25/04/2024, 17:35 2023 M L D 714

2023 M L D 714
[Peshawar]
Before Lal Jan Khattak and Abdul Shakoor, JJ
YASIR IQBAL---Appellant
Versus
The STATE and another---Respondents
Criminal Appeal No. 794-P of 2020, decided on 14th July, 2022.
(a) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---
Ocular account supported by medical evidence---Scope---Accused was charged for
committing murder of the brother of complainant by stabbing---Ocular account had
been furnished by three eyewitnesses comprising driver and passengers of the
coach wherein the deceased was stabbed to death---Driver of the coach stated that
he noted that head of the deceased was resting against the pane of window and the
accused was holding a knife in his hands---Said witness was a natural witness being
driver of the coach wherein the occurrence took place who had deposed in a very
natural way about the occurrence---Said witness had no enmity or ill-will towards
the accused to falsely implicate him in the case, therefore, his testimony could not
be discarded---Evidence furnished by said witness had been supported by two other
witnesses who were travelling in the coach---Other eyewitness at the relevant time
was sitting on the last seat of the vehicle with the accused and the deceased---Said
witness deposed that after covering a journey of 15/20 minutes when the vehicle
reached near the cattle market there the accused attacked the deceased with knife
with which he received injuries on his person whereafter other passengers present
in the vehicle overpowered him and took the knife from him---Like evidence was
furnished by other eyewitness who too was present in the vehicle as one of the
passengers---All the three prosecution witnesses had deposed in a very eloquent
and natural way about the occurrence---Said witnesses were independent witnesses
having no personal grudge to depose falsely against the accused---Ocular account
was supported by medical examination of the deceased according to which he had
two injuries on vital parts of his body caused by knife---Besides, from possession
of the accused, the knife with which he had caused injuries to the deceased too was
recovered---In addition, from the seat of the vehicle where the deceased was sitting
blood had been recovered and also the Investigating Officer took into possession
the last worn blood stained clothes of the accused as well that of the deceased---
Furthermore, complainant of the case appeared before the court who deposed quite
in line with what he had reported in his initial report---Thorough and careful
examination of the case record would show that the prosecution had proved its case
against the accused through cogent and reliable evidence and beyond any
reasonable doubt---However, due to some mitigating circumstances the sentence
was reduced to imprisonment for a period of ten years---Appeal was partially
allowed with modification in sentence.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 1/6
25/04/2024, 17:35 2023 M L D 714

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---
Scope---Accused was charged for committing murder of the brother of complainant
by stabbing---Record showed that the accused had no enmity with the deceased or
any of his family members---According to the record, the accused and the deceased
met each other by chance in the coach and seated on rear seat of the vehicle close to
one and other when all of a sudden the occurrence took place without any
premeditation---Though the defense did not endeavor to bring the case of accused
within the parameter of S. 302(c), P.P.C. as no suggestion of any kind was given to
the prosecution witnesses that the accused had resorted to take the extreme step of
taking the deceased life under sudden and grave provocation or under the heat of
passion nor the accused himself took such plea in his statement recorded under S.
342, Cr.P.C---In order to know about the root cause of the incident and to do
complete justice, police file was perused, it was found therein that the statement of
accused recorded under S. 161, Cr.P.C---According to the statement of accused, he
was seated in the vehicle on its rear seat with the deceased and shortly after
covering some distance he requested the deceased who was seated against the
window seat to slide the window pane so that fresh air could come as he i.e. the
accused was not feeling well and was about to vomit which request was turned
down by the deceased by uttering in "Pashto" on which hot words were exchanged
between the two whereupon the accused took out a knife and pushed it into the
deceased body as a result he received injuries with which subsequently he died---
Circumstances established that the prosecution had proved its case against the
accused but due to some mitigating circumstances the sentence was reduced to
imprisonment for a period of ten years---Appeal was partially allowed with
modification in sentence.
(c) Penal Code (XLV of 1860)---
----S. 302--- Qatl-i-amd--- Offence committed without any premeditation---Scope--
-If some offence is committed without any premeditation and in the heat of passion
and at the spur of moment then in such like situation, the courts of law normally
award minimum sentence to the accused by bring his case under S. 302(c), P.P.C.
(d) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Sentence, reduction in---
Mitigating circumstances---Scope---Accused was charged for committing murder
of the brother of complainant by stabbing---In the present case, there was no
material on the record that just before the occurrence what else had happened than
what was disclosed by the accused in his 161, Cr.P.C. statement---Whether it was
mere refusal of the deceased to slide the window pane or he had uttered something
else towards the accused shrouded in mystery which aspect of the case coupled
with the fact that both the parties were not known to each other before the
occurrence and that the exceeded action of the accused was neither pre-meditated
one nor it was done with any pre-existing mind could be considered to hold that the
murder committed by the accused squarely fell within the ambit of S. 302(c),
P.P.C., instead of S. 302(b), P.P.C.---Sentence was reduced to imprisonment for a
period of ten years---Appeal was partially allowed with modification in sentence.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 2/6
25/04/2024, 17:35 2023 M L D 714

Abid Mehmood for Appellant.

Muhammad Nisar Khan, Additional A.G. for the State.
Jehanzeb Khan Khalil for the Complainant.
Date of hearing: 14th July, 2022.
JUDGMENT
LAL JAN KHATTAK, J.---This appeal is directed against the judgment dated
02.10.2020 of the learned Additional Sessions Judge/Judge Model Criminal Trial
Court, Peshawar, delivered in case FIR No. 1611 dated 01.11.2016 under section
302, P.P.C. of Police Station Chamkani, Peshawar, whereby the appellant has been
convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life
with fine of Rs. 4,00,000/- (four lac) or in default whereof to further undergo six
months' SI. Benefit under section 382-B, Cr.P.C. has been extended to him,
2. Brief facts of the case are that on 01.11.2016, Tahir Khan, SI (PW-9) sent
murasila (Ex.PA/1) to the police station stating therein that on receipt of
information about the occurrence he rushed to the spot and found there the dead
body of one Mian Sharif son of Abdul Ghaffar lying in Flying Coach No. C-
1235/DIR, where brother of the deceased namely Zulfiqar reported him that his
brother was stabbed to death by the appellant in the flying coach wherein both i.e.
the appellant and the deceased were travelling to Chitral from Peshawar. It is worth
to mention that the appellant was overpowered by driver of the coach and was
handed over to police on the spot.
3. On conclusion of investigation, challan was put in Court which indicted the
accused for commission of the offence to which he pleaded not guilty and claimed
trial. Prosecution in order to substantiate its case produced and examined 13
witnesses in all, whereafter statement of the accused was recorded wherein he
professed his Innocence. The learned trial court, after conclusion of the trial, found
him guilty of the charge and while recording his conviction sentenced him as
mentioned above.
4. Arguments heard and available record gone through.
5. Perusal of the case record would show that in support of its case, prosecution
produced and examined 03 eye-witnesses to the occurrence namely Abdul Wahab,
Ameer Khan and Ameer-ud-Din as PWs-4, 5 and 6 respectively. PW-4 Abdul
Wahab was driver of the flying coach wherein the deceased was stabbed to death.
He deposed before the court that on the day of occurrence he took his flying coach
from Peshawar Adda for Chitral with passengers and when the vehicle reached near
the cattle market, there he heard shouting of the passengers on which he stopped his
vehicle and noted that head of the deceased was resting against the pane of window
and the appellant was holding a knife in his hands. PW-4 is a natural witness being
driver of the vehicle wherein the occurrence took place who has deposed in a very
natural way about the occurrence. He had no enmity or ill-will towards the
appellant to falsely implicate him in the case, therefore, his testimony cannot be
discarded.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 3/6
25/04/2024, 17:35 2023 M L D 714

6. The evidence furnished by PW-4 has been supported by PW-5 and PW-6 who
were travelling in the coach. PW-5 namely Ameer Khan at the relevant time was
sitting on the last seat of the vehicle with the appellant and the deceased. He
deposed that after covering a journey of 15/20 minutes when the vehicle reached
near the cattle market there the appellant attacked the deceased with knife with
which he received injuries on his person whereafter other passengers present in the
vehicle overpowered him and took the knife from him. Like evidence was furnished
by PW6 namely Ameer ur Din who too was present in the vehicle as one of the
passengers. All the three prosecution witnesses have deposed in a very eloquent
and natural way about the occurrence. They were independent witnesses having no
personal grudge to depose falsely against the appellant. The ocular account is
supported by medical examination of the deceased according to which he had two
injuries on vital parts of his body caused by knife. Besides, from possession of the
appellant, the knife with which he had caused injuries to the deceased too was
recovered. In addition, from the seat of the vehicle where the deceased was sitting
blood has been recovered and also the investigation officer took into possession the
last worn blood stained clothes of the appellant as well that of the deceased.
Furthermore, complainant of the case appeared before the court as PW-7 who
deposed quite in line with what he had reported in his initial report (Ex.PA/1).
7. Thorough and careful examination of the case record would show that the
prosecution has proved its case against the appellant through cogent and reliable
evidence and beyond any reasonable doubt and the conclusion drawn by the learned
trial Court leading to establishing the charge against him are borne out of the case
evidence to which no exception could be taken by this Court.

8. However, the moot question for determination before this court is that
whether the appellant's case falls under section 302(b), P.P.C. as has been held by
the learned trial Court or same comes within the purview of section 302(c), P.P.C.
Record shows that the appellant had no enmity with the deceased or any of his
family members. According to the record, the appellant and the deceased met each
other by chance in the Chitral bound flying coach and seated on rear seat of the
vehicle close to one and other when all of a sudden the unfortunate occurrence took
place without any premeditation. Though the learned defense counsel did not
endeavor to bring the appellant's case within the parameter of section 302(c), P.P.C.
as no suggestion of any kind was given to the prosecution witnesses that the
appellant had resorted to take the extreme step of taking the deceased life under
sudden and grave provocation or under the heat of passion nor the appellant himself
took such plea in his statement recorded under section 342, Cr.P.C. but in order to
know about the root cause of the incident and to do complete justice we perused the
police file by taking it from the learned Additional A.G. and found therein the
appellant's statement recorded under section 161, Cr.P.C. According to the
appellant's ibid statement he was seated in the vehicle on its rear seat with the
deceased and shortly after covering some distance he requested the deceased who
was seated against the window seat to slide the window pane so that fresh air could
come as he i.e. the appellant was not feeling well and was about to vomit which
request was turned down by the deceased by uttering in "Pashto" on which hot
words were exchanged between the two whereupon the appellant took out a knife

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 4/6
25/04/2024, 17:35 2023 M L D 714

and pushed it into the deceased body as a result he received injuries with which
subsequently he died. It is worth to mention that the learned Additional A.G. and
learned counsel for the complainant did not dispute the version given by the
appellant in his 161, Cr.P.C. statement.
9. In the situation mentioned above, we are of the considered view that the
appellant has committed the offence under the heat of passion and without any
premeditation and it is well settled that where some offence is committed without
any premeditation and in the heat of passion and at the spur of moment then in such
like situation, the courts of law normally award minimum sentence to the accused
than the normal one by bring his case under section 302(c), P.P.C.
10. Learned counsel for the complainant vehemently argued that as the appellant
had acted harshly by inflicting two successive serious injuries to the deceased on
vital parts of his body, therefore, his case does not fall under section 302(c), P.P.C.
We are not in agreement with what learned counsel for the complainant has
submitted at the bar to the ibid effect because when under the heat of passion some
act is done then its magnitude cannot be weighed in golden scale as it is not
expected from a mentally disturbed person to main certain limits while committing
a crime with disturbed mind.
11. Request of the appellant from the deceased to slide the window-pane as by
then he was not feeling well and the latter's obstinacy in this respect caused stirs in
the former's disturbed mind which though in the ordinary course of event cannot be
made a ground to downgrade the murder but it is settled that each criminal case is
decided on its own facts and circumstances. There is no material on the record that
just before the occurrence what else had happened than what is disclosed by the
appellant in his 161, Cr.P.C. statement. Whether it was mere refusal of the deceased
to slide the window pane or he had uttered something else towards the appellant
shrouds in mystery which aspect of the case coupled with the fact that both the
parties were not known to each other before the occurrence and that the exceeded
action of the appellant was neither pre-meditated one nor it was done with any pre-
existing mind can be considered to hold that the murder committed by the appellant
squarely falls within the ambit of section 302(c), P.P.C. instead of section 302(b),
P.P.C. and it is held so by us.
12. After holding that the murder committed by the appellant comes within the
parameter of section 302(c), P.P.C. the next question would be about the period of
imprisonment to be awarded to him. In our considered opinion, the ends of justice
would meet if a sentence of 10 years imprisonment is awarded to him keeping In
view of the circumstances of the case.
13. For what has been discussed above, we partially allow this appeal, modify
the impugned judgment of the learned trial court and consequently conviction of
the appellant is converted from section 302(b), P.P.C. to section 302(c), P.P.C. and
his sentence is reduced to ten years (10) rigorous imprisonment with benefit under
section 382-B, Cr.P.C., however, he shall pay the fine of Rs. 4,00,000/- as
compensation to legal heirs of the deceased and in default whereof shall suffer six
months' SI.
JK/211/P Order accordingly.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 5/6
25/04/2024, 17:35 2023 M L D 714

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2023P2515 6/6