' Sajid sor of Khuda Bakhsh (deceased) and Maqsood Ahmad, appellants, were tried for offences under sections 302/ 34' P.P.C. By the learned Sessions Judge, Pakpattan Sharif and having been found guilty they were convicted under section 316, P.P.C. And sentenced to undergo 14 years, rigorous imprisonment each as Ta'zir and to pay Diyat of Rs,2,36,366.50 each. The appellants were also ordered to pay compensation of Rs,5,000 each under section 544-A, Cr.P.0 and in default to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.0 was also extended to them, vide judgment dated 24-9-2001.
2. Feeling aggrieved Sajid appellant through Criminal Appeal No,857 of 2001 and Maqsood Ahmad appellant through Criminal Appeal No,714 of 2001, have challenged their convictions and sentences before this Court.
3. As both the appeals arise out of the same judgment, these are being decided by this single judgment.
4. The occurrence took place at about 9-00 p.m. On 8-5-2000 in the Muse of Khuda Bakhsh (deceased) situated in Hassanpura, Pakpattan Sharif, within the area of Police Station City Pakpattan Sharif, which is at the distance of 1.1/2 K.M. From the place of occurrence.
5. The matter was reported to the police by Ghulam Nabi P.W.-5, a relative of the deceased. On his statement F.I.R. No,138 of 2000 Exh.P.H was recorded at the Police Station City Pakpattan Sharif by Ali Ahmad, Inspector/P.W.-7, on 9-5-2000 at 5-00 p.m. For offences under sections 302/34, P.P.C.
6. According to the F.I.R., on the night of occurrence Khuda Bakhsh deceased intended to marry her daughter Mst. Babra with one Muhammad Hashim and Nikah Khawan was summoned for that purpose. Meanwhile, Maqsood Ahmad and Shahid appellants, along with another person reached the place of occurrence. Sajid exhorted lalkara that he would not allow this marriage and that he would teach a lesson to his father (Khuda Bakhsh), who wanted to marry Mst. Babra with Muhammad Hashim. Thereafter, Sajid caught hold Khuda Bakhsh deceased from his neck and fell him down on a cot. After that, allegedly the two other persons caught hold Khuda Bakhsh and gave head strokes and kick blows while dragging him towards the outer door. Khuda Bakhsh received injuries on his left ribs, abdomen and his right testicle. Due to the said injuries Khuda Bakhsh became unconscious. The complainant along with Muhammad Hashim and Shimla Khan raised alarm attract on the other persons to the scene of occurrence. The accused escaped meanwhile.
7. The motive as given in the F.I.R. Was that Muhammad Ali wanted the hand of Mst. Babra for his son Maqsood Ahmad, appellant, but Khuda Bakhsh refused to oblige him and due to this grudge Maqsood Ahmad and Sajid ' appellants along with another person caused injuries /to Khuda Bakhsh, who lost his life.
8. Nothing was recovered from the place of occurrence and after recording of the F.I.R. Ali Ahmad P.W-7 reached the place of occurrence, prepared the injury statement, inquest report and despatched the dead body for post-mortem examination. He also recorded the statements of the P.Ws under section 161, Cr.P.C.
9. Maqsood Ahmad, appellant was arrested on 5-6-2000 and on 18-6-2000 Sajid appellant was also arrested by Ali Ahmad P.W-7.
10. Since the appellants denied the charge, the trial commenced. During trial the prosecution produced seven witnesses in support of its case. P.W-5 Ghulam Nabi complainant and P.W-6 Shimla Khan furnished the ocular evidence. P.W.3 Dr. Imtiaz Ahmad stated about the postmortem examination. P.W.7 stated about the registration of the case and investigation. Fayyaz Ahmad Lodhi, D.S.P. Appeared as CW-1 and testified that during investigation he converted the offence from section 302 P.P.C. To section 316, P.P.C. On receipt of the reports from the Chemical Examiner and Bacteriologist and directed to send up a challan of the case under section 316, P.P.C. He also stated that according to his investigation Maqsood Ahmad appellant was innocent.
11. After the closure of the prosecution case, statements of the appellants were recorded under section 342, Cr.P.C., who denied the allegations and pleaded innocence. However, the accused did not appear as a witness in their own defence as envisaged by subsection (2) of section 340, Cr.P.C.
And also did not produce any defence evidence.
12. During trial the statements of Mst. Razia Bibi wife of Khuda Bakhsh deceased, Mst. Babra and Mst.
Shazia daughters of the deceased were recorded, who stated that they had granted "A.F.W' to the appellants and had compromised with them. However, the trial Court also recorded the statement of Haji Liaqat Ali Patwari, who submitted a list of heirs of the deceased before the trial Court.
According to that list, the deceased had also another wife and children, who did not compromise with the appellants.
13.. I have heard the learned counsel for the parties, gone through the record and very minutely examined the facts and law applicable in the case. P.W. 5 and 6 appeared as eye-witnesses and according to them Sajid caught hold the deceased Khuda Bakhsh from his neck, while Maqsood Ahmad and other unknown person gave kick blows and head strokes to Khuda Bakhsh deceased.
These blows landed on the left ribs, abdomen and right testicle of the deceased, who fell unconscious and thereafter lost his life. It has been admitted by both the P.Ws that the accused were empty-handed. Sajid appellant was real son of the deceased. During investigation it transpired that none of the appellants had any intention to cause Qatl-i-Amd. The learned trial Court has also come to the conclusion that the appellants did not intend to cause Qatl-i-Amd and has convicted the appellants under section 316, P.P.C., which is Qatl-I-Shibh-i-Amd. For ready reference the definition as given under section 315, P.P.C. Along with illustration is being reproduced:- "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-i-Shibh-i-Amd.
' Illustration ' A in order to cause hurt strikes Z with a stick or stone which is the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl-i-Shibh-i-Amd."
14. P.W.3 Dr. Imtiaz Ahmad Rana conducted the post-mortem examination on' the dead body of Khuda Bakhsh deceased and found the following injuries:-
(1) Blood vomitus was coming from mouth and nose.
(2) Abdomen was distandered.
(3) Rigor mortis was partially present on the dead body.
(4) An abrasion 0.5 x 0.5 c.m. On left side left iliac fossa.
(5) An abrasion at left lower abdomen above injury N6.4.
(6) Post-mortem staining were present on the back of the dead body.
(7) A prick mark (possibility of an injection) was present on the left buttock.
(8) There was an abrasion on the left testicle.
15. A perusal of the post-mortem report . Shows that there were only four injuries on the person of the deceased. Abdomen of the deceased was distandered and rest of the injuries were only abrasions. A prick mark, which was perhaps available due to some injection, was found on the left buttock of the deceased. The post-mortem examination was conducted on 9-5-2000. According to the Doctor, the duration between death and post-mortem was from 20 to 21 hours. He also opined that injuries No,4 and 5 were simple in nature and also stated that injuries on the person of deceased being simple in nature were not sufficient to cause death in ordinary course of nature.
While. Giving this opinion after consulting the reports of Chemical Examiner and Bacteriologist, he was of the view that the cause of death was the cardiac arrest. During cross-examination the Doctor admitted that the report of the Bacteriologist Exh.P.F disclosed that the deceased was suffering from cardiac disease. While explaining injury No,1, the Doctor stated that bloody vomitus comes out from the dead body if the dead body is kept for more than 24 hours. He also admitted that there was no muscular or bone injury on the person of Khuda Bakhsh, deceased. All these points are very significant that as the matter was not reported to the police on the night of occurrence, while the police station was at the distance of 1-1/2 K.M. From the place of occurrence and none of the close relatives of the deceased report the matter to the police, as admitted by the complainant P.W.5 that they were not bothered to bring the matter into notice of the Police. The F.I.R. Was recorded after a delay of about 21 hours. No recovery was effected either from the appellants or from the place of occurrence. The motive was that the appellants wanted to prevent marriage of Mst. Babra daughter of the deceased with one Muhammad Hashim, which resulted into this most unfortunate incident.
16. In the light of the above mentioned circumstances, the most pertinent question is that what offence is made out in the circumstances of the case. A perusal of section 315, P.P.C., which has already been reproduced above, makes it very clear that death should be result of the injury caused by the accused but that injury may not be ordinarily sufficient to cause death and in the circumstances of the case should have caused death, as has been cleared by illustration given in section 315, P.P.C. In this case none of the injuries was declared to have contributed towards death of the deceased. It is nobody's case that the deceased received any injury near or on his heart. The Doctor has clearly opined that the deceased died because of cardiac arrest and there is nowhere stated that the deceased suffered cardiac arrest due to the injuries attributed to the appellants. No adverse presumption can be drawn against the appellants, as it is the duty of the prosecution to prove its case beyond doubt against the appellants. After initial examination of the dead body the Doctor could not give any definite opinion. However, he sent the visceras to the Chemical Examiner and the Bacteriologist. He after examining the dead body and pursuing the reports, mentioned above, gave his considered opinion that the deceased had been suffering from cardiac disease and died due to cardiac arrest.
17. A perusal of the whole evidence makes it manifest that it has nowhere been mentioned that any of the injuries contributed to the cardiac arrest. In these circumstances, the ingredients of section 315, P.P.C. Read with section 316, P.P.C. Are not made out, therefore, I set aside the convictions and sentences of the appellants awarded to them under section 316, P.P.C. Vide judgment dated 24-9- 2001, by the learned Sessions Judge, Pakpattan Sharif. Howeer, it has been proved beyond doubt that the appellants manhandled the deceased and inflicted simple injuries to him, which fell within the definition of section 337-L(ii) P.P.C., therefore, while maintaining the convictions of the appellants, I alter the same from section 316, P.P.C. To section 337-L(ii)/34 P.P.C., and sentence them to imprisonment to a period which they have already undergone, as it would meet the ends of justice in the circumstances of the case. The appellants would be released from Jail forthwith, if not required in any other case. With these modifications both these appeals are dismissed.