IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 175 of 2018

Appellant: Noman through Mr. Farhad Khan advocate

The State: Through Mr. Faheem Hussain Panhwar, DPG for the State

Date of hearing: 23.08.2022

Date of judgment: 29.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant fired and injured Muhammad Ali and Muhammad Saleh with intention to commit their murder. Eventually Muhammad Saleh died of such injuries, for that the present case was registered at the instance of Muhammad Ali. After due trial, the appellant was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- and was further convicted under Section 324 PPC and was sentenced to undergo R.I for 04 years and to pay fine of Rs.25,000/-. In case of default in payment of fine, he was ordered to undergo simple imprisonment for one year. All the sentences were directed to run concurrently with benefit of section 382-B Cr.P.C, by learned IX-Additional Sessions Judge, Karachi South, vide judgment dated 27.01.2018, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; there is no recovery of crime weapon from the appellant and the evidence so produced by the prosecution being defective and inconsistent has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt and alternatively he prayed for reduction of the sentence to the appellant to one which he has already undergone by modifying the penal section with regard to murder. In support of his contentions, he has relied upon the case of Raza and another vs. The State and others (2020 SCMR 1185).

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by the complainant in his FIR that the incident took place on account of repair of his house, which was objected by appellant. Contrary to this, it was stated by him at trial that prior to the date of incident he slipped from his motorcycle, which hit to rickshaw and he then went for his work. On the date of incident, there came the appellant and asked him that he has not behaved with him properly and then threatened and abused him, thereafter, he took out the pistol and fired at him which hit on his right foot and left knee; the appellant also fired at Muhammad Saleh, who was doing labour there, the Mohalla people attracted to the incident and then they took him and Muhammad Saleh to Civil Hospital, Karachi. Muhammad Saleh eventually died of such injuries for that the present case was registered. So far factum of incident is concerned, the complainant is supported in his version by P.Ws Muhammad Tahir, Saifuddin, Muhammad Ismail and Shahzeb. All of them have stood by their version on all material points, despite lengthy cross-examination, therefore, they could not be disbelieved only for the reason that they are related inter-se or on friendly terms with each other. Of course there is no recovery of crime weapon from the appellant. In that context, it was stated by I.O SIP Javed Iqbal that on asking it was told to him by the appellant that he has thrown the crime weapon in Nala. By such act, the appellant defeated the recovery, therefore, he could not be benefited for his wrong doing. The medical evidence also supports the case of prosecution. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

6. However, so far punishment awarded to the appellant for offence punishable under Section 302(b) PPC is concerned, it needs to be modified for the reason that dispute of the appellant, if any, was with the complainant and he was having no enmity, ill-will or grudge with the deceased, who obviously has lost his life after sustaining fire shot injuries, without premeditation. In these circumstances, the punishment awarded to the appellant for offence punishable under Section 302(b) PPC is converted to one under Section 302(c) PPC consequently, the appellant is convicted and sentenced to undergo rigorous imprisonment for 14 (Fourteen) years and to pay fine of Rs.100,000/- payable to the legal heirs of the deceased as compensation and in default whereof to undergo simple imprisonment for 06 months.

7. In the case of Fayyaz Ahmed and others vs. Muhammad Khan and others (2020 SCMR 281), it has been held by the Honourable Apex Court that;

“4.    The facts and circumstances of the case clearly demonstrate that the encounter between the parties was a chance and sudden encounter and there was no premeditation involved in this case. In this sudden occurrence only one blow was given by Rozi Khan appellant to Safdar Ali deceased and despite an opportunity being available in that regard he had not repeated that blow. In the heat of passion at the spot no undue advantage had been taken by the appellants and they had not acted in any manner which could be termed as cruel or unusual. For all these reasons we have concluded that the actions attributed to the appellants attracted the provisions of section 302(c), P.P.C. With this conclusion we hold that the trial court was quite justified in convicting and sentencing Fayyaz Ahmed appellant for an offence under section 302(c), P.P.C. and the conviction and sentence of Rozi Khan appellant for an offence under section 302(b), P.P.C. were unjustified.”

8. Needless to say that the punishment awarded to the appellant for an offence punishable under Section 324 PPC would remain same. All the sentences awarded to the appellant to run concurrently with benefit of section 382-B Cr.P.C.

9. The instant appeal is disposed of in above terms.

JUDGE