' This Criminal Appeal No,521/82-Lahore, arises from the judgment of learned Sessions Judge Gujrat whereby he on 1-9-1981 convicted Muhammad Afzal and Safdar appellants under section 302/34 P.P.C. For causing the death of Nazar Hussain and sentenced them to imprisonment for life and fine of Rs,5,000 in default thereof three months R.I. They were also directed to pay Rs,5,000 each as compensation to the legal heirs of the deceased or in default thereof six months R.I. Each.
2. The occurrence took place on 20-11-1980 at 3-30 p.m. In a field near the Dera of Khan situated in village Lakhabwala of Police Station Mandi Bahauddin. The distance between the place of occurrence and the Police Station is four miles. The F.I.R. Exh. P.A. Is statement of Mehdi Khan P.W.5 brother of the deceased recorded by Anwar Hussain S.I. P.W.8 on the same day at 7 p.m. In Civil Hospital, Mandi Bahauddin. Formal F.I.R. Exh.P.B. Was drawn up on the same day at 5-15 p.m. By Muhammad Nazir, Moharrir Head Constable P.W.3.
3. The motive as set up by the prosecution was that on 18-11-1980, Muhammad Afzal appellant had borrowed Sohaga from Mehdi Khan complainant. He did not return the same. On 19-11-1980 Nazar Hussain brother of the complainant approached Muhammad Afzal appellant and demanded Sohaga. On this, there ensued quarrel followed by abuses, between them. They also gave fists blows to each other. Mehdi Khan however intervened. Sohaga was returned by Muhammad Afzal appellant. Thereafter, the deceased and the complainant returned to their houses; hence this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time it was the turn of the water of the deceased who had gone there to irrigate his fields. When he reached near the Dera of Khan, he found Muhammad Afzal and Safdar appellants lying ambush, armed with sticks. On seeing the deceased, they raised Lalkara that they would teach him lesson for hurling abuses. At that time Muhammad Ashraf P.W.6 and Nadir (not produced) were coming from Railway Station Shaheedan Wali. They were attracted to the place of occurrence. Muhammad Afzal appellant launched assault and gave a Sota blow on the head of Nazar Hussain. Nazar Hussain fell down.
Safdar appellant gave two Sota blows on his legs and buttocks. Nazar Hussain became unconscious. On the intervention of Mehdi Khan complainant and others, the appellants went away. Nazar Hussain was removed to Civil Hospital Mandi Bahauddin. Anwar Hussain S.H.O. On receiving information came to the Hospital and recorded statement Exh.P.A. Of Mehdi Khan. The case was originally registered under section 307/34, P.P.C. Nazar Hussain succumbed to the injuries on the same day at 10-15 p.m. In the hospital and section 307, P.P.C. Was converted into section 302, P.P.C.
5. Dr. Nazir Ahmed P.W.9 had examined Nazar Hussain in his injured condition on 20-11-1980 at 6-45 p.m. He found three contused wounds on his person, caused by blunt weapon. Injury on the head was grievous and dangerous to life. The rest of the injuries were simple in nature. The same doctor also conducted post-mortem examination on the dead body of Nazar Hussain and found following injuries on his person:- "(1) Contused wound 5 c.m. x 1.2 x c.m. Bone deep with swelling over the right side and front part of head. The skull underneath was fractured.
(2) Contusion 12 c.m. x 2 c.m. On the other side of right hip and right thigh.
(3) Contused wound 1 c.m. x 1.4 on bone deep on front of left leg."
' In his opinion, the death was due to shock and haemorrhage as a result of injury No, 1, which was sufficient to cause death in the ordinary course of nature. The time between the injuries and the death was 6 to 9 hours and between death and the post-mortem was 12 to 16 hours. On 21-11-1980 Anwar Hussain S.I. P.W.8 arrested Muhammad Afzal and Safdar appellants. On 25-11-1980 Muhammad Afzal led to the recovery of Sota P.2 which was taken into possession vide Memo.P.J.
Safdar appellant also led to the recovery of Sota P.3 which was taken into possession vide Memo.
P.K/1 Both the Sotas were not stained with blood.
6. To prove its case, the prosecution examined nine witnesses.Dr. Nazir Ahmed P.W.9 had examined Nazar Hussain with regard to his injuries when he was alive and also conducted post-mortem examination on his dead body. Mehdi Khan P.W.5 and Muhammad Ashraf P.W.6 have given the ocular account of the occurrence. Rehmat P.W.7 has stated that Muhammad Afzal and Safdar appellant had produced Sotas P.2 and P.3 before Anwar Hussain S.I. The rest of the evidence is more or less of formal nature.
7. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised plea of false implication. Muhammad Afzal appellant produced Manga Lal Khokhar as D.W.1. He brought the register about the arrival and departure of trains in the month of November, 1980 for Railway Station Mandi Bahauddin. He stated that Lukhebwela is the first railway station from Mandi Bahauddin to Lath Musa. The distance between the two Railway Stations is nine kilometres. He gave the details of the timings of arrival and departure of the 4 Up- Trains from Mandi Bahauddin towards Lala Musa. The learned trial Court while believing evidence of motive, ocular evidence and the medical evidence, has convicted and sentenced the appellant as stated above.
8. Dr. Khalid Ranjha Advocate, learned counsel for the appellants while frankly and very rightly admitting that Nazar Hussain deceased had died at the hands of the appellants, has challenged the nature of offence committed by them. He argued that in the circumstances of the case, no case of culpable homicide amounting to murder is made out against the appellants. The learned counsel for the State however maintains that the act of the appellants causing fatal blow to Nazar Hussain deceased in furtherance of their common intention falls within the ambit of section 302/34, P.P.C.
9 I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that there was no previous enmity between the parties; that it was over a petty matter that the appellants and the deceased had not only abused but exchanged fists blows; that before launching attack, the appellants had declared that they would teach a lesson for giving abuses; that Muhammad Afzal appellant gave one grievous injury and did not repeat the blow; that Safdar gave simple injuries on the left leg and that had the appellants any intention to cause the death of Nazar Hussain, they would have given more blows with sufficient force on vital parts of the body. In the circumstances of the case I am of the view that it would be too much to burden the appellants with the intention to kill the deceased.
They however can be saddled with the knowledge that the blow given by Muhammad Afzal appellant could cause the death of the deceased.
10 The up-shot of the discussion is that there being no satisfactory basis to uphold the convictions of the appellants under section 302, P.P.C, the same are hereby set aside and instead the appellants are convicted under section 304, Part-II, P.P.C. Since Muhammad Afzal has caused the fatal blow, he does not deserve any leniency and is sentenced to ten years R.I. And a fine of Rs,5,000 in default thereof two years R.I. Safdar is sentenced to seven years R.I. And a fine of Rs,3,000 in default thereof one year R.I. The appellants are directed to pay Rs,3,000 each as compensation to the legal heirs of the deceased in default whereof six months R.I. Each. They shall be extended the benefit available to them under section 382-B, Cr.P.C. In regard to the period of detention as under trial prisoners.
' Conviction altered.