1. ' SYED ZAKIR HUSSAIN, J.---This appeal is preferred by the appellants against their conviction and sentence awarded under section 302(b), Cr. P.0 . , in Sessions Case No,197 of 2006 by way of judgment dated 16-10-2009 delivered by learnd 1st. Additional Sessions Judge, Shaheed Benazirabad, whereby the appellants stood directed to suffer imprisonment for life with fine of Rs, One Lac together with benefit of section 382-B, Cr.P.C. Appellants have prayed for their acquittal from the charge of the case and setting aside of their conviction and sentence referred to above, on the facts and grounds mentioned in the appeal in hand.
2. ' The facts forming the background of this appeal, briefly stated, are thit the complainant namely, Muhammad Hakim reported to the police on 14-7-2006 at 0700 hours, that while he, his nephew and two others namely, Ghulam Mustafa Dahiri and Muhammad Hussain Dahiri, were present together on their place (indicted in such report), the police officials namely, A.S.-I. Niaz Hussain Kaleri, P.C. Abdul Hameed Dahiri, P.C. Karim Bakhsh Lund and Driver Maqbool Ahmed (the appellants), came in official mobile and asked the complainant to produce or disclose the whereabouts of his brother namely, Muhammad Hanif, who according to them, was, wanted in case of Irrigation, on which he (the complainant) disclosed to them that he had no knowledge about him (Muhammad Hanif); the appellants took the said nephew in their custody and caused him to be boarded in their vehicle in order to take him to the police station or otherwise. When he resisted such acts of the appellants, three of them gave rifle butt blows three in number in a manner that the appellant A.S.-I. Niaz Hussain caused head injury, the appellant Abdul Hameed caused injury on the left side of the abdomen and the appellant Kareem. Bux caused injury on the back of their victim. As per complainant, the appellant Maqbool Hussain gave fists and kicks blows to the victim and then the appellants took away the victim/injured to their destination. The complainant party chased the appellants and saw that the appellants had dropped the said victim on their way at the place (pinpointed in the report) and when the complainant party reached the injured, they found him dead already, while appellants had already disappeared. Such report was made and on the basis of the same, the police registered the F.I.R of the case. The postmortem examination over the dead body of the deceased was conducted by the medical officer in the police station. The appellants were arrested. After having observed other investigation formalities, the police charge-sheeted the appellants for the purpose of trial in the Court of law.
3. Learned 1st. Additional' Sessions Judge, Shaheed Benazirabad tried the case being Sessions Case No, 197 of 2006 and decided. The same on 16-10-2009 by way of the judgment impugned in the appeal.
4. ' I have heard the learned counsel for appellants, learned counsel for complainant and learned Assistant Prosecutor-General as well as perused the record and law applicable in the matter minutely. .
5. ' The learned counsel for the appellants states that there appears a variety of reasons which may lead the Court to the conclusion that the impugned judgment of Conviction and , sentence, warrants interference of this Court, being in unsustainable in law, for the case was not established beyond, shadow of any reasonable doubt against all the subjects thereof; and their acquittal in the case from the charge was the only just and legal action that has not taken place in the instant case due to non-appreciation of evidence and erroneous view formed on the part of the trial Court.
6. According to the learned counsel (for appellants), no intention of murder is established at trial at all. Postmortem examination is admittedly conducted in the police station, which carries no weight on the one hand and secondly, it suggests that the injury on head, was the only injury that was fatal being sufficient to cause death and such injury revolves around the appellant A.S.-I. Niaz Hussain only, while others namely, Abdul Hameed and Kareem Bux, both are stated to have caused two injuries respectively on back side of abdomen and back of the deceased, but since they have not been put to answer by way of questioning under section 342, Cr.P.C. As to such circumstances, their conviction is legally unsustainable in the light of the dictum laid down in the case of RASOOL MUHAMMAD v. ASAL MUHAMMAD and 3 others reported in 1995 SCM R 1373, at relevant page 1376, the relevant portion runs:-- "While examining Asal Muhammad accused under section 342, Cr. P. C, the trial Court has not questioned him about his lodging Exh.P.W.8/1 and the correctness of its contents. He was not given any opportunity to explain as to whether or not he had mentioned the presence of Rasool Muhammad P. W.10 and Abdul Aziz P. W. 11 in the F.I.R. Exh.P.W.8/I allegedly lodged by him. It is by now well-settled that unless a circumstance sought to be used against an accused is put to him during examination under section 342; Cr.P.C., that circumstance cannot be used against him.
7. Omission to draw the attention of an accused person to a circumstance to be used against him is prejudicial to him. So, it can neither be considered, nor used against him for any purpose."
8. ' The learned counsel further states that the case of last appellant Maqbool Hussain is not made out at all, since he was driver and he is also reported in the incident to have stood seen causing kicks and fists blows to the deceased, whereas the medical evidence does not show any mark or sign of such blows Learned counsel also points out that the witnesses are interested and no independent evidence can be expected from them.
9. ' The record shows that the defence (right from the beginning) admits that the deceased was taken by the appellants in their custody and pleads that the deceased jumped out of their official vehicle during its running state in order to make his escape good and had a fall on the ground i,e, metalled road and suffered the injuries in question owing to his such pursuit. The Doctor has given his opinion (in his cross- examination by having deposed in reply to the suggestion) that the injuries sustained by the deceased could normally have stood resulted from such fall.
10. The overall appraisal of the case has brought to light an established rather admitted position that the deceased was not wanted in any crime; was taken in police custody with no legal authority; he was boarded in the official vehicle/mobile by the appellants, which left the place of the deceased for its own destination; the deceased stood dropped from the moving vehicle in presence of the appellants while in their custody, on its way, to the metalled road; and the deceased was later found dead by the complainant party after the appellants had already disappeared in their vehicle therefrom.
11. ' On the other hand, the case of the prosecution to the effect that the appellants while having apprehended the deceased from his place in presence of the complainant and other P.Ws., gave rifle butt blows to him, which caused the aforesaid injuries on his person and then while on their way together with the deceased in the running vehicle, they threw him out of the same, which resulted in a fall of the deceased to the ground and when the P. Ws, who had been following the vehicle on their motorbike, having seen such fall of the deceased and immediate disappearance of the appellants with their vehicle, reached nearer to the deceased, they found him already dead, has not been established in toto as free from doubt, but the facts involved in such story, which have been admitted on the part of the appellants stand proved since they stand admitted a matter of defence theory pinpointed above and if the case is seen from such angle, the responsibility of the death of the deceased still goes to the appellants due to whose illegal and negligent act, the deceased in their cover of irregular custody; escaped and having fallen to the ground owing to the jump from the running vehicle of the appellants, sustained injuries, which caused his death, and hence they appear to have stood established guilty of the offence of Qatl- bis-Sabab as defined by section 321 P.P.C, which is punishable under section 322, P.P.C. As free from doubt.
12. ' In the light of the position highlighted above, the learned counsel however, finally stood persuaded with the position that at the most, the case of Qatlbis-Sabab covered by section 321 r/w section 322, P.P.C. Is open to be applied against the appellants in the circumstances and nothing beyond that.
13. ' Similarly, the learned counsel for the complainant concedes the disposal of the appeal in such terms. Likewise, the learned A.P.-G. Supports the disposal in the terms that the punishment awarded under section 302(b), P.P.C. May be altered and converted into that of section 322, P.P.C.
14. On the basis of the case of section 321, P.P.C., which as per him, too, stands made out even from the defence viewpoint or theory, and becomes, thereby an admitted position of the case as well.
15. Consequently, being agreed with the views of the learned counsel for both the parties and also that of the learned A.P.G, which, according to him, is the only recourse which suits the circumstances, the conviction and sentence(s) referred to above, are hereby ordered to stand altered with the result, the same will henceforth thereby shall stand passed under section 322, P.P.C.
16. And the appellants are ordered to stand released forthwith after payment of Diyat in equal share, to the legal heirs of the victim entitled thereto either by way of giving to them 30630 grams of silver or paying the cost of the market thereagainst.
17. ' The appeal stands disposed of in the above terms. 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.