KHAN AFZAAL Versus State
JAMAL KHAN MANDOKHAIL, J.--- The prosecution case, as unfolded in FIR No. 90/2016 registered at Police Station Bhara Kahu, Islamabad on 09.03.2016, is that on the said date at about 7:00 p.m., the complainant Sajjad Ahmed along with his brother Shahzad Ahmed (the deceased) and Muhammad Asnan was returning from Khaliq Dad Chowk, to their house. When they reached near the clinic of Dr. Arshad situated in the bazaar, the accused Khan Afzaal alias Hasnain, allegedly emerged from a side street armed with a Churri and inflicted three to four blows on the back of Shahzad Ahmed followed by further blows from the front. When Muhammad Asnan intervened to rescue the deceased, he too was assaulted and sustained a Churri injury on his neck. The motive attributed in the FIR was a quarrel that had taken place two to three days prior to the occurrence between the accused and the deceased.
2. After a full-fledged trial, the petitioner was convicted under section 302(b), P.P.C. by the learned Additional Sessions Judge (East) Islamabad (Trial Court) and sentenced to imprisonment for life, with a direction to pay Rs.200,000/-to the legal heirs of deceased, in default whereof to undergo SI for six months. He was also convicted under section 337-D, P.P.C. and sentenced to seven years RI, and to pay Arsh of Rs.6,45,198/. Benefit of section 382-B, Cr.P.C. was extended to him. All the sentences were ordered to run concurrently. Aggrieved by the said convictions and sentences, the petitioner filed a criminal appeal before the Islamabad High Court, Islamabad, which was dismissed through the impugned judgment and his convictions and sentences were upheld, hence, this petition for leave to appeal.
3. Arguments heard and have perused the record. The prosecution's case mainly rests upon three eye-witnesses, namely PW-7 Sajjad Ahmed (complainant and brother of the deceased), PW-8 Javed Ahmed (real uncle of the deceased) and PW-9 Muhammad Asnan (injured witness). The complainant, deposed that on 09.03.2016 at about 7:00 p.m., he along with his brother Shahzad Ahmed and Muhammad Asnan were coming from market towards their house. When they reached near Dr. Arshad's clinic, the accused emerged, armed with a Churri and inflicted a blow on the back of the deceased who fell down, the accused then gave Churri blows on the abdomen of my brother. He further stated that when "Muhammad Asnan intervened to save my brother and to stop the accused, the accused gave a Churri blow on the throat of Asnan, who fell down due to injuries and became unconscious." Muhammad Asnan, being the injured witness, supported the complainant regarding the time and place of the occurrence, however, he did not corroborate the complainant with regard to the role of the petitioner. The injured witness stated that the accused inflicted multiple Churri blows upon the deceased. He caught hold of the accused and gave him some fist blows causing him to fall. Thereafter, the accused inflicted a Churri blow from the ground which landed on his neck, as a result whereof, he fell on the ground and became unconscious. PW-8 Javed Ahmed, however, presented a slightly different narrative. While he attributed the fatal injuries to the accused and supported the prosecution version in broad terms, in cross-examination he volunteered that he had reached there after the incident had already taken place.
4. The post-mortem examination of deceased was conducted by PW-3, who opined that the cause of death was haemorrhagic shock resulting from multiple ante-mortem injuries, which were sufficient in the ordinary course of nature to cause death. The presence of injured witness Muhammad Asnan PW-9 at the scene stands established beyond controversy, as he himself sustained an injury on his neck. The presence of injured witness Muhammad Asnan PW-9 at the scene stands established beyond controversy, as he himself sustained an injury on his neck. Upon reappraisal, we find no reason to disbelieve the injured witness as regards the participation of the petitioner in the occurrence. However, the most critical question for consideration is whether the prosecution has established beyond a reasonable doubt, that the act committed by the petitioner was done with prior planning and premeditation? In the present case, while the prosecution attributes the motive to a quarrel which had taken place two to three days prior and the defence acknowledges a history of hostility. The circumstances of the incident suggest a chance encounter in a bazaar rather than a prepared ambush. The occurrence took place in a bazaar area when the parties encountered each other. Though, the complainant had alleged that he, his brother (the deceased) and PW9 Asnan were on their way towards their house, but during the investigation, no evidence was collected to ascertain whether the road, where the incident occurred, leads towards the house of the complainant. Moreover, the I.O. did not investigate as to how the petitioner could have anticipated the arrival of the deceased at the place and time of the occurrence.
5. The purpose of an investigation is to collect every possible evidence for and against the complainant and the accused. Once an accused raises a particular plea, the I.O. is bound to investigate the case from that perspective. In the present case, the I.O. failed to properly examine the stance of the petitioner, who specifically alleged that prior to the incident, the complainant party had committed sodomy with him. He further alleged that on the day of the occurrence, he was aggressed upon by the complainant and others, who attempted to forcibly take him for the said purpose. From the evidence available on the record, especially, the statement of the injured witness, it is apparent that an altercation took place between the parties. The injured witness admitted the fact that he inflicted fist blows upon the petitioner, who fell down on the ground, supporting the defence plea of a physical struggle. The facts and circumstances as discussed above, lead us to a conclusion that the occurrence bears the characteristics of a sudden flareup arising from an unplanned encounter and mutual resistance. The act of the petitioner lacks the specific malic required for a conviction under section 302(b), P.P.C.
6. Besides, the medical officer admitted that the injuries were inflicted from different directions. While this does not negate the role of petitioner as a single assailant, it does indicate a free fight between the parties. The location and nature of injuries show that they were sustained during a brief but intense scuffle. It has come on the record that the deceased also possessed a knife, whereas, the medical officer, during his cross examination, admitted that "the injuries on the dead body were inflicted with different sharp-edged weapons from different directions." This establishes that the incident was indeed a free fight.
7. Motive set up by the prosecution has been disbelieved by the fora below. The defence version recorded by the petitioner under Section 342, Cr.P.C. suggests that there had been an earlier dispute on 29.02.2016; that on the day of occurrence, a sudden free fight took place; in the course of which the deceased sustained injuries. The petitioner also filed an application (Ex.DA) before the SHO, Police Station Barakahu, Islamabad on 17.03.2016 referencing the earlier incident between the parties on 29.02.2016, and alluding to another confrontation on 09.03.2016, which led to the unfortunate scuffle. Under such circumstances, the plea raised by the petitioner appears to be more plausible than the prosecution's version. It is evident that the petitioner acted in the exercise of his right of self-defence and while exercising such right, he being under-age boy of less than eighteen years tried to defend himself from the perceived aggression of the complainant party. However, a rush of blood as a reaction led the petitioner to act recklessly, hence, exceeded his right of self-defence. We are persuaded and convinced with regard to guilt of the petitioner in committing murder of Shahzad and causing injury to Muhammad Asnan (PW9). However, the circumstances surrounding the incident such as sudden confrontation, resulting into free fight, which compelled the petitioner to do unexpected harmful action, without pre-meditation. Under such circumstances, we are convinced to hold that the case of the petitioner falls within the ambit of section 302(c), P.P.C. The learned fora below have failed to appreciate such important aspect of the matter, hence, reached a wrong conclusion, resulting in incorrect conviction of the petitioner under section 302(b), P.P.C.
Thus, in view of the above, the jail petition is converted into an appeal and is partly allowed. The conviction and sentence of the appellant Khan Afzaal under section 302(b), P.P.C. is set aside. Keeping in view the facts and circumstances of the case, coupled with the juvenility of the appellant at the time of the occurrence and also the fact that the appellant has already served out about eighteen years of imprisonment, including remissions, he is charged under section 302(c), P.P.C. and is convicted accordingly for a term that he has already undergone. The conviction and sentence awarded to the appellant under section 337-D, P.P.C. is upheld. The amount of compensation and sentence in lieu thereof are maintained. The sentences of imprisonment shall run concurrently, with the benefit of section 382-B, Cr.P.C.
JK/K-5/SC Order accordingly.