GHULAM MUSTAFA Versus STATE
Ghulam Mustafa alias Muhammad Boota was tried by Mr. Irshad Akhtar Qureshi, learned Judicial Magistrate with Section 30 powers, Sargodha. under section 304, P.P.C. although initially a case under section 302, P.P.C. was registered against him for the murder of Said Hakeem. The learned trial Magistrate, on 31-5-1990, convicted and sentenced the appellant to suffer rive years' R.I. plus a fine of Rs.1,000 or in default thereof to undergo S.I. for three months under section 304, P.P.C. The convict-appellant challenged his conviction and sentence by fling Criminal Appeal No.419 of 1990.
2. Shortly stated, the facts are that on 4-5-1985 at about 9-00 a.m., one Said Hakeem (deceased), in Chak No.107/S.B., Tehsil and District Sargodha, declared that he would not allow appellant and his employer Sikandar Shah to ply Tractor No.1482/SAA. Sikandar Shah while giving him a rebuff stated that the deceased would be set right shortly. In an attempt to occupy the driver's seat of the Tractor, Said Hakeem was given a push by the appellant-convict, as a result of which he fell down and was crushed under the rear wheels of the tractor. This is how Said Hakeem met his end.
Motive as narrated by the complainant is that a sum of Rs.20,000 was taken by Sikandar Shah as loan from the deceased and that the said amount was not returned by him despite consistent demands of the deceased. In this background Said Hakeem wanted the appellant to stop his Tractor to settle the account with him.
3. The prosecution in order to prove its case produced Meer Hassan P.W.1, Umra Khan P.W.2, Gul Khan P.W.3, Ghazi Khan P.W.4, Nazar Khan P.W.5, Muhammad Abdullah Patwari P.W.6, Muhammad Ramzan P.W.7, Dr. Altaf Hussain P.W.8, Atta Muhammad P.W.9, Muhammad Khan P.W.10, Muhammad Anwar Khan Inspector P.W. 11 and Abdul Qayyum, Constable P.W.11. Eye-witness account was provided by Umar Khan P.W.2, Gul Khan P.W.3, Ghazi Khan P.W.4 and Nazar Khan P.W.5. According to these witnesses a loan of Rs.20,000 was not returned to the deceased by Sikandar Shah and that the deceased declared that he would not allow Sikandar Shah and the appellant-convict to ply their tractor unless money was paid to him. On the day of occurrence, he tried to stop the vehicle by occupying it. Appellant-convict speedily drove the tractor which resulted in the death of said Hakeem. Dr. Altaf Hussain P.W.8 noted as many as 6 injuries on the person of deceased. He opined that the death had occurred as a result of an accident. The appellant while making a statement under section 342, Cr.P.C. denied the allegations levelled against him and pleaded his innocence. However, he did not lead any evidence in his defence.
4. It is argued that prosecution evidence demonstrates beyond doubt that the offence committed falls under section 304-A, P.P.C. According to learned counsel, it is a case of culpable homicide not amounting to murder. After reading the evidence, learned State counsel also agrees with the submissions of the learned counsel for the appellant that the death in the case occurred on account of carelessness and negligence on the part of the appellant as a result of an accident. Learned counsel says that. he has no objection if conviction against the appellant is registered under section 304-A, P.P.C. However, he says that a lenient view may be taken in the matter of awarding sentence to him. Both the learned counsel state that there was no previous enmity between the parties and as such there was no motive to make a short work of the deceased. They, therefore, submit that it is a fit case where lesser punishment may be awarded to the appellant.
5. I have heard the learned counsel for the parties and have seen the record. Admittedly, the appellant has so far undergone 13 months' sentence in jail, both as under-trial prisoner and a convict. In my view, the prosecution has been able to prove its case against the appellant under section 304-A, P.P.C, There is no evidence to show that the appellant intended to murder the deceased. Prosecution evidence showed that there was a scuffle which took place between the appellant and Said Hakeem over taking possession of the Tractor. This is the unanimous stand taken by all the eye-witnesses in their evidence that the deceased wanted to stop the tractor or in the other words wanted to take the custody of the vehicle, perhaps with a view to compel its owner Sikandar Shah to return the loan of Rs.20.000. in the circumstances, no other reasonable view can be taken from the prosecution evidence. I, therefore, hold the view that it was the deceased who had intended to keep the tractor with a view to get back the loan from Sikandar Shah. The appellant had absolutely no motive to kill Said Hakeem. He was the employee of Sikandar Shah and as such it was his duty to keep the tractor in safe custody on behalf of his employer. Thus, the possibility that the deceased might had been crushed to death under the rear wheels of the tractor because of his own negligence and carelessness cannot be excluded. All the eye-witnesses state that Said Hakeem was crushed under the rear wheels of the tractor. Even there was no evidence to show that appellant drove the tractor with unwarranted speed. He, therefore, contributed to his own death. I, therefore, hold that it is a case of an accident pure and simple causing the death of Said Hakeem. Appellant is accordingly convicted under section 304-A, P.P.C. Regarding the quantum of sentence. I am of the view that one year and one months' sentence already suffered by the appellant both as under-trial prisoner and convict is enough to meet the ends of justice. Accordingly, the sentence of the appellant is reduced to the period already undergone by him. However, sentence of fine is hereby maintained. With this modification in the sentence, the appeal is partly allowed.
N.H.Q./G-408/L ????????????????????????????????????????????????????????????????????????????????? Order accordingly.