Through Criminal Appeal No. 1811 of 2010 , under Section 410, Cr.P.C. appellant Arshad Masih has challenged the vires of judgment dated 1.7.2010 passed by the learned Additional Sessions Judge, Lahore in case FIR No. 839 dated 24.12.2009, in respect of offences under Sections 302 & 34, PPC registered at Police Station, Garden Town, Lahore whereby he was convicted and sentenced as under: Under Section 302(b), PPC.
Imprisonment for life and to pay the compensation amount of Rs. 5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased which shall be recovered as arrears of Land Revenue and in default thereof, to further undergo simple imprisonment for six months.
2. Crl. Revision No. 1111 of 2010 preferred by complainant Bashir Ahmed seeking the enhancement of sentence of Respondent No.1, shall also be decided through this common judgment.
3. The prosecution case is that complainant Bashir Ahmad (PW-6) got registered crime report (EX.P A/1) with the allegation that on 24.12.2009 he visited the house of his daughter Mst. Mehnaz Bibi to see her. His son-in-law namely , Nasrullah washed his car due to which water stood outside the gate. At about 07:00 p.m. Arshad (appellant) alongwith his sons Zeeshan, Asif and his wife Mst. Saira came there and started abusing them, upon which, Nasrullah came down the stairs, upon which, Arshad Masih alongwith his sons grappled. Nasrullah. Mst.
Saira raised lalkara that Nasrullah be done to death and thereby Arshad Masih pushed Nasrullah with intention to kill him due to which his head hit with pillar of the gate resulting into his spontaneous death.
4. Amjad Ali, SI (PW-9) visited the place of occurrence on the same day and took all necessary steps of initial investigation at the spot and recorded the statements of witnesses under Section 161, Cr.P.C. He arrested appellant Arshad Masih (appellant), Zeeshan and Asif on 07.01.2010. After completion of investigation, he found these accused guilty and got prepared report under Section 173, Cr .P.C.
5. Dr. Rizwan Ahmed (PW-5) held autopsy on the dead body of deceased Nasrul lah on 25.12.2009 at 11:45 a.m. and observed an ante-mortem injury at his head caused by blunt means, which was found fatal to his life. The probable duration between the injury and death was immediate whereas between death and post-mortem examination 16-17 hours.
6. At the commencement of trial, the prosecution examined nine witnesses besides the report of Chemical Examiner and Histopathologist, whereas one witness was examined as Court Witness. The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against him, he did not opt to make statement under Section 340(2), Cr.P.C. on oath, however produced one witness in his defence.
7. Learned trial Court, upon conclusion of the trial, proceeded to acquit co-accused Zeeshan, Asif and Mst. Saira Bibi whereas convicted and sentenced the appellant, as stated above. Hence, this criminal appeal as well as the connected criminal revision.
8. Learned counsel for the appellant submits that the appellant is quite innocent and he has nothing to do with the murder in issue; that keeping in view the situation emerged at the spot, the appellant had no intention to kill the deceased, which manifests from act of the appellant; that, at the most, the case does fall under the definition of Qatl Shibh-i-amd under Section 315, PPC punishable under Section 316, PPC; that if the Court is not convinced with the arguments qua clean acquittal of the appellant, at the most, the facts and circumstances of the case show that it was a case of offence under Section 316, PPC and if the Court is convinced with this argument, the amount of Diyat in of fence under Section 316, PPC may be directed to be paid in installments.
9. Conversely , learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the Complainant has gracefully conceded that it was a case of Qatl Shibh-i-amd , which attracts the provisions of Section 316, PPC; that if the appellant is convicted in the said offence, the sentenc e is always a prerogative of the Court.
10. I have heard learned counsels for the parties and perused the record with their able assistance.
11. Bashir Ahmad (PW-6) and Israr Ahmed (PW-7), father and brother-in-law of Nasrullah (deceased) furnished the ocular account and unanimously demonstrated that on the fateful day, the deceased had a quarrel with the appellant and his co-accused on account of water stood in the street due to wash of car by the deceased. All the accused grappled with the deceased, co-accused Mst. Saira raised a lalkara to kill the deceased whereupon the appellant held head of the deceased and hit it with the a pillar of the gate, which resulted into the spontaneous death of the deceased. Both the witnesses made their statements in line inter-se on all material particulars of the case. They were cross-examined by the defence at considerable length but they remained firm and consistent qua the date, time, place, mode and manner of the occurrence, name of the appellant and his role of causing head injury to the deceased.
12. Learned counsel for the appellant laid much emphasis that the eye-witnesses account was consist on chance witnesses and the co-accused of the appellant had already been acquitted of the charge due to which the appellant deserves for same treatment.
13. Both the witnesses of ocular account had close relationship with the deceased and visit of the complainant at the house of his daughter being resident of the same locality was not unusual. In our society , the visit of a father and brother at the house of his daughter/sister , without any purpose, is usual and their testimony cannot be discarded on this score alone. This-is a case of single accused with the role of hitting head of the deceased with a pillar of the gate and in such like cases, the substitution is always a rare phenome non. The role of the appellant to that of his acquitted co-accused is quite distinguishable. The acquitted co-accused were alleged to have abused and grappled with the deceased and nothing else. It was the appellant who held the deceased from his neck and struck it hard with the pillar resulting into his death and none else was alleged to have caused any injured to the deceased. The trial Court has rightly bifurcated the role of the appellant from his companions and, thus, the acquittal of co-accused by the trial Court was justified having no ef fect on the case of the appellant.
14. Dr. Rizwan Ahmad (PW-5) held autopsy on the dead body of the deceased on 25.12.2000 and observed one injury at his head. I have observed that the injury mentioned in the post-mortem examination report (Ex.PD) does not find specific mention in the examination-in-chief mistakenly . However , it was a bruised wound on left side of head. He opined that said injury was ante-mortem in nature and caused by blunt object being the cause of death.
The duration between injury and death was immediate and between death and post-mortem examination 16/17 hours. The medical evidence lends credence to the ocular account furnished by the prosecution.
15. It is apparent from the evidence available on record that the appellant was empty handed and the parties had a quarrel on a petty dispute. The appellant pushed hard the deceased due to which his head struck with the gate/pillar resulting into injury at his head, which subsequently was found fatal to his life. I am unable to find any material showing that the intention or the force used by the appellant was to kill the deceased. Learned counsel for the parties are convinced and agreed that the act committed by the appellant falls within the definition of Section 315, PPC, which contemplates that: Qatl Shibh-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.
I have entertained no manner of doubt in my mind that the act of the appellant in the facts and circumstances of the case, more aptly falls within the mischief of Section 315, PPC i.e. Qatl Shibh-am d and punishable under Section 316, PPC.
16. Consequently , appellant's conviction under Section 302(b), PPC is converted into under Section 315, PPC and he is sentenced under Section 316, PPC to the imprisonment already undergone. The appellant shall however , pay Diyat as notified by the government for the year 2009-2010 i.e. Rs. 11,02,680/- to the legal heirs of the deceased. It has been brought to the notice of this Court that the appellant belongs to a weak segment of the society and he is not in a position to pay the amount of Diyat in lump sum, which has not been opposed by the other side. It is, therefore, directed that the appellant shall pay the aforesaid amount of Diyat in five installments. The first installment of Rs. 1,02,680/- shall be paid on or before 31st of December , 2019. The remaining four installments of Rs. 250,000/- each shall be paid after every six months. It is made clear that if the appellant defaults in payment of any of these instalments, he shall be taken into custody and send him into the judicial lockup till its realizetion as simple imprisonment. Appeal is disposed of in the above terms.
Crl. Revision No. 1 111 of 2010
17. For the reasons mentioned hereinabove, the revision petition seeking enhancement of sentence of Respondent No.1 has lost its relevance, the same stands dismissed .