2009 PLP 1733 (YLR)

MALIK SAEED EJAZ, J.

This appeal is directed by Muhammad Iqbal against judgment dated 21-7-2006 passed by the learned Additional Sessions Judge, Burewala in case F.I.R. No.232 registered on 3-10-2004 at Police Station Sadar Burewala, District Vehari, for offence under section 302, P.P.C, whereby he has been convicted for offence under section- 302(b) P.P.C. and sentenced to imprisonment for life plus payment of compensation amounting to Rs.1,00,000 to the legal heirs of the deceased, in default whereof to further undergo S.I. for six months. He was granted benefit of section 382-B, Cr.P.C.

2. Briefly stated the facts of the prosecution case per complaint Exh.PA, recorded by Maqsood Ahmad, S.-I./P.W.8, at the instance of Mst. Naziran Bibi widow of Muhammad Aslam-deceased, complainant/P.W.2, which based the registration of formal F.I.R. Exh.PA/1, are that she was married to Muhammad Aslam deceased 22 years back. About 9/10 months prior to the registration of case, their two buffaloes and one she-ass were stolen and a case in that regard was registered against deceased's brother Muhammad Akram, etc, who were supported by Muhammad Iqbal appellant. On 3-10-2004, the complainant with her husband Muhammad Aslam, her brother Muhammad Naeem/P.W.1 and Muhammad Manzoor (given up P.W.) went to Muhammad Iqbal as a Panchayat for the return of aforesaid cattle. They hired a motor cycle rickshaw from Lorry Adda, Burewala, and reached Adda Chak No.435/EB at 1-00 p.m. Muhammad Aslam got down the rickshaw first of all and went toward the house of Muhammad Iqbal, while the complainant, her brother Muhammad Naeem and Muhammad Manzoor followed him at some distance. Muhammad Aslam knocked at the door of the house of the appellant, who came out and on seeing the deceased, suddenly, flew into rage and asked him as to why he had knocked at his door and raised Lalkara that he would teach a lesson to him. Within the view of the complainant and the P.Ws. the appellant gave successive fist blows on the head and face of the deceased. The hue and cry raised attracted a number of inhabitants of the Mohallah to the spot. Muhammad Aslam was rescued through the requests of the complainant etc. The complainant and her companions along with Muhammad Aslam proceeded towards their house but on the way near Gaggo Muhammad Aslam succumbed to the injuries. The complainant and others were taking the dead body of the deceased to the police station in a Dala when they came across Maqsood Ahmad, S.-I./P.W.8, near Chak No.259/EB, where her statement Exh.PA was recorded by the aforesaid S.-I.

3. Maqsood Ahmad, S.-I./P.W.8, after recording the statement of the complainant, sent the same to police station for registration of formal F.I.R; prepared injury statement Exh.PE and inquest report Exh.PF of the deceased and sent the dead body to THQ Hospital, Burewala, for post-mortem examination. On 4-10-2004, he inspected the spot and prepared its rough site-plan Exh.PG. On 22-10-2004, Abdul Latif, Inspector/P.W.7, arrested the appellant. He also got prepared scaled site-plan of the place of occurrence (Exh.PD to. PD/2) from Amjad Rehman, Draftsman/ P.W.S. After completion of investigation, the appellant was sent up to face trial.

4. To substantiate its version at the trial, prosecution produced eight witnesses. Ocular account was furnished by Muhammad Naeem/P.W.1 and Mst. Naziran Bibi, complainant/P.W.2. They also stated about the motive. Their statements are in line with the story given in the F.I.R. Dr. Sajjad Ahmad Dhillon/P.W.3, who conducted post-mortem examination on the dead body of Muhammad Aslam-deceased on 4-10-2004, while observing the following two injuries on his person:-- "(i) Left eye, cheek, temporal region swollen and black colouration; (ii) The right temporal region was swollen with black colour. Multiple contusions were present on the left side of the neck." Opined that death was caused due to head injury, Maqsood Ahmad, S.-I./P.W.8 stated about the drafting of the complaint at the instance of the complainant, its dispatch to the police station and the investigation thereafter. Abdul Latif inspector/P.W.7 also stated about the investigation conducted by him. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the report of the Chemical Examiner Exh. PH, the prosecution closed its side.

5. In his statement recorded under section 342, Cr.P.C. the appellant pleaded his innocence and false implication. However, neither he appeared as his own witness as enjoined by section 340(2), Cr.P.C. nor did he produce any witness in his defence.

6. Learned counsel for the appellant submits that this is a case of sudden flare up and there was no premeditation behind the occurrence nor the appellant was armed with any weapon. So, the case of the appellant does not fall within the provisions of offence under section 302(b), P.P.C. but it is covered by offence under section 302(c), P.P.C. Conversely, the learned D.P.G. for the State has defended the impugned judgment but he has not been able to rebut the contentions raised by the learned counsel for the appellant.

7. According to the allegation levelled in the F.I.R.; when the deceased knocked at the door of the appellant, the latter flared up and gave fist blows on the head and face of the former; which ultimately resulted into his death. The two eye-witnesses also stated to the same effect. They being companions of the deceased, are natural witnesses and their statements are worth reliance. The ocular account is supported by the medical evidence, as, according to the doctor/P.W.3, the deceased sustained two injuries on his temporal regions and his death was caused due to haemotoma; which means clotting of blood and haemorrhage. Thus, it is clear that death of the deceased was caused due to infliction of fist blows by the appellant. The infliction of fist blows by itself in indicative of the fact that there was no premeditation to kill the deceased nor did the appellant know that the first blow would result into the death of the deceased. Hence; the case of the appellant is squarely covered by the provisions of offence under section 302 (c), P.P.C. and not section 302(b), P.P.C.

8. In view of the above discussions; I, while partly allowing this appeal, set aside the conviction and sentence of the appellant for offence under section 302(b), P.P.C, as recorded by the learned trial Court through the impugned judgment, and alter his conviction to offence under section 302(c), P.P.C. and reduce the sentence to ten years' R.I. However; the order of the learned trial Court as to the imposition of compensation upon the appellant and the grant of benefit of section 382-B, Cr.P.C. is maintained. A.M.R./M-369/L Order accordingly.