IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 213 of 2020

Appellant: Sanaullah through Mr. Ajab Khan Khattak advocate

The State: Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 03.11.2022

Date of judgment: 03.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant committed murder of Alamgir by causing him fire shot injury, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned X-Additional Sessions Judge, Karachi West, vide judgment dated 30.01.2020, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

2. At the very outset, it is stated by the learned counsel for the appellant that the incident has taken place as a result of sudden flare up therefore, under instructions, he would not press the disposal of instant jail appeal for its disposal on merits, provided the sentence awarded to the appellant is reduced to one which he has already undergone by modifying the penal section, which is not opposed by learned Addl. P.G for the State.

3. Heard arguments and perused the record.

4. The FIR of the incident is lodged with delay of about 02 days. Complainant Jehangir Badshah is not an eye-witness to the incident. The deceased was the brother of wife of the appellant and there was no ill-will between them. The evidence of PWs Syed Hassan and Mst. Nasreen apparently suggests that the incident has taken place as a result of sudden flare up, on account of visit of the deceased to the house of the appellant. In these circumstances, the conviction awarded to the appellant under section 302(b) PPC is modified to one under Section 302(c) PPC, consequently, the appellant is sentenced to undergo imprisonment for 14 years with compensation of Rs.100,000/- payable to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 month with benefit of section 382(b) Cr.P.C.

5. 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.”

6. Subject to above modification, instant jail appeal fails and it is dismissed accordingly.

JUDGE