ALAM KHAN Versus THE STATE

This judgment will dispose of Criminal Appeal No,116-J of 1998 filed by Alam Khan appellant, who was convicted and sentenced by learned Additional Sessions Judge-III, Mianwali on 21-7-1998 to undergo life imprisonment under section 302 (c), P.P.C. He was also directed to pay Rs,2,00,000 (two lacs) as compensation to the legal heirs of the deceased, in default three years R.I. Benefit of section 382-B, Cr.P.C., was also granted to the appellant.

2.This is a Jail appeal. I appoint Mr. Muhammad Anwar Khokhar, Advocate to defend the appellant at State expense.

3.The allegation against the appellant is that on 6-9-1995, he had killed his brother Abdul Rehman. The matter was reported to the police on 7-9-1995 at 7-00 a.m., by one Ghulam Rasool complainant through complaint Exh.P.C. Appellant was armed with hatchet and he caused injury on the head of Abdul Rehman, who fell down and was immediately removed to the hospital but he succumbed to his injury.

4.The motive behind the present occurrence was that there was a dispute between deceased and the appellant regarding the distribution of domestic articles.

5.After the registration of F.I.R., Exh.P.C., Investigating Officer, despatched the dead body of the deceased to the hospital for post-mortem. He collected blood-stained earth and secured the same into a sealed parcel vide memo. Exh.P.D., recorded the statements of the P.Ws. Appellant remained fugitive from law and was declared proclaimed offender. Ultimately, appellant was arrested in this case on 28-4-1997 and he led to the recovery of hatchet P.2, which was taken into possession vide memo. Exh.P.B.

6.Prosecution had produced 12 witnesses in all to prove its case, then the statement of the appellant was recorded under section 342, Cr.P.C., wherein he pleaded innocence and stated that he was falsely implicated in the instant case and during the altercation, all of a sudden the deceased fell down on the ground and struck against the sharp-edged article lying on the ground and died there and then. Two eye-witnesses were produced by the prosecution namely Ghulam Rasool complainant P.W.5 and Mst. Kaneez Fatima P.W.6 wife of Abdul Rehman deceased.

7.Learned counsel for the appellant has read before me the prosecution evidence, the statement of the appellant recorded under section 342, Cr.P.C., and makes the following submissions. He submits that eyewitnesses produced by the prosecution were not present at the time of occurrence, that there is delay in lodging the F.I.R., that appellant has been falsely implicated in this case, that mother of the deceased had pardoned the appellant.

8.On the other hand, learned counsel for the State supports the judgment of learned Trial Court.

9.I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned Trial Court. In the instant case, Ghulam Rasool complainant is an independent witness. As far as, Mst. Kaneez Fatima is concerned, she is wife of Abdul Rehman deceased because the occurrence had taken place in her house and she is a natural and star witness of the prosecution. Ocular account is corroborated by medical evidence and the motive furnished by the prosecution. Appellant remained fugitive from law and was declared proclaimed offender. He was arrested in this case one year and seven months after the occurrence. The hatchet recovered from the appellant was not stained with human blood for the reasons that the same was recovered one year and seven months after the occurrence. It was a case of single accused and there is no question of substitution. Prosecution has proved its case through ocular account, corroborated by medical evidence because the doctor, who had conducted the post- mortem examination on the dead body of the deceased had found sharp-edged injury on the head of the deceased, which proved fatal. Appellant was convicted and sentenced by learned Trial Court under section 302-(C), P.P.C., as the mother of both deceased and the appellant has waived his right of "Qisas" and has already pardoned the appellant being mother of the deceased. The conviction and sentence awarded to the appellant under section 302-(C), P.P.C., is set aside and he is convicted under section 311, P.P.C., to undergo 14 years R.I. As "Tazir". However, the sentence of fine is also set aside because no fine can be imposed under section 311, P.P.C. Appellant is also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C., in default thereof six months R.I. With these observations, this appeal stands disposed of.