Complainant party's petition is, accordingly, converted into an appeal and it is so ordered. In the meantime, if the convict has been released he would be re-arrested and serve the remaining sentence as above passed. M.B.A./M-408/S Order accordingly.