' The judgment, dated 30-3-2000 passed by Mr. Saghir Ahmad Qadri, learned Additional Sessions Judge, Faisalabad, has been assailed through the instant two matters. Criminal Appeal No,554 of 2000 has been filed by Shahbaz and Nasir accused convicts challenging their conviction and sentence. Criminal Revision No,302 of 2000 has been filed by complainant seeking enhancement of sentence. The learned trial Judge on conclusion of the trial held both the appellants in Criminal Appeal No,554 of 2000 guilty under section 302(b)/34, P.P.C. And sentenced each of them to undergo imprisonment for life. They were further directed to pay Rs,25,000 each as compensation to the legal heirs of the deceased, failing which to further undergo R.I. For six months each. Benefit under section 382-B, Cr.P.C. Was extended. Third co-accused namely, Muhammad Nawaz who had been alleged to have raised Lalkara, was acquitted by extending him the benefit of doubt.
2. The prosecution case in brief as revealed from the statement of Basharat Sajjad complainant P.W.8 is that he was resident of Chak No,364-GB. Three days prior to the occurrence Kazim Raza and Kausar had a dispute while playing cricket. During which Kazim Raza deceased brother of the complainant gave blows with his bat on the head of Kausar who sustained a minor injury. On 28-5- 1997 at about 6-00 p.m. Kazim Raza alongwith Aslam Khan and Amir Khan were proceeding towards their home, when they reached the Bazar of the village Nasir Shahbaz and Nawaz emerged from their house. They were all armed with Sotas, Muhammad Nawaz raised Lalkara, on which Nasir and Shahbaz (appellants) both simultaneously inflicted injuries with Sota on the head of Kazim Raza who fell down and thereafter, Nawaz also gave below on his index finger. They tried to apprehend the accused persons but they fled away. Kazim became unconscious and on the preceding night succumbed to the injuries.
3. After completion of the investigation, the aforesaid three persons were sent up to face trial in the Court of Mr. Sagheer Ahmed Qadri, learned Additional Sessions Judge who after holding the trial held both the appellants (Nasir and Shahbaz) guilty and convicted them as detailed above.
4. During trial the prosecution in support of its case examined ten witnesses. Basharat Sajjad complainant P.W.8 and Amir Khan P.9 furnished the eye-witness account of the occurrence. Both made statements as already detailed above. Both of them deposed on oath in Court that appellants i,e, Shahbaz 'and Nasir simultaneously inflicted injuries on the head of Kazim Raza deceased, which ultimately proved fatal. They were subjected to lengthy cross-examination both of them stick to their statements and as such their credibility cannot be doubted.
5. Post-mortem examination of deceased Kazim Raza was conducted by Dr. Javed Iqbal P.W.1 who observed the following injuries:--
(1) An abrasion 4 c.m. x 1 c.m. Back of left elbow, postrolateral part.
(2) An abrasion 7 c.m. x 1 c.m. Back of left elbow.
(3) An abrasion 1.5 c.m. x 1.5 c.m. Back of right second metacarpophalyngeal joint.
(4) An abrasion 1 c.m. x 1/2 c.m. Front of left chest upper part.
(5) An abrasion 2 c.m. x 1/2 c.m. Front of right knee.
(6) An abrasion 1 c.m. x 1 c.m. Front of left leg upper part.
(7) An abrasion 1/2 c.m. x 1/2 c.m. Front of left medical side.
(8) An abrasion 3 c.m. x 1.5 c.m. On front of left knee lower part.
(9) A stitched wound 8 c.m. x 1 c.m. On left side of head 3 c.m. Entrosuperior to left ear.
(10) A contusion mark 3 c.m. x 1 c.m. 10 c.m. Upward from left ear.
(11) A contusion mark 5 c.m. x 2 c.m. On left side of head 5 c.m. Upward from left ear.
' Injuries Nos.10 and 11 on the head were found to be fatal which were ante-mortem and had been caused with blunt weapon. During cross-examination the doctor admitted that blood had not oozed from injuries Nos.10 and 11. He conceded to the suggestion that possibility could not be ruled out that Injuries Nos.10 and 11 could have been caused by one blow. The description of Injuries Nos.10 and 11 also indicate that both the injuries could have been result of one blow. This opinion had not been given without relevant data. The prosecution witnesses anyhow stated that both the appellants caused injuries simultaneously with their respective Dangs which they were holding at that time.
6. After going through the evidence, the place of occurrence and the time of occurrence is not denied. However, the learned counsel for the appellants has argued rather vigorously that medical evidence belies the eye-witnesses' account, therefore, same could not have been relied upon and benefit of doubt should be extended to the accused persons. Her main reliance is on the observation made by the doctor during cross-examination that possibility could not be ruled out that both the injuries could be caused by one and the same weapon. The learned counsel has further argued with vehemence that eleven injuries were noted on the person of the deceased but the prosecution did not explain any injury except the injury on the head or finger. Injuries on the person of the deceased indicate that some scuffle took place in between the parties and murder was committed during that scuffle and same was not result of any intentional murder. Had there been any intentional murder the injuries at the head could have been repeated. Abrasion marks on the body of the deceased suggest that some scuffle took place in between the parties but nothing has been brought on record. It has been inferred from the fact that motive is stated to be the result of a dispute in between the parties. The dispute occurred, according to the prosecution when they were, playing cricket. It is admitted that blow with bat had been given to the appellant by the deceased. It is, therefore, argued that accumulative effect of the motive and the incident which took place on the same day, is that murder is not result of any preplanning or premeditation as asserted by the complainant and the P. Ws. Even otherwise, occurrence took place while the deceased happened to pass in front of house of the accused appellants. They were not even aware that the deceased had to pass in front of their house. It appears that when the deceased was passing in front of the house, some dispute erupted in between them which unfortunately culminated into death of Kazim Raza. It is, therefore, inferred that conviction of the appellant under section 302(b), P.P.C. Is not at all maintainable. According to them the case would be covered by section 321, P.P.C. The learned counsel for the complainant after going through the section and specifying its ingredients has argued that section 321, P.P.C. Is not at all attracted, as the murder in the instant case cannot in any manner be treated as Qatlbis-Sabab, therefore, he supports the conviction and sentence of the appellants.
7. After going through the evidence and hearing the parties, I find that fatal injury on the head of the deceased has been found, which according to the prosecution, has been ascribed to both the appellants but according to the observations of the doctor, possibility cannot be ruled out that injury may be result of one blow. Apart from that significant factor is the injuries on the person of the deceased which have not been explained. Number of injuries which are in the nature of abrasions, etc. Suggest that some scuffle in between the parties took place and during the heat of passion injury was caused on the head, which resulted into death of Kazim Raza. Although the doctor has observed that possibility of injury being from one blow cannot be ruled out yet in the present case two witnesses have firmly supported the prosecution and deposed on oath that both the injuries had been caused by two appellants simultaneously which landed on the head of the deceased. By taking into consideration the relevant facts and attending circumstances of the case, I am of the view that death is not the result of any pre-planning or premeditation. It appears to be a sudden affair, wherein injuries were caused on the head of the deceased which proved to be fatal. No explanation, however, is coming forth with regard to other injuries. Therefore, conviction under section 302(b), P.P.C. Does not appear to be justified. The same is, therefore, altered to one under section 302(c), P.P.C. Assessing the quantum of sentence, in circumstances of the case. I am of the view that sentence of 15 years' R.I. Each to both the appellants would meet the ends of justice.
Therefore, both the appellants are convicted under section 302(c), P.P.C. And sentenced to suffer 15 years' R.I. Each. Both the appellants have been ordered to pay Rs,25,000 as compensation to the heirs of the deceased the same is upheld and maintained. Benefit under section 382-B, Cr.P.C. Is extended. Criminal appeal is accordingly disposed of.
8. For the reasons recorded above, the Criminal Revision No,302 of 2000 fails and is as such dismissed.