Allah Yar was tried by Malik Akhtar Hassan, Sessions Judge, Sargodha. Under section 302, P. P. C. For the murder of Allah Bakhsh deceased by running over him with his tractor. On 30-1-1980, Allah Yar was convicted under section 304-11, P. P. C. And sentenced to ten years' R. I. With a fine of Rs. 10,000, or in default to further R. 1. consecutively for one year. It was also ordered that out of the fine, if realized, a sum of Rs. 8,000 shall be paid to the heirs of the deceased as compensation. The appeal (Cr, A. No. 161 of 1980) of the convict and the private revision (Cr. R. No. 316 of 1980) filed by Sardar Bakhsh for the enhancement of the sentence of the convict are both now before me for disposal.
2. The brief facts of the case are that Allah Bakhsh deceased was the only son of Sardar Bakhsh complainant P. W.
5. Mst. Bevi P. W. 7, a daughter of the complainant, who had been turned out by her husband 7 to 8 years before the occurrence, was living with the complainant and assisting her brother Allah Bakhsh deceased in husbandry. Two days before the occurrence, Allah Bakhsh deceased carried manure in a hired tractor/trolly to his fields but Allah Yar accused, who had dug a pit in the way, prevented the said tractor-trolly from reaching its destination. Sardar Bakhsh P. W.
5 and 'Allah Bakhsh deceased requested Allah Yar accused to desist from the mischief, but to no avail and they had to take back their manure. On the day of occurrence, I. e. 28-3-79 at about 10/11 a. m. Sardar Bakhsh P. W. 7, Mst. Bevi P. W. 7 and Allah Bakhsh deceased were all working in their fields, when Allah Yar accused tried to pass through their fields on his tractor--trolly. They all asked him not to do so, as he had not allowed them to take their tractor-trolly two days earlier. Allah Bakhsh deceased stood erect before the tractor, but Allah Yar accused was adamant in passing his tractor-trolly through their land. This evoked an altercation, which attracted Muhammad Yar P..
W. 6 and Muhamand (given up P. W.), who were working in their nearly fields. They all asked the accused not to pass his tractor through, but the accused raised a lalkara that none could stop him from doing so. He gave a warning to the deceased to get aside or else he would run him over. The complainant and the prosecution witnesses again interceded with the accused, but he shouted at the deceased to get aside lest be may pass his tractor-trolly over his body and kill him. Thereafter, .
Allah Yar accused started his tractor and crushed Allah Bakhsh deceased under it and thereafter sped away on his tractor-trolly. Allah Bakhsh deceased died at the spot shortly after. Leaving the dead body in the charge of Muhamand (given up P. W.), Sardar Bakhsh P. W. 5 proceeded to Police Station Sahiwal where he lodged F. I. R. Exh. P. D. At 5 p. m., which was recorded by Sh. Tajammal Hussain S. L, P. W. 8.
3. After recording the F. I. R., the Investigating Officer proceeded to .The spot, where, after preparing the necessary papers, he sent the dead body for autopsy. He took into possession a wooden plank from the spot.
4. On 29-3-79 Dr. Muhammad Mazhar P. W. 1 conducted the post-mortem examination on the dead body of Allah Bakhsh deceased. Apart from superficial scratches and abrasions on various parts of the face and in the area of left hip, he found multiples scratches on the left back within an area measuring 20' x 8f starting from the tip of the left shoulder up to the left lower abdomen. Under the major injury on the left back, nine ribs were fractured, left pleura left lung and spleen were ruptured and left kidney was damaged. Left chest cavity was full of blood.. Cause of death was due to the injury on the back, resulting in haemorrhage and shock, which was sufficient to cause death in the ordinary course of nature. Apart from the injury on the back which was found to be fatal, all the others were simple and accidental. All the injuries were ante-mortem. Time between injuries and death was immediate, while that between death and post-mortem was about 22 to 26 hours.
5. On 30-3-79 Allah Yar accused was arrested by Sh. Tajammal Hussain S. I., P. W.
8. The accused led to the recovery of his tractor P.5 and trolly P. 6 from his house, which was taken into possession by the police vide memo P. H. In the presence of Sh. Tajammal Hussain S. L, P. W. 8 and Jamshaid and Muhammad Ashraf (given up P. Ws.).
6. After completing the necessary investigation, the challan against the accused was sent up.
7. At the close of the trial, the accused pleaded innocence, but explained that he was taking his tractor along the 'katcha' track which was a thorough--fare belonging to Government, while the deceased jumped into the gap between the tractor and the trolly in order to pull him down and thereby got stuck between the two, was dragged and by his own negligence was run over by the trolly. He added that he could not notice that the deceased had been run over by him. He further indicated that a day prior to the present occurrence, the deceased wanted to take a tractor through his land, but since be had to avail his turn of water that day, he stopped the deceased from plying the tractor through it.
8. The learned trial Judge, relying upon the motive and the ocular account, accepted the case of the prosecution and disbelieved the plea of the accused and convicted and sentenced the accused, as stated in para. 1 above.
9. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The occurrence is not being denied by the appellant. The version of the prosecution is that as given in the brief facts as stated in pare. 2 above and which need not be repeated here again. The version of the appellant is that as given in para. 7 above, which also need not be reproduced here. The only question, therefore, that arises is whether, after keeping in juxtaposi--petition the version` of the prosecution and that of-the appellant, the case of the prosecution stands proved or the version of the appellant is true or is reasonably possible.
According to the site plan Exh. P. B., the place of occurrence ' falls in a small pathway running through Squares Nos. 246 and 247. The pathway partly passes through Killas Nos. 1, 2, 9, and 10 of Square No. 246 and 4, 5, 6 and 7 of Square No. 247. The appellant has also admitted in his statement under section 342, Cr. P. C. That two kanals of land of Killa No. 1 of Square No. 246 is owned by his father-in-law and the rest by Sardar Bakhsh P. W. 5, but denies that two days prior to the occurrence in question the deceased wanted to take his tractor loaded with manure through his land and he had dug a ditch in the way in order to prevent him from passing his tractor over it.
However, he admitted that a day prior to the occurrence, the deceased wanted to take his tractor through his land and as he had to avail his turn of water on that day, he stopped him from plying his tractor through his fields. The motive, therefore, stands accepted. Whether the occurrence took place a day prior to the occurrence or two days prior to the occurrence, the deceased had wanted to take his tractor through the land of the appellant and had been prevented from doing so, with the result that, as has been stated by all the eye-- witnesses, namely, Sardar Bakhsh P. W. 5, Muhammad Yar P. W. 6 and Mst. Bevi P. W., on the day of occurrence, the deceased tried to prevent the appellant from passing into Killa No. 1 of Square No. 246. According to the consistent testimony of these three eye-witnesses, Allah Bakhsh deceased, Sardar Bakhsh P. W. 5 and Mst. Bevi P. W. 7 went near the tractor of the appellant and told him that they would not allow him to pass through their land, as he has not allowed their tractor to pass through his, on the earlier occasion. Allah Bakhsh deceased stood in front of the tractor the appellant asked the deceased to get aside as he had to pass through their land and nobody could stop him. Hearing this talk, Muhammad Yar P. W.
6 came' from the eastern side and Muhamand (given up P. W.) came from the west. The wrangling continued in the meantime. The appellant asked the deceased to get aside or else he would be run over and killed. The appellant then started his tractor and overran the deceased and sped away.
The injury on the back of Allah Bakhsh deceased is 2' Olong and 8 -- ' wide, running parallel to the spine. The width of this injury clearly shows that the same has been caused by the front wheel of the tractor had the rear wheel of the tractor passed over the back of the deceased, it would not only have left angular indentations of the tyre on his back but crushed the body of the deceased.
The rear tyre of the tractor is almost 12'--14' wide and has angular indentation and being fitted next to the machine, takes the maximum load of the tractor on it. Had the rear wheel of the tractor passed over the back of the deceased his body would also have been crushed. Likewise the two wheels of the trolly of the tractor usually are ordinary truck wheels fitted with truck tyres. Truck tyres are also 10" to 12" in width. 1f, as submitted by the appellant, the deceased was, overrun by the wheels of the trolly fitted behind the tractor, the width of the injury on the back should have been at least 10' to 12' wide. Sincethe. Trolly was stated to be full of manure, the body would also have been crushed, but this was not the case. The prosecution story that the deceased was overrun by the front wheels of the tractor appears, therefore, to be the--correct version. ': he learned trial Judge found accordingly and I have no reason to disbelieve his findings. It only now remains for me to discuss the evidence of Mulazim Hussain Dhatti S. P. Crimes C. W. 2, who was summonedas a Court witness and who deposed that according to his conclusion, the deceased had died as a result of his own negligence when he got run over by the trolly in attempting to pull down the appellant from the seat of the tractor. However, in cross-examination he admitted that though he had recorded in his zimni that he had made inquiry at the spot and recorded the statements of the witnesses and the respectables belonging to both the parties present at the spot, he had to admit that he had not formally recorded the statements of those notables produced by the parties before him. He also had to admit that apart from the eye-witnesses he did not enquire about the occurrence from any body else from the village. The statement, therefore of Mr. Mulazim Hussain Bhatti S. P. Crimes C. W. 2 that the deceased attempted to pull down the appellant from the -seat of his tractor and in that ,process fell down and got overrun by one of the wheels of the trolly, cannot be accepted. In the first instance, it is unimaginable that the deceased would have attempted to or was able to jump on to the seat of the appellant's tractor, when the same was in motion. It is the case of the appellant that the deceased jumped into the gap between the tractor and the trolly, when the tractor was in motion, to pull him down. This situation appears to be unbelievable but assuming he did so and- got stuck -between the two and was dragged by his own negligence and got overrun by the trolly, as is stated by the appellant, there are no drag marks on the body of the deceased. Had the deceased got stuck between the tractor and the trolly and was dragged, he would have received serious lacerations. All over his body, apart from the mark of the trolly wheel on his back, but there appears to be no serious lacerations on the body of the deceased evidencing dragging. For all these reasons, the story of. The defence does not appear to be true or reasonably possible. The same must, therefore, be rejected.
10. It is also contended on behalf of the appellant that as the appellant was driving on a public pathway and the deceased voluntarily obstructed him at the peril of his life, even though warned a number of times to- get aside or to face the prospect of being turnover, . The. Principle of volenti non fit injuria applies and the appellant is not liable for any offence. It is not clear whether the pathway was public, but it cannot be denied that the occurrence was on a pathway passing through Square Nos. 246 and 247; used very likely, amongst others, by the deceased and the appellant, apart perhaps from other villagers. It cannot be denied that the deceased, by his own obstinacy and stupidity, in trying to stop the. Tractor, even though warned to get aside, contributed to his own death and the appellant; being young and impetuous, did not have any regard for the safety of the deceased and overran him mercilessly. The principle of volenti. Non fit injnria is not unconditionally applicable in criminal jurisdiction. It is hedged by the principles contained in section 87, P. P. C. The mere consent of a person above eighteen years of age to suffer harm, only justifies such harm from-- any act which is not intended to cause, and which is not known by the doer to be likely to cause death or grievous hurt. In the case in instance, the deceased did not consent to being overrun and the appellant knew that if he started the tractor and overran the deceased; death or grievous hurt would undoubtedly result. The principle of volenti non fit injuria does not apply. The protection of section 87 of the Pakistan Penal Code is not available to the appellant. The appellant is therefore, criminally liable I1. The upshot of the above discussion is that the case against the appellant stands properly proved. He should have been convicted under section 304-I, P. P. C. Since I have decided to reduce his sentence, the alteration of his conviction would not materially effect the case.
12. As regards the sentence, taking into consideration the fact that the occurrence occurred on a pathway, which gave the appellant the expectation of right to its free use, and the fact that the incident was contributed partly by the gross obstinacy and stupidity of the deceased, I would reduce the appellant's sentence, whilst maintaining the fine, but would order the payment of compensation in the case. The sentence of the appellant is reduced from ten years' rigorous imprisonment to five years' rigorous imprisonment, The appellant shall pay a fine of Rupees Ten Thousand (Rs. 10,000), or, in default thereof, suffer further rigorous imprisonment for one year. The appellant shall also pay Rupees Ten Thousand (Rs. 10,000), to the heirs of Allah Bakhsh deceased as compensation under section 544-A, Cr. P. C. Or, in. Default thereof, suffer further rigorous imprisonment for one year. Out f the fine, if realised, Rupees Eight Thousand (Rs. 8,000) shall be paid to the heirs of Allah Bakhsh deceased as compensation. ,
13. This appeal, therefore, stands partly accepted in terms of reduction of sentence, as stated above. There being no merit in the revision (Cr. R. 35 of 1980) filed by Sardar Bakhsh, the same is dismissed in limine revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.