' This judgment will dispose of Criminal Appeal No,160 of 1994 filed by Azhar Mahmood appellant.
Who was convicted and sentenced by learned Additional Sessions Judge, Gujranwala on 29-1-1994 for the murder of Nizam Din, to undergo seven years' R.I. Under section 320, P.P.C. He was further directed to pay Rs,1./..!.000 as "Diyat" to he paid to the legal heirs of the deceased either in lump sum or in three instalments. In case he fails to pay the same, he will have to undergo simple imprisonment till he pays the same. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. The occurrence in this case took place on 20-9-1991 at 10-30 p.m within the areas of Sahran Chatha fields of the appellant. Complaint Exh.P.H. Was lodged on 21-9-1991 at 12-30 p.m at bridge of Canal Alipur Chatha by Ghulam Muhammad P.W.10 and the same was recorded by Muhammad Hussain, S.I. P.W. 13 while the formal F.I.R. Exh.P.H/1 was recorded Muhammad Amir, Moharrir Head- Constable P.W.9 on 21-9-1991 at 12-45 midnight.
3. It may be noted here, that two co-accused of the appellant, namely, Mumtaz Ahmad and Muhammad Aslam, were acquitted by the learned trial Court.
4. The prosecution case as per the statement of complainant, who appeared as P.W.10, was that Nizam Din (deceased) was his real brother. They were six brothers, and had been cultivators in. The village for the last 17/18 years. Muhammad Aslam and Mumtaz refrained them from digging the earth, as they were laying foundation and the objection of the accused was that it was not in straight line. The accused nominated an arbitrator and as per his award, 5 feet of land was given to the complainant party out of the field belonging to the accused. Two years back, three accused came to the spot on a tractor. The complainant refrained them to plough the portion of land which was given to the complainant party as per award. The P.Ws. Younas, Sardar, Rashid and brother of complainant Nizam Din deceased were present. Nizam Din clearly told the accused that the complainant party would not permit the accused party to plough the portion of land which had been given to them by the Arbitrator.
5. Accused Muhammad Aslam and Mumtaz exhorted their co-accused, Azhar, to start tractor and to run over any one coming in front of it. Accused Azhar started the tractor and its plough was aloft.
P.W. Rashid was hit by the side of tractor. He fell down after sustaining injuries. Complainant further stated that his deceased brother Nizam Din was, standing by the side of their (complainant) wall.
Accused Azhar struck the right front wheel with the brother of the complainant, who fell down.
Accused lowered the plough which struck Nizam Din and the accused dragged Nizam Din up to 32 Karams. The complainant and P.Ws. Raised hue and cry. Thereafter, co-accused Muhammad Aslam and Mumtaz disentangled Nizam Din from the plough of the tractor. The accused fled away raising. Lalkaras. Blade of the plough of tractor caused injuries on the back and flank of Nizam Din who succumbed at the spot. P.Ws. Sardar and Rashid witnessed the occurrence besides the complainant. The latter proceeded to inform the Police after leaving Sardar and Younas to guard the dead body and when he reached the bank of canal, he met the Police. He narrated the facts which were taken down and read over to him (Exh.P.H.) On the basis of said statement formal F.I.R Exh.PH/1 was recorded.
6. One day after the occurrence, the Investigating Officer proceeded to the spot and took into possession blood-stained earth vide memo. Exh.P.G. Appellant was arrested in this case on 5-10- 1991. Tractor bearing No,3610 P.3 alongwith its articles which are used in the fields P.4 were taken into possession vide memo. Exh.P.C.
7. , Prosecution, in order to prove its case produced 13 witnesses in all. Amongst them, there were three eye witnesses, two were examined by the prosecution, namely, Sardar Ahmad P.W.8 and Ghulam Muhammad P.W.10 while Rashid Ahmad injured P.W. Was given up by the prosecution as unnecessary. Thereafter, the statements of the appellant and his co-accused were recorded under section 342. Cr.P.C. And one D.W. Namely, Zamurred Khan, D.S.P., C.I.A., who stated about the innocence of the two co-accused of the appellant, namely, Muhammad Aslam and Mumtaz.
Learned counsel for the appellant has read before me the prosecution evidence, statements of the appellant, his co-accused, D.W.1, namely, Zamurred Khan, D.S.P./C.I.A. And some portion of the judgment of the learned trial Court. After going through this exercise he submits that it was an unwitnessed occurrence, which took place at dark hours of night. He further submits that the learned trial Court has disbelieved the prosecution evidence and has convicted the appellant on his own statement recorded under section 342, Cr.P.C, where he had taken the plea, that deceased Nizam Din tried to cause him injury with hatchet and he in order to save his life tried to turn the tractor and the deceased was killed in that process. He submits that no case is made out against the appellant.
8. On the other hand, learned counsel for the State submits that already a lenient view has been taken by the learned trial Court, that appellant has also admitted the killing of the deceased.
9. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court and the judgment of the learned trial Court with their assistance. It is true, that the learned trial Court has disbelieved the prosecution evidence and has also disbelieved the motive part of the occurrence, but he has not even thought it proper to discuss the same. He has convicted the appellant on his own plea. Section 320, P.P.C. Is a Penal Section while section 318, P.P.C. Is -definition of "Qatal-e-IChata". Section 318, P.P.C. Along with its two Illustrations are reproduced as below: ' SECTION 318: ' Qatl-i-Khata. Whoever, without any intention to cause the death or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit Qatl- i-Khata.
ILLUSTRATION.
(a) A aims at a dear but misses the target and kills Z who is standing by A is guilty of Qatl-i-Khata.
(b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of Qatl-i- Khata.
10. I may also refer here, the answer of question No,8 put to the appellant in his statement under section 342, Cr.P.C, in which the appellant has described the death of deceased being accidently.
The defence plea of the appellant and the statement of the appellant recorded under section 342.
Cr.P.0 in the reply to question No,8 is also not convincing one. There is no injury on the person of the appellant with hatchet, neither any hatchet was recovered from the spot. Appellant is a young man of 25 years of age while the deceased was an aged person i.e of 55 years of age. In my opinion, both the versions as stated by the complainant party and the appellant are not true. Both of them had not approached the learned trial Court with clean hands. Under section 320, P.P.C. The maximum sentence is 10 years along with "Diyat", but seven years have been awarded to the appellant. Appellant has already undergone sentence of two years, nine months and seven days.
This is an old matter relating to year 1991. Complainant has also not come forward for the enhancement of sentence in shape of Criminal Revision. Appellant has also suffered rigors of protracted' trial since 1991.
11. Keeping in view all the above situation of the present case, the sentence which the appellant has already undergone is treated to be sufficient in the circumstances of the case and also in the interest of justice. However, the amount of "Diyat" is maintained. Appellant is directed to pay the "Diyat" amount either in lump sum or in three equal instalments and the first instalment he would pay on 24-5-1999 before the learned trial Court and the other two instalments would be paid after three months each. In case he fails to pay the first instalment, he will be taken into custody and would undergo simple imprisonment in the Jail till he . Pays the same. With these observations, this appeal stands disposed of.