' ABDUS SATTAR ASGHAR, J. This appeal under section 417(2-A). Cr.P.C is lodged against the judgment dated 30-9-2010 passed by learned Sessions Judge Bahawalnagar whereby - Muhammad Shahid respondent No,1 was acquitted of the charge under section 302, P P.C. And convicted under section 316, P.P.C. In case F.I.R. No,510, dated 9-10-2009, registered under section 302, P.P.C., at Police Station Faqirwali, District Bahawalnagar.
2. Prosecution case as set forth by Muhammad Ali son of Bashir Ahmed (deceased) in the F.I.R.
(Exh.PG) lodged on 9-10-2009 at 4-30 p.m. Is that he is resident of Chak No,129/6-R and working as teacher in a private school; that his father Bashir Ahmed and Muhammad Shahid (accused) are co-sharer in a joint khata; that Killa No,21 of Square No,2 was divided into three equal shares i,e, Bashir Ahmed, Muhammad Shahid (accused) and Muhanunad Amin; that within the said Killa a `kasha' path exists leading towards their land; that his father used to pass through the said kacha' passage; that prior to the occurrence Muhammad Shahid accused quarrelled with complainant's father and pronounced that he will not allow him to use that path; that a day earlier to the occurrence accused Muhammad Shahid exchanged hot words with complainant's father, however, the matter was patched up; that on the day of occurrence at about 10-00 p.m. His father on a bull-cart reached the passage to go to his land; that the accused Muhammad Shahid intercepted and abused him; that hearing the hue and cry he along with P.Ws. Muhammad Asif and Muhammad Ashraf reached the spot; that Muhammad Shahid hurled brick-bat (Rorra) on the face of his father, which hit him on the left temporal region, left eye-brow and left cheek, who fell down on the bull-cart; that he along with P.Ws. Witnessed the occurrence and attended his father who succumbed to the injuries; that Muhammad Shahid accused fled away from the place of occurrence.
3. We have given patient hearing to learned counsel for the appellant and perused the record carefully.
4. Perusal of record transpires that Sana Ullah SI (P.W.7) Investigating Officer deposed that on 9-10- 2009 Muhammad Ali complainant appeared before him at police station and made his statement on the basis whereof formal F I.R. (Exh.PG) was recorded by him in his own hand and signed by him; that after registration of the case he visited the place of occurrence, inspected the dead-body of deceased Bashir Ahmed. Prepared his inquest report (Exh.PF). Injury statement (Exh.PF/1) and forwarded the dead body to the hospital Haroonabad for postmortem examination under the escort of Muhammad Idrees 900/C; that thereafter he inspected the place of occurrence and prepared a rough site plan (Exh.PJ), collected brick-bat from the place of occurrence made it into sealed parcel and took into possession through recovery memo (Exh.PH) attested by the P.Ws.; that the same day after postmortem examination constable produced before him last-worn clothes of the deceased, which he took into possession vide recovery memo (Exh.PA); that he recorded the statement of P.Ws. Under section 161, Cr.P.C..He further deposed that thereafter he was transferred from the Police Station Faqirwali and subsequent investigation of this case was conducted by Muhammad Ashfaq SI who has died and that he is conversant with the handwriting of Muhammad Ashfaq SI; that as per record Muhammad Ashfaq SI arrested the accused on 4-2-2010 and thereafter submitted the file of the case to the SHO who prepared the challan against the accused.
5. On submission of challan, accused Muhammad Shahid was formally charge-sheeted under section 302, P.P.C., to which he pleaded not guilty and claimed to be tried. Prosecution produced as many as seven witnesses to prove the charge. Besides Investigating Officer mentioned above Dr. Sujjahat Ahmed. (P.W.4) who conducted postmortem examination on the dead body of Bashir Ahmed deceased, Muhammad Ali complainant (P.W.5) and Muhammad Asif an eyewitness (P.W.6) are the material witnesses. Rest of the witnesses are of formal nature. After conclusion of the prosecution evidence learned trial court recorded the statement of the accused under section 342, Cr.P.C. Whereby he discarded each and every piece of prosecution evidence while pleading his innocence. In reply to the question have you anything else to say, he replied as under:-- .
"I am innocent. The deceased was chronic patient of blood pressure and hypertension. He had himself fallen on the bull-court and sustained injuries on his face and head by hitting his face on the floor of the bull-cart and hitting his head on the supporting stick attached with the bull-cart.
Neither the complainant nor any other P. W. Were present at the place of occurrence at the time of occurrence. I and my brothers had leased our land to one Rauf Khan resident of Chak No,128/6R. I have no concern with the land or its cultivation. The story of the prosecution is totally false and concocted one".
' The accused/respondent did not opt to appear in the witness-box under section 340(2), Cr.P.C., however, he produced copy of Khasra Girdwari regarding Square No,2, Killa No,21 (Exh.DA) and copy of record of rights for the year 2005 to 2010 (Exh.DB) in defence evidence.
6. After conclusion of the trial and providing opportunity of hearing to the learned counsel for the parties, learned trial court observed that facts of the case lead to the conclusion that this is not a case of Qatl-e-amd rather a case of Qatl-Shibh-e-amd, therefore, he convicted the accused under section 316, P.P.C. And sentenced to pay Diyat and further sentenced him to Rigorous Imprisonment for ten years. He was also given benefit of section 382-B, Cr.P.C.
7. It is argued by learned counsel for the appellant that learned trial Court has wrongly concluded that the offence does not fall within the ambit of Qatl-e-amd in sheer disregard to the ocular account produced by the eye-witnesses; that finding of the learned trial Court regarding absence of premeditation or lack of intention to kill Bashir Ahmed is illegal and perverse as the accused/respondent having a brick-bat in his hand had selected the vital part of body of the deceased i,e, head to cause injuries manifesting his knowledge as well as intention to kill Bashir Ahmed; that circumstances of the case as established by the prosecution through evidence attract the offence of wilful, murder; that the respondent's acquittal in the offence under section 302, P.P.C. Is untenable in the eye of law and liable to set aside.
8. Complainant's version in the F.I.R. As noted above is that he along with his brother Muhammad Asif (P.W.6) and one Muhammad Ashraf P.W. (given up) reached the spot after hearing the noise of quarrel in between his father Bashir Ahmed (deceased) and Muhammad Shahid respondent/accused and within their sight Muhammad Shahid accused hurled brick-bat on the face of his father, which hit his left temporal region, left cheek and left eyebrow, who fell down on the bull-cart and succumbed to the injuries at the spot.
9. Contrary to the above, while appearing in the witness box as P.W.5 he stated that about 11 months back at about 1-00 p.m. His father was going to the fields on bull-cart on the 'kacha' passage when Muhammad Shahid accused came there, intercepted his father and said that he will not allow him to go through the 'kacha' path; that quarrel took place between his father and Muhammad Shahid accused; that in the meanwhile Muhammad Shahid accused hurled brick-bat on face of his father, which hit'on his left temporal region, left cheek and on left eye; that he along with Muhammad Asif (P.W.6) and Muhammad Ashraf P.W. (given up) attracted there and witnessed the occurrence; that his father fell down on the bull-cart and died whereas Muhammad Shahid accused fled away. It, therefore, reflect that he along with P.Ws. Reached the spot after the occurrence. As stated in the cross-examination he and the P.Ws. Were at a distance of 10 karms i,e, about 50 ft. When the accused hurled brick-bat on the face of his father.
10. Complainant's real brother Muhammad Asif (P.W.6) the other eye-witness while appearing in the witness box stated that about 11 months back at 1-00 p.m. His father was going to the field from a path in Killa No,21 on bull-cart when Muhammad Shahid accused came there, intercepted his father and started quarrelling with him; that on his hue and cry his brother Muhammad Ali and his uncle Muhammad Ashraf attracted to the spot and within their sight Muhammad Shahid accused hurled brick-bat on the face of his father, which hit on his left temporal region, left cheek and on left eye, who fell down on the bull-cart and succumbed to the injuries whereas accused Muhammad Shahid fled away from the place of occurrence. While facing the cross-examination he stated that they at distance of 10/12 yards i,e, about 36 of when the accused hurled brick-bat on the face of his father.
11. It is astonishing that both the P.Ws. While facing the cross-examination have admitted that they had not tried to apprehend the accused. Admittedly, deceased and accused had a quarrel and exchanged hot words before hurling of the brick-bat. Admittedly, P.Ws. Were at a distance of about 30 ft. To 50 ft. From the place of occurrence, therefore, it cannot be said with certainty that the accused had picked up the brickbat from the spot during the quarrel or he was in prior possession thereof. There is no independent evidence to substantiate the prosecution plea that a day earlier to the occurrence accused Muhammad Shahid had any quarrel with the deceased or threatened him that he will not allow him to pass through the 'kacha' path, therefore, in the given circumstances the prosecution has failed to substantiate alleged element A of premeditation. It is also evident on the record that accused/respondent was not armed with any lethal weapon at the time of occurrence. Had the accused an intention to kill he could have used some other blunt or sharp- edged weapon to execute such intention.
12. At this juncture it may be useful to reproduce the definition of Qatl-e-amd as envisaged in section 300, P.P.C. And Qatl-Shibh-e-amd as contemplated by section 315, P.P.C.:-- "Qatl-e-amd. Whoever, with the intention of causing death or with the 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 his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-e-amd. Qatl Shibh-e-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 or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-c-amd. 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-e-amd.
13. Bare reading of afore-quoted definition of 'Qatl Shibh-e-amd' transpires that it takes place when victim died with an instrument which is neither a weapon nor can be used as weapon.
Therefore, nature of instrument used in the occurrence is also an important factor to determine the intention of the accused. In the instant case a small brickbat was used by the accused/respondent instead of some big stone. It reflects that intention of the accused was to cause harm to the body of the victim but not his death. Admittedly no repetition of injury is attributed to the accused/respondent. In this case death of Bashir Ahmed is allegedly caused by intentional use of small brick-bat, an 'injury whereby ordinarily does not cause death.
14.. As per medical evidence lodged by the prosecution statement of Dr. Sujjahat Ahmad (P.W.4) who conducted autopsy on the dead body of Bashir Ahmed deceased following three injuries were observed on the body of the deceased:--
(i) Abrasion mark 2-1/2 cm x 2 cm on the left cheek.
(ii) Abrasion mark 1 cm x 1/2 cm on the above of lateral side of left eyebrow.
(iii) Swelling present on the left tempromadibular joint. Swelling also present on the posterior side of the head.
' During cross-examination Dr. Sujjahat Ahmed (P.W.4) admitted that injuries Nos.1 and 2 are simply abrasion not found up to skin deep. He also admitted that beneath injury No,3 there was no fracture. Therefore, absence of any fracture beneath injury No,3 makes it crystal clear that the same was not caused with full force. It reflects that intention of the accused could be to cause harm to the victim and not his death. Such an injury cannot be termed as sufficient to cause death in ordinary course. Doctor in his opinion has categorically stated that cause of death in this case was Haemorrhage (Brain Haematoma) and shock due to injury No,3 on vital part. Keeping in view the description and nature of the injury it could not be said with certainty that injury No,3 was sufficient to, cause death in ordinary course. Doctor's opinion in this regard is, therefore exceptionable.
15. Crux of the above discussion is that ocular account, medical evidence and recovery of the offence instrument i,e, brick-bat, therefore, failed to substantiate the prosecution plea that the alleged occurrence constitute an offence of Qatl-e-amd in terms of section 300, P.P.C. Rather material available on the record produced by the prosecution leads to the conclusion that the alleged occurrence constitute an offence of Qatl-Shibh-e-amd in terms of section 315, P.P.C. Since prosecution has not been able to prove the charge under section 302, P.P.C., therefore, learned trial Court has rightly acquitted the accused/respondent in the said offence and convicted him under section 316, P.P.C.
16. For the above discussion and reasons, we do not find any illegality or perversity in the impugned judgment and the same does not call for any interference by this Court. Resultantly, this appeal having no merit 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.