2016 P Cr (PLP)

MUHAMMAD ALAM, J.

Judgment/order dated 04-07-2014 of the Additional Sessions judge Gilgit has been challenged through this criminal appeal. Through impugned order, the learned trial court passed the following order:- ORDER 27. "In the result, it is seen that accused Mudasir Ali son of Arshad Ali found guilty for committing offence under section 316, P.P.C., hence I proceed to pass sentence against the accused person Mudasir Ali for his offence and he is liable to pay diyat, a sum of Rs.2532073/- (Rupees Twenty Five Lac Thirty Two Thousand and Seventy Three) as prescribed by the Government vide Notification No.F.8(3)IF-IV/1991 dated 01-07-2012 which is payable to the legal heirs of deceased in five installments. First installment is to be paid on 1st December, 2014 as Rs.532073/- (Rupees Five Lac Thirty Two Thousand and Seventy Three). Second on 1st July 2015 Rs.500000/- (Rupees Five Lac). Third on 1st December, 2015 Rs.500000/- (Rupees Five Lac). Fourth on 1st December, 2016 Rs.500000/- (Rupees Five Lac). Fifth on 1st July 2017 Rs.500000/- (Rupees Five Lac) which is recoverable as arrears of Land Revenue, and two years simple imprisonment. Benefit of section 382-B, Cr.P.C. is extended for undergone period. Benefit of section 331, P.P.C. is also extended to the accused for arrangement of diyat amount as he is released on bail subject to furnishing of two sureties in the like amount of diyat to the satisfaction of this Court.

28. Judgment announced in open court and copy thereof is supplied to the convict free of cost with the advice that he should prefer an appeal against his conviction and sentence in the Honourable Gilgit-Baltistan Chief Court. File be consigned to record after due completion."

2. Mr. Sakhawat Shah, FIR lodger, filed written application, Exh.PW-1/A and in the light of the same, police of PS Danyore chalked FIR No.31/12 (Exh.PW-1/B). The FIR lodger complained that his son Imtiaz Hussain was playing cricket in the ground of High School Oshkhindas, where a quarrel took place resulting to injuries to the deceased and the deceased was by then taken to the hospital. On this, the complainant reached in Sehat Foundation Hospital Danyore, where his deceased son had already died. On quaries by the complainant, Mr. Mushahid Hussain, Azfar Ali and Ehtazaz Ehsan, the eye witnesses of the occurrence, told the complainant that accused Mudasir Ali resident of Bargo had watered the cricket ground, and on that very reason deceased and the accused quarreled. The accused hit the deceased on the chest with the cricket bat resulting to the death of the deceased.

3. Police of Police Station Danyore conducted the investigation after chalking FIR and finally submitted charge sheet/challan in the court praying for trial of the appellant/accused for the offences of section 302, P.P.C. Learned trial court started trial of the case and charged the appellant/accused for the offence of section 302, P.P.C., through the charge sheet dated 07-09-2013. Later on, counsel for appellant filed an application on 29-10-2013 praying for charging the appellant for offence of section 322, P.P.C. Through charge sheet dated 11-12-2013, the trial court framed another charge sheet, charging the appellant for offence under section 316, P.P.C. The trial court did so in the light of order sheet dated 09-12-2013. After completing the trial proceedings, the learned trial court passed impugned order, convicting the appellant for the offences of section 316, P.P.C. Feeling aggrieved from the same, appellant/ accused has filed this appeal.

4. We have heard arguments advanced by the learned counsel for appellant and the learned Deputy Advocate General. The case in hand has very peculiar circumstances. From plain perusal of material available on file, it is evident that prima facie the occurrence is of section 302, P.P.C. Perusal of prosecution story of occurrence clearly shows that the alleged quarrel that entailed to murder of deceased was started because of watering the cricket ground, allegedly by the appellant/accused. This alleged act of watering of the ground by the appellant/accused was the cause of quarrel because the same act of the appellant/accused was meant to restrain deceased from playing cricket in the said ground. Prosecution story of occurrence further shows that deceased asked the appellant not to water the cricket ground. Obviously, appellant/accused had no duty whatsoever to water the cricket ground and the quarrel took place on insistence of the appellant for watering the said ground. Every man of common prudence may draw any inference from this kind of situation between the appellant and deceased. At this stage of the case, we are supposed to peruse the statements of the eye-witnesses of the occurrence and statements of PW-2 and PW-3 are very relevant and worth perusal. Both the said PWs are stating that the appellant/accused watered the cricket ground while deceased restrained him resulting to some altercation and then later on quarrel took place. All this shows that at the stage, when the charge was being framed, the occurrence was of section 302, P.P.C. and not of section 316, P.P.C. Therefore, learned trial court had rightly charged the appellant, through charge sheet dated 07-09-2013 for the offence of section 302, P.P.C. Learned trial court was free to make any opinion after completion of trial and could convict appellant/accused for offence of section 302, P.P.C. or 316, P.P.C. or any other offence or even could acquit the appellant/accused.

5. A very important aspect of the case is that in above referred both charge sheets, the appellant/accused has pleaded not guilty, meaning thereby that no quarrel whatsoever happened between himself and the deceased, therefore, in the opinion of the appellant, no question of hitting the deceased with the bat even arose. The courts are supposed to make opinions in the light of evidence. We have further noted that the appellant/accused has vehemently declared the prosecution evidence as false and concocted in his examination under section 342, Cr.P.C.

6. In view of the above circumstances, learned trial court had no power to change the charge sheet as there is no any plausible reason for such change. From ex-facie perusal of record of the case, it is abundantly evident that the prosecution has collected sufficient evidence, prima facie connecting the appellant for the offence of section 302, P.P.C. Then the question arises that what were the circumstances in which learned trial court had to reframe the charge for offence of section 316, P.P.C. We are of the view that there are no circumstances, whatsoever, demanding the reframing charge sheet for offence of section 316, P.P.C. The prosecution evidence read with the examination of the accused under section 342, Cr.P.C. it is clear that the appellant must have been charged for the offences of section 302, P.P.C. and then only the court could make any opinion on the basis of the material available on file.

7. In the sequel of above discussion, we are of the view that learned trial court has wrongly reframed charge sheet dated 11-12-2013 for offences of section 316, P.P.C. and, therefore, we set aside the orders of the trial court, on the basis of which the learned trial court charge sheeted the appellant/accused for offence of section 316, P.P.C. We also cancel the said charge sheet. During arguments before us, learned counsel for appellant stated at bar that the orders, on the basis of which appellant was charged for offence of section 316, P.P.C., were upheld by this court. In our opinion, we had to correct the state of affairs in line with our opinion that the orders of learned trial court, whereby, the original charge sheet was changed are result of erroneous appreciation of law and practice of the court. Once we correct the said order of the trial court, we had to correct our own orders also. We are doing so in exercise of our supervisory powers. We are, therefore, setting aside orders of this court, whereby, orders of trial court entailing to charge sheet dated 11-12-2013 were upheld. We direct the trial court for de novo trial of the case or for rewriting his judgment in the light of evidence available on file, but treating the prosecution evidence already recorded in proof of guilt of accused for the charge of section 302, P.P.C. We upheld the charge sheet dated 07-09-2013 of the trial court, whereby, appellant was charged for offence of section 302, P.P.C. We have further noted that appellant/accused is on bail in the light of any order of trial court or any vacation judge or this court. We cancel such orders also and direct the trial court for sending the appellant to judicial lock up. Anyhow, appellant/accused is free to file fresh bail petition, if so advised, and the trial court is free to pass any order on such application. This file be consigned to record. HBT/103/GB Order accordingly.