2006 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 30-10-2002 passed by the learned Additional Sessions Judge, Faisalabad whereby, after having tried the appellant, he was convicted under section 308, P.P.C. and sentenced him to fourteen year' S.I. with a further direction to pay a compensation of Rs.10,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. in default whereof to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the case, as given by the complainant in the F.I.R., are that the complainant was sleeping in his Ihata of cattles, he woke up on the call of nature, in the meantime he saw that the appellant gave Sota blow on the head of his deceased father, he along with the prosecution witnesses witnessed the occurrence and his father died at the spot. The motive alleged was that the deceased used to reprimand the appellant on his bad activities.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced nine witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that the appellant was sick man as he was suffering from occasional fits due to which his mental condition was not normal and he committed the murder of his father in the said condition; that the said factum has been admitted by the complainant during the trial; that his conviction and sentence is liable to be set aside coupled with his treatment in mental hospital for his recovery.

5. On the other hand, learned counsel for the State, while referring to paragraph 5 of the impugned, judgment, submits that at the time of occurrence appellant was not suffering from any mental disease; that he has caused death of his father and being real son of the deceased he has already been awarded conviction under section 308, P.P.C. and not 302(b), P.P.C.; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that this appeal is liable to be dismissed.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. Complainant of the F.I.R., which was promptly lodged, is Muhammad Rafique (P.W.1) who is the real brother of the appellant and real son of the deceased. He has no strong motive or reason to falsely involve his real brother for the murder of his real father. Appellant is the only accused who gave a fatal blow of Sota on the head of the deceased in consequence whereof he died there and then. The main argument of the learned counsel for the appellant is that at the time of occurrence, the appellant was suffering from mental fits, but during trial the appellant has failed to prove the said defence because the onus to prove the same was upon his shoulders as is settled by the apex Court of the country. Reliance in this regard is placed on Iftikhar Ahmad v. The State 2005 SCMR 272 wherein plea of lunacy was taken but the defence failed to prove the same and death sentence of the accused in the said case was maintained by the apex Court of the country in the judicial hierarchy. I have gone through paragraph 5 of the impugned judgment which talks of constitution of a Medical Board regarding sickness or otherwise of the appellant who opined as under:

"History of fever in childhood with hemiperesis of weakness Rt. Side of body appears to be old polio deformity. No other complaint. All blood tests are normal except HB which is 9.4 gm/dl, blood sugar S. Creatinine, LFT's, Urine complete examination X-Ray chest (P.A.), ECG are all normal." The medical report of the Board is of no avail to the appellant as it talks about some weakness in the right side due to "old polio Deformity" and does not talk about any mental disease. Perusal of record shows that the appellant is named in the F.I.R. with a specific role of attributing a fatal Sota blow on the head of the deceased who died at the spot. The factum of commission of murder by the appellant is an admitted one. Apart from above, there is no question of substitution or false implication on the part of the prosecution witnesses, the ocular account is corroborated by the medical evidence. I am in agreement with the argument of the learned counsel for the State that the appellant was not suffering from any mental disease at the time of occurrence. The learned trial Court has already taken a lenient view qua the quantum of sentence and has convicted and sentenced him under section 308, P.P.C. and not under section 302(b), P.P.C.

8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant beyond a shadow of doubt to sustain conviction against the appellant. The learned trial Court has delivered a well-reasoned judgment to convict the appellant which does not call for interference by this Court in the appellate jurisdiction. Resultantly, this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned trial Court vide the impugned judgment, in toto. H.B.T./A-8/L Appeal dismissed.