IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 72 of 2020

Appellant: Riaz Hussain through Mr. Iftikhar Ahmed Shah advocate

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

Date of hearing: 28.11.2022

Date of judgment: 28.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant committed murder of Mst. Naheed Akhtar by causing her danda and knife injuries, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo life imprisonment as Tazir and to pay compensation of Rs.200,000/- to the legal heirs of the deceased with benefit of section 382(b) Cr.P.C by learned V-Additional Sessions Judge, Karachi East, vide judgment dated 07.12.2019, 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 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. Admittedly complainant Muhammad Kaleem and P.W Muhammad Ali are not eye witnesses to the incident. It was stated by P.W Mst. Aiman that on the date of incident when her mother Mst. Naheed Akhtar was preparing juice, was attracted to the quarrel arose between the appellant and his wife Mst. Shazia, she intervened and attempted to stop such quarrel, on that she was abused by the appellant, who then caused her danda and knife injuries and then fled away, her mother was shifted to the hospital where she died, the incident was reported to the police by her father Muhammad Kaleem. Her evidence, which appears to be trustworthy, prima facie suggests that the incident has taken place as a result of sudden flare without any element of ill-will or motive and perhaps in that context learned counsel for the appellant is seeking for modification of penal section.

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. In view of above, the conviction awarded to the appellant under section 302(b) PPC is modified under Section 302(c) PPC, consequently, the appellant for the said offence is sentenced to undergo rigorous imprisonment for 14 years and to pay compensation of Rs.200,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C.

7. Subject to above modification, instant jail appeal is disposed of.

JUDGE