' SARDAR MUHAMMAD DOGAR, J.--- Muhammad Bakhsh (32) was tried alongwith his brothers Muhammad Iqbal, Khuda Bakhsh and Ghulam Bilal and their father Allah Bakhsh by Additional Sessions Judge, Bhalwal, District Sargodha, for having murdered Rafaqat Hayat, on 22-8-1986 at Degarwela, near the garden of Hamid All Noon, adjacent to the house of the complainant, in village Sardarpur Noon, at a distance of 12 miles from Police Station Bhera.
' Vide judgment, dated 28-6-1990, he was convicted under section 302, P.P.C. And sentenced to death plus to pay a fine of Rs,20,000 in default whereof to undergo R.I. For three years. Half of the fine, on realization, was directed to be paid, as compensation, to the heirs of the deceased. '
' All his co-accused were acquitted vide the same judgment.
2. The reference made by the learned trial Judge for confirmation of death sentence and the appeal filed by the convict are being disposed of together.
3. F.I.R. Exh.P.C. Was recorded at the police station by Amanullah Khan, Inspector/S.H.O. (P.W.9) on 23-8-1986 at 8-30 a.m. On the statement of Muhammad Hayat (P.W.3).
' According to F.I.R., Rafaqat Hayat was going to the garden of Hamid All Noon for urination on the day of occurrence at Degarwela. The appellant, who was hiding there alongwith his acquitted brothers, got up and raised a Lalkara that they will teach him a lesson for having insulted their father which will be remembered by their whole family. Rafaqat Hayat started running back to his house raising noise which attracted the complainant, ... Abdul Hamid and Muhammad Siddiq P.Ws.
Muhammad Iqbal, Khuda Bakhsh and Ghulam Bilal caught Rafaqat Hayat after chasing him. In the meantime, Allah Bakhsh (acquitted accused), father of the appellant, came running from the side of the village Abadi armed with a Soti. He gave a Lalkara as to why Rafaqat Hayat was still alive, whereupon the appellant struck brick at the head of Rafaqat Hayat. After receiving injury, he fell down and lost consciousness. The accused, on seeing the P.Ws. Went away raising Lalkaras saying that they had avenged the insult.
' About motive for the occurrence, it is stated in the F.I.R. That a few days before the occurrence, she-buffalo of the complainant had trespassed into the garden of Hamid All Noon, whereupon Muhammad Iqbal and Ghulam Bilal, servants of Hamid All Noon, had beaten and abused Sikandar Hayat, son of the complainant. A day before the occurrence, Rafaqat Hayat had abused and given fist blows to Allah Bakhsh to avenge the insult of his brother Sikandar Hayat. It is alleged in the F.I.R.
That the accused in order to avenge the insult of Allah Bakhsh, had launched murderous assault on Rafaqat Hayat.
' Rafaqat Hayat was admitted in Civil Hospital Sardarpur Noon. As his condition was precarious, the complainant remained with him and did not proceed to lodge the report. He proceeded to lodge the report on the expiry of his son, on the following day in the morning.
4. Amanullah Khan, Inspector/S.H.O., after registering the case, went to Civil Hospital Sardarpur Noon and despatched the dead body for post-mortem after preparing necessary papers.
Thereafter, he visited the spot and collected blood-stained earth from there vide memo. Exh.P.B.
Piece of brick P.1 lying at the spot was taken into possession by him vide memo. Exh.P.E.
' All the acquitted accused and the appellant were arrested by the S.H.O. On 24-8-1986.
' Lathi P.2 got recovered by Allah Bakhsh on 25-8-1986 was taken into possession by him vide memo. Exh.P.F.
' After completion of necessary investigation, challan was submitted to Court.
5. Statements of P.Ws. Were recorded at the trial.
' Dr. Abdul Hamid Beg, who had medically examined the deceased on 22-8-1986 at 5-15 p.m., appeared as P.W.7.
' He had noted a contused wound 75 c.m. x 1 c.m. x bone deep on the right side of front of head. He had also noted complaint of pain all over the body. The patient was under shock and not fully conscious.
' The injury, which was opined to have been caused by a blunt weapon within a duration of one hour, was kept under observation. Rafaqat Hayat died in the hospital at 6-15 a.m. On the next morning.
' During cross-examination, he denied the suggestion that Rafaqat Hayat had died due to defective treatment. He admitted that he had not noted in the medico-legal report that the condition of the patient was dangerous.
6. Dr. Hussain Ahmad Madni, who had performed autopsy on 23-8-1986 at 3-00 p.m., appeared as P.W.1.
' He had noted a contused wound (stitched) 7.5 c.m. x 1 c.m. x bone deep on the right side of front of head.
' On internal examination, corresponding part of the skull beneath the injury was found fractured and depressed; underneath brain-matter was severely damaged and there was dotted blood.
' Death was opined to have occurred due to shock and haemorrhage resulting from the said injury which was opined to have been caused by a blunt weapon. Time between injuries and death was opined to be 14 hours while the time between death and post-mortem was opined to be about nine hours.
7. Ocular account was deposed to by Muhammad Hayat (P.W3) and Abdul Hamid (P.W.4).
' Muhammad Hayat, after repeating the facts given by him in the F.I.R., stated that they and the accused party were Reeat (workers) of Hamid All Noon. He stated that the deceased was serving in the Police Department and had come on 15 days leave. He admitted that Bilal and Iqbal (acquitted accused) were deaf and dumb. He admitted that there were residential houses near the place of occurrence. According to him, the garden, where the occurrence had taken place, was at a distance of 5, 10 or 15 Karams from his house. He stated that the appellant had picked up the brick from a distance of one Karam from the spot and had then given a blow with that on the head of the deceased. He denied the suggestion that he had hurled the brick on the deceased. According to him, the deceased had become unconscious immediately after the receipt of the head injury. He denied the suggestion that he had lodged a complaint against the doctor and the dispenser for having given incorrect treatment. The suggesttion that the mother of the appellant had thrown brickbat and that had struck the deceased when she had seen him beating her son Bilal (acquitted accused), was denied by him.
8. Abdul Hamid (P.W.4) while corroborating the statement made by P.W3 about the actual occurrence, also stated that the deceased was his cousin. He also claimed to have witnessed the collection of blood-stained earth and piece of brick P.1 from the spot by the S.H.O. He also claimed to have witnessed the recovery of Soti P.2 at the instance of Allah Bakhsh (acquitted accused).
During cross-examination, he stated that when he had seen Rafaqat first time, he was at a distance of 10 Karams and the accused were chasing him closely. He gave out that the appellant had picked up the brick from a distance of one or two Karams from the place of occurrence. He stated that a heap of bricks was lying near the place of occurrence, which consisted of 100/150 bricks. He denied the suggestion that he had not witnessed the occurrence and that he had made a false statement.
9. Amanullah Khan, S.H.O., who had registered the case and submitted challan to Court after effecting arrest of the appellant and the other accused and after completion of necessary investigation, appeared as P.W.9, and deposed those facts. He also claimed to have collected blood-stained earth and blood-stained piece of brick from the spot. During cross-examination, he gave out that the place of occurrence was adjacent to the village Abadi. He gave out that the brick collected from the spot, from a distance of 1-1/2 Karams, was not a full brick but was a piece of brick. He stated that except the dispute over Ojara (wastage of crop), there was no other enmity between the parties.
' He denied the suggestion that he had falsely implicated all the accused in the case. Statements of the remaining witnesses are more or less of a formal nature.
' Positive reports Exhs.P.J. And P.K. From the offices of the Chemical Examiner and Exhs.P.L. And P.M.
From the office of the Serologist were also tendered in evidence.
10. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
' He took up the stance that he had been challaned in the case "due to enmity and party faction".
' He declined to make statement under section 340(2), Cr.P.C. And did not produce any evidence in defence. His father and brothers, who were tried alongwith him, also pleaded innocence.
11. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties.
12. The occurrence had taken place at a distance of few Karams from the house of the complainant. The presence of the complainant, at the spot, therefore, cannot be termed as unreasonable, by any means. When the deceased had left the house for urination, the complainant was sitting there. He had raised the alarm soon thereafter, so, the father i,e. The complainant reached in time to witness the occurrence.
' Since the occurrence had taken place in the street of village Abadi, the presence of Abdul Hamid P.W. Can also not be doubted.
' Although, one of the witnesses was father of the deceased while the other was his cousin, still their statements cannot be discarded as, they had no long-standing animosity with the appellant.
Actually, apart from the quarrel that had taken place amongst the two families on account of the damage done by the buffaloe of the complainant to the plants of the garden of Hamid All Noon, there was no other animosity or illwill between the accused and the complainant. In fact, the appellant and his co-accused had denied that incident also. Although the appellant pleaded that he was involved in the case due to enmity, yet neither he mentioned any incident of animosity nor suggestion was put to the complainant during trial in that regard.
' Abdul Hamid P.W. Had no enmity, whatsoever, with the appellant. He was not even suggested that he was inimical.
13. The statements of the eye-witnesses, that the deceased had been caused injury on the head by the appellant with a piece of brick finds support A from the evidence of recovery of piece of brick from the spot, which later was found stained with human blood.
' In the circumstances, no doubt is left, in our minds, that the prosecution has not been able to prove that it was the appellant who had inflicted injury on the head of the deceased with the piece of brick as a result of which he had died on the next morning.
14. As noted above, there was no long-standing animosity between the parties. Even, according to the prosecution, the appellant was not armed when the incident had taken place. Both the witnesses admitted during cross-examination that the piece of brick with which he had caused injury to the deceased was picked up by him from the spot. The said piece, according to the witnesses, was lying at a distance of one or two Karams. Mens rea for commission of murder, therefore, cannot be assigned to the appellant. This aspect is also borne out from the fact that heap of bricks was lying at the spot but the appellant had not taken advantage of picking up more pieces of bricks to cause further injuries. In fact, he had left the spot after having thrown a piece of brick, which had struck the deceased. He cannot, therefore, be held liable for having committed culpable homicide amounting to murder. He can, at the best, only be held liable to have committed culpable homicide not amounting to murder. His conviction and sentences under section 302, P.P.C. Are, therefore, set aside. He is instead convicted under section 304, Part I, P.P.C.
And sentenced to undergo R.I. For seven years plus to pay a fine of Rs,5,000; in default whereof to undergo R.I. For one year. Whole of the fine, on recovery, shall be paid, as compensation, to the heirs of the deceased.
' Benefit of section 382-B, Cr.P.C. Shall be extended. Sentence of death NOT confirmed.