Anwaarul Haq Pannun J:- Hadayatullah son of Qadir Bakhsh, Caste Lori, resident of Darabhi Vehova, Tehsil Taunsa, District D.G. Khan, the appellant along with his co-accused Habib Ullah, Najeeb Ullah, Naseeb Ullah and Qadir Bakhsh (since acquitted) was involved in case FIR No.265/2009, dated 22.12.2009, offence under Sections 302, 447, 511, 148, 149, PPC, registered with Police Station Vehova, Tehsil Taunsa Sharif. He was tried by learned Additional Sessions Judge, Taunsa Sharif. The learned trial court seized with the matter vide its judgment dated 31.03.2016 convicted and sentenced the appellant in the following terms:- Under Section 316 PPC Sentenced to undergo 25 years R.I. as Tazir with order to pay Rs.1,00,000/- as compensation in terms of Section 544-A Cr.P.C. to the legal heirs of Ghulam Farid (deceased) and in default whereof to further undergo SI for six months.
He was also ordered to pay Diyat amount of Rs.16,80,270/- to be recovered in accordance with law.
He was also extended the benefit of Section 382-B of Cr.P.C.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through the captioned criminal appeal.
3. Prosecution 's story as portrayed in the FIR (Exh.P A/1) lodged on the statement (Exh.P A) of Ishtia q Ahmad (PW- 2) is to the effect that on 22.12.2009 at about 10.00 PM, Anjum Iqbal son of Muhammad Iqbal imparted him the information through mobile phone that plot of complainant measuring three kanals is being possessed by Hadayat Ullah etc and constructions raised over it in the tractor light, then complainant along with his father Ghulam Farid deceased, Muhammad Sohail while riding on a motorcycle went to Basti Drabhi and found Hadayat Ullah, Habib Ullah, Najeeb Ullah, Naseeb Ullah sons of Qadir Bakhsh, Qadir Bakhsh son of Muhamamd Bakhsh raising construction with "kassis" , his father restrained them that earlier when they had attempted to take over possess of this plot, they were forbidden to do so, at that time, they desisted to it, now once again they were constructing the plot, in order to take over the possession of the same plot whereupon the accused party started belabouring the father of the complainant by giving him fists and kicks blows, who fell down on the ground and Hadayat Ullah has been giving fist blows on his head. They tried to rescue him, accused party also belaboured the complainant and Muhammad Sohail PW with fist and kick blows, resulting into injuries on different parts of their bodies. On their hue and cry Asif Saleem and Muhammad Iqbal (both given up PWs) who were present nearby the place of occurrence attracted there. On their intervention, accused party went to their homes. Complainant along with Sohail PW shifted his father , on a car , to the clinic of Dr . Ahsan, but on the way to the clinic, his father succumbed to the injuries.
Motive behind the occurrence as disclosed in the FIR was a dispute of land from which the accused party want to illegally dispossess the complainant who were forbidden but they committed murder of his father in prosecution of their common object/intention.
4. Ghulam Shabir , SI (PW-11) deposed that 08.11.2013 investigation of this case was handed over to him. On the same day he made arrest of accused Hadayat Ullah and on the following day got him remanded to judicial Lock.
5. The investigation was encapsulated into a report under section 173 Cr.P.C, which was duly submitted, the learned trial Judge took the cognizance, supplied the requisite statements under section 265(c) Cr.P.C., framed the amended charge against him and his co-accused on 19.11.2015, to which he pleaded not guilty and claimed trial.
6. Ocular account in this case consists of the evidence of the Ishtiaq Ahmad comp lainant (PW-2) and Muhammad Sohail (PW-3). Investigation in this case was carried out by Abdul Rehman, SI (PW-10), Ghulam Shabbir , SI (PW- 11), Imran Nawaz Inspector (CW -1) and Barkat Ali, Inspector (CW -2) .
Whereas medical evidence has been furnished by Dr. Qadir Bakhsh, SMO (PW-1) who conducted postmortem examination on his dead body of deceased on 22.12.2009 and observed as under:- It was the dead body of an old man having normal physique and muscular built. Rigor mortis and post mortem staining were present. Eyes and mouth were closed. No marks of external violence seen. Skull, scalp, vertebrae, membranes, brain and spinal.
NAD Cranial cavity was full of blood. Brain matter was taken and sent to Histopathologist, Lahore to rule out any pathology .
After conducting postmortem examination, doctor rendered his opinion with the following observation/remarks:- "In my opinion, in this case specimens were sent to Chemical Examiner Lahore and Histopathologist, Lahore. Final opinion will be given after receipts of aforesaid reports.
On receipt of reports of Chemical Examiner Exh.PC and Histopathologist Exh.PD, I issued final report Exh.PE which is in my hand and bears my signature. As per report of Chemical Examiner, poison was not detected in the above viscera. According to the report of Histopathologist, Lahore, histological examination of the heart sections reveals moderate to advance grade atherosclerotic changes in the coronaries and unremarkable myocardium. The brain and the meanings were congested and presence of extravagated R.B.Cs. inside brain tissue. Histological examination of the hyoid bone revealed bone. No ante-mortem haemorregics were seen.
On the basis of above reports, in my opinion, death was due to traumatic injury to brain, which is a vital organ.
Weapon used in this case was blunt and probable duration between injury and death was instant ."
Statements of rest of the prosecution witnesses are formal in nature.
7. Learned ADPP vide his statement dated 12.01.2016 gave up PWs Asif Saleem, Muhammad Iqbal being unnecessary , Abdul Razzaq being dead, Muhammad Afzal being not able to walk due to illness and closed the prosecution case.
8. Thenceforth, the appellant was examined under Section 342, Cr.P.C; wherein he refuted the allegations levelled against him in the prosecution version. He opted to appear as his own witness in terms of Section 340(2), Cr.P.C and also opted to adduce defence evidence.
He while replying to the question why this case against him and why the PWs deposed against him, made the following deposition:- "This case is false and baseless. In fact Ghulam Fareed deceased was a heart patient. In fact he was riding on a motorcycle and due to heart attack, he fell on the ground, received head injury due to falling and died his natural death. The complainant party wants to grab our plot and due to this reason, they got registered this false and frivolous case by widening a net."
9. On conclusion of trial, the learned trial Court convicted and sentenced the appellant in the above stated terms where his co-accused were acquitted.
10 Learned counsel for the appellant submits that prosecutions evidence has already been disbelieved by the learned trial court, to the extent of four acquitted co-accused, which has neither been challenged by the state nor by the complainant and as such the same has attained finality, therefore, in absence of any independent corroboration, the same evidence cannot be relied upon against the appellant for upholding his impugned conviction. Reliance has been placed upon case titled Ifran Ali v. the State (2015 SCMR 840) and case titled Shahbaz v. the State (2016 SCMR 1763). Next argued that charge against all the accused was framed, by the learned trial court, in a composite form and not individually, therefore, prejudice, has been caused to the appellant in defending himself. Adds that while recording statement under section 342 Cr.P.C, the specific incriminating evidence regarding death of the deceased has not been put to the appellant, hence, said evidence cannot be used for maintaining his conviction, while placing reliance on case titled Imtiaz alias Taj v. the State and others (2018 SCMR 344) and case titled Mst. Anwar Begum v. Akhtar Hussain alias Kaka (2017 SCMR 1710), learned counsel has craved for the acceptance of appeal and acquittal of the appellant.
11. Conversely , learned Law Officer has argued that allegation against and role attributed to the appellant is quite distinguishable one vis-a-viz his acquitted co-accused persons, and while referring report of Histopathologist (Exh.PD), the statement of Dr. Qadir Bakhsh, SMO (PW-1) submits that the death of the deceased is direct result of the injury caused by the appellant. Maintains that medical evidence is quite in line with the un-shaken ocular account. Adds that the court while exercising its discretion/consideration has put the incriminating material to the accused under section 342 Cr.P.C, no prejudice has been caused to the appellant while recording his statement under section 342 Cr.P.C. Adds that prosecution has proved its case to the hilt. He, lastly , with all fairness has argued that the occurrence had taken place without any premeditation, therefore, keeping in view the provisions of section 316 PPC, the sentence of imprisonment awarded to the appellant appear s to be harsh, prayed that while maintaining the amount of Diyat, the appeal may be dismissed.
12. Arguments heard. Record perused.
13. After hearing arguments of learned counsel for the appellant as well as learned Law officer and perusing record, it is noticed that according to the prosecution, for taking over the possession of the plot measuring three kanals and to perpetuate the same, construction was being raised in the tractor's light by the accused. The complainant along with his father Ghulam Farid deceased, Muhamamd Sohail (PW-3) while riding on a motorcycle reached at the spot and found that Haday at Ullah, Habib Ullah, Najeeb Ullah, Naseeb Ullah sons of Qadir Bakhsh and Qadir Bakhsh son of Muhamamd Bakhsh were raising constructions with kassis', and upon restraining the accused, by the father of the complainant that earlier they had attempted to take possession of the plot, and they were forbidden to do so and at that time they agreed to it, now once again they were raising constructing over the plot in order to perpetuate their possession, whereupon accused party started giving punch/fist blows to his father namely Ghulam Farid who fell down on the earth, Hadayat Ullah gave punch blows on the head of his father/Ghulam Farid, when tried to rescue, the accused party also gave punch/first blows on different parts of his body . The prosecution has thoroughly proved its case by furnishing ocular account through complainant Ishtiaq Ahmad (PW-2) and Muhammad Sohail (PW-3) which is duly corroborated by medical evidence furnished by Dr. Qadir Bakhsh, SMO (PW-1) who conducted post mortem examination over the dead body of the deceased.
According to his opinion which he formed on the basis of report of Histopathologist (Exh.PD) declaring death of the deceased, the direct result of injury on the head of the deceased. The co-accused of the appellant, since acquitted by the learned trial court, were not assigned specific role of causing punch/fist blows, like the appellant, on the head of the deceased, hence, arguments of the learned counsel for the appellant that, the evidence, already disbelieved to the extent of his acquitted co-accused, cannot be relied upon for maintaining the impugned conviction and sentence, is repelled as case of the appellant stands on distinguishable footing from his acquitted co-accused. The roots of the rule that, if some evidence is disbelieved to the extent of some of co-accused, it should not be believed against rest of the accused, is embedded in the principle of parity to extend benefit under this principle, the case of the accused must be at par with the acquitted co-accused. It is quite discernable from the record that case of the appellant stands on distinguishable footing/pedestal than that of his acquitted co- accused, therefore, rule of parity is not applicable in the facts and circumstances of the instant case. This court finds no difficulty in concluding that learned trial court while properly appreciating the evidence available on record in its true perspective has rightly while relying upon evidence of the prosecution to the extent of the appellant passed the impugned judgment. In his statement under section 342 Cr.P.C., the accused has stated that the head injury on the person of the deceased was result of accident, but non-existence of any apparent injury on head belies his stances, but through his statement, the death being result of head injury is not denied. The occurrence has allegedly taken place during night hours but the parties were previously quite known to each other. Identity of the appellant in the tractor's light followed by specific role attributing to him for causing fist blows on the head of Ghulam Farid causing his death is fully established. Respectful reliance is placed on case titled Muhamamd Aslam v. the State (2011 SCMR 1157) wherein the Hon'ble Supreme Court has held that "headlights of the car were sufficient for identification of accused, particularly when he was known to the witnesses". It has thus been established that none else except the appellant has caused injuries on the head of the deceased resulting into his death.
14. So far as argument of learned counsel for the appellant that specific evidence not put to the accused cannot be relied upon for recording his conviction and it must ensure into his acquittal is concerned, with all humility on my command, cannot be entertained as such. For ready reference, provisions of Section 342 Cr.P.C. are reproduced infra:-
342. Power to examine the accused . (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence again him, the court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the court considers necessar y, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence".
Moreover , rule 11 of Chapter .13 of the Rules and orders of the Lahore High Court, Lahore Volume-III is also reproduced hereunder:- "11.Mode of recording examination of accused . Section 364 provides that mode in which the examination of an accused person is recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded, but the accused must confine himself to relevant answers to the questions asked by the Court. Section 364 does not prevent a Court from refusing to record irrelevant answers to questions put by it to the accused under section 342. If necessary , the Court may even prevent the accused making lengthy irrelevant answers. The examination of the accused should be recorded in the language in which he is examined, and, if that is not practicable, in the language of the Court or in English. In cases in which examination is not recorded by the Magistrate or Judge himself, he must record a memo thereof in the language of the Court or in English if he is sufficiently acquainted with the latter language. The examination must be read over to the accused and made conformable to what he declares to be the truth. The Magistrate or judge must then certify under his own hand that the examination was taken down in his presence and hearing, and that the record contains a full and true account of what was stated".
Bare perusal of the above provisions clearly envisages that its purpose is to enable the accused to explain any circumstances appearing in evidence against him. The Court may put at any stage of the inquiry or trial without previously warning to the accused, question to him as it considers necessary and the questions put to him shall be generally to the case after the witnesses of the prosecution have been examined but before he is called on for his defence. The requirement of examining the accused, under this provision of law, it appears, is imbedded in the maxim of audi alteram partem. It is the duty of the court and not of the adversaries to put questions which it considers necessary, and generally on the case to the accused enabling him to explain circumstances appearing against him in evidence, after the witnesses for the prosecution have been examined. Bare reading of the provision of law indicates that putting of questions for enabling the accused for explanation is an act of the court and none else. It is also settled that none should be prejudice from the act of the court i.e. neither the accused nor the complainant. The defence has to show as to what prejudice has been caused to it by not confronting the accused with any specific portion of incriminating evidence. Learned counsel for the appellant has failed to point out as to which incriminating material has not been put to the appellant, causing him any prejudice, therefore, arguments of the learned counsel for the appellant is repelled. Case laws relied upon by learned counsel for the appellant is quite distinguishable to the facts and circumstances of the instant case. Even otherwise it is the cardinal principle of criminal administration of justice that each and every criminal case has its own facts and circumstances, therefore, reliance made by the learned counsel for the appellant appears to be inapt.
15. Arguments of learned counsel for the appellant that charge has been framed against all the accused in composite language and not individually , hence, appellant has been misled in his defence, it will be appropriate to reproduce section 265-D Cr .P.C. hereunder:- "265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused".
The above said provision is also read with Sections 237 & 537 Cr.P.C., hence there being no force in this contention, is also repelled.
In order to appreciate the contention of the Law Officer, it will be appropriate to reproduce the provisions of Sections 300, 315 and 316, PPC, which are reproduced as under:- "300. 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 probabilities cause death, causes the death of such person, is said to commit qatl-e-amd.
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 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.
316. Punishable for Qatl Shibhi-i-Amd . Who commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to twenty five years as tazir .
Main distinguishing factor between provisions of Section 300, PPC, (qatl-e-amd) and S. 315, PPC, (qatl-e-shibh-e- amd), was that in case of qatl-e-amd intention of the assailant must be to cause death or such bodily injury , which, in the ordinary course of nature was likely to cause death, whereas in the case of qatl-e-shibh-e-amd, the intention should be to cause such harm to the body or mind of the person, which, in the ordinary course of nature was not likely to cause death.
In order to bring the case within the mischief of Section 316 PPC, prosecution has to establish that there existed an intention on the part of the accused to cause harm to the body or mind of any person, by means of a weapon or an act which in ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-Amd. In the instant case, the appellant had given fist blows on the head of the deceased. There might have been neither any intention on his part as he was not armed with any kind of weapon to kill but the fist blows given by him to the deceased as per medical evidence has resulted directly death of the deceased; hence, it has been found by this court that the appellant is guilty for committing Qatl Shibh-e-Amd. Liability of the appellant to pay Diyat is mandatory under the provisions of Section 316 PPC whereas awarding of imprisonment is discretion with the court. The injury has been caused to the person of the deceased without any premeditation by the appellant which fact is fully borne out from the record. Therefore, it is noticed that sentence of imprisonment awarded to the appellant appears to be harsh and without legal justification. However, it is noticed that if imprisonment awarded to the appellant in the facts and circumstances narrated above appears to be harsh.
16. Coming to quantum of sentence in this case as observed above, it has been noticed that appellant is crawling in the corridors of the courts as justice seeker since long. He is previous non-convict. He was not armed with any kind of weapon of offence. In view of this, lenient view qua quantum of sente nce of the appellant is taken, therefore, by maintaining his conviction, his quantum of sentence of imprisonment under section 316 PPC is reduced from twenty five years R.I. to the period which the appellant has endured /undergone so far including the sentence in lieu of non-payment of compensation amount. However , Diyat amou nt Rs.16,80,270/- would remain intact as ordered by the learned trial court.
17. With the above modification, the instant appeal stands dismissed.