MUHAMMAD SALEEM Versus State

MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution has been directed against the judgment dated 10-1-2005 passed by a learned Judge in Chambers of the High Court of Sindh, Karachi, whereby appeal filed by the petitioner against his conviction and sentence of life imprisonment awarded to him under section 302(b), P.P.C. by learned Additional Sessions Judge, Karachi (South), was dismissed.

2. The short facts leading to this petition in the background are that a cage under Sections 307, 323, 324, 504/34, P.P.C. was registered against the petitioner and his co-accused since acquitted, at Police Station Defence, Karachi on the report lodged by Ali Asghar, complainant on 21-10-1997 wherein it was stated that complainant while raising objection to the blowing of motorcycle horn by Muhammad Tahir co-accused of the petitioner in the street, lodged complaint about his conduct to his father whereupon he having felt insulted, with the help of petitioner and one Zahid on the same day at about 8-15 p.m. attacked at Jamil Ahmed son of complainant while he was on his way to his home after offering Esha prayer in the mosque. The petitioner armed with Danda, whereas his co-accused namely, Zahid and Tahir holding iron bars, gave beating to Jamil Ahmed and on raising his alarm, the complainant along with Iftikhar Ellahi, Altaf Ellahi, Muhammad Riaz, Masood and few. Muhallandars reached at the spot. Iftikhar Ellahi, maternal-uncle of Jamil Ahmed (deceased) when tried to rescue him, the accused also gave him beating and both were taken to Jinnah Hospital for treatment but Jamil Akhtar ultimately succumbed to the injuries on 2-11-1987 in hospital whereupon section 302(b), P.P.C. was added. In addition to the ocular account furnished by Ali Asghar complainant (P.W.1), Muhammad Riaz (P.W.2), Arab (P.W.3) and Iftikhar Illahi (P.W.4) the prosecution also placed reliance on the statement of doctor Amanullah Sheikh (P. W.7) and Sub-Inspector, Muhammad Aslam Khan Lodhi, (P.W.5), the Investigating Officer of the case in spot of the murder charge against the petitioner whereas the petitioner in his statement under section 342, Cr.P.C. denying the prosecution allegation, pleaded that deceased while proceedings on motorcycle in the dark, fell in a ditch near the main bole in the street as a result of which he as well as Iftikhar Ellahi sustained injuries. The petitioner, however, did not prefer to make a statement on oath or produce any evidence in support of the above version.

3. Learned counsel for the petitioner has contended that factually the deceased due to the fall in the ditch of main-hole in the street, sustained head injury and last Iris life but the complainant twisting the story, described the incidental death of his son as an intentional murder by the petitioner and his co-accused due to the previous enmity. The learned Additional Advocate-General, on the other hand has forcefully argued that there was no serious enmity between .the parties to suggest that the complainant would distort true facts and described the incidental death of his son as homicidal death to involve the petitioner in a false case of murder. He argued that the witnesses including Iftikhar Ellahi, an injured witness, were quite independent who have narrated the facts in natural sequence without any exaggeration or 'improvement and their testimony of unimpeachable character duly supported by the medical evidence and the attending circumstances, would establish the charge of murder against the petitioner beyond any doubt.

4. The perusal of record in detail would show that prior to the occurrence., complainant had a petty dispute with the accused and no serious enmity existed between the parties to motivate him fob cooking a false story of murder of his son at the hands of petitioner and his co-accused since acquitted. Iftikhar Ellahi, an injured witness, is certainly related to the deceased but he was entirely independent and had no personal motive or reason to become a false witness against the petitioner and support the charge of murder. The story of sustaining the injuries by the deceased and Iftikhar Ellahi as a result of fall in the ditch, was not substantiated by any evidence direct of circumstantial so much so the petitioner has .not made a statement on oath in support of his version and mere assertion that deceased sustained head injury as a result of .fall in the ditch, would not be sufficient to doubt the credibility of the evidence of the quite independent, reliable and truthful witnesses. Probably the relations between the parties prior to the occurrence, were tense but there was no serious enmity between them in the background and the petitioners certainly, while carrying a wooden Petti of cot in his hand which is not ordinarily used as weapon of offence, caused a single blow to the deceased on his head which proved fatal to his life and thus, he was held guilty whereas his co-accused having been found to have not participated in the occurrence have been given benefit of doubt and acquitted. Be that as it may, in the light of circumstances leading to the occurrence and visualizing the situation at the spot, it can safely be held that the petitioner in the sudden quarrel in the heat of passion, without any intention to commit murder, caused a single blow to the deceased with an ordinary wooden Petti which is not as such used as a weapon. The careful examination of evidence and the circumstances of the case in totality, the element of premeditation, was found missing rather the occurrence being a sudden affair would be suggestive of an unintentional murder which may be called either Qatal-e-Shaba-i-Amd in terms of section 315,. P.P.C. punishable under section 316, P.P.C. or a case falling within the ambit of section 302(c), P.P.C. for the purpose of punishment. The learned trial Judge as well as the learned Judges in the High Court without attending the above essential features of the case, have wrongly convicted the petitioner under section 302(b), P.P.C. and learned A.A.-G. in the light of the factual position regarding happening of the occurrence suddenly in the street in which petitioner caused a single blow to the decease with an ordinary Danda, has .not been able to justify the conviction and sentence under section 302(b), P.P.C:

5. In the light of the facts and circumstances of the case and for the reasons given above, we being of the view that neither the occurrence was premeditated nor it was an intentional murder therefore, the conviction and sentence awarded to the petitioner under section 302(b), P.P.C. was not justified and instead he would be liable to the punishment under section 302(c), P.P.C. read with section 316. Consequently, this petition .is converted into an appeal and is allowed with .direction that appellant shall suffer R.I. for 14 years and also pay compensation to the legal heirs of the deceased equal to the amount of Diyat and in default to 'the payment of compensation shall undergo S.I. for six months. The amount of compensation shall be recoverable as arrears of land revenue and petitioner shall be entitled to the benefit of section 382-8, Cr.P.C. with above modification in the conviction .and sentence, this appeal is partly allowed.

N.H.Q../M-65/SC Order accordingly.