2014 PLP 1178 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Azmat Ullah appellant was booked in case F.I.R. No. 245 registered at Police Station Sambrial, District Sialkot on 13-6-2005 in respect of an offence under section 302, P.P.C. and after a full-dressed trial he was convicted for the alleged murder by the learned Additional Sessions Judge, Daska vide judgment dated 28-8-2007 and was sentenced to rigorous imprisonment for twenty-five years as Ta'zir and to pay a fine of Rs.1,00,000 or in default of payment thereof to undergo simple imprisonment for three years. The benefit under section 382-B, Cr.P.C. was extended to him. The appellant challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 232-J of 2007 which was dismissed by the then Hon'ble Chief Justice of the said Court vide judgment dated 16-9-2009. Hence, the present appeal by leave of this Court granted on 15-1-2010.

2. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance.

3. The facts of this case as well as the evidence produced before the learned trial Court find an elaborate mention in the judgments passed by the learned courts below and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

4. The case of the prosecution is that at the relevant date and time the appellant and his brother namely Imran suddenly developed a quarrel and on the basis thereof the appellant was enraged and he caused injuries to the said brother with a chhurri which injuries led to his death. The F.I.R. in this case had been lodged by none other than the father of the appellant. In his statement recorded under section 342, Cr.P.C. the appellant had maintained that he had caused an injury to his brother namely Imran deceased in exercise of right of private defence but he had failed to lead any independent evidence to substantiate and establish the said plea taken by him. Leave to appeal had been granted in this case to consider as to whether the circumstances of this case attract the provisions of section 302(b), P.P.C. or of section 302(c), P.P.C. A bare perusal of the F.I.R., the statements made by the eye-witnesses before the learned trial Court and the findings recorded by the learned courts below clearly shows that there was no background of any ill-will or bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a chhurri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the post-mortem of the deabdody had categorically observed that both the injuries found on the deadbody of the deceased could be a result of one blow of chhurri. These factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C.

5. Keeping in view the facts and circumstances of the case this appeal is partly allowed, the conviction of the appellant for an offence under section 302(b), P.P.C. is converted into that for an offence under section 302(c), P.P.C. and consequently his sentence is reduced from rigorous imprisonment for twenty-five years to rigorous imprisonment for ten years. The sentence of fine passed against the appellant by the learned trial court and upheld by the Lahore High Court, Lahore has been found by us to be unwarranted because section 302(b) or 302(c), P.P.C. do not contemplate any such sentence. Instead of fine we direct that the appellant shall pay a sum of Rs. 50,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof he shall undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. shall be extended to him. This appeal is disposed of in these terms. MWA/A-5/SC Order accordingly.