' FAZAL-UR-REHMAN, J.--- This appeal under section 410, Cr.P.C. Has been directed against the judgment of learned Additional Sessions Judge-I, Quetta, whereby the appellant Muhammad Qasim was convicted under section 316, P.P.C. And sentenced to suffer imprisonment for 10 years as Tazir and Diyat amounting to Rs,2,10,000 (two lacs ten thousand rupees) to be paid to the heirs of Barat Ali deceased. The appellant was ordered to be kept in jail till payment of the amount of Diyat.
However, benefit of the provision of section 382-B, Cr.P.C. Was granted.
2. The occurrence is stated to have taken place on 18-3-1997 at about 6-30 p.m. When deceased, accused, complainant and witnesses were present at Yazdan Khan Road in front of Tajai Khan Sport Complex. It is stated that P.W. Akhtar Muhammad S.-I./A.S.H.O. Of Qaid Abad Police Station on receipt of telephonic information went to Civil Hospital where he found Barat Ali, in injured condition, lying in Orthopedic Ward unconsciously. He then prepared statement of injury (Exh.P.7/A) and handed over to the Medical Officer. Deceased's uncle P.W. Mir Hassan made report (Exh.P.1/A) to P.W. Akhtar Muhammad A.S.H.O., who sent the same to police station for registration of case. The same was incorporated in the F.I.R. Being Crime No,38 of 1997 under section 337, A.D.F. Qisas and Diyat Ordinance. Mir Hassan stated in his report that he has a shop of soft drink and juice at Prince Road. According to him on 18-3-1997 at about 6-30 p.m. He alongwith his nephew Barat Ali (deceased), Jaffar, Javid and Muhammad Qasim (accused-appellant) was present at Yazdan Khan Road opposite Tajai Khan Sport Complex, where deceased demanded his money (loan) from accused which was outstanding since long. It is stated that the accused, by refusing, sought further time. It was alleged that on account of this an altercation took place between them. It was further alleged that accused picked up a piece of brick from the road and hit on the right side of skull of deceased. According to him, the people intervened and he took deceased Barat Ali in the first instance to his house and since the bleeding could not stop, he then took him to the hospital where he became unconscious. He, accordingly, requested for action against accused Muhammad Qasim who had caused injury to Barat Ali with brick. The said A.S.H.O., who took investigation in his hand arrested the accused from the hospital, who had gone there. He then went to the place of occurrence and prepared sketch Exh.P.7/C. On receipt of information that the injured succumbed to his injury, the offence was converted into offence under section 302, P.P.C., he went to Civil Hospital where he held inquest in respect of dead body vide Exh.7/D. No internal post-mortem examination was conducted. The dead body was handed over to Mir Hassan after obtaining receipt Exh.P.1/B. From police station the accused was then taken to the place of occurrence. It is stated that a piece of brick was recovered from the place of occurrence on the pointation of accused being weapon of offence and taken into possession vide recovery memo. Exh.P.5/A. The blood-stained clothes which were produced by one Ali Hassan on 20-3-1997, were taken into possession vide Exh.P.5/B. The site plan was got prepared from Patwari vide Exh.P.7/E. After usual investigation the accused was sent to face his trial under section 302, P.P.C. The case was sent to the Court of Sessions judge by the learned Judicial Magistrate-II, Quetta, which was then made over to the learned Additional Sessions Judge-I, Quetta, for trial.
3. On 12-6-1997, charge under section 302, P.P.C. Was framed by the trial Court against the appellant to which he pleaded not guilty and claimed trial.
4. In order to establish its case, the prosecution examined P.W.1 Mir Hassan (complainant), P.W.2 Jaffar P.W.3 Muhammad Javid (eye-witness) P.W.4 Dr. Fareed who had examined deceased Barat Ali, P.W.5 Ghulam Hyder, recovery witness, P.W.6 Syed Abdul Jabbar, Chemical Expert who had examined blood-stained clothes of the deceased and found the same to be stained with human blood and P.W.7 Muhammad Akhtar, S.-I., who had conducted the investigation of the case and has disclosed the facts as hereinabove mentioned.
5. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution and pleaded his innocence. When asked as to why prosecution witnesses had deposed against him to which he replied to the trial Court that they are interested witnesses. He has also made his statement on oath as per provision of section 340(2), Cr.P.C. He has also produced D.Ws. Syed Muhammad Hussain and Ishaque Ali in his defence.
6. Learned trial Court after having juxtaposed the evidence believed the prosecution version, supported by the medical evidence and recovery of crime weapon i,e, piece of brick, while bringing the case within the ambit of section 315, P.P.C., the learned trial Judge has expressed himself in the following words:-- "Now a question arises as to what offence has been committed by the accused? All the witnesses produced by the prosecution stated that a quarrel took place between the accused and deceased on borrowed amount. The deceased Barat Ali stricked the accused by fist and the accused picked up piece of brick from the road and hit at the right side of the forehead of the deceased Barat Ali. It came from the evidence of prosecution that at first the deceased hit the accused and thereafter accused hit the deceased with brick. The accused not repeated the same. It is also shown from the medical certificate Exh.P.4 there was no skull fracture seen but the P.W.4 stated that cause of death of the deceased is injury on vital organs i,e, brain enternal bleeding shock and death. It is also came on record that the complainant first took the deceased to his house and later brought to Civil Hospital, Quetta. The accused did not act in cruel or desperate manner as he caused solitary blow with a brick. Here at this juncture, the question would be as to it was a Qatal-eAmd which could not be committed without having intention and knowledge. In so far as intention is concerned, that can always be gathered from strength of the blow and injuries caused to victim. As mentioned earlier the piece of brick was thrown by accused and hit on the head of deceased Barat Ali who sustained injuries and resultantly expired and in such view of matter it can be said safely that it was not a Qatl-e-Amd. As essential elements constituting the offence of murder i,e, intention and knowledge are lacking in this case. It is well-settled by now that a man intends the natural and inevitable consequences of his own acts. It is, therefore, necessary to take into consideration the accused state of mind at that time. He committed the act to know whether he intended to cause death or not, as not constructive but actually to intention to cause a death is required. In judging the question whether the accused was having the knowledge at the time of attack depends upon the circumstances. On the basis of surrounding circumstances as highlighted in the preceding paragraphs, it can be inferred safely that while throwing a piece of brick, the accused was not aware that it might lead to such a drastic. In my considered opinion, the alleged offence falls within the domain of section 315, P.P.C."
' The learned trial Judge while passing an order of conviction under section 316, P.P.C. Came to the conclusion that it was a sudden fight, there existed no previous enmity between the parties, the accused caused only one brick blow and had not acted in a cruel or desperate manner. He, accordingly, convicted the appellant under section 316, P.P.C. And sentenced in the manner hereinabove mentioned. As such, instant appeal has been preferred.
7. We have heard Mr. Abdul Wadood, Advocate, learned counsel for appellant, while Mr. Noor Muhammad Achakzai, learned Additional Advocate-General for State and Mr. Ali Ahmed Kurd for complainant.
8. The occurrence has even not been disputed by the defence which has however, given its own version of the same. There is no substance in the plea of appellant Muhammad Qasim and explanation given by him regarding causing of injury to the deceased by his uncle Mir Hassan is neither reasonable nor worthy of reliance which has rightly been rejected by the trial Court. Ocular evidence by witnesses whose presence on scene of occurrence was beyond any doubt cannot be discarded.
9. It is an admitted position that there existed no background of any previous enmity between the appellant and the deceased. There was only exchange of harsh words between them which resulted into this unfortunate incident. It is also significant that appellant gave only one blow with piece of brick which he had picked from the road during sudden fight. In these circumstances, the learned trial Judge, has rightly held the accused/appellant guilty of the offence under section 316, P.P.C., after considering the point of sudden fight between the accused and the deceased as a mitigating circumstances in his favour. The learned counsel has not been able to point out any illegality, perversity or unreasonableness to have been committed by the trial Court.
10. It is pertinent to note that it is admitted position that the matter has since been compromised between the parties out of Court and the compromise deed duly completed, could not be effected and produced before the Court as the legal heirs of the deceased have been stated to have gone to Afghanistan and have not yet returned. The order-sheet maintained for 26-7-1999, is indicative of the fact that Mst. Bakhtawar widow of Barat Ali did appear before the Court and confirmed that she and other legal heirs of the deceased have forgiven the appellant after receiving an amount of Rs,1,00,000. The parties have been seeking adjournments for production of compromise deed and legal heirs but could not produce as they have been stated to have gone to Afghanistan and have not yet returned.
' Keeping in view the fact that Mst. Bakhtawar widow of Barat Ali has pardoned/forgiven the appellant, we are, therefore, of the view that ends of justice will be met if the appellant is sentenced to the period of imprisonment already undergone by him. We .
11. It may also be pointed out that under section 331, P.P.C., the convict is entitled to be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
Appellant Muhammad Qasim, therefore, may be released on bail on furnishing a security equivalent to the amount of Diyat amounting to Rs,2,10,000 with two sureties each in the like amount to the satisfaction of the trial Court with directions to the appellant that he should pay the Diyat amount in three yearly installments starting from today. The Diyat as and when received shall be disbursed among the heirs of the victim according to their respective shares in inheritance. The amount, if any already paid be counted towards the share of heir to whom payment had been made. The interest of the minors however, should not be jeopardized and be dealt with in accordance with law. The appeal is accordingly disposed of in the above terms.