Muhammad Iqbal Versus State

Muhammad Waheed Khan, J .--- This judgment will decide the instant appeal (Cr. Appeal No.80256-J of 2022) filed by appellants, Muhammad Iqbal and Muhammad Younas (against their convictions and sentences) and Criminal Revision No.70854 of 2022 filed by complainant, Muhammad Khalil, for enhancement of sentences of respondents Nos.2 to 4/appellants and their co-accused Muhammad Aslam as both the matters have arisen out of the same judgment dated 19.10.2022 passed by the learned Addl. Sessions Judge, Pattoki, District Kasur, in case FIR No.244 dated 21.05.2018, registered under sections 302/337-A(i)/147/149 P.P.C at Police Station Saddar Pholl Nagar, whereby the appellants were convicted under section 302(b) P.P.C each and sentenced to life imprisonment each. They were also directed to pay Rs.5,00,000/- each as compensation under section 544-A Cr.P.C. to the legal heirs of deceased, Muhammad Nadeem, in default thereof, to further undergo six months simple imprisonment each. Benefit under section 382-B Cr.P.C. was extended to him.

Co-accused, Muhammad Aslam was also convicted under section 337-A(i) P.P.C and sentenced to pay Daman of Rs.25,000/- to injured Qasim. Whereas five co-accused Muhammad Asif, Muhammad Ashfaq, Muhammad Nisar, Muhammad Ibrar and Muhammad Kashif, were acquitted of the charge vide the same judgment.

2. Brief facts of the case as narrated by complainant, Khalil Ahmad, in the complaint (Ex-PA), on the basis of which formal FIR (Ex-PR) was lodged, are as under;

"That on 20.05.2018, at 08:30 p.m. his brother Muhammad Nadeem, was getting his tractor repaired from a workshop situated in village Khan Key Morr, Tehsil Pattoki, whereas his son, Azam was driving his bicycle in front of the said workshop along the road. In the meanwhile, accused Muhammad Kashif reached there and snatched the bicycle from his son and started to drive it himself, resultantly, his son Azam started weeping, so, his brother. Muhammad Nadeem. asked accused Kashif that why he had snatched the bicycle, in the meanwhile, his other two brothers Zafar Iqbal and Aamir also reached at the spot. The aforesaid Kashif then started altercating with Muhammad Nadeem and while extending threats of dire consequences, went towards his home, but at 09:15 p.m. when the complainant along with his associates after ending of the quarrel was proceeding towards his home and reached near Haveli of the accused Muhammad Iqbal, who while armed with iron rod along with others i.e. Muhammad Younas armed with iron Sabbal, Asif armed with the handle of water pump, Ibrar armed with Sota, Muhammad Ashfaq. Muhammad Aslam and Nisar armed with Sotaz, also reached there. Accused Muhammad Iqbal raised a Lalkara to teach a lesson for insulting Kashif and then all the aforesaid accused persons grappled with Muhammad Nadeem. Accused Muhammad Iqbal inflicted iron rod blow at Muhammad Nadeem, hitting him on front side of his head, second blow of iron Sabbal caused by accused Muhammad Younas, hit Muhammad Nadeem on front side of his head, whereas accused Muhammad Asif made a blow with the handle of water pump. which hit on the back side of head of Muhammad Nadeem. On hearing hue and cry, Qasim reached at the spot, accused Muhammad Aslam made a Sota blow at the person of said Qasim, which hit him on his head. Thereafier, accused Muhammad Ashfaq, Nisar and Muhammad Aslam also inflicted indiscriminate Sotas blows at the person of Muhammad Nadeem and then all the accused while extending threats, fled away from the spot. After their departure, Muhammad Nadeem was shifted to RHC Phool Nagar, from where he was referred to Jinnah Hospital Lahore, where he succumbed to the injuries.

Motive behind the occurrence was the incident of snatching of bicycle by accused Muhammad Kashif from Azam son of the deceased and feeling insult by the accused Muhammad Kashif at the hands of the deceased on account of the occurrence of snatching of the bicycle."

After registration of case, investigation was carried out and the appellants along with six others were found guilty, so, report under section 173 Cr.P.C. was submitted before the learned trial Court, whereby they were summoned, charge was framed which was denied by them, hence, trial commenced. The prosecution in order to prove its case produced as many as eleven witnesses. Ocular account was furnished by complainant Khalil Ahmad (PW-1), Zafar Iqbal (PW-2) and Qasim (injured PW-3). Medical evidence was furnished by Dr. Farooq Haider (PW-5), who medically examined injured Qasim and Dr. Nadeem Abbas (PW-7), who conducted autopsy on dead body of deceased, Muhammad Nadeem. Mamoor Khan SI (PW-11) was the Investigating Officer of the case. The remaining witnesses were of formal in nature and the prosecution after producing certain documents closed its evidence. After completion of prosecution evidence, statements of the appellants were recorded under section 342 Cr.P.C., in which they denied the allegations levelled against them. They did not opt to appear as their own witnesses under section 340 (2) Cr.P.C., however, produced certain documents in their defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct 'beyond any shadow of doubt' to the extent of appellants, which resulted into their convictions and sentences in the afore stated terms.

3. In support of the instant appeal, learned counsel for the appellants and learned Defence counsel for the appellants, contend that case of the prosecution is inherently flawed, hence, fails to inspire confidence; that witnesses of the ocular account being close relative of the deceased were interested witnesses, hence, no implicit reliance can be made on their testimonies to maintain the convictions and sentences of the appellants; that the impugned judgment is based on surmises and conjectures as material evidence available on record in favour of the appellants has been mis-read by the prosecution; that injuries sustained by three persons from the accused side had been suppressed by the complainant while lodging the FIR; that medical evidence is also not in line with the ocular account; that motive set up by the prosecution has also not been proved; that the alleged recovery of weapons of offence affected from possession of appellants also remained inconsequential and lastly pray that since the prosecution has miserably failed to prove its case against the appellants up to hilt, hence, by accepting the instant appeal, they be acquitted of the charge.

4. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant, has faithfully defended the impugned judgment by controverting the arguments of learned counsel for the appellants and has contended that the prosecution has ably proved its case against the appellants "beyond reasonable shadow of doubt"; that to substantiate the case of the prosecution apart from other evidence, the prosecution has adduced medical evidence, recoveries of weapons of offence from appellants and evidence of motive, so, all the evidence produced by the prosecution fully corroborates the ocular account, so, in the presence of voluminous evidence, the appellants do not deserve any leniency and they have rightly been adjudged guilty by the learned trial Court, hence, the instant appeal is liable to be dismissed and they are liable to be sentenced with capital punishment as provided under the law in such like offences.

5. I have heard the arguments of learned counsel for the parties, learned Law Officer, have gone through the record with their assistance and noticed that the incident of homicide of one Muhammad Nadeem (deceased) and sustaining injury on the person of one Qasim, was reported to the police by none else but brother of the deceased, Khalil Ahmad (PW-1) with the assertion that on 20.05.2018, at 08:30 p.m. an altercation took place between Muhammad Nadeem (deceased) and co-→accused Muhammad Kashif (since acquitted) on a trivial issue that the said Kashif forcibly snatched bicycle of his son, Azam. Accused Kashif while feeling insult went to his house and at 09:15 p.m. his father Muhammad Iqbal (appellant) armed with iron rod along with Muhammad Younas (appellant) armed with iron Sabbal, Asif (since acquitted) armed with handle of water pump, Ibrar (since acquitted) armed with Sota, Muhammad Ashfaq (since acquitted), Muhammad Aslam (since convicted) and Nisar (since acquitted) armed with Sotaz, attacked upon the complainant party and thereby appellant Muhammad Iqbal inflicted iron road blow at Muhammad Nadeem, which hit him on front side of his head, second blow of iron Sabbal caused by appellant Muhammad Younas, also hit him on front side of his head. On hearing hue and cry, Qasim reached at the spot, accused Muhammad Aslam (since convicted) made a Sota blow at his head. Muhammad Nadeem was shifted to RHC Phool Nagar, from where he was referred to Jinnah Hospital Lahore, where he succumbed to the injuries. The complainant (PW-1) further stated that the incident took place in the backdrop that co-accused Muhammad Kashif son of Muhammad Iqbal (appellant) forcibly took away bicycle from son of the deceased, Azam. I am mindful of the fact that appellants, Muhammad Iqbal and Muhammad Younas, (who are father and son inter se) were named in the FIR with the specific accusation that appellants Muhammad Iqbal armed with iron rod and Muhammad Younas armed with iron Sabbal, inflicted blows, which hit at front side of head of Muhammad Nadeem. All the three eye-witnesses i.e. complainant Khalil Ahmad (PW-1), Zafar Iqbal (PW-2), real brothers of the deceased and third eye-witness Qasim (PW-3), who was injured of the case, remained steadfast and consistent qua the culpability of the appellants, right from lodging the FIR and also deposing before the learned trial Court in resolute and unambiguous terms, that appellants, Muhammad Iqbal and Muhammad Younas, were the persons, who inflicted blows with their respective weapons, at the head of Muhammad Nadeem, which injuries proved fatal for his life. The Investigating Agency had also found the appellants to be responsible of causing those injuries and held them guilty and challaned accordingly.

6. However, keeping in view the facts and circumstances of the case in its totality and having gone through the evidence adduced by the prosecution, I am of the view that the case of the appellants does not fall within the ambit of section 302(b) P.P.C, rather it attracts the provisions of section 302(c) P.P.C. Firstly, on the ground that the alleged incident took place suddenly at spur of the moment without any premeditation. Although, the complainant stated in the FIR that there was a dispute over snatching of bicycle from Azam son of the deceased by co-accused Muhammad Kashif and an altercation took place between them but at the same time, this stance of the complainant had not been believed by the learned trial Court as nothing is available on record that what happened immediately before the occurrence and in fact it was a case of sudden and free fight between the parties as during the course of alleged incident, three persons from accused side, namely, Muhammad Iqbal (appellant) and his two sons, Muhammad Ibrar and Muhammad Kashif, also sustained injuries at their persons from the hands of the complainant party but this factum, was suppressed by the complainant while lodging the FIR. The Investigating Officer of the case, Mamoor Khan SI (PW-11) during cross-examination also admitted this factum of sustaining injuries at the persons of the accused during the incident. The Medico Legal Certificates of the said injured had also been adduced by the accused during the trial in their defence as Ex-DE, Ex-DF and Ex-DG. Although, neither any cross version had been got lodged by the accused side, nor any private complaint had been filed but nothing is available on record, which could negate the factum of sustaining injuries by the accused from the hands of the complainant party. Moreover, as per stance of the complainant, both the appellants had given solitary blow i.e. one each, which hit closely on front side of head of Muhammad Nadeem (deceased) that too with an iron rod and an iron Sabbal and it was very difficult to distinguish which injury caused death of the deceased. So, it is fairly be concluded that the case in hand would be dealt with in the line of guidelines and parameters settled by the august Supreme Court of Pakistan in case of "Syed Ali Bepari v. Nibaran Mollah and others" (PLD 1962 SC 502). Even otherwise, the weapons used by the appellants during the occurrence cannot be categorized as weapons, which are ordinarily used for causing grievous injury and admittedly, the appellants did not repeat their blows.

7. The prosecution remained failed to establish the motive part of the incident, which was set up while lodging the FIR, as the learned trial Court had disbelieved the same and record is absolutely silent what happened immediately prior to the alleged occurrence between the parties, which prompted the appellants to cause injuries to the deceased. The august Supreme Court of Pakistan in case of "Ali Muhammad v. Ali Muhammad and another" (PLD 1996 SC 274), while relying upon its previous verdict rendered by it in case of "Federation of Pakistan v. Gul Hassan Khan" (PLD 1989 SC 633), had reiterated that there should be no doubt that the cases covered by Exception 4 to Section 300 P.P.C (Erstwhile), were intended to be dealt with under section 302(c) P.P.C. For ready reference, exception 4 to the erstwhile section 300 P.P.C, is reproduced hereunder:-

"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault."

In a judgment passed in case of "Muhammad Ajmal v. The State" (2022 SCMR 88), the apex Court had held, that there was no previous enmity between the parties and occurrence took place at a spur of the moment, the accused was attributed solitary stab wound and he did not take undue advantage nor acted in cruel or unusual manner, so, those circumstances were considered sufficient to convert the conviction from sections 302(b) to 302(c) P.P.C. Similar view had also been taken by the august Supreme Court of Pakistan in case of Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035). I am also mindful of the fact that the appellants while getting their statements recorded in terms of section 342 Cr.P.C. or otherwise, did not take any specific plea regarding sudden flareup but at the same time, it is trite that any circumstance or benefit arising out even from the prosecution case, should be extended to the accused.

8. So for the foregoing reasons, I believe that the appellants had caused the injuries to the deceased without any premeditation in a sudden fight between them which took place at spur of the moment and they had not taken any undue advantage or acted in cruel and unnatural manner and admittedly, they had not repeated any blow to the deceased. Therefore, in these circumstances, conclusion is inevitable that as the prosecution remained successful to prove its case against the appellants but they cannot be convicted under section 302(b) P.P.C for the reasons discussed supra, hence, I hereby partly allow the instant appeal and convert convictions and sentences of the appellants from section 302 (b) P.P.C to section 302 (c) P.P.C and their sentences are reduced from imprisonment for life to fourteen (14) years rigorous imprisonment. However, amount of compensation under section 544-A Cr.P.C. imposed upon them by the learned trial Court, mode of its recovery and imprisonment in default thereof, shall remain intact. Benefit of section 382-B Cr.C.P. is also extended to them.

9. So far as Criminal Revision No.70854 of 2022 for enhancement of sentence of the appellants and co-accused Muhammad Aslam/respondents Nos.2 to 4, filed by the complainant is concerned, since the learned trial Court while awarding sentence to the appellants noted certain mitigating circumstances, which seem not only to be reasonable but case of the appellants has come within the ambit of section 302(c) P.P.C instead of 302(b) P.P.C as discussed above and respondent No.4 has also been rightly awarded sentence as per injury attributed to him, hence, I find that there is no substance in this petition for enhancement of sentences of the appellant and their co-accused, which is accordingly dismissed .

JK/M-69/L Petition dismissed.