SH. KHIZAR HAYAT, J.--- Gharib Alam son of Abdullah, caste Bhatti and Mst. Sughra Bibi widow of Abdullah, residents of Chak No.142/6-R, Tehsil Haroonabad, District Bahawalnagar, were tried by learned Additional Sessions Judge-I, Bahawalnagar on the charges under section 302/109, P.P.C.
For having abetted/committed the murder of Asghar Ali, a boy aged 12 years. Learned trial Court vide its judgment dated 27-9-1988 acquitted Mst. Sughra Bibi giving her benefit of doubt but convicted Gharib Alam and sentenced him to death and a fine of Rs.20,000 or in default of payment thereof to further undergo R.I. For 4 years under section 302, P.P.C. The convict has appealed and the learned trial Court has transmitted the proceedings under section 374, Cr.P.C. To this Court for confirming the death sentence. It may be noted that no appeal or revision has been filed against the acquittal of Mst. Sughra Bibi.
2. The prosecution case as disclosed by the complainant, Ibrahim (P.W.5), at the trial, was that on the day of occurrence viz. 4-8-1987 he was coming from Chak No.440/6-R and going to Chak No.142/6-R to see his sister and children. When he reached at Faqirwali he could not find any conveyance and therefore he started on foot towards his destination. On the way Muhammad Ashraf (P.W.6), Ghulam Sarwar (P.W.7), and Gulzar met him who also were going in the same direction. Gulzar offered him lift on his bicycle. At about 5-30 p.m. They reached at Moga No.9 of Canal 6-R and saw that Gharib Alam was giving physical beating to Asghar Ali deceased with his fist, kicks and knee just near the service road. The appellant seeing the witnesses approaching decamped from there. The witnesses went near Asghar Ali who breathed his last immediately. The cause of the attack was stated to be that Gharib Alam (applicant) used to quarrel with Asghar Ali (deceased) that he was responsible for getting divorce of his sister, Mst. Amina from Amanat Ali, brother of the appellant. Ibrahim (P.W.5) then left for the police station for making the report. On the way he met Taj Muhammad S.I. And lodged report Exh.P.A. With him at 6-30 p.m. On the basis of this complaint formal F.I.R. Exh.P.A./1 was drawn at the police station by Muhammad Ishfaq, A.S.I. (P.W.1).
3. Dr. Muhammad Ramzan, Medical Officer, Rural Health Centre, Faqirwali (P.W.8) conducted the post-mortem examination on the dead body of Asghar Ali (deceased) aged 12 years and found the following injuries on it:-- (1)Abrasions were present on both sides of the neck having a size of 2 c.m. x 1 c.m.; and (2)An abrasion was present on the back of the neck and the size was 3 c.m. x 1 c.m. Blood was coming from the nose.
On dissection, underlying muscles were echymosed. The hyoid bone was flattened and depressed.
The first cervical vertebra was dislocated while the remaining structures were pale and healthy. In the opinion of the doctor death was due to asphyxia and shock 0s a result of abovementioned injuries, which were sufficient to cause death in the ordinary course of nature. The injuries were caused by blunt weapon and were ante-mortem. Death occurred instantaneously on receipt of injuries and the post-mortem was carried out within 12/16 hours of death. Jam Taj Muhammad (P.W.9) investigated the case. He visited the spot and having prepared the inquest report of the deceased sent his dead body to the morgue for conducting the post-mortem examination under the police escort. He arrested both the accused on 7-9-1987 and after completing investigation submitted the challan to Court against them.
4. At the trial the prosecution examined as many as 9 witnesses. Ibrahim (P.W.5), Muhammad Ashraf (P.W.6) and Ghulam Sarwar (P.W.7) supported the prosecution version saying that they saw Asghar Ali (deceased) lying on the ground and the appellant sitting on his chest was giving fist blows to him, which resulted in his death. Nothing was said against Mst. Sughra.
5. The appellant Gharib Alam, when examined under section 342, Cr.P.C. Denied the allegations. He also appeared under section 340(2), Cr.P.C. In disproof of the allegations and stated on oath that he has been falsely involved alongwith his mother at the instance of Ch. Abdul Ghafoor, whom they did not support in the general elections. Learned trial Court discarding the defence version believed the prosecution case qua the appellant and therefore, acquitted Mst. Sughra but convicted and sentenced the appellant, as indicated above.
6. Learned counsel appearing on behalf of the appellant has not challenged the merits of the case but has argued that the evidence existing on the record do not constitute an offence under section 302, P.P.C. Because the appellant was neither armed with any deadly weapon nor did he cause any injury to the deceased on the vital part of his body indicating that he intended to kill the deceased.
Learned counsel for the State has however defended the impugned judgment.
7. We have carefully considered the contentions of the learned counsel and have also perused the record. There exists on record enormous reliable evidence, which proves beyond any shadow of doubt that the injuries found on the person of the deceased by the doctor were caused by the appellant. According to the medical evidence the deceased had died of asphyxia. No doubt there are a few scratches around the neck of the deceased but none of the P.Ws. Have stated that during the transaction the appellant had at all pressed his neck. Admittedly the appellant gave fist and kick blows to the deceased but they were also not aimed at any vital part. It might well be that while the deceased was being given fist blows the trachea got pressed as a result of the fist blow.
The appellant was not armed with deadly weapon; he did not cause any injury on the vital part of the body of the deceased, therefore, intention to kill is negatives and he cannot be burdened with knowledge that by giving fist blows the deceased was likely to be killed, therefore; we are of the view that no offence under section 302 or 304, P.P.C. Is made out. At the most he can be held responsible for voluntarily causing a grievous hurt to the deceased and consequently, we alter the conviction accordingly from section 302, P.P.C. To section 325, P.P.C. And sentence him to 7 (seven) years' R.I. And a fine of Rs.1,000 or in default of payment thereof to undergo further. R.I. For 3 months.
This appeal is partly allowed in the terms indicated above. The sentence of death is not confirmed