2003 PLP 494 (MLD)

3. Briefly stated the facts of the prosecution case as disclosed by Ali Muhammad complainant that on the fateful day, i.e. 23‑6‑2002, they had gone to attend the engagement ceremony of their relative at Street No. 10, Muhala Sher Khan, Mehmood Abad, Begumpura, Lahore. At about 11‑00 p.m. he and his brother Umer Khan due to hot weather were standing in Street No.10 and were talking to each other. In the meanwhile, Dilawar Khan and Farid Khan sons of Mir Alam also reached there, who told Umer Khan that he should ask his brother Nisar Ahmad to behave himself, as he is coming after their girl and if he did not behave himself he should be murdered. On this they exchanged hot words with Umer Khan and caught hold of him and gave him fist blows. On hearing the noise Jehangir and Faiz Khan came there and separated Umer Khan from the accused persons. Umer Khan fell unconscious. Both the accused ran away. Umer Khan was taken to Shalimar Hospital, where he succumbed to the injuries, hence this case.

4. After registration of the formal F.I.R., accused Dilawar Khan was arrested oil 30‑6‑2001, whereas, accused Farid Khan was declared a P.O. by the Court after necessary proceedings under sections 87/88, Cr.P.C. The accused was challaned to face the trial. Formal charge under section 302/34, P.P.C. was framed against Dilawar Khan accused on 9‑4‑2001 to which he pleaded not guilty and was put to trial.

5. At the trial Court, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned D.D.A. closed the prosecution case then the statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded innocence.

6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record learned counsel for the appellant submits that it was not a case of premeditated murder, that no undue advantage was taken by the appellant, that appellant was not armed with any weapon at the time of occurrence, that complainant improved the story before the learned trial Court, that no case is made out against the appellant and he is entitled to clean acquittal.

7. On the other hand, learned counsel for the complainant submits that appellant was named in the F.I.R., he alongwith his co‑accused gave fist and kick blows on the person of the deceased, that' already a very lenient view has been taken by the learned trial Court by not awarding the death sentence and he is not entitled to any benefit by this Court as far as sentence is concerned.

8. Learned State Counsel submits that appellant was not armed with any weapon, occurrence had taken place at the spur of the moment, that case of the appellant is covered by section 302(c), P.P.C. and not under section 302(b), P.P.C.

9. I have heard learned counsel for the parties. In the instant case, story of the prosecution was that complainant alongwith his brother had gone at engagement ceremony where her met the accused persons, some altercation took place on which, present appellant alongwith his co-?accused gave fist and kick blows on the person of the deceased, who was taken to the hospital and died there and then. The post‑mortem examination on the dead body of the deceased was conducted on 24‑6‑2000, the doctor had given the opinion about the death of the deceased which is as under:‑‑ "On the basis of date on record, history, circumstantial evidence, findings at autopsy and reports of the Chemical and Bacteriologist. The exact cause of death cannot be commented. However, on the basis of same data possibility of death due to Acute Neurogenic Shock cannot be ruled out. " Learned State Counsel has rightly submitted before me that case if any is under section 302(c), P. P. C. not under section 302(b), P. P. C. After hearing the learned counsel for the parties and going through the record, as there was no previous background of enmity between the parties, occurrence had taken place at the spur of the moment, no undue advantage had taken by the appellant, he was not armed with any weapon at the time of occurrence, he gave fist and kick blows on the person of the deceased, so it is not a case under section 302(b), P.P.C. but under section 302(c), P.P.C. The net result of the above discussion is that conviction and sentence of the appellant is converted from section 302(b), P.P.C. to section 302(c), P.P.C. and he is awarded 14 years' R.I., with the benefit of section 382‑B, Cr.P.C. However, the sentence of compensation or in default thereof is maintained. With the above-said modification in the sentence this appeal stands disposed of. H.B.T./D‑49/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.