This is an appeal by Akhlaq Ahmad 24/25 against his conviction under section 302, P.P.C. By learned Sessions Judge, Sahiwal who vide judgment-, dated 29-9-1984 sentenced him to imprisonment for life and a fine of Rs.10,000 or in default 3 years' R.I. He was further directed to pay compensation of Rs.10,000 under section 544-A, Cr.P.C. And in default to suffer further R.I. For 6 months.
2. The occurrence in this case took place on 29-5-1984 at 11-00 p.m. (before mid-night) in the house of Abdul Qaiyum deceased in Parnali Mohallah Sahiwal Town, about two, furlongs away from Police Station A Division, Sahiwal. The formal F.I.R. Exh. P.A./1 was recorded by P.W. 1 Muhammad Arshad H.C. At 7-45 p.m. On 30-5-1985 on the basis of statement Exh. P.A. Recorded by S.I. Salabat Khan (P.W. 8) at 7-30 p.m. On 30-5-1985 at the instance of Mst. Yasmin Kausar (P.W. 5).
3. The complainant Yasmin Kausar daughter of Abdul Qayyum deceased and were of Akhlaq Ahmad accused stated in Exh. P.A. That she was married to Akhlaq Ahmad about five years earlier.
He was employed in Abu-Dhabi. She lived in the house of her husband for about 21 months whereafter she put up residence with her father Abdul Qayyum deceased on account of family skirmishes. She further stated that Akhlaq Ahmad, her husband, came back from Abu-Dhabi. He stayed in his own house and used to come to meet her in the house of her parents who repeatedly told him to take her (complainant) to his own house. On 29-5-1984 Akhlaq Ahmad came to the house of his father-in-law Abdul Qayyum deceased. At about 11-00 p.m., Abdul Qayyum deceased told Akhlaq Ahmad that it was not proper for him to spend night in their house and that he should take his were Yasmin Kausar (complainant) to his own house. At this, Akhlaq Ahmad got enraged and said to the deceased that if he prevented him from coming to his house, he would kill him. This resulted in exchange of hot words between the two. It is alleged by Yasmin Kausar that the accused picked up a walking stick (Chhuri) hanging with the peg and gave two Chhuri blows to the deceased on his back. She raised alarm which attracted Muhammad Aslam and Shahid Butt P.Ws.
Who entered the house by scaling over the wall. They tried to rescue Abdul Qayyum but in the meantime Akhlaq Ahmad accused picked up a looking glass (mirror) and threw the same at her father which hit him on the chest. Abdul Qayyum fell down and died after a short while. The occurrence was witnessed by Balqees Sultana were of the deceased, Muhammad Aslam and Shahid Butt P.Ws. The accused Akhlaq Ahmad ran away from the spot. The complainant informed her brother Naeem Ahmad Khan who was employed at Rawalpindi. He returned home at about 6- 00 p.m. And informed the police. S.I. Salabat Khan on receipt of information went to the place of occurrence and recorded statement of Mst. Yasmin Kausar Exh. P.A. On the basis of which the present case was registered against the accused.
4. The police after registration of the case undertook investigation. The dead body of Abdul Qayyum aged about 66 years was sent for post-mortem examination which was conducted by Dr. Aziz-ur-Rehman's (P.W. 4) on 31-5-1984 at 10-00 a.m.
On external examination of the dead body of Abdul Qayyum the Medical Officer found a contusion mark 3 c.m. x 2 c.m. On the front middle part of left chest 2-05 c.m. From left nipple. The face was pale. The blood forth was coming out and was trickling down from the mouth and nostrils. The body was in a state of decomposition. The skin was bluish-black in colour with bletis on the chest and abdominal part in front and side. The skin was peeling of due to decomposition stage of body.
The death was due to shock from paralysis of the heart by a blow an the cardiac region caused by injury No. 1, inflicted by blunt weapon and which was sufficient to cause death in ordinary course of nature. The time between injury and death was immediate and post-mortem was conducted after about 30-48 hours of the death.
5. The Investigating Officer during inspection of spot on 30-5-1984 collected 18 pieces of mirror (not marked or exhibited), vide memo. Exh. P.D. In the presence of Naeem Ahmad Khan, (P.W. 7) and Muhammad Aslam P.W. (not examined). The accused Akhlaq Ahmad was arrested on 2-6-1984. At the time of his arrest, he produced walking stick (Chhuri) P. 1 which was taken in possession by S.I.
Salabat Khan vide Memo. Exh. P.E. In presence of the same witnesses.
The accused was challaned after completion of the investigation.
6. The prosecution, during the trial, examined eight witnesses in all. P.W. 5 Yasmin Kausar and P.W. 6 Shahid Butt were examined as eye-witnesses in support of the prosecution case. Muhammad Aslam and Mst. Balqees Begum, eye-witnesses named in the F.I.R., were given up as unnecessary.
The recovery of stick P. 1 from the accused and recovery of 18 pieces of glass from the place of occurrence was witnessed by Naeem Ahmad (P.W. 7), a son of Abdul Qayyum deceased. The case was investigated by S.I. Salabat Khan (P.W. 8). The evidence of rest of the witnesses was of formal nature.
The accused when examined under section 342, Cr.P.C., denied the charge and pleaded innocence.
He admitted the differences between his mother and his were Yasmin Kausar on account of which she did not want to reside with him. He stated that on account of this quarrel with his mother, the complainant Yasmin Kausar wanted divorce from him and, therefore, involved him in this case. He did not produce any evidence in defence.
The learned trial Judge placed reliance on the evidence of eye-witnesses, recoveries, motive, and convicted the accused as stated above. He did not agree with learned counsel appearing on behalf of the accused during the trial that the case against the accused was at the most a case under section 323, P.P.C. And convicted him under section 302, P.P.C. As stated above.
7. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellant and the learned Assistant Advocate-General.
It was contended on behalf of the appellant that even if the entire prosecution case is accepted, then also it could not be said from the facts and circumstances of this case that the accused intended to murder Abdul Qayyum or even had a knowledge that by his act the deceased would meet his death. It was, therefore, argued that, on legal premises, the case of Akhlaq Ahmad appellant would fall at the most within the ambit of section 323, P.P.C. The learned Assistant Advocate-General felt difficulty in opposing this contention.
I have examined the evidence on record. It is the case of prosecution that the accused first gave two stick blows to Abdul Qayyum deceased and thereafter, caused injury on the chest of the deceased by throwing a looking glass, lying nearby at him. A perusal of the medical evidence would show that the deceased did not have any injury of stick or by any blunt weapon on his back.
The occurrence took place at 11-00 p.m. On 29-5-1984. Mst. Yasmin kausar (P.W. 5) informed her brother at Rawalpindi who reached the place of occurrence at Sehiwal on 30-5-1984. He, as stated by him during the trial, informed the Police whereafter S.I. Salabat Khan reached the place of occurrence and recorded statement of Yasmin Kausar at 7-30 p.m. It, therefore, appears that the story that the accused caused two Chhuri blows on the back of Abdul Qayyum deceased was fabricated to make out a case of intentional murder against the accused. The delay in lodging of the F.I.R. Was material. The police station was only two furlongs away. The dead body remained lying in the house for many hours but the F.I.R. Was lodged next day in the evening after arrival of Naeem Ahmad Khan P.W. Who informed the S.H.O. Of the occurrence. Thereafter, the police arrived at the spot and recorded the statement of Yasmin Kausar. The police should have recorded the statement of Naeem Ahmad Khan immediately at police station which was not done. The delay and the manner of reporting the matter to the police cast doubt on the prosecution case. The mirror was lying in the room where the present occurrence took place. There was exchange of hot words between the accused and the deceased whereafter he allegedly picked up the said mirror and threw the same on Abdul Qayyum deceased. It struck his chest. The mirror did not cause fracture of any bone. It in -fact did not cause any injury which could have resulted in the death of the deceased. No internal organ of Abdul Qayyum deceased got injured as a result of the said injury by mirror. The death occurred due to paralysis of heart. The accused, therefore, could not know that his act of throwing mirror at the deceased would result in the paralysis of heart. He did not repeat any injury on the person of the deceased. He did not use the alleged stick for causing more injuries to the deceased after throwing mirror on him. As such I am of the view that the accused neither intended to cause the death of Abdul Qayyum deceased nor had any knowledge that his act would cause paralysis of heart resulting in the death of deceased. Only a simple injury resulted by the act of the accused.
8. I have examined the case-law on the subject. In Dayal Singh v. Emperor AIR 1926 Lah. 419 the accused was charged under section 302, P.P.C. And convicted for having caused the death of Harnam Sings. It was held by a Division Bench that the majority of injuries inflicted being slight, the safer inference to draw in such a case was that the assailants of the deceased neither intended to cause death nor knew that they were likely to cause death. They were accordingly convicted under section 325, P.P.C.
1969 SCMR 641 the' accused were sentenced to imprisonment for life under section 302/149, P.P.C.
For causing the death of Saif Ali by inflicting injuries on his head and other parts of the body. In post-mortem report it was stated that the spleen which was of normal size showed a leer 3" long on postal surface while rest of the organs were healthy. The death was due to rupture of spleen and fracture of skull, due to injuries Nos. 2 and 1 respectively. It was held by their Lordships that the intention is to be gathered from the nature of injury caused and the conduct of the assailants and the surrounding circumstances of the case. The appeal of Pehalwan was allowed and his conviction under section 302, P.P.C. Was altered to section 325/149, P.P.C.
PLD 1980 Kar. 246 the accused was sentenced under section 302, P.P.C. To imprisonment for life for causing the death of Mir Muhammad by inflicting only one Lathi blow on head. There was no previous enmity between the parties and their Lordships altered the conviction of the appellant from 302, P.P.C. To one under section 325, P.P.C.
9. In view of above, it cannot be said that the accused intended or even had a knowledge that his act would result in death of Abdul Qayyum deceased. He can, therefore, be only held guilty of causing simple hurt to the deceased punishable under section 323, P.P.C.
10. Am a result of the above discussion, I set aside the conviction and sentence of Akhlaq Ahmad appellant under section 302, P.P.C. And instead convict him under section 323, P.P.C. The appellant was arrested on 2-6-1984. He was not allowed bail during the trial or by suspension of his sentence after filing this appeal. This means that he is in prison since 2-6-1984. I, therefore, sentence him to imprisonment already undergone by him under section 323, P.P.C.
With the above modification this appeal is dismissed.