PLJ 2023 Cr.C. (Note) 196
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
KHALIQ PERVAIZ--Appellant
versus
STATE and another--Respondents
Crl. A. No. 73225 of 2017, heard on 19.5.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Conviction and sentence--Challenge to--The circumspective perusal of prosecution evidence and the, defence version unfolds that guilty verdict awarded to appellant is in consonance with record and is not open to any legal exception--So far as, conviction awarded u/S. 302(b), P.P.C. to appellant is concerned, it calls for an interference of this Court--Incident was not an outcome of premeditation rather occurred due to a petty dispute--Secondly, appellant and even his acquitted co-accused were not armed with any firearm or sharp edged weapons rather were equipped with non- conventional weapons like clubs etc--Thirdly, it is noted that club blow attributed to appellant was not inflicted with some extra force as no corresponding fracture was observed by Dr. (PW.6) on given locale which was skull of deceased--Even, (appellant) is not ascribed role of repeating any further club blow to deceased and indeed he opted against it--It will not be an over-exaggeration to say that from attending circumstances it convincingly emerges that (appellant) was not having intention to take life of deceased but apparently his objective was to inflict traumas for satisfying his vengeance arising out of earlier incident wherein hot words were exchanged--In same context a pressing need is felt to mention here that in order to hold a person liable for committing offence under Section 302(b), P.P.C., prosecution is obliged to prove that while inflicting fatal injury perpetrator was having ultimate intention to take life of a victim and knowledge that his act is so imminently dangerous that in all circumstances it will be dangerous to life of his adversary--Appeal disposed of.
[Para 13] A & B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 315 & 316--Qatl shibh-i-amd-- There is no cavil to proposition that every criminal wrong, if proved appropriately by prosecution, must entail consequences of a conviction--At same time it goes without saying that Courts are to administer justice and such objective can only be achieved by deciding ultimate fate of cases in accordance with expressed provisions of law--In same stretch question of foremost importance arises that prosecution accusations in instant case give rise to which penal provision so as to award conviction to appellant--After having eloquently perused provisions of Chapter XVI of The Pakistan Penal Code 1860, it is observed that case of appellant squarely comes within purview of Qatl Shibh-i-amd which is defined in Section 315, P.P.C.-- The language of Section 315, P.P.C. is explicit in sense and leaves no room for discussion that if injury caused by an accused to victim is not likely to cause death of victim in ordinary course of nature, he is to be convicted with quantum of sentence provided under Section 316, P.P.C--In arriving at conclusion about applicability of Section 316, P.P.C. [Para 13] C & D
2004 YLR 107.
Mr. Irfan Riaz Gondal, Advocate for Appellant.
Ms. Noshe Malik, Deputy Prosecutor General Punjab for State.
M/s. Mudassar Nazeer Chatha and Muhammad Waqas Jatt, Advocates for Complainant.
Date of hearing: 19.5.2022.
Judgment
Through the instant appeal Khaliq Pervaiz (appellant) has challenged the vires of judgment dated 30.06.2017 passed by learned Additional Sessions Judge, Phalia, District Mandi Bahauddin in a trial held in case FIR No. 147, dated 18.07.2016 under Sections 302, 337-A(i), 337-A(ii), 337-L(2), 147 & 149, P.P.C., registered at Police Station Pahrianwalai, whereby, he was convicted under Section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. to the tune of Rs. 300,000/- and in default whereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C., however was extended to the convict.
2. Precisely stated the case of prosecution as unfolded from the crime report (Exh.PD) got lodged by Sameer Irfan (PW.10) is to the effect that on 18.07.2016 at about 9:30 a.m. he was present in the Dera of his paternal uncle Muhammad Shahbaz, whereas Shahzeb Irfan, Shahbaz Ahmad, Zulfiqar Ahmad and Arfaz Ahmad were busy in making a speed breaker in front of Dera of Shahbaz Ahmad; that meanwhile Muhammad Aadil accused came there on a tractor and dismantled the speed breaker on which hot words were exchanged between them; that Muhammad Aadil while leaving the spot extended threats that they should stay there as he was coming back to avenge; that thereafter at about 10:00 a.m. accused, namely, Noor Muhammad, Khaliq Parvaiz, Muzamal Hussain, Shahzad Anjum, Muhammad Adnan, Muhammad Aadil, Akhtar Hussain, Mushtaq Ahmad, Ahtsham Elahi and Muhammad Zafar all armed with clubs came there; that Akhtar Hussain exhorted that Shahbaz etc. be taught a lesson, whereupon Khaliq Parvaiz inflicted a club blow which landed upon head of Shahbaz Ahmad, Shahzad Anjum accused inflicted a sota blow which landed on the head of Zulfiqar Ahmad, Noor Muhammad gave a sota blow on the right eye of Zulfiqar Ahmad, Aadil gave a club blow on head of Shahzeb Irfan, Ahtsham Elahi inflicted a sota blow near left wrist of Shahzeb Irfan and Muhammad Hussain inflicted a sota blow which hit Afraz Ahmad just above his forehead; that all the injured fell down and the accused persons gave fists and kicks blows to them; that the witnesses attracted to the spot on which accused fled away; that due to precarious condition Shahbaz Ahmad was referred to Aziz Bhatti Shaheed Hospital, Gujrat where Neurosurgeon was not available so he was taken to PIMS Hospital Islamabad but he succumbed to the injuries. The motive behind the occurrence was a passage dispute.
3. The investigation of the case was conducted by Saqib Shahzad S.I. (PW.7). On 18.07.2016 he along with other police officials was present at Bus stop Hasalanwala on official vehicle where he recorded statement (Exh.PZ) of complainant Sumair Irfan and sent the complaint to the police station. He also collected death certificate (P.1) of Shahbaz Ahamd which he took into possession through recovery memo (Exh.PG). He inspected the dead body, prepared injury statement (Exh.PF), inquest report (Exh.PH) and dispatched the dead body for its autopsy. Thereafter he proceeded to the place of occurrence and prepared visual site plan (Exh.PK) and got prepared scaled site plan (Exh.PC) from draftsman. On 02.08.2016 he arrested accused Khaliq Pervaiz. He interrogated the accused who made disclosure and got recovered Danda (P8) which was taken into possession through recovery memo (Exh.PQ). He recorded statements of the witnesses under Section 161, Cr.P.C. Thereafter, on conclusion of investigation, report under Section 173, Cr.P.C. was submitted in the Court whereupon, the trial of the case was held.
4. During trial the prosecution, in order to prove its case against the appellant produced thirteen PWs including Sumair Irfan (PW.10), Shahzeb Irfan (PW.11) and Zulfiqar Ahmad (PW.12) who are eyewitness of the occurrence, Saqib Shahzad SI (PW.7) who investigated the case, whereas Dr. Muhammad Saeed Ahmad (PW.6) conducted autopsy on the body of Shahbaz Ahmad and issued post-mortem examination report (Exh.PE) and pictorial diagrams (Exh.PE/1), Dr. Shahid Naseem (PW.8) who examined Shahbaz Ahmad in injured condition vide MLC (Exh.PAA), Zulfiqar through MLC (Exh.PBB), Shahzeb vide MLC (Exh.PCC) and Faraz Ahmad through MLR (Exh.PDD).
5. After the conclusion of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. The appellant refuted the allegation against him and pleaded his innocence. The appellant neither opted to appear under Section 340 (2), Cr.P.C. nor produced any evidence in his defence. After the completion of trial, the appellant was convicted and sentenced by the learned trial Court as afore- stated, hence, the Instant appeal.
6. It is contended by learned counsel for the appellant that the case in hand was registered with an unexplained delay of about 10/11 hours which adversely reflects upon the case of prosecution; that the eyewitnesses miserably failed to prove their acclaimed presence at the spot and even otherwise contradicted each other on all material points; that the detail of incident furnished by the eyewitnesses otherwise runs contrary to the medical evidence thus lost its credibility; that the similarly placed co-accused were acquitted from the case thus on the same set of evidence conviction awarded to the appellant cannot be upheld; that during investigation as well as during trial it was proved that the complainant side was aggressors and injuries were also inflicted not only to the appellant but also to his co-accused; that the motive canvassed by the prosecution also remained unproved thus no corroboration can be sought therefrom and that since the prosecution miserably failed to prove its case against the appellant thus the conviction awarded to him calls for interference.
7. On the other hand, learned law Officer assisted by learned counsel for the complainant submits that though there is some delay in the registration of FIR but it was reasonably explained during trial; that the incident occurred in front of the house belonging to the complainant and all the witnesses are residents of the same place thus no exception can be taken about their acclaimed presence; that the presence of the eyewitnesses at the spot even was not challenged by the defence during trial; that the eyewitnesses remained consistent during trial and furnished confidence inspiring detail of the incident; that the role ascribed to the appellant is amply supported from the medical evidence furnished during trial; that no evidence whatsoever was led during trial in support of the claim of appellant and his co-accused about receipt of injuries during incident; that the witnesses had no previous enmity with the appellant so as to falsely implicate him in the case and that since the prosecution successfully proved its case against the appellant hence, the conviction awarded to him needs no interference.
8. Arguments heard and record perused.
9. It divulges from the perusal of record that on 18.07.2016 earlier a dispute arose between the two sides upon erecting a speed breaker in front of the house belonging to Muhammad Shahbaz and hot words were exchanged between Muhammad Aadil and witnesses. Subsequent thereto, Muhammad Aadil left the spot while extending threats of dire consequences and shortly thereafter re-emerged on the scene at 10:00 a.m along with others including the appellant while having clubs and sticks in their hands. The perpetrators after arriving at the scene resorted to violence which ended with injuries to Shahbaz Ahmad (deceased), Shahzeb (P.11) and Zulfiqar (PW.12). Injury on the skull of Shahbaz Ahmad (deceased) statedly inflicted by Khaliq Parvaiz (appellant) proved fatal and he died later in the night while being provided medical treatment in the hospital. The information of the crime was furnished to police by Sameer Irfan (PW.10) through his oral statement (Exh.PZ) made at 9:10 p.m. on the same day. Admittedly there is afflux of about 11-hours between the incident and reporting of crime to police and normally such delay is considered a circumstance adverse to the case of prosecution. So far as the case in hand is concerned, it is noticed that a justifiable and legally acceptable explanation is discernible from the record regarding the delay so occurred in the registration of FIR. In this regard, it is observed that the police station was situated approximately at a distance of 10 ½ miles from the crime scene and immediately after the incident Shahbaz Ahmad was taken to RHC in injured condition. On account of his deteriorating condition, Shahbaz Ahmad was referred to Aziz Bahtti Hospital Gujrat from where he was further advised to be taken to PIMS, Islamabad. In precarious condition, Shahbaz Ahmad reached PIMS hospital Islamabad at 04:45 p.m. and took his last breath while receiving medical treatment, as is evident from death certificate (Exh.P1). Needless to mention here that in the given circumstances primary interest of the witnesses was to provide medical treatment to Shahbaz Ahmad (deceased) for saving his life and registration of FIR was a secondary issue for them. Matter was reported to police when the witnesses returned home along with dead body of the deceased from PIMS Hospital, Islamabad. In the forgoing circumstances, I am of the considered view that though there is some delay in reporting the matter to police but since this was due to circumstances beyond the control of the witnesses hence, by no stretch can be considered as circumstance adverse to the case of prosecution.
10. During trial, the ocular account of the incident was furnished by complainant Sameer Irfan (PW.10), injured Shahzeb (PW.11) and Zulfiqar Ahmad (PW.12), whereas Afraz Ahmad was given up as being unnecessary. All the aforementioned witnesses deposed about the incident and burdened appellant with the allegation of having participated in the incident. From the scanning of record, multiple factors emerged which reflect positively upon the credibility of the witnesses, persuading this Court to place explicit reliance upon them. Firstly, it is observed that the witnesses forgave all the accused other than the appellant and made statements for their acquittal. Out of the acquitted accused, Noor Muhammad was related with the appellant as brother, Mushtaq Ahmad as father-in-law, Anjum Shahzad as nephew, Muzamal Hussain as nephew, Adnan Ahmad as nephew and Aadil Munir as son. Though co-accused were closely related with the appellant but still legal heirs of the deceased and two injured witnesses got them acquitted from the case through compounding of respective offences. Inevitably, it convincingly emerges from the foregoing circumstances that the case in hand is not of wider net and the witnesses had no grudge, grouse or vengeance for false implication of any person in the case. Secondly, it is noticed that there was no previous outstanding dispute of short or long duration between the parties and indeed no untoward incident had ever occurred between them. Thirdly, it is observed that the two eyewitnesses namely Shahzeb and Zulfiqar (PW.11 & PW.12) also received injuries during the incident which were duly proved through medical evidence brought on record by Dr. Shahid Naseem (PW.8) and from their respective MLCs exhibited as Exh. PBB and Exh.PCC. The claim of witnesses about receipt of injuries during the incident and genuineness of MLCs so furnished in medical evidence remained unchallenged during trial as nothing to the contrary was brought on record by the defence. In the given circumstances, injuries on the persons of both the eyewitnesses can be termed as stamp of their presence at the spot. Keeping in view the fact that none of the prosecution witnesses had any motive to falsely implicate the appellant in the commission of crime, their deposition is found credible and calls for acceptance. Fourthly, it is observed that the incident occurred on the doorstep of Shahbaz Ahmad (deceased) and all the witnesses were having abode at the same place. The occurrence took place in the early hours of the day and nothing is available on record from which it may be held that at the eventful time the witnesses should have been present at some other place on account of their daily pursuit of life. In the given circumstances a conclusion is inevitable that the claim of witnesses about their presence at the spot is not open to any legal legitimate exception. Even otherwise, the bona fide of the witnesses is evident from the fact that they forgave co-accused despite their active participation in the commission of crime.
11. In the wake of facts mentioned above, the deposition of the eyewitnesses is perused from which it evinces that they exclusively held Khaliq Pervaiz (appellant) responsible for causing club blows on the skull of Shahbaz Ahmad (deceased) which led to his death. Besides that the witnesses are also found to have provided all the essential details of the incident regarding the motive, time of first and second incident, mode and manner in which these took place, arrival of appellant along with others at the spot and the nature of weapons used in the commission of crime as well as the locale of injuries inflicted during incident. Even about the events which followed the main incident all the witnesses were found to be on same page as none out of them contradicted each other regarding the manner in which Shahbaz Ahmad (deceased) was shifted to hospital, the places where he was provided medical treatment, the time of his death and lodging of complaint before the police regarding the aggression of appellant and his co-accused. Even the acquittal of other perpetrators in the case cannot come to the rescue of defence, as witnesses and the legal heirs of the deceased showed grace by forgiving them from the charge. The compromise affected between them to the extent of co-accused is also a factor from which it divulges the bona fide, good faith and credibility of the witnesses.
12. I have also pondered in detail upon the medical evidence Furnished by Dr. Shahid Naseem (PW.8) and Dr. Muhammad Saeed Ahmad (PW.6) and no discrepancy is found alluding from their respective depositions. Dr. Shahid Naseem (PW.8) provided initial medical treatment to Shahbaz Ahmad (deceased) as well as to the injured witnesses whereas, Dr. Muhammad Saeed Ahmad (PW.6) conducted autopsy. During examination, Dr. Shahid Naseem (PW.8) observed a lacerated wound measuring 7 cm x 1 cm on the vertex of Shahbaz Ahmad and needless to mention here the nature of injury, the time and duration of its receipt is in absolute conformity with the ocular account furnished during trial. Same situation emerges from the in-depth scrutiny of the record so far as it relates to the deposition of Dr. Muhammad Saeed Ahmad (PW.6). Inexorably, after having scanned the medical evidence an inevitable conclusion can be drawn that it is providing due legal strength to the case of prosecution, thus is a factor which runs against the appellant.
13. The circumspective perusal of the prosecution evidence and the defence version unfolds that guilty verdict awarded to the appellant is in consonance with record and is not open to any legal exception. So far as, the conviction awarded under Section 302(b), P.P.C. to the appellant is concerned, it calls for an interference of this Court. In this regard firstly it is observed that the incident was not an outcome of premeditation rather occurred due to a petty dispute. Secondly, it is noticed that the appellant and even his acquitted co-accused were not armed with any firearm or sharp edged weapons rather were equipped with non- conventional weapons like clubs etc. Thirdly, it is noted that the club blow attributed to Khaliq Pervaiz (appellant) was not inflicted with some extra force as no corresponding fracture was observed by Dr. Muhammad Saeed Ahmad (PW.6) on the given locale which was skull of Shahbaz Ahmad (deceased). Even, Khaliq Pervaiz (appellant) is not ascribed the role of repeating any further club blow to the deceased and indeed he opted against it. It will not be an over-exaggeration to say that from the attending circumstances it convincingly emerges that Khaliq Pervaiz (appellant) was not having intention to take the life of Shahbaz Ahmad (deceased) but apparently his objective was to inflict traumas for satisfying his vengeance arising out of the earlier incident wherein hot words were exchanged. In the same context a pressing need is felt to mention here that in order to hold a person liable for committing the offence under Section 302(b), P.P.C., the prosecution is obliged to prove that while inflicting fatal injury the perpetrator was having ultimate intention to take the life of a victim and the knowledge that his act is so imminently dangerous that in all circumstances it will be dangerous to the life of his adversary. While holding so, I have taken into consideration the language of Section 300, P.P.C. wherein Qatl-e-amd is defined in following manner:
“Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd.”
There is no cavil to the proposition that every criminal wrong, if proved appropriately by the prosecution, must entail consequences of a conviction. At the same time it goes without saying that Courts are to administer justice and such objective can only be achieved by deciding the ultimate fate of cases in accordance with expressed provisions of law. In the same stretch the question of foremost importance arises that the prosecution accusations in the instant case give rise to which penal provision so as to award conviction to the appellant. After having eloquently perused the provisions of Chapter XVI of The Pakistan Penal Code 1860, it is observed that the case of appellant squarely comes within the purview of Qatl Shibh-i-amd which is defined in Section 315, P.P.C. in following manner.
“Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or any act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-amd.”
(emphasis provided)
The language of Section 315, P.P.C. is explicit in sense and leaves no room for discussion that if the injury caused by an accused to the victim is not likely to cause the death of victim in the ordinary course of nature, he is to be convicted with the quantum of sentence provided under Section 316, P.P.C. In arriving at the conclusion about the applicability of Section 316, P.P.C. in the instant case, guidance is sought from the case reported as Ashraf and 3 others v. The State (2004 YLR 107) and an extract therefrom is being referred hereunder:
“Since the appellant used the backside of the hatchet which in the ordinary course of nature was not likely to cause death but only to cause harm to the body. The offence is thus punishable under Section 316, PPC.”
14. Keeping in view the fact that appellant inflicted a solitary club blow on the skull of deceased which was not having a corresponding fracture, the conviction and sentence of appellant under Section 302 (b) PPC is set-aside and instead he is convicted under Section 316, PPC and sentenced to undergo rigorous imprisonment for 14-years along with the payment of Diyat amount i.e. 16,80,320/- (rupees one million six hundred eight thousand, three hundred and twenty only) as per notification dated 1 of July, 2016 vide S.R.O.778 (I)/2016 issued by Government of Pakistan Finance Division (Internal Division Wing), Islamabad. Needless to mention here the sentence of Diyat has been awarded to the appellant, which was prevalent on the date the incident occurred.
15. The instant criminal appeal is disposed of in the above terms.
(A.A.K.) Appeal disposed of
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