ABDUL KARIM vs THE STATE

' RANA BHAGWANDAS, ACTG. C.J.--- This appeal with the leave of the Court is directed against Balochistan High Court judgment, dated 30-8-1999 dismissing appellant's appeal against his conviction under section 302(b), P.P.C. And sentencing him to life imprisonment.

2. Besides the appellant, his brothers Dad Karim and Ali Ahmed were also tried on the charge of committing Qatl-i-Amd of deceased Shadi Khan alias Shandad on or about 21-7-1998 at about 12- 00 hours. Another brother of the appellant, Amir Muhammad was arrayed as accused at the trial but he remained fugitive at law and a proclaimed offender. Report of the incident was lodged by Jan Muhammad P.W.1, brother of the deceased at 4-00 p.m. The same day. Appellant as well as his two brothers were arrested by Levies Police, the same day in the evening. Allegation against the party of the appellant is to the effect that he along with his three brothers went to the land of the complainant party in order to lodge a protest in respect of abuses hurled by complainant Jan Muhammad to Dad Karim brother of the appellant. It appears that complainant party caused some injuries on the person of the appellant by means of throwing stone, whereupon the appellant who was armed with hatchet "Kudal" dealt a fatal blow on the left forehead parietal region of deceased Shadi Khan, culminating in his death. During the course of investigation, appellant made a judicial confession before a Judicial Magistrate Kalat Division on 26-7-1998 indicating the manner and background of the incident, including the act of causing death of the deceased. The incident is stated to have been witnessed by Jan Muhammad P.W.1, Haji Pir Jan P.W.2 and Saifullah P.W.S. In his confessional statement, appellant pleaded that it was the complainant party who attacked on him whereupon he acted in the exercise of his right of private defence without intending to cause the death of the deceased. At the conclusion of the trial, the appellant was convicted under section 302(c), P.P.C. And sentenced to life imprisonment whereas co-accused Dad Karim and Ali Muhammad were convicted and sentenced to ten years' R.I. And fine of Rs,10,000 by reason of sections 109/34, P .P. C

3. Convicts appealed against their conviction before Balochistan High Court, who, while dismissing appeal of the appellant has imposed compensation of Rs,20,000 upon him payable to the legal heirs of the deceased by altering the conviction from sections 302(c) to 302(b), P.P.C. And acquitting his co-accused. On petitioner's jail petition, leave to appeal was granted to reappraise the evidence and to examine A the question of exercise of right of private defence raised by him at the trial.

4. We have heard Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the appellant and Mr. Mehmood Raza, learned Additional Advocate-General Balochistan and, with their assistance, gone through the entire record.

5. Oil examination of the evidence on record, it is patently clear that the party of the appellant had gone to the land of the complainant party in order to protest for hurling of abuses by Jan Muhammad P.W.1 to Dad Karim whereupon in the heat of passion, complainant party caused injuries to appellant Abdul Karim by means of stones whereas he dealt a fatal blow on the left temporal region of the deceased leading to his instantaneous death. Although the witnesses attempted to conceal the factum of injuries caused by means of stone on the person of the appellant, it has come in the evidence that in their statements before the Investigating Officer this fact was admitted. Even Abdul Aziz, Naib Tehsildar P.W.7, who recorded the F.I.R. Was obliged to admit that upon arrest he had noticed that the appellant was slightly injured but there is absolutely no explanation as to for what reason he was not referred for medical examination in order to find out the gravity of injuries on his person prompting him to take the law into his hands and causing the death of the deceased. It is evident from the evidence on record that the appellant did not act in a preplanned or premeditated manner to take the life of the deceased in order to saddle him with the criminal liability arising under section 302(b), P.P.C. It appears that in a sudden flare up and in the heat of passion, appellant acted in a manner which cannot be totally justified to bring his case with the ambit of section 302(b), P.P.C. Learned Additional Advocate- General, while defending the impugned judgment of the High Court, was unable to explain as to why injuries on the person of the appellant were concealed in the F.I.R. As well as at the trial and as to why the appellant, who was arrested the same day, was not subjected to medical examination, which would obviously diminish the liability of the appellant for the act IB committed by him.

6. For the aforesaid facts and circumstances, while partly allowing the appeal against the judgment of the High Court and restoring the conviction of the appellant under section 302(c), P.P.C., we would alter the sentence of life imprisonment to that of already undergone which would serve the ends of justice. It may not be out of place to observe that the appellant was arrested on 21-7-1998 and is behind the bars till this day. Jail authorities be informed accordingly.