' SYED HUSSAIN MAZHAR KALEEM, J.-The above titled appeals have been directed against the judgment passed by Additional District Court of Criminal Jurisdiction, Dadyal, dated 31-8-2006 whereby Abdul Guftar, Hafiz Muhammad Shabir and Sheraz were convicted under sections 302/337, 34, A.P.C. While Abdul Aziz was acquitted of the charge.
2. Brief facts leading to the background of the appeals are that a case under sections 324/337, 34, A.P.C. Was registered at Police Station, Dadyal on the complaint of Ali Muhammad. It was reported that complainant was resident of Baloh Jandala Tehsil Dadyal. His son Yasrub was residing in Mirpur. He was apprehended by the police in a case registered against him under the prohibition (Enforcement of Hadd) Act. Later on due to ailment he was admitted in Al-Shifa Hospital, Rawalpindi. On 21-3-2001 the complainant, his sons Muhammad Aslam and Abid Hussain went to see him. Hafiz Muhammad Shabir Son-in-law of the complainant was already present in the hospital. The patient was discharged and the complainant, Hafiz Muhammad Shabir and others brought him back to village Baloh. Hafiz Muhammad Shabir asked the complainant to leave the patient at his house as he wanted to look after him. The complainant agreed and came back to his house. On 23-3-2006 in the morning the complainant, his son Muhammad Aslam and Muhammad Yasin son of Bagh Hussain came to the house of Hafiz Muhammad Shabir to take Yasrub home.
Alaf Din, uncle of Hafiz Shabir asked them to come in the evening for the purpose because of which the complainant, Muhammad Aslam, Abid Hussain, Muhammad Yasin, Muhammad Ameen and Zaffar came to the house of Hafiz Shabir at 6-30 p.m. Alaf Din, Guftar, Sheraz, Hafiz Shabir and Abdul Aziz were present over there. The complainant demanded to send Yasrub with them but Alaf Din refused and said that he would send the patient after 8/10 days. Upon this the complainant asked him to fulfil the promise and allow taking his son. In the meantime they exchanged hot words and the complainant party stood up for leaving the house. As they came in the courtyard of the house, Hafiz Shabir, Guftar, Sheraz and Abdul Aziz armed with sticks opened attack. Guftar and Hafiz Shabir inflicted sticks injuries at the head and right eye of Muhammad Aslam while Abdul Aziz and Sheraz gave beatings to Abid Hussain. The complainant was also beaten by the accused persons. The occurrence was witnessed by members of the complainant party and others. Motive behind the occurrence was an old enmity.
3. Muhammad Aslam succumbed to the injuries on 24-3-2006 and offence of 302, A.P.C. Was added. The challan under sections 302/324,337, A.P.C. Was submitted before Additional District Court of Criminal Jurisdiction, Dadyal. On conclusion of the trial, the Court convicted and sentenced life imprisonment to Abdul Guftar and Hafiz Muhammad Shabir under, section 302, A.P.C.
While Sheraz was sentenced 5 years imprisonment under section 324, A.P.C. And 5 years simple imprisonment under section 337, A.P.C. Through the impugned judgment. Hence these appeals.
4. Learned counsel for the convict appellant argued that the sister of Hafiz Muhammad Shabir appellant was married to Abid Hussain. Due to strained relations she was living with her brother.
Because of which an enmity was prevailing between the parties. The occurrence took place in the house of Muhammad Shabir. The complainant party came there which indicated that they were aggressors. The prosecution suppressed material facts and manner of the occurrence. Abdul Guftar accused also sustained injuries. In fact exchanging of hot words between the parties resulted into a free fight wherein both the parties suffered injuries. True account of the occurrence was suppressed by the prosecution. The ocular version was concocted and fabricated. The prosecution witnesses were inimical towards the convict appellants. They were inter se related and interested thus their deposition was not safe to be believed as it was not corroborated by any independent material. The statements of prosecution witnesses suffered from material contradictions and were also in conflict with medical evidence. The cause of death described in the post-mortem report was single injury found at the head of deceased and without ascertaining as to who caused it, the conviction was not warranted. Number of members of the complainant party suggested that they were trespassers and assailants as they initiated exchange of hot words and opened attack resulting into death of Muhammad Aslam and causing injuries. Learned counsel submitted that no independent corroborative material in support of ocular version was brought on record. Recovery of sticks at instance of the convict appellants was highly doubtful and it was of no help to the prosecution case. The trial Court failed to appreciate that the prosecution story being improbable was not worth consideration, therefore, by accepting the appeal, they may be acquitted of the charge.
5. On the other hand, it was argued that the occurrence took place during day light. The parties were known to each other, thus identification of the accused persons was not in doubt. They were nominated by the complainant in promptly lodged F.I.R. The names of the eyewitnesses were also given in it and their presence at the place of occurrence was not disputed. He further argued that time and place of occurrence were established and were also admitted by the defence. Trend of cross-examination confirmed the ocular version and same was corroborated by the post-mortem report, medical report pertaining to the injured P.W. And recovery of weapons of offence at instance of the convict appellants. He submitted that the prosecution proved its case beyond any doubt and there was no legal justification to award lesser punishment to the convicts and to acquit Abdul Aziz respondent, therefore, by accepting the appeal the sentences may be enhanced and acquitted respondent may also be convicted under law.
6. Learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. Since both the appeals arise out of the same order, therefore, these shall be disposed off through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution version as appears from the record that Yasrab son of the complainant was admitted in Al-Shifa Hospital, Islamabad. He came to know about his ailment through a newspaper and went to see him with Muhammad Aslam and Abid Hussain. Hafiz Muhammad Shabir son-in- law of the complainant was already present in the hospital. The complainant, Hafiz Muhammad Shabir and others brought the patient back to village Baloh as he was discharged from the hospital. Muhammad Shabir asked the complainant and his sons that he wants to look after the patient, therefore, they should allow him to stay at his house. The complainant agreed and on 23- 3-2006 in the morning Muhammad Aslam and Muhammad Yasin came to house of Muhammad Shabir* to take Yasrab home. Alaf Din uncle of Muhammad Shabir asked them to come in the evening for the purpose upon which the complainant, Muhammad Aslam, Abid Hussain and Muhammad Yasin came there at 6-30 p.m. Alaf Din, Guftar, Sheraz, Hafiz Shabir and Abdul Aziz were present there. The complainant asked them to send Yasrab with him but Alaf Din refused and insisted that the patient will stay for a further period of 8/10 days with them. Upon this the complainant asked him not to break promise and in the meantime hot words were also exchanged. The complainant accused them for uncivilized attitude and they left the house. As the complainant party came into the courtyard of the house of Hafiz Muhammad Shabir, Guftar, Sheraz, Abdul Aziz and Hafiz Muhammad Shabir armed with sticks opened attack. Guftar and Hafiz Shabir inflicted injuries at the head and right eye of Muhammad Aslam while Abdul Aziz and Sheraz gave beating to Abid Hussain with sticks; The complainant was also beaten by them. After the occurrence, the complainant party came at the road which was blocked by the accused persons.
Later on they went away and it took two hours to the complainant to get vehicle and to come to police station where the report was lodged at 10-00 p.m. Muhammad Aslam succumbed to the injuries while on his way to District Head Quarter Hospital Mirpur. Motive behind the occurrence was that sister of Hafiz Muhammad Shabir was married to P.W. Abid Hussain but due to strained relations she was living with her brother. The evidence was relied upon by the trial Court while convicting the appellants.
10. A careful consideration Of the evidence shows that an unpleasantness was prevailing between the parties due to strained relations of Abid Hussain and his wife. She was living with her brother Hafiz Muhammad Shabir in his house. Yasrab son of the complainant was sick and was also present in the house on the day of occurrence. The complainant party came there. Exchange of hot words resulted into the occurrence and the parties inflicted stick injuries to each other. Muhammad Aslam died and during autopsy two blunt injuries were found at his head. As per post-mortem report Exh.PK the death occurred due to severe head injury causing extensive brain damage and leading to cardio pulmonary arrest but it was not clear from the report or from the deposition of P.W. Doctor that which of the injuries caused death. Abdul Guftar and Hafiz Muhammad Shabir were alleged for causing the injuries but the prosecution also failed to establish that who was responsible for giving fatal blow resulting into death of the deceased. Abdul Guftar convict appellant also, sustained blunt injuries which were suppressed by the prosecution; however, medical report pertaining to him was available at the page 23 of the trial Court's file. Thus the only question which needs consideration was that whether the convict appellant and others attacked the complainant party with intention to kill them particularly in view of the weapons used for commission of offence or due to exchange of hot words suddenly a free fight took place which resulted into death of Muhammad Aslam.
11. It may be stated here that if an offender with the intention of causing death, or with intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that the act is so imminently dangerous that it must in all probability cause death, causes death of such person is said to commit qatl-i-amd. It may also be added here that where a person by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act Committed by the offender shall be liable for Qatl-i-Amd. The weapon used for commission of an offence has to be considered for the purpose as an act with intention to cause harm to the body or mind of any person resulting into his death by means of a weapon or the act which in the ordinary course is not likely to cause ydeath, does not constitute offence punishable under section 302, A.P.C., thus it follows that intention is the primary consideration showing aim and objective of an offender.
12. In the present case the parties were closely related to each other. No evidence showing serious dispute or enmity was brought on record. The complainant party came to the house of Hafiz Muhammad Shabir. Exchange of hot words resulted into a sudden free fight. Sticks were used during the occurrence. There was no pre-meditation or anything to show that the convict appellants and acquitted respondent were intending to commit the offence of Qatl-i-Amd, therefore, I am of the view that the case of the convict appellants does not fall under section 302/34, A.P.C., however, the same was covered by sections 315/337 , A.P.'C.'
13. P.W. Abid Hussain deposed that Sheraz gave sticks blows at his head and shoulders and also alleged Abdul Aziz for giving three sticks blows, out of which one hit him at his left shoulder. A study of medical report Exh.PL shows that victim suffered four injuries. Injury No,l was two small abrasions on dorsum of right wrist and hand which was Jurh Gayr-Jaifah Damiyah. Three contusions were described as Nos.2 and 3 but nature of the injuries was not explained by the doctor. Injury No,4 which according to X-ray No,450 taken in Tehsil Head Quarter Hospital, Dadyal shows fracture accromion process was described as Jurh Gayr-Jaifah Munaqqilah, Thus it implies that unexplained injuries do not provide support to the prosecution case while injury No,l was not attributed to any of the accused persons by the P.W: therefore, Abdul Aziz accused respondent was rightly acquitted by the trial Court. In light of the deposition of victim and medical report Exh.PL it stands proved that Sheraz was responsible for causing injury No,4, thus committed offence punishable under section 337-F(6), A.P.C. The said section provides that the offender shall be liable to Daman and may also be punished with imprisonment of either description which may extend to 7 years as Tazir. The trial Court awarded 5 years imprisonment to the convict appellant which in my view was not justified in the circumstances of the case, therefore, Rs, 10,000 Daman which shall be paid to P.W. Abid Hussain and imprisonment already undergone by the convict is sufficient to meet the ends of justice, however in view of the facts listed in para. 12 the convict is acquitted of the charge under section 324, A.P.C.
14. As said earlier that convict appellants were not liable for committing the offence of Qatl-i-Amd and conviction under section 302, A.P.C. Was not warranted in the circumstances. Due to exchange of hot words a sudden free fight took place between the parties. Abdul Guftar and Hafiz Muhammad Shabir were alleged for causing head injuries at the person of the deceased but it was not established that who was responsible for giving fatal blow, therefore, the case of both the convict appellants was covered by section 315, A.P.C. And ' punishment provided for the offence under section 316, A.P.C. Is as under:- "Punishment for Qatl Shibh-i-amd: 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 Ta'zir."
15. In light of the facts listed above by modifying the impugned judgment Hafiz Muhammad Shabir and Abdul Guftar are convicted under section 316, A-P-C. They are awarded sentence of Diyyat and 7 years imprisonment each. The amount of Diyyat equal to the value of 30,630 grams silver calculated as Rs,7,65,750 shall be deposited before Additional District Court of Criminal Jurisdiction, Dadyal to be paid to the legal heirs of the deceased as per their petitioner; and that was why the petitioner shares in accordance with law. Benefit of had not prayed for release of her husband section 382-B, Cr.P.C. Is also extended to the convicts.
16. The upshot of the above discussion is that the appeal filed by the complainant is dismissed while the appeal filed by the convict appellants is accepted in the terms indicated above.