The State . Vs Muhammad Atif

Stereo HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.44191/2023 Muhammad Atif vs The State, etc.

Murder Reference No.147/2023

The State vs Muhammad Atif

JUDGMENT

Date of hearing: 02.06.2026

Appellant by: Ms. Saiqa Javed, Advocate.

Mr. Haroon Rasheed, Deputy Prosecutor General along State by:

with Saghir Nazir, S.I.

Complainant by: In person.

FAROOQ HAIDER, J.:- This single judgment will dispose of Crl. Appeal No.44191/2023 filed by Muhammad Atif (appellant) against his “conviction & sentence” and Murder Reference No.147/2023 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 24.05.2023 passed by learned Additional Sessions Judge, Bhalwal/trial court.

2.Muhammad Atif (appellant) was tried in case arising out of F.I.R. No.465/2022 dated: 04.12.2022 registered under Sections: 302, 109 PPC at Police Station: Bhalwal Saddar, District Sargodha and trial court after conclusion of the trial, vide impugned judgment dated: 24.05.2023 has convicted and sentenced the appellant; in this regard, relevant portion of paragraph 15 of the impugned judgment is hereby reproduced as under: - “15........So, accused Muhammad Atif is convicted u/s 302 (b) of the PPC and awarded sentence of death for committing Qatal-i-amd of Muhammad Sajjad as Tazir. He shall be hanged by neck till his death. He shall also pay Rs.20,00,000/- as compensation under Section 544-A of Cr.P.C to the legal heirs of the deceased Muhammad Sajjad and in default thereof, he has to undergo 06 months S.I........”

3.Primarily, Muhammad Rizwan Aslam (complainant/PW-6) set the machinery of law into motion by recording oral statement (Ex.PH) to Khizar Hayat, Sub-Inspector (PW-9) at THQ Hospital, Bhalwal regarding murder of his brother namely Sajjad by the accused/appellant while giving

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him a knife blow hitting him on left side of his chest. It was also stated that Akbar Khan son of Muhammad Akram is also involved in the murder of brother of the complainant; for ready reference, relevant portion of aforementioned statement (Ex.PH) is hereby scanned below: - On the basis of aforementioned statement (Ex.PH), case was registered vide F.I.R. No.465/2022 (Ex.PA) on 04.12.2022 under Section: 302, 109 PPC at Police Station: Bhalwal Saddar, District Sargodha. Akbar Khan (co-accused) was found innocent during investigation of the case and his name was placed in column No.2 of the report prepared under Section: 173 Cr.P.C.

After investigation, challan report was sent to Court against the appellant; charge was framed against him, to which he pleaded not guilty; prosecution during trial examined nine witnesses, out of which, ocular account was furnished by Muhammad Rizwan Aslam (complainant/PW-6) and Danish Ali (eyewitness/PW-7), Dr. Muhammad Javed (PW-5) provided medical evidence whereas detail of investigation was deposed by Khizar Hayat, Inspector (PW-9). Prosecution after giving up PWs namely Mehboob Ahmad 1673/C, Nadeem Akhtar and Ayaz (being unnecessary) and tendering report of expert, closed its evidence. Thereafter statement of the appellant was recorded under Section: 342 Cr.P.C. in which he refuted the allegations

Murder Reference No.147/2023

levelled against him; he neither opted to appear as his own witness under Section: 340(2) Cr.P.C. to disprove the allegations levelled against him nor opted to produce evidence in his defence; while answering to Question No.13 “Why was this case registered against you and why have the witnesses deposed against you?” he replied as under: -

"At the day of occurrence, I was present in my house. The deceased knocked the door of my house when I open the door, he began to abuse and quarreling with me. I tried to convince the deceased but he attacked me with the knife. He wielded the knife and hit on to my chest two times. I injured and blood began to ous [sic]. The deceased, even, did not stop, I defended attack by my hands but the deceased who was under influence of the drugs received the injury of knife in this altercation by falling on to me. I do not know further how he was injured by his own knife. I did not commit his murder.”

Trial Court after conclusion of trial vide impugned judgment dated: 24.05.2023 has convicted and sentenced the appellant as mentioned above.

4.Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; prosecution has been failed to prove its case against the appellant and finally prayed for acquittal of the appellant while accepting instant appeal.

5.Conversely, Learned Deputy Prosecutor General while supporting the impugned judgment has opposed this appeal and prayed for dismissal of the same.

6.Complainant (present before the Court in person) has opposed this appeal.

7.Arguments heard. Record perused.

8.Every case has its own facts and instant case has also its peculiar facts and circumstances. It has been noticed that as per statement of Muhammad Rizwan Aslam (complainant/PW-6) i.e. Ex.PH, occurrence took place on 04.12.2022 at about 10:00 a.m. when he (complainant) along with Danish (PW-7) was going to Bhalwal, Sajjad (brother of the complainant) was going ahead of them at some distance and when they reached in front of the house of Atif (present appellant), Atif was standing in the street, who captured brother of the complainant and stated that why he has stolen his tool of cutting iron

Murder Reference No.147/2023

bar and sold the same, due to which they grappled inter se, meanwhile Atif while taking out knife gave blow at Muhammad Sajjad, which hit him at left side of his chest, due to which he became injured and fell down; while witnessing the occurrence, Muhammad Rizwan Aslam (complainant) and Danish ran and reached at the place of occurrence, Atif while seeing them fled away, Sajjad was being taken to THQ Hospital, Bhalwal in injured condition for medical treatment, however, he succumbed to the injuries on the way, Akbar Khan is also involved in above mentioned murder; motive for the occurrence mentioned in the statement (Ex.PH) got recorded by the complainant (PW-6) is that Atif had levelled allegation of theft against Muhammad Sajjad (brother of the complainant) and one day prior to instant occurrence, exchange of hot words took place between them for the same reason.

Khizar Hayat, S.I. while reaching at THQ Hospital, Bhalwal recorded aforementioned statement of Muhammad Rizwan Aslam (complainant) there on 04.12.2022 at 12:00 p.m. and then sent the same to the Police Station for registration of the case where FIR (Ex.PA) was chalked out at 12:30 p.m. on the same day, postmortem over dead body of Muhammad Sajjad (deceased of the case) was conducted at 02:45 p.m. on 04.12.2022 by Dr. Muhammad Javed (PW-5).

Ocular account in this case was furnished by Muhammad Rizwan Aslam (complainant/PW-6) and Danish Ali (PW-7) who both supported the case of prosecution while making their statements in the line of detail mentioned in the FIR (Ex.PA). Ocular account furnished by prosecution to the extent of receiving injury by the deceased below left nipple, by sharp edged weapon in font of door of house of appellant in the street has been established rather even not denied by defence; same has been also supported by the medical evidence. However, the defence version is that Sajjad (now deceased) armed with dagger came in front of house of accused (now appellant), called him out from the house in the street, after exchange of altercation, made two attacks with dagger upon chest of accused and injured him severely. For the safe administration of justice as well as keeping in view the peculiar facts of the case consisting of two versions i.e. prosecution version and defence version, evidence/material available on the record is being thoroughly and minutely analyzed.

Murder Reference No.147/2023

Medical evidence comprises of statement of Dr. Muhammad Javed (PW-5), who conducted postmortem examination over dead body of Muhammad Sajjad (deceased of the case), he observed an incised wound 1.5 x 1.5 cm going into left side of chest 3 cm below left nipple and on dissection found that said injury caused damage to skin superficial fascia underlying muscles and a hole 0.5 x 0.5 cm in size on anterior side of heart in middle of heart was also noted; relevant portion of his statement in this regard is hereby reproduced as under:-

“DESCRIPTION OF INJURIES

Injury No.1. An incised wound 1.5 CM x 1.5 CM going into own left side of chest 3 CM blow left nipple.

On dissection

After damage the injury No.1 skin superficial fascia underlying muscles were damaged. A hole 0.5 CM X 0.5 CM in size on anterior side of heart in middle of heart.”

Dr. Muhammad Javed (PW-5) mentioned time elapsed between injury and death as immediate and relevant portion of his statement in this regard is hereby reproduced as follows:- “The time elapsed between the injury and death was immediately whereas the time elapsed between death and post-mortem examination was within 4 hours.”

Dr. Muhammad Javed (PW-5) further stated that on 04.12.2022, Khizar Hayat, S.I. also produced Muhammad Atif (present appellant) for his medical examination with two injuries, injury statement (Ex.DA) was attested by him; Atif (present appellant) was brought before aforesaid Doctor at about 3:30 p.m. by Muhammad Farooq 616/C, two injuries were noted on his body by the Doctor during his medical examination, injury No.1 was found as an incised wound 1 x 1 cm in size, 2 cm below left clavicle whereas injury No.2 was an incised wound 3 x 1 cm in size 3cm above left nipple, said both injuries were opined as Jurh Ghayr Jaifah Badi’ah, probable duration of injuries was mentioned as 2 to 3 hours whereas kind of weapon used was “sharp”, MLC of the appellant was produced as Ex.DB and diagram as Ex.DB/1; he further mentioned that there was no possibility of fabrication regarding injuries of Atif (present appellant); relevant portion of his statement in this regard is also hereby reproduced as follows:-

Murder Reference No.147/2023

“It is correct that on 04.12.2022 Khizar Hayat SI also produced Muhammad Atif (present in the court as accused) for his medical examination with two injury descriptions. The injury statement Ex.D.A attested by me. Atif son of Gulzar (present in the court as accused) aged about 32 years r/o Chak No.2/NB Bhalwal was brought before me at about 3:30 pm by Muhammad Farooq 616/C with identification burn mark on left forearm. Description of injuries. Injury No.1 an incised wound 1 X 1 CM in size, 2 CM below left clavicle. Skin deep wound. Injury No.2 an incised wound 3 X 1 CM in size skin deep 3CM above left nipple. No investigation was advised. No sample was sent for laboratory examination. I opined that injury No.1 & 2 Jurrah Ghair Jaffiah Badiah and declared as 337F(ii) each. Probable duration of injuries 2 to 3 hours. Kind of weapon used "SHARP". This MLC is Ex.D.B and diagram Ex.D.B/1.

It is correct that in post-mortem of deceased Muhammad Sajjad, I mentioned only one injury caused to him. It is correct that I had mentioned two injuries in MLC No. 497/2022 of the accused Atif. I also mentioned in the MLC of accused Atif that there is no possibility of fabrication regarding injuries.”

It goes without saying that though Dr. Muhammad Javed (PW-5) medically examined Muhammad Atif (present appellant) on 04.12.2022 at 03:30 p.m. and opined probable duration of injuries as 2 to 3 hours yet it is very much relevant to mention here that opinion of Doctor regarding time elapsed between injury and medical examination of the injured is largely based on approximation and not an exact fact rather 2 to 3 hours window is a very standard and acceptable margin of stretching the same i.e. 2 to 3 hours variance is entirely plausible and scientifically justifiable; therefore, in such circumstances, it cannot be ruled out that Muhammad Atif (present appellant) received injuries at about 10:00 a.m. on 04.12.2022 which is the time given by the complainant party as time of occurrence. In this regard, reference can be made to Page 755 of “A Textbook of Medical Jurisprudence and Toxicology by Jaising P. Modi (27th Edition, Chapter 27); relevant portion of the same is hereby reproduced as follows:- “It is not easy to give the exact time of infliction of any injury, but an approximate time can be given from charged with criminal wounding or with robbery, burglary, or dacoity may be proved from the injury found on the body of his victim or on his own body, for its appearance may or may not correspond to the time when it is alleged to have been inflicted according the data given below. Hence, it is always necessary to mention “about” when giving the period of an injury.”

Perusal of Medicolegal Examination Certificate (Ex.DB) of Muhammad Atif (present appellant) and statement of Dr. Muhammad Javed

Murder Reference No.147/2023

(PW-5) reveals that he was got medically examined on the very day of occurrence i.e. 04.12.2022 by the police, two incised wounds caused by sharp edged weapon were found on his body i.e. one below left clavicle whereas other above left nipple which is of course vital and sensitive part of the body whereas perusal of postmortem examination report of Muhammad Sajjad (deceased of the case, Ex.PF/Ex.PF/1) as well as statement of Dr. Muhammad Javed (PW-5) in said regard reveals that only one incised wound was found on his body, it was 3cm below left nipple which resulted damage to underlying muscles and a hole 0.5 cm x 0.5 cm on anterior side of heart in the middle of the heart was also found. So it was also on the most vital part of the body caused by sharp edged weapon with full force, which caused damage to heart, lead to massive hemorrhage, hypovolemic shock, further leading to cardiopulmonary arrest and also caused immediate death. Hence, it can be safely concluded that after receipt of said injury by the deceased on the most vital part of his body, which caused damage to his heart and resulted his death immediately, it was not possible for him to cause injury to anyone else. Therefore, if injuries were caused by Muhammad Sajjad (now deceased of the case) to Muhammad Atif (present appellant), those were caused by him before sustaining his own injury.

As per case of prosecution, Atif (present appellant) got recovered knife (P-5) on 08.12.2022 from his house and same was taken into possession by Khizar Hayat, Inspector (PW-9) in the presence of Mahboob Ahmad 1673/C and Muhammad Sufyan 950/C vide recovery memo Ex.PD, which was sent to Punjab Forensic Science Agency and as per report of said Agency (Ex.PN, it is relevant to mention here that though word Ex.PN has not been mentioned at the report of Punjab Forensic Science Agency yet it has been mentioned in the statement of learned Assistant District Public Prosecutor recorded on 16.05.2023, which is available at Page No.34 of this Paper-Book) human blood was found on the swabs taken from blade of the knife as well as on the cotton through which blood was secured from the place of occurrence vide recovery memo Ex.PJ. However, it is not discernible from said report that either said human blood was of Muhammad Sajjad (now deceased) or Atif (appellant) or both.

Murder Reference No.147/2023

It is noteworthy here that above detailed injuries received by the present appellant were not mentioned by Muhammad Rizwan Aslam (complainant/PW-6) in his statement Ex.PH got recorded by him to Khizar Hayat, S.I. for registration of the case. Similarly, when Muhammad Rizwan Aslam (complainant) appeared as PW-6 during trial of the case, he did not mention receipt of aforementioned injuries by the appellant in his examination-in-chief, however, during cross-examination, he stated that Muhammad Atif (present appellant) is his paternal cousin, occurrence of the case took place in front of house of accused Atif, he has no knowledge whether Atif was got injured or not and accused was arrested by police at about 02:00/02:30 p.m.; relevant portions of his statements in this regard are hereby reproduced as under for ready reference:- “Accused Atif is my paternal cousin (”)پھوپھی زاد

“The occurrence took place in front of the house of accused Atif. I have no knowledge whether accused Atif was got injured or not. Accused was arrested by police at about 2:00/2:30 pm, at that time, I was in hospital.”

Similarly, Danish Ali (PW-7) also did not state in his examination-in-chief about receiving of aforementioned injuries by present appellant during occurrence of this case; during cross-examination stated that Atif is his maternal uncle and Sajjad (deceased) was his brother-in-law ( ;)بہنوئیin this regard, relevant portions of his statement are hereby reproduced as under: - “Accused Atif is my maternal uncle.”

“Sajjad was my brother-in-law/(Behnoi),” He (PW-7) further stated before the Court that he had not mentioned in his statement u/s 161 of the Cr.P.C. or anywhere before the police that accused was also injured and then volunteered that he himself injured; he further stated that he came to know through local person that accused was injured; in this regard, relevant portion of his statement reads as under: - “It is correct that I have not mentioned in my statement u/s 161 of the Cr.P.C. or anywhere before police that accused was also injured. Volunteers that he himself injured. When I reached in the village, I know through local person, that accused was injured.

But astonishingly, he did not mention in his statement before the police that accused himself injured or he (PW-7) came to know through local person that

Murder Reference No.147/2023

accused was injured rather completely suppressed receiving of injuries by the accused/appellant even in his examination-in-chief before the Court.

It is also relevant to mention here that Khizar Hayat, Inspector (Investigating Officer/PW-9) during trial of the case though stated in his examination-in-chief that on 06.12.2022, he alongwith other police officials reached at the house of Atif (present appellant), formally arrested him, produced him before the Area Magistrate on 07.12.2022, obtained his physical remand; on 08.12.2022, on his disclosure and pointing out, got recovered knife from his house yet he did not explain in his examination-in-chief about getting conducted medical examination of Atif (present appellant) through police on the day of occurrence as well as receipt of injuries by him; however, during cross-examination accepted that occurrence took place in front of house of the accused; he also stated that when he visited the place of occurrence, he knocked door of house of the accused, who appeared in injured condition, he took the accused to Tehsil Headquarter Hospital, Bhalwal, prepared his injury statement (Ex.DA) and sent through Muhammad Farooq 616/C for his medical examination, mentioned in the injury statement (Ex.DA) that Atif received two injuries on his chest; accused neither tried to escape nor offered resistance to prevent apprehension and on the day of occurrence, Muhammad Atif (injured accused) stated before him that he was sleeping in his house, Sajjad (deceased) armed with dagger called him out from the house in the street, after exchanging altercation, gave two dagger blows upon chest of Atif (accused/present appellant) and injured him severely; he (PW-9) further admitted that it is correct that he kept arrest of the accused in abeyance due to serious injuries and arrested him from the house on 06.12.2022; he further stated that he verified statement of the accused/appellant from independent witnesses on 04.12.2022; he also stated that Muhammad Sajjad (now deceased of the case) received only single injury; in this regard, relevant portions of his statement are reproduced as under: -

Murder Reference No.147/2023

“The occurrence took place in front of house of accused Muhammad Atif.”

“When I visited the place of occurrence I knocked door of gate of house belonging to the accused, who appeared in injured condition. We took accused to THQ hospital, Bhalwal. I prepared injury statement Ex.D.A and sent the same through Muhammad Farooq 616/C for medical examination. I mentioned in the injury statement Ex.D.A of accused Muhammad Atif, two injuries on his chest. Accused neither try to escape nor resistance to prevent apprehension. On the same day of occurrence, the injured accused Muhammad Atif stated before me that he was sleeping in his house and Sajjad deceased armed with dagger and called me out from the house, in the street, after exchange of alteration [sic] and made two attacks with dagger upon chest of accused Atif and he injured seriously. It is correct I kept in abeyance the arrest of accused due to seriously injuries. I arrested accused from his house on 06.12.2022. I verified the statement of accused from independent witnesses on 04.12.2022.”

“It is correct that the deceased Sajjad received only single injury.” (emphasis added)

Though in his statement (Ex.PH) got recorded by the complainant for registration of the case, he mentioned that Atif (present appellant) captured and asked Sajjad (deceased of the case) that why he has stolen his tool of cutting iron bar and sold the same (as detailed above) and he also mentioned same fact in his examination-in-chief; relevant portion in this regard from his examination-in-chief is hereby reproduced as follows:- “He caught-hold my brother from collar and asked him that why he had stolen his steal-cutter.”

But during cross-examination, he (PW-6) categorically stated that said iron cutter belonged to Safdar; relevant portion of his statement in this regard reads as follows:- “the bone of contention on which the occurrence taken place “iron ی پbelonged to Safder, my brother-in-law (behnoi).”

cutter” ()ٹرہرٹک,

Danish Ali (PW-7) also stated that Sajjad (deceased) was living in his house and two days prior to the occurrence, a quarrel took place between the accused and deceased; he further stated that he was at Sargodha City at that time; relevant portion of his statement in this regard reads as under: - “The deceased Sajjad was living in my house. Two days ago of the occurrence, quarrel was taken place in between accused and deceased. At that time, I was at Sargodha City.”

(emphasis added)

Murder Reference No.147/2023

It is necessary to add here that in the statement (Ex.PH) got recorded by the complainant (PW-6) for registration of case, it was categorically mentioned that one day prior to the occurrence, quarrel took place between the accused and deceased; so, Danish Ali (PW-7) on the one hand negated the claim of complainant that one day prior to the occurrence, quarrel took place between appellant and deceased whereas on the other hand he did not state that he was present at the time of that quarrel or witnessed the same rather stated that he was at Sargodha City at that time. He further stated that stolen cutter belongs to Safdar and in this regard, relevant portion of his statement is reproduced below: - “Cutter was stolen, belong to Safdar uncle/Mamoo.”

So, motive alleged by the prosecution that Atif blamed Muhammad Sajjad (now deceased of the case) that he has stolen his cutter and sold the same stood negated by the statements of complainant (PW-6) and Danish Ali (PW-7) because they both stated before the Court that said cutter was of Safdar and even none of them claimed that they were present and saw the motive occurrence which took place prior to the occurrence. So, motive could not be proved in this case. Similarly immediate cause of occurrence also remained shrouded in mystery.

Outcome of aforementioned discussion is that admittedly occurrence took place in front of house of present appellant in the street as per case of the prosecution as well as defence version, which fact has been further confirmed by receiving the blood through cotton from there which was found human blood as per report of Punjab Forensic Science Agency, Lahore (Ex.PN); Muhammad Sajjad (deceased of the case) only received one injury on his chest with sharp edged weapon (as detailed above); appellant received two injuries, one below his left clavicle and other above left nipple with sharp edged weapon on the same day; he was also medically examined through police on the same day however injuries received by him were not mentioned by the complainant in his statement (Ex.PH) got recorded by him for

Murder Reference No.147/2023

registration of the case as well as in his examination-in-chief recorded before the trial Court; similarly, other cited eyewitness namely Danish Ali (PW-7) also did not mention receiving of injuries by the accused in his statement before the police as well as in his examination-in-chief recorded before the trial Court. Khizar Hayat, Inspector (Investigating Officer/PW-9) on the day of occurrence when visited the place of occurrence knocked door of house of the accused, found him in injured condition, prepared his injury statement (Ex.DA), got him medically examined through police constable, obtained his Medicolegal Examination Certificate (Ex.DB), recorded his version that Muhammad Sajjad (now deceased of the case) armed with dagger called him out from his house in the street, after exchanging of altercation, attacked and gave two dagger blows upon his chest, injured him severely and he (PW-9) also verified said statement of the accused on 04.12.2022 through independent witnesses and also kept arrest of the accused in abeyance due to serious injuries received by the accused (as detailed above). It goes without saying that when Investigating Officer i.e. Khizar Hayat, Inspector (PW-9) has categorically stated that he verified aforementioned statement of the accused from independent witnesses on 04.12.2022 on the day of occurrence, then it provides support to said statement of the accused and in this regard, case of “UMER JAN versus The STATE through AG, Khyber Pakhtunkhwa” (2026 SCMR 122) can be safely referred and relevant portion from the same is also hereby reproduced as under: - “10. The Investigating Officer, Munawar Khan SI (PW-7), in his cross-examination, has conceded that a passerby named Islam Jan son of Qasim Khan also sustained injuries during the occurrence, was shifted to Bannu Hospital, later referred to Peshawar, and ultimately succumbed to his injuries. The I.O. admitted that he neither recorded the statement of injured Islam Jan nor of his relatives or legal heirs. He further deposed that several villagers informed him that cross-firing between the parties had continued for approximately three hours. He deposed that people of the area told him that Amanullah and his son (the petitioner) were proceeding to village Shagai and from there intended to travel to Lahore for labour, and that the complainant party, having been informed of their departure, intercepted them near the mosque where the alleged encounter took place. These admissions

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by the I.O. significantly bolster the defence version and cast serious on the prosecution narrative.”

(emphasis added)

From aforementioned circumstances, it is crystal clear that both the parties have not provided complete detail of the occurrence i.e. complainant party did not mention injuries received by the accused/appellant during the occurrence whereas the appellant also did not explain the detail of mode as well as manner of receipt of injury by the deceased with exactness and it is trite law that in such circumstances, when both the parties concealed actual detail of the occurrence, minimized their roles and attempted to burden opposite party with entire responsibility, then in such circumstances, the Courts apply principle regarding perusal of evidence and determination of criminal liability; furthermore, in such situation, the Courts are not deterred by the incompleteness of the tale and must draw inference from the available evidence; in this regard, case of “SYED ALI BEPARI Versus NIBARAN MOLLAH AND OTHERS” (PLD 1962 Supreme Court 502) can be advantageously referred and relevant portion from the same is hereby reproduced as under: - “Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."

Similarly, in the case of “Muhammad Daniyal versus The State through P.G. Sindh and others” (2026 SCP 23), it has been held by the Supreme Court of Pakistan that where the parties have concealed the whole truth, Court can adopt the third view emerging from the facts and circumstances revealed by the evidence from the record. Same principle was also adopted and followed in the case of “Mst. HUSSAN ZARI Versus SHER BAHADUR and others” (2006 SCMR 1906). So, while seeking guidance from aforementioned case law and going through the evidence/material available on the record, we while adopting third view have come to the conclusion that Muhammad Sajjad (deceased of the case) while armed with knife came in the street near door of house of the appellant, knocked the door, Atif (present appellant) came out from the house, they both grappled, deceased gave repeated blows with knife at the body of present appellant i.e. below left

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clavicle and above left nipple, who then after getting hold of said knife, gave blow of the same with full force/magnitude at the most vital part of body of Muhammad Sajjad (deceased of the cast) i.e. at his chest below left nipple, which caused severe damage to the heart of the deceased, caused massive hemorrhage and his immediate death; since Muhammad Sajjad (deceased of the case) came at the house of the appellant, attacked and caused two injuries with knife to the appellant thus was aggressor and then while exercising right of self defence, appellant gave blow with knife to Sajjad (deceased of the case) however it is important to mention here that though after receiving two injuries at vital part of his body, appellant was quite justified to respond for saving his life and for the said purpose he after snatching or getting hold of the knife, could have given blow with knife to the arm, leg or any other non- vital part of body of Sajjad (now deceased) yet when he (appellant) selected left chest near nipple of the deceased and gave blow of knife with full force/magnitude there, causing his immediate death, then of course, appellant has exceeded the power given to him by the law for exercising his right of self defence and caused death of deceased of the case however without premeditation and in the episode, which was initiated by the deceased himself, who had if not come at the door of house of the appellant and invited the occurrence, then certainly, same would not have taken place. Therefore, we are convinced that the act done by the appellant falls in Exception 2 of the old (erstwhile) Section: 300 PPC which was punishable under old (erstwhile) Section: 304 PPC and it is also relevant to mention here that Supreme Court of Pakistan in the case of “ALI MUHAMMAD versus ALI MUHAMMAD and another” (PLD 1996 Supreme Court 274) has categorically held that cases earlier falling in Exception 2 to the old (erstwhile) Section: 300 PPC read with old (erstwhile) Section: 304 PPC were intended to be dealt with under the present Section: 302 (c) PPC and relevant portion from the same is hereby reproduced below: - “29. The new section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories:

(1)Qatl-i-Amd which is punishable with death as Qisas;

(2)Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and

(3)Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.

Criminal Appeal No.44191/2023 & 15 Murder Reference No.147/2023

Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. In this connection I should be content to refer to ( ) کتاب الفقهby (( ) عبد الرحمن الخريريtranslation by Manzoor Ahsan Abbasi), Volume V at page 582 which enumerates a large number of situations in which Qisas is not liable for Qatl-i-Amd; one of the situations mentioned by the learned Author at page 584 is:

" اگر کسی شخص نے چور کو قتل کر ديا ۔ جو رات کے وقت اس کے گھر میں داخل ہوا اور "اس کے مال يا اسکی عزت پر ہاتھ ڈاال تو قصاص عائد نہ ہو گا۔ “31. It appears however that in addition to the grounds stated in Muhammad Hanif case, the accused had also exceeded his right of self- defence. In that he had overpowered the deceased man by putting a ‘Chaddar' around his neck but had pressed it so hard as to strangulate him to death. His case, therefore, clearly fall under clause (c) of section 302. It must follow, therefore, that the learned Judge in the High Court was not right in holding that the accused had committed no offence and was not liable to any punishment.

32.I would, therefore, convict the accused under section 302, clause(c) of the P.P.C.”

And said legal aspect has also been referred in the recent judgment delivered by Supreme Court of Pakistan in “Muhammad Daniyal’s” case (mentioned supra); relevant portions from the same are hereby reproduced below: -

“In view of the above, in our considered view, the ingredients of the offence under Section 302(c), PPC are attracted in the present case rather than those of Section 302(b), PPC. Section 302(c), PPC was introduced through the Qisas and Diyat Ordinance, 1990. Although the legislature has not expressly defined the categories of cases falling under clause (c), and the matter has been left to the courts to determine on a case-to-case basis, this Court in “Ali Muhammad v. Ali Muhammad and another” (PLD 1996 Supreme Court 274) has categorically held that cases earlier falling under the exceptions to the old Section 300 read with the old Section 304, PPC were intended to be dealt with under the new Section 302(c), PPC. The relevant portions of the judgment, are reproduced below for ready reference:- ................................. there should be no doubt that the cases covered by the exceptions to the old section 300 PPC read with old section 304 PPC thereof, are cases which were intended to

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be dealt with under clause (c) of the new section 302

PPC..................................”

Exceptions to the old section 300 PPC, read as under:- When culpable homicide is not murder:

Exception 1: Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- Firstly: That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly : That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly : That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary of the purpose of such defence.

(emphasis added)

Exception 3 : Culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due dis- charge of his duty as such public servant and without illwill towards the person whose death is caused.

Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Old section 304 PPC, is also reproduce hereunder:-

304.Punishment for culpable homicide not amounting to murder : Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done

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with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.

Keeping in view above-mentioned circumstances of the instant case and the above-referred provisions of law, the case of the petitioner- convicts squarely falls within the ambit of Exception 3 of the erstwhile section 300 PPC.

16.For what has been discussed above, Criminal Petitions No.176-K to 179-K of 2022, filed by the petitioners-convicts Muhammad Daniyal and Bilal Rasheed are converted into appeal and disposed of in the terms that their conviction under section 302(b) PPC are converted into section 302(c) PPC and they are sentenced to undergo 15 years imprisonment. The remaining conviction and sentences of the appellants-convicts are maintained. Benefit of Section 382-B Cr.P.C. is extended to them.”

Similarly, case of “AMIR KHAN and another versus The STATE and another” (2025 S C M R 1572) can also be advantageously referred and relevant portion from the same reads as under: - “7. On a meticulous appraisal of the evidence on record, it is evident that the occurrence took place at the spur of the moment without any premeditation or prior enmity between the deceased and the petitioner/convict. It was the deceased who, accompanied by his brothers and cousin, approached the petitioner's shop and initiated a confrontation that escalated into physical grappling. In an instinctive reaction to the perceived threat to his person, the petitioner resorted to the use of a firearm. However, as the deceased was unarmed at the time of the recurrence, therefore, the act of firing a shot even if in self- defence exceeded the bounds of lawful self-defence as contemplated under the law. This Court has consistently held that in cases where the accused, while acting in self-defence or under sudden provocation, causes the death of a person, such circumstances may justify a conviction under Section 302(c) of the Pakistan Penal Code, 1860. Yet there is another fact that if the deceased had not visited the shop of the petitioner/convict, the occurrence would not have taken place. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the petitioner/convict nor had he acted in brutal or unusual manner. In the circumstances Exception 4 contained in the erstwhile section 300 P.P.C. squarely stood attracted to the case which for the sake of convenience is reproduced below:- (emphasis added) “Exception 4:-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender's having taken undue advantage or acted in cruel or unusual manner.” This Court in case titled, "The State v. Muhammad Hanif and 5 others" (1992 SCMR 2047), has held that all the matters which were initially dealt with by erstwhile section 304, P.P.C., are now to be dealt with under section 302(c) P.P.C. Same view has been reiterated by this

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court in case titled, "Azmat Ullah v. the State" (2014 SCMR 1178), relevant part of which is reproduce below:- "The case of the prosecution is that at the relevant date and time the appellant and his brother namely Imran suddenly developed a quarrel and on the basis thereof the appellant was enraged and he caused injuries to the said brother with a Churn which injuries led to his death. The FIR in this case had been lodged by none other than father of the appellant .......Leave to appeal had been granted to consider as to whether the circumstances of this case attract the provisions of section 302(b), P.P.C. or of section 302(c), P.P.C. A bare perusal of the FIR, the statements made by the eye-witnesses before the learned trial Court and the findings recorded by the learned Court below clearly shows that there was no background of any ill will or bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a Churri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the postmortem of the dead body had categorically observed that both the injuries found on the dead body of the deceased could be a result of one blow of Churri. These factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exception contained in the erstwhile provisions of section 300, P.P.C., now attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in brutal or unusual manner. In the circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C.

Keeping in view the facts and circumstances of the case this appeal is partly allowed, the conviction of the appellant for an offence under section 302(b), P.P.C. is concerted [sic] into that for an offence under section 302(c), P.P.C. and consequently his sentence is reduced from rigorous imprisonment for twenty-five years to rigorous imprisonment for ten years". Reliance may also be placed on the on the view of this court in cases titled "Zeeshan alias Shani v. The State" (PLD 2017 Supreme Court 165), "Raza and another v. The State and others" (2020 SCMR 1185) and "Muhammad Ajmal v. The State" (2022 SCMR 88).

8.In view of the totality of circumstances discussed above including the absence of premeditation, the sudden and spontaneous nature of the occurrence, the fact that only a single shot was fired by the petitioner/convict, the unarmed status of the deceased, and the consistency between the ocular and medical evidence, we are persuaded to hold that the case of the petitioner squarely falls within

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the ambit of Section 302(c) of the Pakistan Penal Code, 1860. Consequently, the instant jail petition is converted into an appeal and is partly allowed. The conviction of the petitioner/convict recorded under Section 302(b), P.P.C. through the impugned judgment is hereby altered to one under Section 302(c), P.P.C. Accordingly, the sentence of imprisonment for life awarded to the petitioner/convict is reduced to rigorous imprisonment for fourteen years. The direction for payment of compensation to the legal heirs of the deceased, as stipulated in the impugned judgment, along with the consequences of default thereof, shall remain intact and enforceable in accordance with law. Benefit of Section 382-B, Cr.P.C. is extended to the petitioner/convict.”

It is settled principle of law that accused was not required to prove the defence plea beyond reasonable doubt rather he is only required to show that the plea is reasonably probable/possible; in this regard, guidance has been sought from the case of “MANZOOR HUSSAIN versus NADEEM alias BILLA and 3 others” (2003 S C M R 459) and relevant portion from the same is hereby reproduced for ready reference: - “5. Undoubtedly, the prosecution totally suppressed the injuries caused to Bashir Ahmad, respondent No.2 and his wife, thus, they did not disclose the whole story truly. In a criminal case, the accused are not required to prove the defence plea beyond reasonable doubt but they have merely to show the version put up by them was reasonably possible. The learned High Court, after scrutinizing both the versions i.e. of the prosecution and the defence in juxtaposition, concluded that respondent No.1 acted in self-defence and held that the offence was not premeditated or preplanned and fell under section 302(c), P.P.C. thus altered his conviction and sentence to the said section. We find no legal infirmity in the same. This petition is, therefore, dismissed and leave refused.”

9.For what has been discussed above, conviction recorded under Section: 302 (b) PPC is converted into conviction under Section: 302 (c) PPC and since neither motive nor immediate cause of occurrence could be established, any deep routed enmity between the parties is not discernible from the record rather they are close relatives and furthermore, present appellant gave only one blow with knife without repetition, therefore, he is sentenced to undergo Rigorous Imprisonment for 15-years and though through impugned judgment, he was directed to pay Rs.20,00,000/- as compensation under Section: 544-A Cr.P.C. to the legal heirs of the deceased and in default thereof to undergo simple imprisonment for

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06-months yet same is also reduced to Rs.10,00,000/- and in default whereof to further undergo Simple Imprisonment for 06-months. Benefit under Section 382-B Cr.P.C. shall be given to the appellant. In view of above, instant appeal is dismissed with aforementioned modifications in the conviction as well as sentence.

Murder Reference No.147/2023 is answered in negative and death sentence awarded to Muhammad Atif is not confirmed.

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

APPROVED FOR REPORTING

(ALI ZIA BAJWA) (FAROOQ HAIDER)

JUDGE JUDGE

This judgment has been dictated, pronounced, prepared and signed on

*Asif*