' Muhammad Bakhsh appellant was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Bhalwal for causing the murder of Khuda Bakhsh. The learned trial Judge vide his judgment, dated 1-6-1994 convicted him under section 316, P.P.C. And sentenced him to 14 years' R.I.
With Diyat of Rs,1,70,000 i,e, value of 30,630 grams of silver. The benefit of section 382-B, Cr.P.C. Was also given to him. The convict has appealed to this Court. The complainant has filed Criminal Revisional No,284 of 1994 for enhancement of sentence. I proposed to dispose of both the matters by this judgment.
2. The prosecution case as contained in the F.I.R. Exh.P.F. Lodged by Muhammad Azam P.W.6 is that Khuda Bakhsh deceased was his father. On 19-1-1993, the election regarding the post of Chairman and Members of Ushr and Zakat Committee of Ward No,3, Village Lillhani was going to be held. In this connection, he alongwith his deceased father, Mozammal Din P.W.7 and Muhammad Sohaib (given up P.W.) were present in front of Lokari Mosque, Hafizabad. The officials of the department had not yet arrived at the spot. The appellant alongwith Fayyaz, Rauf and Allah Bakhsh co-accused (not challaned to Court) was present in connection with the Election. At about 11-30 a.m. The appellant and the deceased exchanged hot words. The appellant raised Lalkara that the deceased should not be left alive. Muhammad Bakhsh appellant gave a slap on the face of the deceased and in the process of grappling Khuda Bakhsh fell down and received an injury on the back of his head. Thereafter, Fayyaz caught hold the deceased from his arm, while Allah Bakhsh held his legs.
The appellant gave fist blows on the chest and abdomen of Khuda Bakhsh deceased, who became unconscious. Besides him, the occurrence was witnessed by Mozammal Din P.W.7 and Muhammad Sohaib (given up P.W.). They requested appellant and his companions not to give more beating to the deceased, whereupon they left from there raising Lalkara and giving abuses. Khuda Bakhsh died at the spot.
3. The motive for the occurrence was that the appellant was Chairman, Ushar and Zakat Committee previously and the deceased had lodged a report against him under section 409, P.P.C.
On the allegation of misappropriation of Zakat funds. Muhammad Bakhsh appellant was removed from the said office. Khuda Bakhsh deceased was opposing the appellant even in this election. Due to the aforesaid grudge, the appellant alongwith his companions committed the murder of the deceased.
' On 19-1-1993 Muhammad Akram, S.I. P.W.8 recorded the F.I.R. Exh.P.E. On the statement of Muhammad Azam complainant P.W.6, went to the spot and inspected the place of occurrence. He prepared injury statement Exh.P.G. And inquest report Exh.P.H. He escorted the dead body to the mortuary through Manzoor Ellahi F.C. P.W.3. He took into possession shoes P5/1-2 of the deceased vide memo. Exh.P.F. And prepared site plan Exh.P. I. On 20-1-1993 Manzoor Elahi P.W.3 produced before him the last worn clothes of the deceased vide memo. Exh.P.D. He then got prepared site plans Exhs.P.A. And P.A./1 of the place of occurrence from Muhammad Saleem, Draftsman P.W.1. The statements of P.Ws. Were recorded under section 161, Cr.P.C. And the case property were handed over to Muhammad Mumtaz P.W.5. He searched the appellant and on 5-2-1993 the appellant was arrested. After completion of necessary formalities, the challan was submitted in the Court for trial.
4. Dr. Akhtar Mehmood P.W.2 conducted the post-mortem examination on the dead body of Khuda Bakhsh on 20-1-1993 at 9-00 a.m. And found the following injury thereon:-- "(1) Lacerated wound 1 c.m. x 1/2 c.m. x skin deep on back and left side of head. No mark of violence was seen on other parts of the body: ' In the opinion of the doctor, the death was caused due to cardiac failure, most probable cause of which was myocardias infarction but possibility of vagal inhibition cannot be ruled out. Therefore, the heart as a whole was sent to Bacteriologist Expert opinion. Probable time that elapsed between injury and death could not be assessed and that between death and postmortem was between 24 hours.
5. The appellant when examined under section 342, Cr.P.C. Repudiated the prosecution allegations, professed innocence and stated that he had been involved due to enmity. No evidence was produced in defence.
6. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
7. The learned counsel for the appellant raised two-fold arguments in support of this appeal; one based upon merits of the case and the other is legal issue.
' With respect to the merits of the case, learned counsel submitted that there are material discrepancies between the statements of Muhammad Azam (P.W.6) and Muzammal Din (P.W.7), - die alleged eye-witnesses and in the presence of these discrepancies the presence of these witnesses at the scene is highly doubtful. According to the learned counsel Muhammad Azam P.W.6 deposed:-- "Muhammad Bakhsh accused gave a slap on the face of the deceased and in the process of grappling Khuda Bakhsh fell down and received injury on the back of his head. Thereafter, Fayyaz caught hold of Khuda Bakhsh from his arms while Allah Bakhsh held his legs. Muhammad Bakhsh accused gave fist blows on the chest and abdomen of Khuda Bakhsh."
' On the contrary Muzammal Din P.W.7 deposed that firstly Khuda Bakhsh deceased and Muhammad Bakhsh appellant grappled with each other and the appellant gave a slap on the face of Khuda Bakhsh. Fayyaz caught hold of the deceased by his arms while Allah Bakhsh held him from his legs. Rauf and Muhammad Bakhsh gave him fist blows on his chest and abdomen. It is submitted that Muhammad Azam P.W.6 did not mention the name of Abdul Rauf, whereas Muzamnfil Din P.W.7 mentioned the name of Abdul Rauf as one of the accused. Learned counsel further submitted that except the appellant the other accused were found innocent during the investigation, hence no sanctity is attached to this evidence.
' With respect to the legal issue, learned counsel submitted that even if the facts narrated in the evidence of the eye-witnesses are believed to be correct, still in the presence of the injury which is a lacerated wound, 1 c.m. x 1/2 c.m. Skin deep, on the back and left side of head, no case under section 316, P.P.C. Is made out, as neither death was caused due to the aforesaid injury, nor the appellant had any intention to cause such bodily injury which could cause death. According to the learned counsel, the offence if any committed by the appellant would fall within the ambit of section 337-A(i), P.P.C., the maximum sentence for which is two years and also Daman.
9. The learned counsel for the State has supported the impugned judgment.
' The learned counsel for the complainant contended that conviction of the appellant under section 316, P.P.C. Is not sustainable in the eye of law and due to the change in law, the appellant is liable to be convicted under section 302, P.P.C., as he knew that the deceased was an old and sick man and he intentionally caused the abovementioned injury to him, which resulted into vagal inhibition, and was sufficient to cause death in the ordinary course of nature.
10. I have carefully gone through the record with the able assistance of the learned counsel for the parties and have also examined their respective submissions mentioned above.
' There is no background of enmity between the parties and the presence of the eye-witnesses cannot be disputed. In these circumstances, the case on factual plane is established. Injury No,1 could safely be attributed to the appellant. Now the question arises what offence the appellant actually committed in view of the opinion of Dr. Akhtar Mehmood P.W.2 that this injury being skin deep is not sufficient to cause death in the ordinary course of nature.
' Before embarking upon this legal issue, it would be advantageous to reproduce, in extenso, sections 300 and 315, P.P.C.
"300. Oatl-e-Amd.--- Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-e-Amd.
315 Oatl Shibh-e-Amd.--- Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-Amd."
' A bare reading of both the provisions, referred above, would demonstrate that the most essential ingredient of offences under sections 302 and 316, P.P.C. Is the intention to cause bodily injury which in the ordinary course of nature is likely to cause death or with the knowledge that his act is so imminently dangerous that it must in all probability cause death. The learned defence counsel further urged that in the present case in the presence of doctor's report that the injury sustained by the deceased was Shajjah-i-Khafifah and was not sufficient to cause death in the ordinary course of nature does not fulfil the requirements of section 300 or 315, P.P.C., hence no offence under section 316 or section 302, P.P.C. Is made out. Placed reliance on 1980 SCM R 214, PLD 1965 (W.P.) Lah.
378, AIR 1941 Mad. 569 and 1968 SCMR 637.
' On the other hand, learned counsel for the complainant contended that the deceased died due to neurogenic shock which is also known as vagal inhibition, which led to sudden stoppage of heart and respiration. He placed reliance on the following observations on Parikh's Textbook of Medical Jurisprudence and Toxicology, Sixth Edition, 1992:-- "The diagnosis of primary neurogenic shock at post-mortem examination is always inferential. It is arrived at from negative findings; the history should be typical, viz. a blow on the receptor area which may not have left a mark, instantaneous death, absence of fatal wounds, absence of poisoning; and no natural diseases."
' According to Dr. Akhtar Mehmood P.W.2 who conducted the post-mortem examination, most probable cause, of death in this case tires due to cardiac failure on account of myocardias infarction, which is also confirmed by the report Exh.P.C. Of Bacteriologist. In addition to that possibility of vagal inhibition cannot be ruled out.
11. It is in evidence that pre-existing disease of heart ailment of the deceased, which rendered the blow dangerous to life, due to the fall of the deceased, was not known to the appellant, as both the eye-witnesses categorically stated that the deceased had recovered from his heart ailment and was leading a normal and healthy life for the last 7/8 years. Therefore, the appellant did not expect i,e, intend, to inflict an injury likely to result in death nor did he know that death was a likely result of the violence. It is settled law that where there is no guilty intention or knowledge there can be no mens rea and in these cases the criminal responsibility of the accused would have been the same, and neither more nor less, if he had not died. It, therefore, follows that under the Penal Code no constructive but an actual intention is required.
12. Judging the case of the appellant in the light of the above principle, it is evident that the appellant cannot be convicted either under section 302 or under section 316, P.P.C., because the prosecution has failed to prove the requisite intention on the part of the appellant, which burden him with the responsibility under section 316, P.P.C. The injury caused by the appellant to the deceased fall within the ambit of section 337-A(i), P.P.C. And he can only be convicted thereunder. I would, therefore, set aside the conviction of the appellant under section 316, P.P.C. And alter the same to one under section 337-A(i), P.P.C. In the circumstances, the sentence of imprisonment already undergone by the appellant would meet the ends of justice and I . The appellant shall also pay Rs,5,000 (Rupees five thousand only) as Daman to the legal heirs of the deceased. With these observations, this appeal stands disposed of.
' In view of the above, I find no substance in the revision petition, which is dismissed in limine.