This appeal is directed against judgment dated 26-4-1993 delivered by Mr. Muhammad Hussain Bhatti, the then learned Sessions Judge, Gujranwala, whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to undergo imprisonment for life as 'Tazir' for the murder of Muhammad Yousaf, deceased. The appellant was further directed vide the same judgment to pay compensation of Rs.30,000 to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default to undergo five months S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Brief facts of the case are that the appellant aged 18 years and the deceased Muhammad Yousaf aged 20/21 years were playing 'Carim-board' in the area of Street No.5, Sialvi Town, P.S. Bhaghbanpura, Gujranwala at about 1-30 p.m. On 24-8-1992. During the game a dispute broke out between the appellant and the deceased while complainant Muhammad Abdullah, brother of the deceased, Shabbir Ahmad (given up P.W.) and Saeed Ullah (P.W.6) were present there. They intervened and separated the youngsters. After about 10 minutes, the appellant returned to the place of occurrence while the deceased was standing outside the shop, where 'Carim-board' was being played. The appellant raised ' Lalkara' that he would teach a lesson to the deceased for insulting him and simultaneously picked up two kilo weight from a nearby Guava Rehri (handcart) and hit it on the head of deceased. The latter fell down, whereupon the appellant made his escape good. The occurrence was seen by the aforenamed P.Ws. The deceased was being taken to the hospital by the complainant but he succumbed to the injuries on way.
3. A case under section 302, P.P.C. Was registered against the appellant. He was found guilty by the Investigating Agency and sent up to face trial in the Court. The appellant was charged under section 302, P.P.C. To which he pleaded not guilty. The prosecution relied upon eye-witnesses namely Muhammad Abdullah complainant P.W. And Saeed Ullah P.W.6. The remaining two eye- witnesses namely Shabbir Ahmad and Naveed (Rehriwala) were however given up.
4. The recovery of weight Exh.P5 was effected from the appellant vide Memo. Exh.PD attested by Abdul Rehman given up P.W. And Muhammad Siddique P.W.4. The aforesaid weight was produced by the appellant before the police during the investigation in presence of aforesaid witnesses. The recovery was proved through the statement of Muhammad Siddique P.W.4, who admitted during the cross-examination that the weapon of offence i.e. Weight Exh.P5 was not stained with blood.
5. Other set of evidence consists of testimony of Dr. Muhammad Anwar Sajjad, P.W'.1 who stated that he had found following injury on the person of deceased:--- "(1) Swelling 4 c.m. x 3 c.m. On the left side in back of the head 5 c.m, above and back the left ear. "
The Medical Officer proved Exh.PA to be correct corbon copy of the post-mortem examination, whereas Exh.PA/1 was the diagram depicting the seat of injury.
6. According to the Medical Officer the bleeding was not visible from outside the injury, which was sufficient to cause death in ordinary course of nature. Time between the injury and death was about within one hour and between death and post-mortem was about 4 to 6 hours. The injury was attributed to a blunt weapon.
7. The Investigating Officer was examined as P. W.7, who had conducted the routine investigation and had challaned the appellant to face trial.
8. After the closure of prosecution evidence, the accused was examined under section 342, Cr.P.C.
He denied to have committed the murder of deceased or to have caused his death by inflicting an injury on the head of deceased with weight Exh.P5. About the cause of death of the deceased, the appellant raised the following plea in answer to question No.5:---- "Muhammad Yousaf was a rogue and bully. He was present in the shop of Muhammad Asghar where he misbehaved with me and I objected to the same. He wanted to give me beating and in that course he tumbled down and fell and struck against the edge of the carim board table on which we played 'carim' with each other and thus he suffered the injury which is falsely attributed to me. "
9. After making the abovementioned explanatory statement, the accused did not opt to examine himself upon oath in disproof of the prosecution allegation against him regarding murder of the deceased. He also did not produce any defence.
10. The learned counsel for the appellant contended that the death of the deceased was accidental, but was wrongly attributed to the appellant to implicate him falsely in this case. In this context he submitted that the prosecution has to stand on its own legs to prove its case beyond reasonable doubt. However, it had failed to prove its case against the appellant because the presence of the eye--witnesses was very doubtful; that the motive regarding occurrence remained shrouded in mystery and that the recovery of the iron-weight Exh.P5 did not in any way corroborate the ocular account of occurrence as the same was not stained with blood. The ocular account of occurrence was assailed on the ground that the presence of eye-witnesses was extremely doubtful because they had no business to be present there. The complainant being related to the deceased was alleged to be an interested witness and so was the other eye-witness, namely Saeed Ullah P.W.6, who was distantly related to deceased. There was allegedly no independent corroboration from a trust-worthy source, therefore, the prosecution case remained highly doubtful and that the benefit of doubt ought to have been extended to the appellant. Lastly it was contended that the defence story given by the appellant was not only plausible but also very convincing under present circumstances to show that the death of the deceased was accidental.
11. The learned State's Counsel vehemently opposed the above arguments on the ground that the prosecution has fully proved its case against the appellant beyond any shadow of doubt through disinterested evidence. In this respect it is contended that there is no enmity between the parties nor the complainant side had any interest to implicate the appellant falsely in this case. The ocular evidence was allegedly supported by the medical evidence showing the seat of injury, which has been correctly described by the eye-witnesses. Production of weight P.5 by the appellant before the police had also provided corroboration to the eye-witnesses that the weapon of offence was the weight aforesaid. It was, therefore, urged that the appellant had rightly been convicted by the learned Trial Judge.
12. I have considered the arguments addressed at the Bar and have also gone through the evidence produced at the trial carefully. It is true that Muhammad Abdullah, complainant (P.W.5), is brother of the deceased, but at the same time he has no motive to implicate the appellant falsely in this case. Likewise Saeed Ullah P.W.6 is also disinterested and independent person though distantly related to the deceased, but is not expected in ordinary course of nature to implicate the appellant falsely in this case. Both of them were present at the shop of Muhammad Asghar, where '
Carim-board' was being played. The aforesaid Muhammad Asghar was, however, not present. Both P.Ws. Clearly stated that a dispute had arisen during the game between the appellant and the deceased, but they were separated, whereupon the appellant reappeared after about 10 minutes and raised ' Lalkara' for avenging the insult. The appellant also picked up iron weight of two kilo from nearby ' Rehri' and hit it on the head of deceased, which proved fatal. A question was put to the complainant during his cross-examination regarding cause of the presence of both eye-- witnesses at the Carim Shop. The witness offered explanation that since the deceased was out of job during the days of occurrence, therefore, Saeed Ullah P.W. Wanted the deceased to engage him as a tailor for his brother namely Zafar. In that background, Saeed Ullah P.W. Had visited the house of complainant and both of them proceeded from there to Carim-Shop to contact the deceased. The same explanation was offered by other eye-witness namely Saeed Ullah for his presence at the Shop. The explanation regarding the presence of witnesses was solicited during their cross-examination and there being no rebuttal to belie their presence it cannot be doubted in any manner. Further under the situation, their visit to the Carim-Board Shop looked natural as they wanted to contact the deceased in connection with his employment. Under the circumstances it could not be said that they were chance or misdirected witnesses. Even otherwise they have no animus against the appellant so as to implicate him falsely in this case. Natural urge on the part of the complainant and Saeed Ullah P.W. Would be that the actual killer of the deceased should not be allowed to escape. Admittedly, there is no enmity between the two sides, therefore, the evidence of P.Ws. Cannot be brushed aside only on the ground that they were related to the deceased. It is particularly so, as they have been supported by the medical evidence which described the head injury and its locale as exactly as its narration was given by P.Ws. The weapon of offence i.e. Two kilo-weight though not blood-stained but can be taken into account as a corroborative piece of evidence, as it was produced by the accused/appellant himself and also because according to the Medical Officer the blood was not visible to the naked eye on the outer surface of the head. The injury had caused internal haemorrhage, which took away the life of deceased. Hence there is no doubt about the truthfulness of the eye-witnesses. The other corroborating factor is that the occurrence took place at 1-30 p.m., whereas F.I.R. Was registered on the same day after about 10 minutes at 1-40 p.m. At the police station. Promptness of the F.I.R. Shows that there was no time with the complainant side either to cook up the story or to introduce any type of improvement.
13. In view of the above discussion, it can safely be said that the prosecution has been successful to prove its case against the appellant for killing the deceased.
14. Before parting with the judgment, it will be fair to consider the plea raised in defence that the death was accidental. The story pleaded in the defence is not substantiated either by the appellant by his own statement upon oath in disproof of allegation against him nor he has produced any defence to support his contention. Even otherwise, the story does not seem to be convincing that during the assault the deceased's head had struck against the corner of ' Carim-- board' which had caused such a fatal injury. Anybody who has seen a ' Carim--board' will not be impressed by the plea of defence because it is light-weight board for playing game. It possibly cannot cause such a fatal injury if one strikes against it due to slip of foot till he is pushed with tremendous force to hit hard against the substance. It has not been explained by the appellant as to how and in what manner the deceased had struck against the 'Carim-board' to receive the tragic injury which otherwise could not be possible, if it was merely a simple fall or strike against it.
The defence story is, therefore, without merits.
15. Now the question would arise as to what offence was committed in the circumstances. The offence of ' Qatl-i-Amd' is defined in section 300, P.P.C., where intention or knowledge is attributable to the offender for causing death. In the instant case opening of the quarrel between the appellant and the deceased is shrouded in mystery. The allegation against the appellant is that he picked up two kilo weight from the nearby Rehri and struck it on the head of deceased. Apparently two kilo iron-weight is used for weighing the merchandise or articles offered for sale and normally cannot be used for causing death of a person. There might be intention of the appellant to cause harm to the body of the deceased and had thereby caused his death but the use of weighing weight could not be considered as a conventional weapon to be used as an instrument for causing murder or death of any person. The offence committed by the appellant, therefore, falls in the category of '
Qatl Shibh-i-Amd' as defined in section 315 and punishable under section 316, P.P.C. The conviction and the sentence of imprisonment and fine as ' Tazir' awarded to the appellant under section 302(b), P.P.C. Are, therefore, not maintainable in the eye of law and the same are set aside. The conviction of the appellant is converted from section 302(b), P.P.C. To section 316, P.P.C. The appellant is accordingly convicted under section 316, P.P.C.
16. Now the question of sentence will arise. The accused was about 18 years of age at the time of occurrence. He did not repeat the blow to the deceased, nor he acted in cruel manner. He is, therefore, sentenced to 10 years R.I. As 'Tazir' under section 316, P.P.C. And shall be liable to 'Diyat', which has been fixed by the Federal Government as Rs.1,89,906 (one lac eighty nine thousand nine hundred and six rupees only) declared to be value of 30630 grams of silver for the financial year 1995-96 for the purpose of subsection (1) of section 323, P.P.C. Vide Gazette of Pakistan dated July 3, 1995. The minimum amount of ' Diyat' is fixed keeping in view the financial position of the parties. It shall be payable to the heirs of the deceased.
17. The appeal is partly allowed with the above modification of conviction and sentence.