ZAFAR IQBAL Versus THE STATE
1. Zafar Iqbal (35) with Muhammad Feroze and Muhammad Khan was sent up for trial by Police Station Khudian, District Kasur, for an offence under section 302/34, P.P.C. Additional Sessions Judge, Kasur vide judgment, dated 25-2-1992 gave benefit of doubt to Muhammad Feroze and Muhammad Khan and acquitted them. Zafar Iqbal was, however, found guilty under section 304, Part I, P.P.C. and sentenced to imprisonment for life with a fine of Rs.10,000, or in default two years' R.I. It was further directed that the fine, if recovered, half of its shall be paid to the legal heirs of the deceased. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.B. by Muhammad Sabir, P.W.2, was to the effect that he was an agriculturist. He with Qutab Din came to purchase a belt for tube-well. At about 2-30 p.m., after making purchase he with Qutab Din was coming back. When they reachc:' iwar Railway Line, first informant started to make water, whereas Qutab Din, kept on walking. The first informant after making water started towards Qutab Din when he saw Zafar Iqbal, empty-handed, with his co-accused Muhammad Feroze armed with.12 bore gun, and Muhammad Khan with Sota. They raised a Lalkara, whereupon Qutab Din started running. They followed him and Muhammad Khan gave a Sota blow on the back of Qutab Din, who fell down. Zafar lqbal gave a kick blow on the testicles of Qutab Din. Muhammad Feroze kept on raising Lalkaras. First informant with the help of two constables apprehended Zafar Iqbal at the spot while the others managed to run away. Said Qutab Din died at the spot on account of the said injuries. Motive for the occurrence was that 7/8 days earlier, Qutab Din had an altercation with Muhammad Khan, wherein Qutab Din had injured Muhammad Khan. therefore, the present occurrence.
2. The occurrence took place on 26-6-1986 at 2-30 p.m. in Basti Salamatpura, Mandi Usmanwala, 9 miles from Police Station Khudian. F.I.R. Exh.P.B. was lodged the same day at 3-45 p.m. by Muhammad Sabir, P.W.2, which was recorded by Muhammad Yamin Khan, S.H.O./Inspector, P. W.7.
3. Muhammad Yamin, Inspector/S.H1.W.7 after recording the F.I.R. Exh.P.B. went to the spot and prepared inquest report Exh.P.D. of the deceased. Zafar Iqbal was present at, the spot. He interrogated him as well and recorded the statements of the witneses. On 27-6-1986 he took into possession last-worn clothes of the deceased vide memo. Exh.P.A. Ocular account was furnished by Muhammad Sabir and Nizam Din, P.Ws.2 and 3, respectively. Site plan Exhs.P.C. and P.C./1 was prepared by Muhammad Nasarullah, P.W.4, Draftsman. P.W.6 Anwar Jang, H.C. had arrested Zafar Iqbal accused at the spot on 26-6-1986. P.W.7 Muhammad Yamin Khan, Inspector/S.H.O. had investigated the case. P.W.8 Dr. Muhammad Zakir, Medical Officer, D.H.Q. Hospital, Kasur had conducted the post-mortem examination of the dead body of Qutab Din. P.W.9 Baqar Hussain, Inspector had arrested Muhammad Khan accused on 3-7-1985.
4. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. However, he neither appeared in his defence on oath nor produced defence evidence.
5. It was contended by learned counsel for the appellant that admittedly the appellant was empty-handed, and in such circumstances, he could not be saddled with intention or knowledge that the injury ascribed to him would result in death. Argued that both the eye-witnesses are chance witnesses, who '' admittedly did not belong to the vicinity where the occurrence had taken place, therefore, could not be relied upon unless corroborated, which was not available. Asserted that it has not been proved beyond doubt that the injury ascribed to the appellant resulted in death of Qutab Din because the doctor had given the probable cause of death. The doctor had stated that it was probable that the injury was cause of death. Lastly it was contended that in any case the offence did not fall in section 304, Part I, P.P.C.; instead it fell in section 304, Part 11, P.P.C., for which the imprisonment already undergone by him would adequately meet the ends of justice. The contentions were opposed by learned counsel for the State.
6. I have heard the learned counsel and gone through the file. Prosecution in order to establish its case has mainly relied upon ocular account furnished by Muhammad Sabir and Nizam Din. Both of them had given a detailed account of occurrence ascribing specific role to the appellant. Each one of them stated that they were present at the spot when the appellant alongwith two co-accused came and raised a Lalkara. First blow was given by the co-accused, and thereafter, the appellant had caused an injury which ultimately resulted in his death. Both the witnesses were put to the test of lengthy cross-examination but nothing could be brought on the record to suggest that they were not present at the spot or had not witnessed the occurrence. A convincing explanation with regard to their presence was given by each of them. The manner in which the evidence was given by them inspires confidence. Therefore, it is held that the witnesses were present at the spot and can safely be relied upon. The contention of the learned counsel that only one injury was ascribed to the appellant, therefore, conviction under section 304, Part II should have awarded, requires consideration. I have noticed that the appellant was empty-handed. He had given a kick blow on the testicles of Qutab Din, which proved fatal. This would clearly indicate that in that commotion he gave a blow which resulted in his death and, in such circumstances, the intention to cause death may not be available. As far as the contention that the doctor had not given an opinion if the blow was the cause of death; I have considered the same but do not find any force in it. The doctor had ascribed the injury as probable cause of death.
7. For what has been discussed above, it is held that the eye-witnesses were present at the spot and they can be relied upon. The cause of death was injury ascribed to the appellant. However, it was caused without any intention to cause death. Therefore, the conviction and sentence of imprisonment for life awarded under section 304, Part I, P.P.C. is converted to section 304, Part II, P.P.C. and is reduced to five years' R.I. The sentence of fine, or imprisonment in default thereof, is maintained. He, however, shall not be entitled to concession of section 382-B, Cr.P.C. because he acted in a callous manner. The appeal is disposed of.
8. N.H.Q./Z-123/L Order accordingly.