SIRAJ BEGURN Versus D.C.

This appeal is directed against the judgment passed by the learned Additional Sessions Judge, Gujrat whereby Muhammad Akram appellant was convicted under section 304, Part I, P.P.C. and sentenced to imprisonment for life and fine or in default whereof to undergo further R.I. for two years. Half of the amount of fine, if realised, was ordered to be given to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. for committing the murder of Muhammad Ali deceased. Muhammad Ashraf was acquitted of the charge.

2. Succinctly stated the brief facts of the case as narrated by Ahmed P.W.6 are that on 1-7-1987 .at Mari Deegarwela Riaz son of Muhammad Ashraf, acquitted accused and Imran son of Ahmed P.W.6 were grazing goats in a field near his house. The children quarrelled with each other. Imran came home weeping and told Muhammad Ali deceased, about the quarrel upon which Muhammad Ali deceased who was maternal-uncle of his wife and was residing with him went out and gave beating to said Riaz. Riaz in turn went to his house weeping. After some time when the complainant Ahmed, Muhammad Afzal (given up P.W.) and Muhammad Ali deceased were present in their house. Muhammad Ashraf acquitted accused and Muhammaa Akram appellant came there raising Lalkaras that they would teach lesson for beating their child, Muhammad Akram appellant inflicted a brick blow which hit Muhammad Ali deceased on the lower part of the front of the left side of the chest, as a result of which he fell down and became unconscious. Ahmed raised alarm which also attracted Sadda P.W.11 who also witnessed the occurrence. Both the accused then left the place while abusing. Muhammad Ali deceased was taken to Civil Hospital Mandi Bahauddin in injured condition where he succumbed to the injuries. Ahmed, complainant made his statement to Muhammad Saleem Baig, S.I. P.W.8 at King Chowk who drafted the complaint Exh.P.E. and sent the same to police station for registration of the case.

3. After necessary investigation the appellant and Ashraf were challaned and were tried by the learned Additional Sessions Judge, Gujrat under section 302, P.P.C. .

4. During trial both the accused had pleaded not guilty to the crime and professed their innocence and the prosecution in order to prove the case against the accused examined as many as eight witnesses to substantiate the charge against them.

5. Dr. Tanvir Ahmad Medical Officer P.W.1 firstly on 2-7-1987 at 2-30 a.m. examined Muhammad Ali deceased when he was alive in Civil Hospital Mandi Bahauddin and found the following two injuries on his person:--

(1) Swelling 6 c.m. x 5 c.m. over top and back of head.

(2) Swelling 8 c.m. x 6 c.m. over lower part of front of left chest.

Both the injuries were kept under observation and in the opinion of the doctor the injuries were caused by blunt weapon and duration of the injuries was 6 to 12 hours. Exh.PA. was the medico-legal report. This patient died on 2-7-1987 at 1-30 p.m. and the same doctor did post-mortem examination on 3-7-1987.

5. On exploration of injury No.l no contusion under the scalp and no fracture of skull bone seen. Small sub-ducal haematoma 4 c.m. x 3 c.m. was seen on right side of brain on posterior part. Similarly on exploration of injury No-2, no contusion 'under the skin and in the muscle was found. All the abdominal viscera were found healthy. On opening the chest, lungs were found healthy acid no blood was present in the peritoneum. All the abdominal viscera were found healthy. On opening the chest, lungs were found healthy and no blood was found in the pleural cavity. Rest of the organs of chest were healthy.

In his opinion .injuries Nos.l and 2were ante-mortem in nature and were 'caused by blunt means. On receipt of the report of the Chemical Examiner, it transpired that no poison was detected in the above viscera. In his opinion the possibility of the death occurring due to injury No.l could not be ruled out. The probable time that elapsed between injuries and death was 12 to 24 hours and between death and post-mortem was about 18 hours. Exh.P.B. is the carbon copy of the post-mortem report and Exh.P.B./1 is the diagram showing the locale of the injuries.

On further query by the police this doctor endorsed his observation as Exh.P.C./1 on the application Exh.P.C., that injury No.l was the cause of death of the deceased, which was the result of injury by blunt weapon. He also stated that this injury might be the result of fall on hard surface.

6. Mian Muhammad Siddique, Draftsman P.W.2 prepared the site plan Exh.P.D. and its duplicate Exh.P.D./1. Muhammad Nawaz, A.S.I. P.W.3 prepared formal F.I.R. Exh.P.E./1 on the basis of complaint Exh.P.E. and also kept the sealed parcels in the Malkhana for safe custody and handed over these parcels to Anar Khan, constable on 5-7-1987 for depositing in the office of the Chemical Examiner, Lahore. Anar Khan P.W.4 deposited these parcels in the office of the Chemical Examiner. Mutawalli P.W.5 identified the dead body of the deceased. Ahmed Khan P.W.6 and Sadda P.W.7 are the eye-witnesses of the occurrence whereas Muhammad Aslam Baig P.W.8 is the Investigating Officer of this case. Ghulam Rasool and Muhammad Afzal P.Ws. were given up as having been won over and the learned D.DA. tendered in evidence the report of the Chemical Examiner Exh.P.J. and closed the case for the prosecution.

7. The appellant when examined under section 342, Cr.P.C. pleaded his innocence and stated that he was falsely involved due to enmity. He did not opt to appear as his own witness under section 340(2), Cr.P.C. Nevertheless Sana Ullah D.W.1 was produced in support of the defence of the accused persons. He stated that in his presence Ahmad P.W.6 and Muhammad Ali deceased were grappling with each other when Ahmed P.W. gave him a push due to which Muhammad Ali deceased fell down and subsequently died and none of the accused was present there. Muhammad Ali deceased was issueless and Ahmed P.W. wanted to get his Haveli for himself.

8. The learned counsel for the appellant contended that the conviction of the appellant under section 304, Part I, P.P.C. is on the face of it illegal as the learned trial Court arrived at an express conclusion that the petitioner had no intention of killing the deceased. It was argued that the appellant and Muhammad Ashraf co-accused even according to the prosecution came to the spot empty-handed. Muhammad Ashraf did not cause any injury whereas the appellant alleged to have, in the heat of passions picked up a brick from the spot and had given a solitary blow on the lower part of the chest of the deceased. The deceased then fell down and became unconscious. According to the learned counsel the solitary injury attributed to the appellant was injury No.2 described by the doctor as swelling 8 c.m. x 6 can over lower part of front of left chest and this injury had caused no damage to the deceased and this was, therefore, found "as simple in nature. It was also argued that it is prosecution's case itself that after receiving the injury No.2 the deceased had fallen down on the ground and injury No.l was described by the doctor as swelling 6 c.m. x 5 c.m. over top and back of the head. It was urged that doctor P.W.1 has categorically opined that injury No.l has caused the death of the deceased and also that this injury could be caused by a fall on hard surface. It was added that P.W.7 has conceded that some bricks were lying in the courtyard where the occurrence took place. Thus according to the learned counsel injury No.l caused the death of the deceased which is not attributed to the appellant and which resulted by fall of the deceased on a hard surface. It was argued that viewed from this perspective the appellant could only be saddled with the responsibility of causing a simple injury to the deceased and whatever followed was purely accidental and not contemplated by the appellant.

9. It was asserted that even Part II of section 304, P.P.C. is not attracted to the facts of the present case as the appellant could not be said to have any knowledge that because of hurling a brick bat at the deceased, he would fall down and his head could hit a hard surface and ultimately cause his death was lastly argued that in the circumstances of the case that the conviction of the appellant under section 304, Part 1, on the face of it is not warranted by law and at the most a case under section 323, P.P.C. is made out against the appellant for causing a simple injury with blunt weapon. He also argued that the appellant has already undergone about eight months of imprisonment as under-trial prisoner and has remained behind the bars eversince his conviction on 9-5-1988 till 31-5-1988 and he also faced a protracted trial for about a year and criminal litigation till today so this is sufficient to meet the ends of justice in this case.

10. The learned counsel for the State repelled the contentions of the learned counsel for the appellant and submitted that the prosecution successfully proved the case against the appellant beyond any shadow of doubt and the case against the appellant is made out under section 304, Part I and not under section 323, P.P.C.

11. 1 have given my anxious consideration to the argument advanced by both sides and have also gone through the prosecution evidence with the able assistance of the learned counsel for the appellant. On the point of medical evidence the admitted position is that the appellant is alleged to have caused a brick bat injury on the person of Muhammad Ali which hit him on the lower part of his chest. After receiving this injury the deceased fell down and became unconscious. Injury attributed to the appellant has been described by the doctor as injury No.2 and this had not caused any damage to the deceased and was found as simple in nature. The injury on the top and back of the head has been described by the doctor as injury No.l which in the opinion of the doctor caused the death of the deceased and he also opined that this injury could be caused by a fall on hard surface as Sadda P.W.7 conceded that some bricks were lying in. the courtyard where the occurrence took place. Thus this injury No.l which caused the death of the deceased has not been attributed to the appellant and has been caused due to the fall of the deceased on a hard surface.

12. It was argued that the brickbat was not taken into possession by the police as weapon of offence so the ocular account does not get any corroboration on the point of recovery of the brickbat. I find that brickbat is of a common pattern which was used as weapon of offence by the accused and the omission of the Investigating Officer not to take into possession the brick does not lend any support to the appellant in the peculiar circumstances of this case.

13. Some discrepancies and contradictions were highlighted by the counsel in the statements of the P.Ws. but I have not been able to comprehend any of them so material to affect the case of the prosecution although there are some contradictions and improvements in the statement of the P.Ws., but those are not of material nature which could adversely affect the case of the prosecution in any manner. In my view P.W.6 and P.W.7 are unanimous and have duly corroborated each other on all material particulars. Sadda P.W.7 is quite an independent and natural witness of the occurrence which repels the arguments of the appellant that no independent witness was produced in the case. Sadda P.W.7 was thus examined at length but he withstood the same and nothing was extracted from him which could show his inimical posture towards the accused or any soft corner for the complainant part. On the point of motive both the P.Ws. have advanced the story of quarrel between the children of both sides. In my view this quarrel over the children provided strong cause for the occurrence to the appellant who under the heat of passions attacked the deceased and inflicted him a brickbatting.

14. The learned counsel for the appellant did not argue much on r the merits of the case and laid stress on the point that the conviction of the appellant under section 304, Part II, P.P.C. is not warranted by law and the offence which is made out against him is at the most 323, P.P.C. as the petitioner could not be said to have any knowledge that because of hurling of a brickbat at the deceased which caused him only a swelling on the non-vital part of the body, the deceased would fall down and his head would hit a hard surface and ultimately cause his death. I have taken into consideration the provisions contained in section 299 and section 300, P.P.C. and find that the appellant had no previous enmity or illwill against the deceased and nor they nourished any grudge against each other. The quarrel between the children became the immediate cause of the occurrence and the appellant without any premeditation brickbatted the deceased. The result, therefore, is that there is an absence of intention to kill on the part of the appellant and nor he could be A said to have any knowledge that because of hurling a brickbat at the deceased, as a result of which he would fall down and his head would hit a hard surface and ultimately cause his death. In my view the consequence was too remote for any reasonable contemplation or knowledge. The most important aspect of the case is that Muhammad Akram appellant simply gave a solitary blow and he did not repeat the same so he cannot be said to have acted in any cruel or brutal manner.

The learned trial Court misread the evidence when it held that inn sudden fight which ensued over children and when the deceased received a solitary fatal blow then offence under section 304, Part I, P.P.C. is made out. The fact of the matter is that the fatal injury in this case is not attributed to the appellant. The deceased died due to injury No.l which is a result of the fall and the injury attributed to the appellant was simple with a blunt means so in my view the case against the appellant does not fall under section 304, Part I or Part II, P.P.C.

15. Resultantly I am persuaded to agree with the arguments of the learned defence counsel that the case against the appellant falls under section 323, P.P.C. which is punishable for one year's R.I. and not under section 304, Part I or Part II, P.P.C.

16. I have perused the record and find that the appellant has remained in the jail for about eight months and has also underwent the agony of protracted trial for about one year and criminal litigation till today so in my view this would be sufficient in this case to meet the ends of justice. In the circumstances of this case the appeal is partly accepted in terms of the modification in the conviction and sentence of the appellant.

N.H.Q./M-1650/L Order accordingly.