Muhammad Din alias Manhha (30), his were Mst. Kausar Parveen, alias Billi (24/25), Muhammad Akram (22/23) and his brother (17), were tried, for having committed the murder of minor boy Imran, aged about eleven months, in the house of Sarfraz Ahmad, complainant (P.W. 11), at 7 p.m.
On 30-6-1983, by Additional Judge, Kasur.
The learned trial Judge vide order, dated 29-11-1984, convicted them under section 304, Part II, read with section 34, P.P.C. And sentenced them as under: Muhammad Din alias Manhha, under section 304, Part II, P.P.C. To undergo imprisonment for ten years, plus a fine of Rs.10,000 in default whereof to suffer three years' R.I.
Mst. Kausar Parveen, Muhammad Akram and Muhammad Ashraf, under section 304, Part II, P.P.C.
To undergo imprisonment for three years' R.I. Each, plus a fine of Rs.5,000 each, in default whereof to suffer six months' R.I. Each. Half of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
The convicts have filed appeal. The complainant has filed Criminal Revision No. 120 of 1985, praying for conviction of the appellants under, section 302/34, P. P. C. And for awarding sentence accordingly. In the alternative, it is prayed that the sentence of Muhammad Akram, Mst. Kausar Parveen and Muhammad Ashraf be enhanced. The revision petition was directed to be heard alongwith the appeal. Both the matters are being disposed of by the same judgment.
2. F.I.R. (Exh. P.J.) was registered at Police Station Mustafa Abad, District Kasur, on 1-7-1983, at 8-40 a.m., on the statement of Sarfraz Ahmad. It was recorded by Muhammad Rafiq A.S.I. (P.W. 9).
According to the F.I.R., one Ghulam Muhammad had come to the house of the complainant, when he was sitting in the courtyard alongwith his were Mst. Shamim Bibi, mother, Nasim Bibi. Amjad son of Khushi Muhammad and Ibrahim son of Sardar Muhammad, at 7 p.m. On 30-6-1983, and complained that Manhha had broken the leg of his hen. The reply given by the complainant that the leg of his hen had been broken by Muhammad Din alias Manhha was overheard by the latter, his were Mst. Billi, accused Bills and Akram sons of Sher Muhammad, while sitting in the Chaubara, in front of the house of the complainant. On hearing about the allegation of breaking of leg of the hen by Muhammad Din, all the four accused persons named above, started hurling filthy abuses, which were returned by the complainant, whereupon the appellants started throwing bricks on the complainant, as a result of which a brick hurled by Muhammad Din hit Imran, a boy of 11 months, son of the complainant, on the head. Wife of the complainant removed Imran to the room. In the meantime, Amjad tried to pacify the matter, during which he received an injury on his left hand palm, as a result of the brick hurled by Mst. Billi. When the condition of Imran worsened, he was removed to hospital at Mustafa Abad. On the advice of the doctor Incharge of the Civil Hospital, Mustafa Abad, Imran was taken to General Hospital, Lahore, where he died in the mid-night.
3. The A.S.I. After registering the case reached General Hospital, Lahore. After inquest report of Imran, he despatched the dead body for post-mortem examination. Thereafter, he proceeded to the spot. During spot inspection, he took into possession five bricks, vide memos. Exhs. PC, PD and PE. He also took into possession cot (P. 10) and blood-stained Dopatta. One of the five bricks was stained with blood.
4. The autopsy on the dead body of Imran was performed by Dr. Muhammad Farooq (P.W. 12). He noted following injuries on the dead body of Imran: (1)Curved lacerated wound, 1 cm. x 0.5 cm. At the left side of back of the head.
(2)Multiple abrasions 10 cm. x 10 cm at the right side of head. 7 cm. Away from injury No. 1.
(3)Contusion 1 cm. x 2 cm. At outer side of right eye.
(4)Contusion 2 cm. x 2 cm. At the right shoulder.
(5)Multiple contusions 6 cm. x 5 cm. From chin to right angle of mouth.
According to his opinion, the deceased died as a result of injury No. 2, which had caused extensive damage to brain substance.
5. The A.S.I. Got medically examined Amjad P.W. From Dr. Zafarullah. Dr. Zafarullah while appearing as P.W. 7 stated that he had noted one contusion with swelling on the left arm, in the middle part on the person of Amjad. The size was 11 cm. x 3 cm. The injury was declared simple and was opined to have been caused by a blunt weapon.
After completion of investigation, challan was put to Court.
6. At the trial prosecution in all examined twelve witnesses. The summary of evidence of Dr. Zafarullah (P.W. 7) and Dr. Muhammad Farooq (P.W. 12) has been noted above.
The ocular account was deposed by Amjad (P.W.1), Mst. Shamim mother of the deceased, (P.W. 8) and Sarfraz Ahmad (P.W. 11) father of the deceased, who is the complainant in the case.
Sarfraz Ahmad apart from narrating the facts given by him in the F.I.R. Also stated that all the accused had extended threats to kill all of them. His statement has been corroborated by Amjad (P.W. 1) and Mst. Shamim (P.W. 8) on all counts.
Evidence of bricks having been taken into possession from the spot has been deposed to, by Muhammad Rafiq, A.S.I. And Amjad P.Ws.
7. Appellant Mst. Kausar Parveen alias Billi, Muhammad Ashraf alias Bills and Muhammad Akram during their statements under section 342, Cr. P. C. Denied the prosecution allegations and stated that they were not present at the spot at the time of occurrence.
Muhammad Din appellant while denying the prosecution case, in answer to the question, "why this case against you:" stated as follows: "Due to enmity, as the complainant always used his house as gambling den and 1 including the other accused persons restrained him not to do so as it injured our privacy. On the day of occurrence the complainant was also trying to have gathering the undesired people for the said purpose of gambling on which I estopped the complainant. Being instigated on my words, it was the complainant and his companions who abused me and tried to throw bricks upon me from the courtyard towards Chobara where I was standing. The brick could not hit me rather it hit in return on the person of Imran, which resulted in his death."
"Due to being related inter se."
The other three in answer to the same question, i.e. "why this case against you," stated as follows:- "Due to being related Manhha accused." None of the appellants produced any defence.
8. Learned counsel for the appellants, after having taken me through the evidence, contended that all the P.Ws. In this case are related and interested, that admittedly there was no previous animosity between the parties and the occurrence was not the result of premeditation. Learned counsel argued that question of application of section 34, P.P.C. In this case requires serious consideration, in view of the fact that none was armed with any weapon like the Dang, fire-arm or Kulhari, etc. And that the only allegation is of having thrown brick-bats. Learned counsel vehemently argued that the appellant cannot be held liable for having common intention to cause the death of Imran. In this connection learned counsel contended that the conviction of Muhammad Ashraf and Muhammad Akram is liable to be set aside on to a ground that there is no allegation against them of having caused any injury either to the deceased or to any of the P.Ws.
About Mst. Kausar Parveen, learned counsel urged that since Amjad, while appearing as P.W.1 did not state anything against Mst. Kausar of having caused injury to him, she cannot be held liable on statements of other witnesses.
Learned counsel for the State/ complainant defended the judgment of the trial Court.
Learned counsel for the complainant while arguing the revision petition conceded that although he has prayed in the revision petition for altering the conviction of the appellants from section 304, Part II, P.P.C. To under section 302, P.P.C. But he would not press that prayer. He, however, vehemently argued that sentence awarded to Mst. Kausar, Ashraf and Akram should be enhanced.
9. It is apparent from the evidence on record that there is no previous history of strained relations between the parties. The occurrence was the result of a sudden flare up where the parties prior to the pelting of brickbats had exchanged abuses. As such, the finding of the trial Court that it was not a case of premeditation dues not call for any interference.
The argument of the learned counsel for the appellants carries a lot of weight that in view of the evidence on record, the appellants cannot be held liable for having common intention of causing the death of Imran. Each one of them is alleged to have started throwing bricks after exchange of abuses. No one has stated that anyone of them had aimed a brick on any of the P.Ws. Or the deceased. In fact, there is no allegation of having raised a Lalkara to exhort others. As such, I find myself in complete agreement With the learned counsel for the appellants that the appellants cannot be held liable for having participated in the occurrence with common intention. The liability of each one of B them has to be considered on the basis of the evidence. In this connection, the contention of the learned counsel that none of the witnesses had stated against Muhammad Ashraf and Muhammad Akram to have caused any injury to the deceased or the P.Ws. Bears fruit.
None of them appears to have incurred any liability for maintaining their conviction. Their conviction is, therefore, set aside and they are acquitted of the charge.
10. Although Sarfraz Ahmad and his were Mst. Shamim both have stated that the brick hurled by Mst. Kausar had resulted in an injury to Amjad P.W. But Amjad in his statement has not alleged anything against her. In this view of the matter, she also cannot be convicted C for any offence. Her conviction under section 304, Part II, P.P.C. Is also set aside, on the basis of the finding that it is not a case of common intention.
11. However, there is enough evidence against Muhammad Din appellant and prosecution has, without any shadows of doubt, proved the case against him of having thrown brickbats, as a result of which Imran died. It cannot be argued that he could have no knowledge that the injury suffered by Imran with a brick was not likely to result in his death. As a matter of fact, learned counsel for the appellants did not seriously challenge the finding of the trial Court in this regard. The conviction of Muhammad Din appellant under section 304, Part 11, P.P.C. Is, therefore, maintained.
As for the sentence is concerned, I find substance in the contention of the learned counsel for the appellants that the case did not require awarding of maximum sentence provided under section 304, Part 11, P.P.C. The sentence of ten years' R.I awarded to Muhammad Din appellant is, therefore, reduced to five years' R.I. The sentence of fine is, however, maintained. Whole of the fine, however, shall be paid as compensation to the parents of the deceased.
12. Appellants Mst. Kausar Parveen, Muhammad Ashraf and Muhammad Akram, are already on bail. Their sureties and bait bonds stand discharged.
Cr. R. No. 120/85.
13. Muhammad Akram, Muhammad Ashraf and Mst. Kausar Parveen, stand acquitted, in their appeal. Therefore, question of enhancement of their sentences does not arise. The revision petition stands dismissed.