' The appellants Mst. Sarwar Bibi wife of Muhammad Iqbal resident of Canal Park, Gulberg, Lahore and her unmarried daughters Mst. Irshad Bibi, Mst. Shamshad Bibi and Mst. Shahnaz Bibi were tried on charges under section 302/452 read with section 34, P.P.C. By Manawar Hassan Shah Farooqui, Additional Sessions Judge, Lahore, for committing the murder of Mst. Mumtaz Begum the pregnant daughter of Mst. Sarwar Bibi the complainant, by giving her kicks, and fist blows and also hitting her by brickbat. The learned trial Judge acquitted Mst. Shahnaz Bibi of the charges, but found the other three appellants guilty under section 304 read with section 34, P.P.C. On the charges under section 452/34, P.P.C., each of the appellants was sentenced to undergo R.I. For a period of four years and to pay a fine of Rs,2,000 each or in default of the payment of fine to suffer R.I. For a period of 6 months. On the charge under section 304 read with section 34, P.P.C. Each of the appellants were sentenced to undergo R.I. For a term of 10 years and to pay a fine of Rs,5,000 each or in default to suffer further term of R.I. Of one year. The sentence on both counts was ordered to run concurrently, and it was also ordered that the entire amount of fine, if recovered shall be paid to the complainant.
2. The unfortunate occurrence resulting into the death of Mst. Mumtaz Begum took place on 4-7- 1982 at about 10-30 a.m. In the house of the complainant in a street where the houses of the complainant as well as the appellants are situated opposite to each other.
3. Bashir Ahmad, S.I. (P.W.9) P.S. Gulberg, Lahore, on the receipt of information with regard to the occurrence, reached the spot situated at a distance of 1 K.M. From the Police Station, Gulberg, Lahore. The S.I. Recorded the statement of the complainant Mst. Sughran Bibi on the same day at about 11-35 a.m. And sent the said statement to the police station where on the basis of the aforesaid statement, a formal F.I.R. Exh.P.D./1 was drawn by Muhammad Iqbal, A.S.I., P.S. Gulberg, Lahore.
4. The prosecution case as unfolded by the complainant Mst. Sughran Bibi is as follows:- "The complainant stated that on the day of occurrence while she was reciting Holy Qura'n in the house, she heard the appellant Mst. Sarwar Bibi abusing her (the complainant) and her family members. On hearing the abuses, the complainant came out from her house and asked the appellant as to why she was abusing the appellant. Mst. Sarwar Bibi stated that as to why she (the appellant) is being prevented by the complainant for draining the water into the gutter. The complainant told the appellant Mst. Sarwar Bibi, that since she after incurring the expenditure, had made the gutter for her own use, therefore, none else can use the same, as such user was already damaging the complainant's house. The complainant further stated that she asked the appellant to make her own arrangement for the drainage of the water whereupon the appellant Mst. Sarwar Bibi while abusing the complainant called her daughters the appellants Mst. Irshad Bibi, Mst.
Shamshad Bibi and Mst. Shahnaz Bibi. According to the complainant all while abusing advanced towards the complainant to attack her. According to the complainant, she out of fear receded towards her own house and took shelter into her room. According to the complainant, the appellants and the acquitted accused Mst. Shahnaz Bibi entered her house while holding brickbat.
The appellant Mst. Sarwar Bibi caught hold of the complainant from her hair. In the meanwhile, according to the complainant, her pregnant deceased daughter Mst. Mumtaz Begum tried to intervene whereupon the appellant Mst. Sarwar Bibi exhorted her other daughters the appellants, to catch hold of Mst. Mumtaz Begum. According to the complainant, Mst. Irshad Bibi, Mst. Shamshad Bibi and Mst. Shahnaz Bibi the acquitted accused caught hold of the deceased Mst. Mumtaz Begum and started beating her with fists. Mst. Shahnaz Bibi the appellant hit the deceased with the brick, which after hitting her chin fell on her abdomen. Mst. Irshad Bibi the appellant gave a kick blow from her right leg to the deceased Mst. Mumtaz Begum followed by the fist blow caused by Mst. Shahnaz Bibi. The complainant further stated that hue and cry raised by her attracted the other women of Mohallah namely Mst. Sharifan (P.W.7) wife of Muhammad Aslam, Amna Bibi wife of Muhammad Nawaz (P.W.6), the tenants of the complainant. One Kaniz Bibi wife of Iqbal the real sister of the complainant also reached there. Allegedly all these witnesses rescued the deceased and the complainant from the appellants. The deceased Mst. Mumtaz Begum, who, was also pregnant died at the spot. She also complained of the pain on her shoulder, neck and other parts of the body.
5. Bashir Ahmad S.I. (P.W.9) who had recorded the statement of the complainant, inspected the spot and vide memo. Exh.P.B., he took pieces of two bricks into the possession. The recovery memo.
Was attested by Sardar Muhammad (P.W.2) the husoand of the complainant. Dr. Khalid Hussain, Medical Officer, in the Office of Surgeon Medico-legal Punjab, Lahore, conducted the post-mortem examination on the dead body of Mst. Mumtaz Begum deceased on 4-7-1982 and following injuries were noticed : -
(i) A lacerated wound 1 c.m. x 1/2 c.m. Bone deep on the mid chin.
(ii) An abrasion 1 c.m. x c.m. Under the chin.
(iii) Contusion 10 c.m. x 3 c.m. On the right iliac fossa of the abdomen.
' In the opinion of the Doctor, all the injuries were caused with blunt weapons. Injury No, 3 on the abdomen had caused neuro-jenic shock and cardiac arrest causing death of the deceased. In the cross-examination the Doctor stated as under:- "Neuro-genic shock is based upon the nervous system. Thus, it can happen even without a visible injury. In every death natural or unnatural there is a cardiac arrest. It is correct that there was no damage to the artries in the iliac fossa. I did not notice any rupture of the vessels underneath. I also did not find any damage to the unborn baby which was full term in the uterus of the dead body. It is, therefore, correct to suggest that after the death of the deceased the baby died for want of circulation of blood. The injuries Nos. 1, 2 and 3 could be possible result of falling on hard substance.
The fall may be on the pieces of bricks or by tumbling thereon. Contusion on injury No, 3 could be caused by blunt weapon like Danda, brick on the chin and diverting downward. It is very remote to cause a contusion by a kick or by a fist."
6. At the trial, the prosecution produced ocular evidence consisting of the statement of Mst.
Sughran Bibi the complainant (P.W.5), Mst. Amina Bibi (P.W.6) and Mst. Sharifan (P.W.7). These eye- witnesses consistently supported the prosecution version. On the other hand, Mst. Sarwar Bibi the appellant when examined under section 342, Cr.P.C. Made the following statement:- "My house is opposite to the house of Mst. Sughran Bibi complainant in the same lane. For the last more than 16 years the waste water of my house has been falling in a public 'Gutter' located close to the door of the house of Mst. Sughran Bibi P.W. On the day of the occurrence, my husband had gone to attend his duty. I found the 'Gutter' filled with bricks blocking the flow of the wafer of my house. I sat to clear the bricks. I had put out a large number of bricks from the 'Gutter' and placed them there. In the meanwhile, Mst. Sughran Bibi P.W. Came out of the house because of the bad smell which arose from the 'Gutter'. She held me from my hair in the attempt to prevent me from clearing the 'Gutter'. This attracted Mst. Mumtaz deceased who came running from inside the house. She slipped at the threshhold of the door and fell on the bricks which I had put out from the 'Gutter' close to the door and breathed her last. The co-accused who are my schoolgoing daughters had not joined the incident at all. The P.Ws. Are tenants of Mst. Sughran Bibi P.W. And as such, have subscribed to a distorted story. The incident has been witnessed by other neighbours of the locality namely Nadeem Ali, Zahid Ali, Malik Yaqub, Muhammad Ihsan, Yousaf Rahim Qureshi and Shamim Ahmad as well as many others. They had not supported version before the police."
' In support of this plea in defence, Shamim Ahmad D.W.1 and Yousaf Rahim Qureshi D.W.2 were examined. The case of the appellants was that the dispute was initiated by the complainant side when she (Mst. Sarwar Bibi the appellant) was cleaning 'Gutter' and was taking out the bricks and deceased, who came out running fell on the aforesaid heap as a result of which, she breathed her last.
7. I have heard Mian Muzaffar Ahmad, the learned counsel for the appellants at length and I have also gone through the entire evidence on the record.
8. The learned counsel vehemently argued that the allegation, to the effect, that a brick was thrown at the deceased which had hit on the chin and had fallen on the abdomen of the deceased was improbable, and if, such allegation is believed, even then the injury on the abdomen could not have been caused with the aforesaid brick, because, the deceased was not in a sitting posture. The learned counsel further relied upon the medical evidence and drew my attention to the replies given by the doctor in cross-examination which has been reproduced above in toto. The learned counsel further argued that the prosecution evidence does not lead to inference, that the appellants had intended to cause death of the deceased. The learned counsel also drew my attention to various contradictions as to the place where the dead body was lying, to show that the occurrence did not take place in the house of the complainant, and therefore, offence under section 452, P.P.C. Was not made out.
9. I have carefully considered all these contentions. In my view, the injury No, 3 as stated by the Doctor could be caused by a Danda or by a brick. In this context, the contents of the F.I.R. Cannot be lost sight of, in which the injury No,3 had been attributed to Mst. Irshad Bibi appellant. Even, if, it is believed that the brick thrown, could not have hit the abdomen of the deceased after having hit the chin, the injury has been proved to have been caused by Mst. Irshad Bibi appellant. It is a different question now to see as to what offence is made out. Secondly, whether section 34, P.P.C. Is attracted to the facts of the case. I have carefully considered the prosecution evidence and in my view, it was a sudden affair and it was not a preconcerted plan to cause the death of Mst. Mumtaz Begum deceased. In my view it was independent act of Mst. Irshad Bibi to give a kick blow on the abdomen of the deceased. The next crucial question which arises is whether Mst. Irshad Bibi appellant can be burdened with the knowledge, that kick blow given by her was likely to cause death. In my view, Mst. Mumtaz Begum the deceased was in advance stage of pregnancy, and therefore, it is not possible to rule out that Mst. Irshad Bibi would not have known that a kick by her on the abdomen would be dangerous and fatal.
10. In this view of the matter, I would hold Mst. Irshad Bibi alone guilty for the commission of offence under section 304, P.P.C. The learned trial Judge did not advert to the injuries received by the complainant which was caused to her by all the three appellants, and therefore, Mst. Irshad Bibi and other appellants would also be guilty for causing simple injuries to Mst. Sughran Bibi the complainant. As far as the other charge is concerned, in my view offence under section 451, P.P.C.
And not under section 452, P.P.C. Is made out. The next question falling for determination is the quantum of sentence. During the course of the arguments, a compromise has been filed by the husband of Mst. Mumtaz Begum on the record. The parties are closely related inter se. Considering this development and the other circumstances of the case, in my view, the sentence already suffered would meet the ends of justice. On account of the compromise, I refrain to inflict the punishment upon the appellants, and sentence awarded to each of the appellant is hardly set aside.
11. For the foregoing reasons stated above, I hereby direct that the appellants shall be released forthwith if not required in any other case.