Appellant Ahmad Sher through the instant appeal has challenged the judgment dated 29.9.2003 passed by the learned Additional Sessions Judge, Faisalabad whereby he convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life for committing the Qatal-e- Amd of Mst. Amina Bibi and also liable him to pay a sum of Rs. 50,000/- as compensation to the legal heirs of the deceased and in default whereof to further undergo imprisonment for six months with benefit of Section 382-B Cr.P.C. in a case FIR No. 137 dated 9.6.2002 offence under Section 302 PPC registered with Police Station Mamum Kanjan, District Faisalabad.
2. Hassan Ali, the complainant of said case being aggrieved also filed Crim. Revision No. 1130 of 2003 before this Court for enhancement of sentence of the appellant.
3. By this single Judgment, I intend to dispose of Criminal Appeal No. 1902 of 2003 and Criminal Revision No. 1130 of 2003 filed by the complainant for enhancement of sentence jointly, as common question of law and facts is involved in both of the matters.
4. Brief facts of the case as per FIR are that Mst. Amina Bibi deceased (wife of Hassan Ali complainant) on 9.6.2002 at about 11:00 a.m. went to the tube well of Muhammad Amin son of Sadiq to water her buffaloes. The buffaloes sat in the watercourse. After a short while, Ahmad Sher accused attracted at the tube well with his mare and put it in the watercourse as a result whereof the buffaloes of the deceased got frightened and stood up from the water course. The deceased asked the accused to take out the mare from the watercourse otherwise she will inflict a sota blow to the mare. Upon which the accused had extended threats of dire consequences to the deceased, in case she did anything with his mare. When deceased raised sota to inflict the same on his mare, Ahmad Sher accused picked up a brick and pelted the same on the head of the deceased, which hit on the left side of her head and she fell down. The complainant witnessed the occurrence as he was present at a distance of 8/10 karams and attracted the spot. Ahmad Ali, Niaz Ahmad and Wahid Amin PWs who were already present at the tube well also witnessed the occurrence. The complainant and Ahmad Ali tried to save Mst. Amina Bibi deceased but Ahmad Sher picked up the second brick and threatened the complainant and then he left the spot by riding on his mare.
5. The police arrested the appellant and on completion of investigation submitted the Challan under Section 173 Cr.P.C. before the trial Court.
6. The trial Court formally framed the charge against the appellant on 28.2.2003 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case examined Nazir Ahmed Helga Patwri (PW1), Lady Dr. Rehana Tamkeen (PW2), Shahmand Ali-C # 2241 (PW3), Hassan Ali (PW4), Wahid Amin (PW5), Talib Hussain HC (PW6), Ashiq Hussain, SI (PW7) whereas Ahmad Ali, Niaz Ahmad and Allah Waris PWs were given up being unnecessary. The prosecution also tendered documentary evidence to strengthen its case.
7. After closure of the prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P.C. in which he denied the charge and pleaded his innocence and stated that the complainant and PWs were not present at the place of occurrence and a false story has been made. Actually the appellant's father had tethered his mare with one end of a long rope while putting the rope around one of the front leg of the mare and that the other ena of the rope was tied with keekar tree in his land situated in Killa No. 21 Square. No. 46 Chak No. 504/GB which is owned by his father and the deceased had gone near the mare in order to collect the Lidd (mare dung) for mixing it with mud to plaster the walls and floors of her house. The mare was perturbed when deceased went near hind legs of the mare upon which the mare gave kicks with its hind legs to the deceased as a result whereof she became injured. The appellant's father and the son of the deceased attracted at the spot. Mst. Amina Bibi was taken to her house and thereafter she sccu mbed to her injuries in the hospital. The appellant denied the motive part of the occurrence.
8. The appellant opted to produce defence evidence however, he did not opt to appear as his own witness on Oath as required Section 340(2) Cr.P.C. Thereafter the appellant made his statement and tendered in evidence copy of register of record of rights Exh. DB and copy of Khasra Girdawari Ex. DC which were exhibited under objection of the learned counsel for the complainant.
9. The trial Court after conclusion of the trial convicted and sentenced the appellant as mentioned above.
10.I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and gone into the available record with their kind assistance.
11.The prosecution in order to prove its case produced seven witnesses. PW-1 is. Halqa Patwari who prepared the site-plan, which is Exh. PA and produced in evidence its duplicate Exh. PA/1, PW-2 Dr. Reehana Tamkeen, Woman Medical Officer, Tehsil Headquarter Hospital conducted the autopsy on the dead body. PW-3, Shamshad Ali Constable 2241 who escorted the dead body of Mst. Amina Bibi deceased for postmortem examination and thereafter received last worn clothes P-1 to P-3 and produced it before the I.O. which were taken into possession vide recovery memo Exh. PE attested by the PWs. PW-4 Hassan All is the complainant of the case. PW-5 is the eye-witness of the occurrence. PW-6 Talib Hussain who received the complaint Exh. PF and. PW-7 Ashiq Hussain was the I.O. of the present case. In their statements (PW4 & PW5) categorically stated that on 9.6.2002 at about 11:00 a.m. Mst. Amina Bibi, deceased who was wife of the complainant was present at the tube well of Muhammad Amin to water the buffaloes. The buffaloes sat in the watercourse. In the meanwhile, the appellant came on mare, he put the mare in the watercourse whereupon Mst.Arnim Bibi deceased asked the appellant to take out the mare from the water course as the buffaloes were being frightened. The appellant refused to take out the mare from the water course where upon Mst. Amina Bibi deceased said to the appellant that she will inflict sota blow on the mare upon which Ahmad Slier accused threatened the deceased, if she causes any harm to his mare, he will kill her. Thereafter Mst. Amina Bibi deceased raised sota to inflict his mare, as a result whereof the appellant picked up a brick and pelted the same on the head of the deceased hitting on the right side of her head and she fell down. It is further stated by him that the complainant had two wives and his first wife Mst. Nazia who was Phoophy Zad of Ahmad Sher appellant and thereafter the complainant married with Mst. Amina Bibi deceased, due to this background of motive, Ahmad. Sher appellant caused the death of the deceased. This statement is fully corroborated by Wahid Amin (PW5). Both the witnesses were subjected to lengthy cross- examination but nothing could be found in favour of the appellant who had consistent statements regarding the occurrence. The learned counsel for the appellant is unable to point any major or material contradiction in between their statements. Two pieces of bricks were also recovered from the place of occurrence which is P-4/1-2 and were taken into possession vide recovery memo.
Exh.PG. This fact further corroborates the version given by the Wahid Amin (PW). After conclusion of prosecution evidence, the appellant while making statement, tinder Section 342 Cr.P.C. answered the question as to why this case is against you and why the PWs have deposed against you in the following words:-- "The case-is false Hassan Ali complainant, Wahid Amin Ahmad All and Niaz Ahmad PWs were not present at the place of occurrence at the time of occurrence and that the above mentioned PWs did not see the occurrence. The PWs have made false statements being related to Mst. Amina Bibi deceased and being inimical to me. Actual facts are that on 9.6.2002 at about 11 a.m. Muhammad Hanif my father had tethered his mare with one end of a long rope while putting the rope around one of the front leg of the mare and that the other end of the rope was tied with Keekar Tree in his land situated in Killa No. 21 Square No. 46 Chak No. 504/GB which is owned by my father and that Mst. Arnina Bibi deceased had gone near the mare in order to collect the Lidd (mare dung) of the mare. Mst. Amina Bibi deceased wanted to mix the same with mud to plaster the walls and floors of her house. The mare was perturbed when Mst. Amina Bibi went near hind legs of the mare upon which the mare gave kicks with its hind legs to Mst. Amina Bibi and consequently Mst: Amina Bibi got herself injured. Muhammad Hanif my father who was present in his fields nearby, in order to save Mst. Arnina Bibi and in the meantime, son of Mst. Amina Bibi also reached there who took Mst.
Amina Bibi to their house and later on she was taken to the hospital and died. I am absolutely innocent and have been falsely implicated by the complainant because of enmity. The complainant prevailed upon the police and got me falsely challaned in this case."
12.The learned counsel for the appellant has submitted that what is stated by the appellant in his statement was the actual occurrence and the prosecution has twisted the story. To ascertain as to whether the plea raised by the appellant is correct or otherwise. The statement of Lady Dr. Reehna Tamkeen who conducted the postmortem of the deceased and appeared as PW2 is relevant. In her statement, she deposed that in case of injury by a kick of mare as contended by the learned counsel for the appellant there would have been definitely a sign of mare foot on the seat of injury and admittedly there is no mark of mare's foot on the seat of injury of the deceased.
13.In view of the above, the prosecution proved that the deceased died as a result of receiving a brick bat injury inflicted by the appellant. However, the question remains to be determined as to which offence is constituted, admitted facts are that there is exchange of hot words in between the appellant on one hand and Mst. Amna Bibi on the other hand during which blow of brick bat was caused on the temporal bone of Mst. Amna Bibi deceased, as a result of which she fell down and subsequently succumbed to the injuries received by her. Whether on the basis of these facts Section 302 PPC is attracted, answer is no. Section 315 PPC enacted as a result of Qisas & Diyat Ordinance introduces a new offence titled as Qatl Shibh-i-Amd which is defined as follows:-- "Qatl Shibh-i-Amd Whoever with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon of an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-Amd".
It is supplemented with an illustration in the following words:-- Illustration "A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl Shibh-i-Amd".
14.Section 316 PPC prescribed the punishment for Qatl Shibh-i-Amd lying down that whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
15.After going through Section 315 PPC and its illustrations there remains no doubt that the facts of the instant case fully attract Section 315 PPC, the sentence of which has been ascribed in Section 316 PPC, if the facts of a case attract a specific section of the Code as in the present case Sections 315 & 316 PPC are fully attracted then conviction cannot be recorded under any part of Section 302 PPC. As per the prosecution case itself a brickbat blow was inflicted on the temporal bone of the deceased by the appellant and brickbat is not ordinarily a weapon of offence but in this case had proved fatal and unfortunately a poor woman lost her life. The conviction, therefore, has to be recorded under Section 316 PPC and not under Section 302 PPC. The conviction recorded by the trial Judge under Section 302, PPc is, therefore, against law and same is set aside and altering the conviction, the same is recorded under Section 316 PPC.
16.Adverting the question of sentence it has been laid down by Section 316 PPC that offender shall be liable to pay Diyat to the legal heirs of the deceased. Alongwith payment of Diyat maximum term of imprisonment extending up to fourteen years has also been prescribed. The learned counsel has argued that the appellant is a person of old age had no motive or ill will, this contention is not without substance. By taking into consideration the facts and circumstances of the case and keeping in view that the appellant has also undergone the sentence of more than four years, imprisonment for a period which he has already undergone will meet the ends of justice. Accordingly, the appellant's conviction and sentence under Section 302 PPC is set aside.
The appellant is convicted under Section 316 PPC who will pay Diyat as calculated on the day of occurrence which comes to Rs. 2,80,167/- as per Notification issued by the Government of Pakistan, dated 30.7.2002 to the legal heirs of the deceased and the sentence he has already undergone.
17.This appeal is disposed of with the above modification qua the appellant's conviction and sentence.
18.As the sentence of the appellant is reduced to that he has already undergone, therefore, Criminal Revision No. 1130 of 2003 has lost its veracity. Resultantly, this petition is dismissed being devoid of any merit.