' M.A. SHAHID SIDDIQUI, J.--Sadi Ahmad (aged 26 years) and his brother-Ali Ahmad (aged 17 years) appellants were tried by a learned Additional Sessions Judge, at Okara, along with their father Muhammad Ali and younger brother Ghulam Nabi, for committing Qatl-e-Amd of Zawar Hussain, aged 14 years in case F.I.R. No,19 of 2000,dated dated 22-1-2002 Police Station Gogera District Okara. The appellants were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. And sentenced to imprisonment for life and also directed to pay Rs,1,00,000 each to the legal heirs of the deceased or in default thereof to suffer further imprisonment for six months by the learned trial Court, vide judgment dated 28-9-2002. Through the same judgment Muhammad Ali and Ghulam Nabi co-accused were acquitted.
2. The occurrence took place on 21-1-2002 at about 4-30 p.m. In the area of Chak No,36-A/GB, which is at a distance of 20 kilometers from the Police Station Gogera. It was reported at the police station on 22-1-2002 at about 3-00 a.m. According to the F.I.R., Mukhtar Hussain-complainant was carrying fodder for his cattle on a donkey-cart at 12'O clock in the noon on the day of occurrence.
He was stopped on the way by the accused and restrained from using the path. There was an exchange of abuses between the two sides. At about 4-30 p.m., Zawar Hussain-deceased, after coming to know about the incident, inquired from Muhammad Ali-accused, upon which, the latter started abusing Zawar Hussain and went away. It is alleged that after a short-while Muhammad Ali accompanied by his three sons namely Sadi Ahmad, Ali Ahmad and Ghulam Nabi, armed with Sotas and Kassies, arrived there. Muhammad Ali-accused, allegedly raised Lalkara, upon which his three sons attacked Zawar Hussain. All Ahmad inflicted a Kassi blow, which landed on the forehead of Zawar Hussain. Sadi Ahmad and Ghulam Nabi-accused caused hurt to Zawar Hussain on his right shoulder and on the right eye. Muhammad Ali-accused also gave a Sota blow on the right shoulder of Zawar Hussain. On the alarm, raised by the complainant, Aashiq Ali (P.W.4) and Noor Muhammad (P.W.5), who had been given up by the Prosecutor before the recording of their statement, arrived at the spot. Zawar Hussain was removed to Civil Hospital, Okara, in an injured condition, where he was medically examined at 7-00 p.m. By Dr. Nazir Hussain (P.W.6). In view of his precarious condition, he was being removed to a hospital at Lahore, when he died on the way at Pattoki. Muhammad Zafar, S.I., recorded the statement of Mukhtar Hussain-complainant (Exh.P.B.) in D.H.Q. Hospital, Okara, on the basis of which, formal F.I.R. (Exh.P.B./l) was drawn by Nazir Ahmad, Head-Constable (P.W.Ll). Muhammad Zafar, S.I. Prepared the inquest report (Exh.P.K.), injury statement (Exh.P.L.) before sending the dead body to the mortuary for post-mortem examination.
He, then, inspected the spot, from where he collected the blood-stained earth, vide memo.
(Exh.P.C.) Muhammad Ali, Sadi Ahmad, Ghulam Nabi and Ali Ahmad- accused got recovered Sotas and Kassies (P.3, P.4, P.5 and P.6), while in police custody. After completion of the * investigation, all the four accused stood challaned.
3. The accused pleaded not guilty to the charge formed against them on 15-5-2002. The prosecution examined 12 witnesses. Mukhtar Hussain (P.W.3) and Aashiq Hussain (P.W.4) furnished the ocular account of the occurrence in conformity with the contents of the F.I.R.
4. Dr. Nazir Hussain (P.W.6) deposed that on 21-1-2002 at about 7-00 p.m., he examined Zawar Hussain and found the following injuries on his person:-
(1) A lacerated wound 3 c.m. x 1-1/2 c.m. Bone deep on left side of forehead, there was a contused swelling 13 x 9 c.m. On the left side of forehead and around the left eye.
(2) A contused swelling 7 x 5 c.m. Around the right eye.
(3) A contusion mark 4 c.m. x 1-1/2 c.m. On the top of right shoulder.
5. He testified his report (Exh.P.D.) Dr. Arshad Iqbal (P.W.10) had conducted the post-mortem examination of Zawar Hussain on 22-1-2002 at 11-00 a.m. And found only one injufy, the description of which is as under:- "Lacerated wound 4x2 c.m. Bone exposed on right side of forehead, 5 c.m. Above right eyebrow'.
Bleeding through right ear was there.
' On the dissection, frontal and parietal bones on right side of head were found fractured. All other organs were healthy. He opined that the death was the result of haemotoma formation on the brain, which was the result of head injury caused by blunt weapon. The probable time between injury and death was six hours and between death and post-mortem examination was 10 hours.
The remaining evidence is less or more of formal nature.
6. The learned trial Court, after taking into consideration the entire evidence, held both the appellants guilty for committing Qatl-e-Amd of Zawar Hussain and sentenced them to imprisonment for life. The convicts have challenged their conviction through Criminal Appeal No, 1819 of 2002, whereas Mukhtar Hussain-complainant, feeling dissatisfied with the sentence, has filed Criminal Revision No, 1160 of 2002 for the enhancement of the sentence.
7. The learned counsel for the appellants, while assailing the conviction, inter alia, argued that the occurrence is not premeditated; that it was the result of a sudden flare up; that no injury has been attributed to Sadi. Ahmad; that there is nothing on the record to show that Zawar Hussain had been removed from D.H.Q. Hospital, Okara, on the advice of the doctor and that the complainant was himself responsible for the delay in reaching the hospital, which resulted into the death; that the evidence on record does not show that Ali Ahmad inflicted the Kassi blow with the intention to kill Zawar Hussain.
8. On the other hand, the learned counsel for the State assisted by the learned counsel for die complainant supported the judgment. It has been argued on behalf of the State that Ahmad Ali accused gave a Kassi blow on the forehead of Zawar Hussain, which proved fatal, as such, Ahmad Ali would be deemed to have caused this injury to commit Qatl-e- Amd.
9. I have considered the arguments put forth by the learned counsel for the parties and have gone through the record. The accused, in their statements under section 342, Cr.P.C. Did not deny their presence at the spot. Admittedly, the occurrence took place on a path near the Haveli of the complainant, which is not used as a human dwelling because there was no room in the Haveli, as admitted by Zafar Ullah Khan, Patwari (P.W.8). The occurrence appears to be the result of sudden flare up and there is nothing on the record to show that it was premeditated. Ahmad, Ali accused is alleged to have inflicted a solitary Kassi blow on the head of Zawar Hussain. According to the postmortem examination report (Exh.P.Q.), there was only one injury on the forehead of Zawar Hussain. The statements of the P.Ws. That the remaining accused also caused hurt to Zawar Hussain-deceased are in conflict with the post-mortem examination report. The Medico-legal report (Exh.PD) does not bear the thumb- impression of Zawar Hussain. There are other infirmities as well in the evidence of Dr. Nazir Ahmad (P.W.6). The possibility of its having been prepared subsequently cannot be ruled out. Sadi Ahmad-accused has admittedly caused no injury, therefore, his conviction is liable to be set aside on this ground alone. Ahmad Ali-accused is stated to have caused a solitary blow and that too with the blunt side of the Kassi, as such, he cannot be said to have committed Qatl-e-Amd of Zawar Hussain, therefore, his conviction under section , 302(b), P.P.C. Is set aside. He is held guilty for an offence under section 337F(v), P.P.C. Accordingly, he is convicted and held liable to pay Rupees One lac as Daman and suffer imprisonment for five years as Ta'zir. He shall be kept in jail until Daman is paid in full, as required under section 337-Y(2), P.P.C. Sadi Ahmad shall be released forthwith, if not required in any other case. Criminal Revision No, 1160 of 2002 being devoid of any substance fails and is hereby dismissed.