ASIF HUSSAIN Versus State

MALIK SHAHZAD AHMAD KHAN, J.--- Asif Hussain, petitioner was tried by the learned Additional Sessions Judge, Sialkot, pursuant to a case FIR No.472/2012, dated 27.11.2012, under section 302 P.P.C., Police Station Civil Lines, Sialkot. The learned Trial Court vide its judgment dated 21.03.2014, convicted the petitioner under Section 302(b), P.P.C. and sentenced him to death as Ta zir. He was also directed to pay Rs.2,00,000/- as compensation to the legal heirs of the deceased and in default whereof to further undergo six (06) months simple imprisonment. In appeal, the learned High Court while maintaining the conviction of the petitioner under Section 302(b), P.P.C., altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default thereof were maintained. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner.

2.Arguments heard. Record perused.

3.As per brief allegations levelled in the FIR, on 24.11.2012, at about 9.00 p.m, Usman Hussain complainant along with his family members was present in his house. In the meanwhile, his brother Atif Maqsood (deceased), asked Asif Hussain (petitioner), who is also brother of the complainant that people of the locality had made complaints against him of theft etc, whereupon hot words were exchanged between the petitioner and the deceased, whereupon, Asif Hussain (petitioner), inflicted a Churri blow, which landed at the abdomen of Atif Maqsood, who later on succumbed to the said injury, hence the FIR of this case.

4.We have noted that the occurrence in this case took place on 24.11.2012, at 9.00 p.m but the FIR was lodged on 27.11.2012, at 11.20 a.m. It is true that there is a delay of about two (02) days, fourteen (14) hours and twenty (20) minutes in reporting the matter to the police but the said delay has plausibly been explained by the prosecution eye-witnesses while stating that Atif Maqsood (deceased/the then injured), was first taken to the civil hospital, Sialkot through emergency mobile van service i.e., Rescue 1122 within 10/15 minutes from the occurrence, wherefrom he was referred to the Mayo Hospital, Lahore due to his precarious condition, where, he succumbed to the injury on 27.11.2012 and eventually the FIR was lodged on 27.11.2012, when the complainant came back from Lahore to Sialkot. It is the first and foremost priority of the kith and kin of an injured person to save his life instead of rushing towards the police station for lodging of the FIR and as such the conduct of the prosecution eye-witnesses of taking Atif Maqsood (deceased) in injured condition to the hospitals at Sialkot and Lahore, to save his life was quite natural. Moreover, the petitioner was also real brother of the complainant and keeping in view the interse relationship of the parties, it is quite obvious that the complainant was reluctant to lodge the FIR against the petitioner, who was also his real brother. Keeping in view the abovementioned facts, we are of the view that the delay in lodging the FIR has plausibly been explained by the prosecution and the said delay is not fatal to the prosecution case.

5.The ocular account of the prosecution has been brought on the record through Muhammad Ali (PW-9) and Shehzad Hussain (PW-10). The occurrence in this case took place in the area of Hunterpura, Tehsil and District Sialkot. Muhammad Ali (PW-9), is also resident of the area where the occurrence took place. He stated that he was a friend of Atif Maqsood (deceased) and he used to come to the house of the deceased on Saturday night for Gupshup and as the occurrence of this case took place on Saturday, therefore, on the said day he was present in the house of the deceased. Although Shehzad Hussain (PW-11), is not resident of Hunterpura but he categorically stated during his cross-examination that he used to live in the house of Atif Maqsood (deceased) as he was khalazad bhai of the deceased, as well as, the petitioner and as such he has also plausibly explained the reason of his presence at the relevant time, in the house where the occurrence took place. Under the circumstances, the presence of the above-mentioned eye-witnesses at the spot at the relevant time, cannot be declared to be un-natural or improbable. Though Usman Hussain complainant did not appear before the Court as he proceeded aboard before recording of evidence by the learned trial Court but it is by now well settled that it is the quality and not the quantity of evidence which weighs with the Courts to decide any case, therefore, non-appearance of the complainant in the witness box is of no avail to the petitioner, when the prosecution has produced the remaining two eye-witnesses of the occurrence. Both the abovementioned eye-witnesses were cross-examined at length but their evidence could not be shaken. They remained consistence on all material aspects of the case qua the role of the petitioner during the occurrence. Their evidence is confidence inspiring and trustworthy.

6.The medical evidence of the prosecution was brought on the record through Dr. Anil Kumar (PW-1), Dr. Naeem-ul-Hassan (PW-5) and Dr. Yasir Iqbal (PW-14). The said evidence has fully supported the ocular account of the prosecution. According to the prosecution case, Asif Hussain (petitioner), inflicted a Churri blow, which landed at the abdomen of Atif Maqsood (deceased) and the medical evidence also shows that there was a stab wound on the left lower abdomen of the deceased with the dimension of 2.1 cm x 1 cm. As pr prosecution case, the occurrence took place on 24.11.2012, at 9.00 p.m Atif Maqsood died on 27.11.2012, at 4.00 p.m. His postmortem was conducted by Dr. Naeem-ul-Hassan, on 27.11.2012, at 3.05 p.m. As per opinion of the Medical Officer, the probable time that elapsed between the injury and the death was two (02) days and seven (07) hours, whereas the time that elapsed between the death and the postmortem examination of the deceased was about eleven (11) hours. The above-referred timings of injury, death and conducting postmortem examination of the deceased given by the Medical Officer, coincide with the time of occurrence stated by the prosecution eye-witnesses. The nature of injury (stab wound) as stated by the Medical Officer has also supported the ocular account of the prosecution, according to which, the petitioner used a Churri during the occurrence. We are, therefore, of the view that the ocular account of the prosecution is fully supported by the medical evidence.

7.The prosecution case against the petitioner is further corroborated by the recovery of weapon of offence i.e. Churri (P-1), at the pointing out of the petitioner. The occurrence in this case took place on 24.11.2012, at 9.00 p.m, whereas Churri (P-1), was recovered at the pointing out of the petitioner on 02.12.2012 and the same was sent to the office of PFSA on 07.12.2012. As per report of PFSA (Ex.PN), Churri (P-1), was found to be stained with human blood.

8.We are, therefore, of the view that the prosecution has proved its case against the petitioner beyond the shadow of any doubt. However, it is not a case, which attracts the provisions of section 302(b), P.P.C. In our humble view, the provisions of section 302(c), P.P.C., are attracted in this case because admittedly, there was no previous enmity between the petitioner and his brother Atif Maqsood (deceased). Although it was alleged that at the time of occurrence, the deceased asked the petitioner that there were complaints of theft etc against the petitioner from the people of the area but no witness of the area who had lodged such complaint against the petitioner was produced in the prosecution evidence. No FIR, rupt or any application which was filed against the petitioner qua the above-referred allegation was brought on the record. We are, therefore, of the view that the above-referred reason/motive of the occurrence has not been proved in this case against the petitioner through any convincing evidence. It appears that something else had happened, immediately, prior to the occurrence, which provoked the petitioner and he inflicted a single Churri blow on the body of the deceased. The occurrence took place at the spur of moment when hot words were exchanged between the petitioner and his brother Atif Maqsood (deceased) and the occurrence took place. The petitioner inflicted a single injury on the body of the deceased and he did not take any undue advantage during the occurrence by repeating injuries on the body of the deceased. We are, therefore, of the view that the ingredients of offence under section 302(c), P.P.C., are attracted in this case instead of section 302(b), P.P.C. The provision of section 302(c), P.P.C., was introduced through the Qisas and Diyat Ordinance, 1990. It is true that the law makers have not defined that what are the cases falling in clause (c) of section 302 PPC and the matter has been left to the Courts to decide it on a case to case basis but this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) , has declared that there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. read with old section 304, P.P.C. thereof, are cases which were intended to be dealt with under the new clause (c) of section 302, P.P.C. Relevant part of the said judgment at pages Nos. 290 and 291, is reproduced hereunder for ready reference:-

(1).........................

(2).........................

(3)........................

...............................................................................................................................there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. read with old section 304, P.P.C. thereof, are cases which were intended to be dealt with under clause (c) of the new section 302, P.P.C..................................

Exceptions to the old section 300, P.P.C., read as under:-

The above exception is subject to the following provisos:-

Secondly : That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly : That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Exception 2 : Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary of the purpose of such defence.

Exception 3 : Culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due dis-charge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a 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.

Exception 5 : Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Old section 304, P.P.C., is also reproduce hereunder:-

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.

Keeping in view above-mentioned circumstances of the instant case and the above-referred provisions of law and the case law, the case of the petitioner squarely falls within the ambit of Exception 4 of the erstwhile section 300, P.P.C. Reference in this context may also be made to the judgments reported as Azmat Ullah v. The State (2014 SCMR 1178) and Muhammad Abbas and another v. The State (2023 SCMR 487) . The relevant part of the judgment of Azmat Ullah supra at pages Nos. 1180 and 1181, reads as under:-

5. Keeping in view the facts and circumstances of the case this appeal is partly allowed, the conviction of the appellant for an offence under section 302(b), P.P.C. is converted into that for an offence under section 302(c), P.P.C. and consequently his sentence is reduced from rigorous imprisonment for twenty-five years to rigorous imprisonment for ten years.

Likewise, in the case of Muhammad Abbas ibid at page No.492, it was observed as under:-

9.In the light of above discussion, this petition is converted into an appeal and partly allowed. Resultantly the impugned judgment is modified, the conviction awarded to Asif Hussain (appellant), is converted from the charge under section 302(b), P.P.C. to section 302(c), P.P.C. and he is awarded the sentence of twelve (12) years R.I. The compensation and imprisonment in default thereof awarded against the petitioner by the learned trial Court and upheld by the learned High Court are maintained. Benefit of section 382-B Cr.P.C, is also extended to the petitioner/appellant.

JK/A-54/SC Order accordingly.