MUHAMMAD SHERAZ KIANI, J.--- The supra, titled appeals have been directed against the judgment passed by the learned District Court of Criminal Jurisdiction Bhimber on 24.02.2010, whereby the said Court convicted the appellant/respondent No.1, Muhammad Arshad and awarded him sentence of Diyyat of Rs.1072050/- under section 316, A.P.C.
2. Precise facts forming background of the instant appeals are that complainant, Muhammad Maskeen son of Juma Khan resident of Barsali initially reported the matter to Police Station Bhimber on 17.08.2007, alleging therein that on 16.08.2007 at 18:00,p.m Muhammad Arshad son of Fazal Hussain resident of Barsali having stick in his hand started beating him upon which he fell down and thereafter beaten him with kicks at his belly. The occurrence was stated to be witnessed by Muhammad Akram Mst. Anwar Begum and other people of the vicinity and rescued him.
The motive behind the occurrence was stated to be previous enmity . The delay in lodging the report as stated by the complainant that as no male member was present at home and he came along with his daughter Mst. Sajida Parveen. On this report, the complainant -injured, Muhammad Maskeen was taken to DHQ, Hospital Bhimber for medical checkup and treatment, so that after the report of Doctor , the proceeding may be conducted against the accused, however , the injured-complaina nt was then referred to DHQ, Hospital Mirpur, wherein during treatment, he succumbed to the injuries and the dead-body was sent back to DHQ, Hospital Bhimber where after conducting postmortem of the deceased, the dead-body was handed over to his legal heirs and a case in offence under section 302, A.P.C. was registered against the convict appellant/respondent, Muhammad Arshad. During investigation, it was found that due to a land dispute, the convict-appellant committed this occurrence.
3. After completion of investigation, a challan was submitted against the convict-appellant on 18.09.2007 and thereafter convict-appellant was examine d under sections 242/265-K, Cr.P.C. on 03.10.2007, wherein he pleaded not guilty and opted for the trial of the case. The learned trial Court directed the prosecution to produce evidence in support of its case. The prosecution examined 11 P.Ws. On 22.04.2009, the accused/convict-appellant was examined under section 342, Cr.P.C., he again pleaded not guilty and submitted that false evidence has been produced against him. The accused/convict-appellant stated that he would produce evidence in defence and record his statement on Oath, but, he failed to produce evidence in defence, however , he recorded his statement on Oath under section 340(2), Cr .P.C.
4. The learned District Court of Criminal Jurisdiction, Bhimber after hearing the learned counsel for the parties convicted the appellant, Muhammad Arshad and awarded him sentence of Diyyat of Rs.1072050/- under section 316, A.P.C. and he was ordered to pay the same in three equal installments to the legal heirs of the deceased according to their shares. The convict-appellant was also given the benefit under section 382/B, Cr.P.C. and it was further ordered that if he furnishes bail bond in the same amount of Diyyat, he shall be released on bail and if before the payment of Diyyat, the convict dies, the Diyyat amount shall be recovered by the sale of his property , through the impugned judgment dated 24.02.2010, hence these appeals.
5. One appeal filed by the convict- appell ant, Muhammad Arshad for setting aside the impugned judgment and the second appeal filed by the legal heirs of the deceased for enhancement of sentence. As both the appeals arise out of the same judgment recorded by the learned District Court of Criminal Jurisdiction, Bhimber on 24.02.2010, therefore, these are heard together and decided through this common judgment.
6. Muhammad Younas Arvi, Advocate, the learned counsel for the convict-appella nt argued that the learned trial Court committed grave illegality while recording the impugned judgment. He further argued that there is considerable delay in lodging the FIR which casts serious doubt upon the prosecution story . The learned counsel submitted that the witnesses whose names are mentioned as eye-witnesses also filed affidavits that they have not seen the occurrence. The witnesses mentioned in the FIR have not been produced and the witnesses who were produced are close relatives (daughters) of the deceased, their evidence suffers from material contradictions and is unreliable. According to the estimation of the learned counsel for the appellant that actually the deceased was ill and suffering from constipation and due to this disease he died and as the report of Histopathology's is not received, therefore the cause of death is also shrouded in mystery . The learned counsel vehemently argued that different motives were alleged by the prosecution; however , none of them was proved through cogent and convincing evidence, therefore, the prosecution failed to prove the case against the convict-appellant, but the learned trial Court instead of acquitting the convict-appellant illegally and wrongly convicted him and awarded sentence of Diyyat. Finally , the learned counsel prayed that by accepting the appeal, the impugned judgment may be set aside and convict-appellant may also be acquitted of the charge.
5(sic). Conversely , Raja Mazhar Iqbal, Advocate, the learned counsel for appella nts, Sajida Parveen and others argued that the prosecution has proved its case by producing cogent and convincing evidence. He further argued that this is a case of direct evidence and eye-witnesses are unanimous in their deposition and there is no major contradiction. The learned counsel submitted that the learned trial Court order ed the convict-appellant under section 331, Cr.P.C. to furnish bail bonds equal to the amount of Diyyat, however , the needful was not done as yet and neither filed an application for suspension of impugned judgment, as such, the convict- appellant has ultimately admitted the sentence awarded to him, thus, the appeal has become infructuous, therefore, the same is not maintainable. The learned counsel contended that convict-appellant with his intention and object committed the occurrence. The learned counsel maintained that the learned trial Court only awarded sentence of Diyyat but failed to award sentence of imprisonment which is also provided under section 316, A.P.C. He also contended that it is a case of Qatl-i-Amd and the convict is liable to be punished under section 302, A.P.C. Finally , the learned counsel prayed that by accepting the appeal, capital punishment may be awarded to the convict-appellant. In support of his contentions, the learned counsel referred the following authorities;-
1. 2001 PCr .LJ 954.
2. 2007 PCr .LJ 281.
3. 2002 PCr .LJ 388.
6. The learned AAG, appearing on behalf of the State supported the arguments advanced by the learned counsel for legal heirs of the deceased.
7. We have heard the learned counsel for the parties and gone through the record of the case with utmost care.
8. A contemplate perusal of the record reveals that initially the complainant / deceased, Muhammad Maskeen reported the matter to Police Station Bhimber on 17.08.2007 in the following words ; - {{URDU TEXT}} It also transpires from the record that after the initial report, the injured/complainant was taken to DHQ, Hospital Bhimber for medical checkup and thereafter was referred to DHQ, Hospital Mirpur wherein he succumbed to the injuries. So, the contention of the learned counsel for the convict-appellant that the FIR has been lodged after considerable delay and no plausible explanation has been given is concerned, in this regard, it is relevant to note here that the contents of FIR itself shows that why the complainant/deceased has not reported the matter in time, therefore, the contention of the learned counsel for the convict-appellant is hereby repelled. The case of the prosecution is that due to severe injuries caused by the convict-appellant, Muhammad Arshad, the deceased was done to death, while on the other hand, according to defense version the deceased was ill, old aged, also in weak condition and suffering from a disease of constipation died as natural death. To prove its case prosecution produced as many as eleven (11) P.Ws. including three eye-witnesses namely , Sajida Parveen, Rukhsana Kousar and Sabir Hussain.
9. The relevant captions of statement of some important P .Ws. is usefully reproduced as under;- P.W. Sajida Parveen deposed as under;- {{URDU TEXT}} P.W. Sabir Hussain made his statement as follows;-- P.W. Rukhsana Kousar deposed as under:-- P.W. Doctor , Shahzad Ghazanfar Chaudhary , Civil medical Of ficer DHQ Bhimber , deposed as under;-- {{URDU TEXT}} (Underlining is ours)
The causes of death has been described by Doctor in the following words;- "The cause of death is multiple blunt trauma on abdomen leading to small intestina l perforation and peritonitis. The peritonitis led to T oximia/T oxic Shock and death.
Kind of weapon. Blunt weapon used."
10. The learned counsel for the convict-appellant laid much stress on the point that fake and fabricated story has been made by the prosecution and no occurrence had ever taken place, because the witnesses mentioned in the FIR were not produced by the prosecution and the witnesses who are mentioned as eye witnesses of the occurrence were nowhere mentioned in the first information report. In this regard, it is to be observed here that the FIR is neither a detail document nor a substantive piece of evidence, it is lodged just to move the police machinery for investigation of the alleged occurrence. Furthermore, if any person is not mentioned in FIR as a witnesses, it does not mean who saw the occurrence cannot record his/her statement as witnesses. Although the names of Sajida Parveen, Sabir and Rukhsana were not mentioned in the FIR which was lodged on the report of complainant/deceased, but it transpires from the perusal of statement of P.Ws. that they were coming towards the place of occurrence and at that time Muhammad Akram and his wife were already at the spot, therefore, the presence of the eye-witnesses is natural. Even otherwise, the complainant/deceased himself reported the matter in an injured condition which itself manifest that the occurrence took place and that initial report of complainant/deceased can also be considered as dying declaration because at that time he was in serious pair and thereafter died, thus, the statement of the deceased itself is sufficient to prove the guilt of the convict, therefore, the contention of the learned counsel for the convict-appellant is hereby repelled.
11. So far as the point with regard to the interested and related witnesses is concer ned, in this regard, it is pertinent to note here that mere relationship is no ground for discarding evidence of the witnesses unless and until their enmity with accused is established and the evidence is given on account of such enmity . In a case titled "Muhammad Khurshid Khan v. Muhammad Basharat and another" (PLD 2007 SC (AJ&K) 27) it was held as under;- "The relationship is no ground for discarding evidence of the witnesses unless and until their enmity with the accused is established."
So, it is well established principle of law that the testimony of a witness cannot be discarded merely on the basis of relationship with a party , unless he is so inimical and he has a motive for falsely implicating the accused-persor however , where a witness is inimical, even then his evident should be appreciated with due care and diligence. No enmity of the P.Ws. with the appellant is attributed and established. Moreover , 'prosecution witnesses were put to lengthy searching cross-examination but nothing favorable to defense came out from their mouth. Minor discrepancies could not mar the prosecution case.
12. Furthermore, now a days people tends to avoid giving statements especially in a murder case, therefore, if any independent witness was present at the spot, might have avoided to give evidence. So not to produce Muhammad Akram and Anwar Begum as witnesses is quite understandable. Even, it is for the prosecution that how much evidence it produces to prove its case. So, the contention of the convict-appellant that the witnesses mentioned in the FIR;, were independent witnesses and they have not been produced by the prosecution and their evidence was very much important for just decision of the case. In this regard, it is to be observed that the discretion lies with the prosecution to examine the witnesses of its own choice and the prosecution cannot be compelled to examine each and every witness who have been cited or not. Reliance can be placed on the case reported as 2017 PCr.LJ 731, wherein it was held as under;- "It may be stated here that it is settled principle of law that the discretion lies with the prosecution to examine the witnesses of its own choice and the prosecution cannot be compelled to examine each and every witness cited in the calendar of witnesses. Even otherwi se, the witnesses who have been forgiven or not examined are not the material witnesses."
Even otherwise, if those witnesses were favourable to the convict-appellant, he could have also produced them, but he did not dare to do so. So, the arguments is hereby repelled.
13. Although, it is evident from the record that deceased was an old aged person might have been suffering from different diseases including high blood pressure and the constipation at the time of occurrence, but in the present case, the fact remains that, due to the act of convict-appellant of causing injuries, which resulted into the death of the deceased, the oral and postmortem report if considered in juxtaposition it is amply proved that the death of the deceased was caused due to the internal injuries caused by the convict as the relevant portion of the postmortem report is already reproduced in para No.9 of this judgment. Map Ex.PE was prepared by the Patwari on 22.08.2007 mentions the names of Muhammad Sabir, Rukhsana Kousar , Sajida Parveen and Khalida Parveen as eye- witnesses, their statement under section 161, Cr.P.C. were recorded soon after the death of deceased on 17.08.2007. So, these witnesses were not introduced at a belated stage. The weapon of offence (stick) was also recovered on the pointation of the convict.
14. Convict-appellant got recorded his statement on Oath under section 340(2) of Cr.P.C., wherein he denied the allegations levelled against him, however , he failed to produce any other evidence in defense, his statement is not supported with any other corroborative evidence. Thus, stance taken by convict-app ellant in his statement recorded under section 340(2), Cr .P.C. could not be proved.
15. It is worthwhile to mention here that different motives have been alleged by the prosecution and they remained obscure and have not been positively proved. The motive though not a sine qua non for bringing the offence of murder at home but it has importance regarding the quantum of sentence. It is well settled principle of law that where the motive for the offence is shrouded in mystery then the extreme penalty is not warranted. This view finds support from a case reported as "Muhammad Ali v. The State" (1988 PCr .LJ 307), wherein it was held as under; - "In view of the above discussion, we hold Muhammad Ali appellant alone guilty of the murder of the deceased.
Since the motive for the crime is shrouded in mystery , the extreme penalty of death, in our opinion, is not warranted. We, therefore, reduce his sentence from death to imprisonment for life. However , the sentence of fine and the order direction his to pay Rs.5,00 0 as compensation to the heirs of the deceased under section 544-A, Cr.
P. C. are maintained. With this reduction in the sentence, the appeal of Muhammad Ali appellant is dismissed. He shall be given benefit of the provisions of section 382-B, Cr .P.C., while computing the period of his sentence."
16. So far as the contention of the learned counsel for the appellants, Sajida Parveen and another that the learned trial court wrongly awarded sentence of Diyyat only, as this is a case of capital punishment. In this regard, it is relevant to mention here that although injuries have been caused by convict-appe llant, however , it is established that convict-appellant had not come at the spot prepared to kill the deceased as he was not armed with any deadly weapon to cause injuries and the assault alleged against him was in which fist and kick blows were used to cause injuries and in H facts and circumstances of the case conviction and sentence could not be passed against him under section 302(b), A.P.C., despite that deceased died as a result of injuries sustained by him from convict- appellant. It may also be stated here that the offence of murder is defined in section 300, A.P.C., which reads as under;- "Section 300. Qatl-i-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 probability cause death, causes the death of such person, is said to commit qatl-i-amd. "
To beat a person with a light stick or kicks that too on non-vital part does not cause death in the ordinary course of nature and the same is also not so dangerous that in all the probabilities it may cause death.
In view of above provision of law, the learned trial Court has rightly awarded sentence of Diyyat under section 316, A.P.C., the definition of which is given in section 315,. A.P.C. which reads as under;- "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."
A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of qatl shibh-i-amd. In view of above provision of law, if the offender's intention was to cause only harm to the body of the victim and not his death that would be an offence of Qatl-Shibh-i-amd, punishable under section 316, A.P.C. not a murder liable to be punished under section 302, A.P.C. The relevant factors in this regard would be the nature of the weapon or the instrument used, the force with which it is used the seat of injury , etc. The illustration to the section also explains that where a hurt is caused by means of stick or a stone when resulted in death the offender shall be guilty of qatl-shibh-iamd.
So, in view of above provision of law, convict-appellant is found guilty of the offence of Qatl-Shibh-i-Amd, as he wanted to cause injuries to the deceased not his death, therefore, he is liable to sentence under section 316, A.P.C. instead of 302(b), A.P.C. Reference can be made from 2003 MLD 1409 in a case titled "Muhammad Nawaz and 2 others v . The State" , wherein it was held as under;- "Even we are convinced that in the facts and circumstances of the case the conviction and sentence could not be passed under section 302(b), P.P.C. for the reasons that it is obvious from the evidence on the record that intention of the appellants was to cause harms to the body of the deceased but Muhamma d Akram died as a result of the injuries sustained by him, therefore, Muhammad Nawaz appellant should have been convicted and sentenced under section 316, P.P.C. while Muhammad lqbal and Imran Haider under section 337-F(ii), P.P.C. keeping in view the roles played by them. " We have also gone through the impugned judgment of the trial Court and found the same to be quite in accordance with law by convicting the accused. No misreading or non-reading of evidence has been found in the impugned judgment.
17. As far as the prayer of the learned counsel for the appellant, Sajida Parveen for enhancement of the punishment is concerned, as it was not a preplanned attack, so the convict was rightly not awarded the sentence of imprisonment, bit sentence of Diyyat awarded to him was Rs.10,72050/- and judgment was announced in the year, 2010. According to section 323, A.P.C. it should have not been less than 30630 grams of silver . Rs.10,72,050/- might have been equal to 30630 gram silver at that time, but the convict has not paid that amount uptill now, nor furnished security bond equal to that amount as ordered by the trial Court. Rathe r he filed an appeal against that judgment and the case was procrastinated. So amount of Diyyat Rs.10,72050/- in our opinion is insuf ficient and should be enhanced for following reasons;-
(i) Now practically when the amount will be given to the legal heirs of the decea sed, it is less than the value of prescribed in section 323, A .P. C.
(ii) If we accept the argument that the same was equal to prescribed amount of Diyyat in the year, 2010, even then that section provides 30630 grams silver as minimum and there is no limit for maximum amount.
(iii) Although both the parties filed appeals, but it has been found that the appe al of the convict is without any substance and it will be presumed that the delay has been caused by the convict-appellant. (iv) The appeal for enhancement of the punishment has been filed and when the guilt of the accused is established than the appeal of the legal heirs of the deceased deserves acceptance.
So, due to the above reasons and while keeping in view all the circumstances of the case, Appeal No.18/2017, titled "Sajida Parveen and another v. Muhammad Arshad and another" is partly accepted and the amount of Diyyat is enhanced from Rs.10,72,050/- to 15,00,000/- (fifteen lacs) which shall be given by the convict-appellant to the legal heirs of the deceased forthwith, otherwise, he shall serve the simple imprisonment till the payment 'of the said amount. Resultantly , the appeal filed by the convict-appellant, Muhammad Arshad is hereby dismissed as being weightless.