The present appeal is directed against the judgment dated 30-6-1985, whereby Yar Muhammad Nizami, Additional Sessions Judge, Sheikhupura had convicted the appellant under section 304, Part II, P.P.C. And sentenced him to 10 years' R.I. And a fine of Rs.5,000 or in default thereof to further 2 years' R.I. With the direction that half of the fine, if realised, to be paid to the heirs of the deceased as compensation, and also had extended the benefit of section 382-B, Cr.P.C. To the appellant.
2. The appellant was sent up for trial under section 302, P.P.C. In a case registered vide F.I.R. No.130 dated 17-4-1984.
3. The prosecution case as stated by Ashiq Masih complainant, who is brother of the deceased, is that one month prior to the occurrence, Billa Masih deceased took bicycle from Zafar Masih accused who is his nephew for a total price of Rs.300 out of which Rs.290 were paid by him to the accused and only Rs.10 were left. On the day of occurrence, i.e. 12-4-1984 at about 10/11 a.m. The deceased alongwith the complainant, Younas and Sohan Masih was sitting underneath a tree opposite to the house when the accused armed with an iron pipe came there and demanded the immediate payment of his 10 rupees from the deceased who replied him that at that moment he had no money and he would pay later on upon which the accused got angry and inflicted iron pipe blow on the head of the deceased who fell down and after a few days expired in the hospital.
4. The prosecution produced as many as 11 P.Ws. And the prosecution had closed the case by giving up the remaining P.Ws. As unnecessary.
5. P.W.1 is Ashiq Masih complainant, his version of the prosecution case is as stated above. P.W.2 is Sohan Masih who stated that at about 10/11 a.m. On the day of occurrence, he alongwith Ashiq Masih, Younas P.Ws. And Billa deceased was sitting underneath a tree when the accused came and demanded Rs.10 which he had to take from the deceased on account of sale of bicycle.
Alteration about the return of money took place between the accused and the deceased and the accused went and came back armed with iron pipe and immediately on his arrival inflicted iron pipe blow on the head of the deceased who fell down on the ground. The deceased was then brought to General Hospital, Lahore and wits admitted there but ultimately expired there after four days. P.W.3 is Faqir Ullah Head Constable who stated that on 17-4-1984 on the receipt of Fard Bian Exh.P.A. He recorded the formal F.I.R. Exh.PA./1. P.W.4 Rab Nawaz Draftsman who on 29-4-1984 at the request of the police visited the spot of occurrence and prepared the site plans Exh. P.B. And Exh.P.B./1 in the scale of 16 feet to an inch. P.W.5 is Inayat Masih who identified the dead body of the deceased at the time of post---mortem examination. P.W.6 is Majah who also identified the dead body of the deceased at the time of post-mortem examination. P.W.7 is Muhammad Sadiq F.C.
Who stated that on 27-4-1984 he alongwith Maqbool and Yaqoob A.S.I. Was present at More Khunda when at about 3-00 p.m. Zafar Masih accused came alongwith is father Sohan Masih and produced iron pipe P.1 which was about 4 feet long and 1 inch broad, it was taken into possession by Yaqoob A.S.I. Vide memo. Exh. P.C. Which was attested by him. P.W.8 Dr. Farooq Aslam on 18-4- 1984 conducted post-mortem on the dead body of Billa deceased and found the following injury:- Contused wound in a depressed way 3-1/2 c.m. x 1 c.m. x bone deep on frontal bone of the skull at central line.
On dissection brain matter was coming out from that wound alongwith fracture of skull bone. The lungs were congested, heart was empty. The stomach was empty, small intestines containing semi-digested food. Large intestine containing fascal matter. The liver spleen and kidneys were pale. The urinary bladder was empty.
6. The accused/appellant was examined under section 342, Cr.P.C. And he took up the plea which in his own words reads as follows:-- "My bicycle was borrowed by Younas P.W. And he broke it. I went to him to tell him about the damage, he did to my cycle and demanded compensation from him upon which there was altercation between me and Younas P.W. Which ultimately developed into abuses and grappling with each other. In our grapping the deceased also intervened as he was the father of Younas P.W., he also grappled with me. I do not know who pushed him and his head in that pushing struck against the water pump and sustained injury and fell down. I caused no injury to him."
7. The learned counsel for the appellant and the learned counsel for the State have been heard at length, and the record of the case perused with their assistance.
8. The learned counsel for the appellant submitted that in the instant case, the motive was found to be false, the alleged recovery was not relied upon and even the testimony of the eye-witnesses namely, Ashiq Masih P.W.1 and Sohan Masih P.W.2, was not believed in its entirety as it was held by the learned trial Court that the said eye-witnesses had made dishonest improvements by trying to bring in the element of premeditation by stating that after the initial altercation with the deceased, the accused/appellant had fetched the crime weapon, an iron pipe, from his house and thereafter inflicted the fatal injury on the deceased Billa Masih, therefore, argued that the case of the appellant was one of acquittal, as the prosecution had failed to prove its case beyond reasonable doubt.
9. Further submitted that even if the entire case of the prosecution was placed reliance upon, the offence as charged, at best, falls under the provisions of section 325, P.P.C. In this respect, pointed out, that the learned trial Court had come to the conclusion that there was no premeditation on the part of the appellant, and that the occurrence had taken place on the spur of the moment without any previous grudge between the deceased and the accused/appellant, and that only one injury was suffered by the deceased, and that he had not made even a second futile attempt on the deceased. In this respect sought strength from Muhammad Haroon Rashid and 2 others v. The State 1975 P Cr. L J 264, wherein the learned Division Bench had partly allowed the appeal and converted the conviction and sentence of the accused charged under section 302, P.P.C., from life imprisonment to five years' R.I. And had set aside the fine imposed by observing that as the deceased had suffered only one injury with an iron pipe and as the occurrence was a sudden affair without any premeditation.
10. However, the case relied upon is distinguishable on facts and circumstances of the present case, as the deceased therein was not the one with whom the accused had an altercation and heated arguments that had led to the occurrence but a person inadvertently hit.
11. In the alternative, the learned counsel for the appellant submitted that the appellant had been arrested on 27-4-1984 and was released on his sentence being suspended by this Court vide order dated 6-7-1988 after having suffered imprisonment for 4 years and over two months and as he had been awarded the benefit of the provisions of section 382-B, Cr.P.C., therefore, under the circumstances of the case it shall meet with the ends of justice, if his sentence is reduced to one already undergone and the fine is set aside.
12. The learned counsel for the State, on the other hand, submitted that the appellant had already been dealt with leniently by the trial Court, and that, as he had wantonly caused the death of an elder of his own family, the deceased being his maternal-uncle, the appellant does not deserve any further leniency. Further submitted that the learned trial Court had already taken into consideration the infirmities in the prosecution case, while convicting the appellant under Part 11 of section 304, P.P.C.
13. Admittedly, the appellant, the nephew of the deceased, his maternal---uncle, had no previous enmity or grudge against the said deceased and the occurrence was result of a sudden flare up between the two, and as the appellant had not repeated the blow or even attempted to repeat the blow, and as the appellant has already suffered imprisonment of over four years and two months, and as he had been extended the benefit of the provisions of section 382-B, Cr.P.C., therefore, it shall meet with the ends of justice if while maintaining his conviction under section 304, Part II, P.P.C.
His sentence is reduced to one already undergone by him and the fine is set aside.
14. Therefore, in view of what has been stated above, the present criminal appeal is hereby dismissed, but the sentence of the appellant is hereby reduced to one already undergone and the fine imposed on him is hereby set aside. The appellant is on bail hi bail bonds stand discharged.