ASLAM RIAZ HUSSAIN, J.--Inayat A.I complainant has filed this petition against the judgment of the Lahore High Court dated 14-5-1980 whereby it (the High Court) had acquitted the murderers of his father of the charge under section 302, P.P.C. By altering their conviction to one under section 304-II P.P.C. And reducing their sentences, from imprisonment for life, to the period already undergone by them.
2. Allah Ditta and Fiaz respondents were accused of the murder of Fazal Karim and making murderous assault on Inayat A.I.
The motive for the offence as alleged by the prosecution is that the deceased was a depot holder of sugar. Four or five days before the occurrence, Allah Ditta accused demanded one maund of sugar from the deceased but the deceased refused. He then threatened the deceased with dire consequences. Moreover, the deceased admonished the accused for sitting in the village chowk from where the lady teachers used to pass.
3. The prosecution version as given in the F.I.R. Is that on 8-10-1976, Fazal Karim deceased was summoned by Haji Mumtaz Ahmad (P.W.12) to his house in connection with some private work. At about 11-30 a.m. Fazal Karim deceased was coming back to his house. His son Inayat A.I (present petitioner P.W.11) and his father Qamar Din were walking at some distance behind him. When Fazal Karim reached in from of the house of Ch. Nazir Ahmad (father of the respondents), Allah Ditta (respondent No.1) came out from the house and started giving 'danda' blows on the head of Fazal Karim (deceased), who fell down on receiving injuries. Inayat A.I petitioner (son of the deceased) and his uncle Qamar Din P.W. Raised alarm as a result of which Haji Mumtaz Ahmad P.W.12 was attracted to the spot. Allah Ditta accused (respondent No.1) then dragged Fazal Karim deceased inside his house, bolted it from inside, and again inflicted injuries on him. The three aforesaid P.Ws.
(the petitioner, his uncle Qamar Din and Haji Mumtaz Ahmad) stood outside the door raising hue and cry. Allah Ditta accused (respondent No.1), however, continued inflicting injuries on the deceased Fazal Karim (father of the petitioner). Allah Ditta accused (respondent No.1) thereafter opened the door and fled away from the spot. His son Inayat A.I alongwith some other P.Ws. Carried him (the deceased) from the house of the respondents to the Civil Hospital, Bhalwal where he was medically examined.
After taking the medico-legal report from the doctor Inayat A.I P.W. Petitioner went to the police station and lodged the report Ex.P.J. Fazal Karim (deceased) was then sent for treatment to Civil Hospital, Sargodha where Zulfiqar A.I, A.S.I., after ascertaining from the doctor about his fitness to make the statement recorded his statement which was later used as Dying Declaration. Later on Fazal Karim died in the Civil Hospital, Sargodha and after preparing the injury statement and inquest report his dead body was sent for postmortem examination. An offence under section 302 P.P.C. Was added to the F . I . R .
4. The doctor conducting the postmortem examination found the following injuries on the person of the dead body of the deceased:
(1) A contused healing wound 1 -- " x -- " on the right side of the from of the skull close to the midline.
(2) A contused healing wound 1" x-- " behind the injury No.1.
(3) A contused wound 3/4" x-- " on the back and outerside of right buttock.
(4) Healing contusion wound mark 3" x 2" on the middle 1/3rd of right arm.
(5) Healing contusion mark 3" x 1 -- " on the lower 1/3rd of multiple abrasions 3" x 2" on the middle 1/3rd of right fore-arm.
(6) Multiple abrasions 3" x 2" on the middle 1/3rd of right fore-arm.
(7) A healing contusion-- " x-- " below the left knee joint.
According to the doctor the head injury was sufficient to cause death in the ordinary course of nature.
Injuries No.1 and 2 on the head were grievous. There were fractures of the right perital bone, after X- Ray. Injuries Nos.4 and 6 were also grievous and had caused the fracture of the right humorous and ulna bones. Injuries Nos. 1'and 2 were, found to be individually sufficient to cause death in the ordinary course of nature.
During the investigation a blood-stained danda P.1 was recovered from the house of the accused and bloodstained earth was recovered from inside the house of the respondent-accused which was taken into possession.
5. At the trial prosecution produced Inayat A.I P.W.11 and Haji Mumtaz Ahmad P.W.12, out of whom Haji Mumtaz is an independent person. It also relied on the recovery of the Danda, evidence of motive and the medical evidence.
"My house in Chak No.8/NB was constructed by Aslam and Allah Rakha, P.Ws. About one month prior to the occurrence, who were son and nephew of the deceased, respectively. This work was done through the deceased and under his supervision. The plaster of the walls started falling down soon. On the day of occurrence, at about 9/10 a.m. I came out of my house to go to my fields. The deceased happened to pass that way. I made a complaint and asked him to see himself the improper construction. He came to my house and saw the position, but said that he was not going to do repairs without extra charges. My old mother was also present nearby. She said to him that he should do the repairs as he was quite hasty to receive the payment. The deceased was a proud man being Chairman of Peoples Party of the village and having earned much from the sugar depot. He gave filthy abuses to my mother and said her bitch why you have started barking. My young sister was also there. I could not control myself and under this grave and sudden provocation, lost self-control and in heat of passion I picked up a small 'soti' which was lying there and gave 2/3 blows to the deceased. Gul Nawaz Lambardar is inimical towards me. He and Peoples Party Office Bearers influenced the police and concocted the prosecution story. At one stage, my only brother Fayyaz Ahmad co-accused was also roped falsely."
6. The trial Court acquitted Fiaz Ahmad accused-respondent but convicted Allah Ditta under section 302 P.P.C. And sentenced him to imprisonment for life.
He i.e. Allah Ditta filed an appeal before the High Court against his conviction and sentence while Inayat A.I complainant filed a Criminal Revision against the acquittal of Faiz and for the enhancement of the sentence awarded to Allah Ditta.
The High Court maintained the acquittal of Fiaz Ahmad and altered the conviction of Allah Ditta respondent from 302, P.P.C. To one under section 304-II and reduced his sentence to that already undergone. It also dismissed the revision filed by the complainant.
Inayat A.I petitioner, son of the deceased has now challenged the judgment of the High Court, seeking leave to appeal. Whereas Allah Ditta, who apparently feels satisfied, has not challenged the judgment of the High Court.
7. It is urged before us that even if no one else had seen the occurrence because the accused had dragged Fazal Karim inside their own house before giving him a merciless beating at least he (i.e. The deceased) knew as to who had inficted the injuries on his person and there is no reason to disbelieve the dying declaration made by him while he was still alive. The counsel, therefore, urged that the dying declaration of Fazal Karim coupled with the recovery of the bloodstained 'danda' from the house of the accused; the medical evidence and the evidence of motive were sufficient for establishing an offence under section 302, P.P.C., against the accused respondents.
It was also argued that in view of the manner in which the occurrence took place and the number and nature of injuries inflicteti by the accused on Fazal Karim deceased, the offence committed by the accused in this case is fully covered by the definition murder as given in section 300, P.P.C. And could, by no stretch of imagination be said to fall under section 304 II, P.P.C. .
Learned counsel submitted in the alternative that even if it be assumed (for the sake of argument) that the offence committed by the accused petitioner falls under section 304-II, yet keeping in view the manner in which the offence was committed as also the number and nature of injuries inflicted by them on the deceased, the case called for much higher sentence and letting off the accused respondent by awarding him 'sentence already undergone by him' has resulted in grave miscarriage of justice.
8. We have carefully considered the above noted contentions and feel that the matter needs further consideration. Leave is, therefore, granted in this case against Allah Ditta respondent.
Petition qua Fiaz Ahmad is, however, dismissed.
Warrants of arrest shall be issued against Allah Ditta and he shall be taken into custody. The appeal shall be fixed at an early date so that no further delay is caused in the final disposal of the matter.
Before parting with the case we may mention that if the Bench hearing the appeal comes to the conclusion that it is a fit case for enhancement of sentence, a question would arise as to whether it would be proper to send Allah Ditta respondent back to jail after the lapse of 7 years. The relevant facts in this connection would be that:- the occurrence in this case took place on8-10-1976 the accused /petitioner was arrested on10-10-1976 the trial Court convicted him on14-11-1978 the High Court decided his appeal and reduced his sentence to that already undergone, whereupon he was released on: 14-5-1980; and Inayat A.I filed petition for enhancement of sentence which came up for hearing on 20-5-1987.
On the one side it would be argued that he had remained as an under trial prisoner for about 2 years and has served his sentence for about 11 years and having been released as far back as May 1980, he should not, now, be sent back to jail.
On the other hand it could be urged that in the circumstances of this particular case, where a man who dragged another person to his house and beat him mercilessly over a trivial issue, causing him as many as 8 serious injuries (described in paragraph No.3 above) and smashed his skull, he was not at all entitled to have been given such a concession as allowed to him by the High Court.
Again, if it is felt that although the High Court had erred in letting him off with short sentence already served by him but it is not proper to send him back to jail after so many years, then would it not be proper to enhance his sentence of fine under section 545 Cr.P.C. To an extent which could be termed as 'penal' (e.g. 40,000 to 50,000) and order it to be paid to the heirs of the deceased as compensation and to award him the maximum sentence permissible under the law, in default of payment of the said fine.