KHIZAR HAYAT, J. - Muhammad Akbar son of Amir Ahmad, case Arain, resident of Ward No.12, Kot Addu, has filed this appeal (Criminal Appeal No. 245 of 1984) against the judgment of Additional Sessions Judge, Muzaffargarh, dated 4-11-1984, convicting him under section 302, P.P.C. For the murder of Hafiz Muhammad Sharif and sentencing him to death and a fine of Rs.20,000 or in default of payment of- fine to undergo 4 years' rigorous imprisonment. The amount of fine, if realised, shall be paid to the legal heirs of the deceased as compensation: The trial Court has transmitted the proceedings of this case under section 374, Cr.P.C., for confirmation of the death sentence (Murder Reference No.5 of 1985). The murder reference as well as the appeal shall be disposed of by this single judgment.
2. The occcurrence took place on 3-9-1983 at 11-45 a.m. In a street in Kot Addu Town and report Exh.P.C. Was lodged by Hakim Fayyaz Ahmad (P.W.3) at Adda Larian Kot Addu, on the following day at 8 a.m., with A.S.I. Muhammad Nawaz (P.W.10) on the basis of which formal F.I.R. Exh.P.C./1 was recorded by H.C. Abdul Ghafoor (P.W.9). .
3. Motive for the offence was stated to be that an hour before the main occurrence the appellant was found selling narcotics by Ashfaq Ahmad (P.W.5), a nephew of the deceased. At this the appellant and his father started grappling with him. Meanwhile Hafz Muhammad Sharif (deceased) arrived who also rebuked the appellant and asked him to refrain from malpractices.
Muhammad Iqbal and other neighbours having arrived disengaged the parties. The appellant while going away addressed Hafiz Muhammad-Sharif (deceased) that he would take revenge of his insult from him.
4. About an hour after the said incident (at 11-45 a.m.) the deceased was going to the Bazar for purchasing milk. When he crossed the iron gate situate in Ward No.11 of Kot Addu Town, Muhammad Akbar (appellant) who had concealed himself behind the iron gate abruptly came out with a brick in his hand and struck with it on the backside of the head of the deceased as a result of which he fell on the ground with his face downward and consequently he received injuries on his nose and forehead and became unconscious. He was removed to a local hospital by the witnesses where Dr. Saeed Ullah (P.W.6) examined him medically at 12-30 p.m. And noted one abrasion on the right side of the forehead, one abrasion on the bridge of the nose near the root and a lacerated wound 5-1/2 c.m. x 1-1/2 c.m. x scalp deep on the back of right side of-head. At the time of examination the deceased was conscious though he had history of unconsciousness and vomitting. As the condition of the patient became serious, therefore; the doctor referred him for X- Ray and treatment to Nishtar Hospital, Multan. The deceased was operated upon in Nishtar Hospital, the same night, but he could not survive and expired on 4-9-1983 vide death certificate Exh.P.H. Issued by Dr. Shafqat Ullah (P.W.11). Hakim Fayyaz Ahmad (P.W.3) leaving the dead body in Nishtar Hospital in the care of his relatives went to the police for reporting the matter. Kid in the way he made report Exh.P.C. To A.S.I. Muhammad Nawaz (P.W.10) at bus-stand Kot Addu who got a formal F.I.R. Registered at Police Station Kot Addu, under section 302, P.P.C and investigated it.
5. A.S.I. Muhammad Nawaz (P.W.10) having got the case registered went to Nishtar Hospital, Multan.
Reaching there he came across A.S.I. Imam Bakhsh of Police Station Multan Cantt, who had prepared injury statement (Exh.P.K.) and inquest report (Exh.P.1.) of the deceased. The dead body was also despatched to the mortuary for post-mortem examination. He collected aforementioned papers from the A.S.I. And visited the spot where the complainant produced medico-legal certificate which was secured under memo. Exh.P.E. And Pacca brick P.2 produced by the complainant was secured under memo. Exh.P.D. On 9-9-1983 he arrested the appellant and after completing investigation challaned him to Court.
6. Dr. Syed Zia-ud-Din Zaidi P W.7) performed post-mortem examination on the dead body of the deceased on 4-9-1983 and found the same injuries on the person of the deceased as noted by Dr. Saeed Ullah (P.W.6). Besides these injuries he found two incised wounds of operation on the head.
On dissection the doctor found congestion on the right back side of the head under the injury and there was clotted blood in the posterior craneal fossa. According to the doctor the injuries were ante-mortem and the head injury was sufficient in ordinary course of nature to cause death of the deceased. Probable time between injuries and death was about 18 hours and between death and post-mortem examination about 12 hours.
7. At the trial prosecution examined 13 witnesses in support of its case. Of them, Hakim Fayyaz Ahmad (P.W.3) brother of the deceased and Jamil Ahmad (P.W.4) a Mohalladar, have furnished ocular account while Ashfaq Ahmad (P.W.5) nephew of the deceased, gave out the motive part of the story. Dr. Saeed Ullah (P.W.6) proved the injuries of the deceased while Dr. Syed Zia-ud-Din Zaidi (P.W.7) deposed that the deceased had died of violence.
8. The appellant when examined under section 342, Cr.P.C., denied the allegations. He neither made a statement under section 340(2), Cr.P.C. In disproof of the allegations nor did he produce oral or documentary evidence in defence.
9. Learned trial Court on consideration of the material on record believing the prosecution - evidence convicted and sentenced the appellant as indicated above.
10. We have heard learned counsel for the appellant as well as for the State and also perused the record.
11. Appellant's learned counsel has not seriously challenged presence of the eye-witnesses at the scene. He has urged that they being related to the deceased seem to have divided the main occurrence into two parts making the first incident to be the motive for the subsequent and main occurrence. According to him, it happened all of a sudden and when parties were exchanging hot words the appellant in the heat of passions threw a brick-bat on the deceased which unfortunately hit him on the head resulting in his death. According to the learned counsel, the appellant is guilty of committing an offence under section 325, P.P.C. And not 302, P.P.C. Learned Assistant Advocate- General, however, defended the impugned judgment.
12. Admittedly, there did not exist any previous enmity between the parties. Ashfaq Ahmad (P.W.5) who narrated about the motive stated that on the eventful I day he saw the appellant selling some narcotics to a person. He objected to it and I asked the appellant that he should do this business somewhere else but not in his Mohalla. At this the father of the appellant came there and started grappling with' him. Meanwhile his uncle came there and rescued him. Nobody else was present there except four of them. He also admitted that some hot words were exchanged B at that time by Muhammad Akbar (appellant) and the deceased. The prosecution case that after this incident the appellant armed with a brick stood behind the iron gate waiting for the arrival of the deceased that when he would go to the Bazaar for purchasing milk, he would attack him with a brick does not appeal to reason. If the appellant had hid himself for attacking the deceased an hour after the earlier incident then he would have come prepared with some weapon and not a brick-bat. So keeping all these facts in view we find that the occurrence did not take place in two parts as alleged by the prosecution, rather it was one transaction, i.e., when the appellant was seen selling narcotics Ashfaq Ahmad P.W. Took exception to it whereupon a quarrel ensued. Hearing of the quarrel father of the appellant came and joined him while the deceased j6ined Ashfaq Ahmad P.W.
And during the quarrel the appellant having picked a brick-bat threw it on the deceased which hit on the back side of his head ultimately resulting in his death. He did not repeat the blow either.
Therefore, the element of premeditation and intention to kill the deceased on the part of the appellant is absent. The medical evidence shows that there was depressed fracture under the, head injury suffered by the deceased, which means that the brick-bat was thrown with sufficient force. So the appellant while throwing the brick-bat aiming at the head, a vital part, of the deceased, certainly knew that by doing so he was likely to cause death of the deceased.. We, therefore, hold the appellant guilty of committing culpable homicide not amounting to murder punishable under section 304, Part II, P.P.C. And sentence him to 7 years' rigorous imprisonment and a fine of Rs.20,000 or in default to undergo 2 years' rigorous imprisonment. The fine, if realised, shall be paid to the legal heirs of the deceased as compensation. The appeal is partly accepted in the terms indicated above. The death sentence is NOT confirmed. The reference is rejected.