QAZI MUHAMMAD AMIN AHMED, J:-Ibad Hussain, 33, henceforth referred to as the deceased, was punched to death on 19-04-2015 at 12:00 p.m. within the area of Haranpur, situating at a distance of 10-Kilometers from Police Station Pind Dadan Khan; the incident was reported by his father Imdad Hussain (PW-3) through statement (Ex.PB) recorded by Abdul Razzaq, Sub-Inspector (PW-6), 1:00 p.m. at T.H.Q. Hospital; his narrative for the convenience of reference is reproduced in extenso:- "I am resident of village Haranpur. I deal in making trunks paities etc. On 19-4-2015, I along with my son Abbad Hussain deceased went to purchase vegetable from the shop of Molvi Asmat. I was busy in purchasing the vegetable.
It was 12:00 noon when Amjad Saeed accused came there on a motorcycle. Soon after deceased-boarding from motorcycle, Amjad Saeed accused started abusing my son Abbad Hussain who forbade him. Then the accused Amjad Saeed started beating my son Abbad Hussain with fists which hit him on different parts of body i.e. left flank, left upper part of the chest and on his neck. He had been beating my son in a barbaric manner. He has committed violence too much upon my son who could not survive and due to that severe violence he fell down on the ground and became faint. He has been giving punches to my son Abbad Hussain in a very cruel manner . This occurrence was witnessed by me as well as Zulqarn ain and Tariq. The moment my son had fallen and became faint, Amjad Saeed fled away on his motorcycle from the spot. We got managed a vehicle through my phone call and we were taking him to the hospital at Pind Dadan Khan but on the way he expired."
Dr. Zulfiqar Ali Shirazi (PW-7), conducted autopsy at 3:00 p.m; he observed swollen area on left side of chest near the flank; on dissection, heart chamber was found full of blackish blood with clots; violence caused sudden heart blockage generating vasovagal inhibition/ shock, opined as sufficient to cause death in the ordinary course of nature within preceding 10 minutes of receipt of injuries; autopsy was conducted within three hours.
Given the peculiar nature of the case, spot inspection included preparation of site plan Ex.PG and statements of the witnesses; the appellant was arrested on 20-04-2015; indicted on 02-06-2015, he claimed trial, pursuant whereto, prosecution produced as many as eight witnesses to drive home the charge. Imdad Hussain (PW-3) and Zulqarnain (PW-4) furnished ocular account, prosecution' s main reliance, confronted by the appellant with the following plea:- "The case registered against me is totally false and frivolous. The statement of the complainant for registration of FIR is based on false facts which remained untrue. The investigation of police was only to complete file and was not based on the real facts and ground reality and the case registered against me is complete net created for me to involve me in a murder case. As far as deceased Abbad is concerned, he was friend of Sajid Mahajar against whom a case FIR u/s 295-A PPC was registered at Police Station Pind Dadan Khan and when police was not registering the case against Sajid Mahajar, people gathered at Harranpur Adda and blocked the road and I also took part in blocking the road so from that day, these people kept eyes on me to take revenge of that participation. The PWs are close relatives of the deceased. Imdad Hussain complainant is father of the deceased whereas Zulqarnain (PW. is Mamoozad (first cousin) and they controverted the natural death of the deceased into a murder committed by me.
Unimpressed by the plea, the learned trial Judge vide impugned judgment dated 25-62015 proceeded to convict the appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death with payment of compensation in the sum of Rs.500,000/- or six months Simple Imprisonment in the event of default, vires whereof, are being challenged vide Crl. Appeal No.297 of 2015 clubbed with Murder Reference No.28 of 2015; as a common thread binds the both, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that prosecution case is fraught with doubts, contradictions and improbabilities; that presence of the eye witnesses at the crime scene is highly improbable and unnatural and as such their evidence merited outright rejection; that motive set up by the prosecution is false, even not proved, as such does not extend structural strength to the prosecution case; that the plea taken by the appellant sounds more plausible; the bottom line is that prosecution has not been able to prove its case beyond reasonable doubt.
Contrarily , the learned Law Officer assist ed by learned counsel for the complainant has defended the impugned judgment on the ground that an innocent person has been done to death and there is no space to entertain any hypothesis of false implication or substitution, as the occurrence was a daylight affair in the midst of the city; the bottom line is that prosecution successfully established its case beyond reasonable doubt.
3. Heard. Record perused.
4. In the face of violence, attributed to the appellant, though insignificant, there is no doubt that the deceased died as a result of vasovagal inhibition/shock, consequent upon receipt of trauma on a most vital organ and as such fatal impact thereof cannot be favourably quantified. According to C.K. Parikh (Text Book of Medical Jurisprudence Forensic Medicine & Toxicology 8th Edition), "A syncopal type of death may also result from reflex cardiac arrest due to (i) vagal stimulation, commonly known as vaso-vagal shock, vagal inhibition, or neurogenic shock, and (ii) rarely ventricular fibrillation due to cardial problems or spontaneous sympathetic nervous discharge." and thus, the appellant is responsible for all the consequences of his assault---the immediate and remote which link the injury to death. With this state of affairs on forensic side, the learned counsel for the appellant has not seriously contested ocular account furnished by the witnesses; otherwise, found plausible in circumstances, consistent with medical evidence as well as investigative details collateral therewith sufficient to exclude every hypothesis of appellant's innocence. However, whether the appellant could be returned a guilty verdict under clause (b) of section 302 of the Code ibid, is a question that warrants serious reconsideration inasmuch as on stated prosecution's position, his culpability is more aptly covered by the mischief of section 315 of the Code ibid, reproduced in extenso for the convenience of reference:- "whoever with intent to cause harm to the body or mind of any person causes the death of that or 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 i-Shibh-i- Amd"
Thus, the appellant is liable to be convicte d under Section 316 instead of clause (b) of section 302 of the Code ibid, therefore, his conviction is altered accord ingly; he shall pay Diyat fixed for the relevant fiscal year and shall also undergo imprisonment for a period of ten years as Tazir with benefit of section 382-B of the Code of Criminal Procedure, 1898. With the above modification, Crl. Appeal No.297 of 2015 fails. Murder Reference No.28 of 2015 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.