1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgme4ht of the High Court of West Pakistan, Lahore, in Criminal Appeal No.' 82 of 1968. By this judgment, the learned Judges of the High Court set aside the conviction of the respondents under section, 302/34, P. P. C., and convicted them under section 304, Part Il read with section 34, P. P. C. Wand sentenced them to three years' rigorous imprisonment each.
2. Respondents Saddar Din and Ramzan alias Jano, were convicted under. Section 302/34, P.. P. C.'for the murder of Khurshid, a son of the appellant by the learned Additional Sessions Judge, Multan, who sentenced Saddar Din to death and Rdmzan to transportation for life. As stated above, on appeal, a Division Bench of the High Court of West Pakistan, Lahore, altered their conviction to section 304, Part II read with section 34, P, P. C. And sentenced them ; to three years' rigorous imprisonment.
3. The prosecution case is that a month before the occurrence the deceased was in the service of Aziz and-his brother Abdul Hamid. They had a dispute with the respondents over the land. During this dispute the deceased had abused the respondents by siding with his masters. They convened a Panchayat and, asked Abdul Azix and Abdul Hamid to either terminate the services of the deceased or ask him to leave the village as he .Had "abused them. It appears that Abdul Hamid decided to terminate the services of the deceased and the matter ended there. The respondents are Rajput. They were nursing a grievance against the deceased. They, therefore, attacked the deceased with sticks at about 7-00 a.m. On the 22nd April 1966, while he was going to bring fodder from the field 'for his horse. Saddayr Din gave a stick blow on the head of the deceased who fell down. He also-- gave a blow on the chest of the deceased. Ramzan alias Jano respondent gave 3/4 stick blows on the legs of the- deceased. The occurrence was witnessed by Sharif, father of the deceased, Abdul Hamid, Ramzan Maohhi and Mst. Umar-un-Nisa, mother of, the deceased. The deceased was removed `on a cot to the hospital at Kabirwala where he expired.
4. Leave was granted in this case to consider the question whether on the facts found by the High Court, there could be no mistake about the intention of the respondents which was to kill the deceased and that the-High Court has taken an erroneous view in holding that the offence of the respondents fell under section 304, Part II, P. P. C.
5. Mr. A. S. Salram learned counsel for the appellant contended that it was case "of concerted attack on the deceased by the respondents- who were armed with lathis one of which was, wrapped with wire at the lower end. According to the learned counsel the assault was made to avenge the insult at the deceased as he had abused the respondents sometime before the occurrence 'in dispute over the land between his employers and the respondents. The learned counsel also referred us to the median evidence which showed that in the opinion of the doctor the death was due to shock and hemorrhage as a result of injuries Nos. 1 and 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were simple except injuries Nos. 1 and 6 which, were dangerous to life. All the injuries were caused by blunt weapon.
6. So far as the guilt of the accused is concerned that is sufficiently proved by the evidence of Sharif P.
7. W. 3, Ramzan Machhi P. W. 4, and Abdul Hami4 P. W.
5. We agree with the observation of the High Court that AIst. Umar-un-Nisa P. W. 6 was not present on tie scene of occurrence because she admitted before the committing Magistrate that her husband came home running and 'told her that their son had been killed and that she reached the spot after the respondents had run away.
8. There is' ample evidence on the record to show that on the fateful day the deceased was asked by-his father to go and bring fodder for the horse. On his way the deceased was met by the respondents: As' he turned the corner, Saddar Din gave him a stick blow on the head of the deceased. Ramzan alias Jano respondent inflicted 3/4 blows on the legs of the deceased after he had fallen. It is, therefore, quite clear that the respondents were responsible for the death of the deceased.
9. As regards the offence committed by the respondents is concerned, Mr. A. S. Salam, learned counsel for the appellant, contended that the respondents had the intention to kill the deceased and they should have been convicted under section 302 read with section 34, P. P. C. In our opinion, the learned Judges of the High Court have rightly convicted the respondents under section 304, Part II, P. P. C'. The respondents used ordinary sticks. They inflicted only one head injury. The other injuries are on the legs of the -deceased. It is, therefore, quite clear that the respondents had no intention to kill the deceased. The medical evidence shows that the heart of the deceased was enlarged. Its walls were thinned out and a rupture. -- ' x 1/8' at the apex of the heart was present.
10. This leads to the irresistible inference that the heart of the deceased was damaged and he died on account of the rupture.' It is true that as a result of head injury there was blood under the scalp over the left side of the head. Blood was also present-over the membrane of the brain over the left side.
11. There, was also blood at the base of the brain: But there wars no fracture of the skull bone or of the ribs. The motive in the case was not sufficiently strong to cause the death of the deceased. The observation of the High Court that the respondents, used ordinary lathis against the victim and avoided to give blow on the vital part except the head injury and it was unsafe to maintain their conviction under section 302/34, P. P. C. As they cannot be said to have intended to cause death appears to us to be a sound view. We are also or the view that when the respondents attacked the deceased with sticks, they could only be fastened with the knowledge that death would be the likely result. In these circumstances, we are satisfi9d that the conviction of the respondents under section 304, Part II read with section 34, P. P. C. Is proper and no exception can be taken to it.
12. M. A. S. Salam then contended that the sentence of three years' rigothus imprisonment is grossly inadequate and the sentence should be enhanced. Mr. Jamil Hussain Rizvi, learned counsel for the respondents on the other hand contended that the respondents should have been convicted under section 325, P. P. C. He further contended that the sentence was adequate. `The learned counsel for the appellant was unable to satisfy us that the sentence of three years is grossly inadequate. The decided cases show that in cases arising under section 304, Part II, P. . P. C. The.
13. Sentence of three years has been awarded by the Courts: It, however, depends on the facts of each case. We are satisfied that the High Court has awarded adequate sentence and the discretion exercised by if calls for no interference.
14. It was, however, brought to our notice by the learned counsel for the State that the Courts below failed to take notice of section 544-A of the Criminal Procedure Code which has been added by the West Pakistan Assembly. Under this provision of law, where any peon is convicted .Of an offence involving death, hurt or injury to, loss, destruction or theft of property, the Court while sentencing the accused shall, unless for reasons to be recorded, it 9therwise directs, award compensation to the heirs of the person filled, the person injured or the person whose property has been injured, lost or destroyed, as the case may be. The amount of compensation awarded by the Court under this section shall be regarded as a sentence pf fine. It is, therefore, quite clear that this is a mandatory provision of law and the respondents should have been sentenced to fine under it.. We would, there--fore, rectify this omission and sentence the respondents to a fine of Rs. 500 each under the above provision of law. This is in addition to the sentence of three years under section''304, Part II.
15. The fine will be paid within a week. In default, the respondents shall undergo rigorous imprisonment for three months each. The fine when realised will be paid as compensation to the heirs of the deceased. ,