TN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ ULAHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAIlED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 496 OF 2019
(On appeal against the judgment dated 27.04.2018
passed by the High Court of Sindh, Karachi in Cr. Jail
Appeal No. 52/2015)
Muhammad Usama
The State
For the Petitioner:
For the State:
For the Complainant:
Date of Hearing:
Petitioner
VERSUS
Respondent
Mr. Anis Muhammad Shehzad, ASC
Mr. Zafar Ahmed Khan, Addl. P.G.
Mr. Haider Zaman, in person
20. 10.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI. J.- Petitioner was tried by the learned
Sessions Judge, Malir, Karachi, pursuant to a case registered vide FIR No.
699/2012 under Section 302 PPC at Police Station Shah Latif Town for
committing murder of Noman Khan, brother of the complainant. The learned
Trial Court vide its judgment dated 10.02.2015 convicted the petitioner
under Section 302(b) PPC and sentenced him to imprisonment for life.
Petitioner was also directed to pay compensation amounting to Rs.50,000/-
to the legal heirs of the deceased or in default whereof to further undergo six
months SI. Benefit of Section 382-B Cr.P.C. was also extended to him. In
appeal, the learned High Court maintained the conviction and sentence
recorded by the learned Trial Court.
2. The prosecution story as given in the impugned judgment reads
as under:-
"2. 
Precisely the facts of the prosecution case as disclosed by
complainant, Qamar Zaman Khan in the FIR are that his younger
brother namely Woman Khan aged about 18 years, who was a
Jail Petition No. 496/2019
student of Intermediate Part-11, and after college time he used to
come to his shop situated at Total Petrol Pump, near Chokandi
Graveyard. On 03.12.2012, the complainant was present at his shop
where on telephone Nasir Khan informed him that one Osama,
resident of Green Park City, has inflicted Motorcycle's wire lock
injury to his brother near milk shop and his brother was taken to
Jinnah Hospital. On receiving such information the complainant
alongwith other relatives reached at Jinnah Hospital, where he found
dead body of his brother Noman Khan in mortuary. On inquiry, Nasir
Khan disclosed that at about 0215 p.m. he and deceased Noman
Khan were coming from Green Park City and upon reaching the gate
No. 2 near Milk shop, Osama/appellant inflicted motorcycle's wire
lock blow to the head of Noman Khan/deceased and fled away.
Accordingly, statement of complainant under Section 154 Cr.P.C. was
recorded by ASI Raza Mohammad of Police Post Khudabad of Police
Station Shah Latif Town, Karachi at Jinnah Hospital on the basis
whereof FIR was registered.
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as seven witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. He also examined himself on oath
under Section 340(2) Cr.P.C. However, he did not produce any evidence in his
defence.
4.
At the very outset, learned counsel for the petitioner submitted
that he does not challenge the conviction of the petitioner. However, he
submitted that the petitioner was 14 years of age at the time of commission
of offence and there was no previous enmity, premeditation or preparation
for commission of murder. Contends that the weapon allegedly used was not
conventional rather it was picked up from the nearby place and the
occurrence took place at the spur of the moment on account of trivial
altercation, therefore, the petitioner deserves leniency in the sentence
awarded to him.
5.
On the other hand, learned Law Officer defended the impugned
judgment. He contended that the petitioner was specifically nominated in
the crime report with a specific role of taking life of brother of the
complainant. Contends that the ocular account has been proved beyond
shadow of doubt and the medical evidence supports the same. However, he
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3
did not dispute the use of non-conventional weapon and the age of the
petitioner at the time of occurrence. Lastly contends that the prosecution has
proved its case through cogent and confidence inspiring evidence, therefore,
the petitioner does not deserve any leniency by this Court.
6. We have heard learned counsel for the parties at some length
and have perused the evidence available on record.
In order to prove its case, the prosecution has mainly relied
upon the statements of Muhammad lniran (PW-2) and Muhammad Nasir
(PW-3), who were the eye-witnesses of the occurrence. These prosecution
witnesses were subjected to lengthy cross-examination by the defence but
nothing favourable to the petitioner or adverse to the prosecution could be
produced on record. These PWs remained consistent on each and every
material point inasmuch as they made deposition exactly according to the
circumstances happened in this case, therefore, it can safely be concluded
that the ocular account furnished by the prosecution is reliable,
straightforward and confidence inspiring. The medical evidence available on
the record is in line with the ocular account so far as the nature, locale, time
and impact of the injury on the person of the deceased is concerned. These
witnesses have specifically explained their presence at the spot. No material
contradiction in the statements of the PWs, which could shatter the case of
the prosecution, could also be brought on record. On account of lapse of
memory owing to the intervening period, some minor discrepancies are
inevitable and they may occur naturally but the accused cannot claim benefit
of such minor discrepancies. The eye-witnesses have given details of the
occurrence in a natural manner, which prove that they have witnessed the
occurrence. In these circumstances, it can safely be said that the prosecution
has brought on record reliable evidence to sustain the conviction of the
petitioner. The only question which requires determination by this Court is
that in the given circumstances whether the conviction and sentence
recorded by both the courts below commensurate with the act of the
petitioner. We have noted certain material aspects of the case, which clearly
reflect that the petitioner was minor at the time of occurrence; the
occurrence has taken place at the spur of the moment and without any
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4
preparation or premeditation; the weapon used by the petitioner is ordinarily
attached to the motorcycle/cycle for safety and the same without any stretch
of imagination cannot be termed as a weapon for committing such like
crimes. All these aspects when read conjointly with the statement of the
petitioner under Section 340(2) Cr.P.C., it further strengthens the view of this
Court that the occurrence has taken place without premeditation and
possibility cannot be ruled out that the same was result of some trivial
altercation/use of filthy language as stated by the petitioner. These aspects
when adjudicated, there is no second cavil to this proposition that the
petitioner has made out a case, which squarely attracts the provision of
Section 302(c) PPC. During the course of proceedings, it was argued by the
learned defence counsel that the petitioner was aged about 14 years at the
time of occurrence, which has not been rebutted by the learned Law Officer.
Keeping in view the nature of the occurrence as stated above, we are of the
view that the sentence of imprisonment for life would be too harsh for the
petitioner. Consequently, we convict the petitioner under Section 302(c) PPC
and sentence him to the period, which he has already undergone. The
amount of fine and the sentence in default whereof shall remain intact.
7. For what has been discussed above, this petition is converted
into appeal, partly allowed and the impugned judgment is modified as stated
in the preceding paragraph.
Islamabad, the
20" of October, 2022
Approved For Reporting
EMtin'
