' This single judgment shall decide the above captioned criminal appeal as well as the criminal revision, as both are outcome of single judgment dated 21.5.2003, passed by the learned Additional Sessions Judge, Taunsa Sharif, District Dera Ghazi Khan, whereby in case FIR No, 51, dated 26.6.2002, registered under Sections 302/34, PPC, at Police Station Raitra, District Dera Ghazi Khan, the appellants, namely, Said Muhammad and Muhammad Hayat, were convicted under Section 302(b), PPC and sentenced to imprisonment for life, with compensation of Rs, 50,000/-, each, payable to the legal heirs of the deceased, otherwise, to further undergo SI for six months each, with benefit of Section 382-B Cr.P.C.
2. The facts are that Allah Wasaya (PW-5) had got recorded a statement (Ex.PE), before the police, contending therein that on 24.6.2002 at about 7:00 a.m, his father Muhammad Bakhsh (deceased) had gone to graze the sheep; after a short while hue and cry was heard by him, hence he alongwith his brother Manzoor Ahmed and Elahi Bakhsh (PW-6) rushed to the spot; they saw that Said Muhammad and Muhammad Hayat (appellants) had encircled Muhammad Bakhsh and within their view the appellants one after the other pelted stones at Muhammad Bakhsh, which hit at his urinary bladder and he fell down; on their intervention, the appellants went away; the motive was a landed dispute between the appellants and the complainant party, due to which they caused injuries to Muhammad Bakhsh. On the basis of above mentioned complaint, initially the FIR (Ex.PE/2) was chalked out under Sections 324/34, PPC but on the death of Muhammad Bakhsh, the offence under Section 324, PPC was substituted to Section 302, PPC.
3. The investigation was carried on when the appellants were found to be involved, hence challaned to the Court. The learned trial Court had framed the charge against the appellants on 25.3.2003; they pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded. The prosecution had got examined as many as nine witnesses. Gist of the evidence led by the material witnesses was as under:-- PW-1 Dr. Ahmad Khan, firstly had medically examined Muhammad Bakhsh on 24.6.2002 through report (Ex.PA) when he was in an injured condition and found the following injuries:-- "(i) Reddish swollen contused area 2 cm in diameter on right appendicular area of the abdomen.
(ii) Reddish swollen contused area 21/2 cm in diameter in the right side of abdomen 2 inches above Injury No, 1.
' Patient complains of server abdominal pain and distress. Both injuries were K.U.O."
' Due to critical condition of the injured he was r ferred to DHQ, Hospital, Dera Ghazi Khan where he died and consequently on 26.6.2002 post-mortem examination of the dead body was conducted by this witness through the post-mortem report (Ex.PB). At that time the following injuries on the dead body were observed:-- "(i) There was a reddish blue contused area at the lower part of the right side of the abdomen 2 inch in dia-meter.
(ii) There was another reddish blue contused area 21/2 in diameter in the right side of abdomen 2" above Injury No, 1."
' As per opinion of the doctor, the injuries to the liver and small intestine were sufficient to cause death which occurred after about two days of receipt of the injuries.
PW-5 Allah Wasava complainant as well as an eye-witness had narrated almost the same, facts as were stated by him in the above mentioned complaint.
PW-6 Ilahi Bakhsh, another eye-witness had supported the version of the complainant (PW-5).
PW-8 Muhammad Hayat, Inspector, had investigated the case during which carried on the proceedings and prepared the documents fully detailed in his statement.
PW-9 Mushtaq Ahmad SI, also investigated the case, prepared the documents and carried on the proceedings, detailed in his statement.
4. After examination of the prosecution witnesses, the prosecution case was got closed, whereafter the appellants were examined under Section 342 Cr.P.C., during which the questions arising out of the prosecution evidence and record were put to them and, they denied almost all such questions while pleading their innocence and false involvement in the case with mala-fide. Both had replied the questions "why this case against you and why the PWs have deposed against you?" in the following words:- ' Said Muhammad (appellant)
"Being a close relative of Hayat accused I have been falsely involved in this case and the complainant party has thrown net wide to implicate as many as persons as possible from the family of Hayat accused. The complainant party has involved me in this case at the instance of Nawaz and Qaisar with whom I am locked in cross murder case. They are funding the complainant and pursuing the case. The PWs are interse related with each other and with the deceased."
' Muhammad Hayat (appellant)
"I am permanent employee of F.C. Department. On the day of occurrence I was on leave and was present at my home. I saw the deceased who was trying to occupy and wanted to illegally possession of Govt. Land. I went towards him as he was my close relative and asked him not to occupy illegally the Govt. Land, on which he started abusing me and- inflicted a hatchet blow from which I luckily saved. He picked up stone and threw towards me which landed on my body. In retaliation and to save the Govt. Property & myself I threw the same towards him. I am innocent.
Being the kith and kin of the deceased, the PWs after suppressing the real facts of the case gave twist to the facts to bring the case with the preview of Section 302, PPC being in connivance with the police."
5. They did not opt to lead evidence in their defence or make statements under Section 340(2)
Cr.P.C.. On completion of the trial, the impugned judgment was passed in the above mentioned terms, hence the matters in hand.
6. The learned counsel for the appellants have argued that they are innocent and falsely involved in the case with mala-fide; the statements of the prosecution witnesses were full of material contradictions but erroneously not considered by the learned trial Court; the prosecution case and the charge against the appellants was not proved and established, hence they were entitled for acquittal and as such the impugned judgment is liable to be set-aside.
7. The learned Additional Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the appeal while holding the impugned judgment towards conviction of the appellants to be quite well reasoned and call of the day. The learned counsel for the complainant has also requested for acceptance of the revision petition and award of major penalty of death to the appellants.
8. Arguments of both the sides have been heard and the record has been perused.
9. The alleged motive was a landed dispute between Muhammad Hayat (Appellant No, 2) and the complainant party. It was brought on the record that Muhammad Hayat, appellant had abstained the deceased from interfering into the property which was a state land.
' In this way, the alleged motive could not be attributed to Said Muhammad (Appellant No, 1). In the complaint as well as during statements of Allah Wasaya complainant (PW-5) And Elahi Bakhsh (PW-6) it had been contended that stones were pelted by Muhammad Hayat appellant at Muhammad Bakhsh, which hit at his urinary bladder. At the said part of the body of deceased two injuries were observed. In this way, the case of Said Muhammad (Appellant No, 1) has become doubtful. Possibility of his false involvement, under e wider net being relative of Muhammad Hayat (Appellant No, 2) could not be ruled out, hence, charge against Said Muhammad (Appellant No, 1) is doubtful.
10. As about the case of Muhammad Hayat (Appellant No, 2), it is stated that Allah Wasaya complainant (PW-5) and Elahi Baldish (PW-6) had not only implicated him for pelting stones at Muhammad Bakhsh, deceased, which resulted into injuries to him but during medical examination the said injuries were also confirmed on the record and the said appellant during statement under Section 342 Cr.P.C. Had also admitted his above mentioned act/role.
11. It seems that when the deceased for grazing the sheep entered the state land, which was disputed between the parties, he was abstained by Muhammad Hayat (Appellant No 2) when an altercation between both had taken place and accordingly the said appellant pelted-stones at the deceased and he became injured. Nothing is available on the record to suggest that intention of the Appellant No, 2 was to commit murder of Muhammad Bakhsh but he died in consequence of the injuries which he had sustained at the hands of above named appellant. In this way, in my view, offence of intentional murder is not made out rather offence of Qatl Shibh-i-amd is attracted, which is defined under Section 315, PPC in the following words: "315 Qatl Shibh-i-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-i-amd."
The facts and circumstances of the case in hand fully correspond the above mentioned situations under which the above mentioned provision attracts. Therefore, Muhammad Hayat (Appellant No, 2) is liable for commission of the offence under Section 316, PPC, which prescribes payment of Diyat, and an accused may also be punished with imprisonment of either description, for a term which may extend to twenty five years as Tazir.
12. Consequently, Muhammad Hayat (Appellant No, 2) is convicted under Section 316, PPC for payment of Diyat amounting to Rs, 2,90,372/- (which at the relevant time was prevailing), payable to the legal heirs of the deceased. The said appellant is an Army Personnel and nothing is available on the record that he is .a previous convict, habitual, hardened, desperate or dangerous criminal, hence to my mind the imprisonment for five years, which he had already undergone, would meet the ends of justice, hence awarded.
13.. As the above mentioned amount of Diyat has been imposed against the Appellant No, 2, hence no compensation under Section 544-A of Cr.P.C. Is required and as such imposition of Rs, 50,000/- as compensation against the Appellant No, 2, by the learned trial Court is waived.
14. As a. Result of what has been discussed above, the appeal in hand to the extent of Said Muhammad (Appellant No, 1) is accepted, impugned judgment to his extent is set-aside and he is acquitted of the charge while extending him benefit of doubt. Whereas the appeal to the extent of Muhammad Hayat (Appellant No, 2), with the above mentioned modification and alteration is dismissed. Both, by way of suspension of their sentences are on bail, hence their bail bonds are discharged. The disposal of case property shall be as directed by the learned trial Court.
15. The Criminal Revision No, 225 of 2003 filed by the complainant for the foregoing reasons, is without any substance, hence dismissed.